Rogers v. State, S07A1210.

CourtSupreme Court of Georgia
Writing for the CourtHunstein
Citation282 Ga. 659,653 S.E.2d 31
PartiesROGERS v. The STATE.
Docket NumberNo. S07A1210.,S07A1210.
Decision Date05 November 2007

Ralph Irving Knowles, Jr., Leslie J. Bryan, Kimberly Jean Johnson, David Scott Hagy, Doffermyre Shields Canfield & Knowles, Atlanta; Craig Cooper Knowles, Adam P. Princenthal, Andrew, Knowles & Princenthal, LLC, Atlanta, for Appellant.

Leigh Ellen Patterson, Dist. Atty, Martha Pass Jacobs, Asst. Dist. Atty., Rome; Thurbert E. Baker, Atty. Gen., Sabrina Dawn Graham, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

Thomas Howard Dunn; Holly Lynn Geerdes, Geerdes & Kim, LLC; Richard A. Malone, Prosecuting Attorneys' Council, Atlanta, Other Party Representation.

HUNSTEIN, Presiding Justice.

James Randall Rogers was convicted of murder and sentenced to death in 1985. See Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986). Rogers thereafter sought habeas corpus relief alleging that he is mentally retarded. Pursuant to Fleming v. Zant, 259 Ga. 687(4), 386 S.E.2d 339 (1989); see also Rogers v. State, 276 Ga. 67(1), 575 S.E.2d 879 (2003), a jury determined in 2005 that Rogers is not mentally retarded. He appeals. Finding no reversible error, we affirm.

1. Rogers has the burden of proving that he is mentally retarded by a preponderance of the evidence. Fleming, supra, 259 Ga. at 691, 386 S.E.2d 339. Mental retardation is defined as "significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period." OCGA § 17-7-131(a)(3). The jury heard evidence regarding six intelligence quotient ("IQ") tests administered to Rogers during his lifetime, with scores of 78, 84, 85, 68, 66 (which, due to a mathematical error, should have been 70) and 89. Expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, do not indicate mental retardation. Additionally, there was testimony that Rogers checks out prison library books on a regular basis and is able to use the computer. Three State experts who examined Rogers opined that he is not mentally retarded; three experts for Rogers disagreed. Although evidence was adduced indicating that Rogers exhibits brain dysfunction, Rogers's own expert testified that there is no way to determine what caused the dysfunction and that a person can have brain dysfunction without being mentally retarded. This expert also testified that the use of drugs and alcohol can have a significant impact on brain function and that Rogers had reported using drugs and alcohol.

Construing the evidence in favor of the verdict, a rational trier of fact could have found that Rogers failed to meet his burden of proof. See Morrison v. State, 276 Ga. 829, 830-831(1), 583 S.E.2d 873 (2003). See also Stripling v. State, 261 Ga. 1, 4(3)(b), 401 S.E.2d 500 (1991) (IQ test scores of 70 or below are not conclusive); Fleming, supra, 259 Ga. at 691, 386 S.E.2d 339 (jury not bound by expert opinions or test results, "but may weigh and consider all evidence bearing on the issue of mental retardation").

2. (a) Rogers's death sentence does not violate his equal protection and due process rights merely because, at age 19 when he committed the crimes, he may have possessed the same attributes of a juvenile offender that prompted the United States Supreme Court to prohibit the imposition of the death penalty on offenders under age 18. Roper v. Simmons, 543 U.S. 551, 574(III)(B), 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). That Court recognized that "a line must be drawn" and "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest." Id. at 574, 125 S.Ct. 1183.

(b) Rogers also argues that his equal protection and due process rights were violated because, due to his "organic brain damage," he has the same diminished capacities enumerated in Atkins v. Virginia, 536 U.S. 304, 318(IV), 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) that are characteristic of a mentally retarded defendant, but he is treated differently because he does not have IQ scores under 70. However, Georgia's statutory definition of mental retardation is consistent with the clinical definitions relied upon in Atkins, compare id. at 308 n. 3, 122 S.Ct. 2242 with OCGA § 17-7-131(a)(3), and, contrary to Rogers's contentions, there are no "hypertechnical" requirements that a defendant have certain test scores in order to be found mentally retarded. See Stripling, supra, 261 Ga. at 4, 401 S.E.2d 500. We conclude that Rogers's arguments in this regard are without merit. See generally Fleming, supra, 259 Ga. at 688(1), 386 S.E.2d 339.

We reject Rogers's contention that the trial court abused its discretion by not submitting to the jury special interrogatories based on Atkins (wherein the jury would find whether Rogers has certain enumerated "diminished capacities"), along with related jury instructions and a verdict form utilizing the statutory definition of mental retardation. The trial court properly followed the procedures this Court established for Fleming trials by instructing the jury on the statutory definition of mental retardation set forth in OCGA § 17-7-131(a)(3); by charging the jurors that Rogers bore the burden of proving his mental retardation by a preponderance of the evidence; and by charging the jury that they were not bound by the opinion testimony of expert witnesses or by test results, but could weigh and consider all evidence bearing on the issue. See Fleming, supra, 259 Ga. at 691, 386 S.E.2d 339. See generally Sims v. Heath, 258 Ga.App. 681, 687, 577 S.E.2d 789 (2002) (form of verdict and submission of special verdict are within trial court's discretion and will not be overturned absent abuse of that discretion).

3. We find no abuse of the trial court's discretion in the exercise of its inherent power to control court proceedings by limiting the number of attorneys permitted to speak before the court to the two attorneys appointed to Rogers. Lynd v. State, 262 Ga. 58, 62(9)(a), 414 S.E.2d 5 (1992). Although the trial court prevented a pro bono member of Rogers's defense team from arguing certain motions, it did not prevent her from continuing to assist defense counsel. Compare United States v. Gonzalez-Lopez, ___ U.S. ___, ___, 126 S.Ct. 2557, 2563, 165 L.Ed.2d 409 (2006). Rather, it merely limited argument to Rogers's lead counsel and co-counsel, both of whom were appointed two years before Rogers's trial with his full agreement and in response to his counsel's motion that, as a precautionary measure, death-qualified counsel be appointed. See U.A.P. (II)(A)(1). Furthermore, Rogers's co-counsel, who ultimately argued the motions at issue, never intimated that he was not prepared to go forward. The record shows that he was familiar with the facts and issues involved, having the previous day conducted the expert's deposition that formed a substantial basis for the motions, and the trial court had before it the written motions and supporting briefs submitted by Rogers's counsel.

4. Rogers contends that the trial court erred by conducting his mental retardation trial as a civil, rather than a criminal, proceeding. See generally Stephens v. State, 270 Ga. 354, 356(2), 509 S.E.2d 605 (1998) (Fleming trial is deemed part of guilt/innocence phase). Specifically, Rogers argues that the trial court erred by failing to follow OCGA § 15-12-166, which provides that in criminal cases the State must accept or reject each potential juror before the defendant is required to do so. However, our review of the record establishes that Rogers repeatedly reiterated that his Fleming trial should be conducted as a civil proceeding,1 that the trial court denied Rogers's request regarding the order of juror questioning based on these representations by counsel, and that Rogers then acquiesced to the trial court's ruling.2 Under these circumstances, we find that Rogers has waived any objection to the trial court conducting his Fleming trial as a civil proceeding and to the order of the exercise of his peremptory challenges. See Pye v. State, 269 Ga. 779, 787(14), 505 S.E.2d 4 (1998) (party cannot ignore perceived error at trial, take chance on favorable verdict, and then complain on appeal).

5. Any error in the application of OCGA § 15-12-165 (State and defendant in death penalty cases each allowed 15 peremptory challenges) to Rogers's trial was invited by defense counsel and, as such, is not grounds for reversal. Pye, supra, 269 Ga. at 787(14), 505 S.E.2d 4. See also Madison v. State, 281 Ga. 640, 642(2)(c), 641 S.E.2d 789 (2007) (defendant not deprived of protected right by retroactive application of OCGA § 15-12-165, reducing number of peremptory strikes, as peremptory strikes are procedural and not substantive in nature).

6. Rogers contends the trial court erred by admitting the testimony and materials of the State's witness, psychologist Dr. Richard Hark. Dr. Hark examined Rogers in 1976 when he was in a juvenile detention center and administered intelligence and personality tests to Rogers in 1977 at the request of the juvenile court (the "1977 report"). Dr. Hark administered these tests again in 1980 during the course of Rogers's murder trial3 pursuant to an order of the trial court, which was entered in response to the request by Rogers's counsel for a psychological evaluation (the "1980 report"). In his mental retardation trial, Rogers filed motions in limine to exclude Dr. Hark's testing materials and testimony; the trial court deferred its ruling until the State sought to introduce this testimony and evidence during trial, when Dr. Hark would be available for voir dire.

(a) As to the 1977 report, Rogers called a mental health expert who had executed an affidavit in which the expert stated he considered Dr. Hark's 1977 report when rendering his opinion. The...

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