James F. Stanton
Jeffrey A. Modisett
Crown Point, IndianaAttorneys for Appellee
Attorney General of Indiana
Preston W. Black
Deputy Attorney General
James F. Stanton
Jeffrey A. Modisett
THOMAS LEE ROGERS,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
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.
Based on this series of events, the State charged defendant with Murder,See footnote 1 Felony Murder,See footnote 2 and Confinement, a class B felony,See footnote 3 and sought a sentence of death or life imprisonment without parole.See footnote 4 Pursuant to Ind. Code § 35-36-9-4, defendant filed with the trial court a motion to evaluate defendant as mentally retarded to determine whether he was
ineligible for either sentence sought by the State.See footnote
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.See footnote
Defendant now appeals the sentence of life imprisonment without parole. We have
jurisdiction over this direct appeal pursuant to Ind. Const. art. VII, § 4, and Ind.Appellate
retardation violates due process; and (2) whether the trial court erred in finding defendant
not to be retarded within the meaning of Ind. Code § 35-36-9-2. As a preliminary matter,
we observe that these statutes are part of a larger scheme which prescribes the procedure to
follow in a pretrial determination of mental retardation. See Ind. Code §§ 35-36-9-1 to -7
(Supp. 1994) (the Mental Retardation Statute).
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 (1992)), the Court held that
[b]ecause 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.See footnote
Defendant now seeks to bootstrap the holding of Cooper to Ind. Code § 35-36-9-4,
and asks this Court to hold that requiring clear and convincing proof of a defendant's mental
retardation to determine eligibility for a sentence of death or life imprisonment without
parole similarly violates due process. However, after applying the reasoning of Cooper to
the requirements of the statute at issue, we reach a contrary result.
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 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). This fundamental principle was the right of a defendant not to stand trial while incompetent. Id., 517 U.S. at 354. See Medina, 505 U.S.
at 453; Riggins v. Nevada, 504 U.S. 127, 139-40 (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
(quoting Riggins, 504 U.S. at 139 (Kennedy, J., concurring in the judgment)).
The standard of proof set forth in Ind. Code § 35-36-9-4, although arguably permitting
the same type of erroneous determination of absence of mental retardation, does not offend
a fundamental principle of the sort implicated in Cooper. In Indiana, a finding concerning
a defendant's mental retardation determines only his or her eligibility for a particular
criminal punishment; it does not affect the procedural fairness or outcome of that defendant's
trial, provided the defendant (whether or not mentally retarded) is otherwise competent to
stand trial. The Supreme Court engaged in similar analysis in Penry v. Lynaugh, 492 U.S.
302 (1989), in which it found no constitutional proscription against the execution of a
mentally retarded defendant:
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.
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.See footnote 9 Penry, 492 U.S. at 328-29. Regarding the moral culpability argument, the Supreme Court reasoned that the insanity defense had protected (and would continue to protect) adequately against the unconstitutional conviction and execution of those mentally retarded defendants who wholly [lack] the capacity to appreciate the wrongfulness of their actions. Id. at 333. In addressing the national consensus argument, the Court surveyed the laws of the states and found that only two states had statutes on the books at that time banning the execution of mentally retarded defendants.See footnote 10 Id. at 334. The Court also acknowledged several public
opinion polls disapproving of the execution of mentally retarded defendants.See footnote
Id. at 334-35.
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.See footnote 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,See footnote 13 Penry remains good
Given that the clear and convincing standard of proof in Ind. Code § 35-36-9-4
(determining only a defendant's sentence eligibility) does not affect the fundamental
procedural fairness of a defendant's trial, and that the United States and Indiana
Constitutions do not prohibit the execution of a mentally retarded defendant,See footnote
conclude that defendant's due process rights were violated.
Defendant also attacks Ind. Code § 35-36-9-4 as permitting the imposition of a
punishment that is (1) disproportionate to the offense he committed; and (2) vindictive
justice. Ind. Const. art. I, §§ 16 and 18. We interpret defendant's claims as challenges to
the appropriateness of his sentence. Defendant threw or pushed a seventy-two year old
woman off an overpass onto a heavily traveled interstate highway where two vehicles hit and
killed her. We cannot conclude that the trial court erred in imposing a sentence of life
imprisonment without parole for this offense.
Ind. Code § 35-36-9-2 (Supp. 1994).
After receiving extensive expert testimony at a pretrial hearing, the trial court found
defendant not to be mentally retarded within the meaning of Ind. Code § 35-36-9-2. At
judicial sentencing (after the jury had convicted defendant and recommended death), the trial
court discussed the issue of mental retardation before sentencing defendant to life
imprisonment without parole:
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.
* * *
(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.
* * *
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.
* * *
[Defendant's] adoptive parents were totally unequipped to deal with
what we now know to be a retarded youngster.
* * *
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.)
commonly is measured through standardized IQ tests. Significantly subaverage intellectual
functioning generally means an IQ of 70 or below, with a margin of error of five points in
either direction. American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders (American Psychiatric Association, Fourth Edition 1994) (DSM-IV) at
39; Holmes v. State, 671 N.E.2d 841, 850 (Ind. 1996). According to the DSM-IV,
intellectual functioning is secondary to adaptive behavior as an indicator of mental
retardation, meaning that an individual with an IQ below 70 who exhibits adaptive behavior
would not be diagnosed as mentally retarded. DSM-IV at 40.
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
Four experts evaluated defendant to determine whether defendant was mentally
retarded within the meaning of Ind. Code § 35-36-9-2. Each expert interviewed defendant
in person and reviewed documents dating back to defendant's early childhood. The
documents available to each expert for his review included education records, medical and
treatment records, letters from social workers, and criminal records. The experts also viewed
a videotaped interview of defendant with the police.
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 more appropriate evaluation
had any of the experts assessed defendant's adaptive behavioral capabilities using a
standardized test rather than by reviewing independent sources. Defendant has not proved
to this Court that standardized tests better evaluate adaptive behavior. Accordingly, we
cannot conclude that defendant did not receive an appropriate evaluation in this regard.
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 behaviorSee footnote 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. Berkson conducted and
defendant's spontaneity and animation in the videotaped police interview.See footnote
testimony, Dr. Berkson 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 Ind. Code § 35-36-9-2, because defendant did not
exhibit substantial impairment of adaptive functioning. Dr. Caruana acknowledged some
impairment in defendant's upper level intellectual skills and in his ability to conform to
social norms and rules, but found defendant capable of meeting his own immediate needs and
basic self care.
Finally, Dr. Obolsky, a psychiatrist, testified on behalf of the State and offered his
opinion that defendant did not satisfy either prong of Ind. Code § 35-36-9-2 and was not
mentally retarded under the definition given in the DSM-IV. Dr. Obolsky believed that most
of defendant's behaviors which appeared maladaptive were actually just anti-social choices.
Synthesizing the expert testimony, we observe that three of the four experts found that defendant exhibited significantly subaverage 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 Ind. Code § 35-36-9-2. Specifically, the court stated:
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 Ind.
Code § 35-36-9-2. Having reviewed the record of the evidence presented to the trial court,
we cannot conclude that the trial court abused its discretion in finding defendant not to be
mentally retarded within the meaning of the statute, and we will not disturb the trial court's
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 Ind. Code § 35-36-9-
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 Mental Retardation
Statute and is therefore ineligible for a sentence of death or life imprisonment without parole.
Defendant appears to argue that any time a trial court finds a defendant to be mentally
retarded but nevertheless not to satisfy the statutory definition of mental retardation, that that
defendant will be sentenced contrary to the mandate of Ind. Code § 35-50-2-9. We disagree.
The Mental Retardation Statute operates in conjunction with Ind. Code § 35-50-2-9 not only to prohibit the execution or life imprisonment of a mentally retarded defendant, but also to ensure that each defendant, whether or not mentally retarded under the Mental Retardation Statute, may present in mitigation during the penalty phase whatever evidence of mental retardation is available. See Penry, 492 U.S. 302, 328 (jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime). In effect, the Mental Retardation Statute and Ind. Code § 35-50-2-9 work together to the advantage of defendants who, while unable to prove by clear and convincing evidence that they are mentally retarded within the meaning
of Ind. Code § 35-36-9-2, nonetheless can present evidence of mental retardation for the jury
or judge to evaluate in their sentencing decisions.See footnote
Such is the case here. Although the trial
court found defendant not to satisfy the statutory definition of mental retardation, it still
found defendant to be mentally retarded and cited defendant's mental retardation as a
significant mitigating factor when it declined to follow the jury's recommendation of death
and instead imposed a sentence of life imprisonment without parole. We believe that the trial
court's sentencing order and statement exemplify the intended interaction of the Mental
Retardation Statute and Ind. Code § 35-50-2-9.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Fourth Edition 1994) (DSM-IV) at 39.
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