CHIEF JUSTICE: MISS CAREY. GOOD MORNING.
MAY IT PLEASE THE COURT. I AM NADA CAREY, REPRESENTING THE APPELLANT WILLIE MILLER THIS. IS AN APPEAL OF A RESENTENCING, IN WHICH THE DEATH SENTENCE WAS IMPOSEED.
WOULD YOU SPEAK UP A LITTLE.
MAYBE RAISE IT A LITTLE. THANK YOU.
MILLER WAS SENTENCED TO DEATH FOR THE MURDER OF JAMES WALLACE. DURING A ROBBERY OF A SMALL, RTF MOM AND POP GROCERY STORE IN JACKSONVILLE, FLORIDA. MILLER'S OLDER BROTHER HE ZEKEIAL APPARENTLY -- EZEKIEL APPARENTLY PLANNED THE ROBBERY.
HE WAS CONVICTED ON THE BASIS OF IT WAS EITHER PREMEDITATED OR FELONY MURDER.
YES. BOTH.
AND WAS CONVICTED OF ROBBERY PLUS BURGLARY.
THAT'S CORRECT, YOUR HONOR.
WE STRUCK THE BURGLARY AND SENT THAT BACK, BUT --
YES, SIR.
-- AS PART OF THE PENALTY PHASE, CORRECT?
YES, SIR. YOU SENT IT BACK FOR A NEW SENTENCING PROCEEDING ONLY, BEFORE A NEW JURY.
RIGHT.
BUT THE FELONY MURDER COULD BE THE ROBBERY.
YES. HE WAS CONVICTED OF ROBBERY. JUST BRIEFLY, THE FACTS, EZEKIEL THE OLDER BROTHER, APPARENTLY ENLISTED WILLIE MILLER HAD, WHO IS MENTALLY RETARDED, AND HIS NEPHEW, SAMUEL FAGAN, 15 YEARS OLD, TO ACTUALLY DO THE ROBBERY. THE EVIDENCE SHOWS THAT THEY ACTUALLY WENT INTO THE STORE. MR. MILLER APPARENTLY SHOT THE GUARD, JAMES WALLACED SAMUEL FAGAN SHOT JAMES YOUNG, THE STORE OWNER. MR. WALLACE WAS SERIOUSLY INJURED AND HOSPITALIZED, AND HE DIED ABOUT SIX MONTHS LATER. THE STORE OWNER, JAMES YOUNG, WAS NOT BADLY HURT. HE RECOVERED AND TESTIFIED AT THE TRIAL AND AT THE NEW SENTENCING HEARING.
THE SHOOTING WAS, THE SHOOTING OF THE SECURITY GUARD OCCURRED FIRST, BEFORE THE SECOND SHOOTING?
YES. WELL, THE TESTIMONY ACTUALLY WAS THERE WERE SOME CONTRADICTIONS. SAMUEL FAGAN TESTIFIED AT THE TRIAL, AND AT THE NEW SENTENCING HEARING, HE ACTUALLY SAID, AT THIS PROCEEDING, THAT MR. YOUNG WAS SHOTRST. AT THE TRIAL, HE SAID WILLIE MILLER WAS SHOT FIRST. THE MAJORITY OF THEIDE SEEMS TO INDICATE THAT THEY WEREN'T IN -- THAT THEY WENT IN, AND FAGAN APPROACHED THE SECURITY GUARD AND REMOVED HIS PISTOL. A SHOT WAS HEARD. THE SECURITY GUARD WAS HURT. FAGAN SAYS HE DIDN'T DO IT. AND THEN AFTER THAT, FAGAN HAD THE PISTOL, AND HE SAYS HE SHOT MR. YOUNG.
WAS THE EVIDENCE SUCH THAT WE KNOW THAT THE SECURITY GUARD WAS NOT SHOT WITH HIS OWN WEAPON?
YES. HE WAS SHOT WITH A RIFLE THAT THEY TOOK WITH THEM TO THE ROBBERY.
AND MILLER HAD THE RIFLE.
JAMES YOUNG TESTIFIED THAT HE DIDN'T SEE ANY WEAPONS, UNTIL THE TWO OF THEM WALKED UP TO THE COUNTER. HE ACTUALLY TESTIFIED THAT MR. MILLER STAYED UP NEAR THE FRONT OF THE STORE, WHILE SAMUEL FAGAN APPROACHED THE SECURITY GUARD. AND THAT THE SECURITY GUARD WAS SHOT, AND THEN FAGAN TURNED AROUND, REJOINED MILLER, AND THAT IS THE FIRST TIME HE SAW ANY WEAPONS. MILLER HAD THE RIFLE AND FAGAN HAD THE PISTOL THAT WAS REMOVED FROM THE SECURITY GUARD. SO IT IS NOT COMPLETELY CLEAR, BASED ON YOUNG AND FAGAN'S TESTIMONY, WHAT HAPPENED. THE TRIAL JUDGE DID FIND TWO AGGRAVATING FACTORS, PRIOR VIOLENT FELONY, BASED ON A 1984 ROBBERY THAT WILLIE MILLER COMMITTED, AND PECUNIARY GAIN, BASED ON THE ROBBERY HERE.
HOW MUCH DO WE KNOW ABOUT THAT 1984 ROBBERY?
ALL WE KNOW IS THAT HE WENT INTO A STORE. HE APPARENTLY HAD A PISTOL. AND HE HELD UP, THERE WERE TWO PEOPLE IN THE STORE, A SMALL AMOUNT OF MONEY, AS I RECALL.
HE WAS ALONE IN DOING THAT?
HE WAS ALONE IN THE STORE. HE WAS IDENTIFIED FROM A PICTURE THAT THE SECURITY CAMERA TOOK. THE TRIAL JUDGE, ALSO, FOUND NINE MEDMITIGATING FACTORS, INCLUDING THAT WILLIE -- NINE MITIGATING FACTORS, INCLUDING T WILLIE MILLER RETAR I WOULD LIKE TO ADDRESS TWO ISSUES IN MY BRIEF TODAY, THE FIRST IS THE ISSUE OF CONSTITUTIONALITY OF EXECUTING SOMEONE LIKE WILLIE MILLER, WHO ISTARDED, AND THEN I WOULD LIKE TO ADDRESS A PROPORTIONAL PROPORTIONALITY ARGUMENT AS WELL.
YOU WOULD AGREE THAT THE NEW STATUTE ACCORDING THE MENTALLY MENTALLY-RETARDED IS NOT APPLICABLE IN THIS PARTICULAR CASE.
ON ITS FACE, IT DOES NOT APPLY TO WILLIE MILLER.
HAVE YOU LOOKED AT THIS, IN TERMS OF WHETHER OR NOT THE EVIDENCE IN THIS CASE WOULD, IN FACT, FIT UNDER THAT PARTICULAR STATUTE?
I DO BELIEVE THE EVIDENCE IS VERY CLEAR THAT WILLIE MILLER IS MENTALLY RETARDED, AS SET FORTH IN THE STATUTE. AN EXPERT TESTIFIED THAT HE IS MENTALLY RETARDED. THAT WAS NOT CONTESTED OR REFUTED IN ANY WAY BY THE STATE, AT THE SENTENCING PROCEEDING. HE WAS MOST RECENTLY TESTED WITH AN IQ OF 64, WHICH IS WELL BELOW THE CUT OFF.
WHAT WERE THE JUDGE'S FINDINGS, IN REGARD TO HIS MENTAL RETARDATION?
THE TRIAL JUDGE FOUND THAT HE IS MENTALLY RETARDED AND HAS AN IQ OF 64. THERE IS, ALSO, EVIDENCE THAT HE WAS FOUND TO BE MENTALLY RETARDED BEFORE THE AGE OF 18, WHICH IS THE THIRD CRITERIA, IN OUR STATUTE FOR MENTAL RETARDATION. WHEN HE WAS 17, HE SCORED 59 AND 60 ON IQ TESTS AT THAT POINT.
HE WAS IN SCHOOL AT THAT TIME IN SPECIAL EDUCATION CLASSES?
AT THE AGE OF 17 --
SCHOOL-BASED TESTS.
YEAH. IT WAS SCHOOL-BASED TESTS. HE HAS NEVER GONE BEYOND THE SIXTH DWRAD, SO AT THE -- SIXTH GRADE, SO AT ABOUT THE AGE OF 17 HE WAS STILL IN THE SIXTH GRADE, WHICH IS FAIRLY TYPICAL OF PERSONS WITH MENTAL RETARDATION. HE WAS IDENTIFIED AT A VERY YOUNG AGE, FIRST GRADE, AS HAVING VERY SEVERE ACADEMIC PROBLEMS, AS WELL AS EMOTIONAL DIFFICULTIES AND BEHAVIOR PROBLEMS. AND GOING BACK TO YOUR QUESTION ABOUT THE STATUTE, THE STATUTE, ON ITS FACE, DOESN'T APPLY TO MILLER. IT IS PROSPECT I HAVEY AND S THE REAL QUESTION HERE, FOR YOU, IS HOW DOES THAT IMPACT ON THE CONSTITUTIONAL ARGUMENT, AND WHAT WE ARE ARGUING, AND WHAT WE ARE ASKING YOU TO HOLD IS THAT, UNDER BOTH THE UNITED STATES CONSTITUTION AND UNDER THE FLORIDA CONSTITUTION, EXECUTING SOMEONE WITH MENTAL RETARDATION IS CRUEL AND UNUSUAL PUNISHMENT, AND THEY NOW INSIST, DOES THE PUNISHMENT CONFORM TO THE CONTEMPORARY STANDARDS OF DECENCY, AND TO DETERMINE THAT, THE COURT HAS LOOKED AT PRIMARILY THE ACTS OF THE LEGISLATURE, AND IT IS OUR CONTENTION THAT THIS LAW, PASSED ONE VOTE SHY OF UNANIMOUS BY THE FLORIDA LEGISLATURE, IS VERY STRONG, VERY POWERFUL EVIDENCE THAT THE PEOPLE OF FLORIDA WILL NOT TOLERATE AND ARE OPPOSED TO EXECUTING PERSONS WITH MENTAL RETARDATION.
NOW, GEORGIA HAS USED THAT ANALYSIS TO APPLY THE LAW RETROACTIVELY, OR MAYBE NOT GEORGIA BUT ANOTHER STATE, TO APPLY IT RETROACTIVELY, BUT THERE ARE OTHER STATES THAT HAVE DECLINED TO APPLY SUCH A LAW RETROACTIVELY?
I DON'T KNOW OF ANY STATE THAT HAS DECLINED TO APPLY THE LAW RETROACTIVELY. GEORGIA, I GUESS THE WAY I LOOK AT IT IS THEY ARE NOT REALLY APPLYING THE LAW RETROACTIVELY. WHAT THEY HAVE DONE IS THEY HAVE USED THE LAW AS EVIDENCE TO HOLD THAT, UNDER THE STATE CONSTITUTION, IT IS UNCONSTITUTIONAL. IN OTHER WORDS, IT IS SUCH STRONG EVIDENCE OF SOCIETAL CONSENSUS AGAINST EXECUTING MENTALLY-RETARDED PERSONS, THAT THEY HAVE DECLARED IT UNCONSTITUTIONAL. GEORGIA DID THAT AND RECENTLY THE SUPREME COURT OF TENNESSEE DID THE SAME THING.
WHAT DID INDIAN DO? DIDN'T THEY DEAL WITH THIS -- WHAT DID INDIANA DO? DIDN'T THEY DEAL WITH THIS ISSUESGLU.
NOT THAT I AM -- WITH THIS ISSUE?
NOT THAT I AM AWARE OF.
SORMENT IS NOT TO, TO APPLY THE STATUTE AS PASSED, WHICH IS IF MR. MILLER WAS TRIED AFTER THE DATE OF THIS STATUTE, HE WOULDN'T BE SUBJECT TO THE DEATH PENALTY, BUT BECAUSE HE WAS TRIED BEFORE THE EFFECTIVE DATE, HE IS, THAT THAT, ANYTHING TO DO WITH THAT JUST BEING AN ARBITRARY DISTINCTION FOR THE PURPOSE OF THE CONSTITUTIONAL IMPLICATIONS?
WELL, WHAT WE ARE ARGUING IS THAT THE FACT THAT THIS LAW WAS MADE PROSPECTIVE ONLY, IT JUST DOESN'T MAKE SENSE THAT THE LEGISLATORS, AND THROUGH THEM, THE STATE OF FLORIDA, WOULD DECLARE IN FLORIDA WE THINK IT IS WRONG. WE THINK IT IS EXCESSIVE TO EXECUTE MENTALLY-RETARDED PEOPLE AND WE FIND THAT TODAY, AND THEREFORE WE ARE PASSING THIS LAW, BUT IT IS OKAY TO EXECUTE ONE OR TWO THAT MAY BE ALREADY ON DEATH ROW AND ALREADY SENTENCED BEFORE THE PASSAGE OF THE LAW.
ISN'T THIS MATTER PENDING OR BEFORE THE SUPREME COURT OF THE UNITED STATES?
YES, IT IS.
AND THEY HAVE HEARD ORAL ARGUMENTS, HAVE THEY NOT?
YES, THEY HAVE.
EVEN ON THE FLORIDA -- EVEN UNDER FLORIDA STATUTE, WOULDN'T YOU AGREE THAT IT WOULD HAVE TO GO BACK FOR COMPLIANCE WITH THE STATUTE? I MEAN, YOU ARE SAYING THAT IT MEETS, IT MEETS, THE ONSET WAS BEFORE AGE 18, BUT I THOUGHT THERE WERE SEVERAL OTHER CRITERIA THAT A JURY WOULD HAVE TO FIND, ABOUT THE ADAPTIVE FUNCTIONING AND IS THERE ANYTHING ABOUT THAT IN THIS RECORD, AND YOU KNOW, WOULDN'T THAT, AT THE VERY LEAST, HAVE TO BE DONE IN THIS CASE?
THE THIRD CRITERIA, YES, DEFICITS IN ADAPTIVE FUNCTIONING. I THINK THAT IS CLEARLY IN THE PRESENTED EVIDENCE IN THIS CASE, BECAUSE THERE WAS CONSILE EVIDENCE OF DEFICITS IN ADAPTIVE FUNCTIONING. COMMUNICATION, WORK, THINGS OF THAT NATURE,ARE.
WHAT ABOUT COULD YOU BE MORE SPECIFIC ABOUT WAS HE LIVING ON HIS OWN OR WITH --
THERE IS NO EVIDENCE THAT WILLIE MILLER HAS EVER LIVED ON HIS OWN. AT SOME POINT HE LIVED WITH A SISTER IN GEORGIA. HE WORKED, APPARENTLY FOR HIS BROTHER-IN-LAW. THE SISTER TOOK HIS PAYCHECK AND KEPT HIS PAYCHECK, APPARENTLY, AND HIS MONEY, AND GAVE HIM AN ALLOWANCE. THERE IS EVIDENCE THAT HE LIVED WITH ANOTHER SISTER FOR A COUPLE OF YEARS. SHE GAVE HIM ROOM AND BOARD IN EXCHANGE FOR BABY-SITTING HER CHILDREN.
WELL, ISN'T YOUR ARGUMENT MEAN, THOUGH THAT, THE LEGISLATURE COULD NOT PASS A PROSPECTIVE LAW IN THIS AREA? I MEAN, IT JUST BECAUSE WHAT YOUR ARGUMENT IS, IS THAT, ONCE THE LEGISLATURE ACTS, THEN THAT NECESSARILY EVIDENCED THAT THAT IS WHAT THE SOCIETAL CONSENSUS, AND THEREFORE IT IS UNCONSTITUTIONAL, BECAUSE THE LEGISLATURE ACTED. I MEAN, WE ENDED UP IN A CIRCULAR SITUATION, AND IS IT NOT SOMEWHAT THAT THE LEGISLATURE CAN MAKE THESE DETERMINATIONS AS TO SENTENCING THAT WILL NOT AFFECT PAST POPULATION AND PAST CASES AND DEAL WITH THESE MATTERS HAVING TO DO WITH THE DEATH PENALTY, ON A PROSPECTIVE BASIS, NOT ONLY IN MENTAL RETARDATION, BUT ON, I MEAN, IF TLFLD THERE WOULD BE EVER ANY -- IF THERE WOULD BE EVER ANY CHANGE IN THE NUMBER OF JURORS THAT IT TOOK TO RECOMMEND A DEATH SENTENCE, THEN WHAT WE WOULD BE SAYING, WELL, YOU CAN'T DO THAT, WITHOUT IT BEING, GOING BACK AND DEALING WITH F THE OTHER CASES. ISN'T THAT ESSENTIALLY WHERE WE WOULD END UP?
THAT'S CORRECT. IT IS, THAT IS PRECISELY OUR ARGUMENT, UNDER THE CONSTITUTION. IT IS REALLY NOT CLEAR WHY THE LEGISLATURE DIDN'T CREATE SEPARATE, I MEAN I SUPPOSE THEY COULD HAVE CREATED A SEPARATE PROCEDURE, ONE THAT WOULD APPLY TO PERSONS ALREADY SENTENCED, BUT I DON'T THINK THE FACT THAT THEY DIDN'T IS AN ENDORSEMENT OF EXECUTING ONE OR TWO PEOPLE THAT MAY BE ON DEATH ROW ALREADY, BEFORE THIS STATUTE GOES INTO EFFECT.
BUT YOU ARE NOT SAYING EVERY LAW THAT THE LEGISLATURE WOULD PASS, SAY THEY AUTHORIZED ANOTHER STATUTORY MITIGATOR, WOULD YOU SAY, AND INSTEAD THAT WAS PROSPECTIVE. ARE YOU SAYING THAT EVERY CASE WOULD HAVE TO BE RETRIED RETROACTIVELY?
NO. NO. NO. NOT AT ALL. I AM SORRY, IT IF I WASN'T CLEAR. I MEAN THAT, ESSENTIALLY, IS WHY WE ARE ARGUING. THIS IS A CONSTITUTIONAL ARGUMENT. WE ARE NOT ARGUING THAT THE STATUTE, ITSELF, SHOULD BE APPLIED RETROACTIVELY, AND IF THIS COURT FINDS UNCONSTITUTIONAL, THIS COURT IS FREE TO EITHER SAY, UNDER THE CONSTITUTION, WE WILL USE THE SAME PROCEDURE THAT WE HAVE UNDER STATUTE, OR TO CREATE AN ENTIRELY SEPARATE PROCEDURE. IN FACT, WHEN GEORGIA DEALT WITH THE ISSUE, THEY APPLIED A DIFFERENT STANDARD OF PROOF THAN THE ONE THAT THE LEGISLATURE HAD ESTABLISHED. THEIR LAW SAID YOU HAVE TO PROVE MENTAL RETARDATION BY, BEYOND A REASONABLE DOUBT. WHEN THE GEORGIA SUPREME COURT ADDRESSED THE ISSUE, THEY SAID, UNDER OUR CONSTITUTION, CLEAR AND CONVINCING EVIDENCE IS ENOUGH. AND THIS COURT COULD DO THE SAME. IF THIS COURT FINDS THAT IT IS UNCONSTITUTIONAL, UNDER OUR FLORIDA CONSTITUTION, THEY COULD SAY, WELL -- THAT IT IS CONSTITUTIONAL, UNDER OUR FLORIDA CONSTITUTION, THEY COULD SAY, WELL, THE SAME STANDARD WOULD. I ATTACHED THE OPINION TO MY REPLY BRIEF THAT DEALT WITH THIS PRECISE ISSUE. THEY HAD A LAW THAT WAS PROSPECTIVE ONLY, AND THEY HAD A LAW THAT EXECUTING PEOPLE WAS UNCONSTITUTIONAL, BOTH UNDER THE EIGHTH AMENDMENT AND UNDER THE TENNESSEE CONSTITUTION, BECAUSE THEY FELT LIKE THIS LAW WAS POWERFUL EVIDENCE THAT TENNESSEE PEOPLE DID NOT BELIEVE IN IT, AND THAT INCLUDED PEOPLE THAT WERE SENTENCED BEFORE THE PASS ABLING OF THE -- THE PASSAGE OF THIS STATUTE.
WAS THERE ANY EVIDENCE THAT WAS PRESENTED IN THAT LOWER COURT PROCEEDING, TO DEMONSTRATE THAT ANY COUNTERVEILING EVIDENCE THAT THAT MAY HAVE BEEN, WAS NOT THE PREVAILING VIEW, BACK AT THE TIME THAT THOSE OTHER CRIMES WERE COMMITTED, THE CRIMES THAT Y HAVE BEEN COMMITTED PRIOR TO THE EFFECTIVE DATE OF THE S WHICH WOULD HAVE PERMITTED THE EXCUSE OF THESE -- PERMITTED THE EXECUTION OF THESE PERSONS. WAS THERE ANY EVIDENCE TO SHOW WHAT THE PREVAILING VIEW WAS AT THAT TIME?
ARE YOU TALKING ABOUT FLORIDA OR TENNESSEE?
FLORIDA IN THIS CASE OR THE TENNESSEE CASE, EITHER ONE.
NOT -- WHEN IT WAS ARGUED AT THE TRIAL COURT LEVEL, WAS THERE ANY OTHER EVIDENCE PRESENTED? OR ANY OTHER TESTIMONY? ANYTHING? > PRESENTED TO SHOW THAT THERE WAS A VIEW IN FAVOR OF EXECUTING MENTALLY --
WELL, THAT THERE WAS A DIFFERENT VIEW, AT THE TIME THAT THESE CRIMES WERE COMMITTED.
FIRST OF ALL, THE STATUTE APPLIES TO SENTENCING NOT THE DATE OF THE CRIME. I JUST WANT TO MAKE THAT CLEAR.
SENTENCING. PRIOR TO THIS PARTICULAR SENTENCING.
AND WILLIE MILLER WAS SENTENCED IN MARCH, SO HE ONLY MISSED IT BY THREE OR FOUR MONTHS. AS FAR AS FALLING UNDER THE STATUTE. BACK TO YOUR OTHER QUESTION, I AM NOT AWARE OF ANY EVIDENCE THAT THERE HAS EVER BEEN VIEW, IN FLORIDA, THAT PEOPLE FAVOR EXECUTING MENTALLY-RETARDED PEOPLE. I BELIEVE THE PENURY CASE MENTIONS SOME PUBLIC -- THE PENRY CASE MENTIONS SOME PUBLIC OPINLLS. AT WN 1989. ONE OF THEM MAY HAVE BEEN IN FLORIDA, AND AT THAT POINT, I BELIEVE FLORIDA VOTERS WERE OPPOSED TO EXECUTING MENTALLY-RETARDED PEOPLE. I AM NOT SURE -- MR. CHIEF JUSTICE
YOU ARE INTO YOUR REBUTTAL.
THANK YOU, YOUR HONOR.
MAY IT PLEASE THE COURT. MY NAME IS CAROL SNURKOWSKI FROM THE ATTORNEY GENERAL'S OFFICE. THE STATE WOULD SUBMIT THAT, IN THE INSTANT CASE, THIS RECORD BEARS OUT WHY WE CANNOT APPLY THE FLORIDA STATUTES RETROACTIVE BECAUSE IN FACT, IN THIS INSTANCE, WHILE THERE WAS THE LEGISLATURE IN SESSION AND MULLING OVER THE ISSUE OF APPLY APPLYING OR NOT OR BARRING THE DEATH PENALTY FOR MENTALLY MENTALLY-RETARDED INDIVIDUALS, THERE WAS NO RECORD EVIDENCE IN THIS CASE NOR EFFORT IN THIS CASE, TO, IN ALL, TRY TO MEET POTENTIALLY WHAT THE STATUTE MIGHT BE, AND I SAY THAT IN SAYING THIS PERSON DIDN'T HAVE TO BE CONVENIENT GALLEY TO KNOW THIS -- TO BE SVENGALI TO KNOW THIS, AND THAT IS BECAUSE IT HAS BEEN FOUND IN THE FLORIDA STATUTES FOR YEARS AND YEARS AND YEARS AND THAT IS FLEE-PRONGED, AND THAT IS THERE IS A NUMBER FOUND BELOW THE DEVIATION FORM, AND THERE IS EVIDENCE BEFORE THE AGE OF 18 AND THE FACT THAT THERE IS ADAPTIVE PROBLEMS THAT, THEY CANNOT ADAPT THEIR BEHAVIOR. IN THIS CASE, THERE IS NO RECORD THAT BEARS FRUIT OF ALL THREE PRONGS. THERE IS A TRIAL COURT ORDER THAT GIVES WEIGHT TO THE FACT THAT DR. CROPP DETERMINED THAT THIS INDIVIDUAL, MR. MILLER HAD, AN IQ OF 64, THAN IS IN HIS SECTION D OF HIS ORDER ON PAGE 194-G. IT SAYS THE DEFENDANT IS MILDLY RETARDED AND HAS AN IQ OF 64. THIS WAS PROVEN BY THE DEFENDANT THROUGH DR. CROPP, A NOTED PSYCHOLOGIST. THIS COURT GIVES THIS FACTOR SOME WEIGHT, AND THAT WAS ALL THAT S PROVEN IN THIS INSTANCE. THAT IS NOT ENOUGH TO MEET THE STATUTE. IT IS CERTAINLENO SATISFY THE THREE PRONGS THAT PERTAIN TO THE APPLICABILITY OF THIS --
IT YOUR POSITION, EXCUSE ME, MISS SNURKOWSKI, IS IT YOUR POSITION THAT THE STATUTE DID NOT CHANGE THE LAW? YOONING IT CHANGED THE LAW IN -- I DON'T THINK IT CHANGED THE LAW, IN THE SENSE OF WHAT MENTAL RETARDATION IS. WHAT IT DID DO WAS PUT INTO PLACE AND IDENTIFY THAT, IF AN INDIVIDUAL HAS AN ASSERTION THAT HE IS MENTALLY-RETARDED, THAT MITIGATING FACTOR MAY OR MAY NOT BE ENOUGH, AND THAT WE WILL PUT INTO PLACE A PROCEDURE WHERE, AFTER THE GUILT PHASE OF THE PROCEEDINGS HAS BEEN FOUND THAT, A DEFENDANT CAN ASSERT THAT HE IS MENTALLY RETARDED AND BEAR THE PROOF OF DEMONSTRATING THAT, BASED ON A STANDARD THAT HAD EXISTED IN STATUTES.
HOW WOULD YOU RESPOND TO THE EFFORTS OF OTHER COURTS WHO HAVE INDICATED THAT SUCH A STATUTE IS AN INDICATION OF THE EVOLVING STANDARDS OF DESIGNS I THAT WOULD REQUIRE -- OF DECENCY THAT WOULD REQUIRE THE STATE, THIS COURT TO SAY THIS IS THE PRONOUNCEMENT OF THE LEGISLATURE. IT CANNOT BE ONLY PROSPECTIVELY.
THUS FAR, THAT HAS NOT OCCURRED, AND IN FACT, IN PENRY, IT DID NOT OCCUR, AND I DON'T BELIEVE IT IS GOING TO OCCUR IN THE CASE THAT IS PRESENTLY BEFORE THE UNITED STATES SUPREME COURT, WHICH IS ATKINS VERSUS VIRGINIA, HEARD ON FEBRUARY 20. IN THAT CASE, ONE CAN DOWNLOAD THE TRANSCRIPTS OF THE ORAL ARGUMENTS THAT WERE PRESENTED, AND NOT TO BE PRESUMPTUOUS, BUT MTHE DISCUSSION THERE WAS IN DISCUSSING WHETHER THES BEEN A CONSEROUGHOUT THE COUNTRY, AS TO WHETHER WE ARE GOING TO HAVE LAWS THAT BAR THIS AND THE COURT WAS VERY INQUISITIVE WITH REGARD TO BOTH SIDES, WITH REGARD TO THAT, SO I THINK ATKINS WILL VERY WELL HAVE SOME PRONOUNCEMENT WITH REGARD TO WHETHER, IN FACT, EXCUSE ME, A CONSENSUS HAS OCCURRED, AND WHETHER, IN FACT, WHAT HAS BEEN SHOWN CONSTITUTES A CONSENSUS, BECAUSE I THINK THERES SOME REAL CONCERN ABOUT THAT, AND WE ARE TALKING ABOUT PLAYING WITH NUMBERS. HOW MANY STATES HAVE DECIDED THAT WE ARE NOT GOING TO DO TH? THERW 12, 13 STATES WITH THE FEDERAL GOVERNMENT THAT SAYS IN THE DEATH PENALTY ARENA, WE ARE NOT GOING TO EXECUTE PEOPLE WHO ARE MENTALLY RETARDED, AND BY THE SAME TOKEN, THE NUMBERS ARE ALWAYS ALL OVER THE PLACE.
AS I UNDERSTAND WHAT JUSTICE HARDING IS TALKING ABOUT, WHAT IS YOUR RESPONSE TO WHAT THEY DID IN GEORGIA AND IN TENNESSEE?
IN GEORGIA, I THINK ACTUALLY I LOOKED AT TENNESSEE. I WAS LOOKING AT WHAT WAS SAID, AND I THINK IN TENNESSEE, THAT COURT DID NOT, THEY SAID AFTER CAREFUL CONSIDERATION, WE CONCLUDE THAT IT DID NOT CLEARLY INTEND TO APPLY RETROACTIVELY, AND THEREFORE WE WILL NOT REOPEN THE SUIT. THEY FOUND AS TO CONSTITUTIONALITY.
THEY USED THAT AS A SPRINGBOARD.
RIGHT. RIGHT. AND GEORGIA DID CHANGE THEIR STATUTE. GEORGIA, THE FIRST CASE THAT WENT UP TO THE GEORGIA SUPREME COURT AFTER THEY PASSED THE STATUTE, WAS THEY SAID WAS NOT GOING TO BE RETROACTIVE, THEY APPLIED, AND THE STATES ARE FREE TO DO THAT, BUT THAT IS ONE OF ISSUES THAT WAS BEFORE THE UNITED STATES SUPREME COURT IN ATKINS, ALSO. IS THAT IN DISYEAH OF SOME -- INDICIA OF SOME CONSENSUS THAT THE PEOPLE OF FLORIDA OR GEORGIA OR ANY OTHER STATE DETERMINES THAT FROM NOW FORWARD, WE WILL HAVE SOME MECHANISM TO SAY THAT THESE PEOPLE ARE NOT QUALIFIED FOR THE DEATH PENALTY.
WOULD YOU SAY THAT, FIRST OF ALL, WITH THE E HAVING BEEN ARGUED IN FEBRUARY, I WOULD IMAGINE, BASED ON THE PAST PRACTICE --
I CHECKED THIS MORNING. IT HADN'T BEEN DECIDED TODAY.
BUT ISN'T THIS SOMETHING THAT THE RELEASE WOULD BE FAIRLY IMMINENT, WOULDN'T IT?
CERTAINLY.
YOUR POSITION WOULD BE, AND I GUESS IT WOULD DEPEND ON WHAT THEY SAY, THAT EVEN IF THE U.S. SUPREME COURT SAYS THAT IT IS UNCONSTITUTIONAL TO EXECUTE SOMEONE WHO IS MENTALLY RETARDED IT MAY VERY WELL BE THAT THEY WOULD LEAVE THE QUESTION OF WHAT CONSTITUTES MENTAL RETARDATION TO THE TO DETERMINE. S YOUR --.
THAT IS A POSSIBILITY, YES.
IF THE ISSUE GOING BACK TO THISIS THAT THE, THERE FOR YOUR CONTES THAT, ON THE FACE OF THIS RECORD, IT IS STILL CONTROVERTED AS TO WHETHER HE FITS THE THREE CRITERIA.
RIGHT.
AND THAT IS SOLELY BECAUSE THE TRIAL COURT'S ORDER ONLY REFERS TO HIS PRESENT IQ?
RIGHT.
BUT, IN THE RECORD, I MEAN, THIS IS ONE WHERE WE HAVE GOT, AS I UNDERSTAND IT, AS OF THE AGE OF 17, HE WAS IN SPECIAL EDUCATION CLASSES, PERFORMING AT --
HE WAS PERFORMING, WELL, DR. CROPP IS OUR ONLY TESTIMONY IN THIS PARTICULAR CASE.
WE DON'T HAVE HIS SCHOOL RECORDS.
HE LOOKED AT SCHOOL RECORDS, AND IN FACT IN THE RECORD, AT PAGE 533 OF THE RECORD, WE HAVE THE SOLE REFLECTION OF WHAT THE PRIOR STATEMENTS WERE, WITH REGARD TO IQ. THAT WAS DR. CROPP AND HIS REVIEW OF THIS RECORD. IT TALKS ABOUT THE EARLIER STAGES, WHEN THE TESTS WERE DONE. THERE MAY HAVE BEEN AN IQ OF 60 OR 59, AND THAT WAS BASED ON SCHOOL RECORDS. IT IS NOT BASED ON ANY SIGNIFICANT TEST OR IDENTIFIED TEST. IT WAS JUST SOME RECORDS HE SAW.
BUT THE STATE DIDN'T CONTROVERT THAT.
NO. BUT THE REASON THAT CAME OUT WAS HE WAS BEING QUESTIONED AS TO WHETHER, WHAT WAS THE DIFFERENCE BETWEEN HAVING LOOKED AT MR. MILLER IN 1995 AND LOOKING AT MR MR. MILLER IN 2001, BECAUSE IF YOU RECALL, THIS RECORD BEARS OUT THAT DR. CROPP DIDT REMEMBER SEEING MR. MILLER AT EARLIER TIME, AND HE, IN FACT, HAD DONE TWO EVALUATIONS OF MR. MILLER AND FOUND THAT MR. MILLER WAS A MALINGERER, BECAUSE AT THE TIME THAT HE WAS IDENTIFYING HIM OR TALKING TO HIM --
THAT HE WAS PRESENTLY RETARDED OR THAT HE WOULD QUALIFY UNDER THE STATUTE, FOR THE FINDING THAT THE LEGISLATURE --
I THINK WE HAVE BEEN VERY LOOSE IN USINGTHE TERM "MENTAL RETARDATION". WE CAN IDENTIFY A PERSON WHO HAS GOTTEN A NUMBER, A 64 IQ. NOW, WHETHER HE IS MENTALLY RETARDED, THAT WOULD FALL INTO THE MILDLY RETARDED RANGE. NOW, WHETHER THIS INDIVIDUAL IS ACTUALLY RETARDED IS ANOTHER QUESTION, MENTALLY RETARDED TO THE POINT HE WOULD NOT BE ELIGIBLE AND SUSCEPTIBLE FOR THE DEATH PENALTY, IS ANOTHER QUESTION. I THINK IT IS UNFORTUNATE WE USE THAT SAME TERM AS AN UMBRELLA TO DISCUSS THIS AREA, BUT IN FACT WE KNOW UNDER THE STATUTE AND IN FACT, EVEN UNDER THE FLORIDA STATUTE WITH REGARD TO WHAT IS MENTAL RETARDATION, IT IS NOT JUST A NUMBER, SO ALL WE HAVE IN THIS CASE IS A NUMBER. WE HAVE RECORD EVIDENCE, BASED ON DR. CROPP'S REVIEW OF THE RECORD --
DON'T YOU HAVE A LITTLE MORE? I MEAN, WHEN YOU LOOK AT WHAT THE TRIAL JUDGE DID IN HIS SENTENCING ORDER IN REGARD TO THE AGE FACTOR, HE GOES THROUGH A LONG RECITATION UNDER WHETHER OR NOT THIS PERSON, THE PERSON'S AGE AT THE TIME OF THE OFFENSE, AND IT SEEMS TO ME THAT UNDER THAT, HE GOES INTO A LOT MORE INFORMATION. I THINK THAT IS 194-D. HE GOES INTO A LOT MORE INFORMATION THAN HE DOES WHEN WE ARE TALKING ABOUT THE MENTAL RETARDATION ISSUE UNDER G.
RIGHT. BUT WHAT HE SAYS THERE IS, WHILE THE COURT IS NOT SATISFIED, THE DEFENDANT HAS PROVED THIS MITIGATOR. THE COURT GIVES THE TESTIMONY IN EVIDENCE CONCERNING THE MITIGATOR, SOME WEIGHT AS TO AGE. THIS MAN WAS CHRONOLOGICALLY 34 YEARS OLD WHEN HE COMMITTED THE CRIME. THE TESTIMONY, BASED ON THE IQ OF 64, SHOWS THAT HIS MENTAL AGE WAS SOMEWHERE BETWEEN 14 AND 17 YEARS OLD. THE PROBLEM WITH LOOKING AT MENTAL AGE AS INDICATED IN PENRY WAY BACK IN 1989, IS THAT EVERYBODY HAS A MENTAL AGE, AND MOST OF SOCIETY FUNCTIONS AT A 17-YEAR-OLD AGE! MENTAL AGE. SO, REALLY, THAT IS NOT A GOOD TALISMAN BY WHICH TO GAUGEAT ISNING WITH REGARD TO THIS INDIVIDUAL!
WHAT IS THENE BUTLER SCHOOL IN JACKSONVILLE? BECAUSE LOOKING, JUST TRYING TO UNDERSTAND THE SENTENCINR, EE SOME WEIGHT TO THE FACT THAT THE DEFENDANT COMPLETED THE SEVENTH GRADE AT EUGENE BUTLER S THAT A SPECIAL EDUCATION?
I AM SORRY. ALL WE KNOW IS THERE WAS SOME TESTIMONY IN THIS RECORD. ONE OF THE SISTERS SAID HE WENT TO A SCHOOL, AND THAT SCHOOL WAS NAMED THE COOPER SCHOOL, SO WHERE THEY GOT THIS, I DON'T KNOW,AND THAT MAY OR MAY NOT HAVE BEEN A SPECIAL EDUCATION SCHOOL. THE PROBLEM WITAS, AGAIN, WITH THIS RECORD, IS WE HAVE THREE SISTERS WHO TESTIFY IN SOME DEGREE, AND I SAY THAT BECAUSE ONE WAS A DEPOSITION RE, ANOTHER A LETTER -- FOUR, ACTUALLY. ANOTHER A LETTER WAS READ, FRANCES, I CAN'T REMEMBER, HER LAST NAME STARTS WITH A C, AND IT IS CLEAR THAT THIS WAS A DYSFUNCTIONAL FAMILY AND THEY DIDN'T KNOW ONE ANOTHER AND THEY DIDN'T REALLY SEE THE BROTHERS, THE SIBLINGS, MUCH PAST THE AGE OF TEN YEARS OLD, SO THIS IS ALL ANECDOTAL INFORMATION AND THAT IST TO SAY IT IS WRONG OR DOESN'T BEAR FRUIT, WITH REGARD TO MITIGATION AS FAR AS HOW DYSFUNCTIONAL HIS FAMILY IS, BUT IT CERTAINLY CANNOT BE THE BASIS UPON WHICH ONEDETERHAT THIS INDIVIDUAL, MR. MILLER, IS MENTALLY RETARDED. THEY HAVE NO REAL KNOWLEDGE OF HIS BACKGROUND. I MEAN JUST A CURSORY REVIEW OF THAT DEMONSTRATES THAT.
EXCUSE ME. GO AHEAD.
I WAS GOING TO ASK ABOUT PROPORTIONALITY.
I WAS GOING TO ASK IF THE SUPREME COURT OF THE UNITED STATES DETERMINES THAT IT IS UNCONSTITUTIONAL TO EXECUTE A MENTALLY RETARDED PERSON, WHAT WOULD YOU SUGGEST THAT WE DO IN THIS CASE?
I THINK, IN THIS CASE, I THINK WE WOULD HAVE TO REVIEW THE RECORD AND DETERMINE WHAT, IN FACT, THE UNITED STATES SUPREME COURT IS SAYING. IF THEY ARE SAYING THAT, IN FACT MENTAL RETARDATION IS NOT A BASIS UPON WHICH INELIGIBILITY FOR THE DEATH PENALTY, THEN I THINK WE HAVE TO LOOK AND SEE WHAT HAPPENED IN THIS CASE AND WHETHER, IN FACT THERE, IS GOING TO BE A RETROACTIVE APPLICATION, BECAUSE I THINK THAT IS SOMETHING THAT THE COURT IS GRAPPLING WITH, ALSO.
BUT WE WOULD PROBABLY HAVE TO SEND IT BACK TO THE TRIAL COURT TO MAKE A DETERMINATION, BASED UPON THERITEA SET OUT BY THE SUPREME COURT?
WELL, I DON'T KNOW IF THAT IS REALLY CORRECT, BECAUSE THE BOTTOM LINE IS THAT THERE WAS THAT EFFORT IN THIS INSTANCE, AND WE KNOW THAT FROM THIS RECORD, THEY CANNOT BEAR, IT DOESN'T BEAR OUT, AND IT IS NOT LIKE THERE IS A LACK OF INFORMATION IN THE SENSE OF OPPORTUNITY. WE CERTAINLY HAD DR. CROP COMING IN AND TRYING TO -- DR. CROPP COMING IN AND TRYING TO MAKE A CASE FOR MENTAL RETARDATION, IN THE SENSE OF THE BIG PICTURE, BUT HE WAS CLEARLY ARTICULATING THAT THIS INDIVIDUAL COULD BE SKILLED WORKER. HE HAD WORKED IN CONCRETE AT SOME POINT. HE BABY-SAT. AND I MIGHT ADD, THERE WAS A LOT THERE IS A LOT TO BE MADE ABOUT THE FACT THAT HE DIDN'T HAVE LONG JOBS OR DIDN'T HAVE JOBS. HE WAS IN JAIL FOR A LONG PERIOD OF TIME. THIS INDIVIDUAL HAS BEEN INCARCERATED.
I JUST WANTED TO MAKE SURE WE DO ADDRESS PROPORTIONALITY.
RIGHT.
PARTICULARLY I AM CONCERNED THAT, IN THE SENTENCING ORDER, THERE WERE SEVERAL OF THE MITIGATORS THAT THE TRIAL COURT FOUND WERE ESTABLISHED, BUT THEN DID NOT WEIGH THEM. IN PARTICULAR THAT HIS TWIN BROTHER WAS MURDERED BY HIS MOTHER AT THE AGE OF 13. THAT HIS FATHER WAS ABSENT FROM THE HOUSEHOLD. I THINK THIS DEFENDANT GOT LIFE. NONE OF THAT WAS WEIGHED, BUT THIS IN ADDITION, YOU HAVE GOT THAT HE WAS MENTALLY RETARDED, HE GIVES SOME WEIGHT TO. TO THE FACT THAT HE HAS BRAIN DAMAGE, HE GAVE SOME WEIGHT TO, AND THESE VARIOUS OTHER THINGS. WHAT DO YOU SAY ABOUT THIS BEING A PROPORTIONAL SENTENCE, WITH, IN LIGHT OF THOSE MITIGATORS?
WELL, FIRST OF ALL, I THINK THAT, ALTHOUGH IT WAS NOT REALLY ARGUED BELOW, WE KNOW THAT CASE LAW IS THAT SAMUEL FAGAN'S, THAT THAT IS NOT A COMPARABLE DETERMINATION, BECAUSE HE WAS INELIGIBLE FOR THE DEATH PENALTY BECAUSE HE WAS 16 YEARS OLD AT THE TIME THE CRIME WAS COMMITTED SO HE IS ONE OF THOSE FACTORS THAT YOU TAKE OUT. YOU CAN'T COMPARE HIM, BECAUSE HE WAS NEVER ELIGIBLE FOR THE DEATH PENALTY AS A CODEFENDANT. IN FACT, HE IS NOT THE SHOOTER. THERE IS NO RECORD THAT BEARS HES CONFUSION IN THICKLAR RECORD WITH REGARD TO MR. FAGAN'S ACCOUNTING OF WHAT TRANSPIRED, BUT IT WAS NEVER THAT MR. MILLER DIDN'T SHOOT MR. WALLACE. MR. MILLER ALWAYS SHOT MR. WALLACE. THERE IS NO, THERE IS NOTHING CONTRARY TO THAT, AND THAT HAS BEEN WELL-FOUNDED. WITH REGARD TO --
MR. JUNG. IS THAT --
I AM SORRY. ANOTHER PERSON THAT OWNED THE STORE WHERE --
MR. JUNG, RIGHT. HE TESTIFIED THAT HE HEARD A POP AND WALKING TOWARDS HIM WAS SAMUEL FAGAN, WHO SHOT HIM, AND THAT MR. MILLER WAS STILL NEAR THE GUARD, AND MR. FAGAN HAD AND DID, IN FACT, SHOOT MR. YOUNG WITH THE GUN THAT WAS BELONGING TO MR. WALLACE, THE SECURITY GUARD. THE RECORD EVIDENCE REFLECTS, AND THERE WAS TESTIMONY AT THE FIRST TRIAL, WHICH IS NOT IN THIS RECORD, BUT IT IS PART OF THE EARLIER PROCEEDINGS, THERE WAS MUCH MORE DETAIL WITH REGARD TO WHO DID WHAT. THERE WERE WITNESSES OUTSIDE THE BUILDING, WHO SAW INTO THE STORE AND SAW THE TRANSACTION. BUT, AGAIN, GUILT WAS NOT THE ISSUE IN THIS INSTANCE. IT WAS ONLY TO GIVE ENOUGH OF THE FACTS TO PROVIDE THE JURY WITH INFORMATION WITH REGARD TO WHAT TRANSPIRED, SO THAT WE COULD MOVE INTO THE PENALTY PHASE OF THIS CASE.
JUSTICE LEWIS HAD A QUESTION.
YES, YOUR HONOR. WITH REGARD TO PROPORTIONALITY, I KNOW THAT MY OPPONENT DID NOT HAVE AN OPPORTUNITY TO TALK ABOUT THAT, BUT THE STATE WOULD SUBMIT THAT ONE OF THE CASES THAT, IN REVIEWING FOR AND PREPARING FOR THIS ORAL ARGUMENT I LOOKED AT SHALITO, WHICH I THINK IS VERY CLOSE TO THIS CASE PARTICULARLY WITH REGARD TO THE DEATH PENALTY. NOT ONLY WERE THE FACTORS SIMILAR OR IDENTICAL, WITH REGARD TO HAVING A PRIOR VIOLENT FELONY OR FOR PECUNIARY GAIN, AND IN THIS INSTANCE I HAVE LOOKED THE RECORD OVER AND CAN'T DISCERN WHY IT HAPPENED BUT MAYBE THERE IS SOMEBODY OUT THERE WHO CAN TELL ME, BUT IN IN FACT THERE, ON THE TO BE THREE AGGRAVATING FACTORS, BECAUSE THE MURDER, THE SHOOTING OF MR. NUNING YOUNG WAS AN AGGRAVATING -- OF MR. JUNG WAS AN AGGRAVATING FACTOR, AND THAT ALTHOUGH MR. MILL DER NOT PULL THE TRIGGER, HE CERTAINLY IS EQUALLY RESPONSIBLE FOR THE SHOOTING AND IN FACT IS CONVICTED FOR THE SHOOTING OF MR MR. YOUNG. THE BOTTOM LINE IS, IF WE LOOK AT SHALITO AND COMPARE IT TO THIS CASE, IN THE SHALITO, E DIDN'T HAVE ASH FAMILY DYSFUNCTION IN THIS PARTICULAR CASE, AND ALTHOUGH THERE WAS DYSFUNCTION, IT WASN'T THE KIND THAT WE SEE IN THAT PARTICULAR INSTANCE. IN THIS CASE, WHILE IT IS GRAPHIC AND DETAILED WITHRD TO WHAT THE MOTHER DID TO HER CHILDREN, THERE IS VERY LITTLE EVIDENCE, AND I AM NOT SUGGESTING IT DIDN'T HAPPEN TO HIM, BUT THERE IS VERY LITTLE EVIDENCE IN THIS RECORD THAT BEARS OUT EXACTLY WHAT HAPPENED TO MR. MILLER. WETHAT THE BROTHER DIED. HIS TWINE BROTHER DIED AROUND 13 YEARS OF AGE.
AT THE HANDS OF THE MOTHER.
THAT IS ALL THE SISTERS A' AND EVERYBODY'S ALLEGATION.
THERE WAS -- THAT IS ALL OF THE SISTER'S AND EVERYBODY'S ALLEGATION.
THERE WAS A REPORT.
THERE IS A REPORT. THE CHARGES WERE DISMISSED AGAINST HER. I AM NOT SAYING IT WASN'T AT HER HANDS. WHETHER THERE WAS A CRIMINAL INTENT, I CAN'T SAY, BECAUSE THERE IS NO RECORD WITH REGARD TO THAT OR THAT BEARS THAT OUT. BUT I AM TRYING TO SAY THAT HE WAS VERY CLOSE TO THE BROTHER AND THAT HAD AN IMPACT AND IT CERTAINLY HAD AN IMPACT ON E OF THE SISTERS, WHO WAS THERE WHEN IT HAPPENED, AND THERE IS CONTRADICTORY TESTIS TO WHETHER HE WAS THERE AND SAW THIS VERSUS HE WAS INCARCERATED AND IN JUVENILE DETENTION, BECAUSE ONE SISTER DID TESTIFY THAT HE WAS IN JUVENILE DITENSION AND WASN'T THERE WHEN THE BROTHER DIED, BUT THAT IS NOT TO DIMINISH THE IMPACT OF THAT, BUT ALL I AM SAYING IS, YES, THERE WAS DYSFUNCTIONAL FAMILY IN THIS CASE, BUT IN THE SHALITO CASE, IAD, THERE WAS MUCH MORE IDENTIFIABLE MENTAL HEALTH PROBLEMS, MAYBE, AND I AM NOT TRYING, AGAIN, TO DISQUALIFY RETART INDICATION -- RETARDATION, BUT THERE, THERE WERE PARTICULAR PROBLSH REGARD TO THE DEFENDANT'S MENTAL STATE. IN THIS CASE WE HAVE DP SAYING THAT THERE E NO MEDICAL PROBLEMS. WE HAVE DIFFUSED BRAIN DAMAGE, BUT THAT WAS UNSPECIFIC, AND HE DID NOT SAY THERE WAS ANY IDENTIFIABLE ORDER EXCEPT AN ANTI-PERSONALITY DISORDER, AND WHEN HE WAS ASKED TO EXPLAIN TO THE JURY, AT SENTENCING, WITH WHAT THAT MEANT, IT WAS E COULDN'T GET ALONG AND HE COULDN'T ABIDE BY THE RULES AND REGULATIONS OF SOCIETY, AND SO TO THEENT THAT WE HAVE AN INDIVIDUAL WHOY HAVE ANTI-PERSONALITY DISORDER, WE DON'T HAVE ANY OTHER KIND OF DISORDER, AND, AGAIN, I AM NOT TRYINGTO DIMINISH WHETHER, IN FACT, THERE MAY OR MAY NOT BE A LACK OF ABILITY TO LEARN WITH REGARD TO HIS IQ QUOTE, A BUT THAT IN AND OF ITSELF MAKES THIS CASE VERY COMPARABLE TO THE SHALITO CASE, WHICH THIS COURT AFFIRMED, AND I MIGHT ADD IN THAT CASE, THAT WAS, IF YOU RECALL, THE DEFENDANT THERE WAS JUST OVER 19 YEARS OF AGE WHEN HE COMMITTED THE CRIME. IN THIS INSTANCE, CHRONOLOGICAL CHRONOLOGICALLY, WE HAVE AN INDIVIDUAL WHO IS 34 YEARS OF AGE WHEN HE COMMITS THE CRIME, AND HE IS THERE WITH HIS NEPHEW, WHO IS 16, AND SO THE COHORT IS NOT THE SAME. ONE OTHER ISSUE, I THINK WAS BROUGHT UP WITH REGARD TO THE PRIOR VIOLENT FELONY, THERE IS AN ATTEMPT TO DIMINISH THE SEVERITY OF THAT CRIME. IN THIS CASE, MR. WALLACE LOST HIS LIFE FOR $40. IN THAT CASE, $10 WAS TAKEN AT GUNPOINT. IT -- IN THAT CASE, $160 WAS TAKEN AT GUNPOINT. IT WAS ALL VIDEOTAPED, SO SUGGEST THAT THAT WAS NOT A SEVERE CRIME, IT WASN'T SERIOUS, I THINK IT BELIES THAT THE FACT THAT MR. MILLER, AT THE AGE EVER 21 OR 22, -- AT THE AGE OF 21 OR 22, WENT INTO A CHAMPION GROCERY STORE AND ATTEMPTED TO HOLD UP PEOPLE THERE AND GOT 40 BUCKS AT GUNPOINT, AND IN FACT HE GOT 5 AND-A-HALF YEARS FOR THAT LITTLE EPISODE, SO TO SUGGEST THAT, ATFUHEN I FIRST READ THIS RECORD AND I COME AT THIS A LITTLE LATE IN THE GAME, WITH REGARD TO THIS CASE, BUT AT FIRST BLUSH I THOUGHT, MY GOSH, THERE IS A LOT HERE, BUT WHEN YOU LOOK AT WHAT ACTUALLY WAS PRESENTED, I THINK THIS CASE CERTAINLY IS APPLICABLE FOR THE DEATH PENALTY. THANK YOU.
CHIEF JUSTICE: THANK YOU. MISCARRY, REBUTTAL?
YES -- MISS CAREY, REBUTTAL?
YES, YOUR HONOR. I HAVE A COUPLE OF POINTS THAT WOULD BE USEFUL TO THE COURT WITH REGARD TO THE RECORD AND WHETHER, IN FACT, WILLIE MILLER IS MENTALLY RETARDED, THERE IS CONSIDERABLE EVIDENCE IN THE RECORD AND THE EXHIBITS, WHICH THIS COURT HAS A LOT OF SCHOOL RECORDS GOING BACK TO WHEN HE WAS IN FIRST GRADE, SECOND GRADE REFERRALS TO SPECIAL ED. THE PSYCHOLOGICAL REPORTS NOTING HIS IQ AND THE TESTS THAT WERE GIVEN, ARE ALSO IN THE RECORD. SO I BELIEVE THAT THERE SHALL SUFFICIENT EVIDENCE IN THE RECORD FOR THIS COURT TO SAY THAT HE CLEARLY MEETS THE CRITERIA FOR MENTAL RETARDATION. WE WOULDN'T HAVE ANY OBJECTION TO SENDING THIS BACK FOR ANOTHER HEARING, ALTHOUGH I THINK IT IS ENTIRELY UNNECESSARY. I THINK THIS IS VERY, VERY CLEAR CASE, AND IT IS NOT, THE JURY, JUSTICE PARIENTE, I BELIEVE HE MAY HAVE THOUGHT IT WAS THE JURY THAT MAKES A DETERMINATION. IT IS THE JUDGE THAT MAKES THE DETERMINATION AS TO WHETHER A MENTAL RETARDATION HAS BEEN ESTABLISHED.
UNDER THE --
UNDER OUR STATUTE. YES. AND THE SECOND POINT I WOULD LIKE TO MAKE IS ASIDE FROM THE LEGISLATURE'S ACT, THERE IS A SEPARATE ANALYSIS THIS COURT HAS APPLIED, IN DETERMINING WHETHER A PARTICULAR CATEGORY OF DEFENDANTS ARE DEATH-ELIGIBLE, AND THAT IS WHETHER SUCH EXECUTIONS ARE UNUSUAL, BECAUSE THEY ARE SO RARELY IMPOSED OR IMPLEMENTED, AND THIS COURT APPLIED THAT ANALYSIS, IN G AT JUVENILES IN BRENNAN AND IN ALLEN, AND I BELIEVE THE SAME ANALYSIS APPLIES HERE. THERE IS NO EVIDENCE THAT FLORIDA HAS EVER EXECUTED A MENTALLY-RETARDED PERSON, SO I BELIEVE THAT, UNDER THAT PRONG OF OUR ANALYSIS, THIS COURT COULD CLEARLY DECIDE THAT IT IS UNCONSTITUTIONAL IN FLORIDA. JUST BRIEFLY, ON THE PROPORTIONALITY ARGUMENT, I DON'T THINK THIS CASE IS LIKE SHALITO AT ALL. SHALITO WAS NOT MENTALLY RETARDED, FOR ONE THING, AND THE EVIDENCE OF ABUSE AND NEGLECT, WHICH, IN THIS CASE IS PROBABLY THE WORST THAT I HAVE EVER SEEN, SINCE I HAVE BEEN WORKING ON THESE CASES, WAS NOT THERE IN SHALITO, AND MOST IMPORTANTLY THERE WAS NO EXPERT TESTIMONY IN SHALITO, WITH REGARD TO MR. SHALITO'S MENTAL MITIGATION, AND THAT WAS THE BASIS. THAT WAS THE IMPORTANT BASIS FOR THIS COURT'S HOLDING IN THIS CASE, THAT DEATH WAS A PROPORTIONATE SENTENCE THERE. SO THANK, YOUR HONOR.
CHIEF JUSTICE: THANK YOU. THANK YOU, COUNSEL, FOR YOUR ASSISTANCE IN THIS CASE. THE COURT WILL BE IN RECESS.