Duane Eugene Owen v. State of Florida ( 2023 )

Supreme Court of Florida
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No. SC2023-0819
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DUANE EUGENE OWEN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
June 9, 2023
PER CURIAM.
Duane Eugene Owen appeals the Eighth Judicial Circuit
Court’s order finding him sane to be executed. See Fla. R. Crim. P.
3.812(e). We affirm. 1
I
On May 9, 2023, Governor Ron DeSantis signed a death
warrant scheduling Owen’s execution for June 15, 2023. 2 Owen’s
1. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
2. See Owen v. State, No. SC2023-0732, 2023 WL 3813490(Fla. June 5, 2023), for a detailed factual and procedural account of
this case.
counsel then submitted a letter to the Governor stating that there
are reasonable grounds to believe Owen is insane to be executed.
Following section 922.07, Florida Statutes (2022), the
Governor appointed a commission of three psychiatrists to examine
Owen and temporarily stayed Owen’s execution. Fla. Exec. Order
No. 23-106 (May 22, 2023). The psychiatrists conducted their
examination and concluded that Owen understands the nature and
effects of the death penalty and why it has been imposed on him.
Soon after, the Governor adopted the commission’s conclusion and
lifted the temporary stay. Fla. Exec. Order No. 23-116 (May 25,
2023).
Owen’s counsel then filed a motion for stay and hearing under
Florida Rules of Criminal Procedure 3.811 and 3.812. On June 1
and 2, 2023, the circuit court held an evidentiary hearing about
Owen’s sanity to be executed, “that is, whether the prisoner lacks
the mental capacity to understand the fact of the pending execution
and the reason for it.” Fla. R. Crim. P. 3.812(b). Owen presented
the testimony of two mental health experts, Dr. Hyman Eisenstein
and Ms. Lisa Wiley, and three of his present or former attorneys.
He also provided affidavits from two additional mental health
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experts: Drs. Faye Sultan and Frederick Berlin. In response, the
State presented the testimony of the three psychiatrists appointed
by the Governor to examine Owen: Drs. Tonia Werner, Wade Myers,
and Emily Lazarou. The State also called four correctional officers
who have observed Owen.
After considering all the evidence, the circuit court entered an
order finding Owen sane to be executed, concluding that Owen
failed to establish by clear and convincing evidence that he is
insane to be executed.3 The circuit court found that Owen does not
currently have any mental illness and is feigning delusions to avoid
the death penalty. It also determined that “[t]here is no credible
evidence that he does not understand what is taking place and why
it is taking place.” Indeed, the circuit court concluded that Owen
has a “rational understanding” of the fact of his execution and the
reason for it. The circuit court explained that it found the State’s
mental health experts’ testimony on Owen’s current mental
condition and competency to be executed “both credible and
compelling,” and “clearly and conclusively supported by the record.”
3. The circuit court also found that Owen would have failed to
meet his burden under a preponderance of the evidence standard.
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II
A
Owen alleges that the circuit court erred in finding him sane
to be executed. We disagree. There is competent, substantial
evidence supporting the circuit court’s determination, see Gore v.
State, 120 So. 3d 554, 557 (Fla. 2013), and so we affirm.
“[T]he Eighth Amendment’s ban on cruel and unusual
punishments precludes executing a prisoner who has ‘lost his
sanity’ after sentencing.” Madison v. Alabama, 139 S. Ct. 718, 722
(2019) (quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)). To
be ineligible for execution under the Eighth Amendment, a
prisoner’s mental state must be “so distorted by a mental illness
that he lacks a rational understanding of the State’s rationale for
his execution.” Id. at 723 (cleaned up) (quoting Panetti v.
Quarterman, 551 U.S. 930, 958-59 (2007)); see Gore, 120 So. 3d at
556. In other words, sanity for execution depends on whether a
“prisoner’s concept of reality” prevents him from grasping “the link
between his crime and the punishment.” Panetti, 551 U.S. at 958,
960. “What matters is whether a person has the ‘rational
understanding’ ” of why the State seeks to execute him, “not
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whether he has any particular memory or any particular mental
illness.” Madison, 139 S. Ct. at 727.
Here, the circuit court applied the appropriate legal standard
in concluding that Owen is sane to be executed. That is, it
determined that Owen has a “ ‘rational understanding’ of the fact of
his pending execution and the reason for it,” and is “aware that the
State is executing him for the murders[4] he committed and that he
will physically die as a result of the execution.” See id. at 722, 727;
Ferguson v. State, 112 So. 3d 1154, 1156 (Fla. 2012) (“[F]or insanity
to bar execution, the defendant must lack the capacity to
understand the nature of the death penalty and why it was
imposed.”) (quoting Johnston v. State, 27 So. 3d 11, 26 n.8 (Fla.
2010)). Indeed, the circuit court found it “inconceivable and
completely unbelievable” that Owen has “any current mental
illness” and determined that “Owen’s purported delusion is
demonstrably false.”
4. Even though Owen has also been sentenced to death for
the murder of Karen Slattery, his active death warrant pertains only
to the murder of Georgianna Worden.
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We find that the record contains competent, substantial
evidence to support the circuit court’s determination that Owen is
sane to be executed. See Gordon v. State, 350 So. 3d 25, 35 (Fla.
2022) (“Evidence is competent if it is ‘sufficiently relevant and
material’; evidence is substantial if there is enough that ‘a
reasonable mind would accept [the evidence] as adequate to
support a conclusion.’ ”) (alteration in original) (quoting De Groot v.
Sheffield, 95 So. 2d 912, 916 (Fla. 1957)). For example, the three
psychiatrists testifying on behalf of the State concluded “with a
reasonable degree of medical certainty” that Owen does not have a
mental illness, much less one preventing him from having a “factual
and rational understanding of the death penalty and why the death
penalty is being imposed on him.” Based on their clinical
evaluation of Owen, review of his medical and correctional records
from 1986 to the present, and interviews with correctional
employees, the State’s three psychiatrists testified that Owen
instead “met the diagnostic criteria for antisocial personality
disorder” and “was malingering.” And testimony from two of the
correctional officers concerning the lack of positive symptoms in
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Owen’s recent behavior tracks the conclusion that Owen is feigning
delusion to avoid the death penalty.
Accordingly, the circuit court’s conclusion is supported by
competent, substantial evidence.
We note that the circuit court considered the hearing
testimony and related evidence for Owen unconvincing at best. For
instance, although Owen’s principal medical expert, Dr. Eisenstein,
testified that Owen has schizophrenia and gender dysphoria, the
trial court found his testimony “to be less credible than the other
expert testimony and other evidence in the case” given Dr.
Eisenstein’s failure to consider several inconsistencies, including
those between the facts from Owen’s criminal convictions and his
self-reported delusions.5 The circuit court also assigned little
weight to Owen’s other testifying medical expert and former mental
health counselor, Ms. Wiley, who stated that Owen had previously
mentioned his gender dysphoria to her in 1996—thus corroborating
5. The circuit court also noted that Dr. Eisenstein
characterized Owen as a “passive individual who possessed no
violent tendencies”—despite knowing that Owen had committed
several rapes, two murders, and an attempted murder.
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one aspect of Owen’s professed delusion. 6 The circuit court did so
because Ms. Wiley also testified that she had never seen any
evidence that Owen had schizophrenia and that Owen had never
sought available accommodations for his gender dysphoria following
his conviction on retrial for the murder of Karen Slattery.
Otherwise, the circuit court found that Owen’s testimonial evidence
was “not particularly relevant or helpful to the issue before the
court in this hearing.”
B
Owen also claims that the circuit court abused its discretion
in denying his motion for a continuance based on the unavailability
of Drs. Sultan and Berlin to testify live at the evidentiary hearing.
Again, we disagree.
The circuit court acted reasonably in light of the undisputed
facts of record. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203
(Fla. 1980) (“If reasonable men could differ as to the propriety of the
action taken by the trial court, then the action is not unreasonable
6. Additionally, Owen presented, and the circuit court
considered, affidavits from two other mental health experts who
could not attend the hearing and testify. See infra Section II–B.
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and there can be no finding of an abuse of discretion.”). Although
Drs. Sultan and Berlin could not testify at the evidentiary hearing,
Owen provided, and the circuit court considered, their affidavits.
Moreover, both parties agreed that the testimony of both
unavailable witnesses would have been consistent with their
affidavits. And no proffer was made of any other evidence relevant
to Owen’s insanity to be executed that either would have presented
if available to testify live. See Gore v. State, 599 So. 2d 978, 984-85
(Fla. 1992) (holding that the trial court did not abuse its discretion
in denying a continuance to accommodate a witness because the
substance of her testimony was presented through deposition).
Even so, Owen argues that the circuit court committed
reversible error by not continuing the evidentiary hearing, pointing
to our decision in Provenzano v. State, 750 So. 2d 597, 601 (Fla.
1999). There, we held that the circuit court abused its discretion by
denying the defendant’s request to continue a rule 3.812 hearing
based on the unavailability of the defendant’s mental health expert,
Dr. Patricia Fleming. Notably, Dr. Fleming was the defendant’s “key
witness” and had just completed a psychological evaluation to
determine the defendant’s then-current mental status and
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competency to be executed. Id. at 604-05 (Lewis, J., specially
concurring).
But here, unlike in Provenzano, Owen still presented live
testimony of his principal witness, Dr. Eisenstein, who has recently
examined Owen twice in May 2023 and opined on Owen’s current
mental health and competency to be executed. What’s more,
neither of Owen’s unavailable mental health experts has seen or
had contact with Owen since 1999. So Drs. Sultan and Berlin
could have testified only to what they observed in the 1990s
concerning Owen’s mental state related to his retrial for the murder
of Karen Slattery—and these observations, a matter of record, were
already outlined in the doctors’ affidavits.
In the end, the issue of Owen’s sanity to be executed was
“resolved in the crucible of an adversarial proceeding.” Provenzano
v. State, 751 So. 2d 37, 40 (Fla. 1999). The circuit court held a
hearing according to Florida Rule of Criminal Procedure 3.812 that
afforded Owen’s counsel the “opportunity to submit ‘evidence and
argument . . . including expert psychiatric evidence that may differ
from the State’s own psychiatric examination.’ ” Panetti, 551 U.S.
at 950 (quoting Ford, 477 U.S. at 427 (Powell, J., concurring in part
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and concurring in the judgment)). It then properly considered all
the evidence, and made a determination based on the appropriate
standard under Florida Rule of Criminal Procedure 3.812(e). See
Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1339, 1339
n.6 (11th Cir. 2013) (concluding that Florida’s procedures for
determining a prisoner’s sanity to be executed, codified under
Florida Rules of Criminal Procedure 3.811 and 3.812, “did satisfy
the minimum due process requirements identified in Ford and
Panetti”).
The circuit court did not abuse its discretion in denying
Owen’s request for a continuance under these circumstances.
III
We affirm the circuit court’s order finding Owen sane to be
executed. No rehearing will be entertained by this Court, and the
mandate shall issue immediately.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., recused.
An Appeal from the Circuit Court in and for Bradford County,
James M. Colaw, Judge
Case No. 042023CA000264CAAXMX
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Eric Pinkard, Capital Collateral Regional Counsel, Lisa M. Fusaro,
Assistant Capital Collateral Regional Counsel, Morgan P. Laurienzo,
Assistant Capital Collateral Regional Counsel, and Joshua P.
Chaykin, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, Celia
Terenzio, Chief Assistant Attorney General, West Palm Beach,
Florida, and Leslie T. Campbell, Assistant Attorney General, West
Palm Beach, Florida,
for Appellee
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