Jerry Leon Haliburton v. State of Florida

Supreme Court of Florida
____________

No. SC19-1858
____________

JERRY LEON HALIBURTON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 17, 2021

PER CURIAM.

Jerry Leon Haliburton, a prisoner under sentence of death,

appeals the trial court’s order denying his motion for a

determination of intellectual disability as a bar to execution, which

was filed under Florida Rule of Criminal Procedure 3.203 and

section 921.137, Florida Statutes (2019), and his amended

successive motion for postconviction relief, which was filed under

Florida Rule of Criminal Procedure 3.851. We have jurisdiction.

See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we

affirm the denials of relief.
 I. BACKGROUND

Haliburton was convicted of the 1981 first-degree murder of

Donald Bohannon and is under sentence of death. We affirmed

Haliburton’s conviction and death sentence on direct appeal.

Haliburton v. State, 561 So. 2d 248, 249-50 (Fla. 1990). We also

affirmed the denial of his initial motion for postconviction relief and

denied his petition for a writ of habeas corpus, Haliburton v.

Singletary, 691 So. 2d 466 (Fla. 1997), and affirmed the denial of

his first successive motion for postconviction relief, Haliburton v.

State, 935 So. 2d 1219 (Fla. 2006) (table).

In the wake of Atkins v. Virginia, 536 U.S. 304 (2002),

Haliburton filed a second successive motion for postconviction

relief, under Florida Rules of Criminal Procedure 3.851 and 3.203,

seeking to vacate his death sentence on the ground that he was

intellectually disabled. We affirmed the summary denial of that

motion because Haliburton failed to demonstrate that his IQ was 70

or below and thus failed to establish that he is intellectually

disabled under our interpretation of the law at that time.

Haliburton v. State, 123 So. 3d 1146 (Fla. 2013), vacated, 574 U.S.

801 (2014), order vacated on reconsideration, 163 So. 3d 509 (Fla.

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2015). Upon this Court’s affirmance of the denial of his intellectual

disability claim in 2013, Haliburton petitioned the United States

Supreme Court for a writ of certiorari. Shortly thereafter, the

Supreme Court issued its decision in Hall v. Florida, 572 U.S. 701,

704 (2014), holding that Florida’s “rigid rule” interpreting section

921.137(1), Florida Statutes, 1 as establishing a strict IQ test score

cutoff of 70 or less in order to present additional evidence of

intellectual disability “creates an unacceptable risk that persons

with intellectual disability will be executed, and thus is

unconstitutional.” The Supreme Court granted Haliburton’s

petition for certiorari and remanded to this Court for further

consideration in light of Hall. Haliburton, 574 U.S. 801. On

remand from the Supreme Court, this Court vacated its prior

decision and remanded this case to the trial court for an evidentiary

hearing on Haliburton’s intellectual disability claim. Haliburton,

163 So. 3d 509.

1. Section 921.137 prohibits the imposition of the death
penalty upon the intellectually disabled and defines intellectual
disability as “significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior
and manifested during the period from conception to age 18.”

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 Three witnesses testified at the evidentiary hearing; two were

called by Haliburton—one of his brothers, John H. Haliburton, and

Dr. Bruce Frumkin, a forensic and clinical psychologist—and one

was called by the State—Dr. Michael Brannon, a forensic

psychologist. John H. 2 testified that when they were young,

Haliburton had trouble understanding things and doing chores, and

although Haliburton completed the ninth grade, he needed help

with his schoolwork. When Haliburton got older, John H. never

knew him to live alone, drive a car, pay bills, or have a bank

account.

Dr. Frumkin first evaluated Haliburton in 1992. At that time,

he administered Haliburton the Wechsler Intelligence Scale-Revised

(WAIS-R) IQ test, on which Haliburton obtained a full-scale IQ score

of 80. Dr. Frumkin became involved in the case again in 2010

when he was asked to evaluate Haliburton for intellectual disability.

In 2010, Dr. Frumkin administered Haliburton the WAIS-IV, on

which Haliburton obtained a full-scale IQ score of 74. According to

2. Haliburton also has a brother named John R. Haliburton,
who previously testified in this case but is now deceased. Each
brother will be referred to by his first name and middle initial.

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Dr. Frumkin, based on the score of 74 and its 95 percent

confidence interval, there is a 95 percent chance that Haliburton’s

actual IQ is between 70 and 79.3 Dr. Frumkin testified that the 70-

79 range is consistent with all of the valid IQ test scores that

Haliburton has ever achieved, which, in addition to the 80 and 74

obtained by Dr. Frumkin, include a second 80 (obtained by Dr.

Fleming using the WAIS-R in 1992), a 79 (obtained by Dr.

Eisenstein using the WAIS-III in 2000), and another 74 (obtained by

Dr. Crown using the WAIS-IV in 2009). 4 Dr. Frumkin now

questions the 80 that Haliburton obtained on the WAIS-R in 1992.

He now believes that score was overestimated by approximately four

points, due to the Flynn effect. 5

3. Dr. Frumkin explained that the standard error of
measurement (SEM) is not always five points on each side of the
score obtained; rather it depends on the test. For the WAIS-IV, the
SEM is four points down and five points up, according to Dr.
Frumkin.

4. Haliburton also references a score of 75 on another WAIS-R
administered by Dr. LaFehr Hession in 1988, but the trial court did
not rely on this score for reasons unknown, and Haliburton does
not allege that the trial court erred in failing to consider this score.
Thus, we do not consider it here.

5. “The Flynn effect refers to a theory in which the intelligence
of a population increases over time, thereby potentially inflating

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 Dr. Frumkin testified that, in his opinion, Haliburton does

have “significantly subaverage intelligence,” based upon the fact

that “he came across as someone with intellectual deficiencies,”

“[h]e was a very poor historian,” and based on the score of 74 on the

WAIS-IV in 2010. Additionally, Dr. Frumkin observed during his

evaluation that Haliburton had very poor vocabulary, was very

concrete in his thinking, had to have questions asked simply and

repeated, was “off on timeframes,” and that his reading, spelling,

and arithmetic abilities varied from the fourth to fourteenth

percentiles.

To assess Haliburton’s adaptive functioning, Dr. Frumkin

administered the Adaptive Behavior Assessment System-II (ABAS-II)

to Haliburton’s sister, Helen, and his brothers, John R. and John H.

Dr. Frumkin determined the raw numbers produced by those

assessments to be invalid for Helen and John H. but noted that

there was general agreement among the siblings in terms of

Haliburton’s strongest and weakest areas.

performance on IQ examinations. The accepted increase in scoring
is approximately three points per decade or 0.33 points per year.”
Quince v. State, 241 So. 3d 58, 60 n.2 (Fla. 2018).

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 Dr. Frumkin opined that Haliburton has two or more deficits

in adaptive functioning and thus meets the adaptive deficits prong

of the intellectual disability standard. Dr. Frumkin found that

Haliburton had deficits in the conceptual domain based on his poor

math skills, but he was vague in his testimony regarding in which

other domain Haliburton had substantial deficits. In his report, Dr.

Frumkin wrote, “He would have had at least major deficits in

functional academic skills, using community resources, self-

direction, and in communication.”

Dr. Frumkin also testified that onset of Haliburton’s condition

occurred before the age of eighteen. This was based upon school

records indicating that Haliburton had intellectual problems and

difficulty functioning in school, was in special education classes,

and a notation in the records that he “needs help in all salient

areas.” Based on his findings regarding Haliburton’s subaverage

intelligence, adaptive deficits, and the timeframe during which

those problems manifested, Dr. Frumkin concluded that Haliburton

is intellectually disabled.

Dr. Brannon evaluated Haliburton in June 2018. Prior to the

evaluation, Dr. Brannon reviewed school records, prison records,

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and the scores on the WAIS tests previously administered to

Haliburton. During the evaluation, Haliburton said that he

completed the ninth grade in special education classes but had

problems in school with hyperactivity, attentiveness, and following

rules. He admitted to always being in some kind of trouble at

school and bullying his peers. Haliburton discussed being

sentenced to a “reform school” as a juvenile and serving three stints

in prison as an adult, prior to the murder. He also had multiple

arrests for driving offenses. Haliburton said he had never been

married but reported being involved in a seventeen or eighteen-year

relationship and living with his girlfriend at the time of his arrest for

the murder. Haliburton reported using alcohol and a wide variety

of drugs—heroin, amphetamines, barbiturates, cocaine, and

marijuana—on a daily basis, beginning around age fourteen or

fifteen. He provided Dr. Brannon with an accurate medical history

and a rather elaborate personal history, which was not contradicted

by any of the records. He reported being able to prepare basic

meals but said that the women in his life had done most of the

cooking and laundry for him. Haliburton reported reading every

day in prison. He reads from the Koran, westerns, political books,

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black history, and books about the history of the United States and

of Islam. He mentioned reading Liberty Defined by Ron Paul, [A]

People’s History of the United States by Howard Zinn, and But They

Didn’t Read Me My Rights! by Michael Cicchini, and he was able to

convey to Dr. Brannon an understanding of what he had read in

those books. He said he watches world news, C-SPAN, political

shows, and follows the progress of bills.

Dr. Brannon observed that Haliburton’s vocabulary was rich

with words that would be expected from someone who was well

within their upper high school years, which, Dr. Brannon said, is

more consistent with the 79-80 IQ scores Haliburton achieved than

the scores of 74. Haliburton could discuss concepts like “rights,”

“liberty,” and “justice,” and understand them in an abstract

fashion. He had made multiple clear and grammatically correct

written requests to prison authorities about the living conditions

and his medical and dental needs, which Dr. Brannon reviewed.

Regrading Haliburton’s IQ, Dr. Brannon acknowledged the

Flynn effect and the practice effect6 but said there is no way of

6. This Court has explained that “[t]he practice effect causes
an individual’s IQ scores to rise if that individual was administered

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applying those theories in any sort of reasonable scientific way to

Haliburton. Dr. Brannon concluded that Haliburton had neither

significantly subaverage general intellectual functioning nor

significant deficits in his adaptive functioning. In Dr. Brannon’s

opinion, Haliburton did not meet the criteria for intellectual

disability.

Following the evidentiary hearing, Haliburton filed, with leave

of court, a supplement to his then-pending Hurst-related amended

3.851 motion. In those filings, Haliburton contended that his death

sentence, which was imposed following a nonunanimous jury

recommendation of death, violated the Fifth, Sixth, Eighth, and

Fourteenth Amendments, as described in both Hurst v. Florida, 577

U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016),

receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020),

cert. denied, 141 S. Ct. 1051 (2021). The trial court ultimately

issued an order on September 27, 2019, denying Haliburton’s

intellectual disability and Hurst claims. This appeal follows.

the same IQ test within one year.” Thompson v. State, 208 So. 3d
49, 56 n.9 (Fla. 2016).

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 II. ANALYSIS

Haliburton raises three issues on appeal. He asserts that the

trial court erred in failing to find that he is intellectually disabled;

that section 921.137(4), Florida Statutes, which requires a

defendant to prove his intellectual disability by clear and convincing

evidence, is unconstitutional; and that his death sentence imposed

following a nonunanimous jury recommendation of death violates

the Fifth, Sixth, Eighth, and Fourteenth Amendments. We address

each claim in turn.

A. Intellectual Disability

In 2002, the United States Supreme Court held in Atkins, 536

U.S. at 321, that the Eighth and Fourteenth Amendments to the

United States Constitution forbid the execution of persons with

intellectual disability. The Court observed that “clinical definitions

of [intellectual disability] require not only subaverage intellectual

functioning, but also significant limitations in adaptive skills such

as communication, self-care, and self-direction that became

manifest before age 18.” 536 U.S. at 318. Similarly, under Florida

law, “ ‘intellectual disability’ means significantly subaverage general

intellectual functioning existing concurrently with deficits in

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adaptive behavior and manifested during the period from

conception to age 18.” § 921.137(1), Fla. Stat. (2019).

“Significantly subaverage general intellectual functioning” is defined

as “performance that is two or more standard deviations from the

mean score on a standardized intelligence test specified in the rules

of the Agency for Persons with Disabilities.”7 Id. “Adaptive

behavior” “means the effectiveness or degree with which an

individual meets the standards of personal independence and social

responsibility expected of his or her age, cultural group, and

community.” Id. Thus, to establish intellectual disability as a bar

to execution, a defendant must demonstrate (1) significantly

subaverage general intellectual functioning; (2) concurrent deficits

in adaptive behavior; and (3) manifestation of the condition before

age eighteen.

Until 2014, section 921.137(1) was interpreted as requiring

that a defendant have an IQ of 70 or below in order to meet the first

prong of the intellectual disability standard—significantly

7. The tests approved by the rules of the Agency for Persons
with Disabilities are the Stanford-Binet Intelligence Scale and the
Wechsler Intelligence Scale. Fla. Admin. Code R. 65G-4.011.

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subaverage general intellectual functioning—and failure to present

an IQ score of 70 or below precluded a finding of intellectual

disability. Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007),

abrogated by Hall, 572 U.S. 701. In Hall, the Supreme Court held

that Florida’s “rigid rule” interpreting section 921.137(1) as

establishing a strict IQ test score cutoff of 70 or less in order to

present additional evidence of intellectual disability “creates an

unacceptable risk that persons with intellectual disability will be

executed, and thus is unconstitutional.” 572 U.S. at 704. The

Court further held that when assessing the intellectual functioning

prong of the intellectual disability standard, courts must take into

account the standard error of measurement (SEM) of IQ tests. Id.

at 723. And “when a defendant’s IQ test score falls within the test’s

acknowledged and inherent margin of error [±5], the defendant

must be able to present additional evidence of intellectual disability,

including testimony regarding adaptive deficits.” Id. If the

defendant fails to prove any one of the three components of the

statutory test for intellectual disability, the defendant will not be

found to be intellectually disabled. See Salazar v. State, 188 So. 3d

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799, 812 (Fla. 2016); accord Williams v. State, 226 So. 3d 758, 773

(Fla. 2017); Snelgrove v. State, 217 So. 3d 992, 1002 (Fla. 2017).

“In reviewing determinations of [intellectual disability], this

Court examines the record for whether competent, substantial

evidence supports the determination of the trial court.” State v.

Herring, 76 So. 3d 891, 895 (Fla. 2011). “This Court ‘does not

reweigh the evidence or second-guess the circuit court’s findings as

to the credibility of witnesses.’ ” Id. (quoting Brown v. State, 959

So. 2d 146, 149 (Fla. 2007)).

1. Significantly Subaverage General Intellectual Functioning

The relevant IQ scores presented by Haliburton at the

evidentiary hearing ranged from 74 to 80. His most recent testing

using the WAIS-IV in 2010 has a confidence interval of 70-79,

“meaning there’s a 95 percent chance that his IQ score is between

70 and 79,” according to Dr. Frumkin. Applying the SEM to

Haliburton’s highest IQ score reveals that his true IQ could be as

high as 85. Dr. Brannon testified regarding the reasons why the

other evidence in this case points to Haliburton’s true IQ being in

the 79-80 range, rather than on the low end of 70. Dr. Brannon

based his assessment on his evaluation of Haliburton, his review of

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Dr. Frumkin’s 2010 report, Haliburton’s prison records, and

Haliburton’s earlier IQ scores of 80—achieved twice—on the WAIS-R

and 79 on the WAIS-III.

The trial court found “Dr. Brannon’s testimony here both

credible and persuasive.” The trial court declined to apply the

Flynn effect to Haliburton’s scores of 80, stating that “while the

Flynn effect is something to consider, both Dr. Frumkin and Dr.

Brannon agreed it would be against standard practice to adjust an

individual’s score by a certain number of points to account for the

Flynn effect.”

We conclude that the trial court’s finding that Haliburton

failed to establish that he has significantly subaverage general

intellectual functioning is supported by competent, substantial

evidence in the record. Dr. Brannon thoroughly explained why the

totality of the evidence in this case supports the conclusion that

Haliburton’s true IQ is in the 79-80 range—which does not satisfy

this prong—including his scores on the Test of Adult Basic

Education, which were consistent with an IQ of 79-80, his

vocabulary, his reading and television interests, his ability to think

abstractly, his ability to give an accurate, detailed account of his

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personal history, and Dr. Brannon’s testimony that “you can’t fake

good,” “meaning a person’s higher IQ scores will more accurately

reflect a person’s capacity, while lower IQ scores achieved on other

test administrations might be attributable to a variety of potential

factors.” The trial court found Dr. Brannon to be more credible

than Dr. Frumkin, and we will not now disturb that finding.

The trial court’s decision not to apply the Flynn effect to

Haliburton’s scores of 80, and view them as scores of 76, is also

supported by the evidence. The trial court noted that “both Dr.

Frumkin and Dr. Brannon agreed it would be against standard

practice to adjust an individual’s score by a certain number of

points to account for the Flynn effect.” Indeed, Dr. Frumkin

testified that “the Flynn effect has to do with populations, it doesn’t

have to do with individuals so you can’t say a specific individual is

automatically X number of points slower based upon the Flynn

effect, the true IQ score has to do with populations.” Dr. Frumkin

said that he disagrees with psychologists who “subtract that Flynn

effect number from the IQ score and say this is the person’s IQ.” He

“do[es not] believe one should do that because [the Flynn effect] has

to do with population[s] and not . . . a specific individual.” Dr.

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Frumkin noted that “[b]oth the score of 80 [in 1992] is what it was

and the score of 74 in 2010 is what it was, except that score of 80, I

didn’t talk about Flynn.”

Dr. Brannon agreed that the Flynn effect is something to

consider when using older, standardized tests, but he also testified

that there is no way of applying the Flynn effect “in any sort of

reasonable scientific way” to Haliburton or any individual. He

explained that it is especially important to be cautious with the

Flynn effect in regards to individuals at the lower end of the IQ

spectrum, because “the brightest people or average to above average

people” at the high end of the spectrum—who, Dr. Brannon said,

would intuitively be expected to be more intellectually curious—may

be affected the most by the Flynn effect. Dr. Brannon further

opined that “applying group norms [like the Flynn effect] to

individuals is trickery[,] especially when you don’t know where they

fall in the distribution.” Moreover, this Court previously observed

that there is no requirement that the Flynn effect be applied to IQ

scores in intellectual disability cases. Quince v. State, 241 So. 3d

58, 61 (Fla. 2018). We therefore find no error in the trial court’s

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decision to decline to apply the Flynn effect to adjust Haliburton’s

scores of 80 downward.

2. Deficits in Adaptive Behavior

Section 921.137(1) defines “adaptive behavior” as “the

effectiveness or degree with which an individual meets the

standards of personal independence and social responsibility

expected of his or her age, cultural group, and community.” This

Court has further elaborated on this prong, as explained in the

DSM-5 8 and the AAIDD-119:

The AAIDD-11 and DSM-5 definitions are mostly similar
to the statutory definition. Compare § 921.137(1), with
DSM-5, at 37, and AAIDD-11, at 6, 43. Comparable to
IQ scores, the AAIDD-11 recommends that adaptive
deficits be established by standardized tests when an
individual scores approximately two standard deviations
below the population mean, with the results accounting
for SEM. AAIDD-11, at 47; see also DSM-5, at 37.
The DSM-5 divides adaptive functioning into three
broad categories or “domains”: conceptual, social, and
practical. DSM-5, at 37; see also AAIDD-11, at 43. The
conceptual domain “involves competence in memory,
language, reading, writing, math reasoning, acquisition of

8. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013).

9. American Association on Intellectual and Developmental
Disabilities, Intellectual Disability: Definition, Classification, and
Systems of Supports (11th ed. 2010).

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 practical knowledge, problem solving, and judgment in
novel situations.” DSM-5, at 37. The social domain
“involves awareness of others’ thoughts, feelings, and
experiences; empathy; interpersonal communication
skills; friendship abilities; and social judgment.” Id. The
practical domain “involves learning and self-management
across life settings, including personal care, job
responsibilities, money management, recreation, self-
management of behavior, and school and work task
organization.” Id. According to the DSM-5, adaptive
deficits exist when at least one domain “is sufficiently
impaired that ongoing support is needed in order for the
person to perform adequately in one or more life settings
at school, at work, at home, or in the community.” Id. at
38; see AAIDD-11, at 43.

Wright v. State, 256 So. 3d 766, 773 (Fla. 2018).

Dr. Frumkin testified,

[Y]ou know there are three main areas; conceptual, social
and practical, but there’s a number of different
subcategories in these different areas. And if you’re
showing that someone has to have two or more deficits in
adaptive functioning, it’s two of more of any of these
dozens of various different areas that you’re looking at.

But while Dr. Frumkin considers a domain “sufficiently impaired

that ongoing support is needed” if there is a deficit in one of the

subcategories within a domain, both the DSM-5 and AAIDD-11

require not just a deficit in a subcategory of a domain, but that an

entire domain be “sufficiently impaired that ongoing support is

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needed in order for the person to perform adequately in” that

domain.

Dr. Frumkin administered the Wide Range Achievement Test-4

(WRAT-4) to Haliburton, which measures functional academics, on

which Haliburton achieved a word reading standard score of 78

(seventh percentile), a sentence comprehension standard score of

83 (thirteenth percentile) a reading composite standard score of 78

(seventh percentile), a spelling standard score of 84 (fourteenth

percentile), and a math computation score of 73 (fourth percentile).

Because Haliburton’s math computation score was low on the

WRAT-4, Dr. Frumkin concluded that “he has a deficit there.”

Essentially, Dr. Frumkin considered Haliburton’s low functional

academic score in math computation to be sufficient to establish

that Haliburton’s conceptual domain “is sufficiently impaired that

ongoing support is needed in order for [Haliburton] to perform

adequately in one or more life settings.”

Dr. Frumkin also administered the ABAS-II to three of

Haliburton’s siblings but ultimately concluded that the numerical

results were invalid. Dr. Frumkin found that his interviews of

Haliburton’s siblings “produced the best information” regarding

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Haliburton’s adaptive functioning. He noted that Haliburton’s

sister said that Haliburton had major problems in reading and

could not comprehend what he did read; he could not do laundry as

a child, and as he got older, he still could not really cook, clean, or

wash clothes; and as a teenager, he tried to help younger children

with their homework, but he did not know how to do the work

himself. John R. said that Haliburton “wasn’t smart” in math,

reading, and science; he did not believe Haliburton knew how to

cook; and that Haliburton’s “memory is not too good.” And John H.

said that Haliburton lacked common sense; only knew how to solve

problems by fighting; was unable to follow directions involving more

than three city blocks; would leave out the middle of a story; and

was unable to communicate instructions to people. Dr. Frumkin

also interviewed Haliburton’s former employer, Charles Johnson,

who described Haliburton as a “worker bee” who did as he was told

and did not have the mental capacity to organize or plan ahead.

Besides Haliburton’s deficit in math, which falls in the

conceptual domain, Dr. Frumkin did not reveal on direct

examination in which other domain Haliburton was sufficiently

impaired. When pressed on cross-examination regarding in which

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other domain he found sufficient impairment, Dr. Frumkin was still

vague. A conjunctive review of Dr. Frumkin’s report and testimony

suggests that the two domains in which he found deficits sufficient

to conclude that Haliburton met the adaptive functioning prong

were the conceptual and social. But because Dr. Frumkin testified

that the social domain was Haliburton’s strongest domain, it is not

entirely clear that Dr. Frumkin found any deficit in the social

domain sufficient to meet the criteria for this prong. Dr. Frumkin

did write in his report, “While his relative strength is in the area of

social and interpersonal skills, he still seems deficient in that as

well,” but Dr. Frumkin’s opinion that Haliburton “seems deficient”

is equivocal and does not imply that the deficit was such that it

rendered the entire social domain sufficiently impaired that ongoing

support is needed. And Dr. Frumkin did not testify that Haliburton

had deficits in all three domains but made only the conclusory

statement he had “little doubt that Mr. Haliburton has, and had,

concurrent deficits in adaptive functioning in at least two areas.”

Dr. Brannon disagreed with Dr. Frumkin’s conclusion that

Haliburton met the adaptive deficits prong. Dr. Brannon reviewed

Haliburton’s school records and noted that in the last three years of

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his formal education his grades ranged from above average to failing

and it was reported that Haliburton did not complete his education

due to behavioral problems. Dr. Brannon reviewed prison records

from a previous incarceration which noted that Haliburton was a

full-time student, enrolled in both an academic program, in which

he was described as having “average ability,” and a vocational auto

body repair program. Haliburton was also enrolled in a CETA auto

body program before he went to prison. Dr. Brannon noted that

Haliburton made multiple clear and grammatically correct written

requests over a period of time to prison authorities about the living

conditions and his medical and dental needs.

In concluding that Haliburton’s deficits do not rise to the level

required to satisfy the second prong of the intellectual disability

standard, Dr. Brannon wrote that Haliburton’s “ability to engage in

Activities of Daily Living (ADLs) appeared intact at the time of his

arrest and during the course of the current assessment.” But

according to the DSM-5, the severity of the deficits required for an

intellectual disability diagnosis “limit functioning in one or more

activities of daily life.” DSM-5, at 33.

The trial court agreed with Dr. Brannon, writing,

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 Ultimately, having considered the evidence and
record in this case, the Court agrees with Dr. Brannon’s
assessment. On balance, while the Court finds
Defendant does suffer significant deficits in mathematical
reasoning skills, the Court does not find Defendant’s
remaining deficits—of which there appear to be several—
to be of such magnitude as to say that one or more of the
adaptive function domains “is sufficiently impaired that
ongoing support is needed.” Wright, 256 So. 3d at 773
(citing DSM-V, at 38.). Stated differently, the Court finds
Defendant has failed to demonstrate by clear and
convincing evidence that he satisfies the second prong of
the intellectual disability analysis.

The trial court’s conclusion that Haliburton “has failed to

demonstrate by clear and convincing evidence that he satisfies the

second prong of the intellectual disability analysis” is supported by

competent, substantial evidence. This Court has defined clear and

convincing evidence as an “intermediate level of proof [that] entails

both a qualitative and quantitative standard. The evidence must be

credible; the memories of the witnesses must be clear and without

confusion; and the sum total of the evidence must be of sufficient

weight to convince the trier of fact without hesitancy.” In re Davey,

645 So. 2d 398, 404 (Fla. 1994). Here, Dr. Frumkin’s testimony

and written evaluation both lack clarity as to the domains in which

he found Haliburton to have impairment sufficient to satisfy the

second prong of the intellectual disability standard. Dr. Frumkin

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never explained why he found these domains “sufficiently impaired

that ongoing support is needed in order for the person to perform

adequately in one or more life settings” or in which “life setting”

ongoing support was needed. Having “little doubt” that Haliburton

has concurrent deficits in adaptive functioning in at least two areas

and “seem[ing] deficient” in a domain do not rise to the level of clear

and convincing evidence.

As to the math deficit, Dr. Frumkin did not explain why being

in the fourth percentile in functional academic math would require

“ongoing support.” Moreover, Dr Frumkin was unable to establish

these adaptive deficits “by standardized tests when an individual

scores approximately two standard deviations below the population

mean,” as suggested by the AAIDD-11 and DSM-5. Although Dr.

Frumkin administered the WRAT-4 to Haliburton, he did not

indicate that any of Haliburton’s scores—including his math

computation score—fell approximately two standard deviations

below the population mean.

In his initial brief to this Court, Haliburton also asserts that in

concluding that he did not meet the adaptive deficits prong, the trial

court did what Moore v. Texas, 137 S. Ct. 1039, 1050 (2017),

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“expressly forbids it to: it scoured the record for putative strengths

to offset or explain the deficits it did find.” We disagree.

Moore—as do the DSM-5 and the AAIDD-11—cautioned

against overemphasizing perceived adaptive strengths when

evaluating the adaptive deficits prong. 137 S. Ct. at 1050. But we

have long recognized that

the trial court does not weigh a defendant’s strengths
against his limitations in determining whether a deficit in
adaptive behavior exists. Rather, after it considers “the
findings of experts and all other evidence,” Fla. R. Crim.
P. 3.203(e), it determines whether a defendant has a
deficit in adaptive behavior by examining evidence of a
defendant’s limitations, as well as evidence that may
rebut those limitations.

Dufour v. State, 69 So. 3d 235, 250 (Fla. 2011). Rather than

“overemphasizing perceived adaptive strengths” or “scour[ing] the

record for putative strengths to offset or explain the deficits it did

find,” the trial court here, in its detailed analysis of this prong,

properly considered the findings of both experts as well as all of the

other evidence, including the evidence that rebutted many of the

limitations posited by Dr. Frumkin, before concluding that

Haliburton failed to meet this prong.

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 3. Age of Onset

As to the third prong of the intellectual disability standard, the

trial court noted that “[w]hile Dr. Frumkin and Dr. Brannon

disagreed as to the level of Defendant’s deficits, they did both agree

that those deficits manifested prior to Defendant’s eighteenth

birthday.” The parties appear to incorrectly interpret this statement

as a finding that Haliburton established that he met this third

prong, but that is not what the trial court said. The trial court was

simply saying that Haliburton’s deficits—which it had already

determined were insufficient to establish intellectual disability—

were also present when he was a minor.

Where significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior is not

established, there is no relevant condition that could have

manifested prior to age eighteen to establish the third prong.

Manifestation prior to age eighteen of subaverage intellectual

functioning or adaptive deficits that do not rise to the levels

required to meet the first two prongs of the intellectual disability

standard is irrelevant to a determination of intellectual disability.

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 Because competent, substantial evidence supports the trial

court’s findings that Haliburton failed to establish that he has

significantly subaverage intellectual functioning or concurrent

deficits in adaptive behavior sufficient to meet the second prong of

the intellectual disability standard, Haliburton necessarily cannot

meet the third prong. Thus, the trial court did not err in failing to

find that Haliburton meets the third prong.

4. Holistic Review

Haliburton argues that the trial court failed to conduct a

“holistic review” that considers all three prongs of the intellectual

disability standard together in an interdependent fashion.

Haliburton relies on Hall and language in Oats v. State, 181 So. 3d

457, 467-68 (Fla. 2015) (citing Hall, 572 U.S. at 723), stating that

“if one of the prongs is relatively less strong, a finding of intellectual

disability may still be warranted based on the strength of other

prongs.” Without endorsing the quoted portion of Oats, we note

that language has no application in this case. Here, we do not have

“one” prong that is “relatively less strong”; we have three prongs

that were not established.

Further,

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 Hall recognizes that the existence of an IQ score
evidencing significantly subaverage general intellectual
functioning is a threshold requirement for determining
whether an individual is intellectually disabled: “For
professionals to diagnose—and for the law then to
determine—whether an intellectual disability exists once
the SEM applies and the individual’s IQ score is 75 or
below the inquiry would consider factors indicating
whether the person had deficits in adaptive functioning.”
Hall, [572 U.S. at 714] (emphasis added).

Walls v. State, 213 So. 3d 340, 350 (Fla. 2016) (Canady, J.,

dissenting), overruled by Phillips v. State, 299 So. 3d 1013 (Fla.

2020). Thus, even in cases where a trial court considers evidence of

multiple prongs of the intellectual disability test, the “threshold,

independent requirement [that significantly subaverage general

intellectual functioning be established in accordance with section

921.137(1) once the SEM is taken into account] should not be cast

aside in the name of ‘holistic review.’ ” Id. (Canady, J., dissenting).

Moreover, the trial court did conduct a “holistic review.” It did

not reach its conclusion that Haliburton failed to establish that he

is intellectually disabled based solely on his failure to meet the first

prong of the intellectual disability standard but instead proceeded

to conduct a detailed analysis of the testimony concerning the

adaptive deficits prong and the “conjunctive and interrelated

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assessment” of all three prongs of the standard as completed by

Hall, 572 U.S. at 723, and Oats. Thus, we conclude that the trial

court did not err in failing to conduct a “holistic review.”

B. Section 921.137(4), Florida Statutes

Haliburton also argues that he is entitled to relief because

section 921.137(4), Florida Statutes (2019), which requires that

defendants establish their intellectual disability by clear and

convincing evidence, is unconstitutional under Atkins and the

Eighth and Fourteenth Amendments to the United States

Constitution, and that his claim of intellectual disability should

have been analyzed under the more lenient preponderance of the

evidence standard instead. But the trial court discredited

Haliburton’s own expert, without whose testimony the

preponderance of the evidence standard clearly could not be met.

Thus, because we conclude that Haliburton’s claim would have

failed even under the preponderance of the evidence standard, we

need not address the constitutionality of the clear and convincing

evidence standard in section 921.137(4). See Singletary v. State,

322 So. 2d 551, 552 (Fla. 1975) (“[C]ourts should not pass upon the

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constitutionality of statutes if the case in which the question arises

may be effectively disposed of on other grounds.”).

C. Nonunanimous Death Recommendation

During the pendency of the intellectual disability litigation

below, Haliburton filed a successive 3.851 motion in light of Hurst,

577 U.S. 92, Hurst v. State, 202 So. 3d 40, Asay v. State, 210 So.

3d 1 (Fla. 2016), and Mosley v. State, 209 So. 3d 1248 (Fla. 2016),

contending that his death sentence imposed following a

nonunanimous jury recommendation of death violated the Fifth,

Sixth, Eighth, and Fourteenth Amendments. Haliburton concedes

that we have in other cases repeatedly rejected the same arguments

he has made but wishes to preserve them for federal review,

pursuant to our instruction in Sireci v. State, 773 So. 2d 34, 41

n.14 (Fla. 2000). We therefore affirm the denial of the successive

motion containing these claims without further discussion.

III. CONCLUSION

For these reasons, we affirm the trial court’s order denying

Haliburton’s motion for a determination of intellectual disability as

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a bar to execution and his amended successive motion for

postconviction relief.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Palm Beach County,
Jeffrey Colbath, Judge – 501982CF001893AXXXMB

Neal Dupree, Capital Collateral Regional Counsel, Brittney N. Lacy,
Assistant Capital Collateral Regional Counsel, and Todd G. Scher,
Special Assistant Capital Collateral Regional Counsel, Southern
Region, Fort Lauderdale, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda
Giger, Assistant Attorney General, West Palm Beach, Florida,

for Appellee

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