¶1SPECIALLY CONCURRING.
¶21 1 I specially concur in the majority opinion herein. I do wish to state that I have not changed my position from earlier writings as it relates to the procedure. I, along with Judge Chapel, would adopt a different procedure as previously recorded in this case.
¶31 2 If a petitioner establishes a prima facie ease in any of the three prongs set forth in the definition of mental retardation, then he or she should be allowed to present that evidence to a jury to decide the issue. In this case, there is a clear ruling from an excellent trial judge that there was evidence of possible mental retardation. However, the judge made the determination that that was due to previous alcohol problems, and when the alcohol was removed, so was the mental retardation possibility.
¶4T3 I do wish to be clear that under the facts of this case, the judge made a proper ruling. However, under subsequent cases, if there is a prima facie showing of evidence of possible mental retardation under any of the three prongs, then a jury issue is established.