from St. Clair Circuit Court (CC-09-242)
Remand from the Supreme Court of the United States
WINDOM, PRESIDING JUDGE.
Jermaine Carroll's cause is before this Court on remand
from the Supreme Court of the United States. Carroll was
convicted of two counts of capital murder for intentionally
taking the life of Michael Turner after having been convicted
of another murder within the preceding 20 years, see
§ 13A-5-40(a)(13), Ala. Code 1975, and for intentionally
taking the life of Turner while Carroll was under a sentence
of life in prison, see § 13A-5-40(a)(6), Ala.
Code 1975. Carroll was sentenced to death for each
capital-murder conviction. On August 14, 2015, a majority of
this Court affirmed Carroll's capital-murder convictions
and sentences of death. See, Carroll v.
State, 215 So.3d 1135 (Ala.Crim.App.2015).
trial and on appeal, Carroll argued, among other things, that
he was exempt from a sentence of death under the Supreme
Court's holding in Atkins v. Virginia, 536 U.S.
304 (2002), because he is intellectually
disabled. In Atkins, the Supreme Court of
the United States held that the execution of
intellectually-disabled capital offenders violates the Eighth
Amendment's prohibition of cruel and unusual punishment.
The Court, however, declined to establish a national standard
for determining whether a capital offender is intellectually
disabled and, instead, left to the States "'the task
of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.'"
Id. at 317 (quoting Ford v. Wainwright, 477
U.S. 399, 416-17 (1986)). The Alabama Legislature has not yet
established a method for determining whether a capital
defendant is intellectually disabled and, thus, ineligible
for a sentence of death. "However, the Alabama Supreme
Court, in Ex parte Perkins, 851 So.2d 453 (Ala.
2002), adopted the most liberal definition of [intellectual
disability] as defined by those states that have legislation
barring the execution of a[n] [intellectually disabled]
individual." Byrd v. State, 78 So.3d 445, 450
(Ala.Crim.App.2009) (citations and quotations omitted);
see also Smith v. State, 213 So.3d 239, 248 (Ala.
2007) ("Until the legislature defines [intellectually
disabled] for purposes of applying Atkins, this
Court is obligated to continue to operate under the criteria
set forth in Ex parte Perkins."). Under Ex
parte Perkins, "to be considered [intellectually
disabled, a capital defendant] must have significantly
subaverage intellectual functioning (an IQ of 70 or below),
and significant or substantial deficits in adaptive
behavior." Ex parte Perkins, 851 So.2d at 456;
see also Atkins, 536 U.S. at 321 n.5.; Holladay
v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009)
("According to literature in the field, significant or
substantial deficits in adaptive behavior are defined as
'concurrent deficits or impairments in present adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction,
functional academic skills, work, leisure, health and
safety.' American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, 39 (4th ed.
1994)."). Further, "these [two deficits] must have
manifested themselves during the developmental period (i.e.,
before the defendant reached age 18)." Ex parte
Perkins, 851 So.2d at 456; Brownlee v. Haley,
306 F.3d 1043, 1073 (11th Cir. 2002) (recognizing that
intellectual disability generally requires a showing of an IQ
of 70 or below, significant limitations in adaptive skills,
and the manifestation of these 2 deficits during the
developmental years). "Therefore, in order for an
offender to be considered [intellectually disabled] in the
Atkins context, the offender must currently exhibit
subaverage intellectual functioning, currently exhibit
deficits in adaptive behavior, and these problems must have
manifested themselves before the age of 18." Smith
v. State, 213 So.3d 239, 248 (Ala. 2007); see also
Byrd, 78 So.3d at 450 (same); cf. Ex parte
Perkins, 851 So.2d at 456 (holding that Perkins was not
intellectually disabled because, among other reasons,
Perkins's full-score adult IQ was 76).
the context of an Atkins claim, the defendant has
the burden of proving by a preponderance of the evidence that
he or she is [intellectually disabled].'"
Byrd, 78 So.3d at 450 (quoting Smith, 213
So.3d at 252). "The question of [whether a capital
defendant is intellectually disabled] is a factual one, and
as such, it is the function of the factfinder, not this
Court, to determine the weight that should be accorded to
expert testimony of that issue." Byrd, 78 So.3d
at 450 (citations and quotations omitted). As the Alabama
Supreme Court has explained, questions regarding the weight
and credibility of evidence are better left to the circuit
courts, "'which [have] the opportunity to personally
observe the witnesses and assess their
credibility.'" Smith v. State, 213 So.3d at
253 (quoting Smith v. State, 213 So.3d 226, 239
(Ala.Crim.App.2003) (Shaw, J., dissenting) (opinion on return
to third remand)). "This court reviews the circuit
court's findings of fact for an abuse of
discretion." Byrd, 78 So.3d at 450 (citing
Snowden v. State, 968 So.2d 1004, 1012
(Ala.Crim.App.2006)). "'"'"A judge
abuses his discretion only when his decision is based on an
erroneous conclusion of law or where the record contains no
evidence on which he rationally could have based his
decision."'"'" Byrd, 78 So.3d
at 450-51 (quoting Hodges v. State, 926 So.2d 1060,
1072 (Ala.Crim.App.2005), quoting in turn State v.
Jude, 686 So.2d 528, 530 (Ala.Crim.App.1996), quoting in
turn Dowdy v. Gilbert Eng'g Co., 372 So.2d 11,
12 (Ala. 1979), quoting in turn Premium Serv. Corp. v.
Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir.
August 14, 2015, this Court applied these principles and held
that the circuit court did not abuse its discretion by
rejecting Carroll's assertion that he was intellectually
disabled. Carroll v. State, 215 So.3d 1135, 1147-53
(Ala.Crim.App.2015). On March 28, 2017, well after this Court
had decided Carroll, the Supreme Court of the United
States issued its opinion in Moore v. Texas, U.S.,
137 S.Ct. 1039, 1044 (2017), which held that the Texas Court
of Appeals had erroneously ignored prevailing medical
standards and applied its own definition of intellectually
disabled to determine that a death-row inmate was not exempt
from the death penalty under Atkins. On May 1, 2017,
the Supreme Court of the United States vacated this
Court's decision in Carroll and remanded the
cause for further consideration in light of Moore.
Moore, the Supreme Court reiterated that the
"generally accepted, uncontroversial
intellectual-disability diagnostic definition, ... identifies
three core elements: (1) intellectual-functioning deficits
(indicated by an IQ score 'approximately two standard
deviations below the mean' -- i.e., a score of roughly 70
--adjusted for 'the standard error of measurement, '
AAIDD-11, at 27); (2) adaptive deficits ('the inability
to learn basic skills and adjust behavior to changing
circumstances, ' Hall v. Florida, 572 U.S.__,
__, [134 S.Ct. 1986');">134 S.Ct. 1986, 1994, 188 L.Ed.2d 1007] (2014)); and (3)
the onset of these deficits while still a minor. See
App. to Pet. for Cert. 150a (citing AAIDD-11, at 1). See
also Hall, 572 U.S., at __[, 134 S.Ct., at 1993-1994].
Moore, __U.S. at__, 137 S.Ct. at 1045. The Court
went on to explain that, "[a]lthough [it] left to the
States 'the task of developing appropriate ways to
enforce' the restriction on executing the intellectually
disabled, 572 U.S., at __[, 134 S.Ct. at 1998] (quoting
Atkins, 536 U.S. at 317), States' discretion,
... is not 'unfettered, ' 572 U.S., at __[, 134 S.Ct.
at 1998]." Moore, __U.S. at __137 S.Ct. at
1048. Rather, "the determination must be 'informed
by the medical community's diagnostic
framework.'" Id. (quoting Hall,
572 U.S.__, 134 S.Ct. at 2000).
Court held that, consistent with the "medical
community's diagnostic framework, " courts tasked
with determining whether a defendant exhibits
intellectual-functioning deficits must consider the
"standard error or measurement." Moore,
U.S. at, 137 S.Ct. at 1049. To that end, the Court,
"instructs that, where an IQ score is close to, but
above, 70, courts must account for the test's
'standard error of measurement.' See
[Hall], at 134 S.Ct., at 1995, 2001. See also
Brumfield v. Cain, 576 U.S.__, __[, 135 S.Ct. 2269,
2278, 192 L.Ed.2d 356] (2015) (relying on Hall to
find unreasonable a state court's conclusion that a score
of 75 precluded an intellectual-disability finding). As we
explained in Hall, the standard error of measurement
is 'a statistical fact, a reflection of the inherent
imprecision of the test itself.' 572 U.S., at __[, 134
S.Ct., at 1995]. 'For purposes of most IQ tests, '
this imprecision in the testing instrument 'means that an
individual's score is best understood as a range of
scores on either side of the recorded score ... within which
one may say an individual's true IQ score lies.'
Id., at __[, 134 S.Ct., at 1995]. A test's
standard error of measurement 'reflects the reality that
an individual's intellectual functioning cannot be
reduced to a single numerical score.' Ibid. See also
id., at __-__[, 134 S.Ct., at 1995]; DSM-5, at 37;
AAIDD, User's Guide: Intellectual Disability: Definition,
Classification, and Systems of Supports 22-23 (11th ed. 2012)
(hereinafter AAIDD-11 User's Guide)."
Moore, __U.S. at__, 137 S.Ct. at 1049. Thus, with a
standard error of measurement of 5, an IQ "score of 74,
adjusted for the standard error of measurement, yields a
range of 69 to 79." Moore, 137 S.Ct. at 1049.
"Because the lower end of [the] score range falls at or
below 70, [courts must] move on to consider ... adaptive
adaptive functioning, the Court held that States may not
adopt factors that reflect "superseded medical
standards" or that substantially deviate from prevailing
clinical standards. See Id. at, 1050. For instance,
courts should ...