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State v. Scott

Supreme Court of Mississippi, En Banc

June 1, 2017


          DATE OF JUDGMENT: 01/14/2014






         ¶1. 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.[1] The State has appealed. It argues: (1) the trial judge ignored the mandate of Scott II, [2] 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 disabled.

         ¶2. We find no reversible error. The requirement to take a specific malingering test was expressly overruled four months after the mandate in Scott II.[3] 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.

         ¶3. 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.[4] Scott's conviction for capital murder still stands. We remand this case to the Bolivar County Circuit Court for Scott to be resentenced.[5]

         Background Facts and Procedural History

         I. Direct Appeal

         ¶4. In November 1995, eighteen-year-old Scott killed Richard Lee while stealing his car.[6] 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.

         ¶5. 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.[7] 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.

         II. PCR Application

         ¶6. 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.

         ¶7. 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."[8] 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 test." Id.

         ¶8. 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), [9] 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.

         III. Atkins Hearing

         ¶9. Scott's Atkins hearing was finally held over two days in December 2013 and one day in January 2014.

         ¶10. 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.

         ¶11. 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 was malingering.

         ¶12. 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.

         ¶13. 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 employed." Id.

         ¶14. 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 not malingering.

         ¶15. 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.[10] 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.

         ¶16. 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 special-education teacher.

         ¶17. 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[11] 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.

         ¶18. 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 ...

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