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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    Indiana prohibits sentencing a mentally retarded defendant to death or to life imprisonment without parole. We review here, for the first time, the statutory procedures for determining mental retardation in this context.

    Based on this series of events, the State charged defendant with Murder,See footnote 1 Felony Murder,See footnote 2 and Confinement, a class B felony,See footnote 3 and sought a sentence of death or life imprisonment without parole.See footnote 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.See footnote 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.See footnote 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).

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”).

    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.See footnote 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.

    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.”See footnote 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.See footnote 10 Id. at 334. The Court also acknowledged several public

opinion polls disapproving of the execution of mentally retarded defendants.See footnote 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.See footnote 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,See footnote 13 Penry remains good

law.See footnote 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,See footnote 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.

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.

* * *

(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.)

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.

    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 behaviorSee footnote 17 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.See footnote 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.

    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.

    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 evidence of mental retardation for the jury or judge to evaluate in their sentencing decisions.See footnote 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.

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

    significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Fourth Edition 1994) (“DSM-IV”) at 39.

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