Leo Alexander JONES, Petitioner, v. STATE of Florida, Respondent, 701 So. 2d 76

PER CURIAM. Leo Alexander Jones, at a time when he was under warrant of death, filed a petition to invoke this Court’s all writs jurisdiction, seeking a determination of whether electrocution in Florida is cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution and cruel or unusual punishment under

article I,

section 17 of the Florida Constitution. In addition to arguing that execution per se is cruel and unusual punishment, he pointed to the circumstances surrounding the recent execution of Pedro Medina to support his contention that execution in Florida’s electric chair in its present condition is cruel and unusual punishment. This Court rejected Jones’s claim that execution was per se cruel or unusual punishment.

However, the Court relinquished jurisdiction to the trial court to conduct an evidentiary hearing on Jones’s claim that electrocution in Florida’s electric chair in its present condition is cruel or unusual punishment. In order to provide the time necessary for the hearing, we stayed Jones’s pending execution. After a four-day hearing, the trial court entered an order denying the petitioner’s claim. On appeal from that order, Jones argued that the trial judge had erroneously denied his motion for continuance. Jones asserted that none of his expert witnesses could be available to testify at the scheduled hearing.

He also complained that during the course of the hearing, new written protocols for carrying out executions were then being developed based on recommendations of engineers who had examined the electric chair and that Jones’s attorneys did not receive the new protocols until the second day of the hearing. As a consequence, he claimed that he was unable to effectively cross-examine the state’s experts concerning these protocols.

In addition, it was not until after the hearing that the State also provided Jones’s attorneys with requested chart recordings pertaining to the performance of the electric chair during Medina’s execution.

In view of these circumstances, we once again relinquished jurisdiction to the trial court to hold an additional hearing in which the parties could present additional testimony and evidence, including the testimony of any witnesses who had testified at the previous hearing and that Jones could require two engineers who had testified for the State at the previous hearing to be present and undergo cross-examination.

At the conclusion of the hearing, the trial judge was directed to consider the testimony and evidence presented at both hearings and enter a new order on the claim that electrocution in Florida’s electric chair in its present condition is cruel or unusual punishment. By subsequent order, we permitted Jones’s experts to examine Florida’s electrocution equipment and to witness the testing thereof by appropriate Florida officials. We also permitted Jones’s attorneys to have access to certain requested evidentiary items concerning Medina’s execution. A second four-day evidentiary hearing was held.

During the course of the two hearings, many witnesses testified and each side presented expert testimony from doctors and engineers. Thereafter, the trial judge entered a twenty-six page final order denying Jones’s claim that Florida’s electric chair in its present condition was unconstitutional. In the order of denial, the judge made several significant findings of fact which may be summarized as follows: 1. The procedures used in the last seventeen Florida executions have been consistently followed, and no malfunctions occurred until the execution of Pedro Medina. 2.

The flame and smoke observed during Medina’s execution were caused by insufficient saline solution on the sponge in the headpiece of the electric chair. 3. Medina’s brain was instantly and massively depolarized within milliseconds of the initial surge of electricity. He suffered no conscious pain. 4. Consistent with recommendations of experts appointed by the Governor following Medina’s execution, the Department of Corrections has now adopted as a matter of policy written “Testing Procedures for Electric Chair” and “Electrocution Day Procedures.” 5.

Florida’s electric chair — -its apparatus, equipment, and electric circuitry — is in excellent condition. 6. Florida’s death chamber staff is qualified and competent to carry out executions. 7. All inmates who will hereafter be executed in Florida’s electric chair will suffer no conscious pain. The trial judge made the following conclusions of law: 1. Cruel or unusual punishment is defined by the Courts as the wanton infliction of unnecessary pain. Gregg v. Georgia, supra; Louisiana ex rel. Francis v. Resweber, supra. 2.

Florida’s electric chair, in past executions, did not wantonly inflict unnecessary pain, and therefore, did not constitute cruel or unusual punishment. 3. Florida’s electric chair, as it is to be employed in future executions pursuant to the Department of Corrections’ written testing procedures and execution day procedures, will result in death without inflicting wanton and unnecessary pain, and therefore, will not constitute cruel or unusual punishment. 4. Florida’s electric chair in its present condition does not constitute cruel or unusual punishment. 5.

During the hearing it has been strongly suggested and inferred by Jones that Florida’s electric chair as the method of judicial execution should be abandoned in favor of judicial execution by lethal injection. Such a move to adopt lethal injection is not within the constitutional prerogative of the Courts of this State, but rather lies solely within the prerogative of the Legislature of the State of Florida. Jones’s first point on appeal pertains to the testimony of State witness Dr.

Michael Morse, who qualified as an expert in the field of electrical engineering with particular reference to the application of engineering science to the human body. In the first hearing, Morse testified that Medina had been rendered instantly unconscious and unable to feel pain. On cross-examination, he stated that he could not say with one hundred percent certainty how the electric current distributed itself during an execution. Pursuant to our order, the State arranged for Dr. Morse to be present at the second hearing so' that Jones’s counsel could further cross-examine him.

During the second hearing, Jones’s counsel announced that he did not need Dr. Morse present for further cross-examination. However, the State later called Morse to the stand and asked if he had done further research in trying to determine where the current goes when it leaves the headpiece. He said he had utilized a document prepared by Dr. John Wikswo and carried it forward to conclude that in his opinion somewhere between one-third and two-thirds of the current would flow to the brain during an execution in the electric chair.

This testimony was apparently presented to rebut testimony from one of Jones’s witnesses that a much smaller amount of current would pass directly to the brain during an execution. There was no objection to this testimony, and Morse was cross-examined on this and other matters. At the request of Jones’s counsel the court asked Morse to retrieve the Wikswo

article for Jones’s counsel. Morse furnished a copy of the

article to Jones’s counsel at the beginning of the hearing on the following morning, and the court released Morse from attendance so that he could remain in the courtroom if he wished. Later that morning, Jones’s counsel filed a motion to strike Morse’s testimony concerning current flow to the brain because the research on which it was based as well as the research contained in Wikswo’s

article was novel scientific evidence which had not been shown to have been accepted in the scientific community under the rationale of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The trial judge denied the motion as being untimely since Dr. Morse had completed his testimony and been released as a witness before any objection was raised. Jones argues that because Morse was still in attendance in the courtroom, the judge’s ruling was in error. However, as in the case of other objections to expert testimony, a Frye objection is waived unless it is made at the time the testimony is offered. Jordan v.

State, 694 So.2d 708 (Fla.1997); Hadden v. State, 690 So.2d 573 (Fla.1997). In any event, there is nothing in the findings of the judge’s order which suggests that he relied on the disputed testimony. Moreover, that portion of Morse’s testimony to which Jones objected was not probative of the issue this Court had directed the trial judge to decide, i.e., whether Florida’s electric chair in its present condition constituted cruel or unusual punishment.

We also reject Jones’s second and corollary argument that the trial judge erred in refusing to grant a continuance so he would be able to present the testimony of Wikswo to demonstrate that Morse had misconstrued what he had said in his article. Jones states his third argument as follows: “Although the proper constitutional analysis holds that a deliberate indifference to a risk of pain renders a method of punishment cruel, Judge Soud erroneously required Mr. Jones to show that Medina and other judicial [sic] electrocuted persons experienced conscious pain.” He cites Farmer v.

Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), for the proposition that a state official’s failure to prevent harm to prisoners constitutes cruel and unusual punishment if the official shows deliberate indifference to the prisoner’s well-being. He then jumps to the conclusion that the State of Florida has shown deliberate indifference through its executions. This contention is totally without merit. In order for a punishment to constitute cruel or unusual punishment, it must involve “torture or a lingering death” or the infliction of “unnecessary and wanton pain.” Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947). As the Court observed in Resweber: “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” Id. at 464, 67 S.Ct. at 376.

There was substantial evidence presented in this case that executions in Florida are conducted without any pain whatsoever, and this record is entirely devoid of evidence suggesting deliberate indifference to a prisoner’s well-being on the part of state officials. Jones also argues that the trial judge erred in refusing to admit and consider evidence that execution in Florida is unusual because there is a trend away from execution through the use of the electric chair as a means of capital punishment and because only six states currently employ the electric chair as a means of execution.

The trial judge properly excluded this evidence as being beyond the scope of the issue which he had been assigned to decide. Our previous ruling that execution by the use of the electric chair is not per se unconstitutional subsumed the argument that Jones now makes. See Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.1994) (“We cannot conclude that judicial hanging is incompatible with evolving standards of decency simply because few states continue the practice.”); Hunt v.

Nuth, 57 F.3d 1327, 1338 (4th Cir.1995) (“[T]he existence and adoption of more humane methods [of execution] does not automatically render a contested method cruel and unusual.”). In his fifth argument, Jones contends that Dr. Sperry was called as a witness by the State in violation of the attorney-client privilege. As a consequence of the flame and smoke which accompanied Medina’s execution, the State asked two doctors to conduct an autopsy. At the request of Jones, two doctors selected by his attorney were also permitted to participate in the autopsy. Dr.

Sperry was one of the doctors selected by Jones’s attorneys for this purpose. Following the autopsy, all four doctors jointly signed the autopsy report. At the second hearing, the State proposed to call Dr. Sperry as a witness. Jones objected on the grounds of attorney-client privilege. At the hearing on this motion, the judge heard testimony as to the nature of Dr. Sperry’s employment by Jones’s attorneys. The trial judge found no attorney-client relationship that would preclude the testimony of Dr. Sperry. The judge found that Dr.

Sperry had received no instructions not to discuss his findings with other pathologists or the state attorneys. The judge also ruled that he would find that any privilege that might have existed had been waived under the circumstances because Jones’s attorneys did not object when Dr. Sperry answered questions and spoke at the meetings which took place before and after the autopsy at which Jones’s lawyers attended. In view of the judge’s findings, which were supported by the record, we hold that no error occurred.

Section 90.502, Florida Statutes (1995), pertaining to the lawyer-client privilege, protects confidential communications. The testimony by Dr. Sperry at the hearing did not pertain to communications with Jones’s lawyers. We reject Jones’s reliance on those cases which hold that a confidential mental health expert who is retained by defense counsel and who secures confidential information from the defendant cannot be called to testify by the State. E.g., Lovette v. State, 636 So.2d 1304 (Fla.1994). Dr.

Sperry’s testimony was limited to participation in the autopsy and his opinions concerning the effect of execution upon those being executed. See Rose v. State, 591 So.2d 195, 197-98 (Fla. 4th DCA 1991) (no error in permitting the medical examiner originally hired by the defense but not called as a witness to testify on behalf of the State where no confidential communications were passed between doctor and defendant’s attorney). In his sixth point on appeal, Jones attacks a number of evidentiary rulings made by the trial judge during the course of the hearing.

None of these rulings individually or collectively were of such moment as to affect the outcome of this case and need not be discussed. Finally, we reject Jones’s contention that the trial judge’s bias rendered him incapable of conducting a full and fair hearing. There is competent substantial evidence in the record to support the order of the trial judge. We hold that electrocution in Florida’s electric chair in its present eondition is not cruel or unusual punishment. We hereby vacate Jones’s stay of execution. OVERTON, GRIMES, HARDING and WELLS, JJ., concur.

HARDING, J., specially concurring with an opinion in which OVERTON, J., concurs. KOGAN, C.J., dissents with an opinion in which SHAW and ANSTEAD, JJ., concur.. SHAW, J., dissents with an opinion in which KOGAN, C.J., and ANSTEAD, J., concur. ANSTEAD, J., dissents with an opinion in which KOGAN, C.J., and SHAW, J., concur. . During Medina’s execution, flames were seen near the headpiece of the electric chair and smoke emanated from under the headpiece. . The Farmer opinion also points out that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. .

In Pedro Medina's case, we made a similar ruling that execution by electrocution is not per se cruel or unusual punishment. See Medina v. State, 690 So.2d 1241 (Fla.), cert. denied, - U.S. -, 117 S.Ct. 1330, 137 L.Ed.2d 490 (1997). In fact, we know of no court in the nation which has ever held that execution by electrocution is cruel and unusual punishment. .Prior to the second hearing, Jones filed a petition for extraordinary relief, for writ of prohibition and/or for writ of mandamus, seeking to prevent the State from calling Dr. Sperry to testify. We denied the petition.