         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 19, 2005 Session

               BYRON LEWIS BLACK v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                          No. 88-S-1479    Walter J. Kurtz, Judge



                    No. M2004-01345-CCA-R3-PD - Filed October 19, 2005


This appeal is before us following the reopening of Petitioner’s post-conviction petition for the
limited purpose of determining whether Petitioner is mentally retarded and thus ineligible for the
death penalty pursuant to our supreme court’s decision in Van Tran v. State, 66 S.W.3d 790 (Tenn.
2001) and the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.
Ct. 2242 (2002). The post-conviction court ultimately determined that Petitioner had failed to prove
that he was mentally retarded and that the weight of the proof was that he was not mentally retarded.
Accordingly, the court denied Petitioner’s request for a new trial and denied and dismissed the
petition for post-conviction relief. In this appeal as of right, this court must determine the following
issues: (1) whether Petitioner proved by a preponderance of the evidence that he is mentally retarded;
(2) whether Tennessee Code Annotated section 39-13-203, as interpreted by the supreme court in
Howell v. State, 151 S.W.3d 450 (Tenn. 2004), is constitutional in light of the principles outlined
in Atkins v. Virginia; and (3) whether the absence of mental retardation is an element of capital
murder requiring the State to bear the burden of proof and requiring submission of the issue to a jury.
After review of the record and the applicable law, we find no errors of law requiring reversal.
Accordingly, we affirm the post-conviction court’s denial of post-conviction relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Donald E. Dawson, Nashville, Tennessee, and Catherine Y. Brockenborough, Nashville, Tennessee,
for the appellant, Byron Lewis Black.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle
Chapman McIntire, Assistant Attorney General; and John Zimmerman, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

       Byron Lewis Black was convicted in 1989 of three counts of first degree murder for the
shooting deaths of his girlfriend, Angela Clay, and her two daughters, Latoya and Lakeisha Clay.
A jury sentenced Petitioner to death for the murder of Lakeisha Clay and to two life sentences for
the murders of Angela and Latoya Clay. Petitioner was also convicted of one count of burglary, for
which he received a fifteen-year sentence. The Tennessee Supreme Court affirmed Petitioner’s
convictions and sentences on direct appeal. See State v. Black, 815 S.W.2d 166 (Tenn. 1991).

        Petitioner subsequently filed a petition for post-conviction relief, which was denied by the
trial court and affirmed by this court on appeal. See Byron Lewis Black v. State, No. 01C01-9709-
CR-00422, 1999 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App., at Nashville, Apr. 8, 1999). The
Tennessee Supreme Court denied Petitioner’s application for permission to appeal this court’s
judgment, and the United States Supreme Court denied Petitioner’s writ of certiorari. See Black v.
Tennessee, 528 U.S. 1192, 120 S. Ct. 1249 (2000).

        Subsequently, Petitioner filed a petition for writ of habeas corpus in the United States District
Court, which was dismissed by the grant of summary judgment on December 11, 2001. Black v.
Bell, 181 F. Supp. 832 (M.D. Tenn. 2001). Thereafter, Petitioner appealed to the United States
Court of Appeals for the Sixth Circuit, and the Sixth Circuit Court of Appeals is currently holding
its appeal in abeyance pending the disposition of this action.

        On December 4, 2001, the Tennessee Supreme Court released its opinion in Van Tran v.
State, 66 S.W.3d 790 (Tenn. 2001). This opinion held as a matter of first impression that the
execution of a mentally retarded person violates the Eighth Amendment to the United States
Constitution and Article I, Section 16 of the Tennessee Constitution. The Van Tran Court further
held that retroactive application of this new rule of law was warranted for cases on collateral review.
Approximately six months later, on June 20, 2002, the United States Supreme Court held in Atkins
v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), that execution of mentally retarded persons was
cruel and unusual punishment prohibited by the Eighth Amendment to the United States
Constitution. In response to these two court opinions, Petitioner filed a motion to reopen his post-
conviction petition on November 13, 2002, alleging that he was mentally retarded and thus ineligible
for the sentence of death. The post-conviction court entered a preliminary order and found that
Petitioner had made a sufficient showing for his petition to be reopened and held an evidentiary
hearing.

                                    Post-Conviction Proceedings

        During the post-conviction proceedings, Petitioner presented the testimony of four lay
witnesses, three expert witnesses, the affidavit of an additional expert witness, and numerous
exhibits. The State presented the testimony of two expert witnesses. Petitioner’s experts all found
that Petitioner met the criteria to be diagnosed as mentally retarded. The State’s experts found that
Petitioner did not meet the criteria to be diagnosed as mentally retarded.


                                                  -2-
         The lay witnesses presented by Petitioner testified as to various aspects of Petitioner’s social
and educational history. Mary Smithson-Craighead first testified on behalf of Petitioner. Ms.
Smithson-Craighead had been the coordinator of the Nashville Education Improvement Project
(NEIP) while Petitioner attended elementary school at Carter-Lawrence Elementary School. Ms.
Smithson-Craighead testified that the particular elementary school that Petitioner attended had
received funding from the NEIP because an assessment by Metro Nashville Schools had determined
that the students at Carter-Lawrence were not at grade level. Ms. Smithson-Craighead further
testified that at the time Petitioner attended elementary school, the schools in Nashville were
segregated and the school Petitioner attended was made up of minority students who were financially
disadvantaged.

        Ms. Smithson-Craighead testified as to the administration of achievement tests and
intelligence quotient (“I.Q.”) tests during her tenure at Carter-Lawrence. She explained that the
achievement tests were given in a group setting and were administered by the teachers. I.Q. tests,
however, were administered individually by someone from the district office. Ms. Smithson-
Craighead testified that for the most part the standardized tests were given exactly by direction, but
there had been an occasion where a teacher may have assisted a student on an exam. It was Ms.
Smithson-Craighead’s opinion that teachers can recognize students who are mentally retarded but
that some students do slip through the cracks. She maintained, however, that teachers were sensitive
to the possibility that a student might be mentally retarded. During her tenure at Carter-Lawrence,
she had four students who were tested, removed from the school, and placed in another school in a
classroom designated for the mentally retarded. Although Ms. Smithson-Craighead was the
kindergarten through third grade NEIP coordinator at Carter-Lawrence while Petitioner attended
school there, she never taught Petitioner.

        Petitioner’s sister, Melba Corley, testified that during Petitioner’s childhood, their family
lived in South Nashville in an asbestos-shingle siding home. She testified that during his childhood,
Petitioner enjoyed playing outside and would at times get so dirty in the iron rust outside their home
that he required two baths a day. She explained that Petitioner also adored their grandfather, who
was the only other male in the home. She and her three sisters helped their mother and grandmother
with the chores around the house, but Petitioner only had to help bring in the wood and coal from
outside and keep his area of the room they slept in upstairs clean. Ms. Corley testified that she never
considered her brother to be mentally retarded when they were growing up nor did anyone in her
family ever discuss the possibility in her presence. She explained that he did require help with his
homework and did not seem to enjoy reading like she did. He was able to keep himself clean and
dress himself. She further testified that he had pride in himself. She related that she and her siblings
received a yearly check-up by a doctor. Petitioner traveled with her and her husband to Colorado
and California at different times. On those trips, Petitioner would help with the driving, but he was
not very helpful with reading the maps. She did admit that her mother smoked and drank alcohol
during pregnancy. She did not, however, testify as to the amount her mother drank while she was
pregnant with Petitioner. Further, Ms. Corley could not recall Petitioner having an injury that would
have caused brain damage.


                                                  -3-
         Al Dennis, Petitioner’s high school football coach, testified that he had coached Petitioner
at Hume Fogg High School from 1972 through 1974. He explained that at the time Petitioner
attended this school, it was a vocational school. Mr. Dennis testified that Petitioner was an
outstanding defensive player. In fact, his senior year, he was third in tackles and assists on the team.
Mr. Dennis also testified that during Petitioner’s senior year, the team won the Division A, Class A
state championship title. Although Petitioner was an outstanding defensive player, he was not a
good offensive player. Coach Dennis explained that he ran a complicated offense on the team, and
Petitioner simply could not learn or remember the plays. As a result, he would make mistakes.
Therefore, he could only play on offense when the team had a significant lead. Coach Dennis
testified that based on Petitioner’s inability to remember and understand the plays, it was his belief
that Petitioner had a lower intelligence. He also distinctly remembered that Petitioner smiled all the
time, even when it was inappropriate to do so. Coach Dennis stated that even when Petitioner was
being criticized, he would smile. According to the coach, Petitioner got along well with his
teammates and was respectful of the coaches. He did not remember any problems Petitioner had at
school that were brought to his attention by any of the teachers.

        Richard Corley became acquainted with Petitioner when Petitioner’s sister, Melba, married
his brother. Mr. Corley worked at the insurance company Caroon and Black and assisted Petitioner
in acquiring a job there. It was his belief that Petitioner worked at Caroon and Black from
approximately 1974 until 1989. Mr. Corley testified that Petitioner basically served as a courier.
Petitioner would make runs in a company van to the warehouse and bank and ordered supplies.
When he went to the bank, he would deliver deposits, but he was not required to complete the
deposit slips. He described Petitioner’s job as simple and routine. When Petitioner was out, he and
other employees could step in and do the job. Mr. Corley testified that he never considered that
Petitioner was mentally retarded when he recommended him for the position at Caroon and Black.
Mr. Corley further testified that Petitioner got along well with the other employees, was well-liked
by the other employees, and seemed to be a good employee.

        Dr. Albert Globus testified as an expert in psychiatry and neurology on behalf of Petitioner.
Dr. Globus evaluated Petitioner in 2001 and again immediately preceding the post-conviction
hearing. Dr. Globus concluded that Petitioner has a damaged brain. He explained that Petitioner
had very serious abnormalities in his mental status examination. Specifically, Petitioner has a lack
of cognitive ability and poor recent memory. Dr. Globus explained that Petitioner is very slow in
his thinking and has a disconnect between what he is talking about and his mood, which always
seems euphoric. Dr. Globus opined that Petitioner’s poor short-term memory very likely places him
in the mildly mentally retarded range.

        Dr. Globus opined that there were several factors in Petitioner’s early life that would cause
some sort of mental ratio of delays in life and would result in mild or severe mental retardation in
many people. Specifically, Dr. Globus identified the drinking of alcohol by Petitioner’s mother
during pregnancy as the most important factor. Dr. Globus also identified several other potential
etiological factors including playing of football, possible lead poisoning, and possible inadequate


                                                  -4-
care at home. Dr. Globus testified that the playing of football is known to produce minor brain
damage in people who “tackle with their heads.” Petitioner reported to Dr. Globus that he had been
hurt on several occasions in this fashion. Dr. Globus further explained that white paint had been
made with a lead compound until it was outlawed because of its effects on development and the
blood. Petitioner’s sister had testified that there was white paint in Petitioner’s childhood home and
on the family crib, which had teeth marks on it. Dr. Globus testified that Petitioner had developed
anemia during his first year or two of life, which could have been a result of lead exposure or poor
nutrition or both.

        Dr. Globus testified that brain imaging confirmed that Petitioner has brain damage. Dr.
Globus had determined prior to the brain imaging that Petitioner’s brain abnormalities exist in the
frontal and temporal lobes. Dr. Globus testified that the brain imaging conducted by Dr. Robert
Kessler confirmed such. Dr. Globus also testified that data gathered from Dr. Ruben Gur’s
assessment revealed that areas of Petitioner’s brain are hypometabolic, which means that they
process glucose at a rate below normal. Hypometabolism may indicate a site of a tumor, an epileptic
fossa, a degeneration secondary to senile dementia or mental retardation. Dr. Globus also reviewed
the findings of Dr. Daniel Grant and concluded that the psychological results are consistent with the
other results. Finally, Dr. Globus concluded that Petitioner’s mental retardation began before he was
eighteen years old.

        On cross-examination, Dr. Globus explained that he was initially hired by the federal public
defender’s office to determine if the state court had erred in finding Petitioner competent to stand
trial. Dr. Globus admitted that although he has opined that one of the etiological factors in
determining that Petitioner is mentally retarded is that he received brain damage from playing
football, Petitioner was never evaluated by a medical professional because of a head injury received
while playing football. Dr. Globus explained that many professional football players have
cumulative minor injuries to the brain, which is probably also true of high school players. Dr.
Globus also admitted that the etiological cause of mental retardation cannot be determined with
certainty. Furthermore, it cannot be determined with certainty that the ingestion of alcohol during
pregnancy will cause mental retardation.

        Dr. Daniel Grant testified on behalf of Petitioner as an expert in neuropsychology and
forensic psychology. In making his assessment, Dr. Grant interviewed Petitioner on two occasions,
for a total of twelve to fourteen hours. During his testing of Petitioner, he saw no evidence of
malingering, although he did not specifically test for it. Dr. Grant explained that he administered
a battery of tests, which would in effect rule out malingering because it’s difficult to perform poorly
on the same concept areas on various tests. Dr. Grant testified that there are two major measures of
adult intelligence: the Wechsler Adult Intelligence Scale -Third edition (“WAIS-III”) and the
Stanford-Binet Intelligence Test. In drawing his conclusion that Petitioner is mildly mentally
retarded, he conducted a series of tests and applied the independent living scale.

        Dr. Grant testified that when psychological tests are used to meet the criteria to diagnose
retardation, the standard error of measurement must be considered. According to Dr. Grant, there


                                                 -5-
is generally a one to five point standard error of measurement with all intelligence tests. Dr. Grant
explained that both the American Association of Mental Retardation (“AAMR”) and the Diagnostic
Statistical Manual for Psychiatry (“DSM”) account for a standard error of measurement (“SEM”)
in intelligence testing. Accordingly, Dr. Grant testified that a person who scored a seventy-one on
an I.Q. test may actually be classified as mentally retarded, because when adjusted by the SEM, the
I.Q. score would fall within a range that extended both below and above seventy. Dr. Grant admitted
that Petitioner received I.Q. scores while in school of eighty-three, ninety-two, and ninety-one, which
are all above the range for mental retardation, even when adjusted by the standard error of
measurement. Dr. Grant, however, noted that the I.Q. tests given to Petitioner while in school were
administered in a group setting, and both the AAMR and the DSM recommend only individually
administered tests. Furthermore, Dr. Grant explained that the results could be skewed depending
on how they were scored. If the tests were scored by grade level rather than by age, Petitioner’s
scores would be skewed because he repeated second grade.

         Dr. Grant also acknowledged that Petitioner scored a seventy-three on the WAIS intelligence
test in 1993 and a seventy-six on the WAIS-R intelligence test in 1997. However, Dr. Grant opined
that Petitioner’s scores were inflated as the result of the Flynn Effect, which recognizes that people
acquire more information and knowledge over time, which in turn requires that the I.Q. tests be
renormed to reflect the gain of knowledge. Dr. Grant testified that Dr. Flynn, for whom the Flynn
Effect is named, has done research that shows that for every three years after norms are collected for
an intelligence test, the I.Q. is inflated by one point. Therefore, in nine years, the person should
score three points higher on the I.Q. test. Dr. Grant opined that although Petitioner scored a seventy-
three on the WAIS in 1993, the test was published in 1980; therefore, Petitioner’s corrected I.Q.
would be sixty-nine, after adjusting for the four point increase in the population’s I.Q. between 1980
and 1993. Furthermore, Petitioner’s corrected WAIS-R score would be seventy-one, rather than
seventy-six, because according to the Flynn Effect there would be a five-point inflation.

        Dr. Grant testified that Petitioner’s results from the independent living scale revealed
problems with managing money, managing a home, transportation, and health and safety. Dr. Grant
further concluded that Petitioner met the criteria for deficits in adaptive behavior as set forth in both
the DSM-IV and the AAMR. Dr. Grant testified that Petitioner never lived independently, never
cooked, never cleaned the house, never did laundry, never participated in the care of his son, never
contributed financially to his family, and never had a bank account. Dr. Grant further noted that even
while he was married, he and his wife lived with his family. Dr. Grant found that based on these
factors, Petitioner had deficits in adaptive behavior. Dr. Grant explained that Petitioner had support
from his family that would enable him to blend into the general population. Although there was
testimony that his family did not see him as retarded, Dr. Grant explained that this is not inconsistent
with persons who fall into the mildly mentally retarded range.

        Dr. Grant concluded that Petitioner’s mental retardation existed prior to age eighteen. As
evidence of this conclusion, Dr. Grant pointed to findings from Dr. Globus and Dr. Gur that there
are abnormalities in his brain that can best be explained through things that happened to Petitioner
early in life. He also highlighted Coach Dennis’ testimony that Petitioner had difficulty following


                                                  -6-
plays. He noted that Petitioner repeated the second grade. Petitioner scored in the one percentile
on a differential aptitude test administered in the ninth grade. Dr. Grant also pointed to the fact that
Petitioner attended a very impoverished school.

        The State presented two witnesses at the hearing: expert witnesses Eric Engum, Ph.D., J.D.,
and Susan Vaught, Ph.D. After extensive cross-examination, Eric Engum was qualified and
permitted to testify as an expert in clinical and forensic psychology and neuropsychology. Dr.
Engum opined that Petitioner did not meet the criteria to be diagnosed mentally retarded. Dr. Engum
admitted initially in his testimony that he did not conduct his own testing of Petitioner. Instead, he
relied upon the Petitioner’s previous testing. Dr. Engum further explained that he did not conduct
additional testing because he believed Petitioner was probably “test-wise” or “test-weary.” Dr.
Engum further opined that he believed Petitioner has “some sophistication in knowing how to
present himself on the tests to make himself look impaired.”

        As to Petitioner’s present I.Q., Dr. Engum testified that he relied upon Dr. Kenneth Anchor’s
testing who assessed Petitioner near the time of his trial. At the time of the testing conducted by Dr.
Anchor, Petitioner scored an overall I.Q. of seventy-six, and Dr. Anchor indicated that he believed
that despite the score of seventy-six, he suspected Petitioner actually performed at a much higher
level in the community. Dr. Engum further explained that I.Q. tests tend to underestimate the
intelligence of minorities. Dr. Engum also noted that Petitioner scored a seventy-six when tested by
Pat Jaros, and he scored a seventy-three when tested by Dr. Gillian Blair in October 1993. Based
upon his review of the testing of Petitioner, Dr. Engum testified that he could find no evidence that
Petitioner had an I.Q. of seventy or less at the time he committed the crimes at issue.

        In addition to determining that Petitioner did not have an I.Q. of seventy or less, Dr. Engum
also opined that Petitioner failed to meet the second criterion for mental retardation: deficits in
adaptive behavior. Dr. Engum testified that he assessed Petitioner’s adaptive behavior according to
the legal standard in Tennessee. He testified that it was his understanding that under the Tennessee
standard, the issue is whether a person can adapt his behavior to the surrounding circumstances,
which is a different standard than that set out in the DSM-IV. The question he believed he must
answer was whether the Petitioner could function within his environment in terms of going about
and doing the daily activities that everyone else does. Dr. Engum testified that he relied upon the
testimony of individuals who testified during the mitigation phase of Petitioner’s trial, and those
individuals “commented very favorably upon him in terms of his ability to function within the
environment.” Dr. Engum also testified that during his childhood, Petitioner functioned like a child
within his culture and community. Dr. Engum further noted that prior to age eighteen, there was no
individualized assessment by school psychologists, no indication of significant problems with
juvenile authorities, and no unusual behavioral problems. According to Dr. Engum, there simply
were no major deficits in Petitioner’s adaptive behavior. Dr. Engum also assessed Petitioner’s adult
years prior to committing the crimes for which he was convicted, and again he found no deficits in
adaptive behavior. Furthermore, Dr. Engum opined that Petitioner did not meet the standard for
deficits in adaptive behavior under the Tennessee standard or under the criteria set forth in the DSM-
IV. Although Dr. Engum believed that Petitioner suffered from personality problems, delusional


                                                  -7-
problems, or psychological difficulties, those issues are separate and apart from the issue of whether
Petitioner was mentally retarded.

        On cross-examination, Dr. Engum admitted that Petitioner’s grades were certainly not
optimal and were highly inconsistent, but he determined that these problems may have resulted from
motivational issues rather than mental retardation issues. Dr. Engum also acknowledged that the
testing performed by Dr. Anchor was a screening test and was not as reliable as other testing
performed. During cross-examination, Petitioner’s counsel also brought out the fact that Dr.
Anchor’s license was revoked or suspended following Petitioner’s trial because he had destroyed
documents and test results. Dr. Engum reiterated that none of the experts who assessed Petitioner
prior to 2001 made any identification of mental retardation. Petitioner argues on appeal that Dr.
Engum’s testimony and opinions are completely unreliable and should be given no consideration.

        Dr. Susan Vaught also testified on behalf of the State as a clinical psychology and mental
retardation expert. Dr. Vaught opined that Petitioner did not meet the criteria to be diagnosed as
mentally retarded. As for the first criterion, Dr. Vaught explained that in recent testing Petitioner
was “at or right at” criteria. She testified that because Petitioner’s life was at stake, she wanted to
give him the benefit of any doubt. She then explained that when he was first assessed Petitioner was
above criteria, but he fell below criteria as time progressed. It was her opinion that there were a lot
of alternative explanations for the decline other than long-standing mental retardation; therefore, she
examined his history to determine onset.

        Dr. Vaught testified that I.Q. tests have historically been biased against minorities. She
explained that, therefore, if you have an African-American who tests in the seventies, the clinician
must be very cautious with the interpretation, especially if mental retardation is being considered,
because there is a bias in the test. Dr. Vaught also testified that she was aware of the Flynn Effect,
but it was not the standard of practice to correct for it, in terms of looking at an I.Q. score. Dr.
Vaught explained her concerns about the reliability of the recent I.Q. testing performed on Petitioner.
She explained that the thumb print of Petitioner’s scores is much more consistent with brain injury
or an ongoing organic condition than it is for mental retardation. She went on to explain that with
mental retardation, you generally see a global deficit of scores or an “elevator-down phenomenon”
rather than some high scores and some very low scores. Dr. Vaught explained that she routinely
performs assessments to determine whether a person qualifies for services in the State and that a part
of her assessment must be whether the condition occurred prior to age eighteen and is, therefore,
chronic or whether it is a fairly recent problem. Dr. Vaught testified that as for Petitioner, she
believed his recent I.Q. scores were a result of a motivational problem or an organic problem. In any
event, however, she testified she gave the “benefit of the doubt in [Petitioner’s] direction.”

       Dr. Vaught testified that to determine whether a person has deficits in adaptive functioning,
she would first determine whether the person could complete normal tasks of daily living that most
people accomplish. Next, the health history and school history must be reviewed. Dr. Vaught
explained that it should be determined whether the milestones were met on time. She reviews the
school records and programs in the school to determine educational history. She also reviews job


                                                 -8-
history and marital history. As for Petitioner, Dr. Vaught had multiple sources of information,
including but not limited to: medical records; school records; a taped interview with the police;
testing performed by other clinicians; letters written by Petitioner; prior court testimony; and prison
records. Dr. Vaught explained that in assessing deficits in adaptive functioning, she must consider
three areas: conceptual, social, and practical.

       Language, reading and writing, money concepts, and self-direction are the four basic areas
examined to determine if there is a deficit in the conceptual area of adaptive functioning. Dr. Vaught
found that Petitioner had age appropriate functioning within the conceptual category. Further, Dr.
Vaught found Petitioner’s social skills were intact and at or above the level suggested by current
measures of intellectual functioning. Although she determined that Petitioner may have had some
mental health issues, he did not have social deficits in adaptive functioning. Finally, Dr. Vaught
concluded that Petitioner had no practical deficits in his activities of daily living.

        Dr. Vaught further opined that there was no onset of mental retardation of Petitioner prior
to age eighteen. Dr. Vaught explained that Petitioner’s childhood history did not follow the pattern
of a person with mild mental retardation who has escaped diagnosis. Dr. Vaught admitted that
Petitioner did not excel in school; his grades were low to average. He did, however, test within the
normal range on standardized I.Q. and achievement testing in elementary and junior high school.
At one point, the testing may have indicated a learning disability in reading, but later testing showed
he had progressed. Standardized testing in the ninth grade showed that he tested “far below age
peers,” but he continued on in school. Dr. Vaught also explained that during his high school years
and in particular his ninth grade year, Petitioner suffered “multiple stressors,” including the death
of a teacher, football injury, and birth of his first child. In any event, Petitioner graduated with a
regular diploma. Dr. Vaught testified that she had “rarely, if ever, seen a person with mild mental
retardation make it through high school with no assistance like that, and they’ve managed to get a
regular diploma.” Dr. Vaught further pointed out that Petitioner played organized sports, was
engaged in age appropriate activities such as dating, faced and managed a fairly high stress level,
received his driver’s license apparently without any vocational support, and kept employment
without vocational support, training, or modifications.

        Dr. Vaught candidly admitted that she neither personally interviewed nor tested Petitioner.
She explained that she did neither for several reasons. One, she had been given voluminous records
to review, and after her review of the records, she did not believe Petitioner met either the second
or third criteria for mental retardation. Further, she saw a pattern of the scores on the I.Q. tests
descending. She had also reviewed Dr. Jaros’ report and believed that some organic results had
occurred recently in Petitioner’s life, and her findings would be skewed by such. It was also Dr.
Vaught’s opinion that as a result of the organic problems from which Petitioner was suffering, he
would require clinical testing in the near future as a part of his diagnosis and treatment, and it was
her belief that if she tested him, it would skew the results for the next clinician. Dr. Vaught further
explained that she believed Petitioner had become savvy to the testing.

       On cross-examination, Dr. Vaught again reiterated that clinicians are aware of the Flynn


                                                 -9-
Effect but that they do not adjust the scores based on it. Furthermore, she explained that she is very
liberal in assessing a person to qualify for services as a result of mental retardation. She stated: “If
I could possibly put somebody in for services that they need, I’m going to do it.” She then testified
that she had cautioned counsel for the State when he approached her for taking the case that if she
could find that Petitioner is mentally retarded and keep him from being executed, she was going to
do it. Dr. Vaught further admitted that Petitioner has a relatively impaired brain. Dr. Vaught
referenced on several occasions in direct and cross-examination testimony her displeasure with Dr.
Grant’s comment that mental retardation was a mental illness. Dr. Vaught explained that mental
retardation and mental illness are separate issues. Dr. Vaught explained that mental illness is a
medical illness that affects a person’s ability to think like a normal person from the standpoint of
thought formation and mood. Mental retardation, however, is a developmental disability. It is
something that a person is born with or acquires in childhood. She stated that mental retardation is
a structural problem in the brain or “a very bad roll of the genetic dice.” It has nothing, however,
to do with mental illness.

         Following the post-conviction hearing, the video deposition of Ruben Gur, an expert in
neuropsychology, was taken and filed as part of the proof in the post-conviction proceedings. Dr.
Gur concluded, after conducting an MRI and a PET scan, that Petitioner had brain damage. Dr. Gur
testified that Petitioner’s brain is damaged in the areas that control aggression and impulses, as well
as Petitioner’s ability to think about the future. Dr. Gur also testified that Petitioner had enlarged
ventricles, which indicated that a lot of brain cells had died in the middle of Petitioner’s brain. Dr.
Gur explained that ventricular atrophy was a sign of several disorders and happens during gestation.
He testified that large ventricles are a cardinal sign of schizophrenia but appear in mental retardation
and in various forms of cerebral palsy or atrophy disorders. Dr. Gur testified that due to the scope
of damage he found in Petitioner, he was looking for some major brain injury or a period of a coma,
but neither of those are borne out in the record. Therefore, he found the most likely causes were fetal
alcohol syndrome or a series of minor head injuries. He later admitted on cross-examination that he
could not rule out other causes including adult alcohol and drug abuse. However, Dr. Gur testified
that the results of Petitioner’s PET scan also indicated brain damage resulting from fetal alcohol
syndrome.

        Dr. Gur explained that people with brain damage have “pockets of excellence” and “pockets
of deficit,” which explains why Petitioner may have performed well on some of the harder questions
while missing some of the easier questions. Dr. Gur testified that the part of the brain that needed
to be used to answer the easier questions may have been damaged. Accordingly, the fact that
Petitioner correctly answered some of the harder questions while missing some of the easier
questions is not an indication of malingering. Dr. Gur further testified that he did not test Petitioner
for malingering because Petitioner appeared to be putting forth a lot of effort during the testing.

        Dr. Gur concluded that Petitioner is mentally retarded. He estimated that Petitioner has an
I.Q. of sixty. He also opined that Petitioner’s test results indicated he had deficits in adaptive
behavior. Ultimately, Dr. Gur admitted that he could not specify a date certain when Petitioner’s
brain damage occurred. However, Dr. Gur testified that to a reasonable degree of medical certainty,


                                                 -10-
Petitioner has serious brain damage and is mentally retarded.

          Patti van Eys, a clinical psychologist at Vanderbilt University, submitted an affidavit
regarding her evaluation of Petitioner. Dr. van Eys found Petitioner’s I.Q. to be sixty-nine, based
on the WAIS-II intelligence test. Dr. van Eys stated that she did not believe Petitioner was
malingering. She also criticized the State’s experts for failing to personally interview Petitioner in
their assessments.

                                              Analysis

        In this appeal, we must determine whether the trial court erred in finding that Petitioner was
not mentally retarded and thus eligible for the death penalty. In 1990, the Tennessee Legislature
enacted Tennessee Code Annotated section 39-13-203, which prohibited the execution of mentally
retarded persons. In so doing, the legislature set forth the criteria for determining whether a person
is mentally retarded and the burden of proof to be applied. See Tenn. Code Ann. § 39-13-203(a) and
(c). This statute, however, had an effective date of July 1, 1990, and did not address its effect on
defendants previously sentenced to death. In 2001, in response to a motion to reopen a post-
conviction petition filed by a defendant sentenced to death prior to the effective date of Tennessee
Code Annotated section 39-13-203, the supreme court determined that the statute does not have
retroactive application. Van Tran v. State, 66 S.W.3d 790, 798 (Tenn. 2001). However, the Van
Tran Court determined that pursuant to Article I, Section 16 of the Tennessee Constitution, it was
constitutionally impermissible to execute a mentally retarded person. Van Tran, 66 S.W.3d at 800.
Further, the Van Tran Court held that this newly recognized constitutional right warranted retroactive
application to cases on collateral review. Id. at 811. Approximately six months after the Van Tran
decision, the United States Supreme Court released an opinion holding that executing a mentally
retarded person violates the United States Constitution. Atkins v. Virginia, 536 U.S. 304, 122 S.
Ct. 2242 (2002).

        Since releasing the Van Tran decision, our supreme court has had another occasion to address
the Van Tran holding and its applicability. See Howell v. State, 151 S.W.3d 450 (Tenn. 2004). In
Howell, the supreme court elaborated on the appropriate criteria to be applied in determining
whether a petitioner is mentally retarded, set forth the standards to be applied by the post-conviction
court, set forth the appropriate burdens of proof, and determined that a petitioner is not entitled to
have a jury determine whether he is mentally retarded. Howell, 151 S.W.3d at 457-58, 463-65.
Accordingly, both the Van Tran and Howell decisions will be of paramount importance in our
determination of whether the post-conviction court erred.

         In this appeal, Petitioner asserts that the trial court erred in determining that the evidence
failed to prove that he satisfied the criteria to be deemed mentally retarded. Petitioner further asserts
that Tennessee Code Annotated section 39-13-203 is unconstitutional as interpreted by the supreme
court in Howell v. State. As a final argument on appeal, Petitioner contends that the supreme court
erred in its holdings in Howell, that the petitioner bears the burden of proof, and that the
determination of mental retardation is to be made by the court rather than a jury.


                                                  -11-
                                       Standard of Review

        The question of whether a defendant is mentally retarded and thus ineligible for the death
penalty is a mixed question of law and fact. Accordingly, in this post-conviction appeal, we must
review the post-conviction court’s findings of fact de novo, with a presumption of correctness that
is to be overcome only when the preponderance of the evidence is contrary to the court’s findings.
Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). However, in reviewing the application of law to
the facts, we must conduct a purely de novo review. Id. at 457. Thus, no presumption of correctness
attaches to the post-conviction court’s conclusions of law. Id. Bearing this in mind, we will first
address the issue of whether Petitioner is mentally retarded and thus eligible for the death penalty.

                          Petitioner’s Eligibility for the Death Penalty

        As set forth supra, in determining whether Petitioner is mentally retarded and thus ineligible
for the death penalty, this court must follow the holdings of our supreme court in Van Tran and
Howell. Moreover, although Petitioner was tried and sentenced prior to the enactment of Tennessee
Code Annotated section 39-13-203, this court must apply the criteria set forth in that statute in
making our determination. See Van Tran, 66 S.W.2d at 812, which held that although Tennessee
Code Annotated section 39-13-203 did not have retroactive application, the applicable criteria to be
used by a court in making a determination of mental retardation are those set forth in the statute.

        Tennessee Code Annotated section 39-13-203 sets forth the definition of mental retardation
as follows:
        (1) Significantly sub-average general intellectual functioning as evidenced by a
        functional intelligence quotient (I.Q.) of seventy (70) or below;
        (2) Deficits in adaptive behavior; and
        (3) The mental retardation must have been manifested during the developmental
        period or by eighteen (18) years of age.
Tenn. Code Ann. § 39-13-203(a) (2003). This definition sets forth a three-prong test, and all three
of the prongs must be satisfied to establish mental retardation. Moreover, our supreme court
clarified in Howell that the demarcation of an I.Q. score of seventy in the statute is a “bright-line
cutoff” and must be met. Howell, 151 S.W.3d at 456, 458-59. “[T]he statute should not be
interpreted to make allowance for any standard error of measurement or other circumstances whereby
a person with an I.Q. above seventy could be considered mentally retarded.” Id. at 456.

        During the post-conviction proceedings, Petitioner presented the testimony of four lay
witnesses, three expert witnesses, the affidavit of an additional expert witness, and numerous
exhibits. The State presented the testimony of two expert witnesses. Petitioner’s experts found that
Petitioner met the criteria to be diagnosed as mentally retarded. Conversely, the State’s experts
found that Petitioner did not meet the criteria to be diagnosed as mentally retarded. In determining
whether Petitioner meets the criteria to be deemed mentally retarded under Tennessee Code
Annotated section 39-13-203, it will be necessary for the court to apply the criteria to the evidence


                                                -12-
presented.

Significantly Sub-average General Intellectual Functioning As Evidenced By A Functional
                   Intelligence Quotient (I.Q.) of Seventy (70) or Below

        The evidence in this record shows that Petitioner’s intelligence has been tested no fewer than
nine times. Petitioner’s education records show that he was tested five times during his school years.
However, the proof demonstrated that it was possible that one of the scores may have been placed
on his record in error. Accordingly, the trial court did not rely upon that test in making its
determination and neither will this court. In any event, while in the second grade in 1963, Petitioner
scored eighty-three on the Lorge Thorndyke intelligence test. In 1964, Petitioner scored ninety-seven
on an intelligence test. In 1967, Petitioner scored ninety-one on the Otis Beta intelligence test, and
in 1969, Petitioner scored eighty-three on the Lorge Thorndyke intelligence test.

        Petitioner’s intelligence was next tested after his arrest for the murders of Angela Clay and
her two daughters. Dr. Kenneth Anchor and Pat Jaros were hired by Petitioner’s defense team in
preparation for trial. Dr. Anchor and Pat Jaros determined that Petitioner had an I.Q. of seventy-six
in 1988. Dr. Anchor determined that despite Petitioner’s I.Q. of seventy-six, he suspected that
Petitioner would perform at a much higher level in the community. Pat Jaros, a psychological
examiner, testified at trial that Petitioner’s I.Q. score of seventy-six was “just about right.” Neither
of Petitioner’s experts found him to be mentally retarded. In 1993, Dr. Gillian Blair tested
Petitioner’s I.Q., and she found it to be seventy-three. During the post-conviction process, Dr.
Pamela Auble also tested Petitioner. She determined his full-scale I.Q. was seventy-six. Dr. Auble
found that Petitioner had neurological impairment, but she made no finding of mental retardation.

        In 2001, Petitioner scored below seventy for the first time on an intelligence quotient test.
Petitioner was tested by Dr. Patti van Eys, Ph.D., on the Wechsler Adult Intelligence Scale -Third
edition (“WAIS-III”). On the WAIS-III, Petitioner scored sixty-nine. Dr. van Eys noted in her report
that Petitioner’s adult assessment results are consistently lower that his I.Q. estimates in childhood.
She found this resulted from either later acute brain damage or a slower deteriorating process such
as dementia or mental illness. She also noted that there was nothing in the records to substantiate
acute brain damage. In 2001, Dr. Daniel Grant also evaluated Petitioner. Dr. Grant’s testing showed
that Petitioner scored fifty-seven on the Stanford-Binet Fourth edition test and sixty-four on the
Comprehensive Test of Non-Verbal Intelligence (“CTONI”).

        Based on the above testing, Petitioner’s experts at the reopened post-conviction proceedings
determined that Petitioner had subaverage general intellectual functioning as evidenced by an I.Q.
score of seventy or less. The experts based their conclusions on Petitioner’s recent I.Q. scores.
Petitioner’s experts, Dr. Grant specifically, also concluded that Petitioner’s previous adult I.Q. scores
fell within the mentally retarded range, seventy or below, when adjusted by the standard error of
measurement and the Flynn Effect. Dr. Grant explained that according to the Flynn Effect, people
acquire more information and knowledge over time, which in turn requires that the I.Q. tests be
renormed to reflect the gain of knowledge. According to Dr. Grant, the previous tests given to


                                                  -13-
Petitioner during his adulthood had not been renormed in years, which caused Petitioner’s I.Q. score
to be inflated. Dr. Grant also opined that the tests given to Petitioner during his childhood were not
reliable measures of his I.Q. because they were administered in a group setting, and both the AAMR
and the DSM recommend only individually administered tests to measure I.Q.

          Neither of the State’s expert witnesses administered their own I.Q. tests of Petitioner.
Instead, they relied upon the previous testing. Eric Engum, one of the State’s experts, testified that
Petitioner failed to meet the first criteria for mental retardation because his I.Q. was not seventy or
below. In reaching this conclusion, he relied upon the testing of Petitioner conducted by his experts
at trial and the initial post-conviction proceeding. Based upon his review of the testing of Petitioner,
Dr. Engum testified that he could find no evidence that Petitioner had an I.Q. of seventy or less at
the time he committed the crimes at issue.

        Dr. Susan Vaught, also a State expert, testified that Petitioner was “at or right at” criteria in
recent testing. She explained that I.Q. tests have historically been biased against minorities. She
explained that, therefore, if you have an African-American who tests in the seventies, the clinician
must be very cautious with the interpretation, especially if mental retardation is being considered,
because there is a bias in the test. Dr. Vaught testified that she was aware of the Flynn Effect, but
it was not the standard of practice to correct for it, in terms of looking at an I.Q. score. She,
therefore, conceded that Petitioner currently meets the first criterion for mental retardation.

        Petitioner’s test scores have decreased as he has aged. During his childhood, he tested with
scores in the eighties and nineties. Prior to trial and his initial post-conviction proceedings,
Petitioner’s own experts testified that his I.Q. score was above seventy. Only recently has
Petitioner’s I.Q. score fallen below seventy. Petitioner’s experts testified that his adult scores fell
within the mentally retarded range when adjusted by the standard error of measurement and/or the
Flynn Effect. However, our supreme court has held that the I.Q. score of seventy in Tennessee Code
Annotated section 39-13-203 is a “bright-line cutoff” and must be met. Howell, 151 S.W.3d at 456,
458-59. As the Howell Court stated: “[T]he statute should not be interpreted to make allowance for
any standard error of measurement or other circumstances whereby a person with an I.Q. above
seventy could be considered mentally retarded.” Id. at 456.

                                   Deficits in Adaptive Behavior

       The second criterion Petitioner must meet to prove mental retardation is that he has deficits
in adaptive behavior. The Van Tran Court explained the second prong of the test as follows:
       The second part of the definition – adaptive functioning – “refers to how effectively
       individuals cope with common life demands and how well they meet the standards
       of personal independence expected of someone in their particular age group, socio-
       cultural background, and community setting.” As discussed, a mentally retarded
       person will have significant limitations in at least two of the following basic skills:
       “communication, self-care, home living, social/interpersonal skills, use of community
       resources, self-direction, functional academic skills, work, leisure, health, and


                                                  -14-
       safety.” Influences on adaptive functioning may include the individual’s “education,
       motivation, personality characteristics, social and vocational opportunities, and the
       mental disorders and general medical conditions that may coexist with Mental
       Retardation.”
Van Tran, 66 S.W.2d at 795 (quoting American Psychiatric Association, Diagnostic and Statistical
Manual on Mental Disorders, 39, 40 (4th ed. 1994) (citations omitted)). In 1994, our supreme court
construed the term deficits in adaptive behavior in its ordinary sense as “the inability of an individual
to behave so as to adapt to surrounding circumstances.” State v. Smith, 893 S.W.2d 908, 918 (Tenn.
1994).

        Both the lay witnesses and the experts testified as to how Petitioner adapted to his
surrounding circumstances. The lay witnesses testified that Petitioner grew up in a large, close-knit
family in a disadvantaged area of Nashville and attended a disadvantaged school. Petitioner repeated
the second grade but appears to have functioned in the school system otherwise. He played football
in high school, got along well with the other members of the team, and respected the coaches. None
of the witnesses testified that he had any behavior problems in school or at home. After high school,
he obtained employment at Caroon and Black Insurance Company where he ordered supplies, drove
the company van, took deposits to the bank, ran errands, and worked in shipping and receiving. He
was well liked by the other employees. Moreover, Petitioner purchased a car, apparently paid for
the car himself, drove independently, and took great pride in keeping the car neat and clean.
Petitioner married and had a child. Although Petitioner has always lived with his family, even
during his five-year marriage, there was no testimony that he could not live independently. None
of the lay witnesses ever considered Petitioner to be mentally retarded.

        Dr. Grant tested Petitioner on the independent living scale and found Petitioner had problems
with managing money, managing a home, transportation, and health and safety. Dr. Grant further
concluded that Petitioner met the criteria for deficits in adaptive behavior as set forth in both the
DSM-IV and the AAMR. As support for his conclusion, Dr. Grant pointed to the fact that Petitioner
had never lived independently, cooked, cleaned the house, did laundry, participated in the care of his
son, contributed financially to his family, or had a bank account. However, there is no proof in the
record that Petitioner was unable to do these things.

        State expert Eric Engum opined that Petitioner failed to meet the deficits in adaptive behavior
criterion. Dr. Engum testified that he assessed Petitioner’s adaptive behavior according to the
definition set out by the supreme court in Smith. He testified that it was his understanding that under
the Tennessee standard as defined by Smith, the issue is whether a person can adapt his behavior to
the surrounding circumstances, which is a different standard than that set out in the DSM-IV. The
question he believed he must answer was whether the Petitioner could function within his
environment in terms of going about and doing the daily activities that everyone else does. Dr.
Engum testified that he relied upon the testimony of individuals who testified during the mitigation
phase of Petitioner’s trial, and those individuals “commented very favorably upon him in terms of
his ability to function within the environment.” Dr. Engum also testified that during his childhood,
Petitioner functioned like a child within his culture and community. Dr. Engum further noted that


                                                  -15-
prior to age eighteen, there was no individualized assessment by school psychologists, no indication
of significant problems with juvenile authorities, and no unusual behavioral problems. According
to Dr. Engum, there simply were no major deficits in Petitioner’s adaptive behavior. Dr. Engum also
assessed Petitioner’s adult years prior to committing the crimes for which he was convicted and
again found no deficits in adaptive behavior. Furthermore, Dr. Engum opined that Petitioner did not
meet the standard for deficits in adaptive behavior under the Tennessee standard or under the criteria
set forth in the DSM-IV. Although Dr. Engum believed that Petitioner suffered from personality
problems, delusional problems, or psychological difficulties, those issues are separate and apart from
the issue of whether Petitioner was mentally retarded.

        State expert Dr. Susan Vaught testified that she routinely assesses adaptive behavior in
individuals to determine if there are deficits. She explained that to determine whether a person has
deficits in adaptive functioning, she first determines whether the person can complete normal tasks
of daily living that most people accomplish. Next, she reviews the health history and school history.
It is important to determine whether the milestones were met on time. She reviews the school
records and programs in the school to determine educational history. She also reviews job and
marital history. As for Petitioner, Dr. Vaught had multiple sources of information, including but not
limited to: medical records; school records; taped interview with the police; testing performed by
other clinicians; letters written by Petitioner; prior court testimony; and prison records. Dr. Vaught
explained that in assessing deficits in adaptive functioning, she must consider three areas:
conceptual, social, and practical.

       Language, reading and writing, money concepts, and self-direction are the four basic areas
examined to determine if there is a deficit in the conceptual area of adaptive functioning. Dr. Vaught
found that Petitioner had age appropriate functioning within the conceptual category. Further, Dr.
Vaught found Petitioner’s social skills were intact and at or above the level suggested by current
measures of intellectual functioning. Although she determined that Petitioner may have had some
mental health issues, he did not have social deficits in adaptive functioning. Finally, Dr. Vaught
concluded that Petitioner had no practical deficits in his activities of daily living. As a result, Dr.
Vaught concluded that Petitioner did not have deficits in adaptive behavior.

           Manifestation of Mental Retardation During the Developmental Period

        Finally, to prove mental retardation, Petitioner must prove that his mental retardation
manifested prior to age eighteen; in other words, he must show that he had an I.Q. below seventy and
had deficits in adaptive behavior by age eighteen. The proof in the record simply does not support
such a conclusion.

        None of Petitioner’s I.Q. scores were below seventy prior to age eighteen. Dr. Vaught noted
that Petitioner’s I.Q. scores have steadily decreased over the years. She explained that with mental
retardation, you generally see a global deficit or suppression of all the scores rather than some high
scores and some very low scores. Dr. Vaught explained that she routinely performs assessments to
determine whether a person qualifies for services in the State, and a part of her assessment must be


                                                 -16-
whether the condition occurred prior to age eighteen and is, therefore, chronic or whether it is a fairly
recent problem. Dr. Vaught testified that as for Petitioner, she believed his recent I.Q. scores were
a result of a motivational problem or an organic problem. Dr. Vaught further testified that her
findings were consistent with Pat Jaros, Petitioner’s own expert, who testified at Petitioner’s trial.

        As the United States Supreme Court has noted:
        [M]ental retardation is easier to diagnose than is mental illness. That general
        proposition should cause little surprise, for mental retardation is a developmental
        disability that becomes apparent before adulthood. . . . By the time the person reaches
        18 years of age the documentation and other evidence of the condition have been
        accumulated for years. Mental illness, on the other hand, may be sudden and may not
        occur, or at least manifest itself, until adulthood.
Heller v. Doe, 509 U.S. 312, 321-22 (1993) (citations omitted).

        Although Petitioner’s experts maintain that his mental retardation is a result of his mother’s
drinking of alcohol while she was pregnant, the proof in the record simply does not support that
Petitioner’s I.Q. was below seventy or that Petitioner had deficits in his adaptive behavior prior to
age eighteen. Accordingly, Petitioner cannot meet the third prong of the test for mental retardation.
Because Petitioner failed to prove that he is mentally retarded by a preponderance of the evidence,
he is not excluded from the sentence of death.

              Constitutionality of Tennessee Code Annotated Section 39-13-203

        Petitioner argues that the bright line test adopted in Howell that rejects an adjustment of an
I.Q. score by the standard error of measurement excludes persons who are recognized as mentally
retarded in the scientific community. Petitioner further argues that the approach adopted in Howell
is in conflict with prevailing scientific practices. Petitioner contends that the prevailing scientific
norm recognizes that an I.Q. score of seventy represents a range of sixty-two to seventy-eight, which
accounts for the standard error of measurement.

        Petitioner bases his argument on the Tennessee Supreme Court’s 1997 decision that set the
standard for evaluating scientific evidence, McDaniel v. CSX Transportation, 955 S.W.2d 257, 266
(Tenn. 1997). In McDaniel, the supreme court held that when determining the admissibility of
scientific evidence under Tennessee Rules of Evidence 702 and 703, a trial court may consider a
potential rate of error to determine if the evidence is reliable. McDaniel does not require courts to
consider a potential rate of error when applying scientific evidence. Instead, McDaniel allows courts
to consider a potential rate of error in determining whether scientific evidence is reliable and
therefore admissible. Howell does not affect the admissibility of evidence. Indeed, evidence was
presented by Petitioner’s experts in this case as to the standard error of measurement.

        The United States Supreme Court in Atkins left it to the states to develop an appropriate way
to enforce the constitutional prohibition of executing mentally retarded persons. Atkins, 536 U.S.
at 321. The Tennessee Legislature developed such a procedure in Tennessee Code Annotated section


                                                  -17-
39-13-203. Atkins did not require states to adopt a procedure that defined mental retardation using
a standard error of measurement.

       This issue is without merit.

       Submission of Issue of Mental Retardation to a Jury and Burden of Proof

        Finally, Petitioner contends that he has a fundamental right to life and that because the
question of eligibility for the death penalty is a substantive element of capital murder, the state must
bear the burden of proving that he is not mentally retarded and the issue must be submitted to a jury.
Petitioner acknowledges that the Tennessee Supreme Court has rejected this argument but makes the
argument in order to preserve it for later review. See State v. Edwin Gomez, 163 S.W.3d 632 (Tenn.
2005) (“Indeed, a defendant is never precluded from raising an issue simply because a prior decision
has rejected it.”). Petitioner is not entitled to relief on this issue.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the post-
conviction court denying post-conviction relief.




                                                        _________________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




                                                 -18-
