in the supreme court of mississippi - … the supreme court of mississippi no. 2015-ka-00245-sct...
TRANSCRIPT
IN THE SUPREME COURT OF MISSISSIPPI
No. 2015-KA-00245-SCT
STATE OF MISSISSIPPI, Appellant
versus
WILLIE RUSSELL Appellee
POST-REMAND BRIEF OF APPELLANT
JIM HOODATTORNEY GENERALSTATE OF MISSISSIPPI
LaDonna HollandSPECIAL ASSISTANT ATTORNEY GENERALMiss. Bar No. 101888Counsel of Record
Jason L. DavisSPECIAL ASSISTANT ATTORNEY GENERALMiss. Bar. No. 102157
Office of the Attorney GeneralPost Office Box 220Jackson, Mississippi 39205Telephone: (601) 359-3827Telefax: (601) [email protected]
E-Filed Document Aug 24 2016 17:01:18 2015-KA-00245-SCT Pages: 36
TABLE OF CONTENTS
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
I. THE TRIAL COURT ERRED IN DENYING THE STATE’S MOTION TO HAVERUSSELL EVALUATED FOR INTELLECTUAL DISABILITY, AS RUSSELL HASNEVER BEEN EVALUATED FOR ATKINS PURPOSES... . . . . . . . . . . . . . . . . . . . . . 14
II. THE TRIAL COURT ERRED IN FINDING THAT RUSSELL PROVED BY APREPONDERANCE OF THE EVIDENCE THAT HE IS INTELLECTUALLY DISABLEDPURSUANT TO ATKINS AND CHASE.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
III. THE TRIAL COURT’S ORDER GRANTING POST-CONVICTION RELIEF SHOULDBE REVERSED BASED ON CUMULATIVE ERROR... . . . . . . . . . . . . . . . . . . . . . . . 30
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
i
TABLE OF AUTHORITIES
Federal CasesAtkins v. Virginia, 536 U.S. 304 (2002)...................................................................................... 2, 3Gallimore v. Missouri Pac. R.R., 635 F.2d 1165 (5th Cir.1981). ................................................. 16Hall v. Florida, 134 S. Ct. 1986 (2014).......................................................................................... 2King v. Epps, 2013 WL 1291632 (N.D. Miss. Mar. 26, 2013). .................................................... 26Russell v. Mississippi, 519 U.S. 982 (1996). .................................................................................. 3United States v. Battle, 235 F.Supp.2d 1301 (N.D.Ga.2001). ...................................................... 19
State CasesBaker Donelson v. Seay, 42 So. 3d 474 (Miss. 2010)................................................................... 24Chase v. State, 112 So. 3d 421 (Miss. 2013). ......................................................................... 28, 29Chase v. State, 873 So. 2d 1013. (Miss. 2004). ...................................................................... 15, 25Doss v. State, 19 So. 3d 690 (Miss. 2009). ................................................................................... 27Eaton Corp. v. Frisby, 133 So. 3d 735 (Miss. 2013).................................................................... 24In Re Knapp, 536 So.2d 1330 (Miss. 1988).................................................................................. 16Lynch v. State, 951 So. 2d 549 (Miss. 2007). ............................................................................... 31Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (¶16) (Miss. 2003). ......... 29Reeder v. State, 783 So. 2d 711 (Miss. 2001)............................................................................... 23Ross v. State, 954 So. 2d 968 (Miss. 2007)................................................................................... 32Russell v. State, 607 So. 2d 1107 (Miss. 1992)........................................................................... 2, 3Russell v. State, 670 So. 2d 816 (Miss. 1995)............................................................................. 2, 3Russell v. State, 819 So. 2d 1177 (Miss. 2001)............................................................................... 3Sanders v. State, 9 So. 3d 1132 (Miss. 2009). .............................................................................. 21Thorson v. State, 76 So. 3d 667 (Miss. 2011)................................................................... 18, 19, 27
State StatutesMiss. Code Ann. §99-39-7............................................................................................................ 22Miss.Code Ann. § 99-39-23(7). .................................................................................................... 19
State RulesM.R.E. 702.................................................................................................................................... 29M.R.C.P. 35. ........................................................................................................................... 16, 23
ii
STATEMENT OF ISSUES
I. THE TRIAL COURT ERRED IN DENYING THE STATE’S MOTION TO HAVERUSSELL EVALUATED FOR INTELLECTUAL DISABILITY1, AS RUSSELL HASNEVER BEEN EVALUATED FOR ATKINS PURPOSES.
II. THE TRIAL COURT ERRED IN FINDING THAT RUSSELL PROVED BY APREPONDERANCE OF THE EVIDENCE THAT HE IS INTELLECTUALLY DISABLEDPURSUANT TO ATKINS AND CHASE.
III. THE TRIAL COURT’S ORDER GRANTING POST-CONVICTION RELIEF SHOULDBE 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 97-3-19(2)(a) (1972). Id. at 1109. 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
1The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that theEighth Amendment’s prohibition on cruel and unusual punishment precluded the execution of thementally retarded. The term “mental retardation,” however, has largely been replaced in the medicalfield with the term “intellectual disability.” T. 54, 737. Accordingly, the U.S. Supreme Court nowemploys 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” unlessciting direct quotes which use the term “mental retardation.”
1
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 1118-19. 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, 1996.
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, 2000. C.P. 165, 302. Russell was evaluated for competency
1
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. 137-139; 306-309.
On April 12, 2010, Russell filed his motion for post-conviction relief in the trial court. C.P.
29-33. On June 30, 2010, the State filed its response. C.P. 54-67. 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. 108-112.
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. 739-
751. 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. 2013-M-01618-SCT.
An evidentiary hearing on Russell’s motion for post-conviction relief was set for September
8-9, 2014. C.P. 770. On August 28, 2014, the State filed a motion for continuance. C.P. 777. 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. 777. The State indicated its desire to
depose most, if not all, of the petitioner’s witnesses prior to the evidentiary hearing. C.P. 777.
Russell filed a motion in opposition. C.P. 787-803. On September 4, 2014, a telephonic hearing on
the State’s motion for continuance was held. T. 297.
2
During the telephonic hearing, Russell’s counsel indicated that he only intended to call 3 of
the 23 listed witness at the hearing. T. 301. 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. 302-303. 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. 314.
The Atkins hearing commenced on September 8, 2014. 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. 323-324. 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, 2014. 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 post-
conviction 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. 884-920. Accordingly,
the trial court vacated Russell’s death sentence. C.P. 920. The State timely filed its notice of appeal.
C.P. 941.
3
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. 108-373. 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. 51-284.
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. 259. Dr. Macvaugh further explained that other
prior psychological evaluations were also insufficient substitutes for an Atkins evaluation. T. 58-62.
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
proceedings. T. 55.2 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. 61.3 Moreover, psychologists are
ethically required to administer the most up-to-date instrument available at the time of testing. T.
276-277. 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. 280-282.
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, 123-124. The WAIS-IV also differs from
2Russell had also been administered the WAIS-R in 1990 - first by Dr. Gilbert Macvaugh,Jr., and two weeks later a WAIS by Dr. Charlton Stanley. T. 60. Both Dr. Macvaugh, III andRussell’s own expert opined that the results of the WAIS-R administered by Dr. Stanley were ofquestionable validity because prevailing standards dictate that the same psychological instrumentshould not be administered to an individual more than once per six months to a year. T. 195, 243694. Scoring errors were also identified in the WAIS administered by Dr. Stanley. T. 568. In anyevent, Russell scored a 75 on the WAIS-III in 2006, a 68 on the WAIS-R in 1990, and a 76 onWAIS in 1990. T. 193, 568.
3Intelligence tests are restandardized every 15 to 16 years to “reset the mean at 100, to resetthe average right in the middle of the bell curve so that we’re not artificially increasing scoresbecause the data that we collected to develop the test are just so out of date they are not consistentwith current educational practices, nutrition, etc.” T. 64.
5
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. 274-275.
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. 286. 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. 286. The historical data from the 2006 evaluation was collected, sorted, and
6
synthesized differently than it would have been had they been ordered to conduct an Atkins
evaluation. T. 286. 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. 286-287.
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. 284-285.
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
4Dr. Mcvaugh, Jr. is the father of Dr. Gilbert Macvaugh, III.
7
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. 292-293. 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. 296.
The parties submitted post-hearing memoranda supporting their respective positions, as well
as proposed findings. C.P. 655-668, 677-715, 716-738. On September 5, 2013, the trial court
entered an order denying the State’s motion for an Atkins evaluation. C.P. 739-751.
The evidentiary hearing on Russell’s motion for post-conviction relief commenced on
September 8, 2014. 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. 323-324.
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 2007. T. 328. 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. 329.
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. 332. Harrison would then
take her notes and type up statements, which she would then present back to the witnesses to sign
8
“if they were happy with the statement.” T. 344. In total, Harrison took statements, some sworn and
some unsworn, from twenty individuals. T. 346-355. The statements were ultimately received into
evidence over the State’s objection based in part on hearsay. T. 333.
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. 385. 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. 432-436.
Preziosi then proceeded to give lay witness testimony. Preziosi worked on Russell’s case as a
mitigation specialist with LCAC. T. 439. As such, she interviewed witnesses, collected records, and
created a social history. T. 439. 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. 441-443, 447-448. Preziosi then went on to interpret Russell’s school records for the
court. T. 449-466. 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. 466-468. Preziosi testified that she took statements from five
individuals who knew Russell, two of which were unsworn. T. T. 475-477, 486-487. 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. 478-482; 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. 516-517, 550-554.
9
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, 533-534. However, he has only seen “three or four people in
regard to Atkins issues” and never conducted a “complete” Atkins evaluation himself. T. 539. 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. 558. Dr. Goff had
intended to do “a bit of academic achievement assessment” but determined that the environment was
not conducive to such.” T. 558. 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. 558. Dr.
Goff opined there was no sign of malingering. T. 559. 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. 701-702. He also spoke to 11 people
who knew Russell and reviewed statements, several of which were unsworn. T. 561-562. Dr. Goff
also considered Russell’s scores from his 1990 WAIS and WAIS-R evaluations and his 2006
competency/sanity evaluation. T. 566-567.
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. 568-569, 609, 653-654. 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
the fact that that malingering measure was given to determine whether Russell was malingering
psychological problems, not intellectual disability. T. 641. Finally, Goff opined that Russell’s
placement in special education classes was a sufficient indication of onset prior to age 18. T. 656.
On cross-examination, Dr. Goff admitted that he had only conducted an informal assessment
of Russell. T. 722-723. 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. 659-661. Russell’s counsel told him “there was an agreement that it would
not be done.” T. 660. 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. 668.
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. 671. 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. 672. 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. 695. 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. 695.
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. 703. Regarding
11
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.
713-715. 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. 717-719. 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. 720-721. However, Goff claimed that such poor attendance had
no bearing on his opinion that Russell had an adaptive deficit in functional academics. T. 721. 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. 724-725.
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.
674-675. Goff also acknowledged that the malingering measure given in 1990 was to determine
whether Russell was feigning psychiatric issues rather than intellectual disability. T. 686.
Goff also admitted that he did not review any information that was not provided to him by
defense counsel. T. 666. 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. 667. 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. 667.
The petitioner was unable to rest his case in the two days allotted for the hearing. As a result,
12
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. 922-923.
The parties submitted proposed findings, and on December 31, 2014, the trial court entered
an order granting Russell post-conviction relief. C.P. 884-920.
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 1013. (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
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 HAVERUSSELL EVALUATED FOR INTELLECTUAL DISABILITY, AS RUSSELL HADNEVER 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
5This Court’s denial of the State’s petition for interlocutory appeal on this issue was not arejection of the merits of the State’s claim. In Mauck v. Columbus Hotel Co., this Court made clearthat a denial of a petition for interlocutory appeal was not a “judgment on the merits.” 741 So. 2d259, 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 largelyunrelated to the perceived merits of the order sought to be appealed from . . . .” Id. at (¶28) (quotingGallimore v. Missouri Pac. R.R., 635 F.2d 1165, 1168-69 n.4 (5th Cir.1981)). The Court furtherstated that a denial of a petition for interlocutory appeal “should not be viewed as an indication ofhow the issues should be resolved on appeal from a final judgment.” Id. (citing In Re Knapp, 536So.2d 1330, 1333 (Miss. 1988)). Accordingly, the State’s first assignment of error is properly beforethe Court.
14
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 andthe post-conviction application and indicated its desire and intent that Mr. Russell beassessed by the staff of the Mississippi State Hospital for both purposes in the onevisit.
The circuit judge wanted to ensure that the progress of the aggravated assault casewas not further delayed, by any action taken in the post-conviction matter, butbeyond that one concern, intended that as far as possible Mr. Russell be made tosubmit 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 wasconsenting to the examination with the understanding that there would be noduplication of the examination for the post-conviction proceedings and placed thosedoctors on notice that the examination would serve as far as possible for bothproceedings.
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
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 Atkinsassessment, but all information or history obtained would serve for the purpose of theAtkins proceeding as well. . . . Dr. McMichael followed by stating that thisinformation may be used on the Atkins issue to determine whether or not Mr. Russellwas mentally retarded.
C.P. 742-743. The trial court concluded that the State had not shown good cause for “further or
subsequent examination. C.P. 744-745. The court stated it “must recognize the prejudice inherent
in allowing multiple interviews of a criminal defendant by state actors.” C.P. 744-745. 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
6The 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 Atkinsevaluation at the time the State made its request in this case. T. 54. In fact, although Russell securedan expert willing to opine that Russell is intellectually disabled, to date, Russell has never undergonea complete Atkins evaluation, a point that will be more fully addressed in issue two.
16
Atkins hearing:
After careful consideration we find that Russell should be granted leave toproceed in the trial court on the sole issue of whether he is mentally retarded suchthat he may not be executed under Atkins v. Virginia. To that end the standard ordefinition of mental retardation shall be that enunciated by the Supreme Court inAtkins, especially the American Psychiatric Association's definition of mentalretardation. American Psychiatric Association, Diagnostic and Statistical Manual ofMental Disorders IV 39-46 (4th ed.1994). As Presiding Justice Smith recommendsin his dissent, we further hold that the Minnesota Multiphasic PersonalityInventory-II (MMPI-II) is to be administered since its associated validity scalesmake the test best suited to detect malingering. See id. at 683 (definingmalingering as the “intentional production of false or grossly exaggerated physicalor psychological symptoms, motivated by external incentives such as avoidingmilitary duty, avoiding work, obtaining financial compensation, evading criminalprosecution, or obtaining drugs”). See also United States v. Battle, 235 F.Supp.2d1301, 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 theevidence pursuant to Miss.Code Ann. § 99-39-23(7) (Rev.2000). This issue will beconsidered and decided by the Sunflower County Circuit Court without a jury.
Russell, 849 So. 2d at 148-149 (¶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 140-141 (¶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. 742-743. Admittedly, the prosecutor in the
17
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. 410. Defense counsel initially objected to the State’s request. C.P. 410-415. 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. 424-426. 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. 115. 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. 742-743.
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. 425. 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. 425-426. After
18
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. 427-428. 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. 431. 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. 115. 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
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. 62-67.
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 therewas 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 casewas on the understanding that there weren’t going to be duplicated assessments. Thisisn’t going to be a complete Atkins assessment, I understand that but, to the extentthat 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 notgoing to be a case of being given the same test batteries twice in the course of thenext 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
7The State has pending before the Court a motion to supplement the record with theaforementioned transcript. Because the transcript was inadvertently omitted from the appellaterecord, the State cites to its record excerpts in order to reference the transcript which was cited andrelied upon by both the petitioner and trial court.
20
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).
8Although they challenge aspects fo a criminal conviction, post-conviction relief actions inthe trial court are considered civil action. Miss. Code Ann. §99-39-7. Accordingly, the MississippiRules 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 trialcourt’s order did not specifically cite M.R.C.P. 35, the court cited to secondary sources whichdiscuss the federal counterpart to M.R.C.P. 35. See trial court’s order at C.P. 744.
21
Although it appears that a trial court determination pursuant to M.R.C.P. 35 is typically reviewed
for abuse of discretion, a reviewing court will reverse where “there is a definite and firm conviction
that the court below committed clear error of judgment in the conclusion it reached upon weighing
of the relevant factors.” Eaton Corp. v. Frisby, 133 So. 3d 735, 747 (¶45) (Miss. 2013); Baker
Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 495 (¶¶63-64) (Miss. 2010).
The State satisfied the prerequisites to have Russell evaluated pursuant to M.R.C.P. 35 because the
entire point of the proceedings concerned Russell’s mental condition, and good cause for an Atkins
evaluation was obvious.
In addition to this Court’s remand order and the limited scope of Russell’s 2006 mental
evaluation constituting good cause for an Atkins evaluation, Dr. Macvaugh’s testimony at the
December 10, 2012 hearing firmly established good cause for the State’s request for an Atkins
evaluation. As recounted in the Statement of Facts above, 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 “because the field has really evolved
considerably between the date in which we evaluated Mr. Russell before in 2006 and now.” T. 284.
Macvaugh elaborated as follows:
We’re better at evaluating Atkins eligibility now. The field has developed. We learnmore about how to conduct these evaluations appropriately that we wouldn’t havenecessarily known in 2006.
The number of years between the date that we previously evaluated him andthe present time is significant enough that the field has moved in a different direction,meaning we know more, we’ve learned more, we know how to do the assessments
22
better. So even if we had attempted to do the assessment in 2006, if I were askedwould that suffice, given what I now know about Atkins evaluations and what we didnot know back then, I would still suggest that an up-to-date evaluation would beimportant because of the stakes: This man's life is on the line.
And any opportunity that we can have to contribute better information to thatlegal decision that the Court has to make makes sense from an ethical perspective andfrom a clinical perspective in my profession.
T. 284-285. Even Dr. Goff’s testimony from the Atkins hearing corroborated Dr. Macvaugh’s
opinion that the administration of the most up-to-date intelligence instrument was necessary in order
to render an reliable opinion as to whether Russell was intellectually disabled. Dr. Goff opined that
the WAIS-III score was a sufficient consideration for a diagnosis of intellectual disability, while at
the same time arguing that the WAIS-III contained known errors and was so outdated that his WAIS-
III score of 75 should be “adjusted” (defense speak for reduced) by a full five points. T. 567-569,
668.
Dr. Macvaugh also explained that although Russell was given a malingering measure in 2006
exam, it was not for the purpose of determining whether Russell was malingering intellectual
disability. T. 55-60. Dr. Macvaugh explained, “There are two types of malingering: Malingering
of psychiatric illness and malingering or exaggeration of intellectual or cognitive deficits.” T. 58.
Certainly this Court’s concern in Chase when it made the absence of malingering a necessary
showing to be deemed intellectually disabled for Eighth Amendment purposes was malingering of
intellectual deficits, not malingering of a psychiatric illness. 873 So. 2d at 1029 (¶74). The fact that
Russell’s 2006 evaluation did not test for nor reveal whether Russell was malingering intellectual
disability is another reason that the trial court’s finding that the 2006 evaluation was a sufficient
substitute for an Atkins evaluation is clearly erroneous.
23
Finally, the trial court’s finding that Russell would have been prejudiced by being subjected
to an Atkins evaluation was simply unsupported by the law of this State. Neither counsel for the
petitioner nor the trial court cited to any authority, relevant or otherwise, to support its finding of
prejudice. The order elaborated on the so-called prejudice Russell would allegedly face if the court
permitted the State to “reevaluate” him as follows:
Mr. Russell bears the burden of production in this post-conviction proceedingand should be provided the opportunity to complete the preparation of his affirmativecase without the interferences of an intervening examination by the State’s expert.
The State’s expert has previously examined Mr. Russell both in a lengthyclinical interview and through extensive psychometric testing. To permit the State’sexpert to examine Mr. Russell a second time would be to permit an unfair andunwarranted forensic advantage.
While difficult to quantify, there may be risks of error associated with furthertesting of Mr. Russell, whether as a result of the standard error of measurement or theextraordinary number of IQ tests he has been administered over the years. Whereboth an expert retained by the Petitioner in 1990 and an expert chosen by the Statein 2006 have produced IQ scores that may satisfy the first prong of Atkins, it wouldbe prejudicial to require Mr. Russell to be tested by the State again.
C.P. 750. How could the State possibly have obtained an “unfair and unwarranted forensic
advantage” by seeking to have an Atkins evaluation of a petitioner claiming he is intellectually
disabled and who has never before undergone an Atkins evaluation? The State sought no unfair and
unwarranted advantage; it sought to assist the trial court in the search for truth, the goal of any legal
proceeding. The State in all Atkins case relies upon its experts’ determination. Indeed, in another
case on federal habeas review involving a claim of intellectual disability, Dr. Macvaugh performed
an Atkins evaluation finding the petitioner to be intellectually disabled. There, following Dr.
Macvaugh’s diagnosis, the State confessed the matter. King v. Epps, 2013 WL 1291632 (N.D. Miss.
Mar. 26, 2013). Clearly then, the State was not trying to gain an unfair advantage as the trial court
24
found, but rather merely have its expert evaluate the petitioner as has been done in every other Atkins
case in this State since Chase in 2004.
The trial court’s failure to recognize that good cause for the requested evaluation was based
on this Court’s remand order, Dr. Macvaugh’s testimony, and the fact that Russell had never had an
Atkins evaluation was a clear error of judgment requiring reversal. Nearly all of the trial court’s
findings of fact related to the issue presented were clearly erroneous. And as a pure legal question,
the State must be permitted to evaluate a PCR petitioner claiming intellectual disability for
intellectual disability. In no other legal proceeding would a Respondent be denied the basic tools
required to present a case based on the vagaries of some unspecified prejudice to the Petitioner.
Accordingly, the State asks this honorable Court to reverse the trial court’s order granting post-
conviction relief, and to remand the case for a new evidentiary hearing, prior to which the State must
have Russell evaluated for intellectual disability.
II. THE TRIAL COURT ERRED IN FINDING THAT RUSSELL PROVED BY APREPONDERANCE OF THE EVIDENCE THAT HE IS INTELLECTUALLYDISABLED PURSUANT TO ATKINS AND CHASE.
Russell was required to prove by a preponderance of the evidence that he was entitled to post-
conviction relief because he met the definition of intellectual disability as established in Atkins and
Chase. Thorson, 76 So. 3d at 675 (¶19). Specifically, Russell was required to prove that : “(1) he
has significantly subaverage intellectual functioning (2) he has deficits in two or more adaptive
skills; (3) he was eighteen or younger when the retardation manifested itself; and (4) he is not
malingering.” Id. at 676-677 (¶27). The petitioner must prove all prongs to be found intellectually
disabled for Eighth Amendment purposes. Doss v. State, 19 So. 3d 690, 709 (¶33) (Miss. 2009).
The State submits that Russell failed to prove by a preponderance of the evidence that he is
25
intellectually disabled. The State would show that Russell’s proof for each factor was deficient and
that the trial court’s order granting post-conviction relief employed an erroneous legal standard
requiring reversal.
Recently this Court reversed a trial court’s post-conviction relief order for “fail[ing] to
consider intellectual and adaptive functioning as an interrelated analysis” and “failing to balance and
analyze [the petitioner’s] adaptive functioning deficits with his IQ score.” Carr v. State, No.
2014–CA–00726–SCT (Aug. 11, 2016) at (¶¶64-65). The State submits that the trial court’s order
in the present case suffers from the same deficiency. There is nothing in the trial court’s order which
indicates that the trial court judge considered Russell’s outdated IQ scores and evidence of adaptive
deficits in an interrelated analysis. Instead, the trial court merely recounted the evidence presented
at the evidentiary hearing, and concluded that each prong was individually met. Russell failed to
offer prove that any adaptive deficits were present because of subaverage intellectual functioning.
Accordingly, this Court should reverse for the reasons laid out in Carr.
The State’s first assignment of error is interrelated to the present issue in that Dr. Goff opined
that Russell is intellectually disabled without having conducted his own Atkins evaluation, nor did
he have any other Atkins evaluation on which to base his opinion. The State acknowledges that this
Court held in Chase v. State, 112 So. 3d 421 (Miss. 2013), that “psychologists and psychiatrists
rendering opinions on mental retardation in death penalty cases may rely on the testing administered
by others.” But Chase is distinguishable. In Chase, after the case was remanded for an Atkins
hearing, the trial court ordered Chase to undergo an Atkins evaluation at the State Hospital. Id at
421-422. Chase also had his own experts who conducted their own evaluation as to adaptive deficits.
Id. at 422. Rather than administering and intelligence test and accompanying malingering measure,
26
the defense experts chose instead to rely on the intelligence test and malingering measure
administered to Chase by the State Hospital examiners. Id. This Court held that such practice was
permissible. Id. The distinguishing feature is that Chase had an Atkins evaluation and his experts
relied on tests administered in the course of the Atkins evaluation. That is entirely different from Dr.
Goff, in the present case, relying on tests given during the course of an evaluation which had nothing
to do with intellectual disability.
Further, the Chase court qualified its holding that experts rendering Atkins opinions may rely
on the testing administered by others with “subject to the requirements of Mississippi Rule of
Evidence 702.” Id. at 421. The heart of any MRE 702 inquiry is whether the expert’s testimony is
relevant and reliable. Mississippi Transportation Commission v. McLemore, 863 So.2d 31, 38 (¶16)
(Miss. 2003). Unquestionably, Goff’s testimony was relevant, as the only issue before the trial court
was whether Russell was intellectually disabled. However, Dr. Goff’s testimony was not reliable
within the meaning of Rule 702. One factor for determining Rule 702 reliability is “whether the
theory or technique enjoys general acceptance within a relevant scientific community.” Id. at 37
(¶13). Not only did Dr. Goff’s testimony fail to establish that it was acceptable within the field of
forensic psychology to forego intelligence testing and rely on results of obsolete intelligence tests
in an Atkins evaluation, he explicitly admitted that his “evaluation” of Russell was not even in
keeping with his own standard practice.
Dr. Goff testified that he typically administers an intelligence tests in assessing for
intellectual disability unless the subject has “recently” been administered such a test. T. 659. By
the time Dr. Goff “evaluated” Russell he had not been administered an IQ tests in the intervening
eight years. Dr. Goff also admitted that in the 39 years in which he had been assessing for
27
intellectual disability, he did not recall ever having forgone performing psychological tests at the
direction of an attorney or not having personally administering a standardized IQ test in diagnosing
for intellectual disability in an Atkins case. T. 506, 671-672. Dr. Goff’s decision to forego giving
an intelligence test is even more troubling when one considers that not only did defense counsel
instruct Goff not to administer an intelligence test, but defense counsel incorrectly advised Goff that
the court had ordered that no additional intelligence testing be conducted. T. 668-669. The trial
court only denied the State’s motion for an Atkins evaluation. That order was certainly not a
prohibition on the defense expert to conduct intelligence testing. While Goff was questioned about
permitting defense counsel to dictate whether to perform certain tests, even the trial court stated,
“Okay. Well, I agree as to why he should go on beyond what he was instructed to do by Attorney
Bourke.” T. 690. It is clear from Dr. Goff’s testimony that it was his practice and expected in his
field to conduct intelligence testing as part of an evaluation for intellectual disability and that his
decision to forgo such was based on the erroneous advice of defense counsel. The foregoing shows
Dr. Goff’s testimony was simply unreliable in an MRE 702 context. As such, the trial court erred
in accepting Goff’s testimony as sufficient proof that Russell is intellectually disabled.
As to the trial court’s finding that Russell had at least two deficits in adaptive functioning,
the State again urges this Court to consider that the trial court’s finding was not balanced and
analyzed conjunctively with any evidence of a substandard IQ score, as required by Carr. Carr v.
State, No. 2014–CA–00726–SCT (Aug. 11, 2016) at (¶¶64-65). Moreover, much of Goff’s
testimony relating to this prong was also unreliable pursuant to MRE 702.
Dr. Goff acknowledged that it is standard practice in the field of forensic psychology to
include all data points in a report, not just the data points which supports the examiner’s conclusion.
28
T. 667. Dr. Goff testified that he did not include any data in his report which suggested that Russell
was not intellectually disabled because he did not find any. T. 667. However, Dr. Goff explicitly
acknowledged that he did not review any information that was not provided by defense counsel. T.
666. In short, Dr. Goff’s report appears to have focused only on Russell’s limitations in adaptive
functioning and ignored any evidence to the contrary.
The trial court’s order was also deficient in its finding that Russell was not malingering. On
the issue of malingering, the trial court’s order stated that the court understood the requirement that
“valid testing of intellectual functioning be accompanied by appropriate testing to determine the
presence or absence of malingering.” C.P. 915. The court then found that Russell was not
malingering on prior intelligence tests. C.P. 918-919. Again, although an intelligence instrument
and malingering measure were given in 1990 and 2006, the evaluators did not consider whether
Russell was malingering intellectual disability. T. 57-58. Dr. Goff administered a malingering test
that was not tied to any measure of intellectual disability. Rather, it was administered in complete
isolation. Thus, the malingering measure measured nothing and should not be considered. This
cannot be what this Court meant by “approved test” to determine malingering in Lynch v. State, 951
So. 2d 549, 557 (¶24) (Miss. 2007).
Surely neither the Atkins nor Chase court envisioned that intellectual disability findings for
Eighth Amendment purposes would be predicated on such piecemeal “evaluations.” An Atkins
opinion based almost entirely on a review of records, none of which emanate from an Atkins
evaluation, should be deemed insufficient as a matter of law to support a finding that a petitioner is
intellectually disabled for Eighth Amendment purposes. Because the trial court’s order granting
relief employed an incorrect legal standard, and because Russell failed to carry his burden of proof,
29
the trial court’s grant of post-conviction relief should be reversed.
III. THE TRIAL COURT’S ORDER GRANTING POST-CONVICTION RELIEFSHOULD BE REVERSED BASED ON CUMULATIVE ERROR.
The State submits that the aforementioned assignments of error individually warrant reversal
of the trial court’s order granting post-conviction relief. Should the Court disagree, the errors
outlined above, when considered in conjunction with additional errors which may independently be
deemed harmless, require reversal. In addition to the errors discussed in the preceding assignments
of error, the trial court also erred in denying the State’s motion for continuance to depose defense
witnesses, permitting the defense to enter into evidence through Preziosi’s testimony a chart which
she did not create, allowing Preziosi to interpret Russell’s school records despite the fact that the
court ruled she was not qualified as an expert, permitting the defense to wait until the conclusion of
the evidentiary hearing to introduce all defense exhibits en masse, accepting into evidence affidavits
of individuals who were not called to testify, and accepting unsworn statements into evidence.
This Court has explained the doctrine of cumulative error thusly:
The cumulative error doctrine stems from the doctrine of harmless error, codifiedunder Mississippi Rule of Civil Procedure 61. It holds that individual errors, whichare not reversible in themselves, may combine with other errors to make upreversible error, where the cumulative effect of all errors deprives the defendant ofa fundamentally fair trial.
Ross v. State, 954 So. 2d 968, 1018 (Miss. 2007). The State submits that the additional errors
identified in its final assignment of error, while perhaps not sufficient to individually require
reversal, require reversal when considered cumulatively.
30
CONCLUSION
For the foregoing reasons, the State submits that the trial court erred in granting Russell’s
motion for post-conviction relief. Accordingly, the State asks this honorable Court to reverse and
remand for a new evidentiary hearing, prior to which the State will be permitted to have Russell
evaluated for intellectual disability. The trial court should then hold another Atkins hearing, and
upon conclusion conduct an “interrelated analysis” to determine whether Russell has proven by a
preponderance of the evidence that he is intellectually disabled for Eighth Amendment purposes.
Respectfully submitted,
JIM HOODATTORNEY GENERALSTATE OF MISSISSIPPI
JASON L. DAVISASSISTANT ATTORNEY GENERAL
LADONNA C. HOLLANDSPECIAL ASSISTANT ATTORNEY GENERALMISSISSIPPI BAR NO. 101888
BY: s/ LaDonna C. Holland LADONNA C. HOLLAND
OFFICE OF THE ATTORNEY GENERALPost Office Box 220Jackson, MS 39205-0220Telephone: (601) 359-3827Facsimile: (601) [email protected]
31
CERTIFICATE OF SERVICE
I, LaDonna C. Holland, Special Assistant Attorney General for the State of Mississippi,
hereby certify that on this day I electronically filed the foregoing Post-Remand Brief of Appellant
with the Clerk of the Court using the MEC system which sent notification of such filing to the
following
Richard Bourke, Esquire636 Baronne Street
New Orleans, Louisiana 70113
David P. Voisin, EsquireP.O. Box 13984
Jackson, Mississippi 39236-3984
Further, I hereby certify that on this day I have mailed by United States Postal Service the
document to the following non-MEC participants:
Honorable Carol White-RichardCircuit Court Judge
P.O. Box 686Indianola, Mississippi 38751
/s/ LaDonna C. HollandSPECIAL ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE NO. 601-359-3827FAX NO. 601-359-3185
32