Third District Court of Appeal State of Florida
Opinion filed December 22, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1451 Lower Tribunal No. F13-17684A ________________
State of Florida, Appellant,
vs.
Reginald Jackson, Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.
James Uthmeier, Attorney General, and Jennifer A. Davis, Assistant Attorney General, for appellant.
Law Office of Todd G. Scher, P.L., and Todd G. Scher (Hollywood); Melissa Ortiz, P.A., and Melissa Ortiz; G.P. Della Fera, for appellee.
Before EMAS, LINDSEY and LOBREE, JJ.
LOBREE, J.
The State of Florida appeals a non-final order granting defendant Reginald Jackson’s motion to determine intellectual disability under section
921.137(1), Florida Statutes (2017), and Florida Rule of Criminal Procedure
3.203, as a bar to the potential imposition of the death penalty. We have
jurisdiction. See Art. V, §4(b)(1), Fla. Const.; § 921.137(7), Fla. Stat.; Fla.
R. App. P. 9.140(c)(1)(I); see also State v. Victorino, 372 So. 3d 772, 776
(Fla. 5th DCA 2023) (stating that “district courts may lawfully consider
challenges to interlocutory orders in death penalty cases”). The State
contends that the trial court misconstrued the record, which lacks clear and
convincing evidence to support its order, and considered factors other than
those required to prove intellectual disability. Further, the State challenges
the evidence of deficits in Jackson’s current level of adaptive behavior or
function, contending that the trial court only focused on evidence from his
childhood. Jackson answers that there is competent, substantial evidence
to support the trial court’s factual findings, to which a reviewing court must
yield. We agree and affirm.
BACKGROUND
Jackson is charged by indictment with two counts of first-degree
murder and related armed robbery, kidnapping, and burglary offenses for the
2013 killings of Annette Anderson and her grandson Tyrone Walker. Both
victims were found prone, bound, and gagged, with gunshot wounds to the
2 back of their heads. The State contends that evidence placed Jackson at
the scene of the homicides and a distinct vehicle like his was captured on
surveillance at each scene where stolen credit or bank cards were used.
After the State announced its intention to seek the death penalty, Jackson
moved for an order barring him from eligibility for capital punishment,
contending that he qualifies as an intellectually disabled person under
section 921.137 and rule 3.203.
The trial court conducted an evidentiary hearing on this motion on six
non-consecutive days beginning on October 29, 2019. Jackson presented
testimony of two lay witnesses, his grandmother Dorothy Jackson and his
ninth-grade teacher, Juli Suarez Burgos, and four experts, Dr. Marc Tasse,
Dr. Michelle Quiroga, Dr. Caroline Everington, and rebuttal witness Dr.
Daniel Reschly. The State called two lay witnesses, Officer Alberto Acosta
and Special Agent Rafael Fernandez, Jr., and two experts, Dr. Michael
Brannon and Dr. Gregory Pritchard, and presented evidence regarding
Jackson’s conduct during the alleged offenses, his arrest, court hearings, jail
calls, and while in custody. After hearing testimony and reviewing hundreds
of pages of school, jail, and juvenile detention records, and other documents,
as well as detailed post-hearing memoranda the parties submitted, the trial
court rendered a fifteen-page written order finding Jackson intellectually
3 disabled. This appeal follows.
STANDARD OF REVIEW
In reviewing the trial court’s determination that Jackson is intellectually
disabled, this court must “examine[] the record for whether competent,
substantial evidence supports the determination of the trial court. This [c]ourt
does not reweigh the evidence or second-guess the circuit court’s findings
as to the credibility of witnesses.” Haliburton v. State, 331 So. 3d 640, 646
(Fla. 2021) (quoting State v. Herring, 76 So. 3d 891, 895 (Fla. 2011))
(cleaned up); see also Spires v. State, 180 So. 3d 1175, 1180 (Fla. 3d DCA
2015) (“As the Florida Supreme Court stated in Herzog v. Herzog, 346 So.
2d 56, 57 (Fla. 1977) . . . so long as there is competent substantial evidence
to support the trial court’s findings, the reviewing court must yield.”).
ANALYSIS
Atkins v. Virginia, 536 U.S. 304, 317, 321 (2002), held that the Eighth
and Fourteenth Amendments to the United States Constitution forbid the
execution of persons with intellectual disability,1 but left to the states the task
of developing appropriate ways to enforce this restriction upon their
1 “[T]he terms ‘intellectual disability’ or ‘intellectually disabled’ are interchangeable with and have the same meaning as the terms ‘mental retardation’ or ‘retardation’ and ‘mentally retarded’ as those terms were defined before July 1, 2013.” § 921.137(9), Fla. Stat.
4 execution of sentences. Section 921.137(1) and rule 3.203(b) define
“intellectual disability” to mean: 1) significantly subaverage general
intellectual functioning; 2) existing concurrently with deficits in adaptive
behavior; and 3) manifested during the period from conception to age 18.
“[I]f a defendant fails to prove that he or she meets any one of the three
prongs of the intellectual disability standard, he or she will not be found to be
intellectually disabled.” Phillips v. State, 299 So. 3d 1013, 1024 (Fla. 2020).
“If the court finds, by clear and convincing evidence, that the defendant has
an intellectual disability as defined in subsection (1), the court may not
impose a sentence of death and shall enter a written order that sets forth
with specificity the findings in support of the determination.” § 921.137(4),
Fla. Stat.
The Florida Supreme 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.” Haliburton, 331 So. 3d at 650 (quoting In re Davey, 645 So. 2d
398, 404 (Fla. 1994)). “Clear and convincing evidence means evidence that
is precise, explicit, lacking in confusion, and of such weight that it produces
5 a firm belief, without hesitation, about the matter in issue.” Dufour v. State,
69 So. 3d 235, 245 (Fla. 2011). Here, the trial court expressly found that
Jackson proved, by clear and convincing evidence, that he has an intellectual
disability under section 921.137(1). Thus, we examine the record evidence
supporting this finding on each prong.
Intellectual Function and Age of Onset
Medical witnesses agree that “significantly subaverage general
intellectual functioning” is reflected by intelligence quotient (“IQ”) testing
below seventy. In Hall v. Florida, 572 U.S. 701, 723 (2014), the Supreme
Court “agree[d] with medical experts that when a defendant’s IQ test score
falls within the test’s acknowledged and inherent margin of error, the
defendant must be able to present additional evidence of intellectual
disability, including testimony regarding adaptive deficits.” Thus, Florida
courts considering the results of intellectual functioning tests must take into
account the standard error of measurement (“SEM”) of IQ tests, which is
±five points. Id. at 724.
School records reflect that Jackson’s IQ was tested beginning at age
seven in 1992, where he received a full-scale score of 76, with a performance
score of 64 and a verbal score of 91. The 27-point disparity between the
subtest scores was considered evidence to question the reliability of this
6 score. In 1994, at age eight or nine, his IQ testing reflected a full-scale score
of 72 (performance score of 71 and verbal score of 78). The trial court noted
that taking the five-point SEM into account, Jackson’s score may have been
as low as 67. In 2019, post-arrest, Jackson’s testing disclosed a full-scale
score of 63,2 although evidence was presented that a defendant in custody
may be affected by depression. The trial court noted that this score was
consistent with Jackson’s 1994 IQ test.
Dr. Everington opined that Jackson meets the criteria for this prong.
Notably, even the State’s expert Dr. Brannon scored Jackson as having a
full-scale IQ score of 63. Thus, experts for both parties considered Jackson
to be of “subaverage general intellectual functioning.” In addition, the trial
court also relied on data from Jackson’s individualized education plans and
other academic testing records that indicate that Jackson suffered from
significant deficits. The trial court emphasized that none of his school
records show that he ever surpassed the academic level of a sixth grader.
Accordingly, we conclude that the trial court’s finding that Jackson
established that he has significantly subaverage general intellectual
functioning is supported by competent, substantial evidence in the record.
2 The trial court expressly declined to consider results of IQ testing by Dr. Quiroga, finding them lacking in credibility.
7 We also conclude that competent, substantial evidence supports the
trial court’s finding that Jackson established the third prong. Records confirm
that Jackson was born while his mother was actively abusing drugs.
Jackson’s school records contain references to him being a “crack baby.”
Jackson’s father beat his mother, both during and after pregnancy. Jackson
also suffered from several head injuries during the developmental period. At
age nine, he fell from a shed and required clamps on the back of his head.
At fourteen, he was hit by a car and his head struck the pavement. Jackson’s
ninth grade multidisciplinary report refers to him suffering from seizures. At
sixteen, Jackson was in a car accident, lost consciousness, and spent four
days in the hospital. The trial court noted that even the State’s expert, Dr.
Brannon, acknowledged that Jackson suffered neurological problems and
difficulties due to his mother’s drug and alcohol use during her pregnancy.
Jackson’s school records established that he had two full-scale IQ
scores on school-administered testing that were low enough to require
further adaptive functioning analysis. While the school records did not reflect
a formal diagnosis of intellectual disability as a child, Jackson was placed in
individualized education plans for students considered to be “emotionally
handicapped.” In Oats v. State, 181 So. 3d 457, 469 (Fla. 2015), the court
clarified that section 921.137(1) only requires that intellectual disability be
8 demonstrated to have manifested before age eighteen, not that it be
diagnosed at that time.
Adaptive Function
The second criterion for intellectual disability–existing concurrently
with deficits in adaptive behavior–is central here, both as to the parties’
dispute and the views of the relevant professional community. “Adaptive
behavior,” for the purpose of the intellectual disability definition, 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.” Phillips, 299 So. 3d at 1018 (quoting §
921.137(1)). “[A]n individual’s ability or lack of ability to adapt or adjust to
the requirements of daily life, and success or lack of success in doing so, is
central to the framework followed by psychiatrists and other professionals in
diagnosing intellectual disability.” Hall, 572 U.S. at 705 (citing American
Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 33, 37 (5th ed. 2013) (“DSM–5”)).
The DSM-5 divides adaptive functioning into three broad categories or “domains”: conceptual, social, and practical. DSM- 5, at 37; see also AAIDD-11,[3] at 43. The conceptual domain
3 American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010).
9 “involves competence in memory, language, reading, writing, math reasoning, acquisition of 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.
Haliburton, 331 So. 3d at 648 (quoting Wright v. State, 256 So. 3d 766, 773
(Fla. 2018)). In evaluating adaptive deficits
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.
Haliburton, 331 So. 3d at 651 (quoting Dufour, 69 So. 3d at 250). Here, the
trial court noted that Jackson needs to be deficient in one of the three
domains to satisfy the second prong of the intellectual disability test and
found him to be deficient in two domains.
The trial court considered Adaptive Behavior Assessment System,
Third Edition (“ABAS”) assessments, an independent living assessment, and
10 a language test administered by Dr. Everington. On the two ABAS
assessments, when compared to those of a similar age, Jackson performed
below the first percentile. On the Independent Living Scales assessment,
Jackson’s score was borderline compared to others with intellectual
disabilities. His language test showed scores all substantially below
average. The trial court recognized Dr. Everington’s testimony that these
tests, conducted while Jackson was incarcerated, are retrospective
evaluations. Accordingly, the trial court looked to other testimony and
evidence to corroborate these scores.
A. Conceptual Domain
The trial court found that Jackson was substantially deficient in
functional academics. Various witnesses highlighted his academic
challenges. Suarez Burgos, a special education teacher of 25 years who
was Jackson’s teacher in his emotionally handicapped ninth grade class,
opined that he was low functioning. She gave him classwork meant for a
much lower grade level to prevent him from being frustrated. She said that
Jackson could understand “black and white” issues but lacked higher level
abstract thinking. She related that she would give Jackson three-part
instructions, and he could only remember one. Suarez Burgos testified that
Jackson could read but not comprehend what he was reading. She related
11 that he struggled to focus on tasks and needed constant redirection.
Jackson’s sister told Dr. Everington that she would send Jackson to
the store with a list of three items, and he would call her several times to ask
what he needed to buy. Jackson’s former girlfriend advised Dr. Everington
that it “took him a while to learn new things.” Jackson’s uncle told Dr.
Everington that he was “lower functioning” than other children in the family.
Jackson’s sister related to Dr. Everington that his grandmother Dorothy
would read his mail to Jackson, and then explain to him what it meant.
Dorothy Jackson testified that Jackson lived with her until his teenage years.
She testified that he did not know how to tell time as a seven-year-old,
struggled to count money, and could not write his name at age five. Dorothy
Jackson testified that he could not complete tasks and had difficulty
controlling his feelings. Dr. Everington testified that these are characteristics
of severe deficits in self-direction.
The trial court found that these deficits indicate that Jackson is deficient
in his self-direction and functional academics, and thus inadequate in the
conceptual domain of adaptive behavior. The court also relied on his failure
to complete high school or obtain a GED. Based on the testing and this
evidence, there is competent substantial evidence to support the trial court’s
conclusion that Jackson is deficient in the conceptual domain.
12 B. Social Domain
The trial court recognized that the social domain includes a person’s
interpersonal skills and social judgment. The trial court found that the
defense failed to establish that Jackson is incompetent in this domain, based
on the State’s evidence about Jackson’s interaction with Officer Acosta at a
traffic stop, and evidence of his cell phone and jail calls. The trial court also
found that in his post-Miranda4 statement in this case, Jackson was
cooperative and pushed for sympathy from the investigators. It noted
instances during the interview that demonstrate Jackson is capable of
observing social cues and acting based on those indicators, aware of the
consequences of being defiant, and able to think logically when placed in
these situations. The trial court found that testimony regarding Jackson’s
use of *67 to block his caller ID, as well as jail calls recording Jackson using
complex words and discussing politics and how the governor had not voted
on a bill presented to him, was indicative of this competency. The trial court
found that these are all clear indications of competency in the social domain.5
4 Miranda v. Arizona, 384 U.S. 436 (1966). 5 The trial court’s order does not address the concession of State expert Dr. Pritchard that Jackson has adaptive deficits in the social domain. However, Dr. Pritchard did not ascribe these deficits to intellectual disability, but rather opined that Jackson has ADHD.
13 While the trial court found that Jackson had no substantial deficiencies in the
social domain, it noted that this did not foreclose a finding that the second
prong had been established as Jackson had deficiencies in the other
domains.
C. Practical Domain
The trial court noted that the practical domain is classified by the ability
to work, maintain one’s health and safety, and home living skills. According
to Dr. Everington, this area could be characterized by looking after one’s
needs, avoiding unsafe situations, and refraining from dangerous behavior.
The trial court found Jackson to be significantly deficient in this domain.
The trial court found that the only evidence of employment during
Jackson’s lifetime was work as a restaurant busboy for two weeks in his
youth. Further, Jackson has apparent deficits in the area of health and
safety. The trial court found that the evidence shows that Jackson has been
unsuccessful in this area. According to Dorothy Jackson, he could not be
trusted to keep a medication schedule or take care of his own medical needs.
Dr. Everington reported that his sister related that Jackson had to be
reminded to bathe and would wear the same clothes for days in a row.
The trial court found that Jackson is also deficient in the area of home
living skills and is not capable of living alone. Dorothy Jackson testified that
14 as a child he was not permitted in the kitchen out of fear that he would hurt
or injure himself. She added that he did not know how to make simple meals
and his chore when growing up was to take out the trash, which he often had
to be reminded to do. Jackson’s sisters packed his school supplies and got
him ready for school daily. Dorothy Jackson testified that in later years
Jackson would always live with girls, who she believed supported him. Dr.
Everington also learned this from various sources, testifying that after living
with one of them, he’d return to live with his sister, grandmother, or his
mother.
Officer Acosta testified that Jackson knew how to drive, although he
never had a driver’s license.6 Yet Jackson’s family related to Dr. Everington
that no one would get in the car with Jackson as he was an “awful driver,”
could not follow directions, and would easily get lost, even within his
neighborhood.
Jackson could use a cell phone. The State’s expert who retrieved
messages from his phone was unable to verify that Jackson was the one
actively using it. Sanchez Burgos testified that even children with severe
6 Dr. Reschly testified from his review of records that Jackson told someone, possibly Dr. Brannon, that he did not think he could pass his driver’s license test. In 1998, Jackson paid somebody $300 to get him a driver’s license, and what he ended up with was an ID card.
15 intellectual disabilities know how to use a cell phone and send texts. Jackson
did not purchase this phone or pay a monthly phone bill.
The trial court found that Jackson failed to maintain personal hygiene,
could not support himself, looked to others to do so for him, had no known
bank accounts and did not hold a driver’s license. The trial court concluded
that because Jackson had proven deficiencies in two of the three domains
of adaptative function, the second prong of the intellectual disability test was
established.
The State’s argument with respect to Jackson’s adaptive functioning
emphasizes that the first prong of intellectual disability (subaverage
intelligence) must exist “concurrently” with the second prong, “which [the
Florida Supreme Court] has interpreted to mean that subaverage intellectual
functioning must exist at the same time as the adaptive deficits, and that
there must be current adaptive deficits.” Dufour, 69 So. 3d at 248 (citing
Jones v. State, 966 So. 2d 319, 326 (Fla. 2007) (emphasis added)). The
State contends that the trial court erred by failing to identify Jackson’s
adaptive deficits that currently exist. Jackson responds that the holding in
Hall changed this analysis, as “the law requires that he have the opportunity
to present evidence of his intellectual disability, including deficits in adaptive
functioning over his lifetime.” Hall, 572 U.S. at 724 (emphasis added).
16 Jackson concedes that in 2018, the Florida Supreme Court continued to
apply its interpretation that “concurrently” means that the two prongs must
exist at the same time and “there must be current adaptive deficits.” Wright,
256 So. 3d at 773 (quoting Dufour, 69 So. 3d at 248). We need not weigh
into this dispute as the trial court expressly recognized that adaptive deficits
must not only be present during childhood and adolescence, but also that
impairment must be an ongoing issue. This finding is supported by
competent substantial evidence.
Dr. Everington concluded that Jackson met the adaptive deficits prong.
Dr. Brannon disagreed with this opinion, instead placing emphasis on
Jackson’s prison behavior in concluding that prong two was not satisfied.
The State criticizes the trial court’s reliance on testing and Jackson’s
historical evidence of his deficits, contending that the record shows that
Jackson’s independent actions demonstrate his current ability to engage in
well-thought-out actions to avoid arrest and participate in and understand
legal proceedings. See Wright, 256 So. 3d at 776 (recognizing that to
lawyers, “it seems counterintuitive that courts cannot consider certain
connected adaptive strengths because the existence of certain connected
strengths necessarily illustrates the absence of certain deficits”). Yet after it
considered the findings of experts and all other evidence, the trial court
17 properly examined all the evidence when determining that Jackson has a
deficit in adaptive behavior by examining evidence of his limitations, as well
as the State’s evidence that may rebut those limitations. See Haliburton,
331 So. 3d at 651. As the trial court’s holistic inquiry and factual findings are
supported by competent, substantial evidence, we affirm its conclusion that
Jackson has proved by clear and convincing evidence that he is intellectually
disabled under section 921.137(1).
Affirmed.