Howell v. State

• Decision Date: 16 November 2004
• Docket Number: No. W2003-01056-SC-R11-PD,W2003-01056-SC-R11-PD
• Parties: Michael Wayne HOWELL v. STATE of Tennessee.
• Court: Tennessee Supreme Court

151 S.W.3d 450

Michael Wayne HOWELL v. STATE of Tennessee.

No. W2003-01056-SC-R11-PD

Supreme Court of Tennessee, at Jackson.

April 7, 2004 Session.

November 16, 2004.

Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the appellant, Michael Wayne Howell.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Senior Counsel, for the appellee, State of Tennessee.

OPINION

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON and ADOLPHO A. BIRCH, JR., JJ., joined. FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER, J., each filed concurring and dissenting opinions.

This case comes before us on a motion to reopen a petition for post-conviction relief. The petitioner alleges that he is mentally retarded as defined in Tennessee Code Annotated section 39-13-203(a) (2003), and therefore ineligible for the death penalty under Van Tran v. State, 66 S.W.3d 790 (Tenn.2001) and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The trial court denied the motion, finding that the petitioner failed to make a prima facie showing of mental retardation sufficient to support reopening his post-conviction proceeding, and the Court of Criminal Appeals affirmed the denial. We reverse the Court of Criminal Appeals, holding that under the specific facts of this case, in which a petitioner is able, for the first time in his motion to reopen his petition for post-conviction relief, to claim ineligibility for the death penalty due to mental retardation under Van Tran or Atkins, the motion should be considered under the "colorable claim" evidentiary standard rather than the "clear and convincing" standard. We also hold that Tennessee Code Annotated section 39-13-203(a) (2003) clearly and unambiguously requires the defendant to have an I.Q. of seventy or below to be considered mentally retarded. We conclude that the petitioner's motion to reopen his post-conviction hearing set out a colorable claim, thus entitling him to an evidentiary hearing, without a jury, on the issue of mental retardation.

Background

The petitioner, Michael Wayne Howell, was convicted of grand larceny and felony murder, and on September 26, 1989, was sentenced to death. We affirmed the conviction and sentence of death, State v. Howell, 868 S.W.2d 238 (Tenn.1993), and the United States Supreme Court denied his petition for writ of certiorari, Howell v. Tennessee, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Petitioner timely filed a petition for post-conviction relief, which was denied by the trial court, and the Court of Criminal Appeals affirmed that denial. Howell v. State, No. 02C01-9706-CR-00200, 1997 WL 746438 (Tenn.Crim.App. Dec. 3, 1997). Petitioner filed his first motion to reopen the petition for post-conviction relief on July 9, 1999, challenging the definition of reasonable doubt instruction, the constitutionality of using an after-occurring conviction as an aggravating circumstance, and the effectiveness of his counsel. The trial court denied the motion, the Court of Criminal Appeals affirmed the trial court, and this Court denied the petitioner's application for permission to appeal.

Petitioner filed this second motion to reopen his petition for post-conviction relief on December 3, 2002, arguing that because he is mentally retarded his death sentence violates the state and federal constitutions under Van Tran v. State, 66 S.W.3d 790 (Tenn.2001), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He asserts that the trial court erred in finding that he had not made a prima facie showing that he is mentally retarded and in applying an incorrect standard of review.

In support of his motion to reopen, the petitioner filed the affidavit of Dr. Daniel Grant, a licensed psychologist and board certified clinical neuropsychologist who evaluated the petitioner. Dr. Grant testified by affidavit that he conducted a clinical interview and administered a series of tests and procedures to assess the petitioner's level of intelligence, adaptive functioning, language skills, and memory functioning. He also reviewed numerous records pertaining to the petitioner. Dr. Grant testified that, because an I.Q. score is generally thought to involve an error of measurement of approximately five points, an I.Q. of seventy is considered to represent a band or zone of sixty-five to seventy-five. Dr. Grant stated that on the Wechsler Adult Intelligence Scale — Third Edition ("WAIS-III"), the petitioner obtained a verbal I.Q. of seventy-five, a performance I.Q. of seventy-five, and a full scale I.Q. of seventy-three; on the Stanford-Binet Intelligence Test — Fourth Edition, he achieved a composite score of sixty-two; and on the Comprehensive Test of Nonverbal Intelligence ("CTONI"), he had a nonverbal I.Q. of sixty-seven, a pictorial nonverbal I.Q. of seventy, and a geometric nonverbal I.Q. of sixty-eight. Dr. Grant stated that it was his opinion, to a reasonable degree of psychological certainty, that the petitioner's level of intellectual functioning is within the retarded range of intelligence. Dr. Grant further said that the petitioner's mental retardation manifested within the developmental period and also that the petitioner has significant deficits in adaptive behavior.¹

Without holding an evidentiary hearing, the trial court denied the petitioner's motion, finding that, even taking the petitioner's allegations as true, he did not meet the statutory criteria for mental retardation. The trial court held:

Tennessee Code Annotated § 39-13-203(a)(1) specifically states that sub average intellectual functioning is evidenced by a functional intelligence I.Q. of seventy (70) or below. This statute does not in any way set forth that and [sic] I.Q. of seventy is considered to represent a band or zone of 65 to 75. T.C.A. § 3[9]-13-203(a)(1) is clear and unambiguous and there is no need to debate any further interpretation.

(citing State v. Dellinger, 79 S.W.3d 458 (Tenn.2002); Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 804 (Tenn.2001)). The trial court found that all three of the petitioner's I.Q. scores on the WAIS-III were higher than the score of seventy or below required to prove mental retardation. The trial court held:

[T]he Petitioner has failed to meet the statutory requirements set forth in Tennessee Code Annotated § 39-13-203, adopted by the Court in Van Tran. He does not have an I.Q. of 70 or below, he has not manifested the requisite deficits in adaptive behavior, nor has he put forth proof that mental retardation manifested itself before the age of 18.² The Petitioner has failed to make a prima facie case that he was mentally retarded at the time he committed the offenses for which he was convicted. He does not qualify as a mentally retarded defendant in accordance with the criteria set forth in Tennessee Code Annotated § 39-13-203, and as such, his death penalty is not unconstitutional. This Motion to Re-Open Petition for Post-Conviction Relief is without merit and should be dismissed without the benefit of a hearing.

The Court of Criminal Appeals affirmed the trial court, and we granted the petitioner permission to appeal.

Analysis

In 1990, the Tennessee General Assembly enacted legislation prohibiting the execution of mentally retarded individuals. Tenn.Code Ann. § 39-13-203 (2003). In 2001 this Court held that the statute was not intended by the General Assembly to be given retroactive application. Van Tran v. State, 66 S.W.3d 790, 798-799 (Tenn.2001). Therefore, as the petitioner in Van Tran had been convicted prior to the enactment of the statute, he could not rely upon the statute for relief. Id. at 799. However, we also held in Van Tran that the execution of mentally retarded individuals violated constitutional prohibitions against cruel and unusual punishment. Id. at 811. In addition, while recognizing that the statute did not protect those persons convicted prior to its enactment, this Court held that this newly recognized constitutional right "warrants retroactive application to cases on collateral review." 66 S.W.3d at 811. Subsequent to our decision in Van Tran, the United States Supreme Court similarly held in Atkins v. Virginia that the execution of mentally retarded persons is cruel and unusual punishment prohibited by the Eighth Amendment. 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Van Tran, just as the case before us today, involved a petitioner who had been convicted prior to enactment of the statute, but who was now seeking postconviction relief based upon his claim of mental retardation and our holding that executing mentally retarded individuals was unconstitutional. We recognized that, under the statutory scheme for obtaining post-conviction relief, reopening a petition for post-conviction relief was permissible if the claim "is based upon the ruling of an appellate court establishing a constitutional right that was not recognized at the time of trial, if retrospective application of that right is required." Tenn.Code Ann. § 40-30-117(a)(1) (2003); Van Tran 66 S.W.3d at 811-812. Therefore, in Van Tran, we directed the trial court to "hear the petitioner's motion to reopen and make a determination as to the petitioner's alleged mental retardation." 66 S.W.3d at 812. We concluded that although section 39-13-203 did not apply retroactively to the petitioner's case, the appropriate criteria for evaluating his claim of mental retardation were those set forth within the statute. Van Tran, 66 S.W.3d at 812. However, an issue we did not address in Van Tran was the appropriate standard by which the trial court would evaluate the petitioner's claim under those criteria to determine if he had pled a prima facie case. That is the issue we must now address in the present case in order to determine whether the petitioner has alleged a prima facie case of mental retardation to...