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North Carolina Judge not sure if he can rule on mental retardation


ASHEBORO, North Carolina - A Randolph County, North Carolina Superior Court judge said Tuesday that he's not sure the state law that prohibits the execution of a mentally retarded person gives him the authority to determine if Ronald Lee "Sam" Pugh is mentally retarded.

Judge Clarence Horton of Kannapolis, North Carolina said he can rule on whether Pugh, who was convicted last year of first-degree murder in the 1997 slaying of his neighbor, received effective counsel in his trial.

The question, Horton said, is whether Pugh's defense attorneys, Clark Bell and Dick Roose, should have presented evidence that their client was mentally retarded at his trial in 2002.

Pugh has been tried twice, and found guilty both times, of murdering Wanda Luther Coltrane, 37, by slashing her throat after a cocaine-fueled rape attempt at the High Pine Church Road residence of his niece. A jury imposed the death sentence after both trials.

The North Carolina Supreme Court ordered a new trial after Pugh's first conviction due to juror misconduct. Upon appeal of the second verdict, the state's high court remanded the case to Randolph County Superior Court.

When Pugh was tried in 1999, the state did not have a law prohibiting mentally retarded persons from receiving the death penalty. In 2001, North Carolina Gov. Mike Easley signed into law a bill that forbids the execution of defendants with mental retardation. Last year, the U.S. Supreme Court also banned the death penalty for the mentally retarded because it violates their constitutional protection against cruel and unusual punishment.

The North Carolina statute allows the defense to request a pre-trial hearing by a judge to determine if a defendant is mentally retarded. If a defendant is not found to be mentally retarded during a pre-trial hearing, a jury may be given evidence to consider the issue of a defendant's mental retardation during sentencing. If the jury does not find a defendant to be mentally retarded, the members may still consider evidence of mental retardation when determining aggravating or mitigating factors during sentencing.

Over the first day and a half of hearing testimony, both defense attorney Jon Megerian and Randolph County Assistant District Attorney Andy Gregson have spent the majority of their time questioning witnesses in an attempt to prove whether Pugh, who is 54, is mentally retarded.

North Carolina statute that bans capital punishment for mentally retarded defendants defines a mentally retarded person as one who has an IQ of 70 or less and who showed poor life skills before age 18.

Dr. James Hilkey, a psychologist testifying for the defense, said on Monday that Pugh scored 70 on an intelligence test he had administered. He also testified that three other psychologists who reviewed the data came up with the same result, although they differed in scoring various areas of the test.

A North Carolina witness, Dr. Mark Hazelrigg, who is a forensic psychologist, testified Tuesday that he had calculated Pugh's IQ as 71 based on a review of the test given by Hilkey. Hazelrigg noted that in the world of psychology, the one-point difference is too small to make a difference. One point could mean much more in relation to the North Carolina state statute regarding the death penalty, he said.

Evidence has shown that Pugh performed poorly in school, repeating the first grade twice and the fifth grade once. He was a 16-year-old sixth-grader in a special education class when he dropped out of school. He reads on a first- or second-grade level and does math on a fifth-grade level.

School records show that Pugh scored a 67 or 69 on an IQ test when he was 13; his former school principal testified that although there are no records to show it, Pugh would have been placed in the special education class only after scoring below 70 on an IQ test.

His attendance record was also poor, which Gregson argued might have affected his performance both in school and on tests.

As part of a diagnosis of mental retardation, Hilkey testified, a person must show significant deficits in at least two of 10 areas called adaptive abilities. Pugh shows deficits in several areas, but has significant deficits in functional academics and communication, Hilkey said.

Gregson argued that Pugh demonstrated communication skills, as well as other life skills, by running a logging business for years and by managing a pool hall.

A medical doctor and psychiatrist from Durham, Dr. Nathan Strahl, also took the stand on Tuesday. Strahl also testified for the defense during Pugh's sentencing hearing.

He said he met with Pugh two times in late 1999 to assess his mental status; he did not give an IQ test, but testified at the hearing that Pugh's IQ was probably in the low 70s - although his report to Pugh's attorneys indicated mid-70s.

Strahl testified for the defense again on Tuesday that he did not discuss the possibility of having Pugh take an IQ test with Pugh's attorneys in 1999, nor did he hear anyone raise the issue of mental retardation.

"It was not an issue for the court that a person's death or life could be measured by an IQ number," he said.

Strahl was not called to testify at the 2002 trial. He said that in light of the new law concerning the death penalty and mental retardation, he would have recommended further investigation of Pugh's mental status.

"Knowing that the new statute was in effect ... I would have indicated that we have something very strong to look at," Strahl said.

Dr. Greg Olley, a psychologist and associate director of the Center for Development and Learning at the University of North Carolina at Chapel Hill, testified that after reviewing Hilkey's data on Pugh he would accept Hilkey's diagnosis of mild mental retardation as valid.

Dr. Jerry Brittain, a clinical psychologist and neuropsychologist and retired Navy commander from Virginia, testified Tuesday that Pugh's military record, which included three promotions, from E1 to E4, was not inconsistent with a person who was mildly mentally retarded. He said Pugh would have had no trouble handling his job as an ammunition storage specialist, which consisted primarily of loading and unloading ammo.

He also testified Pugh's service in general was not out of the ordinary since he was inducted at the height of the Vietnam War.

"If you showed up and had a belly button and two legs and weren't drunk, you were going to get recruited," Brittain said.

Brittain did say he was very surprised to hear that Pugh had earned, in 1970, the Army Commendation Medal. "You don't get that for just showing up," said Gregson.


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