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Ex parte Carroll

Supreme Court of Alabama

April 5, 2019

Ex parte Taurus Jermaine Carroll
State of Alabama In re: Taurus Jermaine Carroll

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS St. Clair Circuit Court, CC-09-242; Court of Criminal Appeals, CR-12-0599

          BOLIN, JUSTICE.

         Taurus Jermaine Carroll was convicted in the St. Clair Circuit Court of one count of murder for intentionally causing the death of Michael Turner, a fellow inmate, after having been convicted of another murder within the preceding 20 years, see § 13A-5-40(a)(13), Ala. Code 1975, and a second count of murder made capital for committing murder while Carroll was under a sentence of life imprisonment, see § 13A-5-40(a)(6), Ala. Code 1975.

         Before he was sentenced, Carroll argued to the circuit court that he is intellectually disabled and therefore, under Atkins v. Virginia, 536 U.S. 304 (2002), ineligible to be sentenced to death. The circuit court rejected that argument and, following the jury's unanimous recommendation, sentenced Carroll to death for each capital-murder conviction. The Court of Criminal Appeals affirmed Carroll's convictions and sentences. Carroll v. State, 215 So.3d 1135 (Ala.Crim.App.2016)("Carroll I").[1] This Court denied Carroll's petition for a writ of certiorari.

         On May 1, 2017, the United States Supreme Court granted Carroll's petition for a writ of certiorari, vacated the judgment of the Court of Criminal Appeals, and remanded the cause to that court "for further consideration in light of Moore v. Texas, 581 U.S. __[, 137 S.Ct. 1039] (2017)." 581 U.S.__, 137 S.Ct. 2093 (2017). On remand, the Court of Criminal Appeals again affirmed Carroll's convictions and sentences. Carroll v. State, [Ms. CR-12-0599, Dec. 15, 2017] __So. 3d__ (Ala.Crim.App.2017)("Carroll II"). We granted Carroll's petition for a writ of certiorari.

         I. THE STANDARD

         Intellectual disability must be proven by a preponderance of the evidence, and the trial court's determination is entitled to deference on appeal. Ex parte Lane, [Ms. 1160984, Sept. 14, 2018]__ So. 3d__, __ (Ala. 2018) (citing Ex parte Smith, 213 So.3d 313, 319 (Ala. 2010)). A trial judge exceeds his or her discretion when there is no evidence on which the judge could have rationally based his or her decision regarding the defendant's intellectual disability. Ex parte Lane, __So. 3d at __.


         A. The Developing Law post Atkins

         Carroll asserts that the Court of Criminal Appeals' decision conflicts with the United States Supreme Court decisions in Atkins v. Virginia, 536 U.S. 304 (2002); Hall v. Florida, 572 U.S. 701 (2014); Brumfield v. Cain, 576 U.S.__, __, 135 S.Ct. 2269, 2278-79 (2015); and Moore v. Texas, 581 U.S.__, 137 S.Ct. 1039 (2017).

         In Moore v. Texas, the United States Supreme Court summarized the law on intellectual disability:

"The Eighth Amendment prohibits 'cruel and unusual punishments,' and 'reaffirms the duty of the government to respect the dignity of all persons,' Hall [v. Florida], 572 U.S. [701] at 708 [(2014)](quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). 'To enforce the Constitution's protection of human dignity,' we 'loo[k] to the evolving standards of decency that mark the progress of a maturing society,' recognizing that '[t]he Eighth Amendment is not fastened to the obsolete.' Hall, 572 U.S., at 708 (internal quotation marks omitted).
"In Atkins v. Virginia, [536 U.S. 304 (2006), ] we held that the Constitution 'restrict[s] ... the State's power to take the life of' any intellectually disabled individual. 536 U.S., at 321. See also Hall, 572 U.S., at 707-710; Roper, 543 U.S., at 563-564. Executing intellectually disabled individuals, we concluded in Atkins, serves no penological purpose, see 536 U.S., at 318-320; runs up against a national consensus against the practice, see id., at 313-317; and creates a 'risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty,' id., at 320 (internal quotation marks omitted); see id., at 320-321.
"In Hall v. Florida, we held that a State cannot refuse to entertain other evidence of intellectual disability when a defendant has an IQ score above 70. 572 U.S., at 721-724. Although Atkins and Hall left to the States 'the task of developing appropriate ways to enforce' the restriction on executing the intellectually disabled, 572 U.S., at 719 (quoting Atkins, 536 U.S., at 317, States' discretion, we cautioned, is not 'unfettered,' 572 U.S., at 719. Even if 'the views of medical experts' do not 'dictate' a court's intellectual-disability determination, id., at 721, we clarified, the determination must be 'informed by the medical community's diagnostic framework,' id., at 721. We relied on the most recent (and still current) versions of the leading diagnostic manuals -- the DSM-5 and AAIDD-11. Id., at 705, 710, 712, 722-723. Florida, we concluded, had violated the Eighth Amendment by 'disregard[ing] established medical practice.' Id., at 712. We further noted that Florida had parted ways with practices and trends in other States. Id., at 712-718. Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does our precedent license disregard of current medical standards."

581 U.S. at__, 137 S.Ct. at 1048-49.

         Consequently, it is unconstitutional to impose a death sentence upon a defendant with an intellectual disability. Moore, 581 U.S. at__, 137 S.Ct. at 1048; Atkins, 536 U.S. at 321. Therefore, in the Atkins context, when considering whether Carroll is intellectually disabled, the Court must consider whether the evidence established that: (1) Carroll has significant subaverage intellectual functioning and (2) significant or substantial deficits in adaptive functioning; and (3) these problems manifested themselves before the age of 18. See Smith v. State, 213 So.3d 239 (Ala. 2007) (citing Ex parte Perkins, 851 So.2d 453, 455-56 (Ala. 2002)).

         It is undisputed that Carroll's IQ score of 71, adjusted for the standard of measurement, yields a range of 66 to 76. Indeed, the Court of Criminal Appeals found that lower end of Carroll's score range falls at or below 70. Carroll II, So.3d at __. Thus, there is no dispute that Carroll has "subaverage intellectual functioning." Rather, the dispute in this case centers around whether Carroll has significant or substantial deficits in adaptive functioning that manifested themselves before the age of 18.

         B. The Specific Components of Moore v. Texas

         The United States Supreme Court remanded Carroll's case to the Alabama Court of Criminal Appeals for further consideration in light of Moore v. Texas, supra. In Moore, the United States Supreme Court reversed a decision of the Texas Court of Criminal Appeals, which had determined that the defendant was not intellectually disabled for purposes of imposing the death penalty.

         The Supreme Court found several flaws in the Texas Court of Criminal Appeals' analysis. First, the Supreme Court found that the Texas court violated Hall by disregarding the defendant's lower IQ scores and failing to consider "the standard error of measurement." Moore, 581 U.S. at, 137 S.Ct. at 1049. Next, the Supreme Court found that the Texas court had improperly "overemphasized [the defendant's] perceived adaptive strengths." 581 U.S. at, 137 S.Ct. at 1050. For example, the Texas court determined that facts establishing that the defendant had "lived on the streets, mowed lawns, and played pool for money" outweighed the fact that he suffered from adaptive deficits in other areas, such as a lack of understanding of the days of the week, the months of the year, and the seasons, and a limited ability to tell time, read, or do basic arithmetic. The Supreme Court held that the medical community "focuses the adaptive functioning inquiry on adaptive deficits," not strengths. 581 U.S. at__, 137 S.Ct. at 1050.

         The Supreme Court also criticized the Texas court for its emphasis on Moore's improved behavior in prison.

"Clinicians ... caution against reliance on adaptive strengths developed 'in a controlled setting,' as a prison surely is. DSM-5, [2] at 38 ('Adaptive functioning may be difficult to assess in a controlled setting (e.g., prisons, detention centers); if possible, corroborative information reflecting functioning outside those settings should be obtained.'); see AAIDD-11[3] User's Guide 20 (counseling against reliance on 'behavior in jail or prison')."

581 U.S. at__, 137 S.Ct. at 1050.

         In Moore, the Supreme Court also discussed whether states may define intellectual disability in a manner that is (1) uninformed by the medical community or (2) based on outdated medical standards. First, the Supreme Court rejected the Texas court's use of the Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim App. 2004), factors. In Ex parte Briseno, the Texas Court of Criminal Appeals, following Atkins, created a standard for determining intellectual disability, in which the court set forth several factors to determine whether the average Texas citizen would agree that an individual should be protected from execution because of an intellectual disability.[4] The Supreme Court noted that Texas was the only state that applied the Briseno factors when assessing a defendant's intellectual disability.[5]

         Moore also held that a determination that a defendant is not intellectually disabled may not be based on "outdated medical standards." Specifically, Moore emphasized that, notwithstanding the Supreme Court's indication that states have discretion in defining intellectual disability, states cannot engage in practices that "diminish the force of the medical community's consensus." Moore, 581 U.S. at__, 137 S.Ct. at 1044. The Supreme Court held:

"The medical community's current standards supply one constraint on States' leeway in this area. Reflecting improved understanding over time, ... current manuals offer 'the best available description of how mental disorders are expressed and can be recognized by trained clinicians,' DSM-5, at xii. See also Hall[ v. Florida], 572 U.S. 701, 704, 705, 709-10, 710-14 [(2014)] (employing current clinical standards); Atkins, 536 U.S., at 308, n. 3, 317, n. 22 (relying on then-current standards)."

581 U.S. at __, 137 S.Ct. at 1053. The Supreme Court specifically found that the Texas Court of Criminal Appeals had improperly relied on an outdated medical standard, the clinical manual of the American Association on Mental Retardation ("the AAMR") in its ninth edition as published in 1992.[6] Moore, 581 U.S. at__, 137 S.Ct. at 1053. The Court recognized the AAIDD-11 and DSM-5 as "current medical diagnostic standards" and as including "generally accepted, uncontroversial intellectual-disability diagnostic definition[s]." 581 U.S. at__, 137 S.Ct. at 1045. Although Moore clearly requires states to assess intellectual disability using the most current medical standards, the Supreme Court did not specifically limit states to the definitions set forth in the AAIDD-11 and DSM-5. In sum, the Supreme Court held that states may not adopt factors that reflect "superseded medical standards" or that "substantially deviate" from prevailing clinical standards. 581 U.S. at__, 137 S.Ct. at 1050. The Supreme Court further concluded that the Texas Court of Criminal Appeals erred "[b]y rejecting the habeas court's application of medical guidance [including the AAIDD-11 and DSM-5] and clinging to the standard it laid out in Briseno, including the wholly nonclinical Briseno factors," and that by doing so the court "failed to adequately inform itself of the 'medical community's diagnostic framework.' Hall, 572 U.S. at 721." Moore, 581 U.S. at__, 137 S.Ct. at 1053.

         III. ANALYSIS

         A. Deficits in Adaptive Functioning and Current Medical Standards

         Carroll argues that the Court of Criminal Appeals erred in relying on the results of the Adaptive Behavior Scale --Residential and Community Living, second edition ("ABS-RC:2"), and the assessment by Dr. Susan Ford, the director of Psychological and Behavioral Services for the Division of Developmental Disabilities with the Department of Mental Health, that that test adheres to current medical standards. Specifically, he contends that the court's reliance on the results of the ABS-RC:2 and Dr. Ford's opinion regarding the reliability of the test conflicts with the requirement that assessments of adaptive functioning must adhere to the "medical community's current standards." Moore, 581 U.S. at__, 137 S.Ct. at 1053.

         On May 4, 2012, the circuit court entered an order setting forth the basis of its determination that Carroll was eligible for the death penalty. With respect to whether Carroll has significant or substantial deficits in adaptive functioning, the circuit court found:

"The State psychologist, Dr. Susan Ford, conducted a forensic evaluation of the defendant to measure his adaptive functioning. Dr. Ford concluded that the defendant's adaptive functioning lies within the borderline range, and as such he is not 'mentally retarded.' Dr. Ford found that the defendant did not exhibit significant deficits in any of the ten adaptive functioning 'domains' that were tested. Dr. Ford testified that her assessment was consistent with Dr. [Jerry] Gragg's intellectual assessment placing the defendant in the borderline range.[7] Dr. Ford explained that the defendant's performance on the test and the facts leading to her conclusion. Dr. Ford found that the defendant reads novels, self-help books, and the sports page of the newspaper. Dr. Ford found that the defendant is able to write letters. The defendant, who has served as a cook in a prison kitchen, was able to correctly describe to Dr. Ford: (1) how to bake food items such as biscuits; (2) how to use a large mixer, and (3) the ingredients that were used in some of the food items he made as a cook. The defendant has also successfully completed the high school equivalency (GED) examination, which requires the ability to read, study and learn the knowledge and skills necessary to pass a GED test.
"The defense psychologist, Dr. [Robert] Shaffer, conducted an assessment and testified that he found significant deficits in adaptive functioning. It is noted that Dr. Shaffer is the only psychologist to have evaluated the defendant to offer an opinion that the defendant is 'mentally retarded.'
"Dr. Ford's testimony indicates that Dr. Glen King, who conducted a forensic assessment of the defendant on competency to stand trial for this case, concluded that the defendant's intellectual ability was 'Average.' Dr. Ford's report and testimony also indicate that Dr. David Sandefer, who evaluated the defendant for the Alabama Department of Corrections in 2004, found that the defendant's Intellectual Function was 'Below Average.' Dr. Ford states in her report that functioning 'Below Average' is just under the 'Average' range and just above the 'Borderline' range of functioning, neither of which indicates 'mental retardation.'
"Furthermore, Bryan Griffith, a Corrections Officer at the State Prison where the defendant has been housed, testified that while performing his duties as a corrections officer for the last three to four years he spent time around the defendant, observed the defendant, and supervised the defendant in the prison kitchen where the defendant worked as a baker. Officer Griffith testified that the defendant was able to effectively and consistently do his job in the kitchen without problems and that he was actually a 'good cook.' Griffith further testified that Mr. Carroll was required to perform all jobs required in the kitchen and did them well. He testified that the defendant was able to follow directions, complete tasks, and never had any problems with communicating.
"Investigator M.C. Smith, with the Alabama Department of Corrections Investigation and Intelligence Division, testified that he, along with another investigator, interviewed the defendant following the incident in this case. Investigator Smith testified that the defendant had no difficulty understanding questions and providing answers to him. Investigator Smith testified that he had no difficulty understanding the defendant. Before conducting the interview, Investigator Smith had the defendant demonstrate that he was able to correctly read. Investigator Smith also testified that he conducted an unannounced inventory of the defendant's one-man cell on April 6, 2012, and located eighteen paperback books and one hardback book, of which included: (1) Jailhouse Lawyer's Handbook, (2) Oxford American Dictionary, and (3) Oxford History of American People. The defendant also had two issues of 'Jet' magazine in his name that had March 2012 dates, a 'USA Today' newspaper in another inmate's name, along with local newspaper clippings of his own capital murder case from a St. Clair County newspaper.
"This Court finds particularly compelling the testimony of Officer Griffith and Investigator Smith describing their personal observations of and interactions with the defendant, along with the fact that the defendant has successfully obtained his [GED]. This Court finds compelling the description of the defendant's current level of adaptive functioning as described by Dr. Ford. This Court finds that the defendant does not exhibit significant or substantial deficits in adaptive functioning. Because Mr. Carroll does not have significant or substantial deficits in his adaptive functioning, this Court cannot find that he is 'mentally retarded.'"

         Thus, the circuit court rejected Dr. Robert Shaffer's opinion that Carroll suffers from significant deficits in adaptive functioning, specifically finding that the defense expert was the only psychologist to determine that Carroll is intellectually disabled. The circuit court placed great reliance on Dr. Ford's opinion, including her reference to Dr. David Sandefer's segregation-review evaluation, ...

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