A-1-CA-36643 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

_ COURT OF APPEALS OF NEW MEXICO
Opinion Number: FILED

Filing Date: May 20, 2019 MAY 20 2019
No. A-1-CA-36643 AMea- Pp
STATE OF NEW MEXICO,

Plaintiff-Appellee,

JACOB F.,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
T. Glenn Ellington, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Mery] E. Francolini, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

VARGAS, Judge.

4) Defendant was arrested for aggravated battery after allegedly attacking his
mother with a pair of garden shears. He appeals the district court’s determination
that he is not mentally retarded,' arguing that it erred in its application of NMSA
1978, Section 31-9-1.6 (1999). Because we conclude that the district court
improperly placed the burden to demonstrate mental retardation on Defendant
despite evidence sufficient to give rise to a statutory presumption that Defendant was
mentally retarded, we reverse the district court’s Section 31-9-1.6(E) determination
and remand the matter to the district court. In light of this determination, we need
not and do not consider Defendant’s remaining arguments.”

BACKGROUND

2) Following his arrest, Defendant’s competency was immediately designated as

an issue in the case, and the district court deemed Defendant both incompetent to

'Although our Supreme Court has acknowledged it is “no longer acceptable
to describe individuals with developmental disabilities as ‘mentally retarded[,]’ ”
our statutes continue to use the term. See State v. Linares, 2017-NMSC-014, 4 1 n.1,
393 P.3d 691. In this opinion, we apply the language used by the Legislature, and,
like the Supreme Court in Linares, encourage our Legislature to amend the statutes
in favor of more respectful terminology.

?Defendant also argues that the evidence was insufficient to support a
conclusion that he committed one of the felonies giving rise to his detention, in
violation of NMSA 1978, Section 31-9-1.5(D) (1999), and that the district court
abused its discretion when it allowed the State to obtain a forensic evaluation of
Defendant’s competence.

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stand trial and dangerous. Defendant moved for a hearing pursuant to Section 31-9-
1.6 to determine whether he was mentally retarded and therefore subject only to civil
commitment and not criminal prosecution. See § 31-9-1.6(D). Prior to the hearing,
two IQ tests were administered to Defendant. Each of the doctors who separately
administered the IQ tests testified that Defendant showed symptoms of psychosis
during the testing process and each testified that Defendant scored below seventy on
the IQ test he administered. Following the hearing, the district court issued an oral
ruling, stating,

First, is whether the defense has established by a reliably administered

test that [Defendant] has a full scale IQ of less than seventy. The Court

concludes they have not... . The question is whether the information

received from him taking the test is reliable. The court concludes

that... the information is not reliable. So, the presumptive level of a

seventy test score has not been shown by a preponderance of the

evidence to create the legal presumption. That being the case, . . . the

State does not have to prove by a preponderance of evidence because

the burden has not shifted as he is not . . . his intellectual disability

and/or developmental delay in the modern vernacular, mental

retardation as described under Section 31-9-1, that sequence has been

met.
Of particular concern to the district court in making its determination was the
unknown level of psychosis Defendant experienced during the tests and how any
such psychosis might have impacted Defendant’s scores. In the order resulting from
the hearing, the district court reached two conclusions: (1) Defendant failed to

establish, “based on a reliably administered intelligence quotient test[,]” that his IQ

was at or below seventy, and (2) Defendant “failed to establish by a preponderance
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of the evidence that [he] was mentally retard[ed] as defined by [Section] 31-9-
|.6(E).” Defendant appeals.

DISCUSSION

(33 Defendant argues on appeal that the district court erred when it concluded he
was not mentally retarded pursuant to Section 31-9-1.6. Specifically, Defendant
argues that the district court erroneously failed to shift the burden of proof to the
State to rebut the presumption that Defendant is mentally retarded after two doctors
testified that Defendant received a score below seventy on each of two IQ tests
administered to him. We review the district court’s determination that Defendant is
not mentally retarded for an abuse of discretion. See Linares, 2017-NMSC-014,
{1 23, 32.3 “A district court abuses its discretion when it misapplies or
misapprehends the law{[,]” State v. Pacheco, 2008-NMCA-131, 4 34, 145 N.M. 40,

193 P.3d 587, or when its ruling is “against logic and is clearly untenable or not

Defendant contends, and the State concedes, that the applicable standard of
review is de novo, but we find the parties’ citations in support of their shared view
unpersuasive. Defendant cites to State v. Office of Public Defender ex rel. Muqqddin,
2012-NMSC-029, 285 P.3d 622, which involves no competency issues at all, and
instead relies on principles of statutory construction in resolving a burglary-related
question. The State cites to a Section 31-9-1.6 case from this Court, State v.
Gutierrez, 2015-NMCA-082, 355 P.3d 93, but in doing so ignores the fact that our
Supreme Court has subsequently applied an abuse of discretion standard in
reviewing a mental retardation determination. We are bound by precedent set by our
Supreme Court, see State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009,
q 22, 135 N.M. 375, 89 P.3d 47 (reiterating principle that Court of Appeals is bound
by Supreme Court precedent).

justified by reason[,]” Linares, 2017-NMSC-014, 24 (internal quotation marks and
citation omitted). To the extent Defendant’s appeal presents questions requiring
statutory interpretation, those are questions of law that we review de novo. fd. § 41.
(44 “[MlJental retardation” is statutorily defined as “significantly subaverage
general intellectual functioning existing concurrently with deficits in adaptive
behavior.” Section 31-9-1.6(E); see Gutierrez, 2015-NMCA-082, { 44 (describing
statutory definition as a “two-prong test”). An 1Q of seventy or below on a “reliably
administered” IQ test “shall be presumptive evidence of mental retardation[,]” and
creates a statutory presumption that a defendant is mentally retarded. Section 31-9-
1.6(E); Gutierrez, 2015-NMCA-082, § 44 (internal quotation marks and citation
omitted). Once this presumption is established, “the burden shifts to the [s]tate to
prove by a preponderance of the evidence that a person does not have mental
retardation.” Gutierrez, 2015-NMCA-082, { 44.

{5} To claim entitlement to the statutory presumption of mental retardation,
Defendant must show that he has an IQ of seventy or less and that the test used to
determine that IQ was “reliably administered.” The parties do not dispute that
Defendant scored below seventy on the two IQ tests administered to him. The
evidence presented at the hearing to determine whether Defendant is mentally
retarded showed that Defendant underwent cognitive testing administered by two

different doctors—Dr. Fields and Dr. Andrews. The testing revealed IQ scores of 67

and 68, respectively, scores which both doctors characterized as falling within the
“extremely low range.”

{6} | While the parties agree that Defendant scored below seventy on the IQ tests,
they disagree as to whether the IQ tests were “reliably administered,” as required by
Section 31-9-1.6(E). The State, urging a broad interpretation of the statute, argues
that the language of Section 31-9-1.6(E) requiring the IQ test to be “reliably
administered” requires proof that the test results themselves are reliable in order to
trigger the statutory presumption and that Defendant’s psychosis prevented the
doctors from obtaining accurate results when they administered their IQ tests to
Defendant. According to the State, a strict construction of the statutory language—
one limiting the relevant inquiry to the reliability of the administration of the IQ test
without requiring accuracy in the result—would run counter to legislative intent and
render the “reliably administered” test requirement “useless and superfluous.” By
contrast, Defendant contends that the Legislature’s use of the term “reliably
administered” 1Q test unambiguously refers to the reliability of the test’s
administration, not the reliability of its results, noting that to “administer” a test is to
“manage or supervise [its] execution[.]” We conclude that Defendant’s
straightforward reading of the statute must control.

{7} | When interpreting a statute, we seek to effectuate the Legislature’s intent,

which we discern from the language of the statute. See State ex rel. Helman v.

Oo ONNUN

Gallegos, 1994-NMSC-023, 4 23, 117 N.M. 346, 871 P.2d 1352; State v. Nieto,
2013-NMCA-065, § 4, 303 P.3d 855. Our interpretation may encompass no more
than applying the language of the statute as written:
[I]f the meaning of a statute is truly clear—not vague, uncertain,
ambiguous, or otherwise doubtful—it is of course the responsibility of
the judiciary to apply the statute as written and not to second-guess the
[L]egislature’s selection from among competing policies or adoption of
one of perhaps several ways of effectuating a particular legislative
objective.
Helman, 1994-NMSC-023, {| 22.
(3) | As we consider the Legislature’s intent in requiring a “reliably administered”
IQ test as presumptive evidence of mental retardation, we note that each of the
testifying doctors in this case provided a similar definition of what constitutes a
“reliably administered” test. Dr. Fields testified that a “reliably administered” test
referred to an evaluator’s ability to administer the test in a way that a person’s
performance on that test would remain the same over time, even if tested by different
examiners. Dr. Andrews described a “reliably administered” test as one that is well
validated and widely accepted among practitioners in the field, that the person
administering the test would have experience administering and evaluating the test,
and that the test would yield consistent results.
(93 In this instance, neither doctor questioned the efficacy or acceptance of the

test used by the other to determine Defendant’s 1Q, nor did either doctor challenge

the methods employed or procedures followed by the other in implementing the
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tests. Both doctors were experienced in administering and evaluating IQ tests. With
regard to the testimony of both doctors that a “reliably administered” test would
necessarily yield consistent results, Dr. Fields testified that Defendant’s score of 62
on a previously administered IQ test, as well as Defendant’s scores of 67 and 68 on
the tests he and Dr. Andrews administered, suggested reliability. Dr. Fields opined
that the scores were indicative of Defendant’s consistent performance at the
extremely low range and that future testing would produce scores in a similar range.
Dr. Andrews, by contrast, testified that while there appeared to be some “surface”
consistency in the IQ scores, the subtests administered to Defendant indicated some
significant differences in his performance, suggesting a lack of ability to perform
consistently across time due to Defendant’s psychotic symptoms. According to Dr.
Andrews, these differences in performance in the subtests call into question the
accuracy of Defendant’s IQ scores of 67 and 68.

(10) Having considered the language of the statute and the testimony of the
doctors, we agree with Defendant that the legislative requirement of a “reliably
administered” IQ test is directed at the manner in which the test is given to the
subject, rather than the accuracy of the results reached. The State fails to point to any
language in the statute to support its contention that the statute requires a defendant
to prove the accuracy of the IQ test results before he or she is entitled to a

presumption of mental retardation. For one to be presumed mentally retarded, the

plain language of Section 31-9-1.6(E) unambiguously requires nothing more than a
showing of a “reliably administered” test that results in a score of seventy or less.
Common usage makes clear that the phrase “reliably administered test” addresses
the manner in which the test is given and not the accuracy of the results, and there is
nothing in the statute to suggest that the two concepts should be viewed as
synonymous with one another. See NMSA 1978, § 12-2A-2 (1997) (“Unless a word
or phrase is defined in the statute or rule being construed, its meaning is determined
by its context, the rules of grammar and common usage.”). “We will not read into a
statute any words that are not there, particularly when the statute is complete and
makes sense as written.” State v. Trujillo, 2009-NMSC-012, ¥ 11, 146 N.M. 14, 206
P.3d 125.

(11) Furthermore, nothing in the language of the statute raises any “genuine
uncertainty as to what the [L]egislature was trying to accomplish” that might
necessitate further interpretation beyond the statute’s plain language. He/man, 1994-
NMSC-023, § 23. The plain language of Section 31-9-1.6(E) states, in no uncertain
terms, that “[a]n [IQ] of seventy or below on a reliably administered [IQ] test shall
be presumptive evidence of mental retardation.” Section 31-9-1.6(E) (emphasis
added). “ ‘Shall’ will be given its mandatory meaning, unless there are indications

in the statute that the mandatory reading is repugnant to the manifest intent of the

Legislature.” Tomlinson v. State, 1982-NMSC-074, 9, 98 N.M. 213, 647 P.2d 415;

see Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009-NMSC-013,
q 22, 146 N.M. 24, 206 P.3d 135 (“It is widely accepted that when construing
statutes, ‘shall’ indicates that the provision is mandatory, and we must assume that
the Legislature intended the provision to be mandatory absent a clear indication to
the contrary.”). In furtherance of our constitutional prohibition against prosecuting
mentally retarded defendants, see State v. Rotherham, 1996-NMSC-048, {| 13, 122
N.M. 246, 923 P.2d 1131, the Legislature clearly intended to establish a statutory
scheme that set a quantifiable standard to guide courts as they evaluate defendants
for mental retardation—a defendant with an IQ of seventy or below is presumed to
be mentally retarded.

(12) Importantly, the remaining provisions of Section 31-9-1.6 make clear the
Legislature’s intent to extend the inquiry into a defendant’s mental retardation
beyond the presumption-creating stage of the proceedings, as an IQ score of seventy
or below does not end the court’s inquiry, but merely gives rise to a rebuttable
presumption of mental retardation. In the event the state has concerns about the
accuracy of a given IQ test, it retains the opportunity to demonstrate that inaccuracy
in seeking to overcome the presumption of mental retardation by a preponderance
of the evidence. See Gutierrez, 2015-NMCA-082, ¥ 44. Thus, the State’s argument

addressing the accuracy of Defendant’s IQ test results is more properly explored

during the State’s rebuttal, when the level of Defendant’s general intellectual
functioning will ultimately be determined.

413} Our decision that a defendant need not prove the accuracy of IQ test results to
be entitled to a presumption of mental retardation is not to say that the accuracy of
the results of such tests are not affected by the method or manner of their
administration. Obviously, a “reliably administered” test is more likely to yield an
accurate result than a test that is not “reliably administered.” Nonetheless, at the
“presumption” stage of the mental retardation analysis, the Legislature has made
clear that nothing more is required than that the test be “reliably administered.”

(14) Having determined that Defendant is not required to prove the accuracy of the
testing results, but only that the testing was “reliably administered” to be entitled to
a presumption of mental retardation, we consider the evidence presented at the
Section 31-9-1.6 hearing below. As indicated, neither doctor questioned the efficacy
or acceptance of the IQ tests used to evaluate Defendant or the underlying methods
employed during the testing process. Furthermore, the doctors’ ultimate findings as
to the numerical values of Defendant’s IQ scores were separated by only a single
point, with one scoring Defendant’s IQ at 67 and the other scoring it at 68, indicating
consistency in results. The State presented nothing to suggest that the test each
doctor administered to Defendant was unreliably administered, pointing instead to a

perceived inaccuracy in the testing results that it attributes to Defendant’s

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psychosis—a cause Dr. Fields testified was unrelated to the “reliable administration”
of the tests. Because the testimony presented at the hearing to determine whether
Defendant was mentally retarded was sufficient to support a conclusion that
Defendant’s IQ tests were “reliably administered,” the district court was required to
presume that Defendant was mentally retarded based on his IQ scores of 67 and 68.
{18} We conclude that the district court misapplied Section 31-9-1.6(E), that
Defendant is entitled to a presumption that he is mentally retarded, and that the
district court improperly placed the burden on Defendant to prove mental
retardation. We therefore remand for such further proceedings as may be necessary
to allow the district court to determine whether the State met its burden of proving
by a preponderance of the evidence that Defendant was not mentally retarded, either
by establishing that Defendant does not have significantly subaverage general
intellectual functioning or that he does not have deficits in his adaptive behavior, or
both. Based on this disposition, it is unnecessary for us to address the other
arguments raised by Defendant.

CONCLUSION

{16} We reverse and remand for further proceedings consistent with this opinion.

Gur Me

JULIE J. VARGAS, Ju

a7} ITIS SO ORDERED.

1| WE CONCUR:
2
torica ama
3 M. MONICA ZAMORA, Chief Judge
4
Briana D.Lamesa 5| BRIANA H. ZAMORA, Judge
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May 20, 2019- State of New Mexico v. Jacob F., No. A-1-CA-36643

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