State v. White
| Decision Date | 09 April 2008 |
| Docket Number | No. 2006-0295.,2006-0295. |
| Citation | 2008 Ohio 1623,885 N.E.2d 905,118 Ohio St.3d 12 |
| Parties | The STATE of Ohio, Appellee, v. WHITE, Appellant. |
| Court | Ohio Supreme Court |
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.
David Bodiker, Ohio Public Defender, and Kathryn L. Sandford and Richard J. Vickers, Assistant Public Defenders, for appellant.
Michael Kirkman and Jane P. Perry, Columbus, urging reversal for amici curiae Ohio Legal Rights Service and The Arc of Ohio.
{¶ 1} This appeal involves a claim by petitioner-appellant, Clifton White III, that he is mentally retarded and therefore constitutionally ineligible for the death penalty.
{¶ 2} In 1995, White broke up with his girlfriend, Heather Kawczk. Weeks later, White killed Kawczk's mother and Deborah Thorpe, who was the mother of Kawczk's new boyfriend, Michael Thorpe. During a subsequent confrontation at Kawczk's place of employment, White attempted to kill Michael Thorpe. See State v. White (1999), 85 Ohio St.3d 433, 433-434, 709 N.E.2d 140.
{¶ 3} White was sentenced to death for the aggravated murder of Deborah Thorpe. On direct appeal, we affirmed his conviction and death sentence. Id. The trial court dismissed White's initial petition for postconviction relief in March 1998, and the court of appeals affirmed. State v. White (June 16, 1999), Summit App. No. 19040, 1999 WL 394938.1
{¶ 4} On June 20, 2002, the United States Supreme Court held that the Eighth Amendment prohibits sentencing to death persons who are mentally retarded. Atkins v. Virginia (2002), 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. On July 22, 2002, White commenced the instant litigation by filing a successor petition for postconviction relief.2 In that petition, White asserted that he was mentally retarded and hence, under Atkins, could not be executed.
{¶ 5} In Atkins, 536 U.S. at 308, 122 S.Ct. 2242, 153 L.Ed.2d 335, fn. 3, the United States Supreme Court quoted the definitions of mental retardation promulgated by the American Association on Mental Retardation ("AAMR") and the American Psychiatric Association ("APA").
{¶ 6} The AAMR defines mental retardation as " " Atkins, 536 U.S. at 308, 122 S.Ct. 2242, 153 L.Ed.2d 335, fn. 3.
{¶ 7} The APA's definition is similar: " Id.
{¶ 8} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, ¶ 12, we held:
{¶ 9} At White's request, the trial court appointed Dr. David Hammer, a psychologist, as the petitioner's expert in mental retardation. The state retained as its expert Dr. John M. Fabian, a clinical and forensic psychologist.
{¶ 10} Drs. Hammer and Fabian jointly conducted testing to determine whether White was mentally retarded. They administered the Wechsler Adult Intelligence Scale, Third Edition ("WAIS-III"), a standard IQ test; the Wide Range Achievement Test, Third Edition ("WRAT-III"), which measures academic achievement; and the Scales of Independent Behavior — Revised ("SIB-R"), which measures adaptive skills. They also interviewed White to obtain information for the SIB-R. Finally, they reviewed White's educational, medical, correctional, and children-services records, along with earlier psychological evaluations performed in connection with White's aggravated-murder trial.
{¶ 11} Drs. Fabian and Hammer administered the WAIS-III on July 28, 2003. White's IQ, as measured by that test, was 52.
{¶ 12} Drs. Fabian and Hammer also administered the WRAT-III. White's WRAT-III scores "indicate very poor academic abilities * * * equivalent to about the second-grade level." This result was consistent with White's score on the WAIS-III.
{¶ 13} "[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills * * * that became manifest before age 18." Atkins, 536 U.S. at 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. Adaptive skills are those skills that one applies to the everyday demands of independent living, such as taking care of oneself and interacting with others. Adaptive behavior tests are designed to assess how a person applies those skills in the tasks of everyday life.
{¶ 14} Drs. Hammer and Fabian used the SIB-R to assess whether White had significant limitations in adaptive skills. The SIB-R consists of 259 questions. Each question seeks to measure how well the subject can perform a particular task. The questions are divided among 14 "scales" or "domains." Each scale contains between 16 and 20 questions designed to evaluate the subject's skills in one of 14 categories: gross motor skills, fine motor skills, social interaction, language comprehension, language expression, eating and meal preparation, "toileting" (i.e., using the toilet), dressing, "personal self-care" (i.e., health and hygiene), domestic skills, time and punctuality, money and value, work skills, and "home/community orientation." The 14 scales are grouped into four "clusters": motor skills, social/communication, personal living, and community living.
{¶ 15} To administer the SIB-R, the examiner interviews "informants" — for example, parents, other relatives, or teachers — who are well acquainted with the person being evaluated. The informants provide the examiner with information about the subject's abilities. The examiner then uses this information to score the SIB-R.
{¶ 16} Each question on the SIB-R is scored on a scale of zero to three. According to Dr. Hammer, a zero means that the subject either cannot perform a particular task "or has not really had a chance to do something like that." A "1" means the subject "can't do [the task] very well." A "2" means he can "do it fairly well most of the time, but they might have to be asked to do it; they don't necessarily initiate on their own." A "3" means that the subject can routinely perform the task "very well and do it independently without being asked."
{¶ 17} The examiner explains this rating system to the informants, then asks them to rate how well the subject can perform each task. If the informant has never seen the subject attempt a particular task, or if the subject has never had an opportunity to perform it, the informant is asked to estimate the subject's ability to perform it. If the informants cannot make an estimate, the examiner makes his own estimate, based on his observations of the subject and any other information he can obtain.
{¶ 18} When all questions have been scored, the points on each scale are added, yielding a raw score. A computer program converts the raw score into a scaled score for each scale. These scaled scores are averaged to yield a score for each cluster, and the cluster scores in turn are averaged to yield an overall "broad independence" score. The cluster scores can be used to cross-check the broad independence score for consistency.
{¶ 19} On July 28, 2002, after Dr. Fabian administered the WAIS-III to White, Drs. Hammer and Fabian together interviewed White for approximately one hour to evaluate his adaptive functioning. Dr. Hammer later used information from this interview in scoring White's SIB-R. However, he did not use White's information as his sole basis for scoring any question, and he estimated that "probably less than 10 percent" of his information came from White.
{¶ 20} On October 20, 2003, Drs. Hammer and Fabian together interviewed White's mother, his sisters Keisha and Erica, and his brother Eric. White's mother and Erica provided most of the information for Dr. Hammer's scoring of the SIB-R. Dr. Hammer later scored each question on the SIB-R, based on the family's responses and other information, including information obtained from White and his own observations of White.
{¶ 21} In Dr. Hammer's opinion, White had significant limitations in more than two of the ten adaptive-skill areas covered by the AAMR definition of retardation. In Dr. Fabian's opinion, White was deficient in 12 of the 14 areas measured by the SIB-R. Dr. Fabian considered White's overall adaptive skills comparable to those of an average person age 11 years, ten months.
{¶ 22} White's "broad independence" score on the SIB-R was 55. According to Dr. Hammer, a broad independence score below 70 indicates significantly subaverage functioning. White's overall score was consistent with the WAIS and WRAT results and was in the lowest percentile for White's age group.
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