Rogers v. StateRogers v. State
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- Before:
- Sullivan
Indiana prohibits sentencing a mentally retarded defendant to death or to life imprisonment “without parole. We review here, for the first time, the statutory procedures for determining mental retardation in this context.
Background
Defendant, Thomas Lee Rogers, worked for his brother as an electrician’s helper. On February 13 and 14, 1995, defendant assisted with some electrical work at the home of seventy-two year old Virginia Cates. On February 23, 1995, defendant drove to Cates’s home to acquire some money to buy drugs. Defendant took $50 from Cates’s purse and forced her into the ear he was driving. He then drove to a crowded overpass, and threw or pushed Cates’s body to the heavily-traveled interstate highway below. Cates was still alive when she hit the pavement. Cates attempted to stand up, but
Based on this series of events, the State charged defendant with Murder,
1
Felony Murder,
2
and Confinement, a class B felony,
3
and sought a sentence of death or life imprisonment without parole.
4
Pursuant to
In a preliminary hearing, the trial court determined that defendant was not mentally retarded. On February 9, 1995, a jury convicted defendant of Murder, Felony Murder, and Confinement. In a separate proceeding, the same jury recommended a sentence of death. The trial court declined to follow the jury’s recommendation and instead imposed a sentence of life imprisonment without parole for the murder conviction, and an enhanced forty year sentence for the confinement conviction. 6
Defendant now appeals the sentence of life imprisonment without parole. We have jurisdiction over this direct appeal pursuant to
Discussion
Defendant presents for our consideration two issues: (1) whether the clear and convincing standard of proof required by
I
Defendant contends that, based on the Supreme Court’s recent holding in
Cooper v. Oklahoma,
517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), the clear and convincing standard of proof set forth in
At the hearing [on the petition alleging mental retardation], the defendant must prove by clear and convincing evidence that the defendant is a mentally retarded individual.
In Cooper, the Supreme Court confronted a challenge to a statute which required a criminal defendant to prove by clear and convincing evidence his or her incompetence to stand trial. Acknowledging that “the criminal trial of an incompetent defendant violates due process” (citing Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)), the Court held that “[b]eeause Oklahoma’s procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process.” Cooper, 517 U.S. at 354, 369, 116 S.Ct. 1373. 8
The Court in Cooper found that requiring clear and convincing evidence of competency impinged upon a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Cooper, 517 U.S. at 355, 116 S.Ct. 1373 (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). This “fundamental principle” was the right of a defendant not to stand trial while incompetent. Id., 517 U.S. at 354, 116 S.Ct. 1373. See Medina, 505 U.S. at 453, 112 S.Ct. 2572; Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring in the judgment). See also Brewer v. State, 646 N.E.2d 1382, 1384 (Ind.1995) (criminal trial of incompetent defendant violates due process). The Court held that a rule requiring clear and convincing proof of incompetency increases the risk of an erroneous determination of competency, which in turn affects the fundamental fairness of the trial itself: “Because [the incompetent defendant] lacks the ability to communicate effectively with counsel, he may be unable to exercise other ‘rights deemed essential to a fair trial’ ” Cooper, 517 U.S. at 364, 116 S.Ct. 1373 (quoting Riggins, 504 U.S. at 139, 112 S.Ct. 1810 (Kennedy, J., concurring in the judgment)).
The standard of proof set forth in
Penry was found competent to stand trial. In other words, he was found to have the ability to consult with his lawyer with a reasonable degree of rational understanding, and was found to have a rational as well as a factual understanding of the proceedings against him.
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[M]ental retardation is a fact that may well lessen a defendant’s culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penny‘s ability convicted of a capital offense simply by virtue of his or her mental retardation alone.
Penry, 492 U.S. at 333, 340, 109 S.Ct. 2934.
The defendant in
Penry
argued that mentally retarded people do not possess the requisite level of moral culpability to justify imposing a death sentence, and that “there is an emerging national consensus against executing the mentally retarded.”
9
Penry,
492 U.S. at 328-29, 109 S.Ct. 2934. Regarding the “moral culpability” argument, the Supreme Court reasoned that the insanity defense had protected (and would continue to
Since Penry was decided in 1989, many states—including Indiana—have enacted legislation prohibiting the execution of mentally retarded defendants and requiring varying standards of proof for a showing of mental retardation. 12 Although Indiana has chosen to exclude by statute the mentally retarded from the ranks of criminal defendants otherwise eligible for sentences of death or life imprisonment without parole, 13 Penry remains good law. 14
Given that the clear and convincing standard of proof in
Defendant also attacks
II
Defendant challenges the trial court’s finding that defendant was not mentally retarded
“[Mjentally retarded individual” means an individual who, before becoming twenty-two (22) years of age, manifests:
(1) significantly subaverage intellectual functioning; and
(2) substantial impairment of adaptive behavior:
that is documented in a court ordered evaluative report.
After receiving extensive expert testimony at a pretrial hearing, the trial court found defendant not to be mentally retarded within the meaning of
Now, the mitigating side, the defendant is retarded, but not, in my opinion, within the purview of the Indiana Code. Certainly, a person who is 70 IQ, and we had different readings, 69. One was even lower than that. I don’t think there is any question that he is retarded in that respect. But again I found and I believe now that he is able to adapt. He was living in the community. He was working. He [w]as operating an automobile. He was living with a young lady. According to her, bringing money home. He was able to go where he wanted to go. And I don’t think he would be accepted in a group home setting. I think that he would not even qualify for that. ‘i*
I find the aggravating factor to outweigh the mitigating factor that the defendant is a retarded person again, but I have to add not within the purview of the statute, but certainly in terms of his mental capacity, intellectual capacity, he has certainly met the criteria of retardation. But we differ on the adaptability.... I am satisfied now that he knew what was going on. He was able to assist you in presenting a defense.
(R. at 3041-42.) The trial court also issued written reasons for not imposing the death sentence in which it considered the following possible mitigating circumstances:
Although the evidence showed the defendant is mildly retarded, there was no evidence that he was under extreme mental or emotional disturbance when he committed the murder.
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Although the defendant is, in fact, mildly mentally retarded with an IQ of from 69 to 72 and may suffer from brain disturbances, from chronic alcoholism and drug abuse, the Court concludes that the defendant was not substantially impaired as a result thereof and has the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law.
í ^
[Defendant’s] adoptive parents were totally unequipped to deal with what we now know to be a retarded youngster.
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In weighing, evaluating and balancing the aggravating circumstances and the mitigating circumstances, the court finds the manner in which this crime was committed outweighs the significant mitigating circumstance of defendant’s borderline or mild mental retardation.
(R. at 468-69.)
Defendant claims that he did not receive an adequate evaluation because none of the experts who testified at the pretrial hearing assessed defendant’s adaptive behavior using a standardized test. Defendant also contends that the evidence presented at the pretrial hearing demonstrated substantial impairment of defendant’s adaptive behavior, contrary to the trial court’s findings. Defendant further argues that the court, by finding defendant not to be mentally retarded under
As conceptualized by
Adaptive behavior refers to how well an individual deals with everyday life demands compared to other people with similar educational and social backgrounds. Id. Mental retardation professionals commonly gather evidence of adaptive behavior from two primary sources: standardized scales and independent sources. Id. The DSM-IV mentions two standardized scales which provide clinical composite scores of adaptive behavior, but notes that these standardized scales may vary in reliability depending on each individual’s handicaps. Id. Independent sources can include, but are not limited to, teacher evaluations, and school and medical records. Id.
Defendant argues that because all of the evidence presented at the pretrial hearing regarding his adaptive behavior came from independent sources—and because none came from standardized tests—he did not receive an appropriate evaluation, and that the inappropriate evaluation he did receive biased the trial court’s findings. Defendant urges this Court to rule that the Mental Retardation Statute requires evaluation of adaptive behavior by standardized testing. However, because defendant offers no proof as to how an evaluation including standardized tests would be more appropriate than an evaluation without standardized tests, we will review only the propriety of the evaluation defendant did receive, and will not speculate as to the advantages, real or perceived, of standardized testing of adaptive behavior.
Four experts evaluated defendant to determine whether defendant was mentally retarded within the meaning of
The sources on which the experts at least partially based their conclusions are the “reliable independent sources” from which the DSM-IV states it is helpful to gather evidence of adaptive behavior. DSM-IV at 40. The record demonstrates that each expert reviewed the independent sources available to him and relied substantially on these sources in deciding whether defendant exhibited substantial impairment of adaptive behavior. Nothing in the record tends to suggest that defendant would have received a
B
Four experts evaluated defendant and each testified as to his findings at the pretrial hearing to determine whether defendant was mentally retarded. Defendant contends that their testimony does not support the trial court’s finding that defendant was not mentally retarded within the meaning of
Dr. Berkson, the court-appointed psychiatrist, first evaluated defendant as mentally retarded but later came to believe that defendant did not exhibit significant impairment of adaptive behavior 17 and was not mentally retarded. Dr. Berkson reversed his initial opinion after watching the videotaped interview of defendant by the police. According to Dr. Berkson, defendant’s behavior during the videotaped interview indicated an ability to adapt. Dr. Berkson specifically found a marked difference between the “slow and painful” manner in which defendant answered questions in the interview Dr. Berk-son conducted and defendant’s spontaneity and animation in the videotaped police interview. 18 Throughout his testimony, Dr. Berk-son maintained his opinion that defendant exhibited “significantly subaverage intellectual functioning.”
Dr. Caruana, the court-appointed clinical psychologist, interviewed’ defendant for three hours and administered an IQ test on which defendant scored 69. Based on this IQ score, Dr. Caruana classified defendant as “right on the line” between significantly subaverage and borderline intellectual functioning. (R. at 575.) After reviewing the independent sources available to him, Dr. Caruana concluded that defendant was not mentally retarded within the meaning of
Defendant retained Dr. Arbit, also a clinical psychologist, to testify on defendant’s behalf. Dr. Arbit believed that defendant satisfied both prongs of
Finally, Dr. Obolsky, a psychiatrist, testified on behalf of the State’ and offered his
Synthesizing the expert testimony, we observe that three of the four experts found that defendant exhibited “significantly subav-erage intellectual functioning,” but that ultimately only one expert found that defendant exhibited “substantially impaired adaptive behavior.” Each of the three experts based his final decision on the presence or absence of adaptive behaviors. After receiving this testimony, the trial court found defendant to be mentally retarded, but not within the meaning of
I don’t think there is any question that he is retarded in that respect [intellectual functioning]. But again I found and I believe now that he is able to adapt. He was living in the community. He was working. He [w]as operating an automobile. He was living with a young lady. According to her, bringing money home. He was able to go where he wanted to go.
(R. at 3041.)
In finding this defendant not to be mentally retarded, the trial court made a factual determination based on the evidence before it. This Court gives great deference to a trial court’s findings of fact, and will disturb such findings only upon a showing of abuse of discretion. See
Smith v. State,
686 N.E.2d 1264, 1272 (Ind.1997) (trial court’s determination of competency reviewed for abuse of discretion). Here, pursuant to the Mental Retardation Statute, the trial court conducted a pretrial hearing at which it heard testimony from four experts who had evaluated defendant. Following the hearing, the trial’ court articulated its finding that defendant was not mentally retarded within the meaning of
C
Defendant’s final argument is that the trial court, by finding that defendant was not mentally retarded under
At the pretrial hearing, two experts offered their opinions as to what kind of individual would satisfy the statutory definition of mental retardation. Dr. Berkson testified that, in his opinion, the individual who would satisfy the statutory criteria for mental retardation would have an IQ of less than 50, would not be able to follow directions, handle money, read, or write, and could perform only the most simple and repetitive jobs under supervision. Dr. Caruana was of the opinion that a person who would satisfy the criteria would be unable to dress himself or herself, not know when to eat or how to cook, and would require the constant care of someone else. The trial court did not incorporate these answers into its finding that defendant was not mentally retarded within the meaning of
Mental retardation is a factual determination, and one which this Court is confident each trial court will make with the utmost care. As discussed in part II-B,
supra,
it is within each trial court’s discretion to decide whether a particular defendant has demonstrated by clear and convincing evidence that he or she meets the criteria of the
The Mental Retardation Statute operates in conjunction with
Conclusion
We hold that the clear and convincing standard of proof in
Notes
.
. Id.
.
.
. Id. (“state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual”).
. Defendant pled guilty to being a habitual offender.
See
. “Mentally retarded individual” is defined at
. In so ruling, the Court did not disturb its earlier holding in Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), that a state constitutionally may require a defen dant to overcome a presumption of competency by the lower standard of preponderance of the evidence. See Cooper v. Oklahoma, 517 U.S. 348, 355, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).
. The defendant also argued that his death sentence violated the Eighth Amendment because “the jury was not instructed that it could consider and give effect to his mitigating evidence [regarding mental retardation] in imposing its sentence.” Penry v. Lynaugh, 492 U.S. 302, 307, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The defendant prevailed on this claim, and the Supreme Court remanded for resentencing, so as not to ” ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.‘” Id. at 328, 109 S.Ct. 2934 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)).
.
. Although the Court concluded that there was insufficient evidence of a “national consensus” at that time of the type suggested by the defendant, it stated that such a consensus might “someday emerge reflecting the evolving standards of decency that mark the progress of a maturing society!.]” Penry, 492 U.S. at 340, 109 S.Ct. 2934 (internal quotation marks omitted).
.
. Indiana Code
. See Allen v. State, 686 N.E.2d 760, 786 (Ind. 1997) (finding no constitutional requirement for retroactive application of the Mental Retardation Statute).
. Penry, 492 U.S. at 340, 109 S.Ct. 2934; Allen, 686 N.E.2d at 786.
. As stated above,
The American Psychiatric Association‘s Diagnostic and Statistical Manual of Mental Disorders defines mental retardation in a way that bears important similarities to—but also important distinctions from—the statutory definition: significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Fourth Edition 1994) (“DSM-IV”) at 39.
. According to the DSM-IV, a mentally retarded individual will exhibit significant limitations in adaptive behavior in at least two of the following skill areas: communication, self-care, home living, social and interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.
Id.
at 39. However,
. Defendant argues that this videotaped interview does not accurately represent his adaptive behavior capabilities because he previously had rehearsed the contents of the interview several times with the police. Defendant contrasts this rehearsed performance with the fact that he was hearing and responding to Dr. Berkson’s questions for the first time, and maintains that the Berkson interview more truly represents defendant‘s adaptive behavior. Br. of Appellant at 25.
. We note in this regard that it would likely be error for a trial court to exclude evidence of mental retardation at the penalty phase of a trial solely on grounds that defendant was not mentally retarded under