Nixon v. State

• Decision Date: 22 January 2009
• Docket Number: No. SC07-953.,SC07-953.
• Citation: 2 So.3d 137
• Parties: Joe Elton NIXON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

2 So.3d 137

Joe Elton NIXON, Appellant, v. STATE of Florida, Appellee.

No. SC07-953.

Supreme Court of Florida.

January 22, 2009.

Eric S. O'Connor of Sheppard, Mullin, Richter and Hampton, LLP, Eric M. Freedman, New York, NY, and Armando Garcia of Garcia and Seliger, Quincy, FL, for Appellant.

Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Joe Elton Nixon appeals the denial of his motion for postconviction relief filed pursuant to Florida Rules of Criminal Procedure 3.851 and 3.203. Because the order concerns postconviction relief from a sentence of death, we have jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we affirm both the trial court's denial of postconviction relief and its finding that Nixon is not mentally retarded.

I. FACTS AND PROCEDURAL HISTORY

Joe Elton Nixon was charged, convicted, and sentenced to death for the 1984 murder of a Tallahassee woman. On direct appeal, we affirmed the conviction and sentence. See Nixon v. State, 572 So.2d 1336 (Fla.1990) (Nixon I).¹ The United States Supreme Court denied Nixon's petition for a writ of certiorari. See Nixon v. Florida, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991). Subsequently, Nixon filed with the trial court a motion pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion without an evidentiary hearing. Nixon appealed the trial court's summary denial to this Court. See Nixon v. Singletary, 758 So.2d 618 (Fla.2000) (Nixon II).² Additionally, Nixon filed with this Court a petition for a writ of habeas corpus. See id.³

In Nixon II, the dispositive issue was whether Nixon was denied effective assistance of counsel when his lawyer conceded guilt without his consent. See 758 So.2d at 624. Ultimately, we held that if Nixon could establish that he did not consent to counsel's strategy, then the Court would find counsel to be per se ineffective under the standard espoused in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See Nixon II, 758 So.2d at 624. Accordingly, we remanded the case to the trial court to hold an evidentiary hearing on the issue of whether Nixon consented to trial counsel's strategy. See id. On remand, an evidentiary hearing was held. After the hearing, the trial court denied relief and found that Nixon consented to counsel's strategy. See Nixon v. State, 857 So.2d 172 (Fla. 2003) (Nixon III). On appeal, we found Nixon had not consented to counsel's strategy. We then applied the per se ineffective assistance of counsel standard from Cronic, found counsel ineffective, and remanded for a new trial.

The United States Supreme Court granted certiorari review of this Court's decision in Nixon III and held that claims of ineffective assistance of counsel based on counsel's concession of guilt to the crime charged, even without the defendant's consent, are to be analyzed under the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). On remand, we determined all of Nixon's ineffective assistance of counsel claims under the Strickland standard and addressed the other issues raised in Nixon's 3.850 appeal and habeas petition. We affirmed the trial court's denial of postconviction relief, and we denied habeas relief. See Nixon v. State, 932 So.2d 1009 (Fla.2006).

Pursuant to Florida Rules of Criminal Procedure 3.203(d)(4) and 3.851, Nixon filed a timely motion claiming that his conviction and sentence of death are contrary to the reasoning and holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (establishing that the Eighth Amendment prohibits the execution of the mentally retarded). Moreover, Nixon contended that section 921.137, Florida Statutes (2002), as interpreted in Cherry v. State, 959 So.2d 702 (Fla.), cert. denied, ___ U.S. ___, 128 S.Ct. 490, 169 L.Ed.2d 344 (2007), violates both the United States Constitution and the Florida Constitution.

The Evidentiary Hearing

The trial court conducted a two-day evidentiary hearing on Nixon's mental retardation claim. At the hearing, the defense presented the expert testimony of Dr. Denis Keyes. The State presented the expert testimony and report of Dr. Gregory A. Prichard. In substantial part the evidence indicates that between 1974 and 1992, various doctors administered the Wechsler Intelligence Scale for Children test (WISC) and the Wechsler Adult Intelligence Scale test (WAIS) to Nixon. Nixon's IQ scores based on these tests were 88, 73, and 72.

Dr. Denis Keyes

In 1993, Dr. Denis Keyes, an Associate Professor of Special Education at the College of Charleston in South Carolina, examined Nixon on behalf of the defense. Dr. Keyes tested Nixon's intellectual functioning by utilizing the Stanford-Binet Intelligence Scale test, Fourth Edition. Dr. Keyes determined Nixon's IQ to be 68. At the time Dr. Keyes examined Nixon there was no valid test of malingering. Based on Nixon's test performance, Dr. Keyes opined that he performed at a significantly subaverage intellectual level.

Dr. Keyes further concluded that there were known risks that Nixon was mentally retarded starting in early childhood. These known risks included: Nixon's mother's drinking, diet, and infrequent visits to the doctor during her pregnancy; Nixon's malnourishment and exposure to nicotine and pesticide during his childhood; Nixon's social and practical deficiencies; and Nixon's psychological, physical, and sexual abuse suffered at the hands of his family.

Dr. Keyes also opined that there was extensive evidence of Nixon's difficulty with adaptive skills. He noted that Nixon had great difficulty in keeping up with others and learning basic information as a child. Dr. Keyes cited Nixon's poor communication skills, difficulty in understanding basic mathematical concepts, poor achievement test results, repetitive behavior of making the same mistakes over and over, and the reports from Nixon's prior teachers stating he should be placed in a special education program as evidence of Nixon's subaverage intellectual functioning as a child. From his testing and observations, Dr. Keyes concluded that the onset of Nixon's low intellectual functioning and adaptive deficits occurred before age eighteen. Therefore, Dr. Keyes concluded that Nixon was mentally retarded at the time of the crime and was currently (in 2006) evidencing adaptive dysfunctioning.

Dr. Gregory A. Prichard

In 2006, Dr. Gregory Prichard, a clinical psychologist, examined Nixon for the State. To determine Nixon's intellectual functioning, Dr. Prichard administered the WAIS III and the Test for Memory Malingering, also known as the WRAT-3 or TOMM. As a result of these tests, Dr. Prichard found Nixon's full scale IQ to be 80. He found no indication that Nixon was malingering.

After reviewing Nixon's 1974 intelligence test, which was conducted when Nixon was twelve or thirteen years old, Dr. Prichard stated the test indicated an IQ full scale score of 88. Dr. Prichard found that there was no evidence that questioned the validity of the 1974 IQ score. Thus, Dr. Prichard opined that Nixon could not demonstrate onset of mental retardation before eighteen years of age. Based on his evaluations, Dr. Prichard concluded that Nixon is not mentally retarded. He further indicated there was no need to address the adaptive behavior issue as part of his assessment because Nixon's IQ did not fall within the mental retardation range.

After hearing the testimony and reviewing the evidence, the trial court concluded that Nixon did not establish mental retardation under either the clear and convincing or the preponderance of the evidence standard. Nixon appeals that decision, raising the issues discussed below.

II. ANALYSIS

Nixon makes the following arguments applicable to his mental retardation claim: (1) this Court should reconsider its decision in Cherry v. State, 959 So.2d 702 (Fla.2007); (2) the trial court's fact-finding, which was infected by legal error, is entitled to no deference; (3) the trial court violated Atkins by adding a "culpability" test; (4) the trial court violated Atkins by using Nixon's confession to find him not mentally retarded; (5) he is entitled to a remand for a legally proper hearing because there is ample evidence in the record to support his claim of mental retardation; and (6) this Court must require that the proceedings on remand be freed from several erroneous legal rulings previously made by the trial court.

In 2001, the Florida Legislature enacted section 921.137, Florida Statutes (2001), which barred the imposition of a death sentence on the mentally retarded and established a method for determining which capital defendants are mentally retarded. See § 921.137, Fla. Stat. (2001). The following year, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that execution of mentally retarded offenders constitutes "excessive" punishment under the Eighth Amendment. In response to Atkins and section 921.137, we promulgated Florida Rule of Criminal Procedure 3.203, which specifies the procedure for raising mental retardation as a bar to a death sentence. Pursuant to both section 921.137 and rule 3.203, a defendant must prove mental retardation by demonstrating: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See § 921.137(1), Fla. Stat. (2007); Fla. R.Crim. P. 3.203(b).

The trial court concluded that Nixon failed to establish that he is ineligible for the death penalty due to mental retardation. We affirm the trial court's determination that Nixon is not mentally retarded....