STATE v. IRICK

been angry with the family about being asked to babysit on the night of the murder and said that he had been drinking and using marijuana that day. Mr. Irick maintained his innocence of the crime, however, and suggested that the victim's stepfather was the killer. Despite Mr. Irick's profession of innocence, Dr. Seidner opined that there is "no question" Mr. Irick understood that he had been convicted of the victim's murder and that he had received the death penalty as punishment for that crime.

Dr. Seidner and Mr. Irick also talked for some time about the death penalty and the pendency of Mr. Irick's death. Mr. Irick discussed the politics of the death penalty and his trial and expressed concern regarding the inconsistent application and the rationale for the death penalty. Still, according to Dr. Seidner, Mr. Irick was well aware of the sense of closure that families of victims might experience and of the justice of "a life for a life." They also discussed Mr. Irick's views of death, which he described as "a process of life." According to Dr. Seidner's report, Mr. Irick had adopted the Lakota Native American spiritual tradition before his incarceration. Mr. Irick believes that everything has a purpose and reason relative to the plans and intentions of the Creator. During his incarceration he has developed himself as an artist, and he is gratified by creating and sharing his paintings as gifts. Mr. Irick expressed his belief that everyone is born with a death sentence, and each person makes the most of life within the constraints and opportunities that originate from the Creator. However, Mr. Irick did not believe; in an afterlife and accepted that his life would end with his execution. In Dr. Seidner's words, "He fully understands that if and when he is executed that is the end of his life."

Mr. Irick explained that while he continues to pursue legal avenues, he also is "realistic" and has been contemplating his choice of death by electrocution or lethal injection. According to Dr. Seidner, Mr. Irick was knowledgeable of the facts related to both methods and believed that his choice among the two will likely be his last major life decision.

Dr. Seidner administered an IQ test, which revealed that Mr. Irick was of average intelligence (full scale IQ of 97). While Mr. Irick described some memory deficits, Dr. Seidner did not observe any that were outside the range of age-related memory decline. Dr. Seidner found nothing he would describe as an impairment. According to Dr. Seidner, the personality test results did not reflect that Mr. Irick was malingering but instead were indicative of Mr. Irick's tumultuous and traumatic life. Dr. Seidner opined that Mr. Irick "was not an individual who was hallucinating and having . . . delusory experiences." Dr. Seidner explained that Mr. Irick's relative deficits are in the speed of processing information and stated, "He's pretty deliberate. . . . [H]e's not efficient but he's accurate." Dr. Seidner found relative strengths in Mr. Irick's abstract verbal capacity: "He can put together ideas. He can abstract ideas, see their commonalities and differences and carry on pretty high level abstract discussions." On the basis of his evaluation, Dr. Seidner opined to a reasonable degree of psychological certainty that Mr. Irick is aware of the punishment he is about to suffer, that he understands the reason for that punishment, and that he has a rational understanding of his pending execution.

Dr. Seidner administered the Minnesota Multiphasic Personality Inventory-2.

III. Analysis

A. Standard of Review

On appeal from a trial court's ruling in a competency proceeding, this Court reviews questions of law de novo, affording no presumption of correctness. See Van Tran, 6 S.W.3d at 272; see also Coe v. State, 17 S.W.3d 193, 199 (Tenn. 2000). However, the trial court's finding on the issue of competency is reviewed as a question of fact and presumed correct unless the evidence in the record preponderates against the finding. Van Tran, 6 S.W.3d at 272. At a competency hearing, the prisoner is presumed competent and, to prevail, the prisoner must overcome this presumption by a preponderance of the evidence. Id. at 271. In order to overcome this presumption, the prisoner must offer evidence relating to the prisoner's present incompetency. See id. at 269.

B. Legal Standards of Competency

"The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The Court in Ford did not define insanity, however, instead leaving to each state "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." Id. at 416-17, 106 S.Ct. 2595 (plurality opinion). In a concurring opinion in Ford, Justice Powell declared that the Eighth Amendment "forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." Id. at 422, 106 S.Ct. 2595 (Powell, J., concurring). Justice Powell's concurring opinion in Ford constituted the narrowest grounds for the Court's judgment. See Coe, 17 S.W.3d at 209 (citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). As a result, many states and many lower federal courts adopted and applied Justice Powell's formulation of the standard of competence to be executed. Likewise, in 1999, this Court adopted the standard enunciated by Justice Powell and held that "under Tennessee law a prisoner is not competent to be executed if the prisoner lacks the mental capacity to understand the fact of the impending execution and the reason for it." Van Tran, 6 S.W.3d at 266; accord Coe, 17 S.W.3d at 219.

This prohibition on executing incompetent prisoners has its genesis in the common law and was recognized in Tennessee in Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 328 (1911), and even earlier in Bonds v. State, 8 Tenn. (Mart. Yer.) 142, 143-44 (1827). See Van Tran, 6 S.W.3d at 262, 265.

In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), the United States Supreme Court had an opportunity to revisit the issue of the standard for competence to be executed. Scott Panetti, who had killed his estranged wife's parents in front of his wife and their daughter, had a lengthy history of mental illness. Id. at 935-36, 127 S.Ct. 2842. He filed a petition in state court arguing that he was not competent to be executed. Id. at 938, 127 S.Ct. 2842. His attorneys produced expert proof that, while Mr. Panetti understood that he would be executed and claimed to understand that the state wanted to execute him for the murders he committed, his mental illness had resulted in a delusion causing him to believe that the stated reason for his execution was a sham, and that the state actually intended to kill him to stop his preaching. Id. at 954-55, 127 S.Ct. 2842. The state courts denied his claim, and he sought federal habeas corpus relief. The federal district court and the United States Court of Appeals for the Fifth Circuit denied relief, explaining that a prisoner is competent to be executed so long as the prisoner knows the fact of his impending execution and the factual predicate for the execution. Id. at 941-42, 127 S.Ct. 2842.

The United States Supreme Court summarized the expert proof in Panetti as follows:

Four expert witnesses testified on petitioner's behalf in the District Court proceedings. One explained that petitioner's mental problems are indicative of "schizo-affective disorder," resulting in a "genuine delusion" involving his understanding of the reason for his execution. According to the expert, this delusion has recast petitioner's execution as "part of spiritual warfare . . . between the demons and the forces of the darkness and God and the angels and the forces of light." As a result, the expert explained, although petitioner claims to understand "that the state is saying that [it wishes] to execute him for [his] murder[s]," he believes in earnest that the stated reason is a "sham" and the State in truth wants to execute him "to stop him from preaching." Petitioner's other expert witnesses reached similar conclusions concerning the strength and sincerity of this "fixed delusion."

551 U.S. at 954-55 [ 127 S.Ct. 2842] (internal citations omitted).

The United States Supreme Court granted review and considered, as relevant to this appeal, the following question: "whether the Eighth Amendment permits the execution of a prisoner whose mental illness deprives him of `the mental capacity to understand that [he] is being executed as a punishment for a crime.'" Id. at 954, 127 S.Ct. 2842. In discussing this issue, the Court explained that the four-justice plurality in Ford "discussed the substantive standard at a high level of generality; and Justice Powell wrote only for himself when he articulated more specific criteria." Panetti, 551 U.S. at 957, 127 S.Ct. 2842. While the Court in Panetti again declined "to set down a rule governing all competency determinations," id. at 960-61, 127 S.Ct. 2842, the Court rejected the approach applied by the lower courts which treated a prisoner's delusional belief system as irrelevant so long as the prisoner also knows that the State has identified his crimes as the reason for his execution. Id. at 958, 127 S.Ct. 2842. The Court emphasized that, "[w]hether Ford's inquiry into competency is formulated as a question of the prisoner's ability to `comprehen[d] the reasons' for his punishment or as a determination into whether he is `unaware of . . . why [he is] to suffer it,'" id. at 959, 127 S.Ct. 2842, the Ford opinions "nowhere indicate that delusions are irrelevant to `comprehen[sion]' or `aware[ness]' if they so impair the prisoner's concept of reality that he cannot reach a rational understanding of the reason for the execution," id. at 958, 127 S.Ct. 2842. The Court further explained that "[a] prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." Id. at 959, 127 S.Ct. 2842.

The Court conceded that "a concept like rational understanding is difficult to define." Id. In attempting to clarify the concept, the Panetti Court stated:

[W]e must not ignore the concern that some prisoners, whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered "normal," or even "rational," in a layperson's understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner's is not a misanthropic personality or an amoral character. It is a psychotic disorder.

Id. at 959-960, 127 S.Ct. 2842.

The Court also emphasized that the goal of retribution is served only if the prisoner is able to recognize "the severity of the offense and the objective of community vindication." Id. at 958, 127 S.Ct. 2842. This goal is undercut, the Panetti Court explained, when the prisoner suffers from a form of mental illness that distorts his or her mental state to the point that the prisoner's "awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." Id. at 958-59, 127 S.Ct. 2842. The Court emphasized that "[g]ross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose." Id. at 960, 127 S.Ct. 2842. The Court concluded that it is "error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted." Id.

The astute trial judge in this case correctly recognized that the competency standard adopted in Van Tran and applied in Coe must be construed and applied consistently with the foregoing principles enunciated in Panetti. The State's contention in this Court that Panetti is inapplicable and does not affect the standard announced in Van Tran is without merit. As Mr. Irick points out in his reply brief, the United States Supreme Court defines the parameters of the Eighth Amendment, and we are bound by Panetti, the Court's latest pronouncement on the standard of competence for execution. Any portions of Van Tran or Coe that can be read as inconsistent with Panetti are hereby renounced as obsolete.

We note that the United States Court of Appeals for the Sixth Circuit has held that this Court unreasonably applied Ford in Thompson v. State, 134 S.W.3d 168 (Tenn. 2004). when determining whether the prisoner had made an initial threshold showing. See Thompson v. Bell, 580 F.3d 423, 435-36 (6th Cir. 2009) (holding that while the Tennessee Supreme Court properly identified the standard for determining competency when it stated Ford's rule that a prisoner must be able to understand the fact of the impending execution and the reason for it, it unreasonably applied Ford when it determined that Thompson's "severe delusions" were "irrelevant" to the competency analysis). To the extent our decision in Thompson can be read as inconsistent with Panetti, it is hereby overruled.

In our view, Panetti teaches that the test for competence to be executed requires a prisoner to have "a rational understanding of his conviction, his impending execution, and the relationship between the two." Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss. 2009). See also Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498, at *31 (W.D.Tex. Mar. 26, 2008) (opinion after remand from the United States Supreme Court). Stated differently, under Panetti, execution is not forbidden so long as the evidence shows that the prisoner does not question the reality of the crime or the reality of his punishment by the State for the crime committed. See Overstreet v. State, 877 N.E.2d 144, 174 (Ind. 2007). The Court's decision in Panetti also emphasizes that a prisoner seeking to establish incompetency may not be foreclosed from offering proof to show that a mental illness obstructs his rational understanding of his conviction, his impending execution, and the relationship between the two.

As previously explained, the trial court in this case correctly identified and applied the governing legal principles announced in Panetti and Van Tran. Therefore, we must now consider whether the evidence preponderates against the trial court's finding that Mr. Irick is presently competent to be executed.

C. Preponderance of the Evidence

We need not again recite in detail the proof offered at the hearing. In summary, the proof showed that Mr. Irick is familiar with the history and status of the litigation challenging his convictions and sentences. Although he professes his innocence, Mr. Irick understands that he has been convicted of murdering the victim, a seven-year-old girl, and that he is scheduled to be executed for this crime on December 7, 2010. Mr. Irick knows the victim's name and understands his relationship to the victim and her family. The experts agreed that Mr. Irick does not currently manifest, any symptoms of formal thought disorder, hallucinations, or delusions. Mr. Irick's last alleged psychotic episodes were reported to have occurred in 1985, near the time of the murder. Mr. Irick has not been treated for mental illness during his incarceration, and Mr. Irick has not been prescribed anti-psychotic drugs since adolescence. While he intends to "fight to the end," Mr. Irick also understands that he has almost exhausted his legal avenues for relief. As a result, Mr. Irick is contemplating which method of execution to choose and believes that this choice will be the last major decision of his life. Mr. Irick recognizes that his execution will end his life. In short, the evidence in the record fully supports and does not preponderate against the trial court's finding that Mr. Irick is presently competent to be executed.

Mr. Irick argues that he is incompetent to be executed because his insanity at the time of the offense, the associated memory loss of those events, and his emotional and social functioning at the level of a seven-to-nine-year-old child prevent him from rationally understanding the events occurring during the criminal episode and therefore the reason for his execution. He argues that where a prisoner has no memory of the events surrounding the murder and believes that he is innocent and falsely accused, it is impossible for the prisoner to have a rational understanding of his execution. These arguments are without merit.

Mr. Irick's profession of innocence and suggestion that the victim's step-father committed the crime are in no way inconsistent with a rational understanding of the crime, the impending execution, and the causal connection between the two. Indeed, these actions may be viewed as showing that Mr. Irick has a rational understanding that he stands convicted of the victim's murder and will be punished for that crime unless his innocence is established, perhaps by identifying the victim's step-father as the perpetrator. Mr. Irick's statements suggest that he understands the reality of the crime and the reality that he will be punished by the State for the crime.

Additionally, Mr. Irick's argument that he is incompetent because he has no memory of the circumstances of the crime is without merit. Dr. Seidner testified that Mr. Irick's memory deficits are "well within the range of age-related memory decline." Dr. Seidner explained that Mr. Irick "describes experiences that sound like he's got a history of some dissociative experiences." Dr. Seidner stated, "I considered that, but there's — there's no impairment of memory that I could find based on this testing, but it [memory] is a relative weakness, compared to the strengths of [Mr. Irick's] abstract capacities."

To the extent Mr. Irick is arguing that he has never had any recollection of the circumstances surrounding the crime, this argument is not consistent with the factual record developed during the litigation, in which Mr. Irick has challenged his convictions and sentences. As previously stated, after his arrest, Mr. Irick gave a statement to the police, in which he admitted killing the victim. Irick, 762 S.W.2d at 126. Mr. Irick "was responsive to questions asked of him," and "[h]e made a number of changes on his written statement before signing it." Id. While Mr. Irick "was upset and emotional, . . . he was coherent at all times." Id. Additionally, in state post-conviction proceedings, Mr. Irick testified about the events that occurred on the evening of the murder, although he professed his innocence.

The Court of Criminal Appeals described the proof as follows:

In describing his recollection of the events occurring on the day of the murder, [Mr. Irick] stated that when he had arrived at the victim's house, he had gone "out back" to drink beer and had smoked marijuana with a friend. He testified that [the victim's mother] went to work[;] [the victim's step-father] left shortly thereafter[;] and he remained at the house alone with the . . . children. He put the children to bed and laid on the couch to watch television. Sometime during the evening, the victim came to the living room and told him that she was sick. [Mr. Irick] told her to "go back and lay down in daddy's bedroom" because that would be the first place where [the victim's mother] would find her.

Later, [Mr. Irick] observed that the dog had come in. He stated that he had wondered how the dog had gotten in and that he had gone to the back door, noticing that something was not right because the back door was "wide open." He shut the back door and when he passed beside the room in which the victim was lying down, he stated that he observed the victim was not breathing because she always snored. He then called [the victim's step-father] and attempted to conduct CPR on the victim.

Irick v. State, 973 S.W.2d 643, 647 (Tenn. Crim.App. 1998).

Mr. Irick maintains that his present memory loss indicates that he committed the crime during a psychotic episode. However, the focus of this proceeding is upon Mr. Irick's present competence to be executed. As previously stated, Mr. Irick has questioned neither the reality of the crime nor the reality of his punishment by the State for the crime. During his interview with the State's expert, conducted shortly before the competency hearing, Mr. Irick identified what he views as substantive errors made in his case and problems and political and societal issues with the application of the death penalty in general. Mr. Irick recalled the victim, his relationship to her and to her family, his anger at being asked to babysit on the night of the crime, and his abuse of alcohol and marijuana on the day of the crime. Mr. Irick explained that because he is "realistic" about his legal options, he had begun considering whether to choose electrocution or lethal injection as the method of execution. Whatever his mental state may have been at the time of commission of this crime, the evidence in this record clearly establishes that Mr. Irick now rationally understands that he has been convicted of murdering the victim and that he is scheduled to be executed by the State for this crime on December 7, 2010.

As his final issue, Mr. Irick argues that the trial court improperly foreclosed inquiry into his lack of a rational understanding of the reasons for his execution. This issue is without merit. The trial court allowed Mr. Irick's attorneys a great deal of leeway to inquire into Mr. Irick's history of psychological and behavioral problems and to question the witnesses concerning Mr. Irick's competence for execution, The trial court sustained the State's objection when Mr. Irick's counsel attempted to question the State's expert about Mr. Irick's mental state at the time of the offense. This ruling was entirely appropriate, as the State's expert did not attempt to determine Mr. Irick's mental state at the time of the offense. Significantly, however, when Mr. Irick's counsel rephrased the question to inquire into Mr. Irick's current rational understanding of his impending execution and the reason for it, the trial court allowed the question; and the State's expert provided a lengthy answer to the question. The record simply belies the assertion that the trial court precluded Mr. Irick from inquiring into whether he has a rational understanding of the reasons for his execution.

D. Execution of the Severely Mentally Ill

Relying on Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that execution of the mentally retarded violates the Eighth Amendment, and Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that the Eighth Amendment prevents the execution of juveniles, Mr. Irick argues that the rationale of these decisions supports adoption of a rule barring the execution of death-sentenced inmates who suffer from severe mental illnesses. The rule Mr. Irick seeks would apply to prevent the execution of prisoners who are severely mentally ill but unable to establish incompetency to be executed under the standards announced in Panetti, Ford, and Van Tran. In arguing that such a rule would prevent his execution, Mr. Irick relies upon Dr. Brown's findings that he has the functional capacity of a seven-to-nine-year-old child and that he has diminished capacity to understand and to process information, to communicate, to abstract and to learn from mistakes, to engage in logical reasoning, to control his impulses, and to understand the reaction of others.

The State responds that Mr. Irick's reliance on Atkins and Roper is misplaced because Mr. Irick is neither mentally retarded nor underage. Additionally, the State says that the time for asking this Court to adopt a new constitutional rule has long passed.

We agree with the State that the present appeal from the trial court's judgment finding Mr. Irick competent to be executed is not the proper proceeding in which to ask this Court to adopt a new constitutional rule barring execution of persons who suffer from severe mental illnesses but who are otherwise competent under the standards adopted in Panetti, Ford, and Van Tran. "A competency proceeding is sui generis; it is not a trial." Coe, 17 S.W.3d at 214. The "only issue in a competency proceeding is the prisoner's mental state." Id. at 215. The Court in Coe "emphasize[d] that the only relevant constitutional concern at a competency-to-be-executed hearing is the right to have the substantive Eighth Amendment claim determined in a manner that comports with procedural due process." Id. at 211.

Notwithstanding the issues of timeliness and procedural propriety, we note that, while Mr. Irick has cited dissenting and concurring opinions in support of his argument, he has not cited, and research has not revealed, any majority court decision adopting a per se ban on the execution of severely mentally ill prisoners who are nonetheless competent to be executed. Furthermore, Connecticut appears to be the only state that has adopted a statute barring the execution of offenders who, at the time of the offense, had a "significantly impaired . . . ability to conform [their] conduct to the requirements of law." Conn. Gen. Stat. Ann. 53a-46a(h). One commentator who advocates for a rule barring the execution of the mentally ill has stated that "the categorical approach invoked by the Court in both Atkins and Roper would not be appropriate in the context of severe mental illness. Because mental illness varies considerably in its effects on those who experience it, a categorical exemption is not warranted."

A bill exempting defendants who were identified as having serious mental illness from the death penalty was introduced in the Indiana legislature in 2009 but was not enacted. See S.B. 22, 2009 Gen. Assemb., Reg. Sess. (Ind. 2009).

Bruce J. Winick, The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50 B.C. L. Rev. 785, 789 n. 36 (2009). Professor Winick also points out that the American Bar Association, the American Psychiatric Association, the American Psychological Association, the National Alliance for the Mentally Ill, and the National Mental Health Association have adopted policy statements recommending a non-categorical, case-by-case determination of whether the severity of a defendant's mental illness at the time of the crime should bar the prosecution from seeking the death penalty. Id. at 789-90. "These five professional organizations recommend that the states adopt legislation exempting offenders from the death penalty if at the time of the offense, their mental illness `significantly impaired their capacity (1) to appreciate the nature, consequences, or wrongfulness of their conduct; (2) to exercise rational judgment in relation to the conduct; or (3) to conform their conduct to the requirements of law.'" Id. at 818 (quoting ABA Task Force on Mental Disability and the Death Penalty, Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, 30 Mental Physical Disability L. Rep. 668, 670 (2006)).

IV. Conclusion

Having reviewed de novo the trial court's legal conclusions, we hold that the trial court applied the correct legal standards in determining the appellant's competence for execution. Additionally, after carefully and thoroughly reviewing the record on appeal, we conclude that the evidence fully supports and does not preponderate against the trial court's factual finding that the appellant is presently competent to be executed. Accordingly, the judgment of the trial court is affirmed.

This opinion is not subject to rehearing under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as final and immediately issue the mandate. As provided by this Court's order of July 19, 2010, the Warden of the Riverbend Maximum Security Institution, or his designee, shall execute the sentence of death as provided by law at 10:00 p.m. on the 7th day of December, 2010, or as soon as possible thereafter within the following twenty-four hours, unless otherwise ordered by this Court or other appropriate authority. Counsel for Mr. Irick shall provide a copy of any order staying execution of this order to the Office of the Clerk of the Appellate Court in Nashville. The Clerk shall expeditiously furnish a copy of any order of stay to the Warden of the Riverbend Maximum Security Institution.