RENDERED: APRIL 18, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0232-MR
ROBERT KEITH WOODALL APPELLANT
ON APPEAL FROM CALDWELL CIRCUIT COURT V. HONORABLE CLARENCE A. WOODALL, III, JUDGE NO. 97-CR-00053
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
In 1998, Robert Keith Woodall was sentenced to death for the
kidnapping, rape, and murder of a teenage girl. Extensive collateral attack
litigation ensued. In 2015, Woodall filed a Motion to Vacate the Death Sentence
Due to Intellectual Disability, pursuant to Kentucky Rule of Civil Procedure
(CR) 60.02, or in the alternative, CR 60.03. The trial court denied his motion
without a hearing. This Court reversed and remanded. See Woodall v.
Commonwealth, 563 S.W.3d 1 (Ky. 2018). On remand, the trial court held an
evidentiary hearing and again denied Woodall’s motion. Woodall now appeals to
this Court. For the following reasons, we affirm the order of the Caldwell
Circuit Court. I. BACKGROUND
Robert Keith Woodall pleaded guilty to the kidnapping, rape, and murder
of a teenage girl that occurred in January 1997. A jury sentencing took place in
July 1998, and the jury recommended a sentence of death. The trial court
adopted this recommended sentence. Extensive collateral attack litigation
ensued in both state and federal court.
Eventually, Woodall filed a Motion to Vacate the Death Sentence Due to
Intellectual Disability, pursuant to CR 60.02, or in the alternative, CR 60.03.
He argued that he is intellectually disabled and, therefore, the imposition of the
death penalty would violate his constitutional rights, as the Eighth Amendment
to the United States Constitution prohibits imposition of the death penalty on
those who are intellectually disabled. Woodall sought and received funding to
hire an expert who submitted a report that opined Woodall is, in fact,
intellectually disabled. The Commonwealth responded, and Woodall replied.
The trial court then denied Woodall’s motion without holding a hearing.
Woodall appealed the denial of his CR 60.02 motion to this Court.
Pursuant to the United States Supreme Court’s decisions in Hall v. Florida, 572
U.S. 701 (2014), and Moore v. Texas, 581 U.S. 1 (2017), we held that Kentucky
Revised Statute (KRS) 532.130(2), which defined “serious intellectual disability”
for purposes of the death penalty, 1 was “simply outdated” and “potentially and
1 “A defendant with significant subaverage intellectual functioning existing
concurrently with substantial deficits in adaptive behavior and manifested during the developmental period is referred to in KRS 532.135 and 532.140 as a defendant with a serious intellectual disability. ‘Significantly subaverage general intellectual 2 unconstitutionally exposes intellectually disabled defendants to execution.”
Woodall, 563 S.W.3d at 6. We further held that “any rule of law that states that
a criminal defendant automatically cannot be ruled intellectually disabled and
precluded from execution simply because he or she has an IQ of 71 or above,
even after adjustment for statistical error, is unconstitutional.” Id. We then
sought to fashion a rule that would comport with the Constitution. We held
that a trial court’s determination of whether a criminal defendant is
intellectually disabled is “akin to a totality of the circumstances test.” Id. This
test has
three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70—adjusted for the standard error of measurement; (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances,); and (3) the onset of these deficits while still a minor.
Id. at 6–7 (quoting Moore, 581 U.S. at 7) (internal quotation marks omitted). We
further explained that “in addition to ascertaining intellectual disability using
this test, prevailing medical standards should always take precedence in a
court’s determination.” Id. at 7. We then reversed the trial court’s order and
remanded to the trial court to conduct a hearing on Woodall’s potential
intellectual disability pursuant to the guidelines we had laid out. Id.
On remand, the trial court held an evidentiary hearing to determine if
Woodall had an intellectual disability that would preclude the imposition of his
functioning’ is defined as an intelligence quotient (I.Q.) of seventy (70) or below.” KRS 532.130(2).
3 death sentence. At that hearing, Woodall presented extensive testimony from
his expert, Dr. John Fabian, a Forensic and Clinical Psychologist and
Neuropsychologist. Dr. Fabian opined that Woodall was intellectually disabled.
Dr. Fabian’s report, concluding as much, was admitted into evidence. Woodall
also presented testimony from Jane Vick, one of his tenth-grade teachers. Vick
had referred Woodall for an evaluation to determine if he was educationally
mentally handicapped, which he was later found to be. Woodall’s special
education records were also admitted into evidence. Finally, Woodall presented
testimony from Jennifer Walling, who had previously worked for the Kentucky
Department of Public Advocacy (DPA) and had been a mitigation specialist
assigned to Woodall’s case in 1997 and 1998. She testified regarding her
observations which led her to believe Woodall may be of low intellectual
functioning.
The Commonwealth presented testimony from Jessica Woods, a medical
records manager at the Kentucky Correctional Psychiatric Center (KCPC). She
served to authenticate the KCPC records from Woodall’s admittance there in
1998. The Commonwealth also presented testimony from retired Kentucky
State Police (KSP) Detective Stacy Blackburn. Blackburn had interviewed
Woodall regarding a 1992 sexual abuse case. Blackburn testified that Woodall
waived his Miranda rights and eventually signed a written statement that
Blackburn had prepared.
The Commonwealth also sought to admit Woodall’s KCPC records, which
included a report written by Dr. Richard Johnson, a Licensed Clinical
4 Psychologist, who evaluated Woodall while he was a patient at KCPC in 1998.
Woodall objected to the admission of these documents, and the trial court
allowed both oral argument and written briefing on the issue. Woodall objected
specifically to the admission of Dr. Johnson’s report without accompanying
testimony from Dr. Johnson on the basis that it violated his constitutional
rights to confront and cross examine witnesses called against him. Ultimately,
the trial court admitted all KCPC records, other than Dr. Johnson’s report, for
the data and information they contained but not for any opinions that were
expressed in them. The trial court admitted Dr. Johnson’s report in total,
including his opinions rendered, finding it to be both relevant and admissible.
After reviewing all of the evidence submitted, the trial court entered an
order finding that Woodall had not proven by the preponderance of the
evidence that he is intellectually disabled. The trial court therefore denied
Woodall’s Motion to Vacate the Death Sentence Due to Intellectual Disability.
Woodall has now appealed to this Court. Additional facts will be described as
relevant and necessary for our analysis.
II. ANALYSIS
To this Court, Woodall argues that the trial court abused its discretion in
denying his CR 60.02 motion. He argues that he is intellectually disabled and
that the Eighth Amendment to the United States Constitution prohibits his
execution. As a corollary to that argument, Woodall asserts that the trial
court’s finding that he did not prove by a preponderance of the evidence that he
is intellectually disabled was not supported by substantial evidence. Woodall
5 also argues that the trial court erred in admitting and relying on Dr. Johnson’s
report generated pursuant to his evaluation of Woodall at KCPC in 1998
without requiring that Dr. Johnson testify at the hearing and be subject to
cross-examination. Woodall asserts that this violated both his Confrontation
Clause rights and his Due Process rights. 2 He further argues that Dr.
Johnson’s report was not relevant and should have been excluded on that
basis as well.
Ordinarily, whether a defendant is entitled to the extraordinary relief
provided by CR 60.02 is a matter left to the “sound discretion of the court and
the exercise of that discretion will not be disturbed on appeal except for abuse.”
Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting Richardson
v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)). However, in this case, the trial
court would not have had any discretion to deny Woodall’s motion if it found
that he was intellectually disabled, as it would have been unquestionably
unconstitutional to subject him to the death penalty if he was intellectually
disabled. We address each of Woodall’s arguments and their appropriate
standards of review below, although we do not do so in the order they are
presented to us.
A. Relevancy
In Atkins v. Virginia, the United States Supreme Court held that the
Eighth Amendment to the United States Constitution prohibits the execution of
2 Woodall makes these arguments under the United States Constitution. He
does not make any claims under the Kentucky Constitution.
6 a person who has an intellectual disability. 536 U.S. 304, 321 (2002). In Hall v.
Florida, the U.S. Supreme Court held that a rigid and bright-line IQ test score
cut off for determining intellectual disability was unconstitutional. 572 U.S.
701, 723 (2014). Finally, in Moore v. Texas, the U.S. Supreme Court offered
additional guidance to states in assessing intellectual disability by emphasizing
that prevailing medical standards should guide a court’s determination of
whether a criminal defendant is intellectually disabled and thus exempt from
the death penalty. 581 U.S. 1, 15 (2017).
Dr. Johnson’s evaluation of Woodall occurred in 1998, and his report
was generated shortly thereafter. This was, obviously, prior to even Atkins, let
alone Hall and Moore. Because of this, Dr. Johnson’s evaluation of Woodall did
not include any assessments specific to the issue of Woodall’s adaptive
functioning, as Dr. Johnson’s focus was on the bright-line IQ score. Woodall
argues that because Dr. Johnson’s evaluation did not include any adaptive
functioning assessments—as now required for the trial court to consider under
Supreme Court precedent and professional norms—Dr. Johnson’s report was
not relevant and should have been excluded.
Relevancy is a low bar. Hall v. Commonwealth, 468 S.W.3d 814, 832 (Ky.
2015). Under Kentucky Rule of Evidence (KRE) 401, “‘[r]elevant evidence’
means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Further, all relevant evidence
is admissible unless excluded by constitution, statute, or rule. KRE 402. “We
7 give substantial deference to a trial court’s relevancy decisions. And ‘we will not
disturb the decisions of the trial court without a clear showing of abuse of
discretion.’” Kerr v. Commonwealth, 400 S.W.3d 250, 259 (Ky. 2013) (quoting
Webb v. Commonwealth, 387 S.W.3d 319, 325 (Ky. 2012)). “The test for abuse
of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co.
v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
In this case, Dr. Johnson’s report explained that Woodall was to “be
examined to determine whether he has any significant subaverage intellectual
functioning existing concurrently with substantial deficits in adaptive behavior
and manifested during the developmental period, and if so, whether the same
may exist concurrently with any mental illness or insanity.” Dr. Johnson’s
report was focused on whether “at the time of the alleged offense as a result of
mental retardation, Mr. Woodall lacked the substantial capacity either to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law.” 3 However, it still included an evaluation of both
Woodall’s intellectual function and his adaptive functioning deficits. Dr.
Johnson concluded that there was not “any evidence of mental retardation (IQ
scores of less than 70 and deficits in adaptive behavior functioning).” The fact
that Dr. Johnson reached this conclusion prior to the U.S. Supreme Court’s
decisions in Hall and Moore and did not include adaptive functioning
3 The phrase “mental retardation” is no longer used and has been replaced with
“intellectual disability.”
8 assessments does not make it completely irrelevant. The report still contained
information that had some “tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without” the report. KRE 401. Instead of going to
admissibility, the lack of adaptive functioning assessments bears on the
question of weight to be given to the report. The trial court was free to weigh
this in reaching its ultimate conclusions in this case. Accordingly, the trial
court did not abuse its discretion in admitting Dr. Johnson’s report based on
relevancy.
B. Due Process
Woodall also argues that the trial court’s admission of Dr. Johnson’s
report without live testimony from Dr. Johnson, at which he would have been
subject to cross-examination by Woodall, violated his due process rights under
the Fourteenth Amendment to the United States Constitution. We review this
question de novo. Commonwealth v. Riker, 573 S.W.3d 622 (Ky. 2018) (citing
Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 54 (Ky. 2011)).
We have previously explained that “[d]ue process is a malleable concept,
conforming to meet the particular circumstances.” Ramirez v. Nietzel, 424
S.W.3d 911, 917 (Ky. 2014). The U.S. Supreme Court has not yet addressed
the precise amount of process that is due a criminal defendant in a post-
conviction challenge to a death sentence based on an allegation of intellectual
disability. However, it has done so, at least in a broad way, for claims of
insanity. Ford v. Wainwright, 477 U.S. 399 (1986).
9 In Ford v. Wainwright, the U.S. Supreme Court was severely fractured.
Id. The Court had to decide if the Eighth Amendment to the U.S. Constitution
prohibits states from executing prisoners who are insane and, if so, what
procedures are required for a state court to make an insanity determination. Id.
at 405. Seven members of that Court agreed that executing a prisoner who is
insane is unconstitutional. Id. at 409–10. All seven of those members further
agreed that, at a minimum, a defendant is entitled to the opportunity to be
heard on the issue of whether he is insane. Id. at 413–14, 424–25, 430. This
agreement, however, spanned three separate opinions, each with differing
views of the procedures required, and none of which garnered a majority of the
Court.
Justice Marshall wrote for himself and three other members of the Court.
He emphasized the importance of accurate fact finding, given that the “decision
affect[s] the life or death of a human being.” Id. at 411. He explained that “the
factfinder must ‘have before it all possible relevant information about the
individual defendant whose fate it must determine.’” Id. at 413 (quoting Jurek
v. Texas, 428 U.S. 262, 276 (1976) (plurality opinion)). He went on to state that
“any procedure that precludes the prisoner or his counsel from presenting
material relevant to his sanity or bars consideration of that material by the
factfinder is necessarily inadequate.” Id. at 414.
Justice Marshall further explained that “[c]ross-examination of the
psychiatrists, or perhaps a less formal equivalent, would contribute markedly
to the process of seeking truth in sanity disputes” and that “[w]ithout some
10 questioning . . . a factfinder simply cannot be expected to evaluate the various
opinions, particularly when they are themselves inconsistent.” Id. at 415.
Despite these statements, Justice Marshall also explained that he and the
other three members of the Court for whom he was writing “do not . . . suggest
that only a full trial on the issue of sanity will suffice to protect the federal
interests; we leave to the State the task of developing appropriate ways to
enforce the constitutional restriction upon its execution of sentences.” Id. at
416–17. He explained that various “legitimate pragmatic considerations may . .
. supply the boundaries of the procedural safeguards that feasibly can be
provided.” Id. at 417.
Although Justice Marshall’s opinion was the lead opinion, it did not carry
a majority of the Court regarding the extent of the procedures required in a
state’s determination of whether a defendant was insane and thus ineligible for
the death penalty. Justice Powell and Justice O’Connor, who was joined by
Justice White, also wrote on the procedures they deemed necessary to protect a
defendant’s due process rights in a post-trial insanity claim.
Justice Powell agreed with Justice Marshall that a defendant is entitled
to an opportunity to be heard. Id. at 424 (Powell, J., concurring in part and
concurring in the judgment). He believed, however, that “a constitutionally
acceptable procedure may be far less formal than a trial.” Id. at 426. He
summarized his view by explaining,
The State should provide an impartial officer or board that can receive evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the
11 State’s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake. As long as basic fairness is observed, I would find due process satisfied[.]
Id. at 427.
Justice O’Connor, writing for herself and Justice White, explained that,
in their view, “[i]f there is one ‘fundamental requisite’ of due process, it is that
an individual is entitled to an ‘opportunity to be heard.’” Id. at 430 (O’Connor,
J., concurring in the result in part and dissenting in part) (quoting Grannis v.
Ordean, 234 U.S. 385, 394 (1914)). She further explained that although
“[t]he prisoner’s interest in avoiding an erroneous determination is, of course,
very great. . . . it [is] self-evident that once society has validly convicted an
individual of a crime and therefore established its right to punish, the demands
of due process are reduced accordingly.” Id. at 429 (citing Meachum v. Fano,
427 U.S. 215, 224 (1976)). She summarizes her view by saying, “While I would
not invariably require oral advocacy or even cross-examination, due process at
the very least requires that the decisionmaker consider the prisoner’s written
submissions.” Id. at 430.
The only thing all three of these opinions have in common regarding the
required procedure, and thus the only process that is necessarily due to a
prisoner challenging his death sentence due to insanity, is the opportunity to
be heard. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may be viewed as
12 that position taken by those Members who concurred in the judgments on the
narrowest grounds[.]’” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976)). If there was any question about this, in 2007, the U.S. Supreme Court
reinforced that “Ford requires, at a minimum, that a court allow a prisoner’s
counsel the opportunity to make an adequate response to evidence solicited by
the state court.” Panetti v. Quarterman, 551 U.S. 930, 952 (2007). In Panetti,
the Court declined to “address whether other procedures, such as the
opportunity for discovery or for the cross-examination of witnesses, would in
some cases be required under the Due Process Clause.” Id.
Although Wainwright and Panetti both addressed the procedural due
process requirements of a post-conviction attack on a death sentence due to
insanity, we see no reason why this same analysis does not apply to a post-
conviction attack on a death sentence due to intellectual disability. The same
interests are at stake, and the determinations made by the trial court are
sufficiently similar. Accordingly, we conclude the trial court was only required
to provide Woodall with an opportunity to be heard in order for his due process
rights to be vindicated. In this case, he was given that opportunity.
Woodall was provided with state funds to hire his own expert to opine on
whether he was intellectually disabled. This expert, Dr. Fabian, evaluated him,
wrote a report, and testified for a full day at his CR 60.02 evidentiary hearing.
Dr. Fabian also observed the testimony of the Commonwealth’s witnesses and
reviewed all of the documents the Commonwealth submitted in support of its
claim that Woodall was not intellectually disabled. Dr. Fabian was then
13 permitted to again testify and refute the Commonwealth’s evidence. Dr. Fabian
specifically sought to discredit Dr. Johnson’s report and conclusions by
testifying that the report’s “fatal flaw” was that Dr. Johnson did not conduct
any adaptive functioning assessment as was required by professional norms.
Woodall was also permitted to call other witnesses in addition to Dr.
Fabian and to cross-examine the witnesses that the Commonwealth called to
testify. Regarding Dr. Johnson, specifically, the trial court noted that Woodall
called Dr. Johnson to testify at his original sentencing trial in mitigation.
Although it does not appear that the trial court relied heavily on Dr. Johnson’s
trial testimony, it was a consideration in that court’s decision to admit Dr.
Johnson’s report. Given all of the circumstances in the case at bar, along with
U.S. Supreme Court controlling precedent on this issue, we cannot hold that
Woodall’s due process rights were violated. Woodall had a full and fair
opportunity to be heard at his CR 60.02 evidentiary hearing.
C. Confrontation Clause
Woodall also argues that the trial court’s admission of Dr. Johnson’s
report without live testimony and an opportunity to cross-examine him violated
Woodall’s Confrontation Clause rights under the United States Constitution.
We review issues of constitutional interpretation de novo. Maupin v.
Commonwealth, 542 S.W.3d 926, 928 (Ky. 2018).
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” The U.S. Supreme Court has held that this
14 guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380
U.S. 400, 406 (1965). That Court has explained that “a primary interest
secured by [the Confrontation Clause] is the right of cross-examination.”
Douglas v. Alabama, 380 U.S. 415, 418 (1965).
The primary U.S. Supreme Court case upon which Woodall relies is
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Melendez-Diaz, the
trial court admitted into evidence at trial “affidavits reporting the results of
forensic analysis which showed that material seized by the police and
connected to the defendant was cocaine.” Id. at 307. The trial court did this
without requiring the laboratory analysts to testify in person. Id. at 309. The
U.S. Supreme Court, relying on its earlier decision in Crawford v. Washington,
541 U.S. 36, 54 (2004), held that the defendant’s Confrontation Clause rights
were violated because there was no “showing that the analysts were
unavailable to testify at trial” and that the defendant “had a prior opportunity
to cross-examine them.” Id. at 311 (emphasis added).
Woodall does not cite to any case binding on this Court that extends the
application of the Confrontation Clause beyond the guilt phase of a trial. Our
own research also does not reveal any binding precedent requiring application
of the Confrontation Clause to a post-conviction collateral attack such as the
one before us today.
The seminal U.S. Supreme Court cases that address the application of
the Confrontation Clause do so in the context of the guilt phase of a trial and
speak directly to witnesses who do not testify at trial. E.g., Pointer, 380 U.S. at
15 404 (“The fact that this right appears in the Sixth Amendment of our Bill of
Rights reflects the belief of the Framers of those liberties and safeguards that
confrontation was a fundamental right essential to a fair trial in a criminal
prosecution.” (emphasis added)); Crawford, 541 U.S. at 53–54 (“[T]he Framers
would not have allowed admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.” (emphasis added));
Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011) (“As a rule, if an out-of-
court statement is testimonial in nature, it may not be introduced against the
accused at trial unless the witness who made the statement is unavailable and
the accused has had a prior opportunity to confront that witness.” (emphasis
added)). But see Kentucky v. Stincer, 482 U.S. 730 (1987) (applying the
Confrontation Clause to a witness competency hearing held mid-trial).
Having found no precedent to support extending the Confrontation
Clause’s protections to a post-conviction collateral attack on a death sentence,
we decline to do so today. Accordingly, we hold that Woodall’s Confrontation
Clause rights were not violated by the admission of Dr. Johnson’s report
without the opportunity to cross-examine Dr. Johnson.
D. Sufficiency of the Evidence
Finally, Woodall argues that the trial court’s finding that he did not prove
he is intellectually disabled by a preponderance of the evidence was not
supported by substantial evidence and ignored prevailing medical standards.
16 He further argues that he did, in fact, present sufficient evidence that he is
intellectually disabled and cannot be subject to the death penalty.
As previously explained, a trial court’s determination of whether a
criminal defendant is intellectually disabled is “akin to a totality of the
circumstances test.” Woodall, 563 S.W.3d at 6. This test has
three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70—adjusted for the standard error of measurement; (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances,); and (3) the onset of these deficits while still a minor.
Id. at 6–7 (quoting Moore, 581 U.S. at 7) (internal quotation marks omitted).
“[I]n addition to ascertaining intellectual disability using this test, prevailing
medical standards should always take precedence in a court’s determination.”
Id. at 7. The defendant bears the burden of proving intellectual disability by a
preponderance of the evidence. Id. at 6 n.29.
A trial court’s determination of intellectual disability is a very fact-
specific inquiry. Because of this, we review the trial court’s factual findings for
clear error. CR 52.01. “Under this standard, the trial court’s findings of fact will
be conclusive if they are supported by substantial evidence.” Simpson v.
Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015). “Substantial evidence means
evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chem.
Co., 474 S.W.2d 367, 369 (Ky. 1971). However, we review a trial court’s
17 application of the law to the facts de novo. Commonwealth v. Crowe, 610
S.W.3d 218, 224 (Ky. 2020).
We are compelled to first address Woodall’s claim that the trial court
should be reversed solely because it relied in part on Dr. Johnson’s report.
Woodall seems to assert that because Dr. Johnson’s report was used as
evidence at Woodall’s pre-Atkins sentencing trial, reliance on it in an Atkins
hearing amounted to automatic reversible error. To support this assertion,
Woodall cites to Brumfield v. Cain, 576 U.S. 305 (2015); however, the
procedural posture of Brumfield is sufficiently different from the posture of
Woodall’s case to reject its application.
Brumfield had been sentenced to death in a Louisiana state court at a
time when U.S. Supreme Court precedent permitted the imposition of the death
penalty on a person with an intellectual disability. Id. at 308. After the
Supreme Court rendered Atkins, Brumfield raised a post-conviction Atkins
claim, seeking to invalidate his death sentence due to his intellectual disability.
Id. at 309. He sought an evidentiary hearing and pointed to mitigation evidence
that was offered at his trial to support his request. Id. Brumfield further sought
funds to obtain experts to provide evidence supporting his claim. Id. at 310.
The Louisiana trial court dismissed his petition without holding a hearing or
granting funds for Brumfield to conduct additional investigation. Id. The trial
court relied in large part on the testimony presented at Brumfield’s original
trial in making its determination. Id.
18 Brumfield filed a petition for habeas corpus in federal court. Id. at 311.
On review of that petition, the U.S. Supreme Court noted that “in seeking an
evidentiary hearing, Brumfield was not obligated to show that he was
intellectually disabled, or even that he would likely be able to prove as much.
Rather, Brumfield needed only raise a ‘reasonable doubt’ as to his intellectual
disability to be entitled to an evidentiary hearing.” Id. at 320. The Court
explained that “Brumfield had not yet had the opportunity to develop the
record for the purpose of proving an intellectual disability claim. At his pre-
Atkins trial, Brumfield had little reason to investigate or present evidence
relating to intellectual disability.” Id. at 321. It even explained that at a trial
“conducted prior to Atkins, the defense’s trial strategy may have been to shift
the focus away from any diagnosis of mental retardation.” Id. (internal
quotation marks omitted). Accordingly, the Supreme Court held that “the state
trial court should have taken into account that the evidence before it was
sought and introduced at a time when Brumfield’s intellectual disability was
not at issue. The court’s failure to do so resulted in an unreasonable
determination of the facts.” Id. at 322.
After a thorough review, we cannot conclude that Brumfield stands for
the proposition that any reliance on evidence introduced at a pre-Atkins trial is
reversible error in a hearing held pursuant to Atkins. Instead, Brumfield merely
held that the evidence elicited at Brumfield’s pre-Atkins trial was sufficient to
raise a reasonable doubt as to his asserted intellectual disability and, as such,
Brumfield was entitled to an evidentiary hearing on the matter. Id. at 321.
19 We turn now to the factual findings made by the trial court in the case at
bar. The trial court in this case issued an eleven-page order, of which seven
pages were dedicated to its factual findings. Regarding Woodall’s intellectual
functioning, the trial court first looked at Woodall’s multiple IQ test scores. The
trial court found that “[t]he professionals agreed that the general ranges of
intellectual functioning relevant to this case are as follows: average is 80-89;
borderline is 70-79; and previously the level of intellectual disability had been a
score of less than 70, without taking into consideration the standard error of
measurement.”
The trial court then found that Woodall took an IQ test for the first time
in 1991, when he was 17 years old. This test was administered by Dr. Harry
Robe and Kay Willey, and Woodall’s full scale IQ score on that test was 74.
Considering the standard error of measurement, Woodall’s actual score fell
within the range of 69 to 79. Dr. Robe testified at Woodall’s original sentencing
trial and opined that Woodall was in the Educable Mentally Handicapped
category, “or borderline range of functioning.” The trial court further noted that
when the Flynn Effect 4 was applied to the 1991 IQ test, Woodall’s score became
a 71, which is in the intellectually disabled range.
4 As described in the trial court’s order, the Flynn Effect “‘essentially leads to
adjusting scores for the obsolescence of normative standards.’ This takes into consideration the passage of time from the standardization of the particular IQ test since the population in general has a gradual change in average performance on IQ tests ‘indicating that normative standards become less stringent over time.’” According to Dr. Fabian, IQ test scores change at a rate of approximately 0.30 to 0.33 points per year.
20 The trial court further found that Dr. Johnson administered an IQ test to
Woodall in 1998, when Woodall was almost 23 years old. His full scale IQ score
on that test was 78. Dr. Johnson testified at Woodall’s original sentencing trial
and “opined that this score was in the ‘borderline’ area of mental functioning
which he stated was from 70-79.” Dr. Johnson further testified that the
standard error of measurement for the test he administered was +/- 3 points,
so Woodall’s actual IQ score was in the range of 75-81. Dr. Johnson testified
this was “still in the borderline area of mental functioning.” The trial court then
noted that if the five point standard error of measurement was used on the IQ
test Dr. Johnson administered, Woodall’s actual IQ score would be in the 73-83
range. The trial court further found that even factoring in the Flynn Effect to
Woodall’s 1998 IQ test score, his score would be 77, which was “still above the
intellectual disability cut-off.”
The trial court found that Dr. Fabian also administered an IQ test to
Woodall in 2015. Woodall’s full scale IQ on that test was a 69. Accounting for
the standard error of measurement, his actual IQ score would be in the 64-74
range. Factoring in the Flynn Effect to the 2015 IQ test, Woodall’s full scale IQ
score would “drop to 66-67, still within the intellectual disability range
according to Dr. Fabian.” All of the trial court’s factual findings regarding
Woodall’s IQ test scores are supported by substantial evidence.
The trial court further found that Woodall’s “academic history and test
scores were consistent in the average range on measures of reading skills and
in the deficient range on measures of mathematical reasoning.” It found that
21 some of Woodall’s other psychological test scores “were higher than the
intellectual disability range and some were within that range.” It further found
that “Woodall has relative strengths and weaknesses on the achievement tests.”
All of these factual findings are also supported by substantial evidence.
Regarding adaptive functioning, the trial court explained that deficits in
this area include “the inability to learn basic skills and adjust behavior to
changing circumstances, including conceptual, social, and practical skills
learned and performed by people in their everyday lives.” The trial court noted
that Dr. Johnson believed that “Woodall did not have any ‘serious mental
illness that would prevent him from appreciating criminality of conduct.’” The
trial court also listed the specific diagnoses Dr. Johnson assigned to Woodall,
including borderline intellectual functioning.
The trial court then found that “[b]oth Dr. Johnson and Dr. Fabian
reviewed Mr. Woodall’s past history in adaptive functioning.” The court then
found that although
Woodall did no formal banking, he did pay his own bills in cash and handled wages he earned to do so. He bought his own groceries and cooked for himself. He had a drivers license, but had no car insurance and would borrow a vehicle when necessary to drive. He was able to maneuver through mass transit when he was younger living in Chicago, and he could use a map. Since he was in good physical health, he had no regular medical care.
The trial court went on to find that Woodall “had worked at a sawmill, a
chicken house, at construction, cutting tobacco, and at a car wash.” He also
“had never been married but reported that he had a previous fiancé and a son
born in August 1997.” Finally, the trial court found that Woodall had not been
22 a disciplinary problem while in prison and that he “wrote a coherent and logical
letter to the warden” in an appeal of one disciplinary issue.
Woodall takes issue with these findings because they are “misleading,
overstating Woodall’s supposed adaptive functioning strengths and ignoring an
adaptive functioning weakness.” However, the trial court also found that
Woodall’s scores on “a battery of tests . . . related to adaptive functioning” were
mixed. The court found that Woodall “scored well on some of the tests[,] above
what was predicted for a person with intellectual disability and in other areas
below that level, with many scores between the two.” The trial court further
found that Woodall’s “overall scores on the Independent Living Skills tests
placed him ‘somewhere between the mild mentally retarded and the borderline
IQ group averages[.]’” The trial court further acknowledged that “Dr. Fabian
also opined that Mr. Woodall’s insight and judgment were ‘poor and he had
very poor verbal skills.’”
Overall, Woodall’s results on the adaptive functioning assessments, both
the formal assessments as well as the informal observational assessments,
were mixed. The trial court acknowledged these results, and its factual findings
in this area were supported by substantial evidence.
We now turn to the final prong of the test for intellectual disability—
whether the onset of the intellectual functioning and adaptive deficits occurred
while Woodall was still a minor. The trial court found that Woodall
“‘consistently performed well in the areas of academic achievement’ in school
with better scores in reading and poorer scores in mathematics.” Woodall
23 argues that this factual finding is clearly erroneous because Woodall’s high
school grade point average was a .833, Woodall ranked 494 out of 658
students, and Woodall failed second or third grade. However, in making this
factual finding, the trial court quoted directly from Dr. Fabian’s (Woodall’s
expert) report. Dr. Fabian stated, “Mr. Woodall has consistently performed well
in the areas of academic achievement. His academic testing always indicated
good performance in language in [sic] reading skills, but very poor mathematics
skills including the current assessment.” It is reasonable to conclude that Dr.
Fabian took into account Woodall’s low grade point average, academic ranking,
and failed grade when making this statement. Accordingly, the trial court’s
factual finding on this issue was supported by substantial evidence.
The trial court acknowledged that Dr. Fabian believed Woodall’s
intellectual disability existed before the age of 18. However, the court also
found that Woodall underwent “no formal testing and therefore [there was] no
formal diagnosis of intellectual disability before age 18.” Woodall asserts that
this factual finding is clearly erroneous because his “intellectual functioning
was tested in the developmental period, at age 17.” He admits that his adaptive
functioning was not assessed but seems to assert that the absence of this
assessment makes sense because at the time of that IQ test (on which Woodall
scored approximately 74), there was a bright-line cut off of 70 to be diagnosed
as intellectually disabled, and thus he could not have received this diagnosis.
Given the context within which the trial court made this factual finding, we
cannot hold that it was clearly erroneous. The trial court made other factual
24 findings acknowledging Woodall’s IQ test results during the developmental
period and was factually correct that Woodall did not receive a diagnosis of
intellectual disability before he turned 18 years old.
The trial court made additional factual findings that Woodall did not
graduate from high school and failed a GED test while he was incarcerated.
The trial court also acknowledged that Dr. Fabian stated, “It is my opinion with
[sic] a reasonable degree of psychological and neuropsychological certainty that
there is significant evidence of a developmental and current intellectual
disability.” Woodall does not contest these findings, and we hold that they were
supported by substantial evidence.
Finally, the trial court ultimately found
Based upon the totality of the circumstances and considering all relevant facts set out in the testimony, admitted exhibits, and the record, including a consideration of prevailing medical standards in regard to intellectual disability, despite the opinion of Dr. Fabian, the Court finds that the Defendant/Movant has not proved by a preponderance of the evidence that he was intellectually disabled at the time of this offense on January 25, 1997, nor at the time of his guilty plea on April 10, 1998, nor at the time of his sentencing after a sentencing trial on September 4, 1998, nor at the present. While Mr. Woodall had obvious deficits and they were noted by all three professional examiners, Mr. Woodall’s adaptive behavior conceptually, socially, and practically show that he was able to overcome the deficits and live a normal life before and after age 18.
In his briefing to this Court, Woodall points to various pieces of evidence that
could have led a factfinder to find that he was intellectually disabled. For
instance, he notes that he was declared educationally mentally handicapped,
and that this was evidence that he had an intellectual disability during the
developmental period. He also points to evidence that could contradict some of 25 the trial court’s factual findings, such as the fact that he scored in the lowest
seventh percentile of the population on a map reading task administered by Dr.
Fabian.
Despite the evidence that could have led a factfinder to a different result,
we cannot hold that the trial court’s factual findings in this case are clearly
erroneous. Especially important is that the determination of whether a criminal
defendant is intellectually disabled is “akin to a totality of the circumstances
test.” Woodall, 563 S.W.3d at 6. Further, the burden of proving intellectual
disability by a preponderance of the evidence is on the defendant. Id. at 6 n.29.
We are further persuaded by Dr. Fabian’s acknowledgement during his
testimony of the limitations of his assessments. He acknowledged that he
would have liked to have had assessments of Woodall’s functioning in
elementary and middle school. He also said that Woodall’s limited work history
was a “limitation” that existed in this case. Dr. Fabian further asserted that
while it is possible to make a retrospective diagnosis of intellectual disability,
Woodall’s case was “tough” because there were no family members or friends
who could provide information about his intellectual and adaptive functioning
prior to age 18.
Given all of the evidence heard by the trial court, much of which was
conflicting, or at least inconsistent, as to Woodall’s deficits, we conclude that
the trial court’s factual finding that Woodall did not prove that he is
intellectually disabled by a preponderance of the evidence is supported by
substantial evidence.
26 III. CONCLUSION
For the foregoing reasons, we affirm the order of the Caldwell Circuit
All sitting. All concur. Thompson, J., concurs with separate opinion in
which Conley and Lambert, JJ., join.
THOMPSON, J., CONCURRING: I concur with the affirmance of the trial
court’s determination that Woodall was not intellectually disabled. However, I
must write separately to address failings I see with the manner in which the
Commonwealth sought to rebut Woodall’s position.
Once a defendant has made a prima facie showing that an intellectual
disability disqualifies the defendant from execution, the burden shifts to the
Commonwealth to counter such evidence. To meet such burden in an Atkins 5
hearing, the Commonwealth should retain and offer its own expert to analyze
prior information and offer testimony on the issue of whether a defendant
suffered from an intellectual disability during the defendant’s developmental
years based upon contemporary medical standards. It is improper for the
Commonwealth to rely on an outdated expert report to satisfy its burden. While
in this case that error is not dispositive, such an error could provide the basis
for reversal in another case.
Dr. Johnson’s 1998 report was not developed to establish Woodall’s
intellectual capacity for purposes of an Atkins-type determination. In fact, the
5 Atkins v. Virginia, 536 U.S. 304 (2002).
27 report predates Atkins by four years. The intended purpose of the report was to
determine whether “at the time of the alleged offense as a result of mental
retardation, Mr. Woodall lacked the substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the
law.” While Dr. Johnson’s report considered indicia of “mental retardation,” the
report looked more towards drawing conclusions as to whether such deficits, to
the extent they may have existed, affected Woodall’s recognition of his conduct
and his ability to follow the law and therefore was not a per se determination of
intellectual disability.
Dr. Johnson’s use of the now foresworn term “mental retardation”
highlights the fact the report falls well-behind current medical standards and
may have relied upon outdated approaches when, as a rule, such
determinations should be “informed by the medical community's [current]
diagnostic framework.” Hall v. Florida, 572 U.S. 701, 721 (2014). When Hall
was decided in 2014, the United State Supreme Court looked to the then-
current editions of the AAID 6 and DSM 7 and we should follow suit. Id. at 705,
710, 712, 722-23.
Fortunately for the Commonwealth’s position, Dr. Johnson’s report
contained a substantial amount of relevant information drawn from Woodall’s
6 American Association on Intellectual and Developmental Disabilities, R.
Schalock et al., User’s Guide to Accompany the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports 22 (2012) (AAIDD-11). 7 American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 33 (5th ed. 2013) (DSM-5).
28 school records and academic history including testing performed when he was
in the tenth grade. Further, Dr. Johnson administered a WAIS-III 8 test to
Woodall when he was twenty-three years old. 9
It is only due to (a) the nature and amount of objective data collected by
Dr. Johnson; (b) significant evidence of Woodall’s adaptive behavior and
functioning prior to the offense; (c) the inconsistencies in Woodall’s own
evidence; and (d) the skill and patience exhibited by the trial court in analyzing
all the information it had, that I can find the error in admitting Dr. Johnson’s
report to be harmless and agree that the trial court correctly determined that
Woodall had failed to prove by a preponderance of the evidence that he was
intellectually disabled and, thus, ineligible to receive the death penalty.
Conley and Lambert, JJ., join.
8 Wechsler Adult Intelligence Scale (3rd ed.)
9 In the context of death penalty eligibility, an “intellectual disability” is one that
is the result of a condition that appears at birth or during the person's childhood or “developmental period” which is defined by the AAIDD as “before the age of twenty- two. An intellectual disability is not an after-acquired disability and a person’s lower I.Q. scores later in life could be caused by accidents, diseases, or lifestyle choices. See FAQs on Intellectual Disability, American Association of Intellectual and Developmental Disabilities, https://www.aaidd.org/intellectual-disability/faqs-on-intellectual- disability (last visited Apr. 17, 2024).
29 COUNSEL FOR APPELLANT:
Dennis James Burke Department of Public Advocacy
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Thomas Allen Van De Rostyne Assistant Attorney General