CASE NO. SC02-2023 LOWER COURT CASE NO. 1986-04473 … · 78 on the WAIS-III, the State’s expert could not place much value on the previous testimony because so little was known

CASE NO. SC02-2023

LOWER COURT CASE NO. 1986-04473 CFAWS

__________________________________________________________

ROGER LEE CHERRY,

Appellant,

v.

STATE OF FLORIDA, Appellee.

__________________________________________________________

ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA __________________________________________________________

____________________________________________

SUPPLEMENTAL INITIAL BRIEF OF APPELLANT

____________________________________________

LINDA McDERMOTT Florida Bar No. 0102857 McClain & McDermott, P.A. 141 N.E. 30th Street Wilton Manors, FL 33334 (850) 322-2172 COUNSEL FOR APPELLANT

i

SUPPLEMENTAL PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit

court’s denial of Mr. Cherry’s successive motion for post-

conviction relief. Mr. Cherry’s motion concerned the issue of

whether he was eligible for the death penalty due to the fact

that he is mentally retarded. The motion was brought pursuant

to Fla. R. Crim. P. 3.850 and 3.203.

The following abbreviations will be utilized to cite to

the record in this cause, with appropriate page number(s)

following the abbreviation. “R. ___.” – record on direct appeal to this Court; “PC-R. ___.” – record on appeal from the denial of the summary denial of postconviction relief; “PC-R2. ___.” – record on appeal from denial of

postconviction relief after an evidentiary hearing on ineffective assistance of trial counsel; “PC-T. ___.” – transcript of the evidentiary hearing; “SPC-R. ___.” – supplemental record on appeal materials; “SPC-T. ___.” – supplemental transcripts; “PC–R3. ___.” – record on appeal from the denial of

postconviction relief after an evidentiary

hearing on newly discovered evidence; “SPC-R3. ___.” – supplemental record on appeal from

relinquishment on Mr. Cherry’s motion concerning retardation;

“Ex. ___.” – supplemental exhibits from relinquishment

on Mr. Cherry’s motion concerning retardation.

All other references will be self-explanatory or

otherwise explained herewith.

ii

STANDARD OF REVIEW

The standard of review regarding Mr. Cherry’s claims is

de novo.

SUPPLEMENTAL REQUEST FOR ORAL ARGUMENT

Mr. Cherry has been sentenced to death. The resolution

of the issues in this action will determine whether Mr. Cherry

lives or dies. This Court has not hesitated to allow oral

argument in other capital cases in similar procedural posture.

A full opportunity to air the issues through oral argument

would be appropriate in this case, given the seriousness of

the claims involved and the stakes at issue. Mr. Cherry,

through counsel, accordingly urges that the Court permit oral

argument.

iii

TABLE OF CONTENTS

Page

SUPPLEMENTAL PRELIMINARY STATEMENT .......................... I

STANDARD OF REVIEW ......................................... ii

SUPPLEMENTAL REQUEST FOR ORAL ARGUMENT ..................... ii

TABLE OF CONTENTS ......................................... iii

TABLE OF AUTHORITIES ........................................ v

SUPPLEMENTAL STATEMENT OF THE CASE AND FACTS ................ 1

A. PROCEDURAL HISTORY ....................... 1

B. EVIDENCE OF MR. CHERRY’S MENTAL RETARDATION ... 1

1. The Evaluations .......................... 2 2. The Expert Opinions About the Definition of

Mental Retardation ............................ 3 a. Mr. Cherry’s Intellectual Functioning 3

b. Mr. Cherry’s Adaptive

Skills 7 c. Onset Before 18 ....... 8 3. The State Did Not Produce Any

Evidence to Counter Mr. Cherry’s Claim ........ 9

SUMMARY OF ARGUMENT ......................................... 9

ARGUMENT THE LOWER COURT ERRED IN DETERMINING THAT MR. CHERRY WAS NOT MENTALLY RETARDED AND FAILED TO APPLY THE CORRECT LEGAL PRINCIPLES TO MR. CHERRY’S CASE. MR. CHERRY’S SENTENCE OF DEATH VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A LIFE SENTENCE MUST BE IMPOSED.............................................. 9

i

A. IN EVALUATING MR. CHERRY’S CLAIM THE LOWER COURT

APPLIED AN INCORRECT STANDARD OF PROOF............. 9 B. IN EVALUATING MR. CHERRY’S CLAIM THE LOWER COURT

APPLIED AN INCORRECT LEGAL DEFINITION OF MENTAL RETARDATION ...................................... 13

C. THE LOWER COURT ERRED IN ANALYZING MR. CHERRY’S CLAIM ............................................ 18 CONCLUSION ................................................. 20 CERTIFICATE OF SERVICE ..................................... 21 CERTIFICATION OF TYPE SIZE AND STYLE ....................... 21

ii

TABLE OF AUTHORITIES Page CASELAW Apprendi v. New Jersey, 530 U.S. 584 (2000)..................................... 1 Atkins v. Virginia, 536 U.S. 304 (2002).................................... 14 Blonner v. State, 127 P.3d 1135 (Okla. 2006)............................. 12 Chase v. State, 873 So. 2d 1013 (Miss. 2004)........................... 12 Cherry v. State, 781 So. 2d 1040 (Fla. 2000)............................. 4 Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005)................................ 12 Cooper v. Oklahoma, 517 U.S. 348 (1997).................................... 11 Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).................... 12 Franklin v. Maynard, 588 S.E. 604 (S.C. 2003)............................... 12 In re Winship, 397 U.S. 358 (1970).................................... 10 Penry v. Lynaugh, 492 U.S. 302 (1989).................................... 11 Ring v. Arizona, 536 U.S. 584 (2002)................................. 1, 10 State v. Jimenez, 880 A.2d 468 (N.J. 2005)............................... 11 State v. Lott, 779 N.E.2d 1011 (Oh. 2002)............................. 12 State v. Wilson, 306 S.C. 498 (1992).................................... 11 STATUTES AND RULES

iii

18 U.S.C.A. §3596©) ........................................ 12 Ark. Code Ann. §5-4-618 .................................... 12 Cal. Penal Code §1376 ...................................... 12 Fla. R. Crim. P. 3.203 ..................................... 13 Fla. Stat. § 921.137 ....................................... 13 Idaho Code §19-2515A ....................................... 12 Ind. Code §35-36-9-6 ....................................... 12 725 ILCS5/114-15 ........................................... 12 K.R.S. §532.135 ............................................ 12 L.S.A.-R.S. 28:381 (28) .................................... 12 Md. Code §2-202 ............................................ 12 Mo. Rev. Stat. §565.030 .................................... 12 Neb. Rev. Stat. §28-105.01 ................................. 12 Nev. Rev. Stat. Ann. §174.098 .............................. 12 N.M. Stat. Ann. §31-20A.-2.1 ............................... 12 N.C. Gen Stat. §15A-2005 ................................... 12 S.D. Codified Laws §23A-27A-26.1 ........................... 12 Tenn. Code Ann. §39-13-203 ................................. 12 Utah Code Ann. Sec. 77-15a-104 ............................. 12 Va. Code Ann. §19.2-264.3:1.1 .............................. 12 Rev. Code Wash. §10-95-030 ................................. 12 OTHER AUTHORITIES AAMR, Mental retardation: Definition, Classification, and Systems of Supports 1 (10th ed. 2002) ....................... 15 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4th ed. 2000) .............................. 5, 14, 16, 19 Lineweaver, T., and Chelune, G.J., “Use of the WAIS-III and

iv

WMS-III in the Context of Serial Assessments: Interpreting Reliable and Meaningful Change,” in David S. Tulsky (ed.), CLINICAL INTERPRETATION OF THE WAIS-III AND WMS-III 312 (2003) .... 15

1

SUPPLEMENTAL STATEMENT OF THE CASE AND FACTS

A. PROCEDURAL HISTORY

Beginning in April 19, 2002, Cherry filed as series of

Rule 3.850 motions concerning his mental retardation and the

United States Supreme Court decision in Apprendi v. New

Jersey, 530 U.S. 584 (2000), and Ring v. Arizona, 536 U.S. 584

(2002)(SPC-R3. 1-40; 73-77; 221-62).

On January 26, 2005, the lower court held a status

conference. At that time, the court requested that both

parties propose an expert to be appointed to evaluate Cherry.

The State proposed Dr. Gregory Prichard and postconviction

counsel proposed Dr. Peter Bursten. The lower court appointed

Drs. Prichard and Bursten (SPC-R3. 290-1).

Both experts evaluated Mr. Cherry and found that he is

mentally retarded (SPC-R3. 875, 976; Exs. 4, 6). The experts

testified at the July 25, 2005, hearing. The State presented

no evidence at the hearing.

On October 12, 2005, the lower court denied Cherry’s Rule

3.850 (SPC-R3. 480-526). Two days later, the lower court

entered a corrected/amended order (SPC-R3. 527-73).1

B. EVIDENCE OF MR. CHERRY’S RETARDATION

1The lower court refused to rule on Mr. Cherry’s Ring claim. This was so despite the State’s position that the lower court should rule on the claim in light of Arbalaez. (SPC-R3. 815, 818-8). Thus, that claim has yet to be determined, though properly filed. Relinquishment for further proceedings is proper.

2

Both Dr. Prichard, the State’s expert and Dr. Bursten

found that Cherry is mentally retarded (SPC-R3. 875, 976).

1. The Evaluations.

In forming their opinions, both experts reviewed

extensive background materials, including, mental health

reports, testing data, testimony, affidavits, reports relating

to the crime with which Cherry was convicted and Cherry’s

Department of Corrections, (DOC), file (SPC-R3. 873, 947-9).2

Cherry scored a 72 on the WAIS-3 (SPC-R3. 874).3 Dr.

Bursten also administered the Test of Memory Malingering

(TOMM), which was used to determine if Cherry was giving his

best effort (Id.). Cherry scored a perfect score on the

test.4 Finally, Dr. Bursten administered the Scales of

Independent Behavior, Revised, (SIB-R), to Cherry, in order to

assist him in determining if Cherry’s adaptive skills were

impaired (SPC-R3. 874-5).

Dr. Bursten also spoke to three individuals about Cherry:

David Livingston, Cherry’s fifth grade teacher, Legertha

Henry, a social worker who knew Cherry and his family when he

2Dr. Bursten characterized the background materials as an “excellent group of materials” (SPC-R3. 873).

3While Dr. Bursten conducted the IQ testing, Dr. Prichard had no reason to question its validity or result and characterized Dr. Bursten’s data as extremely helpful in forming his opinion that Cherry is retarded (SPC-R3. 951).

4Both experts agreed that Cherry was not malingering during their testing and was putting forth his best effort throughout the evaluations (SPC-R3. 882-4, 977-8).

3

was a child; and Hettie Cherry, Cherry’s estranged wife with

whom he lived for a few years in his mid-twenties (SPC-R3.

879-80; Ex. 4).

Dr. Prichard administered the Wide Range Achievement

Test, third edition (WRAT-3), to Cherry and also administered

the SIB-R to Officer Paxson (SPC-R3. 949-50). Dr. Prichard

chose Ofc. Paxson because “he seemed to be very knowledgeable

of the individuals [on death row]” and he seemed to take “an

objective approach to answering the questions” (SPC-R3. 957-

8).5 2. The Expert Opinions About the Definition of Mental

Retardation.

Both experts agreed that mental retardation encompassed

three prongs: 1) subaverage intellectual functioning; 2)

deficits in adaptive functioning; and 3) onset prior to the

age of 18 (SPC-R3. 871, Ex. 6).

a. Mr. Cherry’s Intellectual Functioning.

Cherry produced a full scale IQ score of 72 when Dr.

Bursten administered the WAIS-3 (SPC-R3. 876).6 However, 5Dr. Prichard described Ofc. Paxson as having knowledge “of Cherry and the other inmates’ functioning in their daily routine, what they did in their cell and what they did when they were eating and what they did in their own down time.” (SPC-R3. 959).

6The WAIS-3 is one of the two tests identified by the Department of Children and Families to be used in testing for mental retardation. On the other hand, the Beta and Kent IQ tests that were conducted while Cherry was incarcerated in DOC are not tests that are designated to produce reliable results about the issue of mental retardation. In fact, both experts agreed that test scores produced by the Kent and Beta had

4

based, on Cherry’s performance on the various subtests, his

full scale IQ score was inflated.7 On the WRAT-3,

administered by Dr. Prichard, Cherry produced a grade

little value (SPC-R3. 896, 925, 961). The Beta IQ test is simply not a comprehensive measure of intellectual functioning (SPC-R3. 896). The State’s expert further explained the Beta was “developed to assess individuals in settings like institutions where you’re doing group testing.” and “It’s also for non-readers” (SPC-R3. 961). “So, its utility in terms of saying whether a person is mentally retarded or not is extremely limited. It’s not accepted as a measure in the scientific community for determining retardation.” (Id.). As to Dr. Crown’s previous testimony that Cherry scored a 78 on the WAIS-III, the State’s expert could not place much value on the previous testimony because so little was known of the test results (SPC-R3. 971). And, he explained that if the score were legitimate then he must consider the phenomenon that occurs as a intelligence test ages: “[T]he fact that the test was given to Mr. Cherry when it was 15 years old suggests the possibility – and only the possibility – but that that was representative of an inflated score.” (Id.). In addition, Dr. Prichard testified that the phenomenon of “practice effect” may have caused the score to be inflated (SPC-R3. 972). Dr. Bursten concurred with these opinions (SPC-R3. 926). And, Dr. Crown’s testimony was found to be not credible by the lower court in 1997. This Court accepted the lower court’s finding. See Cherry v. State, 781 So. 2d 1040, 1050 (Fla. 2000).

7Dr. Bursten explained that:

Mr. Cherry’s greatest strength, which approximated average limits, was demonstrated on the Digit Span subtest. This particular test is a measure of auditory attention/ concentration. . . . [I]t is important to point out that the Digit Span subtest does not rely on either verbal or nonverbal higher order reasoning/judgment skills. . . . [B]ecause Mr. Cherry earned a relative elevation on the Digit Span subtest, that isolated score served to somewhat inflate or skew the overall/Full Scale IQ score.

(Ex. 4).

5

equivalence score of fourth grade on reading, third grade on

spelling and third grade on arithmetic (SPC-R3. 952). The

results of the testing was consistent (SPC-R3. 953).

Both experts explained that sub-average intellectual

functioning is considered to be a “range or band of scores”

(SPC-R3. 877). Dr. Bursten explained: “The idea behind that

is there’s recognition that no one IQ score is exact or

succinct, that there’s always some variability and some error

built in.” (Id.). Thus, a score between 65 to 75, and lower

than 65 fall within that band and “comprise[s] mental

retardation” (Id.).

Likewise, Dr. Prichard concurred Cherry’s IQ score fell

with in the range that constitutes mental retardation (SPC-R3.

955). Dr. Prichard explained that an IQ score is “really just

an estimate” and that “as behavioral scientists, we

psychologists have to consider the standard error of

measurement that is inherent in an IQ measure.” (SPC-R3. 954-

5).8

Further, the State’s expert testified that the standard

error of measurement (SEM), is accepted in the scientific

community and “needs to be attended to. Any time you’re

measuring with an instrument, there’s inherent error in that

measurement that you need to account for the error.” (SPC-R3. 8The State’s expert also testified that Dr. Barnard’s testimony in 1996 that Cherry was not retarded because his IQ was a 72, was inaccurate. “[T]here’s more to the picture than what [Dr. Barnard] communicated.” (SPC-R3. 969).

6

955). Thus, in order to “communicate legitimately what your

results mean” a psychologist must consider the SEM (SPC-R3.

956).9

Indeed, the DSM-IV-TR corroborates the doctors’

testimony: “it should be noted that there is a measurement

error of approximately 5 points in assessing IQ . . . (e.g., a

Wechsler IQ of 70 is considered to represent a range of 65-

75).” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS 41 (4th ed. 2000)).

Dr. Prichard testified that in addition to his IQ score,

the background materials supported the notion that Cherry’s

intellectual functioning was substandard (SPC-R3. 965). He

noted that all of the testimony and affidavits he reviewed of

people who knew Cherry as a child and young adult described

him as slow and mentally retarded and that Cherry had been

placed in special education classes while in school (Id.).

Indeed, one of the sources of information was a DOC record

that indicated an investigation into Cherry’s background had

been conducted in 1972 (SPC-R3. 967). In that report, George

Williams, a counselor from Cherry’s middle school, who knew

Cherry when he was 11 years old, told DOC officials, that

Cherry was placed in special education classes. He also knew

that Cherry had problems communicating. Rather than press

9SEM is a concept that is accepted and discussed in the DSM-IV-TR (SPC-R3. 956). Likewise, the SEM is a part of the testing measure itself.

7

Cherry academically he asked Cherry to make sure the erasers

and black boards were clean. “Clapping erasers was something

Roger could do, and I always liked giving my disabled children

a sense of accomplishment.” (Ex. 2).

Cherry’s DOC records contained other comments various

correctional officials had made about his intellectual

functioning. In 1968, when Cherry was 17 years of age, a DOC

official, remarked, “[Mr. Cherry] seems to be a very

inadequate, borderline defective, having difficulty

manipulating the moderately complex factors of his

environment” and “he does seem to be very inadequate in almost

all areas and seems to have difficulty reasoning through to

logical conclusions, problems of everyday living.” (Ex. 2).

Dr. Prichard testified that the vignette demonstrates

information about Cherry’s functioning (SPC-R3. 964).10 A few

years later, a DOC official remarked that “[Cherry] seems to

be easily led by the dictates of his peers and allows his

peers to make a pawn of him.” (SPC-R3. 964). Dr. Prichard

testified that the description of Cherry, at the age of

twenty, “would be very consistent with the kind of commentary

people generally make about individuals who are mentally

retarded.” (Id.).11

Both experts determined that Cherry’s IQ score and 10The remark made in 1968 also reflects Cherry’s adaptive skills, as well as his intellectual functioning.

11The description also reflects Cherry’s adaptive skills.

8

intellectual capabilities over time placed him in the range of

substandard intellectual functioning (SPC-R3. 924, 959).12

b. Mr. Cherry’s Adaptive Skills.

Both experts agreed that Cherry’s adaptive skills were

impaired (SPC-R3 882, Exs. 4, and 6). The experts relied on a

variety of sources of information, including the descriptions

of Cherry when he was a child and young adult found in sworn

testimony and affidavits, by his fifth grade teacher,13 and

middle school guidance counselor, by various prison officials

who encountered Cherry over the years, including most

recently, Ofc. Paxson, Cherry’s self-report, and DOC records

(SPC-R3. Id.).

Impairment in adaptive skills requires an examiner to

determine “how an individual has functioned in his

environment” and “aspects of independent behavior”. (SPC-R3.

878).

Dr. Bursten testified that the background materials were

consistent regarding Cherry’s adaptive functioning (SCP-R3.

930).

In administering the SIB-R to Ofc. Paxson, Dr. Prichard

12Dr. Prichard specifically stated that “[A]n obtained score of 72 can and often does equate to a score consistent with mental retardation.” (Ex. 6).

13Cherry’s fifth grade teacher described him as being retarded (Ex. 4). In terms of “general independence”, Cherry’s fifth grade teacher rated him a 2 on a scale of 1 to 10, with 1 being the lowest (Ex. 4).

9

obtained a result that was consistent with the other data and

was “suggestive of adaptive deficits in a variety of domains.”

(SPC-R3. 972). Dr. Prichard testified that the results of the

SIB-R from Ofc. Paxson was the most compelling piece of

information and “conclusively for me, it answered the

question” of Mr. Cherry’s mental retardation (SPC-R3. 974-5): I’m also viewing [the SIB-R results from Officer Paxson] in terms of internal norms, assessing these individuals this way with corrections officers historically, and comparing what I receive on each test in the same manner with prior testing occasions. And seeing these kind of limitations with Mr. Cherry, you know is significant to me given that I have not seen that much when doing adaptive testing with a corrections officer.

(SPC-R3. 974).

c. Onset Before 18.

Both experts agreed that all of the information

consistently demonstrated that Mr. Cherry was “slow” and

“challenged intellectually” as a child and adolescent (SPC-R3.

933, 975).

Dr. Bursten indicated that “at least fifteen [informants]

independently referred to Mr. Cherry as being “‘slow’,

‘retarded’, etc., during preadolescent/developmental years.”

(Ex. 4). Mr. Cherry was described as not functioning at a

normal level. (Id.).

Dr. Prichard remarked that the “[a]necdotal data also

strongly and almost exclusively suggest the presence of

intellectual and adaptive limitations recognized consistently

over the course of Mr. Cherry’s life.” (Ex. 6)(emphasis

10

added). 3. The State Did Not Produce Any Evidence to Counter

Cherry’s Claim.

The State presented no evidence that Cherry was not

retarded and no evidence to contradict the doctors findings.

No matter what hypotheticals or information the State asked

the doctors to consider on cross examination, their opinions

remained the same.

Thus, the evidence establishes that two experts,

including the State’s own expert have determined that Cherry

is mentally retarded and a plethora of background information

and test data which supports and corroborates those findings.

SUMMARY OF ARGUMENT

Roger Cherry is mentally retarded and has been his entire

life. Evidence and testimony, including that from the State’s

own expert establishes that Cherry meets the criteria for

mental retardation.

ARGUMENT THE LOWER COURT ERRED IN DETERMINING THAT MR. CHERRY WAS NOT MENTALLY RETARDED AND FAILED TO APPLY THE CORRECT LEGAL PRINCIPLES TO MR. CHERRY’S CASE. MR. CHERRY’S SENTENCE OF DEATH VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A LIFE SENTENCE MUST BE IMPOSED.

A. IN EVALUATING MR. CHERRY’S CLAIM THE LOWER COURT APPLIED AN INCORRECT STANDARD OF PROOF

The lower court imposed a clear and convincing standard

of proof on Mr. Cherry to show that he was mentally retarded

(SPC-R3. 530). The court’s use of a clear and convincing

11

standard of proof violated Mr. Cherry’s constitutional rights.

Mr. Cherry maintains that it is the State’s burden to

prove that he is not mentally retarded beyond a reasonable

doubt. Mr. Cherry bases his argument on the premise that the

absence of mental retardation is an element of capital first

degree murder, and thus, the State must prove the element to a

jury beyond a reasonable doubt. See In re Winship, 397 U.S.

358 (1970). An analysis of Atkins and Ring v. Arizona, 536

U.S. 584 (2002), indicates that due process and the Eighth

Amendment require that a jury make the decision, that the

State bear the burden of proof and that the State prove beyond

a reasonable doubt that the defendant is not mentally

retarded.14

Recently, the New Jersey Supreme Court accepted a similar

argument and now requires the State to prove beyond a 14Furthermore, because of the procedures utilized in Mr. Cherry’s case he was deprived of constitutional rights that other, similarly situated capital defendants obtain. He was deprived of the constitutional right to effective assistance of counsel and appellate counsel. He was deprived of his right to effective assistance of mental health experts. Mr. Cherry had no opportunity to request a Frye hearing on the reliability of IQ tests like the Beta and Kent, which the lower court relied upon, despite Dr. Prichard’s testimony that the tests were not accepted in the scientific community. The State violated Mr. Cherry’s right to confrontation, when instead of presenting a witness to testify, the State merely referred to information that allegedly existed, like Mr. Cherry’s possession of a dictionary or books in his cell or his use of the grievance procedure. Indeed, in counsel’s review of the records, Mr. Cherry had not filed a single grievance in his nearly twenty years of incarceration on death row.

12

reasonable doubt that a capital defendant is not retarded.

State v. Jimenez, 880 A.2d 468 (N.J. 2005).

However, if this Court, rejects Mr. Cherry’s argument

that it is the State’s burden to prove that he is not mentally

retarded, then, Mr. Cherry’s burden of proof must be no

greater than a preponderance of evidence. Indeed, the United

States Supreme Court’s decision in Cooper v. Oklahoma, 517

U.S. 348 (1997), sets the constitutional floor regarding the

standard of proof. In Cooper, the Supreme Court held that no

standard of proof greater than a preponderance of the evidence

could be placed upon a capital murder defendant challenging

his competency to stand trial. The Court’s examination of

both English common law and contemporary law revealed that the

burden of proof for a competency determination has long been a

preponderance of the evidence. Cooper, 517 U.S. at 356-61.

Historically, mentally retarded persons, have been viewed and

treated similarly to incompetent persons by courts and under

the law. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 332

(1989), rev’d on other grounds (citing Ellis & Luckasson,

Mentally Retarded Criminal Defendants, 53 Geo. Wash.L.Rev.

414, 432 March/May 1985); accord State v. Wilson, 306 S.C.

498, 509, 413 S.E.2d 19, 25 (1992). The Cooper Court found

that the procedural consequences to a defendant of an

erroneous determination of competency were dire, and

outweighed any interest the state had in creating procedural

rules or standards, especially those with little or no

13

historical roots or modern acceptance. Cooper, 517 U.S. at

364-68. The consequence of an erroneous determination

regarding mental retardation for a capital murder defendant is

even more dire, because such a determination could result in

the impermissible imposition of a death sentence.

Currently, 24 of the 30 jurisdictions to have decided the

issue of the standard of proof required to prove retardation

have adopted the preponderance of the evidence standard.15

And, because of the New Jersey Supreme Court’s recent

decision, 25 of 30 states or jurisdictions require less than

clear and convincing evidence to prove mental retardation.16

If Mr. Cherry is required to prove his mental retardation, a

standard of proof no higher than a preponderance of the

evidence should be applied.

In any event, even if this Court were to affirm the more

15Ark. Code Ann. §5-4-618; Cal. Penal Code §1376; Idaho Code §19-2515A; Ind. Code §35-36-9-6; 725 ILCS5/114-15; K.R.S. §532.135; L.S.A.-R.S. 28:381 (28); Md. Code §2-202; Mo. Rev. Stat. §565.030; Neb. Rev. Stat. §28-105.01; Nev. Rev. Stat. Ann. §174.098; N.M. Stat. Ann. §31-20A.-2.1; N.C. Gen Stat. §15A-2005; S.D. Codified Laws §23A-27A-26.1; Tenn. Code Ann. §39-13-203;Utah Code Ann. Sec. 77-15a-104; Va. Code Ann. §19.2-264.3:1.1; Rev. Code Wash. §10-95-030; 18 U.S.C.A. §3596(c); See also Chase v. State, 873 So. 2d 1013 (Miss. 2004); State v. Lott, 779 N.E.2d 1011 (Oh. 2002); Blonner v. State, 127 P.3d 1135 (Okla. 2006); Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005); Franklin v. Maynard, 588 S.E. 604 (S.C. 2003); Ex parte Briseno, 135 S.W.3d 1, 12 (Tex. Crim. App. 2004).

1636 states and the U.S. Government provide for the death penalty.

14

stringent “clear and convincing” standard, Mr. Cherry has met

his burden. Both of the doctors appointed by the lower court

evaluated Mr. Cherry, considered the criteria defining mental

retardation and found him to be mentally retarded. The State

presented no evidence to the contrary. Thus, the evidence of

mental retardation is uncontroverted and establishes that Mr.

Cherry is mentally retarded and ineligible to be executed. B. IN EVALUATING MR. CHERRY’S CLAIM THE LOWER COURT APPLIED

AN INCORRECT LEGAL DEFINITION OF MENTAL RETARDATION

The lower court found that in order to prove mental

retardation, Mr. Cherry must have an IQ score of 70 or below

(SPC-R3. 530). However, neither Florida Statute 921.137

(2005), nor Florida Rule of Criminal Procedure 3.202 (2005),

contain an absolute cutoff score of 70 of a defendant’s IQ in

order to be found mentally retarded. Rather, both Florida’s

statute17 and rule18 concerning mental retardation mirror the

17Fla. Stat. § 921.137, defines mental retardation as:

significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services.

18Likewise, this Court’s rule regarding mental retardation is nearly identical to the statute:

significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period

15

definitions by the American Association of Mental Retardation

(AAMR) and the American Psychiatric Association (APA), which

were approved by the United States Supreme Court in Atkins, as

appropriate definitions of mental retardation.19 The lack of

an absolute cut off score supports Mr. Cherry’s argument that

the statute and rule recognize the need for flexibility in

determining intellectual functioning.20

from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of the Florida Administrative Code.

19The Atkins Court defined mental retardation as:

Mental retardation refers to substantial limitation in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following 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.

Atkins at 309, n.3 (quoting the definition of the American Association of Mental Retardation). The Court also cited the American Psychiatric Association definition of mental retardation with three primary characteristics: significant subaverage general intellectual functioning, significant limitations in adaptive function (in at least two specified skill areas), and onset before age eighteen. See id. (quoting the AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4th ed. 2000)).

20The tests identified also support the notion that there is variability in test scores since the SEM must be considered in order for the results of a test to be valid.

16

The lower court ignored the legislative history of Fla.

Stat. 921.137, which specifically recognized that 70 was not a

cutoff score for intellectual functioning. The staff analysis

preceding the statue states: “The Department of Children and

Family Services does not currently have a rule. Instead the

department has established criteria favoring the nationally

recognized Stanford-Binet and Wechsler Series tests. In

practice, two or more standard deviations from these test mean

that the person has an IQ of 70 or less, although it can be

extended up to 75.” (SPC-R3. 379).21

Indeed, the Atkins Court specifically recognized that an

“IQ score between 70 and 75 or lower” is “typically considered

the

cutoff score for the intellectual function prong”

Atkins, 536 U.S. at 309, n.5, quoting, 2 B. Sadock & V.

Sadock, Comprehensive Text Book of Psychiatry 2952 (7th ed.

2000).

The AAMR also requires consideration of a range of scores

and the SEM in determining the subaverage intellectual

functioning criteria. AAMR, Mental retardation: Definition,

Classification, and Systems of Supports 1, 57 (10th ed. 2002).

21Indeed, because the Department of Children and Family Services (DCF), designated one of the tests to be administered to determine mental retardation as the WAIS-III, it is implicit in the statute and Rule 3.203 that a standard error of measure of +/- 5 be considered in assessing IQ. The tests themselves require such an interpretation.

17

Indeed, for the WAIS-III, the test that was administered to

Mr. Cherry, the conventional standard error of measurement

used is a range of plus or minus five points from the IQ score

obtained by a person on the test.22 Id. Thus, obtained IQ

scores up to 75 can satisfy the first component of the

definition of mental retardation. Id.

At Mr. Cherry’s evidentiary hearing, both Drs. Prichard

and Bursten explained that an IQ encompasses a “range or band

of scores” and that there was always some error built in (SPC-

R3. 877). Thus, a score between 65 to 75, and lower than 65

fall within that band and “comprise[s] mental retardation”

(Id.).

Dr. Prichard specifically testified that an IQ score is

“really just an estimate” and that “as behavioral scientists,

we psychologists have to consider the standard error of

measurement that is inherent in an IQ measure.” (SPC-R3. 954-

5). Dr. Prichard also testified that “there’s more to the

picture” of intellectual functioning than an IQ score (SPC-R3.

969).

The doctors testimony was consistent with the DSM-IV-TR

22In and of itself the WAIS-III calls for consideration of the SEM. Thus, the test chosen by DCF, at the direction of this Court and the Florida Legislature requires consideration of a range of IQ score and not a single number. See Lineweaver, T., and Chelune, G.J., “Use of the WAIS-III and WMS-III in the Context of Serial Assesments: Interpreting Reliable and Meaningful Change,” in David S. Tulsky (ed.), CLINICAL INTERPRETATION OF THE WAIS-III AND WMS-III 312 (2003).

18

which calls for consideration of “a measurement error of

approximately 5 points in assessing IQ . . . (e.g., a Wechsler

IQ of 70 is considered to represent a range of 65-75)”.

AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS 41 (4th ed. 2000).

Even the State has recognized that an IQ score above 70

can establish subaverage intellectual functioning. In a

hearing before the lower court, the State conceded: “You can

have an IQ score of 70 or 71 or 75, but if you don’t have the

deficits in adaptive functioning, you don’t have an individual

who is mentally retarded.” (SPC-R3. 704). The State also

conceded: As Your Honor correctly pointed out, the cut-offs go where the mental retardation has been – the – if the deviation – if the mean being 100 and a standard deviation being 15. That puts the cut score for mental retardation at 70. There is and always has been . . . a plus or minus five associated with an IQ score. That is nothing new.

(SPC-R3. 747).23

In addition, in State of Florida v. Kenneth Watson,

Florida Supreme Court Case No. SC03-1965, a case currently

pending before this Court, the State of Florida, also conceded

23Prior to the hearing, after receiving Dr. Bursten’s report identifying Mr. Cherry’s IQ as 72, the State made no motion that there was no need to hold an evidentiary hearing because Mr. Cherry could not meet the criteria for mental retardation. Likewise, this Court knew Mr. Cherry’s IQ scores were above 70 prior to relinquishing jurisdiction on the issue. If the lower court’s interpretation of the statute and rule is correct, Mr. Cherry’s case, like many other cases need not have been remanded for evidentiary hearings by this Court.

19

that the clinical definition of mental retardation is to be

used in evaluating claims of capital postconviction

defendants. See Initial Brief of Appellant; SPC-R3. 391-474.24

In Watson, the State argued in favor of reliance on the DSM-

IV-TR in defining mental retardation, (Id., p. 58; SPC-R3.

451), a definition which states that mental retardation can be

established with an IQ score above 70.25 Indeed, the State

conceded that Florida’s statutory definition “effectively

track[ed] the generally accepted clinical definition of mental

retardation”. Id., p. 58 n. 16; SPC-R3. 450 (emphasis in

original).

In Watson, the State specifically acknowledged the SEM in

defining mental retardation when stating: “Conversely, it is

possible to diagnose mental retardationin (sic) individuals

with IQ scores between 70 and 75 if there are also significant

deficits in present adaptive behavior.” Id., p. 60 n. 19; SPC-

R3. 452 (emphasis in original).26

Both of the experts who testified at the evidentiary

hearing about IQ test results, all of the literature,

directions and treatises discussing IQ test results, the

24Mr. Cherry attached the State’s brief to his closing argument (SPC-R3. 360-474).

25In Watson, the State relies on Dr. Prichard who was the State’s expert and the only expert who did not find Mr. Watson mentally retarded.

26The State’s position in Watson is exactly what was presented to the lower court in Mr. Cherry’s case.

20

Florida Legislature United States Supreme Court, and even the

State in Watson, recognize that an individual with an IQ score

above 70 may still meet the criteria for mental retardation

under the definitions provided by the Florida Legislature and

this Court. The lower court erred in concluding that in order

to establish mental retardation, Mr. Cherry must produce an IQ

score of 70 or less. C. THE LOWER COURT ERRED IN ANALYZING MR. CHERRY’S CLAIM

In rejecting Mr. Cherry’s claim, the lower court ignored

the testimony of the experts, characterized by the State pre-

hearing as the “best possible information” regarding Mr.

Cherry’s retardation (SPC-R3. 779-80).

For example, as to Mr. Cherry’s intellectual functioning,

the court considered IQ scores from tests, specifically the

Beta and Kent tests, which are not accepted in the scientific

community (SPC-R3. 973).27 And, those tests are not designated

by DCF to be used in determining if a defendant is mentally

retarded.28 The court also relied on external factors to

suggest that Mr. Cherry IQ was “depressed” (SPC-R3. 535), all 27Oddly enough, the lower court also relies on Dr. Crown’s testimony from 1996, when he was found not credible. Without knowing any details about the test, and despite Dr. Prichard’s testimony that the testimony had little value to the determination of mental retardation, the lower court accepts Dr. Crown’s testimony as credible and valuable to her decision.

28The court also relied on the fact that Mr. Cherry was found competent to proceed at trial – an issue that has no bearing on whether or not he is mentally retarded.

21

of which both experts considered when they evaluated Mr.

Cherry and found him mentally retarded.29

Likewise, the lower court ignores the substantial and

consistent evidence of Mr. Cherry’s impaired adaptive skills.

First, while the court suggested that Mr. Cherry’s antisocial

personality disorder (ASPD), caused his impaired functioning,

Mr. Cherry’s impeccable confinement record demonstrates that

he can and does follow rules in a structured environment.30

This would not be so if his behavior were driven by ASPD

rather than mental retardation. In addition the APA has

explained:

29The lower court ignored Mr. Cherry’s perfect score on the TOMM which reflects that his other test scores were accurate and he was giving his best effort. Also, the fact that Mr. Cherry’s full scale IQ scores from 1992 and 2005 were identical suggests that they were not influenced by any external factors.

30Dr. Prichard testified that mental retardation and ASPD are not mutually exclusive. And, the DSM-IV-TR, directs experts in diagnosing patients to rule out mental retardation and brain damage before diagnosing ASPD.

The diagnostic criteria for Mental Retardation do not include an exclusion criterion; therefore, the diagnosis should be made whenever the diagnostic criteria are met, regardless of and in addition to the presence of another

22

disorder.

DSM-IV-TR, 47.

The lower court also concluded that Mr. Cherry’s self

report on the SIB-R and during his evaluations is

“problematic”. However, the court relies entirely on Mr.

Cherry’s self report about his previous employment history to

deny his claim. But, in fact, much of his the information Mr.

Cherry provided about his employment history is refuted by the

records.31

Indeed, the reason that Ofc. Paxson’s SIB-R result was so

compelling to the experts and specifically, the State’s

expert, was that he had never received such information

regarding a death row inmate from a DOC official, despite the

fact that he always conducted such testing in similar

circumstances.32

The experts who evaluated Mr. Cherry, considered all of

the information cited by the court, yet still found that

31There are no records in Mr. Cherry’s DOC file regarding any work assignments in the forestry industry. However, there are records which show he worked menial jobs, like kitchen staff. Also, Elmo Washington, a former employer of Mr. Cherry attested that he hauled wood and that Mr. Cherry was a good helper because “there wasn’t anything complicated about the work.” Certainly, this cannot be characterized as forestry work.

32Indeed, Dr. Prichard has served as the State’s expert numerous times in the past and conducted nearly identical evaluations of other inmates, including conducting testing with DOC officials. Counsel knows of no other case where the test results with the DOC official have been discounted.

23

Cherry was mentally retarded.

The lower court’s order is not supported by the evidence.

CONCLUSION

Based upon the foregoing argument, reasoning, citation to

legal authority and the record, appellant, ROGER LEE CHERRY,

urges this Court to reverse the lower court’s order and remand

for a life sentence to be imposed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

Supplemental Initial Brief has been furnished by United States

Mail, first class postage prepaid, to Kenneth Nunnelly,

Assistant Attorney General, 444 Seabreeze Blvd., Suite 500,

Daytona Beach, Florida 32118, on March 3, 2006.

CERTIFICATION OF TYPE SIZE AND STYLE

This is to certify that the Initial Brief of Appellant

has been reproduced in a 12 point Courier type, a font that is

not proportionately spaced.

___________________________ LINDA McDERMOTT Florida Bar No. 0102857 McClain & McDermott, P.A. 141 N.E. 30th Street Wilton Manors, FL 33334 (850) 322-2172 Attorney for Appellant