Mark Schwab

Case record: Mark Schwab

Background

Mark Dean Schwab (born December 16, 1968; white; male; hair brown; blue eyes; 6'01''; 156 lbs) was a prisoner in the state of Florida with Department of Corrections DC number 111129.

Schwab was convicted in Circuit Court, Brevard County, of first-degree murder, sexual battery of a child, and kidnapping, and he was sentenced to death. After his conviction for first-degree murder and the death sentence were affirmed, he filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions for a writ of habeas corpus.

Prior to the 1991 murder of Junny Rios-Martinez, Schwab had been released early from prison in March 1991 after serving three and one-half years of an eight-year sentence for committing sexual battery on a 13-year-old boy. In early March 1991, his early release was not due to completion of treatment; he had been tentatively accepted into a sex offender program, but the program ended due to budget cuts. His probation required him to participate in a sexual offender therapy program.

Schwab also had an earlier guilty plea in Brevard County Case #87-3147-CF. On 02/22/88, Schwab pled guilty to two counts of Sexual Battery and was sentenced to eight years in prison and 15 years on probation. The agreement included waiving five counts, including Lewd and Lascivious Assault upon a Child, False Imprisonment, and three counts of Sexual Battery. His community supervision was revoked, and he was re-sentenced to Life on 07/01/92.

The offence

Victim and offence overview

Schwab murdered 11-year-old Junny Rios-Martinez. Schwab kidnapped Junny, raped and tortured him, and killed him. Junny’s body was discovered on 04/21/91 in a rural part of Brevard County inside of a footlocker.

The case led to the passage of the “Junny Rios-Martinez, Jr., Act of 1992,” which prohibited sex offenders from early release from prison or getting credit for good behavior.

Events in March and April 1991

In the middle of March 1991, a picture of 11-year-old Junny Rios-Martinez appeared in a local newspaper. After seeing the photo, Schwab became friendly with Junny’s family.

Schwab pretended to be a reporter and contacted the Rios-Martinez home, claiming he wanted to write an article on Junny. Over subsequent weeks, he told the family he could get Junny a contract to represent a surfing company. Schwab carried a spiral notebook with handwriting on several pages that he said were questions prepared for the interview. Schwab did not work for any publication and was not an associate of “Malcom Denemark,” but Junny and his mother did not know those details.

Schwab agreed to conduct an interview and later arranged further involvement with Junny, including a discussion of a photo shoot and participation in Junny’s baseball game.

Abduction, rape, torture, and killing

On 04/18/91, Schwab used a phone call to have Junny meet him at the ball field. A bookkeeper at Junny’s school received a call from a man purporting to be Junny’s father and told her to deliver a message: “I'd like for him not to go home on the bus. I would like for him to meet me at the ball field.”

A schoolmate walked with Junny toward the baseball field. Junny jumped the fence into the baseball field. Friends later saw Junny get into a U-Haul truck with a tall man and later saw the truck, the man, and Junny gone.

That night, Schwab took Junny to a Motel 6, where he bound, raped, and killed the boy. A trial court set out findings describing Schwab physically overpowering the child, binding his hands with duct tape, covering his mouth and part of his face, cutting off the child’s clothes with a knife, punching the child twice in the stomach, placing a bed sheet or mattress cover over the head, anally raping the child, and continuing until he strangled or smothered him to death.

Schwab’s claims included that another man named “Donald” made him kidnap and rape Junny with threats of killing Schwab’s mother; however, the court rejected Schwab’s story and found that Schwab had acted alone.

Investigation

After Junny disappeared, Junny’s mother and her husband reported their son missing.

On 04/20/91, Schwab called his aunt in Ohio and told her that someone named “Donald” had forced him to kidnap and rape Junny at gunpoint, with threats to kill Schwab’s mother if he did not comply.

On 04/21/91, law enforcement officers went to the aunt’s home while Schwab was being sought. Schwab called. The aunt allowed officers to record the call, and later allowed the officers to tap her telephone. When Schwab called later that evening, officers traced the call and arrested him in a nearby town while he was at a pay phone still talking with his aunt.

Schwab voluntarily gave a recorded statement to law enforcement officers on the night he was arrested. In the statement, Schwab recounted a story in which Donald threatened him, used him to contact Junny’s school, forced him to pick up Junny at the ball field, and later used a duct tape binding and knife to remove Junny’s clothes and pressure Schwab and Junny at the motel. Schwab then described leading officers on a search for Junny’s body.

Schwab led police to the location of Junny’s body in Brevard County. Officers found the body in a rural undeveloped area concealed in a footlocker tied shut with rope and covered with palm fronds and debris. The lid was slightly open. The body was identified by fingerprints as Junny Rios-Martinez. The autopsy determined Junny died from “mechanical asphyxia,” most probably smothering or strangulation, and signs of possible bruising around the anus were detected.

A K-Mart sales slip for a footlocker, dated 04/18/91, was found in Schwab’s car. A wad of tape found in the footlocker yielded a fingerprint identified as Schwab’s.

After Junny’s body was found, Schwab gave another statement, retelling his story with additional details about Donald forcing Schwab and Junny into the U-Haul, discussing where to dump the body, and then returning Schwab to the motel.

Timeline

• 04/18/91 — Junny Rios-Martinez was abducted; a man purporting to be his father told a schoolbookkeeper to have Junny meet him at the ball field; Schwab took Junny to a Motel 6, where Junny was bound, raped, and killed; a K-Mart sales slip for a footlocker was dated.
• 04/20/91 — Schwab called his aunt in Ohio and claimed “Donald” forced him to kidnap and rape Junny or else Donald would kill Schwab’s mother.
• 04/21/91 — Schwab was arrested in Ohio after officers traced a call; Junny’s body location was later identified by Schwab’s statements; Junny’s body was discovered on this date in some accounts.
• 04/23/91 — Junny Rios-Martinez’s body was found near the side of a road in Canaveral Groves (as described in the timeline).
• 05/15/91 — Schwab appeared in a state court in Brevard County and pleaded not guilty to charges of first-degree murder, kidnapping, and sexual assault of a child under age 13; he waived his right to a jury trial.
• 05/22/92 — Schwab was convicted on all charges.
• 07/01/92 — Schwab was sentenced to death for the murder; he also received life sentences for kidnapping and sexual battery of a child under 13; his probation was revoked on the previous rape conviction and he was re-sentenced to an additional life sentence.
• 12/18/95 — Schwab filed a 3.850 Motion in the Brevard County Circuit Court.
• 10/13/99 — The Brevard County Circuit Court denied the 3.850 Motion.
• 11/12/99 — Schwab filed a 3.850 Appeal in the Florida Supreme Court.
• 03/28/02 — The Florida Supreme Court affirmed the denial of the 3.850 motion.
• 04/29/02 — A mandate was issued.
• 08/10/00 — Schwab filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court.
• 03/28/02 — The Florida Supreme Court denied the petition for a writ of habeas corpus.
• 04/29/02 — A mandate was issued.
• 04/29/03 — Schwab filed a Petition for Writ of Habeas Corpus in the United States District Court, Middle District.
• 06/30/05 — The petition was dismissed.
• 08/01/05 — Schwab filed a Habeas Corpus Appeal in the United States Court of Appeals.
• 06/15/06 — The Court affirmed the denial of Schwab’s petition for writ of habeas corpus.
• 07/01/2008 — Schwab was executed by lethal injection in Florida and pronounced dead at 6:15 p.m. EDT.

Arrest

Schwab was arrested in Ohio after a traced telephone call while he was at a pay phone still talking with his aunt. He voluntarily provided a recorded statement to law enforcement officers the night of his arrest.

Trial

Charges and procedural posture

Schwab faced charges of:

• First-Degree Murder (Count I)
• Sexual Battery upon a Child under the Age of 13 (Count II)
• Kidnapping a Child under the Age of 13 (Count III)

Schwab requested not to have a jury trial. Following a non-jury trial, Judge Edward J. Richardson found Schwab guilty of first-degree murder, sexual battery of a child, and kidnaping.

Verdict and sentencing by court

On 05/22/92, Schwab was adjudicated guilty for each count of the indictment.

On 07/01/92, Judge Edward Richardson sentenced Schwab as follows:

• Count I: First-Degree Murder — Death
• Count II: Sexual Battery upon a Child under the Age of 13 — Life
• Count III: Kidnapping a Child under the Age of 13 — Life

The trial court also found aggravating circumstances, including:

• previous conviction of a violent felony
• commission during kidnapping and sexual battery
• heinous, atrocious, or cruel (HAC)

The trial court considered statutory mitigators and forty items of allegedly nonstatutory mitigation, but found little that was mitigating in nature or established by the record.

The trial court concluded:

“In weighing the aggravating and mitigating circumstances, the Court finds that any one of the three aggravating circumstances outweighs all mitigating circumstances.”

Appeals

Direct appeal to the Florida Supreme Court

Schwab filed a direct appeal in the Florida Supreme Court on 08/06/92. The Florida Supreme Court affirmed the conviction and sentence on 03/03/94. Rehearing was denied on 05/16/94. A mandate was issued on 06/15/94.

The Florida Supreme Court addressed claims including:

• admission of a portion of Schwab’s statement after he said he did not have counsel
• constitutionality of the “heinous, atrocious, or cruel” aggravator
• alleged conflict of interest based on legal advice from the State Attorney’s Office
• denial of recusal of the State Attorney’s Office

Petition for Writ of Certiorari to the U.S. Supreme Court

Schwab filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/26/94. The United States Supreme Court denied the petition on 10/17/94.

Postconviction relief (Florida 3.850) and habeas (Florida)

Schwab filed a 3.850 Motion on 12/18/95 in the Brevard County Circuit Court. On 10/13/99, the Circuit Court denied it. On 11/12/99, Schwab filed a 3.850 Appeal in the Florida Supreme Court. The Florida Supreme Court affirmed denial on 03/28/02.

Schwab filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 08/10/00. The Florida Supreme Court denied it on 03/28/02.

U.S. District Court and federal habeas appeal

On 04/29/03, Schwab filed a Petition for Writ of Habeas Corpus in the United States District Court, Middle District. The petition was dismissed on 06/30/05.

On 08/01/05, Schwab filed a habeas corpus appeal in the United States Court of Appeals. The court affirmed the denial on 06/15/06.

The appellate issues included:

• failure to cross-examine employees of the public defenders’ office regarding the chain of custody of a letter purporting to be a confession
• counsel conflict of interest and admission of inculpatory statements
• sentencing court treatment of evidence offered in mitigation as fact

U.S. Supreme Court and later last-ditch attempts

Schwab sought review in connection with lethal injection procedures. A federal judge granted a stay on 11/14/07 citing a case on review in Kentucky challenging lethal injection methods. A Circuit Court of Appeals ruled the execution could proceed on 11/15/07, but the U.S. Supreme Court blocked the execution later the same day pending appeals by two Kentucky inmates.

On 04/16/08, the U.S. Supreme Court upheld Kentucky’s death penalty by a 7-2 vote. On 04/17/08, the Governor signed a new, undated death warrant for Schwab.

On 05/19/08, an appeal by Schwab was denied by the U.S. Supreme Court. On 06/25/08, Schwab made a final appeal to the Florida Supreme Court; it was also denied.

Sentencing

Schwab received:

• Death sentence for first-degree murder
• Life sentences for sexual battery upon a child under age 13 and for kidnapping a child under age 13
• Additional life sentence after probation was revoked on the previous rape conviction that resulted in early release

Outcome

Schwab was executed by lethal injection in Florida on July 1, 2008, and pronounced dead at 6:15 p.m. EDT.

Schwab’s last meal consisted of two fried eggs, four strips of bacon, two sausage links, hash browns, buttered toast and a quart of chocolate milk at 8 a.m.

Schwab declined the offer to make a final statement.

A warden asked whether Schwab wanted to issue a final statement; Schwab did not respond.

Aftermath

Junny Rios-Martinez’s mother, Vicki Rios-Martinez, later said:

“I only wish my son had passed this peacefully,”

and she later said:

“This reign of evil has come to an end. Now it's time for all of us to move on,”

Junny Rios-Martinez’s last named words included:

“We should all be so lucky when it's our time,”

The execution was described as Florida’s first execution since a botched lethal injection procedure in December 2006 involving Ángel Nieves Díaz, which prompted investigation and changes to execution procedures. Schwab’s execution used a redesigned death chamber and included a warden check to ensure the inmate was unconscious before the lethal drugs were injected. Two IV tubes were inserted into each of Schwab’s arms, with one as an alternate.

Other details

Trial personnel and representation

Sentencing judge: The Honorable Edward Richardson.

Attorney, Trial: Brian Onek — Assistant Public Defender. Attorney, Direct Appeal: Michael S. Becker — Assistant Public Defender. Collateral Appeals: Eric Pinkard — CCRC-M.

Assistant state attorney Chris White and Sergeant Blubaugh were involved in the investigation and travel back to Florida following Schwab’s arrest in Ohio.

Supreme Court citations and docket references (as provided)

• Schwab v. State, 636 So.2d 3 (Fla. 1994) (direct appeal)
• Schwab v. State, 814 So.2d 402 (Fla. 2002) (PCR)
• Schwab v. Brevard County School Bd., 650 So.2d 1099 (Fla. App. 5 Dist., 1995) (civil)
• Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006) (habeas)

Evidence and procedural points mentioned

At trial, Schwab moved to recuse the State Attorney’s Office; the motion was denied. The Florida Supreme Court noted that Schwab had been given and had waived Miranda rights several times in Ohio and was Mirandized again after the exchange with White, and that Schwab did not ask for an attorney.

Swab also challenged admission and suppression issues:

• Schwab argued a statement should have been suppressed because his question to White invoked the right to counsel; the Florida Supreme Court held the statement to White was not a request for counsel, and the trial court did not err in refusing to suppress that statement.

A letter purporting to be a confession was received by assistant public defender Brian Onek after someone calling himself “Doug” sent the letter; Schwab’s fingerprints were found on the letter.

Schwab made motions for judgment of acquittal arguing corpus delicti; the Florida Supreme Court held the state submitted sufficient proof of corpus delicti to admit Schwab’s admissions that he kidnapped and raped the victim.

Mitigation evidence and expert testimony (penalty phase)

At the penalty proceeding, mitigating evidence included expert testimony from:

• Dr. Fred Berlin, a psychiatrist
• Dr. Howard Bernstein, a licensed psychologist
• Dr. William R. Samek, a clinical psychologist specializing in treating sexual offenders and sexual abuse victims

The trial court rejected Schwab’s mitigation evidence as not amounting to mitigating circumstances established by the record in sufficient weight to outweigh the aggravating circumstances.