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2006-0295. State v. White, Slip Opinion No. 2008-Ohio-1623.
Summit App. No. 22591, 2005-Ohio-6990. Judgment reversed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Toole, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Colleen Mary O'Toole, J., of the Eleventh Appellate District, sitting for O'Connor, J.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1623.pdf
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(April 9, 2008) The Supreme Court of Ohio today granted a petition for post-conviction relief and vacated the death sentence of Clifton White III of Akron. Ruling that White is mentally retarded and therefore ineligible for the death penalty, the Court remanded his case to the Summit County Court of Common Pleas for resentencing under the statutory guidelines for non-capital cases of aggravated murder.
In a 7-0 decision written by Justice Robert R. Cupp, the Court held that expert testimony at White’s postconviction hearing established all three standards of retardation set forth in the Court’s 2002 decision in State v. Lott, and found that the Summit County Court of Common Pleas abused its discretion when it disregarded objective test results and the opinions of two psychologists who had examined White and relied instead on anecdotal testimony of a lay witness and the judge’s own beliefs about retardation.
White was convicted of aggravated murder and sentenced to death for the December 1995 shotgun slaying of Deborah Thorpe, the mother of Michael Thorpe, who had begun dating White’s former girlfriend, Heather Kawczk. White also was convicted of shooting and killing Kawczk’s mother and shooting and wounding Michael Thorpe, who intervened when White confronted Heather at gunpoint at her place of employment shortly after killing the other victims.
In 2002, while White was pursuing post-conviction relief in federal court, the U.S. Supreme Court ruled in Atkins v. Virginia that the 8th Amendment to the U.S. Constitution prohibits the execution of mentally retarded persons as cruel and unusual punishment. Later that year, the Supreme Court of Ohio in State v. Lott established criteria and procedures to be applied by Ohio courts in reviewing Atkins mental retardation claims asserted by Ohio offenders who were under death sentences. Under Lott, a petitioner is required to show by a preponderance of the evidence: “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset (of the intellectual and adaptive limitations) before the age of 18.”
White filed a new post-conviction petition asserting that he is mentally retarded and therefore not eligible for execution. Pursuant to Lott, the Summit County Court of Common Pleas appointed experts and conducted an evidentiary hearing on White’s claim. At that hearing, both the expert psychologist selected by the state and the expert psychologist selected by the defense testified that, based on their examinations of White, the results of scientific tests and information they gathered from persons who had known and interacted with White, he met the three Lott criteria for classification as mentally retarded.
Notwithstanding the testimony of the expert witnesses, however, the trial court held that White had not established by a preponderance of the evidence that he was retarded, and denied his petition for relief from his death sentence. In its opinion, the trial court agreed that White’s low scores on intelligence tests met the “subaverage intellectual functioning” test in Lott, but held that White had not presented evidence sufficient to establish a significant lack of adaptive skills or the onset of his limitations prior to age 18, and therefore failed to meet the second and third parts of the Lott test. On review, the 9th District Court of Appeals held that the trial court did not abuse its discretion in rejecting as insufficient the evidence White presented to establish his lack of adaptive skills. White sought Supreme Court review of the lower courts’ decisions, and the justices agreed to hear his appeal.
In today’s decision overturning the rulings of the trial court and 9th District, Justice Cupp noted that the expert psychologists retained by the defendant and by the state, Dr. David Hammer and Dr. John Fabian, had jointly administered a widely used evaluation tool called the Scales of Independent Behavior – Revised (SIB-R) to measure White’s ability to independently perform a number of day-to-day living activities. He pointed out that both experts testified at White’s post-conviction hearing that White’s SIB-R scores, combined with the other information they had reviewed, led them to conclude that he suffered from “significant limitations” in adaptive skills and in their opinions clearly met the second part of the Lott test.
“The expert opinions of Drs. Hammer and Fabian were based substantially on the SIB-R. Both experts considered the SIB-R to be a valid tool for measuring adaptive skills. In their testimony, Drs. Hammer and Fabian described the SIB-R as ‘well developed,’ ‘mainstream,’ well standardized, useful, and reliable. Undisputed evidence at the hearing showed that the SIB-R was based on extensive empirical research,” wrote Justice Cupp. “Nevertheless, the trial court rejected the results of the SIB-R. The trial court questioned the results in part because, in scoring the test, Dr. Hammer had utilized information provided by White himself. However, Dr. Hammer estimated that ‘probably less than 10 percent’ of his information came from White. Moreover, he did not use information provided by White as his sole basis for scoring any of the items on the SIB-R. Furthermore, the record does not demonstrate that it is necessarily improper to use the person being evaluated as an informant on the SIB-R. ... Hence, the record lends no support to the trial court’s apparent belief that using White as an informant for the SIB-R compromised the validity of the diagnosis of mental retardation reached by the experts in this case.”
Justice Cupp also noted that in concluding that White failed to prove significant adaptive limitations, the trial court “relied heavily” on the testimony of White’s ex-girlfriend, Heather Kawczk. “Kawczk testified that White purchased a used truck and helped her when she purchased a used car. When he drove, White obeyed traffic rules. When White decided to rent an apartment, he signed a lease and made a deposit. White also directed Kawczk to conceal from the landlord that she was living there with him. Kawczk testified that White had taught her to play Spades, a card game, and a fast-moving card game called ‘Speed.’ He also played basketball and ‘Mortal Kombat,’ a fast-paced video game, which he won about half the time. He could cook bacon and eggs and heat refrigerated chicken wings in the oven.”
While the trial court found this testimony contradictory to the expert evidence regarding White’s adaptive limitations, Justice Cupp wrote: “According to the undisputed testimony of the expert witnesses in this case, the facts stated in Kawczk’s testimony are in no way inconsistent with mild mental retardation. The mentally retarded are not necessarily devoid of all adaptive skills. Indeed, ‘they may look relatively normal in some areas and have certain significant limitations in other areas.’ Mildly retarded persons can play sports, write, hold jobs, and drive. ... For example, the trial court’s opinion mentions twice that White was a licensed driver. However, Dr. Hammer testified that a mildly retarded individual can qualify for a driver’s license and that licensed-driver status is not a good criterion for distinguishing between people who are and are not retarded.”
“Similarly, the trial court found that White ‘was adept at video games, including ... “Mortal Kombat.”’ It is not clear, however, what relevance White’s video-game skills have to mental retardation. Dr. Hammer testified that Mortal Kombat ‘doesn’t require a lot of planning [or] strategizing’ and can be played by children younger than ten. ... We conclude that the trial court abused its discretion when it determined that
White had failed to prove the existence of significant adaptive-skills limitations. In this case, the trial court failed to set forth any rational basis grounded in the evidence for rejecting the uncontradicted testimony of two qualified expert witnesses in the field of psychology.”
Having found that White met his burden of proof on the first two parts of the Lott test, the Court went on to review and reject the trial court’s finding on the third criterion – which was that White failed to demonstrate that his intellectual and adaptive deficits were present prior to the age of 18. While the trial court found that White had not affirmatively proved onset before age 18, Justice Cupp found that conclusion to be based almost entirely on the absence of scientific test results because White had not been given either an IQ or an adaptive skills test before age 18.
Justice Cupp pointed out that Drs. Hammer and Fabian had reviewed White’s academic record dating back to middle school and other available evidence, and had stated in their hearing testimony the opinion that his repeated class failures, below-grade-level scores on the California Achievment Test in eighth grade and ultimate inability to master 10th grade classes despite being held back twice supported a finding that his current intellectual and developmental problems had been present prior to age 18.
In the absence of any evidence that White had suffered a brain injury since turning 18 that would account for his current intellectual and adaptive limitations, Justice Cupp wrote: “We think the trial court, by rejecting well-supported expert opinion regarding pre-18 onset without any evidence to the contrary, abused its discretion. The trial court gave too much weight to the fact that White’s adaptive skills were never tested before age 18. As Dr. Hammer explained in his testimony, such testing will often not have taken place, particularly in cases of mild mental retardation.”
While noting that a trial court “is not required to automatically accept expert opinions offered from the witness stand,” Justice Cupp wrote: “(E)xpert opinion ‘may not be arbitrarily ignored’ ... While the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of lay witnesses or the court’s own expectations of how a mentally retarded person would behave. Doing so takes an arbitrary, unreasonable attitude to the evidence before the court and results in an abuse of discretion.”
Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer, Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger, and by Judge Colleen Mary O’Toole, of the 11th Appellate District, sitting for Justice Maureen O’Connor.
Contacts
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.
Kathryn L. Sandford, 614.644.1604, for Clifton White III.