PER CURIAM.
This case is before the Court on appeal from an order concluding that Donald William Dufour is not mentally retarded pursuant to Florida Rules of Criminal Procedure 3.203 and 3.851. The final order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, and we therefore have jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution. We affirm the order of the postconviction court.
Several homicides produced Dufour's incarceration. In early September of 1982, the body of Zack Miller was found in an orange grove in Orlando. As the investigation of Miller`s death was proceeding, Dufour was involved in the robberies and murders of Daniel King and Earl Wayne Peeples in Jackson, Mississippi, in October of 1982.
A capital jury unanimously found Dufour guilty of the murder of Zack Miller and recommended the death penalty, which the trial court imposed in 1984.
On direct appeal, Dufour raised sixteen issues.
In 1992, Dufour filed an initial motion pursuant to Florida Rule of Criminal Procedure 3.850, and he amended the motion in 2001.
While the initial postconviction appeal was pending, Dufour filed a motion for postconviction relief that sought a determination of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203. Correspondingly, Dufour filed a motion requesting this Court to relinquish jurisdiction to the circuit court. We denied the motion to relinquish jurisdiction without prejudice to Dufour filing a motion seeking relief under rule 3.203 within sixty days after his pending postconviction and habeas proceedings became final.
In accord with this Court`s order, Dufour filed a timely motion pursuant to Florida Rules of Criminal Procedure 3.203 and 3.851 that asserted his conviction and sentence of death are contrary to the reasoning and holding in
The circuit court conducted an evidentiary hearing during which the evidence presented established Dufour`s deplorable and difficult childhood. When Dufour was two years old, his family moved from New York to Orlando, Florida. Before moving to Florida, Dufour`s father was afflicted by polio and was also injured in an accident that required a steel plate to be placed in his head. The resulting physical disability impacted his demeanor, and Dufour`s father developed depression. Thereafter, Dufour`s father became an alcoholic, spending most of his days drunk and releasing the anger he felt for his life on his family through physical abuse. As a result, Dufour witnessed domestic violence throughout his childhood and was the victim of physical abuse by his father.
Dufour`s father died while Dufour was a teenager, and his mother remarried. In maintaining the new household, Dufour`s mother assigned the children chores, such as doing their own laundry, cleaning their room, cooking lunch, and washing the dishes. Dufour and his older brothers would also perform yard work and mow the grass. Dufour was able to accomplish each of these tasks. Dufour also possessed a license to drive and was able to drive without limitation. He appeared to understand the various traffic signals, although his friends sometimes characterized him as a poor driver. Additional evidence indicated that Dufour had participated in legal proceedings concerning a forfeiture of a vehicle purportedly owned by Dufour.
With regard to the ability of Dufour to maintain a home and provide self-care, throughout his life, Dufour has primarily resided with his parents, brothers, and friends. For example, Dufour and his former girlfriend, Stacy Sigler, decided to reside in an apartment together. Although in conflict with other evidence, Sigler testified that Dufour leased the apartment and handled the rent. Sigler testified that while she was at work, Dufour decorated the apartment for her. She further stated that Dufour possessed the ability to maintain a clean kitchen, but that their kitchen would not pass a "white glove" test. She testified that Dufour was able to select his own apparel and dress appropriately. In addition, Dufour was able to independently accomplish proper hygiene activities daily, such as brushing his teeth and showering.
The evidence also established that Dufour possessed the ability to be self-sufficient and live independently of his friends and family. After committing the capital offenses in Mississippi, Dufour obtained food and secured boarding and lodging unaided by others.
In the view of Dufour`s stepsister, Dufour was not mentally retarded and possessed intelligence equal to her own. During Dufour`s teenage years, his stepsister observed him reading and believed that he could interpret the material. This was in contrast to Dufour`s older brother John, who was described by family members as intellectually slow and who attended a school that assisted profoundly mentally retarded students who engaged in aggressive, violent behavior, or physically acted out in class.
Despite his stepsister`s observations of his reading ability, other evidence demonstrated that Dufour had an "abysmal" academic performance in school. Initially established by his performance in first grade, this fact was further proven by his many failing grades throughout his education. For instance, he had to repeat the second grade due to his academic performance, and he still did not accomplish passing grades during his second attempt. In light of his poor grades, he was "socially promoted," or "placed" for the rest of elementary school. The term "placed" indicated that although the student advanced to the next grade level, the student had not successfully achieved the curricular requirements to be promoted. In addition, Dufour was enrolled in basic classes, which were the lowest level of coursework in his school. However, other evidence suggested that this poor performance in school could be related to other factors, such as Dufour`s deplorable conditions at home, sexual abuse, and frequent abuse of alcohol and other narcotics. For example, Dufour informed a mental health expert that he spent the majority of his time in high school selling and consuming drugs instead of focusing on academics.
The evidence demonstrated that Dufour still struggles with proper spelling and grammar. As an adult, Dufour would read children`s books to his friend`s children, but struggled with some of the words. In addition, various materials purported to be authored by Dufour contained misspellings and grammatical errors. Despite these difficulties, Dufour successfully completed medical requests in prison for a special diet and medicine to treat Hepatitis C, with which he was diagnosed. However, there was conflicting evidence as to whether Dufour engaged the assistance of others in completing these requests.
The evidence further indicated that Dufour possesses proficiency in mechanical projects. In junior high, Dufour earned his highest grades in physical education and shop. After two years in junior high school, Dufour transferred to a vocational school. Subsequently, while incarcerated during the 1970s for a burglary conviction, Dufour obtained his General Educational Development (GED) diploma and completed a small engine repair course. In addition to successfully completing the course, Dufour served as an aide to the instructor of the course. Dufour also assisted in organizing and teaching a motorcycle repair course at the correctional institution. Dufour displayed other mechanical skills as a youth by refurbishing a motorcycle.
In addition to his mechanical skills, testimony established that Dufour possessed "street smarts," which is a shrewd awareness of how to survive as a result of living or working in a difficult environment. Dufour was also described as possessing the ability to easily persuade and interact with people.
With regard to Dufour`s health, he began to abuse drugs and alcohol from a very young age. According to his older brother, if Dufour was awake, he was using alcohol or drugs. When bringing his father alcohol, Dufour would sip from the beer. He would also take beer from the refrigerator while his parents slept. By the third grade, Dufour would consume a six-pack of beer. By the fourth grade, he began abusing marijuana daily. Starting in the fifth grade, he experimented with inhalants such as toluene and glue on a daily basis. In junior high, his drug use escalated to include many psychedelic and sedative drugs. Dufour`s brother recalled that Dufour`s arm would be covered in scars or infected from injecting various types of narcotics into his veins with a needle.
In addition to the drug and alcohol abuse, Dufour unsuccessfully attempted to establish that he suffered from organic and traumatic brain damage. Although there was some testimony with regard to incidents in which Dufour was injured, such as vehicular and physical accidents, none of this testimony established or substantiated that the accidents resulted in injury to his brain. Moreover, Dufour failed to present any evidence or medical records documenting any injuries to his brain.
The evidence also developed Dufour`s employment history. He secured employment at roofing and painting companies but would only hold the position for a few months at a time. Further, Dufour`s former lover employed him as a chauffeur. At one point, a neighbor`s husband attempted to secure employment for Dufour working with drywall. However, when Dufour arrived at the construction site, it became apparent that he had no experience with drywall and he was terminated. Dufour`s brother also attempted to secure employment for Dufour as a yard assistant, but Dufour would often stop attending work. Other evidence established that Dufour`s difficulty in maintaining employment was a result of his dissatisfaction with the type of positions he obtained. In sum, Dufour failed to maintain stable employment.
With regard to Dufour`s ability to maintain healthy relationships, as a child, Dufour was sexually abused by an adult man in his twenties. In seventh grade, Dufour began to engage in sexual relations with women. During junior high school, he engaged in alcohol-related sexual activities simultaneously with multiple, older sexual partners. When Dufour was in his late teenage years, his stepsister accused him of rape. When he was approximately sixteen years old, Dufour`s mother sent him to live with his older brother in Gainesville. Dufour became heavily involved in a predominantly homosexual "party" scene. During this period, one of his brother`s friends raped him. Dufour spent much of this time intoxicated and would exchange sexual favors for special favors from older men. For example, the older men would use Dufour to solicit younger boys.
Later in life, he shared a romantic relationship with Stacy Sigler, which included Sigler working as a prostitute and sharing her proceeds with Dufour. Sigler and Dufour would have sex with multiple partners, including Dufour`s brothers. While with Sigler, Dufour planned and executed a trip for the couple to Houston, Texas. Sigler did not know who had booked the plane tickets, reservations, or other arrangements, and there was no evidence presented as to how the tickets were purchased. However, Dufour was in possession of the tickets and navigated the airport, such as finding the correct gate and flight for the duo. He also made all ground transportation arrangements, including paying for the transportation. Further, Dufour ushered Sigler to the locations that he wanted to visit without consulting others.
Dufour presented testimony to establish that no property receipts or library records existed from Florida`s death row to indicate that Dufour utilized the library resources or engaged in intellectual and strategic games. In addition, a death row inmate testified that Dufour required assistance in writing inmate requests for canteen supplies and appeared to have very poor hygiene. For instance, the inmate testified that Dufour did not understand that he had to wash his clothes. Instead, Dufour assumed that the sweat from his workouts cleaned his clothing. However, the State presented testimony with regard to contrasting property receipts which established that while incarcerated, Dufour possessed items such as paperback books, playing cards, a traditional dictionary, and a bible dictionary.
Both defense experts, Dr. Keyes and Dr. McClain, concluded that Dufour was mentally retarded. Both state experts, Dr. Merin and Dr. McClaren, concluded that Dufour was
Following the evidentiary hearing, the circuit court concluded that Dufour did not establish by either clear and convincing evidence or a preponderance of evidence that he was mentally retarded. Dufour now appeals that decision.
Dufour challenges the circuit court`s determination that he is not mentally retarded in accordance with the definition set forth in Florida Rule of Criminal Procedure 3.203 and section 921.137(1), Florida Statutes (2005). In 2001, the Legislature enacted section 921.137, which barred the imposition of death sentences on the mentally retarded and established a method for determining which capital defendants are mentally retarded.
In response to this authority, this Court promulgated Florida Rule of Criminal Procedure 3.203, which specifies the procedure for presenting claims of mental retardation as a bar to a death sentence. The statute and rule are substantially similar with regard to the definition of mental retardation. Rule 3.203(b) provides:
When reviewing determinations of mental retardation, we examine the record for whether competent, substantial evidence supports the determination of the trial court.
Under Florida law, the first element of a mental retardation determination requires that the person exhibit "significantly subaverage general intellectual functioning," which is defined as "performance that is two or more standard deviations from the mean score on a standardized intelligence test" specified by the Department of Children and Family Services.
Dufour`s scores on the WAIS-III were as follows: Dr. McClain—(a) Verbal IQ - 68; (b) Performance IQ - 72 (c) Full Scale IQ - 67; Dr. McClaren—(a) Verbal IQ - 65; (b) Performance IQ - 65; (c) Full Scale IQ - 62; Dr. Merin`s original test scores—(a) Verbal IQ - 85; (b) Performance IQ - 64; (c) Full Scale IQ - 74. The circuit court determined that Dufour had not proven by clear and convincing evidence that he possesses significantly subaverage general intellectual functioning. The court noted that the results of the scores indicated that Dufour is at, or near, the mildly mentally retarded range. However, the court considered the scores in conjunction: "Taking Dr. McClain`s score of 67, which is approximately halfway between the scores of Dr. McClaren and Dr. Merin, the band of confidence still ranges from 62 to 72, with the upper range being above the Cherry cut-off score of 70." Further, the court noted that some test results suggested the possibility of malingering and that Dufour had reasonable motivation to perform poorly to avoid execution.
As to the weight of the expert testimony, the circuit court found that some testing irregularities had occurred with Dr. Merin. The court also found that the diagnoses of mental retardation by Drs. McClain and Keyes were not persuasive, and that Dr. McClain had discounted her own test results. The court considered that Dr. McClaren did not believe the validity of his own scoring results because the scores were contrary to the expected practice effect and Dufour did not appear to be making his best effort, due to either malingering or illness.
On appeal, Dufour advances somewhat inconsistent positions with regard to the application of
However, we find merit to Dufour`s first argument on this issue because the circuit court incorrectly applied the standard error of measurement to the IQ score that resulted from Dr. McClain`s evaluation of Dufour. Nothing in our prior precedent suggests that the plain language of the statute applies solely to capital defendants. As Dufour asserts, it would be unduly prejudicial for the statute to be interpreted to allow the State or the circuit court to benefit from the standard error of measurement but to prohibit the defendant from doing so.
In this posture, it is important to note that this Court cannot "reweigh the evidence or second-guess the circuit court`s findings as to the credibility of witnesses."
Despite our conclusion as to the intellectual functioning element, we affirm the circuit court`s determination that Dufour failed to establish that he demonstrates deficient adaptive functioning. As described in section 921.137(1) and rule 3.203(b), the term adaptive behavior "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." The definition in section 921.137 and Florida Rule of Criminal Procedure 3.203 states that the subaverage intellectual functioning must exist "concurrently" with adaptive deficits to satisfy the second prong of the definition, which this Court has interpreted to mean that subaverage intellectual functioning must exist at the same time as the adaptive deficits, and that there must be current adaptive deficits.
After considering the testimony of all the witnesses, the postconviction court found that Dufour failed to present by either clear and convincing evidence or a preponderance of the evidence that Dufour has deficits in adaptive behavior to a level necessary to support a finding of mental retardation. The circuit court accepted much of the factual evidence presented by Dufour, but determined that the evidence established that the reason for his behavior was the consequence of intense drug use and deplorable home conditions which included sexual and physical abuse. The circuit court`s consideration of an alternative explanation for Dufour`s adaptive behavior demonstrates that Dufour failed to meet his burden of proof.
In addition, competent, substantial evidence supports this conclusion. Virtually all of the witnesses testified with regard to Dufour`s extensive drug use. Dufour`s self-reporting in earlier psychological evaluations and the deposition testimony of Dufour`s family established that Dufour suffered from sexual abuse as a child and engaged in atypical sexual relationships from a young age. Dufour`s brothers testified as to the physical abuse Dufour suffered at the hands of his father. Moreover, testimony established that Dufour only attended high school to sell drugs, which provides an alternative explanation for his low grades. His father`s abuse, his family`s poverty, and his early substance abuse provided an explanation for Dufour`s poor performance in school. In sum, the circuit court determined that the teacher`s testimony with regard to Dufour`s grades did not outweigh or refute the alternative explanations for Dufour`s poor academic performance, nor did it sufficiently establish that this performance was attributable to mental retardation.
The postconviction court also considered that this Court upheld the circuit court`s finding of the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner. In
Additionally, there is significant conflict in the evidence with regard to Dufour`s adaptive behavior. For instance, Dufour advanced that he did not meet the standard of personal independence expected of his age, cultural group, and community because he had always been cared for by others and had never possessed the responsibility of handling bills. Conversely, the evidence with regard to Dufour`s independent actions in Mississippi demonstrated his proficiency to care for himself and his ability to engage in well thought-out actions to avoid arrest.
Further, Dufour asserted that his poor grades in elementary school established deficient adaptive functioning. However, prison records demonstrate that Dufour successfully achieved a GED diploma and assisted as an aide in a small engine repair course in addition to virtually organizing and developing the curriculum for a motorcycle repair course. With regard to his employment history, Dufour contended that he had never maintained meaningful employment for more than a few months. On the other hand, the State presented testimony which established that Dufour`s difficulty in maintaining employment was a result of his dissatisfaction with the type of positions he obtained. Furthermore, Dufour advanced that the absence of a chessboard in his prison property records indicated that he lacked the ability to engage in intellectual and strategic games. In contrast, the State presented evidence that while incarcerated, Dufour possessed items such as paperback books, playing cards, a traditional dictionary, and a bible dictionary. Accordingly, the conflicts in the evidence substantiate the determination of the circuit court that Dufour failed to satisfy his burden with regard to the adaptive behavior element.
In disagreeing with the circuit court`s determination that Dufour lacks a deficit in adaptive behavior, the dissent misdirects attention as to the manner in which a trial court should evaluate whether an individual has a deficit in adaptive behavior. The dissent ignores the direct evidence and places the focus in evaluating adaptive behavior exclusively on the individual`s alleged limitations, rather than evaluating the evidence fairly and impartially. In evaluating whether Dufour has a deficit in adaptive behavior, the dissent would not permit the circuit court to even consider the clear evidence that a deficit does not exist. If this Court adopted the dissent`s methodology and required trial courts to only consider a defendant`s limitations in determining a deficit, according to the dissent, the mere assertion of a limitation would be sufficient to produce a deficit. This would render the second prong of section 921.137`s definition of mental retardation automatically satisfied and, as a consequence, superfluous. By attempting to shift the focus to only Dufour`s alleged limitations in defining a deficit, the dissent also fails to recognize that the circuit court acted within its province as a fact-finder in determining that Dufour did not have a deficit in adaptive behavior. Specifically, in making its determination, the circuit court utilized the proper methodology of examining
Rule 3.203 mandates the circuit court`s methodology. That rule states that a trial court, as the fact-finder in deciding a motion to determine mental retardation, "shall conduct an evidentiary hearing on the motion for a determination of mental retardation." During that hearing, the trial court does not weigh a defendant`s strengths against his limitations in determining whether a deficit in adaptive behavior exists. Rather, after it considers "the findings of experts and
For example, here, the dissent points to witness testimony and the assessment of medical doctors in contending that Dufour has a deficit in adaptive behavior because of a profound inability to live independently in society. Specifically, the dissent points to allegations and opinions of Dufour`s limitations with regard to personal financial accounting, academic failures and menial jobs, and his failure to maintain personal-adult relationships. The dissent suggests further that Dufour has asserted limitations in communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. The dissent also highlights allegations of Dufour`s limitations with regard to reading and inadequacies in spelling and grammar as significant evidence of Dufour`s deficit in adaptive behavior.
The circuit court, however, in properly examining whether the evidence supported or rebutted Dufour`s alleged limitations, determined that a deficit in adaptive behavior did not exist. A deficit in adaptive behavior did not exist based on the evidence, and that evidence rebutted Dufour`s alleged limitations and the notion that Dufour has a deficit in adaptive behavior. Specifically, Dufour`s handling of the leasing of his apartment, payment of rent, administration of household chores, and daily maintenance of personal hygiene refuted that he has an inability to live independently in society. Dufour`s ability to live independently in society was also exemplified by the evidence showing his serving as an aide in an engine repair class in addition to virtually organizing and developing the curriculum for a motorcycle repair shop. Dufour`s preparing and executing lesson plans alone were reflective of his cogitative ability as a fully-functioning, contributing member of society.
Further rebutting Dufour`s alleged limitations was his work to secure a GED diploma. This refutes the notion that he has a deficit in literacy and an inability to communicate efficaciously in society. To obtain a GED diploma in Florida, an individual is required to successfully master an intensive seven-hour, five-part exam over a three-day period.
By successfully mastering this rigorous test, Dufour exhibited individual cognitive strengths that rebutted his asserted limitations of poor academic performance, difficulty reading, struggles with spelling and grammar, and inability to communicate and live independently in society. Dufour`s GED diploma is therefore clear evidence of how evidence of a personal strength rebuts an alleged limitation and is direct proof that a deficit in adaptive behavior does not exist in fact.
In addition, the circuit court concluded that Dufour failed to establish that he is mentally retarded by a preponderance of the evidence. Preponderance of evidence is defined as evidence "which as a whole shows that the fact sought to be proved is more probable than not."
Accordingly, we affirm the postconviction court`s order because competent, substantial evidence supports the circuit court`s determination that Dufour has failed to establish the adaptive behavior deficiency element of section 921.137 and rule 3.203. A defendant must establish all three of the elements and the failure to prove any single element results in a determination that the defendant is not mentally retarded.
Dufour asserts that the circuit court unconstitutionally applied the clear and convincing evidence standard in evaluating whether Dufour is mentally retarded. He advances that the decisions in
Dufour next contends that the circuit court improperly allowed a number of documents to be admitted into evidence and improperly allowed a former defense expert to testify for the State. In reviewing this issue, a circuit court`s admission of evidence will not be reversed absent an abuse of discretion.
However, we note two things. First, the postconviction court afforded judicial notice to the 2002 postconviction proceeding and certain letters within the court file. In Florida, a court may take judicial notice of various matters including "[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States." § 90.202(6), Fla. Stat. (2007). However, the fact that a record may be judicially noticed does not render all that is in the record admissible.
Furthermore, the manner in which documents were introduced through the expert testimony was problematic. The State introduced copious documents that the experts relied upon during their evaluation of Dufour and, during the expert testimony, projected these documents on a screen in the courtroom where the trier of fact (i.e., the judge in this bench proceeding) could view the entirety of the substance of the document. The documents came from many unidentified sources and included prior psychological evaluations, inmate grievance requests, multiple police reports, and evidence from the 2002 proceeding. Dufour challenged the use of these documents, asserting that the State was utilizing the expert witness as a conduit to introduce otherwise inadmissible evidence and that the State had not established a foundation for the documents' admissibility outside the fact that the documents were possibly consulted by the expert witness as a basis for an opinion. In addition, Dufour advanced that publishing the documents through the projector screen amounted to the documents' admission in open court for everyone to read without the proper predicate being established, and that the projection of the documents with altered highlighted portions constituted improper bolstering and leading.
In general, the challenged documents fell into the following categories: (1) those that had been admitted into evidence in the 2002 proceedings; (2) those that had been admitted during the course of the 2008 hearing; and (3) those that were introduced solely for identification and were not admitted into evidence. For the documents of which the court took judicial notice, the court expressly noted in its order that the documents from the 2002 hearing were not considered in its determination. Accordingly, the error, if any, in the admission of such evidence was harmless.
For the last set of documents, the postconviction court allowed the State to project the documents relied upon by Dr. McClaren onto a screen in the courtroom. In forming opinions, experts can rely on information which is not itself admissible, under section 90.704, Florida Statutes (2004), which provides:
Although experts may testify as to the things on which they rely, experts cannot bolster or corroborate their opinions with the opinions of other experts who do not testify because "[s]uch testimony improperly permits one expert to become a conduit for the opinion of another expert who is not subject to cross-examination."
Second, the continuous failure to state on the record the identification and exhibit numbers for evidence, along with the references to evidence from prior proceedings without any indication of its identifying information, created unnecessary hardship for this Court in conducting our review. Without an attorney`s diligence in creating a clear and comprehensible record, an appellate court is left to piece together the evidentiary record to properly review the proceeding. Thus, it is important for attorneys to ensure that the record reflects identifying information as to which piece of evidence is being referenced and addressed during the proceeding because an appellate court`s perspective of a proceeding is limited by the contents of the record.
Accordingly, we affirm the circuit court`s determination that Dufour has not established that he is mentally retarded.
It is so ordered.
LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.
CANADY, C.J., concurs in result.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
PARIENTE, J., concurring in part and dissenting in part.
The sole issue in this appeal concerns the propriety of the trial court`s determination that Dufour was not mentally retarded. Because of significant errors in the trial court`s evaluation of Dufour`s IQ and adaptive functioning, we should remand to the trial court for a reevaluation of the evidence regarding the IQ and adaptive functioning prongs using the correct legal standards. In our emerging jurisprudence on the evaluation of mental retardation in connection with the death penalty, we must be certain that we are utilizing objective and scientifically acceptable measures for evaluation of both IQ and deficits in adaptive behavior.
I therefore agree with the majority that the trial court erred in its evaluation of Dufour`s IQ and that this error is not harmless beyond a reasonable doubt. I disagree, however, that we should affirm based on the failure of Dufour to prove deficits in adaptive behavior because, as discussed below, the trial court made three significant errors when analyzing this prong.
As to the trial court`s error in evaluating the IQ, the trial court accepted Dr. McClain`s score of 67 as the most reliable but then applied the standard error of measure to the score,
Although I agree that there may be cases where we could affirm the trial court based on findings on adaptive functioning alone, I do not agree that this is one of those cases. In this case, there is reason to question the trial court`s evaluation of adaptive functioning because the trial court failed to focus on "deficits" in adaptive behavior, failed to properly evaluate Dr. Keyes' objective testimony of deficits in adaptive behavior, and rejected the evidence relating to deficits in adaptive behavior based on an "alternative explanation" for the deficits. I will explain each of my concerns in turn.
In my view, the trial court first erred by failing to focus on Dufour`s established "deficits in adaptive behavior." In other words, the focus in evaluating adaptive behavior should be on the individual`s limitations, rather than his or her demonstrated adaptive skills. This proposition is supported both by the American Association on Intellectual and Developmental Disabilities' (AAIDD) definition of mental retardation, as well as the language of section 921.137, Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.203.
In stating that the focus is on an individual`s limitations, I do not mean that a court is precluded from reviewing the full picture or considering whether a deficit does or does not exist. In fact, courts must review
Section 921.137(1) defines adaptive behavior as "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." § 921.137(1), Fla. Stat. (2006). For the purpose of implementing the adaptive behavior prong, since the enactment of the statute, Florida courts have adopted the analytic framework set forth in
In finding that Dufour is not mentally retarded based on his failure to establish deficits in adaptive behavior, the trial court relies significantly on the adaptive skills Dufour
This approach to assessing adaptive behavior is at odds not only with the statutory definition itself but also with the current consensus within the scientific community as to the proper method for assessing adaptive behavior in the criminal justice context. Specifically, the AAIDD and the DSM-IV stress that the focal point of adaptive behavior should be on the individual`s limitations rather than demonstrated adaptive skills. An important reason for this policy is that "[t]he skills possessed by individuals with mental retardation vary considerably, and the fact that an individual possesses one or more that might be thought by some laypersons as inconsistent with the diagnosis (such as holding a menial job, or using public transportation) cannot be taken as disqualifying." James W. Ellis,
The AAIDD, in its amicus brief to this Court, explains that the significant limitations in adaptive behavior must be based on objective measurements and not weighed against adaptive strengths. The purpose of the adaptive functioning prong is to ascertain whether the measured intellectual score reflects a real-world disability, as opposed to a testing anomaly. Thus for this prong, the diagnostician`s focus must remain on the presence of confirming deficits. Accordingly, the AAIDD has specifically noted that "assessments must . . . assume that limitations in individuals often coexist with strengths, and that a person`s level of life functioning will improve if appropriate personalized supports are provided over a sustained period." Am. Ass`n on Intellectual & Developmental Disabilities,
The failure to take an objective approach to deficits in adaptive behavior can result in the perpetuation of misunderstanding mental retardation. In
In this case, the trial court likewise erred in failing to properly evaluate Dr. Keyes' objective testimony in regard to deficits in adaptive functioning. Although the trial court stated that Dr. Keyes provided a "great deal of substantive information about mental retardation" and found that his opinion was entitled to moderate weight and was "very useful in arriving at a legal conclusion," these findings are in seeming contradiction to the trial court`s ultimate findings that the defendant failed to produce sufficient evidence that his adaptive behavior is impaired to the degree necessary to support a finding of mental retardation, either under the clear and convincing standard or under the preponderance of the evidence standard. The trial court does not explain whether it found the State`s expert witnesses to be more credible on the topic of adaptive behavior. Further, the trial court does not appear to provide an underlying reason for discounting any of Dufour`s lay and expert witness testimony regarding adaptive behavior.
In this regard, there was significant evidence supporting a claim of deficits in adaptive functioning. Dr. Keyes conducted adaptive functioning testing on Dufour and as part of the assessment, interviewed Dufour, two inmates on death row whose cells were adjacent to Dufour`s, and two individuals who knew Dufour prior to the age of 18. On the tests administered by Dr. Keyes, Dufour ultimately scored more than two standard deviations below the mean on the General Adaptive Composite, which is consistent with mental retardation. Further, various witnesses established that Dufour never lived alone, always relied on others for help and support, was not in charge of paying bills, never held a job for more than a few months, and never had a checking account, and that the jobs he did hold were menial, he was easily led around and influenced by others, and he was always more comfortable playing with children. Even State witness Dr. McClaren agreed that Dufour`s history of academic failure and menial jobs, along with his history of poor relationships, could be consistent with a diagnosis of mental retardation. The evidence demonstrates that Dufour has significant adaptive functioning limitations in communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work.
The testimony also established that Dufour demonstrated "abysmal" academic performance in school. He failed kindergarten and had to repeat second grade. He never passed second grade, but instead was "placed" for the remainder of elementary school. Dufour was also in the lowest level of classes, i.e., basic. Dufour`s basic English teacher in seventh grade, Joyce Jones, described Dufour`s mental abilities as below average and thought he was "very possibly" mentally retarded. She also described him as immature, "like a little kid." She did not remember Dufour having any friends. Dufour did not graduate from vocational technical school. Further, evidence demonstrated that Dufour has difficulty with spelling, punctuation, and grammar and reads at a basic level.
While there is evidence that Dufour learned to perform small-engine repair while incarcerated, even the State`s expert witness Dr. Merin acknowledged that people with mental retardation can also be taught carpentry skills, how to fix complex items, work in a stockroom, and drive an automobile. While I acknowledge evidence that the defendant obtained his GED is relevant to the court`s inquiry, this fact alone does not eliminate a finding that Dufour was mentally retarded, especially in light of his overall academic performance and his uncontroverted significantly subaverage IQ of under 70.
Finally, and importantly, the trial court committed a significant error in its analysis of this prong by rejecting the deficits in adaptive behavior based on an "alternative explanation" for the deficits. Specifically, the trial court found any deficits in Dufour`s adaptive behavior were not caused by mental retardation, but were the consequence of intense drug use and his "deplorable home environment." The majority perpetuates the error by accepting these findings. Contrary to the trial court and the majority, nothing within the plain language of section 921.137 or rule 3.203 requires proof as to the causation of deficits in adaptive functioning— only that the defendant has such deficits. In determining whether a defendant has shown mental retardation, this Court is confined to the statutory definition of "mental retardation" and is not at liberty to add additional requirements or exceptions to the definition.
Nothing within the statutory requirements or within the clinical definition of mental retardation supports the theory that determining the cause of the deficits is a part of the inquiry in determining mental retardation. Moreover, the trial court does not rely on any expert opinion to support its conclusion that alternative explanations can disqualify a person who otherwise would be considered mentally retarded based on meeting each prong in the statutory definition of the term.
The statute and rule define mental retardation as a condition that meets the above three prongs, without specifying the origin of the disability.
Specifically, there was evidence that after he was born, Dufour suffered from traumatic brain damage from an unidentified source, lacked adequate stimulation, was abused as a child, and suffered multiple head injuries, both before and after the age of 18. Further, Dufour started using alcohol and drugs at very young age, including inhaling toluene or glue at the age of ten. In other words, his "deplorable home environment" and intense drug use may have been contributing factors to his mental retardation, but those risk factors are not a basis to reject a finding of mental retardation.
The Eighth Amendment`s protection against execution afforded to mentally retarded individuals does not depend on the cause of the mental retardation. Further, a trial court`s approach relating to alternative explanations has the potential to place a significant and unnecessary roadblock in front of a defendant who is attempting to establish mental retardation. A capital defendant who attempts to establish that he is mentally retarded may have multiple risk factors for mental retardation in his or her background such as abusive childhood (with physical and sexual abuse), lack of childhood stimulation (including abandonment and neglect by parents), and substance abuse. The linchpin for the deficits in adaptive behavior and significantly subaverage IQ is that both of these prongs must have been manifested before the age of 18. The cause of the deficits in adaptive behavior is not part of the inquiry as long as the defendant can prove he meets all three prongs.
In conclusion, I believe that this Court would be well-served in remanding this case for a reevaluation of the evidence presented so that we can be assured that findings regarding mental retardation are based on solid, scientifically acceptable explanations. While it may very well be that the totality of the circumstances supports a finding that Dufour is not mentally retarded, this review should occur after the trial court reevaluates the IQ and adaptive behavior prongs. Therefore, for the reasons expressed above, I would remand for a reevaluation of the evidence by the trial court.
QUINCE, J., concurs.
