Supreme Court of Florida ____________
No. SC19-1858 ____________
JERRY LEON HALIBURTON, Appellant,
vs.
STATE OF FLORIDA, Appellee.
June 17, 2021
PER CURIAM.
Jerry Leon Haliburton, a prisoner under sentence of death,
appeals the trial court’s order denying his 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 (2019), and his amended
successive motion for postconviction relief, which was filed under
Florida Rule of Criminal Procedure 3.851. We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we
affirm the denials of relief. I. BACKGROUND
Haliburton was convicted of the 1981 first-degree murder of
Donald Bohannon and is under sentence of death. We affirmed
Haliburton’s conviction and death sentence on direct appeal.
Haliburton v. State, 561 So. 2d 248, 249-50 (Fla. 1990). We also
affirmed the denial of his initial motion for postconviction relief and
denied his petition for a writ of habeas corpus, Haliburton v.
Singletary, 691 So. 2d 466 (Fla. 1997), and affirmed the denial of
his first successive motion for postconviction relief, Haliburton v.
State, 935 So. 2d 1219 (Fla. 2006) (table).
In the wake of Atkins v. Virginia, 536 U.S. 304 (2002),
Haliburton filed a second successive motion for postconviction
relief, under Florida Rules of Criminal Procedure 3.851 and 3.203,
seeking to vacate his death sentence on the ground that he was
intellectually disabled. We affirmed the summary denial of that
motion because Haliburton failed to demonstrate that his IQ was 70
or below and thus failed to establish that he is intellectually
disabled under our interpretation of the law at that time.
Haliburton v. State, 123 So. 3d 1146 (Fla. 2013), vacated, 574 U.S.
801 (2014), order vacated on reconsideration, 163 So. 3d 509 (Fla.
-2- 2015). Upon this Court’s affirmance of the denial of his intellectual
disability claim in 2013, Haliburton petitioned the United States
Supreme Court for a writ of certiorari. Shortly thereafter, the
Supreme Court issued its decision in Hall v. Florida, 572 U.S. 701,
704 (2014), holding that Florida’s “rigid rule” interpreting section
921.137(1), Florida Statutes, 1 as establishing a strict IQ test score
cutoff of 70 or less in order to present additional evidence of
intellectual disability “creates an unacceptable risk that persons
with intellectual disability will be executed, and thus is
unconstitutional.” The Supreme Court granted Haliburton’s
petition for certiorari and remanded to this Court for further
consideration in light of Hall. Haliburton, 574 U.S. 801. On
remand from the Supreme Court, this Court vacated its prior
decision and remanded this case to the trial court for an evidentiary
hearing on Haliburton’s intellectual disability claim. Haliburton,
163 So. 3d 509.
1. Section 921.137 prohibits the imposition of the death penalty upon the intellectually disabled and defines intellectual disability as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.”
-3- Three witnesses testified at the evidentiary hearing; two were
called by Haliburton—one of his brothers, John H. Haliburton, and
Dr. Bruce Frumkin, a forensic and clinical psychologist—and one
was called by the State—Dr. Michael Brannon, a forensic
psychologist. John H. 2 testified that when they were young,
Haliburton had trouble understanding things and doing chores, and
although Haliburton completed the ninth grade, he needed help
with his schoolwork. When Haliburton got older, John H. never
knew him to live alone, drive a car, pay bills, or have a bank
account.
Dr. Frumkin first evaluated Haliburton in 1992. At that time,
he administered Haliburton the Wechsler Intelligence Scale-Revised
(WAIS-R) IQ test, on which Haliburton obtained a full-scale IQ score
of 80. Dr. Frumkin became involved in the case again in 2010
when he was asked to evaluate Haliburton for intellectual disability.
In 2010, Dr. Frumkin administered Haliburton the WAIS-IV, on
which Haliburton obtained a full-scale IQ score of 74. According to
2. Haliburton also has a brother named John R. Haliburton, who previously testified in this case but is now deceased. Each brother will be referred to by his first name and middle initial.
-4- Dr. Frumkin, based on the score of 74 and its 95 percent
confidence interval, there is a 95 percent chance that Haliburton’s
actual IQ is between 70 and 79.3 Dr. Frumkin testified that the 70-
79 range is consistent with all of the valid IQ test scores that
Haliburton has ever achieved, which, in addition to the 80 and 74
obtained by Dr. Frumkin, include a second 80 (obtained by Dr.
Fleming using the WAIS-R in 1992), a 79 (obtained by Dr.
Eisenstein using the WAIS-III in 2000), and another 74 (obtained by
Dr. Crown using the WAIS-IV in 2009). 4 Dr. Frumkin now
questions the 80 that Haliburton obtained on the WAIS-R in 1992.
He now believes that score was overestimated by approximately four
points, due to the Flynn effect. 5
3. Dr. Frumkin explained that the standard error of measurement (SEM) is not always five points on each side of the score obtained; rather it depends on the test. For the WAIS-IV, the SEM is four points down and five points up, according to Dr. Frumkin.
4. Haliburton also references a score of 75 on another WAIS-R administered by Dr. LaFehr Hession in 1988, but the trial court did not rely on this score for reasons unknown, and Haliburton does not allege that the trial court erred in failing to consider this score. Thus, we do not consider it here.
5. “The Flynn effect refers to a theory in which the intelligence of a population increases over time, thereby potentially inflating
-5- Dr. Frumkin testified that, in his opinion, Haliburton does
have “significantly subaverage intelligence,” based upon the fact
that “he came across as someone with intellectual deficiencies,”
“[h]e was a very poor historian,” and based on the score of 74 on the
WAIS-IV in 2010. Additionally, Dr. Frumkin observed during his
evaluation that Haliburton had very poor vocabulary, was very
concrete in his thinking, had to have questions asked simply and
repeated, was “off on timeframes,” and that his reading, spelling,
and arithmetic abilities varied from the fourth to fourteenth
percentiles.
To assess Haliburton’s adaptive functioning, Dr. Frumkin
administered the Adaptive Behavior Assessment System-II (ABAS-II)
to Haliburton’s sister, Helen, and his brothers, John R. and John H.
Dr. Frumkin determined the raw numbers produced by those
assessments to be invalid for Helen and John H. but noted that
there was general agreement among the siblings in terms of
Haliburton’s strongest and weakest areas.
performance on IQ examinations. The accepted increase in scoring is approximately three points per decade or 0.33 points per year.” Quince v. State, 241 So. 3d 58, 60 n.2 (Fla. 2018).
-6- Dr. Frumkin opined that Haliburton has two or more deficits
in adaptive functioning and thus meets the adaptive deficits prong
of the intellectual disability standard. Dr. Frumkin found that
Haliburton had deficits in the conceptual domain based on his poor
math skills, but he was vague in his testimony regarding in which
other domain Haliburton had substantial deficits. In his report, Dr.
Frumkin wrote, “He would have had at least major deficits in
functional academic skills, using community resources, self-
direction, and in communication.”
Dr. Frumkin also testified that onset of Haliburton’s condition
occurred before the age of eighteen. This was based upon school
records indicating that Haliburton had intellectual problems and
difficulty functioning in school, was in special education classes,
and a notation in the records that he “needs help in all salient
areas.” Based on his findings regarding Haliburton’s subaverage
intelligence, adaptive deficits, and the timeframe during which
those problems manifested, Dr. Frumkin concluded that Haliburton
is intellectually disabled.
Dr. Brannon evaluated Haliburton in June 2018. Prior to the
evaluation, Dr. Brannon reviewed school records, prison records,
-7- and the scores on the WAIS tests previously administered to
Haliburton. During the evaluation, Haliburton said that he
completed the ninth grade in special education classes but had
problems in school with hyperactivity, attentiveness, and following
rules. He admitted to always being in some kind of trouble at
school and bullying his peers. Haliburton discussed being
sentenced to a “reform school” as a juvenile and serving three stints
in prison as an adult, prior to the murder. He also had multiple
arrests for driving offenses. Haliburton said he had never been
married but reported being involved in a seventeen or eighteen-year
relationship and living with his girlfriend at the time of his arrest for
the murder. Haliburton reported using alcohol and a wide variety
of drugs—heroin, amphetamines, barbiturates, cocaine, and
marijuana—on a daily basis, beginning around age fourteen or
fifteen. He provided Dr. Brannon with an accurate medical history
and a rather elaborate personal history, which was not contradicted
by any of the records. He reported being able to prepare basic
meals but said that the women in his life had done most of the
cooking and laundry for him. Haliburton reported reading every
day in prison. He reads from the Koran, westerns, political books,
-8- black history, and books about the history of the United States and
of Islam. He mentioned reading Liberty Defined by Ron Paul, [A]
People’s History of the United States by Howard Zinn, and But They
Didn’t Read Me My Rights! by Michael Cicchini, and he was able to
convey to Dr. Brannon an understanding of what he had read in
those books. He said he watches world news, C-SPAN, political
shows, and follows the progress of bills.
Dr. Brannon observed that Haliburton’s vocabulary was rich
with words that would be expected from someone who was well
within their upper high school years, which, Dr. Brannon said, is
more consistent with the 79-80 IQ scores Haliburton achieved than
the scores of 74. Haliburton could discuss concepts like “rights,”
“liberty,” and “justice,” and understand them in an abstract
fashion. He had made multiple clear and grammatically correct
written requests to prison authorities about the living conditions
and his medical and dental needs, which Dr. Brannon reviewed.
Regrading Haliburton’s IQ, Dr. Brannon acknowledged the
Flynn effect and the practice effect6 but said there is no way of
6. This Court has explained that “[t]he practice effect causes an individual’s IQ scores to rise if that individual was administered
-9- applying those theories in any sort of reasonable scientific way to
Haliburton. Dr. Brannon concluded that Haliburton had neither
significantly subaverage general intellectual functioning nor
significant deficits in his adaptive functioning. In Dr. Brannon’s
opinion, Haliburton did not meet the criteria for intellectual
disability.
Following the evidentiary hearing, Haliburton filed, with leave
of court, a supplement to his then-pending Hurst-related amended
3.851 motion. In those filings, Haliburton contended that his death
sentence, which was imposed following a nonunanimous jury
recommendation of death, violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments, as described in both Hurst v. Florida, 577
U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016),
receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020),
cert. denied, 141 S. Ct. 1051 (2021). The trial court ultimately
issued an order on September 27, 2019, denying Haliburton’s
intellectual disability and Hurst claims. This appeal follows.
the same IQ test within one year.” Thompson v. State, 208 So. 3d 49, 56 n.9 (Fla. 2016).
- 10 - II. ANALYSIS
Haliburton raises three issues on appeal. He asserts that the
trial court erred in failing to find that he is intellectually disabled;
that section 921.137(4), Florida Statutes, which requires a
defendant to prove his intellectual disability by clear and convincing
evidence, is unconstitutional; and that his death sentence imposed
following a nonunanimous jury recommendation of death violates
the Fifth, Sixth, Eighth, and Fourteenth Amendments. We address
each claim in turn.
A. Intellectual Disability
In 2002, the United States Supreme Court held in Atkins, 536
U.S. at 321, that the Eighth and Fourteenth Amendments to the
United States Constitution forbid the execution of persons with
intellectual disability. The Court observed that “clinical definitions
of [intellectual disability] require not only subaverage intellectual
functioning, but also significant limitations in adaptive skills such
as communication, self-care, and self-direction that became
manifest before age 18.” 536 U.S. at 318. Similarly, under Florida
law, “ ‘intellectual disability’ means significantly subaverage general
intellectual functioning existing concurrently with deficits in
- 11 - adaptive behavior and manifested during the period from
conception to age 18.” § 921.137(1), Fla. Stat. (2019).
“Significantly subaverage general intellectual functioning” is defined
as “performance that is two or more standard deviations from the
mean score on a standardized intelligence test specified in the rules
of the Agency for Persons with Disabilities.”7 Id. “Adaptive
behavior” “means the effectiveness or degree with which an
individual meets the standards of personal independence and social
responsibility expected of his or her age, cultural group, and
community.” Id. Thus, to establish intellectual disability as a bar
to execution, a defendant must demonstrate (1) significantly
subaverage general intellectual functioning; (2) concurrent deficits
in adaptive behavior; and (3) manifestation of the condition before
age eighteen.
Until 2014, section 921.137(1) was interpreted as requiring
that a defendant have an IQ of 70 or below in order to meet the first
prong of the intellectual disability standard—significantly
7. The tests approved by the rules of the Agency for Persons with Disabilities are the Stanford-Binet Intelligence Scale and the Wechsler Intelligence Scale. Fla. Admin. Code R. 65G-4.011.
- 12 - subaverage general intellectual functioning—and failure to present
an IQ score of 70 or below precluded a finding of intellectual
disability. Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007),
abrogated by Hall, 572 U.S. 701. In Hall, the Supreme Court held
that Florida’s “rigid rule” interpreting section 921.137(1) as
establishing a strict IQ test score cutoff of 70 or less in order to
present additional evidence of intellectual disability “creates an
unacceptable risk that persons with intellectual disability will be
executed, and thus is unconstitutional.” 572 U.S. at 704. The
Court further held that when assessing the intellectual functioning
prong of the intellectual disability standard, courts must take into
account the standard error of measurement (SEM) of IQ tests. Id.
at 723. And “when a defendant’s IQ test score falls within the test’s
acknowledged and inherent margin of error [±5], the defendant
must be able to present additional evidence of intellectual disability,
including testimony regarding adaptive deficits.” Id. If the
defendant fails to prove any one of the three components of the
statutory test for intellectual disability, the defendant will not be
found to be intellectually disabled. See Salazar v. State, 188 So. 3d
- 13 - 799, 812 (Fla. 2016); accord Williams v. State, 226 So. 3d 758, 773
(Fla. 2017); Snelgrove v. State, 217 So. 3d 992, 1002 (Fla. 2017).
“In reviewing determinations of [intellectual disability], this
Court examines the record for whether competent, substantial
evidence supports the determination of the trial court.” State v.
Herring, 76 So. 3d 891, 895 (Fla. 2011). “This Court ‘does not
reweigh the evidence or second-guess the circuit court’s findings as
to the credibility of witnesses.’ ” Id. (quoting Brown v. State, 959
So. 2d 146, 149 (Fla. 2007)).
1. Significantly Subaverage General Intellectual Functioning
The relevant IQ scores presented by Haliburton at the
evidentiary hearing ranged from 74 to 80. His most recent testing
using the WAIS-IV in 2010 has a confidence interval of 70-79,
“meaning there’s a 95 percent chance that his IQ score is between
70 and 79,” according to Dr. Frumkin. Applying the SEM to
Haliburton’s highest IQ score reveals that his true IQ could be as
high as 85. Dr. Brannon testified regarding the reasons why the
other evidence in this case points to Haliburton’s true IQ being in
the 79-80 range, rather than on the low end of 70. Dr. Brannon
based his assessment on his evaluation of Haliburton, his review of
- 14 - Dr. Frumkin’s 2010 report, Haliburton’s prison records, and
Haliburton’s earlier IQ scores of 80—achieved twice—on the WAIS-R
and 79 on the WAIS-III.
The trial court found “Dr. Brannon’s testimony here both
credible and persuasive.” The trial court declined to apply the
Flynn effect to Haliburton’s scores of 80, stating that “while the
Flynn effect is something to consider, both Dr. Frumkin and Dr.
Brannon agreed it would be against standard practice to adjust an
individual’s score by a certain number of points to account for the
Flynn effect.”
We conclude that the trial court’s finding that Haliburton
failed to establish that he has significantly subaverage general
intellectual functioning is supported by competent, substantial
evidence in the record. Dr. Brannon thoroughly explained why the
totality of the evidence in this case supports the conclusion that
Haliburton’s true IQ is in the 79-80 range—which does not satisfy
this prong—including his scores on the Test of Adult Basic
Education, which were consistent with an IQ of 79-80, his
vocabulary, his reading and television interests, his ability to think
abstractly, his ability to give an accurate, detailed account of his
- 15 - personal history, and Dr. Brannon’s testimony that “you can’t fake
good,” “meaning a person’s higher IQ scores will more accurately
reflect a person’s capacity, while lower IQ scores achieved on other
test administrations might be attributable to a variety of potential
factors.” The trial court found Dr. Brannon to be more credible
than Dr. Frumkin, and we will not now disturb that finding.
The trial court’s decision not to apply the Flynn effect to
Haliburton’s scores of 80, and view them as scores of 76, is also
supported by the evidence. The trial court noted that “both Dr.
Frumkin and Dr. Brannon agreed it would be against standard
practice to adjust an individual’s score by a certain number of
points to account for the Flynn effect.” Indeed, Dr. Frumkin
testified that “the Flynn effect has to do with populations, it doesn’t
have to do with individuals so you can’t say a specific individual is
automatically X number of points slower based upon the Flynn
effect, the true IQ score has to do with populations.” Dr. Frumkin
said that he disagrees with psychologists who “subtract that Flynn
effect number from the IQ score and say this is the person’s IQ.” He
“do[es not] believe one should do that because [the Flynn effect] has
to do with population[s] and not . . . a specific individual.” Dr.
- 16 - Frumkin noted that “[b]oth the score of 80 [in 1992] is what it was
and the score of 74 in 2010 is what it was, except that score of 80, I
didn’t talk about Flynn.”
Dr. Brannon agreed that the Flynn effect is something to
consider when using older, standardized tests, but he also testified
that there is no way of applying the Flynn effect “in any sort of
reasonable scientific way” to Haliburton or any individual. He
explained that it is especially important to be cautious with the
Flynn effect in regards to individuals at the lower end of the IQ
spectrum, because “the brightest people or average to above average
people” at the high end of the spectrum—who, Dr. Brannon said,
would intuitively be expected to be more intellectually curious—may
be affected the most by the Flynn effect. Dr. Brannon further
opined that “applying group norms [like the Flynn effect] to
individuals is trickery[,] especially when you don’t know where they
fall in the distribution.” Moreover, this Court previously observed
that there is no requirement that the Flynn effect be applied to IQ
scores in intellectual disability cases. Quince v. State, 241 So. 3d
58, 61 (Fla. 2018). We therefore find no error in the trial court’s
- 17 - decision to decline to apply the Flynn effect to adjust Haliburton’s
scores of 80 downward.
2. Deficits in Adaptive Behavior
Section 921.137(1) defines “adaptive behavior” as “the
effectiveness or degree with which an individual meets the
standards of personal independence and social responsibility
expected of his or her age, cultural group, and community.” This
Court has further elaborated on this prong, as explained in the
DSM-5 8 and the AAIDD-119:
The AAIDD-11 and DSM-5 definitions are mostly similar to the statutory definition. Compare § 921.137(1), with DSM-5, at 37, and AAIDD-11, at 6, 43. Comparable to IQ scores, the AAIDD-11 recommends that adaptive deficits be established by standardized tests when an individual scores approximately two standard deviations below the population mean, with the results accounting for SEM. AAIDD-11, at 47; see also DSM-5, at 37. The DSM-5 divides adaptive functioning into three broad categories or “domains”: conceptual, social, and practical. DSM-5, at 37; see also AAIDD-11, at 43. The conceptual domain “involves competence in memory, language, reading, writing, math reasoning, acquisition of
8. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).
9. American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010).
- 18 - practical knowledge, problem solving, and judgment in novel situations.” DSM-5, at 37. The social domain “involves awareness of others’ thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment.” Id. The practical domain “involves learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self- management of behavior, and school and work task organization.” Id. According to the DSM-5, adaptive deficits exist when at least one domain “is sufficiently impaired that ongoing support is needed in order for the person to perform adequately in one or more life settings at school, at work, at home, or in the community.” Id. at 38; see AAIDD-11, at 43.
Wright v. State, 256 So. 3d 766, 773 (Fla. 2018).
Dr. Frumkin testified,
[Y]ou know there are three main areas; conceptual, social and practical, but there’s a number of different subcategories in these different areas. And if you’re showing that someone has to have two or more deficits in adaptive functioning, it’s two of more of any of these dozens of various different areas that you’re looking at.
But while Dr. Frumkin considers a domain “sufficiently impaired
that ongoing support is needed” if there is a deficit in one of the
subcategories within a domain, both the DSM-5 and AAIDD-11
require not just a deficit in a subcategory of a domain, but that an
entire domain be “sufficiently impaired that ongoing support is
- 19 - needed in order for the person to perform adequately in” that
domain.
Dr. Frumkin administered the Wide Range Achievement Test-4
(WRAT-4) to Haliburton, which measures functional academics, on
which Haliburton achieved a word reading standard score of 78
(seventh percentile), a sentence comprehension standard score of
83 (thirteenth percentile) a reading composite standard score of 78
(seventh percentile), a spelling standard score of 84 (fourteenth
percentile), and a math computation score of 73 (fourth percentile).
Because Haliburton’s math computation score was low on the
WRAT-4, Dr. Frumkin concluded that “he has a deficit there.”
Essentially, Dr. Frumkin considered Haliburton’s low functional
academic score in math computation to be sufficient to establish
that Haliburton’s conceptual domain “is sufficiently impaired that
ongoing support is needed in order for [Haliburton] to perform
adequately in one or more life settings.”
Dr. Frumkin also administered the ABAS-II to three of
Haliburton’s siblings but ultimately concluded that the numerical
results were invalid. Dr. Frumkin found that his interviews of
Haliburton’s siblings “produced the best information” regarding
- 20 - Haliburton’s adaptive functioning. He noted that Haliburton’s
sister said that Haliburton had major problems in reading and
could not comprehend what he did read; he could not do laundry as
a child, and as he got older, he still could not really cook, clean, or
wash clothes; and as a teenager, he tried to help younger children
with their homework, but he did not know how to do the work
himself. John R. said that Haliburton “wasn’t smart” in math,
reading, and science; he did not believe Haliburton knew how to
cook; and that Haliburton’s “memory is not too good.” And John H.
said that Haliburton lacked common sense; only knew how to solve
problems by fighting; was unable to follow directions involving more
than three city blocks; would leave out the middle of a story; and
was unable to communicate instructions to people. Dr. Frumkin
also interviewed Haliburton’s former employer, Charles Johnson,
who described Haliburton as a “worker bee” who did as he was told
and did not have the mental capacity to organize or plan ahead.
Besides Haliburton’s deficit in math, which falls in the
conceptual domain, Dr. Frumkin did not reveal on direct
examination in which other domain Haliburton was sufficiently
impaired. When pressed on cross-examination regarding in which
- 21 - other domain he found sufficient impairment, Dr. Frumkin was still
vague. A conjunctive review of Dr. Frumkin’s report and testimony
suggests that the two domains in which he found deficits sufficient
to conclude that Haliburton met the adaptive functioning prong
were the conceptual and social. But because Dr. Frumkin testified
that the social domain was Haliburton’s strongest domain, it is not
entirely clear that Dr. Frumkin found any deficit in the social
domain sufficient to meet the criteria for this prong. Dr. Frumkin
did write in his report, “While his relative strength is in the area of
social and interpersonal skills, he still seems deficient in that as
well,” but Dr. Frumkin’s opinion that Haliburton “seems deficient”
is equivocal and does not imply that the deficit was such that it
rendered the entire social domain sufficiently impaired that ongoing
support is needed. And Dr. Frumkin did not testify that Haliburton
had deficits in all three domains but made only the conclusory
statement he had “little doubt that Mr. Haliburton has, and had,
concurrent deficits in adaptive functioning in at least two areas.”
Dr. Brannon disagreed with Dr. Frumkin’s conclusion that
Haliburton met the adaptive deficits prong. Dr. Brannon reviewed
Haliburton’s school records and noted that in the last three years of
- 22 - his formal education his grades ranged from above average to failing
and it was reported that Haliburton did not complete his education
due to behavioral problems. Dr. Brannon reviewed prison records
from a previous incarceration which noted that Haliburton was a
full-time student, enrolled in both an academic program, in which
he was described as having “average ability,” and a vocational auto
body repair program. Haliburton was also enrolled in a CETA auto
body program before he went to prison. Dr. Brannon noted that
Haliburton made multiple clear and grammatically correct written
requests over a period of time to prison authorities about the living
conditions and his medical and dental needs.
In concluding that Haliburton’s deficits do not rise to the level
required to satisfy the second prong of the intellectual disability
standard, Dr. Brannon wrote that Haliburton’s “ability to engage in
Activities of Daily Living (ADLs) appeared intact at the time of his
arrest and during the course of the current assessment.” But
according to the DSM-5, the severity of the deficits required for an
intellectual disability diagnosis “limit functioning in one or more
activities of daily life.” DSM-5, at 33.
The trial court agreed with Dr. Brannon, writing,
- 23 - Ultimately, having considered the evidence and record in this case, the Court agrees with Dr. Brannon’s assessment. On balance, while the Court finds Defendant does suffer significant deficits in mathematical reasoning skills, the Court does not find Defendant’s remaining deficits—of which there appear to be several— to be of such magnitude as to say that one or more of the adaptive function domains “is sufficiently impaired that ongoing support is needed.” Wright, 256 So. 3d at 773 (citing DSM-V, at 38.). Stated differently, the Court finds Defendant has failed to demonstrate by clear and convincing evidence that he satisfies the second prong of the intellectual disability analysis.
The trial court’s conclusion that Haliburton “has failed to
demonstrate by clear and convincing evidence that he satisfies the
second prong of the intellectual disability analysis” is supported by
competent, substantial evidence. This Court has defined clear and
convincing evidence as an “intermediate level of proof [that] entails
both a qualitative and quantitative standard. The evidence must be
credible; the memories of the witnesses must be clear and without
confusion; and the sum total of the evidence must be of sufficient
weight to convince the trier of fact without hesitancy.” In re Davey,
645 So. 2d 398, 404 (Fla. 1994). Here, Dr. Frumkin’s testimony
and written evaluation both lack clarity as to the domains in which
he found Haliburton to have impairment sufficient to satisfy the
second prong of the intellectual disability standard. Dr. Frumkin
- 24 - never explained why he found these domains “sufficiently impaired
that ongoing support is needed in order for the person to perform
adequately in one or more life settings” or in which “life setting”
ongoing support was needed. Having “little doubt” that Haliburton
has concurrent deficits in adaptive functioning in at least two areas
and “seem[ing] deficient” in a domain do not rise to the level of clear
and convincing evidence.
As to the math deficit, Dr. Frumkin did not explain why being
in the fourth percentile in functional academic math would require
“ongoing support.” Moreover, Dr Frumkin was unable to establish
these adaptive deficits “by standardized tests when an individual
scores approximately two standard deviations below the population
mean,” as suggested by the AAIDD-11 and DSM-5. Although Dr.
Frumkin administered the WRAT-4 to Haliburton, he did not
indicate that any of Haliburton’s scores—including his math
computation score—fell approximately two standard deviations
below the population mean.
In his initial brief to this Court, Haliburton also asserts that in
concluding that he did not meet the adaptive deficits prong, the trial
court did what Moore v. Texas, 137 S. Ct. 1039, 1050 (2017),
- 25 - “expressly forbids it to: it scoured the record for putative strengths
to offset or explain the deficits it did find.” We disagree.
Moore—as do the DSM-5 and the AAIDD-11—cautioned
against overemphasizing perceived adaptive strengths when
evaluating the adaptive deficits prong. 137 S. Ct. at 1050. But we
have long recognized that
the trial court does not weigh a defendant’s strengths against his limitations in determining whether a deficit in adaptive behavior exists. Rather, after it considers “the findings of experts and all other evidence,” Fla. R. Crim. P. 3.203(e), it determines whether a defendant has a deficit in adaptive behavior by examining evidence of a defendant’s limitations, as well as evidence that may rebut those limitations.
Dufour v. State, 69 So. 3d 235, 250 (Fla. 2011). Rather than
“overemphasizing perceived adaptive strengths” or “scour[ing] the
record for putative strengths to offset or explain the deficits it did
find,” the trial court here, in its detailed analysis of this prong,
properly considered the findings of both experts as well as all of the
other evidence, including the evidence that rebutted many of the
limitations posited by Dr. Frumkin, before concluding that
Haliburton failed to meet this prong.
- 26 - 3. Age of Onset
As to the third prong of the intellectual disability standard, the
trial court noted that “[w]hile Dr. Frumkin and Dr. Brannon
disagreed as to the level of Defendant’s deficits, they did both agree
that those deficits manifested prior to Defendant’s eighteenth
birthday.” The parties appear to incorrectly interpret this statement
as a finding that Haliburton established that he met this third
prong, but that is not what the trial court said. The trial court was
simply saying that Haliburton’s deficits—which it had already
determined were insufficient to establish intellectual disability—
were also present when he was a minor.
Where significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior is not
established, there is no relevant condition that could have
manifested prior to age eighteen to establish the third prong.
Manifestation prior to age eighteen of subaverage intellectual
functioning or adaptive deficits that do not rise to the levels
required to meet the first two prongs of the intellectual disability
standard is irrelevant to a determination of intellectual disability.
- 27 - Because competent, substantial evidence supports the trial
court’s findings that Haliburton failed to establish that he has
significantly subaverage intellectual functioning or concurrent
deficits in adaptive behavior sufficient to meet the second prong of
the intellectual disability standard, Haliburton necessarily cannot
meet the third prong. Thus, the trial court did not err in failing to
find that Haliburton meets the third prong.
4. Holistic Review
Haliburton argues that the trial court failed to conduct a
“holistic review” that considers all three prongs of the intellectual
disability standard together in an interdependent fashion.
Haliburton relies on Hall and language in Oats v. State, 181 So. 3d
457, 467-68 (Fla. 2015) (citing Hall, 572 U.S. at 723), stating that
“if one of the prongs is relatively less strong, a finding of intellectual
disability may still be warranted based on the strength of other
prongs.” Without endorsing the quoted portion of Oats, we note
that language has no application in this case. Here, we do not have
“one” prong that is “relatively less strong”; we have three prongs
that were not established.
Further,
- 28 - Hall recognizes that the existence of an IQ score evidencing significantly subaverage general intellectual functioning is a threshold requirement for determining whether an individual is intellectually disabled: “For professionals to diagnose—and for the law then to determine—whether an intellectual disability exists once the SEM applies and the individual’s IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning.” Hall, [572 U.S. at 714] (emphasis added).
Walls v. State, 213 So. 3d 340, 350 (Fla. 2016) (Canady, J.,
dissenting), overruled by Phillips v. State, 299 So. 3d 1013 (Fla.
2020). Thus, even in cases where a trial court considers evidence of
multiple prongs of the intellectual disability test, the “threshold,
independent requirement [that significantly subaverage general
intellectual functioning be established in accordance with section
921.137(1) once the SEM is taken into account] should not be cast
aside in the name of ‘holistic review.’ ” Id. (Canady, J., dissenting).
Moreover, the trial court did conduct a “holistic review.” It did
not reach its conclusion that Haliburton failed to establish that he
is intellectually disabled based solely on his failure to meet the first
prong of the intellectual disability standard but instead proceeded
to conduct a detailed analysis of the testimony concerning the
adaptive deficits prong and the “conjunctive and interrelated
- 29 - assessment” of all three prongs of the standard as completed by
Hall, 572 U.S. at 723, and Oats. Thus, we conclude that the trial
court did not err in failing to conduct a “holistic review.”
B. Section 921.137(4), Florida Statutes
Haliburton also argues that he is entitled to relief because
section 921.137(4), Florida Statutes (2019), which requires that
defendants establish their intellectual disability by clear and
convincing evidence, is unconstitutional under Atkins and the
Eighth and Fourteenth Amendments to the United States
Constitution, and that his claim of intellectual disability should
have been analyzed under the more lenient preponderance of the
evidence standard instead. But the trial court discredited
Haliburton’s own expert, without whose testimony the
preponderance of the evidence standard clearly could not be met.
Thus, because we conclude that Haliburton’s claim would have
failed even under the preponderance of the evidence standard, we
need not address the constitutionality of the clear and convincing
evidence standard in section 921.137(4). See Singletary v. State,
322 So. 2d 551, 552 (Fla. 1975) (“[C]ourts should not pass upon the
- 30 - constitutionality of statutes if the case in which the question arises
may be effectively disposed of on other grounds.”).
C. Nonunanimous Death Recommendation
During the pendency of the intellectual disability litigation
below, Haliburton filed a successive 3.851 motion in light of Hurst,
577 U.S. 92, Hurst v. State, 202 So. 3d 40, Asay v. State, 210 So.
3d 1 (Fla. 2016), and Mosley v. State, 209 So. 3d 1248 (Fla. 2016),
contending that his death sentence imposed following a
nonunanimous jury recommendation of death violated the Fifth,
Sixth, Eighth, and Fourteenth Amendments. Haliburton concedes
that we have in other cases repeatedly rejected the same arguments
he has made but wishes to preserve them for federal review,
pursuant to our instruction in Sireci v. State, 773 So. 2d 34, 41
n.14 (Fla. 2000). We therefore affirm the denial of the successive
motion containing these claims without further discussion.
III. CONCLUSION
For these reasons, we affirm the trial court’s order denying
Haliburton’s motion for a determination of intellectual disability as
- 31 - a bar to execution and his amended successive motion for
postconviction relief.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Palm Beach County, Jeffrey Colbath, Judge – 501982CF001893AXXXMB
Neal Dupree, Capital Collateral Regional Counsel, Brittney N. Lacy, Assistant Capital Collateral Regional Counsel, and Todd G. Scher, Special Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda Giger, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
- 32 -