IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC01-837

Transcription

1 IN THE SUPREME COURT OF FLORIDA WILLIE MILLER, Appellant, v. CASE NO. SC STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA AMENDED SUPPLEMENTAL ANSWER BRIEF OF APPELLEE RICHARD E. DORAN ATTORNEY GENERAL GENERAL CAROLYN M. SNURKOWSKI ASST. DEPUTY ATTORNEY

2 Florida Bar No GENERAL OFFICE OF THE ATTORNEY THE CAPITOL TALLAHASSEE, FL (850) COUNSEL FOR APPELLEE

3 Table of Contents TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT...4 ARGUMENT Issue on Appeal WHETHER, IN LIGHT OF MILLER S ASSERTION THAT HE IS MENTALLY RETARDED, THIS CASE IS AFFECTED BY EITHER SECTION , FLORIDA STATUTES (2001), AND/OR ATKINS v. VIRGINIA, 122 S.Ct (2002) A. Whether Section , Florida Statutes (2001), Applies in Miller s Case B. Application of Atkins v. Virginia, 122 S.Ct (2002) CONCLUSION...20 CERTIFICATE OF SERVICE...21 CERTIFICATE OF COMPLIANCE i-

4 Table of Authorities Federal Cases Atkins v. Virginia, 122 S.Ct (2002)... passim Goldberg v. National Life Insurance Company of Vermont, 774 F.2d 559 (2 nd Cir. 1985)...14 Lambrix v. Singletary, 520 U.S. 518 (1997)...13 Miles v. Dorsey, 61 F.3d 1459 (10 th Cir. 1995)...14 Rodriguez De Quijas v. Shearson/American Express, 490 U.S. 477 (1989)...17 State Cases Blackwood v. State, 777 So.2d 399 (Fla. 2000)...14 Bottoson v. Moore, Case No. SC (Decided October 24, 2002)...15 Glock v. Moore, 776 So.2d 243 (Fla. 2001)...13 Greenway v. State, 413 So.2d 23 (Fla. 1982) ii-

5 Hunter v. State, 660 So.2d 244 (Fla. 1995)...18 Memorial Hospital v. News Journal Corp., 784 So.2d 438 (Fla. 2001)...7 Miller v. State, 733 So.2d 955 (Fla. 1998)...1 Mitchell v. Moore, 786 So.2d 521 (Fla. 2001)...10 San Martin v. State, 705 So.2d 1337 (Fla. 1997)...14 Singletary v. Van Meter, 708 So.2d 266 (Fla. 1998)...7 Smith v. State, 598 So.2d 1063 (Fla. 1992)... 7,10 State v. Olson, 586 So.2d 1239 (Fla. 1 st DCA 1991)...13 Van Bibber v. Hartford Accident and Indemnity Insurance Company, 439 So.2d 880 (Fla. 1983)...7 Walls v. State, 461 So.2d 381 (Fla. 1994)...15 Wuornos v. State, 644 So.2d 1000 (Fla. 1004)...9 Other Authorities -iii-

6 Section (42), Florida Statutes (2000)...12 Section (12), Florida Statutes (2000)...12 Section , Florida Statutes (2001)... passim Section (1), Florida Statutes (2001)... 6,12 Section (4), Florida Statutes (2001)...6 Section (8), Florida Statutes (2001)...7,10,13 Diagnostic and Statistical Manual of Mental Disorders (4 th Ed.)... passim Rule 3.210, Florida Rule of Criminal Procedure...18 Rule 3.211, Florida Rule of Criminal Procedure...18 Rule 3.212, Florida Rule of Criminal Procedure iv-

7 Statement of the Case and Facts The facts of this case are set out in Miller v. State, 733 So.2d 955, (Fla. 1998). In that opinion, the Court reversed the burglary conviction, struck the felony murder/burglary aggravator, and directed that Miller be resentenced. 733 So.2d at 957. Resentencing took place January James Jung, the surviving victim, codefendant Samuel Fagin, the medical examiner, assistant court clerk, fingerprint expert, and the detectives who worked on both Miller s prior armed robbery and the instant criminal episode, testified on behalf of the State. Miller presented testimony from psychologist Harry Krop (RH V, pages ), 1 and three of Miller s sisters. The jury returned a unanimous recommendation that Miller be sentenced to death. (RH I, page 159; RH VI, page 783). Following the submission of sentencing memoranda and a Spencer hearing held March 5, 2001, sentencing took place on March 9, The trial court found two aggravating factors (prior violent felony conviction) and committed for pecuniary gain), one statutory mitigating factor (age), and numerous nonstatutory mitigators. The trial court concluded that death was the appropriate sentence. (RH I, page 194C-194H). Specifically, the trial court found the following as they relate to Miller s mental age and retardation: 1 (RH means Resentencing hearing). -1-

8 A. The age of the defendant at the time of the crime. [Florida Statute (6)(g)]. The evidence is clear that the defendant was an adult thirtyfour years of age at the time of the commission of these crimes. However, the defendant presented testimony of Harry Krop, a psychologist, who opined that defendant had a full scale of IQ of 64, which related to a mental age of fourteen or fifteen years old. As a result of the low IQ, Willie B. Miller was functioning in the mild retarded range. Dr. Krop reviewed the defendant s school records and testified that Willie B. Miller had been retained in some elementary grades and that he was placed in some special classes and had exhibited very serious behavior problems. It was Dr. Krop s opinion that these school records were reflective of the defendant s intelligent deficit and possible impairment of his cognitive abilities due to diffused brain damaged, with unknown causation, probably from birth. In addition, Dr. Krop was provided with family background information indicating that the defendant and his siblings were physically abused by their mother. The mother s abuse ultimately resulted in the death of the defendant s twin brother, Michael, at age twelve. While not connecting the traumatic death of the defendant s twin brother with the 1993 murder of James Wallace, Dr. Krop did testify and noted that Willie B. Miller s criminal acts did not commence until after the death of his twin brother. Dr. Krop further testified that Willie B. Miller exhibited deep seated antisocial personality disorder prominent features of which are a disregard for the law and rights of others. Dr. Krop testified that this antisocial personality disorder is not a mental illness and does not interfere with one s ability to understand the difference between right and wrong, or to appreciate the nature or quality of one s conduct. Dr. Krop did testify that he believed that the defendant, Willie B. Miller, fully appreciated the nature and quality of his acts on July 15, 1993, when he committed the armed robbery of the -2-

9 Jung Lee Grocery Store and the murder of James Wallace. Dr. Krop fully acknowledged that the defendant had the ability to engage in goal oriented activity including significantly planning the commission of a crime. In reviewing the police reports and the trial transcript, Dr. Krop agreed that this was a planned criminal episode as opposed to some kind of impulsive activity. During the period of time the defendant was incarcerated in the Duval County Jail prior to the guilt phase, he wrote a letter to his nephew, co-defendant Samuel D. [Fagin], advising him to get rid of the gun and to make no statements. This letter was presented to Dr. Krop who indicated that even though Willie B. Miller had a mental age of fourteen or fifteen, this letter was indicative of a higher level of function in that the letter further reflected a coherent, concrete thought process, street sense and an individual familiar with the criminal justice system. Dr. Krop had examined Willie B. Miller on at least two occasions, the first occasion was in 1994, prior to the first trial, and rendered an opinion that he believed that the defendant was malingering in order to avoid responsibility. While the Court is not satisfied that the defendant has proven this mitigator, the Court gives the testimony and evidence concerning this mitigator some weight. (RH I, pages 194D-194E) (emphasis added). With regard to nonstatutory mitigating factors, the Court found: (RH I, page 194G). D. The defendant is mildly retarded and has an IQ of 64. This was proven by the defendant through Dr. Krop, a noted psychologist. The Court gives this factor some weight. -3-

10 Following full briefing of the four issues raised on the resentencing appeal and following oral argument held June 3, 2002, this Court, on September 26, 2002, issued an order directing the parties to file supplemental briefs addressing the mental retardation issues presented in this case as affected by Section , Florida Statutes (2001), and Atkins v. Virginia, 122 S.Ct (2002). As a result of that order, the following supplemental brief has been filed. SUMMARY OF ARGUMENT Neither Section , Florida Statutes (2001), nor Atkins v. Virginia, 122 S.Ct (2002), require a retroactive application to Miller s case in that he has not satisfied any burden with regard to demonstrating he meets the definition of mentally retarded found in the statutes and the DSM-IV-TR. -4-

11 ARGUMENT Issue on Appeal WHETHER, IN LIGHT OF MILLER S ASSERTION THAT HE IS MENTALLY RETARDED, THIS CASE IS AFFECTED BY EITHER SECTION , FLORIDA STATUTES (2001), AND/OR ATKINS v. VIRGINIA, 122 S.Ct (2002)? The record reflects that in March 2001, Miller s resentencing proceedings took place. He received a full and fair hearing based on Miller s allegations that he suffered from retardation. At that time, his defense counsel presented the testimony of psychologist Dr. Harry Krop who testified that Miller had an IQ of 64. Dr. Krop further testified that at first Miller had refused to talk with him because Miller had concerns about any confidentiality of their conversation. When he did talk with Miller, Miller told Dr. Krop that the gun went off accidentally and that the victim died due to poor medical care; Krop fund Miller had no major mental illness; that Miller had the ability to bank and shop for himself; that Miller was street smart and had common sense and was familiar with the criminal justice system; that Miller communicated clearly and appropriately and could understand the difference between right and wrong; that Miller suffered from antisocial personality disorder; and that on a previous occasion when Dr. Krop had interviewed Miller in 1994, Dr. Krop found that Miller was malingering. (RH V, pages ). -5-

12 The record below reflects that Miller made no complaint about the trial court s consideration of proposed mitigation, but did assert that it would be unconstitutional to sentence an individual who is mentally retarded to death and requested, that in the instant case, a life sentence be imposed. During the pendency of Miller s direct appeal, the Florida Legislature, in its 2001 general session, adopted Section , Florida Statutes (2001), which provides for the prohibition of the imposition of the death penalty on mentally retarded defendants. The Legislature specifically set forth the definition for mental retardation which provides: Mental retardation means significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age eighteen. The term significantly subaverage general intellectual functioning, for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specifically in the rules of the Department of Children and Family Services. The term adaptive behavior, for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.... See (1), Florida Statutes (2001). -6-

13 The statute further provides that in order to prohibit the imposition of the death sentence upon a mentally retarded defendant, the trial court must find by clear and convincing evidence that a defendant has mental retardation as defined, Section (4), and further provided that Section is to be applied prospective only. See Section (8), Florida Statutes (2001). Section , Florida Statutes (2001), became effective June 12, 2001, approximately three months after Miller s resentencing proceeding. A. Whether Section , Florida Statutes (2001), Applies in Miller s Case. As previously noted in the State s main brief, the legislative intent that Section , Florida Statutes (2001), be applied prospectively is unmistakably clear. See Memorial Hospital v. News Journal Corp., 784 So.2d 438 (Fla. 2001); Singletary v. Van Meter, 708 So.2d 266 (Fla. 1998); Van Bibber v. Hartford Accident and Indemnity Insurance Company, 439 So.2d 880 (Fla. 1983). To the extent Miller may assert in his supplemental pleadings that he falls within a pipeline case, the State would submit that first, Miller must demonstrate that but for the timing of his appeal, he is entitled to the right at issue. See, e.g., Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992) (defendant must have objected if preservation required to appeal). In the instant case, albeit, Miller argued that it is unconstitutional to executed mentally retarded -7-

14 individuals, the contention for the resentencing trial court focused more on a finding of the statutory mitigating factor of age and the fact that he was mildly retarded rather than the presentation of evidence that he met a definition of mental retardation as found in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed. 2000) ( DSM-IV ). In the instant case, the record bears out that, at resentencing, Miller did not meet the statutory definition of mental retardation, nor did he carry his burden of establishing retardation by clear and convincing evidence. The trial court found, as a nonstatutory mitigating factor, that Miller is mildly retarded and has an IQ of 64. That finding was based on merely a presentment of evidence by Dr. Krop that, as a result of his testing, Miller s IQ was 64. The DSM-IV-TR 2 (Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition - Text Revision), provides that mental retardation is (a) significantly sub-average intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test, (b) concurrent deficits or impairments in present 2 The DSM-IV-TR also provides in its commentary: Mental Retardation is not necessarily a lifelong disorder. Individuals who had mild mental retardation earlier in their lives manifested by failure in academic learning tasks may, with appropriate training and opportunities, develop good adaptive skills in other domains and may no longer have the level of impairment required for a diagnosis of mental retardation. -8-

15 adaptive functioning (i.e., the person s effectiveness in meeting the standards expected for his or her age by cultural groups), in at least two of the following areas: communications, self care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety, and (c) the onset is before age eighteen years. Albeit, Dr. Krop and Miller s sisters presented some evidence that he had a learning disability prior to age eighteen, and Dr. Krop testified that he scored Miller with a full scale IQ of 64, the record, with regard to Miller s adaptive behavior, negates a conclusion that Miller presented, at resentencing, evidence that satisfies mental retardation definition. 3 As a result, Miller has not met the first contention that he is entitled to relief because he is a pipeline case. Second, the notion that Miller s case is a pipeline case is inconsistent with the plain prospective-only provision of the statute. See Wuornos v. State, 644 So.2d 3 Moreover, when Krop compared Miller s mental age to that of a 15 year old, he was referring to the intelligence testing result - not suggesting that Miller was acting like a 15 year old. ARC (Association of Retarded Citizens) ( provide specifically: Saying that an older person with mental retardation is like a person of a younger age or has the mind or understanding of a younger person is an incorrect usage of the term. The mental age only refers to the intelligence test score. It does not describe the level and nature of the person s experience and functioning in aspects of community life. -9-

16 1000, 1007, n.4 (Fla. 1994) ( new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise ; requirement instructions on doubling of the aggravating factors of a murder committed for pecuniary gain and murder committed during a robbery prospective only and not applicable to pipeline cases); Mitchell v. Moore, 786 So.2d 521, 530, n.8 (Fla. 2001), and Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992). In the instant circumstances, the Legislature specifically provided that the substantive right was to be applied prospective only. The pipeline principle applies to only appellate decisions and, not provisions of a statute which specifically sets forth its prospective nature. To the extent Miller may argue that his sentence is not final upon imposition, but rather only becomes finalized on appeal, such a contention is likewise, contrary to the intent of the Legislature as expressed in the plain language of Section (8), Florida Statutes (2001). It is clear that Miller has failed to meet all of the requirements to satisfy mental retardation pursuant to Section , Florida Statutes (2001). At the time of his resentencing, he clearly had the opportunity to meet are the definitional requirements of mental retardation yet, he failed to do so. Albeit, as previously noted that he presented testimony of Dr. Krop who said that he had a full scale IQ of 64 and there -10-

17 was testimony from his sisters that he had behavioral problems and learning disabilities in school, there is absolutely no evidence in this record to reflect that his adaptive behavior as defined in the DSM-IV-TR was demonstrated. Dr. Krop testified that Miller gave him a brief account of the crime and testified that Miller had been living with his sister and working at a labor pool and needed money. He and his nephew, Samuel Fagin, went to the mom and pop grocery store armed. He explained the death of Mr. Wallace as an accident when the gun, which had a hair trigger, went off, accidentally hitting the victim in the face. Miller told Dr. Krop that the victim died several months later as a result of other serious medical conditions and the incompetent medical care Wallace received. Dr. Krop testified that Miller took responsibility for his actions with the exception that Mr. Miller believed that the victim would not have died if he had gotten better medical treatment. (RH V, pages ). Dr. Krop observed that Mr. Miller did have a simple way of presenting information but it was not based on any psychological problems but more likely some intellectual deficits. (RH V, pages ). Dr. Krop recalled that in 1994 he had done an evaluation of Miller to determine whether he was competent and sane at the time of the offense. Dr. Krop observed that when he first evaluated Miller, he reported that he, Miller, was very simply trying to act crazy. It was Dr. Krop s observation that Miller was malingering and trying to look incompetent so that -11-

18 he could go to the hospital and avoid responsibility for the crime. (RH V, pages ). Dr. Krop, on direct examination, noted that the Department of Corrections records showed that Miller was participating in the GED classes but observed that he did not think that Miller would do very well. (RH V, page 536). On cross-examination of Dr. Krop, he admitted that Miller is a skilled laborer and can hold a job and observed that the letter that was shown to him prepared by Miller showed a higher level of learning ability than a person who purportedly could not read or write. It was Dr. Krop s belief that Miller had a higher process of thought after reading the letter. Dr. Krop admitted that Miller had street sense and familiarity with the criminal justice system. (RH V, pages ). Based on the testimony that occurred at resentencing and the record before this Court, Miller cannot contend that he has demonstrated a basis to suggest further consideration under the statute (assuming that it were not prospective only), is warranted. To the extent Miller may argue that he could not have known what evidence was required with regard to the mental retardation definition found in Section (1) of the statute, the State would submit that such an argument is wanting. See Sections (42), (12), Florida Statutes (2000). The mental retardation definition found in , Florida Statutes (2001), mirrors the definition of mental retardation -12-

19 found in the DSM-IV-TR and other provisions of Florida Statutes relating to mental retardation. See, e.g., Glock v. Moore, 776 So.2d 243, 248 (Fla. 2001) (discussion of cases holding that Espinosa not retroactive); Lambrix v. Singletary, 520 U.S. 518, 528 (1997) ( fundamental fairness and accuracy of the criminal proceeding not applicable to Espinosa errors). Lastly, in order for Miller to challenge the prospective-only application of Section , Florida Statutes (2001), Miller must assert that he has been adversely affected by the application of that specific provision. See, e.g., Greenway v. State, 413 So.2d 23, 24 (Fla. 1982) ( appellant may challenge only those portions of Section with which he is charged since he is unaffected by other provisions ); State v. Olson, 586 So.2d 1239, 1242 (Fla. 1 st DCA 1991) ( must be affected by the portion of the statute which he attacks ). Miller s burden to show that the prospective-only clause of Section (8), Florida Statutes (2001), adversely affects him is intertwined with his burden of showing that he met the terms of that section upon which he claims he is entitled to relief. Without establishing that he has met those terms, he fails to establish that the prospective-only clause makes any difference in his case. Miller has failed to demonstrate that he had concurrent deficits in adaptive behavior and that, with the -13-

20 exception of behavioral problems and school difficulties prior to age eighteen, he was unable to function in society. This record reflects that he could never meet his burden of clear and convincing evidence of proof based on the testimony of Dr. Krop regarding Miller s adaptive behavior and his proclivities to fashion his mental problems to what he, Miller, perceived to be the need du jour. See San Martin v. State, 705 So.2d 1337, 1348 (Fla. 1997), wherein the Court held that there was competent substantial evidence to support the trial court s rejection of these mitigating circumstances, including borderline range of intelligence, where the trial court noted that a performance on an IQ test an individual s performance on such a test... may easily reflect less that his best efforts. In the instant case, Miller clearly was able to manipulate his mental competency and his mental agility based on his motivation, to-wit: to avoid the death penalty or, on an earlier occasion, to avoid legal responsibility for a crime. See also Miles v. Dorsey, 61 F.3d 1459, 1473 (10 th Cir. 1995) ( on test designed to assess memory and information, petitioner scored so low as to indicate intentional malingering ); Goldberg v. National Life Insurance Company of Vermont, 774 F.2d 559, 563 (2 nd Cir. 1985) (inter alia, his IQ scores were just too low considering that he was a high school graduate and had been involved in business with some success ); Blackwood v. State, 777 So.2d 399, (Fla. 2000) ( Dr. Garfield could not say -14-

21 with certainty that appellant is retarded because she did not run all of the appropriate tests and because she attributed his scores to the depression ; affirmed sentence of death); Walls v. State, 461 So.2d 381 (Fla. 1994) ( low IQ; expert psychologist stated that Walls IQ actually had declined substantially during the years prior to the trial ; judgment and sentence affirmed). Likewise, in the instant case, where Miller had the opportunity yet failed to present evidence beyond a mere preponderance of the evidence, let alone by clear and convincing evidence, he has not demonstrated that he would be adversely affected by concluding that Section , Florida Statutes (2001), may not be retroactively applied. B. Application of Atkins v. Virginia, 122 S.Ct (2002) Initially, the State would submit that the conclusions in Bottoson v. Moore, Case No. SC (Decided October 24, 2002), are applicable to the instant case. At resentencing, Miller was not barred from presenting evidence with regard to mental retardation, and in fact he asserted that it would be unconstitutional to execute a mentally retarded individual. 4 Armed with the same claims that Bottoson had, Miller did not need the general pronouncement in Atkins v. Virginia, supra, that it would be 4 Interestingly, he failed to speak in specifics but rather challenged the general notion ratified in Atkins. -15-

22 unconstitutional to execute a mentally retarded individual. Because Miller did present evidence, albeit lacking, with regard to his mental abilities, the trial court found as a statutory mitigating factor that he was mentally retarded. That finding does not satisfy Section , Florida Statutes (2001), with regard to the burden of proof, the degree of proof and the compliance with the mental retardation definition. In Atkins v. Virginia, the United States Supreme Court concluded that based on facts presented that a significant number of states had concluded that death is not a suitable punishment for a mentally retarded individual. A legislative consensus had evolved to which the United States Supreme Court would not disagree that construing and applying the Eighth Amendment in the light of our evolving standards of decency, we therefore conclude that such punishment is excessive and that the constitution places a substantive restriction on the State s power to take the life of a mentally retarded offender. In reaching this conclusion, the Court looked to state statutes where a variety of legislation had been enacted regarding disqualifying those individuals found to be mentally retarded. None of the discussion by the United States Supreme Court, however, suggested that Atkins v. Virginia, was to be applied retroactively. 5 See 5 In Penry v. Lynaugh, 492 U.S. 302, Justice Stephens wrote, in his concurring in part and dissenting in part, that should the Court decide that the Eighth Amendment prohibits the -16-

23 Bottoson v. Moore, supra, and Rodriguez De Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989), cited in Bottoson,... in a comparable situation, the United States Supreme Court held: If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [other courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Despite the fact that the trial court in the instant case found as a nonstatutory mitigating factor that Miller was mentally retarded, the State would contend that Miller is not mentally retarded to make him ineligible for the death penalty and does not meet the diagnostic criteria set forth by the United States Supreme Court in Atkins v. Virginia, supra. In Miller s main brief before this Court he presents an argument that it is unconstitutional to execute mentally retarded individuals. What he fails to argue is that he meets the diagnostic criteria that would permit consideration under Section , Florida Statutes (2001). There is nothing in this record to suggest that either under Florida s statute or under Florida s Constitution, the trial court erred in concluding that the mitigating factor found by a preponderance of the evidence that execution of mentally retarded persons, said rule should be applied retroactively. -17-

24 Miller had an IQ of 64, is sufficient to conclude that the trial court erred in finding that death was appropriate in the instant case. In Bottoson v. Moore, the Court had before it several claims beyond the generic claim of constitutionality of executing a mentally retarded individual. Specifically, the Court reviewed whether, in light of Ring v. Arizona, Bottoson was entitled to a jury determination of whether he was mentally retarded. Assuming for the moment that a similar claim is raised in Miller s case, the State would submit that this issue has not been preserved and it is therefore procedurally barred from being considered on direct appeal. The State would note further that criminal defendants are presumed competent and having the mental agility to proceed to trial, thus a defendant s mental state as to mental capacity is not an aggravating factor that makes a defendant death eligible, rather it is only a mitigating factor which may or may not rise to the level of mitigation in a given case. Analytically it is no different than a pretrial determination of competency to proceed under Florida Rules of Criminal Procedure The law is well settled that a determination of competency to proceed is made by the trial court, and is subject to review on appeal. See, e.g., Hunter v. State, 660 So.2d 244 (Fla. 1995). There is no arguable basis upon which to suggest a defendant claiming incompetency is entitled to a jury resolution of the issue. -18-

25 In Bottoson v. Moore, Bottoson also argued that there was no definition of mental retardation in place in Florida. This claim was likewise rejected. In Miller, like Bottoson, the definition of mental retardation employed in prior litigation or in Miller s case, the trial court is the functional equivalent of that espoused in Atkins v. Virginia. See Bottoson v. State, 813 So.2d at The definition of mental retardation set out in Atkins is the definition applied in this case which shows that mental retardation is defined as significantly sub-average intellectual functioning on an individually administered intelligence test, coupled with concurrent deficits and adaptive functioning, having its onset prior to age eighteen. Moreover, Atkins v. Virginia, expressly left the implementation of a constitutional restriction with regard to imposing the death penalty on mentally retarded individuals to the states. In Florida, the Florida Legislature crafted a procedure by which prospectively death row inmates may assert ineligibility for the death sentence in a post-guilt phase but prior to the penalty phase of their trials. Atkins v. Virginia urges nothing more. 6 In Miller s case, he, like Bottoson, has failed to step forward with sufficient evidence to demonstrate that the proceedings in their individualized 6 It is respectfully submitted that the United States Supreme Court recognize that Florida was one of those states that joined the processional in the evolving standards of decency category. -19-

26 cases were deficient. Miller has failed to establish he is a truly mentally retarded individual (albeit capable of formulating the requisite intent for first degree murder), and therefore is ineligible for the imposition of the death penalty. Conclusion It is submitted that based on this record from the resentencing hearing, Miller is not mentally retarded as defined by either Atkins v. Virginia, supra, or as defined by Section , Florida Statutes (2001). As such, there neither a basis to apply Section , retroactively to Miller s case, nor to suggest that Atkins v. Virginia should be applied retroactively without a clear pronouncement by the United States Supreme Court that it intends it to be so. Respectfully submitted, RICHARD E. DORAN ATTORNEY GENERAL CAROLYN M. SNURKOWSKI Asst. Deputy Attorney General Florida Bar No GENERAL OFFICE OF THE ATTORNEY The Capitol -20-

27 Tallahassee, FL (850) COUNSEL FOR APPELLEE -21-

28 Certificate of Service I HEREBY CERTIFY that a true and correct copy of the Amended Supplemental Answer Brief of Appellee has been furnished by U.S. Mail to Nada Carey, Office of the Public Defender, Leon County Courthouse, 301 South Monroe Street, Tallahassee, Florida 32301, this 5 th day of November, CAROLYN M. SNURKOWSKI Asst. Deputy Attorney General Certificate of Compliance This brief was prepared in Courier New 12 point, a font that is not proportionately spaced. CAROLYN M. SNURKOWSKI Asst. Deputy Attorney General -22-