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Brown v. State

Supreme Court of Mississippi, En Banc

March 26, 2015


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[¶1] A DeSoto County jury convicted Sherwood Brown of one count of capital murder and two counts of murder and sentenced him to death. The Court granted

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Brown's successive petition for post-conviction relief and allowed Brown to proceed in the trial court on his claim that he was mentally retarded and exempt from execution. After a hearing, the trial court held that Brown had failed to prove by a preponderance of evidence that he was mentally retarded. Brown appealed.

Factual Background and Procedural History

[¶2] The jury convicted Sherwood Brown of one count of capital murder, committed during the commission of felonious child abuse, for the murder of thirteen-year-old Evangela Boyd and two counts of murder for killing Verline Boyd and Betty Boyd, Evangela's mother and grandmother. For the capital murder conviction, the jury sentenced Brown to death; the trial court imparted consecutive life sentences for the two counts of murder. A unanimous Supreme Court affirmed Brown's convictions and sentences on direct appeal. Brown v. State, 690 So.2d 276 (Miss. 1996).

[¶3] Several years later, the Court unanimously denied Brown's application for leave to seek post-conviction relief, in which he raised nearly seventy issues. Brown v. State, 798 So.2d 481 (Miss. 2001). In 2004, Brown filed a successive application for leave to seek post-conviction relief, seeking permission to proceed in the trial court on his claim that he was mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Chase v. State, 873 So.2d 1013 (Miss. 2004). The Court granted Brown's request for leave. Brown v. State, 875 So.2d 202 (Miss. 2004). The trial court held an Atkins hearing and heard testimony from Brown's wife, a former teacher, the special-education director for DeSoto County Schools, and three doctors who had evaluated Brown.

A. Family and Educators

[¶4] Brown presented testimony from his wife, Angela Brown, and his sixth-grade teacher, June Gilbreath. Angela testified that she met Brown in late 1989 or early 1990, and they married in July of 1990. Both were in their early twenties. Angela and Brown lived with Brown's parents for four years until his arrest in 1994. According to Angela, Brown never lived away from his parents' home, but they were working toward getting their own place when he was arrested. Angela testified that Brown did not manage money well, did not have a bank account, and did not pay bills, but that he gave Angela money for groceries sometimes and gave his mother money for bills occasionally. Angela said Brown spent his free time with friends, often using drugs. Angela described Brown as immature, reckless, easily frustrated, and irresponsible, saying, " [i]t was like someone had always taken care of him so he didn't have to do anything." However, she testified that Brown could cook basic things, that he ran errands to a nearby store, and that he picked up after himself.

[¶5] Angela said Brown had worked delivering beer for both the Miller and Budweiser beer companies, but he did not drive the delivery truck. She testified that Brown did not have any problems getting up and dressing himself for work, although his mother drove him to work. Angela thought Brown was fired from Budweiser, but she could not remember the reason. She testified that Brown loved football, and his family had told her that, when Brown was in high school, they thought he had a promising football career. She also told a story she had heard from Brown's mother that, as a child, Brown dressed himself and drove to church while his mother slept. Angela testified that Brown often argued with both of his parents, and

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she described his mother as " volatile" and " explosive" due to her alcohol problem. Despite their troubles, Angela testified that Brown loved his parents. Brown had two sons by another woman. Angela said that Brown interacted well with the children, but he was not left alone with them.

[¶6] June Gilbreath taught Brown in sixth grade; she served as his advisory teacher and managed his academic transcript that year. Gilbreath explained that her handwritten notation of " LD" on Brown's transcript meant " learning disabled" or " learning disability." Gilbreath said Brown struggled academically in elementary school. He repeated first grade and, despite failing grades, Brown received " social promotions" because of his size in the fourth and fifth grades. In sixth grade, his grades improved because they were " modified," which meant Brown was given easier material and tests than the other students. Brown spent a year and a half in seventh grade before being promoted to the second semester of eighth grade. Gilbreath said Brown's grades were modified again in the eighth grade, and he received higher grades that year. Looking at Brown's standardized test scores, Gilbreath testified that Brown was at a second-grade reading level and a third-grade math level when he was in fifth grade. In sixth grade, he scored a third-grade reading level and a fourth-grade math level. Finally, Gilbreath testified that Brown's transcript reflected that he put forth his best effort during school.

[¶7] Susan Kizer testified for the State. Kizer is the special-education director for DeSoto County Schools and previously was a special-education teacher. Kizer reviewed Brown's transcript and testified about the handwritten " LD" notation. She explained that " SLD" was the correct way to denote a learning disability; " LD" had no meaning to her and was not a customary way to acknowledge that a student was learning disabled. Kizer testified that a transcript would not necessarily indicate whether a student was in special education. She explained that a teacher should not make a determination of whether a student has a learning disability, as that determination is made only after a comprehensive evaluation. Kizer did not have personal knowledge as to whether Brown was in special education, and she was not able to locate any DeSoto County School records showing that he was, because school records are destroyed after seven years.

B. Expert Testimony

[¶8] Brown presented Dr. Marc Zimmermann, a licensed psychologist, as a expert witness. Dr. Zimmerman was accepted as an expert in clinical psychology, forensic psychology, intellectual disability, and IQ testing. He said that it is difficult to determine whether someone is mentally retarded absent a full assessment because most mentally retarded individuals are mildly so. He explained that the Diagnostic and Statistical Manual Fourth Edition (DSM-IV) -- the American Psychiatric Association's compendium of mental diseases -- provides that most mentally retarded individuals achieve sufficient social and vocational skills to maintain minimal self-support but need assistance to deal with " unusual social or economic stress." According to Dr. Zimmermann, some mentally retarded individuals marry, have children, cook, clean, drive, maintain their appearance, and play sports.

[¶9] Dr. Zimmermann explained the three criteria necessary for a diagnosis of mental retardation: significantly low intellectual ability, two adaptive functioning deficits, and manifestation prior to age eighteen. Dr. Zimmermann evaluated Brown in preparation for the Atkins hearing; Brown was thirty-nine years old at

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the time of the evaluation. Dr. Zimmerman used the Wechsler Adult Intelligence Scale, Third Edition, to measure Brown's IQ, and found that he had a seventy-five full-scale IQ, falling within the mildly mentally retarded range. The State's expert also found Brown's IQ to be seventy-five. Dr. Zimmermann opined that the consistency indicated that the score was accurate and that Brown was not malingering. Dr. Zimmermann also administered the Rey-15 Item Test, which showed a low probability that Brown was malingering.

[¶10] Next, Dr. Zimmermann analyzed Brown's adaptive functioning deficits. He interviewed several people who knew Brown, reviewed his school and social security records, and administered the Vineland Adaptive Behavior Scales to Brown's wife. The Vineland measures a person's ability to function in various aspects of life, covering the adaptive functioning areas listed in the DSM-IV.[1] He administered the test to Brown's wife, Angela, because of a phenomenon called the Cloak of Competency, which posits that individuals tend to overestimate their own skills. Because the DSM-IV requires onset before age eighteen, ideally the tested person should have known the subject prior to that age. Although Angela did not know Brown prior to age eighteen, Dr. Zimmermann administered the Vineland to her because she was the person who knew Brown closest to age eighteen of those available to test. Dr. Zimmermann explained that he asked Angela to answer the questions by thinking back to when they first met, closest to age eighteen.

[¶11] Based on the information provided by Angela, Dr. Zimmerman testified that the Vineland test revealed that Brown's age equivalence for receptive speech was three years, seven months; expressive speech was seven-and-a-half years; written communication was ten years; personal daily living skills was ten-and-a-half years; domestic skills was thirteen years; community skills was nine years and ten months; interpersonal relationships was eleven-and-a-half years; and coping skills was three years, five months. Dr. Zimmermann conceded that Brown had the ability to take care of his own basic hygiene and to cook basic dishes. He acknowledged Brown's substance abuse and opined that it evidenced an adaptive functioning deficit in health and safety. Questioned about Brown's adaptive functioning deficit in academics, he opined that, while the " LD" notation may not be dispositive of a deficit, schools commonly label children as learning disabled rather than assess for mental retardation. Dr. Zimmermann concluded that Brown has significant adaptive functioning deficits in communication, self-care, social/interpersonal skills, use of community resources, self-direction, functional academics, work, leisure, and safety. Dr. Zimmerman opined that the deficits in adaptive functioning existed prior to Brown's commission of the crime.

[¶12] As for manifestation prior to age eighteen, Dr. Zimmermann identified Brown's academic transcript and conflicts with family members as a child. He also pointed to several factors that could have predisposed Brown to mental retardation as a child: his mother's alcohol use during pregnancy, head trauma from a childhood car accident, inhaling gasoline as a child, and his family's history of mental illness. Ultimately, Dr. Zimmermann opined that Brown was mentally retarded, possessing

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a seventy-five IQ and several adaptive functioning deficits, which he concluded manifested before age eighteen.

[¶13] The State presented Dr. Robert Storer, the State's psychologist, who also evaluated Brown in preparation for the Atkins hearing. Dr. Storer was accepted as an expert in clinical and forensic psychology. After evaluating Brown, Dr. Storer concluded that Brown is not mentally retarded. To measure Brown's IQ, Dr. Storer administered the Wechsler Adult Intelligence Scale, Fourth Edition, which revealed that Brown had an IQ of seventy-five. Like Dr. Zimmermann, Dr. Storer testified that similar results in their respective testing bolstered their reliability. Dr. Storer administered several measures to determine whether Brown was malingering and concluded that he was not. Dr. Storer administered two tests to determine whether Brown possessed the ability to take a test designed to measure adaptive functioning deficits. The Wide Range Achievement Test indicated that Brown's word-reading ability was just below a ninth-grade level and his sentence-comprehension ability was at a seventh-grade level. The Mini Mental Status Exam, which measures memory and dementia, indicated that Brown had minimal or no impairment in those areas.

[¶14] Dr. Storer also evaluated Brown to determine whether he possessed any adaptive functioning deficits. Dr. Storer noted Brown's ability to care for his children and take them to the doctor. He explained that, while not dispositive, that suggested Brown possessed good communication skills, awareness of health issues, and a sense of responsibility. Dr. Storer opined that Brown's ability to cook evidenced his ability to care for himself and weighed against an adaptive functioning deficit in that area. Dr. Storer reviewed Brown's academic transcript and noted that the fact that Brown had failed the first grade was of particular concern because failing early grades indicates more severe problems, but that it does not in and of itself mean a person is mentally retarded. Overall, he opined that the transcript revealed Brown was not a stellar student, but that he passed numerous grades and advanced in standardized test scores from year to year. Dr. Storer said he could not formulate an opinion as to what the " LD" notation meant. He acknowledged that Brown was probably in special education classes, but said that would not mean Brown had received the comprehensive testing necessary to determine if he was mentally retarded. Dr. Storer reported that Brown's football coaches stated that he was never deemed academically ineligible to play football.

[¶15] Dr. Storer opined that Brown's participation in the Job Corps indicated good use of community resources. Considering Brown's work history, Dr. Storer testified that Brown's numerous job changes could indicate an adaptive functioning deficit, but that it was more likely explained by his substance abuse. Dr. Storer acknowledged, however, that evidence pointed to Brown being fired, on one occasion, for fighting with a manager. Dr. Storer interviewed Brown's father and Brown's highschool girlfriend and mother of two of his children. Both indicated that Brown had a commercial driver's license. Brown himself also claimed that he had a commercial driver's license.

[¶16] When asked if Brown's fights with family members was evidence of mental retardation, Dr. Storer said it could be if Brown's reaction resulted from a lack of understanding or inappropriate emotional response, but that he had seen no evidence of that. Instead, he found that fighting was not unusual in Brown's family environment. Dr. Storer administered the

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ABAS-II to measure adaptive functioning deficits and testified that the test did not reveal any adaptive functioning deficits. He concluded that Brown had difficulties in some areas, but none was significant enough to rise to the level of an adaptive functioning deficit. Thus, Dr. Storer opined that Brown was not mentally retarded.

[¶17] Dr. Reb McMichael, the State's psychiatrist, evaluated Brown along with Dr. Storer. He was called as a rebuttal witness by Brown's counsel, but was not qualified as an expert. Dr. McMichael testified that approximately eighty-five percent of mentally retarded individuals are mildly mentally retarded. He testified that individuals with mild mental retardation are capable of driving cars, cooking, cleaning, maintaining personal hygiene, maintaining employment, getting married, and having children. Dr. McMichael was present for Dr. Storer's interview with Brown and had input into Dr. Storer's report. Because Dr. McMichael was not qualified as an expert, he was not permitted to testify as to whether he believed Brown to be mentally retarded.

C. Trial Judge's Order

[¶18] Following the hearing, the circuit judge entered an order on the Atkins issues. The order cited the Chase standard that a finding of mental retardation requires subaverage intellectual functioning, significant limitations in adaptative functioning in at least two areas, and onset prior to age eighteen. The trial judge found that Brown had the necessary subaverage intellectual functioning to be deemed mentally retarded pursuant to Atkins and Chase. Both experts determined that Brown had a full-scale IQ of seventy-five, and the parties agreed that Brown's score placed him in the range necessary to satisfy the first Chase prong. The trial judge then considered the evidence and testimony regarding Brown's academic skills, work history, self-care and home living, social/interpersonal skills, and health and safety. He concluded that Brown did not have any functional deficits in these areas. Thus, the trial court found that, while Brown had a low IQ, he failed to show that he had adaptive functioning deficits or mental retardation manifested before age eighteen. Therefore, the trial court held that Brown had failed to prove by a preponderance of evidence that he was mentally retarded. Brown appealed.


[¶19] Brown asserts that the trial court failed to apply the Chase standards correctly and that the opinion " is based on a misapplication of the law and factual conclusions unsupported by the substantial evidence." Brown raises several assignments of error on appeal, each of which can be included under the following three issues: (1) whether the trial court applied an incorrect legal standard; (2) whether the trial court's findings of fact were clearly erroneous; and (3) whether the trial court erred in admitting certain expert testimony.

[¶20] Brown had the burden of proof at the evidentiary hearing to show by a preponderance of the evidence that he is mentally retarded and, thus, entitled to relief. Goodin v. State, 102 So.3d 1102, 1111, 1112 (¶ ¶ 30, 32) (Miss. 2012). The standard of review following an evidentiary hearing in a post-conviction relief case is well settled:

" 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) . . . . In making that determination, " [t]his Court must examine the entire record and accept 'that evidence

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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 finding 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[.]

Goodin, 102 So.3d at 1111 (¶ 30) (quoting Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009)). Questions of ...

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