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State v. Russell

Supreme Court of Mississippi, En Banc

December 14, 2017


          DATE OF JUDGMENT: 12/30/2014





         ¶1. A jury sentenced Willie C. Russell to death for murdering a correctional officer. Russell later claimed he was intellectually disabled and thus could not be executed under Atkins v. Virginia.[1] In 2014, the trial court set an Atkins hearing to determine if Russell was intellectually disabled.

         ¶2. Prior to the hearing, the State moved to assess Russell based on his claimed intellectual disability. But Russell was opposed to the State's expert conducting an Atkins evaluation. Years earlier, in 2006, Russell had undergone psychological testing ordered in a separate aggravated-assault case. But that testing was for his competency to stand trial-not assessing intellectual disability. Although the State had initially proposed that the 2006 assessment cover both issues, Russell's attorney also objected back then to the State evaluating Russell's Atkins claim in that proceeding. So Russell was never evaluated on the specific criteria for intellectual disability under Atkins.

         ¶3. Furthermore, the record shows both Russell and the State understood that the 2006 testing would not serve as his complete Atkins assessment. And, indeed, according to the State's expert, additional testing was required. Still, the trial court denied the State's motion to evaluate Russell, concluding the prior testing was sufficient. Consequently, the court's denial led to what was essentially a one-sided Atkins hearing.

         ¶4. At the end of the hearing-at which Russell's expert testified-the trial court ruled that Russell was intellectually disabled under Atkins and Chase[2] and vacated his death sentence. The State has appealed. After review, we find the trial court reversibly erred. While Atkins determinations are legal decisions, they are decisions that must be informed by medical experts.[3] And here, we find the trial judge abused her discretion by denying the State's well-supported motion to evaluate Russell prior to the Atkins hearing.

         ¶5. We reverse the order vacating Russell's death sentence. And we remand this matter to the trial court with instructions that the State's expert be permitted to evaluate Russell before the Atkins hearing.

         Background Facts and Procedural History

         I. Capital-Murder Conviction and Death Sentence

         ¶6. In 1989, while an inmate at the State Penitentiary at Parchman, Russell stabbed and killed a corrections officer. A jury convicted Russell of capital murder and sentenced him to death. On appeal, this Court affirmed his conviction but vacated his death sentence and remanded for resentencing. Russell v. State, 607 So.2d 1107 (Miss. 1992) (Russell I). On remand, Russell once again was sentenced to death. And this Court affirmed. Russell v. State, 670 So.2d 816 (Miss. 1995) (Russell II).

         ¶7. Russell filed for post-conviction relief (PCR). In 2002, while his petition was still pending, the United States Supreme Court handed down Atkins, holding that, based on "evolving standards of decency, " imposing the death penalty on intellectually disabled persons violates the Eighth Amendment. Atkins, 536 U.S. at 321, 122 S.Ct. at 2252. This Court granted Russell permission to amend his PCR petition to include the claim that he is intellectually disabled and thus, under Atkins, cannot be executed. This Court granted Russell's PCR petition in part, granting him leave to proceed in the trial court with his Atkins claim. Russell v. State, 849 So.2d 95, 149 (Miss. 2003) (Russell IV).

         II. Aggravated-Assault Charge

         ¶8. At the time his Atkins petition was granted, Russell was facing a separate charge of aggravated assault. While on death row, Russell had shot at another corrections officer with a homemade "zip gun." As part of his defense to this charge, Russell asserted that he was incompetent to voluntarily confess and stand trial. He also claimed he was insane at the time he shot at the corrections officer.

         ¶9. Because of the pending Atkins issue, Russell asked that his aggravated-assault trial be stayed. But by 2006, three years had passed without Russell pursuing his Atkins claim. At this point, a different trial judge presiding over the assault case refused to let that charge linger on the docket any longer. The assault trial would move forward, with or without the Atkins issue being resolved.

         ¶10. The State initially suggested evaluating both Russell's Atkins claim and his mental-health-related defenses in the aggravated-assault case at the same time. And the original evaluation order included a directive to assess Russell's Atkins claim. But Russell opposed proceeding in this manner. Instead, he argued that the judge who was presiding over his aggravated-assault trial-a different judge than the one handling the Atkins claim-had no authority over the Atkins claim raised in his separate capital-murder case. The trial court succumbed to his request and struck that portion of its order.

         ¶11. As a result, the State Hospital did not assess whether Russell had an intellectual disability preventing the State from executing him. Page one of the 2006 case report notes the order to evaluate Russell's Atkins claim was vacated. And in the transcript of Russell's 2006 clinical interview, his counsel agreed "[t]his isn't going to be a complete Atkins assessment."

         ¶12. Russell did, however, participate in a clinical interview by Dr. Reb McMichael, Dr. Gilbert Macvaugh III, and Dr. Criss Lott. And he underwent three psychological tests-the Wechsler Adult Intelligence Scale - 3rd Edition (WAIS-III), the Wide Range Achievement Test, 4th Edition (WRAT-4), and the Green's Word Memory Test (WMT). Dr. McMichael also reviewed extensive records to compile the 2006 State Hospital's report. Dr. McMichael testified during the aggravated-assault trial that Russell was competent to confess voluntarily and to stand trial and was not insane at the time he shot at the corrections officer. Dr. McMichael also offered his unsolicited opinion that Russell was not intellectually disabled, based on the 2006 evaluation.

         III. Motion to Evaluate

         ¶13. In 2010, Russell finally filed his Atkins petition with the trial court. After reviewing the State Hospital records from Russell's 2006 assessment, which clearly indicated Russell's Atkins assessment had yet to occur, the State moved to evaluate Russell on his Atkins claim. Russell objected. Russell's counsel represented to the trial judge-again, a different judge than the one presiding over the aggravated-assault charge-that Russell only agreed to be evaluated in 2006 with the express understanding he would not be tested any further.

         ¶14. The trial court held a hearing, during which the State called Dr. Macvaugh, its designated Atkins expert.[4] Dr. Macvaugh, a participant in the 2006 evaluation, testified that he recalled cautioning Russell and Russell's counsel that any data collected in the aggravated-assault evaluation could be used in a future Atkins assessment. But there was never any agreement Russell would not be further tested. Indeed, in the transcript from the 2006 clinical interview, Russell's counsel had conceded the evaluation would not be a full Atkins assessment and objected only to Russell "being given the same test batteries twice in the course of the next year or anything like that."

         ¶15. Dr. Macvaugh further testified that "additional intellectual assessment is needed, additional adaptive assessment is needed, and additional malingering assessment is needed, . . . in order to offer an opinion to a reasonable degree of psychological certainty as to whether or not Mr. Russell has mental retardation pursuant to Atkins." Specifically, Dr. Macvaugh wanted to administer the most up-to-date Wechsler Adult Intelligence Scale- the WAIS IV-because it incorporates significant developments in the field since the WAIS III. Dr. Macvaugh also planned to test Russell for adaptive-functioning deficits-something he and his colleagues did not assess in 2006. But beyond that, he explained he was ethically and professionally bound not to go into more specifics about what tests he might administer. In particular, divulging beforehand to Russell's counsel what tests were to be administered could affect the validity of the test results. It could also box Dr. Macvaugh in to administering certain instruments, even though he might later determine, in his professional opinion, other tests would be better.

         ¶16. On cross-examination, Dr. Macvaugh was pressed as to why, in contrast to Dr. McMichael, he could not simply rely on the 2006 data to form an expert opinion. Dr. Macvaugh responded that he disagreed with Dr. McMichael that the prior testing was sufficient to form an opinion on intellectual disability when that issue is raised in a death-penalty case. He further explained "[i]t doesn't make clinical, forensic, or ethical sense to me to not want more, better data when the stakes are as high as they are."

         ¶17. Though the trial court's order acknowledged Russell had agreed that the 2006 evaluation would not be a complete Atkins assessment, the judge nonetheless decided no further testing was needed to form an expert Atkins opinion. In particular, the trial court was swayed by Dr. McMichael's opinion given in the non-death-penalty case and the fact Dr. Macvaugh would not divulge specifically what tests he planned to administer. The trial court treated the State's motion as one for a "subsequent exam." And the court ruled the State had not shown good cause to administer any further tests. Instead, "[t]o permit the State's expert to examine Mr. Russell a second time would be to permit an unfair and unwarranted forensic advantage."

         IV. Atkins Hearing

         ¶18. The trial court heard Russell's Atkins petition on September 8-9 and December 17, 2014. Russell presented three witness. First, he called Clementine Harrison, a volunteer investigator with the Louisiana Capital Assistance Center (LCAC) in 2007. Harrison testified she had investigated Russell's Atkins claim, collecting Russell's school records and witness statements.[5] Next, Russell called Anne Preziosi, a mitigation specialist with LCAC, to testify as an expert. But due to her lack of qualifications, she could only testify as a lay witness about the records and witness statements she collected. Finally, Russell's expert, clinical psychologist and neuropsychologist Dr. John Goff, testified. Dr. Goff concluded that Russell is intellectually disabled, based on Russell's prior IQ scores, his adaptive-functioning deficits, and his placement in special-education classes, indicating onset prior to age eighteen. Dr. Goff also opined Russell was not malingering. See Chase, 873 So.2d at 1027-28 (setting forth the criteria for determining whether a criminal defendant is intellectually disabled for Eighth Amendment purposes).

         ¶19. When Russell rested, the State announced it would not present any witnesses.[6] On December 31, 2014, the trial court entered an order vacating ...

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