Michael Wayne Howell v. State of Tennessee - Concurring and Dissenting ( 2004 )

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 7, 2004 Session
MICHAEL WAYNE HOWELL v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. P-14334 Hon. Otis Higgs, Jr., Judge
No. W2003-01056-SC-R11-PD - Filed November 16, 2004
FRANK F. DROWOTA , III, J., concurring and dissenting.
I concur in the majority decision insofar as it holds that neither Apprendi v. New Jersey,1 nor
Ring v. Arizona.2 mandates a jury trial on mental retardation. I also agree with the majority that
mental retardation is not an element of the offense which the State must disprove beyond a
reasonable doubt. Furthermore, I agree with the majority that the General Assembly adopted a
bright-line rule requiring individuals claiming mental retardation to present proof of an I.Q. of
seventy or below. However, I disagree with the majority’s conclusion that Michael Wayne Howell
is entitled to reopen his petition for post-conviction relief and to have an evidentiary hearing on his
mental retardation claim. In my opinion, the trial court scrupulously applied the governing legal
standards and correctly denied Howell’s motion to reopen for failure to state a prima facie claim of
mental retardation. In my view, Due Process does not require trial courts to apply the “colorable
claim” standard to a motion to reopen alleging mental retardation. For these reasons, I would affirm
the judgment of the Court of Criminal Appeals.
Analysis
The Tennessee General Assembly in 1990 enacted legislation prohibiting the execution of
mentally retarded individuals. Tenn. Code Ann. § 39-13-203 (2003). The General Assembly did
not provide for retroactive application of this statute. Eleven years later, however, a majority of this
Court held that the state constitution prohibits executing individuals who are mentally retarded. Van
Tran v. State, 66 S.W.3d 790 (Tenn. 2001).3 The majority in Van Tran determined that the newly
recognized constitutional right “warrant[ed] retroactive application to cases on collateral review.”
1
530 U.S. 466 (2000).
2
536 U.S. 584 (2002).
3
The United States Supreme Court thereafter held that the Eighth Amendment to the United States Constitution
prohibits executing the mentally retarded. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
66 S.W.3d at 811. Centrally important to the issues presented in this appeal is the fact that Van Tran
was itself a motion to reopen proceeding. Id. at 792. In providing directions for the trial court to
follow upon remand in evaluating the motion to reopen this Court in Van Tran stated:
the trial court shall hear the petitioner’s motion to reopen and make a determination as to the
petitioner’s alleged mental retardation. The applicable criteria are those presently set forth
by statute: (1) significantly sub-average general intellectual functioning as evidenced by a
functional intelligence quotient (I.Q.) of seventy (70) or below; (2) deficits in adaptive
behavior: and (3) mental retardation manifested during the developmental period, or by
eighteen (18) years of age.
66 S.W.3d at 812. Thus, in Van Tran, this Court recognized the constitutional prohibition against
executing the mentally retarded, explained that this right should apply retroactively to cases on
collateral review, and instructed trial courts to evaluate motions to reopen alleging mental retardation
under Tennessee Code Annotated section 39-13-203.
Clearly, the trial court in this case scrupulously followed the directives this Court provided
in Van Tran. The trial court evaluated Howell’s motion to reopen under Tennessee Code Annotated
section 39-13-203. The trial court denied Howell’s motion to reopen upon finding that Howell had
failed to make a prima facie case on two of the three criteria this Court identified in Van Tran – an
I.Q. of seventy (70) or below and deficits in adaptive behavior. The trial court pointed out that the
Wechsler Adult Intelligence Scale-3rd Edition (“WAIS-III”) did not show Howell’s I.Q. to be
seventy (70) or below, and the trial court emphasized that Howell had failed to allege facts to show
deficits in adaptive behavior. Thus, the trial court found:
The Petitioner has failed to make a prima facie case that he was mentally retarded at
the time he committed the offenses for which he was convicted. He does not qualify
as a mentally retarded defendant in accordance with the criteria set forth in Tennessee
Code Annotated § 39-13-203, and as such, his death penalty is not unconstitutional.
This Motion to Re-Open Petition for Post-Conviction Relief is without merit and
should be dismissed without the benefit of a hearing.
I do not agree with Howell’s assertion that the trial court abused its discretion by dismissing
the motion to reopen without a hearing. Howell argues that the trial court should not have accredited
his performance on the WAIS-III to the exclusion of his scores on the other I.Q. tests administered.4
Neither this Court nor the General Assembly has instructed trial courts to accredit a particular test
4
The W AIS-III yielded a verbal I.Q. of 75, performance IQ of 75, and full scale I.Q. of 73. The Standford Binet
Intelligence Test-Fourth Edition yielded a composite score of 62, a verbal reasoning score of 60, an abstract reasoning
score of 78, a quantitative reasoning score of 60, and a short-term memory score of 68. The Comprehensive Test of
nonverbal intelligence yielded a nonverbal I.Q. of 67, a pictorial nonverbal I.Q. of 70, and a geometric nonverbal I.Q.
of 68.
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when determining whether an individual’s I.Q. is seventy or below.5 Nonetheless, in my view, the
trial court did not abuse its discretion by accrediting the WAIS-III results to the exclusion of the
results of the other I.Q. tests administered. The United States Supreme Court has held that the
WAIS-III is “the standard instrument in the United States for assessing intellectual functioning.”
Atkins, 122 S. Ct. at 2245 n.5. Another federal court has referred to the WAIS-III as the “gold
standard I.Q. test.” Walton v. Johnson, 269 F. Supp. 692 (W.D. Va. 2003). In my view, where an
individual’s I.Q. as measured by the standard test in the field negates the individual’s claim of mental
retardation, a trial court does not abuse its discretion by denying a motion to reopen. Not only did
the WAIS-III full scale I.Q. of 73 negate Howell’s mental retardation claim, in the very proceeding
Howell now seeks to reopen, Howell has presented evidence of an I.Q. of 91. Howell v. State, No.
02C01-9706-CR-00200, 1997 WL 746438, at *7 (Tenn. Crim. App. 1997), perm. app. denied (Tenn.
June 8, 1998). Under these circumstances, the trial court did not abuse its discretion by dismissing
Howell’s motion to reopen after determining that Howell had failed to present essential evidence of
an I.Q. of seventy or below.
Furthermore, although generally stating that Howell has deficits in adaptive behavior, the
affidavit offered in support of Howell’s motion to reopen does not include facts supporting these
statements. Again, in my view, a trial court does not abuse its discretion by dismissing a motion to
reopen that is based upon an affidavit which includes only conclusions rather than facts.
Additionally the record clearly reveals that the trial court did not base its dismissal of
Howell’s motion to reopen upon the clear and convincing evidence standard of Tennessee Code
Annotated section 40-30-117(a)(4). Nor did the Court of Criminal Appeals base its decision upon
Howell’s failure to meet that clear and convincing evidence standard. To be sure, the Court of
Criminal Appeals quoted the clear and convincing evidence standard and cited Tennessee Code
Annotated section 40-30-117(a)(4). Nonetheless, the intermediate appellate court applied, correctly,
the “abuse of discretion” standard of Tennessee Code Annotated section 40-30-117(c), stating
“[b]ased upon the foregoing, we cannot conclude that the trial court abused its discretion in denying
the motion to reopen.” Thus, the majority opinion is based upon a premise that simply is not
accurate as a matter of fact. Neither the trial court nor the Court of Criminal Appeals denied
Howell’s motion to reopen for failure to satisfy the clear and convincing evidence standard of section
40-30-117(a)(4). Consistent with this Court’s decision in Van Tran, the trial court evaluated the
motion under Tennessee Code Annotated section 39-13-203 and determined that Howell had failed
to make out a prima facie claim of mental retardation. In doing so, the trial court employed a
procedure approved by this Court in Van Tran, and the record does not, in my view, indicate that the
trial court abused its discretion either by accrediting the results of the WAIS-III or by finding that
Howell had failed to allege facts demonstrating deficits in adaptive behavior.
5
The General Assembly may wish to consider designating a test or tests for courts to consider. Otherwise, this
determination likely will continue to be plagued with confusion and uncertainty. Nothing in this Court’s decision in Van
Tran nor in the United States Supreme Court’s decision in Atkins forecloses legislation designating one or more tests.
Indeed, the United States Supreme Court in Atkins left to the states “the task of developing appropriate ways to enforce
[the] constitutional restriction” upon executing mentally retarded individuals. 122 S. Ct. at 2250
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Furthermore, the standard applied by the trial court appears to be less searching, or in any
event, certainly no more searching, than the “colorable claim” standard the majority settles upon by
way of a complicated and unnecessary constitutional analysis. In adopting the “colorable claim”
standard as a purported matter of constitutional necessity, the majority disregards the longstanding
principle that courts do not decide constitutional questions unless resolution is absolutely necessary
to determine the issues in a case and adjudicate the rights of the parties. State v. Taylor, 70 S.W.3d
717, 720 (Tenn. 2002); Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995) (citing cases); see also
Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138, 157,
(1984) ( "It is a fundamental rule of judicial restraint ... that this Court will not reach constitutional
questions in advance of the necessity of deciding them.");Spector Motor Serv., Inc. v. McLaughlin,
323 U.S. 101, 105 (1944) ("If there is one doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ...
unless such adjudication is unavoidable."); Burton v. United States, 196 U.S. 283, 295 (1905) ("It
is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary
to a decision of the case."); Firestone v. Galbreath, 976 F.2d 279, 286 (6th Cir.1992) ("Deciding
constitutional issues only after considering and rejecting every nonconstitutional ground for the
decision is a fundamental rule of judicial restraint."). Furthermore, when considering the
constitutionality of a statute, courts are duty-bound to adopt a construction that will sustain the
statute and avoid constitutional conflict if at all possible, and this duty requires courts to indulge
every presumption and to resolve every doubt in favor of the statute's constitutionality. See Taylor,
70 S.W.3d at 721; State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn.2001); Helms v. Tennessee Dept.
of Safety, 987 S.W.2d 545, 549 (Tenn.1999); In Re Petition of Burson, 909 S.W.2d 768, 775
(Tenn.1995); State v. Lyons, 802 S.W.2d 590, 592 (Tenn.1990). In this appeal, the majority appears
to indulge every presumption against the constitutional validity of the clear and convincing evidence
standard of Tennessee Code Annotated section 40-30-117(a)(4) and adopts a construction that
creates a constitutional conflict, which the majority then resolves by ignoring this Court’s prior
decision in Van Tran and by then engrafting the “colorable claim” standard upon the motion to
reopen statute.
Not only am I convinced that the majority should have declined to create and then rule upon
a constitutional issue, I also am constrained to disagree with the majority’s resolution of the
constitutional issue it creates. In my view, applying the clear and convincing evidence standard of
Tennessee Code Annotated section 40-30-117(a)(4) would not violate Howell’s constitutional right
to Due Process; therefore, engrafting the “colorable claim” standard upon section 40-30-117(a) is
not a constitutional necessity, as the majority holds. Applying the balancing test enunciated in
Burford v. State, 845 S.W.2d 204, 209 (Tenn. 1992), the private interest at stake in this case is not
Howell’s opportunity to challenge his death sentence on the ground of mental retardation under this
Court’s decision in Van Tran and the United States Supreme Court’s decision in Atkins. Howell,
in fact, has been afforded already such an opportunity. Instead, the private interest at stake is
Howell’s opportunity to have his challenge considered under a “colorable claim” standard rather than
the statutory standard of clear and convincing evidence. As the State points out, Howell’s interest
is fundamentally different than the private interests at stake in Burford and its progeny, where the
petitioners were entirely barred from seeking post-conviction relief by the applicable statute of
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limitations. See also Workman v. State, 41 S.W.3d 100 (Tenn. 2001);Williams v. State, 44 S.W.3d
464 (Tenn. 2001); Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Watkins v. State, 903 S.W.2d 302(Tenn. 1995). In each of these prior cases, this Court observed that the statute of limitations operated
to “terminate” an otherwise existing statutory right to seek post-conviction relief. Seals, 23 S.W.3d
at 277 (quoting Burford). Because the motion to reopen statute does not entirely preclude Howell
from seeking relief from his death sentence based upon his claim of mental retardation, the the risk
of erroneous deprivation is minimal. On the other hand, the State has a substantial interest both in
the finality of criminal judgments and in preventing groundless claims that inevitably arise with
newly recognized constitutional rules. The State has chosen to protect these interests by creating a
summary statutory procedure that is designed to winnow out frivolous claims. See Harris v. State,
102 S.W.3d 587 (Tenn. 2003). Applying the clear and convincing evidence standard to enforce the
State’s interests appears particularly appropriate in this case. Howell has availed himself of appellate
and post-conviction remedies. More importantly, in the very proceeding he now seeks to reopen,
Howell offered proof of an I.Q. of 91 – proof that negates his present claim of mental retardation.
Howell v. State, No. 02C01-9706-CR-00200, 1997 WL 746438, at *7 (Tenn. Crim. App. 1997),
perm. app. denied (Tenn. June 8, 1998). For these reasons I do not agree with the majority that
applying the clear and convincing evidence standard of Tennessee Code Annotated section 40-30-
117(a)(4) would violate Howell’s constitutional right to Due Process.
Furthermore, even if I agreed with the majority on the constitutional issue it creates, I would
not agree with the majority’s decision. At the risk of redundancy, I am compelled to again point out
that the trial court simply did not base dismissal of Howell’s motion to reopen upon the clear and
convincing evidence standard of Tennessee Code Annotated section 40-30-117(a)(4). Consistent
with Van Tran, the trial court evaluated the motion to reopen to determine whether Howell had
alleged a prima facie claim of mental retardation. In my view, the trial court did not abuse its
discretion in doing so. Howell has not been deprived of an opportunity to present his claim. The
failure of Howell’s motion to reopen is the result of his failure to offer proof of a prima facie claim
of mental retardation.
Conclusion
For the reasons herein stated, I concur in the majority decision insofar as it holds that a jury
trial on mental retardation is not mandated by the state or federal constitution. I also agree with the
majority that mental retardation is not an element of the offense which the State must disprove
beyond a reasonable doubt. However, I disagree with the majority’s conclusion that Michael Wayne
Howell is entitled to reopen his petition for post-conviction relief and to have an evidentiary hearing
on his mental retardation claim. I would affirm the decision of the Court of Criminal Appeals which
affirmed the decision of the trial court.
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FRANK F. DROWOTA III, CHIEF JUSTICE
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