State v. Hill , 177 Ohio App. 3d 171 ( 2008 )

{¶ 109} I respectfully dissent.

{¶ 110} With respect to appellant's third assignment of error, the majority contends that the trial court did not err by finding that appellant was not a person with mental retardation. I disagree.

{¶ 111} In Atkins v. Virginia (2002),536 U.S. 304, 308, 122 S.Ct. 2242, 153 L.Ed.2d 335, fn. 3, the United States Supreme Court quoted the definitions of mental retardation promulgated by the American Association on Mental Retardation ("AAMR") and the American Psychiatric Association ("APA").

{¶ 112} The AAMR defines mental retardation as "``substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.'" Id., quoting Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th Ed. 1992).

{¶ 113} The APA's definition is similar: "``The essential feature of Mental Retardation is significantly subaverage general intellectual functioning * * * 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 * * *. The onset must occur before age 18 years * * *. "Mild" mental retardation is typically used to describe people with an IQ level of 50 to 55 to approximately 70.'" Id., quoting Diagnostic and Statistical Manual of Mental Disorders 41 (4th Ed. 2000) 42-43.

{¶ 114} In State v. Lott,97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12, the Supreme Court of Ohio held: "Clinical definitions of mental retardation, cited with approval in Atkins, provide a standard for evaluating an individual's claim of mental retardation. * * * [Again,] [t]hese definitions require (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."

{¶ 115} The following chart represents a summary of appellant's IQ scores and psychological evaluations up to April 2004, all of which fall in the mildly mentally retarded range:

{¶ 116} CHRONOLOGICAL AGE                 FULL SCALE IQ
6 years and 2 months              70
8 years and 8 months              62
13 years and 4 months             48
13 years and 5 months             49
15 years and 3 months             63
17 years                          55
18 years                          68
18 years                          64
33 years                          71

{¶ 117} Appellant's date of birth is January 6, 1967. Appellant entered kindergarten in the Warren city schools and was referred by his teacher, as she had questions and concerns "regarding his present level of intellectual functioning." As a result of his first evaluation on March 20, 1973, appellant was placed in special education, specifically an educably mentally retarded ("EMR") class, due to his score on the Stanford-Binet test. Appellant, at age six, did not know his age and thought he was nine. He was immature, did not know his address, and possessed functioning in the visual motor category at the three year, six month level. His reading and verbal skills were at the five-year-old level, and he had a mental age of four years, six months. He was placed on medication, as he was also hyperactive. His intellectual functioning was in the third percentile as compared to the general population. Appellant was tested again on September 10, 1975. He was chronologically eight years and eight months. He tested at an overall 62, which at the time was categorized as educably mentally retarded. Appellant earned a mental age on the Stanford-Binet test of five years and six months. He was placed in the first stanine group or in the first percentile in comparison to the general population. He was deficient in reading at a 1.2 grade level, and his spelling was at a .6 grade-level equivalent. He indicated weakness in verbal reasoning and abstract thinking. He could not spell his last name correctly. It is noted in the evaluation that appellant "will be limited to his ability to generalize, to transfer learning from one situation to another, to do abstract reasoning or to do much self evaluation."

{¶ 118} Dr. Hammer testified that appellant tested in the mild mentally retarded range. Appellant's score of 48 on the Wechsler Intelligence Scale for Children at age 13 years and four months taken in May 1980 established him in the moderately mentally retarded range. His "relative weaknesses lie in not being able to recall everyday information, do abstract thinking, perform mental arithmetic, perceive a total social situation, perceive patterns and to reproduce symbols using psychomotor speed and coordination." He frequently engaged in behaviors such as making noises and faces when talking, rolling eyes to the back of his head, being restless and tired, working with pencil hanging out of mouth. He exhibits weaknesses in reasoning ability, originality, verbal interaction, and lack of intellectual independence.

{¶ 119} Appellant was tested again at his school on August 22, 1982. At 15 years old, his reading and math were at a third-grade level. The next psychological evaluation was performed by the juvenile court's psychologist at the request of Judge Norton for a bind-over proceeding on or about January 10, 1984. Appellant was accused of and later pleaded guilty to two rapes. In two years' time, he had amassed 13 juvenile felony charges. At age 17 and in ninth grade with a score of 55, Dr. Douglas Darnall, a psychologist for the Trumbull County Court of Common Pleas, opined that appellant was mildly mentally retarded and possessed "significant [deficiency] in his verbal functioning, possessed poor judgment, does not think of consequences, is highly suggestible." He also opined that appellant requires long-term structured rehabilitation, "Because of his passivity and limited intellectual ability he can easily be swayed." He also stated, "Danny does not comprehend the seriousness of his offenses." Dr. Darnall further opined in his report that "his level of adaptive functioning is poor. And he needs a highly structured facility that can provide programming for mentally retarded youth." Further, he stated that unfortunately, the record shows that his family cannot provide such an environment. The probation department agreed and requested, due to his mental retardation and the risk of exploitation if placed in an adult facility, that the request for the bind over should be denied and that he should be placed in a group home and that "Danny will in time need to live in an adult halfway house which would be able to provide both social as well as vocational habilitation." The bind over was denied, and appellant was sentenced to TCY. On April 25, 1984, the chief psychologist at TCY, Dr. R.W. Jackson, opined in regard to retesting appellant as part of the intake procedure that he tested at a 65 IQ and described appellant as "intellectually limited, socially constricted youth with very few interpersonal coping skills, rather immature and self centered with needs of attention and approval of others." He also stated that "it appears that Danny will adjust himself to a well structured program. He is so easily led and willing to do what he is instructed to do." Furthermore, "In a structured program Danny could no doubt function quite well." Appellant's sentence was concluded after his 18th birthday. He was discharged in 1985 and was returned home to his mother, who is also mentally retarded, and reenrolled in school.

{¶ 120} Shortly after his arrest on the charges for which he has been convicted and sentenced to death, appellant, at the age of 18, scored a 68 on the Wechsler Adult Intelligence Scale Revised test. As part of the mitigation preparation, appellant was administered another test in which he scored a 64. At age 33, appellant submitted to an IQ test in prison on which he scored a 71.

{¶ 121} In the instant case, pursuant to the foregoing, appellant was found to be mentally retarded. The record establishes that appellant met the first prong ofAtkins/Lott as evidenced by IQ scores below 70. The trial court properly found that appellant satisfied that prong.

{¶ 122} With regard to adaptive skills, the Supreme Court of Ohio in White, 118 Ohio St.3d 12,2008-Ohio-1623, 885 N.E.2d 905, at ¶ 13, recently stated:

{¶ 123} "``[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills * * * that became manifest before age 18.' Atkins,536 U.S. at 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. Adaptive skills are those skills that one applies to the everyday demands of independent living, such as taking care of oneself and interacting with others. Adaptive behavior tests are designed to assess how a person applies those skills in the tasks of everyday life."

{¶ 124} The Supreme Court in White continued:

{¶ 125} "The mentally retarded are not necessarily devoid of all adaptive skills. Indeed, ``they may look relatively normal in some areas and have certain significant limitations in other areas.' Mildly retarded persons can play sports, write, hold jobs, and drive. * * * [I]n determining whether a person is mentally retarded, one must focus on those adaptive skills the person lacks, not on those he possesses."White, 118 Ohio St.3d 12, 2008-Ohio-1623,885 N.E.2d 905, at ¶ 65.

{¶ 126} Drs. Hammer, Olley, and Huntsman all agreed on a protocol for testing appellant in April 2004, and administered various tests, including the Wechsler Adult Intelligence Scale-III, the Test of Memory Malingering, Street Survival Skills Questionnaire, Woodcock-Johnson Tests of Achievement, and the Adaptive Behavior Assessment System-II. All three experts agreed, after testing appellant, that the results were unreliable. Thus, it became necessary to look at other sources, including historical data, to make a determination regarding appellant's mental retardation. The historical data indicated substantial deficits in adaptive skills.

{¶ 127} The trial court, however, found that appellant is not mentally retarded, based upon his superior adaptive behavior. The trial court stressed appellant's fluency with the language and his articulate presentations in interviews. However, throughout his life, various examiners, including Risinger, have found that appellant had poor hygiene, was easily led, and was unable to provide his address and phone number. All of the examiners who tested appellant before age 33, in preparation for the hearing, found him lacking in multiple adaptive areas. Dr. Sparrow testified that although appellant may have a good vocabulary, adaptive-behavior communications do not measure level of vocabulary in any way. Anyone who talks to him is "left in the dust" trying to figure out what he is talking about. This shows a deficit in the adaptive behavior of language.

{¶ 128} The trial court compared appellant to other death row inmates. However, pursuant to the AAMR, the diagnosis of mental retardation is relative to the general population. Although appellant may be manipulative and a malingerer, he can still be and is mentally retarded.

{¶ 129} Appellant introduced the rebuttal testimony of Dr. Sparrow, one of the three authors of the Vineland Adaptive Behavior Scale, which was a revision of the Vineland Social Maturity Scale, and administered to appellant four times. Although her credentials are very impressive, the trial court determined that Dr. Sparrow's rate of error in recasting the old Vineland scores was so high as to render her testimony inadmissible under Daubert, or alternatively, her testimony was rejected outright in favor of Dr. Hancock's opinion.

{¶ 130} In Daubert v. Merrell DowPharmaceuticals, Inc. (1993), 509 U.S. 579, 592-593,113 S.Ct. 2786, 125 L.Ed.2d 469, the court held that the trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid" and can be applied to the facts at issue properly. The court said that many considerations will bear on the inquiry, including whether the theory can be tested, whether it has been subjected to peer review and publication, what its known or potential error rate is and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is flexible, and its focus must be on principles and methodology, not on the resulting conclusions.

{¶ 131} Here, Dr. Sparrow testified about a linkage between the two tests. She indicated that within the control group of people taking both the old and new Vineland, she used a straight correlation between the scores. Dr. Sparrow stated that when two tests target the same areas, one can use this method to link and make a comparison of the scores. The technique at issue has been tested. The linkage data is included in the testing manual, so the methodology has gained general acceptance. Dr. Sparrow's testimony should not have been excluded. However, the error is harmless. Even without her testimony, the historical evidence is overwhelming in regard to adaptive deficits and mental retardation as observed and documented by both the juvenile court and the multiple evaluators at the Warren city schools and Brickhaven residential placement and the juvenile department of corrections TCY.

{¶ 132} The prior testing and independent observations demonstrate by a preponderance of the evidence that appellant's scores prior to the age of 18 satisfy the criteria for deficits in adaptive behavior with respect to the second standard under Lott.

{¶ 133} With regard to the onset before age 18, the trial court found that although appellant had an IQ in the mildly mentally retarded range, there was no evidence to show that he met the criteria of deficits in adaptive functioning. This is dehors the record. The trial court concluded this despite overwhelming evidence and evaluations to the contrary from a multitude of sources that he spent virtually all of his school years in programs for the mentally retarded. Appellant's IQ scores ranged from 48 to 70, during the time period when he was first tested at six years and two months, up to the age of 18. The record establishes that appellant had poor personal hygiene, was immature, behaved inappropriately, had difficulty making friends, lagged behind intellectually, and was consistently developmentally slow. Appellant committed serious crimes at the age of 17. However, the fact that he engaged in criminal conduct does not negate a diagnosis of mental retardation. The record supports the fact that appellant experienced the onset of mental retardation prior to the age of 18, thereby satisfying the third standard under Lott.

{¶ 134} Based on Atkins, executing a person with mental retardation status, regardless of context, violates the Eighth Amendment. Here, I believe the trial court abused its discretion in finding that appellant was not a person with mental retardation, because he met the three Lott criteria for classification as mentally retarded.

{¶ 135} Accordingly, I would affirm in part, reverse in part, and remand the matter for resentencing under the statutory guidelines for noncapital cases of aggravated murder.