OF JUDGMENT: 05/13/2015
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.
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL BY: JAMILA ALEXANDER VIRGIL LOUWLYNN VANZETTA
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
CAMERON LEIGH BENTON JASON L. DAVIS.
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
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.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
Shirley Jackson, Pitchford's mother, gave officials
permission to search the car. The search produced Britt's
.38 caliber revolver.
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
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.
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
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.
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."
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
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.
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.
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.
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."
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."
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.
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."
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.
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.
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.
This appeal followed. Additional facts and procedural history
will be related as necessary throughout our discussion.
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.
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.
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
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.
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
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.
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.
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.
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)).