IN the SUPREME COURT of FLORIDA No. SC04-192 ELMER
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IN THE SUPREME COURT OF FLORIDA No. SC04-192 ELMER LEON CARROLL Appellant, versus, STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA Case No. CR90-12464 INITIAL BRIEF OF APPELLANT MICHAEL P. REITER Florida Bar No. 0320234 4543 Hedgewood Drive Tallahassee, FL (850) 893-4668 COUNSEL FOR APPELLANT TABLE OF CONTENTS PRELIMINARY STATEMENT. ii REQUEST FOR ORAL ARGUMENT. ii TABLE OF AUTHORITIES . iii-vi STATEMENT OF CASE AND FACTS. vi- xiii SUMMARY OF ARGUMENT. xiii ARGUMENT ISSUE I WHETHER THE TRIAL COURT ERRED BY DENYING A SUCCESSIVE POSTCONVICTION MOTION ALLEGING AN ATKINS CLAIM WITHOUT AN EVIDENTIARY HEARING?. 1- 22 ISSUE II WHETHER THE TRIAL COURT ERRED IN DENIAL OF A RING CLAIM BECAUSE OF A PRIOR VIOLENT FELONY WHEN OTHER ISSUES WERE RAISED BUT NOT DISCUSSED BY THE COURT’S ORDER?. 22- 39 CONCLUSION AND RELIEF SOUGHT . 39 CERTIFICATE OF SERVICE . 40 CERTIFICATE OF TYPE SIZE AND STYLE . 40 i PRELIMINARY STATEMENT This proceeding involves the appeal of the circuit court’s order denying Appellant’s Successive Motion without a hearing. The motion was brought pursuant to Fla. R. Crim. P. 3.850 and 3.851. The following symbols will be used to designate references to the records in the instant case: “R” ...; Record on Direct Appeal. “PCT”...; Transcript of Postconviction Hearing. REQUEST FOR ORAL ARGUMENT Mr. Carroll has been sentenced to death; Therefore, the resolution of the issues involved in this action will determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument certainly would be appropriate in this case, given the seriousness of the claims at issue and the stakes involved. Mr. Carroll, through counsel, accordingly urges that the Court permit oral argument. ii TABLE OF AUTHORITIES CASES PAGE Allen v. United States, 122 S. Ct. 2653 (2002) .................. 34 Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 29 Fla. L. Weekly S247 (May 20, 2004) ........... 8 Apprendi v. New Jersey, 530 U.S. 466 (2000) .............. 23,24,31,33,34 Atkins v. Virginia, 536 U.S. 304 (2002) ........ xiii,xx,1,3,15,17,18,20,21 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), ............. 33,37,38 Caldwell v. Mississippi, 472 U.S. 320 (1985), ................... 29 Carroll v. State, 636 So. 2d 1316 (Fla. 1994) .............. xiv,37 Carroll v. State, 815 So. 2d 601 (Fla. 2002) .............. xiv,37 DeJonge v. Oregon, 299 U.S. 353 (1937) .................... 36 Ford v. Wainwright, 477 U.S. 399 (1986) .................. 17, 18 Freeman v. State, 761 So. 2d 1055 (Fla. 2000) ................ 1 Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980) .. 19 Gregg v. Georgia, 428 U.S. 153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) ................. 19,21 Hamilton v. State, iii 29 Fla L. Weekly S281 (June 3, 2004) ........... 1 Huff v. State, 622 So. 2d 982 (Fla. 1993) ................ xv In re Winship, 397 U.S. 358 (1970) .................... 31 Jacobs v. State, 29 Fla. 1, L.3 Weekly S319 (June 24, 2004 . Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) ............... 33 King v. Moore, 831 So. 2d 143 (Fla. 2002) .............. 24,25 Mullaney v. Wilbur, 421 U.S. 684, 698 (1975) ................. 32 Peede v. State, 748 So. 2d 253 (Fla. 1999) ................ 1 Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) .. 18 Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So. 2d 365 (Fla. 1981) .............. 13-15 Porter v. Moore, No. SC01-2707 (Fla. June 20, 2002) ............ 37 Porter v. State, 564 So. 2d 1060, 1063 (Fla. 1990) ............. 37 Ring v. Arizona, 536 U.S. 584 (2002) ....... xiii,1,22-25,28-31,34,37-39 Schriro v. Summerlin, 2004 U.S. Lexis 4574 (June 24, 2004). .23, 24 State v. Dye, 346 So. 2d 538, 541 (Fla. 1977) .............. 35 State v. Gray, iv 435 So. 2d 816, 818 (Fla. 1983) ............ 35,36 Thornhill v. Alabama, 310 U.S. 88 (1940) .................... 36 United States v. Dionisie, 410 U.S. 19, 33 (1973) .................. 36 United States. v. Allen), 247 Fd. 3d 741 (8th Cir. 2001) .............. 34 Walton v. Arizona, 497 U.S. 639 (1990) ................ 24-26, 29 Witt v. State, 387 So. 2d 922 (Fla. 1980) ................ 24 Wood v. Georgia, 370 U.S. 375, 390 (1962) ................. 36 STATUTES AND RULES § 775.082, Fla. Stat. ................... 38 § 921.137(1), Fla. Stat .............. 8,13,16,21 § 921.141(3), Fla. Stat. ............. 31, 35, 38 18 U.S.C. sections 3591 .................. 38 18 U.S.C. section 3592(c) ................. 38 Fla. R. Crim. P. 3.140(o) ............... 39-41 Fla. R. Crim. P. 3.203 .............. 8,13,16,21 Fla. R. Crim. P. 3.850 ................ 39-41 Fla. R. Crim. P. 3.851 ................ 39-41 ARTICLES Christopher Slobogin; What Atkins Could Mean For People With Mental Illness, 33 N.M.L. Rev. 293 (Spring, 2003) ... 20-23 v Mental Retardation: A Symptom and Syndrome, Department of Psychology, University of Alabama at Birmingham ...... 10 Mentally Retarded Criminal Defendant, 53 George Wash. L. Rev. 414, 487-488 (1985) .................... 7 MANUALS AAMR Adaptive Behavior Scales (ABS) ............ 16 Inventory for Client and Agency Planning (ICAP) .... 16, 17 Scales of Independent Behavior - Revised ......... 16 StatisticalThe American Psychiatric Association, Diagnostic and Manual of Mental Disorders, (4th ed. 1994) ..... 9, 13-15 Vineland Adaptive Behavior Scales ............. 16 vi STATEMENT OF CASE AND FACTS On November 26, 1990, Mr. Carroll was indicted for one count of first degree felony murder and one count of sexual battery on aperson less than twelve years of age (R. 996-97). On March 21,1992, the jury convicted Mr. Carroll as charged (R. 1281). Penalty phase was conducted on April 13, 1992. Following instructions and deliberations, the jury recommended that the sentence of death be imposed for the first degree felony murder of Christine McGowan (R. 1277-80; 883-964). The trial court sentenced Mr. Carroll to death, finding three aggravating circumstances and one nonstatutory mitigating circumstance (R. 965-99). Mr. Carroll appealed his convictions and sentence of death, which were affirmed. Carroll v. State, 636 So. 2d 1316 (Fla. 1994). Mr. Carroll sought postconviction relief by filing a Florida Rule of Criminal Procedure 3.850 motion on February 1, 1996 (PC-R. 450-571). An amended motion was filed January 31, 1997 (PC-R. 696-832). An evidentiary hearing was held on August 4-5, 1997. On October 20, 1998, the circuit court entered its order denying Mr. Carroll relief on all claims (PC-R. 1157-85). Mr. Carroll appealed the denial of postconviction relief, which the Florida Supreme Court affirmed. Carroll v. State, 815 So. 2d 601 (Fla. 2002). vii Mr. Carroll filed a successive postconviction motion on April 22, 2003, pursuant to Florida Rules of Criminal Procedure 3.850 and 3.851. A Huff1 hearing was conducted in June 2003. The Court entered its order on January 12, 2004, denying Appellant’s successive postconviction motion without an evidentiary hearing. A Notice of Appeal was filed on February 4, 2004. FACTS The facts in this case, pertaining to whether Mr. Carroll is mentally retarded, are simple--although controversial. Intelligence Quotient At the original trial and evidentiary hearing, a substantial number of mental health experts testified to their findings of Mr. Carroll’s IQ score. Dr. Michael Gutman testified at the trial as follows: “Our psychological tests showed him to have an IQ of sixty or in the sixty to sixty-nine range. Others showed it to be in the – in the high seventies to low eighties. So there was inconsistencies in the intellectual functioning and IQ testing of how smart he was.” (R. Vol. 4, p. 512, L11) Dr. Edward Benson testified at trial as follows: “...And the third diagnosis I had was borderline 1Huff v. State, 622 So. 2d 982 (Fla. 1993). viii intelligence quotient, by previous psychological tests which showed at 79 some years past when he was regressed.” (R. Vol. 5, p. 758, L18). Dr. Crown testified at the evidentiary hearing: Q. You indicated that the school records you looked to – and specifically what would that be under? A. They are records of psychological testing conducted on Elmer Carroll at Clermont Elementary School when he as in the fifth grade when he was 12 years, two months old. The test was administered on October seventh of 1968. He was given the Weschler Intelligence Scale for children, which, which is the standard, was the standard test that was used in ‘96 (Sic.) It yielded a full-scale I.Q. of 80. My full scale I.Q. was 81. There’s a correct variance of 15 points. Allowing this is a one point difference, 81, it’s highly unlikely that someone could fake that number of a deliberate basis beginning when they were 12 years old. (PCT Vol. 2, p. 237). * * * * * Q. You’re aware there has been a fairly wide range of I.Q.’s found? A. Well, from test to test, the tests were repeated one year later when he was 13. And we had a full scale I.Q. when he was 13 of 80. I’m aware of another test that produced a verbal I.Q. of 58. That was the, there were done in, I believe, ‘90. Q. Why do you think it was so much lower? A. I believe it was so much lower because at the time ix Elmer Carroll was psychotic.