State v. Lott

• Decision Date: 11 December 2002
• Docket Number: No. 1989-0846.,1989-0846.
• Citation: 97 Ohio St.3d 303,779 N.E.2d 1011,2002 Ohio 6625
• Parties: The STATE of Ohio, Appellee, v. LOTT, Appellant.
• Court: Ohio Supreme Court

Page 1011

779 N.E.2d 1011

97 Ohio St.3d 303

2002 Ohio 6625

The STATE of Ohio, Appellee, v. LOTT, Appellant.

No. 1989-0846.

Supreme Court of Ohio.

Submitted September 25, 2002.

Decided December 11, 2002.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Jon W. Oebker, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, and James V. Canepa, Chief, Capital Crimes Section, for appellee.

David H. Bodiker, Ohio Public Defender, J. Joseph Bodine Jr., Assistant State Public Defender, and Gregory Meyers, Chief Counsel, Death Penalty Division, for appellant.

Michael Kirkman, Jane P. Perry and Ohio Legal Rights Service, for amici curiae The Arc of Ohio, Advocacy and Protective Services, Cerebral Palsy Association of Ohio, Ohio Association of County Boards of Mental Retardation and Developmental Disabilities, Developmental Disabilities Planning Council, and Ohio Legal Rights Service.

PER CURIAM.

{¶ 1} Appellant, Gregory Lott, was convicted of the aggravated murder of John McGrath and sentenced to death. Lott appealed, and the court of appeals affirmed his conviction and death sentence. State v. Lott (Mar. 16, 1989), Cuyahoga App. No. 54537, 1989 WL 24927. We also affirmed Lott's conviction and death sentence. State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293.

{¶ 2} Lott's subsequent petition for postconviction relief was denied, see (Nov. 3, 1994), Cuyahoga App. Nos. 66388, 66389 and 66390, 1994 WL 615012, and we refused to accept jurisdiction of his appeal. See State v. Lott (1995), 71 Ohio St.3d 1491, 646 N.E.2d 467. His successive petition for postconviction relief was also denied, see Cuyahoga App. Nos. 79790, 79791 and 79792, 2002-Ohio-2752, 2002 WL 1265579, and we declined to accept jurisdiction. State v. Lott, 96 Ohio St.3d 1475, 2002-Ohio-4159, 773 N.E.2d 552.

{¶ 3} The United States District Court also denied Lott's application for habeas relief in Lott v. Coyle (1998), 2 F.Supp.2d 961. The Sixth Circuit affirmed in (C.A.6, 2001), 261 F.3d 594, certiorari denied, Lott v. Bagley (2002), 534 U.S. 1147, 122 S.Ct. 1106, 151 L.Ed.2d 1001. We set Lott's execution date for August 27, 2002. State v. Lott, 95 Ohio St.3d 1471, 2002-Ohio-2444, 768 N.E.2d 1180.

{¶ 4} On June 20, 2002, the Supreme Court of the United States ruled that the execution of mentally retarded criminals violates the Eighth Amendment's ban on cruel and unusual punishments. Atkins v. Virginia (2002), 536 U.S 304, 122 S.Ct. 2242, 153 L.Ed.2d 335.

{¶ 5} On June 26, 2002, Lott's attorneys filed a motion in this court seeking to vacate his death sentence pursuant to Atkins v. Virginia, claiming that Lott was mentally retarded. In the alternative, Lott asked that his August 27 execution be stayed and that he be provided the assistance of psychiatric experts and an evidentiary hearing. On July 16, 2002, Lott also filed a second successive petition for postconviction relief with the trial court raising the Atkins issue and requesting the same relief as raised on this appeal. On July 23, 2002, the trial court abated further proceedings on Lott's petition pending a decision from this court. On August 14, 2002, we granted Lott's motion for a stay of execution. 96 Ohio St.3d 1474, 2002-Ohio-4159, 773 N.E.2d 551.

{¶ 6} On September 6, 2002, we directed that oral argument be held on the following issues: (a) the appropriate procedures to enforce the constitutional restrictions established under Atkins, including the procedure to be followed when a defendant such as Lott has completed postconviction proceedings, and (b) the appropriate substantive standard to be applied in adjudicating claims that a defendant in a capital case is mentally retarded. 96 Ohio St.3d 1496, 2002-Ohio-4674, 774 N.E.2d 1220. On September 25, 2002, we heard oral argument on these issues.

{¶ 7} Lott argues that he is mentally retarded and submits test results showing that he scored a 72 on an IQ test administered in August 1986. Lott argues that an IQ of 72 places him within the mentally retarded range of intellectual functioning since there is a five-point margin of error on any IQ test score. Additionally, Lott submits five affidavits from family and friends showing personality problems and behavioral indicators of early-life trauma.

{¶ 8} Other evidence tends to refute Lott's claim. Test results introduced during the mitigation phase of Lott's trial indicated that "Lott's intelligence quotient ranged in the low average categories, with `I.Q.' tests yielding results of 77-81, 83-91, and 87-97." State v. Lott, 51 Ohio St.3d at 172, 555 N.E.2d 293. Moreover, the state has submitted a sixth grade IQ test showing that Lott's IQ was in a reported range of 87-97, and a 1984 test showing a full scale IQ of 86.

{¶ 9} Whether Lott is mentally retarded is a disputed factual issue, which we believe is best resolved in the trial court. The defense should have the opportunity to present additional evidence on Lott's mental retardation before a final decision is made.

{¶ 10} Although Atkins barred the execution of the mentally retarded, it did not establish procedures for determining whether an individual is "mentally retarded" for purposes of escaping execution. Rather, the Supreme Court left it to the states "to develop `appropriate ways to enforce the constitutional restrictions' on executing the mentally retarded, just as [the court] developed new safeguards to prevent the execution of the insane following the Court's ruling Ford v. Wainwright [(1986), 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335]." Hill v. Anderson (C.A.6, 2002), 300 F.3d 679, quoting Atkins, 536 U.S. at ___, 122 S.Ct. 2242, 153 L.Ed.2d 335. "Ohio should have the opportunity to develop its own procedures" for resolving Atkins claims. Hill at 682; see, also, Murphy v. State (Okla.Crim.App. 2002), 54 P.3d 556, 567, 2002 OK CR 32, ¶ 29.

{¶ 11} In the absence of a statutory framework to determine mental retardation, Ohio courts should observe the following substantive standards and procedural guidelines in determining whether convicted defendants facing the death penalty are mentally retarded. The standards for mental retardation set forth in this opinion, as well as the requirement that the defendant raise and prove mental retardation, shall also apply to defense claims of mental retardation raised at trial.

{¶ 12} Clinical definitions of mental retardation, cited with approval in Atkins, provide a standard for evaluating an individual's claim of mental retardation. Id. at fn. 3, citing definitions from the American Association of Mental Retardation and the American Psychiatric Association. These definitions require (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18. Most state statutes prohibiting the execution of the mentally retarded require evidence that the individual has an IQ of 70 or below. See Ky.Rev. Stat. 532.130 and 532.140; Neb.Rev.Stat. 28-105.01(2); N.M.Stat. 31-20A-2.1; N.C.Stat. 15A-2005; S.D. Codified Laws 23A-27A-26.2; Tenn.Code 39-13-203(b); and Wash.Rev.Code 10.95.030(2). While IQ tests are one of the many factors that need to be considered, they alone are not sufficient to make a final determination on this issue. Murphy v. State, 54 P.3d at 568, 2002 OK CR 32, at ¶ 29. We hold that there is a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70.

{¶ 13} The procedures for postconviction relief outlined in R.C. 2953.21 et seq. provide a suitable statutory framework for reviewing Lott's Atkins claim. See State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131, syllabus; cf. State v. Scott (2001), 91 Ohio St.3d 1268, 1268-1271, 747 N.E.2d 242 (Cook, J., dissenting).

{¶ 14} R.C. 2953.23(A) provides that a court may not entertain a second petition or successive petitions unless "(1) [e]ither of the following applies:

{¶ 15} "(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.

{¶ 16} "(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right."

{¶ 17} Lott's Atkins claim satisfies the requirements of R.C. 2953.23(A)(1)(b) because the Supreme Court has recognized a new federal right applying retroactively to convicted defendants facing the death penalty. Because Lott's claim is in the nature of a postconviction relief claim filed for the first time since Atkins established the new standard for mental retardation, Lott's petition is more akin to a first petition than a successive petition for postconviction relief. Thus, the R.C. 2953.23(A)(2) "clear and convincing" threshold required for considering successive petitions for postconviction relief shall not apply to petitioners raising the Atkins issue, such as Lott. Rather, the trial court shall decide whether the petitioner is mentally retarded by using the preponderance-of-the-evidence standard.

{¶ 18} The three-part test defining mental retardation, as cited in Atkins, provides the trial court with the constitutional standard for reviewing the evidence. In considering an Atkins claim, the trial court shall conduct its own de novo review of the evidence in determining whether the defendant is mentally retarded. The trial court should rely on professional evaluations of Lott's mental status, and consider expert testimony, appointing experts if necessary, in deciding this matter. The trial court shall make written findings and set forth its rationale for finding the defendant mentally retarded or not mentally retarded. We believe...