Duane Eugene Owen v. State of Florida

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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