IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-DR-01085-SCT
LEROY LYNCH
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/05/1998
TRIAL JUDGE: HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MISSISSIPPI OFFICE OF CAPITAL POST-
CONVICTION COUNSEL BY:
LOUWLYNN VANZETTA WILLIAMS
ROBERT RYAN
WILLIAM J. CLAYTON
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY: LAWRENCE Y. MELLEN
NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: GRANTED IN PART; DENIED IN PART -
02/15/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. Leroy Lynch was charged with capital murder for his role in the 1995 robbery and
killing of Richard Lee. Lynch was convicted following a jury trial and he was sentenced to
death by lethal injection. This Court affirmed the convictions and sentence in Lynch v. State,
877 So. 2d 1254 (Miss. 2004). He now seeks leave to file a motion for post-conviction relief
in the trial court.
Statement of the Case
¶2. On November 15, 1995, Lynch drove with Kevin Scott from Clarksdale to Cleveland,
Mississippi to search for a white Oldsmobile Sierra to replace the one Scott had wrecked the
day before. They scouted the parking lots of several retailers until they found Richard Lee
parking a white Oldsmobile Sierra at the local Jitney Jungle. The pair followed Lee to his
home, where Scott confronted Lee with a gun and shot him in the head. Scott took Lee’s car
and Lynch drove Scott’s car home. Police later found Lee’s abandoned car as well as a
jacket which contained Kevin Scott’s wallet and a pistol which Lynch had taken from a
relative. Lynch testified that he was unaware that Scott would kill anyone. Lynch was
represented at trial by Azki Shah and represented on direct appeal by Azki Shah and Cheryl
Webster.
Analysis
I. Ineffective Assistance of Trial Counsel.
¶3. This issue warrants further consideration in the trial court. The State asserts that
Petitioner’s claim of ineffective assistance should be procedurally barred pursuant to Miss.
Code Ann. §§99-39-21(1) and 99-39-21(3) (Rev. 2000) which read in pertinent part:
(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues
or errors either in fact or law which were capable of determination at trial
and/or on direct appeal, regardless of whether such are based on the laws and
the Constitution of the state of Mississippi or of the United States, shall
constitute a waiver thereof and shall be procedurally barred, but the court may
upon a showing of cause and actual prejudice grant relief from the waiver.
(3) The doctrine of res judicata shall apply to all issues, both factual and legal,
decided at trial and on direct appeal.
2
(Emphasis added). The State misreads the statute it cites, as this procedural bar applies when
a defendant fails to raise issues which were ripe for presentation to the court on direct appeal.
That was not the case for Petitioner, who was represented by the same counsel, Azki Shah,
during trial and direct appeal.
¶4. This Court has explained that where the defendant is represented by the same counsel
at trial and on appeal, ineffective assistance claims have been asserted via proper
post-conviction proceedings, even though the point was not preserved at trial and was not
raised on direct appeal. See Dunn v. State, 693 So. 2d 1333, 1139-40 (Miss. 1997); Read v.
State, 430 So. 2d 832, 838 (Miss.1983). This Court has explained that “[i]t is totally
unrealistic to expect that the lawyer charged with ineffectiveness will raise and preserve the
issue in the trial court. Even if he raised the issue, it is absurd to fantasize that this lawyer
might effectively or ethically litigate the issue of his own ineffectiveness.” Read, 430 So.
2d at 838. The procedural bar the State cites does not prohibit review in this case.
The benchmark for judging any claim of ineffectiveness [of counsel] must be
whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
¶5. One who claims ineffective assistance of counsel claimant must demonstrate that
counsel's performance was deficient and that the deficiency prejudiced the defense of the
case. Id. at 687. "Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that renders
3
the result unreliable." Stringer v. State, 454 So. 2d 468, 477 (Miss.1984) (citing Strickland,
466 U.S. at 687).
¶6. Defense counsel enjoys a presumption of competence. Washington v. State, 620 So.
2d 966 (Miss.1993). But even where professional error is shown, a reviewing court must
determine whether there is "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Mohr v. State, 584 So. 2d
426, 430 (Miss.1991). For purposes of death penalty review, the most important inquiry is
"whether there is a reasonable probability that, absent the errors, the sentencer--including an
appellate court, to the extent it independently re-weighs the evidence--would have concluded
that the balance of the aggravating and mitigating circumstances did not warrant death."
Strickland v. Washington, 466 U.S. at 695.
¶7. In the present case, petitioner argues that trial counsel committed professional error
in failing to file pre-trial motions until shortly before trial. Petitioner asserts that trial
counsel’s lack of preparation is evidenced by the fact that he sought three continuances from
May 1996 through November 1997. Petitioner also points to the fact that trial counsel was
involved in other cases at the time which eventually lead to Shah’s disbarment. Petitioner
further highlights the fact that trial counsel made an untimely and unsuccessful attempt to file
just one jury instruction on circumstantial evidence. Trial counsel additionally failed to file
a petition for writ of habeus corpus to have Scott testify at the trial. Scott had consistently
told law enforcement officers that Lynch had nothing to do with the crime. It is undisputed
that trial counsel failed to timely file his list of witnesses to be offered in mitigation of
4
sentencing. The record indicates that these witnesses might have testified to Lynch’s mental
state, as Petitioner alleges that he is mentally retarded, an assertion addressed in a separate
issue.
¶8. Shah’s untimely disclosure of some mitigation witnesses led to their exclusion from
the sentencing phase of the trial. Even the trial court characterized this omission as
ineffective assistance of counsel. This certainly counts as professional error for purposes of
making out a claim of ineffective assistance of counsel. It is somewhat speculative to say
that a jury might not have voted to impose a death sentence had they known of any mental
deficiency.
¶9. As to trial counsel’s licensing woes, although Shah’s performance in other cases was
so deficient as to lead to his disbarment, it does not follow that he was presumptively
ineffective in his defense of Lynch on the charge of capital murder.
¶10. Defense counsel’s failure to pursue Petitioner’s mental retardation claim and to offer
sufficient mitigating evidence, at a minimum, entitles Petitioner to a hearing before the trial
court on the issue of ineffective assistance of counsel. At the hearing, the trial court can
determine whether defense counsel was deficient and in turn, the extent to which that
deficiency, if any, prejudiced Petitioner.
II. Aggravating Factors Not Charged in the Indictment.
¶11. Lynch argues that his death sentence must be vacated because the aggravating
circumstances which charged capital murder were not included in the indictment. This issue
5
could have been raised on direct appeal and should now be procedurally barred from
consideration. Miss. Code Ann. § 99-39-21 (Rev. 2000).
¶12. Lynch cites the rulings of the United States Supreme Court in Aprendi v. New Jersey,
530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), in which that Court held
unconstitutional a sentencing scheme where a judge rather than a jury determined whether
there were aggravating circumstances present to warrant imposition of enhanced punishment.
¶13. Apprendi was charged with firing shots into the home of an African-American family
in New Jersey. He pled guilty to possession of a firearm for unlawful purpose. After the
judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis
that it was a hate crime. Apprendi argued that he was entitled to have the finding on
enhancement decided by a jury. The U.S. Supreme Court held, "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi,
530 U.S. at 490.
¶14. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue
of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S.
639 (1990), of a jury deciding guilt and a judge making findings on aggravating factors,
could survive the Apprendi decision. The Supreme Court decided it could not.
[W]e overrule Walton to the extent that it allows a sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary for imposition
of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because
Arizona's enumerated aggravating factors operate as "the functional equivalent
of an element of a greater offense," Apprendi, 530 U.S., at 494, n. 19, 120
S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.
6
Ring, 536 U.S. at 609. The Court specifically noted, "Ring's claim is tightly delineated: He
contends only that the Sixth Amendment required jury findings on the aggravating
circumstances asserted against him." Id. at 597, n.4. Ring did not contend that his indictment
was constitutionally defective, as does Lynch.
¶15. As a practical matter, Rule 7.06 of the Uniform Circuit and County Court Rules
provides that an indictment shall be “a plain, concise and definite written statement of the
essential facts constituting the offense charged and shall fully notify the defendant of the
nature and cause of the accusation.” A defendant is not entitled to formal notice of the
aggravating circumstances to be employed by the prosecution, and an indictment for capital
murder puts a defendant on sufficient notice that the statutory aggravating factors will be
used against him. Smith v. State, 729 So. 2d 1191, 1224 (Miss. 1998) relying on Williams
v. State, 445 So. 2d 798 (Miss. 1984).
We believe that the fact that our capital murder statute lists and defines
to some degree the possible aggravating circumstances surely refutes the
appellant's contention that he had inadequate notice. Anytime an individual
is charged with murder, he is put on notice that the death penalty may result.
And, our death penalty statute clearly states the only aggravating
circumstances which may be relied upon by the prosecution in seeking the
ultimate punishment.
Williams, 445 So. 2d at 804-05. This Court has consistently found this issue (failure to
charge the aggravating factors in the indictment) to be without merit. Havard v. State,928
So. 2d 771(Miss. 2006); Knox v. State, 901 So.2d 1257, 1269 (Miss. 2005); Berry v. State,
882 So. 2d 157, 172 (Miss. 2004).
7
III. The Eighth Amendment and the Death Row Phenomenon.
¶16. Counsel for petitioner argues, without the benefit of authority, that Lynch has suffered
cruel and unusual punishment simply by being placed on death row. A claim based on the
Eighth Amendment could have been raised on direct appeal and should now be procedurally
barred from further consideration. Lynch and other clients of the MOPCC claim to be
languishing in fear of their execution and the uncertainty of when it will be carried out. The
brief cites to the writings of existentialist author Albert Camus. Counsel for Lynch argues
that hid execution eleven years after the offense will serve no purpose. This Court has
considered and rejected this argument before. Wilcher v. State, 863 So. 2d 776, 834 (Miss.
2003); Russell v. State, 849 So. 2d 95, 144-45 (Miss. 2003); Jordan v. State, 786 So. 2d 987,
1028 (Miss. 2001). The issue is both procedurally barred and devoid of any merit.
IV. Improper Admission of Crime Scene Photographs
¶17. Petitioner argues that he was denied his right to a fundamentally fair trial because
photographs of the deceased were admitted into evidence during the sentencing phase of his
trial. Trial counsel objected, and the prosecution countered by arguing that the photos would
illustrate the acts which Lynch aided and abetted. The issue was capable of being raised on
direct appeal and is now procedurally barred from collateral review in post-conviction
proceeding. Miss. Code Ann. § 99-39-21(Rev. 2000).
V. Cumulative Error.
¶18. Lynch argues generally that the alleged preceding errors, taken as a whole, deprived
him of a fair trial. The standard for this Court's review of an appeal from a capital murder
8
conviction and death sentence is clear. Convictions upon indictments for capital murder and
sentences of death must be subjected to "heightened scrutiny." Balfour v. State, 598 So. 2d
731, 739 (Miss. 1992) (citing Smith v. State, 499 So. 2d 750, 756 (Miss. 1986); West v.
State, 485 So. 2d 681, 685 (Miss. 1985)). Under this standard of review, all doubts are to
be resolved in favor of the accused because "what may be harmless error in a case with less
at stake becomes reversible error when the penalty is death." Id. (quoting Irving v. State, 361
So. 2d 1360, 1363 (Miss. 1978)). See also Fisher v. State, 481 So. 2d 203, 211 (Miss. 1985).
¶19. With regard to the issue of alleged cumulative error, this Court took note of those
capital cases in which the opinions of this Court articulated differing analyses. For example,
in McFee v. State, 511 So. 2d 130, 136 (Miss. 1987) (rape conviction and life sentence
affirmed), this Court individually addressed each assignment of error and found none
(harmless or otherwise) by the trial court. Based on that finding, the Court stated:
In sum, McFee contends that the cumulative effect of the alleged errors was
sufficient to prejudice the jury, essentially allowing the State to convict him
not of rape, but of murder. Yet, as discussed, neither the introduction of the
photographs nor the prosecutor's comments constituted reversible error. As
there was no reversible error in any part, so there is no reversible error to the
whole.
Id. However, in Jenkins v. State, 607 So. 2d 1171, 1183-84 (Miss. 1992) (capital murder
conviction and death sentence reversed and remanded), in which this Court found both
harmless error and reversible error by the trial court, the Court stated:
If reversal were not mandated by the State's discovery violations, we would
reverse this matter based upon the accumulated errors of the prosecution.
This Court has often ruled that errors in the lower court that do not require
reversal standing alone may nonetheless taken cumulatively require reversal.
9
Id. (citing Griffin v. State, 557 So. 2d 542, 552-53 (Miss. 1990)). And in Manning v. State,
726 So. 2d 1152, 1198 (Miss. 1998) (capital murder convictions and death sentence
affirmed), after addressing 21 assignments of error with sub-parts, and after making
numerous findings of no "reversible error," the Court stated:
This Court has held that individual errors, not reversible in themselves, may
combine with other errors to make up reversible error. Hansen v. State, 592
So. 2d 114, 142 (Miss. 1991)[n5 ];Griffin v. State, 557 So. 2d 542, 553 (Miss.
1990). The question under these and other cases is whether the cumulative
effect of all errors committed during the trial deprived the defendant of a
fundamentally fair and impartial trial. Where there is "no reversible error in
any part, . . . there is no reversible error to the whole." McFee v. State, 511 So.
2d 130, 136 (Miss. 1987).
Manning, 726 So. 2d at 1198.
¶20. To reconcile these different views, the Byrom court held:
What we wish to clarify here today is that upon appellate review of cases in
which we find harmless error or any error which is not specifically found to be
reversible in and of itself, we shall have the discretion to determine, on a case-
by-case basis, as to whether such error or errors, although not reversible when
standing alone, may when considered cumulatively require reversal because
of the resulting cumulative prejudicial effect. That having been said, for the
reasons herein stated, we find that errors as may appear in the record before us
in today's case, are individually harmless beyond a reasonable doubt, and when
taken cumulatively, the effect of all errors committed during the trial did not
deprive Michelle Byrom of a fundamentally fair and impartial trial. We thus
affirm Byrom's conviction and sentence.
Byrom, 863 So.2d at 846-47. In the present case, the record supports no finding of error,
harmless or otherwise, upon the part of the trial court. We hold harmless any error on the
part of trial counsel. Consequently, there can be no prejudicial cumulative effect and no
adverse impact upon his constitutional right to fair trial. This issue is without merit.
VI. Eligibility for Execution
10
¶21. Petitioner alleges that he is mentally retarded within the meaning of the United States
Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002) and thereby entitled to present
evidence of such at a hearing before the trial court. In Atkins, the United States Supreme
Court determined that imposition of the death penalty on mentally retarded inmates
constituted cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution. Id. at 321. The Atkins decision did not define who is or is not
mentally retarded for purposes of eligibility for a death sentence but instead "leaves to the
States the task of developing appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences." Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477
U.S. 399, 405, 416-17, 91 L. Ed 2d 335, 106 S. Ct. 2595 (1986)).
¶22. This Court, in Chase v. State, 873 So. 2d 1013, 1029 (Miss. 2004), established these
guidelines for determining mental retardation.
We hold that no defendant may be adjudged mentally retarded for
purposes of the Eighth Amendment, unless such defendant produces, at a
minimum, an expert who expresses an opinion, to a reasonable degree of
certainty, that: 1. The defendant is mentally retarded, as that term is defined by
the American Association on Mental Retardation and/or The American
Psychiatric Association; 2. The defendant has completed the Minnesota
Multiphasic Personality Inventory-II (MMPI-II) and/or other similar tests, and
the defendant is not malingering.
(emphasis added) Id. at 1029.
¶23. Accordingly, in Mississippi it is acceptable to utilize the MMPI-II and/or other similar
tests. Id. at 1029. This Court did not intend by its holding to declare the MMPI-II or any one
test as exclusively sufficient. Having a variety of tests at their disposal, courts are provided
with a safeguard from possible manipulation of results and diminished accuracy which might
11
result if courts are limited to one test. The United States Supreme Court mentioned the
Wechsler Adult Intelligence Scales Test. See Atkins, 536 U.S. at 309 n.5. Other tests, as
suggested by mental health experts, include the Structured Interview of Reported Symptoms
(SIRS), the Validity Indicator Profile (VIP), and the Test of Memory Malingering (TOMM).
See Douglass Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M.L. Rev.
255, 277-78 (Spring 2003).
¶24. The Court’s interpretation in this case as to the proper test to be administered with
regard to an Atkins hearing supercedes any contrary decisions. This Court neither endorses
the MMPI-II as the best test nor declares that it is a required test, and decisions that state
otherwise are expressly overruled. See, e.g. Scott v. State, 938 So. 2d 1233, 1238 (Miss.
2006) (holding that despite the doctor’s use of a battery of other tests, administration of the
MMPI-II is required prior to an adjudication of a claim of mental retardation); Goodin v.
State, 856 So. 2d 267, 277 (Miss. 2003) (declaring that the MMPI-II is to be administered
for a determination of mental retardation since it is the best test to detect malingering). Our
trial courts are free to use any of the above listed and approved tests or other approved tests
not listed to determine mental retardation and/or malingering by a defendant.
¶25. Counsel for Petitioner offers a report that Lynch has an intelligence quotient (IQ) of
72. Mild mental retardation is typically used to describe people with an IQ level within an
approximate range of 55-75. The State does not concede that Lynch is mentally retarded but
admits that Lynch has made an adequate showing that he is entitled to be heard on the issue.
12
¶26. In accordance with the guidelines set forth in Chase and further set out herein, this
Court remands the matter to the trial court, where it may employ any one of numerous
acceptable tests, for an Atkins hearing. The trial court, after being presented with sound
mental evidence prepared by experts, should render its decision accordingly.
¶27. POST CONVICTION RELIEF GRANTED IN PART; DENIED IN PART.
WALLER, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ.,
CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. RANDOLPH, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, J.
SMITH, C.J., JOINS IN PART. COBB, P.J., NOT PARTICIPATING.
RANDOLPH, JUSTICE, SPECIALLY CONCURRING:
¶28. I concur with the majority opinion. I write separately for the benefit of our trial courts
who are charged with the awesome responsibility of deciding whether a defendant is
mentally retarded. The difficulty in performing this arduous task is accentuated by
disagreements among mental health practitioners on the definition of mental retardation. One
author fairly describes the trial court’s quandary as follows:
[A] source of uncertainty stems from the fact that, for many items, the test
administrator has to decide how many points a subject’s response deserves. In
normal clinical use, these imperfections do not matter a great deal. When
testing a defendant for whom a one or two point change in IQ score has life
and death implications, however, clinicians may have a hard time being
dispassionately ‘objective’ about how they interpret a response. The net result
of all these imperfections is that judges, or juries, will often have a hard time
deciding on which side of the arbitrary line between mentally retarded and
merely ‘dull’ a defendant falls.
Douglas Mossman, M.D., Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M.L. Rev.
255, 270 (Spring 2003).
13
¶29. Although the American Association of Mental Retardation and the American
Psychiatric Association caution against “using diagnostic categories for legal and social
purposes,” courts must have some benchmark. Id. at 271. “Atkins tells mental health
professionals that despite any ‘cautionary statements,’ courts will use their classification to
solve legal and social problems that lie far beyond the purpose and intent of psychiatric
diagnosis.” Id. at 289-90 (referring to Atkins v Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002)).
¶30. Some organizations to which many mental retardation professionals belong are
zealous advocates for the abolishment of the death penalty, whether administered to retarded,
dull, average, bright or genius individuals. Yet courts must rely upon these professionals, and
other related experts, to comply with the mandate of the United States Supreme Court. In
Atkins, the Supreme Court declared mentally retarded defendants are not to be executed
under Eighth Amendment protection. See Atkins, 536 U.S. at 321. Unfortunately, the Atkins
decision offered no substantive or procedural guidance to assist state trial courts in
determining which defendants accurately qualify for such protection.
¶31. Resolution of such a complex question is both complicated and demanding as the
science of determining mental retardation is ever-changing. “We are at the epicycle stage of
psychiatry where astronomy was before Copernicus and biology before Darwin. Our
inelegant and complex current descriptive system will undoubtedly be replaced by simpler,
more elegant models.” Mossman, 33 N.M.L. Rev. at 277-78.
¶32. Further,
14
[T]he diagnosis of mental retardation– despite its clinical usefulness– is an
entirely artificial construct: the line that separates persons who receive this
diagnosis from individuals whose mental capacities are only well below
average is a changing and arbitrary one. There is no better illustration of this
last point than decisions of the [American Association of Mental Retardation]
to ‘update’ its definition of mental retardation ten times over the past century.
Id. at 265 (emphasis added).
¶33. The dilemma faced by the trial courts is highlighted by the following: (1) the
definition promulgated by the American Association of Mental Retardation differs from the
American Psychiatric Association’s definition; (2) these definitions may be subject to
change; and (3) cautionary statements have been issued regarding their use in legal
proceedings. However, in the absence of utilizing such definitions, courts would have little
or no assistance in making this determination. Thus, the courtroom becomes the crossroads
where the paths of science and law must necessarily intersect.
¶34. The AAMR states:
Mental retardation refers to 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, community use, self-
direction, health and safety, functional academics, leisure, and work. Mental
retardation manifests before age 18.
Chase v. State, 873 So.2d 1013, 1028 (Miss. 2004) (quoting Atkins, 536 U.S. at 308, n.3,
citing Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed.1992)
(emphasis added)).
¶35. The APA definition is as follows:
The essential feature of Mental Retardation is significantly subaverage
general intellectual functioning (Criterion A) that is accompanied by
significant limitations in adaptive functioning in at least two of the following
15
skill areas: communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B). The onset must occur before age 18
years (Criterion C). Mental Retardation has many different etiologies and may
be seen as a final common pathway of various pathological processes that
affect the functioning of the central nervous system."
Id. (emphasis added).
¶36. A host of tests are utilized to determine one’s intelligence quotient, or IQ, such as the
Stanford-Binet Intelligence Scale, the Wechsler Adult Intelligence Scale-Revised, and the
Wechsler Adult Intelligence Scales III. However, the numbers IQ tests generate are
far from being perfectly reliable measurements of a person’s cognitive ability.
Under the best conditions, IQ tests have a ‘measurement error’ of about five
points. An individual who scores say, 68 on one administration has a ninety-
five percent chance of scoring between 63 and 73 on subsequent
administrations. More than half of those persons whose IQ results fall in the
mildly retarded range receive scores of 65 to 70, that is, their scores’ margin
of error will include 70.
Mossman, 33 N.M.L.Rev. at 269-70 (citations omitted).
¶37. Furthermore,
IQ, after all, is not the factor that render[s] the imposition of the death
penalty against those with mental retardation unjust. Rather, IQ is a proxy and
an imperfect one at that, for a combination of factors, such as maturity,
judgment, and the capability of assessing the consequences of one’s conduct,
that determine the relative culpability of a mentally retarded killer. Culpability,
not IQ, should be the benchmark.
Id. at 287 (citation omitted).
¶38. Dr. Mossman further explained:
IQ scores are set up so that the “mean” or average score is 100, and the
‘standard deviation’- a statistical term referring to mathematical properties of
the Bell Curve is 15. Approximately ninety-five percent of a normally
distributed population lies within two standard deviations of the mean, and
individuals lying outside this arbitrary statistical boundary are often deemed
16
‘abnormal.’ A cut-off score of ‘approximately 70,’ two standard deviations
below the mean score of 100 is the intelligence score used in the APA’s
current diagnostic manual to separate persons with mental retardation from
those designated as having ‘borderline intellectual functioning.’ The modifier
‘approximately’ in the APA’s diagnostic criteria reminds mental health
professionals that using 70 as a cut-off score reflects a statistical convention
rather than a natural boundary between two distinctive groups of individuals.
When conscientious mental health professionals interpret IQ scores and plan
treatment interventions, they keep in mind that someone who scores a 69 on
an IQ test is practically indistinguishable from someone who scores 71, and
that two persons with an IQ of, say, 67 and 73 have much more in common
with each other than a person who scores 88. If pre-Atkins state statutes and
post-Atkins decisions are any guide, however, legislatures and courts often
ignore such considerations when they put Atkins into practice. Of the eighteen
state statutes in effect when Atkins was decided, eleven had language that
made specific IQ scores part of the criteria for exempting a defendant from
facing a possible death penalty.
Id. at 268 (citations omitted).
¶39. Of the eleven states cited above, nine of these states have a statute which specifically
references an IQ score of 70 or below. Of these nine states, four of these states have held an
IQ score of 70 or below creates a rebuttable presumption of mental retardation, while the
remaining five states have stated a score of 70 or below, combined with subaverage adaptive
functioning quantifies mental retardation. Of the remaining two states, Arkansas sets its
requisite IQ level at 65 and Arizona holds that a score of 75 requires additional assessment,
where an IQ of 65 creates a rebuttable presumption of mental retardation.1 Id. at 268-69.
1
Md. Ann. Code § 2-202(b)(1)(i) (2002) (IQ "of 70 or below"); Ky. Rev. Stat. §
532.130(2) (2002) (IQ "of 70 or below"); Tenn. Code Ann. § 39-13-203(a)(1) (2003) (IQ
"of 70 or below"); N.M. Stat. Ann. § 31-20A-2.1(A) (2003) (IQ "of 70 or below"); Ark.
Code Ann. § 5-4-618 (2) (2003) ("rebuttable presumption of mental retardation when a
defendant has an intelligence quotient of sixty-five (65) or below"); Wash. Rev. Code §
10.95.030(2)(c) (2003) (defining significantly below average intellectual functioning as
IQ less than 70); Neb. Rev. Stat. § 28-105.01(3) (2002) (stating that IQ less than 70 is
"presumptive evidence of mental retardation"); S.D. Codified Laws § 23A- 27A-26.2
17
Oklahoma’s definition [of mental retardation] is substantially similar
to the one found in DSM-IV-TR and requires a defendant “to prove he or she
is mentally retarded by a preponderance of the evidence at trial.” The court
notes that “‘[i]ntelligence quotients are one of the many factors that may be
considered’ and ‘are not alone determinative’ of mental retardation.” Despite
this, the court’s definition states that “to be considered mentally retarded,” a
defendant must have “an intelligence quotient of seventy or below, as reflected
by at least one scientifically recognized, scientifically approved, and
contemporary intelligent quotient test.”
Id. at 275 (citation omitted).
¶40. An additional issue in all mental retardation claims is: Can the defendant achieve a
desired diagnosis through manipulating, feigning or malingering for the purpose of avoidance
of punishment? This issue was of concern to Justice Scalia in his Atkins dissent. He quoted
Matthew Hale from three centuries ago, “[Determination of a person’s incapacity] is a matter
of great difficulty, partly from the easiness of counterfeiting this disability... and partly from
the variety of the degrees of this infirmity, whereof some are sufficient, and some are
insufficient to excuse persons in capital offenses. . . .” Atkins v. Virginia, 536 U.S. 304, 353,
122 S.Ct. 2242, 2268, 153 L.Ed. 2d 335, 374 (2002) (Scalia, J., dissenting) (quoting 1 Hale,
Pleas of the Crown, at 32-33). Such concern is not relegated to Justice Scalia and Sir Chief
(2000) (stating that IQ less than 70 is "presumptive evidence of mental retardation");
Ariz. Rev. Stat. Ann. 13-703.02 (2003) (pre-screening IQ score of 75 triggers additional
assessment; IQ less than 65 establishes rebuttable presumption of mental retardation);
Fla. Stat. Ann. § 921.137(1) (2002) ("'significantly subaverage general intellectual
functioning' means performance that is two or more standard deviations from the mean
score on a standardized intelligence test"); N.C. Sess. Law 2001-346 § 1 ("'significantly
subaverage general intellectual functioning' means performance that is two or more
standard deviations from the mean score on a standardized intelligence test").
Mossman, 33 N.M.L. Rev. at 291.
18
Justice Hale. “A man may counterfeit himself to be mad, he may do it so cunningly as it
cannot be discerned whether he be mad or so.” Mossman, 33 N.M.L. at n. 176 (quoting Joel
Eigen, Historical Developments in Psychiatric Forensic Practice: The British Experience, 6
Int’l J.L. & Psychiatry 423, 427-28 (1984) (quoting statement made in 1681 by Sir Robert
Holbron)).
¶41. Faking mental retardation in order to avoid punishment is not a matter to be taken
lightly by any court, in any era.
Presumably, courts can deal with false claims of mental retardation as well as
they deal with false claims of medical and psychological problems that arise
in a variety of other legal circumstances. Moreover, in considering Justice
Scalia’s concern [in Atkins], it is important to recognize that assessing
malingering is a core skill for mental health clinicians, particularly in contexts
where being (or appearing) ill may confer advantages (e.g. avoiding
punishment. . .) on the evaluee.
Id. at 277 (citation omitted).
¶42. Accordingly, safeguards should be instituted in order to ensure the validity of a claim
of mental retardation, including tests in support thereof, so as to prevent the manipulation of
the results and/or diagnosis. As the majority opinion clearly points out, courts may consider
any number of tests to accurately determine the existence vel non of mental retardation.
When considering the possibility of “faking,” “feigning” or “malingering” mental
retardation, this Court has previously given credence to a portion of the MMPI-II that
measures validity. However, the MMPI-II is not the sui generis test for the determination of
mental retardation and according to one advocate, should be abandoned altogether. See
Denis William Keyes, Use of the Minnesota Multiphasic Personality Inventory (MMPI) to
Identify Malingering Mental Retardation, 42 Mental Retardation 151 (April 2004).
19
Nonetheless, other professionals continue to endorse its use. “Mental health professionals can
use several tests specifically designed to detect feigned psychological problems, including
the validity scales on the [MMPI-II]. . . .” Mossman, 33. N.M.L. at 278.
¶43. The validity of a claim of mental retardation is best determined by a true and accurate
picture of the defendant’s formative years. Only if such evidence is non-existent or the
defendant is still in his teens, should post-crime testing and evaluations serve as a guide to
determine the validity of a claim of mental retardation. Post-crime testing increases the
likelihood of attempts to manipulate, feign or through malingering, distort the diagnosis.
¶44. Of evidentiary import, the definitions by both the AAMR and the APA agree that
mental retardation manifests itself before the age of 18. Accordingly, the better practice, i.e.,
the practice most likely to achieve the truth, is the consideration of historical data found in
school, behavioral study, medical/mental health, employment records, and other pertinent
data, inter alia, generated before the age of 18, to determine if mental retardation manifested
itself before the age of 18. Some mental health practitioners suggest, “[E]xamination of
diagnostic criteria suggests that mental retardation is hard to fake successfully, because the
criteria require evidence that retardation began during childhood– evidence, that is, that the
condition existed years before the defendant committed a capital crime.” Id. at 276. The APA
manual warns, “when deciding whether a person meets a particular legal standard of
responsibility, ‘additional information is usually required beyond that contained in the
[manual’s] diagnosis. This might include information about the individual’s functional
impairments and how these particular impairments affect the particular abilities in question.’”
20
Id. at 272 (citations omitted). A complete examination of a defendant’s background is
essential to determine the validity of a claim of mental retardation.
¶45. Navigating through the turbid waters of the science of mental retardation no doubt
presents difficulty. Not only must the trial court have at its disposal the requisite data and
mental health evidence, the trial court must analyze all proffered testimony and reject not
only “junk science,” but also “junk scientists.” See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
CARLSON, J., JOINS THIS OPINION. SMITH, C.J., JOINS THIS OPINION
IN PART.
21