Mental retardation as a bar to the death penalty: who bears the burden of proof?

• Author: Eftink, James Gerard
• Position: NOTES

State v. Johnshon (1)

1. INTRODUCTION

   In February of 1994, Ernest Lee Johnson walked into a convenience store in Columbia, Missouri, in the middle of the night. (2) He was a frequent customer of this particular convenience store and had patronized it four times earlier that day. (3) During his fourth visit, the cashier noticed Johnson was staring at her while she deposited money into the store safe. (4) In his final visit to the store, he murdered the employees working that evening with a hammer and took less than $500. (5) Johnson was found guilty of first-degree murder and was sentenced to die for the murder of each of his three victims. (6)

   Over the next ten years, Johnson, whom the media dubbed the "claw hammer killer," (7) appealed his conviction and his death sentences multiple times. (8) In the midst of Johnson's ongoing legal struggle for survival in Missouri, the Supreme Court of the United States held in Atkins v. Virginia that the imposition of a death sentence for a mentally retarded offender is unconstitutional. (9) The Atkins opinion opened a new avenue for Johnson, and on appeal his death sentences were set aside. (10) On remand, Johnson argued that he was mentally retarded. (11) The jury, in what was Johnson's third penalty phase, found that Johnson was not mentally retarded and sentenced him to die. (12) On appeal to the Supreme Court of Missouri, the court held that the penalty phase court did not err in placing the burden of proof upon Johnson to prove that he was mentally retarded. (13)

   In holding that the execution of mentally retarded offenders is cruel and unusual punishment, (14) the instant court followed the current trend of other states. Even before the Supreme Court of the United States rendered its decision in Atkins, state legislatures around the country, including the Missouri legislature, had enacted laws prohibiting the execution of mentally retarded offenders. (15) Also, the Supreme Court of Missouri's holding that a defendant bears the burden of proving his mental retardation is consistent with the position taken by the vast majority of states. (16) However, the court rendered its holding in the absence of any legislation placing the burden upon the defendant. (17) In so doing, the court was not acting in conformity with Missouri common law setting forth doctrines of statutory construction. (18) Furthermore, by not requiring that the burden of proving mental retardation be "beyond a reasonable doubt," the court arguably failed to follow precedent of the Supreme Court of the United States. (19) This Note analyzes these issues and concludes that, while the Supreme Court of Missouri's holding in the instant decision followed the trend of other state legislatures, it failed to make its decision in accordance with Missouri common law.

2. FACTS AND HOLDING

   Ernest Lee Johnson is a veteran of Missouri's appellate system, having been before the Supreme Court of Missouri four times. (20) Johnson was convicted of three counts of first-degree murder in Boone County, Missouri, on May 18, 1995. (21) At trial, the prosecution presented evidence that in February of 1994 Johnson bludgeoned to death three employees of a Columbia convenience store using a hammer, a screwdriver, and a gun. (22) The prosecution also established that Johnson had been planning to hold up this particular convenience store for weeks (23) and that Johnson's girlfriend's son helped Johnson by hiding evidence. (24)

   In the subsequent penalty phase, the jury recommended the death penalty for each of the three convictions. (25) In accordance with the recommendation of the jury, the trial court sentenced Johnson to death. (26) Johnson filed a motion for post-conviction relief, (27) which the trial court overruled after an evidentiary hearing. (28) Johnson then appealed to the Supreme Court of Missouri for the first time. (29) The court rejected the majority of Johnson's appeals (30) and affirmed the conviction on all three counts. (31) However, the court found that Johnson's counsel, during the penalty phase, failed to exercise the skill and diligence that a reasonably competent attorney would exercise in similar circumstances (32) by failing to call an expert witness to testify during the penalty phase whose testimony might have provided mitigating evidence of Johnson's mental health and his mental state at the time of the crime. (33) Further, the court found that Johnson was prejudiced by the absence of this expert's testimony. (34) Based on these conclusions, the court found that Johnson had received ineffective assistance of counsel (35) and remanded the case for a new penalty phase proceeding. (36)

   In the second penalty phase, the new jury also returned three death sentences. (37) In 2000, on his second appeal to the Supreme Court of Missouri, the court rejected all of Johnson's arguments (38) and affirmed the death sentence. (39) This decision seemingly foreclosed all avenues of appeal for Johnson in Missouri. In 2001, while Johnson was awaiting execution, the Missouri General Assembly adopted an amendment to Missouri Revised Statute section 565.030, which prescribes trial procedure for first-degree murder. (40) According to amended section 565.030, the trier of fact during the penalty phase of a first-degree murder trial shall render a verdict of life imprisonment rather than the death penalty if the trier finds by a preponderance of evidence that the defendant is mentally retarded. (41) Yet these provisions affected only offenses committed on or after August 28, 2001, (42) and thus did not apply to Johnson. (43)

   Yet, in 2002, the Supreme Court of the United States held in Atkins v. Virginia that, because the execution of a mentally retarded criminal does not measurably advance the deterrent or the retributive purposes of the death penalty, executing a mentally retarded criminal is excessive punishment and unconstitutional. (44) Therefore, the Constitution restricts a state's power to execute a mentally retarded criminal. (45) After this decision, Johnson once again appealed to the Supreme Court of Missouri. (46)

   Before the court for a third time, Johnson argued that his counsel was deficient in failing to present evidence of mental retardation during the second penalty phase and that the sentence was excessive under the Eighth Amendment of the United States Constitution. (47) In light of the recent Atkins decision prohibiting states from executing mentally retarded offenders, the court held that a defendant who is able to prove by a preponderance of evidence that he or she is mentally retarded shall not be subject to the death penalty. (48) The court further held that, although evidence establishing Johnson's mental retardation was available, (49) Johnson's counsel did not sufficiently present such evidence. (50) Therefore, Johnson was entitled to a new penalty phase hearing. (51)

   In his third penalty phase hearing, Johnson presented evidence that he was mentally retarded. (52) According to the Diagnostic and Statistical Manual of Mental Disorders IV, a person with an IQ of 70 or below is mentally retarded, but it is also possible for an individual with an IQ between 70 and 75 to be mentally retarded. (53) Johnson showed that he had taken IQ tests throughout his life and earned scores of 77, 63, 95, 78, and 84. (54) After the case was remanded for a third penalty phase hearing, Johnson was again tested and received a full-scale IQ score of 67. (55) The expert witness for the state testified that he thought Johnson was faking his low IQ. (56) Johnson's experts testified that Johnson had deficiencies in many categories of adaptive behavior, (57) such as communication, home living, social skills, functional academics, self-direction, health and safety, and leisure and work. (58) The state offered testimony from several other witnesses that Johnson was able to communicate well with others, and the jury was shown the interview between the state's expert and Johnson. (59) The state also offered testimony that Johnson was capable of getting a job and that it was his lack of motivation that kept him unemployed. (60) In addition, one of Johnson's experts was not qualified to diagnose mental diseases, and the only defect he was qualified to diagnose was mental retardation. (61) This same expert testified that he made about half of his income by serving as an expert witness and testifying that a defendant is mentally retarded and that he had never testified on behalf of the prosecution. (62) This expert also relied upon anecdotal evidence provided by Johnson's family to test Johnson's adaptive behaviors. (63)

   In this third penalty phase, the jury found that Johnson was not mentally retarded and once again rendered a verdict of the death penalty for each count of murder. (64) For a fourth time, Johnson appealed to the Supreme Court of Missouri to challenge the imposition of the death penalty. (65)

   As in his prior appearances before the court, Johnson raised a number of points on appeal, each of which the court disposed of relatively quickly. (66) In addition to these points on appeal, Johnson also made several challenges dealing with the issue of his alleged mental retardation. First, Johnson argued that "the trial court erred in instructing the jury that he had the burden of [proof]" to show that he was mentally retarded. (67) Johnson alleged that, by putting the burden upon him, the trial court violated his Sixth Amendment right. (68) Further, Johnson asserted that the burden of proof should have been upon the state. (69) Second, Johnson argued that the state should have been required to prove beyond a reasonable doubt that he is not mentally retarded before the jury could impose the death penalty, rather than only having to satisfy the lower preponderance of evidence standard prescribed by section 565.030.4(1). (70) Johnson argued that the holdings of Atkins (71) and Ring v. Arizona (72) supported his...