By Sharon Coolidge
Enquirer staff writer

A convicted killer's IQ may mean the difference between whether he lives or dies.

The First District Court of Appeals on Tuesday ordered a hearing to determine whether Cedric Carter is mentally retarded. Carter, 31, of West End, was sentenced to death for fatally shooting a store clerk in Oakley 12 years ago.

The U.S. Supreme Court ruled two years ago that mentally retarded killers can't be executed for their crimes.

Using that ruling, Carter asked Hamilton County Common Pleas Court Judge Norbert Nadel last year for a hearing to determine if he is mentally retarded. Nadel denied the request.

On Tuesday, the appeals court ruled that Nadel erred and kicked the case back, saying the judge must now have such a hearing.

"We have records that show he is most likely mentally retarded," said Assistant Ohio Public Defender Stephen Ferrell, Carter's lawyer. "Now, we'll have an opportunity in court to show either he's mentally retarded or not."

Carter is one of 38 death row inmates who have asked Ohio courts to review their executions, saying they are mentally retarded. Of those, 11 were sentenced to death by Hamilton County judges.

Carter was convicted of aggravated robbery and aggravated murder in the 1992 killing of clerk Frances Messinger at a United Dairy Farmers store.

During his sentencing, and in hopes Nadel would be lenient, lawyers argued Carter was mentally retarded. They said he scored a 76 on an intelligence test when he was 12 years old. A person with an IQ of about 70 or below is considered mentally retarded.

But Nadel sentenced Carter to die.

Then in 2002, the U.S. Supreme Court said sentencing the mentally retarded to die would be cruel and unusual punishment, a violation of the Eighth Amendment. Carter used that ruling to ask Nadel to set aside the death sentence, or at least allow him to retain a court-paid expert who could testify at a hearing about his intellectual capacity, according to court records.

Nadel denied the appeal, saying the IQ test showed Carter was not mentally retarded.

In reviewing the decision, the appellate court said Tuesday that Carter offered enough evidence to warrant a hearing and that the court must pay for the expert assistance he needs to develop and present his claim.

E-mail scoolidge@enquirer.com