Provenzano v. Moore (744 So. 2d 413, 1999)

PER CURIAM.

Thomas H. Provenzano, at a time when he was under warrant of death, filed a petition for writ of habeas corpus, a petition to invoke this Court’s “all writs” jurisdiction, and a petition for extraordinary relief. In order to give this matter full consideration, this Court entered a stay of execution on July 8, 1999. This Court directed the circuit court to hold an evi-dentiary hearing regarding the functioning of the electric chair. Following that four-day hearing, the circuit court rendered findings of fact with respect to the functioning of the electric chair and concluded that the electric chair does not constitute cruel or unusual punishment. These findings of fact are the subject of this appeal. We have jurisdiction pursuant to article V, sections 3(b)(1) and (9) of the Florida Constitution. For the reasons explained below, we affirm the circuit court’s order.

During the evidentiary hearing on this matter, both parties presented several witnesses, including testimony from experts. Most of the testimony focused on alleged errors committed by the Department of Corrections (DOC) during recent executions, particularly the execution of Allen Lee Davis on July 8, 1999. At the conclusion of the hearing, the circuit court entered an order denying relief, wherein it made the following findings of fact:

(1) During the execution of Allen Lee Davis, the electric chair functioned as it was intended to function. Although the breakers and other components of the electrical circuitry are old, the electric circuitry is adequate to assure the proper functioning of the electric chair.

(2) The cycles of voltage and amperage applied in the execution of Allen Lee Davis did not deviate from the execution protocol which was previously approved by the Florida Supreme Court. The execution protocol merely states: “The automatic cycle begins with the programmed 2,300 volts, 9.5 amps, for 8 seconds .... ” (emphasis added). The protocol does not state the voltage and amperage levels set forth therein are the precise voltage and amperage levels that must be administered to the inmate who is being executed.

The execution protocol does not take into account the varying levels of resistance created by each and every inmate. The resistance created by each executed inmate’s body, or ohms, can be determined by dividing the number of volts administered by the number of amps administered. Since the level of resistance varies from inmate to inmate, these figures must necessarily vary. The variations in these figures do not violate the execution protocol.

(3) The death of Allen Lee Davis did not result from asphyxiation caused by the mouth strap.

(4) Allen Lee Davis did not suffer any conscious pain while being electrocuted in Florida’s electric chair. Rather, he suffered instantaneous and painless death once the current was applied to him.

(5) The nose bleed incurred by Allen Lee Davis began before the electrical current was applied to him, and was not caused whatsoever by the application of electrical current to Davis. This Court is unable to make a finding regarding the exact cause or situs of the initial onset of the nose bleed because that information was not determined during either of the autopsies performed on Davis’ body.

(6) The post-execution photographs of Allen Lee Davis indicate that the straps used to restrain Davis’ body, specifically, the mouth strap and chin strap, may have caused Davis to suffer some discomfort. However, the straps did not cause him to suffer unnecessary and wanton pain, and the mouth strap was not a part of the electrical operation of the electric chair.

(7) The use of a mouth strap to secure an inmate’s head to the electric chair may be desirable, however a smaller and/or redesigned mouth strap could accomplish the same purpose without raising the same issue involved here.

(8) Execution inherently involves fear, and it may involve some degree of pain. That pain may include pain associated with affixing straps around the head and body to secure the head and body [to] the electric chair. However, any pain associated therewith is necessary to ensure that the integrity of the execution process is maintained.

The circuit court also made the following conclusion of law:

Execution by electrocution in Florida’s electric chair as it exists in its present condition as applied does not constitute cruel or unusual punishment, and therefore, is not unconstitutional.

Provenzano raises four arguments regarding the circuit court’s order. First, Provenzano asserts that the circuit court erred in concluding that the electric chair did not constitute cruel or unusual punishment. Provenzano alleges three different bases for this conclusion: (1) the electric chair causes pain, both in preparing for and during the electrocution, (2) the electrical circuitry has not been maintained, and (3) DOC has failed to follow protocol.

This Court recently concluded in Jones v. State, 701 So.2d 76, 79 (Fla.1997), that “[i]n 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.’ ” (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947)). The record in this case reveals abundant evidence that execution by electrocution renders an inmate instantaneously unconscious, thereby making it impossible to feel pain. The record also contains evidence that the electric chair is and has been functioning properly and that the electrical circuitry is being maintained.

In Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Jones v. State, 591 So.2d 911, 916 (Fla.1991)), this Court stated, “As long as the trial court’s findings are supported by competent substantial evidence, ‘this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ” We find that the circuit court’s findings of fact are supported by competent, substantial evidence. Therefore, we again conclude, as we did in Jones, that Florida’s electric chair is not cruel or unusual punishment.

We are aware that the record contains numerous references from witnesses, including State witnesses, that the execution protocol is not well written. There is also a recommendation from the circuit court for DOC to employ “a smaller and/or redesigned mouth strap.” We conclude that there is competent, substantial evidence to support the circuit court’s finding of fact that the execution protocol was not violated in the Davis execution. However, it may be appropriate for DOC to revisit the protocol, including the use of the mouth strap, to ensure that it is consistent with the functioning of the electric chair.

In issue two, Provenzano claims that Florida’s current use of electrocution as its sole method of execution is unconstitutional because it violates the evolving standards of decency that mark the progress of a maturing society. This claim was rejected by this Court in Jones. See 701 So.2d at 79.

In issue three, Provenzano claims that the circuit court made numerous erroneous evidentiary rulings during the evidentiary hearing, thereby denying him a full and fair hearing. In Heath v. State, 648 So.2d 660, 664 (Fla.1994), this Court stated that “[t]he trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Provenza-no has not demonstrated that the circuit court abused its discretion on these evi-dentiary rulings.

In issue four, Provenzano claims that the circuit court erred when it struck additional petitioners from Provenzano’s petition for relief in this case. We find no merit to this issue. The order in this case directing the circuit court to hold an evi-dentiary hearing was specific as to the parties in this case. Further, a similar motion to intervene was denied by this Court in Jones v. State, No. 90,231 (order filed July 3,1997).

Accordingly, for the reasons expressed in this opinion, we affirm the circuit court’s order finding that the electric chair is not unconstitutional. No motion for rehearing will be permitted.

It is so ordered.

HARDING, C.J., and WELLS, LEWIS, and QUINCE, JJ., concur.

HARDING, C.J., concurs specially with an opinion, in which LEWIS, J., concurs.

WELLS, J., concurs with an opinion, in which QUINCE, J., concurs.

QUINCE, J., concurs specially with an opinion, in which WELLS, J., concurs.

SHAW, J., dissents with an opinion, in which ANSTEAD, J., concurs.

ANSTEAD, J., dissents with an opinion, in which SHAW, J., concurs.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, J., concurs.

. Provenzano claims that the circuit court erred in ruling that the testimony of two potential witnesses (Thomas Crapps and Richard Marlell) was precluded. Provenzano also claims that the circuit court erred in sustaining the State’s objections to questions concerning certain testimony from witnesses Rabbani Muhammed and A.D. Thornton.

HARDING, C.J.,

specially concurring.

I write separately for two reasons. First, I write to explain the reasons that I concur with the majority opinion regarding the constitutionality of the electric chair. Second, I again urge the Legislature to offer lethal injection as an alternative method of execution.

I. Constitutionality of the Electric Chair

I agree with the majority in upholding the circuit court’s findings regarding electrocution as a constitutional method of execution. While I am disturbed by the graphic photographs of Allen Lee Davis’ body following his July 8, 1999, execution, I do not find this alone enough to deem electrocution “cruel or unusual” punishment. “Since it is the method of execution that is challenged, it follows that a court must focus on the procedure as a whole and over time, rather than on any one particular execution.” Fierro v. Gomez, 865 F.Supp. 1387, 1411 n. 25 (N.D.Cal.1994) (permanently enjoining California from executing inmates by lethal gas), affd, 77 F.3d 301 (9th Cir.) (affirming injunction based on district court’s factual findings regarding pain), vacated, 519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996) (vacating judgment and remanding for further consideration in light of California’s subsequently amended death penalty statute providing that lethal injections should be used to carry out death sentences unless the defendant requests that the State use the gas chamber). As explained by the district court in Fierro, the key question to be answered in a challenge to the method of execution is how much pain the inmate suffers. Id. at 1411. Where “unconsciousness is ‘likely to be immediate or within a matter of seconds’ ” the method is within constitutional limits. Id. (quoting Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.1994) (finding that Washington’s execution by judicial hanging did not violate prohibition against cruel and unusual punishment)). The record in the instant case contains competent, substantial evidence to support the conclusion that Davis was rendered unconscious instantaneously when the current was applied. This Court may not arbitrarily overturn the circuit court’s finding based upon conflicting evidence in the record. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976) (“It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman [v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972),] is whether the judgment of the trial court is supported by competent evidence.”).

II. Lethal injection: The Need for Legislative Action

However, as I suggested in my concurring opinion in Jones v. State, 701 So.2d 76, 80 (Fla.1997) (Harding, J., specially concurring), I urge the Legislature to revisit this issue and pass legislation giving death row inmates the choice between lethal injection and electrocution as the method of carrying out the death penalty. See Art. I, § 17, Fla. Const. (“Methods of execution may be designated by the Legislature.”); see generally, e.g., Ariz.Rev.Stat. Ann. § 13-704(b) (West Supp.1998) (defendant sentenced to death for offense committed prior to date of amended statute shall choose either lethal injection or lethal gas; execution by lethal injection if the defendant fails to choose method); Cal.Penal Code § 3604(b) (West Supp.1999) (same); S.C.Code Ann. § 24-3-530(A) (Law Co-op. Supp.1998) (election between electrocution and lethal injection; if defendant waives right of election, then penalty must be administered by lethal injection); Utah Code Ann. § 77-18-5.5 (1995) (election between firing squad and lethal injection; where no preference is stated, execution is by lethal injection); Va.Code Ann. § 53.1-234 (Michie 1998) (election between electrocution and lethal injection; lethal injection where prisoner fails to choose in timely manner); Wash. Rev.Code § 10.95.180(1) (1998) (death shall be inflicted by lethal injection unless defendant-elects hanging).

Florida death row inmates almost routinely challenge electrocution as a cruel or unusual method of punishment. See, e.g., Davis v. State, 742 So.2d 233 (Fla.1999), cert. denied, 68 U.S.L.W. 3136, — U.S. -, 120 S.Ct. 13, 144 L.Ed.2d 817 (1999), and cert. denied, 68 U.S.L.W. 3136, — U.S. -, 120 S.Ct. 13, 144 L.Ed.2d 817 (1999); Remeta v. State, 710 So.2d 543, 546 (Fla.), cert. denied, 523 U.S. 1055, 118 S.Ct. 1383, 140 L.Ed.2d 526 (1998); Jones v. State, 701 So.2d 76, 80 (Fla.1997), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 335 (1998); Stano v. Singletary, 692 So.2d 180, 181 (Fla.1997). Such challenges consume an inordinate amount of the time and resources expended by inmates’ counsel, State counsel, and judicial personnel. Furthermore, each time an execution is carried out, the courts wait in dread anticipation of some “unforeseeable accident” that will set in motion a frenzy of inmate petitions and other filings. See Jones, 701 So.2d at 76 n. 1, 77 (discussing Pedro Medina’s 1997 execution, where flames were seen near the headpiece of the electric chair and smoke emanated from under the headpiece; circuit court found that flame and smoke were caused by insufficient saline solution on the sponge in the headpiece of the electric chair); Buenoano v. State, 565 So.2d 309, 310-11 (Fla.1990) (discussing flames and smoke that erupted from the headpiece of the electric chair during the 1990 execution of Jessie Tafero; investigation concluded that the irregularities in Tafero’s execution were caused by the use of a synthetic sponge).

It is my view that the Legislature can foreclose many of these claims by simply amending Florida’s death penalty statute to provide that death sentences should be carried out by lethal injection unless the defendant requests execution by electrocution. See Fierro v. Terhune, 147 F.3d 1158, 1160 (9th Cir.1998) (finding that California inmates lacked standing to challenge constitutionality of execution by lethal gas and claims were not ripe for decision where the inmates had not chosen execution by lethal gas); Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997) (finding that similar challenge to identical Arizona statute was not ripe because inmate had not chosen lethal gas as method of execution). While an inmate’s choice of electrocution would not constitute a waiver of his or her Eighth Amendment protections and would not foreclose a constitutional challenge to this method of execution, see LaGrand v. Stewart, 173 F.3d 1144 (9th Cir.1999), the alternative method of lethal injection would still be available even if a constitutional challenge- of electrocution proved successful. See id. at 1149 (ordering that no inmates be executed by lethal gas and that inmate bringing challenge could not be executed pursuant to the existing death warrant which required execution by lethal gas, but also recognizing that warrant could be “reissued in a form that does not require execution by lethal gas”).

Although not determinative of the Eighth Amendment claim, I find it significant that a number of other states that once relied on electrocution as the sole means of execution have now either entirely abandoned this method or offered an alternative. Nineteen of the states that currently permit capital punishment specified in 1970 that electrocution was the exclusive form of capital punishment. See Fierro, 865 F.Supp. at 1406. Today, of the thirty-eight states that permit capital punishment for the crime of first-degree murder, only four states rely on electrocution as the exclusive form of punishment. See Fla. Correct. Comm’n, 1997 Supplemental Report on Execution Methods Used by States at 48 (June 20, 1997) (ón file with Library, Fla. Sup.Ct.) [hereinafter Commission Report]; Ky.Rev.Stat. Ann. § 481.220 (Michie Supp.1998) (establishing lethal injection as the sole means of capital punishment for defendants receiving death sentence on or after March 31, 1998, and giving the choice of electrocution or lethal injection to those prisoners sentenced pri- or to March 31, 1998); Tenn.Code Ann. § 40-23-114 (Supp.1998) (establishing lethal injection as the sole means of capital punishment for defendants receiving death sentence on or after January 1, 1999, and giving the choice of electrocution or lethal injection to those prisoners sentenced pri- or to January 1, 1999). -In contrast, thirty-four states offer lethal injection either as a choice or as the exclusive form of punishment. See Commission Report at 48; Ky. Rev.Stat. Ann. § 431.220; Tenn.Code Ann. § 40-23-114. Clearly, the modern trend is towards rejecting electrocution as a method of capital punishment. In fact, in the 1997 report submitted to the Governor and the Legislature by the Florida Corrections Commission, the Commission recommended that Florida permit lethal injection as an alternative method of execution. See Commission Report at 28.

Finally, it is important to note that several courts, including the United States Supreme Court, have held that it is not an ex post facto violation to apply a change in execution methods retroactively. See Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Hernandez v. State, 43 Ariz. 424, 32 P.2d 18, 25 (1934) (upholding amendment to statute which changed method of capital punishment from hanging to lethal gas); DeShields v. State, 534 A.2d 630, 639 n. 7 (Del.1987) (“A statute which provides an optional method of death is not ex post facto legislation or an unlawful bill of attainder.”); State ex rel. Pierre v. Jones, 200 La. 808, 9 So.2d 42, 46 (1942) (upholding amendment to statute which changed method of capital punishment from hanging to electrocution); State v. Fitzpatrick, 211 Mont. 341, 684 P.2d 1112, 1113 (1984) (upholding amendment to statute which allowed defendant to elect either lethal injection or hanging as the method of punishment); Woo Dak San v. State, 36 N.M. 53, 7 P.2d 940, 941 (1931) (upholding amendment to statute which changed method of capital punishment from hanging to electrocution); Ex parte Granviel, 561 S.W.2d 503, 510-11 (Tex.Crim.App.1978) (upholding amendment to statute which changed method of capital punishment from electrocution to lethal injection); In re Personal Restraint of Bern, 134 Wash.2d 868, 952 P.2d 116, 149 n. 19 (1998) (“Retroactive application of a change in the method of execution does not violate the Ex Post Facto Clause where the change is to a more humane method.”). In Malloy, the Supreme Court concluded that “[t]he statute under consideration did not change the penalty-death-for murder, but only the mode of producing this.... The punishment was not increased....” 237 U.S. at 185, 35 S.Ct. 507. In Weaver v. Graham, 450 U.S. 24, 33 n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the United States Supreme Court further explained its decision in Malloy, wherein the Court stated, “In Malloy v. South Carolina, we concluded that a change in the method of execution was not ex post facto because evidence showed the new method to be more humane, not because the change in the execution method was not retrospective.” (Citation omitted.) My research has not revealed a single state that has found the retroactive application of a more humane method of execution to be unconstitutional. This is true even though the sentence imposed specifically called for the previous method of execution.

For all of the reasons expressed, I believe that the Legislature will only improve death penalty jurisprudence in Florida by amending our state’s statute to permit inmates to choose between lethal injection and electrocution. This is the prudent and proper step for the Legislature to take.

LEWIS, J., concurs.

WELLS, J.,

concurring.

I concur in the majority opinion and the separate concurring opinion of Justice Quince. I write briefly to make two points.

First, the Davis nosebleed has not provided any basis for this Court to reexamine this issue. This Court, on July 8,1999, sent this case to a trial judge because of allegations that the electric chair did not function as intended in the Davis execution. The trial judge made the factual determination that those allegations were unfounded. Therefore, there is no basis to disturb the decision that this Court so recently made in Jones.

Second, in respect to Chief Justice Harding’s recommendation as to lethal injection, obviously the legislature can relieve further complications involved with the electric chair issues by changing the method of execution to lethal injection for those crimes committed after the effective date of the legislation. I join in the recommendation to that extent.

However, I have to acknowledge that there are legal issues with the changing of sentencing laws for the punishment of crimes committed prior to a change in the law. This Court has been repeatedly taught that lesson by the United States Supreme Court. In Gomez v. Singletary, 738 So.2d 499 (Fla.1998), the majority made this point, pointing to Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), Calamia v. Singletary, 520 U.S. 1141, 117 S.Ct. 1309, 137 L.Ed.2d 473 (1997), and Lancaster v. State, 522 U.S. 801, 118 S.Ct. 37, 139 L.Ed.2d 5 (1997). A great number of prisoners presently on death row have been sentenced to death by judgments which specify use of the electric chair because their sentences conformed with the existing law. All have been sentenced on the basis of section 922.10, Florida Statutes, which states: “A death sentence shall be executed by electrocution.”

Not only does this United States Supreme Court precedent present legal issues on a change of this Florida statute, the Florida Constitution presents a legal issue in article X, section 9, which states expressly: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” (Emphasis added.) Justice Shaw’s dissent acknowledges this legal issue in its footnote 53, recognizing this Court’s precedent in Washington v. Dowling; 92 Fla. 601, 109 So. 588 (1926), from which he states he would recede.

A change to lethal injection for inmates may be legally attainable based upon an express waiver by the prisoner of any contest as to the method of execution. However, such a change requires full study and awareness by the legislature of the legal issues. Consequently, I do not join those that recommend it without acknowledging the consequent legal issues and that those legal issues will present matters for further litigation. I conclude that because of these outstanding legal issues the decisions as to this change are within the province of the legislature and are matters about which this Court cannot properly render an advisory opinion regardless of our personal views as to that decision.

QUINCE, J., concurs.

QUINCE, J.,

specially concurring.

I agree with the majority’s determination that death by electrocution is not cruel and unusual punishment within the meaning of the Eighth Amendment. While there has been much said about the Davis execution because of the blood which dripped from the inmate’s nostril during this process, the real question presented here is whether or not the use of electrocution violates the “evolving standards of decency” espoused by the United States Supreme Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). The answer to this question is not easy and involves the analysis of several factors including the use of the particular method by other states. Although electrocution as the judicial method of execution has been abandoned in a number of states in favor of, for the must part, lethal injection, that factor does not dispose of the issue.

In Jones v. State, 701 So.2d 76 (Fla.1997), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 335 (1998), this Court reiterated its prior determination that ' death by electrocution is not per se cruel and unusual punishment under the Eighth Amendment. See also Medina v. State, 690 So.2d 1241 (Fla.), cert. denied, 520 U.S. 1151, 117 S.Ct. 1330, 137 L.Ed.2d 490 (1997). And, citing to Hunt v. Nuth, 57 F.3d 1327 (4th Cir.1995), and Campbell v. Wood, 18 F.3d 662 (9th Cir.1994), we indicated that the question of whether electrocution was unusual because it was used in only six states was subsumed in the larger question of per se unconstitutionality. In Hunt, the court addressed the constitutionality of judicial execution by lethal gas and, in Campbell, the court addressed judicial execution by hanging.

■ ■ In both cases the courts were asked to ■declare the methods of execution cruel and unusual because they were only used by a few states, and many states had abandoned the methods in favor of lethal injection. In making the determination that neither lethal gas nor hanging was viola-tive of the Eighth Amendment, the Ninth and Fourth Circuits looked to other objective factors when possible. In Campbell, the court stated:

Methodology review focuses more heavily on objective evidence of the pain involved in the challenged method. See, e.g., Glass v. Louisiana, 471 U.S. at 1084, 105 S.Ct. at 2162 (Brennan, J., dissentingXnoting that “[fjirst and foremost” among the “objective factors by which courts should evaluate the constitutionality of a challenged method of punishment” is whether the method involves “ ‘the unnecessary and wanton infliction of pain.’ ” (Citation omitted.)) The number of states using hanging is evidence of public perception, but sheds no light on the actual pain that may or may not attend the practice. We cannot conclude that judicial hanging is incompatible with evolving standards of decency simply because few states continue the practice.

Campbell, 18 F.3d at 682 (footnote omitted). In Hunt, the court made a similar observation in reference to the use of lethal gas when it opined:

Despite the court’s thorough opinion, [] we decline Hunt’s invitation to become the first court to follow the reasoning in Fierro. Lethal gas currently may not be the most humane method of execution-assuming that there could be a humane method of execution-but the existence and adoption of more humane methods does not automatically render a contested method cruel and unusual. Before Fierro, a number of courts had held that execution by lethal gas did not violate the Eighth Amendment. Furthermore, we agree with the district court in Hunt’s case that “graphic descriptions of the death throes of inmates executed by gas are full of prose calculated to invoke sympathy, but insufficient to demonstrate that execution by the administration of gas involves the wanton and unnecessary infliction of pain.” Hunt III, 856 F.Supp. at 260; see also Campbell, 18 F.3d at 683.

Hunt, 57 F.3d at 1337-38 (citations omitted). Thus, both courts reject the notion that a method of execution is cruel and unusual because it is not a popular method.

Another objective criteria that the ninth circuit focused on was the role of the legislature in determining the appropriate punishment for crimes. The court in Campbell, quoting from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), stated that a punishment selected by a duly elected legislature is presumed constitutional. This presumption holds true even if the legislature does not select the least severe penalty, so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. The Court in Gregg said:

[T]he requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.

“Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not.” Furman v. Georgia, 408 U.S., at 313-314, 92 S.Ct. 2726 (White, J., concurring).

See also Id., at 433, 92 S.Ct. 2726 (Powell, J., dissenting).

Gregg, 428 U.S. at 174, 96 S.Ct. 2909. In evaluating the constitutionality of legislative action, the judiciary should not be swayed by its own individual notion of whether or not the particular judge would have chosen another course. Courts should instead give effect to the legislative enactment as a reflection of the will and the moral values of the people. However, while the laws and statutes enacted by the people’s duly elected representatives are some evidence of contemporary values, again this is not determinative.

When drafting the Eighth Amendment, the framers of our constitution were primarily concerned with proscribing torturous or barbarous punishments. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). As a consequence, the primary objective factor, in addition to legislative action, that bears on the issue of the constitutionality of a particular method of execution is whether or not that method involves the “unnecessary and wanton infliction of pain.” On that issue, in regards to the execution of Allen Lee Davis, the trial court found:

Allen Lee Davis did not suffer any conscious pain while being electrocuted in Florida’s electric chair. Rather, he suffered instantaneous and painless death once the current was applied to him.

The nose bleed incurred by Allen Lee Davis began before the electrical current was applied to him, and was not caused whatsoever by the application of electrical current to Davis. This Court is unable to make a finding regarding the exact cause or situs of initial onset of the nose bleed because that information was not determined during either of the autopsies performed on Davis’ body.

The post-execution photographs of Allen Lee Davis indicate that the straps used to restrain Davis’ body, specifically, the mouth strap and chin strap, may have caused Davis to suffer some discomfort. However, the straps did not cause him to suffer unnecessary and wanton pain, and the mouth strap was not a part of the electrical operation of the electric chair.

The trial court’s findings are based on substantial competent evidence that was adduced at the evidentiary hearing and must be upheld. See Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 467 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 662 (1982). These findings support the trial court’s ultimate conclusion that electrocution as a form of execution does not constitute cruel and unusual punishment.

In my estimation, little has changed since our analysis of this situation in Jones v. State. The pictures of the blood generated by Davis’s nosebleed are not pleasant. However, we must keep in mind that the nosebleed does not per se relate to the proper functioning of the electric chair. The two issues are not, under the circumstances of this case, intertwined.

I join in the trial court’s suggestion to the Department of Corrections that the mouth strap should be replaced or other sizes used depending on the size of the inmate. Such a change, assuming the bleeding and the facial discoloration resulted from the placement of the mouth strap, should eliminate some of the “ghastliness” associated with the photographs of the Davis body, and eliminate some of the human error that seems to plague this form of execution.

For the reasons stated above, I would affirm the trial court’s determination that Florida’s use of electrocution as the sole method of execution is not cruel and unusual punishment.

WELLS, J., concurs.

. This supposed more "humane” method of execution has come under Eighth Amendment attack and I suspect will generate even more litigation over the next few years. See Hunt v. Smith, 856 F.Supp. 251 (D.Md.1994), aff'd sub nom. Hunt v. Nuth, 57 F.3d 1327 (4th Cir.1995).

. Only one state, Utah, uses the firing squad as its method of judicial execution.

. The use of electrocution as the sole method of judicial execution is now used in only four states: Alabama, Georgia, Florida and Nebraska.

. Lethal gas as a judicial method of execution is provided for in several states, including: Missouri and North Carolina. Both Maryland and California have now changed to lethal injection as the method of execution.

. Hanging as a method of execution takes place in only Washington and Montana, and in both states, lethal injection can be chosen by the defendant.

. In Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir.1995), the circuit court did not address, based on mootness grounds, the defendant's argument that execution by lethal injection violated the Eighth Amendment prohibition against cruel and unusual punishment" because lethal injection violated federal drug laws and could inflict cruel and inhumane treatment as a result of botched executions.

. The district court in Fierro v. Gomez, 865 F.Supp. 1387 (N.D.Cal.1994), vacated sub nom. Fierro v. Terhune, 147 F.3d 1158 (9th Cir.1998), declared unconstitutional the California statute that required or permitted execution by lethal gas.

SHAW, J.,

dissenting.

The overarching question presented in this case is whether continued use of electrocution as the official method of execution in Florida comports with the state and federal constitutions. This question has not been directly confronted by this Court in any case — despite a widespread belief that the issue has been duly decided. At most, this Court on one occasion has conducted a “snapshot” review of the execution apparatus, i.e., the electric chair, and concluded that use of the chair at that point in time did not violate the constitution because any problems had been fixed and inmates suffered no conscious pain. The Court did not address violence or mutilation or the per se constitutionality of electrocution as a mode of execution in Florida. That issue was procedurally barred:

The claim that execution by electrocution is unconstitutional per se is hereby denied as procedurally barred as it could have been raised in previous petitions for relief.

Jones v. Butterworth, 691 So.2d 481, 482 (Fla.1997) (emphasis added).

In light of continuing malfunctions and mishaps with this method of execution in Florida, I am convinced that the time has now come to confront this issue head-on, and it is my conclusion that electrocution as it has been administered in Florida is unconstitutional. I would direct that the sentence in the present case be carried out by lethal injection as prescribed by statute.

I. FACTS

Following the recent bloody execution of Allen Lee Davis on July 8, 1999, this Court remanded the present case to the trial court to conduct an evidentiary hearing on a single narrow issue — the present functioning of Florida’s electric chair. At the conclusion of the hearing, the trial court inter alia made two findings despite considerable evidence to the contrary: (1) Florida’s electric chair functioned as intended during the Davis execution; and (2) Davis suffered no conscious pain. The court ruled as follows:

Execution by electrocution in Florida’s electric chair as it exists in its present condition as applied does not constitute cruel or unusual punishment, and therefore, is not unconstitutional.

(Emphasis added.) The court focused only on the question before it and did not address the issues of violence or mutilation or the overall record of electrocution as a method of execution in Florida.

The present majority opinion affirms the conclusion of the trial court, focusing on the present functioning of the chair and the lack of pain:

This Court recently concluded in Jones v. State, 701 So.2d 76, 79 (Fla.1997), that “[i]n order for a punishment to constitute cruel or unusual punishment, it must involve ‘torture or lingering death’ or the infliction of ‘unnecessary and wanton pain.’ ” (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947)). The record in this case reveals abundant evidence that execution by electrocution renders an inmate instantaneously unconscious, thereby making it impossible to feel pain. The record also contains evidence that the electric chair is and has been functioning properly and that the electrical circuitry is being maintained.

Majority op. at 415. The majority opinion then proceeds to extrapolate from the narrow “snapshot” ruling of the trial court and concludes broadly that use of Florida’s electric chair in general is not cruel or unusual punishment, citing Jones v. State, 701 So.2d 76 (Fla.1997):

In Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997), this Court stated, “As long as the trial court’s findings are supported by competent substantial evidence, ‘this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ” We find that the circuit court’s findings of fact are supported by competent substantial evidence. Therefore, tue again conclude, as we did in Jones, that Florida’s electric chair is not cruel or unusual punishment.

Majority op. at 415 (emphasis added). The majority opinion summarily rejects Provenzano’s “evolving standards of decency” claim, again citing Jones:

In issue two, Provenzano claims that Florida’s current use of electrocution as its sole method of execution is unconstitutional because it violates the evolving standards of decency that mark the progress of a maturing society. This claim was rejected by this court in Jones. See 701 So.2d at 79.

Majority op. at 415 (emphasis added).

This reliance on Jones is misplaced. Contrary to what the majority opinion assumes, the trial courts both in Jones and the present case never reached the broad issue of the per se constitutionality of electrocution as a method of execution in Florida — that issue was beyond the scope of the evidentiary hearings in both cases. Nor did this Court in Jones address this issue — for the issue was found to be procedurally barred.

II. FLORIDA’S CRUEL AND UNUSUAL PUNISHMENT CLAUSE

Article I, section 17, Florida Constitution, proscribes punishments that are “cruel and unusual”:

SECTION 17. Excessive punishments. — Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.

Art. I, § 17, Fla. Const, (emphasis added). The question posed in the present case is whether this prohibition bars the use of electrocution as the official method of execution in Florida.

The present majority opinion relies on Jones v. State, 701 So.2d 76 (Fla.1997), to resolve this issue. Following the fiery execution of Pedro Medina in 1997, this Court remanded Jones’ case to the trial court to conduct an evidentiary hearing on the limited issue of whether use of Florida’s electric chair in its then-current condition constituted “cruel or unusual” punishment. Jones v. Butterworth, 691 So.2d 481 (Fla.1997). The trial court found that the malfunction (an improperly moistened sponge in the head-piece) had been fixed, that the chair was now working properly, and that Medina had suffered no conscious pain. This Court affirmed.

This Court refused to consider Jones’ contention that electrocution in general is unconstitutional under evolving standards of decency. The Court explained:

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.”).

Jones, 701 So.2d at 79 (emphasis added)(footnote omitted). The Court ultimately held as follows: “We hold that electrocution in Florida’s electric chair in its present condition is not cruel or unusual punishment.” Id. at 80 (emphasis added).

It is clear from the above that this Court — -and the trial court — did not address the issue of whether Medina suffered undue violence or mutilation or whether electrocution is constitutional as the traditional method of execution in Florida. Rather, the Court conducted a “snapshot” review of the current functioning of Florida’s electric chair — i.e., the Court limited its review to whether the electric chair was working properly at that point in time and whether Medina had suffered unnecessary pain. The Court disposed of Jones’ per se constitutionality claim by referring to its earlier ruling in the case. (“Our previous ruling that execution by the use of the electric chair is not per se unconstitutional subsumed the [evolving standards of decency] argument that Jones now makes.” Id.) A review of that earlier ruling, however, shows that the Court never addressed the per se constitutionality issue on the merits but rather disposed of it procedurally, Nowhere in our two decisions in Leo Jones’ case did the Court directly address this issue; it was never properly before the Court.

A review of this Court’s death penalty precedent reveals that in those cases in which this issue was raised, the Court disposed of the matter in summary fashion without analysis. The State points to no case from this Court where this method of execution was subjected to explicit constitutional scrutiny. Existing Florida precedent construing the Cruel and Unusual Punishment Clause in other situations offers little insight. Accordingly, this Court is obliged to turn to United States Supreme Court precedent for guidance.

III. FEDERAL CRUEL AND UNUSUAL PUNISHMENTS CLAUSE

The Eighth Amendment to the United States Constitution bars punishments that are “cruel and unusual”:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

U.S. Const, amend. VIII (emphasis added). This provision is of key importance in evaluating the lawfulness of a method of execution.

A. The Kemmler Standard — “Mere Extinguishment of Life”

The United States Supreme Court last confronted a “method of execution” case in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), the case that inaugurated electrocution as a method of execution in this country. That case is still the seminal case in this field and, contrary to popular belief, does not stand for the proposition that electrocution is per se lawful ad infinitum, if there is no pain. Rather, the Court in Kemmler simply acceded to the state court’s finding that — given the available options at that point in time in the nineteenth century — electrocution was permissible as a more humane form of execution than hanging. As explained below, the enduring legal principle articulated in that case — i.e., the Kemmler standard — -is far more broad and goes to the very heart of the Eighth Amendment.

The Court in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 619 (1890), was asked to invalidate New York’s newly enacted statutory scheme, which replaced hanging with electrocution as the official method of execution. The Court declined to invalidate the statute. First, the Court noted that death by hanging had been recognized by the governor of New York to be barbaric, and that the governor had called upon the state legislature to find a better method:

It appears that the first step which led to the enactment of the law was a statement contained in the annual message of the governor of the State of New York, transmitted to the legislature January 6, 1885, as follows: “The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner. I commend this suggestion to the consideration of the legislature.”

Id. at 444, 10 S.Ct. 930. Second, the Court pointed out that the state legislature had acted faithfully on the governor’s commendation:

The legislature accordingly appointed a commission to investigate and report “the most humane and practical’method known to modern science of carrying into effect the sentence of death in capital cases.” This commission reported in favor of execution by electricity, and accompanied their report by a bill which was enacted and became chapter 489 of the Laws of 1888.

Id. And finally, the Court noted that: (a) the state legislature had determined that electrocution was a more humane method of punishment; (b) the trial court had collected a “voluminous mass of evidence” on both sides of the issue and had reached the same conclusion, and (c) the state courts at every level had agreed with that conclusion.

In addressing the Cruel and Unusual Punishments Clause in this context, the United States Supreme Court set forth what has become known as the Kemmler standard. That standard, which bars anything more than “the mere extinguishment of life,” is now the abiding criterion for evaluating the constitutionality of a method of execution: Id. at 447, 10 S.Ct. 930 (emphasis added). In short, to comport with the constitution, a method of execution is limited to “the mere extinguishment of life” — to the extent that this is reasonably possible. Any adverse effect beyond that point (i.e., any undue pain, violence, mutilation, or disgrace) is gratuitous and thus “inhuman and barbarous.” The Court ultimately deferred to the state legislature’s and courts’ determination that electrocution was a more humane method of execution than hanging and declined to invalidate the New York statute. Id. at 449, 10 S.Ct. 930.

Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. [Cruelty] implies ... something inhuman and barbarous, — something more than the mere extinguishment of life.

Although the United States Supreme Court has not confronted a “method of execution” case since Kemmler, the Court has ruled on a number of other government practices under the Cruel and Unusual Punishments Clause, as explained below. The Kemmler standard is reaffirmed in many of these cases. In reviewing these cases, a broad schematic for construing the Clause in “method of execution” cases emerges, embracing the following points: (1) While pain is a relevant indicator of cruelty, it is not the only indicator; (2) violence, mutilation, and disgrace are also relevant indicators of cruelty; and (3) the legal dimensions of cruelty are measurable against evolving standards of decency.

1. Undue Pain

In the olden days, a common component of punishments meted out by the crown was the intentional infliction of pain, violence, mutilation, and disgrace, for the crown viewed wanton cruelty as both a deterrent and a mode of vengeance and retribution. Upon our nation’s birth, however, the Cruel and Unusual Punishments Clause was erected by the founding fathers as a resolute barrier to this repugnant practice, particularly where methods of execution were concerned. While some degree of suffering is unavoidable in any means of taking life, the Clause focuses on any excessive cruelty which inheres in the method of execution — not that inevitable suffering which exists in the mind of the condemned.

To meet the requirement that a punishment not be impermissibly cruel, a method of execution first of all must inflict no undue pain. As the United States Supreme Court stated: “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. at 463, 67 S.Ct. 374.

The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death it self.

Id. at 474, 67 S.Ct. 374 (Burton, J., dissenting).

California’s gas chamber has been found to be impermissibly cruel under this test, for while lethal gas as applied in California involves minimal violence and mutilation, it inflicts substantial pain (i.e., intense visceral pain from oxygen deprivation) and results in a slow, lingering death akin to artificial drowning (i.e., the inmate may remain conscious for several minutes) and thus is cruel in its effect. Execution by gas is to be distinguished from lethal injection, which is generally considered more humane.

2. Undue Violence, Mutilation, and Disgrace

Although pain is an important indicator of cruelty, it is not the only indicator — for a method of execution can involve minimal pain and yet still be extraordinarily cruel. To meet the requirement that a punishment not be impermissibly cruel, a method of execution also must entail no undue violence, mutilation, or disgrace:

The Eighth Amendment’s protection of “the dignity of man” extends beyond prohibiting the unnecessary infliction of pain when extinguishing life. Civilized standards, for example, require a minimization of physical violence during execution irrespective of the pain that such violence might inflict on the condemned. Similarly, basic notions of human dignity command that the State minimize “mutilation” and “distortion” of the condemned prisoner’s body.

Glass, 471 U.S. at 1085, 105 S.Ct. 2159 (Brennan, J., dissenting from denial of cer-tiorari).

As conceded by the State in the present proceeding, the guillotine as used in the French Revolution is a prime example of a method that would fail in this regard, for while beheading results in a quick, relatively painless death, it entails frank vio-lenee (i.e., gross laceration and blood-letting) and mutilation (i.e., decapitation) and disgrace (i.e., public spectacle) and thus is facially cruel. Post-execution disfigurement — e.g., dismemberment, disembowelment, decapitation, flaying, or dragging of the body — and displaying of the mutilated corpse similarly would be forbidden even though this practice involves no conscious pain. Forced public disrobing prior to execution also would be forbidden.

In the present case, the State in oral argument before this Court conceded that use of the guillotine as a method of execution would fail constitutional muster in all states under the Cruel and Unusual Punishments Clause. By this concession, the State — of necessity — agrees that there are other indicators of cruelty besides pain. I suggest that these additional indicators inhere in the method of execution. Thus far in Florida, we have suppressed any reasoned consideration of these additional factors by limiting the scope of the inquiry at the evidentiary hearings, wherein the courts have focused only on pain.

B. Evolving Standards of Decency

Subsequent to its decision in Kemmler, the United States Supreme Court concluded that the Constitution — in order to retain meaning and effect — must exist in our society as a dynamic force. The Court then articulated a new standard for evaluating certain government practices under the Cruel and Unusual Punishments Clause — the “evolving standards of decency” criterion:

The Court [has] recognized ... that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draiv its meaning from the evolving standards of decency that mark the progress of a maturing society.

Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (emphasis added). The Supreme Court has reviewed a number of government practices under this standard, including the imposition of the death penalty for various offenses. This review generally includes three considerations: (1) Whether the practice has been approved, rejected, or abandoned in other states; (2) whether the practice has been approved, rejected, or abandoned by the governments of other civilized nations; and (3) whether other less cruel modes of punishment are available.

C. Analysis Used by Lower Federal Courts

Unlike the United States Supreme Court, the lower federal courts have ruled on the constitutionality of several methods of execution in recent years. The analytical model that emerges from these rulings has two steps. The court first determines whether a method of execution is limited to “the mere extinguishment of life.” If the method is not so limited and entails adverse effects beyond that point, the court then must determine if these effects are “undue.” To assist in this second step, the court may apply the “evolving standards of decency” criterion. Two federal circuit court cases are instructive.

The Ninth Circuit in Campbell v. Wood, 18 F.3d 662 (9th Cir.1994), upheld the State of Washington’s alternative method of execution, hanging, against a challenge under the Cruel and Unusual Punishments Clause. After conducting an evidentiary hearing on the issue, the trial court noted two points: (1) Hanging in Washington is conducted pursuant to “Field Instruction WSP 410.500,” an exhaustively detailed execution protocol adopted from the military; and (2) after adoption of the protocol, the only hanging conducted in the state had been performed flawlessly several years earlier. Campbell, 18 F.3d at 683, 685. The trial court then concluded that “hanging according to the protocol does not involve lingering death, mutilation, or the unnecessary and wanton infliction of pain.” Id. at 687. The circuit court deferred to the trial court’s findings and declined to conduct an “evolving standards . of decency” analysis. Id. at 682. There was no point in looking at other states; execution by hanging as carried out in Washington dearly entailed no undue pain or mutilation.

Two years later, the Ninth Circuit in Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996), held California’s alternative method of execution, lethal gas, unconstitutional. The trial court had conducted an eight-day bench trial on the issue and concluded that lethal gas as applied in California resulted in extreme physical pain. The circuit court again deferred to the trial court’s findings and declined to conduct an “evolving standards of decency” analysis. Id. at 308. There was no point in looking at other states; execution by lethal gas as carried out in California dearly entailed undue pain.

Although the Ninth Circuit in both Campbell and Fiero declined to apply the “evolving standards of decency” criterion, this was due to the particular facts of those cases. In the eyes of the court, the proper result in each case was clear-cut and was dictated by circumstances in the home state. The court did not hold that the “evolving standards of decency” criterion could never be used in a “method of execution” case — for logic suggests that the criterion would be helpful in a case where the constitutionality vel non of the method is not clear-cut (which is the situation in the present case).

IV. THREE RECENT EXECUTIONS

The administration of electrocution in Florida demonstrates the cruelty inherent in this method of execution. Not only was every execution in Florida accompanied by the inevitable convulsing and burning that characterizes electrocution, but further, three executions in particular were marred by extraordinary violence and mutilation. In two of these executions, smoke and flames spurted from the headpiece and burned the heads and faces of the inmates. In the third execution, the inmate bled from the nostrils and was at least partially asphyxiated by the restraining devices; and he too was burned.

A. Tafero’s Execution

Florida’s electric chair malfunctioned during the execution of Jesse Tafero on May 4, 1990, resulting in a violent scene, with smoke and foot-long flames spurting from his head. This Court described the scene:

When Tafero’s execution began, smoke and flames instantaneously spurted from his head for a distance of as much as twelve inches. The flames and smoke emanated from the area around a metallic skull cap, inside of which was a saline-soaked synthetic sponge meant to increase the flow of electricity to the head. The cap is the source of electricity administered to condemned prisoners by the electric chair.

Because of the smoke and flames, officials of the Department of Corrections stopped the first surge of electricity. A second jolt again resulted in smoke and flames spurting from Tafero’s head. Finally, a third jolt of electricity was administered. A medical examiner found that Tafero was dead some six or seven minutes after the execution commenced.

Thereafter, the Governor ordered the Department of Corrections to conduct an investigation into the circumstances of Tafero’s execution. The Department reported that the equipment was in proper working order. However, it was determined that for the first time a synthetic, rather than a natural, sponge had been used in the headpiece. The Department concluded that the burning of the sponge caused the flames and smoke which were seen during Tafero’s execution .... The Department ... noted that most executions last longer than seven minutes.

Buenoano v. State, 565 So.2d 309, 310-11 (Fla.1990).

The mutilated condition of Tafero’s body was described in the sworn statement of a witness:

I have seen the bodies of three other inmates executed by officials of the Florida State Prison. I saw them at approximately the same length of time after they were executed as I saw Mr. Tafe-ro’s body. None of the other bodies I saw before had the severe burning and scorching and damage to the head as did Mr. Tafero’s. None had any marks on the face at all.

The entire top of Mr. Tafero’s head is covered with wounds. There is one dominant charred area and a myriad of smaller gouged, raw areas to the upper right side and lower right of the large burned area.

The dominant charred area is on the top l