Appellant, Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA. CASE NO. SC LOWER COURT CASE NO CF TOMMY SANDS GROOVER, Appellant, STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT LINDA McDERMOTT Florida Bar No Grande Oak Blvd. Suite Estero, FL Telephone: (850) com COUNSEL FOR APPELLANT

2 REQUEST FOR ORAL ARGUMENT Mr. Groover has been sentenced to death. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved. Mr. Groover, through counsel, urges that the Court permit oral argument. 1

3 TABLE OF CONTENTS Page REQUEST FOR ORAL ARGUMENT i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv INTRODUCTION STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I MR. GROOVER'S SENTENCE OF DEATH VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DUE TO THE FACT THAT HE IS MENTALLY RETARDED A. ATKINS V. VIRGINIA B. FLORIDA'S MENTAL RETARDATION STANDARD C. THIS COURT SHOULD RECONSIDER ITS DECISION IN CHERRY AND/OR THE CONSTITUTIONALITY OF FLORIDA'S STRICT CUTOFF SCORE Standard error of measure Florida's statute is out of line with the majority of states and will result in the execution of mentally retarded defendants A bright line cutoff score is unconstitutional D. MR. GROOVER IS MENTALLY RETARDED Mr. Groover has significantly subaverage general intellectual functioning

4 2. Mr. Groover has concurrent deficits in adaptive functioning Mr. Groover's mental retardation manifested itself during the period from conception to the age of Conclusion ARGUMENT II MR. GROOVER WAS DENIED A FULL AND EAIR EVIDENTIARY HEARING WHEN THE CIRCUIT COURT UNDULY RESTRICTED HIS RIGHT TO A CONFIDENTIAL MENTAL HEALTH EXPERT ARGUMENT III THE PROCEDURE PROVIDED BY RULE 3.203, FLA. R. CRIM. P., VIOLATES THE SIXTH, EIGHTH AND THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL AS THE CORRESPONDING PROVISIONS TO THE FLORIDA CONSTITUTION CONCLUSION CERTIFICATE OF SERVICE CERTIFICATION OF TYPE SIZE AND STYLE lll

5 CASELAW TABLE OF AUTHORITIES Page Ake v. Oklahoma 470 U.S. 68 (1985) , 68, 72 Apprendi v. New Jersey 530 U.S. 466 (2000) Atkins v. Commonwealth 581 S.E. 2d 514 (Va. 2003) , 77, 79 Atkins v. Virginia 536 U.S. 304 (2002) passim Banda v. State 536 So. 2d 211 (Fla. 1988) Blakely v. Washington 124 S. Ct (2004) , 72 Blonner v. State 127 P.3d 1135 (Okla. Crim. App. 2006) Bowling v. Commonwealth 163 S.W.3d 361, 376 (Ky. 2005) Brady v. Maryland 373 U.S. 83 (1963) Cabana v. Bullock 474 U.S. 376 (1986) Chase v. State 873 So. 2d 1013 (Miss. 2004) Cherry v. State 959 So, 2d 702 (Fla. 2007) , 31, 35, 42 City of Cleburne, Texas, et al.v. Cleburne Living Center, Inc., et al. 473 U.S. 432 (1985) Commonwealth v. Gibson 925 A.2d 167 (Pa. 2007) Commonwealth v. Miller lv

6 888 A.2d 624 (Pa. 2005) Cooper v. Oklahoma 517 U.S. 348 (1997) , 79 Crawford v. Washington 124 S.Ct (2004) Cribbs v. State Slip No. W CCA-R3-PD, 2009 WL (Tenn. Crim. App. July 1, 2009) Dufour v. State 69 So. 3d 235 (Fla. 2011) , 35, 64, 66 Enmund v. Florida 458 U.S. 782 (1982) Evitts v. Lucey 469 U.S. 387 (1985) Ex parte Briseno 135 S.W.3d 1 (Tex. Crim. App. 2004) Fleming v. Zant 386 S.E. 2d 339 (Ga. 1989) Ford v. Wainwright 477 U.S. 399 (1986) , 76 Franqui v. State 59 So. 3d 82 (Fla. 2011) Groover v. Florida 471 U.S (1985) Groover v. Singletary 656 So. 2d 424 (Fla. 1995) Groover v. State 458 So. 2d 226 (Fla. 1984) Groover v. State 489 So. 2d 15 (Fla. 1986) Groover v. State 574 So. 2d 97 (Fla. 1991) v

7 Groover v. State 640 So. 2d 1077 (Fla. 1994) Groover v. State 703 So. 2d 1035 (Fla. 1997) Hamilton v. State 547 So. 2d 630 (Fla. 1989) Hildwin v. Florida 490 U.S. 638 (1989) Hitchcock v. Duqqer 481 U.S. 393 (1987) Howell v. State 151 S.W. 3d 450 (Tenn. 2004) , 42 In re Hawthorne 105 P.3d 552 (Cal. 2005) Johnson v. State 102 S.W.3d 535 (Mo. 2003) , 70, 79 Jones v. State 966 So. 2d 319 (Fla. 2007) Kilgore v. State 55 So. 3d 487 (Fla. 2010) Lambert v. State 71 P.3d 30 (Okla Crim. 2003) , 71, 77, 79 Lambrix v. State 698 So. 2d 247 (Fla. 1996) Murphy v. State 66 P.3d 456 (Okla. 2003) Nixon v. State 2 So. 3d 137 (Fla. 2009) , 64, 66 Penry v. Lynaugh 492 U.S. 302 (1989) People v. Superior Court 155 P.3d 259 (Cal. 2007) v1

8 Phillips v. State 984 So. 2d 503 (Fla. 2008) , 64 Pizzuto V. Plyler v. State 202 P.3d 642 (2008) Doe 457 U.S. 202 (1982) Pruitt v. State 834 N.E.2d 90 (Ind. 2005) , 38 Ring v. Arizona 122 S.Ct (2002) , 73, 74, 75, 76, 77, 78 Roberts v. State 840 So. 2d 962 (Fla. 2002) Scull v. State 569 So. 2d 1251 (Fla. 1990) State v. Anderson 966 So. 2d 973 (La. 2008) State v. Burke 2005 WL (Ohio App. Dec. 30, 2005) State v. Canez 74 P.3d 932 (Ariz. 2003) State v. Dixon 283 So. 2d 1 (Fla. 1973) State v. Glatzmaver 789 So. 2d 297 (Fla. 2001) State v. Grell 66 P.3d 1234 (Ariz. 2003) State v. Harris 859 A.2d 364 (N.J. 2004) State v. Herring 76 So. 3d 891 (Fla. 2011) , 35, 64 State v. Lott 779 N.E.2d 1011 (Ohio 2002) vll

9 State v. Patillo 417 S.E.2d 139 (Ga. 1992) State v. Williams 831 So. 2d 835 (La. 2002) State v. Wilson 306 S.C. 498, 413 S.E.2d 19 (1992) State ex rel. Butterworth v. Kenny 714 So. 2d 404 (Fla. 1998) Stephens v. State 748 So. 2d 1028 (Fla. 1999) Strickland v. Washington 466 U.S. 668 (1984) , 68 Stripling v. State 401 S.E.2d 500 (Ga. 1991) Walton v. Arizona 497 U.S. 639 (1990) Woods v. State 863 N.E. 2d 301 (Ind. 2007) Zant v. Beck 386 S.E.2d 349 (Ga. 1989) Zant v. Foster 406 S.E.2d 74 (Ga. 1991) STATUTES AND RULES Ariz. Rev. Stat (K) (5) Ark. Code Ann (a) (2) , 79 Fla. R. Crim. P , 64, 66, 67, 68, 69, 72 Fla. Stat , 30, 31, 72 Idaho Code A La. Code Crim. Proc. Ann. Art (H) Mo. Rev. Stat vlll

10 Neb. Rev. Stat , 79 N.M. Stat. Ann (E) N.M. Stat. Ann A S.D. Codified Laws 23A-27A , 79 Tenn. Code Ann Utah Code Ann a Va. Code Ann : Wash. Rev. Code Ill. Comp. Stat. 5/ Ill. Laws La. Acts OTHER AUTHORITIES AAMR, Mèntal Retardation: Definition, Classification, and Systems of Supports (9* ed. 1992) AAMR, Mèntal Retardation Definition, Classification, and System of Supports (10 ed. 2002) , 29, 33, 34, 35 AAMR, User's Guide: Mèntal Retardation Definition, Classification and Systems of Supports (10 ed. 2007).. 28, 34 American Psychiatric Association, Diagnostic and Statistical Manual of Mèntal Disorders (4 ed. text rev. 2000) , 29, 33, 34, 36, 39 2 Kaplan & Sadock's Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds. 2000) , 34 lx

11 INTRODUCTION1 Mr. Groover has maintained that he is retarded for over two decades. He is not a "johnny come lately" defendant who is seeking the benefit of Atkins without having previously asserted his mental retardation. Indeed, during the evidentiary hearing held on Mr. Groover's first Rule motion in 1986, which concerned the issue of trial counsel's ineffectiveness in failing to adequately represent Mr. Groover as to his competency to proceed at the time of trial, significant evidence was presented that demonstrated Mr. Groover was and is mentally retarded. Several experts testified at that hearing. Dr. Harry Krop, a clinical psychologist, testified for the defense that Mr. Groover had a verbal IQ of 64 and an overall IQ of 60 (PC-T. 168). Dr. Krop testified that it was obvious that Mr. Groover was retarded when he interviewed him (PC-T. 168). Mr. Groover's IQ score corroborated Dr. Krop's observations of his mental retardation, as did historical documentation and reports from Mr. Groover's family. Likewise, Dr. Francis S. Smith, an audiologist and speech 1Citations in this brief are as follows: References to the record on direct appeal are designated as "R. ". References to the record on appeal from the denial of relief after an evidentiary hearing as to Mr. Groover's first postconviction motion are designated as "PC-R. ". References to the transcript of the evidentiary hearing as to the first postconviction motion are designated as "PC-T. ". References to the record on appeal following the denial of Mr. Groover's claim of mental retardation are designated as "MR-R. ". 1

12 language pathologist called by the defense, testified that Mr. Groover had generalized brain dysfunction that would be classified as mental retardation (PC-T. 91). Dr. Smith stated that Mr. Groover responded with language at the nine-year old level (PC-T. 76). Dr. James R. Merikangas, an M.D. specializing in neurology and psychiatry, testified that Mr. Groover fell in the mild to moderate mental retardation range, with a verbal IQ of about 64 (PC-T. 116, 127). In discussing Mr. Groover's functioning, Dr. Merikangas testified that: it was quite apparent to all of his school teachers and in his performance and apparent to his peers who teased him about being retarded, and talking to him for two or three minutes you will find out that there is an - almost a vacuum of information behind this normal appear1ng person. He simply does not comprehend what is said to him and tends to answer questions with social responses like yes, uh-huh, that's right and generally agreeing with the speaker, but try to get something specific out of him and you will determine in five minutes that he is suffering from mental retardation. (PC-T. 136). Dr. Samuel I. Greenburg, a psychiatrist, testified that Mr. Groover was mentally retarded (PC-T. 228). Dr. Greenburg specifically assessed Mr. Groover's adaptive functioning and found that Mr. Groover was "at the bottom, between six and seven, and that's very poor to grossly impaired, and that's at the bottom of the list, the most severely disturbed." (PC-T. 228). 2

13 This mental retardation diagnosis was supported by documentary evidence of significant medical and legally recognized indicia of mental retardation. School records documented Mr. Groover's very poor performance. In fact, these records and medical records described him as "mentally retarded" (Appendix M to the 6/1/86 Motion to Vacate). The diagnosis was also supported by the testimony of numerous family members and family friends. They provided evidence of Mr. Groover's mental retardation well before his eighteenth birthday. Subsequent to the decision in Atkins, Mr. Groover raised a claim of mental retardation as a bar to execution. Mr. Groover's case, however, presents another instance in Florida where a mental health expert's clinical determination of mental retardation is automatically nullified on the basis of this State's rigid statutory definition of the term. During the mental retardation proceedings below, Mr. Groover achieved a full-scale IQ score of 71 on the WAIS-IV. The lower court, adhering to this Court's precedent, determined that an IQ above 70 prohibits a finding of mental retardation.2 Indeed, as this Court determined in Cherry v. State, 959 So. 2d 702, 712, 714 (Fla. 2007): The fundamental question considered by the circuit court and raised in this appeal is whether the rule and 2Upon reaching this determination, the lower court declined to address the other prongs of the mental retardation standard. 3

14 statute provide a strict cutoff of an IQ score of 70 order to establish significantly subaverage intellectual functioning. in * * * Given the language in the statute and our precedent, we conclude that competent, substantial evidence supports the circuit court's determination that Cherry does not meet the first prong of the mental retardation determination. Cherry's IQ score of 72 does not fall within the statutory range for mental retardation, and thus the circuit court's determination that Cherry is not mentally retarded should be affirmed. (Emphasis added). See also State v.. Herring, 76 So. 3d 891, 895 (Fla. 2011); Dufour v. State, 69 So. 3d 235, 247 (Fla. 2011); Phillips v. State, 984 So. 2d 503, 510 (Fla. 2008); Jones v. State, 966 So. 2d 319, 329 (Fla. 2007); Franqui v. State, 59 So. 3d 82, 92 (Fla. 2011); Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009). While acknowledging this Court's precedent, Mr. Groover asks, for the reasons set forth herein, that this Court reconsider the constitutionality of the bright-line cutoff of an IQ score of 70 in determining whether a defendant meets the first prong of the mental retardation standard. STATEMENT OF THE CASE On January 11, 1983, Mr. Groover was convicted on three counts of first degree murder (R. 255).3 The jury recommended %dr. Groover was originally indicted on two counts of first degree murder on February 25, 1982 (:R. 2). Under a negotiated agreement, Mr. Groover entered a plea of guilty to one count of murder. However, after making several official statements at the 4

15 advisory sentences of life on Counts I and II, and a death sentence on Count III (R ). On February 18, 1983, the sentencing court overrode the jury's recommendation as to Count I, sentencing Mr. Groover to death. The court followed the jury's recommendation on the remaining counts, sentencing Mr. Groover to life imprisonment on Count II, and to death on Count III (R ). On direct appeal, this Court affirmed Mr. Groover's convictions and sentences. Groover v. State, 458 So. 2d 226 (Fla. 1984). Mr. Groover filed a petition for writ of certiorari in the United States Supreme Court, which was denied on April 1, Groover v. Florida, 471 U.S (1985). On June 1, 1986, Mr. Groover filed a postconviction motion pursuant to Fla. R. Crim. P The lower court summarily denied relief on the same date. On appeal, while this Court affirmed the denial of several claims, it also remanded for an evidentiary hearing on the issue of trial counsel's ineffectiveness for "failing to inquire into his [Mr. competency to stand trial and for failing to order a Groover's] psychiatric evaluation of appellant." Groover v. State, 489 So. 2d 15, 17 (Fla. 1986). Subsequent to the remand, an evidentiary hearing was conducted on July 17-19, After the lower court denied prosecution's request, Mr. Groover's attorney withdrew the guilty plea. Mr. Groover was reindicted, this time on three counts of murder (R. 33). 5

16 relief on August 20, 1988, this Court affirmed the denial of postconviction relief. Groover v. State, 574 So. 2d 97 (Fla. 1991). While the appeal from the trial court's denial of relief was pending, Mr. Groover filed a success1ve postconviction motion on July 31, 1989, raising, among others, the issue presented in Hitchcock v. Duqqer, 481 U.S. 393 (1987). On November 15, 1991, the lower court summarily denied the motion. Following Mr. Groover's appeal, this Court affirmed the denial of postconviction relief. Groover v. State, 640 So. 2d 1077 (Fla. 1994). Mr. Groover filed a third postconviction motion on December 2, 1994, raising as newly discovered mitigation evidence the life sentence imposed upon Mr. Groover's codefendant.4 On May 30, 1995, the court denied the motion. Mr. Groover appealed, and this Court again affirmed the denial of postconviction relief. Groover v. State, 703 So. 2d 1035 (Fla. 1997). On October 17, 1994, Mr. Groover filed a federal habeas corpus petition in the United States District Court for the Middle District of Florida. These proceedings are presently being held in abeyance. On June 11, 2002, Mr. Groover filed a successive Rule Also on December 2, 1994, Mr. Groover filed a state habeas corpus petition, which was denied by this Court on April 6, Groover v. Singletary, 656 So. 2d 424 (Fla. 1995). 6

17 motion which included a claim that Mr. Groover was ineligible for the death penalty under Fla. Stat On August 15, 2002, Mr. Groover amended his motion based on the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Groover again amended his motion in November, 2004, April, 2005 and July, The lower court granted Mr. Groover an evidentiary hearing on his claim of mental retardation. At the urging of the court, video depositions of the appointed mental health experts were taken in lieu of live testimony. A hearing was held on July 19, 2011, at which time the parties submitted the video depositions along with additional evidence for the court's review. Following the submission of closing arguments, the lower court denied relief on December 27, Mr. Groover filed a motion for rehearing, which was denied by the lower court on February 1, This appeal follows. STATEMENT OF THE FACTS During the proceedings below, two court-appointed experts, Drs. Harry Krop and William Riebsame, testified regarding the issue of whether Mr. Groover met the criteria for mental retardation. 44r. Groover also filed two successive petitions for writ of habeas corpus in this Court in 2004 and Both petitions were denied.

18 Dr. Krop, a psychologist, testified to the definition of mental retardation as follows: A. Mental retardation, diagnostically, is an individual who has sub-average intellectual functioning, based on a standardized test. The second prong of mental retardation is significant deficiencies in adaptive functioning in at least two areas, which accompany the non-intellectual deficits. And then thirdly, the cognitive deficits need to be present prior to the age of 18. (MR-R ). Dr. Krop stated that the intellectual evaluation would have to show that the person had an IQ of 70, plus or minus whatever the standard is in that particular test, which is for the most part a 5 (MR-R. 1087). Thus, a person could still be mentally retarded diagnostically up to an IQ of 75 if the other prongs are met (MR-R. 1087). Dr. Krop testified that he became involved in Mr. Groover's case in 1986, and that he wrote a report on behalf of defense counsel (MR-R. 1090). After reviewing his testimony and report from 1986, Dr. Krop testified that he did IQ as well as neuropsychological testing (MR-R. 1091). Dr. Krop concluded at the time that Mr. Groover had a full-scale IQ of 66 and that he was mild mentally retarded (MR-R. 1092).' Dr. Krop determined that Mr. Groover functioned at a sub-average intellectual level and 6A review of Dr. Krop's report from 1986 indicates that Mr. Groover's full-scale IQ score was in actuality a 60.

19 that the description from family members and the records he reviewed strongly indicated deficiencies in different areas of adaptive functioning (MR-R ). In the school records, there was also a psychological report which indicated intellectual assessment at the time, and that was prior to the age of 18 (MR-R. 1093). Dr. Krop testified that there were no signs of malingering when he performed his evaluation in He also thought "what was significant back then was that although there was a very slight difference in the IQ testing that I did and the IQ testing that was done when he was in school, and that was certainly - - there was no purpose or motivation for him to malinger when he was evaluated in school." (MR-R ). Dr. Krop received a court order in 2009 to conduct an intellectual assessment of Mr. Groover in order to determine his current level of intellectual functioning (MR-R. 1094). In conducting his evaluation, Dr. Krop did a limited interview, administered the WAIS-IV and the Wide Range Achievement Test, and reviewed extensive background materials consisting of testimony from the 1986 evidentiary hearing, medical, school, and other records, various affidavits from individuals familiar with Mr. Groover,' and testimony of other experts (MR-R ). Dr. 7Dr. Krop reviewed the affidavits of Elaine Sheffield, Sabrina Rhoden, Robert "Tinker" Parker, Daniel Karr Johnson, Terry Johnson and Malcolm Johns (MR-R. 1096; D-Ex. 4A-F). 9

20 Krop also spoke directly to Penny Rhodes, Mr. Groover's sister; Linda Sever, Mr. Groover's cousin; Lenora Lee, Mr. Groover's home room teacher; and Joanne Patterson, Mr. Groover's first grade teacher (MR-R ). Additionally, Dr. Krop utilized the adaptive behavior assessment system with Ms. Rhodes and Ms. Sever (MR-R. 1097). The collateral materials which Dr. Krop reviewed were fairly consistent with regard to Mr. Groover having significant adaptive deficits in his social, communication and vocational skills (MR- R. 1098). While there was some anti-social behavior, the affidavits and records overall strongly suggested significant adaptive deficits (MR-R. 1098).8 With regard to the 2009 IQ testing, Dr. Krop testified that Mr. Groover put forth a good effort (MR-R. 1100). While Mr. Groover has some hearing issues, Dr. Krop did not believe that this was a factor (MR-R ). Likewise, while Mr. Groover indicated that he was color blind, Dr. Krop testified that this did not appear to be a significant factor, but he did take that into consideration (MR-R. 1101). Dr. Krop later elaborated that there are two primary sub-tests within the WAIS which involve colors, the Matrix Reasoning and the Visual Puzzles (MR-R. 1105). However, the shades of colors are distinct, so a person who is 8Dr. Krop also noted that there were indications of organic deficits and a significant history of substance abuse (MR-R ). 10

21 color blind should have no difficulty with these tests (MR-R. 1105). Dr. Krop asked Mr. Groover if he had any difficulty determining shades, and he testified that he did not (MR-R ). Mr. Groover had a Verbal Comprehension Index of 70, which is in the second percentile; a Perceptual Reasoning Index of 88, which is in the 213' percentile; a Working Memory Index of 71, which is in the third percentile; a Processing Speed Index of 68, which is in the second percentile; and a Full Scale IQ of 71, which is in the third percentile (MR-R ). Dr. Krop testified that Mr. Groover's intellectual functioning is significantly sub-average (MR-R ). He also explained that there was an aberration in Mr. Groover's testing: It was a sort of an aberration here in that almost - - well, of the ten sub-tests, nine of them ranged from four - - actually, eight of them were fours and fives, which is consistent with his previous testing, both in the school and also my testing. He had one s1x. And then the interesting thing was that he scored slightly above average on another sub-test which would be incorporated in the Perceptual Reasoning Index, and that's the main reason that he was elevated on that particular index, because of the one specific score that he had. (MR-R. 1102). Dr. Krop testified that Mr. Groover had IQ testing done in 1972 when he was 13 years old (MR-R ). Mr. Groover was 11

22 referred because of difficulties and behavioral problems he was having in school (MR-R. 1103). Mr. Groover had a full scale IQ of 73, which included a verbal IQ of 69 and a performance IQ of 83 (MR-R. 1103). Dr. Krop noted that here also, the performance IQ is what elevated the full scale IQ (MR-R. 1103). Mr. Groover was diagnosed as borderline mentally retarded and it was recommended that he be placed in the educable mentally retarded class (MR-R ). Dr. Krop testified that the results of IQ tests from 1972, 1986 and 2009 are consistent with each other (MR-R. 1104). Dr. Krop concluded that Mr. Groover meets the first prong of the definition for mental retardation, in that he falls within the range of significantly sub-average intelligence (MR-R. 1104). He also meets the third prong, because he was evaluated prior to the age of 18 (MR-R ). With regard to the two sub-tests in which there is color, Dr. Krop testified that the WAIS-IV allows for the removal of up to two tests if they may have an impact because of some deficiency or unreliability (MR-R. 1105). Removing those two sub-tests from Mr. Groover's score would result in a full scale IQ of 65 (MR-R ). Dr. Krop reviewed Dr. Riebsame's report and his opinion that 9Dr. Krop testified that it would be unreasonable to remove only one of the tests, as they could both be affected (MR-R. 1108). 12

23 Mr. Groover's intellectual functioning is impacted by a learning disability (MR-R ). While Dr. Krop agreed that Mr. Groover could have a learning disorder, he testified that it is not mutually exclusive from having mental retardation (MR-R. 1109). Further, Dr. Krop testified that organic brain damage can cause mental retardation as well as a learning disability (MR-R ). Neither the DSM nor the statute on mental retardation discriminate in terms of the etiology of how a person came to be mentally retarded, other than in terms of age (MR-R. 1111). Dr. Krop noted that Dr. Riebsame's abbreviated IQ scores were consistent with his own, but that Dr. Riebsame concluded that Mr. Groover met the criteria for a learning disorder rather than for mental retardation (MR-R. 1112). Dr. Riebsame made reference to the group of individuals who scored in the mild range of mental retardation in the normative group that was used to develop the WAIS-IV (MR-R. 1112). This was contained on page 103 of the Technical and Interpretive Manual of the WAIS-IV (MR- R ). Dr. Krop reviewed this page of the manual (D-Ex. 5), which lists the mean scores for each sub-test and also the composite indexes for individuals who fell into the mild range of mental retardation, as well as the matched control group, which was a group of individuals who did not fall into the mentally retarded range (MR-R ). However, according to Dr. Krop, Dr. Riebsame did not make reference to some of the other control 13

24 groups, which is relevant given his opinion in terms of the learning disorder (MR-R. 1114). "What Dr. Riebsame did not do is look at other tables, and those would be comparing - - if he's going to compare him to mental retardation means, then he should also compare him to the other means or the other groups of which Mr. Groover has been diagnostically classified as." (MR-R ). Reviewing the appropriate tables, Dr. Krop testified that the mean score for people with learning disabilities is actually much higher than what Mr. Groover had as his full scale IQ (MR-R ). Likewise, individuals with brain damage, in and of itself, also score significantly higher than Mr. Groover scored (MR-R. 1118). As Dr. Krop further explained, there was some selectivity by Dr. Riebsame in that he made reference to the one normative group of individuals in the model range (MR-R ). "And if he is going to give an opinion that Mr. Groover has a learning disorder, which I agree with, but that that's the more significant issue, rather than retardation, then he should have also looked at these comparison groups in the WAIS-IV normative samples." (MR-R. 1119). Dr. Krop testified that based on the tables (D-Ex. 5), Mr. Groover's testing since he was 13 fits most consistently in the mental retardation range (MR-R. 1119). With regard to intellectual functioning, Dr. Krop testified that those deficits were evident in his testing (MR-R. 1121). From his interviews with Mr. Groover, Dr. Krop found that he was 14

25 concrete and functions in a fairly simplistic manner (MR-R. 1122). Dr. Krop also felt that Mr. Groover states things that he has done in his life in a grandiose manner due to his need to present himself at a higher functioning level (MR-R. 1122). Interviews with other people also corroborated Mr. Groover's intellectual functioning: A. Every - - pretty much everyone, including either the teachers that remember him or were going by the records, as well as family - - family interviews and even his co-defendants, they all refer to him as slow, as easily influenced, as simplistic, as childlike, so all of those would be both actually, and observations by others that he was slow academically - - I'm sorry, slow intellectually, as well as, I guess, socially, which falls into the adaptive functioning realms. (MR-R. 1123). Dr. Krop further testified that, as noted in his report, Mr. Groover had significant deficiencies in his adaptive skills (MR- R. 1125). He had significant impairment in academics, selfdirection and communication (MR-R ). Dr. Krop noted that Dr. Riebsame indicated in his report that Mr. Groover's adaptive abilities are described as extremely deficient by several relatives and associates (MR-R. 1126). Dr. Riebsame also utilized the adaptive behavior assessment system when speaking to Lee Rhodes, and his results showed a percentile rank of.1 in the global assessment (MR-R ). In his report. Dr. Riebsame found deficiencies in adaptive functioning based on the objective assessment he did (MR-R. 1128). Dr. Krop opined that the only 15

26 reason Dr. Riebsame didn't conclude that the adaptive functioning is deficient is because of his informal perception of Mr. Groover's interaction with'him during the evaluation, and that such deficits were not evident during the evaluation (MR-R. 1128). Dr. Krop testified that Mr. Groover has a need to please, and that he was eager to talk to him and even impress him, although the testing certainly wasn't very impressive (MR-R. 1133). Dr. Krop thinks that this is the way Mr. Groover came across with Dr. Riebsame (MR-R. 1134). Mr. Groover doesn't want to be perceived as mentally retarded, and that is one of the reasons that nobody has ever suggested that he was malingering (MR-R. 1134). With regard to onset before age 18, Dr. Krop testified that Mr. Groover meets this criteria based on the various affidavits and interviews, as well as the psychological evaluation conducted when was 13 (MR-R ). Dr. Krop testified on cross-examination that he administered the ABAS-II to Penny Lee Rhodes and Linda Sever (MR-R ). Ms. Sever stated that Mr. Groover could not learn, could not progress, and could not carry on conversations (MR-R. 1148). He also did a lot of weird things, such as not using toilet paper when he went to the bathroom (MR-R ). Mr. Groover did not function like a normal child, and he had trouble keeping up 16

27 with his peers (MR-R. 1149). Dr. Krop further testified that Ms. Patterson described Mr. Groover as being cognitively challenged (MR-R. 1170). And in Ms. Rhodes' affidavit, though she said that Mr. Groover had some responsibilities around the house, like taking out the trash and feeding the dog, she then followed up by saying that Mr. Groover was unable to remember to do those things (MR-R. 1170). Dr. Krop testified that it didn't sound like Mr. Groover was particularly responsible and/or capable of doing things on a regular basis without being reminded (MR-R. 1171). With regard to Mr. Groover being a drug dealer, in Robert Parker's affidavit, he made it clear that Mr. Groover was a runner for him in his drug operation, but that he didn't trust him with any money or real responsibility, because Mr. Groover just couldn't do it (MR-R. 1171). And while Mr. Groover told people he worked at the Sugar Shack, Terry Johnson, who managed the place, stated that Mr. Groover did not work there (MR-R. 1172). Dr. Krop further emphasized that mentally retarded people could hold a job and count money (MR-R ). Based on Dr. Krop's clinical assessment, Mr. Groover meets the criteria for mental retardation (MR-R. 1140). Dr. Riebsame, a psychologist, testified that pursuant to a court order, he was asked to examine Mr. Groover as to a determination of mental retardation (MR-R. 1193). Dr. Riebsame 17

28 was provided with volumes of material by the State as well as the defense (MR-R. 1194). In addition, Dr. Riebsame was furnished with Dr. Krop's report (MR-R. 1196). Dr. Krop administered the WAIS-IV and Mr. Groover received a full scale IQ of 71 (MR-R. 1196). However, Dr. Riebsame was concerned with a report that Mr. Groover was color blind (MR-R. 1196)." Dr. Riebsame explained that the Matrix Reasoning subtest of the WAIS-IV is color coded; thus, if you are not able to recognize the different colors, it may impact how you perform (MR-R. 1197). According to Dr. Riebsame, Mr. Groover did poorly on that particular subtest compared to other subtests that make up that area of testing (MR-R ). Dr. Riebsame opined that if you disregard the matrix reasoning subtest score, Mr. Groover's overall score rises from a 71 to a 74 (MR-R. 1199). Dr. Riebsame was provided with Mr. Groover's school records, which contained a full scale IQ score of 73 on the WISC when Mr. Groover was in the seventh grade (MR-R. 1199). Dr. Riebsame testified that the WISC score is consistent with the result produced by Dr. Krop (MR-R. 1200). However, Dr. Riebsame testified that the school records also revealed that Mr. Groover was excessively absent from school (MR- R. 1201). Dr. Riebsame believed that this contributed to his It appeared to Dr. Riebsame that Dr. Krop administered that portion of the WAIS-IV without regard to Mr. Groover's color blindness (MR-R. 1197). 18

29 concern that the lack of education negatively impacted Mr. Groover's performance, particularly on the verbal portions of the IQ test (MR-R. 1201). Dr. Riebsame also spoke with two of Mr. Groover's teachers (MR-R ). Ms. Patterson noted that there was no special education assistance available, and she suspected that Mr. Groover had a learning disability (MR-R. 1203). Ms. Lee, Mr. Groover's seventh grade English teacher, recalled that Mr. Groover had been placed in the very lowest reading level group (MR-R. 1203). Mr. Groover was often absent, didn't do his school work and was a behavioral problem (MR-R. 1203). Ms. Lee did not remember Mr. Groover as being mentally retarded, but as someone not interested in attending or doing well in school (MR-R. 1203). With regard to his 2009 interview with Mr. Groover, Dr. Riebsame testified that he met with him for approximately three and a half hours (MR-R. 1204). Mr. Groover presented himself well and did not act out in any way (MR-R. 1205). Dr. Riebsame did not notice any significant deficits in Mr. Groover's apparent attention or concentration (MR-R. 1205). Mr. Groover gave very involved answers about his family and background (MR-R. 1206). Mr. Groover stated that he had earned a driver's license and that he had sold drugs to maintain an income (MR-R. 1207). Mr. Groover stated that he had persons working for him and that he was involved in the creation of some of the drugs (MR-R. 1208). 19

30 Mr. Groover also stated that he had jobs as a commercial fisherman, doing construction, mechanical repair, paint and body work on automobiles, pool cleaning and driving trucks (MR-R. 1208). He had these different types of jobs for short periods of time (MR-R. 1208). Dr. Riebsame conducted a test, which showed no signs of malingering (MR-R. 1209). Dr. Riebsame also administered the Wide Range Achievement Test-4 (WRAT) and the Wechsler Abbreviated Scale of Intelligence (MR-R. 1210). On this test, Dr. Riebsame just did the verbal subtests because he was concerned about other subtests that were relying on color coded items (MR-R. 1210). Mr. Groover scored a 70, which places him in the borderline range of verbal abilities (MR-R. 1212). This was consistent with Dr. Krop's score of 70 on verbal comprehension (MR-R. 1213). On the WRAT test, Mr. Groover performed at low levels on reading, spelling and math (MR-R. 1211). This made Dr. Riebsame suspicious of a learning disability (MR-R. 1211). Dr. Riebsame also utilized the ABAS-II, which is designed to get an idea of a person's adaptive functioning (MR-R. 1214). The test is used on an individual familiar with the subject (MR-R. 1215). Dr. Riebsame gave it to Mr. Groover's sister, Penny Rhodes (MR-R. 1215). The results were not consistent with how Mr. Groover presented himself to Dr. Riebsame (MR-R. 1215). Instead, the results from Ms. Rhodes placed Mr. Groover below the 20

31 first percentile, suggesting that over ninety-nine percent of the people are functioning better than Mr. Groover (MR-R ). Dr. Riebsame concluded that Mr. Groover does not meet the legal definition for mental retardation (MR-R. 1218). Dr. Riebsame attributed Mr. Groover's score on the standardized testing to Attention Deficit Disorder, a learning disability and a lack of educational opportunity (MR-R. 1218). Further, with regard to adaptive functioning, Dr. Riebsame acknowledged that the affidavits from friends and relatives describe Mr. Groover as very poor in terms of his adaptive functioning (MR-R. 1219). But based on information from court documents and his own time with Mr. Groover, Dr. Riebsame determined that Mr. Groover "just does not present himself as someone who is not functioning in a significantly maladaptive way." (MR-R. 1219). With regard to onset before age 18, Dr. Riebsame acknowledged that there is evidence these issues were present (MR-R. 1220). Again, however, based on his personal experience with Mr. Groover and the information he reviewed, Dr. Riebsame concluded that Mr. Groover's adaptive functioning or test results didn't satisfy the criteria for a mental retardation diagnosis (MR-R. 1221). On cross examination, Dr. Riebsame acknowledged that Mr. Groover's IQ tests demonstrate that he is functioning at a significantly subaverage intellectual level (MR-R. 1224). With 21

32 regard to the color blindness, Dr. Riebsame also acknowledged that he viewed the video of Dr. Krop's testing with Mr. Groover, and in that video Dr. Krop asked him if he could see shades (MR- R. 1227). Dr. Riebsame subsequently stated that it wasn't an area of overwhelming concern (MR-R. 1229). Dr. Riebsame acknowledged that even with an adjusted score, Mr. Groover still falls within the two standard deviations below the mean's range of subaverage intelligence (MR-R )." Dr. Riebsame also conceded that Mr. Groover's academic performance starting from first grade was that of a poor student (MR-R ). Yet during his first four years of school, Mr. Groover wasn't excessively absent (MR-R. 1235). And although Dr. Riebsame stated that Ms. Lee didn't think Mr. Groover was mentally retarded, it was recommended that he be placed in a uin his report, Dr. Riebsame explained: The term "significantly sub-average general intellectual functioning" for the purpose of Section , Florida Statutes (2003) means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of Department of Children and Family Services. Importantly, the APA's Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, Text Revision) (DSM-IV) (2000) notes that there is a measurement error of approximately 5 points in assessing IQ, and that it is possible to diagnose mental retardation in an individual with an IQ between 70 and 75 and who exhibits significant deficits in adaptive behavior. (MR-R. 1051) (emphasis added). 22

33 class for the educable mentally retarded (MR-R ). With regard to his interviews, Dr. Riebsame testified that in forensic evaluations, he generally considers self-reporting with skepticism (MR-R. 1243). He would want, if possible available information from third parties to either support or contradict the self-report (MR-R. 1243). Dr. Riebsame acknowledged that Mr. Groover gave some peculiar responses to his questions (MR-R. 1246). For instance, Mr. Groover claimed to be sixty percent deaf in both ears, but he didn't display any kind of hearing issues in the interview (MR-R ). Mr. Groover also stated that in 2006 he had an allergic reaction to aspirin and that he had some sort of brain surgery (MR-R. 1247). When Dr. Riebsame looked at the medical records, he didn't see any evidence of brain surgery in 2006 (MR- R. 1247). Mr. Groover also claimed that he ran away when he was twelve and visited all fifty states in the year that he was gone (MR-R. 1250). Dr. Riebsame believed that he was exaggerating (MR-R. 1250). Dr. Riebsame also believed that he exaggerated about his work history (MR-R. 1250). Mr. Groover also claimed that he started drinking alcohol because a doctor suggested that he be given a half of beer in his early childhood to calm him down because he was hyper (MR-R ). Dr. Riebsame did not find this to be believable (MR-R. 23

34 1253). With regard to his work history, Mr. Groover claimed that he netted $3700 a week working on oil rigs, and between $2500 and $10,000 a week when he worked at a paint and body shop (MR-R ). Mr. Groover also claimed that when he was a drug dealer, he had twelve people working for him and he was making either $1,000,000 or $100,000 a day (MR-R. 1255). Dr. Riebsame conceded that he thought Mr. Groover was lying (MR-R. 1255). Dr. Riebsame further acknowledged that mentally retarded people sometimes want to appear like they don't have deficits, so they'll tell untruths or exaggerate abilities (MR-R. 1257). Mr. Groover's performance on the WRAT and the WAIS reflected significant subaverage intellectual functioning (MR-R. 1261). With regard to adaptive functioning, Dr. Riebsame testified that Mr. Groover had one deficit area, functional academic skills (MR-R. 1263). Dr. Riebsame read the testimony from Mr. Groover's family from the 1986 evidentiary hearing, and he acknowledged that the description of Mr. Groover was consistent with someone who had significant adaptive functioning problems (MR-R. 1272). Further, the affidavits which he reviewed, including those from non-family members, were all consistent with low adaptive functioning (MR-R ). 24

35 SUMMARY OF THE ARGUMENT 1. The United States Supreme Court recognized a standard error of measurement of plus or minus five points applicable to the intelligence score in accordance with the DSM-IV-TR practice manual used by psychologists when evaluating for a mental retardation diagnosis. To ensure that the constitutional right to equal protection under the law is afforded to Florida citizens, this Court must recognize the applicability of a standard error of measurement on intelligence tests and accept that the prohibition against imposition of a death sentence to mentally retarded individuals extends to those who score within a professionally recognized mental retardation range as opposed to a fixed arbitrary score. Here, Mr. Groover has subaverage general intellectual functioning. This, combined with the fact that Mr. Groover has deficits in adaptive behavior which manifested prior to the age of 18, establishes that.he is mentally retarded. As such, his sentence of death stands in violation of the Eighth Amendment. 2. Mr. Groover was denied a full and fair hearing when the circuit court effectively prevented him from utilizing a confidential mental health expert. Mr. Groover was denied a meaningful opportunity to be heard and the same rights that similarly situated defendants in Florida possessed. 3. Fla. Rule Crim. P does not provide for a 25

36 constitutionally adequate procedure for resolution of mental retardation claims presented by those individuals already under a sentence of death. Additionally, contrary to the Rule's provisions, an analysis of Atkins v. Virginia and Ring v. Arizona indicate that due process and the Eighth Amendment require that a jury make the decision as to whether a defendant is mentally retarded, that the State bear the burden of proof, and that the State prove beyond a reasonable doubt that the defendant is not mentally retarded. STANDARD OF REVIEW The claims presented in this appeal are constitutional issues involving mixed questions of law and fact and are reviewed de novo, giving deference only to the trial court's factfindings. Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001). ARGUMENT I MR. GROOVER'S SENTENCE OF DEATH VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DUE TO THE FACT THAT HE IS NENTALLY RETARDED. A. ATKINS V. VIRGINIA In Atkins v. Virginia, the United States Supreme Court held that executing people with mental retardation is cruel and unusual punishment and violates the Eighth Amendment. 536 U.S. at 309. The Supreme Court recognized the increasing agreement among "the American public, legislators, scholars and judges," id. at 26

37 307, endorsing the view that "mentally retarded defenders [are] categorically less culpable than the average criminal." Id. at 316. In doing so, the Court recognized the lesser culpability of mentally retarded defendants because their impairments lower their "capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Id. at 318. The Supreme Court embraced the clinical definitions of mental retardation by the American Association on Mental Retardation ("AAMR") and the American Psychiatric Association ("APA"). See Atkins, 536 U.S. at 309 n.3 (quoting clinical definitions); 536 U.S. at 317 n.22 (noting that non-identical state statutory definitions "generally conform to the clinical definitions set forth in n.3 supra"). At the time of the Atkins decision, the AAMR defined 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. AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at 5 (9* ed. 1992), quoted in Atkins, 536 U.S. at 309 n.3. 27

38 The AAMR's 1992 definition was revised in 2002 and issued shortly after the Atkins decision: "Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18." See AAMR, Mental Retardation Definition, Classification, and System of Supports at 1 (10* ed, 2002) (hereinafter, AAMR Manual 2002)." The American Psychiatric Association's definition is very 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 resorces, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Crierion 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. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 41 (4 ed. text rev. 2000) (hereinafter DSM-IV-TR), quoted in Atkins, 536 U.S. at 309 The definitions are substantially the same. See id. at 13, 14, 17, 58. Cf. AAMR Manual 2002 at 73 (the ten adaptive skill areas of the 1992 definition were collapsed into three adaptive skill areas; conceptual, practical and social). See also AAMR, User's Guide: Mental Retardation Definition, Classification and Systems of Supports at 12 (10* ed. 2007) (hereinafter, "AAMR User's Guide")(same). 28

39 n.3. Both the AAMR and the APA define significant subaverage intelligence as two standard deviations below the norm. AAMR Manual 2002 at 58; DSM-IV-TR at 41. Of concern to the Atkins Court was distinguishing between the low IQ scores falling within the average range of intelligence and those scores within the range of mental retardation. The Atkins Court further defined significantly subaverage general intellectual functioning, in terms of an IQ score, as follows: "It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff score for the intellectual function prong of the mental retardation definition." Atkins, 536 U.S. at 310 n.5 (quoting 2 Kaplan & Sadock's Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds. 2000)). The Court left to the states the development of "appropriate" means to enforce the "constitutional restriction" on the states' ability to carry out executions while excluding the mentally retarded. Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, (1986). "Appropriate" includes a number of procedural concerns: establishing the burden of proof standard; assigning a judge or a jury to determine if a defendant is mentally retarded; and providing for pre-trial, sentencing or post-sentencing procedures. The clinical definitions of mental retardation set a constitutional floor 29