IN THE SUPREME COURT OF FLORIDA. Appellant, CASE NO. SC v. L.T. No. CF DEATH PENALTY CASE STATE OF FLORIDA,

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1 IN THE SUPREME COURT OF FLORIDA DUSTY RAY SPENCER, Appellant, CASE NO. SC v. L.T. No. CF DEATH PENALTY CASE STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE BILL McCOLLUM ATTORNEY GENERAL SCOTT A. BROWNE ASSISTANT ATTORNEY GENERAL Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida Telephone: (813) Facsimile: (813) scott.browne@myfloridalegal.com COUNSEL FOR APPELLEE

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... iii STATEMENT REGARDING ORAL ARGUMENT... iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 ISSUE I... 6 WHETHER THE LOWER COURT ERRED IN SUMMARILY DENYING DUSTY SPENCER S SUCCESSIVE MOTION AS A MATTER OF LAW AND IN FAILING TO ADDRESS THE ENTIRE RECORD AND APPLY THE FACTS OF THE CASE TO THE LAW? ISSUE II WHETHER FLORIDA STATUTE IS UNCONSTITUTIONAL FACIALLY AND AS APPLIED IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FLORIDA AND FEDERAL CONSTITUTION? ISSUE III WHETHER SPENCER S CURRENT UNDESCRIBED HEALTH ISSUES AND POTENTIAL FUTURE HEALTH ISSUES WILL COMPROMISE VENOUS ACCESS AND PRESENT AN UNDUE RISK OF WANTON AND UNNECESSSARY PAIN? ISSUE IV WHETHER FLA. STAT IS UNCONSTITUTIONAL? CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

3 TABLE OF AUTHORITIES State Cases Cox v. State, 2009 Fla. LEXIS 391 (Fla. Mar. 12, 2009) Diaz v. State, 945 So. 2d 1136 (Fla. 2006) Freeman v. State, 761 So. 2d 1055 (Fla. 2000) Henyard v. State, 992 So. 2d 120 (Fla. 2008) Hunter v. State, 2008 Fla. LEXIS 1636 (Fla. Sept. 25, 2008)... 6, 14 Kokal v. State, 901 So. 2d 766 (Fla. 2005) LeCroy v. Dugger, 727 So. 2d 236 (Fla. 1998) Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), cert. denied, 128 S. Ct (2008)... 8, 9, 11, 17 Muhammad v. State, 603 So. 2d 488 (Fla. 1992) Power v. State, 992 So. 2d 218 (Fla. 2008) Reaves v. State, 826 So. 2d 932 (Fla. 2002) Schwab v. State, 969 So. 2d 318 (Fla. 2007)... 8 Sexton v. State, 997 So. 2d 1073 (Fla. 2008) Spencer v. State, 645 So. 2d 377 (Fla. 1994)... 3 ii

4 Spencer v. State, 691 So. 2d 1062 (Fla. 1996)... 3 Spencer v. State, 842 So. 2d 52 (Fla. 2003)... 4 Ventura v. State, 2 So. 3d 194 (Fla. 2009)... 11, 15, 20 Walton v. State, 2009 Fla. LEXIS 136 (Fla. Jan. 29, 2009) Federal Cases Baze v. Rees, 128 S. Ct (2008)... 8, 9, 10 Henyard v. Does, 543 F.3d 644 (11th Cir. 2008) McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008) Spencer v. Florida, 522 U.S. 884 (1997)... 3 Wellons v. Hall, 554 F.3d 923 (11th Cir. 2009) Other Authorities , Fla. Stat... 13, 14, , Fla. Stat... 19, 20 Fla. R. Crim. P (d)(1) PRELIMINARY STATEMENT The record on appeal for this appeal following the denial of a successive motion for post-conviction relief will be designated by the volume number followed by the appropriate page numbers (V #, page #). iii

5 STATEMENT REGARDING ORAL ARGUMENT Spencer has been given the opportunity to present oral argument in this Court on his direct appeal and on the appeal from the denial of his initial motion for post-conviction relief. The claims raised in this appeal were summarily denied below as meritless based upon binding precedent from this Court. Oral argument would not aid the Court in deciding the claims raised herein. iv

6 STATEMENT OF THE CASE AND FACTS Spencer was charged by amended information with first degree murder [victim Karen Spencer], aggravated assault with a knife [victim Timothy Johnson], attempted first degree murder [victim Karen Spencer], and aggravated battery [victim Timothy Johnson]. A jury trial commenced before the Honorable Circuit Judge Belvin Perry, Jr., and the jury found Spencer guilty of first degree murder, aggravated assault, attempted second degree murder, and aggravated battery. Guilt Phase Facts On direct appeal, this Court provided the following summary of facts developed during the trial: In early December 1991, Karen asked Spencer to move out of the house. On December 10, 1991, Spencer confronted Karen about money which she had withdrawn from the business account. During this argument, Spencer choked and hit Karen and threatened to kill her. Spencer was arrested after Karen reported the incident to the police. According to Karen s account to a police officer, Spencer called her from jail the next day and stated that he was going to finish what he had started as soon as he got out of jail. Although Karen asked Spencer to return home during the holidays, she asked him to leave again after Christmas was over. While Spencer was drinking with friends on New Years day, he told one friend that he should take Karen out on their boat and throw her overboard. Two days later he told that friend that Karen refused to go out on the boat anymore. On January 4, 1992, Spencer returned to Karen s home and got into a fight with Karen in her bedroom. Karen s teenage son Timothy Johnson was awakened by this fight. When Timothy entered his mother s bedroom, he saw Spencer on top of Karen, hitting her. When 1

7 Timothy tried to intervene, Spencer struck him in the head with a clothes iron. Spencer followed Timothy back to his bedroom and struck him several more times with the iron. Spencer told Timothy, You re next; I don t want any witnesses. Karen fled the house and sought help from a neighbor. When Timothy attempted to summon help on the telephone, Spencer yanked the phone cord from the wall. Spencer then fled the house and left town. Timothy and Karen were taken to the hospital and treated for their injuries. At the hospital, Karen told the treating physician that Spencer had hit her with an iron. At trial, the physician stated that Karen s wounds were consistent with having been inflicted with an iron. Spencer returned to Karen s house on the morning of January 18, Timothy was again awakened by a commotion, grabbed a rifle from his mother s bedroom, and found Karen and Spencer in the backyard. Timothy testified that Spencer was hitting Karen in the head with a brick, and that he observed a lot of blood on Karen s face. Timothy tried to shoot Spencer, but the rifle misfired and he instead struck Spencer in the head with the butt of the rifle, which was shattered by this impact. Spencer pulled up Karen s nightgown and told her to show your boy your pussy. He then slapped Karen s head into the concrete wall of the house. Karen told Spencer to stop. When Timothy attempted to carry his mother away, Spencer threatened him with a knife. Timothy ran to a neighbor s house to summon aid. When the police arrived at the scene, they found Karen dead. She had been stabbed four or five times in the chest, cut on the face and arms, and had suffered blunt force trauma to the back of the head. The medical examiner testified that cuts on Karen s right hand and arm were defensive wounds and that death was caused by blood loss from two penetrating stab wounds to the heart and lung. The medical examiner also testified that all of the wounds occurred while Karen was still alive and that she probably lived from ten to fifteen minutes after receiving the stab wounds in the chest. According to the medical examiner, Karen suffered three impacts to the back of the head that were consistent with her head being hit against a concrete wall. Because this impact would have caused Karen to lose consciousness, the medical examiner 2

8 testified that the defensive wounds had to have occurred before the head trauma. Spencer v. State, 645 So. 2d 377, (Fla. 1994). On September 22, 1994, this Court affirmed Spencer s convictions, but remanded for reconsideration of the sentence by the trial court in light of the court striking the cold, calculated, and premeditated aggravator and finding the statutory mental health mitigators were improperly rejected. Spencer v. State, 645 So. 2d 377 (Fla. 1994). The trial court reconsidered Spencer s sentence after remand, but found that the aggravating factors outweighed all mitigating circumstances and imposed the death sentence for the murder of Karen Spencer. (RS2, 68). On September 12, 1996, this Court affirmed Spencer s sentence on appeal after reconsideration of Appellant s death sentence. Spencer v. State, 691 So. 2d 1062 (Fla. 1996). Spencer filed a Petition for Writ of Certiorari which the Supreme Court denied on October 6, Spencer v. Florida, 522 U.S. 884 (1997). The trial court denied Spencer s motion for post-conviction relief on April 24, (PC6, ). Spencer appealed the denial of his post-conviction motion to this Court. On April 11, 2002 this Court issued an opinion upholding the denial of his post-conviction claims and denying him any relief on his state habeas petition. This Court issued a corrected opinion on 3

9 April 25, Spencer filed a motion for rehearing on April 25, This Court denied Spencer s motion for rehearing on January 9, The Florida Supreme Court issued a revised opinion on January 9, A second motion for rehearing was filed by Spencer on January 23, motion for rehearing on March 25, This Court denied the On April 24, 2003 the Florida Supreme Court issued its Mandate. Spencer v. State, 842 So. 2d 52 (Fla. 2003). Spencer filed a petition for writ of habeas corpus in the federal district court on July 17, 2003 and filed an amended petition on October 14, The district court denied Spencer s petition for writ of habeas corpus on September 7, 2006 and Spencer s motion to alter or amend was denied November 14, Spencer appealed the denial of his federal habeas petition to the U.S. Eleventh Circuit Court of Appeals December 13, 2006 and filed an application for a certificate of appealability on March 12, Shortly after his federal habeas petition was denied, Spencer filed in the circuit court, on October 25, 2007, a successive motion to vacate raising claims challenging lethal injection. The motion to vacate was denied October 1, 2008, rehearing denied November 4, This appeal follows. 4

10 SUMMARY OF THE ARGUMENT ISSUE I -The trial court properly denied Spencer s constitutional attacks to Florida s procedures for execution by lethal injection. The court applied binding precedent from this Court to reject this claim. ISSUE II -Spencer s challenge to the constitutionality of Section of the Florida Statutes is untimely, procedurally barred, and meritless. ISSUE III -Spencer s claim that future health problems will render lethal injection impermissibly painful or difficult to administer was properly denied below. The claim was highly speculative and devoid of supporting facts. ISSUE IV -Spencer s argument that of the Florida Statutes is unconstitutional is untimely, procedurally barred, and otherwise without merit. 5

11 ARGUMENT ISSUE I WHETHER THE LOWER COURT ERRED IN SUMMARILY DENYING DUSTY SPENCER S SUCCESSIVE MOTION AS A MATTER OF LAW AND IN FAILING TO ADDRESS THE ENTIRE RECORD AND APPLY THE FACTS OF THE CASE TO THE LAW? Spencer contends the trial court erred in summarily denying his successive motion for post-conviction relief challenging lethal injection. The State disagrees. In Hunter v. State, 2008 Fla. LEXIS 1636, 7-8 (Fla. Sept. 25, 2008), this Court addressed the legal standards employed in evaluating the summary denial of a motion for post-conviction relief. This Court stated, in part: Rule 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing [i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief. Because a court s decision whether to grant an evidentiary hearing on a rule motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003) (holding that pure questions of law that are discernable from the record are subject to de novo review ). In reviewing a trial court s summary denial of postconviction relief, this Court must accept the defendant s allegations as true to the extent that they are not conclusively refuted by the record. Rutherford v. State, 926 So. 2d 1100, 1108 (Fla. 2006) (citing Hodges v. State, 885 So. 2d 338, 355 (Fla. 2004)). The summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively 6

12 refuted by the record. McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (citing Foster v. State, 810 So. 2d 910, 914 (Fla. 2002)). part: The trial court rejected this claim below, stating, in Defendant claims that he can present evidence of an alternative single drug protocol but fails to identify the proposed drug or protocol. Furthermore in Baze, the Court noted that because a single drug alternative has not been adopted by any state, the continued use of the three drug protocol cannot be viewed as an objectively intolerable risk. Baze, 128 S.Ct. at The Supreme Court also rejected the idea that the court act as boards of best practices for executions by determining the methodology or chemicals to be used. The Court expressed that the methodology and the chemicals to be used are matters best left to the state legislature or DOC. Baze, 128 S.Ct. at 1531; Lightbourne 969 So. 2d at 351. This Court finds that decisions in Lightbourne, Baze, and Schwab have fully addressed the issues raised by Defendant. Therefore, this claim must be denied. (V1, ) Spencer has offered nothing to this Court to suggest the trial court erred in summarily denying his motion below. 1 The State takes exception to Spencer repeatedly referring to the 1 To the extent that Spencer asserts that his lethal injection claim is based upon any ground other than the December, 2006, execution of Angel Diaz, those grounds or claims are procedurally barred because they were not raised within one year of the time that lethal injection became a method of execution in Florida. Lethal injection became a method of execution in 2000, and Spencer could, and should, have raised any such challenges within one year of the release of the Sims v. State, 754 So. 2d 657 (Fla. 2000) decision in February of See Fla. R. Crim. P (d)(2). 7

13 Angel Diaz execution as botched. The death sentence in that case was successfully carried out, and was only delayed. Thus, the execution was not botched within the common sense meaning of that term. In any case, the Governor s commission on lethal injection as well as this Court have fully examined the circumstances of the Diaz execution. Neither the Diaz execution nor anything since that time has occurred to require a reexamination of the well settled precedent from this Court rejecting constitutional challenges to lethal injection. The trial court rejected Spencer s claim that Florida s current procedures for execution by lethal injection constitute cruel and unusual punishment, citing to Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), cert. denied, 128 S. Ct (2008), Schwab v. State, 969 So. 2d 318 (Fla. 2007) and the recent decision of the Supreme Court in Baze v. Rees, 128 S. Ct (2008). In Lightbourne this Court concluded that the protocols adopted by the Department of Corrections in August, 2007, do not violate the Eighth Amendment. Lightbourne, 969 So. 2d at 353. A review of the subsequent decision by the Supreme Court in Baze v. Rees, 128 S. Ct (2008) affirms that Florida s procedures comply with the Eighth Amendment. In Baze, the Court specifically held that protocols used in Kentucky would not 8

14 create a risk that meets this standard, and Florida s protocols provide greater protection than Kentucky s protocols, thereby reducing the risk of unnecessary harm. See Baze, 128 S. Ct. at 1537 (discussing standard); Baze, 128 S. Ct. at 1570 (Ginsburg, J., dissenting, noting that Florida has adopted safeguards for protection not found in Kentucky s protocols). This Court has rejected the notion that anything in Baze requires a reassessment of Lightbourne. In fact, this Court recognized that Baze confirms that use of the three drug protocol in Florida is constitutional: Since the issuance of our decision in Lightbourne, further developments support our conclusion that Florida s lethal injection protocol does not constitute cruel and unusual punishment under the Eighth Amendment. As to the first development, Walton does not present any new evidence with regard to the chemicals employed since the United States Supreme Court s decision in Baze v Rees, 128 S. Ct. 1520, 1534, 170 L. Ed. 2d 420 (2008), which upheld the constitutionality of the same method of execution used in Florida, consisting of lethal injection through the same three-drug combination under similar protocols. Moreover, we have rejected contentions that Baze set a different or higher standard for lethal injection claims than Lightbourne. See, e.g., Henyard, [992 So. 2d at 129] (rejecting Henyard s argument that Baze sheds new light on this Court s decisions because the standard for reviewing Eighth Amendment challenges was changed and noting that [w]e have previously concluded in Lightbourne and Schwab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze ). The second development was the performance of two executions in Florida, those of Mark Dean Schwab and Richard Henyard, with no subsequent allegations of any newly discovered 9

15 problems with Florida s lethal injection process, such as the problems giving rise to the investigations following the Diaz execution. Tompkins, 994 So. 2d at Thus, the circuit court did not err in summarily denying relief on this claim. Walton v. State, 2009 Fla. LEXIS 136, (Fla. Jan. 29, 2009). Similarly, the Eleventh Circuit has held that constitutional challenges to Georgia s three drug protocol [Florida s method] are foreclosed by the Supreme Court s decision in Baze. The Eleventh Circuit stated: Wellons attacks the constitutionality of Georgia s use of the three-drug protocol method of execution by lethal injection. He argues that the three-drug protocol violates the Eighth Amendment s prohibition against cruel and unusual punishment and that the district court erred in denying an evidentiary hearing on his Eighth Amendment claim. Both of these claims have been foreclosed by Baze v. Rees, U.S., 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008), in which the United States Supreme Court upheld a similar three-drug lethal injection protocol as not constituting cruel and unusual punishment under the Eighth Amendment. Wellons v. Hall, 554 F.3d 923, 942 (11th Cir. 2009). Notwithstanding recent precedent from this and federal courts rejecting lethal injection challenges, Spencer asserts that he should be given an individual hearing to litigate the constitutionality of lethal injection. If Spencer s assertion is correct, there is no issue in the law or fact, no matter how well settled, that would not entitle a defendant to an 10

16 evidentiary hearing. As this Court has recognized, due process in post-conviction proceedings only requires that the defendant be provided meaningful access to the judicial process. Kokal v. State, 901 So. 2d 766, 778 (Fla. 2005). There is no authority to suggest that an evidentiary hearing must be held any time a defendant asserts a claim, particularly when the issue sought to be litigated has been repeatedly rejected as a ground for relief, as in this case. 2 Since the Lightbourne opinion was issued, this Court has repeatedly upheld summary denial of claims challenging Florida s lethal injection procedure. As this Court noted in Ventura v. State, 2 So. 3d 194 (Fla. 2009): This Court has thus previously rejected each of these challenges to Florida s lethal-injection protocol and -- based upon the sound principle of stare decisis 2 Indeed, Spencer mentions he would call Sara Dyehouse should he be given an evidentiary hearing. However, this Court has already addressed the Dyehouse memo, stating: With regard to the Dyehouse memorandum recommending the use of a BIS monitor to more accurately assess the level of consciousness of the inmate, it might be beneficial to incorporate a device that could monitor the inmate s level of sedation to ensure the inmate will not experience subsequent pain of execution. However, the Court s role regarding the executive branch in carrying out executions is limited to determining whether the current procedures violate the constitutional protections provided for in the Eighth Amendment. Lightbourne, 969 So. 2d at

17 -- we continue the same course here. See, e.g., Lightbourne, 969 So. 2d at ; Schwab, 969 So. 2d at As we stated in Schwab, Given the record in Lightbourne and our extensive analysis in our opinion in Lightbourne v. McCollum, we reject the conclusion that lethal injection as applied in Florida is unconstitutional. (quoting Schwab, 969 So. 2d at 325). See also Henyard v. State, 992 So. 2d 120 (Fla. 2008); Power v. State, 992 So. 2d 218 (Fla. 2008); Sexton v. State, 997 So. 2d 1073, 1089 (Fla. 2008). Spencer has offered this Court no compelling reasons to depart from this Court s well settled precedent on lethal injection. As such, the trial court s order on Spencer s successive motion for post-conviction relief should be affirmed. 12

18 ISSUE II WHETHER FLORIDA STATUTE IS UNCONSTITUTIONAL FACIALLY AND AS APPLIED IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FLORIDA AND FEDERAL CONSTITUTION? Spencer next challenges the constitutionality of of the Florida Statutes because it prohibits him from filing a civil action in federal court challenging lethal injection. The trial court rejected this claim below, stating, in part: This argument has been rejected by the Florida Supreme Court in State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 410 (Fla. 1998). In that case, the Court found that the limitation on CCRC is a reasonable allocation of resources and section is constitutional. Therefore, this claim is denied. (V1, ) In rejecting this claim, the trial court recognized and applied binding precedent from this Court. Consequently, Spencer has offered no reason to reverse the court on appeal. Although the trial court properly rejected this challenge by citing binding precedent from this Court, Spencer s challenge to the constitutionality of F.S is also untimely and procedurally barred. As this Court recently explained:...rule requires motions filed beyond the time limitations to specifically allege that the facts on which the claim is predicated were unknown or could not have been ascertained by the exercise of due diligence. Fla. R. Crim. P (d)(2)(A). Furthermore, the rule requires successive motions to articulate the reasons why a claim was not raised 13

19 previously and why the evidence used in support of the claim was not previously available. Fla. R. Crim. P (e)(2)(B), (e)(2)(c)(iv). Hunter s motion does not satisfy any of these requirements. Hunter v. State, 2008 Fla. LEXIS 1636, (Fla. Sept. 25, 2008) (emphasis added). Spencer did not adequately or persuasively explain why his challenge to F.S could not have been made within the one year time limit of Rule 3.851(d)(1). Indeed, it is clear that with even a modest amount of diligence this claim could have been raised in a timely fashion, or, at the very least, in Spencer s initial post-conviction motion. Consequently, the instant claim is clearly untimely. 3 Moreover, a constitutional challenge to a statute is a matter that should have been raised, if at all, on direct appeal. See Muhammad v. State, 603 So. 2d 488, 489 (Fla. 1992) ( Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral 3 In fact, the underlying Section 1983 claim which collateral counsel seeks permission to present on Spencer s behalf, would itself, be dismissed in federal court as untimely. See Henyard v. Does, 543 F.3d 644, 647 (11th Cir. 2008) (holding that since lethal injection was enacted in 2000, defense counsel s claim in the civil suit challenging lethal injection in Florida was untimely); McNair v. Allen, 515 F.3d 1168, (11th Cir. 2008) (capital defendant s limitations period for his 1983 lethal injection claim was two years under Alabama s governing period for personal injury actions and began when he selected lethal injection as the method by which he would be put to death). 14

20 attack. ); Reaves v. State, 826 So. 2d 932, 936 (Fla. 2002) (noting that challenges to the constitutionality of Florida s capital sentencing statute are procedurally barred from review in a motion for post-conviction relief where they were either raised on direct appeal or should have been raised on direct appeal). Consequently, this issue was properly denied below because Spencer was procedurally barred from raising this claim in his successive motion for post-conviction relief. Finally, as recognized by the trial court below, the substantive claim is without merit. This Court has consistently rejected constitutional challenges to Diaz v. State, 945 So. 2d 1136, 1154 (Fla. 2006); Ventura v. State, 2 So. 3d 194 (Fla. 2009) (rejecting claims as to sections and and also rejecting challenges to the lethal injection protocols); Henyard v. State, 992 So. 2d 120, (Fla. 2008); Cox v. State, 2009 Fla. LEXIS 391 (Fla. Mar. 12, 2009). Spencer has offered this Court no compelling reasons to depart from this settled precedent. 15

21 ISSUE III WHETHER SPENCER S CURRENT UNDESCRIBED HEALTH ISSUES AND POTENTIAL FUTURE HEALTH ISSUES WILL COMPROMISE VENOUS ACCESS AND PRESENT AN UNDUE RISK OF WANTON AND UNNECESSSARY PAIN? Spencer next asserts that his largely undescribed present and future health problems will render his execution unnecessarily painful. The trial court disagreed, and, summarily denied this claim below. The trial court stated: Defendant claims his age and significant height along with any future medical or health conditions that he may develop will contribute to difficulties in obtaining venous access. He argues that current DOC procedures and policies are inadequate to assess, establish, and maintain adequate venous access necessary to carry out a humane and dignified execution by lethal injection. The State argues that postconviction relief is not available because this challenge does not invalidate the judgment or the imposition of sentence. Foster v. Stale, 400 So. 2d 1, 4 (Fla. 1981). The State also contends that the claim is insufficiently pled and speculative because Defendant does not allege that there are presently any vein, medical, or health problems. The State asserts that future problems will have to be addressed at the time they occur considering the protocols then in operation. This claim is speculative and legally insufficient because Defendant fails to identify the medical or health conditions that will contribute to difficulties in obtaining venous access and does not allege that these conditions currently exist. Furthermore, the Florida Supreme Court has held that an inmate s speculative list of horribles that could happen is insufficient to demonstrate more than a negligible risk. Lightbourne, 969 So. 2d at 349, citing Sims, 754 So. 2d at 667. In addition, as the. State argues, Florida protocols provide for consideration for inmates with health conditions, 16

22 particularly Execution by Lethal Injection Procedures if venous access cannot be achieved. See, July 3 1, 2007, paragraph (i), p. 9. The protocols also require that the medically qualified personnel chosen for the execution team have adequate certification and training for their respective positions. Lightbourne, 969 So. 2d at 351. Defendant has failed to identify risks that are so substantial or imminent to constitute an Eighth Amendment violation. Baze, 128 S.Ct. at Therefore, this claim is denied. (V1, ) As noted by the trial court below, this claim is highly speculative and devoid of supporting facts. Consequently, the court properly denied this claim without a hearing. See LeCroy v. Dugger, 727 So. 2d 236, 240 (Fla. 1998) (upholding summary denial of a postconviction motion because the defense alleged no facts to substantiate its conclusory claims); Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) (noting that the defendant bears the burden of establishing a prima facie case and that conclusory allegations are not sufficient to meet this burden. ). The only so called conditions mentioned below were that Spencer was a man of considerable height and that he was an older man. Spencer did not mention any specific medical infirmity which would render administration of lethal injection particularly difficult. Rather, Spencer s argument was based upon some unspecified future medical condition. See Lightbourne, 969 So. 2d at 349 (noting that an inmate s speculative list of horribles that could happen is insufficient 17

23 to demonstrate more than a negligible risk ). And, as the trial court recognized below, the protocols employed by DOC take into account an inmate s health issues in procedures employed for venous access. Consequently, Spencer s claim was properly denied below. 18

24 ISSUE IV WHETHER FLA. STAT IS UNCONSTITUTIONAL? Spencer finally argues that section is unconstitutional because it restricts his access to specific personal information about members of DOC s execution team. Spencer s argument lacks any merit. The trial court summarily denied this claim below, stating: Defendant claims section of the Florida Statutes which exempts from disclosure the information identifying the executioner or person administering lethal injection is unconstitutional. He asserts that the problems with past executions, including the execution of Diaz, require disclosure of the identity of the members of the execution team. Defendant argues that without access to the identities of the execution team, there is no way for an inmate to determine whether they are competent and qualified to ensure the Eighth Amendment is not violated. He also argues that the safety concerns for the members of the execution team is purely speculation and run counter to evidence that more prominent individuals involved in executions have not been the targets of serious or widespread harm. The State contends that postconviction relief is not appropriate because this claim is untimely, procedurally barred, and does not invalidate the judgment or the imposition of a sentence of death. Forester v. State, 400 So. 2d 1, 4 (Fla. 1981). The State also notes that this claim was rejected by the Florida Supreme Court. See Bryan v. State, 753 So. 2d 1244, (Fla. 2000). In Bryan, the Florida Supreme Court held that public records disclosure exemptions under section of the Florida Statutes are constitutional. Bryan, 753 So. 2d at This Court is bound by the Florida Supreme Court s decision and does not find that the events surrounding the execution of Diaz warrant a contrary ruling. Furthermore as stated previously, the protocols require that the medically 19

25 qualified personnel chosen for the execution team have adequate certification and training for their respective positions and the Florida Supreme Court determined that the procedures in place are not constitutionally defective. Lightbourne, 969 So. 2d 326, 351. Accordingly, this claim is denied. (V1, ) The trial court recognized and applied binding precedent from this Court in rejecting Spencer s challenge to section of the Florida Statutes. This Court has repeatedly declined invitations to recede from that precedent. See Ventura v. State, 2 So. 3d 194 n.3 (Fla. 2009) (noting that the Court has already addressed and rejected similar claims with regard to sections and and declined to recede from our prior precedent. ) (citing Henyard v. State, 992 So. 2d 120, , 130 (Fla. 2008), cert. denied, 129 S. Ct. 28, 171 L. Ed. 2d 930 (2008)). Moreover, this claim was untimely and procedurally barred as argued by the State below. The claim should have been raised if at all on Spencer s direct appeal, or, at the very latest, in his initial motion for post-conviction relief. For all of the foregoing reasons, this Court should affirm the order of the trial court below. 20

26 CONCLUSION In conclusion, Appellee respectfully requests that this Honorable Court AFFIRM the denial of Spencer s successive motion for post-conviction relief. Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL SCOTT A. BROWNE ASSISTANT ATTORNEY GENERAL Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida Telephone: (813) Facsimile: (813) scott.browne@myfloridalegal.com COUNSEL FOR APPELLEE 21

27 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER BRIEF OF APPELLEE has been furnished by U.S. mail to Maria D. Chamberlin, Assistant CCRC, Capital Collateral Regional Counsel - Middle Region, 3801 Corporex Park Drive, Suite 210, Tampa, Florida , this 1st day of May, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). COUNSEL FOR APPELLEE 22