SC09-2200 – State of Florida v. Ted Herring

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State: Florida

Docket No: SC09-2200

Case Date: 10/06/2011

Preview:Supreme Court of Florida
____________ No. SC09-2200 ____________ STATE OF FLORIDA, Appellant, vs. TED HERRING, Appellee. [October 6, 2011] CORRECTED OPINION PER CURIAM. This case is before the Court on appeal from an order granting Ted Herring's motion to vacate his sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction under article V, section 3(b)(1) of the Florida Constitution. For reasons outlined below, we reverse the circuit court's order granting Herring's motion to vacate his sentence of death. I. FACTS AND PROCEDURAL HISTORY In May 1981, Ted Herring shot and killed a convenience store clerk during a robbery in Daytona Beach, Florida. Herring was subsequently tried and convicted

of armed robbery and first-degree murder. By a vote of eight to four, the jury recommended a sentence of death, which the trial judge followed. The trial court found four aggravating factors: Herring had previously been convicted of a violent felony; the murder was committed during the commission of a robbery; the murder was committed to prevent arrest; and the murder was committed in a cold, calculated and premeditated manner (CCP). The trial court also found two mitigating circumstances: Herring had a difficult childhood and suffered from learning disabilities; and Herring was nineteen years old at the time of the crime. See Herring v. State, 446 So. 2d 1049, 1053 (Fla. 1984). On appeal, this Court affirmed the convictions and the death sentence. Id. at 1058. 1 This Court has also issued a number of opinions addressing various postconviction challenges to Herring's conviction and death sentence. In each instance, we have upheld the death sentence and denied Herring postconviction relief.2 Herring's petition for federal habeas relief was also denied by the United

1. We subsequently struck down the application of the CCP aggravating circumstance. See Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987) (receding from holding in Herring that facts were sufficient to show heightened premeditation required for the application of CCP where there was no careful plan or prearranged design). However, we concluded that the elimination of the CCP factor did not "compromise the weighing process of either the judge or jury" and a new sentencing hearing was not required. Herring v. State, 580 So. 2d 135, 138 (Fla. 1991). 2. See Herring v. State, 730 So. 2d 1264 (Fla. 1998) (affirming denial of postconviction motion alleging that Herring received ineffective assistance of -2-

States District Court for the Middle District of Florida.3 This is the first time that the question of Herring's status as a person with mental retardation has been raised in any proceeding. After the United States Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304 (2002), holding that the execution of a person with mental retardation is cruel and unusual punishment in violation of the Eighth Amendment, Herring filed a postconviction motion in June 2003, in which he claimed that he is a person with mental retardation. The circuit court determined that an evidentiary hearing was necessary to make this determination. In November 2005, the circuit court conducted a two-day evidentiary hearing where three mental health experts were called to testify as to Herring's intellectual functioning. The State called Dr. Greg Pritchard and Dr. Harry McClaren, both clinical psychologists in forensic private practice. The defense presented testimony from Dr. Wilfred van Gorp, a counsel due to a conflict of interest between defense counsel's status as a special deputy sheriff and his responsibilities as Herring's attorney); Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996) (remanding several consolidated cases, including Herring's, for an evidentiary hearing on a conflict of interest claim); Herring v. State, 580 So. 2d 135 (Fla. 1991) (remanding for an evidentiary hearing on a conflict of interest issue, but affirming the death sentence despite striking down the CCP aggravator); Herring v. Dugger, 528 So. 2d 1176 (Fla. 1988) (denying writ of habeas corpus on ineffective assistance of appellate counsel claim); Herring v. State, 501 So. 2d 1279 (Fla. 1987) (affirming summary denial of initial postconviction motion). 3. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338 (11th Cir. 2005) (affirming denial of Herring's federal habeas petition).

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professor of clinical psychology at Columbia University and a neuropsychologist. While both State experts opined that Herring did not satisfy the diagnostic criteria for mental retardation, Dr. van Gorp testified that Herring did meet the criteria necessary to classify him as a person with mental retardation. During the evidentiary hearing, the results of four intelligence quotient (IQ) tests that had been administered to Herring between the ages of eleven and fortytwo were submitted as evidence of his general intellectual functioning ability. The scores of all four tests fell at or around the range of 70-75.4 The circuit court concluded that this range was consistent with a diagnosis of mental retardation and issued an order vacating Herring's death sentence. The court reasoned that Herring met all three prongs of the standard for mental retardation as articulated in Florida Rule of Criminal Procedure 3.203(b) and the American Psychiatric Association's 4. Herring scored a full scale score of 83 on the Wechsler Intelligence Scale for Children (WISC) that was administered in 1972. He received a full scale score of 81 on the WISC administered in 1974. A WISC-Revised administered in 1976 resulted in a score of 72. Herring's most recent IQ test, the Wechsler Adult Intelligence Scale-Third Edition, was administered by Dr. McClaren in 2004 and yielded a full scale score of 74. Dr. van Gorp testified that the results of the two WISC tests conducted in 1972 and 1974 should be adjusted to account for the "Flynn effect," which posits that the intelligence of the population increases over time. To obtain an accurate score in light of the Flynn effect, .311 points must be deducted from the measured score for each year between the test's administration and its date of publication in 1949. After accounting for the Flynn effect, Dr. van Gorp testified that Herring's adjusted IQ scores were 76 and 74. We make no judgment as to the efficacy of adjusting for the Flynn effect because it is not relevant in this case. Even when Herring's IQ scores are adjusted, the scores do not fall below 70.

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Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). The three prongs include (1) significantly subaverage general intellectual functioning existing concurrently with (2) deficits in adaptive behaviors (3) that are manifested prior to age eighteen. The State argues that the circuit court's holding that Herring was mentally retarded is wrong as a matter of law because it ignores this Court's precedent requiring a defendant to demonstrate an IQ score of 70 or less in order to meet the criteria of "significantly subaverage general intellectual functioning." The State notes that the circuit court found Herring's IQ to be approximately 75, which means that as a matter of law Herring is not entitled to the relief granted. According to the State, the circuit court erroneously reasoned that Zack v. State, 911 So. 2d 1190 (Fla. 2005), does not impose a bright-line cut off score of 70 for a finding of mental retardation under Florida law and that the circuit court failed to even address recent decisions of this Court which are in direct conflict with the circuit court's finding. Herring asserts that the trial court's determination that he is a person with mental retardation is a factual finding supported by competent, substantial evidence and that the State has no right to appeal this finding. Herring argues that the State is asking this Court to reweigh the evidence and reassess the credibility and opinions of the expert witnesses. Herring contends that his case is

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distinguishable from previous cases because the State agreed that the DSM-IV-TR, which does not impose a bright-line IQ score to make a determination that an individual is mentally retarded, 5 would govern. He further contends that it is unconstitutional to impose such an IQ cutoff because it permits the execution of mentally retarded persons in violation of Atkins. The only issue presented for our review is whether the facts support the trial court's legal conclusion that Herring has established the first prong of the mental retardation standard, i.e., significantly subaverage general intellectual functioning. Such legal conclusions are subject to de novo review by this Court. See Cherry v. State, 959 So. 2d 702, 712 (Fla. 2007). II. ANALYSIS In Atkins, the United States Supreme Court held it unconstitutional to execute a mentally retarded person. However, the Supreme Court relegated to the states the task of determining specific rules for who can be classified as mentally retarded. See Atkins, 536 U.S. at 317 ("[W]e leave to the State[s] the task of

5. The American Psychiatric Association's definition provides that "[t]he essential feature of Mental Retardation is significantly subaverage general intellectual functioning . . . that is accompanied by significant limitations in adaptive functioning in at least two . . . skill areas . . . [and] [t]he onset must occur before age 18 years." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). The DSM-IV-TR further provides that a score of "about 70 or below" constitutes significantly subaverage intellectual functioning. Id.

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developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.") (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). Prior to the Supreme Court's decision in Atkins, the Florida Legislature enacted section 921.137, Florida Statutes, in 2001. This statute exempts mentally retarded persons from the death penalty and provides a method for establishing whether a capital defendant is mentally retarded.6 In accordance with section 921.137 and in response to Atkins, this Court adopted Florida Rule of Criminal Procedure 3.203 in 2004. This rule explicitly addresses mental retardation as a bar to the imposition of the death penalty and effectively parallels the language in section 921.137(1). See Amendments to Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro., 875 So. 2d 563 (Fla. 2004). Florida Rule of Criminal Procedure 3.203(b) essentially mirrors the statutory definition and provides that the term "significantly subaverage general intellectual functioning" means "performance that is two or more standard deviations from the

6. Section 921.137(1) provides the mental retardation means "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." Unlike the DSM-IV-TR, however, the statute does not specify an IQ range for determining the "significantly subaverage general intellectual functioning" prong. Instead, section 921.137(1) specifies that the term means "performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities."

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mean score on a standardized intelligence test authorized by the Department of Children and Family Services." In light of rule 3.203(b) and section 921.137, this Court has consistently held that in order for a defendant to be exempt from the death penalty based upon a claim of mental retardation, he must bear the burden of establishing all three criteria of the three-prong standard. See Jones v. State, 966 So. 2d 319, 325 (Fla. 2007); Burns v. State, 944 So. 2d 234, 245 (Fla. 2006). Further, a defendant must prove each of the three elements by clear and convincing evidence. See

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