Attorney for Appellant

James F. Stanton

Crown Point, Indiana

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Preston W. Black

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

THOMAS LEE ROGERS,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

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)	Supreme Court No.

)	45S00-9608-CR-568

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	APPEAL FROM THE  LAKE SUPERIOR COURT

	The Honorable James. L. Clement, Judge

	Cause No. 45G04-9502-CF-00056

ON DIRECT APPEAL

September 48, 1998

SULLIVAN,  Justice.

	Indiana prohibits sentencing a mentally retarded defendant to death or to life

imprisonment without parole.  We review here, for the first time, the statutory preocedures

for determining mental retardation in this context. 

Background

	Defendant, Thomas Lee Rogers, worked for his brother as an electrician’s helper.  On

February 13 and 14, 1995, defendant assisted with some electrical work at the home of

seventy-two year old Virginia Cates.  On February 23, 1995, defendant drove to Cates’s

home to acquire some money to buy drugs.  Defendant took $50 from Cates’s purse and

forced her into the car he was driving.  He then drove to a crowded overpass, and threw or

pushed Cates’s body to the heavily-traveled interstate highway below.  Cates was still alive

when she hit the pavement.  Cates attempted to stand up, but two vehicles ran over her in

rapid succession, killing her.

	Based on this series of events, the State charged defendant with Murder,1 Felony Murder,2 and Confinement, a class B felony,3 and sought a sentence of death or life imprisonment without parole.4  Pursuant to Ind. Code § 35-36-9-4, defendant filed with the trial court a motion to evaluate defendant as mentally retarded to determine whether he was ineligible for either sentence sought by the State.5

	In a preliminary hearing, the trial court determined that defendant was not mentally

retarded.  On February 9, 1995, a jury convicted defendant of Murder, Felony Murder, and

Confinement.  In a separate proceeding, the same jury recommended a sentence of death. 

The trial court declined to follow the jury’s recommendation and instead imposed a sentence

of life imprisonment without parole for the murder conviction, and an enhanced forty year

sentence for the confinement conviction.6

	Defendant now appeals the sentence of life imprisonment without parole.  We have

jurisdiction over this direct appeal pursuant to Ind. Const. art. VII, § 4, and Ind.Appellate

Rule 4(A)(7).

Discussion

	Defendant presents for our consideration two issues:  (1) whether the clear and

convincing standard of proof required by Ind. Code § 35-36-9-4 for a showing of mental retardation violates due process; and (2) whether the trial court erred in finding defendant

not to be retarded within the meaning of Ind. Code § 35-36-9-2.  As a preliminary matter,

we observe that these statutes are part of a larger scheme which prescribes the procedure to

follow in a pretrial determination of mental retardation.  See Ind. Code §§ 35-36-9-1 to -7 (Supp. 1994) (the “Mental Retardation Statute”).

I

	Defendant contends that, based on the Supreme Court’s recent holding in Cooper v. Oklahoma, 517 U.S. 348 (1996), the clear and convincing standard of proof set forth in Ind. Code § 35-36-9-4 violates defendant’s constitutional right to due process of law.  U.S. Const.

amend. V; amend. XIV, § 1.  Ind. Code § 35-36-9-4 provides in pertinent part:

	At the hearing [on the petition alleging mental retardation], the defendant must

prove by clear and convincing evidence that the defendant is a mentally

retarded individual.

Ind. Code § 35-36-9-4(b) (Supp. 1994).7  A finding of mental retardation renders the defendant ineligible for sentences of death or life imprisonment without parole.  Ind. Code

§ 35-50-2-9 (Supp. 1994).

	In Cooper, the Supreme Court confronted a challenge to a statute which required a criminal defendant to prove by clear and convincing evidence his or her incompetence to

stand trial.  Acknowledging that “the criminal trial of an incompetent defendant violates due

process” (citing Medina v. California, 505 U.S. 437, 453 (1992)), the Court  held that “[b]ecause Oklahoma’s procedural rule allows the State to put to trial a defendant who is

more likely than not incompetent, the rule is incompatible with the dictates of due process.” 

Cooper, 517 U.S. at 354, 369.8

	Defendant now seeks to bootstrap the holding of Cooper to Ind. Code § 35-36-9-4, and asks this Court to hold that requiring clear and convincing proof of a defendant’s mental

retardation to determine eligibility for a sentence of death or life imprisonment without

parole similarly violates due process.  However, after applying the reasoning of Cooper to the requirements of the statute at issue, we reach a contrary result.

	The Court in Cooper found that requiring clear and convincing evidence of competency impinged upon a “principle of justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental.”  Cooper, 517 U.S. at 355 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)).  This “fundamental principle” was the right of a defendant not to stand trial while incompetent.  Id., 517 U.S. at 354.  See Medina, 505 U.S. at 453; Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J., concurring in the judgment).  See also Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995) (criminal trial of incompetent defendant violates due process).  The Court held that a rule requiring clear and

convincing proof of incompetency increases the risk of an erroneous determination of

competency, which in turn affects the fundamental fairness of the trial itself:  “Because [the

incompetent defendant] lacks the ability to communicate effectively with counsel, he may

be unable to exercise other ‘rights deemed essential to a fair trial.’”  Cooper, 517 U.S. at  364 (quoting Riggins, 504 U.S. at 139 (Kennedy, J., concurring in the judgment)).

	The standard of proof set forth in Ind. Code § 35-36-9-4, although arguably permitting

the same type of erroneous determination of absence of mental retardation, does not offend

a “fundamental principle” of the sort implicated in Cooper.  In Indiana, a finding concerning a defendant’s mental retardation determines only his or her eligibility for a particular

criminal punishment; it does not affect the procedural fairness or outcome of that defendant’s

trial, provided the defendant (whether or not mentally retarded) is otherwise competent to

stand trial.  The Supreme Court engaged in similar analysis in Penry v. Lynaugh, 492 U.S. 302 (1989), in which it found no constitutional proscription against the execution of a

mentally retarded defendant:

	Penry was found competent to stand trial.  In other words, he was found to

have the ability to consult with his lawyer with a reasonable degree of rational

understanding, and was found to have a rational as well as a factual

understanding of the proceedings against him.

	* * *

	[M]ental retardation is a fact that may well lessen a defendant’s culpability for

a capital offense.   But we cannot conclude today that the Eighth Amendment

precludes the execution of any mentally retarded person of Penry’s ability

convicted of a capital offense simply by virtue of his or her mental retardation

alone.

Penry, 492 U.S. at 333, 340.

	The defendant in Penry argued that mentally retarded people do not possess the requisite level of moral culpability to justify imposing a death sentence, and that “there is an

emerging national consensus against executing the mentally retarded.”9  Penry, 492 U.S. at 328-29.  Regarding the “moral culpability” argument, the Supreme Court reasoned that the

insanity defense had protected (and would continue to protect) adequately against the

unconstitutional conviction and execution of those mentally retarded defendants who

“wholly [lack] the capacity to appreciate the wrongfulness of their actions.”  Id. at 333.  In addressing the “national consensus” argument, the Court surveyed the laws of the states and

found that only two states had statutes on the books at that time banning the execution of

mentally retarded defendants.10  Id. at 334.  The Court also acknowledged several public opinion polls disapproving of the execution of mentally retarded defendants.11  Id. at 334-35.

	Since Penry was decided in 1989, many states — including Indiana — have enacted legislation prohibiting the execution of mentally retarded defendants and requiring varying

standards of proof for a showing of mental retardation.12  Although Indiana has chosen to exclude by statute the mentally retarded from the ranks of criminal defendants otherwise

eligible for sentences of death or life imprisonment without parole,13 Penry remains good law.14

	Given that the clear and convincing standard of proof in Ind. Code § 35-36-9-4

(determining only a defendant’s sentence eligibility) does not affect the fundamental

procedural fairness of a defendant’s trial, and that the United States and Indiana

Constitutions do not prohibit the execution of a mentally retarded defendant,15 we cannot conclude that defendant’s due process rights were violated.

	Defendant also attacks Ind. Code § 35-36-9-4 as permitting the imposition of a

punishment that is (1) disproportionate to the offense he committed; and (2) vindictive

justice.   Ind. Const. art. I, §§ 16 and 18.  We interpret defendant’s claims as challenges to

the appropriateness of his sentence.  Defendant threw or pushed a seventy-two year old

woman off an overpass onto a heavily traveled interstate highway where two vehicles hit and

killed her.  We cannot conclude that the trial court erred in imposing a sentence of life

imprisonment without parole for this offense.

II

	Defendant challenges the trial court’s finding that defendant was not mentally retarded

within the meaning of Ind. Code § 35-36-9-2, which provides as follows:

“[M]entally retarded individual” means an individual who, before becoming

twenty-two (22) years of age, manifests:

(1) significantly subaverage intellectual functioning; and

(2) substantial impairment of adaptive behavior:

that is documented in a court ordered evaluative report.

Ind. Code § 35-36-9-2 (Supp. 1994).

	After receiving extensive expert testimony at a pretrial hearing, the trial court found

defendant not to be mentally retarded within the meaning of Ind. Code § 35-36-9-2.  At

judicial sentencing (after the jury had convicted defendant and recommended death), the trial

court discussed the issue of mental retardation before sentencing defendant to life

imprisonment without parole:

	Now, the mitigating side, the defendant is retarded, but not, in my

opinion, within the purview of the Indiana Code.  Certainly, a person who is

70 IQ, and we had different readings, 69.  One was even lower than that.  I

don’t think there is any question that he is retarded in that respect.  But again

I found and I believe now that he is able to adapt.  He was living in the

community.  He was working.  He [w]as operating an automobile.  He was

living with a young lady.  According to her, bringing money home.  He was

able to go where he wanted to go.  And I don’t think he would be accepted in

a group home setting.  I think that he would not even qualify for that.

* * *

	I find the aggravating factor to outweigh the mitigating factor that the

defendant is a retarded person again, but I have to add not within the purview

of the statue, but certainly in terms of his mental capacity, intellectual

capacity, he has certainly met the criteria of retardation.  But we differ on the

adaptability.  . . . I am satisfied now that he knew what was going on.  He was

able to assist you in presenting a defense.

(R. at 3041-42.)  The trial court also issued written reasons for not imposing the death

sentence in which it considered the following possible mitigating circumstances:

	Although the evidence showed the defendant is mildly retarded, there

was no evidence that he was under extreme mental or emotional disturbance

when he committed the murder.

* * *

	Although the defendant is, in fact, mildly mentally retarded with an IQ

of from 69 to 72 and may suffer from brain disturbances, from chronic

alcoholism and drug abuse, the Court concludes that the defendant was not

substantially impaired as a result thereof and has the capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirement of the

law.

* * *

	[Defendant’s] adoptive parents were totally unequipped to deal with

what we now know to be a retarded youngster.

* * *

	In weighing, evaluating and balancing the aggravating circumstances

and the mitigating circumstances, the court finds the manner in which this

crime was committed outweighs the significant mitigating circumstance of

defendant’s borderline or mild mental retardation.

(R. at 468-69.)

	Defendant claims that he did not receive an adequate evaluation because none of the

experts who testified at the pretrial hearing assessed defendant’s adaptive behavior using a

standardized test.  Defendant also contends that the evidence presented at the pretrial hearing

demonstrated substantial impairment of defendant’s adaptive behavior, contrary to the trial

court’s findings.  Defendant further argues that the court, by finding defendant not to be

mentally retarded under Ind. Code § 35-36-9-2, effectively excludesd the majority of mentally

retarded individuals from the provisions of the Mental Retardation Statute.

A

	As conceptualized by Ind. Code § 35-36-9-2, mental retardation involves an inquiry

into two areas:  intellectual functioning and adaptive behavior.16  Intellectual functioning commonly is measured through standardized IQ tests. “Significantly subaverage intellectual

functioning” generally means an IQ of 70 or below, with a margin of error of five points in

either direction.  American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders (American Psychiatric Association, Fourth Edition 1994) (“DSM-IV”) at

39; Holmes v. State, 671 N.E.2d 841, 850 (Ind. 1996).  According to the DSM-IV, intellectual functioning is secondary to adaptive behavior as an indicator of mental

retardation, meaning that an individual with an IQ below 70 who exhibits adaptive behavior

would not be diagnosed as mentally retarded.  DSM-IV at 40.

	Adaptive behavior refers to how well an individual deals with everyday life demands

compared to other people with similar educational and social backgrounds.  Id.  Mental retardation professionals commonly gather evidence of adaptive behavior from two primary

sources:  standardized scales and independent sources.  Id.  The DSM-IV mentions two standardized scales which provide clinical composite scores of adaptive behavior, but notes

that these standardized scales may vary in reliability depending on each individual’s

handicaps.  Id.  Independent sources can include, but are not limited to, teacher evaluations and school and medical records.  Id.

	Defendant argues that because all of the evidence presented at the pretrial hearing

regarding his adaptive behavior came from independent sources — and because none came

from standardized tests — he did not receive an appropriate evaluation, and that the inappropriate evaluation he did receive biased the trial court’s findings.  Defendant urges this

Court to rule that the Mental Retardation Statute requires evaluation of adaptive behavior by

standardized testing.  However, because defendant offers no proof as to how an evaluation

including standardized tests would be more appropriate than an evaluation without

standardized tests, we will review only the propriety of the evaluation defendant did receive,

and will not speculate as to the advantages, real or perceived, of standardized testing of

adaptive behavior.

	Four experts evaluated defendant to determine whether defendant was mentally

retarded within the meaning of Ind. Code § 35-36-9-2.  Each expert interviewed defendant

in person and reviewed documents dating back to defendant’s early childhood.  The

documents available to each expert for his review included education records, medical and

treatment records, letters from social workers, and criminal records.  The experts also viewed

a videotaped interview of defendant with the police.

	The sources on which the experts at least partially based their conclusions are the 

“reliable independent sources” from which the DSM-IV states it is helpful to gather evidence

of adaptive behavior.  DSM-IV at 40.  The record demonstrates that each expert reviewed

the independent sources available to him and relied substantially on these sources in deciding

whether defendant exhibited substantial impairment of adaptive behavior.  Nothing in the

record tends to suggest that defendant would have received a more appropriate evaluation had any of the experts assessed defendant’s adaptive behavioral capabilities using a

standardized test rather than by reviewing independent sources.  Defendant has not proved

to this Court that standardized tests better evaluate adaptive behavior.  Accordingly, we

cannot conclude that defendant did not receive an appropriate evaluation in this regard.

B

	Four experts evaluated defendant and each testified as to his findings at the pretrial

hearing to determine whether defendant was mentally retarded.  Defendant contends that

their testimony does not support the trial court’s finding that defendant was not mentally

retarded within the meaning of Ind. Code § 35-36-9-2.

	Dr. Berkson, the court-appointed psychiatrist, first evaluated defendant as mentally

retarded but later came to believe that defendant did not exhibit significant impairment of

adaptive behavior17 and was not mentally retarded.  Dr. Berkson reversed his initial opinion after watching the videotaped interview of defendant by the police.  According to Dr.

Berkson, defendant’s behavior during the videotaped interview indicated an ability to adapt.  Dr. Berkson specifically found a marked difference between the “slow and painful” manner

in which defendant answered questions in the interview Dr. Berkson conducted and

defendant’s spontaneity and animation in the videotaped police interview.18  Throughout his testimony, Dr. Berkson maintained his opinion that defendant exhibited “significantly

subaverage intellectual functioning.”

	Dr. Caruana, the court-appointed clinical psychologist, interviewed defendant for

three hours and administered an IQ test on which defendant scored 69.  Based on this IQ

score, Dr. Caruana classified defendant as “right on the line” between significantly

subaverage and borderline intellectual functioning.  (R. at 575.)  After reviewing the

independent sources available to him, Dr. Caruana concluded that defendant was not

mentally retarded within the meaning of Ind. Code § 35-36-9-2, because defendant did not

exhibit “substantial impairment of adaptive functioning.”  Dr. Caruana acknowledged some

impairment in defendant’s upper level intellectual skills and in his ability to conform to

social norms and rules, but found defendant capable of meeting his own immediate needs and

basic self care.

	Defendant retained Dr. Arbit, also a clinical psychologist, to testify on defendant’s

behalf.  Dr. Arbit believed that defendant satisfied both prongs of Ind. Code § 35-36-9-2. 

The other experts had relied heavily on defendant’s job as an electrician’s helper and on

defendant’s ability to drive a car in concluding that defendant did not exhibit substantial

impairment of adaptive behavior.  Dr. Arbit did not find defendant’s work history significant

because “helper electrician” is on a list of jobs that the American Association on Mental

Retardation recognizes as being within the capabilities of mildly mentally retarded

individuals.  Dr. Arbit also distinguished skills of daily living (such as driving a car, which

defendant can do) from truly adaptive behavior (such as conceptualizing the future, which,

according to Dr. Arbit, defendant is unable to do).  On this basis, Dr. Arbit disputed the

findings of Drs. Berkson and Caruana that defendant did not exhibit substantially impaired

adaptive behavior.

	Finally, Dr. Obolsky, a psychiatrist, testified on behalf of the State and offered his

opinion that defendant did not satisfy either prong of Ind. Code § 35-36-9-2 and was not

mentally retarded under the definition given in the DSM-IV.  Dr. Obolsky believed that most

of defendant’s behaviors which appeared maladaptive were actually just anti-social choices.

	Synthesizing the expert testimony, we observe that three of the four experts found that

defendant exhibited “significantly subaverage intellectual functioning,” but that ultimately

only one expert found that defendant exhibited “substantially impaired adaptive behavior.”  Each of the three experts based his final decision on the presence or absence of adaptive

behaviors.  After receiving this testimony, the trial court found defendant to be mentally

retarded, but not within the meaning of Ind. Code § 35-36-9-2.  Specifically, the court stated:

I don’t think there is any question that he is retarded in that respect

[intellectual functioning].  But again I found and I believe now that he is able

to adapt.  He was living in the community.  He was working.  He [w]as

operating an automobile.  He was living with a young lady.  According to her,

bringing money home.  He was able to go where he wanted to go.

(R. at 3041.)

	In finding this defendant not to be mentally retarded, the trial court made a factual

determination based on the evidence before it.  This Court gives great deference to a trial

court’s findings of fact, and will disturb such findings only upon a showing of abuse of

discretion.  See Smith v. State, 686 N.E.2d 1264, 1272 (Ind. 1997) (trial court’s determination of competency reviewed for abuse of discretion).  Here, pursuant to the Mental

Retardation Statute, the trial court conducted a pretrial hearing at which it heard testimony

from four experts who had evaluated defendant.  Following the hearing, the trial court

articulated its finding that defendant was not mentally retarded within the meaning of Ind.

Code § 35-36-9-2. Having reviewed the record of the evidence presented to the trial court,

we cannot conclude that the trial court abused its discretion in finding defendant not to be

mentally retarded within the meaning of the statute, and we will not disturb the trial court’s

finding.

C

	Defendant’s final argument is that the trial court, by finding that defendant was not

mentally retarded under Ind. Code § 35-36-9-2, excluded the majority of mentally retarded

individuals from the scope of the Mental Retardation Statute.  Defendant’s argument takes

the following form:  defendant is mildly mentally retarded but nevertheless does not satisfy

the statutory requirements for mental retardation; 89% of mentally retarded individuals are

mildly mentally retarded, like defendant; therefore, the majority of mentally retarded

individuals would not satisfy the statutory requirements.  Defendant claims that the trial

court’s interpretation of the statutory scheme contravenes the original intent of the legislature

in enacting the Mental Retardation Statute, which, he argues, was not to exclude 89% of

mentally retarded individuals from its operation.  Br. of Appellant at 24; 26.

	At the pretrial hearing, two experts offered their opinions as to what kind of individual

would satisfy the statutory definition of mental retardation.  Dr. Berkson testified that, in his

opinion, the individual who would satisfy the statutory criteria for mental retardation would

have an IQ of less than 50, would not be able to follow directions, handle money, read, or

write, and could perform only the most simple and repetitive jobs under supervision.  Dr.

Caruana was of the opinion that a person who would satisfy the criteria would be unable to

dress himself or herself, not know when to eat or how to cook, and would require the

constant care of someone else.  The trial court did not incorporate these answers into its finding that defendant was not mentally retarded within the meaning of Ind. Code § 35-36-9-

2.

	Mental retardation is a factual determination, and one which this Court is confident

each trial court will make with the utmost care.  As discussed in part II-B, supra, it is within each trial court’s discretion to decide whether a particular defendant has demonstrated by

clear and convincing evidence that he or she meets the criteria of the Mental Retardation

Statute and is therefore ineligible for a sentence of death or life imprisonment without parole. 

Defendant appears to argue that any time a trial court finds a defendant to be mentally

retarded but nevertheless not to satisfy the statutory definition of mental retardation, that that

defendant will be sentenced contrary to the mandate of Ind. Code § 35-50-2-9.  We disagree. 

	The Mental Retardation Statute operates in conjunction with Ind. Code § 35-50-2-9

not only to prohibit the execution or life imprisonment of a mentally retarded defendant, but

also to ensure that each defendant, whether or not mentally retarded under the Mental

Retardation Statute, may present in mitigation during the penalty phase whatever evidence

of mental retardation is available.  See Penry, 492 U.S. 302, 328 (“jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and

character or the circumstances of the crime”).  In effect, the Mental Retardation Statute and

Ind. Code § 35-50-2-9 work together to the advantage of defendants who, while unable to

prove by clear and convincing evidence that they are mentally retarded within the meaning of Ind. Code § 35-36-9-2, nonetheless can present sufficient  evidence of mental retardation for the jury

or judge to evaluate in their sentencing decisions.19  Such is the case here.  Although the trial court found defendant not to satisfy the statutory definition of mental retardation, it still

found defendant to be mentally retarded and cited defendant’s mental retardation as a

significant mitigating factor when it declined to follow the jury’s recommendation of death

and instead imposed a sentence of life imprisonment without parole.  We believe that the trial

court’s sentencing order and statement exemplify the intended interaction of the Mental

Retardation Statute and Ind. Code § 35-50-2-9.

Conclusion

	We hold that the clear and convincing standard of proof in Ind. Code § 35-36-9-4

does not violate due process, and that the trial court did not abuse its discretion in finding

defendant not to be mentally retarded within the meaning of Ind. Code § 35-36-9-2. 

Accordingly, we affirm defendant’s convictions and sentence of life imprisonment without

parole.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.