State v. Strode

• Citation: 232 S.W.3d 1
• Decision Date: 14 August 2007
• Docket Number: No. M2005-00906-SC-R11-DD.,M2005-00906-SC-R11-DD.
• Parties: STATE of Tennessee v. Danny STRODE.
• Court: Supreme Court of Tennessee

232 S.W.3d 1

STATE of Tennessee v. Danny STRODE.

No. M2005-00906-SC-R11-DD.

Supreme Court of Tennessee, at Nashville.

May 30, 2007 Session Heard at Cookeville¹.

August 14, 2007.

Cynthia A. LeCroy-Schemel, Chattanooga, Tennessee, for the appellant, Danny Strode.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope III, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and GARY R. WADE, JJ., joined.

In this capital case, we consider whether the State may pursue an interlocutory appeal from a trial court's determination that a defendant is ineligible for the death penalty due to mental retardation. Upon holding that it may, we also consider whether the trial court erred in finding the Defendant, Danny Strode, mentally retarded as set forth in Tennessee Code Annotated section 39-13-203(a) (2003). We hold that Tennessee Code Annotated section 39-13-203(a) requires that a defendant's mental retardation must have been manifested by eighteen years of age. Because the proof in this case preponderates against the trial court's finding that the Defendant's mental retardation manifested by his eighteenth birthday, we hold that the trial court erred in finding the Defendant to be mentally retarded and therefore ineligible for the death penalty. Accordingly, we affirm the judgment of the Court of Criminal Appeals. This matter is remanded to the trial court for further proceedings consistent with this opinion.

Factual Background

The Defendant, Danny Strode, is charged with premeditated murder, felony murder, and especially aggravated robbery in the December 17, 2001, death of Bledsoe County store owner Harvey J. Brown. On that date, the Defendant was twenty years of age.² After the State filed a Notice of Intent to Seek Death Penalty, the defense filed a Motion to Strike the Notice on the basis that the Defendant suffered from mental retardation under the criteria of Tennessee Code Annotated section 39-13-203(a) and was thus ineligible for the death penalty.³ Following psychological examination, a hearing was held on the Motion to Strike.

To place the evidence in context, the factual determination before the trial court was whether the Defendant met the criteria for mental retardation as that condition is defined in the statute. Tennessee Code Annotated section 39-13-203(a) defines "mental retardation" to mean:

(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The mental retardation must have been manifested during the developmental period, or by eighteen (18) years of age.

Tenn.Code Ann. § 39-13-203(a) (2003). Furthermore, it is the Defendant's "burden of production and persuasion to demonstrate mental retardation by a preponderance of the evidence." Id. at (c).

The first witness to testify was Margie Strode Crawford, the Defendant's adoptive mother. Ms. Crawford testified that she took the Defendant into her home as a foster child in the spring of 1993 when he was eleven years old. She later adopted him. The Defendant stayed in her home for approximately two years before leaving at the age of thirteen or fourteen. Ms. Crawford testified that when he lived with her, the Defendant tended to be a loner, had a hard time making friends, and did not "fit in." He also had problems with basic personal hygiene, and she had to constantly remind him to brush his teeth and bathe. School was difficult for him. Ms. Crawford testified that, based on the problems the Defendant had during the period he lived with her, she did not believe he would ever be able to live independently. Ms. Crawford admitted, however, that she did not have any contact with the Defendant from 1996 until 2001 when the crime in this case was committed.

Clinical psychologist Dr. Robert W. Brown, Jr., also testified for the defense. Dr. Brown evaluated the Defendant for a total of twenty hours over the course of four days in 2004. The evaluation process included clinical observations, interviews, a review of records, and psychological testing. Dr. Brown began the testing process by giving the Defendant a series of tests to determine whether he was malingering — that is, attempting to exaggerate deficits or problems, or attempting to feign deficits or problems that he did not actually have. Dr. Brown concluded on the basis of these tests that the Defendant was not malingering.

As to the first prong of the statute, whether the Defendant had "significantly subaverage general intellectual functioning," Dr. Brown's intelligence quotient (I.Q.) testing indicated that the (then twenty-three-year-old) Defendant had a functional I.Q. of 69, which placed him in the category of "mentally retarded." Dr. Brown admitted that this was the lowest score the Defendant had ever received on any I.Q. test, and the Defendant had never received an I.Q. score of 70 or below prior to this test. Tests given the Defendant earlier in life had higher results: an I.Q. of 88 at the age of eight, 75 at the age of eleven, 78 at the age of thirteen, and 78 at the age of fifteen.⁴ Dr. Brown opined that the Defendant's I.Q. had likely dropped over time due to a learning disability. He admitted on cross-examination, however, that the results from the tests administered in 2004, when the Defendant was twenty-three years old, could not necessarily be projected back to support the proposition that he had an I.Q. of 70 or less before he was eighteen years old.

As to the second prong of the statute, deficits in adaptive behavior, Dr. Brown admitted that there was no formal assessment of the Defendant's adaptive functioning during his school-age years. Furthermore, he found that the Defendant was not a useful source of information on this point because he had memory problems. For that reason, Dr. Brown relied on Ms Crawford's account of the Defendant's adaptive skills, a report from Youth Villages,⁵ and his own observations during the evaluation. The report from Youth Villages, made when the Defendant was nineteen years old, stated that he "lack[ed] the independent living skills necessary for successful living following discharge." Dr. Brown concluded that the Defendant had a "significant deficit in adaptive functioning" prior to the age of eighteen.

Regarding the third prong of the statute, whether the mental retardation manifested during the developmental period, or by eighteen years of age, Dr. Brown responded that, "[t]o my satisfaction the problem we have today he had when he was in kindergarten, so it was before 18, yes." He acknowledged that previous test scores did not show an I.Q. of 70 or less before the Defendant was eighteen years of age. Even though his testing led him to a conclusion that the Defendant was mentally retarded in 2004 at the age of twenty-three, Dr. Brown conceded that the records upon which he based his opinion "[did] not show that he meet[s] the criteria of diagnosis for mild mental retardation [prior to age eighteen]."

Dr. Brown also acknowledged that the records reflected that at the age of fifteen, the Defendant enjoyed such activities as playing in the woods, riding bicycles, and playing on a community football team — activities in which any average fifteen-year-old boy would engage. He further acknowledged that as an adult, the Defendant had worked as a backhoe operator, a dairy farmer, a factory worker, a baby-sitter, and in the fast-food industry. The Defendant had also earned a driver's license.

Ultimately, Dr. Brown admitted that the Defendant's mental retardation did not manifest itself in the records prior to the age of eighteen. However, he opined that the "developmental period" cited in the statute referred to brain and cognitive functioning. According to Dr. Brown, the brain does not reach maturity until the age of twenty-four to twenty-six years old. His testing of the Defendant, done at age twenty-three, therefore confirmed mental retardation manifested during the developmental period.

Clinical psychologist Eric Engum testified for the State. Dr. Engum did not personally interview the Defendant. He reviewed the tests conducted by Dr. Brown, as well as the psychological reports done prior to the Defendant's eighteenth birthday that Dr. Brown relied upon in his evaluation of the Defendant. As to the first prong of the statute, significantly subaverage general intellectual functioning, Dr. Engum testified that prior to Dr. Brown's tests, no previous evaluation of the Defendant showed that he had an I.Q. lower than 70. Every psychological evaluation up to that time indicated that the Defendant was in the "borderline range of intellectual functioning" but was not mentally retarded under this standard. Dr. Engum was more ambivalent than Dr. Brown about the possibility that the Defendant was malingering. While he agreed there was no "compelling" or "clear and convincing" evidence of malingering, he opined that some of the test results suggested that the Defendant was not putting forth a full effort.

As to the second prong of the statute, deficits in adaptive behavior, Dr. Engum questioned the reliability of assessing the Defendant's adaptive behavior at age thirteen and then projecting or extrapolating how the Defendant would function later in life. He saw no evidence in the records that the Defendant suffered from deficits in adaptive behavior prior to age eighteen that could be associated with mental retardation, and insufficient evidence that the Defendant exhibited deficits in adaptive behavior at the time of the commission of the offense. Noting the Defendant's ability to operate a motor vehicle, hold a...