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State v. Deloney

Court of Appeals of Ohio, First District, Hamilton

December 29, 2017

STATE OF OHIO, Plaintiff-Appellant,
JOHN DELONEY, Defendant-Appellee.

         Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is TRIAL NO. B-1303726

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

          Faulkner & Tepe, LLP, A. Norman Aubin and Wilkes R. Ellsworth, for Defendant-Appellee.


          Mock, Presiding Judge.

         {¶1} On June 21, 2013, defendant-appellee John Deloney was indicted on one count of aggravated murder with a death-penalty specification and one count of aggravated robbery with a gun specification. The case proceeded for nearly two years while the trial court attempted to determine if Deloney was eligible for the death penalty because of the claim asserted by counsel that he was mentally retarded. The trial court determined that subjecting Deloney to the death penalty would constitute cruel and unusual punishment. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011. The state now appeals, asserting one assignment of error.

         {¶2} From the time that counsel for Deloney filed the motion pursuant to Atkins and Lott claiming that Deloney was not eligible for the death penalty, Deloney and his family refused to cooperate in the prosecution of the motion. In its entry, the trial court spent several pages examining in detail the struggles of numerous attorneys and medical professionals, and its own efforts, to convince Deloney to submit to the required testing. In total, Deloney refused to submit to evaluations by medical professionals during 12 different sessions, six with Dr. Carla Dreyer and six with Dr. David Smith. Additionally, his family members refused to cooperate with the experts in their evaluations Deloney's refusal to comply became such an obstruction that, at one point, Deloney was sent to Summit Behavioral Healthcare for an extended period to determine his competence to stand trial. After doctors determined that he was competent to stand trial, the trial court set a hearing on the Atkins motion, deciding to use what evidence the parties had been able to muster without his cooperation.

         The Hearing

         {¶3} On August 17, 2015, the trial court conducted a hearing on Deloney's motion. Drs. Smith and Dreyer both submitted reports. In Smith's report, he noted that he had reviewed some school records, and reports prepared by other medical professionals involved in the case. But, because of Deloney's failure to cooperate with the evaluation, Smith could not reach a conclusion about whether Deloney had significant limitations in two or more adaptive skills. Smith wrote that

The clearest conclusion to be drawn is that under the current circumstances I am unable to give a definitive appraisal about whether Mr. John Deloney has Mental Retardation or Intellectual Disability at this time. Thus, it is likely that the court will need to proceed regarding his charges. Should Mr. Deloney be found guilty, then the question might be better answered should he comply with standardized testing, and if at least one other informant is found to give reports of his adaptive functioning.

Dreyer, faced with the same obstacles, reached similar conclusions. She wrote that

As the Court is aware, multiple attempts have been made to formally assess the defendant's intellectual and adaptive functioning to determine if he suffers from mental retardation (also known as an intellectual disability). While he has not cooperated with various assessments, including the undersigned's current assessment attempt, available records were reviewed in relationship to the referral questions. A discussion of this information is being provided to the Court to assist in determining if the defendant is mentally retarded. However, given the defendant's lack of cooperation with the evaluation and the absence of current intelligence testing and collateral information from the family related to his childhood functioning, I am unable to state, to a reasonable degree of psychological certainty, if the defendant suffers from mental retardation that would allow the United States Constitution to bar him from receiving the death penalty.

         {¶4} In addition to the reports, both doctors testified at the hearing. Smith, testifying for Deloney, said that he had explained to Deloney that he was there to evaluate him to see if he qualified under Atkins as mentally retarded. He said that Deloney seemed to understand, but refused to cooperate with him. Smith also testified that the team at Summit Behavioral Healthcare had reported that, within that structured environment, Deloney did not exhibit any deficient functioning, either in navigating the rules or being able to occupy his time in different areas. But Smith said that standing out in such a structured environment would have been "pretty hard to do."

         {¶5} Smith also reviewed Deloney's records from Cincinnati State Technical and Community College, noting that he had not done well and had needed developmental classes. But in discussing Deloney's experience at Cincinnati State, Smith admitted that he looked at only a single sheet of paper, and that it appeared to be "a snapshot of someone who apparently crashed and burned." But Smith also admitted that he did not know what the requirements of the program were when he made his evaluation of Deloney's performance.

         {¶6} Smith also reviewed Deloney's employment records from Frisch's and Long John Silver's. Deloney had worked at the two restaurants for a period of a few months each. But the records from his employment there were very sparse, containing no information about his job duties or his work performance. Smith noted that the Frisch's records did not give a reason for his termination, and that the

          Long John Silver's records indicated only that he was let go because he was "not able to keep up." All he could say about Deloney's work history was that

[w]ell, he was not able to keep up with the job expectations. They looked like positions within the kitchen. They looked like manual labor positions that many individuals with mild intellectual disability can do quite well. And he was not keeping up was all it said. It didn't have an extensive rationale for it, or what was going on. But that would show the possibility that, again, he's not showing independent functioning in a vocational setting.

But, on cross-examination, Smith further conceded that his failure to perform at work could also have been because he was simply unwilling to do the work assigned.

         {¶7} Smith spoke at length about the refusal of Deloney to cooperate with the Atkins evaluations. Smith agreed with defense counsel that Deloney's unwillingness to cooperate "could mean that he's not fully comprehending from a conceptual basis what the charges are and what I guess more importantly the reason his cooperation may be beneficial to him." But he also noted that it "could be he's just being oppositional or he's just trying to comply with other things that have been told to him." He said, "I do feel to some extend that there's certainly the hypothesis that him not understanding that, if you fail to cooperate, you have negative outcomes potentially that could have been avoided." When asked if someone who stigmatizes the word "retarded" would try to fight being labeled as such, Smith agreed, stating, "[t]hat's not uncommon for them for sure * * * however, if someone would have the sense that that's not valid, they would probably go ahead and show that that's not true by proceeding with an appraisal." He also speculated that "whatever motive he might be coming at, I just got the impression that he felt that if he could come up with some way to find a loophole, that became his biggest hope. That became, even up to the last moment when I thought at Summit he was going to comply, he still held out as, that's my ticket to freedom."

         {¶8} In his conclusions, however, Smith got no closer to being able to give an opinion based on a reasonable degree of psychological certainty, saying only that the supporting evidence "shows a strong suspicion that he does have intellectual disabilities." He said that "we don't have sufficient evidence especially on the standardized, I can't definitely say" whether Deloney meets the Atkins criteria.

         {¶9} Dreyer testified for the state. Dreyer's opinions during her testimony did not vary from her report. She related that Deloney had repeatedly but politely declined to participate with her attempts to evaluate him. Dreyer said that the team at Summit had completed an adaptive behavior assessment and concluded that Deloney was in the average range. Dreyer also testified that Deloney had tested highly for malingering. Smith had questioned the validity of the test, stating that individuals with intellectual disabilities will oftentimes score incorrectly on those tests. But Dreyer said that Deloney's test results were so low that the results could only have been the result of actively trying to miss as many questions as Deloney did. Dreyer concluded that "[w]ith the information which I had available from the transcripts and testing that was completed at Summit, it was my opinion that his adaptive functioning was not consistent with that of individuals with intellectual disability." Dreyer further found that there was "[n]o indication that he has significant limitations in adaptive functioning in at least two areas."

         The Trial Court's Decision

         {¶10} In the trial court's lengthy decision, it began with a discussion of the procedural history of the case, the reports and testimony of the doctors, and the standards under Atkins and Lott. The court noted that Deloney must demonstrate, by a preponderance of the evidence, "1) significant sub-average intellectual functioning, 2) significant limitations in two or more adaptive skills, and 3) onset before the age 18." The court then determined that the Deloney had demonstrated significant subaverage ...

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