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Pitchford v. State

Supreme Court of Mississippi, En Banc

October 19, 2017

TERRY PITCHFORD
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 05/13/2015

         COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER, JR. RAYMOND M. BAUM RAY CHARLES CARTER DOUG EVANS ALISON R. STEINER GLENN S. SWARTZFAGER SCOTT A. C. JOHNSON CAMERON LEIGH BENTON JASON L. DAVIS MARVIN L. WHITE, JR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: JAMILA ALEXANDER VIRGIL LOUWLYNN VANZETTA WILLIAMS.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CAMERON LEIGH BENTON JASON L. DAVIS.

          BEAM, JUSTICE.

         ¶1. Terry Pitchford was convicted of capital murder in February 2006 in the Grenada County Circuit Court and sentenced to death. This Court affirmed his conviction and sentence on direct appeal. See Pitchford v. State, 45 So.3d 216 (Miss. 2010). Pitchford thereafter filed a motion for leave to proceed in the trial court with a petition for post-conviction relief (PCR), arguing inter alia he had not received a competency hearing in violation of Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. This Court granted Pitchford's motion in part and ordered the trial court to conduct a retrospective competency hearing.

         ¶2. Before the hearing was conducted, a plurality of this Court held that retrospective competency hearings do not satisfy the purpose of Rule 9.06. See Coleman v. State, 127 So.3d 161 (Miss. 2013). Despite this ruling, Pitchford's retrospective competency hearing took place in May 2015. The trial court found that Pitchford was competent to stand trial in February 2006 and denied Pitchford's PCR motion.

         ¶3. Pitchford appeals that judgment, claiming the retrospective competency hearing was (1) an inadequate remedy for purposes of Rule 9.06, and (2) the State's experts did not apply the proper standard for competency to stand trial.

         ¶4. Finding no merit in Pitchford's claims, we affirm the judgment of the trial court denying Pitchford's PCR petition based on the trial court's finding that Pitchford was competent to stand trial in February 2006.

         FACTS AND PROCEDURAL HISTORY

         ¶5. On the morning of November 7, 2004, Walter Davis and his son entered the Crossroads Grocery store in Grenada County, Mississippi, where they discovered the lifeless body of Reuben Britt. Davis contacted authorities, and investigators with the Grenada County Sheriff's Department responded to the scene. The investigation concluded Britt had been shot with two different types of firearms. Investigators also found missing from the store a cash register, cash, and a .38 caliber revolver belonging to Britt.

         ¶6. Investigators received information that a vehicle owned by Pitchford matched the description of the vehicle used by Britt's assailants, and that Pitchford had been part of a previous robbery attempt at the store, days prior to Britt's killing. Based on this information, investigators went to Pitchford's residence, where they found a car matching the description they had received from sources.

         ¶7. Shirley Jackson, Pitchford's mother, gave officials permission to search the car. The search produced Britt's .38 caliber revolver.

         ¶8. Pitchford later confessed that he and Eric Bullins had gone to the store to rob it. Pitchford said Bullins had shot Britt three times, and that he (Pitchford) had fired shots into the floor. Pitchford also told investigators that he had attempted to rob the store a week prior to Britt's killing.

         ¶9. Pitchford was indicted in January 2005 for capital murder. In February 2005, counsel appointed to represent Pitchford filed a motion stating that "defendant would show that he has a history of mental problems and that this [c]ourt should appoint a . . . psychologist or psychiatrist for the purpose of conducting a thorough mental examination." The motion also stated that the defendant "intends to offer expert witness testimony in the field of psychiatry, on the issue of the defendant's competence to stand trial, and insanity at the time of the alleged offense. The defendant requests this [c]ourt appoint a competent psychiatrist to assist him in the defense of this matter." Pursuant to that motion and to agreement by the parties, the trial court ordered that Pitchford be evaluated at the Mississippi State Hospital to determine if he was competent to stand trial.

         ¶10. Pitchford was evaluated and tested by doctors at the state hospital on January 11 and 25, 2006. The doctors (Reb McMichael, Criss Lott, and Gilbert Macvaugh) determined that Pitchford was competent to stand trial. They noted that testing and observation indicated Pitchford was attempting to malinger symptoms of mental illness. They unanimously concluded that Pitchford "has the sufficient present ability to consult with an attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he has a rational as well as factual understanding of the nature and object of the legal proceedings against him."

         ¶11. No formal competency hearing was held. The trial court, however, held a motions hearing on February 2, 2006, during which the court considered a motion to continue filed by the defense that same day. As part of that motion, defense counsel argued that a continuance was needed to seek an independent mental evaluation. Defense counsel claimed more time was needed to gather mitigating evidence with the assistance of a defense expert. Defense counsel told the court he had consulted with an expert and had reason to believe that further testing might reveal a neurological defect that could be helpful mitigation evidence at trial.

         ¶12. After hearing argument from both parties and having reviewed the written report from the court-appointed experts, the trial court denied the defense's request for continuance. The trial court found that doctors from the state hospital had written a very thorough analysis and had conducted all the evaluations that were necessary. They came up with nothing that would indicate that Pitchford has "any neurological problems, any psychological problems, any low I.Q., [or] anything that would justify another person coming in and evaluating Mr. Pitchford."

         ¶13. The case proceeded to trial on February 6, 2006. A jury found Pitchford guilty of capital murder and imposed a sentence of death. This Court affirmed Pitchford's conviction and death sentence on direct appeal. Pitchford, 45 So.3d 216.

         ¶14. Pitchford thereafter sought leave from this Court to proceed in the trial court with a PCR petition. Pitchford raised a number of claims, including the claim that he was denied a competency hearing prior to his trial for capital murder. This Court denied all claims except Pitchford's claim pertaining to a competency hearing. This Court ordered that the matter be remanded to the trial court for a hearing on whether Pitchford was competent to stand trial at the time the criminal trial took place in February 2006.

         ¶15. The hearing was held on May 11 and 12, 2015. Pitchford called five witnesses on his behalf: Joseph Cornish (an inmate housed with Pitchford prior to trial in the Grenada County jail); Jonamath Thompson (an inmate also housed with Pitchford prior to trial); Shirley Jackson (Pitchford's mother); Dominique Hogan (Pitchford's former girlfriend and the mother of Pitchford's only child); and Dr. Rahn Bailey (a psychiatrist who had evaluated Pitchford on February 4, 2006, just days prior to Pitchford's criminal trial). For the State, Drs. McMichael and Macvaugh testified.

         ¶16. At the conclusion of the hearing, the trial court issued a bench ruling, followed by a written order, finding that Pitchford was competent to stand trial in February 2006.

         ¶17. The trial court specifically found "of no consequence" Cornish's or Thompson's testimony. The trial court found their statements that Pitchford occasionally talked to himself or appeared at times to be depressed while in jail prior to trial to be of no import. The trial court added, however, that even if their testimony was true, it "offers nothing that would suggest that Pitchford was not competent to stand trial."

         ¶18. The trial court noted that Jackson testified that Pitchford had claimed to have heard voices in his head as a child, and would occasionally "slap himself upside the head, " and that he may have attempted suicide when he was fifteen or sixteen years of age. But Jackson also testified that she did not take this claimed behavior seriously at the time. The court stated, "her corresponding inaction confirms that she didn't find these alleged incidents of such a nature that she believed her son needed medical attention."

         ¶19. The trial court noted that Hogan had testified she one time HAD heard Pitchford talking to himself while in the shower and another time when he appeared to be "air boxing." But the court found that nothing to which Hogan testified offered any insight into Pitchford's competence to stand trial.

         ¶20. As to the respective expert witnesses, the trial court found the State's expert witnesses more credible than the defense's expert witness. According to the court, Dr. Bailey's report and testimony was "long on conclusions and very short on facts to support his conclusions." Dr. Bailey's "signed and unsigned reports contradicted each other, and portions of the reports contradicted other portions of the reports." Dr. Bailey's testimony "was also very contradictory, " and "there was not a foundational basis for much of his testimony, " and the court found most of it "lacking in credibility and believability."

         ¶21. The trial court also noted that Pitchford was represented at trial by one of the leading capital defense lawyers in the state, "if not the entire Southeastern portion of this country, that being Ray Charles Carter[, ]" who was assisted by Ray Baum, "a long-time criminal defense attorney." At no time did defense counsel ever indicate to the court they were having trouble communicating with Pitchford. The court also found it "telling" that neither Carter nor Baum was called by Pitchford to testify at the retrospective competency hearing.

         ¶22. The trial court took into consideration the transcript from Pitchford's guilty-plea hearing, held in January 2006, less than a month prior to Pitchford's criminal trial. Pitchford had petitioned the trial court to enter a guilty plea. But after extensive colloquy with the court, Pitchford withdrew his guilty plea and elected to go to trial. The court found the transcript of that proceeding "shows an individual that understood the legal process and was in full command of his mental faculties." Pitchford's defense attorney, Carter, also had signed an attorney's acknowledgment form that indicated he was satisfied that Pitchford had the mental capacity to enter a valid guilty plea at the time.

         ¶23. Based on the evidence before it, the trial court found that Pitchford had failed to prove by a preponderance of the evidence that he was not competent to stand trial in February 2006. The court denied Pitchford's PCR claim.

         ¶24. This appeal followed. Additional facts and procedural history will be related as necessary throughout our discussion.

         DISCUSSION

         ¶25. We address together Pitchford's claim that the retrospective competency hearing was an inadequate remedy for purposes of Rule 9.06, and that the State's experts did not apply the proper standard for competency to stand trial.

         ¶26. Relying on this Court's decision in Coleman, 127 So.3d 161, Pitchford contends his capital-murder conviction should be reversed because the retrospective competency hearing failed to satisfy the purposes of Rule 9.06, which Coleman held does not contemplate retrospective competency hearings. Pitchford argues that the inadequacies of such hearings led this Court to criticize and reject them in Coleman. Pitchford contends the same inadequacies recognized in Coleman permeated his May 2015 retrospective competency hearing.

         ¶27. The State argues that Pitchford's claim is self-defeating based on the plain language found in Coleman, which expressly noted Pitchford's case and distinguished it by stating:

Finally, we note that the facts and circumstances presented in Pitchford were significantly different than those before us in the present case. In Pitchford, the trial court held a hearing, but defense counsel was not given notice that mental competency to stand trial was to be determined at that time. Pitchford, 2010-DR-01032-SCT (Order of February 14, 2013). Here, the trial court outright denied Coleman a hearing and determined that he somehow had waived his right to a competency hearing, despite repeated requests for such a proceeding both before and during trial. In Pitchford, the defendant's competence to stand trial was determined based on a written report from the Mississippi State Hospital; but here, the trial court based its determination of Coleman's competence to stand trial on a four-page summary report. Pitchford, 2010-DR-01032-SCT. We found that, under the facts in Pitchford, where the trial court held a mental competency hearing but did not give notice to defense counsel, a retrospective mental competency hearing was sufficient to guard the defendant's due process rights. Id. On the other hand, under the facts in this case, when the trial court simply denied the defendant a hearing, we find that a retrospective mental competency determination does not adequately protect Coleman's due process rights.

Coleman, 127 So.3d at 167-68.

         ¶28. The State further contends that Pitchford repeatedly attacks issues that arose prior to his criminal trial in February 2006-issues that should have been raised on direct appeal, such as lack of notice with regard to his competency hearing prior to trial, lack of opportunity to present witnesses and other evidence, and allegations that the trial court's pretrial competency determination was erroneous. The State submits these claims are procedurally barred and/or were nonetheless cured by the May 2015 retrospective competency hearing.

         ¶29. For reasons to be explained, we overrule Coleman and those cases in agreement with it that a retrospective competency hearing does not adequately protect a defendant's due process rights. The great of weight of authority holds that such a hearing does not violate a defendant's due process rights when the facts of the case allow for it.

         Legal Competence

         ¶30. It is a violation of due process to try or convict a criminal defendant who is legally incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). This prohibition is fundamental to our adversarial system of justice, and such circumstance denies a defendant's right to a fair trial. Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate, 383 U.S. at 385, 86 S.Ct. 836.

         ¶31. The standard for competency to stand trial is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, " and "has a rational as well as a factual understanding of the proceedings against him." Gammage v. State, 510 So.2d 802, 803 (Miss. 1987) (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curium)). Although a defendant may be competent at the commencement of trial, "a trial court must always be alert to circumstances [throughout trial] suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drope, 420 U.S. at 181.

         ¶32. The law, however, presumes a criminal defendant competent to stand trial. Evans v. State, ___ So.3d ___, 2017 WL 2592415, *4 (Miss. June 15, 2017). And the defendant bears the burden to prove "by substantial evidence that [he or she] is mentally incompetent to stand trial." Evans v. State, 725 So.2d 613, 660 (Miss. 1997) (quoting Medina v. California, 505 U.S. 437, 448, 112 S.Ct. 2572, 120 L.Ed. 2D 353 (1992)).

         Rule ...


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