IN THE CIRCUIT COURT OF THE

EIGHTH JUDICIAL CIRCUIT, IN AND

FOR BRADFORD COUNTY, FLORIDA

THOMAS H. PROVENZANO,

Plaintiff,

vs. CASE NO.: 99-286CFA

STATE OF FLORIDA,

Defendant.

/

THIS MATTER came before the Court in accordance with the order of the Supreme Court of Florida remanding this matter for a hearing pursuant to Florida Rule of Criminal Procedure 3.812 on Petitioner, Thomas H. Provenzano’s, competency to be executed. See Provenzano v. State, No. 95,959 (Fla. Aug. 26, 1999). In order 2000R-285, The Supreme Court of Florida assigned the undersigned judge to proceed as a temporary judge of the Eighth Judicial Circuit Court "to hear, conduct, try, and determine the above cause . . . and thereafter to dispose of all matters . . . regarding the competency of Thomas H. Provenzano to be executed, excluding other matters subsequently raised that are collateral to said cause."

In an effort to effectuate a speedy and just resolution of this matter, on Friday, August 27, 1999, at 4:00 p.m., this Court held a telephone status conference to discuss matters including the location to have the hearing and the date to commence the hearing. Mr. Michael Reiter, Assistant Capital Collateral Regional Counsel [CCRC], appeared on behalf of Provenzano. Ms. Carol Dittmar, Ms Carolyn Snurkowski, and Mr. Kenneth Nunnelley, Assistant Attorneys General, appeared on behalf of the State. Prior to the hearing, Provenzano’s counsel indicated there was a possible problem with the attendance of one of his witnesses, Dr. Patricia Fleming. However, during the hearing, Provenzano’s counsel advised the Court that Dr. Fleming had informed him that she would be available for a hearing which would begin on Tuesday, August 31, 1999. Provenzano’s counsel orally moved to continue the hearing, arguing that they did not have an adequate amount of time to prepare for the hearing. However, in light of the fact that Provenzano’s counsel made the claim that Provenzano is not competent to be executed over one and one-half months ago, and therefore that counsel has had adequate of time to prepare for this matter, the motion to continue was denied. Accordingly, the hearing was scheduled to begin on Tuesday, August 31, 1999, and based upon counsels’ representations of the length of time each side needed to present its case, the hearing was anticipated to last for two and one-half days.

After the conclusion of the status hearing, the Court received a facsimile transmission consisting of Provenzano’s preliminary witness list. The witness list included Dr. Fleming as one of the witnesses, but stated: "Dr. Fleming called at 4:40 p.m., 8/27/99 and informed [CCRC] that she would be unable to appear the week of 8/30 through 9/3/99 due to prior commitments."

In order to address Provenzano’s counsel’s contention that Dr. Fleming was now unavailable the entire week that the hearing had been scheduled, on Monday, August 30, 1999, at 11:00 a.m., the Court held another telephonic hearing in this matter. At this hearing, Provenzano’s counsel once again orally moved for a continuance of the hearing. In support of his motion, he presented an affidavit of Dr. Patricia Fleming, in which Dr. Fleming stated:

August 27, 1999, Affidavit of Patricia Fleming, Ed.D.

Despite her references in the affidavit to computer training for State of Wyoming employees, Dr. Fleming is not, insofar as has been made known to this Court, an employee of the State of Wyoming. In fact, as Dr. Fleming testified at this matter, she is in private practice. So, it is unclear as to why she would be required to attend computer training for State of Wyoming employees. Further, if this training were of such importance, this Court is uncertain as to how Dr. Fleming could have forgotten about it and represented to Provenzano’s counsel that she would be available to participate in this hearing.

If this matter had been delayed until the week of September 7, 1999, not only would it be difficult to conclude this matter in a period of time sufficient to enable the Florida Supreme Court to review these proceedings before Provenzano’s scheduled execution date of September 14, 1999, but scheduling problems with other witnesses would have been created. Considering all of the circumstances, including the fact that this claim was raised by Provenzano’s counsel over one and one-half months ago, the Court concluded that Dr. Fleming’s affidavit did not set forth adequate grounds which would justify continuing this matter, and consequently, Provenzano’s oral motion to continue was denied. However, the Court advised Provenzano’s counsel that Dr. Fleming could testify by telephone or video deposition, and that she could testify out of order. Further, the Court advised counsel that Dr. Fleming’s testimony could be scheduled as early in the morning as necessary, which, given the time zone differences between here and Wyoming, would accommodate Dr. Fleming’s schedule and avoid any conflict with the conference that she was attending or participating in.

On August 31, 1999, through the middle of the day on September 2, 1999, this Court held a hearing on this matter. On the first day of the hearing, hours after the hearing had commenced and after Provenzano’s counsel had presented the testimony of several witnesses in support of his claim that Provenzano is not competent to be executed, Provenzano filed "Defendant’s Motion to Declare Florida Rules of Criminal Procedure, Rule 3.811(b) and Rule 3.812(e) As Unconstitutional." In the Motion, Provenzano asserted that "[r]ule 3.811(b) is unconstitutional "because it does not allow for the prisoner’s rational appreciation of the connection between his crime and punishment." In addition, Provenzano asserted that "[r]ule 3.812(e) is unconstitutional because it creates the standard of proof of incompetency to be ‘clear and convincing’ instead of ‘by the preponderance of the evidence’ standard announced in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. [sic] 1373, 134 L.Ed.[sic] 2d 498 (1996)."

The Court finds the issue of the constitutionality of Florida Rules of Criminal Procedure 3.811(b) and 3.812(e) is not within the purview of the order of the Supreme Court of Florida directing the undersigned judge to "hear, conduct, try, and determine the above cause . . . and thereafter to dispose of all matters . . . regarding the competency of Thomas H. Provenzano to be executed, excluding other matters subsequently raised that are collateral to said cause." However, in the interest of time and judicial economy, the Court has considered the merits of the Motion.

In his Motion, Provenzano’s first claim is that Florida Rule of Criminal Procedure 3.811(b) is unconstitutional "because it does not allow for the prisoner’s rational appreciation of the connection between his crime and punishment." The Court finds the standard set forth in rule 3.811(b), that the person must have "the mental capacity to understand the fact of the impending execution and the reason for it," does allow for a prisoner’s rational appreciation of the connection between his crime and the punishment he is to receive. Accordingly, this argument is rejected.

With regard to Provenzano’s assertion that rule 3.812(e) is unconstitutional, as his counsel pointed out in the Motion, in Medina v. State, 690 So. 2d 1241 (Fla. 1997), the Florida Supreme Court rejected the argument that rule 3.812(e) is unconstitutional because it creates the "clear and convincing" standard of proof rather than the "preponderance of the evidence" standard of proof announced in Cooper. In rejecting this argument, the court in Medina specifically stated: "[w]e find that Cooper does not apply to a rule 3.812 proceeding. In Cooper, the issue involved the standard of proof in determining whether a defendant was incompetent to stand trial, which is clearly different from a determination of sanity to be executed." Id. at 1246-47. This Court is not in a position to overturn the rulings of the Supreme Court of Florida. However, despite that fact and in the event the Florida Supreme Court decides it would be appropriate to revisit this issue, this Court has considered this argument and rejects it.

Defendant argues that the procedures provided under section 922.07, Florida Statutes, for the governor’s proceedings to determine the competency of an individual to be executed are not consistent with the scientific procedures generally accepted in the scientific community, and therefore, that the procedure cannot pass the Frye test. Provenzano’s main complaint about the procedure set forth in section 922.07 is that all three doctors, as well as the attorneys for Provenzano and the State, may be, and in Provenzano’s case all were, present during the examination. Provenzano contends that this method of conducting a mental health examination is not a scientifically accepted procedure, and that the examination is not and cannot be effective with this many people in the room. Provenzano argues that since the procedure utilized by the three psychiatrists was not a scientifically accepted procedure, the procedure was unconstitutional and therefore, the testimony of these experts is inadmissible at the hearing before this Court.

In considering this argument, the Court did not take into the account the relaxation of the rules of evidence that is permitted in a hearing of this kind. Having said that, the Court finds that the opinions of the three psychiatrists who were members of the commission appointed to examine Provenzano pursuant to section 922.07, Florida Statutes, are professional opinions to which the requirements of Frye do not apply. See Hadden v. State, 690 So. 2d 573 (Fla. 1997). In Hadden, the court stated:

Hadden, 690 So. 2d at 579-80.

Further, the testimony of these three doctors at the hearing was that although they might ideally prefer to have fewer people present in the room during an examination of an individual, and although in their past experience in conducting forensic psychiatric examinations, they ordinarily had not had as many people present in the room during the examination of an individual, they were still able to form an opinion, within a reasonable degree of medical certainty, that Provenzano understands the nature and effect of the death penalty and why it is to be imposed upon him. Accordingly, for all of these reasons, Provenzano’s motion to declare Florida Rule of Criminal Procedure 3.812(e) unconstitutional is denied.

During the course of the hearing, counsel for Provenzano presented the testimony of numerous witnesses including psychologists and psychiatrists employed with Florida State Prison and Union Correctional Institution; correctional officers employed with Florida State Prison; Provenzano’s sister, niece, and nephew; Robert Pollack, M.D., a psychiatrist in private practice who performed a competency examination on Provenzano prior to Provenzano standing trial for the crime for which he was ultimately sentenced to death; and Harold H. Smith, Jr., Ph.D., a forensic psychologist who is in private practice. Additionally, Provenzano presented very limited testimony from Patricia Fleming, Ed.D., a psychologist who performed an examination of Provenzano on July 4, 1999. The State presented the testimony of several witnesses including correctional officers employed with Florida State Prison; Leslie Parson, D.O., Alan Waldman, M.D., and Wade C. Meyers, M.D., the three psychiatrists appointed by the Governor of the State of Florida to examine Provenzano’s competency to be executed pursuant to section 922.07, Florida Statutes; and, Harry McClaren, Ph.D., a forensic psychologist who observed Provenzano during these proceedings and during the hearing regarding the functioning of the electric chair that was held in Orlando July 27 through July 30, 1999. The testimony of the witnesses was at times taken out of order to accommodate witnesses’ schedules and to effectively use the Court’s time.

The Court does not find it necessary to specifically address the testimony of each and every witness who testified at the hearing. Instead, the Court will simply comment on the testimony of certain specific witnesses who testified.

To begin with, the Court specifically notes that although she is one of, if not the most critical witness in this matter, the testimony of Patricia Fleming, Ed.D., presented at the hearing was extremely limited. At the start of the hearing, Provenzano’s counsel stated that he was uncertain as to whether Dr. Fleming would be available to testify at the hearing because his office had been unable to reach her. From day one to day three of the hearing, multiple efforts were made by the Attorney General’s Office to locate and contact Dr. Fleming. In fact, although Dr. Fleming was Provenzano’s witness, the Attorney General’s Office appeared to put forth more effort to locate her than Provenzano’s counsel’s office did. If Provenzano’s counsel took strides to locate Dr. Fleming, other than calling her office a few times and leaving messages for her, then they did not make those efforts known to this Court.

Once Dr. Fleming was located and contacted via telephone, she declined to testify whatsoever regarding her opinions of Provenzano’s competency to be executed. Specifically, she stated she did not have any of her materials with her and that she was unable to provide any testimony regarding Provenzano’s competency to be executed. In fact, the Court was forced to order her to stay on the telephone line simply to answer some questions regarding her qualifications.

The State stipulated to the admission of Dr. Fleming’s Curriculum Vitae, which it rather than Provenzano’s counsel had obtained in an effort to determine Dr. Fleming’s credentials, and the State stipulated to the admission of Dr. Fleming’s report dated July 5, 1999, which she prepared after conducting her examination of Provenzano on July 4, 1999. However, the State would not stipulate that she was an expert in the field of forensic clinical psychology. Thus, the purpose of obtaining information from Dr. Fleming regarding her qualifications was to clarify exactly what Dr. Fleming’s qualifications are, and to assist this Court in determining what weight to give the report that she prepared after her July 4, 1999, examination of Provenzano.

Dr. Fleming’s brief testimony established that while she has experience in mental health, she is not a clinical psychologist, at least not as that term is used in Florida. Accordingly, she was accepted as an expert in mental health, but not as an expert in clinical psychology. The Court finds that her credentials are less impressive than the credentials of the other experts. For this reason, together with a consideration of her report, the Court finds her testimony is entitled to less weight than the testimony and/or reports of the other experts who were admitted as experts in psychiatry or clinical psychology.

Further, this Court is disturbed by Dr. Fleming’s behavior, and is not satisfied with the reasons she gave for not being able to participate in this hearing. This Court has taken every effort to accommodate her in order for her to testify in this matter. Despite those efforts, she declined to accommodate this Court whatsoever. For that reason, this Court has given less weight to her July 5, 1999 report regarding Provenzano’s competency to be executed.

Dr. Fleming never specifically opines in her report on the issue at hand, which is whether Provenzano understands the fact of the impending execution and the reason for it. She does state, however, that "[t]he role of the mental health professional in the competency to be executed evaluation is not as the decision maker, but the provider of information that would aid the court, tribunal, or jury in decision making." The only comments in Dr. Fleming’s report which seem to address the issue before this Court are her comments on page nine of the report where she asked Provenzano "What is your main worry now?" She wrote that he stated that he had no worries, and that he does not think about the execution. Additionally, on page ten of her report, Dr. Fleming states that Provenzano does not connect the courthouse shooting with the execution.

Although she either inadvertently did not comment on whether Provenzano understands the fact of the impending execution and the reason for it, or she specifically chose not to render such an opinion in her July 5, 1999, report, in her affidavit dated August 27, 1999, in which she outlined her reasons for not appearing to testify in this matter, she specifically was able to reach a conclusion on this issue. Therein, she specifically states: "It is my professional opinion that Mr. Provenzano is incompetent to be executed due to the severity of his mental illness. Thomas Provenzano does not appreciate or understand the fact of his impending execution and the reason for it."

In considering the evidence and testimony, the Court has given great weight to the testimony of Leslie Parsons, D.O., Alan J. Waldman, M.D., and Wade C. Meyers, M.D. These three doctors are the psychiatrists who were appointed by the Governor to examine Provenzano’s competency to be executed. The three doctors testified that although the conditions under which they examined Provenzano were not optimal, they were adequate, and that they were able, with a reasonable degree of medical certainty to opine that Provenzano does not suffer from any mental disease, disorder, or defect that would impair his ability to understand and appreciate the nature and effect of the death penalty and why it is to be imposed upon him.

One aspect of the testimony of Dr. Parsons and Dr. Waldman that was particularly persuasive to this Court was their testimony regarding Provenzano’s response to questions from Dr. Meyers about Provenzano’s understanding of the nature of the death penalty and why it was to be imposed upon him. They testified that during their examination of Provenzano, in response to questions on this subject, Provenzano said something to the effect that "if you kill someone, they kill you back." Additionally, in response to this same line of discussion, Provenzano stated "eye-for-an-eye, tooth-for-a-tooth."

The testimony of Alton Christie, Colonel at Florida State Prison, was also given great weight. Colonel Christie testified that when Provenzano was notified about the Governor signing his death warrant, Provenzano responded, in essence, that he was surprised because he had just finished his appeals, and that he thought there would be thirty-five to forty others who were ahead of him.

The Court gave no great weight to the testimony of Harold H. Smith, Jr., Ph.D. He testified that he would have conducted the examination of Provenzano differently from the manner in which the three psychiatrists appointed by the Governor conducted it. His testimony was not given great weight because it became clear during the course of the examination of him that he did not have sufficient information regarding the actions the psychiatrists took during the course of the examination. In short, he was basing his opinion that their examination was inadequate primarily on the statements contained in the final report that they issued to the Governor. His testimony did not address the issue of whether Provenzano met the standard, but rather the adequacy of the examination by the State’s witnesses.

Robert Pollack, M.D., a psychiatrist who examined Provenzano before trial, testified regarding his belief that the report generated by Doctors Meyers, Parsons, and Waldman was not adequate. The Court did not give great weight to this testimony because it did not address the matter before the Court for consideration. Instead, this testimony was directed at alleged problems with the examination conducted by Dr. Meyers, Dr. Parsons, and Dr. Waldman. Dr. Pollock’s main complaint was that there were too many individuals present in the room during the examination. He testified that it was not a generally accepted procedure to have other individuals present during a psychiatric examination. Further, Dr. Pollock specifically testified that he could not testify as to whether Provenzano is competent to be executed.

Harry McClaren, Ph.D., testified that he observed Provenzano not only throughout these proceedings, but throughout the proceedings held in Orlando July 27 through 30, 1999, regarding the functioning of the electric chair. Dr. McClaren testified that throughout these proceedings, he never observed Provenzano exhibit any bizarre behavior; Provenzano had no stereotypical movement or signs which indicated that he was responding to internal stimuli; Provenzano tracked the proceedings; Provenzano consulted with his counsel and read documents during the proceedings regarding the electric chair; and, Provenzano looked horrified when the disturbing photographs of Allen Lee Davis were displayed at the hearing on the functioning of the electric chair. Dr. McClaren opined that this behavior is not consistent with the suggestion that Provenzano suffers from severe mental illness.

A person under sentence of death shall not be executed while he or she is insane. See Ford v. Wainwright, 477 U. S. 399 (1986); Fla. R. Crim. P. 3.811. See also Martin v. Dugger, 686 F. Supp. 1523 (M.D. Fla. 1988); § 922.07, Fla. Stat. In Florida, a person is considered to be "insane to be executed" if he or she "lacks the mental capacity to understand the fact of the impending execution and the reason for it." Fla. R. Crim. P. 3.811(b). See also § 922.07, Fla. Stat. In attempting to establish that a prisoner is insane to be executed, counsel for the prisoner must establish by a preponderance of the evidence that the prisoner "lacks the mental capacity to understand the fact of the impending execution and the reason for it." See Fla. R. Crim. P. 3.811(b) and 3.812(e). Counsel for Provenzano did not meet this burden.

Further, assuming for the sake of argument that the burden of proof in this matter is simply preponderance of the evidence, counsel for Provenzano did not meet that burden either. In fact, Provenzano’s counsel presented minimal evidence that Provenzano is not competent to be executed.

He presented some evidence of unusual behavior by Provenzano. Such behavior includes covering his face with rags or towels, sleeping on the floor under his bunk, and his self-diagnosed phobia of strip searches. However, the testimony at the hearing established that it is not uncommon for inmates at Florida State Prison to sleep on the floor because it is hot in the prison and the concrete floor is cooler. Further, sleeping under his bunk puts Provenzano in a position where he is closer to a fan, and thus, by sleeping under his bunk, he is cooler and more comfortable. Moreover, despite his phobia of strip searches, Provenzano willingly succumbs to the strip searches when it suits his personal desires. For example, Provenzano willingly submits to strip searches so that he may have his teeth cleaned and so that he may meet with his attorneys. The only time he expresses concern over the strip searches and refuses to subject himself to them is when a mental health issue is involved.

Assuming for the sake of argument that some of Provenzano’s behavior is bizarre, bizarre behavior does not render one incompetent to be executed. As the court in Martin stated: "A defendant may be mentally ill and still be competent enough to be executed." Martin, 686 F. Supp. at 1572-73. The Court finds that Provenzano may have mental health problems, but that these problems do not prevent him from having the required mental capacity to understand the fact of the impending execution and the reason for it. Further, as Dr. Waldman testified, one would have to virtually be unable to clean himself, feed himself, or otherwise function in order to meet the low threshhold of incompetency to be executed. Aside from the above behavior, the main evidence of Provenzano’s incompetency is Dr. Fleming’s report, coupled with the opinion expressed in the continuance affidavit. The Court does not find her analysis as convincing as that of the State experts and, for reasons given earlier, does not find her testimony entitled to great weight.

Provenzano’s counsel vigorously attacked and attempted to whittle away at the evidence presented by the State which, even after vigorous cross-examination, established that Provenzano is competent to be executed. Even if one were to assume that the State had the burden of establishing Provenzano’s competency to be executed, Provenzano’s counsel’s attack on the State’s witnesses was not particularly successful given the facts and opinions presented in this matter.

During closing argument, counsel for Provenzano argued that the testimony of the three psychiatrists appointed by the Governor to examine Provenzano pursuant to section 922.07, Florida Statutes, was inadmissible in this proceeding because the standard of competency set forth in section 922.07 is different from the standard of competency set forth in Florida Rule of Criminal Procedure 3.812 which this Court must employ. Provenzano’s counsel is correct in that there is a difference in the wording of the two standards. Under section 922.07, Florida Statutes, an individual is competent to be executed if "he or she understands the nature and effect of the death penalty and why it is to be imposed upon him or her." Under Florida Rule of Criminal Procedure 3.812, a person is competent to be executed if he or she does not lack "the mental capacity to understand the fact of the impending execution and the reason for it." The Court finds this variation in wording of the two standards is a distinction without a difference, and rejects Provenzano’s claim that the testimony of these experts is inadmissible.

This Court, as the finder of fact, has considered the demeanor of the witnesses, has carefully considered the testimony and evidence presented at the hearing, and has weighed the credibility of the evidence and witnesses. Additionally, the Court has had the opportunity to personally observe Provenzano over the course of two and one-half days. Throughout the hearing on this matter, Provenzano has at all times acted appropriately. He has, at times, appeared sad, and he appeared to become more melancholy when the State’s experts testified or when the attorney for the State was providing argument against him.

Dr. Waldman, a well-credentialed expert with a sub-specialty in malingering, finds that Provenzano is malingering mental illness.

The Court finds Provenzano has failed to prove incompetence for execution by clear and convincing evidence.

Based upon the foregoing, it is hereby ORDERED and ADJUDGED that:

1) Petitioner, Thomas Harrison Provenzano, has the mental capacity to understand the nature of the impending execution and the reason for it.

2) Petitioner, Thomas Harrison Provenzano, is competent to be executed.

DONE and ORDERED on this day of September, 1999.

E. RANDOLPH BENTLEY

Senior Judge

FSC Order 2000R-285

I HEREBY CERTIFY that on this day of September, 1999, the original of this document was furnished by Federal Express and that a facsimile of this document was transmitted to the Honorable Ray Norman, Clerk of Court, Bradford County, 945 N. Temple, Starke, Florida 32091, fax # (904) 964-4454; and that a true and correct copy of the foregoing was furnished by U.S. mail and facsimile transmission to:

1) Carol M. Dittmar, Assistant Attorney General, Westwood Center, Suite 700, 2002 North Lois Avenue, Tampa, Florida 33607-2366, fax (813) 871-7834;

2) Michael P. Reiter, Chief Assistant CCRC, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, fax (813) 740-3554;

3) Tanya Carroll, Deputy Clerk Capital Cases, Supreme Court of Florida, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399-1925, fax (850) 488-2100.

Judicial Assistant