IN THE SUPREME COURT OF MISSISSIPPI

Transcription

1 E-Filed Document Aug :01: KA SCT Pages: 36 IN THE SUPREME COURT OF MISSISSIPPI No KA SCT STATE OF MISSISSIPPI, Appellant versus WILLIE RUSSELL Appellee POST-REMAND BRIEF OF APPELLANT JIM HOOD ATTORNEY GENERAL STATE OF MISSISSIPPI LaDonna Holland SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar No Counsel of Record Jason L. Davis SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar. No Office of the Attorney General Post Office Box 220 Jackson, Mississippi Telephone: (601) Telefax: (601)

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii STATEMENT OF ISSUES STATEMENT OF THE CASE AND PROCEDURAL HISTORY STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. THE TRIAL COURT ERRED IN DENYING THE STATE S MOTION TO HAVE RUSSELL EVALUATED FOR INTELLECTUAL DISABILITY, AS RUSSELL HAS NEVER BEEN EVALUATED FOR ATKINS PURPOSES II. III. THE TRIAL COURT ERRED IN FINDING THAT RUSSELL PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT HE IS INTELLECTUALLY DISABLED PURSUANT TO ATKINS AND CHASE THE TRIAL COURT S ORDER GRANTING POST-CONVICTION RELIEF SHOULD BE REVERSED BASED ON CUMULATIVE ERROR CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Atkins v. Virginia, 536 U.S. 304 (2002)... 2, 3 Gallimore v. Missouri Pac. R.R., 635 F.2d 1165 (5th Cir.1981) Hall v. Florida, 134 S. Ct (2014)... 2 King v. Epps, 2013 WL (N.D. Miss. Mar. 26, 2013) Russell v. Mississippi, 519 U.S. 982 (1996) United States v. Battle, 235 F.Supp.2d 1301 (N.D.Ga.2001) State Cases Baker Donelson v. Seay, 42 So. 3d 474 (Miss. 2010) Chase v. State, 112 So. 3d 421 (Miss. 2013) , 29 Chase v. State, 873 So. 2d (Miss. 2004) , 25 Doss v. State, 19 So. 3d 690 (Miss. 2009) Eaton Corp. v. Frisby, 133 So. 3d 735 (Miss. 2013) In Re Knapp, 536 So.2d 1330 (Miss. 1988) Lynch v. State, 951 So. 2d 549 (Miss. 2007) Mississippi Transportation Commission v. McLemore, 863 So.2d 31 ( 16) (Miss. 2003) Reeder v. State, 783 So. 2d 711 (Miss. 2001) Ross v. State, 954 So. 2d 968 (Miss. 2007) Russell v. State, 607 So. 2d 1107 (Miss. 1992)... 2, 3 Russell v. State, 670 So. 2d 816 (Miss. 1995)... 2, 3 Russell v. State, 819 So. 2d 1177 (Miss. 2001)... 3 Sanders v. State, 9 So. 3d 1132 (Miss. 2009) Thorson v. State, 76 So. 3d 667 (Miss. 2011)... 18, 19, 27 State Statutes Miss. Code Ann Miss.Code Ann (7) State Rules M.R.E M.R.C.P , 23 ii

4 STATEMENT OF ISSUES I. THE TRIAL COURT ERRED IN DENYING THE STATE S MOTION TO HAVE RUSSELL EVALUATED FOR INTELLECTUAL DISABILITY 1, AS RUSSELL HAS NEVER BEEN EVALUATED FOR ATKINS PURPOSES. II. III. THE TRIAL COURT ERRED IN FINDING THAT RUSSELL PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT HE IS INTELLECTUALLY DISABLED PURSUANT TO ATKINS AND CHASE. THE TRIAL COURT S ORDER GRANTING POST-CONVICTION RELIEF SHOULD BE REVERSED BASED ON CUMULATIVE ERROR. STATEMENT OF THE CASE On July 18, 1989, Parchman inmate Willie C. Russell murdered corrections officer Argentra Cotton. Russell v. State, 607 So. 2d 1107 (Miss. 1992). Russell was indicted as a habitual offender for the capital crime of killing a peace officer acting in his official capacity in violation of Mississippi Code Annotated (2)(a) (1972). Id. at At his 1990 trial, the evidence showed that while Officer Cotton delivered food trays to the prisoners, Russell, who had removed an air vent in his cell, lay in wait and stabbed Cotton with a shank. Id. Russell testified that he stabbed Officer Cotton because he had given Cotton $20 to buy yeast, which Russell planned to use to make alcohol, but Cotton never delivered the yeast or returned Russell s money. Russell v. State, 670 So. 2d 816 (Miss. 1995). A Sunflower County Circuit Court jury found Russell guilty of capital murder. Id. After a bifurcated sentencing phase, Russell was sentenced to death. 607 So. 2d at 1 The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment s prohibition on cruel and unusual punishment precluded the execution of the mentally retarded. The term mental retardation, however, has largely been replaced in the medical field with the term intellectual disability. T. 54, 737. Accordingly, the U.S. Supreme Court now employs the term intellectual disability in Atkins analyses. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). Accordingly, the State refers in its brief to the term intellectual disability unless citing direct quotes which use the term mental retardation. 1

5 1109. On August 12, 1992, this Court affirmed Russell s conviction, but found that the trial court erred in not requiring a determination of Russell s status as a habitual offender prior to the sentencing phase. Id. at Accordingly, the Court vacated Russell s death sentences and remanded the case for a new sentencing hearing. Id. On remand, Russell was again sentenced to death. 670 So. 2d at 820. Specifically, the jury found the following aggravating factors: (1) The capital offense was committed by a person under a sentence of imprisonment; and (2) The Defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Id. The jury found that the evidence offered in mitigation did not outweigh the evidence of aggravating circumstances. Id. On December 7, 1995, this Court affirmed Russell s death sentence. Id. at 839. Russell s petition for writ of certiorari filed in the United States Supreme Court was denied on November 12, Russell v. Mississippi, 519 U.S. 982 (1996). In 1997, Russell initiated post-conviction proceedings. Russell v. State, 819 So. 2d 1177 (Miss. 2001). On June 19, 2003, this Court granted in part Russell s application for leave to proceed in the trial court. Russell v. State, 849 So. 2d 95 (Miss. 2003). Specifically, the Court granted leave to proceed in the trial court on the sole issue of whether he is intellectually disabled such that he may not be executed under Atkins v. Virginia. Id. at 148 ( 251). The Court further order that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. Id. In the interim, Russell was charged with aggravated assault for firing a homemade weapon at a corrections officer on December 6, C.P. 165, 302. Russell was evaluated for competency 1

6 to stand trial and sanity at the time of the aggravated assault by defense expert Dr. Terry Allen Kupers and by Doctors Reb McMichael, Gilbert Macvaugh, III, and Criss Lott at the Mississippi State Hospital. C.P ; On April 12, 2010, Russell filed his motion for post-conviction relief in the trial court. C.P On June 30, 2010, the State filed its response. C.P On October 16, 2012, The State filed a Motion for Examination of Petitioner Pursuant to Mississippi Supreme Court Decision, noting that Russell had not been previously tested or assessed for intellectual disability. C.P On December 10, 2012 and May 16, 2013, the trial court heard the State s motion for an Atkins evaluation. T. 25. At the hearing, the State called Dr. Gilbert Macvaugh, III, who testified that he had evaluated Russell in 2006, pursuant to a court order, to determine whether he was competent to stand trial and whether he was legally sane at the time of the offense charged. T. 54. However, Russell had never been assessed for intellectual disability pursuant to Atkins. T. 54. Nevertheless, by order dated September 5, 2013, the trial court denied the State s motion. C.P On September 25, 2013, the State moved for an interlocutory appeal, and on December 5, 2013, this Court entered an order summarily denying the State s motion M SCT. An evidentiary hearing on Russell s motion for post-conviction relief was set for September 8-9, C.P On August 28, 2014, the State filed a motion for continuance. C.P The basis of the motion was that the State received the petitioner s notice of discovery, two weeks prior to the hearing date, which listed 23 potential witnesses. C.P The State indicated its desire to depose most, if not all, of the petitioner s witnesses prior to the evidentiary hearing. C.P Russell filed a motion in opposition. C.P On September 4, 2014, a telephonic hearing on the State s motion for continuance was held. T

7 During the telephonic hearing, Russell s counsel indicated that he only intended to call 3 of the 23 listed witness at the hearing. T With that being the case, the State suggested that it could depose 2 of the 3 witnesses on the morning of the hearing, without need for deposing Russell s expert Dr. John Goff. T The trial court denied the State s motion for continuance, but ruled that the State would be able to depose the witnesses in question on the morning of the hearing until 11 a.m. T The Atkins hearing commenced on September 8, The State informed the trial court that it was not ready to go forward due to the denial of its motion for an Atkins evaluation by its expert, because two hours was insufficient to depose witnesses Clementine Harris and Anne Preziosi, and because it should have been permitted to depose the affiants and individuals who gave unsworn statements on Russell s behalf. T The trial court was not receptive to the State s request, and the hearing proceeded as scheduled. Over the course of two days, Russell presented testimony from three witnesses whose testimony will be discussed in detail below. The hearing had been scheduled for two days, but the petitioner had not completed his case in that time. Accordingly, the hearing resumed at the next available date, on December 17, After the petitioner rested his case, the State, having been denied the opportunity to have Russell tested for intellectual disability and other tools necessary to rebut the petitioner s case, rested without calling witnesses. The trial court, by order dated, December 31, 2014, granted Russell s motion for postconviction relief, finding that he had proven by a preponderance of the evidence that he meets the definition of intellectual disability as established in Atkins and Chase. C.P Accordingly, the trial court vacated Russell s death sentence. C.P The State timely filed its notice of appeal. C.P

8 STATEMENT OF FACTS Russell has never been evaluated for intellectual disability pursuant to Atkins. Appearing to be an obvious prerequisite for an Atkins hearing, and consistent with this Court s directive in remanding the case, the State moved the trial court to have Russell evaluated for intellectual disability. C.P At the hearing on the State s motion, the State presented testimony from clinical and forensic psychologist Dr. Gilbert Macvaugh, III in order to show why it was necessary to have Russell evaluated, and why older evaluations for different forensic purposes was insufficient to answer the question of whether Russell is intellectually disabled. T At the motion hearing, Dr. Macvaugh testified that he had previously testified in Russell s aggravated assault case, at both a suppression hearing and at trial. T. 51. Dr. Macvaugh, who was employed at the Mississippi State Hospital at the time of the aggravated assault case, had been court ordered to evaluate Russell to determine whether he was competent to waive his Miranda rights, competent to stand trial, and legally sane at the time of the charged act. T. 56, 189, 259. Accordingly, when Dr. Macvaugh evaluated Russell in 2006, the evaluation was designed to answer only those forensic questions for which the court ordered Russell to be evaluated. T. 55. Dr. Macvaugh testified that had he been ordered to assess Russell for intellectual disability in 2006, he would have collected different or additional data. T Dr. Macvaugh further explained that other prior psychological evaluations were also insufficient substitutes for an Atkins evaluation. T Dr. Macvaugh outlined the requirements for a finding of intellectual disability. Dr. Macvaugh noted that although Russell had been administered several IQ tests over the years, the scores were quite variable, and the last IQ test, the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III), administered in 2006 was obsolete at the time of the post-conviction 4

9 proceedings. T This is so because the norms upon which the WAIS-III was standardized are no longer a good estimate of what is average for the population. T. 63. Dr. Macvaugh opined, that for purposes of determining whether Russell was intellectually disabled for Atkins purposes, he should be given the most up-to-date instrument which reflects the most up-to-date science of the assessment of intelligence - the WAIS-IV. T. 61. Dr. Macvaugh further opined that when we rely on previous scores or when we administer an intelligence test that is out of date, we have concerns related to test obsolescence, that is, the artificial inflation of tests scores based on outdated norms which is called in the literature in the field the Flynn effect. T Moreover, psychologists are ethically required to administer the most up-to-date instrument available at the time of testing. T Dr. Macvaugh also questioned the validity of the 2006 IQ score because of nonstandard testing procedures - primarily distractions in the room such as defense counsel s insistence that a defense expert be present during testing. T The WAIS-IV, which was normed in 2005 or 2006 and published in 2008 accounted for and corrected known errors with the WAIS-III. T. 111, 117, The WAIS-IV also differs from 2 Russell had also been administered the WAIS-R in first by Dr. Gilbert Macvaugh, Jr., and two weeks later a WAIS by Dr. Charlton Stanley. T. 60. Both Dr. Macvaugh, III and Russell s own expert opined that the results of the WAIS-R administered by Dr. Stanley were of questionable validity because prevailing standards dictate that the same psychological instrument should not be administered to an individual more than once per six months to a year. T. 195, Scoring errors were also identified in the WAIS administered by Dr. Stanley. T In any event, Russell scored a 75 on the WAIS-III in 2006, a 68 on the WAIS-R in 1990, and a 76 on WAIS in T. 193, Intelligence tests are restandardized every 15 to 16 years to reset the mean at 100, to reset the average right in the middle of the bell curve so that we re not artificially increasing scores because the data that we collected to develop the test are just so out of date they are not consistent with current educational practices, nutrition, etc. T

10 the prior version in that it added additional subtests, withdrew other subtests, made changes regarding which subtests were optional and which were required, and revised scoring based on new norms. T As to the second factor for a finding of intellectual disability, Russell had never previously been evaluated for adaptive deficits. T. 56, 65, 286. The overarching question related to the adaptive behavior deficit prong is, Can the individual perform certain tasks in order to live independently in the community? T. 65. The assessment of adaptive behavior deficits generally involves the administration of standardized measures for assessing adaptive behavior, such as the Vineland Adaptive Behavior Scales-II or the Adaptive Behavior Assessment Scales-II. T. 66. However, Dr. Macvaugh expressed doubt as to the utility of administering such standardized measures to someone who has been incarcerated for as long as Russell has because the instrument would have to be rated based on someone else s memory of Mr. Russell s functioning in the community before age 18. T. 66. Recognizing the difficulty of utilizing traditional measures designed to assess adaptive behavior of one who has been incarcerated for as long as Russell has been, Dr. Macvaugh suggested interview kinds of tasks, additional kinds of psychometric testing, and review -- extensive review of the previous history, especially before age 18. T. 57. Regarding the onset before age 18 factor, because the forensic questions posed in 2006 concerned competency and sanity, the focus was Russell s mental state at the time of the alleged offense and at the time of trial. T Although Macvaugh and his colleagues did look at some historical information, as they would in any forensic mental evaluation, in an Atkins case, that retrospective analysis takes on a different form, meaning it has to be a lot more detailed and a lot more precise. T The historical data from the 2006 evaluation was collected, sorted, and 6

11 synthesized differently than it would have been had they been ordered to conduct an Atkins evaluation. T As such, the 2006 evaluation does not include an adequate assessment of onset for either adaptive behavior or intellectual functioning prior to age 18. T Dr. Macvaugh also explained that the previous malingering instruments which had been administered were insufficient to address whether Russell was malingering on an intelligence test, as required by Atkins. T. 57. Dr. Macvaugh explained that there are two types of malingering: malingering of psychiatric illness and malingering as to intellectual or cognitive deficits. T. 58. So for example, Dr. Gilbert Macvaugh, Jr. 4 opined in a 1990 psychological evaluation of Russell for competency and sanity that Russell may have been attempting to malinger certain psychological problems; but that finding was distinct from determining whether Russell exaggerated intellectual deficits. T. 58. Russell has never been administered a malingering instrument to determine whether he was exaggerating an intellectual deficit for Atkins purposes, an absolute requirement pursuant to Chase. In sum, Dr. Macvaugh opined that Russell s 2006 court ordered evaluation for competency and sanity was an insufficient basis for determining whether Russell was intellectually disabled within the meaning of Atkins and Chase. T. 269, 284. Dr. Macvaugh further opined that even had Russell been tested for intellectual disability during the 2006 evaluation, he would still recommend an up-to-date evaluation based on considerable developments in the field of forensic psychology and advancements in Atkins evaluations since that time. T At the conclusion of the hearing, counsel for Russell argued that the State should not be allowed to have Russell evaluated for intellectual disability, alleging that it was understood when 4 Dr. Mcvaugh, Jr. is the father of Dr. Gilbert Macvaugh, III. 7

12 Russell was evaluated in 2006 for competency and sanity in the aggravated assault case, the results of that evaluation would be used for the Atkins hearing, completely disregarding the fact that the 2006 evaluation was not an Atkins evaluation. T The State reiterated its position that Russell has never been evaluated for intellectual disability within the meaning of Atkins; the 2006 evaluation concerned separate and distinct forensic questions. T The parties submitted post-hearing memoranda supporting their respective positions, as well as proposed findings. C.P , , On September 5, 2013, the trial court entered an order denying the State s motion for an Atkins evaluation. C.P The evidentiary hearing on Russell s motion for post-conviction relief commenced on September 8, The State informed the trial court that it was not ready to go forward due to the denial of its motion for an Atkins evaluation by its expert, because two hours was insufficient to depose witnesses Clementine Harris and Anne Preziosi, and because it should have been permitted to depose the affiants and individuals who gave unsworn statements on Russell s behalf. T The trial court was not receptive to the State s request, and the hearing proceeded as scheduled. Russell first presented the testimony of Clementine Harrison, who served as a volunteer investigator with the Louisiana Capital Assistance Center in T Harrison became associated with LCAC through Reprieve, a British charity which seeks to end the death penalty. T. 329, 361. In working on Russell s case, she investigated a possible Atkins claim. T Specifically, Harrison collected Russell s school records and interviewed people who knew him. T. 330,355. Harrison testified that when interviewing witnesses, I would take, as far as I sort of humanly could, a verbatim note of what -- what was being said to me. T Harrison would then take her notes and type up statements, which she would then present back to the witnesses to sign 8

13 if they were happy with the statement. T In total, Harrison took statements, some sworn and some unsworn, from twenty individuals. T The statements were ultimately received into evidence over the State s objection based in part on hearsay. T Russell s next witness, Anne Preziosi, was offered as an expert as a teacher with a specialization in special education and, secondly, as a mitigation specialist with a specialization in Atkins cases. T However, after voir dire and argument by the State, the trial court found that Preziosi was not qualified as an expert in either of the areas in which she was offered. T Preziosi then proceeded to give lay witness testimony. Preziosi worked on Russell s case as a mitigation specialist with LCAC. T As such, she interviewed witnesses, collected records, and created a social history. T Preziosi also collected the school records of Russell s sister, Rosie, and the medical records of Russell s sister and nephew, Mary and Phillip, who are intellectually disabled. T , Preziosi then went on to interpret Russell s school records for the court. T Petitioner s counsel attempted to have Preziosi interpret Russell s grade school achievement testing results for the court, but the trial court sustained the State s objection that she was not qualified to do so. T Preziosi testified that she took statements from five individuals who knew Russell, two of which were unsworn. T. T , A social history not compiled by Preziosi also offered as evidence, despite the fact that the trial court had ruled that she was not a qualified expert. T ; Exhibit 2c. The petitioner next called Dr. John Goff, a clinical psychologist and neuropsychologist, who was accepted, over the State s objection, as an expert in the field of assessing mental retardation, the administration and interpretation of tests, and the evaluation of persons for the purposes of determining mental retardation. T ,

14 Dr. Goff has examined individuals for intellectual disability for thirty-nine years, primarily for the Social Security Administration, and has testified as an expert in at least 200 criminal cases, always for the defense. T. 506, 511, However, he has only seen three or four people in regard to Atkins issues and never conducted a complete Atkins evaluation himself. T Dr. Goff reviewed Russell s records and saw Russell for one hour at Parchman before determining that Russell was intellectually disabled. T. 513, 556. In the one hour interview, Dr. Goff had Russell do some drawings for me, do some handwriting for me, and such as that. T Dr. Goff had intended to do a bit of academic achievement assessment but determined that the environment was not conducive to such. T When asked if he had administered any tests, Dr. Goff replied that he went through the something called that Reitan-Indiana Screening Test[,]... had him do some a clock drawing for me, and administered the 21 Item Memory Test for malingering. T Dr. Goff opined there was no sign of malingering. T But later, on cross-examination, Goff acknowledged that the two tests he administered were merely screening tests and administered for the purpose of try[ing] to get acquainted with Russell. T He also spoke to 11 people who knew Russell and reviewed statements, several of which were unsworn. T Dr. Goff also considered Russell s scores from his 1990 WAIS and WAIS-R evaluations and his 2006 competency/sanity evaluation. T Dr. Goff concluded that Russell is intellectually disabled. T. 556, 657. Specifically, Dr. Goff pointed to Russell s prior IQ scores of 68, 75, and 76, and also opined that Russell had adaptive deficits in the areas of functional academics, health and safety, self-care, home living, and social skills. T , 609, He further determined that Russell was not malingering an intellectual disability, based on the malingering measure given in 2006 with the WAIS-III, despite 10

15 the fact that that malingering measure was given to determine whether Russell was malingering psychological problems, not intellectual disability. T Finally, Goff opined that Russell s placement in special education classes was a sufficient indication of onset prior to age 18. T On cross-examination, Dr. Goff admitted that he had only conducted an informal assessment of Russell. T Dr. Goff admitted that although he would typically give an IQ test for an Atkins evaluation, he did not give Russell and IQ tests is because he was instructed not to by Russell s counsel. T Russell s counsel told him there was an agreement that it would not be done. T Dr. Goff then testified that counsel for Russell advised him that it had been determined by the Court that there weren t going to be any more intelligence tests done. T In actuality, the trial court had only denied the State s request to have Russell tested. Nothing prevented Russell s own counsel from having his client tested, except for his desire to not do so. Dr. Goff could recall no other instance in which he had been retained as an expert and agreed not to perform certain psychological tests at the direction of counsel. T Prior to Russell s Atkins hearing, Dr. Goff had never made an intellectual disability diagnosis in an Atkins case without administering a standardized IQ test. T When pressed further about his decision to not administer an IQ test, specifically the WAIS-IV since he admitted the WAIS-III was obsolete and he no longer administered it, he again stated that based on what Russell s counsel told him, he believed, incorrectly, that the trial court had mandated that no further testing would be permitted. T He could cite to no published article in his field which supported the practice of not administering an IQ test in an Atkins case. T Dr Goff acknowledged that it was probably true that the validity of the statements Harris and Preziosi took from 7 people he had not spoken to could not be confirmed. T Regarding 11

16 his review of statements given on Russell s behalf and interviews he personally conducted to determine adaptive deficits, Dr. Goff spoke to no one whose name and contact information had not been provided by Russell s counsel, and Russell s counsel was present during the interviews. T Dr. Goff also acknowledged that deficits in adaptive behavior could be attributed to factors such as antisocial behavior, substance abuse, and depression - all issues Russell was documented to have experienced. T Dr. Goff also acknowledged that Russell attended school only sporadically, agreeing that it was probably correct that he had missed as many as thirty days or more in any given school year. T However, Goff claimed that such poor attendance had no bearing on his opinion that Russell had an adaptive deficit in functional academics. T Dr. Goff acknowledged that Russell received passing grades in twelfth grade, but pointed to a statement from a teacher who opined that Russell s transcript had been faked. T Dr. Goff testified that he had given Russell a malingering measure, but acknowledged that it was not standard practice to give a malingering measure without giving a standardized IQ test. T Goff also acknowledged that the malingering measure given in 1990 was to determine whether Russell was feigning psychiatric issues rather than intellectual disability. T Goff also admitted that he did not review any information that was not provided to him by defense counsel. T Dr. Goff acknowledged that it was standard practice in the field of forensic psychology to consider and include in the report all relevant data points, not just those which support the conclusion. T Goff claimed that he did not include in his report any data points which may indicate Russell is not intellectually disabled because he found none, despite having acknowledged that he only considered information selected by defense counsel. T The petitioner was unable to rest his case in the two days allotted for the hearing. As a result, 12

17 the hearing resumed on December 17, 2014, at which time the defense moved into evidence all of its exhibits. The State then announced that it had no witnesses to call and rested. T The parties submitted proposed findings, and on December 31, 2014, the trial court entered an order granting Russell post-conviction relief. C.P SUMMARY OF ARGUMENT Willie Russell has never been tested or assessed for intellectual disability as contemplated by this Court s decision in Chase v. State, 873 So. 2d (Miss. 2004). Nevertheless, the trial court accepted the testimony of Russell s expert, Dr. Goff, who formed an opinion that Russell was intellectually disabled based in part on findings from evaluations conducted to answer separate and distinct forensic questions, affidavits from individuals he had not personally interviewed, and unsworn, and therefore completely unreliable, out-of-court statements. Dr. Goff admitted that in the thousands of intellectually disability evaluations he had conducted over the years, he had not conducted one in the manner in which he did in the present case. The State submits that Dr. Goff s testimony failed to establish by a preponderance of the evidence that Willie Russell is intellectually disabled. Aside from the insufficiency of Russell s case, the State was wholly denied a meaningful opportunity to present a case in rebuttal. The death blow to the State s case was the denial of its motion to have Russell tested for intellectual disability. It is difficult to imagine how such a denial could be deemed proper in light of the fact that this Court remanded the case for the sole purpose of an Atkins hearing, specifying that Russell was to be administered a malingering measure as part of a comprehensive evaluation. In addition to this Court s clear directive for remand, Dr. Macvaugh s testimony which explained why Russell s 2006 mental evaluation for competency and sanity was 13

18 not a sufficient substitute for an Atkins evaluation provided the trial court with good cause to order such an evaluation. Accordingly, the trial court erred in denying the State s motion to have Russell tested for intellectual disability. The State submits that any one of the aforementioned errors individually warrants reversal of the trial court s order granting post-conviction relief. Should the Court disagree, then certainly the cumulative effect of the trial court s errors warrants a reversal and remand for a new evidentiary hearing, wherein the State should be afforded, at a minimum, the basic tools necessary to participate in the trial court s search for truth. ARGUMENT I. THE TRIAL COURT ERRED IN DENYING THE STATE S MOTION TO HAVE RUSSELL EVALUATED FOR INTELLECTUAL DISABILITY, AS RUSSELL HAD NEVER BEEN PREVIOUSLY EVALUATED FOR ATKINS PURPOSES. 5 The trial court erred in denying the State s request to have Russell undergo an Atkins evaluation prior to the Atkins hearing because Russell had never been, and still has not been, evaluated for Atkins purposes. This Court s Opinion remanding Russell s case for an Atkins hearing made fairly clear that Russell was to undergo an Atkins evaluation prior to the Atkins hearing. To the extent that the trial court applied Rule 35 of the Mississippi Rules of Civil Procedure to the issue 5 This Court s denial of the State s petition for interlocutory appeal on this issue was not a rejection of the merits of the State s claim. In Mauck v. Columbus Hotel Co., this Court made clear that a denial of a petition for interlocutory appeal was not a judgment on the merits. 741 So. 2d 259, 268 ( 27) (Miss. 1999). The Mauck court quoted a Fifth Circuit Court of Appeals case, explaining, This court s denial of such a petition may be for any number of reasons largely unrelated to the perceived merits of the order sought to be appealed from.... Id. at ( 28) (quoting Gallimore v. Missouri Pac. R.R., 635 F.2d 1165, n.4 (5th Cir.1981)). The Court further stated that a denial of a petition for interlocutory appeal should not be viewed as an indication of how the issues should be resolved on appeal from a final judgment. Id. (citing In Re Knapp, 536 So.2d 1330, 1333 (Miss. 1988)). Accordingly, the State s first assignment of error is properly before the Court. 14

19 of whether the State should be permitted to evaluate Russell for intellectual disability, the trial court erred in finding that State failed to demonstrate good cause for the evaluation. This Court s directive on remand, on its own, established good cause for the trial court to order an Atkins evaluation. Additionally, Dr. Macvaugh s testimony firmly established good cause to order an Atkins evaluation. for the evaluation. Even the Petitioner s own expert s testimony at the Atkins hearing ultimately corroborated Dr. Macvaugh s testimony showing that an Atkins evaluation was needed. The trial court s failure to permit the State conduct an Atkins evaluation on a petitioner whose claim for relief rested entirely upon Atkins and who had never undergone an Atkins evaluation should be deemed per se reversible error. In its order denying the State s motion to have Russell evaluated, the trial court made the following findings of fact related to the 2006 evaluation for competence and sanity in Russell s aggravated assault case: The State... was clearly conscious of both the aggravated assault prosecution and the post-conviction application and indicated its desire and intent that Mr. Russell be assessed by the staff of the Mississippi State Hospital for both purposes in the one visit. The circuit judge wanted to ensure that the progress of the aggravated assault case was not further delayed, by any action taken in the post-conviction matter, but beyond that one concern, intended that as far as possible Mr. Russell be made to submit to only one examination that would address the pending issues in both cases. Counsel for Mr. Russell explicitly stated [to the examiners] that Mr. Russell was consenting to the examination with the understanding that there would be no duplication of the examination for the post-conviction proceedings and placed those doctors on notice that the examination would serve as far as possible for both proceedings. Dr. Reb McMichael made clear that the information obtained could be used in Mr. Russell s post conviction proceedings, specifically the Atkins issue.... Mr. Russell s counsel, in turn, made mention that this evaluation was agreed upon with 15

20 the understanding that there were not going to be duplicated assessments.... Mr. Russell s counsel then expressed that this evaluation would not be a complete Atkins assessment, but all information or history obtained would serve for the purpose of the Atkins proceeding as well.... Dr. McMichael followed by stating that this information may be used on the Atkins issue to determine whether or not Mr. Russell was mentally retarded. C.P The trial court concluded that the State had not shown good cause for further or subsequent examination. C.P The court stated it must recognize the prejudice inherent in allowing multiple interviews of a criminal defendant by state actors. C.P In short, the trial court decided that although Russell had never undergone an Atkins evaluation, the State had at least one outdated I.Q. score, a score from an achievement test, and a three hour interview wholly unrelated to intellectual disability, and that would have to do. Where questions of law are raised, the standard of review is de novo. Thorson v. State, 76 So. 3d 667, 674 ( 19) (Miss. 2011). The State submits that the question of whether the State is entitled to have a PCR petitioner claiming intellectual disability submit to an Atkins evaluation is a pure legal question, and one this Court should answer in the affirmative. Even were this Court to determine that a more deferential standard applies, the trial court s findings of fact and conclusions of law were so clearly erroneous as to require reversal regardless of the standard of review employed. The trial court was incorrect in finding that the State had not shown good cause for requesting an Atkins evaluation where one had not been previously conducted. 6 First, this Court s order remanding for an Atkins hearing made clear that an Atkins evaluation must be conducted prior to the 6 The State would note that the trial court kept referring to the State s request as one for further evaluation or a subsequent evaluation. However, Russell had never undergone an Atkins evaluation at the time the State made its request in this case. T. 54. In fact, although Russell secured an expert willing to opine that Russell is intellectually disabled, to date, Russell has never undergone a complete Atkins evaluation, a point that will be more fully addressed in issue two. 16

21 Atkins hearing: After careful consideration we find that Russell should be granted leave to proceed in the trial court on the sole issue of whether he is mentally retarded such that he may not be executed under Atkins v. Virginia. To that end the standard or definition of mental retardation shall be that enunciated by the Supreme Court in Atkins, especially the American Psychiatric Association's definition of mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV (4th ed.1994). As Presiding Justice Smith recommends in his dissent, we further hold that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. See id. at 683 (defining malingering as the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs ). See also United States v. Battle, 235 F.Supp.2d 1301, 1307 (N.D.Ga.2001) (explaining MMPI and its validity scales and stating that [t]he MMPI is generally agreed to be difficult to cheat on without getting caught ). Russell must prove that he meets the applicable standard by a preponderance of the evidence pursuant to Miss.Code Ann (7) (Rev.2000). This issue will be considered and decided by the Sunflower County Circuit Court without a jury. Russell, 849 So. 2d at ( 251) (emphasis added). Testing to determine whether the examinee is malingering intellectual disability, is but one component of an Atkins evaluation. This Court was aware when it remanded the case for an Atkins hearing that Russell had already been administered the MMPI prior to his capital murder trial when he was evaluated for competence to stand trial. Id. at ( 213). Yet the Court still ordered that the MMPI be given for Atkins purposes. If the MMPI given during the 1990 evaluation for non-atkins purposes was an inadequate consideration for Russell s Atkins hearing, then the same is also true of the testing performed during Russell s 2006 evaluation for non-atkins purposes. The trial court was simply incorrect in denying the State s motion for an Atkins evaluation, in light of this Court s directive on remand. The trial court also erred in relying on the parties intent with regard to the 2006 evaluation for competency and M Naughten insanity. C.P Admittedly, the prosecutor in the 17

22 aggravated assault case expressed a desire to have Russell examined for intellectual disability for his Atkins claim simultaneous with the competence/sanity evaluation for the aggravated assault case. C.P Defense counsel initially objected to the State s request. C.P Defense counsel subsequently changed course and expressed a desire to have Russell evaluated once for all purposes - competency and sanity for the aggravated assault trial and intellectual disability for the Atkins hearing in the capital murder case. C.P But regardless of what the prosecutor and defense counsel intended regarding the 2006 State Hospital evaluation, the trial court ordered an evaluation only to answer the forensic questions of competency and sanity. C.P And certainly the trial court s order for the mental evaluation, not the parties intentions, is what governed the scope of the State Hospital doctors 2006 evaluation of Russell. Judge Sanders finding that the circuit judge [in the aggravated assault case]... intended that as far as possible Mr. Russell be made to submit to only one examination that would address the pending issues in both cases, is partially correct, but whatever the trial court may have intended is trumped by what the trial court actually ordered. T Judge Margaret Carey-McCray, who presided over Russell s aggravated assault case, when requested by defense counsel to order the State Hospital to test Russell for intellectual disability for his Atkins claim while evaluating for competence and sanity for the aggravated assault case, explicitly stated on the record, I don t have the authority to have him examined for the death penalty case. C.P After finding that she had no authority to enter any order in Russell s death penalty case, Judge Carey-McCray did state, But what I do have the authority to do is say that if that examination for the death penalty case is going to cover these same issues, and if that is on schedule to proceed before this one does, that that examination could be sufficient. C.P After 18

23 further discussion, Judge Carey-McCray clarified, If it can be done, we will, but if it -- I m not saying that it necessarily will be done. C.P Judge Carey-McCray then concluded the issue, stating, If there is an intersection with the other case, and we ll see if Judge Sanders has any plans about that exam or whatever, and if they can be done together, I think that would be great. I don t hear anyone saying that they have an objection to it. C.P But regardless of what Judge Carey-McCray may have intended, what she ordered was for the State Hospital doctors to conduct a mental evaluation to assist the trial court in determining (a) the defendant s competency to waive his Miranda rights and to make a voluntary confession; (b) to determine his competency to stand trial; (c) to determine his sanity at the time of the crimes alleged, not for an evaluation on intellectual disability. C.P The Whitfield doctors were prohibited from exceeding the bounds of the trial court s order which in no way directed them to assess for intellectual disability. Again, the trial court s order determining the scope of Russell s 2006 evaluation necessarily controls. The report from the 2006 evaluation, as well as Dr. Macvaugh s testimony at the hearing on the State s motion for an Atkins evaluation, shows that the State Hospital doctors evaluated Russell only for those precise forensic questions cited in the trial court s order. Competency and sanity are separate and distinct legal concepts. Sanders v. State, 9 So. 3d 1132, 1139 ( 25) (Miss. 2009). And intellectual disability for Eighth Amendment purposes is altogether different from both competency and sanity. As such, the trial court erred in finding that a mental evaluation which was limited to determining whether Russell was competent to stand trial and sane at the time of the aggravated assault was a sufficient substitute for an Atkins evaluation. Moreover, the trial court erred in equating statements Dr. McMichael made to Russell during the 2006 evaluation regarding how the information could be used by his attorneys in his Atkins 19

24 claim in the death penalty case to a finding that the 2006 competency/sanity evaluation was a sufficient substitute for an Atkins evaluation. A transcript of the 2006 evaluation reveals that Drs. Lott, McMichael, and Macvaugh questioned Russell about his understanding of the nature and scope of the 2006 evaluation and how the information they may obtain would be used. 7 R.E Russell responded that he was aware that he was being evaluated for competence to stand trial in the aggravated assault case. R.E. 63. Dr. McMichael responded, [T]here s a possibility that any information from this mental evaluation could be used in your other legal situation and I, I m a shrink. I m not a lawyer, so Mr. Bourke may know better about this than I do. R.E. 63. Russell s counsel then stated the following: And can I say the only reason we, we were going to withdraw this plea when there was a threat the State may just get to keep conducting multiple assessments fo Mr. Russell and the only reason we agreed to proceed with this assessment in the case was on the understanding that there weren t going to be duplicated assessments. This isn t going to be a complete Atkins assessment, I understand that but, to the extent that there s information obtained or history of what have you, that that s going to be... serve for the purposes of subsequent, the other proceedings as well. And it s not going to be a case of being given the same test batteries twice in the course of the next year or anything like that otherwise we would never have agreed to it at all... you know, the State testing him 10 times until they finally get the... R.E. 64. Dr. McMichael went on to explicitly state that they were not evaluating Russell for intellectual disability, but that defense counsel may attempt to use information obtained during the competency/sanity evaluation to later argue that Russell was intellectually disabled. R.E. 66. The above exchange makes two things clear. One, Dr. McMichael in no way stated that the information obtained during the competency/sanity evaluation would be sufficient to diagnose 7 The State has pending before the Court a motion to supplement the record with the aforementioned transcript. Because the transcript was inadvertently omitted from the appellate record, the State cites to its record excerpts in order to reference the transcript which was cited and relied upon by both the petitioner and trial court. 20

25 Russell with intellectual disability. Rather, Dr. McMichael merely sought to inform Russell that his attorneys may use information obtained during the evaluation to later argue that he was intellectually disabled. Second, defense counsel s response to Dr. McMichael s questioning shows that it was defense counsel s intent to not have Russell ever undergo a complete Atkins evaluation. Further, petitioner s counsel acknowledged that the 2006 evaluation was not an Atkins evaluation and expressed concern that Russell would be evaluated again a year later. The State s request for an Atkins evaluation, however, came six years after the 2006 evaluation, thus obviating counsel s objection. In any event, the State Hospital doctors had no authority to evaluate Russell beyond the scope of the court order, and they did not. For the foregoing reasons, the trial court erred in finding that Russell s 2006 evaluation for competency and sanity was a sufficient substitute for an Atkins evaluation. To the extent that the trial court applied Rule 35 of the Mississippi Rules of Civil Procedure to the issue of whether the State should be permitted to evaluate Russell for intellectual disability, the trial court erred in finding that State failed to demonstrate good cause for the evaluation. 8 Pursuant to Rule 35, a trial court in which an action is pending may order a mental evaluation of a party whose mental condition has been placed at issue. M.R.C.P. 35. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination. M.R.C.P. 35(a). 8 Although they challenge aspects fo a criminal conviction, post-conviction relief actions in the trial court are considered civil action. Miss. Code Ann Accordingly, the Mississippi Rules of Civil Procedure supplement the Mississippi Uniform Post Conviction Collateral Relief Act. Reeder v. State, 783 So. 2d 711, 715 ( 12) (Miss. 2001). In the present case, although the trial court s order did not specifically cite M.R.C.P. 35, the court cited to secondary sources which discuss the federal counterpart to M.R.C.P. 35. See trial court s order at C.P