State v. Jackson , 2020 Ohio 4914 ( 2020 )

[Cite as State v. Jackson, 2020-Ohio-4914.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 108558
v. :
ANDRE JACKSON, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 15, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-87-221195-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, Kathryn L.
Sandford and Randall L. Porter, Assistant State Public
Defenders, for appellee.
KATHLEEN ANN KEOUGH, J.:
Pursuant to R.C. 2945.67(A), plaintiff-appellant, the state of Ohio,
appeals the trial court’s decision that granted the postconviction petition of
defendant-appellee, Andre Jackson, and vacated the death sentence. For the
reasons that follow, we reverse the trial court’s decision and remand for the trial
court to determine whether Jackson is intellectually disabled under the new
standard established in State v. Ford, 158 Ohio St. 3d 139, 2019-Ohio-4539, 140
N.E.3d 616.
I. Procedural Background
Jackson was sentenced to death for the 1987 brutal murder of Emily
Zak. The facts of the case, which are not in dispute, can be found in both this court’s
decision affirming Jackson’s convictions on direct appeal, State v. Jackson, 8th Dist.
Cuyahoga No. 55758, 1989 Ohio App. LEXIS 5064 (Oct. 5, 1989), and the Ohio
Supreme Court’s decision affirming the same, State v. Jackson, 57 Ohio St. 3d 29,
565 N.E.2d 549 (1991).
After exhausting all state-court appeals, Jackson filed a petition for a
writ of habeas corpus in the United States District Court for the Northern District of
Ohio. In 2001, the district court denied his petition. Jackson v. Anderson, 141
F. Supp. 2d 811, 830 (2001). Jackson appealed that decision to the Sixth Circuit
Court of Appeals.
In June 2002, while Jackson’s case was pending in the Sixth Circuit,
the United States Supreme Court held that the Eighth Amendment to the United
States Constitution prohibited the execution of an intellectually disabled offender.
See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). The
Supreme Court did not define “intellectual disability”; rather, the court left “‘to the
states the task of developing appropriate ways to enforce the constitutional
restrictions’” announced in Atkins. Id. at 317, quoting Ford v. Wainwright, 477 U.S.
399, 416-417, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).
The Ohio Supreme Court developed procedures and substantive
standards for adjudicating Atkins claims in State v. Lott, 97 Ohio St. 3d 303, 2002-
Ohio-6625, 779 N.E.2d 1011. The court adopted a three-part test that defined
“intellectual disability” as (1) significantly subaverage intellectual functioning, (2)
significant limitations in two or more adaptive skills, such as communication, self-
care, and self-direction, and (3) onset before the age of 18. Id. at ¶ 12. The court
further noted that “IQ tests are one of many factors that need to be considered; they
alone are” insufficient “to make a final determination on this issue.” Id.
Accordingly, the court held “that there is a rebuttable presumption that a defendant
is not [intellectually disabled] if his or her IQ is above 70.” Id.
The Lott court also set forth the following guidance and standard:
In considering an Atkins claim, the trial court shall conduct its own de
novo review of the evidence in determining whether the defendant is
[intellectually disabled]. The trial court should rely on professional
evaluations of [a defendant’s] mental status, and consider expert
testimony, appointing experts if necessary, in deciding this matter. The
trial court shall make written findings and set forth its rationale for
finding the defendant [intellectually disabled] or not [intellectually
disabled].
Id. at ¶ 18.
For defendants, such as Jackson, who are already on death row, the
court found that Atkins was a new decision of the United States Supreme Court that
applied retroactively. Id. at ¶ 17, citing R.C. 2953.23(A)(1)(b). “For all other
defendants who have been sentenced to death, any petition for postconviction relief
specifically raising an Atkins claim must be filed within 180 days of the judgment in
this case.” Id at ¶ 24.
On May 9, 2003, Jackson timely filed his petition raising an Atkins
claim. In response, the trial court referred Jackson to the Cuyahoga County
Psychiatric Clinic for an evaluation to determine whether he was intellectually
disabled. Dr. Michael Aronoff interviewed and evaluated Jackson for the sole
purpose of his Atkins claim. On October 17, 2003, Dr. Aronoff submitted his report
to the court opining that “Jackson is not [an intellectually disabled] individual.”
In 2007, the state moved for summary judgment based on Dr.
Aronoff’s expert report. Jackson opposed the motion. In 2009, the trial court
denied the state’s motion, finding that a genuine issue of material fact existed as to
whether Jackson is intellectually disabled. In 2016, following a request by the Sixth
Circuit for a status update, the trial court scheduled a hearing on Jackson’s petition.
II. Atkins Hearing
In 2017, the trial court conducted a full evidentiary hearing on
Jackson’s petition. At the hearing, it considered testimony from four experts and
considered additional expert reports and affidavits from professionals who had
evaluated Jackson over his lifetime. The court also heard lay witness testimony from
Jackson’s mother, brother, and childhood friend.
A. Dr. David Smith — Jackson’s Expert
Dr. Smith, a clinical psychologist, testified regarding his expert report
and opinion generated following his interview and assessment of Jackson on May 9,
13, and 23, 2016, at the Chillicothe Correctional Institution.
Testing for intellectual functioning, Dr. Smith administered to
Jackson the Stanford-Binet Intelligence Test, Fifth Edition (2003) (“S-BV”). On the
S-BV, Jackson obtained a full-scale intelligence quotient (“IQ”) score of 80. Dr.
Smith stated that an average score would be 100, with a standard deviation of 16.
According to Dr. Smith, after factoring the standard error of measurement (“SEM”),
Jackson’s true IQ score would fall between the range of 76-84, with a 95%
confidence level. According to Dr. Smith, this score does not currently place him in
the intellectual disability range. Based on this result, Dr. Smith opined in his report
that Jackson “was found to currently be an individual who does not have intellectual
disability * * *.” However, Dr. Smith opined that Jackson “functioned in the mild
range of intellectual disability at the time of the crime.” He stated that Jackson’s
intellectual functioning has improved as an adult and while incarcerated. Dr. Smith
testified about studies and articles that discuss improvements in intellectual
functioning of incarcerated and nonincarcerated individuals.
In assessing adaptive skills, Dr. Smith administered the Vineland
Adaptive Behavior Scales, Second Edition Survey Interview Form (“VABS-II”),
where Jackson achieved an overall score of 66, which is below two standard
deviations from the average of 100, i.e. 70. Dr. Smith also gave Jackson portions of
Ohio Eligibility Determination Inventory (“OEDI”), which is used to determine
whether an individual is eligible for disability services. The three areas of the OEDI
that Jackson was tested on were “the capacity for independent living, learning, and
economic self-sufficiencies.” On all three areas, Jackson showed “substantial
functional limitations.” Dr. Smith opined that Jackson showed adaptive skills
deficits.
Dr. Smith testified about the third criterion for a finding of
intellectual disability: that the deficits in intellectual functioning and adaptive
behavior skills had an onset prior to the age of eighteen. Dr. Smith found this
criterion to be satisfied through the assessment conducted by Dr. Isidore Helfand in
1978 when Jackson was 12 years old.
B. Dr. Carla Dreyer — State’s expert
Dr. Dreyer, a clinical psychologist, testified regarding her expert
report and opinion generated following her interview and assessment of Jackson on
August 3, 2016, at the Chillicothe Correctional Institution. She testified that she
administered the Test of Memory Malingering (“TOMM”), Wechsler Adult
Intelligence Scale - 4th Edition (“WAIS-IV”), Wide Range Achievement Test - 4th
Edition (“WRAT- 4”), and the Adaptive Behavior Assessment Scale - 3d Edition
(“ABAS-3”). The TOMM measures effort and malingering, and according to Dr.
Dreyer, there was no indication on this test that Jackson malingered.
On the WAIS-IV, Jackson obtained a full-scale IQ score of 67.
Factoring the SEM, Jackson’s true IQ fell between a range of 62 and 72, with a 95%
confidence level. She stated that the average score on the WAIS-IV is 100, with a
standard deviation of 15. Dr. Dreyer testified that she thought Jackson’s score was
an underestimate of his real IQ based on the lack of effort he exhibited during the
testing and because only three months prior, he obtained an IQ score of 80. Dr.
Dreyer opined that the higher score achieved with Dr. Smith would be more reliable.
Dr. Dreyer testified that she did not believe that someone who was
determined to be intellectually disabled in 1987, at the time of the crime, would be
“cured” over time because intellectual disability “is a permanent developmental
condition,” except for individuals who suffer from brain injuries, conditions, or
events that “interferes or causes a decline in function.” (Tr. 301-303.) It was her
opinion that Jackson likely had undiagnosed ADHD as a child, which progressed
into a diagnosis of antisocial personality disorder as an adult. According to Dr.
Dreyer, these behavioral disorders were a more plausible explanation for Jackson’s
inconsistent IQ scores. (Tr. 320.)
Regarding the WRAT-4, which tests academic abilities, Dr. Dreyer
testified that Jackson’s scores were higher than she anticipated given his
performance on the WAIS-IV. For adaptive skills, Dr. Dreyer administered the
ABAS-3, where Jackson scored a general adaptive composite score of 81. According
to Dr. Dreyer, the individual scores placed Jackson in the low to average range and
were consistent with an individual functioning in the low average range, not a person
with intellectual disability.
Dr. Dreyer opined in her report that Jackson “is not intellectually
disabled now, nor has he ever met the criteria for an intellectual disability.” She
opined that Jackson meets the criteria for borderline intellectual functioning and
antisocial personality disorder.
C. Dr. Michael Aronoff
Dr. Aronoff, a psychologist with the Cuyahoga County Court
Psychiatric Clinic, testified about his 2003 assessment of Jackson, which was in
response to Jackson’s Atkins petition and where he was appointed by the court. Dr.
Aronoff stated that he reviewed records, interviewed Jackson, and administered IQ
and academic achievement testing— the WAIS-III and WRAT-3, respectively.
On the WAIS-III, Jackson obtained a full-scale IQ score of 76. Dr.
Aronoff testified that factoring in the SEM, Jackson’s true IQ fell within the range of
71-81. Dr. Aronoff also administered the WRAT-3, which measures academic
ability. He reported that Jackson scored in the 13th percentile for reading, an
equivalent to that of an 8th grade reading level; 34th percentile for spelling, an
equivalent to high school grade level; and 8th percentile for arithmetic, an
equivalent to 6th grade level. According to Dr. Aronoff, these performances placed
Jackson in the average to borderline ranges.
Dr. Aronoff reported that Jackson is clinically a complex individual
because over the years, “various reports offer contradictory and inconsistent
conclusions.” His diagnostic impression determined that Jackson is borderline
intellectual functioning, not intellectually disabled. He stated that his testing
revealed that Jackson did not satisfy the first Lott factor of subaverage intellectual
functioning because Jackson did not render a score below 70 even considering the
SEM. Accordingly, Dr. Aronoff stated that he did not perform adaptive skills testing,
instead conceding “to Dr. Everington’s results [on adaptive skills] because I had
nothing to rebut it.” (Tr. 381.)
Dr. Aronoff also noted that Jackson’s IQ results reported by Dr.
Schmidtgoessling in 1992 “were also within the borderline range.” However, at the
hearing, Dr. Aronoff agreed that the 68 IQ score in 1972 and the 72 IQ score in 1992,
after factoring in the SEM, showed significantly subaverage intellectual functioning.
(Tr. 392.)
D. Dr. Nancy Schmidtgoessling
Dr. Schmidtgoessling, a psychologist in the areas of clinical and
forensic psychology, testified that she evaluated Jackson in 1992. Dr.
Schmidtgoessling administered to Jackson the Weschler Adult Intelligence Scale -
Revised (“WAIS-R”) in which he obtained a full-scale IQ score of 72. She testified
that the SEM at the time would have been plus or minus three points. (Tr. 418.) Dr.
Schmidtgoessling agreed that in 1992 she did not diagnose Jackson as intellectually
disabled. (Tr. 422.)
E. Lay Witnesses
Jackson’s mother and brother, Jacqueline Graham and Derek
Jackson, respectively, testified about Jackson’s childhood. Graham testified that
Jackson was a not a good student, could not stay on task, had problems
communicating, and was unable to learn or process information. She stated that he
had impulsive behaviors and would always make jokes or show off to mask
inadequacies. Graham stated that Jackson was a rule breaker and punishment was
not a deterrent; he often acted unsafely. She stated that he had “no fear” and during
childhood he drank bleach once, was scalded by hot water, and twice set the house
on fire. Graham further testified that her son could not keep a job and was
irresponsible with money.
Jackson’s brother, Derek, testified that Jackson engaged in risky
behavior and never appreciated the consequences of his actions. He stated that
Jackson did not do well in school, had a short attention span, and could not keep a
job. According to Derek, Jackson resented him because Derek achieved better
grades even though he was the younger of the two.
Myron Watson, an attorney and Jackson’s childhood friend, testified
about Jackson and their friendship during childhood. Watson testified that he
believed Jackson masked his intellectual and academic deficiencies by pulling
pranks and making jokes as a form of deflection. He stated that Jackson wanted to
be part of the popular crowd and was easily influenced. Watson testified that
Jackson did not do well in school or graduate, never obtained a driver’s license,
could not hold a job, never had any money, and could not live on his own. Watson
also testified about his 1992 affidavit that was prepared in preparation for Jackson’s
petition for postconviction relief, in which he averred that Jackson was “bright and
capable.” Despite agreeing that he made this statement, he did not agree with it and
stated that based on his past relationship with Jackson, Jackson is intellectually
disabled.
F. Expert Reports
Drs. Smith, Dreyer, and Aronoff each reported that they reviewed
other prior expert reports and affidavits that were provided to them by counsel.
Specifically, those documents included (1) a Court Psychiatric Evaluation report
dated May 9, 1978, prepared by Dr. Isidore Helfand; (2) an affidavit prepared by Dr.
Caroline Everington following her evaluation of Jackson in 1992; and (3) an affidavit
prepared by Dr. James C. Tanley following his evaluation of Jackson in 1992.
1. Dr. Isidore Helfand
In 1978 when Jackson was age 12, Dr. Helfand evaluated him at the
Court Psychiatric Clinic in juvenile court. Dr. Helfand interviewed Jackson and
conducted the Weschler Intelligence Scale for Children-Revised, from which
Jackson achieved a full-scale IQ score of 68. Dr. Helfand reported that Jackson
“functions at the [intellectually disabled] range,” and that he “would require special
education efforts and special educative curriculum.”
2. Dr. Caroline Everington
Dr. Everington averred that she assessed Jackson in 1992. She stated
that she administered the Quick-Score Achievement Test (“Q-SAT”), which tests
academic achievement. On this test, Jackson achieved a general achievement
quotient of 77, which according to Dr. Everington is “well below the mean” and
“displays a significant deficit in general knowledge.” She opined that Jackson’s
scores and results “are a characteristic of persons with [intellectual disability].”
Dr. Everington evaluated Jackson on other adaptive skill areas by
administering the Scales of Independent Behavior adaptive skills test. She
concluded that Jackson had deficits in the adaptive skill areas of “social,
communication, personal living, community living, and broad independence.” She
averred that considering Jackson’s performance on Dr. Schmidtgoessling’s prior
intelligence test and other academic tests, and his history of developmental delay
and probable organic impairment, it was her opinion that Jackson is “functioning
within the range of [intellectual disability].”
3. Dr. James C. Tanley
An affidavit from Dr. Tanley, a psychologist and neuropsychologist,
was also admitted as an exhibit. He evaluated Jackson in 1992 and administered
the Halstead-Reitan Neuropsychological Test Battery, which is designed to detect
organic brain dysfunction. Jackson scored 0.6 on the Impairment Index which,
according to Dr. Tanley, is within the range consistent with organic brain
dysfunction. He opined that because of a mental disease or defect at the time of the
offense, Jackson lacked substantial capacity to conform his conduct to the
requirements of the law.
Following the hearing, each party submitted post-hearing briefs for
the court to consider. Additionally, the court had all exhibits, including (1) expert
reports and affidavits; (2) medical reports and records; (3) school records; (4) trial
court records, partial transcripts, evaluations, and judicial opinions; (5) prison
records; and (6) prior lay witness affidavits. Each expert testified that they reviewed
these records in rendering their expert opinions.
III. Trial Court’s Decision
To prove intellectual disability, Jackson had to prove by a
preponderance of the evidence the following factors: (1) significantly subaverage
intellectual functioning, (2) significant limitations in two or more adaptive skills,
such as communication, self-care, and self-direction, and (3) onset before the age of
18. Lott at ¶ 12. Additionally, if Jackson’s IQ score is above 70, a rebuttable
presumption existed that he was not intellectually disabled. Id.
The trial court’s decision stated that it utilized the Lott test to
determine whether Jackson was intellectually disabled. However, the trial court
also considered and applied updated medical diagnostic that were in effect at the
time of the hearing. Specifically, the court referenced post-Lott United States
Supreme Court decisions that held that the standard error of measurement is
relevant when considering and evaluating IQ scores.
Initially, the court noted that it considered the testimony from the
Atkins hearing and the assessments and expert opinions of Drs. Helfand,
Schmidtgoessling, Everington, Schmedlen,1 Smith, and Dreyer. Although the court
1 Dr. George Schmedlen did not author any report or conduct any evaluation of
Jackson. Rather, Dr. Michael Aronoff conducted the evaluation, authored the report,
and testified at trial. Dr. Aronoff noted in his report that Dr. Schmedlen observed the
evaluation.
identified in its decision when each expert performed their respective evaluations
and which tests were utilized, the court did not identify the results yielded from
those tests.
The court then addressed each Lott factor. In analyzing the first
factor — significant subaverage intellectual function — the trial court concluded that
Jackson “exhibits substandard intellectual function.” It identified that Jackson was
administered “six official intelligence tests” over his lifetime, with the most recent
occurring in 2016.2 The court identified that the tests yielded scores ranging from
67 (August 2016) and 80 (May 2016). The court stated that because Jackson’s IQ
tests were close to 70, and each test has a “standard error of measurement of at least
10,” it presumed that Jackson’s true IQ is “somewhere between 57-90.”3 The court
noted that Jackson’s highest and lowest IQ score were achieved in the same year;
thus the court stated it would give more weight to “expert opinions and additional
evidence provided,” and to IQ scores “closer to the time of the offense, rather than
those obtained more recently.”
The trial court then discussed Dr. Everington’s affidavit that she
prepared following her 1992 assessment of Jackson. The court noted that Jackson
scored a 77, which according to Dr. Everington, amounted to “basic survival-level
2 The record reveals that Jackson was administered five official intelligence tests.
3 The SEM of each test ranged from plus or minus 3 to plus or minus 5; thus,
Jackson’s true IQ score ranged between 62 and 84.
reading and mathematics skills.” The court emphasized Dr. Everington’s conclusion
that Jackson functions “within the range of [intellectual disability].”
In further consideration of the first Lott factor, the court also
discussed the report and testimony of Dr. Smith regarding his 2016 assessment of
Jackson. The court concluded that “Dr. Smith was likely to obtain a reliable score”
from his administration of the S-BV IQ test because of Jackson’s concern of being
viewed as “retarded.” The court noted only that Jackson achieved a score of 80,
where the average is 100. The court did not discuss the significance of this score,
the presumption that this score represents, or Dr. Smith’s opinion that Jackson is
not currently intellectually disabled, but was “mildly [intellectually disabled] at the
time of the offense.”
Instead, the court stated that “[i]t is influential in our determination
that [Jackson] has significantly subaverage intellectual functioning because two of
the IQ tests where [Jackson] achieved a score higher than 70, the administering
professionals (Dr. Everington and Dr. Smith) still opined that [Jackson] was
functioning in the intellectually disabled range.” The court also concluded that the
“scores are ultimately subaverage for a person of [Jackson’s] age.” The court also
relied on the fact that all professionals who evaluated Jackson “noted that his
intellectual functioning was at a lower level than expected for someone of his age
range.” The court did not discuss any other IQ test results or any other expert’s
opinion or analysis of Jackson’s intellectual functioning, including why the court
discounted or did not rely on those scores or opinions.
As for adaptive skills, the trial court concluded that Jackson “is
significantly impaired in the area of adaptive functioning.” In making this
conclusion, the court stated it relied on and reviewed Dr. Everington’s 1992 adaptive
skills assessment, Dr. Schmidtgoessling’s evaluation, Dr. Smith’s adaptive skills
evaluation, and the testimony of Jackson’s mother, brother, and childhood friend.
The court generally stated that “[n]early every professional who evaluated [Jackson]
noted a significant or overwhelmingly apparent deficit in some area of adaptive
functioning.” The court, however, did not specifically identify in which areas of
adaptive skills Jackson showed significant limitations.
Finally, the trial court determined that Jackson’s intellectual
disability existed prior to the age of 18. The trial court relied on the 1978 evaluation
conducted by Dr. Helfand when Jackson was 12 years old, and the lay opinions by
Jackson’s family and childhood friend. The court relied on Dr. Helfand’s opinion
that Jackson’s IQ score indicated that he was “functioning in the [intellectually
disabled] range.” Although the court noted that Dr. Helfand did not conduct an
adaptive skills assessment, the court found significant Dr. Helfand’s conclusion that
Jackson “lacked social sensitivity and social awareness” and would “require special
education efforts” and more supervision and direction to “mitigate a tendency
towards more impulsive, rash behavior.” The court found Dr. Helfand’s evaluation
of poor psychomotor skills indicative of organic or neurological brain deficiencies.
Accordingly, the trial court concluded that “Jackson has established
by a preponderance of the evidence that he is indeed intellectually disabled. The
evidence presented supports a finding that [Jackson] exhibits significant
impairments in both intellectual functioning and adaptive skills, and that [Jackson]
exhibited this behavior before the age of eighteen.” Accordingly, the trial court
granted Jackson’s petition to vacate his death sentence.
IV. The Appeal
The state now appeals this decision, raising two assignments of error.
A. Standard of Review
“The procedures for postconviction relief outlined in R.C. 2953.21 et
seq. provide a suitable statutory framework for reviewing” an Atkins claim by a
defendant sentenced to death. Lott at 13. The standard for appellate review of
postconviction proceedings is abuse of discretion. State v. Gondor, 112 Ohio St. 3d
377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “A trial court’s decision granting or
denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld
absent an abuse of discretion; a reviewing court should not overrule the trial court's
finding on a petition for postconviction relief that is supported by competent and
credible evidence.” Id.
“The term ‘abuse of discretion’ * * * implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St. 2d 151, 157,
404 N.E.2d 144 (1980); see also Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140 (1983). “Abuse of discretion” describes a judgment neither
comporting with the record, nor reason. See, e.g., State v. Ferranto, 112 Ohio St.
667, 676-678, 148 N.E. 362 (1925). Further, an abuse of discretion may be found
when the trial court “applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176
Ohio App. 3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).
B. First Assigned of Error — Subaverage Intellectual Functioning
In its first assignment of error, the state contends that the trial court
erred in finding that Jackson showed significantly subaverage intellectual
functioning. Although the state raises multiple issues, we find the following issues
the most relevant to our decision: (1) the trial court failed to recognize and apply
Lott’s rebuttable presumption that a person with an IQ score above 70 is not
intellectually disabled; (2) the trial court erroneously relied on Dr. Everington’s
assessment as an IQ evaluation; and (3) the trial court’s decision is inconsistent with
its own findings compared to the evidence.
1. Lott Standard
An Atkins claim requires proof that the defendant’s death sentence
violated the Eighth Amendment’s proscription against cruel and unusual
punishment because the defendant is intellectually disabled. At the time of
Jackson’s petition and hearing, the relevant criteria for evaluating an Atkins claim
existed under Lott. Under Lott, the defendant bears the burden of proving by a
preponderance of the evidence (1) significant subaverage intellectual function; (2)
significant limitations in two or more adaptive skills, such as communication, self-
care, and self-direction, and (3) onset before the age of 18. Lott at ¶ 12. The Lott
court also created the rebuttable presumption that a defendant is not intellectually
disabled if the defendant’s IQ score is over 70. The court cautioned, however, that
an IQ score is merely one measure of intellectual functioning that alone is
insufficient to make a final determination on whether a person is intellectually
disabled. Lott at ¶ 12.
2. Lott’s Presumption of Intellectual Disability
The first issue the state raises concerns the trial court’s failure to
recognize and begin its analysis with the rebuttable presumption that a defendant is
not intellectually disabled if his IQ is above 70. The state concedes that even if a
defendant has an IQ score below 70, it does not mean the defendant was
intellectually disabled; it only means the presumption does not apply. See State v.
Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 179.
In response, Jackson contends that because the trial court cited to
Lott, and judges are presumed to follow the law, it should be inferred that the court
applied the presumption. And because the trial court found him intellectually
disabled, Jackson contends that this court can discern that he successfully rebutted
the presumption. Finally, Jackson maintains that any error is harmless because
under the new standard created in Ford, the presumption is now removed.
The trial court noted that it relied on all expert reports and opinions
in considering whether Jackson has significant subaverage intellectual function.
However, in addressing this factor, the trial court’s decision does not assess the
reports or testimony of any witness except Drs. Everington and Smith.
Although the court recognized that Jackson was subject to “six
intelligence tests” throughout his life that yielded scores ranging from 67 to 80, the
court only addressed the scores obtained from the “IQ tests” administered by Drs.
Everington and Smith. These tests both yielded scores above the presumptive score
of 70. The trial court erroneously considered the Q-SAT administered by Dr.
Everington as an IQ test, recognizing the score of 77. The only other score the trial
court discussed was from the test administered by Dr. Smith, which the trial court
determined would reveal a reliable score. Jackson obtained a full-scale IQ score of
80, and even applying the standard error of measurement, Jackson’s true IQ score
fell in the range between 76 and 84, which is also above the presumption as set forth
in Lott.
In Jackson’s post-hearing brief, he encouraged the trial court to
abandon the Lott presumption because “the Supreme Court [in Lott] cites no
authority for this rebuttable presumption.” We recognize that Ford has removed
this presumption in determining whether someone is intellectually disabled for
Atkins purposes. However, Lott was the standard in place when the court
considered Jackson’s petition that included a rebuttable presumption that a person
with an IQ score over 70 is not intellectually disabled. The trial court did not
recognize this presumption in making its determination. And despite Jackson’s
encouragement to do so, the trial court was not free to disregard the substantive
standards announced by the Ohio Supreme Court in Lott. State v. Bedford, 1st Dist.
Hamilton No. C-100735, 2011-Ohio-2054, ¶ 20. Accordingly, the trial court should
have begun its analysis with the recognition of the Lott presumption.
Jackson maintains that the trial court’s ultimate conclusion that he is
intellectually disabled reveals that he satisfied of his burden of proof on the Lott
three-part criteria; thus, rebutting the presumption. According to Jackson, the trial
court’s failure to begin with the presumption should be deemed harmless because
he satisfied the Lott criteria. Jackson’s argument is persuasive. However, as
discussed below, the trial court’s determination that Jackson satisfied Lott’s first
criteria of demonstrating significant subaverage intellectual function is based on a
misinterpretation of the facts presented, and failed to account for the opinions of
other experts. Additionally, the trial court’s conclusion of intellectual disability is
inconsistent with the evidence upon which it relied to make this conclusion.
3. Significant Subaverage Intellectual Functioning Finding
The first factor in Lott requires that Jackson prove by a
preponderance of the evidence that he has significant subaverage intellectual
functioning. The trial court determined that Jackson “exhibits substandard
intellectual functioning” by relying solely on Dr. Everington’s 1992 assessment and
Dr. Smith’s 2016 evaluation and expert opinion. The reports of Drs. Everington and
Smith may be relevant and lend credence to a finding of subaverage intellectual
functioning, but the trial court’s findings regarding these reports are incomplete and
mistaken.
First, the trial court characterized and classified Dr. Everington’s Q-
SAT assessment score as an IQ score and relied on it as such. The Q-SAT is an
achievement test that measures academic ability and was utilized as a measure of
Jackson’s adaptive skills deficits. In fact, Dr. Aronoff reported and testified that he
deferred to Dr. Everington’s findings on her adaptive skills testing.
Jackson concedes that a Q-SAT is not an IQ test, but contends this
was merely a misidentification and that the trial court did not rely on the Q-SAT
score in reaching its conclusion. We disagree. The trial court’s opinion is replete
with the court’s understanding and application that Dr. Everington’s assessment
was an IQ score. First, it notes that Jackson “has been administered six official
intelligence tests.” (Emphasis added.) To achieve this number, Dr. Everington’s test
was necessarily included. Additionally, the court utilized this score in support of its
determination that it would “give more weight to [Jackson’s] IQ scores closer to the
time of the offense than those obtained more recently.” The court then specifically
referenced that in “Dr. Everington’s assessment, the assessment closest to the date
of the actual offense, [Jackson] scored a 77.” The court further relied on Dr.
Everington’s score as an IQ test in finding “influential in our determination that
[Jackson] has significantly subaverage intellectual functioning because two of the
IQ tests where [he] achieved a score higher than 70, the administering professionals
(Dr. Everington and Dr. Smith) still opined that [Jackson] was functioning in the
intellectual disabled range.”
Accordingly, the trial court arbitrarily relied on Dr. Everington’s Q-
SAT score as an IQ score in assessing whether Jackson has significant subaverage
intellectual functioning. Nevertheless, this reliance could be harmless if the trial
court’s remaining findings and conclusion on the first Lott factor are supported by
other competent and credible evidence. Accordingly, excising Dr. Everington’s
testing score from consideration, the trial court’s opinion then only relied on Dr.
Smith’s IQ results and conclusions. We find this problematic because Dr. Smith’s
expert opinion is inconsistent with the trial court’s own determinations and
conclusions.
First, the trial court explicitly stated it would give more weight to
Jackson’s IQ scores closer to the time of the offense rather than those obtained more
recently. Accordingly, relying solely on Dr. Smith’s score, a score obtained in 2016
and farthest from the offense, is contrary to the court’s own noted consideration.
Additionally, the trial court placed much weight on Dr. Smith’s report
and testimony and concluded that Dr. Smith was likely able to obtain a reliable score
because Jackson told Dr. Smith that he did not want to be classified as intellectually
disabled. Dr. Smith administered the S-BV to Jackson, he achieved a full-scale IQ
score of 80. Dr. Smith testified that there is a 95% confidence interval of 76 to 84.
(Tr. 198.) Considering the standard error of measurement, these scores would
satisfy Lott’s rebuttable presumption that Jackson is not intellectually disabled.
We also find that the trial court’s finding that Jackson’s S-BV IQ score
is “subaverage for a person of the [Jackson’s] age,” is contrary to the evidence. The
trial court stated that “significantly subaverage intellectual functioning” is
performance that is at least two standard deviations below the average level for an
individual’s peers. However, Jackson’s S-BV IQ score is not “subaverage” because
Dr. Smith testified that two standard deviations below the average on a S-BV test is
a score of 68. In this case, Jackson scored an 80, and even factoring the SEM, the
lower range would be 76. Despite Dr. Smith’s testimony and test results, the trial
court concluded that Jackson “exhibits substandard intellectual functioning.”
Finally, the trial court’s reliance on Dr. Smith’s expert report, which
opined that Jackson currently is not intellectually disabled, is inconsistent with the
court’s own conclusion that Jackson is intellectually disabled. It is difficult to
discern from the trial court’s decision why it relied exclusively on Dr. Smith’s
evaluation and expert opinion, yet deviated, without justification, from Dr. Smith’s
conclusion that Jackson is not currently intellectually disabled.
We also find that the trial court arbitrarily rejected the expert
testimony and opinions of Drs. Aronoff and Dreyer based on the trial court’s explicit
reliance on and citation to Drs. Everington and Smith’s assessments and reports
regarding the first Lott criteria. “A trial court is not required to automatically accept
expert opinions offered from the witness stand, whether on [intellectual disability]
or on any other subject.” State v. White, 118 Ohio St. 3d 12, 2008-Ohio-1623, 885
N.E.2d 905, ¶ 71. “Nevertheless, expert opinion ‘may not be arbitrarily ignored,
and some reason must be objectively present for ignoring expert opinion
testimony.’” (Emphasis sic.) Id., quoting United States v. Hall, 583 F.2d 1288, 1294
(5th Cir.1978); State v. Brown, 5 Ohio St. 3d 133, 134-135, 449 N.E.2d 449 (1983)
(trial court erred by disregarding expert opinions that defendant was insane, in the
absence of evidence to the contrary). The trial court did not make any finding that
Drs. Aronoff or Dreyer lacked either credentials or credibility. And while the trial
court as the trier of fact may disregard expert opinion, it may not arbitrarily exclude,
without justification, expert opinions without indicating why the opinions were not
considered.
4. Conclusion
Accordingly, we find that the trial court did not adhere to the Lott test
when it failed to identify and address the rebuttable presumption. Further, the trial
court’s decision mistakenly characterized the Q-SAT score as an IQ score in
evaluating whether Jackson has significant subaverage intellectual functioning.
This reliance is exacerbated by the trial court’s own inconsistency in its
determination that IQ scores achieved closer in time to the offense would be given
greater weight, but then relied on a 2016 score that, even if the court applied the
standard error of measurement, would admittedly place Jackson in the presumption
of no intellectual disability. Finally, the trial court arbitrarily rejected, without
justification, the expert opinions of Drs. Aronoff and Dreyer in its finding that
Jackson exhibits significant subaverage intellectual functioning. These errors
misapplied the correct legal standard and relied on erroneous findings of fact; thus,
constituting an abuse of discretion.
Despite these errors, this court is not of the opinion that the trial
court’s decision is completely unsupported by competent and credible evidence that
would require reversal of the trial court’s decision and reinstate Jackson’s death
sentence. Further review is warranted.
V. Application of Ford
After the state filed its appellate brief, but prior to Jackson filing his
appellate brief, the Ohio Supreme Court decided Ford, 158 Ohio St. 3d 139, 2019-
Ohio-4539, 140 N.E.3d 616 (2109) which overruled Lott, created a new standard for
determining intellectual disability for persons subject to the death penalty, and held
that there is no longer a presumption in Ohio “that a defendant is not intellectually
disabled if his or her IQ score is above 70.” Id. at ¶ 97.
In support of its decision to overrule Lott, the Ford court considered
updates to two medical treatises in their standards and definitions of intellectual
disability. Id at ¶ 46, citing American Association on Intellectual and Development
Disabilities, User’s Guide to Accompany the 11th Edition of Intellectual Disability:
Definition, Classification, and Systems of Supports (11th Ed.2010) (“AAIDD”);
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (5th Ed.2013) (“DSM-5”). The Ford court noted that these updated
definitions and standards were recognized in two post-Atkins United States
Supreme Court decisions that struck down state-court decisions on intellectual
disability. See Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014)
(invalidating Florida law that precluded presentation of additional evidence of
intellectual disability when the offender scored above 70 on IQ tests), and Moore v.
Texas, ___U.S.___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017) (striking down decision
that relied on an outdated definition in assessing whether a defendant was
intellectually disabled). As a result of Hall and Moore, trial courts are required to
consider the SEM when evaluating a defendant’s IQ score because “an individual’s
intellectual functioning cannot be reduced to a single numerical score” — it is “a
range of scores on either side of the recorded score.” Hall at 713.
Using as guidance the updated definitions and diagnostic standards,
and a recent Kentucky decision that identified and implemented various aspects of
the decisions in Hall and Moore, the Ohio Supreme Court set forth a new standard
for courts to apply when determining intellectual disability for purposes of eligibility
for the death penalty. Id. at ¶ 99, citing Woodall v. Commonwealth, 563 S.W.3d 1
(Ky.2018). The court stated:
For purposes of eligibility for the death penalty, a court determining
whether a defendant is intellectually disabled must consider three core
elements: (1) intellectual-functioning deficits (indicated by an IQ score
approximately two standard deviations below the mean — i.e., a score
of roughly 70 or lower when adjusted for the standard error of
measurement, (2) significant adaptive deficits in any of the three
adaptive-skill sets (conceptual, social, and practical), and (3) the onset
of these deficits while the defendant was a minor.
Id. at ¶ 100.
Recognizing this new standard and that the Ford decision was
released during the state’s appeal in this case, this court sua sponte ordered the
parties to brief the impact of Ford on the assignments of error and issues raised on
appeal. In its supplemental brief, the state contends that this court should not apply
Ford because the trial court did not consider Jackson’s petition under the Ford
standard. Nevertheless, the state contends that even if this court considers the
appeal under the Ford standard, it does not remedy the trial court’s errors. Jackson
contends that Ford is a more lenient standard and thus, its application would not
warrant reversal of the trial court’s decision.
When the Ohio Supreme Court decided Ford, it did not address the
merits of Ford’s Atkins claim under the Lott standard. It recognized that the Lott
criteria and definitions were outdated and needed to be reevaluated considering
recent United States Supreme Court cases and updated diagnostic standards. After
it established the new standard for Atkins hearings, the Supreme Court remanded
the case to the trial court to consider whether Ford was intellectually disabled using
the new framework; it did not apply the new standard to the evidence and testimony
in the record.
Accordingly, much like in Ford, we reverse the trial court’s decision
and remand the matter to the trial court to consider the evidence and testimony in
light of Ford. This court’s review is for an abuse of discretion, not de novo;
accordingly, it would be inappropriate for this court to review the record as a whole
and render an opinion utilizing a standard that the trial court did not consider.
This court recognizes, however, that the standard in Ford seemingly
is less stringent by removing the IQ-based presumption of intellectual disability,
requires consideration of an adjustment for the standard error of measurement
when evaluating IQ scores, and removes the requirement that a second adaptive skill
deficit must be identified. And although this court ordered the parties to brief the
effect of Ford on the state’s assignments of error, we recognize that the trial court’s
opinion heavily relied on “IQ evidence” that was admittedly not an IQ test,
arbitrarily discounted without explanation the reports and opinions of other experts
in the court’s consideration of whether Jackson exhibits significant subaverage
intellectual functioning, and made a finding that Jackson is currently intellectually
disabled without discussing its justification for deviating from the expert opinions
that found Jackson not intellectually disabled.
We recognize that Ford does not require unanimity of expert opinion
— “the legal determination of intellectual disability is distinct from medical
diagnosis. ‘[T]his determination is informed by the views of medical experts,’ but
‘[t]hese views do not dictate the court’s decision.’” Ford at ¶ 85, citing Hall at 721.
However, the trial court cannot arbitrarily ignore expert opinion and testimony,
whether weighing in favor of finding intellectual disability or weighing against. See
generally Ford at ¶ 85, 92 (failing to discuss the Flynn Effect when evidence is
presented; and failing to consider lower IQ scores when higher scores were also
presented). Of course, it is within the trial court’s discretion in deciding which
evidence and testimony it finds determinative. Id. at ¶ 85.
Accordingly, we find merit to the state’s first assignment of error, and
find the state’s second assignment of error challenging the trial court’s findings
regarding adaptive skill deficits moot. The trial court’s decision is reversed, and the
case is remanded to the trial court for consideration of Jackson’s Atkins petition
under the standard set forth in Ford. In doing so, the court may consider additional
evidence, but it shall consider all the evidence in the record, and in its discretion,
give weight to or discount evidence and testimony where it deems appropriate.
Judgment reversed and remanded.
It is ordered that the parties share equally in the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR