IN THE SUPREME COURT OF FLORIDA. v. CASE NO.: SC03-37 ON APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CLARENCE JAMES JONES, Appellant, v. CASE NO.: SC03-37 STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA SUPPLEMENTAL ANSWER BRIEF CHARLES J. CHRIST, JR. ATTORNEY GENERAL GENERAL RONALD A. LATHAN, JR. ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY THE CAPITOL TALLAHASSEE, FL (850) COUNSEL FOR THE STATE

2 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS TABLE OF CITATIONS PRELIMINARY STATEMENT v PROCEDURAL BACKGROUND STATEMENT OF THE CASE AND OF THE FACTS A. THE EVIDENTIARY HEARING B. THE CIRCUIT COURT S FINDINGS SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. THE CIRCUIT COURT CORRECTLY FOUND THAT JONES IS NOT MENTALLY RETARDED AND A JURY WAS NOT REQUIRED TO MAKE THAT DETERMINATION A. JONES IS NOT RETARDED UNDER FLORIDA LAW... 9 B. RING V. ARIZONA IS NOT APPLICABLE TO THIS CASE II. JONES WAS NOT DENIED A FULL AND FAIR HEARING.. 14 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT AND TYPE SIZE

3 TABLE OF CITATIONS CASES PAGE(S) Ake v. Oklahoma, 470 U.S. 68 (1985) Arbelaez v. State, 898 So. 2d 25 (Fla. 2005) , 13 Atkns v. Vrgna, 536 U.S. 304 (2002) passm Bottoson v. State, 833 So. 2d 693 (Fla. 2002) Foster v. State, 929 So. 2d 524 (Fla. 2006) Franqu v. State, 699 So. 2d 1312 (Fla. 1997) Johnston v. State, 930 So. 2d 581 (Fla. 2006) , 11, 12, 15 Keys v. State, 500 So. 2d 134 (Fla. 1986) Phllps v. State, 608 So. 2d 778 (Fla. 1992) Provenzano v. State, 750 So. 2d 597 (Fla. 1999) Rng v. Arzona,

4 536 U.S. 584 (2002) , 13 Rodrguez v. State, 919 So. 2d 1252 (Fla. 2006) , 13 Schltz Brewng Co. v. Unted States, 181 U.S. 584 (1901) Smth v. State, 931 So. 2d 790 (Fla. 2006) Smth v. Unted States, 508 U.S. 223 (1993) Sochor v. State, 883 So. 2d 766 (Fla. 2004) Tbbs v. State, 397 So. 2d 1120 (Fla. 1981) Walls v. State, 926 So. 2d 1156 (Fla. 2006) Zack v. State, 911 So. 2d 1190 (Fla. 2005) , 16 OTHER AUTHORITIES FLA. R. CRIM. P , 6, 11, 16, 17 SECTION , FLA. STAT , 11, 14, 15, 16 2 B. SADOCK & V. SADOCK, COMPREHENSIVE TEXTBOOK OF PSYCHIATRY (7 th ed. 2000).. 10, 11 U.S. CONST. amend. VIII ,7,9

5 PRELIMINARY STATEMENT The transcrpts of the evdentary hearng and the Crcut Court s subsequent order wll be denomnated as follows: T. Transcrpt of Evdentary Hearng from June 23, 2005 RJ-R. Crcut Court s June 24, 2005, Order Denyng Moton to Bar Executon Due to Mental Retardaton.

6 PROCEDURAL BACKGROUND On November 12, 2004 ths Court entered an order relnqushng jursdcton to the Crcut Court of Leon County to make a determnaton as to whether Clarence Jones s mentally retarded. 1 On June 23, 2005, n accordance wth Florda Rule of Crmnal Procedure 3.203, an evdentary hearng was convened, wheren two mental health experts testfed regardng Jones general ntellectual functonng. Based on the results of separate IQ tests admnstered to Jones n preparaton for the hearng, the experts each concluded that he s not retarded. 1 On December 17, 2004 ths court entered a clarfed order relnqushng jursdcton.

7 Ther determnaton prncpally rested on the fact that Jones IQ exceeded the mnmum score necessary, under Florda law, to establsh mental retardaton by a captal felon. The followng day, the Crcut Court ssued a wrtten order holdng that Jones s not mentally retarded, and therefore hs death sentence was not nconsstent wth the Unted States Supreme Court s holdng n Atkns v. Vrgna, 536 U.S. 304 (2002) (recognzng that the executon of mentally retarded crmnals was proscrbed by the Eghth Amendment). Thereafter, ths Court permtted the partes to supplement ther ntal brefng to add any new clams related to the Crcut Court s determnaton. STATEMENT OF THE CASE AND OF THE FACTS A. The Evdentary Hearng The State respectfully beleves the facts n Jones Amended Supplemental Intal Bref provde a factual gloss whch gnores a wde swath of testmonal evdence supportng the Crcut Court s determnaton that Jones s not mentally retarded. Accordngly the State reles on the followng rectaton of facts, whch, the record demonstrates, undergrded the Crcut

8 Court s concluson. 2 Dr. Wllam Denns Keyes testfed at the evdentary hearng. He provded that n preparaton, he conducted a four and a half hour psychologcal assessment of Jones, whch ncluded admnsterng the Stanford-Bnet IQ test (T. 32). Dr. Keyes found Jones full scale IQ on the Stanford-Bnet to be 79 (Id.). Accordng to Keyes, the Stanford-Bnet and the Wechsler Adult Intellgence Scale are consdered to be the gold standards n the measurement of IQ (T. 35, 71, 77). Dr. Keyes acknowledged that a full scale score of 79 on the Stanford-Bnet placed Jones outsde the range of mental retardaton (T. 55). Keyes was also asked about a reported 67 that Jones scored on an admnstraton of the Stanford-Bnet n 1967 when he was 12 years old. Keyes opned that the verson of the Stanford-Bnet that was admnstered to Jones n 1967 would not have been an entrely vald assessor of hs ntellectual functonng because at the tme, due to cultural bases, the test tended to underestmate the IQ scores of Afrcan-Amercan and Hspanc chldren (T. 69). Keyes was also asked about the merts of the Beta IQ test 2 The State contnues to rely on the Statement of the Facts set out n ts Answer Bref.

9 that was admnstered to Jones on three separate occasons (T. 27), wheren he scored a 76 n 1989, a 71 n 1994, and a 67 n 1995 (T. 29). Dr. Keyes stated that the Beta IQ test was not accorded the same professonal respect as ether the Stanford- Bnet or the Wechsler IQ tests (T ). Accordngly, he dscounted the Beta IQ test s capacty to properly assess Jones ntellectual functonng. (Id.). Dr. Greg Prchard, a clncal psychologst for the State of Florda smlarly testfed at the evdentary hearng. Prchard revewed documents n Jones prson record, ncludng nformaton datng from hs ncarceraton n Maryland. Prchard also admnstered the Wechsler Adult Intellgence Scale, Thrd Edton (WAIS-III) (T ). Jones acheved a full scale score of 75 on the WAIS-III (Id.), whch prelmnarly ndcated to Prchard that Jones s not mentally retarded (T. 100). Prchard further noted, takng nto consderaton the Standard Error of Measurement nherent n the WAIS-III (+/-4 ponts), there was a 95 percent chance that Jones IQ was between 71 and 79 (T. 101). Prchard testfed that because Jones IQ placed hm outsde the range of mental retardaton, t was largely unnecessary to formally nvestgate Jones adaptve functonng (Id.).

10 Dr. Prchard also took ssue wth Jones results on the Beta IQ test. Prchard emphaszed that the Beta test had a tendency to underestmate IQ scores by some 8 to 11 ponts (T ). Further, Prchard dd not gve much credence to the reported 67 IQ score Jones receved on an admnstraton of the Stanford-Bnet test when he was 12 years old prmarly because the Stanford-Bnet, n 1967, was heavly flawed (T. 112), and tended to underestmate mnorty IQ scores by some 13 ponts (T. 113). Thus, Prchard found that any relance on a test score from that was only vaguely referenced n Jones Maryland prson report -- was msplaced (T. 114). On cross-examnaton Dr. Prchard was agan asked about the 75 IQ score that Jones receved on the WAIS-III that Prchard admnstered(t. 123). Prchard reterated that there was a 95 percent chance that Jones IQ, takng nto consderaton the Standard Error of Measurement, was between 71 and 79 (T. 123). Prchard was then pressed as to why further testng of Jones adaptve functonng was not addressed, gven there was a statstcal chance hs IQ may have been as low as 71 (Id.). Frst, Dr. Prchard noted that an IQ test score of 71 on the WAIS-III would stll not be consdered two standard devatons below the mean on that test, and therefore Jones was not

11 consdered mentally retarded under Florda law (T. 124). Second, Prchard weghed the fact that Jones attaned hs GED whle ncarcerated n Maryland (Id.). Thrd, Dr. Prchard also found nstructve that Jones scored a 79 on the Stanford-Bnet IQ test admnstered by Dr. Keyes (Id.). Consequently, t was clear to Dr. Prchard that t was unnecessary to test Jones adaptve functonng because he smply was not retarded (Id.). B. The Crcut Court s Fndngs The Crcut Court ruled that Jones s not mentally retarded. The Crcut Court reled on Florda Statues (1) s defnton of mental retardaton, whch provdes n relevant part that the captal felon must have subaverage general ntellectual functonng, whch means performance that s two or more standard devatons from the mean score on a standardzed test specfed n the rules of the Department of Chldren and Famly Servces (1). The Crcut Court found that Jones IQ scores on the both the Stanford-Bnet and the WAIS-III, 79 and 75 respectvely, dd not evdence the fact that he was mentally retarded wthn the understandng of Florda law. (RJ-R. 122). In Florda, to be found mentally retarded, a captal felon must score two standard devatons below the mean on ether the Stanford-Bnet or WAIS-III. Two

12 standard devatons below the mean on ether test translates to an IQ score of 70 or below (Id.). Thus, the Crcut Court recognzed that -- even takng nto the consderaton the Standard Error of Measurement -- Jones IQ scores on both tests dd not support a determnaton of mental retardaton (Id.). 3 The Crcut Court next addressed whether, n lght of Atkns, a determnaton of Jones IQ had to be assessed at the tme of hs 1989 tral, or as t exsted at the tme of the 2005 evdentary hearng (RJ-R. 123). The Crcut Court rejected the noton that Jones IQ at the tme of hs tral was relevant n ts assessment of whether, at present, he s encumbered by subaverage general ntellectual functonng (Id.). The Crcut Court emphaszed that pursuant to Florda Crmnal Procedure Rule 3.203, t was only requred to determne whether Jones s presently mentally retarded (Id.). Thus, the Crcut Court found ts mandate was to assess Jones ntellectual functonng wthn the tmeframe contemporaneous to the evdentary hearng (Id.). 3 The Crcut Court also chose not to credt Jones Beta IQ test results, gven that nether expert thought t was worthy of great credence (T. 71, 108); see also Franqu v. State, 699 So. 2d 1312, (Fla. 1997) (upholdng Crcut Court s dsregardng of Beta IQ test results because the Beta was not found to be as credble as the Wechsler).

13 The Crcut Court further held that evdence suggestng Jones scored a 67 on the Stanford-Bnet when he was 12 years old was of de mnmus value n ts analyss of hs mental retardaton clam (Id.). Whle Jones attempted to argue the nearly forty year old test result supported a fndng that he was mentally retarded because t demonstrated subaverage general ntellectual functonng manfestng tself pror to the age of 18, the Crcut Court noted that nether expert at the evdentary hearng found the results credble (Id.). 4 Moreover, the Crcut Court found that Jones 2005 test results on the Stanford-Bnet and the WAIS-III frmly reflected that he s not mentally retarded (Id.). Accordngly, the Crcut Court found that under Florda law, Jones s not mentally retarded because no showng was made that hs IQ score was 70 or below. SUMMARY OF ARGUMENT Jones evdentary hearng comported wth the requrements 4 Gven the fact that expert testmony suggested the Stanford-Bnet test admnstered to Jones n 1967 underestmated mnorty test takers IQ scores by some 13 ponts, the Crcut Court noted that Jones IQ score of 67 on a properly calbrated test probably translated to an 80; thus, the Crcut Court found hs chldhood test result worked to the detrment rather than to the beneft of hs mental retardaton clam (RJ-R. 123).

14 of Florda law, and the Crcut Court approprately found he s not mentally retarded. Ths fndng was based on the clear and convncng evdence presented durng the hearng. The record consstently bore out the fact that Jones IQ was comfortably above 70. Therefore, the Crcut Court s fndng that Jones s not mentally retarded - a fndng whch rendered hm elgble for the death penalty -- was entrely consstent wth the Eghth Amendment, the Unted States Supreme Court s pronouncements n Atkns, and Florda law. STANDARD OF REVIEW The standard of revew employed n revewng a Crcut Court s determnaton regardng whether a defendant s mentally retarded s well-understood: the record underlyng the Crcut Court s concluson must be substantally and competently supported. See, e.g., Foster v. State, 929 So. 2d 524, 537 (Fla. 2006); see also Sochor v. State, 883 So. 2d 766, 781 (Fla. 2004). Ths Court has cautoned that appellate court s should avod any effort to rewegh conflctng evdence submtted to a...trer of fact, because f after all conflcts n the evdence and all reasonable nferences therefrom have been resolved n favor of the verdct on appeal, there s substantal, competent evdence to support the [tral court s

15 decson]. Johnston v. State, 930 So. 2d 581, 586 (Fla. 2006) (quotng Tbbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (footnote omtted), aff d, 457 U.S. 31 (1982)). Consequently, deference s owed to the Crcut Court s factual fndngs provded they are fully supported by the record. 5 ARGUMENT I. THE CIRCUIT COURT CORRECTLY FOUND THAT JONES IS NOT MENTALLY RETARDED AND A JURY WAS NOT REQUIRED TO MAKE THAT DETERMINATION A. Jones s not retarded under Florda law The record presented n ths case s clear: Clarence Jones s not mentally retarded. All of the clams n Jones Intal and Reply Brefs were tethered to the Unted States Supreme Court s decsons n Atkns, supra, and Rng v. Arzona, 536 U.S. 584 (2002) (holdng that a captal defendant must have any fact whch ncreases hs sentence beyond the statutory maxmum 5 Whle the Crcut Court asserted t had determned beyond a reasonable doubt (RJ-R. 124) that Jones was not mentally retarded, rather than makng ths fndng by clear and convncng evdence, the State beleves that ths varance of language has no apprecable bearng on the underlyng proprety of the Crcut Court s mental retardaton determnaton. See, e.g., Keys v. State, 500 So. 2d 134, 135 (Fla. 1986) (recognzng that [c]lear and convncng reasons requre that the facts supportng reasons be credble and proven beyond a reasonable doubt ).

16 proven before a jury beyond a reasonable doubt). 6 Doubtlessly aware most of the grounds of error he has rased n hs Intal and Reply Brefs are foreclosed, Jones stll asserts n hs Amended Supplemental Intal Bref that he s mentally retarded, rrespectve of the Crcut Court s concluson. He further argues n lght of Atkns, permttng hs executon runs afoul of the Eghth Amendment s prohbton aganst cruel and unusual punshment. He rests ths argument on a very expansve nterpretaton as to how one s IQ should be gauged n post-convcton proceedngs. For example, Jones observes that pror to hs 1989 tral, Dr. Lawrence Ans admnstered an IQ test to hm, wheren Jones scored a 72 on the Wechsler Adult Intellgence Scale, Revsed Edton (WAIS-R). Jones avers that f one were to factor the Standard Error of Measurement (SEM) nherent n all IQ tests (the WAIS-R s SEM was 6 All of the ssues Jones rased related to Atkns and/or Rng have snce been foreclosed by ths Court s precedents. For example, n an attempt to conflate Atkns and Rng, Jones avers and stll mantans that a jury, not a judge, must make a determnaton beyond a reasonable doubt regardng whether he s mentally retarded. However, ths Court has planly stated that a captal defendant has no rght under Rng and Atkns to a jury determnaton of whether he s mentally retarded. Rodrguez v. State, 919 So. 2d 1252, 1267 (Fla. 2006) (quotng Arbelaez v. State, 898 So. 2d 25, 43 (Fla. 2005)). Accordngly, ths lne of reasonng s wthout mert.

17 +/- 5 ponts), 7 there s a statstcal chance that hs IQ fell below the threshold IQ score a captal felon must fall below n order to be found mentally retarded under Florda law. 8 Moreover, Jones mantans that a fndng of mental retardaton under Florda law should ncorporate the understandng, by some, wthn the psychologcal communty that an ndvdual wth an IQ as hgh as 75 may be retarded. See Atkns, 536 U.S. at 309 n. 5 (ctng 2 B. Sadock & V. Sadock, Comprehensve Textbook of Psychatry 2952(7th ed. 2000))( It s estmated that between 1 and 3 percent of the populaton has an IQ between 70 and 75 or lower, whch s typcally consdered the cutoff IQ score for the ntellectual functonng prong of the defnton of mental retardaton. ); see also Amended Supplemental Intal Bref, at p Despte Jones averments however, Florda law s clear. In Atkns the Supreme Court provded that States were to fashon 7 Jones was admnstered the Wechsler Adult Intellgence Scale, Thrd Edton (WAIS-III), for hs 2005 evdentary hearng. The WAIS-III, s smply a newer verson of the WAIS- R admnstered to Jones n One of the more mnor dstnctons between the tests s that the WAIS-III s SEM s +/- 4, whereas the WAIS-R s SEM was +/ Jones argument s flawed, as he gnores the fact that by factorng n the SEM, there s also an equal chance that hs IQ s hgher than the test score acheved on a partcular IQ

18 approprate procedures to determne whether captal defendants were mentally retarded. 536 U.S. at 317. Florda responded to Atkns mandate by adoptng Florda Rule of Crmnal Procedure et seq., whch provdes, n order for a captal felon n Florda to be found mentally retarded, he must have: (1)sgnfcantly subaverage general ntellectual functonng 9 exstng concurrently wth (2) defcts n adaptve behavor 10 and (3) manfested durng the perod from concepton to age 18. The foregong must be analyzed conjunctvely, and the absence of but one prong would mean the captal felon s not mentally retarded. See Johnston, 930 So. 2d at 586. At mnmum, the felon must score 70 or below on ether, nter ala, the Stanford-Bnet or the WAIS-III - whch correlates to two standard devatons below the mean on ether test. See d.; see also Zack v. State, 911 So. 2d 1190, 1201 (Fla. admnstraton. 9 Fla. Stat (1) provdes, [t]he term sgnfcantly subaverage general ntellectual functonng, for the purpose of ths secton, means performance that s two or more standard devatons from the mean score on a standardzed ntellgence test specfed n the rules of the Department of Chldren and Famly Servces. 10 Fla. Stat (1) provdes, [t]he term adaptve behavor, for the purpose of ths defnton, means the effectveness or degree wth whch an ndvdual meets the standards of personal ndependence and socal responsblty

19 2005)(recognzng that a captal defendant must score 70 or below on a state authorzed IQ test n order to be classfed as mentally retarded under Florda law). As was establshed durng the evdentary hearng, Dr. Keyes determned Jones full scale IQ based on the Stanford- Bnet was 79. Dr. Prchard, who also testfed, admnstered the WAIS-III and determned that Jones IQ was 75. Therefore, because one of the crtera to determne f a person s mentally retarded s that he or she has an IQ of 70 or below, Zack, supra, at 1201, Jones has clearly faled to satsfy a requste prong for a clam of mental retardaton. See Johnston, supra, at 586 (observng that falure to satsfy the IQ prong obvates the need to dscuss remanng two prongs). 11 Consequently, the Crcut Court was left to wegh the totalty of evdence presented, and concluded that Jones s not expected of hs or her age, culture group, and communty. 11 Jones mplcaton that the experts fndngs were flawed because they faled to more throughly analyze hs adaptve functonng s merely an effort to delegtmze the Crcut Court s fndng that he s not mentally retarded. Because both experts found hs IQ score exceeded the mnmum threshold artculated by Florda statute for a fndng of mental retardaton, t was largely unnecessary for them to engage n a rgorous analyss of hs adaptve functonng. Hs relance on non-bndng treatses and Standard Errors of Measurement are a roundabout attempt to avod the fact that he does not fall wthn the ambt of Atkns prohbton aganst the

20 mentally retarded. Ths determnaton was supported by substantal, competent evdence, and should be affrmed. B. Rng v. Arzona s not applcable to ths case Moreover, Jones suggests that ssues orgnally brought forth n hs Intal and Reply Brefs, are stll applcable to hs averment that he s mentally retarded. However he fals to acknowledge ths Court has already addressed and foreclosed all of the ssues he presents. Specfcally Jones argues that under the prncples artculated n Rng and Atkns, a jury - and not a judge -- must fnd beyond a reasonable doubt that he s mentally retarded. See Amended Supplemental Intal Bref at p. 22; see also Intal Bref of Appellant at pp ; Reply Bref of Appellant at pp Jones s smply wrong; however, assumng arguendo that Rng has retroactve applcablty whch t does not, see, e.g., Smth v. State, 931 So. 2d 790, 807 (Fla. 2006), ths Court has repeatedly recognzed that a captal defendant does not have the rght to a jury determnaton regardng whether he s mentally retarded. See, e.g., Rodrguez, 919 So. 2d at 1267; Arbelaez, 898 So. 2d at 43; Bottoson v. State, 833 So. 2d 693, 695 (Fla. 2002). executon of the mentally retarded.

21 Accordngly, the Crcut Court s well-supported fndng that Jones s not mentally retarded should be affrmed; and, Jones contentons brought under Rng, supra, should be deemed unavalng by ths Court. II. JONES WAS NOT DENIED FULL AND FAIR HEARING Fnally, Jones asserts he was dened a full and far hearng. He suggests ths argument relates to problems whch orgnally manfested themselves durng a March 8, 2005 case management conference and ultmately rendered nfrm hs subsequent hearng regardng hs mental retardaton clam. See Amended Supplemental Intal Bref at pp Specfcally, Jones beleves the Crcut Court mpermssbly cabned whch experts could testfy at hs evdentary hearng; and because of ths lmtaton as to whch experts were permtted to testfy, he was dened due process. Wth all due respect, ths alleged ground of error s wantng, as nothng n Jones bref suggests anythng mproper transpred at the case management conference nor tanted the subsequent farness of hs evdentary hearng. Cf. Provenzano v. State, 750 So. 2d 597 (Fla. 1999) (remandng after fndng tral court abused ts dscreton by falng to allow captal

22 felon to present hs expert wtness at competency hearng); accord Phllps v. State, 608 So. 2d 778 (Fla. 1992). As Jones s surely aware, under Fla. Stat (4), a defendant convcted of a captal felony may fle a moton to determne whether he s mentally retarded; followng whch, the Crcut Court s only duty-bound to appont two mental retardaton experts to evaluate the merts of the defendant s clam. The Crcut Court s thereafter responsble for makng the fnal determnaton on the ssue of the defendant s mental retardaton. The record n Jones case clearly attests that the Crcut Court proceeded n full complance wth (4), and any suggeston by Jones that he was dened a far hearng smply msapprehends the clear and narrow scope of the statute. Nevertheless Jones contenton s that he was not permtted to call as expert wtnesses, ndvduals who had evaluated hs IQ status somewhat more contemporaneous to hs 1989 tral. For example he notes that he should have been permtted to call Dr. Lawrence Ans, who admnstered the WAIS-R to Jones n 1989 at whch tme Jones scored a 72. Moreover, Jones notes that he was also not allowed to call Dr. Jethro Toomer who admnstered the Beta IQ test to Jones n 1989, 1994, and 1995, wheren Jones receved scores of 76, 71, and 67 respectvely. Jones beleves

23 that the results from IQ tests admnstered by Drs. Ans and Toomer would prove to be far more accurate assessors of Jones IQ wthn the tmeframe of hs crme. Despte Jones averments however, a few fundamental prncples must be understood. Frst, Jones has not presented any test result suggestng that under Florda law he s presently consdered mentally retarded -- gven, for example, Florda law does not recognze the Beta IQ test n assessng whether an ndvdual s mentally retarded. See Johnston, 930 So. 2d at 586. And assumng arguendo hs 1989 WAIS-R IQ test results should have been ncorporated n the Crcut Court s 2005 determnaton as to whether he s currently mentally retarded, Jones score of 72 on the WAIS-R from 1989 would by no means fundamentally call nto queston hs 2005 IQ results. See generally Zack, 911 So. 2d Second, Jones seems to beleve that hs mental retardaton evdentary hearng was faulty because he was not permtted to call hs choce of experts. But as has been well-understood, Jones was clearly not enttled to have addtonal experts of hs own personal choosng testfy at the hearng. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (notng that a defendant does not have the consttutonal rght to choose a psychatrst of

24 hs own personal lkng ); Walls v. State, 926 So. 2d 1156, 1177 (Fla. 2006) (recognzng that consstent wth Ake the accused was not enttled to have experts who testfed on hs behalf at hs frst tral to agan testfy at hs retral). Thrd, Jones nterpretaton of (4), Fla. Stat. and Fla. R. Crm. P attempts to vtate the generalzed purposes of those statutes. See generally Smth v. Unted States, 508 U.S. 223, 240 (1993); Schltz Brewng Co. v. Unted States, 181 U.S. 584, 589 (1901). For example, a plan readng of provdes that the Crcut Court was only requred to assess Jones IQ as t currently stands. See, e.g., Fla. R. Crm. P (c)(2) (notng that a defendant seekng to rase mental retardaton as a bar to hs executon must affrmatvely state n hs moton that he s retarded); Fla. R. Crm. P (e)( At the hearng, the [Crcut Court] shall consder the fndngs of the experts and all other evdence on the ssue of whether the defendant s mentally retarded. ) (emphass added). Consequently, the State respectfully beleves Jones has faled to elucdate how he has been dened the rght to a full and far hearng other than to suggest that he was not permtted the opportunty to call hs desred experts. Therefore, as nether the Federal nor Florda Consttutons have embraced the

25 proposton that one has the rght to hs expressed choce of psychologcal evaluator, hs asserton that he has been dened due process s entrely wthout mert and should be rejected by ths Court. CONCLUSION Accordngly, based on the foregong, the State respectfully urges ths court to affrm the Crcut Court s fndng that Clarence Jones s not mentally retarded. Respectfully submtted, CHARLES J. CHRIST, JR. ATTORNEY GENERAL RONALD A. LATHAN, JR. ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL THE CAPITOL TALLAHASSEE, FL (850) COUNSEL FOR THE STATE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregong SUPPLEMENTAL ANSWER BRIEF has been furnshed by U.S. Mal to Terr L. Backhus, N. Dale Mabry, # 746, Tampa, FL

26 33618 ths 22 nd day of September, Ronald A. Lathan, Jr. Attorney for the State of Florda CERTIFICATE OF FONT AND TYPE SIZE Counsel certfes that ths bref was typed usng Courer New font 12 pont. Ronald A. Lathan, Jr. Attorney for the State of Florda