Quince v. State

241 So.3d 58

Kenneth Darcell QUINCE, Appellant,

v.STATE of Florida, Appellee.

No. SC17–127

Supreme Court of Florida.

[April 12, 2018]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Raheela Ahmed, Maria Christine Perinetti, Lisa Marie Bort, and Reuben Andrew Neff, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

Kenneth Darcell Quince, a prisoner under sentence of death, appeals the trial court's order summarily denying his renewed motion for a determination of intellectual disability as a bar to execution, which was filed under Florida Rule of Criminal Procedure 3.203 and section 921.137, Florida Statutes (2015). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we affirm the denial of relief.

I. BACKGROUND

In 1980, Quince pleaded guilty to first-degree felony murder and burglary of a dwelling and, after waiving his right to a penalty phase jury, was sentenced to death. We affirmed Quince's death sentence on direct appeal. Quince v. State , 414 So.2d 185, 189 (Fla. 1982). Quince filed an initial motion for postconviction relief, the denial of which was eventually affirmed on appeal. See Quince v. State , 732 So.2d 1059 (Fla. 1999) ; Quince v. State , 592 So.2d 669 (Fla. 1992) ; Quince v. State , 477 So.2d 535 (Fla. 1985). In 2004, Quince filed a successive motion for postconviction relief under Florida Rules of Criminal Procedure 3.851 and 3.203, in which he sought to vacate his death sentence on the ground that he is intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and section 921.137, Florida Statutes (2003).¹ In 2008, an evidentiary hearing was held, at which the trial court heard evidence regarding all three prongs of the intellectual disability standard and thereafter denied the motion based solely on Quince's failure to meet the significantly subaverage general intellectual functioning prong. The denial of relief was affirmed on appeal. Quince v. State , No. SC11-2401, 2012 WL 6197458, at *1–2 (Fla. Dec. 10, 2012) (116 So.3d 1262 (table) ), cert. denied , ––– U.S. ––––, 134 S.Ct. 2695, 189 L.Ed.2d 743 (2014).

In 2014, the United States Supreme Court issued its decision in Hall v. Florida , ––– U.S. ––––, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014), in which it held that Florida's interpretation of its statute prohibiting the imposition of the death sentence upon an intellectually disabled defendant as establishing a strict IQ test score cutoff of 70 "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Instead of applying the strict cutoff when assessing the subaverage intellectual functioning prong of the intellectual disability standard, courts must now take into account the standard error of measurement (SEM) of IQ tests. See Hall , 134 S.Ct. at 2001. And "when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Id.

In the wake of Hall , Quince filed a renewed motion for a determination of intellectual disability as a bar to execution in 2015. Quince did not request another evidentiary hearing or seek to present any new evidence of his alleged intellectual disability but simply asked the trial court to review the record from the 2008 intellectual disability hearing in light of Hall . Quince also argued that although the current state of the law requires a defendant to prove his or her intellectual disability by clear and convincing evidence, the trial court should allow Quince to prove his intellectual disability by a preponderance of the evidence because, he alleged, "the ‘clear and convincing evidence’ requirement runs afoul of Atkins and the Eighth and Fourteenth Amendments to the Constitution of the United States."

At the hearing held on Quince's renewed motion, the trial court acknowledged that although it had heard evidence regarding all three prongs of the intellectual disability standard at Quince's 2008 hearing, it denied Quince's initial intellectual disability claim based solely on his failure to demonstrate that he meets the significantly subaverage general intellectual functioning prong. The trial court agreed with Quince that Hall should be applied retroactively to his case but disagreed that Quince should be allowed to prove his intellectual disability by a preponderance of the evidence instead of clear and convincing evidence. The trial court stated that it would review the record and evidence from Quince's 2008 intellectual disability hearing and reconsider his intellectual disability claim in light of Hall . After reviewing the record and considering written memoranda from both parties, the trial court concluded that Quince failed to prove that he is intellectually disabled because none of the three IQ scores he had presented—79, 77, and 79—fell within the SEM and Quince "was not precluded from presenting additional evidence of intellectual disability, including testimony regarding adaptive deficits." This appeal follows.

II. ANALYSIS

Quince contends that the trial court erred in failing to find that he meets the first prong of the intellectual disability standard—significantly subaverage general intellectual functioning—because it did not adjust his IQ scores to account for the Flynn effect.² According to Quince, because Hall requires courts assessing IQ to allow professional standards to inform their decisions, the trial court was required to apply the Flynn effect to adjust his IQ scores down. Although the only IQ scores Quince has presented are a 79 (obtained using the WAIS in 1980), a 77 (obtained using the WAIS–R in 1984), and a 79 (obtained using the WAIS–III in 2006), he claims that when the Flynn effect is applied and the SEM is taken into account as required by Hall , his 1980 IQ score of 79 becomes a range from 65–75, his 1984 IQ score of 77 becomes a range of 70–80, and his 2006 IQ score of 79 becomes a range of 71–81. He asserts that all of these "ranges contain a score on which a finding of significantly subaverage general intellectual functioning is warranted."

At the evidentiary hearing on Quince's initial intellectual disability claim in 2008, Dr. Oakland, a psychologist, testified that he relied on the Flynn effect to adjust Quince's 1980 IQ score from a 79 to a 70. But Dr. Oakland admitted that there is no scientific way to determine whether or not the Flynn effect is operating on a particular person's intelligence score and that he could only say that it was "within the realm of probability" that the Flynn effect impacted Quince's 1980 IQ score. Dr. Oakland did not dispute the accuracy of Quince's unadjusted 1984 IQ score of 77 or his unadjusted 2006 IQ score of 79 and did not testify that those scores should be adjusted for the Flynn effect. At the same 2008 hearing, another psychologist, Dr. McClaren, testified that because Quince's IQ scores remained virtually the same across time and are "tightly clustered near the upper bounds of the borderline level of intellect," the Flynn effect had no impact on them. Dr. McClaren testified that the Flynn effect does not apply on an individual basis, that it is not general clinical practice to subtract the "Flynn number" from an attained IQ score, and that the most recent publication from the American Association on Mental Retardation (which has since been renamed the American Association of Intellectual and Developmental Disabilities (AAIDD) ) at the time did not advise doing so. Dr. McClaren also testified that it would not only be inappropriate but would make no sense to simply add the Flynn number and the SEM together and subtract them from an IQ score because they are not totally independent of one another. After the hearing, the trial court declined to apply the Flynn effect to adjust Quince's IQ scores and concluded that Quince did not establish that he suffers from significantly subaverage general intellectual functioning.

We previously considered and rejected Quince's argument that the trial court erred in failing to apply the Flynn effect to his IQ scores when Quince appealed the denial of his initial intellectual disability claim. See Quince , 116 So.3d 1262 (table) ; Initial Brief of the Appellant at 50, Quince v. State , 116 So.3d 1262 (Fla. 2012) (table) (No. SC11–2401 ). Quince again argues that the trial court erred in failing to adjust his scores for the Flynn effect when considering his renewed intellectual disability claim. Quince now relies on a 2015 publication of the AAIDD, The Death Penalty and Intellectual Disability (Edward A. Polloway, ed. 2015) (DPID), which states that there is "a consensus that individually obtained IQ test scores derived from tests with outdated norms must be adjusted to account for the Flynn Effect, particularly in Atkins cases." Quince argues that under " Hall , courts assessing ID must allow professional standards to inform their decisions" and that "[i]t is clear that both the professional community and the legal community recommend adjusting for the Flynn Effect in the context of Atkins cases." He asserts that if both the Flynn effect and the SEM are applied to his IQ scores as he claims Hall requires, he will have established that he meets the significantly subaverage intellectual functioning prong of the intellectual disability standard.

As many courts have already recognized, Hall does not mention the Flynn effect and does not require its application to all IQ scores in Atkins cases. E.g. , Black v. Carpenter , 866 F.3d 734, 746 (6th Cir. 2017) (noting that Hall does not even...