D AcrE u-7-05- D ELAta THOMAS C . BOWLING V COMMONWEALTH OF KENTUCKY
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D AcrE u-7-05-
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APPELLANT
THOMAS C . BOWLING
V
11
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
04-CI-4033
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
At the conclusion of a one-week trial in December 1990, a Fayette Circuit Court
jury convicted Appellant, Thomas Clyde Bowling, of two counts of murder and one count
of assault in the fourth degree . The Commonwealth introduced evidence at trial from
which the jury could and did believe beyond a reasonable doubt that Appellant caused
his vehicle to collide with a vehicle occupied by Edward Lee and Ernestine Lynn Earley
and their two-year-old child while .they were parked in front of Mr. and Mrs. Earley's dry
cleaning business ; and that Appellant exited his vehicle, approached the Earleys'
vehicle, and intentionally fired gunshots at them at point-blank range, killing Mr. and
Mrs . Earley and wounding their child. Appellant was sentenced to death for each of the
two murders . His convictions and sentences were affirmed on direct appeal . Bowling v.
Commonwealth , 873 S .W.2d 175 (Ky. 1993), cert. denied , Bowling v. Kentucky, 513
U .S . 862 (1994) . His Criminal Rule (RCr) 11 .42 motion was overruled and that decision
was also affirmed on appeal. Bowling v. Commonwealth , 981 S .W .2d 545 (Ky. 1998),
cert . denied, Bowling v. Kentucky, 527 U .S . 1026 (1999). His petition in federal district
court for a writ of habeas corpus, 28 U.S .C . § 2254, was denied, Bowling v. Parker, 138
F.Supp .2d 821 (E.D . Ky. 2001), and that decision was affirmed on appeal, Bowling v.
Parker, 344 F .3d 487 (6th Cir. 2003), cert . denied sub nom . , Bowling v. Haeberlin ,
, 125 S.Ct. 281 (2004), thus exhausting all of Appellant's normal avenues of
U .S. .
appeal. The Governor of Kentucky signed a death warrant scheduling Appellant's
execution for November 30, 2004. KRS 431 .240(4). The imminence of the execution
spawned the usual flurry of last-minute litigation . Compare McQueen v. Parker, 950
S.W.2d 226 (Ky. 1997) ; McQueen v. Commonwealth , 949 S.W.2d 70 (Ky. 1997), cert .
denied, 521 U .S . 1130 (1997) ; McQueen v. Patton , 948 S .W.2d 418 (Ky. 1997) ;
McQueen v. Commonwealth , 948 S .W .2d 415 (Ky. 1997); McQueen v. Patton, 948
S.W .2d 121 (Ky . 1997); McQueen v. Parker, 948 S .W.2d 121 (Ky. 1997) . Both this
Court and the Franklin Circuit Court have issued orders staying Appellant's execution
pending resolution of his various motions and separate actions challenging anew his
sentence of death .
This appeal is from the dismissal of a civil action that Appellant filed in the
Fayette Circuit Court against Glenn Haeberlin, warden of the Kentucky State
Penitentiary where Appellant presently resides on death row, claiming he is exempt
from the death penalty because he is mentally retarded . The action is not a petition for
a writ of habeas corpus, KRS 419 .020, because Appellant does not allege that he is
being unlawfully detained . Fryrear v. Parker, 920 S.W.2d 519 (Ky. 1996) (writ of
habeas corpus improper vehicle by which to achieve commutation of sentence as
opposed to immediate release) . In fact, this action seeks exactly the opposite continuation of detention in lieu of execution . Nor does Appellant seek a hearing before
the circuit court of the county in which he is detained . KRS 419 .030. Rather, Appellant
styled this action a "Petition to Vacate Thomas C . Bowling's Death Sentence Based on
Mental Retardation," citing as procedural authority Civil Rule (CR) 60 .02(d) and (f)
(motion for relief from final judgment because of (d) fraud affecting the proceedings, or
(f) any other reason of an extraordinary nature justifying relief).
Appellant did not name the Commonwealth of Kentucky as a party defendant
even though the action seeks modification of a judgment rendered pursuant to an
indictment prosecuted against him by the Commonwealth . CR 19.01 . Appellant also
moved the Fayette Circuit Court to order the Department of Finance to provide him with
funds up to $5,000 to hire a "mental retardation expert" to assist him in the preparation
and litigation of this action . The Fayette Circuit Court summarily dismissed both the
petition and the motion for funds, concluding that Appellant could not collaterally attack
his death sentence by way of a separate civil action, and that Appellant had not timely
asserted his mental retardation claim . Appellant appeals to this Court as a matter of
right. Ky. Const. § 110(2)(b) ; Skaggs v. Commonwealth , 803 S.W.2d 573,577 (Ky .
1990) (Court of Appeals has no authority to review any matter affecting the imposition of
death sentence), sentence vacated on other grounds , Skaggs v. Parker, 235 F.3d 261
(6th Cir. 2000) . For the reasons set forth herein, we affirm .
I. INDEPENDENT CIVIL ACTION.
Civil Rule 60.02 is an available remedy in a criminal case . Fanelli v.
Commonwealth , 423 S.W .2d 255, 257 (Ky. 1968) . The rule was adopted as a substitute
for the common law writ of corum nobis, a procedure for addressing "errors in matter[s]
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of fact which (1) had not been put into issue or passed on, (2) were unknown and could
not have been known to the party by the exercise of reasonable diligence and in time to
have been otherwise presented to the court, or (3) which the party was prevented from
so presenting by duress, fear, or other sufficient cause ." Gross v. Commonwealth , 648
S .W .2d 853, 856 (Ky. 1983) . "In summary, CR 60.02 is not a separate avenue of
appeal to be pursued in addition to other remedies, but is available only to raise issues
which cannot be raised in other proceedings." McQueen , 948 S.W.2d 415, 416 . Thus,
it is available only to resolve issues that could not have been raised at trial, on direct
appeal, or by a motion for relief under RCr 11 .42. Gross, 648 S.W.2d at 856. Appellant
asserts and we agree that CR 60.02 is an appropriate vehicle by which to seek relief
from a judgment that is no longer valid because it violates a constitutional right that was
not recognized as such when the judgment was entered. However, a CR 60.02 motion
is not a separate action but a continuation or reopening of the same proceeding that
culminated in the judgment under attack . Fanelli , 423 S.W .2d at 257. Thus, the parties
would necessarily be the same . Appellant has filed a separate civil action, not a CR
60.02 motion .
Civil Rule 60 .03 permits an independent action for relief from a judgment "on
appropriate equitable grounds." However, "[r]elief shall not be granted in an
independent action if the ground of relief sought has been denied in a proceeding by
motion under Rule 60 .02 . . . ." CR 60.03.
Generally, claimants seeking equitable relief through independent actions
must meet three requirements . Claimants must (1) show that they have
no other available or adequate remedy; (2) demonstrate that movants'
own fault, neglect, or carelessness did not create the situation for which
they seek equitable relief ; and (3) establish a recognized ground - such as
fraud, accident, or mistake - for the equitable relief .
Campaniello Imports, Ltd . v. Saporiti Italia S.p.A . , 117 F.3d 655, 662 (2nd Cir. 1997)
(emphasis added) . Further, an independent action for equitable relief from a judgment
is unavailable if the complaining party has, or by exercising proper diligence would have
had, an adequate remedy in the original proceedings . Charles A. Wright, Arthur R.
Miller & Mary K. Kane, 11 Fed. Prac . & Proc . Civ.2d § 2868, at n.9 (2004 pocket part) .
The same principle applies in federal habeas proceedings "to prevent a grave
miscarriage of justice ." Buell v. Anderson , 48 Fed . Appx . 491, 498-99 (6th Cir. 2002)
(quoting United States v. Beggerly , 524 U.S . 38, 47, 118 S .Ct. 1862, 1868, 141 L.Ed.2d
32 (1998)), cert . denied , 536 U .S . 989 (2002) . Since an independent action under CR
60 .03 is an attack upon a judgment, the original parties to the judgment must be named
as party defendants . Kurt A. Philipps, Jr ., 7 Kentucky Practice, Rules of Civil Procedure
Annotated , CR 60.03, cmt. 1, at 453 (5th ed . 1995). Appellant's separate civil action
was not properly brought under CR 60 .03 because Appellant did not name the
Commonwealth as the party defendant.
However, the Attorney General, who also defended the previous appeals of the
original action, the denial of the RCr 11 .42 motion, and the denial of the federal habeas
corpus petition, has assumed the defense of this action . For that reason and because
this is a death penalty case, we choose not to dismiss it on the technical grounds of
counsel error or failure to join indispensable parties. Rather, we will treat the action as
having been properly brought under CR 60 .03 . Cf . Wallace v. Commonwealth , 327
S .W .2d 17, 18 (Ky. 1959) (treating complaint for a writ of corum nobis as a motion for
relief under CR 60 .02(6)') . Civil Rule 21 (Misjoinder and nonjoinder of parties)
provides :
Misjoinder of parties is not ground for dismissal of any action.
Parties may be dropped or added by order of the court on motion of any
party or of its own initiative at any stage of the action and on such terms
as are just. . . .
(Emphasis added .) Pursuant to CR 21, we have, by separate order, substituted the
Commonwealth of Kentucky as party defendant/appellee in place of Haeberlin .
Nevertheless, for reasons explained infra , Appellant is not entitled to relief from his
death sentence because he has not alleged an error that was unknown and could not
have been known to him by the exercise of reasonable diligence at the time of his trial,
RCr 11 .42 motion, or petition for a writ of habeas corpus. Gross, 648 S .W.2d at 856; cf .
Collins v. Commonwealth, 297 S.W .2d 54, 57 (Ky. 1956) (writ of corum nobis will not lie
where advantage could have been taken of the alleged error at the trial, as where the
facts complained of were known before or at the trial or could by due diligence have
been ascertained) . Nor has he made a prima facie showing of mental retardation that
would warrant an evidentiary hearing .
II. ATKINS v. VIRGINIA.
Appellant grounds his attack on his death sentence solely on the United States
Supreme Court's holding in Atkins v. Virginia, 536 U.S . 304, 122 S .Ct. 2242, 153
L. Ed .2d 335 (2002), that the Eighth Amendment's proscription against cruel and
As adopted effective July 1, 1953 (1952 Ky. Acts, ch . 18), CR 60.02(6) contained a
savings clause that "[t]his rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or to grant
relief to a defendant not actually personally notified, or to set aside a judgment for fraud
upon the court." In 1960, the provision was deleted and replaced with CR 60 .03 . See
Brumley v. Lewis, 340 S.W.2d 599, 599 (Ky. 1960) . An almost identical savings clause
remains a part of Fed. R . Civ . Proc . (FRCP) 60(b).
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unusual punishment "places a substantive restriction on the State's power to take the
life of a mentally retarded offender ." Id. a t 321, 122 S .Ct. at 2252 (internal citation and
quotation omitted) . In so holding, the Court abrogated its previous decision in Pen
v.
L n augh , 492 U .S. 302, 109 S .Ct . 2934, 106 L.Ed.2d 256 (1989), that the Eighth
Amendment did not preclude execution of a capital offender solely on the basis of the
offender's mental retardation . Id. at 340, 109 S.Ct. at 2958 . When Penry was decided,
only the federal Anti-Drug Abuse Act of 19882 and the statutes of two states, Georgia3
and Maryland, prohibited the execution of mentally retarded offenders . Id . at 334, 109
S .Ct. at 2955. Penry concluded that such was insufficient, even when added to the
then-fourteen states that did not impose the death penalty under any circumstances
5
to
show a national consensus supporting a conclusion that executions of mentally retarded
offenders were categorically prohibited by the Eighth Amendment . Id . After Penry was
decided, however:
In 1990, Kentucky and Tennessee enacted statutes similar to those in
Georgia and Maryland, as did New Mexico in 1991, and Arkansas,
Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995,
when New York reinstated its death penalty, it emulated the Federal
Government by expressly exempting the mentally retarded . Nebraska
followed suit in 1998 . There appear to have been no similar enactments
during the next two years, but in 2000 and 2001 six more States - South
Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina joined the procession.
Atkins , 536 U .S. at 314-15, 122 S.Ct. at 2248 (emphasis added and footnotes omitted) .
Considering this evidence and noting that only five of the states that did not prohibit the
2 Now see 21 U .S.C. § 848(e)(2)(I) .
3 Ga. Code Ann. § 17-7-131 (j) (Supp. 1988) .
4 Md . Code Ann ., Art . 27, § 412(f)(1) (1989), repealed 2002 Md. Acts, ch . 26, § 1 ; now
see Md . Code, Crim. Law § 2-202(b)(2) .
5 Today, only twelve states do not impose the death penalty under any circumstances :
Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota,
Rhode Island, Vermont, West Virginia and Wisconsin.
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execution of the mentally retarded "have executed offenders possessing a known IQ
[intelligence quotient] less than 70 since we decided Pen !y," id . at 316, 122 S.Ct. at
2249, the Court concluded that the practice had become "truly unusual" so that a
national consensus had developed against it. Id.
Atkins recognized a serious disagreement as to which offenders are, in fact,
retarded, id, at 317, 122 S .Ct. at 2250, and specifically assigned to the states the
authority to resolve this issue.
As was our approach . . . with regard to insanity, we leave to the State[s]
the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.
Id. (internal citation and quotation omitted) . The Court then noted uncritically that the
definitions of mental retardation in the various existing state statutes were not identical,
"but generally conform to the clinical definitions set forth in n.3, supra ." Id . n .22. In
footnote 3, Atkins quoted at length from the definitions of mental retardation provided in
American Association on Mental Retardation (AAMR), Mental Retardation: Definition,
Classification, and Systems of Supports (9th ed. 1992) (hereinafter " Mental
Retardation "), and American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (4th ed . 2000) (hereinafter "DSM-IV"):
The American Association on Mental Retardation (AAMR) defines mental
retardation as follows: "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, home living, social skills, community use, self-direction, health
and safety, functional academics, leisure, and work. Mental retardation
manifests before age 18 ." Mental Retardation : Definition, Classification,
and Systems of Supports 5 (9th ed.1992) .[6]
6 The tenth edition of Mental Retardation contains a more concise definition : "Mental
retardation is a disability characterized by significant limitations both in intellectual
functioning and in adaptive behavior as expressed in conceptual, social, and practical
skills . This disability originates before age 18." Mental Retardation 1 (10th ed . 2002) .
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The American Psychiatric Association's definition is similar: "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 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." Diagnostic and Statistical Manual of Mental Disorders 41 (4th
ed. 2000) . " Mild" mental retardation is typically used to describe people
with an IQ level of 50-55 to approximately 70. Id., at 42-43 .
536 U.S. at 309 n .3, 122 S.Ct. at 2245 n.3 (emphasis added) . Both definitions require
the concurrence of three criteria : (1) significantly subaverage intellectual functioning,
and (2) significant limitations in adaptive functioning in at least two skill areas, (3) both
of which became manifest prior to age eighteen . See also id . at 318, 122 S.Ct. at 2250.
All three criteria must be satisfied before a person is deemed mentally retarded . Accord
Murphy v. State, 66 P .3d 456, 459 (Okla. Crim. App. 2003) . Thus, if the offender does
not have an IQ in the mental retardation range, he or she is not deemed mentally
retarded despite the presence of significant limitations in adaptive functioning that
became manifest before age eighteen . The offender in Atkins had an IQ of 59, which
qualified him as ''mildly mentally retarded," thus eligible for the exemption under the
"significantly subaverage intellectual functioning" criterion . Id. at 308-09, 122 S .Ct. at
2245 . The case was subsequently remanded to the trial court for a new sentencing
hearing solely on the issue of mental retardation. See Atkins v. Commonwealth , 581
S . E .2d 514,517 (Va . 2003).
In summary, Atkins (1) held that the execution of a mentally retarded offender is
proscribed by the Eighth Amendment of the United States Constitution ; (2) assigned to
the separate states the authority to determine who is a mentally retarded offender; (3)
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cited with approval the three criteria established by the AAMR and the American
Psychiatric Association as necessary to prove mental retardation ;' (4) cited uncritically
the DSM-IV's recognition that a "mildly mentally retarded" person typically has an IQ of
50-55 to approximately 70 ; and (5) cited uncritically Kentucky's already-existing
statutory scheme proscribing the execution of mentally retarded offenders .
Atkins did not specifically address (6) whether its holding was retroactive ; (7)
whether the issue can be procedurally defaulted (waived) by a failure to timely assert it;
(8) the time frame, if any, at which a finding of mental retardation is relevant, i.e. , time of
offense, time of trial, or time of execution ; (9) whether the issue is to be resolved by
judge or jury ; (10) allocation of the burden of proof and the standard of proof applicable
to that burden, Lqc . , preponderance of the evidence, clear and convincing evidence, or
beyond a reasonable doubt ; and (11) what showing, if any, is required to trigger
entitlement to a trial or evidentiary hearing on the issue.
III. KENTUCKY STATUTES.
The relevant Kentucky statutes provide inter alia:
KRS 532.130. Definitions for KRS 532.135 and 532.140.
A defendant with significant subaverage intellectual functioning
existing concurrently with substantial deficits in adaptive behavior
and manifested during the developmental period is referred to in
KRS 532 .135 and 532.140 as a seriously mentally retarded
defendant. "Significantly subaverage general intellectual
functioning" is defined as an intelligence quotient (I .Q.) of seventy
(70) or below.
See Hill v . Anderson, 300 F.3d 679, 682 (6th Cir. 2002) ("[W]hen discussing
retardation in Atkins , the Supreme Court cited with approval psychologists' and
psychiatrists' 'clinical definitions of mental retardation,' and presumably expected that
states will adhere to these clinically accepted definitions when evaluating an individual's
claim to be retarded .")
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KRS 532.135 . Determination by court that defendant is mentally
retarded .
(1)
(2)
(3)
(4)
At least thirty (30) days before trial, the defendant shall file a motion
with the trial court wherein the defendant may allege that he is a
seriously mentally retarded defendant and present evidence with
regard thereto . The Commonwealth may offer evidence in rebuttal .
At least ten (10) days before the beginning of the trial, the court
shall determine whether or not the defendant is a seriously mentally
retarded defendant in accordance with the definition in KRS
532.130.
The decision of the court shall be placed in the record .
The pretrial determination of the trial court shall not preclude the
defendant from raising any legal defense during the trial. If it is
determined the defendant is a seriously mentally retarded offender,
he shall be sentenced as provided in KRS 532.140.
KRS 532.140 . Mentally retarded offender not subject to execution Authorized sentences .
(1)
(2)
(3)
[N]o offender who has been determined to be a seriously mentally
retarded offender under the provisions of KRS 532.135, shall be
subject to execution . The same procedure as required in KRS
532.025 and 532.030 shall be utilized in determining the sentence
of the seriously mentally retarded offender under the provisions of
KRS 532.135 and KRS 532 .140 .
The provisions of KRS 532.135 and 532.140 do not preclude the
sentencing of a seriously mentally retarded offender to any other
sentence authorized by KRS 532.010, 532 .025, or 532.030 for a
crime which is a capital offense .
The provisions of KRS 532 .135 and 532 .140 shall apply only to
trials commenced after July 13, 1990.
In summary, our statutory scheme (1) prohibits the execution of a "seriously
mentally retarded" offender, defined by the same three criteria established by the AAMR
and the American Psychiatric Association and approved in Atkins , KRS 532 .130(2) ;8 (2)
defines the criterion of "significantly subaverage general intellectual functioning" as an
IQ of 70 or below, id. ; (3) places the burden on the defendant to allege and prove that
he or she qualifies for the exemption, KRS 532.135(1), but does not establish the
8 Use of the word "deficits," as opposed to "deficit," reflects a legislative intent to
require "two or more deficits," in accordance with the definitions formulated by the
AAMR and the American Psychiatric Association .
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standard of proof applicable to that burden; (4) requires that the issue be decided by a
trial judge at least ten days prior to trial, KRS 532 .135(2) ; and (5) is not retroactive but
applies only to trials commenced after July 13, 1990, the effective date of the Act.
It does not address (6) the time frame, if any, at which a finding of mental
retardation is relevant, other than that the determination must be made prior to trial, not,
e .g_, prior to execution ; and (7) what showing, if any, is required to trigger entitlement to
an evidentiary hearing on the issue .
IV. RETROACTIVE APPLICATION .
The principles enunciated in Atkins recognized a new constitutional right and,
therefore, must be retroactively applied . In Penryy, the Court had noted :
In Teague [Teague v. Lane , 489 U .S. 288, 109 S.Ct. 1066, 103 L.Ed .2d
334 (1989)], we concluded that a new rule will not be applied retroactively
to defendants on collateral review unless it falls within one of two
exceptions. . . . [T]he first exception set forth in Tea ue should be
understood to cover not only rules forbidding criminal punishment of
certain primary conduct but also rules prohibiting a certain category of
punishment for a class of defendants because of their status or offense .
Thus, if we held as a substantive matter, that the Eighth Amendment
prohibits the execution of mentally retarded persons such as Penry
regardless of the procedures followed, such a rule would fall under the first
exception to the general rule of nonretroactivity and would be applicable to
defendants on collateral review .
492 U.S . at 329-30, 109 S .Ct. at 2952-53 (emphasis added) .
Appellant did not raise the issue during normal collateral review even though
Atkins was decided six months before oral argument was held on his habeas appeal to
the Sixth Circuit . Nevertheless, the courts that have considered the issue apparently
agree that the claim may be asserted at any stage of the proceedings, presumably up to
the moment of execution .
f._q.,
In re Holladay , 331 F.3d 1169, 1173, 1176 (11th Cir.
2003) (granting successive habeas petition asserting entitlement to mental retardation
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exemption, staying execution three days before date of scheduled execution, and
observing that petitioner's mental retardation claim had never been adjudicated) ; In re
Morris , 328 F.3d 739, 740 (5th Cir. 2003) ("[T]he claim . . . relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable .") (emphasis added) (quoting 28 U .S.C. § 2244(b)(2)(A),
defining grounds for granting successive habeas petitions); State v. Williams , 831 So .2d
835, 851 n .21 (La . 2002) ("The mandate of Atkins that the State may not execute a
mentally retarded person is retroactive to any case at any stage of the proceedings . . . .
in which the defendant is facing the prospect of capital punishment.") ; State v. Lott, 779
N . E .2d 1011, 1013, 1015 (Ohio 2002) (Atkins was decided after the execution date was
set; principle of res iudicata did not bar the claim because petitioner had not been
afforded the opportunity to fully litigate the issue). Thus, if a condemned mentally
retarded offender had been tried prior to the effective date of the Kentucky statutes,
Atkins would exempt that offender from the death penalty .
V. PROCEDURAL DEFAULT .
As noted in Part IV of this opinion, supra , one reason for giving retroactive effect
to Atkins is that it created a new constitutional right that offenders such as those in
Holladay , Morris , and Lott had not previously had an opportunity to assert. That, of
course, would not be true if the state in which the conviction was obtained, etc. ..,
Kentucky, had in effect at the time of the condemned person's trial a statute affording
the same right subsequently created by Atkins . "Atkins merely reaffirmed this State's
preexisting prohibition against executing the mentally retarded ." Anderson v. State, No.
CR 02-910,
S .W.3d
(slip op . at 46) (Ark. Apr. 29, 2004). See also In re
Hicks , 375 F .3d 1237, 1240 (11 th Cir. 2004) (distinguishing Holladav and denying
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mental retardation claim in part because petitioner had unsuccessfully litigated the issue
both during his state trial, relying on a Georgia case holding that execution of the
mentally retarded is prohibited by Georgia's Constitution, Fleming v. Zant, 386 S.E.2d
339, 342 (Ga. 1989), and in his federal habeas petition under a Georgia statute that
prohibits execution of the mentally retarded, Ga. Code Ann . § 17-70-131) .
Even a constitutional right can be waived by failure to timely assert it. Breard v.
Greene, 523 U.S . 371, 376, 118 S .Ct. 1352, 1355, 140 L.Ed.2d 529 (1998) (rules of
procedural default apply to constitutional provisions) .
No procedural principle is more familiar to this Court than that a
constitutional right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.
Coleman v. Thompson , 501 U .S. 722, 751, 111 S.Ct. 2546, 2565, 115 L. Ed.2d 640
(1991) (internal citation and quotation omitted) . See also Sawyer v. Whitlev , 945 F.2d
812, 823-24 (5th Cir. 1991) (claim of incompetency to stand trial partially because of
mental retardation procedurally defaulted where not asserted at trial), aff'd , Sawyer v.
Whitlev , 505 U.S . 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) ; cf. Bonar v.
Commonwealth , 180 Ky. 338, 202 S .W. 676, 677 (1918) (waiver may be either by
express consent, by failure to assert in time, or by conduct inconsistent with a purpose
to insist on it). "[T]he question is . . . whether at the time of the default the claim was
'available' at all ." Smith v. Murray, 477 U .S. 527, 537, 106 S .Ct. 2661, 2667, 91 L .Ed .2d
434 (1986) .
Appellant's reliance on Lockett v . Ohio, 438 U .S. 586, 98 S .Ct. 2954, 57 L.Ed .2d
973 (1978) (plurality opinion), is misplaced . Lockett stands only for the proposition that
a state may not cut off in an absolute manner a defendant's right to present mitigating
evidence . Johnson v. Texas, 509 U .S . 350, 361, 113 S .Ct. 2658, 2666, 125 L .Ed .2d
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290 (1993) . The Commonwealth did not prevent Appellant from presenting his mental
retardation claim ; he simply did not assert it at his trial or in his RCr 11 .42 motion .
Kentucky's exemption statute, KRS 532 .140(1), was enacted effective July 13, 1990 .9
Appellant's trial began on December 10, 1990 . During the interim, Appellant was
examined by two psychologists, one appointed by the trial court and the other selected
by his attorneys. Each psychologist administered a separate IQ test, the results of
which measured Appellant's IQ at 86 and 87, respectively . Thus, Appellant was
afforded both the opportunity to assert his mental retardation claim and the expert
witnesses necessary to prove it (if it was provable) . He chose not to assert the claim at
trial and thereby waived it. Accord Winston v. Commonwealth , 604 S.E .2d 21, 51 (Va .
2004) ("Winston's remaining claims concerning the subject of mental retardation are
waived because he deliberately declined to raise a claim of mental retardation under the
statutory provisions that apply to him and his trial.") . Compare Head v . Hill , 587 S .E .2d
613, 620 (Ga. 2003) (defendant could have litigated the issue of his alleged mental
retardation at trial but chose not to do so, thus, he was not denied the right to litigate the
issue ; he had such a right and waived it) ; with Rogers v. State , 575 S.E .2d 879, 880
(Ga. 2003) (defendant who was tried before effective date of mental retardation
exemption statute could not be held to have waived claim to exemption) .
Appellant, however, further asserts that Kentucky's mental retardation exemption
statutes did not afford him a constitutionally sufficient opportunity to prove his
entitlement to the exemption at his 1990 trial because the statutes do not comply with
Atkins or, alternatively, are procedurally unconstitutional because (1) he claims to be
9
1990 Ky. Acts, ch . 488 .
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mildly mentally retarded and KRS 532.140(1) exempts only "seriously mentally
retarded" offenders ; (2) they deny a defendant the right to a trial by jury on the issue ;
and (3) they place the burden on the defendant to prove that he is entitled to the
exemption . He also claims by implication that (4) the issue of mental retardation does
not ripen for adjudication until the Commonwealth gives notice of an immediate intent to
carry out the execution by requesting a death warrant. Thus, he claims that his failure
to raise the issue at his original trial does not amount to a procedural default and that he
is now entitled to have a jury decide the issue in accordance with Atkins and other
recently rendered United States Supreme Court decisions .
Alternatively, Appellant urges us to adopt the United States Supreme Court's
policy of granting further review of a procedurally defaulted constitutional claim when
"the prisoner can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice ." Coleman , 501 U .S . at 749-50, 111 S.Ct.
at 2564-65 (emphasis added) (internal citations and quotations omitted) . Assuming
default has occurred, Appellant does not demonstrate any cause other than his own
failure to raise it. (He did not claim in his RCr 11 .42 motion that his counsel were
ineffective for failing to claim the exemption.)
The "miscarriage of justice" exception applies "where a constitutional violation
has probably resulted in the conviction of one who is actually innocent," and permits
review even in the absence of a showing of cause for the procedural default . Murray v.
Carrier , 477 U.S . 478, 496, 106 S .Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) . In the
context of a death sentence, "actual innocence" means "that there was no aggravating
circumstance or that some other condition of eligibility had not been met." Sawyer v.
- 1 6-
Whitley , 505 U.S . at 345, 112 S .Ct. at 2522 (emphasis added) . In that circumstance,
the petitioner must show by clear and convincing evidence that but for constitutional
error at his sentencing hearing, no reasonable juror would have found him eligible for
the death penalty." Id, at 350, 112 S.Ct. at 2525 . We agree that if Appellant could
prove that he is mentally retarded, such would satisfy the "clear and convincing"
standard in that regard. Appellant asserts that (5) he has made a sufficient prima facie
showing that he is mentally retarded to warrant a new sentencing trial to prove it, and if
a new trial is not granted, the probable result will be the execution of an actually
mentally retarded person who is ineligible for the death penalty under the Eighth
Amendment.
For the reasons set forth infra, we conclude that our statutory scheme is neither
unconstitutional nor contrary to Atkins or any other United States Supreme Court
precedent. We have also examined the statutes and case law of other states that have
specifically exempted mentally retarded offenders from the death penalty and conclude
that our exemption provisions are consistent with those of a substantial majority of those
states and not unique to Kentucky. Finally, Appellant has not made a prima facie
showing sufficient to create a doubt as to whether he is mentally retarded ; thus, the
denial of his demand for a new sentencing trial or an evidentiary hearing will not result
in a fundamental miscarriage of justice .
VI . DEFINITION OF "MENTALLY RETARDED."
As recognized by Atkins , the definition in KRS 532.130(2) of a person qualified
for the mental retardation exemption from the death penalty generally conforms to the
clinical definitions set forth in Mental Retardation and DSM-IV . 536 U .S. at 317 n .22,
122 S .Ct. at 2250 n .22 . Nevertheless, Appellant asserts that by exempting only the
-17-
"seriously mentally retarded," KRS 532.140(1) unconstitutionally permits the execution
of "mildly mentally retarded" offenders . That assertion is belied by the statute's
definition of the "significantly subaverage general intellectual functioning" criterion as an
IQ of 70 or below, which includes the "mildly mentally retarded" per DSM-IV at 42-43,
cited by Atkins , 536 U.S. at 309 n .3, 122 S.Ct. at 2245 n .3. Further:
To be classified as mentally retarded a person generally must have an IQ
of 70 or below. Under the AAMR classification system, individuals with IQ
scores between 50-55 and 70 have "mild" retardation . Individuals with
scores between 35-40 and 50-55 have "moderate" retardation . "Severely"
retarded people have IQ scores between 20-25 and 35-40, and
"profoundly" retarded people have scores below 20 or 25.
Penry, 492 U.S . at 308 n .1, 109 S .Ct. at 2941 n .1 (emphasis added) (citing AAMR,
Classification in Mental Retardation 11, 13 (H . Grossman ed . 1983)) . The fact that our
statute refers to persons with IQs of 70 or below as "severely" mentally retarded does
not change the fact that an IQ of 70 or below includes the mildly, moderately, severely
and profoundly mentally retarded . Our statutory scheme was enacted shortly after
Penry and presumably relied on Penry and the AAMR in establishing an IQ of 70 as the
ceiling for the exemption .
Fourteen of the twenty-six states that presently have statutes exempting the
mentally retarded from the death penalty define the "significantly subaverage intellectual
functioning" criterion as either an IQ of 70 or below' ° or two or more standard deviations
below the mean ." The two definitions are essentially the same because the mean IQ is
'° Del . Code Ann ., tit. 11, § 4209(d)(3)(d)(2) ; Idaho Code § 19-2515A(1)(b) ; Ky. Rev.
Stat. 532.130(2) ; Md. Code Ann ., Crim . Law, § 2-202(b)(1)(i) ; Neb. Rev. Stat. § 28105 .01(3) IQ of 70 or below presumptive evidence of mental retardation) ; N .M. Stat.
Ann . § 31-20A-2.1(A) (same) ; N .C . Gen . Stat. § 15A-2005(a)(1)(c) ; S .D . Codified Laws
§ 23A-27A-26 .2 (IQ exceeding 70 presumptive evidence of absence of mental
retardation) ; Tenn . Code Ann. § 39-13-203(a)(1) ; Wash. Rev. Code § 10.95 .030(2)(c) .
" Conn . Gen . Stat. § 1-1 g(b) ; Fla. Stat. Ann . § 921 .137(1) ; Kan. Stat. Ann . §§214623(e) & 76-12b01(i) Va . Code Ann. § 19.2-264 .3:1 .1(A).
- 1 8-
100 and a standard deviation is fifteen on the Wechsler Adult Intelligence Scale (3rd
ed.) (WAIS-III) and sixteen on the Stanford-Binet Intelligence Scale (4th ed.), the two
norms that are now most frequently used to assess a person's IQ . Mental Retardation
59, 61-62 (10th ed . 2002). In addition, the courts of three states that do not have death
penalty exemption statutes have recognized that a person must have an IQ of 70 or
below to qualify for the Atkins exemption . Ex Parte Perkins , 851 So.2d 453, 456 .(Ala .
2002), cert. denied Perkins v. Alabama , 540 U .S . 830 (2003) ; Murphy v. State, 54 P .3d
556, 568 (Okla. Crim. App. 2002); Ex Parte Briseno , 135 S.W.3d 1, 14 (Tex . Crim. App.
2004) ; cf. Lott, 779 N.E .2d at 1014 (rebuttable presumption that defendant is not
mentally retarded if IQ is above 70) .
Appellant next asserts that our statute does not take into account a
"measurement error of approximately five points in assessing IQ, although this may vary
from instrument to instrument . . . . Thus, it is possible to diagnose Mental Retardation in
individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive
behavior." DSM-IV at 41-42. He also complains that our statute fails to consider the socalled "Flynn effect," a finding made in the 1980s that as time passes and IQ test norms
grow older, the mean IQ score tested by the same norm will increase by approximately
three points per decade. James R. Flynn, Massive IQ Gains in 14 Nations : What IQ
Tests Really Measure , 101 Psych. Bull . 171-91 (1987 No. 2) .'2 Depending on the age
of the norm, an IQ measured at 74 could actually be, e .,g_, 71 or 68. The psychologist
'2 The scientific community does not agree on the cause of this
phenomenon . Flynn
attributes it to environmental factors, e .g_, the advent of television and the greater
cognizant demands of industrial employment . James R. Flynn & William T. Dickens,
Heritability Estimates Versus Large Environmental Effects: The IQ Paradox Resolved ,
108 Psych . Rev. (April 2001) . There are other theories, including, p ._g_, better nutrition .
Richard Lynn, The Role of Nutrition in Secular Increases in Intelligence , 11 Personality
& Individual Differences 273-85 (1990 No. 3).
- 1 9-
chosen by Appellant's attorneys in 1990 used the Shipley-Hartford Intelligence Scale to
assess Appellant's IQ at 87. The psychologist appointed by the court to examine
Appellant used the Wechsler Adult Intelligence Scale (rev. ed .) (WAIS-R) norm to
assess Appellant's IQ at 86 . The WAIS-R was last updated in 1981 and was
superseded by the WAIS-III norm in 1997. Allen v. Unum Life Ins. Co. of Am. , 289
F .Supp. 2d 745, 752 n.5 (W.D . Va. 2003) (citing Charles T. Hall, Social Security
Disability Practice § 7.39 (1998)) . Appellant asserts that because of the potential fivepoint margin of measurement error and the possible three-point "Flynn effect," the
statutory definition of "significantly subaverage general intellectual functioning" in KRS
532.130(2) as an IQ of 70 or below should be interpreted to mean "an IQ of 75-80 or
below." As will be further discussed infra, the significance of this assertion is
Appellant's claim in his brief and at oral argument that while he was in junior high school
(age thirteen), his IQ was assessed at 74, which would fall within his proposed revised
definition . His argument appears to be that his IQ could be as low as 69 based on the
measurement at age thirteen and that his 1990 WAIS-R assessment could have been
inflated by the "Flynn effect" and the margin of measurement error. (If so, however, the
1990 WAIS-R assessment still could not have been less than IQ 78.)
Recognizing "serious disagreement . . . in determining which offenders are in fact
retarded," and that "[n]ot all people who claim to be mentally retarded will be so
impaired . . . ," Atkins , 536 U .S . at 317, 122 S.Ct. at 2250, the United States Supreme
Court left it to the states to formulate their own definitions, so long as they "generally
conform[ed] to the clinical definitions" established by the AAMR and the American
Psychiatric Association as approved in Atkins . Id. at 317 n .22 ; Hill, 300 F.3d at 682 .
Both the potential margin of error and the "Flynn effect" were known at the time our
- 20-
statutes were enacted . The General Assembly chose not to expand the mental
retardation ceiling by requiring consideration of those factors, but instead, like most
other states that quantify the definition
,13
chose a bright-line cutoff ceiling of an IQ of 70,
a generally recognized level at which persons are considered mentally retarded. Atkins
did not discuss margins of error or the "Flynn effect" and held that the definition in KRS
532.130(2) "generally conform[ed]" to the approved clinical definitions . 536 U .S . at 317
n .22, 122 S .Ct. at 2250 n .22 .
Arizona 14 and IIlinois 15 do define "significantly subaverage intellectual
functioning" as an "IQ of 75 or below." No doubt, otherwise "death-eligible" defendants
in those states with IQs higher than 75 will claim that those statutes should be
interpreted to mean that a person with an IQ of 80 to 85 is "exempt-eligible ." Arkansas's
statute, on the other hand, creates a rebuttable presumption of mental retardation if the
defendant has an IQ of 65 or below, 16 and Atkins also held that statute to "generally
conform" to the approved clinical definitions . Id. at 317 n.22. The remaining nine
states'' with statutory exemptions have chosen not to numerically quantify the definition
of "significantly subaverage intellectual functioning," presumably relegating the issue to
a "battle of the experts ." "Generally, accepted definitions within the scientific community
will no doubt be refined as our knowledge of this area advances ." Howell v. State, No.
W2003-01056-SC-Rl 1-PD,
13
14
S.W.3d
(slip op. at 5) (Tenn. Nov. 16, 2004).
See statutes cited in notes 11 and 12, supra.
Ariz . Rev. Stat . § 13-703.02(C) .
15
III . Comp . Stat ., ch. 725, § 5/114-15(d) (IQ of 75 or below presumptive evidence of
mental retardation) .
16 Ark. Code Ann. § 5-4-618(a)(2).
17
Cal . Penal Code § 1376(a) ; Colo. Rev. Stat . § 18-1 .3-1101, et seq. ; Ga. Code Ann .
§ 17-7-131(a)(3) ; Ind . Code § 35-36-9-2 ; La. Code Crim . Proc. Art. 905 .5.1(H)(1) ; Mo .
Rev. Stat . § 565 .030 .6 ; Nev. Rev. Stat. 174.098(7) ; N .Y . Crim . Proc . Law §
400.27(12)(e) ; Utah Code Ann. § 77-15a-102.
-21 -
However, absent proof that the statutory definition of "significantly subaverage general
intellectual functioning" in KRS 532 .130(2) is unconstitutional, any change in that
definition must emanate from the General Assembly, not this Court.
When it decided in Atkins to delegate to the states the authority to formulate their
own definitions of "mentally retarded," the United States Supreme Court obviously
anticipated that the definitions would vary in some respects but would be acceptable if
they "generally conform[ed] to the clinical definitions" approved therein . 536 U .S . at
317, n.22; 122 S .Ct. at 2250, n.22; Hill, 300 F.3d at 682. The General Assembly's
adoption of a bright-line maximum IQ of 70 as the ceiling for mental retardation
"generally conform[s]" to the clinical definitions approved in Atkins , thus does not
implicate the Eighth Amendment's proscription against "cruel and unusual" punishment .
As did the Supreme Court of Tennessee when faced with this same argument, we
decline to rewrite this unambiguous statute . Howell,
S.W.3d at
(slip op . at 5) .
VII . RELEVANT TIME FRAME.
The rationale articulated in Atkins for prohibiting the execution of mentally
retarded offenders was that such offenders have diminished personal culpability
because "they often act on impulse rather than pursuant to a premeditated plan, and
that in group settings they are followers rather than leaders," 536 U.S. at 318, 122 S .Ct.
at 2250 (footnote omitted) ; and that the execution of such offenders does not further the
goals of either retribution, because a mentally retarded offender's crimes do not reflect
"a consciousness materially more depraved than that of any other person guilty of
murder," id. at 319, 122 S .Ct. at 2251 (internal citation and quotation omitted), or
deterrence, because "capital punishment can serve as a deterrent only when murder is
the result of premeditation and deliberation," id. (internal citation and quotation omitted),
-22-
and the execution of a mentally retarded offender is unlikely to deter other mentally
retarded persons from committing similar crimes . Id . at 320, 122 S .Ct. at 2251 .
The Court did not state as a rationale that, e .g., the offender does not have the
ability to understand that he or she is about to be executed or why, KRS 431 .213(2)
(definition of insanity for purpose of death penalty exemption), or "has no capacity to
come to grips with his own conscience or deity." Ford v. Wainwright , 477 U.S . 399, 409,
106 S.Ct. 2595, 2601, 91 L.Ed .2d 335 (1986) (holding that the Eighth Amendment
prohibited the execution of an insane offender who was sane when he committed the
offense) . If diminished personal culpability is the rationale for not executing a mentally
retarded offender, logic dictates that the diminished culpability exist at the time of the
offense, not necessarily at the time of the execution. Both Atkins , 536 U.S . at 321, 122
S.Ct. at 2252, and KRS 532 .140(1) prohibit imposition of the death penalty on a
"mentally retarded offender ." Presumably, a person becomes an "offender" at the time
of the offense .
If the relevant time frame were the time of execution, there would exist the
possibility that the IQ test would be "significantly skewed by potential depression,
tension, and anxiety on the part of [the] defendant," or that the "defendant may arguably
perceive a stronger motivation to malinger where the reality of facing the death penalty
becomes more immediate ."'8 United States v . Beckford , 962 F .Supp. 748, 762 n .13
(E .D . Va . 1997) (upholding constitutionality of requirement in 21 U .S .C . § 848(1) of
'8
The Mississippi Supreme Court has required that the Minnesota Multiphasic
Personality Inventory-II (MMPI-II) test be administered when assessing whether a
defendant is mentally retarded because it is the test best suited to detect malingering.
Goodin v. State , 856 So .2d 267 (Miss. 2003), cert denied ,
U .S .
, 124 S.Ct. 1681
(2004) ; Russell v. State , 849 So.2d 95, 148 (Miss. 2003) ; Foster v. State , 848 So.2d
172, 175 (Miss . 2003) ; see also United States v. Battle , 235 F.Supp.2d 1301, 1307
(N.D . Ga. 2001) ("MMPI is generally agreed to be difficult to cheat on without getting
caught").
-23-
pretrial notice and pretrial examination for purpose of penalty phase mental health
defenses, including exemption from death penalty because of mental retardation) . That
requirement spares both the Commonwealth and the defendant the time-consuming
burdens of death-qualifying a jury and conducting a futile death-penalty sentencing trial.
Accord State v . Williams , 831 So.2d 835, 860 (La . 2002) ; State v. Flores , 93 P.3d 1264,
1269 (N .M. 2004) .
The issue is more semantical than real . Since mental retardation is a
developmental disability that becomes apparent before adulthood, Heller v. Doe, 509
U .S. 312, 321-22,113 S .Ct. 2637, 2643, 125 L.Ed .2d 257 (1993) (citing DSM-111 29
(1987) and Mental Retardation 16-18 (1992)), it would be exceedingly rare for the
condition to develop after the offense. And since mental retardation, as contrasted with
mental illness, is generally regarded as a permanent, relatively static condition, id. at
323, 113 S .Ct. at 2644 (citing S . Brakel, J. Parry & B . Weiner, The Mentally Disabled
and the Law 37 (3d ed . 1985)), though it may be ameliorated somewhat through
education and habilitation, James W. Ellis & Ruth A . Luckasson, Mentally Retarded
Criminal Defendants , 53 Geo . Wash . L. Rev. 414, 424 n.54 (March/May 1985), it would
be equally as rare for the condition to recede during the interim between the offense
and the execution .
We find nothing unconstitutional or contrary to Atkins in the requirement in KRS
532 .135 that mental retardation be determined prior to trial . Of course, that requirement
would be unconstitutional if applied to a defendant who was tried and sentenced to
death prior to July 13, 1990, and, thus, who had never been afforded an opportunity to
assert and prove entitlement to the exemption . Appellant is not within that category .
VIII. JUDGE OR JURY.
Relying on the recent United States Supreme Court decisions in Apprendi v. New
Jerse , 530 U.S . 466,120 S .Ct. 2348, 147 L .Ed .2d 435 (2000) and Ring v . Arizona, 536
U.S . 584, 122 S .Ct. 2428, 153 L.Ed.2d 556 (2002), Appellant asserts that KRS
532.135(2) is unconstitutional because, by designating the trial judge as the factfinder
with respect to whether a defendant is entitled to the mental retardation exemption, the
statute denies him his Sixth Amendment right to a trial by jury. 19 We disagree .
In Apprendi, a New Jersey statute 20 permitted the enhancement of the maximum
sentence for a criminal offense if the trial judge found by a preponderance of the
evidence that "[t]he defendant in committing the crime acted with a purpose to intimidate
an individual or group of individuals because of race, color, gender, handicap, religion,
sexual orientation or ethnicity," i.e. , that the offense was a "hate crime ." The defendant
pled guilty to an offense that carried a maximum sentence of ten years in prison . The
trial judge found by a preponderance of the evidence that the "hate crime" enhancement
applied and sentenced him to twelve years in prison . Describing as a "novelty" a
"legislative scheme that removes the jury from the determination of a fact that, if found,
exposes the criminal defendant to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone," 530 U .S. at 482-83,
19
Appellant's claim to a trial by jury is premised solely on the Sixth and Fourteenth
Amendments of the United States Constitution . He does not claim that Sections 7 and
11 of the Constitution of Kentucky entitle him to a jury trial on this issue. Section 7
provides that "[t]he ancient mode of trial by jury shall be held sacred, and the right
thereof remain inviolate . . . . Section 11 guarantees a criminal defendant the right to "a
speedy public trial by an impartial jury of the vicinage ." We have long held that these
Sections pertain only to the issue of guilt or innocence and not "to the fixing of the
penalty since that function was no part of the common law mode of trial." Allison v.
Gray, 296 S .W .2d 735, 737 (Ky. 1956) . See also Perry v. Commonwealth , 407 S .W.2d
714, 715 (Ky. 1966); Williams v. Jones, 338 S .W .2d 693, 694 (Ky. 1960) ; Lee v.
Bucha nan, 264 S.W .2d 661, 661 (Ky. 1954) .
N .J . Stat. Ann. § 2C :44-3(e) .
-25-
120 S.Ct. at 2359, the United States Supreme Court held that the statute violated the
Sixth Amendment right to trial by jury . Id . at 497, 120 S .Ct. at 2366-67 . See Duncan v.
Louisiana , 391 U .S . 145, 156, 88 S .Ct . 1444, 1451, 20 L.Ed .2d 491 (1968) (Sixth
Amendment right to trial by jury made applicable to states by Fourteenth Amendment) .
"[S]entencing factor" . . . appropriately describes a circumstance, which
may be either aggravating or mitigating in character, that supports a
specific sentence within the range authorized by the jury's finding that the
defendant is guilty of a particular offense . On the other hand, when the
term "sentence enhancement" is used to describe an increase beyond the
maximum authorized statutory sentence, it is the functional equivalent of
an element of a greater offense than the one covered by the jury's guilty
verdict.
Apprendi , 530 U .S. at 494 n .19, 120 S.Ct . at 2365 n .19.
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.
Id . a t 490, 120 S.Ct . at 2362-63.
Rinq held that an Arizona statute that allowed the trial judge, sitting alone, to
find the presence or absence of an aggravating factor required for imposition of the
death penalty was unconstitutional for the same reasons articulated in Apprendi ,
overruling Walton v. Arizona , 497 U .S . 639, 110 S .Ct. 3047, 111 L.Ed .2d 511 (1990) .
Ring, 536 U.S . at 609, 122 S.Ct. at 2443.
Because Arizona's enumerated aggravating factors operate as "the
functional equivalent of an element of a greater offense," . . . the Sixth
Amendment requires that they be found by a jury.
The right to trial by jury guaranteed by the Sixth Amendment would be
senselessly diminished if it encompassed the factfinding necessary to
increase a defendant's sentence by two years, but not the factfinding
necessary to put him to death . We hold that the Sixth Amendment applies
to both .
Id. (internal citation omitted) .
2'
Ariz. Rev. Stat. § 13-703(C).
-26-
Appellant argues that the absence of mental retardation is "the functional
equivalent of an element of a greater offense," Apprendi , 530 U .S. at 494 n.19, 120
S.Ct. at 2365 n .19, because it is "a fact necessary to put him to death," Ring , 536 U .S.
at 609, 122 S .Ct. at 2443; ergo , a jury must find the absence of mental retardation
beyond a reasonable doubt before the death penalty can be imposed . The United
States Supreme Court has recently held that "[n]othing prevents a defendant from
waiving his Apprendi rights, ,22 Blakely v. Washington ,
U .S.
, 124 S.Ct.
2531, 2541, 159 L. Ed .2d 403 (2004), and that Ring is not retroactive to cases already
final on direct review . Schriro v . Summerlin ,
U.S.
, 124 S.Ct . 2519, 2526,
159 L.Ed .2d 442 (2004) . Regardless, Appellant's argument overlooks the distinction
between aggravating factors that must be found before the maximum penalty may be
imposed and mitigating factors that militate against imposition of the maximum penalty
despite the presence of aggravating factors .
[T]he principal dissent ignores the distinction the Court has often
recognized . . . between facts in aggravation of punishment and facts in
mitigation . . . . If facts found by a jury support a guilty verdict of murder,
the judge is authorized by that jury verdict to sentence the defendant to
the maximum sentence provided by the murder statute. If the defendant
can escape the statutory maximum by showing, for example, that he is a
war veteran, then a judge that finds the fact of veteran status is neither
exposing the defendant to a deprivation of liberty greater than that
authorized by the verdict according to statute, nor is the judge imposing
upon the defendant a greater stigma than that accompanying the jury
verdict alone .
Apprendi , 530 U .S . at 490 n .16, 120 S .Ct. at 2363 n .16. Appellant's jury found beyond
a reasonable doubt that he committed two murders, thus authorizing imposition of the
statutory maximum sentence of death . KRS 532 .025(2)(a)(6) . Like the hypothetical
"war veteran" exemption discussed in Apprendi , the mental retardation exemption
22
Of course, Appellant could not have waived his Apprendi rights in 1990 because
Apprendi was not decided until ten years later.
- 27-
neither exposes the defendant to a deprivation of liberty greater than that authorized by
the verdict according to statute, nor imposes upon the defendant a greater stigma than
that accompanying the jury verdict alone . "Core concerns animating the jury and
burden-of-proof requirements are thus absent from such a scheme ." Apprendi , 530
U .S . at 490 n .16, 120 S.Ct . at 2363 n .16 .
The Supreme Court would unquestionably look askance at a suggestion
that in Atkins it had acted as a super legislature imposing on all of the
states with capital punishment the requirement that they prove as an
aggravating circumstance that the defendant has normal intelligence and
adaptive function .
State v . Williams , 831 So .2d 835, 860 n .35 (La . 2002) .
While eight states currently provide a statutory right to a jury trial on this issue ,23
seventeen of the remaining eighteen states with statutory mental retardation
exemptions currently assign to the trial judge the determination of whether a defendant
is entitled to the exemption . 24 The Maryland statute25 does not designate the factfinder
for this issue, but Maryland's intermediate appellate court has construed a Maryland rule
of court to require that the issue be decided by the sentencing jury. Richardson v.
23
Ark. Code Ann. § 5-4-618(d)(2)(A) (if pretrial determination by trial court is
unfavorable to defendant, defendant can demand de novo determination by jury); Cal
Penal Code § 1376(b)(2); Conn . Gen . St . § 53a-46a(h) ; Ga . Code Ann . § 17-7-131
(c)(3) ; La. Code Crim . Proc . Art. 905 .5.1(C)(1); Mo . Rev. St. § 565.030.4(1), (4) ; N.C.
Gen . St. Ann. § 15A-2005(e) (if pretrial determination by court is unfavorable to
defendant, defendant can demand jury determination) ; Va. Code Ann . § 19.2264 .3 :1 .1(C) .
24 Ariz. Rev. Stat. § 13-703 .02(G) ; Colo. Rev. Stat. § 18-1 .3-1102(3) ; Del . Code Ann .
tit. 11 § 4209(d)(3)(c) ; Fla. Stat. Ann . § 921 .137(4) ; Idaho Code § 19-2515A(2), (3) ; III .
Comp. Stat. ch . 725 § 5/114-15(b) ; Ind . Code § 35-36-9-5 ; Kan. Stat. Ann . § 214623(b) ; Ky. Rev. Stat. 532 .135 ; Neb. Rev. Stat. § 28-105 .01(4) ; Nev. Rev. St.
174 .098(6) ; N .M . Stat. Ann . § 31-20A-2.1(C); N.Y. Crim. Proc . Law § 400.27(12)(a) ;
S .D . Codified Laws § 23A-27A-26 .3 ; Tenn. Code Ann . § 39-13-203(c) ; Utah Code Ann.
§ 77-15a-104(11)(a) ; Wash . Rev. Code § 10.95.030(2) .
25
Md. Code Ann., Crim. Law § 2-202(b) .
-28-
State, 598 A .2d 1, 3-4 (Md. Ct . Spec. App. 1991) (construing Md . Rule 4-343(h)), affd,
630 A.2d 238 (Md. 1993) .
No court that has addressed the issue in the absence of an exemption statute or
when faced with a statute permitting the trial judge to decide whether the defendant is
mentally retarded has held that there is a constitutional right to a jury trial on this
issue .2s Oklahoma's courts have recognized a common law right in this respect .
Murphy v. Bass, 54 P .3d 556, 568 (Okla . Crim. App. 2002) (establishing procedure for
deciding issue either pretrial by judge or during sentencing phase of trial by jury without
26
In re Johnson , 334 F.3d 403, 405 (5th Cir. 2003) ("[T]he absence of mental
retardation is not an element of the sentence any more than sanity is an element of an
offense .") ; Walton v. Johnson , 269 F.Supp.2d 692, 698 n.3 (W.D . Va. 2003) (Ring and
Apprendi do not require as a matter of constitutional law that the question of mental
retardation be determined by a jury because the existence of mental retardation does
not increase the penalty for the crime beyond the prescribed statutory maximum, thus is
not the equivalent of an element of the offense ; rather, a finding of mental retardation
precludes the state from carrying out the death sentence, thus is analogous to the
question of competency to be executed in death penalty cases, which need not be
decided by a jury.) ; Head v. Hill, 587 S.E .2d 613, 620 (Ga. 2003) ("[T]he absence of
mental retardation is not the functional equivalent of an element of an offense such that
determining its absence or presence requires a jury trial under Ring ."); State v. Williams ,
831 So.2d 835, 860 n .35 (La. 2002) (Atkins addressed mental retardation as an
exemption from capital punishment, not as a fact the absence of which operates "as the
functional equivalent of an element of a greater offense") ; Russell v. State , 849 So.2d
95, 148 (Miss . 2003) ("[N]ot being mentally retarded is not an aggravating factor
necessary for imposition of the death penalty, and Ring has no application to an Atkins
determination ."); State v. Lott , 779 N .E.2d 1011, 1015 (Ohio 2002) (likening the issue to
a trial court's determination of defendant's competency to stand trial) ; State v. Flores , 93
P.3d 1264, 1268 (N .M. 2004) ("[T]he Sixth Amendment does not require the issue of a
defendant's mental retardation in a capital prosecution to be proved to a jury beyond a
reasonable doubt," but also holding, id . at 1271, that a jury's finding of mental
retardation as a mitigating circumstance would exempt the defendant from the death
penalty; Franklin v. Maynard, 588 S .E .2d 604, 606 (S .C . 2003) (holding that the trial
judge shall make the mental retardation determination at a pretrial hearing but also
holding that if the jury finds mental retardation as a mitigating circumstance, the death
penalty will not be imposed) ; Howell v. State, No. W2003-01056-SC-Rl 1-PD,
S.W.3d
(slip op. a t 14) (Tenn . Nov. 16, 2004) (absence of mental retardation
not an element of the offense and not required to be proven by the State nor found by a
jury) ; Ex Parte Briseno, 135 S .W .3d 1, 10 (Tex. Crim. App. 2004) (lack of mental
retardation is not an implied element of capital murder) .
- 29-
addressing constitutional right to trial by jury), modified in part by Lane v. Bass , 87 P .3d
629, 633 n.2 (Okla . Crim. App. 2004) (specifically declining to address whether Ring
applies to the Atkins exemption, but holding as a matter of state law that a defendant's
affirmative waiver of a jury determination of that issue is required) . Oklahoma's
legislature, unlike Kentucky's, has not enacted an exemption statute that specifically
designates the trial judge as the factfinder .
In the alternative, Appellant suggests that the language of KRS 532 .135(4) ("The
pretrial determination of the trial court shall not preclude the defendant from raising any
legal defense during the trial .") affords a death-eligible defendant the right to present the
issue to a jury in the event of an adverse determination by the trial judge . We disagree .
If the General Assembly had intended to afford a defendant two bites of this issue, it
would have said, etc . , "shall not preclude the defendant from relitigating this issue
during the trial ." Compare Ark. Code Ann. § 5-4-618(d)(2)(A) ("If the court determines
that the defendant is not mentally retarded, the defendant may raise the question of
mental retardation to the jury for determination de novo during the sentencing phase of
the trial .") ; N .C. Gen . St. Ann. § 15A-2005(e) ("If the court does not find the defendant to
be mentally retarded in the pretrial proceeding, upon the introduction of evidence of the
defendant's mental retardation during the sentencing hearing, the court shall submit a
special issue to the jury as to whether the defendant is mentally retarded as defined in
this section . . . . If the jury determines the defendant to be mentally retarded, the court
shall declare the case noncapital and the defendant shall be sentenced to life
imprisonment .") .
In the absence of some specific language indicating an intent to have the mental
retardation exemption issue decided by both judge and jury, we conclude that the
- 30-
language in KRS 532 .135(4) refers to other statutory defenses presented at trial in
defense, exculpation or mitigation of criminal conduct, etc .,, the mental illness or
retardation defense described in KRS 504.020, the subjective elements of the KRS
Chapter 503 defenses and of extreme emotional disturbance under KRS 507.020(1)(a),
cf . Fields v. Commonwealth , 44 S .W.3d 355, 359 (Ky. 2001) (presence of mental illness
is relevant to subjective evaluation of reasonableness of defendant's response to
provocation), and the mitigating circumstance described in KRS 532 .025(2)(7) .
We conclude that an otherwise death-eligible defendant is not entitled to have a
jury decide the mental retardation exemption claim.
IX. BURDEN AND STANDARD OF PROOF.
It is not unconstitutional to assign to a criminal defendant the burden to prove a
fact that would mitigate the crime . Martin v. Ohio, 480 U .S . 228, 235-36, 107 S .Ct.
1098, 1103, 94 L.Ed.2d 267 (1987) (self-defense) ; Patterson v. New York, 432 U .S .
197, 206-07, 97 S .Ct. 2319, 2325, 53 L.Ed .2d 281 (1977) (extreme emotional
disturbance) ; Leland v. Oregon, 343 U .S . 790, 798-99, 72 S.Ct . 1002, 1007, 96 L .Ed .2d
1460 (1958) (insanity). Thus, a defendant may be constitutionally required to prove
mitigating circumstances to avoid a death sentence or "to bear the risk of nonpersuasion as to the existence of mitigating circumstances ." Delo v. Lashley , 507 U.S .
271, 275, 113 S.Ct. 1222, 1224, 122 L.Ed.2d 620 (1993) (internal citation and quotation
omitted) ; cf. Medina v. California , 505 U.S . 437, 450-51, 112 S .Ct. 2572, 2580, 120
L .Ed .2d 353 (1992) (state can assign to defendant the burden of proving by a
preponderance of the evidence that he is mentally incompetent to stand trial) . Every
state statute providing a mental retardation exemption from the death penalty places the
- 3 1-
burden on the defendant to prove that he is mentally retarded, as has every court that
has addressed the issue, usually in the context of holding that the absence of mental
retardation is not an element of the offense .29 The primary issue about which
legislatures disagree is the standard of proof applicable to the defendant's burden .
Neither Atkins nor KRS 532.135 addresses this issue .
Like KRS 532.135, the statutes of Connecticut3° and Kansas3 ' do not address
the standard of proof applicable to this issue . Six state statutes require the defendant to
prove mental retardation by clear and convincing evidence 32 and one requires proof
beyond a reasonable doubt . 33 The remaining sixteen statutes that address the issue
require proof by a preponderance of the evidence .34 The United States Supreme Court
has not addressed this issue in the context of the Atkins exemption . However, in
Cooper v. Oklahoma , 517 U .S . 348, 116 S .Ct. 1373, 134 L.Ed .2d 498 (1996), the Court
See statutes cited in notes 32-34, infra , and Conn . Gen. Stat. § 53a-46a(c),(d),(h);
Kan . Stat. Ann. § 21-4623)(d) ; KRS 532 .135(1) .
28 See , e.g_, cases cited in note 26, supra, and Nava Feldman, Annotation, Application
of Constitutional Rule of Atkins v. Virginia, 536 U .S . 304, 122 S.Ct . 2242, 153 L.Ed.2d
335 (2002), that Execution of Mentally Retarded Persons Constitutes "Cruel and
Unusual Punishment" in Violation of Eight Amendment , 122 A.L.R .5th 145 §§ 13, 14, 15
2004).
9 E Russell v. State , 849 So.2d 95, 148 (Miss. 2003) ; Ex Parte Briseno , 135
.,
.g
.-3d),
.V
S 12 (Tex . Crim. App. 2004) ; Winston v. Commonwealth , 604 S.E.2d 21, 50
(Va. 2004) .
3°
Conn . Gen . Stat. § 53a-46a(c),(d),(h).
3'
Kan . Stat. Ann . § 21-4623(d) .
32
Ariz. Rev. Stat . § 13-703.02(G) ; Colo Rev. Stat. § 18-1 .3-1102(2) ; Del Code Ann. tit.
11 § 4209(d)(3)(b) ; Fla. Stat. Ann . § 921 .137(4) ; Ind . Code Ann . § 35-36-9-4(b) ; N .C.
Gen . Stat. § 15A-2005(c) .
33
Ga. Code Ann . § 17-7-131(c)(3) .
34 Ark
. Code Ann . § 5-4-618(c) ; Cal Penal Code § 1376(b)(3) ; Idaho Code § 192515A(3) ; III. Comp. Stat. ch . 725 § 5/114-15(b) ; La. Code Crim. Proc . Art.
905.5 .1(C)(1) ; Md . Code Ann ., Crim . Law § 2-202(b)(2)(ii); Mo. Rev. St. § 565.030.4(1) ;
Neb. Rev. Stat. § 28-105 .01(4); Nev. Rev. St. 174.098(5)(b); N.M . Stat. Ann. § 31-20A2 .1(C); N .Y. Crim. Proc . Law § 400.27(12)(a) ; S .D. Codified Laws § 23A-27A-26 .3;
Tenn . Code Ann . § 39-13-203(c); Utah Code Ann. § 77-15a-104(11)(a) ; Va . Code Ann.
§ 19 .2-264 .3:1 .1(C) ; Wash. Rev. Code § 10.95 .030(2) .
- 3 227
held unconstitutional a statute requiring a defendant to prove incompetency to stand
trial by a standard higher than a preponderance of the evidence . Id . at 355, 116 S .Ct. at
1377. All courts that have considered the issue in the absence of a statute have held
that the defendant is required to prove entitlement to the Atkins exemption by a
preponderance of the evidence .
We have applied the "preponderance of the evidence" standard to a defendant's
burden to prove incompetency to stand trial, Jacobs v. Commonwealth , 58 S.W.3d 435,
440 (Ky. 2001), and to affirmative defenses. Blair v. Commonwealth , 144 S .W.3d 801,
810 (Ky . 2004). We now apply that standard to the defendant's burden to prove at an
evidentiary hearing that he or she is entitled to the mental retardation exemption
described in KRS 532 .130, et. seq.
X. PRIMA FACIE SHOWING .
Not every defendant who claims to be mentally retarded is entitled to a hearing
on the issue.
[T]he granting of an evidentiary hearing on the issue of mental retardation
is not a perfunctory matter or a ministerial duty of the trial court, and is not
guaranteed to every rdefendantl in every rcapitall case. There is no
automatic right to a hearing on the issue of mental retardation, whether
the hearing is sought pre-trial, while the case is on appeal, or as postconviction relief.
State v. Williams , 831 So.2d 835, 858 n.33 (La. 2002) (internal citation and quotation
omitted) . To be entitled to a hearing, there must be at least a prima facie showing that
the defendant may, in fact, be mentally retarded .
35
State v. Williams , 831 So .2d 835, 860 (La. 2002); Russell v. State , 849 So.2d
95, 148 (Miss . 2003) ; State v . Lott, 779 N . E.2d 1011, 1015 (Ohio 2002); Murphy v.
State , 54 P .3d 556, 568 (Okla. Crim. App. 2002) ; Commonwealth v. Mitchell, 839 A.2d
202, 211 n .8 (Pa. 2003) ; Franklin v. Maynard , 588 S .E .2d 604, 606 (S .C. 2003); _Ex
Parte Briseno, 135 S.W.3d 1, 12 (Tex . Crim . App. 2004) .
- 33E .a .,
Were it otherwise, then literally any prisoner under a death sentence could
bring an Atkins claim in a second or successive petition regardless of his
or her intelligence . No rational argument can possibly be made that this
result is appropriate . . . .
In re Holladav , 331 F .3d 1169, 1173 n .1 (11th Cir. 2003).
To determine what sufficed to make a prima facie showing, the Supreme Court of
Louisiana in Williams borrowed from the standard set forth in its criminal code provision
pertaining to a defendant's entitlement to a competency evaluation . La. Stat . Ann . Code
Crim . Proc. Art. 643 ("The court shall order a mental examination of the defendant when
it has reasonable ground to doubt the defendant's mental capacity to proceed .") . 831
So .2d at 868 n .33. The provision "establishes a standard that a defendant must meet
by coming forward with some evidence to put his mental condition at issue ." Id.
Similarly, KRS 504.1 00(l) provides that a mental examination and evidentiary hearing is
required "[i]f . . . the court has reasonable grounds to believe the defendant is
incompetent to stand trial . . . ." In the context of whether a defendant is entitled to file a
successive petition for a writ of habeas corpus to assert an Atkins claim, federal courts
have applied the definition of "prima facie showing" often used in deciding whether to
grant a successive petition raising other issues, i.e. , "a sufficient showing of possible
merit to warrant a fuller exploration ." In re Holladav , 331 F.3d 1169, 1173 (11th Cir.
2003) ; In re Morris , 328 F.3d 739, 740 (5th Cir. 2003); cf. Bennett v. United States , 119
F.3d 468, 469 (7th Cir. 1997) (applying same test to belated claim of insanity) . The
statutes of New York and South Dakota require a showing that there is "reasonable
cause to believe that the defendant [is] [was] mentally retarded ." N .Y . Crim . Proc. Law
§ 400 .27(12)(a) ; S.D . Codified Laws § 23A.27A-26 .1 . The Kansas statute requires a
showing that "there is sufficient reason to believe that the defendant is mentally
- 34-
retarded." Kan . Stat . Ann . § 21-4623(a) . The Virginia statute requires a hearing unless
the claim is deemed "frivolous ." Va . Code Ann . § 8 .01-654 .2 .
In Johnson v. State , 102 S .W .3d 535 (Mo. 2003), the defendant was held entitled
to an evidentiary hearing because "reasonable minds could differ as to [his] mental
abilities ." Id. at 540. Compare State v. Dann , 79 P.3d 58, 63 (Ariz . 2003) (Defendant
"has offered no evidence that raises any doubt as to whether he may be mentally
retarded ."); Branch v. State, 882 So .2d 36, 51 (Miss . 2004) (defendant with a WAIS-IIIassessed IQ of 84 at age twenty-two failed to make a prima facie showing that he was
mentally retarded even though Stanford-Binet assessment at age five had shown an IQ
of 68) ; Johnson v. Commonwealth , 591 S .E .2d 47, 58-59 (Va . 2004) (defendant's claim
deemed "frivolous" under Va. Code Ann. § 8 .01-654 .2 where his IQ scores were 75 and
78 and statute required an IQ of "two or more deviations below the mean," i.e. , 70 or
below) .
Though articulated differently, these tests are essentially the same . We hold that
to be entitled to an evidentiary hearing on a claim of entitlement to the mental
retardation exemption provided by KRS 532 .140(1),
a defendant must produce some
evidence creating a doubt as to whether he is mentally retarded .
As noted earlier, two IQ tests were administered to Appellant within a month of
his December 1990 trial . The WAIS-R test administered by the court-appointed
psychologist measured Appellant's IQ at 86. The Shipley-Hartford Intelligence Scale
test administered by the psychologist selected by Appellant's attorneys measured
Appellant's IQ at 87. In his brief36 and at oral argument, Appellant claimed that an IQ
test administered when he was in junior high school had measured his IQ at 74, within
36
Appellant's brief, at 16, 41, 43 .
-35-
the five-point margin of error that he claims should be applied to the definition in KRS
532.130(2) of "significantly subaverage general intellectual functioning ." However, the
only pre-1990 IQ test scores found in this record are those found in Appellant's seventh
grade record (Exhibit 5 to petition filed in the Fayette Circuit Court), which reflects that
Appellant was twice administered the Otis Mental Ability Test . The first test,
administered on November 28, 1966, measured his IQ at 84;3' the second test,
administered on March 31, 1967, measured his IQ at 79 . We find no evidence in this
record of a test measuring Appellant's IQ at 74 .
Appellant's IQ scores show that he could not meet the "significantly subaverage
intellectual functioning" criterion of the statutory definition of "mental retardation" even if
the General Assembly had provided for application of a five-point margin of error and a
three-point "Flynn effect." Thus, we need not address whether he meets the
"substantial deficits in adaptive behavior" criterion of the definition . Johnson v.
Commonwealth , 591 S.E .2d 47, 59 (Va. 2004) (where statutory threshold was IQ of 70
and defendant's IQ test scores were 75 and 78, the record "shows as a matter of law
that [he] is unable to meet the definition of "mentally retarded") . Thus, even if Appellant
had not procedurally defaulted this claim, he has produced no evidence that creates a
doubt as to whether he is mentally retarded . Denial of an opportunity to further litigate
this claim will not result in a fundamental miscarriage of justice, Coleman v. Thompson ,
501 U .S . at 750, 111 S.Ct. 2546, because it will not result in the imposition of the death
37
Even if the dissenting opinion's supposition (with which we strongly disagree) were
true that the person who recorded the score of 84 attempted to superimpose a "7" over
an "8," the relevancy of an IQ score of 74 at age thirteen would be clearly outweighed
by Appellant's IQ scores of 79 measured five months later, and 86 and 87 measured
twenty-four years later and in the same time frame as the offenses and the trial. If a trial
court found otherwise, we would deem that finding to be clearly erroneous. CR 52 .01 .
-36-
penalty where a "condition of eligibility ha[s] not been met." Sawyer v. Whitley , 505
U .S . at 345, 112 S.Ct . at 2522.
Accordingly, the order of dismissal entered by the Fayette Circuit Court is
affirmed .
Lambert, C .J . ; Johnstone, Scott, and Wintersheimer, JJ ., concur . Keller, J .,
dissents by separate opinion, with Graves, J ., joining that dissenting opinion .
COUNSEL FOR APPELLANT :
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
David M . Barron
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
Room 118
State Capitol
Frankfort, KY 40601
David A. Smith
Ian G . Sonego
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MARCH 17, 2005
TO BE PUBLISHED
,Suprmur (gaud of 'mfurkV
2004-SC-0880-MR
THOMAS C. BOWLING
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
04-CI-4033
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
Although I agree with most of the majority opinion, I do not believe that a
defendant can waive a claim of mental retardation because the State is constitutionally
prohibited from executing mentally retarded individuals . I also do not believe that trial
courts are limited to a bright-line rule of an intelligence quotient (IQ) test score at or
below 70 when determining whether an individual is mentally retarded, nor do I believe
that Appellant's evidence was insufficient to warrant a hearing . Thus, I write separately.
In Atkins v. Virginia, l the U.S . Supreme Court exempted all condemned mentally
retarded offenders from the death penalty by holding that the execution of mentally
retarded offenders constitutes cruel and unusual punishment, which is prohibited by the
Eighth Amendment .
The majority opinion, however, claims that because Kentucky
provides a statutory mechanism for raising the issue of mental retardation before trial,
and Appellant failed to utilize that mechanism even though it had been in effect all of
(2002) .
Atkins v. Virginia, 536 U .S . 304, 321, 122 S .Ct. 2242, 2252, 153 L.Ed .2d 335
five months before his trial, Appellant has waived any Eighth Amendment mental
retardation claim . This clearly conflicts with the holding in Atkins that the "Constitution
`places a substantive restriction on the State's power to take the life' of a mentally
retarded offender . ,2 Atkins cited Kentucky's statutory scheme, not necessarily with
approval, but as evidence of the emerging national consensus against the execution of
the mentally retarded . By then holding that the Eighth Amendment contained a
"substantive restriction" against such executions, the Supreme Court raised the bar of
protection above that which had been provided in the various mental retardation
statutes in existence at the time . This is, in fact, part of the argument that Justice Scalia
raised in his dissent in Atkins , i .e ., that the majority's opinion went (1) further than any
actually-existing national consensus (given that only 47% of death penalty States at the
time had statutes that made mental retardation a bar to execution versus a mitigating
factor) and (2) further than the "consensus" that existed even among that 47% of death
penalty States . Yet we are bound by the majority opinion, which, in effect, recognized
that the emerging national consensus against allowing the execution of mentally
retarded defendants meant that the Eighth Amendment contained a categorical bar
against the execution of the mentally retarded . In other words, what had formerly been
only a statutory procedural right in some States, including Kentucky, before Atkins has
now been raised to the level of a substantive constitutional prohibition applicable to all
fifty States .
2 Atkins , 536 U .S. at 321, 122 S.Ct. at 2252 (citing Ford v. Wainwright , 477 U .S .
399, 405, 106 S .Ct. 2595, 2599 (1986)) (emphasis added) ; see also Gilmore v. Utah ,
429 U .S. 1012, 1019, 97 S .Ct. 436, 440 (1976) (Marshall, J ., dissenting) ("I believe that
the Eighth Amendment not only protects the right of individuals not to be victims of cruel
and unusual punishment, but that it also expresses a fundamental interest of society in
ensuring that state authority is not used to administer barbaric punishments .") .
3 Atkins , 536 U.S . at 341-48, 122 S .Ct. at 2262-65 (Scalia, J ., dissenting) .
-2-
Thus, the mere fact that Kentucky's statutes provided (and still provide) a pretrial
means to challenge the applicability of the death penalty when the defendant may be
mentally retarded is not enough to protect the interest recognized in Atkins . As the
Supreme Court noted in a similar case involving the execution of an insane person,
"Once a substantive right or restriction is recognized in the Constitution . . . . its
enforcement is in no way confined to the rudimentary process deemed adequate in
ages past. ,4 And as the concurring fifth vote in that case noted, "the Eighth Amendment
claim at issue can arise only after the prisoner has been validly convicted of a capital
crime and sentenced to death ." 5 Furthermore, "[s]ociety's independent stake in
enforcement of the Eighth Amendment's prohibition against cruel and unusual
punishment cannot be overridden by a defendant's purported waiver. ,6
This makes sense in light of the majority of Eighth Amendment jurisprudence .
For example, the Supreme Court has decided that the Eighth Amendment prohibits the
State from taking the life of an offender fifteen years of age or less,' and Kentucky has
statutorily enacted this constitutional proscription .$ And more recently, the Supreme
Court ruled that the Eighth Amendment also prohibits the imposition of the death
4 Ford v. Wainwright, 477 U .S . 399, 410, 106 S .Ct. 2595, 2602 (1986) (plurality
opinion) .
5 Id. at 425, 2609-10 (Powell, J ., concurring) (emphasis added) .
6 Lenhard v . Wolff, 444 U .S . 807, 811, 100 S .Ct . 29, 30-31 (1979) (Marshall, J .,
dissenting) ; see also Gilmore , 429 U .S . at 1018, 97 S .Ct. at 439-40 (White, J .,
dissenting) ("I believe, however, that the consent of a convicted defendant in a criminal
case does not privilege a State to impose a punishment otherwise forbidden by the
Eighth Amendment .") .
Thompson v. Oklahoma , 487 U .S . 815,108 S .Ct. 2687 (1988) .
8 KRS 640.040(1) .
penalty for sixteen and seventeen year olds.9 If the issue of an offender's age had not
been presented or addressed previously by the trial court, no one, at least hopefully no
one, would seriously argue that the issue was waived and could not be presented later if
evidence, or a reasonable inference from the evidence, became available that showed
that the offender was less than sixteen at the time of the offense .
Ultimately, while pretrial measures are laudable, they alone are not sufficient to
protect the substantive right implicit in the Eighth Amendment and recognized in Atkins .
Because there is, at least, some indicia of mental retardation, no hearing has been held
on this matter, and a constitutional claim of such magnitude is involved, it is also
unthinkable that we would assume a waiver and thus violate the precept that "[w]e
cannot presume a waiver . . . from a silent record . "1° Furthermore, to say that such a
claim is waivable by default not only runs afoul of the Eighth Amendment but also
conflicts with KRS 532.075, which provides that all death penalties are reviewable by
this Court. Thus, despite Appellant's failure to avail himself of the pretrial procedures
described in KRS 532 .130-.140, and because the State may not execute him if he is
mentally retarded, we cannot deprive him of the opportunity to be heard now on his
mental retardation claim ."
9 Roper v. Simmons ,
U .S .
S .Ct.
(2005).
10 Boykin v. Alabama , 395 U .S . 238, 243, 89 S .Ct. 1709, 1712 (1969) .
11
See also United States v. Cota-Corrales, No. 00-10184, 243 F.3d 550 (Table),
2000 WL 1808108 at **1 (9t" Cir. 2000) (unpublished opinion) ("Thus, we have
addressed the merits of an Eighth Amendment claim notwithstanding an appeal waiver.
See United States v. Aguilar-Muniz, 156 F.3d 974, 978 (9th Cir.1998) .") ; In re Grand
Jury Proceedings , 33 F.3d 1060, 1062 (9t" Cir. 1994) ("The time to raise the issue of an
Eighth Amendment violation of his right to be free from excessive fines is after the
imposition of such a fine.").
Though the majority claims that Appellant waived his Eighth Amendment claim, it
appears to back away from this harsh default rule by citing to Coleman v. Thompson ,
which held that review of procedurally defaulted constitutional claims can be reviewed
where "the prisoner can . . . demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice . "12 The majority opinion then admits that if
Appellant could prove that -he is mentally retarded, he would, in effect, show "actual
innocence," to wit, "that some other condition of eligibility had not been met,
"13
at least
with regard to the availability of the death penalty. But the majority opinion avoids this
issue by finding that Appellant has not made a prima facie showing sufficient to create
doubt as to whether he is mentally retarded .
While I agree that Appellant must at least make a prima facie showing that he is
mentally retarded before he is entitled to a hearing, I disagree with the majority's finding
that he has not made a prima facie showing because the evidence presented to the trial
court, although slight, was sufficient to create a doubt as to his mental condition . There
was some evidence of substantial deficits in adaptive behavior and of subaverage
mental functioning (i .e ., an IQ of less than 70) . Appellant has also produced some
evidence that both circumstances manifested during the developmental period, i .e.,
before he became an adult.
The majority opinion focuses on Appellant's IQ, stating that there is no evidence
in the record of an IQ test score of 74 (as claimed by Appellant) because the score in
question is an 84. The following is a scanned reproduction of the section of Appellant's
school records, as included in the Appellate record, listing the IQ test score in question :
12
13
Coleman v. Thompson , 501 U .S . 772, 750, 111 S.Ct. 2546, 2565 (1991).
Sawyer v. Whitley, 505 U .S . 333, 345, 112 S.Ct. 2514, 2522 (1992).
-5-
MENTAL ABILITt'lDA-M,
aaAtr
PAPr_
.11
17
~
j& ._
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__
PI
_'
..
MArljfflw~~
I . Q.
.
~sXA
.Ui
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.
4stt
. , .5
_
On further examination, this test score is handwritten and appears to include a "7"
superimposed over an "8 ." The majority opinion does not even acknowledge this
obvious ambiguity, choosing instead to make the factual finding that the IQ score in
question is an 84, i .e., an implicit finding that the questionable number in the image
above is an "8" rather than a "7 ." But this factual ambiguity is not for us, as an appellate
court, to decide. Such factual findings are reserved for the trial court. That one
handwritten number appears to be superimposed over the other presented the trial
court with a credible question of fact as to whether Appellant had received a score of 74
on the IQ test in question, but the trial court did not make the requisite finding, one way
or the other. The trial court should now be tasked with resolving this ambiguity.
This then raises my final point of disagreement with the majority: If the IQ test
score in question is a 74, then Appellant's actual IQ could have fallen into the below-70
region contemplated by both Atkins and Kentucky's statutes. The majority finds that the
General Assembly's use of an IQ of 70 as part of the definition of mental retardation
creates a bright-line test that does not admit the possibility of applying a margin of error.
First, this presupposes that our statutory scheme, which allows only for a pretrial
challenge, is the only means of pursuing an Eighth Amendment mental retardation
claim . As discussed above, I disagree with this supposition . Because the General
Assembly has not supplied a procedure for challenging a death-penalty sentence on the
basis of mental retardation after trial, it has failed to provide a sufficient statutory
framework, even though Atkins indicates that the States may supply their own
definitions of "mental retardation ."
But even assuming that the current statutory definition is applicable to post-trial
proceedings, it is not clear that the General Assembly intended an IQ test score of 70 or
below to be a bright-line cutoff. Notice that the General Assembly did not mention the
results of an IQ test score in defining mental retardation ; instead, it stated that
"significantly subaverage general intellectual functioning," one of the requirements for a
finding of mental retardation, "is defined as an intelligence quotient (I .Q .) of seventy (70)
or below. ,14 A score on an IQ test, however, is merely evidence of a person's actual IQ .
To claim that the judge is bound to a mechanical process of determining whether a
given IQ test score is 70 or below reduces the judge to a mere administrator comparing
numbers on a roll . But the judge is charged with judging, that is, with making decisions
and, where necessary, finding facts . To do this, the judge must consider evidence.
That evidence might come in the form of an IQ test score, but it might also come in the
form of expert testimony as to the margin of error of a given testing procedure or as to
the so-called "Flynn effect ." Kentucky's statutory scheme includes no limitations on the
types of evidence that a judge can consider in making a mental retardation
determination, nor should it.
The record in this case includes evidence of a possible five-point margin of error
in the testing procedures used to test Appellant's IQ and evidence of a possible threepoint error from the Flynn effect. When these errors are combined with the ambiguity
discussed above, it is possible that Appellant's IQ is well below 70. And though IQ is
only one of several factors in determining whether a given defendant is mentally
retarded, this evidence, when combined with the other evidence in the record of
14
KRS 532 .130(2) .
Appellant's alleged "deficits in adaptive behavior," creates sufficient doubt to warrant a
hearing .
Furthermore, it is obvious that the trial judge denied Appellant's motion for a
hearing solely because, as she opined, she thought mental retardation was only a
matter of mitigation, which is clearly contrary to the holding in Atkins and the purpose of
KRS 532.130-.140 . Thus, the trial judge never determined whether the IQ test score on
which Appellant relies was a "74," as it appears to me, or an "84," as implicitly found by
the majority . In fact, she did not even determine whether the evidence overall was
sufficient to warrant an evidentiary hearing . The majority opinion, however, has
inappropriately made a finding in this regard . For this reason alone, the case should be
remanded to the trial court . Accordingly, I would remand the case to the trial court for
its proper consideration of Appellant's motion.
Graves, J ., joins this dissenting opinion.
,,SixyrrmP Courf of ~rnfurhV
2004-SC-0880-MR
THOMAS C. BOWLING
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
04-CI-4033
v
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER MODIFYING OPINION
On the Court's own motion, the original opinion rendered herein on March 17,
2005, is hereby modified to correct a cite in footnote 19 on page 25 so that it reads
Perrv v. Commonwealth, instead of Burks v. Commonwealth . Attached hereto are new
pages 1 and 25 in lieu of pages 1 and 25 as originally rendered . The modification does
not affect the holding of the Opinion of the Court or the dissenting opinion as originally
rendered .
ENTERED : April 22
, 2005
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