in the supreme court of mississippi ricky...
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IN THE SUPREME COURT OF MISSISSIPPI
RICKY CHASE, Appellant
versus NO. 2013-CA-01089-SCT
STATE OF MISSISSIPPI, Appellee
_________________________________________________________________________
BRIEF OF APPELLEE
___________________________________________________________________
ON APPEAL FROM THE CIRCUIT COURT OF COPIAH COUNTY
NO. 13,941CR
__________________________________________________________
JIM HOODATTORNEY GENERAL
STATE OF MISSISSIPPI
MARVIN L. WHITE, JR.SPECIAL ASSISTANT ATTORNEY GENERAL
Counsel of Record
JASON L. DAVISSPECIAL ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
Post Office Box 220
Jackson, Mississippi 39205
(601) 359-3680
COUNSEL FOR APPELLEE
E-Filed Document Jun 18 2014 13:19:26 2013-CA-01089-SCT Pages: 52
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
V. ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. THE CIRCUIT COURT DID NOT DISREGARD SCIENTIFIC
CRITERIA OR THE TEACHINGS OF GOODIN v. STATE IN
REACHING ITS DECISION THAT PETITIONER WAS NOT
MENTALLY RETARDED... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. THE TRIAL COURT’S FINDINGS WERE NOT CLEARLY
ERRONEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. THE TRIAL COURT’S FINDING THAT PETITION IS NOT
MENTALLY RETARDED BASED ON THE EVIDENCE
PRESENTED AT THE EVIDENTIARY HEARING ARE
FULLY SUPPORTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IV. THE TRIAL COURT DID NOT ERR IN DENYING THE
MOTION FOR RECONSIDERATION. . . . . . . . . . . . . . . . . . . . . . . 45
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
i
TABLE OF AUTHORITIES
Cases page
Atkins v. Virginia, 536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 19, 30, 31,
34, 37
Baugh v. State, 388 So.2d 141 (Miss. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Brooks v. Roberts, 882 So.2d 229 (Miss.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Brown v. State, 731 So.2d 595 (Miss.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Chase v. Epps, 541 U.S. 1050, 124 S.Ct. 2180, 158 L.Ed.2d 746 (2004) . . . . . . 2, 3
Chase v. Epps, 74 Fed.Appx. 339, 339, reh. and reh. en banc denied,
83 Fed. Appx. 673 (5 Cri. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2th
Chase v. State, 645 So.2d 829 (Miss. 1994), cert. denied, 515 U.S. 1123,
115 S.Ct. 2279, 132 L.Ed.2d 282, 282, reh. denied, 515 U.S. 1179,
1116 S.Ct. 20, 132 L.Ed.2d 903 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Chase v. State, 645 So.2d 839 (Miss. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chase v. State, 698 So.2d 521 (Miss. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
Chase v. State, 873 So.2d 1013 (Miss. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Doss v. State, 19 So.3d 690 (Miss.2009) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 22, 40, 45
Goodin v. State, 102 So.3d 1102 (Miss. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7
Hanshaw v. Hanshaw, 55 So.3d 143, 146 (Miss. 2011) . . . . . . . . . . . . . . . . . . . . . 46
Holland v. State, 705 So.2d 307 (Miss. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) . . . . . . . 45
ii
Loden v. State, 971 So.2d 548 (Miss.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mullins v. Ratcliff, 515 So.2d 1183 (Miss.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Rhodis v. State, 349 So.2d 1046 (Miss. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Robinson v. State, 345 So.2d 1044 (Miss. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Thorson v. State, 76 So.3d 667 (Miss. 2011) . . . . . . . . . . . . . . . 6, 10, 11, 14, 22, 45
United States v. Montgomery, 2014 WL 1516147 (W.D.Tenn.
January 28, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Statutes
MISS. CODE ANN. § 97-3-12(2)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
MISS. CODE ANN. § 99-39-23(7) (Rev.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Authorities
Dora W. Klein, Categorical Exclusions from Capital Punishment: How Many
Wrongs Make a Right?, 72 Brooklyn L.Rev. 1211, 1234 n. 3 (2007) . . . . 40, 41
Atkins v. Virginia, 59 Hastings L.J. 1203, 1219 (2008) . . . . . . . . . . . . . . . . . . 40, 41
Implementing Atkins, 116 Harv. L.Rev. 2565, 2573 (2003) . . . . . . . . . . . . . . . 40, 41
James W. Ellis and Ruth A. Luckasson, Symposium on the ABA Criminal Justice
Mental Health Standards: Mentally Retarded Criminal Defendants, 53 Geo. Wash.
L.Rev. 414, 422 n. 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
iii
IN THE SUPREME COURT OF MISSISSIPPI
RICKY CHASE, Appellant
versus NO. 2013-CA-01089-SCT
STATE OF MISSISSIPPI, Appellee
___________________________________________________________________
BRIEF OF APPELLEE
___________________________________________________________________
COMES NOW the Appellee, State of Mississippi, by and through counsel and files
this Brief for Appellee with this Court in the above styled and numbered cause. This case
is an appeal from the denial of post-conviction relief by the circuit court after remand for an
evidentiary hearing by this Court.
I. STATEMENT OF THE CASE
Chase was indicted was indicted for capital murder during the November 1989 term
of the Circuit Court of Copiah County, Mississippi, in violation of MISS. CODE ANN. § 97-3-
12(2)(e). Petitioner was tried on the indictment and found guilty of capital murder by the
jury. At the conclusion of the separate sentencing trial the jury returned a sentence of death.
A motion for a new trial was denied on April 5, 1990.
Petitioner pursued his automatic direct appeal to this Court raising some twenty claims
of error. On February 24, 1994, this Court affirmed the conviction of capital murder and
sentence of death, and later denied the petition for rehearing with a written opinion on
1
December 8, 1994. Chase v. State, 645 So.2d 829 (Miss. 1994), cert. denied, 515 U.S. 1123,
115 S.Ct. 2279, 132 L.Ed.2d 282, reh. denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 903
(1995). On July 15, 1996, Chase filed a Application for Leave to File Motion to Vacate
Judgment and Sentence of Death with the Mississippi Supreme Court presenting some fifteen
claims. On August 7, 1997, this Court denied the application for post-conviction relief.
Chase v. State, 699 So.2d 521 (Miss. 1997).
On November 17, 1997, Chase filed a petition for writ of habeas corpus with the
United States District Court for the Southern District of Mississippi. On January 2, 2001,
the district court entered its Memorandum Opinion and Order denying the petition for writ
of habeas corpus. Chase v. Puckett, No. 3:97-cv-744 (W). The district court denied
petitioner’s motion to reconsider on May 29, 2001. On June 28, 2002, petitioner filed a
notice of appeal to the United States Court of Appeals for the Fifth Circuit. On July 30,
2002, petitioner filed his Motion for Certificate of Appealability. On November 29, 2001,
the district court entered an order granting a Certificate of Appealability, limited to the
question of whether counsel was ineffective for failing to have petitioner evaluated for
mental retardation. The United States Court of Appeals for the Fifth Circuit affirmed the
denial of federal habeas relief on August 8, 2003, and denied the petition for panel rehearing
and rehearing en banc on December 18, 2003. Chase v. Epps, 74 Fed.Appx. 339, reh. and
reh. en banc denied, 83 Fed. Appx. 673 (5 Cri. 2003). Petitioner then file a petition for writth
of certiorari with the United States Supreme Court which was denied on May 17, 2004.
2
Chase v. Epps, 541 U.S. 1050, 124 S.Ct. 2180, 158 L.Ed.2d 746 (2004).
While his petition for rehearing was pending in the Fifth Circuit petitioner filed a
motion for leave to file a successive post-conviction petition contending that he was mentally
retarded withing the meaning of Atkins v. Virginia, 536 U.S. 304 (2002). Because Atkins
was found to be an intervening decision, petitioner was allowed to proceed with his claim
in the trial court. On May 20, 2004, the Mississippi Supreme Court remanded this case for
an evidentiary hearing on the mental retardation question. Chase v. State, 873 So.2d 1013
(Miss. 2004).
The ordered evidentiary hearing was held on August 16-17, 2010. The trial court took
the case under consideration and on November 8, 2010, issued a memorandum opinion
finding that petitioner was not retarded within the meaning of Atkins v. Virginia, supra.
Petitioner appealed the circuit court’s decision to this Court.
On January 15, 2013, this Court entered an en banc order vacating the circuit court’s
order and remanding the case to the circuit court to take into account its clarification of what
the court could rely on in making its decision and ordering the circuit court to enter “his own
Findings of Fact and Conclusions of Law and to enter a new judgment based thereon.” On
May 6, 2013, the circuit court entered its own Order again denying petitioner relief on his
Atkins claim.
Petitioner timely perfected his appeal this order and the following is the response to
the claims raised by petitioner.
3
II. STATEMENT OF THE FACTS
The facts of this case are by now familiar to this Court. The Court set forth the facts
in the opinion on direct appeal and again on post-conviction review. See Chase v. State, 645
So.2d 839, 836-37 (Miss. 1994); Chase v. State, 698 So.2d 521 (Miss. 1997). The State
would adopt these recitations of the facts as its statement of the facts here.
III. SUMMARY OF THE ARGUMENT
The trial court did not violate this Court’s teachings in Goodin v. State, 102 So.3d
1102 (Miss. 2012), in fact the trial court followed the teachings of that case in arriving at its
decision that petitioner was not mentally retarded.
The trial court was not clearly erroneous in finding that petitioner has an IQ of 71.
No expert who testified that petitioner’s IQ was 70. Based on the testimony adduced at the
hearing the trial court was entitled to rely on the expert testimony and was not required to do
other calculations to arrive at a different IQ score. The trial court fully explained why it
chose to credit the adaptive functioning findings of Dr. Macvaugh over those of Dr. Reschly
even though Dr. Reschly conducted interview with live witnesses and Dr. Macvaugh was not
able to do so.
The trial court did not clearly err in applying the law regarding mental retardation to
the facts adduced at the evidentiary hearing. The trial court set forth the testimony and
explained his credibility choices on both the intellectual functioning prong and the adaptive
behavior prong of the test for mental retardation. The decision of the trial court to deny relief
4
is not clearly erroneous.
The trial court did not abuse its discretion in denying petitioner’s motion to reconsider
the judgment by holing an additional evidentiary hearing to hear further witnesses. Petitioner
could have called these witnesses at the original hearing, but chose not to do so. Further, he
could have made this request prior to the final judgment being entered, but failed to do so.
There was no abuse of discretion in the trial court’s denial of the motion for reconsideration.
IV. STANDARD OF REVIEW
In Doss v. State, 19 So.3d 690 (Miss. 2009), this Court explained the standard of
review to be used in assessing an appeal from the denial of a post-conviction relief petition.
The Court held:
¶ 5. The standard of review after an evidentiary hearing in
post-conviction-relief (PCR) cases is well settled. This Court has said:
“When reviewing a lower court's decision to deny a petition for post
conviction relief this Court will not disturb the trial court’s factual
findings unless they are found to be clearly erroneous.” Brown v. State,
731 So.2d 595, 598 (Miss.1999) (citing Bank of Mississippi v. Southern
Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)) (emphasis added).
In making that determination, “[t]his Court must examine the entire
record and accept ‘that evidence which supports or reasonably tends to
support the findings of fact made below, together with all reasonable
inferences which may be drawn therefrom and which favor the lower
court’s findings of fact. . . .’” Mullins v. Ratcliff, 515 So.2d 1183, 1189
(Miss.1987) (quoting Cotton v. McConnell, 435 So.2d 683, 685
(Miss.1983)). That includes deference to the circuit judge as the “sole
authority for determining credibility of the witnesses.” Mullins, 515
So.2d at 1189 (citing Hall v. State ex rel. Waller, 247 Miss. 896, 903,
157 So.2d 781, 784 (1963)).
Loden v. State, 971 So.2d 548, 572-573 (Miss.2007). However, “where
5
questions of law are raised the applicable standard of review is de novo.”
Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Mississippi
v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). The burden
of proof at an evidentiary hearing on a PCR case is on the petitioner to show
“by a preponderance of the evidence” that he is entitled to relief. MISS. CODE
ANN. § 99-39-23(7) (Rev.2007).
19 So.3d at 694.
Later in Thorson v. State, 76 So.3d 667 (Miss. 2011), reiterated how it would review
decisions of a trial court in denying post-conviction relief:
¶ 18. “When reviewing a lower court’s decision to deny a petition for
post conviction relief this Court will not disturb the trial court’s factual
findings unless they are found to be clearly erroneous.” Doss v. State, 19
So.3d 690, 694 (Miss.2009) (citing Brown v. State, 731 So.2d 595, 598
(Miss.1999)) (citations omitted). This Court “must examine the entire record
and accept ‘that evidence which supports or reasonably tends to support the
findings of fact made below, together with all reasonable inferences which
may be drawn therefrom and which favor the lower court’s findings of fact. .
. .’” Doss, 19 So.3d at 694 (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189
(Miss.1987)) (citations omitted).
¶ 19. However, “ ‘where questions of law are raised the applicable standard
of review is de novo.’” Doss, 19 So.3d at 694 (citing Brown v. State, 731
So.2d at 598). “The burden of proof at an evidentiary hearing on a PCR case
is on the petitioner to show ‘by a preponderance of the evidence’ that he is
entitled to relief.” Doss, 19 So.3d at 694 (citing MISS. CODE ANN. §
99–39–23(7) (Rev.2007).
76 So.3d at 674-75.
The State would assert that the findings of the trial court are not clearly erroneous and the
application of the law is not in error in this case.
6
V. ARGUMENT
I. THE CIRCUIT COURT DID NOT DISREGARD SCIENTIFIC
CRITERIA OR THE TEACHINGS OF GOODIN v. STATE IN
REACHING ITS DECISION THAT PETITIONER WAS NOT
MENTALLY RETARDED.
Petitioner asserts that Goodin v. State, 102 So.3d 1102 (Miss. 2012), contains three
teachings that Judge Pickard failed to follow. The State would submit that this claim is not
supported by the opinion of the trial court nor the Goodin opinion.
A. Goodin Does Not Forbid The Use of Language Usage Or Malingering In
Making The Determination Of Mental Retardation.
Petitioner seizes upon a line from the Goodin opinion and reads it as forbidding the
consideration of language usage in reaching a determination of mental retardation. The
Court’s opinion reads:
¶ 37. After careful examination of the entire record, we find that the circuit
court's ultimate determination that Goodin is not retarded is clearly erroneous.
The evidence that Goodin has met this Court's standard for mental retardation
is overwhelming and may not be discounted by the assertion that he is too
adept at using language or by other unsupported allegations of malingering.
This Court is mindful of the appropriate standard of review and deference to
be given to the circuit court's findings. We find that this is a rare case that
merits reversal, because the evidence is so convincing, barely controverted,
and covers such a span of time.
102 So.3d at 1113. [Emphasis added.]
The Court was not making a blanket exclusion of such evidence. The Court was merely
stating that the other evidence of mental retardation was so strong, “barely controverted,”
that such evidence could not overcome that strong evidence. When we look earlier in the
7
Goodin opinion we find the following:
As to subaverage intellectual functioning, Goodin points to five tests between
1971 and 2010, all using some version of the WAIS, and all with resulting
full-scale IQ scores in the sixties or lower. Goodin argues that his use of
language is not an adequate basis for discounting the results of these tests
over forty years.
102 So.3d at 1112. [Emphasis added.]
The question in Goodin was quite different than that at bar. Goodin was arguing that all of
his IQ test results were in the sixties or below and the only thing that was being used to show
he was not retarded was his use of language. That is not the case we have here. Petitioner
has attempted to make this into an absolute prohibition of such evidence, which the Court’s
opinion does not do.
Petitioner also mistakenly characterizes the language from Dr. Macvaugh’s article.
Dr. Macvaugh’s article states that an examiner cannot make the assumption that a person’s
IQ is underestimated by the testing “solely, because of a defendant’s vocabulary7 usage or
social recognition during an interview.” Ex. S-16, RE 109. Dr. Macvaugh did not make his
diagnosis based solely on language usage. While Dr. Macvaugh did testify to the language
usage by petitioner it was but one of the many basis of his conclusion and opinion.
Further, the trial court also relied on this finding by Dr. Macvaugh, but not solely. It
was but one of many factors that entered into the decision. Looking to the final conclusion
of the court it is apparent that the court relied more heavily on the testing that was conducted
and other factors than the language usage evidence. It is interesting to note that Dr. Reschly
8
also stated that he relied on language usage as an indication of intellectual functioning. See
Tr. 184. The trial court even noted this in its opinion. Opin. Deny Relief, RE. 29.
The neither Dr. Macvaugh nor the trial court relied solely on Chase’s use of language
as the basis that he was not mentally retarded.
Petitioner also contends that Dr. Macvaugh and the Court relied on unsupported
allegations of malingering to reach their conclusions that petitioner is not mentally retarded.
Dr. Macvaugh testified that he considered the results on the WAIS-IV to be of “marginal
validity”. This was based on the testimony of Dr. Gugliano that Chase “vomited his
breakfast”, and “[a]t one point in the testing, he -- he nodded off, and when his head fell
down, he jerked himself awake.” Tr. 252. Dr. Gugliano further testified that Chase
For most of the items, I think he was giving adequate effort. There were some
on the IQ measure where he would start saying, "I don't know, I don't know,
I don't know" for a few responses in a row. So it's possible that did he not
know, or it's possible that he wasn't putting forth maximum effort.
Tr. 251.
So these facts gave support to Dr. Macvaugh’s concern with the validity of the test. Dr.
Macvaugh never testified that the results were invalid, only that these facts caused him to
question the validity of the score.
Petitioner chides the State Hospital for not having petitioner brought down the night
before or waiting until the afternoon to do the testing. The Department of Corrections is in
charge of the death row inmates and the State Hospital has to deal with their scheduling. The
transport and housing of death row inmates is not within the control of the State Hospital.
9
Petitioner also questions why he was not tested at Parchman on cross-examination. During
redirect the State brought out the following reason. Dr. Macvaugh stated:
A. Well, we don't know, and there's another problem with that if I may
explain.
Q. Sure.
A. Testing someone in Parchman would be a terrible idea. I've done it twice.
It's loud, it's noisy, there are walkie-talkies going off, doors slamming, they're
usually cuffed up. It's just not an ideal environment for testing. So had we had
the opportunity to postpone the testing, the last place I would request doing it
the second time would be at Parchman.
Tr. 263.
The state would assert that this argument is without merit.
B. The Importance of Interviews
While this Court has stressed the importance of interviews with family members,
friends and educators in making a retrospective adaptive analysis, the Court has not held that
it is the only manner in which it can be done. The quote relied on by petitioner from Goodin
v. State, makes that clear. Petitioner’s argument that Dr. Reschly’s analysis of adaptive
behavior is valid because he conducted such interviews. However, the trial court fully
explained why he had little confidence in the testimony of Dr. Reschly regarding his
interviews in the opinion. See R.E. 33-35. This issue is discussed more fully in the response
to Issue Three, infra, in the section dealing with adaptive functioning and the state would
adopt its response there as the response here. This claim is without merit.
10
II. THE TRIAL COURT’S FINDINGS WERE NOT CLEARLY
ERRONEOUS.
A. Petitioner’s Contention Regarding His Score on the WAIS-IV is Without
Merit.
Petitioner contends that his score on the WAIS-IV was 70 and not 71, therefore he has
met the intellectual deficit portion of the definition of mental retardation. He argues that the
trial court failed to apply the “Flynn Effect” and consistently referred to his score as 71.
Petitioner contends the failure to apply the Flynn Effect makes the trial court’s finding clearly
erroneous. Looking to the latest pronouncement of this Court regarding the Flynn Effect we
look to the opinion in Thorson v. State, 76 So.3d 667 (Miss. 2011). There the Court held:
¶ 55. We cannot say that the trial court abused its discretion by finding that
Thorson did not have an IQ of 75 or below, despite the Flynn Effect or the
tree-stump effect. The trial court heard conflicting testimony as to the23
soundness of applying these phenomena in this context. Moreover, this Court
has not explicitly adopted or rejected the Flynn Effect or the tree-stump effect.
We also need not address the veracity of the Flynn Effect or the tree-stump
effect under our rules of evidence today, as neither party objected to the trial
court considering these phenomena.
¶ 56. In light of the conflicting expert testimony surrounding the Flynn Effect
and the fact that this Court has neither adopted nor rejected this effect, this
Court cannot say that the trial court committed clear error. The trial judge's
Order indicates that he considered both the Flynn Effect and the tree-stump
effect, as presented by the experts, but found them unpersuasive under the
facts of this case.
76 So.3d at 683-84.
Further, petitioner misreads the record. The 71 that the trial court relied on was what was
testified to, after the consideration of the Flynn Effect. There is no testimony in this record
11
that petitioner’s IQ was 70. If petitioner disagreed with Dr. Macvaugh’s testimony he could
have cross-examined him on that point, however we find no questions of Dr. Macvaugh on
this point. The state would also point out that Dr. Reschly, petitioner’s expert, who relied on
the testing of Dr. Gugliano and had the raw data to examine also stated that petitioner’s full
scale IQ score was 71. Tr. 179-80; 194. The trial court is not charged with doing
calculations himself based on the Flynn Effect when there is no testimony in the case which
would allow him to make such a calculation. There is no testimony in the record as to when
the WAIS-IV was normed which is essential when making such a calculation.
Since there was no testimony during the hearing that petitioner’s IQ was 70, and very
little mention of the Flynn Effect during the testimony, the trial court cannot be put in error
for relying on the IQ of 71 that was testified to by the experts for both the state and petitioner.
This claim is without merit.
B. While Both Dr. Macvaugh and Dr. Reschly Relied On the Testing Done By
Dr. Gugliano, The Trial Court Did Not Err In Crediting Dr. Macvaugh’s
Testimony.
Petitioner contends that the trial court ignored this Court’s holding in its remand order
stating that “testing administered by other professionals does not exclude their opinions.”
He contends that the trial court gave more credibility to Dr. Macvaugh than Dr. Gugliano,
who actually administered the testing in this case.
In support of this selects certain quotes from Dr. Gugliano’s testimony and attempts
to make them state what they do not. He asserts that Dr. Gugliano testified that petitioner’s
12
score on the WAIS-IV, that she administered, “falls within the range of mental retardation.”
See Pet. Brf. at 25; Tr. 143. When we look to the record in this case we find that petitioner’s
assertion is not supported by the record. In fact, what Dr. Gugliano was testifying about was
the standard error of measure. The testimony was that with a score of 71 there was a five
point confidence interval which means that there is a 95% chance that his IQ would fall
between 68 and 77. Dr. Gugliano testified that this number would fall within the range of
mental retardation. What petitioner does not mention is that the score could fall within the
high borderline range also. Thus the record does not support petitioner’s assertion. Dr.
Gugliano’s testimony centered on her administration of the test given to petitioner. In fact,
at no point during her testimony did Dr. Gugliano offer an opinion of the question of whether
petitioner was mentally retarded.
Since Dr. Gugliano only testified as to the testing and did not offer any opinion to a
reasonable psychological certainty regarding petitioner’s mental retardation, the trial court
did not err in giving credit to Dr. Macvaugh’s testimony over that of Dr. Gugliano.
The trial court found from the testimony that petitioner’s IQ was 71. However,
because that score fell within the 70-75 range the court found that the adaptive functioning
prong must be analyzed because of the “standard margin for error”. R.E. 21-22. At the
conclusion of the section on adaptive the trial court stated:
Additionally, this Court evaluated the second criteria - adaptive
functioning - due to Chase's IQ testing score of 71, as required by Chase.
Further analysis was required since Chase dictates that a score ranging from
70-75, while technically classified as borderline and not mental retardation,
13
can still serve as the basis for a finding of mental retardation if coupled with
significant deficits in adaptive behavior. However, after examining the issue
of adaptive functioning, and finding that Petitioner has not met his burden as
to that criteria, it is worth redressing [sic] the Intellectual Function prong.
R.E. 35.
The trial court then more fully addressed the issue of intellectual functioning. Beginning this
discussion the trial court clearly stated, that he was taking into account the “the standard
margin for error for the test”. R.E. 36. Clearly, the trial court considered this issue. This
Court stated in Thorson, supra, that when the trial court hears testimony on an issue and
considers it in making its decision it does not abuse its discretion in failing to rule as a
petitioner wishes. See 76 So.3d at 682-83.
The state would submit that this claim is without merit.
C. The Circuit Court Did Not Err In Not Crediting Dr. Reschly’s Findings on
Adaptive Behavior.
Petitioner’s argument under this section is difficult to follow and actually consists of
only the argument that the trial court did not explain how it resolved the disputed facts as to
the adaptive deficits. He contends that the trial court only relied on general disapproval of
Dr. Reschly’s adaptive functioning analysis. He offers no argument on the specifics of this
assertion and only refers the Court and the state to pages 12-20 of the trail court’s opinion
and his proposed findings. The State would assert that this is not proper argument. This is
not a cogent argument. See Holland v. State, 705 So.2d 307, 337 (Miss. 1997); Robinson
v. State, 345 So.2d 1044, 1045 (Miss. 1977); Baugh v. State, 388 So.2d 141, 143 (Miss.
14
1980); Rhodis v. State, 349 So.2d 1046, 1047 (Miss. 1977). However, we note that he refers
the Court to “Issue Three” for support of this claim. The state, while not waiving its
objection to the fact that no cogent argument is made on this point, would also refer the Court
to the response made to the petitioner’s Third Issue. Otherwise this claim is without merit.
III. THE TRIAL COURT’S FINDING THAT PETITION IS
NOT MENTALLY RETARDED BASED ON THE
EVIDENCE PRESENTED AT THE EVIDENTIARY
HEARING ARE FULLY SUPPORTED.
A. Mental Retardation as Defined by this Court.
This Court adopted the definition to be followed by the trial courts in making its
determination as to whether Chase suffers from mental retardation in Chase v. State, supra.
The trial court set forth this definition and discussed it application in its opinion. See R.E.
14-18. The trial court faithfully set forth the proper definition and how this Court has stated
it should be The State would assert that based on the evidence produced at the hearing in
this case that the evidence supports the decision of the trial court.
A. Significant Subaverage Intellectual Functioning.
Petitioner returns to his use of the standard error of measure to claim that petitioner
is retarded. By applying the plus or minus five point standard error of measure he contends
that he is retarded because if you subtract five points from the 72 IQ he obtained on the
WAIS -IV and the 71 he obtained on the WAIS-R in 1989, he falls within the mentally
retarded range. Using that logic the State could argue to the contrary that his IQ is 77 or 75.
While this is an interesting argument, not one witness testified that petitioner’s IQ score
15
should be reduced by 5 points. Here again we are talking of a confidence interval, that
meaning that there is a 95% probability that petitioner’s IQ falls within that range. The IQ
of 71 was what was testified to by Dr. Reschly, Dr. Macvaugh, and Dr. Gugliano.
Petitioner bases his whole argument on the following testimony by Dr. Gugliano:
Q. And what was the full scale IQ score of Mr. Chase?
A. The full scale IQ score was 72.
Q. And can you tell this court what the standard area [sic] of measurement is?
A. The standard area of measurement is the error that's built into the test. No
test is perfect, so there's always going to be a certain amount of error, so you're
given competence intervals to show where his true IQ score would fall.
Q. And what would that have been in this particular instance?
A. 95 percent competence interval. His true full scale IQ would fall between
68 to 77.
Q. And for simplification purposes, would that be the equivalent of a margin
of error?
A. Yes.
Q. Now, the interval between 68 and 77, that falls within the range of mental
retardation; does it not?
A. Yes.
Tr. 142-43.
However, petitioner fails to look to the more detailed description of the standard error of
measure found in Dr. Macvaugh’s testimony with regards to petitioner.
Q. And so in this case, this IQ of 71 or 72, do you think that equates to mental
16
retardation?
A. It can. I think it's difficult to use a score that is very imprecise. The
measurement of intelligence is not an exact science, so you can't use scores like
70, 71, 72 and expect that they're going to be dispositive as to a mental
disorder or mental retardation. But a score of 72 is consistent with two things.
It's consistent with borderline intellectual functioning, and it may also be
consistent with somebody who has mild mental retardation because of the
standard of error of the measure, the amount of error that comes with the test
scores. So the idea that a person can have a score up to 75 and still have mental
retardation is based on the notion that all tests have error, but a score of 72 is
not per se consistent with mental retardation. It's only possible because of error
that comes with tests.
Q. In fact, isn't it true, Doctor, that one can have a 65 or down to a 66 IQ and
still be found not to be retarded because of the standard measure?
A. That's correct.
Q. So it's a range between 65 and 75?
A. That's an approximate range. It's not quite so large. The plus or minus five
points is a convenient way of describing the error, but each instrument has a
different amount of error, and five points is certainly overly inclusive of that
range.
Q. But just because someone has got a 72, that does not automatically make
them retarded?
A. That's correct.
Q. And just because somebody has a 75 or below does not make them
automatically retarded, does it?
A. Correct.
Tr. 324-26.
While there was some testimony regarding the standard error of measure no witness testified
17
that petitioner’s IQ of 71 should be reduced or increased by 5 point. This is an issue which
petitioner could have fully developed at the hearing but failed to do. His reliance on Dr.
Gugliano’s testimony is misplaced as she never stated an opinion that petitioner was retarded
to a reasonable psychological certainty which is the standard that must be applied. In fact,
she did not state an opinion as to whether petitioner was retarded or not. She only testified
as to the testing that she conducted.
Petitioner also argues that the consistency of scores over time should be considered.
That is true, but on the test given in 1989, petitioner scored 71 and the 71 obtained in 2010
neither were considered to be a indication of mental retardation by the doctors who
interpreted those test. He also contends the Dr. O’Brien’s administration of the Shipley-II
to petitioner is consistent. However, Dr. O’Brien admitted on cross-examination that the
Shipely is “not strictly an IQ test”. Tr. 283. Further, Dr. O’Brien when asked if he knew
what Dr. Macvaugh and Dr. Cunningham’s article stated about relying on the Shipley as in
IQ measure, he stated that he could not recall, but “it's not controlling of what I do in my
practice.” Tr. 284. Further, he failed to administer a test for malingering. Id.
Dr. Macvaugh also stated that the consistency between the scores from State Hospital
testing and the testing by Dr. Perry something of a misnomer. While the full scale IQ scores
were consistent, the reason why they were consistent is important to understand. He pointed
out that Chase had a verbal IQ score of 77 at the age of 20 when tested in 1989 by Dr. Perry.
Dr. Macvaugh testified that people who have mild mental retardation do not get a verbal IQ
18
score of 77. He stated that mentally retarded people don’t have to use language in order to
answer the questions on the nonverbal tests, thereby they tend to do better on the
performance part of the test. He stated if you look to the index scales and subtests of the two
test he has been given, it almost looks like you are testing two different people. Tr. 329-30.
Dr. Macvaugh testified that any confusion between his statement about the importance
of an IQ test in making an assessment of mental retardation and his statement about the
validity of this particular IQ test was misplaced. He explained he did say IQ tests provide us
the best data for determining a person's intellectual function, but those scores do not always
accurately represent that person's intellectual function. He that when you have a suspicion
that they may under represent their actual intellectual functioning, it is incumbent upon the
psychologist who interprets those data to point out there may be limitations in the validity of
that information. He stated that the reason why Dr. Perry put the information in his report,
and why it was put it in the Whitfield report. Tr. 329-30.
Dr. Macvaugh noted that both of the intelligence test were given, scored, and
interpreted within a forensic context when there is some potential for him to put forth poor
effort or possibly even malinger. While Chase was not grossly malingering memory deficits.
Dr. Macvaugh testified that not malingering memory deficits is not necessarily the same thing
as malingering intellectual deficits.
Petitioner further argues that since Atkins had not been decided when Dr. Perry tested
him he had no reason not to preform fully during the testing as there was nothing to gain by
19
being retarded. There again petitioner is wrong. At the time that he was tested mental
retardation was a mitigating circumstance that could be considered by the jury in mitigation
of the sentence to be imposed.
The trial court considered the testimony of all the experts and set forth what was found
in the testimony. R.E. 18-22.
The court then concluded:
Chase's IQ testing scores of 71 fall within the range wherein mental
retardation may be present in an individual, under certain conditions.
However, discounting the brief Shipley-II test conducted by Dr. O'Brien,
which did not test for malingering, Chase's IQ testing falls in the borderline
range, but can extend to the "mild mental retardation" range due to standard
margin for error, if certain other conditions are met. According to the
DSM-IV, "it is possible to diagnose mental retardation in individuals with IQs
between 70 and 75 who exhibit significant defects in adaptive behavior."
This Court finds that Petitioner has brought forth sufficient evidence as
to the first prong intellectual functioning- to warrant further inquiry as to the
remaining prongs.
R.E. 22-23.
The trial court correctly identified the proper test for determining intellectual functioning and
from the testimony held that petitioner had not demonstrated that he suffers from significant
deficits in intellectual functioning.
However, after conducting his review of the adaptive functioning prong of the Chase
test, the trial court deemed it advisable to readdress the intellectual functioning prong
because petitioner’s score fell between 70 and 75.
This Court finds that Chase has not met either prong one or two, and
20
therefore has not met his burden to prove that he is mentally retarded as
provided by Atkins and Chase.
Chase's score of 71 on the WAIS-IV falls into the borderline range, not
mild mental retardation. While this score could serve as the basis for a finding
of mental retardation due to the standard margin for error for the test, even
though that score falls into the borderline range, and not the mental retardation
range - absent significant deficits in adaptive behavior it does not support a
finding of mental retardation. However, without even addressing adaptive
behavior, the tests which produced that score had caveats. In 1989, Dr. Perry
did not conduct a formal test for malingering as required by Chase. Dr. Perry
did note in his report that he had concerns over Chase not giving his best
effort, and that the score could be artificially low due to this suboptimal effort.
Dr. Macvaugh expressed similar concerns regarding the test results from
Whitfield. He differentiated between "malingering" as tested by TOMM and
other available tests, and suboptimal effort, which can produce artificially
lower test results even with no detected malingering.
Additionally, this Court found Dr. Macvaugh's testimony as to Chase's
performance on the Wechsler Memory Scale administered by Dr. Perry in
1989 notable. He opined that the Wechsler Memory Scale is a standardized
test just like the intelligence test and that Chase obtained a score of 99; the
average is 100. He explained that "although intelligence tests and memory
tests are not the same thing, they're related. And people who have mental
retardation generally don't have average memory function." He clarified that
the Wechsler Memory Scale is not an intelligence test, that it's not a test to
make a diagnosis of mental retardation, but memory is an important component
of intelligence. And to say that someone has an average memory score does
not comport with what we know about people who have mental retardation."
He stated that he is involved in a research project dealing with Atkins
evaluations and testing for malingering. He stated they are trying to determine
whether the tests currently available are appropriate for use with people with
mental retardation who are not criminally involved. In doing the research, he
explained that the one test the began using in their protocol was the same
Wechsler Memory Scale given to Chase by Dr. Perry in 1989. However, he
stated that because the WMS was such a cumbersome scale in terms of the
subtests involved, the people they were testing who have mental retardation
were getting so frustrated during the administration of it because of their
difficulties performing that they were beginning to refuse and decline
participation in the study. He stated that they had to remove it from their
21
protocol all together, persons with even mild mental retardation were unable
to take the WMS. That Chase could take the test, and score a 99, which is an
average score, is telling.
While the concerns over suboptimal effort expressed by Dr. Perry and
Dr. Macvaugh do not expressly assert an upward shift in score is required, they
make a case for the score to be viewed as leaning towards the high mark of the
range of standard deviation, and not the lower. Also, Chase's performances on
the WMS and WRAT achievement tests are inconsistent with the academic
and conceptual skills of a person with mental retardation.
This Court finds that Chase has not proven by a preponderance of the
evidence that he suffers from mental retardation as contemplated by Atkins and
Chase, because he has not shown to have significant subaverage intellectual
functioning, accompanied by significant limitations in adaptive functioning.
While manifestation before eighteen is a requirement under Atkins, it has not
been addressed as moot due to the lack of showing as to prongs one and two.
In considering the testimony of both parties, this Court finds that the
testimony of Dr. Macvaugh to be more credible and persuasive than that of the
Petitioner's experts. This Court finds that the Petitioner has failed to show by
a preponderance of the evidence that his intellectual functioning is
substantially subaverage. Chase has also failed to show by a preponderance
of the evidence that he has substantial limitations in adaptive behavior as
required for a finding of mental retardation under Atkins and Chase. This
Court finds that pursuant to the above findings of fact and conclusions of law,
Petitioner's petition for post-conviction relief is hereby denied.
R.E. 36-38.
The trial court clearly stated his reasons for his finding that petitioner was not suffering from
significant deficits in intellectual functioning. The decision of the trial court is not clearly
erroneous. See Thorson, supra; Doss, supra. This claim is without merit.
B. Adaptive Functioning.
Looking to what is shown by the record we will examine what was testified to by the
22
experts regarding adaptive functioning.
I. Dr. Daniel Reschly
He testified that based on his interviews with eight people in Hazlehurst who had
know Chase when he was growing up and his school records that Chase had significant
deficits in all of the adaptive functioning domains set forth in any definition of mental
retardation.
Dr. Reschly testified that in order to assess Chase’s adaptive functioning he looked
at information from the prior evaluations by Dr. Perry and at the State Hospital. He also
considered information from petitioner’s school records and his Social Security records
regarding his work history. He places his strongest emphasis on information obtained from
interviews with people who had firsthand information of Chase’s functioning prior to the
crime and his incarceration.
Dr. Reschly then explained that the definition of mental retardation from the AAMR
contains three domains of adaptive functioning: conceptual, social and practical. He testified
that an examiner determines if someone is deficient in adaptive functioning by considering
a wide variety of information and not relying simply on any specific adaptive behavior
inventory. He stated that the assessment of adaptive behavior is complicated when dealing
with adults who have been incarcerated for a long period of time. Dr. Reschly testified that
in this case he particularly relied upon interviews with people who knew Chase during his
developmental years.
23
Dr. Reschly summarized his findings related to each of the three domains in the
AAMR definition. First, he stated that he found Chase deficient in the area of conceptual
skills. In order to make this finding he reviewed Chase’s school records. He testified that
he noted Chase’ school grades were good in the first couple of grades and then progressively
deteriorated as he moved to higher grades. Dr. Reschly, interpreted that as indicating that
as the school curriculum became more demanding, Chase was increasingly unable to meet
the demands required in the higher grades. He also pointed out that Chase was required to
repeat the 10 grade as he did not earn any credits toward graduation. From this Dr. Reschlyth
concluded that Chase’s school performance overall was quite deficient.
Dr. Reschly stated that he then looked at how he uses language, how others describe
his use and understanding of language. He explained that “multiple reporters” indicated that
Chase didn’t seem to get the gist of conversations. As an example he stated that it was
reported that a group of boys talking were talking about a particular thing and Chase would
make comments that just did not fit with the gist of the conversation. From this he concluded
that Chase did not seem to be able to follow and understand the substance of the
conversation. Relying on sentences from the other reports and his own interview with Chase,
Dr. Reschly stated that his sentences would start in one direction, finish in another.
Therefore it was often very difficult to follow the second subject of the sentence. He stated
that he put several sentences in his report that did not make much sense.
Dr. Reschly stated that Chase’s reading and writing is adequate, particularly for a
24
person with mild mental retardation, but this was just represents an area of strength. By this
he stated he meant that Chase was significantly below average, but is higher than is typically
found in persons with mild mental retardation. Dr. Reschly then testified that Chase’s
understanding and use of number concepts and money, was quite deficient and was deficient
when he was in the developmental period, up to age 18. He stated that he is deficient in this
area today in the sense of his understanding of his commissary account and his use of number
and money concepts.
Dr. Reschly stated that even applying the 1992 AAMR definition that sets forth the
adaptive behavior in relation to the ten areas of adaptive functioning in that definition. He
stated that under that definition a person has to have deficits in two of the ten areas to fit the
definition of mental retardation. Dr. Reschly testified that in his opinion Chase was clearly
deficient at least nine of the ten areas and did not have much information on the other area.
Dr. Reschly stated that Chase’s Social Security records showed that was employed by
many different employers, and his employment was generally short term. He testified that
this corroborates his interviews with several individuals who described Chase as not being
able to keep a job because of incompetency in performing the job or other work demands.
Based on these things Dr. Reschly stated that it was his opinion that Chase had
substantial deficits in adaptive functioning, thereby meeting the second prong of the test for
mental retardation.
Dr. Reschly then stated that in his opinion that Chase’s mental retardation existed
25
prior to the age of 18. He stated that in his opinion the deficits were apparent across practice,
social and conceptual areas of adaptive behavior prior to age 18. He noted that all of the
people he interviewed regarding Chase all knew him prior to the time he was eighteen.
Dr. Reschly also admitted that his report did not really contain any notation of
anything that would indicate show that Chase was not retarded other than the statement that
his reading and writing abilities were adequate for a person with mental retardation. He also
stated that some areas of self care were inconsistent with mild mental retardation.
Dr. Reschly was then asked about Chase’s scores on the Wide Range Achievement
Test (WRAT). Dr. Reschly stated that all of the scores were in the 15 to 20 percentile and
that Chase’s scores in reading and writing scores were not ones typically seen in a person
with mental retardation. However, he stated that the scores in math skills or mathematical
reasoning and concepts in “his view” were consistent with mild mental retardation.
Dr. Reschly found that statement made during the Whitfield interview, in his opinion,
showed adaptive deficits in the area of language because they were not logical. When
questioned regarding his interpretation of these statements Dr. Reschly reasoned that they
were logical to him and he had never heard some of the expressions before. He admitted that
just because he had not heard an expression before did not mean that it is not logical. Dr.
Reschly admitted that one of the statements he credited as showing this deficit was only
partially quoted in his report. He persisted in his opinion that the full quote still showed
deficits in language. Dr. Reschly also found some of the statements incredible to him even
26
when other explanations were offered and therefore found that they showed a deficit in
language because he felt it was impossible to do that. Dr. Reschly also found Chase’s
statement explaining why he chose welding over culinary arts and business administration
in the Job Core was not logical and that it followed a pattern of Chase explaining thing that
happen on girls or sexual escapades. Dr. Reschly stated that he had no knowledge that the
reason was the actual reason he chose welding.
Dr. Reschly explained that the people that he interviewed regarding Chase’s adaptive
behavior were recommended to him by defense counsel and that he was escorted to meet
these people by an employee of defense counsel. He did not know what prior contact counsel
had with the people he interviewed and did not ask. He did not know what the people were
told regarding his visit other than he was working on the case. He testified that he did not
know what the effect of their prior knowledge of the purpose of his visit would have on the
veracity of their answers.
Dr. Reschly admitted that Chase’s achievement scores were adequate and were at a
variance with what witnesses told him about Chase being a slow learner and how he
struggled in school. However, he found that Chase had deficits in adaptive functioning
because the information came from the informants he interviewed even though these
statements were contradicted by the achievement test scores.
Dr. Reschly’s finding of adaptive deficits were based on informants statements that
there were no special education services in Hazlehurst during the period of time that Chase
27
was in school therefore he would not have been identified as deficient while in school. He
relied on the informants statements that Chase had no close friends. He relied on statements
that other people did his homework for him. He found that Chase not having a bank account
was a deficit in adaptive behavior, but did not know if Chase ever had enough money to open
such an account. He further relied on an informant’s statement that people would talk or
cheat Chase out of his money as showing a deficit in behavior. Dr. Reschly concluded that
Chase could not tell time because he often did not meet his friends at prearranged times or
just did not show up. Adaptive deficits were found on the basis of reports that Chase could
not count money or make change. Although Dr. Reschly had Chase make change for him
during his interview and Chase correctly made change twice and incorrectly once, he failed
to note this in his report. Chase’s stories of his sexual exploits were not believed by Dr.
Reschly and therefore credited as an adaptive deficits. He explained that mentally retarded
people make up stories to blame there failures on other things not related to the thing that
they failed to accomplish.
Dr. Reschly found adaptive deficits on the failure of Chase to interact with his
girlfriend’s sister’s boyfriends as a deficit behavior. He concluded that Chase would have
been embarrassed because he could not follow their conversations. He was told that Chase
often hung around with people younger than himself. Dr. Reschly stated that this was a
common thing among the mentally retarded because they could interact with them better than
peers. Dr. Reschly found that by failing his civics class in high school that Chase
28
demonstrated deficits in social responsibility because he would not know what to do as a
citizen. As a further deficit in the area of social responsibility Dr. Reschly found that if the
reports that Chase had a child out of wedlock were true that it demonstrated a deficit in that
area. When questioned about this he testified that he was applying his own moral code to
that behavior.
Dr. Reschly stated that reports about Chase always fighting while he was in middle
school were conflicting, opined that if the reports were it would be a deficit and if it they
were not true it was also a deficit because it was being made up.
Dr. Reschly found that Chase’s insistence that he was less culpable because he was
not the triggerman showed that he did not understand the degree of his legal situation was
a deficit in reasoning and judgment. He asserted that this was supported by the confession
transcript and Chase’s testimony at trial because in both he says that he’s less culpable
because he didn’t pull the trigger and he should not get the death penalty. Dr. Reschly
testified that attempting to blame the crime on someone else is not understanding the degree
of his culpability and therefore is an adaptive deficit.
Dr. Reschly stated that the informants that he interviewed had no reason to mislead
or lie to him about Chase. When he was ask if getting Chase off of death row was not a
reason to lie he stated that he did not think these people were lying to him.
Dr. Reschly reiterated his opinion that based on the testing done by Dr. Perry and the
State Hospital, the other material he had reviewed and his personal interviews with the
29
informants that Chase was mentally retarded within the meaning of Atkins.
b. Dr. Gerald O’Brien
Dr. O’Brien testified that from what he read in relation to the case he had formed an
opinion that Chase had deficits in at least two of the three domains used by Dr. Reschly from
the AAIDD handbook: conceptual skills, social skills, practical skills. Dr. O’Brien stated
that he did not think that Chase’ social skills were as severe as the other categories, but
probably met that category
Dr. O’Brien testified that when assessing adaptive behavior you rely on collateral
information when you do not have actual records you are left with information you can get
from other sources such as family, friends, teachers or employers who actually knew the
person before they were eighteen. He stated that the interviews were very important because
there was no other information on which he could base a finding of mental retardation.
Dr. O’Brien stated that he had no information regarding Chase’s adaptive behavior
other than Dr. Reschly’s interviews. Dr. O’Brien testified that the adaptive functioning part
is to show how one gets on in everyday life. He stated that from Dr. Reschly’s report it
appeared that Chase was heavily dependent on his mother for guidance for virtually
everything until he got older and his girlfriend took over that role.
Dr. O’Brien used the term “cloak of competency” with regard to mental retardation
stating that is where one who is mentally retarded does not want to be considered that way
and therefore attempts to try and fit in by attempting to be seen as smart and capable as
30
anyone else. He explained this would be like one claiming he lost his job because of some
factor not related to his job so that it does not appear that he lost his job because he could not
do the work or quitting school for some reason not related to the fact that he cannot keep up
with the work. Dr. O’Brien stated that this is the problem with relying on the self reporting
of a person about his adaptive functioning. He stated that Chase was heavily supported by
family and friends and could seem okay, but there were holes in his adaptive functioning.
Dr. O’Brien’s one-page report was introduced into evidence. He testified that it did
not contain the full list of things he had reviewed in reaching his opinion because he wanted
to furnish “something short and sweet and that I could get to the people that hired me so that
they could turn it over to” counsel for the State. Dr. O’Brien admitted that his report did not
set out what he relied on in reaching his conclusions. He stated that was not generally the
type of report he did in an Atkins case, and he would not have furnished one at all had it not
been legally requested. He then stated that it was the best he could do with the time
constraints he was working under.
Dr. O’Brien stated that he did not make any inquiries of anyone regarding adaptive
functioning. He relied on interviews contained in Dr. Reschly’s report and he did not have
the time to do any interviews himself. Dr. O’Brien testified there were always questions
about reliability and validity of information furnished by family and friends. He stated that
when the information is consistent on specific points from several people you begin to be
convinced that it is truly showing a deficit. Dr. O’Brien stated that he did not believe that
31
you could coach or school anyone on how to talk to the interviewers in order to get such
consistency.
Dr. O’Brien found it to be a deficit in adaptive behavior that his mother gave him
money and bought his clothes when he was working. Dr. O’Brien could not explain how his
conclusion was affected by the fact that Chase was between 16 and 19 years old during this
time and that for two years of that time he was in the Job Core in South Carolina. Dr.
O’Brien defended his opinion by asserting that this case was different because she continued
to give him money up until the time he went to jail.
Dr. O’Brien admitted that his reading informed him that Chase played quarterback at
times and was a running back at other times, but discounted this as being a self reported
information. Dr. O’Brien also relied on Dr. Reschly’s report which opined that there were
no special education services in Hazlehurst at the time Chase was in school. He stated that
it would be important to know whether such services were available because if they were
Chase did not get the services he needed. When confronted with the fact that such services
were available he stated that Chase likely would not have been identified because it is very
difficult to identify someone with mild mental retardation and Chase was always trying to fit
in with his peers.
Dr. O’Brien discredited the staff at Whitfield’s finding based on Chase’s word usage
as not being an objective measure. He stated that he did not administer a formal assessment
instrument for vocabulary usage. He concluded that he did not think that Chase knew the
32
meaning of many the words listed in the Whitfield report, but did not try to verify this point.
He stated that he had already formed an opinion of what he could and could not do and was
not interested in the vocabulary section. He stated that the test scores and the interviews
showed he was retarded in his opinion.
Dr. O’Brien, when challenged about where his information came from, simply stated
the records. When asked where specific references were to the things that he based his
opinion on he could not say. Dr. O’Brien agreed that Dr. Reschly’s report rejected any
caution and substituted his own conclusions regarding what the informants he interviewed
told him. Dr. O’Brien stated that it is not the way he would have done a report, but it was
not his report.
Dr. O’Brien stated that he based his opinion that Chase had significant deficits in
adaptive functioning before the age of eighteen on Dr. Reschly’s summaries of interviews
with the informants.
On redirect, Dr. O’Brien stated that it did not matter whether special education
services were available or not because Chase may have been missed unless he self reported
and that Chase would not have done that. He then stated that he would place no significance
on the fact that someone was or was not in special education because of the different ways
that school districts handled special education especially as some over identified young
African-American males as in need of special education services and others not identifying
anyone as needing such services. Dr. O’Brien stated that while he was given a CD with all
33
of the documents that Whitfield considered he did not read them all, because there were
thousands of pages.
c. Dr. Gilbert Macvaugh, III
Dr. Macvaugh is a clinical and forensic psychologist and was accepted as an expert
in mental retardation assessment, testing and interpretation. An article that Dr. Macvaugh
and Dr. Mark Cunningham authored regarding the standards for conducting an Atkins
evaluation was introduced into evidence.
Dr. Macvaugh and the Whitfield staff made a qualitative assessment of Chase’s
adaptive functioning. Dr. Macvaugh explained the distinction between qualitatively and
quantitatively assessing adaptive functioning as not giving a standardized instrument to
assess adaptive functioning. Therefore the assessment is qualitative because the assessment
is made by trying to assess something retrospectively without a psychometric instrument to
do it. He stated that they form their opinions based on that method versus an actual test.
Dr. Macvaugh stated that he and the investigator for Forensic Services attempt to call
Chase’s mother and sister based on numbers given to them by Chase. They also attempted
to call people from a list of names furnished by Chase’s attorneys. They found that either the
numbers given were no longer working numbers or the people did not return the calls as
requested in the messages left. They requested further assistance with contact information
from petitioner’s attorneys, but even after assurances of assistance, no such information was
received.
34
Dr. Macvaugh considered Chase’s school records in reaching his conclusions. He
stated that school records are one of the most important sources of data in assessing mental
retardation. Dr. Macvaugh stated school records in this case did not contain strong
persuasive evidence to suggest that Chase had severe limitations in academic functioning
because of intellectual problems. He noted that Chase had outstanding grades in the early
years and it was not until the fourth or fifth grade that he started to show some academic
decline. Dr. Macvaugh also noted there was no indication in the school records that Chase
was ever referred for or assessed for any kind of learning disability or mental retardation or
anything else that would suggest mental retardation. Dr. Macvaugh stated that even people
with mild mental retardation, usually come to the attention of school professionals or mental
health professionals because of their inability to succeed in the school system. There were
special education programs and evaluations in existence in the Copiah County Schools when
petitioner was in attendance.
Dr. Macvaugh also considered Chase’s scores on the California Achievement Test
(CAT) from the sixth grade. Chase had a total battery composite percentile ranking of 22.
He stated that meant that Chase was at the 22nd percentile nationally on an achievement test
in the 6th grade. Dr. Macvaugh testified that people who suffer mental retardation do not
score in the 22 percentile on standardized achievement tests in the sixth grade. The CATnd
achievement test scores support the finding that is not mentally retarded because people who
have mental retardation are people who fall below the 2 percentile, not the 22 percentile. nd nd
35
He stated that mentally retarded people cannot usually make it to the sixth grade. Dr.
Macvaugh testified that based on his CAT scores any concerns regarding a genuine
intellectual disability, it would have been dispelled by these standardized test scores. Further,
based on these scores he would not have been a candidate for special education.
Dr. Macvaugh stated that another reason for his opinion was that in 1989 Chase was
given the Wechsler Memory Scale. Dr. Macvaugh pointed out that the Wechsler Memory
Scale is a standardized test just like the intelligence test, and Chase obtained a score of 99,
the average is 100. Dr. Macvaugh explained that while intelligence tests and memory tests
are not the same thing, they are related. He testified that people who have mental retardation
generally don’t have average memory function. Dr. Macvaugh emphasized that the Wechsler
Memory Scale is not an intelligence test and not a test to make a diagnosis of mental
retardation, but memory is an important component of intelligence. He stated that even so
if a person has an average memory score it does not comport with what we know about
people with mental retardation.1
Dr. Macvaugh testified that there are many problems doing retrospective adaptive
behavior assessment, to begin with there are no the instruments that have been scientifically
validated for that purpose. The other problem is that such an assessment relies on a person's
Dr. Macvaugh also discussed a research project in which he is involved and said that1
they had to discontinue using the Wechsler Memory Scale with their mentally retarded
subjects because they could not complete it and became so frustrated that they refused to take
it.
36
memory, and we have 40 years of psychological research that suggests that memory over an
extended amount of time is notoriously unreliable. Dr. Macvaugh stated that he would not
put a lot of weight in such information. He stated that collecting information is important,
but not challenging or questioning the credibility of that information based on the other
variables that might be at play is a more significant problem.
Dr. Macvaugh stated that looking at Chases scores on the WRAT were a much
stronger indication of his academic abilities than what someone says his abilities were twenty
years ago.
Dr. Macvaugh disagreed with Dr. Reschly's opinion that Chase had severe deficits in
social functioning pointing out Chase’s social interaction during the interview portion of the
evaluation at Whitfield, his behavior when he entered the courtroom during the hearing and
his behavior in the halls outside the courtroom prior to the hearing. Dr. Macvaugh stated that
in his opinion that these behaviors were atypical of someone who has the kind of social
impairments and adaptive functioning that the other experts have concluded he has.
Dr. Macvaugh concluded his direct testimony by stating that in his opinion Chase did
not meet the criteria for mental retardation found in Atkins or Chase.
Dr. Macvaugh concluded his testimony by stating that in his opinion the data in this
case are inconsistent with a person that suffers from mental retardation, and that he was
confident of that to a reasonable degree of psychological certainty.
C. Finding of the Court as to Adaptive Functioning
37
The trial court considered the testimony of the experts and recounted their testimony
regarding adaptive functioning and the different domains to be considered. R.E. 23-33. The
trial court then summarized the testimony and concluded that petitioner had failed to prove
that he suffered from adaptive deficits. The Court explained why he found petitioner’s
experts conclusions less credible. The Court held:
Dr. Reschly stated that it was his opinion that Chase had substantial
deficits in adaptive functioning, thereby meeting the second prong of the test
for mental retardation. Dr. O' Brien testified that he found substantial deficits
in at least two of the three areas as described by the 2002 AAMR definition.
They both relied primarily on the interviews conducted by Dr. Reschly.
The State's primary witness, Dr. Macvaugh testified that Chase did not
possess the adaptive behavior deficits as contemplated by Atkins and Chase.
From a functional academic standpoint, Chase attended school until the 10 th
grade, never received any Special Education services, and was never
diagnosed with a learning disability or mental retardation by school
professionals or anyone before Atkins. His scores on the WRAT-R
administered by Dr. Perry, the achievement test administered by Whitfield, and
the sixth grade California Achievement Test revealed abilities which were
incongruent with the lower level of functioning indicated by his interviews and
grades. This Court finds the opinions of Dr. Macvaugh to the most credible
and reliable.
This Court is not persuaded by Dr. Reschly's findings in the area of
adaptive functioning, as many of his opinions did not appear to have a
substantial scientific basis, but rather were personal opinions which did not
necessarily show the deficit assigned to them, and could readily be interpreted
differently. Dr. Reschly's report and testimony appeared lack scientific
objectivity as to adaptive functioning. His report does not indicate any
particular method of questioning the interviewees so as to obtain reliable,
unbiased information. He appeared to have accepted anything he was told by
informants, without critical analysis. In fact, he that he believed the
interviewees were telling the truth and had no reason to lie to him. Both Dr.
Macvaugh and Dr. O'Brien testified that blindly relying on the accounts of
family, teachers, and friends should be viewed with caution. The subjects of
38
the interviews conducted by Dr. Reschly did not testify in Court, other than the
Chases' prior testimony, and for whatever reason, were not made available to
the State for interview. The objectivity and credibility of Dr. Reschly's report
is further drawn into question when he attributes deficiencies to areas either
due to his personal lack of knowledge of a phrase, unsubstantiated belief that
the statements were either untrue or impossible, or personal moral opinion.
For instance, Chase stated that he hit his head on the basketball rim at 12 0E
13, which Dr. Reschly assigned as a deficit because it was implausible.
However, Dr. Reschly did not ask whether the goal was regulation height, or
lower, or if the children were using a trampoline. Reschly's belief that dunking
at that age is entirely impossible was not shown to be grounded in science, but
his personal beliefs.
Dr. Reschly's findings are replete with instances of attributing deficits
easily and based on personal beliefs, not science. For instance, Dr. Reschly
assigned a deficit in social responsibility to the fact that Chase may have
unknowingly fathered a child out of wedlock prior to his incarceration, and
that he failed civics class.
The same can be said about the adaptive deficiency assigned to Chase
due to his washing salt off pre-packaged noodles. That appears to be not only
an insufficient and ungrounded basis for finding a deficiency, but an action
that is entirely possible. Chase's stories of his sexual exploits were not
believed by Dr. Reschly and therefore were credited as adaptive deficits. He
explained that mentally retarded people make up stories to blame their failures
on other things not related to the thing they failed to accomplish. While
potentially true, he did not appear to corroborate any of these allegedly "made
up stories", but rather simply decided himself what was and was not possible.
Dr. Reschly assigned deficits to Chase's fairly short work history, and that his
mother still bought him clothes and gave him money. However, he did not
believe it relevant to this finding that Chase was 16-19 through his work
history, and was arrested for the current offense at age twenty. Additionally,
Dr. Reschly assigned a deficiency to Chase due to his statements about being
less culpable in the murder for which he was convicted than the shooter.
Accomplice liability is an area which many people, even those with legal
training, often do not fully understand and certainly an argument by Chase that
as the non-triggerman in a murder equals less culpability is not so easily
categorized as deficient.
This Court does not find that Chase has met his burden as to the second
39
criteria, significant deficits in adaptive functioning as contemplated by Atkins
and Chase. Despite the credibility and reliability issues expresses as to Dr.
Reschly's findings, it appears that Chase does have some limitations, but not
significant deficits in the required areas, shown by a preponderance of the
evidence. Therefore, this Court will not address the third criteria, onset before
age 18.
Additionally, this Court evaluated the second criteria - adaptive
functioning - due to Chase's IQ testing score of 71, as required by Chase.
Further analysis was required since Chase dictates that a score ranging from
70-75, while technically classified as borderline and not mental retardation,
can still serve as the basis for a finding of mental retardation if coupled with
significant deficits in adaptive behavior. However, after examining the issue
of adaptive functioning, and finding that Petitioner has not met his burden as
to that criteria, it is worth redressing the Intellectual Function prong.
R.E. 33-35.
The trial court credited the findings of the State Hospital regarding Chase’s adaptive
functioning.
In Doss v. State, supra, with regard to findings of adaptive functioning, this Court
held:
¶ 46. Furthermore, the conceptualization of “adaptive behavior” or
“adaptive skills” has proven elusive. Note, Implementing Atkins, 116 Harv.
L.Rev. 2565, 2573 (2003); Lois A. Weithorn, Symposium: Conceptual
Hurdles to the Application of Atkins v. Virginia, 59 Hastings L.J. 1203, 1219
(2008) (“there is no single, commonly-accepted conceptualization of ‘adaptive
behavior’ ”); see also Dora W. Klein, Categorical Exclusions from Capital
Punishment: How Many Wrongs Make a Right?, 72 Brooklyn L.Rev. 1211,
1234 n. 3 (2007) (noting that scholars and courts alike find that determinations
regarding adaptive functioning are often subjective). There has been
confusion not only about the concept itself, but also disagreement as to its
value. Note, Implementing Atkins, 116 Harv. L.Rev. at 2575. Some studies
have suggested that IQ remains the best way of measuring intelligence in some
contexts. Id.; see also James W. Ellis and Ruth A. Luckasson, Symposium on
the ABA Criminal Justice Mental Health Standards: Mentally Retarded
40
Criminal Defendants, 53 Geo. Wash. L.Rev. 414, 422 n. 46 (citing Zigler,
Balla & Hodapp, On the Definition and Classification of Mental Retardation,
89 Am. J. Mental Deficiency 215, 227 (1984)) (noting that three scholars have
proposed that adaptive functioning be omitted from the definition of mental
retardation because “‘the essence of mental retardation involves inefficient
cognitive functioning’”).
¶ 47. Adaptive functioning historically has been assessed “on the
inherently subjective bases of interviews, observations, and professional
judgment.” Klein, 72 Brooklyn L.Rev. at 1235. In recent decades, researchers
have developed an increasing number of test instruments for quantifying
adaptive functioning, only a few of which have gained acceptance in the field.
Id.; Weithorn, 59 Hastings L.J. at 1220. These tests provide a necessary
objective measurement but offer no panacea. There are “no generally accepted
psychometric instruments for measuring adaptive skill levels that are
commensurate in reliability with IQ tests.” Note, Implementing Atkins, 116
Harv. L.Rev. at 2575 n. 72 (citing AAMR, Mental Retardation: Definition,
Classification, and Systems of Supports, 24, 87-90 (10th ed.2002)) (noting that
the AAMR concedes that there is no consensus regarding tests for adaptive
behavior, but states there are a number of tests with “excellent psychometric
properties”). One commentator suggests that existing measurement
instruments are inadequate and have very little utility in the Atkins context.
Weithorn, 59 Hastings L.J. at 1222.
¶ 48. By citing these controversies, we in no way suggest that this Court
abandon the adaptive-behavior prong, or intimate that the tests for measuring
adaptive functioning are inherently unreliable. Our point is to illustrate that
there is considerable, sincere disagreement among professionals and scholars
in the field as to the best method for measuring adaptive functioning. The
concept and measurement of adaptive functioning is an unsettled area without
consensus among experts and therefore, we cannot find that the Whitfield
doctors’ opinions are baseless, or that the trial judge clearly erred in accepting
their opinions.
19 So.3d at 713-14.
The trial court did not clearly err in accepting the opinion on adaptive functioning by the
Whitfield doctors over that of Dr. Reschly.
41
Interestingly, Dr. Reschly and his methods have also been criticized by the United
States District Court for the Western District of Tennessee in United States v. Montgomery,
2014 WL 1516147 (W.D.Tenn. January 28, 2014). There the federal judge held:
Dr. Reschly also appeared clearly predisposed at times, and that
predisposition appeared to affect his professional judgment. For example, Dr.
Reschly initially refused to accept that Defendant's 1996 performance
evaluation rating was “exceptional” because a misspelled written comment
said he was doing an “acceptional [sic]” job (Hr'g Ex. 147 at 00482); Dr.
Reschly took this to mean that the evaluation “might be something about
acceptable.... It's impossible to tell.” In other words, Dr. Reschly had trouble
conceding obvious points, and was attempting to find fault where there was
little objective basis with which to do so. (Tr. Oct. 7, 2013, ECF No. 251, at
218:2–219:2.) In another portion of his testimony, Dr. Reschly testified that
a comment on one of Defendant's performance evaluations that Defendant was
“to[o] young to evaluate at this time” (Hr'g Ex. 148 at 00492) was “almost
nonsensical,” when it clearly meant that Defendant had not been in the
position long enough to evaluate. (Tr. Oct. 7, 2013, ECF No. 251, at
227:10–228:1.)
Other courts have recently raised similar concerns about Dr. Reschly's
dismissiveness “due to his personal lack of knowledge of a phrase,
unsubstantiated belief that the statements were either untrue or impossible, or
personal moral opinion.” ( See Chase v. State, No. 13, 941–CR, slip op. at 21
(Cir. Ct. Copiah Cnty., Miss. May 8, 2013) (ECF No. 308–1 at 21).) The
Circuit Court of Copiah County, Mississippi, cited the following example
(highlighted in the Government's post-hearing brief):
For instance, Chase stated that he hit his head on the basketball rim at
12 or 13, which Dr. Reschly assigned as a deficit because it was
implausible. However, Dr. Reschly did not ask whether the goal was
regulation height, or lower, or if the children were using a trampoline.
Reschley's [sic] belief that dunking at that age is entirely impossible
was not shown to be grounded in science, but his personal beliefs.
(Id.)
Finally, the Court was troubled by the glibness of some of Dr. Reschly's
42
answers to questions at the hearing. The most poignant example occurred
when Dr. Reschly asserted that although it is not typical for persons with mild
MR/ID to go to college, he has seen it happen, specifically among scholarship
athletes at Iowa State University and the University of Arizona. (Tr. Oct. 7,22
2013, ECF No. 251, at 163:1–15.) Dr. Reschly did not elaborate regarding the
basis for his statement that the persons he has encountered in college who meet
the intellectual criteria for mild MR/ID have all been scholarship athletes. (See
id. at 163:25–164:7.) Thus, the Court cannot be sure whether Dr. Reschly
performed an individual analysis of these athletes, or whether he casually
assigned mild MR/ID to persons who may not meet the requisite diagnostic
criteria.
In conclusion, Dr. Reschly's testimony and conclusions are unreliable.
The Court assigns little weight to them in light of the fact that they were often
hasty, overstated, or simply incorrect. The Court has no doubt that Dr. Reschly
is an accomplished academic and well-qualified to opine on issues of adaptive
behavior and MR/ID; his methods and conclusions in this particular case,
however, lack credibility.
2014 WL 1516147, *11.
It appears that Dr. Reschly has some problems with applying his personal opinions on what
classifies as adaptive deficits rather than taking a more critical or scientific approach.
Petitioner has quoted a section form Goodin stressing the importance of relying on
witnesses who knew a petitioner at certain times in his life. However, petitioner overstates
what the Court held. The Court held:
¶39 . . . This Court has noted the importance of interviewing family and friends
knowledgeable about the defendant's past. See Doss, 19 So.3d at 714.4
Interviews with educators or others in the community familiar with the
defendant's behavior before age eighteen also would provide valuable
information. Adaptive-functioning tests may be administered to these
individuals as well. A retrospective evaluation also could include a thorough
review of school records, social history, and work history, among other
things. 5
43
102 So.3d at 1115. [Emphasis added, footnotes omitted.]
While interviews with family, friends educators can be valuable is not the only way an
retrospective analysis of adaptive behavior can be conducted. The fact that the state’s
experts did a quantitative analysis by reviewing the school records, social history and work
history of petitioner.
The trial court followed the teachings of Chase and concluded that petitioner had
failed to demonstrate by a preponderance of the evidence that Chase suffers from significant
deficits in adaptive behavior. This claim is without merit.
Conclusion to Issue III
Respondent would assert that the findings and conclusions of the trial court are fully
supported by the testimony that was presented in the case at bar. The trial court credited the
testimony of Dr. Macvaugh that Chase does not suffer from significant deficits in intellectual
functioning based on the testing he conducted, the testing conducted by Dr. Perry prior to
trial, and the various other documentary evidence he considered, especially the scores on the
CAT. The trial court’s finding is not clearly erroneous on this question.
Here the Court is presented with a case similar to that presented in Doss in which the
Court concluded:
¶ 50. In sum, we have in this case experts who take opposite positions
as to whether Doss is mentally retarded. Neither side’s methodology,
approach, or understanding of the issue is infallible. The ultimate issue of
whether Doss is, in fact, mentally retarded for purposes of the Eighth
Amendment, is one for the trial judge, who sits as the trier of fact and assesses
the totality of the evidence as well as the credibility of witnesses. While expert
44
opinions are helpful and insightful, the ultimate decision of mental retardation
is not committed to the experts, but to the trier of fact. As the United States
Supreme Court has noted, “the science of psychiatry, which informs but does
not control ultimate legal determinations, is an ever-advancing science, whose
distinctions do not seek precisely to mirror those of the law.” Kansas v. Crane,
534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).
¶ 51. The trial judge heard all the evidence and the expert opinions
offered, and found the Whitfield doctors to be more credible. The trial judge
followed the procedures we set forth in Chase and concluded that Doss had
failed to prove by a preponderance of evidence that he is mentally retarded.
For the reasons set forth herein, this Court cannot say that the trial judge
clearly erred in doing so. Accordingly, this Court affirms the circuit court’s
judgment to the extent that it denied post-conviction relief based on Doss'
Atkins claim.
19 So.3d at 714-15.
Similarly, in the case at bar, the trial court heard all of the evidence and the expert opinions
presented by both Chase and the State. The trial court followed the procedure set forth in
Chase and concluded that Chase had failed to prove by a preponderance of the evidence that
he is mentally retarded. The findings of the trial court are not clearly erroneous and therefore
the State asserts that the decision of the trial court should be affirmed. See Thorson, supra;
Doss, supra.
IV. THE TRIAL COURT DID NOT ERR IN DENYING THE
MOTION FOR RECONSIDERATION
In his motion for reconsideration the petitioner asked the Court to vacate its order and
conduct a second evidentiary hearing at which he could call the witnesses that were
interviewed by Dr. Reschly and examined in open court.
The state would assert that petitioner had the opportunity to call these witnesses
45
during the original hearing and failed to do so. Petitioner could have filed a motion to reopen
the hearing after remand by this Court and made this request. He failed to do so. He waited
until after the final judgment was entered to make this request. It cannot be said that he had
no indication of the trial judges possible ruling in this case as he had already denied relief in
the original opinion rendered in this case. The remand order in this case did not reverse the
trial court’s original ruling. The Court vacated the order and remanded for the trial court to
clarify whether the trial court felt it was precluded on considering the conclusions of the
experts who relied on other peoples testing and enter its own findings of fact and conclusions
of law. The ordering of new findings had caused “concern” because the trial court had
adopted the state’s proposed finding of fact and conclusion law.
The denial of a Rule 59 motion is reviewed under the abuse of discretion standard.
See Hanshaw v. Hanshaw, 55 So.3d 143, 146 (Miss. 2011); Brooks v. Roberts, 882 So.2d
229, 233 (Miss.2004). The state would assert that the trial court did not abuse its discretion
in denying the motion for reconsideration.
CONCLUSION
For the above and foregoing reasons, the State respectfully submits that the decision
of the Circuit Court of Copiah County denying post-conviction relief should be affirmed.
46
Respectfully submitted,
JIM HOODATTORNEY GENERAL
STATE OF MISSISSIPPI
JASON L. DAVISSPECIAL ASSISTANT ATTORNEY GENERAL
MARVIN L. WHITE, JR.SPECIAL ASSISTANT ATTORNEY GENERAL
Miss. Bar No. 7149
Counsel of Record
s/ Marvin L. White, Jr.
OFFICE OF THE ATTORNEY GENERAL
Post Office Box 220
Jackson, Mississippi 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-3796
Email: [email protected]
47
CERTIFICATE
I, Marvin L. White, Jr., Assistant Attorney General for the State of Mississippi, do
hereby certify that I have this day caused to be mailed, via United States Postal Service, first-
class postage prepaid, a true and correct copy of the foregoing BRIEF FOR APPELLEE to
the following:
James W. Craig, Esquire
Louisiana Capital Assistance Center
636 Baronne Street
New Orleans, Louisiana 70130
Cynthia A. Stewart, Esquire
118 Homestead Drive, Suite C
Madison, Mississippi 39110
This the 18 day of June, 2014.th
s/ Marvin L. White, Jr.SPECIAL ASSISTANT ATTORNEY GENERAL
Miss. Bar No. 7149
48