BORDEN v. STATE, CR-02-1314 (Ala.Crim.App. 1-7-2005)

McMILLAN, Presiding Judge.

On February 27, 2004, we remanded this cause, following the appellant's Rule 32 petition, for the circuit court to conduct an evidentiary hearing and to make specific, written findings of fact as to whether Borden is mentally retarded and whether, therefore, in light of Atkins v. Virginia, 536 U.S. 304 (2002), his sentence of death is unauthorized as a matter of law. The circuit court has now filed its return, which states, in pertinent part:

"On August 12, 2004, this Court held a status conference at which the State of Alabama stipulated that Mr. Borden is mentally retarded and that his death sentence is prohibited as a matter of law pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). Both parties agreed during the status conference that this Court should find that Mr. Borden is a person with mental retardation and in accordance with Atkins his sentence should be reduced to life imprisonment without parole.

"Pursuant to the opinion of the Alabama Court of Criminal Appeals, this Court has reviewed the evidence in light of the standards for determining mental retardation articulated in Atkins v. Virginia, 536 U.S. 304 (2002); Ex parte Smith, [(No. 1010267, Mar. 14, 2003) ___ So.2d ___ (Ala. 2002)]; Ex parte Perkins, 851 So.2d 453 (Ala. 2002); McGowan v. State, [(No. CR-95-1775, Dec. 12, 2003) ___ So.2d ___ (Ala.Crim.App. 2003)]; and Stallworth v. State, [(No. CR-98-0366, Jan. 31, 2003) ___ So.2d ___ (Ala.Crim.App. 2003), and finds that Mr. Borden meets the definition of mental retardation set forth in Atkins and Perkins and therefore cannot be sentenced to death pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). In support of this determination, this Court specifically finds the following:

"Mr. Borden suffers from significantly subaverage general intellectual functioning. Dr. King administered the Wechsler Adult Intelligence Scale III (WAIS-III) to Mr. Borden, who generated a Verbal IQ of 59, a Performance IQ of 55, and a Full Scale IQ of 53. Forensic Evaluation Report of Dr. Glen King dated April 7, 2004, at 5, attached at Appendix A (hereinafter `King's Report'). Dr. King opined that Mr. Borden `has always functioned in the retarded range of intellectual ability and this is confirmed again by previous testing completed some years ago.' Id. Dr. King concluded that Mr. Borden functions at `an extremely low level intellectually.' Id.

"Mr. Borden suffers from significant or substantial deficits in adaptive behavior. Dr. King reported that he administered the Independent Living Scale Test to Mr. Borden `in order to further assess his adaptive functioning.' King's Report at 5. This test is `designed to rate an individual's ability to function independently as an adult.' Id. Mr. Borden's performance on this test was `extremely impaired.' Id. Dr. King reported that Mr. Borden functions slightly below average with regard to memory and orientation and the remainder of his scores were all at the lowest possible level. He is extremely impaired in his ability to manage money, manage home and transportation, manage health and safety and in his social adjustment. He also has a full scale standard score which is at 55, commensurate with his overall IQ score and at the lowest possible level assessed by this instrument.

King's Report at 5. In addition, Dr. King found that Mr. Borden scored extremely low in `problem solving and performance/information.' King's Report at 5. Mr. Borden was unable to accomplish `even the rudiments' of filling out a sample check, he `did not know what information could be obtained from a bus schedule,' and `because of his inability to read, he was unable to locate a name in the telephone book in order to make a phone call.' King's Report at 5. Additionally, Mr. Borden cannot read or write. King's Report at 4.

"The onset of Mr. Borden's mental retardation occurred before the age of 18. Dr. King concluded that `[a]t the time of the evaluation, and for his lifetime, since at least the age of 16, Mr. Borden has functioned in the mild to moderate range of mental retardation with poor adaptive skills.' King's Report at 6. Dr. King noted that Mr. Borden may suffer from `generalized cerebral damage' as a result of a high fever and coma, and reported that in addition to congenital retardation, this individual probably has some dementia associated with high fever as the result of an infectious disease.' King's Report at 3, 5.

"Dr. King reported that Mr. Borden `generated a protocol that is exactly what I would expect based on my extensive experience and training in assessing mentally retarded individuals,' and he found no evidence of malingering or faking during the evaluation. King's Report at 6. Dr. King diagnosed Mr. Borden as `moderately mentally retarded.' King's Report at 6.

"Dr. King's findings are confirmed by other experts who have consistently diagnosed Mr. Borden with mental retardation. These experts include the following:

"Dr. William Beidleman, the defense expert at Mr. Borden's 1994 trial, administered the Wechsler Adult Intelligence Scale Revised (WAIS-R) and determined that Mr. Borden has a `full scale IQ score of 66,' which falls within the mild mental retardation range.' (R. 952-53.) Dr. Beidleman testified that these scores were `consistent with the past records [he] reviewed.' (R. 953.)

"Dr. Lawrence Maier, the court-appointed expert at Mr. Borden's 1994 trial[,] agreed that an IQ score of 65-66 for Mr. Borden would be accurate, (R. 912), and diagnosed Mr. Borden as `mentally retarded, degree mild.' (R. 921.)

"Both Dr. Beidleman and Dr. Maier agreed that Mr. Borden is illiterate. (R. 902, 953-54). Both Dr. Beidleman and Dr. Maier agreed that Mr. Borden's judgment, insight and behavior control are impaired. (R. 916, 978). Both Dr. Maier and Dr. Beidleman found evidence of brain damage from a fever suffered by Mr. Borden in 1966, which may have resulted in an organic mental or brain disorder. (R. 919-20, 956-58, 969).

"The Forensic Evaluation Board of Bryce Psychiatric Hospital diagnosed Mr. Borden as `mildly mentally retarded' in 1975. (C. 000054, 000055, 000121). As noted in the Forensic Unit Psychodiagnostic Assessment, two Bryce psychologists concluded that Mr. Borden functioned in the `moderately retarded range.' (C. 000077, 000078), which they concluded may be a reflection of brain trauma associated with infection and high fever. (C. 000078.)

"Dr. Garland Hall treated Mr. Borden for a tetanus infection and encephalitis in 1966 and noted that he had always had some difficulty in talking and was somewhat retarded. (C. 000099; R. 936, 956).

"In light of these consistent findings of Mr. Borden's mental retardation over the past thirty years, and the stipulation of the parties, this Court finds that Mr. Borden is mentally retarded and that his sentence of death is prohibited by the Eighth and Fourteenth Amendments to the United States Constitution as determined by the United States supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002), and that he must now be sentenced to life without the possibility of parole."

After reviewing the record and the findings of the circuit court, we find that Borden is mentally retarded and therefore that he cannot be sentenced to death. Accordingly, this cause is remanded to the circuit court, with directions to resentence Borden to life imprisonment without the possibility of parole. Due return to be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

Cobb, Baschab, Shaw, and Wise, JJ., concur.