OF JUDGMENT: 01/14/2014
COUNTY CIRCUIT COURT HON. JOHNNIE E. WALLS, JR., Judge
COURT ATTORNEYS: JASON L. DAVIS JAMES W. CRAIG MEGHAN SHAPIRO
ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY:
JASON L. DAVIS BRAD ALAN SMITH
ATTORNEYS FOR APPELLEE: JAMES W. CRAIG MEGHAN SHAPIRO
A Bolivar County Circuit Court judge ruled death-row inmate
Kevin Scott was intellectually disabled and thus ineligible
for the death penalty under the Eighth
Amendment. The State has appealed. It argues: (1) the
trial judge ignored the mandate of Scott II,
which directed Scott take a specific malingering test before
his intellectual-disability hearing; (2) the trial judge
abused his discretion when he permitted Scott's experts
to testify at the intellectual-disability hearing; and (3)
the trial judge failed to make independent findings of fact
and conclusions of law when ruling Scott intellectually
We find no reversible error. The requirement to take a
specific malingering test was expressly overruled four months
after the mandate in Scott II. And the admission
of Scott's experts was within the sound discretion of the
trial court. Finally-though the State had ample opportunity
to do so-it made no attempt to supplement the record to prove
its allegation that the trial judge recited Scott's
proposed findings instead of making his own independent
findings. In short, the State's failure to provide record
evidence of this claim prohibits us from reviewing it.
Thus, we must affirm the order vacating Scott's death
sentence based on the finding of intellectual disability.
This finding does not relieve Scott from criminal culpability
and punishment. Scott's conviction for capital murder
still stands. We remand this case to the Bolivar County
Circuit Court for Scott to be resentenced.
Facts and Procedural History
In November 1995, eighteen-year-old Scott killed Richard Lee
while stealing his car. In 1998, he was tried before a Bolivar
County jury, which found him guilty of capital murder. After
a separate hearing, the jury sentenced Scott to death.
Scott appealed. We affirmed Scott's conviction and death
sentence. Scott I, 878 So.2d 933. In doing so, we
rejected Scott's argument that he was intellectually
disabled and-based on the recently handed-down United States
Supreme Court opinion, Atkins v. Virginia-ineligible
for execution. See Atkins, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335 (holding that imposing the death
penalty on intellectually disabled persons violates the
Eighth and Fourteenth Amendments). But we acknowledged Scott
could be eligible for a hearing on his
intellectual-disability claim if he attached a sufficient
affidavit to his postconviction-relief (PCR) application.
Scott I, 878 So.2d at 948.
Scott timely filed an application for PCR, which we granted
in part in 2006. We remanded to the Bolivar County Circuit
Court the single issue of Scott's alleged intellectual
disability. Scott II, 938 So.2d at 1250.
In contrast to his direct appeal, we found Scott had provided
the necessary affidavit to entitle him to an Atkins
hearing. Id. at 1238. The State conceded the
affidavit by Scott's expert, Dr. Marc Zimmerman,
satisfied the deficiencies we found in Scott I. But
the State took issue with "the findings and methods of
Dr. Zimmerman." Scott II, 938 So.2d at 1238. In
particular, the State asserted "Dr. Zimmerman failed to
administer the Minnesota Multiphasic Personality Inventory II
(MMPI-II), " which at the time was "required prior
to an adjudication on a claim of mental retardation pursuant
to Atkins." Id. In response, "Scott
argued that the MMPI-II is not an appropriate test for
individuals with mental retardation, " citing Dr.
Zimmerman's opinion "that the MMPI-II test would be
of 'questionable value' because Scott is unable to
read beyond a third-grade level." Id. But as
"this Court ha[d] not disregarded the MMPI-II test,
" we mandated that, "prior to an adjudication on
the mental retardation issue, Scott must obtain a MMPI-II
Four months later, however, this Court did disregard
the MMPI-II-or at least stopped making the MMPI-II a
mandatory requirement. Lynch, 951 So.2d at 557.
Under the Atkins guidelines adopted in Chase v.
State, 873 So.2d 1013, 1029 (Miss. 2004),  this court held
that the defendant's expert was permitted to perform the
MMPI-II "and/or other similar tests."
Lynch, 951 So.2d at 556 (quoting Chase, 873
So.2d at 1029). So in Lynch, we clarified that
"trial courts are free to use any . . . approved tests .
. . to determine mental retardation and/or malingering by a
defendant." Id. at 557.
Scott's Atkins hearing was finally held over two
days in December 2013 and one day in January 2014.
For Scott's Atkins hearing, Dr. Zimmerman
appended his 2005 report to address adaptive functioning. And
in 2012, Dr. Zimmerman interviewed six of Scott's family
members face-to-face, administering retroactive Vineland
Surveys. Based on those surveys and Scott's school
records, Dr. Zimmerman concluded Scott had
adaptive-functioning deficits in at least five areas.
But Dr. Zimmerman left unaltered the part of his 2005 report
in which he concluded Scott's similar results on two
different IQ tests administered on the same day-a 63 on the
Wechsler Adult Intelligence Scale-III (WAIS-III) and a 65 on
the Kaufman Adolescent and Adult Intelligence Test
(Kaufman)-sufficiently eliminated the possibility that Scott
This prompted the State to start the hearing with an
objection. The State argued Scott should not be permitted to
move forward because he had not complied with this
Court's specific mandate in Scott II. The State
conceded the specific directive to administer the MMPI-II had
been overruled by Lynch. However, it argued
Scott's expert still had to administer some type of
"malingering instrument" before the hearing.
According to the State, Dr. Zimmerman's method for ruling
out malingering-back-to-back IQ tests on the same day-would
not suffice, because it had not been peer-reviewed or widely
accepted in the forensic-psychology field.
The trial judge postponed ruling on the State's motion
until after Dr. Zimmerman testified about his testing
procedures. During Dr. Zimmerman's redirect, Scott's
counsel presented an article by Dr. Gilbert S. Macvaugh and
Dr. Mark D. Cunningham, "Atkins v. Virginia:
Implications and Recommendations for Forensic Practice,
" 37 J. Psychiatry & L. 131 (2009). According to the
article, "Although several instruments exist that are
designed to assess malingering of memory and cognitive
deficits, these instruments lack sufficient normative data
for persons with mental retardation in their standardized
samples." Consequently, the study suggests that
administering these instruments "create[s] the risk of
false positives." Id. at 172-73. Moreover, the
article claims studies investigating the validity of
malingering instruments on the intellectually disabled
"have produced mixed results." Id. at 173.
In Drs. Macvaugh and Cunningham's opinion, assessing
suboptimum effort is "greatly assisted by the presence
of intellectual assessment results that predate the capital
charge. The stability of results from repeated intellectual
assessments that are separated by years . . . is also of
inferential benefit." Id. While they admitted
they were "aware of no longitudinal research
investigating this premise, " they opined "it would
seem to be a task of improbable complexity to 'dial
in' a performance consistent with mild mental retardation
on multiple test administrations separated by years,
particularly when different instruments have been
Based on this article, the trial judge overruled the
State's objection and accepted Dr. Zimmerman's expert
testimony that, to a reasonable degree of certainty, Scott
met the three criteria for intellectual disability and was
The judge also overruled the State's objection to school
psychologist Gussie Farris being tendered as an expert.
Farris testified that when Scott was in eighth grade his
mother asked for a comprehensive assessment of Scott. As part
of the assessment team, Farris administered the Wechsler
Intelligence Scale for Children (WISC) to Scott, who received
a full-scale score of 68. While this score put Scott in the
intellectually disabled range, Farris said she did not
classify Scott as "educable mentally retarded" due
to the unwritten school policy not to classify
African-American male students like Scott as educable
mentally retarded unless absolutely necessary. Because
Scott's scores "could go either way"-meaning
she could classify him as "educable mentally
retarded" or "specific learning
disability"-she chose to classify him as the latter. But
in her expert opinion, Scott was mentally retarded.
In addition to Dr. Zimmerman's and Farris's expert
testimony, the trial judge heard from two lay witnesses-Diane
Scott, Scott's mother; and Linda Brasel, Scott's
The State's expert, Dr. Robert M. Storer, then testified.
In contrast to Dr. Zimmerman, Dr. Storer believed Scott was
malingering. Dr. Storer had tested Scott in 2012. He
administered to Scott several malingering tests and the
WAIS-IV. Dr. Storer concluded Scott was exaggerating
psychological symptoms and had given inconsistent effort.
Because of this, Dr. Storer testified he was unable to
evaluate Scott's true intellectual ability. Dr. Storer
also testified he was unable to conclude Scott had any
adaptive-functioning deficits due to conflicting information
from Scott's family members.
At the conclusion of the hearing, the judge ruled that Scott
had proved by a preponderance of the evidence that he is
intellectually disabled and, thus, under Atkins,
could not be ...