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Date: 01-18-2018

Case Style:

KENNETH DARCELL QUINCE vs. STATE OF FLORIDA

Case Number: SC17-127

Judge: PER CURIAM

Court: Supreme Court of Florida

Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General

Defendant's Attorney: James Vincent Viggiano, Jr.
Capital Collateral Regional Counsel

Raheela Ahmed, Maria Christine Perinetti, Lisa Marie Bort, and Reuben Andrew Neff, Assistant Capital Collateral Regional Counsel

Description: In 1980, Quince pleaded guilty to first-degree felony murder and burglary of
a dwelling and, after waiving his right to a penalty phase jury, was sentenced to
death. We affirmed Quince’s death sentence on direct appeal. Quince v. State,
414 So. 2d 185, 189 (Fla. 1982). Quince filed an initial motion for postconviction
relief, the denial of which was eventually affirmed on appeal. See Quince v. State,
732 So. 2d 1059 (Fla. 1999); Quince v. State, 592 So. 2d 669 (Fla. 1992); Quince
v. State, 477 So. 2d 535 (Fla. 1985). In 2004, Quince filed a successive motion for
postconviction relief under Florida Rules of Criminal Procedure 3.851 and 3.203,
in which he sought to vacate his death sentence on the ground that he is
intellectually disabled and therefore ineligible for the death penalty under Atkins v.
Virginia, 536 U.S. 304 (2002), and section 921.137, Florida Statutes (2003).1 In
2008, an evidentiary hearing was held, at which the trial court heard evidence
regarding all three prongs of the intellectual disability standard and thereafter
denied the motion based solely on Quince’s failure to meet the significantly
subaverage general intellectual functioning prong. The denial of relief was
affirmed on appeal. Quince v. State, No. SC11-2401, 2012 WL 6197458, at *1-2
(Fla. Dec. 10, 2012) (116 So. 3d 1262 (table)).

1. Section 921.137 requires a defendant to establish his or her intellectual disability by demonstrating the following three factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. § 921.137(1), Fla. Stat. The defendant has the burden to prove that he or she is intellectually disabled by clear and convincing evidence. § 921.137(4), Fla. Stat.


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In 2014, the United States Supreme Court issued its decision in Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014), in which it held that Florida’s interpretation
of its statute prohibiting the imposition of the death sentence upon an intellectually
disabled defendant as establishing a strict IQ test score cutoff of 70 “creates an
unacceptable risk that persons with intellectual disability will be executed, and thus
is unconstitutional.” Instead of applying the strict cutoff when assessing the
subaverage intellectual functioning prong of the intellectual disability standard,
courts must now take into account the standard error of measurement (SEM) of IQ
tests. See Hall, 134 S. Ct. at 2001. And “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.” Id.
In the wake of Hall, Quince filed a renewed motion for a determination of
intellectual disability as a bar to execution in 2015. Quince did not request another
evidentiary hearing or seek to present any new evidence of his alleged intellectual
disability but simply asked the trial court to review the record from the 2008
intellectual disability hearing in light of Hall. Quince also argued that although the
current state of the law requires a defendant to prove his or her intellectual
disability by clear and convincing evidence, the trial court should allow Quince to
prove his intellectual disability by a preponderance of the evidence because, he


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alleged, “the ‘clear and convincing evidence’ requirement runs afoul of Atkins and
the Eighth and Fourteenth Amendments to the Constitution of the United States.”
At the hearing held on Quince’s renewed motion, the trial court
acknowledged that although it had heard evidence regarding all three prongs of the
intellectual disability standard at Quince’s 2008 hearing, it denied Quince’s initial
intellectual disability claim based solely on his failure to demonstrate that he meets
the significantly subaverage general intellectual functioning prong. The trial court
agreed with Quince that Hall should be applied retroactively to his case but
disagreed that Quince should be allowed to prove his intellectual disability by a
preponderance of the evidence instead of clear and convincing evidence. The trial
court stated that it would review the record and evidence from Quince’s 2008
intellectual disability hearing and reconsider his intellectual disability claim in
light of Hall. After reviewing the record and considering written memoranda from
both parties, the trial court concluded that Quince failed to prove that he is
intellectually disabled because none of the three IQ scores he had presented—77,
79, and 77—fell within the SEM and Quince “was not precluded from presenting
additional evidence of intellectual disability, including testimony regarding
adaptive deficits.” This appeal follows.
II. ANALYSIS


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Quince contends that the trial court erred in failing to find that he meets the
first prong of the intellectual disability standard—significantly subaverage general
intellectual functioning—because it did not adjust his IQ scores to account for the
Flynn effect.2 According to Quince, because Hall requires courts assessing IQ to
allow professional standards to inform their decisions, the trial court was required
to apply the Flynn effect to adjust his IQ scores down. Although the only IQ
scores Quince has presented are a 79 (obtained using the WAIS in 1980), a 77
(obtained using the WAIS-R in 1984), and a 79 (obtained using the WAIS-III in
2006), he claims that when the Flynn effect is applied and the SEM is taken into
account as required by Hall, his 1980 IQ score of 79 becomes a range from 65-70,
his 1984 IQ score of 76 becomes a range of 70-80, and his 2006 IQ score of 79
becomes a range of 71-81. He asserts that all of these “ranges contain a score on
which a finding of significantly subaverage general intellectual functioning is
warranted.”
At the evidentiary hearing on Quince’s initial intellectual disability claim in
2008, Dr. Oakland, a psychologist, testified that he relied on the Flynn effect to
adjust Quince’s 1980 IQ score from a 79 to a 70. But Dr. Oakland admitted that

2. The Flynn effect refers to a theory in which the intelligence of a population increases over time, thereby potentially inflating performance on IQ examinations. The accepted increase in scoring is approximately three points per decade or 0.33 points per year.


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there is no scientific way to determine whether or not the Flynn effect is operating
on a particular person’s intelligence score and that he could only say that it was
“within the realm of probability” that the Flynn effect impacted Quince’s 1980 IQ
score. Dr. Oakland did not dispute the accuracy of Quince’s unadjusted 1984 IQ
score of 76 or his unadjusted 2006 IQ score of 79 and did not testify that those
scores should be adjusted for the Flynn effect. At the same 2008 hearing, another
psychologist, Dr. McClaren, testified that because Quince’s IQ scores remained
virtually the same across time and are “tightly clustered near the upper bounds of
the borderline level of intellect,” the Flynn effect had no impact on them. Dr.
McClaren testified that the Flynn effect does not apply on an individual basis, that
it is not general clinical practice to subtract the “Flynn number” from an attained
IQ score, and that the most recent publication from the American Association on
Mental Retardation (which has since been renamed the American Association of
Intellectual and Developmental Disabilities (AAIDD)) at the time did not advise
doing so. Dr. McClaren also testified that it would not only be inappropriate but
would make no sense to simply add the Flynn number and the SEM together and
subtract them from an IQ score because they are not totally independent of one
another. After the hearing, the trial court declined to apply the Flynn effect to
adjust Quince’s IQ scores and concluded that Quince did not establish that he
suffers from significantly subaverage general intellectual functioning.


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We previously considered and rejected Quince’s argument that the trial court
erred in failing to apply the Flynn effect to his IQ scores when Quince appealed the
denial of his initial intellectual disability claim. See Quince, 116 So. 3d 1262
(table); Initial Brief of the Appellant at 50, Quince v. State, 116 So. 3d 1262 (Fla.
2012) (table) (No. SC11-2401). Quince again argues that the trial court erred in
failing to adjust his scores for the Flynn effect when considering his renewed
intellectual disability claim. Quince now relies on a 2015 publication of the
AAIDD, The Death Penalty and Intellectual Disability (Edward A. Polloway, ed.
2015) (DPID), which states that there is “a consensus that individually obtained IQ
test scores derived from tests with outdated norms must be adjusted to account for
the Flynn Effect, particularly in Atkins cases.” Quince argues that under “Hall,
courts assessing ID must allow professional standards to inform their decisions”
and that “[i]t is clear that both the professional community and the legal
community recommend adjusting for the Flynn Effect in the context of Atkins
cases.” He asserts that if both the Flynn effect and the SEM are applied to his IQ
scores as he claims Hall requires, he will have established that he meets the
significantly subaverage intellectual functioning prong of the intellectual disability
standard.
As many courts have already recognized, Hall does not mention the Flynn
effect and does not require its application to all IQ scores in Atkins cases. E.g.,


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Black v. Carpenter, 866 F.3d 734, 746 (6th Cir. 2017) (noting that Hall does not
even mention the Flynn effect and does not require that IQ scores be adjusted for
it); Smith v. Duckworth, 824 F.3d 1233, 1246 (10th Cir. 2016) (“Hall says nothing
about application of the Flynn Effect to IQ scores in evaluating a defendant’s
intellectual disability.”), cert. denied, 137 S. Ct. 1333 (2017); Ledford v. Warden,
Georgia Diagnostic & Classification Prison, 818 F.3d 600, 639 (11th Cir. 2016)
(“Hall did not mention the Flynn effect. . . . There is no ‘established medical
practice’ of reducing IQ scores pursuant to the Flynn effect. The Flynn effect
remains disputed by medical experts, which renders the rationale of Hall wholly
inapposite.”), cert. denied, 137 S. Ct. 1432 (2017). Although the AAIDD’s DPID
publication may now advocate the adjustment of all IQ scores in Atkins cases that
were derived from tests with outdated norms to account for the Flynn effect, “Hall
indicated that being informed by the medical community does not demand
adherence to everything stated in the latest medical guide.” Moore v. Texas, 137
S. Ct. 1039, 1049 (2017). Because Quince has not demonstrated that Hall requires
that his IQ scores be adjusted for the Flynn effect, and there is competent,
substantial evidence in the record to support the trial court’s decision not to apply
the Flynn effect to adjust Quince’s IQ scores, Quince is not entitled to relief on this
claim.


- 9 -
Next, Quince claims that the trial court erred in failing to consider all three
prongs of the intellectual disability standard in tandem before denying his renewed
intellectual disability claim. At the 2016 hearing on Quince’s renewed intellectual
disability motion, the trial court acknowledged that it denied Quince’s initial
intellectual disability claim under the applicable law at the time based exclusively
on its finding that Quince failed to meet the significantly subaverage intellectual
functioning prong of the intellectual disability standard, but the trial court
announced that it would apply Hall retroactively to Quince’s case, review the
record of the 2008 intellectual disability hearing, and reconsider all of the evidence
presented in light of Hall. After reviewing the record and considering written
memoranda from both parties, the trial court concluded that because “none of
[Quince’s IQ] scores are within the tests’ acknowledged and inherent margin of
error, and the defendant was not precluded from presenting additional evidence of
intellectual disability, including testimony regarding adaptive deficits,” Quince is
not entitled to relief under Hall. We agree that Quince is not entitled to relief on
this basis.
In response to a specific question asked by Quince at the 2016 hearing about
the extent of the court’s review of his renewed intellectual disability claim, the trial
court said that it would review the record from the 2008 evidentiary hearing, re
evaluate the evidence regarding the second and third prongs, and reconsider all of


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the evidence in light of Hall. The trial court’s order denying his renewed
intellectual disability claim did not make any specific factual findings as to
whether Quince had established that he meets either the second or third prongs of
the intellectual disability standard, but under the circumstances presented, such
specific findings were unnecessary. Although Hall requires courts to consider all
three prongs of intellectual disability in tandem, we have recently reiterated that
“[i]f the defendant fails to prove any one of these components, the defendant will
not be found to be intellectually disabled.” Salazar v. State, 188 So. 3d 799, 812
(Fla. 2016); accord Williams v. State, 226 So. 3d 758, 773 (Fla. 2017); Snelgrove
v. State, 217 So. 3d 992, 1002 (Fla. 2017). And while Hall requires a holistic
hearing, “defendants must still be able to meet the first prong of [the intellectual
disability standard].” Zack v. State, 228 So. 3d 41, 47 (Fla. 2017). Thus, because
Quince failed to meet the significantly subaverage intellectual functioning prong
(even when the SEM is taken into account), he could not have met his burden to
demonstrate that he is intellectually disabled.
Finally, Quince argues that section 921.137(4), Florida Statutes, which
requires that defendants prove their intellectual disability by clear and convincing
evidence, is unconstitutional under Atkins and the Eighth and Fourteenth
Amendments to the United States Constitution, and that he should have been
permitted to prove his intellectual disability claim by the more lenient


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preponderance of the evidence standard instead. Because we conclude that
Quince’s intellectual disability claim would have failed even under the
preponderance of the evidence standard, we need not address the constitutionality
of the clear and convincing evidence standard of section 921.137(4), Florida
Statutes. See Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975) (“[C]ourts
should not pass upon the constitutionality of statutes if the case in which the
question arises may be effectively disposed of on other grounds.”).

Outcome: For these reasons, we affirm the trial court’s order denying Quince’s
renewed motion for a determination of intellectual disability as a bar to execution.

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Defendant's Experts:

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