Pruitt v. State

prosecute quest zealous by their before the blinded tence, proceedings even defendant, of sight lost respondents officer, nothing had done that she hearing impor It is considerations. basic ethical testimony the hear on her wrong. Based it lawyers understand that is that all tant Wink- "Respondent concluded: ing officer litigation prem to tolerate unacceptable of wrongfulness appreciate ler does not justifies the means". "the end ised on any insight conduct, not have and does her wrongful." why her actions were into the defendant's the violation of For Law, Findings Fact Conclusions deceit, of for their viola- their rights, insight lack of leads It is this p. 30. trust, find that public tion of is significant sanction conclude that us to Winkler, is sus- Cynthia L. respondent, that the seriousness necessary to ensure of law for one practice from the pended upon her. impressed is her misconduct (120) days, and that hundred-twenty experi twenty years of has over Winkler Goode, suspended Blaine respondent, attorney. light of her insis ence as (60) sixty days, of law for practice from the nothing wrong, we have that she did tence thereaf- reinstatement with automatic both similar misconduct grave commence on concerns suspensions shall ter. These future. repeated could be by further order a date to be decided prosecuting temporary after a this Court Goode, though instigat- he In the case of attorney arranged. affair, not thereafter he did ed this whole and his actively deceive the defendant assessed proceedings these are Costs of the notes the whereabouts of counsel about against respondents. proceed- throughout these nor did he insist DICKSON, SHEPARD, C.J., and proper. conduct was ings that his JJ., RUCKER, concur. SULLIVAN sig case must be The sanctions Winkler, BOEHM, J., concurs as to but respondents prosecutors, nificant. As Goode, justi- believing facts dissents as to the law. public trust to enforce serve public than a more serious fying discipline (Ind. Moore, 453 N.E.2d

Matter not established clear and reprimand are 1983). actions here have violated Their convincing evidence. among other attorney An who that trust. violations, read documents purposefully ninety confidential received

identified as

(90) practice of day suspension from the Allen, N.E.2d 1118 law. Matter (Ind.2002). Attorneys charged with law Tommy PRUITT, Appellant R. conduct responsibilities must enforcement (Defendant below), in a manner that themselves at all time justice in the public confidence promotes Indiana, Appellee STATE Musser, 517 N.E.2d system. Matter of below). (Plaintiff (Ind.1988). are not Prosecutors No. 15S00-0109-DP-393. advocates, they are also simply justice.... responsi ".. . This ministers of Indiana. Supreme Court obligations bility specific with it carries Sept. 2005. proce is accorded see that the defendant 22, 2005. Rehearing Denied Nov. 3.8, justice ..." Prof.Cond.R. Com dural such, to a prosecutors we hold ment As Here, of ethical conduct.

high standard by

mentally supported retarded is the evi that, excep dence. also hold with one We tion, statutory provisions gov the Indiana erning determination of mental retardation Kighth are consistent with the Amendment explained Virginia, in Atkins v. L.Ed.2d U.S. (2002). affirm Pruitt's conviction and We sentence. Background

Factual and Procedural 14, 2001, Morgan County Depu- On June ty driving Daniel was his Sheriff Starnes patrol assign- unmarked car on a routine son, serving Ryan ment warrants. His Starnes, accompanied part him as of a college internship. by A car driven Pruitt caught Starnes's attention and Starnes fol- distance, observing lowed Pruitt for some increasingly driving. Eventually erratic to a stop pulled came and Starnes car, flashing behind Pruitt's turned on his lights, approached Pruitt's vehicle on li- foot. Starnes obtained Pruitt's driver's Pol, Jr., Martinsville, William Van Der registration cense and and returned to his Harper, Bloomington, Appel- D. for Teresa vehicle to call the information in. In re- lant. sponse, that a Starnes was told recent robbery suggested Pruitt report might be Carter, Attorney Steve General of in possession weapons. of stolen As Kobe, Indiana, Deputy A. Attor- Andrew approached Starnes Pruitt's car for a see- General, ney Indianapolis, Appellee. time, emerged handgun ond awith exchanged gunfire. two BOEHM, Justice. was shot at least seven times and Starnes Tommy charged Pruitt was with the was struck five shots. Pruitt also fired Deputy murder of Daniel Starnes of the Starnes, Ryan had who remained County Morgan Department. Sheriff's car. Starnes's prosecutor sought penalty The the death by helicopter Starnes was taken based on the fact that the victim was a law Hospital Indianapolis Methodist where enforcement officer killed in the course of surgery. he underwent Starnes's condi- sought his duties. Pruitt to have the initially point tion stabilized to the that he penalty charge death dismissed on the care, longer required no intensive ground that he is retarded and shortly developed thereafter he an infec- ineligible therefore for the death penalty. ultimately July tion. He died on motion, trial court denied the and a jury subsequently living, convicted Pruitt and While Starnes was still the state charged attempt- recommended death. The trial court im Pruitt with two counts of murder, posed possession by that sentence. We conclude that ed of a firearm a felon, finding posses- the trial court's that Pruitt is not serious violent two counts of 3). license, 158-1994, a handgun of a without resist- Sec. Indiana Code sion sections enforcement, through 35-36-9-1 7 provide proce and three counts of the ing law 27, through dures which a trial August court is to receiving property. stolen On determine whether a 2001, mentally defendant is attempted the state amended the retarded and therefore not eligible for the charge count to Pruitt with mur- murder penalty. death Indiana Code section 35- count of receiving der and added another places 36-9-4 the burden on the defendant property. requested stolen The state the to "prove by convincing clear and evidence penalty death based on the fact that the mentally defendant is a retarded a A Starnes was law enforcement officer. individual." murder, guilty Pruitt at- jury found murder, tempted possession handgun of a Aikins, the United States Su license, resisting

without a law enforce- preme Court held that the execution of a ment, receiving prop- four counts of stolen mentally retarded defendant violates the erty, and the lesser-included offense also prohibition against "cruel and unusual aggravated battery. penalty At the punishments" in Eighth found the Amend jury found that Pruitt killed a phase, ment to the United States Constitution officer in the course of law enforcement his applicable to the states through the duties, aggravating determined that Fourteenth Amendment's Due Process outweighed mitigating cireumstances that, Clause. Pruitt light of the cireumstances, and recommended a sen- holding executing mentally retarded jury tence of death. The for a reconvened Amendment, Eighth defendant violates the phase third of the trial and found Pruitt process by federal due is violated guilty possession by of a firearm statutory provision placing Indiana on the possession serious violent felon and of a proving defendant the burden of mental handgun without a license as a Class C requiring retardation and it to be estab felony, both of which had been reserved lished under a standard of clear and con jury for a trial. The bifurcated also found vincing evidence. to be habitual offender. The trial The issue of federal constitutional limits court sentenced to death for the proof on state burdens of and state stan murder and to an aggregate term of 115 proof dards of was first addressed years remaining for the counts. Pursuant context of issues other than mental retar 4(8)(1)(a), to Indiana Rule Appellate ap- York, dation. Patterson v. New 432 U.S. directly peal is to this Court. (1977) 2319, 97 S.Ct. 53 L.Ed.2d 281 I. Mental Retardation normally that it power held within mentally contends that he is re regulate procedure, a state to trial includ ineligible tarded therefore for the ing production persuasion. burdens of penalty death under both Indiana state law 201-02, Id. at 2319. Patterson S.Ct. Eighth explained and the Amendment as upheld constitutionality of a New York Virginia, Atkins v. U.S. requiring statute a defendant a murder (2002). 153 L.Ed.2d 335 carry proving trial to the burden of affirmative defense of "extreme emotional A. Burden and Standard of Proof law, rough disturbance" under New York Proof equivalent of Indiana's "sudden heat." Id. . prohibited Supreme Since Indiana has 97 S.Ct. 2319 The Court execution retarded. Ind. held that the Due Process Clause does not proscribe proce (2004) (as a state rule of criminal § Code 35-86-9-6 added P.L. 100 incompetence to prove "offends some defendant his stand procedure

dure unless the justice by convincing in tradi trial clear and evidence. Id. principle of so rooted 350, to be people Following tions and conscience of our as at 116 S.Ct. 1373. an anal 202, Medina, at 97 ysis Cooper ranked as fundamental." Id. to that in first similar Randall, Speiser v. 357 (quoting right S.Ct. 2319 not to be tried explained 1332, 513, 523, But, 2 L.Ed.2d 78 S.Ct. incompetent U.S. is fundamental. while held, placing the burden on the (1958); Oregon, Medina v. 343 1460 Leland U.S. 1002, 790, 798, 72 96 L.Ed. 1302 S.Ct. to a presumption defendant overcome (1952); Massachusetts, 291 Snyder v. U.S. any violate funda competence does not (1934)). 330, 97, 105, 54 78 L.Ed. 674 S.Ct. principle only because it affects mental Placing burden on the defendant to compe few cases where the evidence as to any prove this defense did not offend such 355, equipoise." "in 112 tence is Id. principle. The S.Ct. 2572. Court then considered proof required to a standard establish 437, California, In Medina v. 505 U.S. incompetency. defendant's After review (1992), 2572, 120 S.Ct. L.Ed.2d 353 ing practice finding historical Supreme Court relied on Patterson sus proof by preponderance a of the evidence proof a rule as to taining state burden great majority is the standard in the trial. incompetency to stand The Court jurisdictions, States con United Court trial of an reaffirmed that "the criminal heightened cluded "the standard [of incompetent pro defendant violates due convincing clear and evidence] offends 453, 2572, cess" Id. at 112 S.Ct. but held principle justice deeply that is 'rooted requiring prove a defendant his peo the traditions and of our conscience incompetence to stand trial a prepon 362, 112 ple." Id. at S.Ct. 2572. derance of the evidence did not offend due process. Medina first examined historical The Court then next con "turn[ed] practices determining contemporary sideration of whether the rule exhibits competency to stand trial defendant's operation"" 'fundamental fairness in Id. and found "no historical basis for conclud determining a heightened whether stan ing that the allocation of the burden proof dard of with was consistent funda proving incompetence the defendant vio fairness, mental the Court balanced the process." lates due Id. at 112 S.Ct. opposing interests of the state and the 2572. The Court then went on "to consid explained defendant. The Court that if an transgresses any er whether the rule rec competence erroneous determination of ognized principle of fundamental fairness' made, the defendant will be forced into a operation" found that it not. did trial at which he cannot communicate ef placing showing Id. Because burden fectively may He counsel. therefore incompetency neither offended fundamen rights be unable to exercise essential to a prac tal fairness nor violated traditional fair trial or make decisions in the course of tice, it require was consistent with the his defense. Id. at S.Ct. process. ments of due importance rights "The of these and deci sions demonstrates that an erroneous de proof burden of is one issue required proof competence and the standard of is an termination of threatens component fundamental of our criminal Oklahoma, In Cooper other. v. 517 U.S. justice system."" 134 L.Ed.2d 498 (quoting S.Ct. Id. United Cronic, 648, 653, (1996), States U.S. Supreme Court held unconstitu (1984)). tional the that a requirement Oklahoma 80 L.Ed.2d 657 procedural of fundamental of a next balanced these interests fairness de Cooper trial, against those of the state. that the defendant fendant's the United States consequences that the to The Court found prohibit and Indiana Constitutions do not relatively if a court state are minor mentally the execution of a retarded defen incompetent that a defendant is concludes dant, we cannot conclude that the defen malingering. in fact That error when he is dant's process rights due were violated." in a subject subsequent is to correction Id. at 1176. may because the state detain a

proceeding Pruitt argues that Atkins has since for a of time period defendant reasonable Penry overruled and has now announced a necessary to determine whether he will principle fundamental of law that it un- is competence, attain and it is unusual for mentally constitutional to execute a retard- malingerer feign even the most artful ed defendant. contends Atkins incompetence successfully period for a of in reasoning Rog- therefore undereuts our care. Id. professional time while under premise ers. There is no doubt that the Court concluded: "the defendant's The in Rogers cited that the Federal Constitu- right only fundamental to be tried while permits mentally tion execution of a re- outweighs the interest in competent state's person longer tarded is no correct. The operation jus criminal the efficient its state nevertheless contends that the ulti- system." at tice Id. 116 S.Ct. 1373. Rogers-that mate conclusion of the funda- Cooper The net result of Medina and mental fairness of a trial was not affected constitutionally permissible it is by heightened standard-remains in- | proof incompetency burden of place the tact. defendant, Eighth on the but the Amend agree that the followed reasoning We we prohibits requiring incompetence ment Rogers in in light must be revisited than by heightened be shown standard The state reasons that because Atkins. preponderance of the evidence. prohibition on the execution of the This Court first addressed the constitu mentally relatively retarded is recent statutory tionality provision of the Indiana it characterized as development, cannot be requiring prove a defendant to his mental fundamental, procedure and therefore the by convincing retardation clear and evi determining mental retardation cannot State, Rogers v. dence 698 N.E.2d principle. a fundamental offend Whatever (Ind.1998). Cooper At that time had been argument logic merit the state's has in or mentally decided but execution of the re history, Supreme Court has the last yet tarded had not been held to violate the law, word on this issue federal contrary, Federal Constitution. To the In the consider it resolved Atkins. Penry Lynaugh, 109 S.Ct. U.S. in the recognizing right course of (1989), express 106 L.Ed.2d 256 had Eighth mentally Amendment of retarded ly held that execution of a retard executed, not to be the Su person process ed did not offend due or defendants preme right has identified that 338-39, Court Eighth Amendment. Id. at grounded principle in a fundamental Relying Penry, Rogers 109 S.Ct. 2934. on Atkins, 306, 122 convincing the clear and justice. held stan 536 U.S. at S.Ct. finding reasoning Cooper prin dard "does not offend a "fundamental convincing standard unconsti a clear and ciple' implicated Cooper." of the sort incompetency directly ap at tutional as to Rogers 698 N.E.2d concluded to the issue of mental retardation. plicable "[gliven convincing the clear and and con Cooper ... considered the historical proof standard of does affect 362, 116 Cooper, U.S. sion." of the standard practice temporary Dir., Dep't Mo. (quoting and 1373 Cruzan clear and whether Oklahoma's proof Health, 261, 283, 110 S.Ct. fun 497 U.S. provides standard convincing evidence of (1990)). Cooper 224 Cooper 111 L.Ed.2d operation. in fairness damental might be de that a defendant reasoned practice is "[hlistorical reaffirmed if rule can a fair trial the court procedural right a his to of whether nied probative 517 of fundamental." determination characterized as makes an erroneous be Medi is (quoting 116 1373 Id. Mental retardation competence. at S.Ct. U.S. 2572). na, Coo at 112 S.Ct. and does incompetence, 505 U.S. not as severe contemporary practice: looked to defendant unable to per also se render the per not of a stan application meaningfully "The near-uniform in the defense. participate the defen protective more of dard that is Atkins, U.S. at S.Ct. See and clear rights than Oklahoma's dant's adhere to the view Accordingly, 2242. our con supports rule convincing evidence that an erroneous Rogers in expressed standard of heightened clusion mental to a defendant's determination as justice deeply that is principle a of fends deny the defendant would not retardation conscience of in the traditions and 'rooted However, prospect of an fair trial. a 116 S.Ct. people'" our Id. Eighth of execution violation Medina, 445, 112 505 U.S. at (quoting obviously very a serious Amendment 2572). there is if a state argues that even matter. The state states proof among level of no uniform not erroneously determined defendant retardation. As establishing mental retarded, that defendant mentally be to however, only relatively small to argue his mental retardation Cooper, can still follow Indiana jurisdictions number cireumstance. jury mitigating as a or convincing and evidence requiring clear be, explained, as Atkins may That higher an standard.1 even penalty the death will be The risk "that may spite of factors which considering imposed historical to addition penalty," is en- call for a less severe proof ap contemporary and standards hanced, only by possibility establishing incompetence, plicable to confessions, by the lesser false but also the fundamental Cooper also examined ability mentally retarded defendants by clear and requiring proof fairness of showing mitiga- persuasive to pointed first make convincing Cooper evidence. evidence prosecutorial tion in the face of stringent the burden out that the "more aggravating factors. bear, of one or more party must the more proof may Mentally defendants be deci retarded the risk of erroneous party bears prove Ann., Georgia requires 1997); to his the defendant § Crim. Law 2-202 Md.Code beyond a reasonable (2002); mental retardation (Supp. § Stat. 565.030 Mo. Ann. (1998). § 2004); In ad (Supp.2004); doubt. Ga.Code 17-7-131 § Neb.Rev.Stat. 28-105.01 Colorado, Indiana, Arizona, dition to (Mit § Stat. Ann. 31-20A-2.1 M. N. require prove he is Florida the defendant 2000); § Ann. 39-13-203 chie Tenn.Code convincing ev retarded clear and (2003). government, Connecti The federal § Ann. 13-703.02 idence. Ariz.Rev.Stat. cut, Kansas, Kentucky do not set stan (2003); § Ann. 13-1.3-1102 Colo.Rev.Stat. (West § proof, dard of 18 U.S.C.S. (West (West 2002); § Stat. Ann. 921.137 Fla. Supp.2005); Gen.Stat. Ann. 2002 & Conn. Arkansas, Missouri, Maryland, Supp.2004). (West 2001); § Kan. Stat. Ann. 53a-46a Mexico, Nebraska, Tennessee re New (1995); Ann. § 21-4623 Ky.Rev.Stat. quire proof by preponderance of the evi 1999). (Mitchie § 532.135 (Michie § Ann. 5-4-618 dence. Ark.Code give meaningful assistance B. less able Pruitt's Claim Mental Retarda- tion typically poor counsel and are their witnesses, may and their demeanor cre- All of the foregoing is of interest to impression ate an unwarranted of lack of try those who future cases. In Pruitt's Mentally remorse for their crimes.... case, may the trial court have taken the aggregate retarded defendants in the Cooper same view of and Aikins as we special wrongful face a risk of execution. today. hold The trial court specifically found that Pruitt by failed to show a pre- Atkins, 320-21, 122 536 U.S. at S.Ct. 2242. ponderance of the evidence that he was Finally, Cooper, as in the interests of mentally retarded. The trial court held: the state and defendant must be balanced. "even if proof the burden of in pro- argues injury The state that the to the ceeding by were on the a prepon- defense malingering being state of a defendant er derance of the evidence the Defendant roneously mentally fact, found to be would not have retarded is met this burden. In presented evidence in prevented weighs substantial because the state is favor of a finding that Mr. Pruitt mentally is not holding responsible from the defendant retarded." in (emphasis original). There- his crimes to the fullness of the law. We fore, although agree may that the state think Atkins informs resolution of this is not require proof by clear convincing out, sue as pointed well. As Afkins men evidence, in order to overturn Pruitt's sen- tally may retarded persons not be execut tence, he must establish reversible error in ed, they subject remain punishment finding of the trial applying court for their crimes. 536 U.S. at preponderance of the evidence standard. 2242. Cooper held a clear and con vincing standard unconstitutional as to in 1. The Statutory Definition of Mental competency because it would result Retardation persons incompetent some who are none explained: The trial court "this Court going Similarly, theless to trial. requiring finds that the appropriate procedure and a defendant to establish mental retarda by definitions to applied be the Court in by tion convincing clear and evidence determining whether or not Mr. Pruitt would result in persons execution of some mentally retarded is set forth Indiana who are retarded. the lan 35-36-9-2, §§ Code seq." et. Indiana guage Supreme height Court: a Code section 35-86-9-2 defines a "mental- ened standard of proof "does not decrease ly retarded individual" as: error, the risk of but simply reallocates who, individual becoming [Aln before parties." risk between the Cooper, (22) twenty-two years age, manifests: 517 U.S. at 116 S.Ct. 1373. We do (1) significantly subaverage intellectual deny not important the state has an functioning; and justice, interest in seeking but we think (2) impairment substantial of adaptive the implication of Atkins and Cooper is behavior; right the defendant's not to be execut that is documented in a court ordered if mentally ed outweighs retarded report. evaluative state's interest as a matter of federal con stitutional law. We therefore hold that definition, By this the defendant must may require the state proof of mental prove both. trial The court this case retardation clear convincing evi signifi- found that Pruitt "does not have dence. cantly sub-average functioning. intellectual Intelligence most, functioning would be 3. Mr. Pruitt's

At mentally re- considered borderline-not presented trial court was trial tarded." bearing on array opinions evidence and error. He also finding court's is reversible testimony intelligence. Expert Pruitt's an incor- that the trial court used contends Dr. experts from defense was received determining that Pruitt's rect standard Golden, and Dr. Charles Bryan Hudson impaired. was not adaptive behavior Groff, Dr. Martin prosecution expert expert, George Dr. Schmedlen. the court's of Review Standard IQ academic Pruitt took several tests and throughout his life with achievement tests phrase review We sometimes child, Pruitt was varying results. As subject fact to an "abuse of findings admin- given Lorge-Thorndike group two See, e.g., Rogers, discretion" standard. IQ tests. In March he istered (citing a number of 698 N.E.2d IQ and a non-verbal scored verbal propo opinions other of this Court for the In of he scored IQ of 65. December "great deference to a give sition that we IQ IQ a a verbal of 64 and non-verbal fact, findings trial court's and will dis Groff, Dr. expert, The state's Martin only upon showing findings turb such give weight little concluded that he would discretion"). "Significantly sub- abuse of points The state out that to these results. functioning" and "sub average intellectual Hudson, witness, both Dr. Brian Pruitt's adaptive behavior" impairment stantial Lorge- Dr. that Groff testified are, however, factual determinations sub group-administered Thorndike is a test ject clearly to a erroneous standard group-administered and because tests tend matter, practical appellate review. As individual, individual tests to obscure the clearly erroneous stan the result under an are a better indicator of individual's virtually dard-reversal or affirmance-is ability. the same as under the oft-cited abuse of given Pruitt was also two academic not, discretion standard. Trial courts do in however, find achievement tests while school. have "discretion" to make Rather, March Pruitt took an Otis-Lennon ings. trial courts are to use their Ability and scored 81. Dr. judgment to arrive at the correct School Test best Schmedlen, expert, the court's tes- They by George are the law and the result. bound error, an that score was inconsistent with usually evidence and it is tified disagrees. if court the claim that Pruitt is retarded. appellate "abuse" Dr. tes- judg experts disagreed. Trial course exercise Other Hudson courts must of ment, credibility that academic achievement tests dif- particularly as to of wit tified nesses, IQ IQ in gauge that fer from tests that tests judgment and we defer to ability while academic trial court views the evidence true intellectual because the gauge how well someone hand review a cold documen achievement tests first and we Thus, tary has learned school materials. One record. the extent eredibili drawn, give experts although to be defense testified that aca- ty or inferences are can be used as a trial conclusions substantial demic achievement tests court's IQ, they cannot be used weight. ruling But to the extent a tool to corroborate may vary as much as sup an error of law or is not as a substitute and based on reversible, IQ. points person's 15 to 25 from true ported by the evidence it is Dr. argues Pruitt also that Schmedlen's the trial court has no discretion to reach Pruitt cites his testimony is inaccurate. wrong result. seoring and that one-point was a error that academic explained who expert own influence individuals he believed Pruitt was under the compare tests achievement school, IQ testing while medication Trilifon at antipsychotic grade the same age. Pruitt of the same took the test and the medi- persons the time he compares time he took by ability, his points superficially out cation increased test, held back he had been in that resulting Otis-Lennon in an over-estimation test two and was therefore years school two points. argues Pruitt three six than his classmates. years older Dr. testimony Golden and medi- results that when his Otis-Lennon argues both this conclusion. support cal literature age, of his own to children compared are that even Pruitt's ex- The state counters iden- a seore almost produce those results Hudson, the score pert, Dr. stated tests he took Lorge-Thorndike to the tical IQ Pruitt's was an accurate reflection of mentally retard- clearly within the and are and that the medication does not the time Dr. also testified range. Schmedlen ed IQ, simply provides a bet- raise one's Iowa Basic Test results of Pruitt's that the also testing ter environment. The state his consistent with grade in the fifth were specifically out that the trial court points again argues scores. Otis-Lennon was insufficient evidence found that there is an academic achievement that this test what, any, if "as to effect this medication incorrectly failed and that Schmedlen test testing re- may have had on Mr. Pruitt's age if his age. to seore sults." scoring when had been considered recently. Finally, Pruitt was twice tested Test, that would have also Basic test Towa 22, 2003, July Dr. adminis- On Schmedlen identical to the a result almost produced to Pruitt. Pruitt seored a tered the WAIS Pruitt test. concludes Lorge-Thorndike However, Dr. IQ of 52. Schmed- full-scale whole, the academic taken as a that when that that he did not believe len testified equiva- average grade in an testing results potential working up Pruitt was to his mildly a range expected for lent within the and the test was when he took the WAIS mentally individual. retarded measure of his not an accurate therefore intelligence also administered Pruitt was The trial court functioning. intellectual prison in schooling. While tests after his full work to his found that Pruitt "did not crime, Pruitt was adminis- for an earlier test, that he intelligence potential on this and intelligence Beta test tered a Revised was, fact, in malingering." (emphasis in testimony and Citing expert a scored 98. 2008, Pruitt February of took original). In Retardation, journal, Mental recognized individually administered a Stanford-Binet "wildly inac- that this test is argues Pruitt Stanford, IQ a 65. On test and seored non-language it focuses on curate" because test, intelli- subaverage significantly Binet language and not consider functioning does Pruitt ar- less than 69. genee is score 2002, Pruitt took functioning. April In clearly with- of 65 falls gues that his score Intelligence Scale Adult Weschler and the mentally retarded range in the (WAIS) IQ of 76. a full scale and scored by both test was identified Stanford-Binet "this test result trial court found as more sensitive and Hudson Drs. Golden the level set Mr. Pruitt above place would very high accurate individuals and for mental retarda- particular test on IQ The state very low than the WAIS. or has a standard error tion." The WAIS that acknowledged out that Golden points Pruitt so points, of five measurement the test scoring alternative methods 71 to Dr. range 81. scored within of 69. Oth- a score could have resulted that he believed there testified Hudson analysis is flawed as a genee and that this scoring alternate would have resulted er evaluating intelligence. has a standard means of of 67. The test score Pruitt points, of measure of six so error 35-36-9-2 defines Indiana Code section range within the of 59-71 scored "mentally solely retarded individual" margin within the is therefore to behavior manifested before reference error of the cutoff. twenty-two. argues The dissent age only IQ age tests before that are relevant sum, has met argues In he If that to that determination. were the mentally that he is his burden to show case, twenty-two than a defendant older Lorge- that the two retarded. He asserts could never be who had never been tested mentally Thorndike tests are within the IQ mentally found retarded based on test- that the Otis-Lennon range retarded ing. believe that this was We tests, properly when con- and Iowa Basic legislature passing of the section intent age of his at the against sidered children may be of Subsequent 35-36-9-2. tests mentally time also fall within the retarded the overall evaluation significance, less range, as did the Stanford-Binet result. including age behavior and tests after totality that the Pruitt also may impor- twenty-two be relevant. More academic achievement tests correlate to evidence; tantly, IQ only they tests are mentally retarded range expected for a subject's conclusive on either the are not although individual. asserts IQ question or the ultimate of mental re- is not within the April 2002 WAIS Rather, statutory tardation. test mentally range, pro- retarded Dr. Hudson "significantly subaverage intellectual func- testimony point vided that there was a one an indi- tioning." determining whether scoring error. Hudson testified retarded, vidual or is not Pruitt's true WAIS seore would have been may IQ togeth- trial court consider scores between capacity. er with other evidence of mental suggest sig- While some Pruitt's scores Golden, Citing testimony of Dr. nificantly subaverage intellectual function- best, intelligence the trial court found "at ing, do not. In addition to this others testing provides person's an estimate of a data, the trial court found that Pruitt was IQ, that it in and should be considered fill applications employment able to out for conjunction actual person's per capacity, and to have the if not the will at in in formance school and life to determine times, support light all himself. person whether meets the Indiana IQ the inconsistent seores and the other for tri standard mental retardation." court, by evidence cited the trial the trial al court found that Pruitt has held a num finding court's that Pruitt did not meet the jobs years including con ber of over the statutory test is consistent with this ree- struction, food, long fast and distance ord. explained, truck driver. The trial court (an IQ "the Court considers test results Adaptive 4. The for Behavior Standard intelligence), functioning, estimate his history, history, requires work school and all other Indiana Code section 35-86-9-2 presented regarding claiming mentally evidence Mr. Pruitt's a defendant to be re- functioning." argues impair- intellectual tarded to demonstrate "substantial that that trial suggests adaptive argues court used ment of behavior." Pruitt statutory this other evidence as a substitute for this Indiana standard for adaptive assessing Pruitt's test results to determine intelli- behavior is unconstitu-

107 impaired contends that At so as to fall within the range tional after Atkins. He to use a standard requires mentally kins all states retarded offenders about retardation and cites definition of mental whom there national consensus. provided by the the clinical definitions our in approach As was Ford v. American Association on Mental Retarda Wainwright, 477 U.S. 399 [106 S.Ct. (AAMR) Psychiat and the American tion 2595, (1986), 91 L.Ed.2d 335] with re Association, and Diagnostic ric Statistical gard insanity, "we leave to the (4th Manual Mental Disorders ed. developing appropri States the task of 1997) (DSM-IV). points out that ways ate to enforce the constitutional Atkins, clinical the Court described the upon restriction their execution of sen definitions of mental retardation tences."' explained AAMR and the DSM-IV and 122 U.S. The state statutory that "the definitions of mental argues language that this from al Atkins identical, generally retardation are not lows states to define mental retardation Atkins, conform to the clinical definitions." for themselves. Most courts that have at 317 n. 122 S.Ct. 2242. 36 U.S. 5 challenges faced defendant is men defini therefore these tally subject retarded and therefore not provide appropriate tions standard. See, agreed. e.g., execution have In re currently defines mental retarda AAMR Johnson, (5th Cir.2003); 334 F.3d disability by sig tion as "a characterized (5th Cockrell, Bell v. 310 F.3d nificant limitations both intellectual Cir.2002) (Atkins conclusively did not de functioning adaptive behavior retardation); State, Gray fine mental v. social, expressed conceptual, prac (Miss.2004) ("Determin 887 So.2d Am. Ass'n on Men adaptive tical skills." ing purposes who is retarded Retardation, tal Mental Retardation: Def prohibition of this has been left to the inition, Classification, Systems States."); State, individual Johnson v. (10th ed.2002). Supports 8 The DSM-IV (Mo.2003)("Atkins 535, 540 did not S.W.3d different, slightly explaining, "the essen perimeters define the of mental retarda signifi tial feature of mental retardation is " tion, but left 'to the States the task of functioning cantly subaverage intellectual State, restriction); enforcing the Howell accompanied by significant that is limita (Tenn.2004). 450, 457 151 S.W.3d We adaptive functioning tions in in at least two provide did not for a agree Atkins following skill areas: communica retardation, uniform definition of mental tion, self-care, social/interper living, home with approval but note that Atkins cited skills, resources, community sonal use of the clinical definitions of mental retarda self-direction, skills, functional academic tion, statutory that explaining while state work, leisure, health, safety." DSM- prohibitions against executing mentally IV at 39. uniform, all, including retarded are not Although it found a "national consensus" Indiana's, to clini "generally conform" retarded, mentally against executing the Atkins, cal at 317 n. definitions. U.S. explained: Atkins 22, 122 2242. S.Ct. To the extent there is serious dis de Although specifically Atkins did not agreement about execution of offenders, retardation, mentally it is in it makes clear that retarded fine mental Eighth prohibits Amendment execu determining offenders are in which mentally retarded "about whom tion of the people fact retarded.... Not all who mentally claim to be retarded will be at there is a national consensus." Id. adopt "not Although recog Atkins Court did the DSM-IV's defini possibility varying adaptive functioning nized the state stan as the defini tion of retardation, grounding dards of mental adaptive tion behavior." in prohibition of the the Federal Constitu Rogers predated Both Rondon and implies that there must be at least a

tion and were on the books at the time Atkins Eighth Amend nationwide minimum. among Atkins cited the Indiana statute as must have the same content in all ment forming the national consensus. those We jurisdictions. Accordingly, States United in impose are to must construe the Indiana statute con we conclude that states free standard, higher formity Eighth but the minimum defini with the Amendment. However, tion of mental retardation sufficient agree that Ailkins allows in meet the national consensus found At in flexibility defining states mental retar kins must be uniform. Because Atkins dation, long as as the definition is within statutes that explains provided state the national consensus. after Atkins Soon against the "national consensus" the execu decided, AAMR was definition of men mentally "generally tion of the retarded tal longer retardation was amended and no conform" to the AAMR or defini DSM-IV requires significant adaptive limitations in tions, requires we conclude that Aikins in functioning specific skill areas. Its cur conformity general least with those clinical "significant rent definition calls for limita definitions, but allows considerable latitude adaptive tions behavior as ex range. agree within We with the social, pressed conceptual, practical Supreme spe concurrences that the Court adaptive Although skills." the Indiana cifically disavowed endorsement of the statutory definition is somewhat different any or specific DSM-IV definition of men DSM-IV, very from the it is similar to the retardation, tal think pro but we that the definition, AAMR revised and therefore mentally of the execution hibition range within the permissible standards retarded must have some content. There Eighth under the Amendment. We con may flexibility be in determining some clude the Indiana statute does not retardation, if mental but we think that impose a standard incompatible with the state's definition of mental retardation Eighth Amendment explained At completely were at odds with definitions Rather, kins. it flexibility is within the accepted by expertise those with in the allowed the consensus found Atkins. satisfy field the definition would not prohibition. Finding Adaptive 5. The toas Behav- above, explained As the Indiana statute ior requires a "significant defendant show requires Indiana Code section 35-36-9-2 impairment adaptive behavior." I.C. claiming defendant to be re § Rogers, 35-36-9-2. this Court held impair tarded demonstrate "substantial adaptive functioning prong Indiana's adaptive ment of behavior." The trial general is "much more open-ended found, court "applying the Indiana stan adaptive the DSM-IV behavior [than dard for determination im prong], requiring a of substantial showing of 'substantial behavior, impairment pairment adaptive of that adaptive of behavior without the specifying any particular prove by skill defense has failed to clear and levels." 698 N.E.2d at convincing 1179 n. 17. The state also evidence that Mr. Pruitt has State, points out that impairment adaptive Rondon v. 711 substantial of behav 506, (Ind.1999), N.E.2d 516 n. 14 particularly impressed this ior. The Court is

109 him placed that in terms Pruitt a described as function ability to Pruitt's Mr. with of or lower Schmed- percentile li in the 25th driver's commercial obtain carpenter, did Schmedlen group road comparator of an over len's cense, duties perform for deficit existed applications fill out that substantial conclude and truck driver were asserts that expert witnesses Pruitt area. particular in a employment." adaptive behavior. to an institu- Pruitt's Pruitt compared as to divided Schmedlen below, conclude given entirely of up reasons made population For tionalized predicat finding was individuals, trial court's that the not to the mentally retarded adaptive impairment a standard ed on percent Sixty-two population. general restrictive, too that was institutional- population behavior comparator support not it does that agree therefore 50, eigh- IQs had below persons ized not men Pruitt is that finding ultimate Pruitt IQs 20. had below percent teen retarded. tally opined Dr. Schmedlen points out to determine using trial that the he was alternatively the standard argues Pruitt identify only stat- functioning the Indiana would interpreted adaptive court either men- showing than less as IQs of 60 or higher with require individuals ute requires or, persons if the with statute Exclusion of requires, tally retarded. statute demanded, it is court eliminate the trial 70 would showing 60 and IQs between Specifical- Atkins. under all indi- percent unconstitutional 75 to 89 approximately statutory stan- contends re- ly, Pruitt as clinically diagnosed viduals court ex- trial by the understood defini- dard medical the standard under tarded of individuals large percentage cludes tions. and DSM-IV AAMR meet the

who would it explained court The trial retardation. of mental definitions standard "the Indiana applying was standard, re- trial court's that the impairment of substantial determination Dr. by given explanation flecting that Pruitt appears It behavior." adaptive mea- Schmedlen, inappropriate used that Schmedlen's contending is correct adaptive be- deficits substantial sure of court, trial by the accepted approach was used he testified havior. Schmedlen As stringent a test.2 too it was and that Scale-Residential Behavior Adaptive State, in Rondon v. explained this Court AAMR by the published Community test (Ind.1999), the 506, n. 14 517 N.E.2d 711 behavior. adaptive Pruitt's to evaluate adaptive behavior. define not does statute activity ten areas identifies This test to clini looked therefore have Many courts self-direction, communication, (self-care, beh adaptive determine cal definitions people etc.). two interviewed Schmedlen Indiana clear that made avior.3 Rondon asked Pruitt and familiar were who defi clinical strictly to the not adhere does of these in each his skills about them adopt the DSM-IV's "we do nitions: individuals reporting if Only both areas. adaptive impaired in substantially being ify as explained that findings, the trial court 2. In its substantial- to exhibit behavior." found Schmedlen under adaptive behavior ly impaired standard, Rogers and con- but cited 57, AAMR Grell, 66 P.3d See, Ariz. e.g., v. State "However, also ana- Schmedlen Dr. Krall, cluded: 1234, (2003); Money 128 Cal. v. (1982); Cal.Rptr. general stan- App.3d more under the lyzed Mr. law, law noting that Indiana Indiana dard of 859 A.2d 181 N.J. Harris, v. State AAMR standards. not bound State, (2004); 153 S.W.3d Howard 445-46 review, Dr. general conducting this more (Tex.Crim.App.2004). qual- did not that Mr. Pruitt found Schmedlen adaptive definition of functioning restrictive, as the the trial finding court's on that definition adaptive behavior." 711 prong is not supportable. However, a finding of mental noted, N.E.2d at 516 n. 14. As Rondon requires retardation however, "the may provide DSM-IV some showing of both significantly subaverage guidance as to type intelligence information significant and in limitations useful to the determination of adaptive substantial functioning. agree We that the impairment adaptive behavior under the evidence on the adaptive behavior prong is at conflicting. Nevertheless, Similarly, least statute." Id. Rogers, tri this Court reviewed explained the DSM-IV but al court ultimately found that Pruitt failed § "Indiana Code 35-36-9-2 is much prove by more preponderance of the evi general open-ended, requiring a show- dence that he is mentally In retarded. ing of impairment 'substantial adaptive deed, the trial court found that the evi behavior' specifying without any particular dence established that Pruitt was not skill levels." 698 N.E.2d at 1179 n. 17. mentally retarded. As to the intelligence prong, finding supported is by the Atkins is not inconsistent gen with this record. The finding ultimate is therefore proposition but, eral as we observed clearly not erroneous and we affirm. discussing the adaptive standard for be havior, the Eighth Amendment must have Statutory C. Procedure Determin- the same content in every state. Atkins ing Mental Retardation found the Indiana statute to "generally Although conform" to the described we find the clinical definitions. clear and convine- ing 53 evidence required U.S. 317 n. standard Indiana § We think Code the national 35-86-9-4 to min violate consensus the Federal Constitution, imum only benchmark, is the no party argues identifiable that other provisions and thus some permissible variation is Indiana necessarily law fall interpretation Dr. proof. Schmedlen standard of gave agree We the trial provision court is does not meet that severable require and the remain- der sum, statute is not simply by invalid ment. we find the Indiana statute to meet requirements, Atkins reason of unconstitutionality but we do of the clear interpret vary convincing it to from evidence the clinical standard. Ac- cordingly, standards to the extent that it address Pruitt's challenges embraces only provisions those the other twenty-five bottom ten to of the Indiana stat- percent of ute meeting governing those the clinical determination of stan mental re- We, dards. tardation. like the Supreme U.S. Court Atkins, leave refinement of that stan If a defendant petitions the trial court to dard for day. another For purposes of dismiss the death penalty arguing that he this case it is sufficient to note that retarded, or she mentally the statute clinical provide definitions a safe harbor. calls for the trial court to determine

Although variation permissible, it cannot whether the defendant is mentally retard go to the point of excluding a majority of ed no later days ten before the trial is than those who fit clinical definitions. to begin. § I.C. 35-36-9-5. The trial court is to order an evaluation of the de

6. The Finding as to Mental Retarda- fendant for the purpose of obtaining evi tion dence on the defendant's intellectual func Because the adaptive behavior tioning adaptive behavior and to hold applied standard by the trial court was too a hearing to determine the defendant's

111 sum, two chal -4. Pruitt raises § 35-36-9-3 I.C. retardation. mental juror First, that a who argues he lenges. for de procedure this that argues Pruitt al judge has that the suspects knows or mentally is a defendant whether termining mentally not the defendant ready found it because unconstitutional is retarded the evi fully consider may not retarded other constitutional several with "conflicts Sec retardation. to mental relevant Pruitt dence a defendant." afforded protections jury if the believes that ond, argues Pruitt decides judge the because that contends on men the final word judge has that the mentally retard is defendant the whether take seri retardation, jury may not death tal for the eligible not therefore ed and death recommending the its role ously that is aware juror who any penalty, Pruitt that argues The state un penalty. is mentally retarded of the execution and that at trial these issues to raise uneasy deci failed with the "is left constitutional also The state forfeited. therefore they are to de compelled they can be howof sion any that is no evidence that there contends die, to live or is if a defendant termine Pruitt con Atkins. aware of juror was defen to find the option given never is any agreed to dismiss state that the the de cedes Because mentally retarded." dant judge knowledge that had juror who penalty, death with the charged is fendant not men Pruitt was that determined that the had will infer juror Pruitt asserts pre about asked When tally retarded. the defen already determined has judge that he juror admitted one retarded, any publicity, trial dant is found had been that Pruitt heard that had suspects or knows juror who to stand trial" competent "mentally the de that already determined has judge that agree We was dismissed. juror that give will mentally retarded is not fendant at trial not raised were arguments these contrary evidence. any shrift short appeal. on not available therefore vio and are thus procedure that argues no evidence there is agree that also by weighing We Amendment Eighth lates Atkins, and aware of juror was any of mental finding against a the decision the inferences to draw no basis therefore retardation. State, 774 v. Bruno suggests. See juror alternatively that argues (Ind.2002). signifi More 883 N.E.2d the men the execution knows that who juror's famil if we assume cantly, even but is not is unconstitutional tally retarded are law, these contentions iarity is a defendant whether to decide asked inferences toas speculation on based conclude will mentally retarded juror draw, presuppose juror may decision, deter their will oversee judge no findWe instructions. not follow will mentally retarded that a defendant mine this record. on these claims substance Pruitt ar sentence. the death and vacate Missis v. Caldwell this violates gues that Challenges to Constitutional II. Other 328-29, 105 S.Ct. 472 sippi, U.S. Penalty Death Statute Indiana's (1985) ("On reaching the 86 L.Ed.2d Washington Blakely v. A. it is constitution merits, we conclude in light Pruitt next sentence a death to rest ally impermissible 542 U.S. Washington, Blakely by a sentencer made on a determination (2004), L.Ed.2d re that the to believe led has been who uncon section 35-50-2-9 Code Indiana appropri determining the sponsibility that a requires Blakely because stitutional rests else death defendant's ateness a reason beyond must find only jury not where."). able doubt the existence of an aggravating Blakely, the Court held "[olther than the factor, but beyond must also determine conviction, a fact of prior a any fact that reasonable doubt that aggravating the fac penalty increases the beyond for a crime tors outweigh any mitigating factors be prescribed statutory the maximum must fore a sentence of death imposed. can be jury, be submitted to a proved beyond State, 258, (Ind. Ritchie v. 809 N.E.2d 268 301, a reasonable doubt." 542 at 124 U.S. 2004), addressed Indiana law S.Ct. at (quoting 2536 this issue. Apprendi, 530 U.S. authorizes penalty the death if 490, 2348). one or at 120 S.Ct. A jury's determi more of "aggravating the cireumstances" nation of whether eligibility the factors 35-50-2-9(b) § listed in I.C. outweigh any mitigating factors is not a by is found a jury beyond a reasonable doubt. The finding of fact and it does not increase the Sixth Amendment right jury trial re penalty Ritchie, of the crime. 809 N.E.2d quires eligibility factors be admitted at 266. weighing The process fixes the by the defendant beyond or found a rea punishment within eligible the range es by sonable jury. doubt a Ring See by tablished the aggravating cireum- Arizona, 584, 602, 2428, 536 U.S. 122 S.Ct. by stances found jury. the affirm We our (2002); 153 L.Ed.2d Apprendi 556 v. New holding Ritchie that the Indiana death Jersey, 530 U.S. 120 S.Ct. penalty statute is constitutional. (2000).

147 L.Ed.2d 435 Under the B. Apprendi/Ring statute, exist, Indiana if eligibility factors then the defendant eligible," is "death Indiana law directs that when a is, jury may recommend penal the death petition defendant files a alleging that the (l)(1). ty. 35-50-2-9(e), § I.C. We held defendant a mentally is retarded individu in Ritchie that a statutory aggrava "Onee al, judge the is to rule on petition at a by tor is found jury beyond a reasonable hearing to be held not later than days ten doubt, the Sixth Amendment interpret before the initial trial date. Ind.Code Ring ed in Apprendi is satisfied." 809 (2004). § 35-36-9-5 N.E.2d at 268. We adhere to that view. the determination whether an individual is may

Death imposed be if jury mentally rec retarded is a sentence enhancing ommends it after weighing the aggravating factual determination. If this were accu and mitigating rate, scheme, cireumstances. See then I.C. Indiana's which directs 35-50-2-9(l)(2). the court to make § judgment, observed, this would As Ritchie the statute provide does not guidance as to violate the Sixth Amendment to the United what governs standard weighing States pro Constitution. Blakely, See 542 U.S. cess. We held in Ritchie that 2537; because S.Ct. at Ring, 536 U.S. at 2428; weighing process Apprendi, 530 U.S. at does not increase eligibil ity, a jury is required 482-83, beyond to find S.Ct. 2348.

reasonable doubt that the eligibility factors We find no point case on as to claim outweigh the mitigating factors. reject but premised it as on a misunder- N.E.2d at 265. Rather we concluded that standing of how the Indiana statute works. weighing process is not a fact finding The absence of mental retardation is not exercise, but is "an judgment exercise in eligibility factor for capital punishment. that is not capable of beyond evaluation a Until the defendant raises and proves the reasonable doubt." Id. at 268. issue of retardation, mental it is assumed Supreme Court's holding in Blakely that the defendant is not retard- does not alter holding our Hence, Ritchie. ed. a pretrial determination section 35-50- Indiana Code appropriate, men- a defendant of whether court maxi- (2004) recom potential 2-9(e) jury shall reduces states: "the tally retarded it. appropriate penal not enhance does court" the to the mend punishment rum jury reaches not in any, "[If Therefore, if Amendment ty, the Sixth determina- pretrial regard to recommendation, play with court sentencing sen- in death retardation mental tion of accordingly." defendant the shall sentence cases. tence pro that the statute contends Pruitt first a sen jury "recommends" the vides that Post Facto Ex C. actually making the tence, is the court but 21, 2008, Pruitt was sen- November On Pruitt contends sentencing determination. mur- to a consequence as to death tenced argument That by Ring. prohibited this is 2002, the In in 2001. place that took der the current force before have had may Indiana's Assembly amended General 2002 amendment of the law. version statute, as the and Penalty Statute Death 9(e) independent the removed to section when as- 2002, was followed amended by the sentencing determination judicial At Pruitt penalty death sessing the as retaining "recommends" Despite court. committed, offense was the the time function, the jury's description imposition the governing statute Indiana's jury decides that the now dictates statute penalty the death and parole of life without sentence, jury is unable only if the and the make a sen- jury would the that provided recommendation, trial is the to reach trial recommendation, that the tencing the sentence. to decide authorized judge for responsibility the assigned court was ("Under the Stroud, at N.E.2d 287 809 it was not and sentence determining the only one sentenc ... there is statute new Ind. jury's recommendation. by the bound by the determination, is made which ing 26, (2001). March On § 35-50-2-9 Code jury's the apply judge the must jury, and the statute amended 2002, legislature the determination."). 30, after June sentenced a defendant "[{lor jury reaches "If the

2002," declared: and that the "ree- contends Pruitt next recommendation, court the sentencing jury the leads language accordingly." ommendation" the defendant sentence shall rests 35-50-2-9(e). final determination the that § believe Ind.Code Mississippi, In v. Caldwell elsewhere. application contends Pruitt 2633, 328-29, 86 320, 105 S.Ct. 472 U.S. Arti statute violates penalty the amended (1985), Court Supreme the 231 L.Ed.2d the Unit I, § 10 of the Constitution cle constitutionally impermissi "it is held "No part: States, provides which ed on a determi a death sentence to rest ble post ... ex any ... pass shall State facto has been who by a sentencer made nation Helsley v. given reasons For the Law." for responsibility the led to believe (Ind.2004), State, 300-01 N.E.2d 809 of the de appropriateness determining the Accord Stroud contention. reject this ...." elsewhere death rests fendant's (Ind.2004); State, N.E.2d v. jurors Caldwell, urged prosecutor (Ind. State, N.E.2d Ritchie pre "taking only view themselves 2004). determi actual liminary step towards Under Jury "Recommendation" D. death-a appropriateness nation of Amendments Eighth Sixth eventually be would which determination jury was for which by others made a sen jury determines If the 336, 105 S.Ct. Id. responsible." parole or life without death tence of 2633. The Court stated can easily "one rights of his constitutional under imagine that in a jury case which the Arizona, Miranda v. 384 U.S. 86 S.Ct. sentence, on the proper divided pres (1966). 1602, 16 L.Ed.2d 694 Lang asked appellate ence of review effectively could if he understood rights these argument be used as an why those Pruitt responded, "yeah." Pruitt then con jurors who are reluctant to invoke the shooting fessed to Officer Starnes. death sentence give should nevertheless suppress confession, moved to his in." Id. at 105 S.Ct. 2633. Pruitt contending that his statement was involun- argues that even if jury does make the tary injuries because of his and the subse- determination, sentencing language quent surgeries and medications. He also penalty death jury statute misleads the contends his statement given was without to believe that it is not the ultimate deci knowing a waiver of his rights. Miranda sion maker. Although the statute retained Both claims were raised under both the "recommends" from the earlier pre-Ring federal and Indiana constitutions. The tri- version, at Pruitt's trial parties neither the al court denied the motion and a redacted nor the court used the word "recommend" tape-recorded version of the confession in argument Thus, or in instructions.4 played jury. was to the there is no evidence that the court or prosecutor jury. misled the To the con If a challenges defendant trary, jury was instructed: "Your ver voluntariness of a confession under dict determines Tommy whether R. Pruitt Constitution, United States the state must will death, receive a sentence of life with prove the voluntarily statement was given parole, out or a years. term of Judge by a preponderance of the evidence. Colo Tommy must sentence R. according Connelly, 157, 167-69, rado v. 479 U.S. 107 your verdict." The instructions to the 515, (1986) (volun- S.Ct. 93 L.Ed.2d 473 jury adequately jury informed the of the importance of their role. We find no con tariness of waiver of rights); Miranda Lego Twomey, 477, 488-89, v. 404 stitutional violation. U.S. 92 619, (1972) (volun- 30 L.Ed.2d 618 III. Suppress Motion to confession). Thus, of a tariness a federal given painkillers was constitutional the inten claim that a confession was voluntarily not given governed sive care unit by pre at Wishard Health Services ponderance because he required surgery as a result of evidence standard. eight shots he received exchange State, Henry v. 738 N.E.2d 664 n. 1 Deputy following Starnes.5 The (Ind.2000). However, the Indiana Consti a.m., morning, at 3:15 Pruitt gave tape- requires tution the state to prove "beyond recorded confession to Officer Rick Lang. reasonable doubt that the defendant vol Lang began by the interview informing untarily waived rights, his and that the de 4. Pruitt also contends that the court's During surgery, instruc- thirly Pruitt received milli- tion "rewrote" omitting the statute grams of milligrams ketamine and ten of mor- term suggests "recommendation." He phine. He received twenty another milli- IV, judicial effort violated Article Section grams morphine p.m. between 6:10 (''The the Indiana Legislative Constitution au- a.m., p.m. 8:30 p.m. Between 10:00 and 9:00 thority of the State shall be vested in the Pruitt received forty milligrams an additional .") Assembly General ... in an effort to avoid morphine. infirmity. constitutional We think the in- statute, struction was consistent with the accordingly find no merit in this claim.

115 Id.; voluntary. a statement was voluntarily giv whether was confession fendant's State, N.E.2d 1031 v. State, George N.E.2d v. en." Miller (Ind.Ct.App.1979). State, (Ind.2002) v. (quoting Schmitt (Ind.2000)). 147, 148 N.E.2d trial contends that admitting when his confession court erred Voluntary Statement A. and his medi capacities his mental despite a claim that evaluating was elicit state when the confession cated voluntarily, the given was statement in specific show ed. A defendant must totality of the consider the court is to trial have impaired his abilities stances where ele circumstances, including: "the crucial in order for a on voluntariness an effect coercion, length police ment of a claim that his prevail on defendant location, continuity, its its interrogation, him from prevented condition mental education, physi maturity, defendant's rights. his Miranda knowingly waiving (ci condition, Id. mental health." State, 1146, 1154 cal 735 N.E.2d Jackson v. State, omitted); see also Scalissi State, tations (Ind.2000); 698 N.E.2d Rhodes v. (Ind.2001) (consider 618, 625 N.E.2d (Ind.1998). However, per our 308-09 alcohol, drugs, and ing influences such capacities of Pruitt's mental discussion voluntariness). appeal, On fatigue Pruitt is opinion, II and III of this Parts but instead reweigh the evidence do not was not argue to that his statement left substantial, proba the record for "examine voluntarily because his confession given Schmitt, he underwent sur of voluntariness." soon after tive evidence was elicited examine the evi at 148. We 730 N.E.2d he injuries and while was for serious gery state, together to the dence most favorable medication. pain influence of under the that can be inferences with the reasonable he claims a defendant When State, 426 Richey v. therefrom. drawn at the drugs under the influence was (Ind.1981). If is 389, there 392 N.E.2d statement, degree of "the time he made trial support the evidence to substantial impor critical is of impairment his mental conclusion, set aside. it will not be court's State, 511 N.E.2d v. tance." Whitehead Id. (Ind.1987). 284, In the context 293 drunkenness, that it has stated Court of a statement If voluntariness is so intoxicated only an accused is when that the defen challenged on the basis saying what he is he is unaware of drugs, the influence of was under the dant inadmissible. will be that his confession to introduce evi the burden defendant has 53, State, 56 N.E.2d v. 489 See Williams it could be concluded from which dence drug (Ind.1986). degree the nature of of a lesser the amount and Intoxication the given to be only weight to the involuntary goes an produce would consumed admissibility. Id. State, 251, and not to its Ind. statement 261 Layton v. statement. 1382, State, (1973). N.E.2d 1385 v. 646 633, The In Brewer 253-54, 635 N.E.2d 301 (Ind.1995), though this Court held by the is made fact a statement mere influence of under defendant was the influence of under defendant while facts mentally ill these ill, severely drugs and that the defendant drugs, or totality under were insufficient per se. it inadmissible does not render the exclusion 1382, require State, cireumstances N.E.2d 1385 v. 646 Brewer Similarly, in Petti defendant's statement. Intoxication, (Ind.1995). use and drug (Ind. 925, State, 928 619 N.E.2d v. factors to be con only are mental illness ford determining 1993), though a defen trier of fact held that sidered this Court dant's mental condition was relevant to the B. Waiver Rights Miranda coercion, issue of susceptibility to police Pruitt also contends that his waiv since the defendant made the confession right er of his to counsel and to remain coercion, police without the confession was silent not knowingly was and intelligently not rendered involuntary by virtue isolated, made because he injured, was fact that defendant was under some men immobilized intensive care while under tal delusions at the time of the confession. drugs. Zerbst, the effects of In Johnson v. However, in Brewer and 458, 464, 1019, the de 304 U.S. 58 S.Ct. 82 L.Ed. Pettiford fendants present did not evidence that (1938), Supreme Court held that would the waiver of the they right show that were under the influ counsel must an demonstrate "intentional relinguish ence of drugs they when gave their ment or abandonment of a known right." confession. I, Article Section of the Indiana Consti case, In this Dr. Arnold testified that tution affords greater Indiana's citizens giving confession, when his inwas protection than its federal counterpart. pain extreme cognizant or compe- State, (Ind. Ajabu v. 693 N.E.2d tent. drugs being regulate used to 1998). Depending cireumstances, on the pain Pruitt's can "disagreeable cause counsel, right Section 18 unlike the dreams," "hallucinations," "delirium," Amendment, Sixth prior attaches to the "drowsiness, changes in mood and mental filing charges of formal against the ac clouding." Dr. Arnold also testified that Id.; State, cused. Suter v. 227 Ind. appear individual can normal un- while (1949); N.E.2d Taylor see also der the influence of drugs. these The State, (Ind.1997). 689 N.E.2d 703-04 effects of drugs given to Pruitt can last Arizona, In Mincey v. 437 U.S. from four However, to six hours. after 385, 396-402, 98 S.Ct. 57 L.Ed.2d 290 reviewing Pruitt's medical records and lis- (1978) the Court held that the defendant's statement, tening to the Dr. Furbe testi- confession involuntary was when the de fied that Pruitt was cognizant at the time subject fendant was to a four-hour interro of the interview. gation incapacitated while and sedated in an intensive care unit despite the defen State, In Smith v. this Court ree- repeated dant's requests for lawyer. a ognized that a defendant's mental state is Pruitt that his confession was simi not enough to render confession inadmis larly involuntary since he too was incapaci sible the absence of police coercive ac tated and sedated in an intensive care unit. tivity. (Ind. 689 N.E.2d 1246 n. 11 However, Mincey, unlike Pruitt never re 1997) (citing Connelly, 165-66, 479 U.S. at quested counsel. In the absence of cir 515). 107 S.Ct. Viewing the evidence most here, cumstances not present a request is state, favorable to the we determine that required trigger the Indiana constitu pain Pruitt's medication did not substan right tional preclude counsel and further tially undermine ability his to waive his questioning of suspect the in custody. rights provide and police the with a state Ajabu, 4; 693 N.E.2d at n. but see ment. threats, There was no proof of State, Malinski v. 794 N.E.2d violence, promises, or improper use of in (Ind.2003) (recognizing right to counsel fluence. The trial court did not err when when an attorney by hired the defendant's determining that the state satisfied its bur family present jail, was at the even though den to show voluntariness. the defendant did not specifically request Dr. expert, by the state's explanation an no case, was there In this attorney). an the loca- injuries, and Pless, of Starnes's for counsel. request gunshot the wounds. tions of by case, being told after In this apart that state asserts The alert, and awake Pruitt was nurse the testimony, the Dr. Pless's illustrating from speak if he could nurse the asked Lang supple a visual provided also photograph if Pruitt nurse asked Pruitt. who testimony of the doctors to the ment him and speak with Lang could as hospital.6 We in the treated Starnes his of informed Pruitt was acquiesced. disturbing to was photograph the sume he indicated and he rights, Miranda de Generally photographs jurors.7 some time sur During the them. understood demonstrat a victim or injuries of picting interview, the nurse taped rounding relevant witness are testimony of a ing oriented, alert, and as described State, N.E.2d Allen v. and admissible. The nurse responses. appropriate giving and (Ind.1997); R. 401 Ind. Evid. 760, 776 of effect any significant not observe did relevant, evi However, "[allthough After mental status. on his the medication probative if its be excluded may dence record, find substantial reviewing by the substantially outweighed is value court's the trial of support evidence ... or needless prejudice, of unfair danger intelli and knowingly ruling evidence." of cumulative presentation rights. his waived gently of error a claim appeal, R. 403. On Evid. of evidence or exclusion admission in the Photograph Admissibility of IV. right a substantial "unless prevail will 103(a). of photograph court admitted R. The trial Evid. affected." party autopsy depicting rights an before substantial appellant's taken Starnes Whether examining "the dullness determined surgical wound are affected contents," upon evidence of that impact the abdominal "probable over fatty pad State, N.E.2d gunshot jury." from both Corbett resulted (Ind.2002). balance It also Because manipulation. surgical wounds evi body value probative swelling prejudice the extreme showed discretion the sound kid- falls within dence Starnes's impairment a result the ad court, reviews this Court trial sepsis. neys due only evidence photographic of mission argu- photograph, the objected State, 685 Ealy v. of discretion. abuse the of passions the arouse it would ing that (Ind.1997). 1047, 1049-50 N.E.2d outweigh the would prejudice this jury and grue that concedes The photograph. the value of probative if it is permitted photograph jury for some the was exhibited photograph purports it of what representation accurate in the course 1.5 minutes approximately significant "any not notice he did that testimony stated from jury detailed heard 6. The argues that jurors." Pruitt from the anatomy and the sur- regarding reaction doctors three did not Pless's tes- the courtroom arrangement Dr. Starnes. geries performed on the large of the incision the the reactions timony judge clear to view made allow the done was one photograph that his the to find depicted urges Court this jurors. He vantage point to ob- surgeons. attorneys a better the had © judge. We from the furthest jurors the serve lawyers for stated showing, Pruitt's its 7. After for accounts accuracy of their assume aof reactions their accounts record opinion. purposes of this tears, look- included jurors, which few of judge away, distress. ing and and down 118

to represent. State, McNary v. 460 commutation sentence, reduces the for ex- (Ind.1984). N.E.2d 148 However, au ample by changing a death sentence to one topsy photographs have been held inad parole life without or for a term of missible because the jury could infer that imprisonment. A reprieve is a temporary the defendant is responsible cuts, "for the postponement of the execution of a sen- incisions, indignity of an autopsy." tence. The Indiana Constitution leaves it Allen, 686 N.E.2d at 776 (quoting Loy v. entirely up to the discretion of the Gover- State, (Ind.1982)). N.E.2d nor when and how to use power." that the pre-autopsy photo Ramos, 463 U.S. California graph is similar to an autopsy photograph 103 S.Ct. (1983), L.Ed.2d 1171 because it shows body Starnes's bloated Supreme Court discussed the constitution pounds of extra fluid and a large ality of statutory California's requirement incision that exposes organs. internal that capital sentencing juries be instructed Pruitt contends that prejudicial effect that the Governor could commute a sen lingered through both guilt penal tence imprisonment of life without possibil ty phases of the trial. After reviewing the ity parole, resulting in a lesser sentence photograph and the evidence surrounding included the possibility parole. admission, its we conclude that the trial The Court recognized the instruction given court was within its discretion in deciding in Ramos was both accurate and relevant the photograph's probative value in to a legitimate state penological interest, showing the several day process of the specifically a concern for the future dan disease from the time injury to the time gerousness of the defendant should he of death was not outweighed by a tendency ever return to society. 1001-06, Id. at to inflame or prejudice the jury. S.Ct. 3446. The Court noted "California reasonably could have Jury that, concluded

V. Instruction on Executive jurors while are generally aware of Clemency Powers power Governor's to commute a death sen Indiana 35-50-2-9(d) Code section tence ... jurors most would not be aware (2004) requires the trial court to instruct the Governor also may commute a jury before the sentencing on "the sentence of imprisonment life pos without statutory penalties for murder any sibility parole and that they should be other offenses for which the defendant was so informed to any avoid possible miscon convicted, potential for consecutive or ception conveyed by the description of the concurrent sentencing, and the availability sentencing alternative." Id. at 1003 n. good time credit and clemency." Pruitt 103 S.Ct. 3446. argues that the trial court's instruction in this case violated Eighth Ramos Amendment establishes that a court can con to the United States stitutionally Constitution inform jury and Arti of the possibility 1, that cle Section 16 of the clemency may affect a sentence of life Indiana Constitu tion diminishing jurors' the without parole, sense of and the Indiana statute responsibility for their verdict. jury The directs may this be done. Pruitt argues was instructed: "The Governor of that it Indiana does not follow that a trial judge has power, the under the Indiana can Constitu tell jury the about clemency in death tion, grant to a reprieve, commutation, penalty or because, sentences contends, he pardon to a person convicted and sen jury the already knows of the Governor's tenced for murder. A pardon completely power to commute the death sentence. eliminates a conviction and sentence. A Ramos also explicitly addressed point,

119 (O'Connor, J., concurring). Here (1994) constitutional no "federal holding there argu Pruitt's inaccuracy and nowas concern there an instruction in infirmity giving a commute to that reason. power fails for ment the Governor's ing" 27, 103 n. at 1012 Id. sentence. death Excluded Witness VI. 3446. hospital the attorney contacted Pruitt's 320, 472 U.S. Mississippi, v. In Caldwell records, but medical to obtain Starnes's 231 2633, L.Ed.2d 86 328-29, 105 S.Ct. documents, the medical all not receive did its affirmed Court (1985), Supreme the a hole about information including the Ramos, that held holding any day last until the esophagus, Starnes' the when violated was Amendment Eighth could claim malpractice medical possible decision that its to believe was led

jury treatment. Starnes's brought for be ultimate in the step only preliminary a was conten rebut the state's sought to the of because or death of life decision it everything did hospital that the tion Unlike review. appellate availability of The trial life.8 to save Starnes's could commut of the Governor's possibility the in limine motion state's granted the court availability of sentence, the murder ing a tes attorney from hospital's exclude to argu any linked "is not review appellate the trial. phase of guilt tifying consideration." sentencing valid ably and Sixth that his federal 336, 2633. 105 S.Ct. Caldwell, at 472 U.S. Amendment, Arti Indiana and Fourteenth to be review appellate found The Court 19, a defense present I, right Section cle such jury to return for "no valid basis the law jury determine have the not," and might it if otherwise sentence was violated. facts wholly in itself is factor "simply a attorney's Pruitt contends ap of the determination to the irrelevant "cover-up" possible testimony regarding In 0'Con- Id. Justice sentence." propriate him to find jury have allowed may Caldwell, she opinion concurring nor's of battery instead aggravated guilty the statement in her view emphasized the bias revealed murder, have and would inaceu- because unconstitutional was their testimony about doctors' the three closing statements prosecutor's racy of the rooted "Whether of Starnes. treatment appellate possibility to the respect Process Clause Due directly in the 342, 2633 105 S.Ct. id. See review. Amendment, Compul or in Fourteenth imper were ("[The remarks prosecutor's clauses or Confrontation Process sory inaccurate they were because missible Con Amendment, [Federal] the Sixth diminished manner that in a misleading 'a criminal defendants guarantees stitution Cald responsibility"). jury's sense a com present opportunity meaningful Federal Con that the suggest well did 476 Kentucky, v. Crane plete defense"" of accurate giving prohibits stitution 2142, L.Ed.2d 90 683, 690, 106 S.Ct. U.S. post-sentencing regarding instructions State, 784 Oklahoma, (1986). v. Kubsch Romano procedures. (Ind.2003), recog 905, 923-24 1 N.E.2d L.Ed.2d 1, 15, 114 S.Ct. U.S. the documents hospital sent The tors. penal- attorney at the testified hospital's day the medical before July one on request phase she received ty con- State run. The claim had malpractice backup all reports and a search operative new contain pages print- did not pages were that the May tends data. On information, simply the electronic ed, records were the medical but until were held back-up on for information been checked had information. previous version of party contrac- by third platters maintained nized that a criminal defendant has con Pruitt argues that requiring stitutional guarantee to have a his "meaningful opportunity to speak to jury to take opportunity to present place at the close of complete de his case in penalty phase fense." allowed There was no claim the state an opportunity Starnes's to rebut his treatment claims and sequence constituted an thwart intervening purpose ed the statutory cause. right The medical records to were available allocution. The purpose of right to Pruitt. to only His complaint is to the allocution is to give the sentencer op circumstances of apparent delay in portunity to consider facts and cireum- providing them.

stances relevant to the sentencing of the State, defendant. Ross v. is, "Relevant evidence N.E.2d 'evi " (Ind.1996). dence having any tendency to make the We have noted that 'the persuasive most may counsel not be any existence of fact able of consequence to speak for a defendant as the defendant to the determination of the action more might, with halting eloquence, speak for probable or probable less than it would be himself." Id. at 343-44 (quoting Green v. without the evidence'" Id. at (quot States, United U.S. 401). 81 S.Ct. ing Evid. R. "If the evidence is (1961)). 5 L.Ed.2d 670 The goal of help prove offered to a proposition that is allocution is accomplished when the defen issue, not a matter the evidence is im dant has an opportunity to explain his view material." 1 McCormick on Evidence of the facts and cireumstances. Id. at 343. (John § at 637 Strong ed., W. 5th ed.1999). Pruitt did not claim that The timing of the opportunity for ineffectiveness of the doctor's care consti a defendant to speak on his or her own tuted an intervening cause precluding his behalf question is a that this Court has not criminal liability for murder. We explicitly conclude addressed. points out the attorney's testimony was immaterial as that in a non-death case it is customary for guilt, and thus the trial court did not err allocution colloquy to occur immediate in granting ly the state's motion pronouncement before the limine to of the sen exclude this testimony in tence after the guilt phase. presentation of evidence

has concluded. Pruitt argues that his case mitigation was focused on his mental Right VII. to Allocution retardation, illness, mental and brain func next that the trial court tion, and the ability state's to speak to erred when it required him to exercise his those factors after Pruitt diminished his right to allocution before the state's clos- allocution right. The trial court has wide ing argument instead of allowing him to discretion as to the order of proceedings speak jury to the at the close of all of the subject specific rule or statute. The evidence. Indiana Code section 35-38-1-5 statute does not make clear when right provides in relevant part that the defen- to allocution is to be exercised. Pruitt had may dant "make a statement personally in an opportunity speak on his own behalf the defendant's and, own behalf before defense, conclusion of his and his sentence, pronouncing the court shall ask statutory right preserved. was We find no the defendant whether the defendant reversible error. wishes to make such a statement. Sen- Appropriateness VIII. of Sentence

tence shall then be pronounced, unless a sufficient alleged cause is appears or to the Although a trial court may have delay court for in sentencing." acted within its lawful discretion in deter

121 schizophrenia of diagnosis a that cluded 4, VII, Section sentence, Article mining Rather, Pruitt. for inappropriate in was "authorizes Indiana Constitution of the schizotyp- or from schizoid of suffered and revision review appellate dependent the defen- Unlike disorder. personality court." al the trial imposed a sentence 967, State, State, 972 dant N.E.2d 655 820 767 N.E.2d in v. v. Corcoran Buchanan nor (Ind.2005), conceded it is neither is im authority (Ind.2002). appellate This 7(B), from a mental Pruitt suffers that proved Rule Appellate through plemented in an officer and killed Pruitt shot revision of illness. for 2002 called which before certainly among This is duty. of "manifestly unrea the line if was only it sentence warranting that this cireumstances provides now The rule the most severe sonable." penalty. the death authorized a sentence may revise "Court if, consideration after due by statute a tri Sentencing principally is decision, finds that the Court trial court's considering After court matter. al light in inappropriate the sentence who as an individual character Pruitt's character offense and of the nature as an adult adapt and to function was able the offender." comprehend to society and able in this Court that argues actions, reject his of his wrongfulness of his because sentence reduce his should inappropriate that death is contention first capabilities. limited mental Justice's share the Chief We penalty. frontal lobe damage to the contends give intended legislature that the view func higher controls which his brain trial court in the the final word jury control, impulse solving, problem tions for pen death under Indiana's sentencing on necessary of information processing that this agree not We do alty statute. decisions, plan adaptive good make appel power constitutional affects the be borderline him to at least ning cause sentences. review and revise courts to late Thus, argues that he mentally retarded. in added provision was That constitutional stringent the more may not meet he while for concerns to the same response in 1970 contem retardation for mental standards gave rise sentencing practices uneven DSM-IV, this AAMR by the plated See Sentencing Guidelines. the Federal enough. close him to be find (Ind. should Court State, N.E.2d Saylor v. not Part I we do reasons stated For the 2004) ("Indiana preference expressed inappropri to be of death penalty find the review appellate British tactic function intellectual of his person ate for much sentences, pursue and did ing. sentencing on restrictions more severe courts federal on imposed a discretion from that he suffers

Pruitt next his nation's in our time roughly the same penalty that the death illness mental Sentencing Guide Federal tory by the his condi- for someone inappropriate State, N.E.2d lines"); v. Serino Pruitt was after couple of weeks A tion. (Ind.2003). of the ex purpose of Cor- Department an Indiana arrested sen and revise" authority to "review press as him diagnosed psychologist rections justice is done "ensure was to tences However, own ex- Pruitt's schizophrenic. unity provide and to courts diag- [Indiana] Golden, that this explained Dr. pert, application judicial and coherence believed psychologist nosis means State, 266 Ind. schizophrenic Pinker Pruitt was laws." one time that at (1977). vari Wide N.E.2d not 364 he was diagnosis time of at the are at least results sentencing ances con- Dr. Golden actively schizophrenic. likely to occur in jury sentencing event, as In any I write largely speak sentencing by trial judges. The factual about Part VIII on "Appropriateness of predicates of a sentence-the eligibility Sentence." While I think this Court has for death or life parole-are without re right been regard VII, 4, Article Section served to jury by the the Sixth Amend calling upon us to exercise judg- some Arizona, ment. Ring v. 584, 589, ment about the 536 U.S. imposed sentences by trial 2428, (2002). S.Ct. 153 LEd.2d 556 judges, I do not consider it as license to But the appropriate sentence, like the set aside jury grounds decisions on of ap- weighing function, is not a fact constitu propriateness alone. That is the sole claim tionally required to be committed to the presented in Argument XIII of Pruitt's jury's determination. See United States v. brief. judges When were the actual sen- Booker, 220, -, 543 U.S. 738, 125 S.Ct. tencers under scheme, Indiana's former I (2005) ("We 160 L.Ed.2d 621 have voted multiple times to review the sen- never doubted authority judge to tence imposed by the trial judge. Now, I exercise broad discretion in imposing a would simply say, legislature has sentence within statutory range."). Ac placed question of appropriateness in cordingly, we think appellate review a juries. the hands of sentence imposed by a jury is appropriate. DICKSON, Justice, concurring in result.

Conclusion judgment of the trial I(B)(5), court As to subpart is af- I believe firmed. standard for adaptive behavior should not be linked to the current clinical standards

SULLIVAN, J., concurs. as set forth in the Psychiatric American SHEPARD, C.J., Diagnostic concurs in result with Statistical Association's separate Disorders, Manual opinion. Mental commonly DSM-IV, referred to as and that Indiana's DICKSON, J., coneurs in result with standard adaptive for pursuant behavior separate opinion, in SHEPARD, which § Indiana Code 35-36-9-2 is not necessar C.J., joins. ily invalid even if may it be at variance RUCKER, J., dissents with separate with the Association's currently prevailing opinion. views expressed in their latest DSM-IV standards. SHEPARD, Justice, Chief concurring in

result. respect VIII, With to Part regarding the join

I Justice Dickson's views on Part Court's power constitutional "to review B5 of the plurality opinion. It seems odd and revise the sentence imposed" under the least to hold that Supreme Indiana 4,§ Constitution Art. the text Court's declaration that "we leave to the provision grants only permissive States the task of developing appropriate power, not duty, to review and revise ways to prohibition enforce" the on execut- sentences, criminal and it does not specify ing retarded, Atkins, U.S. at any grounds basis or By rule, review. constituted a command this Court implemented has provision states are constitutionally bound to defini- using standards, two both requiring re- adopted tions by professional groups that straint and considerable deference to the do not themselves use the same definition imposed sentences at the trial court level. of retardation. From 1978 to our rule restrictively re- restraint and appellate need for will reviewing court "[the declared at trial. imposed for the sentence spect by statute authorized a sentence not revise rule, I that the believe manifestly present Under our is sentence such except where deci- the trial court's of of the "due consideration the nature light of unreasonable 7(B) should re- by Rule required the offender." sion" of the character offense to revision of sentences appellate strain 17(B)(1) Ap- Rule Appellate Former rare, cases. exceptional only Rule 2. This of Sentences Review pellate by declar- review limited such further rule SHEPARD, C.J., joins. manifestly not is sentence

ing "[a] person no reasonable unless unreasonable Justice, RUCKER, dissenting. appropriate sentence find such could met his I Pruitt has Because believe which for and offender offense particular demonstrating by preponder- of burden Effective Id. imposed." was sentence such mentally that he is the evidence ance of 2003, grounds we modified January retarded, his death sen- I would reverse it permit revision sentence for appellate with instruc- this cause tence and remand a trial court's of "if, consideration after due of a term of a sentence impose tions to decision, the sentence court finds dissent. respectfully I therefore years. | nature of of the light inappropriate is the of- of the character re- offense and considered In order to be "signif- 7(B). Thus, tarded, must demonstrate for person R. Ind.App. fender." our constitu- applied functioning" twenty-five years, we intellectual icantly subaverage on the basis power adaptive impairment revision of tional sentence and "substantial only unreasonableness, for § 85-836-9-2. manifest Indiana Code behavior." we chosen mani- years have have been two must past Importantly, both upon appropri- twenty- based power person became exercise fested before of birth Pruitt's date years age. Id. two ateness. App. at 285. Appellant's March is majority opinion with the agree I preponder- Thus, must show revi- of sentence power our constitutional sig- manifestation evidence ance of the a sentence whether regardless sion exists function- intellectual nificantly subaverage I jury, or by judge determined is adaptive impairment ing and substantial ap- the standard that whether caution 4, 1984. to March prior behavior standard some other or propriateness Subaverage Intellectual Significantly mandate. of constitutional a matter Functioning obstacle to constitutional is no There leave we should view that Chief Justice's commonly functioning is Intellectual jury to the appropriateness evaluation Intelli- through standardized measured sentencing new legislature's under Rogers v. (IQ) tests. Quotient genee scheme. (Ind.1998). State, 698 N.E.2d subaverage intellectual "'Gignificantly and former the current both Under IQ of 70 means functioning' generally any standard, have understood of five below, margin of error awith or to considerations be limited must revision at 1178 Id. in either direction." points and the offender the character Association, Psychiatric American (citing offense committed. particular nature of Manual and Statistical Diagnostic to con- or refers requires Neither standard 1994) (4th ed. offenders of other Disorders of sentences Mental sideration that he ("DSM-IV"). emphasize To demonstrate offenses, standards and both or significantly manifested subaverage adjusted intel age. for his See Tr. at 1557-58 lectual functioning, (If Pruitt presented adjusted to the age, Pruitt's scores indi- trial court results IQ from various tests IQ cate he has an range from 68 to 68). and achievement tests administered to him

prior to March 1984. For example Finally, in December of age 1981 at Pruitt was administered two Lorge-Thorn- Pruitt was administered the Revised Beta group IQ dike tests. He scored a verbal intelligence test and scored a 98. Tr. at IQ of 64 and a IQ non-verbal of 65 on the 620. Apparently there is disagree some (at first test administered in March of 1978 ment regarding reliability the of this test. years eleven age), of and scored a verbal Originally designed during World IWar to IQ of 64 and IQ a non-verbal of 68 on the screen recruits and later used in some second test administered in December of prison forensic settings, 620, see Tr. at (at years fourteen age). of See Br. of 1229, 1537-38, the Revised Beta was char Appellant 25; at Tr. at 619. by acterized Dr. Hudson, Brian a clinical (at

In March 1975 neuropsychologist years defense, retained by the thirteen of age) Pruitt was administered the Otis-Lennon as "not a utilized test within the communi Ability School Test and scored Br. ty, 81. of generally speaking." Tr. at 1280. Dr. Appellant 25; at Tr. at 620. Although at Golden testified that the Revised Beta is expert least one believed that test, score was "not an accurate it regard is not well inconsistent with Pruitt's claim that field, he is ined and is not well accepted in mentally retarded, (State's general field as a see Tr. at 620 test intelligence." of expert, lawyer and practicing psychologist, Tr. at By contrast, 1541. Dr. Schmedlen Dr. George Schmedlen), Dr. Charles Gold- testified he believes the Revised Beta Test en, a professor of psychology by retained is reliable. However, Tr. at 660. he ac defense, testified that the Otis-Lennon knowledged on cross-examination that he likely score overestimates Pruitt's actual did not review the test measurements to IQ by 15 to points because that test is determine whether the Revised Beta was an achievement test gauging person's in fact reliable. Tr. at 672. learning of subjects school compared as Both the State and Pruitt presented to with other students grade. same the trial court the results of a of number 1518, Ir. at 1546. Because he had been IQ tests that were administered after held back two grades school, Pruitt reached twenty-two years of age. contends that his scores, achievement test See, e.g., Wechsler Adult Intelligence Scale compared

when to other persons of the administered in April 2002, of Tr. at 612- age, same IQ indicate an consistent with 13; IQ Stanford-Binet test administered the results of Lorge-Thorndike group in February 622-28; of Tr. at IQ Reply tests. 17; Br. of Appellant at see the Wechsler Adult Intelligence Scale ad- also Tr. at 1555-58. ministered in July of Tr. at 609.

In April of 1975 Pruitt was tests, administered Those on which the trial court relied Test, the Towa Basic test, achievement in part to conclude Pruitt was not mentally which produced results similar to retarded, the re- suggest that Pruitt may have a sults of the Otis-Lennon test. Tr. at 620- higher level intellectual functioning than 21, 1556. Dr. Golden testified that indicated the results of tests adminis- achievement test results would have been tered before he age twenty-two. reached nearly identical to the results of the However the relevant period time in this Lorge-Thorndike had Pruitt's scores been case is from March 1962 to March although majority agree I testified, "IQ is Hudson Dr. As 1984. clinical particular adopt does not Indiana in childhood diagnosed to be meant clinical functioning, adaptive definition diagnosed to be meant It's not reason. guidance some may provide definitions on his back looked then adulthood useful of information type to the diagnosis if that determine childhood adaptive impairment determination Tr. at accurate." Op. at 108-09 under our statute. behavior Beta Revised exception theWith State, 711 N.E.2d Rondon (citing unreliable, the to be appears test, which (Ind.1999); 698 N.E.2d Rogers, n. admin- four tests remaining results defini- 1178). clinical useful One such youth-two his during DSM-IV, istered defines which in the is found tion indicating IQ tests Lorge-Thorndike functioning as adaptive impairment IQ mentally-retarded in the fell two of in at least limitations existence tests achievement self-care, "communication, two academic range, areas: ten indicated age Pruitt's adjusted for skills, if use social/interpersonal living, home IQ mentally-retarded self-direction, resources, in the fell community Pruitt of signif- leisure, skills, work, Pruitt manifested that academic range-show functional functioning Rondon, 711 N.E.2d intellectual subaverage safety." and icant health my In twenty-two. age 14. reaching n. to at 516 prior proof of his burden has carried

view us demonstrates before The record preponderance a by at least point on this Pruitt exhibited twenty-two age before the evidence. of limitations. functioning adaptive several communication, instance, in terms of For Impairment of Substantial di- to follow inability displayed Adaptive Behavior baseball, had he playing "When rections: a how well to refers behavior Adaptive every time.... way to run told which to be life demands everyday deals person once, [it's] the bases you've learned [Olncee edu with similar people to other compared you If have ... standard. much the pretty Rogers, backgrounds. and social cational suggests constantly, that be told to intellectual But like at 1178. N.E.2d under- ability to your in have deficit you mani also must this behavior Tr. at functioning you." being told what's stand twen ("[Pruitt] reaches person did itself before 5538; fest Tr. at also see its of support difficulty In func- age. of years of ty-two amount an extreme have "sub his not manifest expressing Pruitt did finding speaking tionally behavior," difficulty as needs."). adaptive had Pruitt also impairment stantial involved 35-36-9-2, court concepts the trial understanding § Ind.Code child see game of functioning playing and Pruitt's basketball upon playing primarily relied In terms at 5538-39. obtaining a commercial Tr. Monopoly. his carpenter, aas peers would skills, Pruitt's a child license, performance and his social driver's he understand did not him and he truck driver ridicule over-the-road of an duties 5541. Tr. at being ridiculed. employment. was applications filling out meaning- develop skills the social App. lacked Appellant's (citing 108-09 Op. at his dis- because relationships, primarily Finding of Mental ful (Order Denying it difficult made in communication ability con Retardation)). factors those However "If communication. reciprocate him to manifesta were trial court by the sidered one-sided, what he a conversation behavior adaptive Pruitt's tions after either that [Pruitt's] suggest would age. years of twenty-two reached understanding or is ignoring you what ing are to Pruitt's behavior during youth, his saying. case, In dysfunctional either it's then it becomes clear that Pruitt manifest- _.." Tr. at 5540. In terms of self-di- ed impairment substantial adaptive be- rection, Pruitt as a child never initiated prior havior reaching age twenty-two. games activities; or social there is no evi- In my view Pruitt has also carried his dence that Pruitt any undertook self-initi- proof burden of on point by at least a ated activities such as or sports hobbies preponderance of the evidence. during his childhood. Tr. at Conclusion terms of health safety, Pruitt often It is clear to me that Pruitt is engaged in dangerous activities to himself retarded even under a standard requiring as a child. persons Two recalled that proof by clear and convincing evidence. bees, Pruitt "would handle though even he Under the relaxed standard the Court an allergic knew he was to the bees. He was today, nounces the fact of Pruitt's mental aware significant allergic effect he retardation is even more apparent. Ac

would if bee; have he stung by was cordingly a death sentence is constitution nonetheless, he continued to ... pick up ally statutorily impermissible in this buzz, bees to listen them, to them to hear case. This cause should be remanded to to shake them his hands." Tr. at 5545- the trial court with impose instructions to 46. Pruitt apparently similarly handled years.9 sentence of a term of snakes. Id. In terms of functional aca- demics, Pruitt was "retained years two years first three only school. He

passed to the 7th grade because he was

socially promoted." Also, Tr. at 5546-47.

according Hudson, to Dr. although Pruitt

did not necessarily exhibit a level of sub-

stantial impairment areas, in all he did In the Matter of Ginamarie

demonstrate deficits other functional ar- A. GAUDIO-GRAVES. eas: Pruitt never type demonstrated the expected behaviors of adults to maintain No. 45S00-0506-DI-276. a domicile before or twenty-two after Supreme Court of Indiana. years of age, and he never worked inde- pendent of very stringent supervision be- Sept. 2005. cause he often could not follow directions reciprocate or communication. Tr. at ORDER SUSPENDING RESPONDENT 5540, 5547-48. FROM THE PRACTICE OF LAW IN INDIANA

As with the trial court's reliance in part on evidence of Pruitt's subaverage 16, 2005, intellec- On June this Court ordered the tual functioning 4, 1984, after March respondent, Ginamarie A. Gaudio-Graves, trial court also relied on evidence of why show cause she should not im- be impairment Pruitt's adaptive mediately behavior suspended from practice after March However, law in this state due to her failure to 1984. if we con- only sider the evidence of record pertain- respond to the Indiana Supreme Court § Indiana Code requires 35-36-9-7 that a 35-50-2-3(a), § Code provides which that a defendant determined to be a retard- defendant convicted of murder shall be im- ed individual prisoned years. be sentenced term of under Indiana

Case Details

Case Name: Pruitt v. State

Court Name: Indiana Supreme Court

Date Published: Sep 13, 2005

Citation: 834 N.E.2d 90

Docket Number: 15S00-0109-DP-393

Court Abbreviation: Ind.