Phillips v. State

984 So.2d 503

Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.

No. SC06-2554.

Supreme Court of Florida.

March 20, 2008.

Rehearing Denied June 12, 2008.

Neal Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Assistant CCRC, Southern Region, Fort Lauderdale, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.

PER CURIAM.

Harry Franklin Phillips, an inmate sentenced to death, appeals an order denying his successive motion to vacate his judgment and sentence and an order concluding that he is not mentally retarded under Florida Rule of Criminal Procedure 3.203. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the circuit court's finding that Phillips is not mentally retarded and affirm its denial of relief.

I. FACTS AND PROCEDURAL HISTORY

Phillips was convicted of first-degree murder for the 1982 shooting death of his parole supervisor, Bjorn Thomas Svenson, and sentenced to death. On direct appeal this Court affirmed his conviction and sentence. See Phillips v. State, 476 So.2d 194, 197 (Fla.1985).¹ After his death warrant was signed, Phillips filed a petition for habeas corpus alleging a violation of his rights under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and the Eighth and Fourteenth Amendments. This Court denied the petition as procedurally barred. Phillips v. Dugger, 515 So.2d 227, 228 (Fla.1987).

Phillips filed an amended motion for postconviction relief, raising twenty-four claims. See Phillips v. State, 894 So.2d 28, 33-34 (Fla.2004).² After a Huff³ hearing, the trial court summarily denied the amended motion. Phillips appealed the denial and petitioned for a writ of habeas corpus. See Phillips, 894 So.2d at 34.⁴ Phillips filed a "Notice of Supplemental Authority and Motion for Permission to Submit Supplemental Briefing" related to the United States Supreme Court's decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and this Court permitted supplemental briefing on the mental retardation issues. We affirmed the denial of postconviction relief and denied the habeas petition. Phillips, 894 So.2d at 34. Regarding the mental retardation determination, we noted that "Phillips is free to file a motion under rule 3.203," but expressed "no opinion regarding the merits of such a claim." Id. at 40. We later relinquished jurisdiction for a determination of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203.

The Evidentiary Hearing

The trial court conducted a two-day evidentiary hearing on Phillips's mental retardation claim. At the hearing, the defense presented two expert witnesses: Dr. Glen Caddy and Dr. Denis Keyes. The State presented the expert testimony of Dr. Enrique Suarez. Dr. Joyce Carbonell's intellectual evaluation of Phillips was also introduced through the testimony of Dr. Caddy.⁵ The evidence is summarized below.

Phillips was born in Belle Glade, Florida, and moved to Miami accompanied by his parents and two siblings when he was about six years old. Before moving to Miami, Phillips's parents made their living picking vegetables or working in the fields. Phillips's father eventually obtained employment as a truck driver and was frequently gone from home. The family did not benefit much from the improvement in the father's employment as they did not "see much, if any, of his paycheck."

Phillips lived his life in serious poverty, suffered emotional and physical abuse from his father, suffered the loss of his only male role models (both the father and older brother left the home) and had academic difficulties. Phillips dropped out of school during the tenth grade. While in school he earned "mostly D's and C's." Phillips's academic trouble related partly to his absenteeism—he often skipped school and was suspended on a number of occasions.

As a juvenile Phillips briefly was incarcerated in a youth home. After dropping out of school, he worked as a dishwasher at the Miami Heart Institute. In 1962, he was convicted and sentenced as an adult for the first time and paroled in 1970. Upon his release, he worked for the Department of Sanitation in Dade County, where he was described as helpful and a good worker.⁶ He was later arrested and convicted on an armed robbery charge, for which he was incarcerated until 1982. He was released, and records indicate that he violated his parole. Shortly thereafter, Phillips was convicted of murder and has been incarcerated on death row since 1983.

Dr. Joyce Lynn Carbonell

In 1987, Dr. Joyce Carbonell was asked to assess Phillips's current level of functioning as well as his functioning as it related to his case. Her assessment was based on affidavits from family and friends, an interview with a former teacher, the court and Department of Corrections' records, and other available materials.

Dr. Carbonell performed several tests on Phillips: the Wechsler Adult Intelligence Scale (WAIS)—Revised; the Wide Range Achievement Test-Revised (WRAT-R2); the Peabody Individual Achievement Test (PIAT); the Weschsler Memory Scale (WMS); and the Rorschach Test. Based on Phillips's test performance, Dr. Carbonell concluded that while he was functioning in the borderline range of intellectual functioning, his IQ score of 75 "technically ... would not qualify as mental retardation."

Dr. Denis Keyes

In 2000, Dr. Keyes, an Associate Professor of Special Education at the College of Charleston in South Carolina, examined Phillips for the defense. Dr. Keyes tested Phillips's intellectual functioning utilizing the following tests: Draw-a-Person test; a Developmental Test of Visual-Motor Integration; the Bender-Gestalt test-which also tests visual and motor integration; the Woodcock-Johnson—testing cognitive achievement; and the WAIS-III. Based on Phillips's test performance, Dr. Keyes opined that he performed at a significantly subaverage intellectual level.

In concluding that Phillips had significant deficits in adaptive functioning, Dr. Keyes conducted a retrospective diagnosis.⁷ To evaluate Phillips's adaptive behavior, Dr. Keyes interviewed Phillips, his mother and sister, and Phillips's childhood friend and fellow death row inmate, Norman Parker.⁸ Dr. Keyes also reviewed Phillips's school records. Those records revealed that while Phillips attended school from elementary to tenth grade, he earned C's, D's and F's. Phillips's school history also revealed that he attended school when the system was segregated and special education was not available to him.

From these record observations and tests, Dr. Keyes concluded that Phillips's full scale IQ was 74 and that the onset of his intellectual functioning and adaptive deficits occurred before age 18. Even though Dr. Keyes's evaluation did not establish that Phillips had deficits in his adaptive functioning existing concurrent with his subaverage intellect, he opined that Phillips is mentally retarded.

Dr. Glen Caddy

Dr. Caddy, a Ph.D. in clinical psychology, testified as a defense expert. To assess Phillips's current intellectual functioning, Dr. Caddy administered the WAIS-III. Dr. Caddy did not test Phillips's adaptive functioning.

Phillips achieved a full-scale IQ of 70 on the WAIS-III, placing him in the borderline range of mental retardation. Dr. Caddy described the different categories of intellectual functioning as follows: an IQ score below 70 is formally labeled mentally retarded and now called "extremely low"; an IQ between 70 and 79 is borderline, and generally borderline is not retarded; an IQ between 80 and 89 qualifies as a low normal intellect; and an IQ score within the 90 and 110 range is average.

When asked whether he had an opinion as to whether Phillips was mentally retarded, Dr. Caddy answered: "I have an opinion that he is functioning at an IQ of 70. I have an opinion that says that this condition has existed since very early in his life. I have not done personally those tests that look at adaptive functioning. I have simply read those from others." Dr. Caddy ultimately concluded that based on his evaluations and everything he read, he would place Phillips in the retarded category in some areas and the borderline category in others.

Dr. Enrique Suarez

Dr. Enrique Suarez, a specialist in neuropsychology, was the State's only expert. Dr. Suarez holds a Ph.D. in psychology and has conducted over 3000 forensic psychiatric evaluations. Dr. Suarez defined the criteria for mental retardation as significantly subnormal intellectual functioning, concurrent and present impairments in adaptive functioning in at least two areas,⁹ and onset before age 18.

To assess Phillips's intellectual functioning, Dr. Suarez administered the Test of Nonverbal Intelligence-III (TONI-III). He did not utilize the WAIS-III test because Phillips had previously been administered the WAIS and Dr. Suarez was concerned that Phillips had become familiar with the format. Phillips scored an IQ of 86 on the TONI-III, which is in the low average range.¹⁰

To determine whether Phillips was malingering, Dr. Suarez also administered various validity tests. Based on the inconsistent scores obtained, Dr. Suarez opined that Phillips was not putting forth sufficient effort or was actively attempting to provide incorrect information. Dr. Suarez suggested that Phillips malingered on these tests because to do otherwise "could have dire negative effects on the examinee's life."

Dr. Suarez was the only expert to conduct validity testing on Phillips. He opined that "if you do a cognitive or neurocognitive evaluation and you don't do validity testing, you've done an incomplete assessment." The other doctors disagreed and did not believe that validity testing was necessary.

Based on his evaluations, Dr. Suarez...