State of Tennessee v. Urshawn Eric Miller, No. W2019-00197-SC-DDT-DD (June 3, 2021).

Attorney Contributor: Anna Swift

Journal Member: Elizabeth Ciabattone

Majority 

For only its 47th time since the 1980s, Tennessee has upheld the death penalty for one of its prisoners.[1] The defendant? Urshawn Eric Miller, a twenty-six-year-old African-American male diagnosed with various mental disorders and the youngest inmate to be on death row.[2] The victim? A market store clerk attendant.[3] The crime? A burglary resulting in the first-degree murder of the clerk and a subsequent hostile encounter with the police.[4]

Minds may differ as to whether this particular defendant’s crimes would be deserving of the highest form of punishment available in our country, and this issue was directly debated by the dissent.[5] Less debated, however, was the impact of Mr. Miller’s mental illness as a mitigating factor for the death penalty, likely due to the standard of review applied in capital cases and deference given to jury findings.[6] As noted below, the death penalty is a serious matter that should, and does, receive serious treatment. Because the death penalty should be analyzed to the best and fullest extent possible, this case comment argues that Social Security Administration (“SSA”) rules and regulations on mental disorders – while not binding – do offer persuasive value to those seeking the death penalty, those defending death row inmates, and those reviewing death penalty sentences.

To this end, this comment first summarizes the case of State v. Miller, 638 S.W.3d 136 (Tenn. 2021), giving special attention to Mr. Miller’s mental health history. Next, the gravity of the death penalty is briefly established before highlighting the role of mental illness in Tennessee’s death penalty jurisprudence. Finally, this article sets forth relevant SSA rules and regulations that can be utilized for comparative purposes and considered in determining potentially unsettled questions of Tennessee death penalty jurisprudence.

Case Overview

Facts and Procedural History

On November 25, 2015, Mr. Miller went into the Bull Market store in Jackson, Tennessee, dressed in black clothing, gray gloves, and a white face covering.[7] Inside the store, he proceeded to point a gun at the clerk, Ahmad Dhalai, and instructed him to “[d]rop that sh*t off or I’m a shoot you dead in the head.”[8] Mr. Miller then looked briefly in the direction of another employee, Lawrence Austin, before turning back to the clerk and again stating, “Drop that sh*t off.”[9] Mr. Miller proceeded to fire his first shot, barely missing the clerk’s head.[10] The clerk responded by slowly turning to walk away, and Mr. Miller again said, “Drop that sh*t off. Quit playing.”[11]

At that point, Mr. Miller used his weapon to shoot the clerk in the back of the head and to fire a shot in the direction of the other employee before jumping over the counter.[12] Mr. Miller banged on the cash register with his elbow and, having no success, jumped back over the counter to flee the store.[13] Moments later, the clerk passed away.[14] This entire encounter was captured by the store’s surveillance camera system.[15]

Once Mr. Miller left the premises, another employee, who was also the victim’s cousin, Abdul Saleh, attempted to render aid to the victim before calling 9-1-1.[16] Also calling 9-1-1 was Timothy Sinclair, Sr., a regular customer who was loading his car with purchases when he saw Mr. Miller enter, and then leave the store, with a gun in his hand, and he additionally heard the gunshots.[17] The victim’s cousin’s son, Foad, additionally saw Mr. Miller leave the store while riding a bicycle in the parking lot; Foad gave a description of Mr. Miller to the police as well as the direction of his escape.[18]

K-9 Officer Jeremy Stines and his dog, Pax, were deployed to apprehend Mr. Miller and followed him to a wooded area near Lions’ Field at Lambuth University, where he had taken refuge.[19] The police repeatedly instructed Mr. Miller to come out of the woods, but he resisted; Mr. Miller instead yelled back expletives and threats, including that he was going to take one of them down with him.[20] Pax was released in an attempt to force Mr. Miller out of the woods, and Pax bit him on the shoulder, at which point they both tumbled to the ground.[21] Because Mr. Miller refused to release his hands from Pax’s throat, Officer Stines hit Mr. Miller in the head with a gun.[22] Ultimately, he was subdued by a taser from another officer.[23]

Mr. Miller was thereafter handcuffed and taken to the hospital for treatment of his dog bite before being transported to jail.[24] The officers who remained behind at the scene searched the wooded area and recovered various items.[25] These items included the following: a black jacket with a hood, black pants, and a belt, all of which were found to have Mr. Miller’s DNA as a major contributor on them; a portion of a white t-shirt that had a blood stain matching that of Mr. Miller on it; gray gloves that were found to have gunshot residue on them; a cell phone; a .38 caliber revolver that was determined to have fired three spent casings; and keys that were later found to unlock Mr. Miller’s house and the trunk of a car registered to him.[26] Also collected were three projectiles and bullet fragments from inside of the market and a portion of a torn white t-shirt from Mr. Miller’s bedroom that matched the t-shirt found in the woods.[27]

The defendant, Urshawn Eric Miller, was charged with numerous counts, including first-degree murder, first-degree murder in perpetration of attempted especially aggravated robbery, attempted especially aggravated robbery, attempted first-degree murder, aggravated assault, employing a firearm in the attempt to commit a dangerous felony, being a convicted felon in possession of a handgun, resisting arrest, and evading arrest.[28] Mr. Miller’s trial commenced on February 26, 2018.[29]

At trial, multiple witnesses testified regarding the events of November 25, 2015, including employee Austin, the victim’s cousin and his son, customer Sinclair, police, investigators, and Tennesese Bureau of Investigation (“TBI”) special agents.[30] Mr. Miller moved for a judgment of acquittal at the close of the State’s proof, but the trial court denied this motion, although the court did reduce the attempted first-degree murder of employee Austin count to attempted second-degree murder on the grounds of the State not sufficiently establishing premeditation.[31] Mr. Miller elected not to testify and did not present any evidence at trial.[32]

The jury convicted Mr. Miller of first-degree premeditated murder, first-degree felony murder, and attempted especially aggravated robbery of the clerk; attempted second-degree murder and aggravated assault of employee Austin; employment of a firearm during the commission of a dangerous felony; evading arrest; and resisting arrest.[33] The State moved to dismiss the felon in possession of a firearm offense, which the trial court granted.[34]

Following conviction, the penalty phase ensued and the State advised the jury of its intent to seek the death penalty based on the (i)(2) (prior violent felony) and (i)(7) (felony murder) statutory aggravating circumstances from T.C.A. §39-13-204(i).[35] Averring that the jury had already found the (i)(7) aggravating circumstance by virtue of the felony murder conviction, the State presented proof of a certified copy of a judgment of conviction for aggravated robbery occurring in Madison County, Tennessee, on September 26, 2008, and a written statement from Mr. Miller admitting to his participation in that robbery.[36] An employee of the convenience store, Alison Deaton, testified to witnessing Mr. Miller enter the store with two other armed men who had face coverings.[37] One of the men demanded that she give him all of the money or she would be shot in the face, and she complied.[38] A video recording showed the three men enter the store with guns pointed at her, jump over the counter, and collect cash from the register.[39] For this crime, Mr. Miller received an eight-year sentence.[40] In addition to all of this evidence, victim impact testimony was also presented to the capital sentencing hearing jury.[41]

For his mitigation proof, Mr. Miller presented the testimony of two psychologists, that of Dr. James Walker, a psychologist board certified in both neuropsychology and forensic psychology, and that of Dr. Keith Caruso, who is board certified in general and forensic psychiatry.[42] Dr. Walker met with Mr. Miller in jail and administered a comprehensive battery of psychological tests as well as reviewed his educational, employment, and social histories, to include family member interviews.[43] According to these records, his mother smoked marijuana heavily while she was pregnant with him.[44] He was initially abandoned by his father, and his mother underwent a succession of abusive boyfriends and husbands thereafter.[45] One of these father figures tortured him by instructing him to pour alcohol on his penis.[46] In addition, his mother often referred to him as “dumb” or “stupid,” and he was often in the care of his grandmother, who was an alcoholic and also mistreated him.[47]

Mr. Miller’s intelligence quotient (“IQ”) was scored at 78 at age eight, and 85 at age twelve.[48] In January 2017, when tested by Dr. Walker, Mr. Miller’s IQ was scored at 86 – indicating that he functioned somewhere around the 18th percentile as compared to the average person.[49] He scored very poorly on several other of Dr. Walker’s tests, including those involving memory and ability to focus.[50] Mr. Miller dropped out of school in the 10th grade and had a limited employment history that consisted of a brief stint in a warehouse and as a fast-food cook.[51]

Additionally, Mr. Miller was shot in the back as a teenager and spent several years in prison.[52] He smoked excessive amounts of marijuana for many years, and a number of his family members also had problems with chronic substance abuse, while some are also incarcerated for committing violent crimes.[53] Based on this genetic background, Dr. Walker opined that Mr. Miller was predisposed to becoming involved in these kinds of problems.[54] Dr. Walker diagnosed Mr. Miller with cognitive disorders, cannabis use disorder, post-traumatic stress disorder (“PTSD”), and antisocial personality disorder.[55]

Additionally, Dr. Caruso also interviewed Mr. Miller, conducted a joint interview with his mother, and interviewed two of his aunts, in addition to reviewing various materials, to include police records, mental health records, legal records, photographs and videos, medical records, psychological reports, and mitigation memoranda.[56] Dr. Caruso placed significance on Mr. Miller’s unstable childhood, abuse, and neglect, also noting that he had attention-deficit hyperactivity disorder (“ADHD”) as a child.[57] Dr. Caruso agreed that Mr. Miller had a genetic predisposition to antisocial personality disorder and substance abuse disorder and “fit” the diagnosis for PTSD.[58] However, Dr. Caruso also admitted that Mr. Miller appreciated the wrongfulness of his conduct and agreed that he developed a plan to rob the market as well as made the choice to kill someone.[59]

For its rebuttal, the State called Dr. Kimberly Brown, a forensic psychologist who serves as an associate professor of clinical psychiatry and director of Vanderbilt University Medical Center’s forensic evaluation team.[60] Dr. Brown interviewed Mr. Miller at the jail and conducted a telephone interview of his mother; she also reviewed extensive documents, videos and photographs, and the expert reports of Drs. Walker and Caruso.[61] Dr. Brown noted Mr. Miller’s disadvantaged childhood, including his abuse and neglect at the hands of his mother and father figures, in addition to his significant family history of substance abuse; she also acknowledged a connection between marijuana exposure in the womb and ADHD and low IQ in a child.[62] She agreed that Mr. Miller had antisocial personality disorder, cannabis use disorder, and history of ADHD; she disagreed, however, that he had borderline intellectual functioning on account of his IQ of 86 and instead considered him to be “low average.”[63] She also disagreed that he met the medical criteria for PTSD, even in spite of his exposure to several significant traumas.[64]

Finding that the State had proven its two aggravating circumstances beyond a reasonable doubt, and that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death on Mr. Miller for his first-degree premeditated murder and first-degree felony murder convictions.[65]The trial court merged Count 2 (felony murder) into Count 1 (premeditated murder), and subsequently imposed an effective sentence of 30 years for the remaining convictions, concurrent with the death sentence.[66] Upon appeal, the Tennessee Court of Criminal Appeals affirmed these convictions and sentences but vacated the application of the (i)(7) aggravating circumstance to the felony murder conviction, remanding the case to the trial court to correct a clerical error in the judgment for Count 8, Resisting Arrest.[67]

Appellate Issues and Relevant Holdings

At the Tennessee Supreme Court level, the State and Mr. Miller argued multiple issues on appeal, including issues related to jury selection, sufficiency of the evidence, admissibility of the prior robbery video recording, and the constitutionality of the death penalty and lethal injection.[68] The state supreme court reaffirmed its prior upholding of the constitutionality of the death penalty, and conducted its statutorily required death penalty review per T.C.A. §39-13-206.[69] This review involved the following considerations: (1) whether the death sentence was imposed in an arbitrary fashion; (2) whether the evidence supports the jury’s findings of statutory aggravating circumstances; (3) whether the evidence supports the jury’s finding that the aggravating circumstances outweighed any mitigating circumstances; and (4) whether the death sentence was excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant – all per T.C.A. §39-13-206(c)(1)(A)-(D).[70]

The state supreme court answered each of the above four inquiries in the affirmative.[71] In describing inquiry (3), the high court noted that the trial court instructed the jury regarding the State’s burden to establish any aggravating circumstances beyond a reasonable doubt and to further establish that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.[72] Specifically, the trial court instructed as follows:

Tennessee law provides that in arriving at the punishment, the jury shall consider as previously indicated any mitigating circumstances raised by the evidence which shall — which shall include, but are not limited to, the following: 1. There are choices other than sentence of death. . . . 6. Mr. Miller suffers from mental disorders due to circumstances beyond his control, including genetics, abuse, neglect, trauma, and other upbringing and environmental factors. 7. Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing. That is, you shall consider any aspect of the Defendant’s character or record or any aspect of the circumstances of the offense favorable to the Defendant, which is supported by the evidence. The Defendant does not have the burden of proving a mitigating circumstance. There is no requirement of jury unanimity to any particular mitigating circumstance or that you agree on the same mitigating circumstance.[73]

In analyzing this issue, the Tennessee Supreme Court stated that “it was within the jury’s purview to conclude that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt” and then simply held that the record supports the jury’s conclusion.[74]

For inquiry (4), the Tennessee Supreme Court cited State v. Bland, 958 S.W.2d 651, 668 (Tenn. 1997), and explained that a death sentence is disproportionate when the case is “plainly lacking in circumstances consistent with those cases where the death penalty has been imposed.”[75] To address this inquiry, the Court examines the facts and circumstances of the crime, the characteristics of the defendant, and the aggravating and mitigating circumstances involved.[76] Several factors are considered surrounding the defendant, to include the individual’s (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.[77]

In the case at bar, Mr. Miller was described as a twenty-six-year-old African-American male who shot the victim in the head and acted with premeditation.[78] The state supreme court noted that there was no provocation or justification for the shooting, and the killing was committed in the course of Mr. Miller’s attempt to commit a robbery.[79] Mr. Miller presented proof of a troubled childhood and diagnoses of various mental health conditions, but none of the witnesses opined that he was incompetent to stand trial or lacked ability to express remorse or take responsibility for his actions.[80]He had a prior conviction for a similar aggravated robbery, and the jury found this conviction to support the (i)(2) finding of an aggravating circumstance.[81]

The state supreme court held, under its proportionality review, that Mr. Miller’s sentence of death was not an “aberrant death sentence” and was not “plainly lacking in circumstances” consistent with those cases in which the death penalty was imposed.[82] The high court ultimately upheld the death sentence, affirmed the convictions, and reversed the portion of the judgment of the Court of Criminal Appeals that vacated the application of the (i)(7) felony murder aggravating circumstance to the felony murder conviction.[83]

In a dissent authored by Justice Sharon Lee, the dissent disagreed with the imposition of the death penalty and argued that the penalty is intended for “the worst of the bad”, and a comparative proportionality review does not favor the death penalty in Mr. Miller’s case – whether compared only to similar capital cases or all similar first-degree murder cases.[84] Mr. Miller’s background is further described in this dissenting opinion as follows:

Growing up in an unstable family, Mr. Miller experienced a difficult childhood with a family history of substance abuse and criminal conduct.[85] He moved eight times before age 10; and at 17, he was shot in the back during an attempted robbery.[86] At age 18, he was the victim of an armed robbery.[87] Mr. Miller was twenty-six years old when he committed the crimes at issue.[88] He was noted to be worse off in his childhood and mental illness than one of the defendants in a comparable case.[89]

The above constitutes the entirety of the legal analysis on Mr. Miller’s mental health history and background from the decision of State v. Miller.

Death Penalty: A Serious Matter Deserving of All Considerations

One may debate the merits of a death penalty system, but this form of punishment is no joking matter. Reserved as the most severe and irreversible form of punishment available to the State,[90] the death penalty is authorized in only twenty-seven states.[91] Tennessee, through its General Assembly, adopted a “guided discretion capital sentencing scheme” in 1977 in response in part to the United States Supreme Court decision of Gregg v. Georgia, 428 U.S. 153 (1976).[92] As stated in Gregg, “[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”[93]

The seriousness of the death penalty is also reflected in various other factors, not the least of which is that the State of Tennessee has seemingly been experiencing a sharp decline in the frequency of capital cases over the past twenty years (despite the number of homicides in the state remaining relatively consistent), which may reflect an “evolving standard of decency away from capital punishment.”[94] Tennessee, in fact, not only mandates a statutorily required review of death penalty sentences by its Supreme Court,[95] but also requires three standard tiers of review before an execution date can be set for a death row inmate.[96] According to Tennessee Supreme Court Rule 12.4, a death row inmate must pursue at least one unsuccessful challenge to the prisoner’s conviction and sentence through direct appeal, state post-conviction, and federal habeas corpus proceedings before the state attorney general can file a motion for an execution date.

In treating death penalty cases as a unique form of punishment warranting additional procedural safeguards, Tennessee has further recognized the significance of mental disease by outright exempting the intellectually disabled from the death penalty, adopting this statute even before the United States Supreme Court afforded the same concession in Atkins v. Virginia, 536 U.S. 304 (2002).[97] Indeed, Tennessee scholars have long recognized that “adverse childhood experiences and severe mental illness can profoundly affect cognition, judgment, impulse control, mood and decision-making”.[98] Given the gravity with which death penalty cases are treated, it stands to reason that full consideration for the mentally ill – even through consideration of non-binding comparative areas of law, such as that of the SSA – is not without merit.

Role of Mental Illness in Tennessee Death Penalty Jurisprudence

As discussed in State v. Miller above, a defendant’s mental illness serves – at a minimum – as a mitigating factor for the death penalty.[99] Specifically, T.C.A. section 39-13-204(j)(8) (West through 2022 Legis. Sess.) recognizes mental illness as a mitigating factor through the following statutory language:

The capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication, which was insufficient to establish a defense to the crime but which substantially affected the defendant’s judgment.[100]

Under the capital sentencing scheme devised by the Tennessee General Assembly, if a mentally ill defendant’s aggravating factor(s) does not outweigh the mitigating factor of mental illness beyond a reasonable doubt, then a death sentence is not an appropriate form of punishment.[101] Therefore, for those cases in which a defendant’s mental illness is not outweighed by the aggravating factor(s) involved, mental illness can serve as a bar to the death penalty.[102]

On the other hand, intellectual disability serves as an outright bar to imposition of a death sentence.[103] T.C.A. section 39-13-203 (West through 2022 Legis. Sess.) directly exempts the intellectually disabled from the death penalty, defining “intellectual disability” to mean: (1) significantly subaverage general intellectual functioning; (2) deficits in adaptive behavior; and (3) intellectual disability that manifested during the developmental period, or by eighteen years of age.

According to Tennessee case law, a defendant must prove significantly subaverage general intellectual functioning along with deficits in adaptive behavior, which refers to the inability to adapt to surrounding circumstances and/or 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 safety.[104] The third element requires that the subaverage general intellectual functioning and the adaptive behavior deficits be manifested by age 18.[105]

Additionally and just as importantly, Tennessee case law recognizes a test for competency of execution.[106]Under this test, a defendant must have a rational understanding of the individual’s conviction, the impending execution, and the relationship between the two in order to be competent for execution.[107] Where the evidence shows that the defendant does not question the reality of the crime or the reality of the punishment by the State for the crime committed, execution of the defendant is permissible.[108]

Without question, mental illness plays an important role in Tennessee’s death penalty jurisprudence and may serve as an affirmative defense to conviction, a bar to execution entirely, or a mitigating factor in favor of exemption from the death penalty. Given the critical importance of the death penalty, the differing legal standards involved, and the lingering/unresolved questions around the role of severe mental illness,[109] it would behoove Tennessee death penalty lawmakers to consider and apply, as appropriate, other related standards – including those of the SSA.

Relevant SSA Rules and Regs as Persuasive Guidance

In order to provide greater perspective and insight on which legal exemptions to afford individuals with mental disorders, SSA rules and regulations regarding mental illness can offer a persuasive source of consideration, including in the death penalty arena. Certainly determining whether a claimant, or a person seeking disability benefits from the SSA, is unable to work versus whether that individual should be exempt from the death penalty involves somewhat different inquiries with different aims in end’s sight, but the legal analysis can be comparable, as shown below, when framed appropriately and relevantly.[110] Indeed, various mental disorders cited and involved in successful post-conviction death penalty cases, including anxiety disorder, bipolar disorder, depressive disorder, PTSD, and schizophrenia, are routinely encountered and analyzed by the SSA in disability cases.[111]

To begin, an overview of SSA law on mental disorders is appropriate for providing context and a framework that can be applied, with appropriate adaptation, to the role of mental illness in death penalty cases. Per regulatory code at 20 C.F.R. §§ 404.1505a and 416.905a (Soc. Sec. Admin. 2022) (West), the SSA generally grants disability benefits to claimants with mental and/or physical impairments when those individual or collective impairments have lasted or can be expected to last for at least twelve months (or result in death) and prevent the individual from performing any substantial gainful activity. Mental impairments receive special consideration under social security regulations by way of a special technique that assesses the level of limitation in the four mental functional areas of: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself.[112] A mental impairment is severe, and therefore potentially disabling, when the claimant has more than mild limitation in any of these mental areas.[113] Ultimately, a limited ability to carry out certain mental activities may reduce a claimant’s ability to perform past work and other work to the point of being disabling.[114]

Presumptively, the SSA may assume a claimant is disabled due to mental impairment under certain enumerated situations, referred to as the Listing of Impairments (“Listings”) in Appendix 1 to Subpart P of the regulatory code.[115]Under section 12.00 (Mental Disorders) of the Listings, a claimant may be found disabled based upon various mental health conditions, to include neurocognitive disorders; schizophrenia spectrum and other psychotic disorders; depressive, bipolar, and related disorders; intellectual disorder; anxiety and obsessive-compulsive disorders; somatic symptom and related disorders; personality and impulse-control disorders; autism spectrum disorder; neurodevelopmental disorders; eating disorders; and trauma- and stressor-related disorders.[116] Each such listing requires certain elements to be met, but a common theme running throughout these individual listings is that the claimant have two marked, or one extreme, limitation in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself.[117]

The Listings define the enumerated mental functional areas as follows:

Understanding, remembering, or applying information refers to the abilities to learn, recall, and use information to perform work activities (e.g., using reasoning and judgment to make work-related decisions).[118]

Interacting with others refers to the abilities to relate to and work with supervisors, coworkers, and the public (e.g., keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness).[119]

Concentrating, persisting, or maintaining pace refers to the abilities to focus attention on work activities and stay on a task at a sustained rate (e.g., ignoring or avoiding distractions while working).[120]

Adapting or managing oneself refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work environment (e.g., managing one’s psychologically based symptoms).[121]

Per the Listings, no limitation means the claimant is able to function independently, appropriately, effectively, and on a sustained basis in the mental functional area.[122] Mild limitation means functioning in the area is slightly limited.[123]Moderate limitation means the functioning is only fair.[124] Marked limitation means the functioning is seriously limited.[125] For an extreme limitation, the claimant is unable to function in the area independently, appropriately, effectively, and on a sustained basis.[126] The SSA uses all relevant medical and non-medical evidence in the case file to evaluate the claimant’s mental impairment(s), to include symptoms and signs of each disorder, reported limitations in activity, and any help or support the individual receives that is necessary for functioning.[127]

In particular, the specific listing for intellectual disorder (Listing 12.05) is met when either paragraph A or B of the listing elements is satisfied.[128] Paragraph A requires: (1) significantly subaverage general intellectual functioning evident in the claimant’s cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; (2) significant deficits in adaptive functioning currently manifested by the claimant’s dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and (3) the evidence about the claimant’s current intellectual and adaptive functioning and about the history of the disorder demonstrates or supports the conclusion that the disorder began prior to attainment of age 22.[129]

Furthermore, Paragraph B requires: (1) significantly subaverage general intellectual functioning evidenced by (a) a full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence or (b) a full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; (2) significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (a) Understand, remember, or apply information; (b) Interact with others; (c) Concentrate, persist, or maintain pace; or (d) Adapt or manage oneself; and (3) the evidence about the claimant’s current intellectual and adaptive functioning and about the history of the disorder demonstrates or supports the conclusion that the disorder began prior to attainment of age 22.[130]

In general, these disability rules and regulations show that a claimant’s mental functional abilities are closely considered by the SSA when determining the individual’s ability to function in a work setting in a manner that is adequately productive. Death penalty jurisprudence could consider similar concepts in assessing whether a defendant has the mental capacity to function as a law-abiding member of society. In other words, one might ask how well can the defendant understand, remember, or carry out rules of society? How well can the defendant interact with others in general and respond to them in light of the individual’s mental disorder (e.g., schizophrenia or bipolar disorder)? How well can the defendant concentrate, persist, or maintain pace to stay on task in acting in an orderly manner? And lastly, how well can the defendant adapt to change and manage any emotions during life’s inevitable ups and downs given the disorder at play? If the defendant has all marked and/or extreme limitations in these mental functional areas at the time of the crime, then surely the defendant’s mental illness should be given great weight as a mitigating factor in a death penalty case.

Notwithstanding the proper standard to be applied (e.g., two marked limitations, one extreme limitation in disability cases versus all marked, extreme limitations in death penalty cases, to account for the seriousness of the death penalty), this author would argue that Mr. Miller had a moderate limitation in understanding, remembering, or applying information; at least moderate limitation in social interaction; moderate limitation in concentration, persistence, or pace; and moderate limitation in self-management or adaptation at the time of his crimes, with relation to how well he could function as a law-abiding citizen. Whether or not these limitations arise directly from his mental disorders is debatable, but given his exposure to significant trauma and genetic predispositions,[131] it can be safely assumed that his mental illness played a significant role in his mental functional abilities.

As an initial matter, Mr. Miller has been diagnosed with various mental disorders, to include cognitive disorders, cannabis use disorder, PTSD, antisocial personality disorder, and a history of ADHD, by medical professional(s).[132]Mr. Miller did not testify at trial nor offered defense proof, which narrows the available information about him, but he did offer mitigation proof.[133] Per this proof, he has at least a 9th grade education and past work in labor jobs.[134] IQ testing yielded a score of 86, indicating low average results; and he scored very poorly on several of Dr. Walker’s additional tests involving memory.[135]

Nevertheless, Mr. Miller appeared to understand how to disguise himself during the attempted robbery as a means of avoiding being caught, how to escape to the woods where he could be difficult to capture by police, and how to equip himself with the supplies required for a robbery.[136] He had participated in a store robbery before, albeit with two other individuals.[137] Dr. Caruso determined that Mr. Miller developed the market store robbery plan, made the decision to kill someone, and could appreciate the wrongfulness of his conduct; and none of the witnesses opined that he was incompetent to stand trial or lacked ability to express remorse or take responsibility for his actions.[138] There is no indication of any psychotic symptoms or psychosis on the part of Mr. Miller in the evidence presented.[139] Based on this available information, his limitation in the areas of understanding, remembering, or applying information would appear moderate at most.

As for social interaction, Mr. Miller has displayed violent behavior, on more than one occasion; and he did verbally threaten the police, evading and resisting their arrest to the point of requiring submission by taser, in the case at bar.[140] In fact, he shouted that he would make one of the police officers go down with him and grappled with Pax, the dog of K-9 Officer Stines.[141] Mr. Miller also used aggressive, expletive language when addressing not only the police officers but also the victim.[142] Mr. Miller’s limitation in social interaction could very well be deemed marked, at a minimum.

Certainly, however, any death row inmate convicted of first-degree murder could warrant a marked-extreme limitation in social interaction. And even T.C.A. section 39-11-501(b) (West through 2022 Legis. Sess.) (“Insanity”) recognizes that “‘mental disease or defect’ does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Notwithstanding this recognition, Mr. Miller would appear to have at least a moderate limitation in social interaction given his uncooperative, violent behavior. This author takes note that Mr. Miller did cooperate with two others to rob a convenience store prior to the present robbery attempt.[143]

As for concentration, Mr. Miller’s IQ is 86, low average; and he scored very poorly on several of Dr. Walker’s tests involving the ability to focus.[144] Mr. Miller received some education before dropping out of school, and his employment at a warehouse and as a fast-food cook was described as brief.[145] However, he seemed to concentrate sufficiently in order to plan and attempt his robbery and escape, as well as to rob a store previously.[146] Based on this available information, his limitation in concentration, persistence, or pace would appear moderate at most.

In terms of adapting or managing himself, Mr. Miller appeared to act impulsively in outright shooting the clerk after making a couple of unmet demands and taking what could have been a warning shot and in yelling at the police, shouting that he would take one of them down with him.[147] In fact, the state supreme court noted that there was no provocation or justification for the shooting.[148] However, although not to be celebrated, Mr. Miller did appear to show adaptation ability when he seemed to adapt his robbery plan by fleeing when he realized he could not open the cash register; and he was able to act alone in this instance, in comparison to his last robbery.[149] In the past, Mr. Miller has been able to secure himself a residence and a vehicle, as well as employment.[150] For all intents and purposes, he has appeared to be functioning independently.[151] Based on this available information, his limitation in self-adaptation or management would appear moderate at most.

In specifically considering Listing 12.05 for intellectual disability, cited supra, Mr. Miller does not appear to meet the designated IQ thresholds; to possess at least two marked or one extreme limitation in the four mental functional areas identified; or to exhibit significant adaptive deficits manifested by dependence upon others for personal needs. As stated above, his most recent IQ score was 86,[152] and he does not appear to rely upon others for his personal needs.[153]Therefore, he has not met the threshold requirements for even that listing.

Conclusion 

Theoretically, a nondisabled individual, or someone found capable of working by SSA standards, would not warrant exemption from the death penalty, while a disabled individual could still warrant the death penalty, particularly if the threshold for death penalty situations were to be higher than that required for disability purposes. Be that as it may, the heart of the central inquiry posed in this case comment revolves around the claimant’s/defendant’s mental ability to function in this society given the individual’s mental illness, whether that be in a work environment or in society at large. As recognized by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 306 (2002), individuals with disabilities in the areas of reasoning, judgment, and control of impulses do not act with the same degree of moral culpability that characterizes the most serious adult criminal conduct and therefore are protected from “cruel and unusual punishment” under the Eighth Amendment to the United States Constitution.[154]

When linked to Mr. Miller’s mental disorders, the above mental functional analysis provides greater insight into the role of mental illness in Mr. Miller’s mental functional abilities. For example, the proposed limitations – ranging from moderate-marked – would suggest that his mental abilities were not so abnormal that he should be exempt from the death penalty on account of his disorders. In this case, the defendant’s aggravating factors would outweigh his mental illness as a mitigating factor; and that particular prong of the jury’s findings, as statutorily reviewed by the Tennessee Supreme Court,[155] was both reasonable and supportable.

 

 

[1] See Tenn. Dep’t Corr., Death Row Offenders, TN.gov, https://www.tn.gov.content/tn/correction/statistics-and-information/death-row-facts/death-row-offenders.html (last visited Apr. 4, 2022). See generally Tenn. State Courts, Tennessee Supreme Court Upholds Death Sentence for 2015 Murder of Convenience Store Employee, TNCts.gov (Dec. 7, 2021), https://www.tncourts.gov/press/2021/12/07/tennessee-supreme-court-upholds-death-sentence-2015-murder-convenience-store.

[2] State v. Miller, 638 S.W.3d 136, 167, 178 (Tenn. 2021); see Tenn. Dep’t Corr., supra note i.

[3] Miller, 638 S.W.3d at 144.

[4] Id. at 144-45.

[5] Id. at 169-78 (Lee, J., dissenting and concurring in part).

[6] See Miller, 638 S.W.3d. 136.

[7] Id. at 144.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 144-45.

[18] Id. at 144.

[19] Id. at 145.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 145-46.

[27] Id.

[28] Id. at 144.

[29] Id.

[30] Id. at 144-46.

[31] Id. at 146.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id. at 147.

[42] Id. at 147-48.

[43] Id. at 147.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id. at 147-48.

[57] Id. at 148.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id. at 148-63.

[69] Id. at 163-68 (citing see Keen v. State, 398 S.W.3d 594, 600 n.7 (Tenn. 2012), and Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005)).

[70] Id. at 163.

[71] Id. at 163-68.

[72] Id. at 165.

[73] Id. (emphasis added).

[74] Id. at 166.

[75] Id.

[76] Id. at 166 (citing State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002)).

[77] Id. at 167 (citing State v. Pruitt, 415 S.W.3d 180, 213-14 (Tenn. 2013)).

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id. at 168.

[83] Id. at 169.

[84] Id. at 169, 172, 178 (Lee, J., dissenting and concurring in part).

[85] Id. at 171.

[86] Id.

[87] Id.

[88] Id.

[89] Id. at 175 (citing State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000)).

[90] Id. at 177 (Lee, J., dissenting and concurring in part).

[91] See Death Penalty Info. Ctr., State by State, DeathPenaltyInfo.org, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Apr. 4, 2022).

[92] Bradley MacLean & H. E. Miller Jr., Tennessee’s Death Penalty Lottery, 13 Tenn. J. L. & Pol’y, July 2018, at 85, 99,available at https://trace.tennessee.edu/tjlp/vol13/iss1/4.

[93] 428 U.S. at 189 (citing Furman v. Georgia, 408 U.S. 238 (1972)).

[94] MacLean, supra note xcii, at 131-38.

[95] T.C.A. § 39-13-206 (West through 2022 Legis. Sess.).

[96] T.R.A.P. 12.

[97] See T.C.A. § 39-13-203 (West through 2022 Legis. Sess.).

[98] MacLean, supra note xcii, at 157.

[99] T.C.A. § 39-13-204(j)(8) (West through 2022 Legis. Sess.).

[100] See T.R.A.P. 12 (listing “extreme mental or emotional disturbance” and “mental disease or defect or intoxication” as mitigating factors); see also MacLean, supra note xcii, at 156-57 (listing various ineffective assistance of counsel death penalty cases due to improper investigation, development, and/or presentation of the defendants’ mental conditions).

[101] § 39-13-204(g)(1) (West).

[102] Id.

[103] See § 39-13-203 (West); see also Van Tran v. State, 66. S.W.3d. 790 (Tenn. 2001).

[104] State v. Pruitt, 415 S.W.3d 180, 203-04 (Tenn. 2013) (citing State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994), andVan Tran, 66 S.W.3d at 795).

[105] State v. Strode, 232 S.W.3d 1, 16 (Tenn. 2007).

[106] State v. Irick, 320 S.W.3d 284, 295 (Tenn. 2010) (citing and interpreting Panetti v. Quarterman, 551 U.S. 930 (2007)).

[107] Id.

[108] Id.; see T.C.A. § 39-11-501 (West through 2022 Legis. Sess.) (establishing “legal insanity” as an affirmative defense for conviction of a crime where the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the individual’s acts).

[109] For example, Defendant Irick argued for “a rule barring the execution of death-sentenced inmates who suffer from severe mental illnesses” when those individuals cannot establish incompetency for execution. Irick, 320 S.W.3d at 297.Compare Id., with ABA Death Penalty Due Process Review Project, Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data (2018), available at https://www.americanbar.org/content/dam/aba/administrative/crsj/deathpenalty/2018-smi-cost-analysis-w-tn-data.pdf(summarizing, among other things, proponents of a severe mental illness (SMI) exclusion from the death penalty). Although the Tennessee Supreme Court declined to adopt such a rule in Irick, 320 S.W.3d at 298, should a rule of this sort, or a variation of it, ever be adopted in Tennessee, the question remains as to what constitutes a “severe mental illness.” As shown, infra, in the section “Relevant SSA Rules and Regs as Persuasive Guidance,” SSA rules and regulations provide an analytical framework for such inquiry.

[110] For example, Defendant Irick relied upon his diminished capacity to understand and process information, to communicate, to abstract and learn from mistakes, to engage in logical reasoning, to control his impulses, and to understand the reaction of others in arguing for a severe mental illness exclusion to the death penalty. Irick, 320 S.W.3d at 297; see Atkins v. Virginia, 536 U.S. 304, 306 (2002) (excluding “mentally retarded offenders” from the death penalty and recognizing that due to “their disabilities in areas of reasoning, judgment, and control of their impulses, . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct”). These types of factors are considered by the SSA when assessing a mental illness for severity as seen, infra, in the section “Relevant SSA Rules and Regs as Persuasive Guidance.” Interestingly, although a severe mental impairment is required for a finding of disability by the SSA, a severe mental disorder does not automatically equate to a finding of disability. See 20 C.F.R. §§ 404.1520, 416.920 (Soc. Sec. Admin. 2022) (West).

[111] Compare MacLean, supra note xcii, at 156-57, with 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Soc. Sec. Admin. 2022) (West).

[112] §§ 404.1520a, 416.920a (West); see SSR 85-16, 1985 WL 56855 (Jan. 1, 1985); see also POMS DI section 24583.005 (Evaluating Mental Impairments Using the Psychiatric Review Technique (PRT)).

[113] §§ 404.1520a(d), 416.920a(d) (West).

[114] 20 C.F.R. §§ 404.1545(c­) and 416.945(c) (Soc. Sec. Admin. 2022) (West).

[115] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West); accord 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925 (Soc. Sec. Admin. 2022) (West). The Listings are by no means the only method to being found disabled on account of a mental impairment, but they are the method that appears most useful and best adaptable to death penalty analysis. See, e.g., §§ 404.1520a(d)(3), 404.1545(c), 416.920a(d)(3), 416.945(c) (West); see also SSR 91-5p, 1991 WL 208067 (July 1, 1991) (establishing the factors to be considered by an adjudicator when determining whether a claimant lacked the mental capacity to understand the procedures for requesting a review).

[116] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West).

[117] See Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] Id.; see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (Soc. Sec. Admin. 2022) (West) (listing relevant factors to be considered along with a claimant’s symptoms as including (i) daily activities; (ii) the location, duration, frequency, and intensity of the pain or other symptoms; (iii) precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications; (v) other treatments; (vi) any measures taken to relieve pain or other symptoms; and (vii) other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms).

[128] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West).

[129] Id.

[130] Id.

[131] State v. Miller, 638 S.W.3d 136, 147-48 (Tenn. 2021).

[132] Id.

[133] Id. at 146-48.

[134] Id. at 147.

[135] Id. at 147-48.

[136] See Id. at 144.

[137] Id. at 146.

[138] Id. at 148, 167; cf. State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983) (finding that, despite the defendant’s low intelligence, the evidence showed that he possessed the mental capability to plan, commit, and attempt to cover up his involvement in the crime and therefore was not subject to cruel and unusual punishment in receiving a death sentence).

[139] See Miller, 638 S.W.3d 136.

[140] See Id. at 144-46.

[141] Id. at 145.

[142] Id. at 144-45.

[143] Id. at 146.

[144] Id. at 147-48.

[145] Id. at 147.

[146] See id. at 144-46; cf. State v. Laney, 654 S.W.2d 383, 389 (finding that, despite the defendant’s low intelligence, the evidence showed that he possessed the mental capability to plan, commit, and attempt to cover up his involvement in the crime and therefore was not subject to cruel and unusual punishment in receiving a death sentence).

[147] See Miller, 638 S.W.3d at 144-45.

[148] Id. at 167.

[149] See Id. at 144, 146.

[150] See Id. at 145, 147; cf. State v. Smith, 893 S.W.2d 908, 917-18 (Tenn. 1994) (holding that, despite the defendant’s low IQ score, he received his GED and worked various jobs while in prison and therefore did not demonstrate/prove deficits in adaptive behavior under T.C.A. § 39-13-203 at the time of his offense); cf. also State v. Pruitt, 415 S.W.3d 180, 198, 204 (Tenn. 2013) (holding that the defendant did not demonstrate/prove deficits in adaptative behavior under T.C.A. § 39-13-203 where he was employed on the day of the offense; was living with family, but not on account of deficits in adaptive behavior; and was not observed to have any significant adaptive deficits by a clinical psychologist who evaluated him over the course of approximately twenty-eight days).

[151] See Miller, 638 S.W.3d. 136.

[152] Id. at 147.

[153] See Miller, 638 S.W.3d 136; see also supra text accompanying notes cxlvi-cl.

[154] The category of offenders being described by the United States Supreme Court in Atkins v. Virginia is “the mentally retarded.” 536 U.S. 304, 306, 321 (2002). Atkins categorically excluded these individuals from the death penalty pursuant to the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Id. at 321.

[155] Miller, 638 S.W.3d at 165-66.