State v. Agee

Under the framework the Supreme Court articulated in Hall v. Florida, the consensus in the psychological community under DSM-5 is that an individual’s ability and success in adapting and adjusting to daily life is central to the framework of determining intellectual disability, not strict adherence to standardized intellectual tests. In order to satisfy the Eighth Amendment requirements of ORS 163.150(1)(b), a defendant is allowed to present to a sentencing jury any relevant evidence of mitigating factors of the crime, including mental capacity.

Defendant was convicted of aggravated murder, ORS 138.012(1), during the guilt phase of trial, and was given a death sentence in the punishment phase, which triggered an automatic and direct review by the Oregon Supreme Court. On appeal Defendant assigned as error the trial court’s ruling in denying Defendant’s pre-trial motion to disqualify him for the death penalty because he is intellectually disabled. Defendant made the motion pursuant to the Supreme Court’s ruling in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) (subjecting intellectually disabled persons to the death penalty was excessively cruel). Defendant argued that the trial court applied the incorrect standard for intellectual disability during the pre-trial Atkins hearing to determine his intellectual capacity in light of the changes made between the Diagnostic and Statistical Manual of Mental Disorders (4th ed. - Text Revision 2000) (DSM-IV-TR), and the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). While DSM-5 contains three requirements for finding intellectual disability, it deemphasizes reliance on strict intellectual test scores (e.g., an IQ test) and emphasizes that the defining quality of intellectual disability is an inability to function in day-to-day life. The DSM-5 lays out three criteria to be met for a finding of intellectual disability: (1) deficits in intellectual functions, confirmed by both clinical assessment and individualized, standardized intelligence testing; (2) deficits in adaptive functioning that fail to meet standards for personal independence and social responsibility; and (3) onset of intellectual and adaptive deficits during the developmental period. The Supreme Court recognized in Hall v. Florida, 572 U.S. __, 134 S. Ct. 1986 (2014), that the consensus in the psychological community under DSM-5 was that an individual’s ability and success in adapting and adjusting to daily life was central to the framework of determining intellectual disability. The Court held here that while the trail court correctly determined Defendant’s intellectual capabilities under the DSM-IV-TR standard in place at the time, that standard was no longer relevant under the new standards articulated in the DSM-5 and Hall. Defendant further assigned as error the trial court’s ruling that Defendant could not call his expert witnesses to testify during the penalty phase of the trial to the jury about their diagnoses of Defendant’s intellectual disability as a mitigating factor. The trial court reasoned that since it had already ruled Defendant was not intellectually disabled, Defendant’s experts could not present that testimony to the jury during the penalty phase. The Court, however, held that under Penry v. Lynaugh, 492 U.S. 203, 109 S. Ct. 2934 (1989), and State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990), a defendant must be allowed to present all information to a jury that could be mitigating evidence, including evidence regarding mental capacity, in order to satisfy the Eighth Amendment criteria of the questions a sentencing jury must answer under ORS 163.150(1)(b) to render a death sentence to a defendant. Defendant’s expert witnesses’ testimony as to Defendant’s mental capacity was certainly relevant evidence under OEC 401, Penry, and Wagner. As such, the trial court’s refusal to allow such testimony during the sentencing phase was not harmless error. Judgment of conviction affirmed, sentence of death is vacated and remanded.