E-Filed Document
May 17 2014 18:11:19
2013-CA-01130-SCT
Pages: 48
IN THE SUPREME COURT OF MISSISSIPPI
Appellant
SHERWOOD DWAYNE BROWN,
versus
CAUSE NO. 2013-CA-01130-SCT
Appellee
STATE OF MISSISSIPPI,
POST-REMAND BRIEF OF APPELLEE
JIM HOOD
ATTORNEY GENERAL
STATE OF MISSISSIPPI
JASON L. DAVIS
SPECIAL ASSISTANT ATTORNEY GENERAL
Miss. Bar. No. 102157
Counsel of Record
O FFICE OF THE A TTORNEY G ENERAL
Post Office Box 220
Jackson, Mississippi 39205
Telephone: (601) 359-3680
Telefax: (601) 359-3796
jdavi@ago.state.ms.us
TABLE OF CONTENTS
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CLAIM I.
THE CIRCUIT COURT APPLIED THE CORRECT LEGAL
STANDARDS IN ADJUDICATING THE APPELLANT’S ATKINS
CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CLAIM II.
THE CIRCUIT COURT’S FINDINGS OF FACT REGARDING THE
APPELLANT’S ADAPTIVE FUNCTIONING ARE NOT CLEARLY
ERRONEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CLAIM III. THE APPELLANT’S CLAIMS THAT THE EXPERT REPORT OF
D R. STO R ER A N D H IS T E S T IM O N Y R E G A R D IN G
STATEMENTS MADE BY COLLATERAL SOURCES ALBERT
LEE BROWN AND CONSTANCE BUFORD CARTER WERE
IMPROPERLY ADMITTED AND/OR CONSIDERED ARE
BARRED FROM CONSIDERATION AND ARE ALTERNATIVELY
DEVOID OF MERIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
i
TABLE OF AUTHORITIES
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . . . . . 7, 18, 19
Bank of Mississippi v. Southern Mem’l Park, Inc., 677 So.2d 186 (Miss.1996). . . . . . . . 14
Brawner v. State, 947 So.2d 254 (Miss. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Brown v. Mississippi, 522 U.S. 849, 118 S.Ct. 136, 139 L.Ed.2d 85 (1997) . . . . . . . . . . . 4
Brown v. State, 690 So.2d 276 (Miss. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 13
Brown v. State, 731 So.2d 595 (Miss.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Brown v. State, 875 So.2d 202 (Miss. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 29
Byrom v. State, 863 So.2d 836 (Miss. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Chase v. State, 873 So.2d 1013 (Miss. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Cotton v. McConnell, 435 So.2d 683 (Miss.1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Doss v. State, 19 So.3d 690 (Miss.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). . . . . . . . . . . . . 4
Foster v. State, 848 So.2d 172 (Miss.2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Gillett v. State, 56 So.3d 469 (Miss. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Glasper v. State, 914 So.2d 708 (Miss.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 41
Goodin v. State, 102 So.3d 1102 (Miss. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Hall v. State ex rel. Waller, 247 Miss. 896, 157 So.2d 781 (1963). . . . . . . . . . . . . . . . . . 14
Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). . . . . . . . . . . . 4
Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). . . . . . . . . . . . . . . . 4
Jackson v. State, 732 So.2d 187 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 29
Keller v. State, ___ So.3d ___, 2014 WL 465676 (Miss. 2014). . . . . . . . . . . . . . . . . . . . 42
Loden v. State, 971 So.2d 548 (Miss 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lynch v. State, 951 So.2d 549 (Miss. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
McGilberry v. State, 741 So.2d 894 (Miss.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Mullins v. Ratcliff, 515 So.2d 1183 (Miss.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ross v. State, 954 So.2d 968 (Miss 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1(1990). . . . . . . . . . . . . 4, 31
Simmons v. State, 805 So.2d 452 (Miss 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Thorson v. State, 76 So.3d 667 (Miss.2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 42
Williams v. State, 684 So.2d 1179 (Miss.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Williams v. State, 708 So.2d 1358 (Miss 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Worthy v. McNair, 37 So.3d 609 (Miss. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Rules
Mississippi Rule of Evidence 703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ii
IN THE SUPREME COURT OF MISSISSIPPI
Appellant
SHERWOOD DWAYNE BROWN,
versus
CAUSE NO. 2013-CA-01130-SCT
Appellee
STATE OF MISSISSIPPI,
POST-REMAND BRIEF OF APPELLEE
I. STATEMENT OF THE CASE
Sherwood Dwayne Brown was indicted on July, 24, 1994, of two counts of murder and one
count of capital murder while intentionally engaged in the commission of felonious abuse and/or
battery of a child. A jury was empaneled on March 20, 1995, and his trial began on March 21, 1995.
Brown was found guilty on March 28, 1995. A sentencing hearing was held on the capital murder
conviction where the jury heard evidence in aggravation and mitigation of sentence. The jury retired
to consider whether Brown would be sentenced to death or life imprisonment.
After due
consideration, on March 29, 1995, the jury returned a sentence of death in proper form. The jury
verdict on sentence reads as follows:
We, the jury, unanimously find from the evidence beyond a reasonable doubt,
that the following facts existed at the time of the commission of Capital Murder:
1)
That the defendant, Sherwood Brown, actually killed Evangel Boyd;
1
2)
3)
The defendant intended that the killing of Evangel Boyd take place
That the defendant contemplated that lethal force would be employed
We, the jury, unanimously find that the aggravating circumstances of:
a)
The capital Murder was committed by a person under sentence of
imprisonment.
b)
The defendant was previously convicted of another capital offense or
a felony involving the use of threat of violence to the person.
c)
The Capital offense was committed while the Defendant was engaged
in the commission of a felonious abuse and/or battery of a child.
d)
The capital offense was committed for the purpose of avoiding or
preventing a lawful arrest.
e)
The capital offense was especially heinous, atrocious or cruel.
are sufficient to impose the death penalty and that there are
insufficient mitigating circumstances to outweigh to outweigh [sic]
the aggravating circumstances; and we unanimously find that the
Defendant should suffer death.
s/ Jerry Vincent Nix
Furman [sic] of the Jury
On April 7, 1995, the trial court sentenced Brown to die by lethal injection, and set an
execution date for June 2, 1995. This execution date was stayed pending appeal. In his direct appeal
Brown raised the following eight claims before this Court:
I.
The Trial Court Erred in Refusing to Suppress the Shoes and Clothing Seized
from Brown.
II.
The Trial Court Erred in Refusing to Suppress the Portion of Brown's
Statement Relative to His Prior Drug Use.
III.
The Trial Court Erred by Ruling That Brown Should Be Tried in Leg Irons.
IV.
The Trial Court Erred in Inferring During Voir Dire That There Was a
Possibility of Parole for Brown.
V.
The Trial Court Erred in Refusing to Exclude Jurors Who Responded That
2
They Would Automatically Impose the Death Penalty for Anyone Convicted
of the Murder of a 13 Year Old Girl.
VI.
The Trial Court Erred in Refusing to Grant a Mistrial upon the Sheriff's
Comment That Brown Was Immediately a Suspect in the Case Because of
His past Problems with the Law.
VII.
The Trial Court Erred in Admitting Gruesome Photographs into Evidence.
VIII.
The Trial Court Erred in Refusing to Admonish the Jury to Disregard Dr.
Hayne’s Opinion That the Injuries to Betty Boyd Were Consistent with a
Weapon Known as a Kaiser Blade.
IX.
The Trial Court Erred in Refusing to Allow Evidence of the Child Victim's
Remote Sexual Activity.
X.
The Trial Court Erred in Refusing to Grant a Mistrial as a Result of
Previously Undisclosed Opinions of the State's Shoe Print Examiner.
XI.
The Trial Court Erred in Refusing to Grant a Mistrial as a Result of the
State’s Failure to Disclose Exculpatory Matter in Discovery.
XII.
The Trial Court Erred in Allowing Speculative Expert Testimony.
XIII.
The Trial Court Erred in Denying Defendant’s Motion for Directed Verdict
Based on the State’s Failure to Present Proof of the Alleged Underlying
Felony of Child Abuse.
XIV. The Trial Court Erred in Ruling That the Prosecution Could Utilize Prior
Transcripts for Impeachment Purposes.
XV.
The Trial Court Erred in Refusing to Allow Brown to Make an Offer of
Proof.
XVI.
The Trial Court Erred in Ruling That Angela Brown Could Not Testify
Concerning Conversations Between Sherwood Brown and Chick Jones
Relative to Threats That Had Been Made about Sherwood.
XVII. The Trial Court Erred in Refusing to Allow Angela Brown to Testify That
Sherwood Never Admitted Guilt to Chick Jones, as Maintained by Jones.
XVIII. The Trial Court Erred in Refusing to Allow Angela Brown to Testify
Concerning Chick Jones/statement to Her That He Had Been Threatened by
Law Enforcement.
3
XIX. The Trial Court Erred in Granting Instructions S-6 and S-7.
XX.
The Trial Court Erred in Granting Instructions S-1 in the Sentencing Phase.
XXI.
The Trial Court Erred in Refusing to Grant a Mercy Instruction During the
Sentencing Phase.
XXII. The Trial Court Improperly Granted Instruction C-3 During the Sentencing
Phase.
XXIII. The Trial Court Erred in Failing to Order a New Trial as a Result of Improper
Closing Argument.
XXIV. The Trial Court Erred in Refusing to Grant a New Trial as a Result of
Prosecutorial Misconduct.
On December 12, 1996, this Court affirmed the convictions for two counts of murder and one
count of capital murder and sentence of death. A petition for rehearing was filed and subsequently
denied on March 13, 1997. Brown v. State, 690 So.2d 276 (Miss. 1996).
After this affirmance by the Court, Brown sought relief by filing a petition for writ of
certiorari with the United States Supreme Court. In this petition he raised the following two
questions:
I.
In Shell v. Mississippi, 498 U.S. 1 (1990) this Court unanimously held that
the “heinous, atrocious and cruel” aggravating factor in Mississippi’s death
penalty statute with the explanatory gloss given these factors, was
unconstitutionally vague. This presents the question whether the State has
cured that vice by further limiting instruction.
II.
In Illinois v. Allen, 397 U.S. 337 (1970), Estelle v. Williams, 425 U.S. 501,
505 (1976);, and Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986), this Court
defined the due process limitations on a state’s right to require a criminal
defendant to appear in the courtroom in shackles. This case presents the
question whether the Mississippi Supreme Court is correct in its line of
decisions restricting those rulings to appearance before the jury at trial and
holding them inapplicable to other appearances, in this case before the venire
panel.
On October 6, 1997, the United States Supreme Court denied the petition for writ of certiorari. A
4
petition for rehearing was filed and later denied on December 1, 1997. See Brown v. Mississippi,
522 U.S. 849, 118 S.Ct. 136, 139 L.Ed.2d 85, reh. denied, 522 U.S. 1009, 118 S.Ct. 591, 139
L.Ed.2d 427 (1997).
Thereafter, on or about September 1, 1998, the appellant, represented by pro bono counsel,1
filed an application for leave to file motion for post-conviction review in the trial court with the
Mississippi Supreme Court. On October 12, 1998, the State responded to this application. On
October 26, 1998, Ms. Piel and Ms. Hicks filed a motion with this Court to be appointed counsel for
appellant. This motion was held in abeyance pending the final disposition of the motion for
rehearing in Jackson v. State, 732 So.2d 187 (Miss. 1999).2 Ms. Piel’s and Ms. Hicks’ motion for
appointment as counsel was renewed on November 24, 1998. This Court entered a second order
holding the motion in abeyance pending the final disposition of the motion for rehearing in Jackson
v. State, 732 So.2d 187 (Miss. 1999). On January 24, 1998, this Court granted appellant’s’s motion
for appointment of counsel and remanded the case to the Circuit Court of DeSoto County,
Mississippi for appointment of counsel pursuant to Jackson, supra, and pursuant to directions in the
order granting the motion for appointment of counsel.3 On February 11, 1999, pro bono counsel
filed a reply to the State’s response to the application for leave to file motion to vacate conviction
and death sentence.
On June 25, 1999, Ms. Hicks informed the Circuit Court of DeSoto County, that she and Ms.
1
Eleanor Jackson Piel and Elizabeth Jane Hicks.
2
The Jackson decision required the State to provide paid counsel and reasonable litigation
cost for the litigation of post-conviction cases involving the death penalty.
3
Unaware of the January 24, 1999, order of the Mississippi Supreme Court, on February 2,
1999, Ms. Piel and Ms. Hicks filed a motion requesting a ruling on the motions for appointment of
counsel.
5
Piel were willing to accept appointment as post-conviction counsel for appellant. On July 1, 1999,
Ms. Hicks, filed a Motion for Reconsideration or Clarification of this Court’s January 24, 1999,
order remanding the case for appointment of counsel. Ms. Hicks requested this Court to require the
circuit court appoint her and Ms. Piel to represent the appellant. On July 13, 1999, this Court denied
the motion.
On July 27, 1999, the Circuit Court of DeSoto County, Mississippi, appointed David L.
Walker to represent appellant finding him qualified for such appointment under Rule 22, M.R.A.P.
On December 13, 1999, Walker filed a Motion for Post-Conviction Relief with the Mississippi
Supreme Court. On January 27, 2000, Walker filed a brief in support of the motion for postconviction relief. On March 20, 2000, the State filed it responsive brief to the motion for postconviction relief and entitled it Supplemental Brief of the Respondent.4
In the meantime, Ms. Piel and Ms. Hicks had filed a motion requesting that the trial court
reconsider the appointment of David L. Walker as counsel for appellant. Walker also filed a motion
to withdraw as counsel. The trial court failed to act on these motions in a timely manner and a
motion for writ of mandamus was filed with this Court by Ms. Piel and Ms. Hicks. When no
response was received from the trial court, this Court granted the writ of mandamus and ordered the
trial court to rule on the motions. On June 29, 2000, Walker filed a motion to withdraw his motion
to withdraw as counsel. On July 6, 2000, the trial court dismissed Walker’s motion to withdraw.
On July 11, 2002, the trial court denied Piel’s and Hicks’ motion for reconsideration. On October
13, 2000, Piel and Hicks again filed a petition for writ of mandamus with this Court to require the
trial court to respond to a request to certify the counsel appointment question for interlocutory
4
The State so entitled this document as the State had already filed a response to the
application filed by Ms. Piel and Ms. Hicks.
6
appeal. On November 14, 2000, the trial court denied certification of an interlocutory appeal of this
matter. On November 17, 2000, this Court dismissed the petition for writ of mandamus as moot as
the trial court had already ruled, denying the motion. On December 21, 2000, Piel and Hicks filed
a petition for leave to file an interlocutory appeal with this Court. On June 4, 2001, this Court denied
the petition for interlocutory appeal.
On June 20, 2001, Piel wrote this Court requesting
reconsideration of the denial of the interlocutory appeal. On July 25, 2001, this Court denied
reconsideration.
On August 9, 2001, this Court entered an opinion denying the application for post-conviction
relief in this case. In that opinion, the Court considered all of the grounds raised by Piel and Hicks
in their pro bono post-conviction application as well as the additional claims raised in the application
presented by appointed counsel Walker. A petition for rehearing was filed and later denied on
October 25, 2001. Brown v. State, 798 So.2d 187 (Miss. 2001). Brown did not file a petition for
writ of certiorari with the United States Supreme Court challenging the decision on post-conviction
review.
Appellant then filed a petition for writ of habeas corpus with the United States District Court
for the Northern District of Mississippi. That petition for writ of habeas corpus is now pending
before the United States District Court. The petition earlier filed presented several grounds for relief,
including claims of ineffective assistance of counsel. The State filed its response to each of the
grounds raised in the habeas petition. All of the claims raised in the original habeas petition were
addressed by this Court on direct appeal or post-conviction review. Brown sought to amend his
habeas to add a claim of mental retardation under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242,
153 L.Ed.2d 335 (2002), a request which was granted. The Appellant then returned to this Court,
filing a successive petition for post-conviction relief on June 19, 2003. The Court granted leave to
7
seek post conviction relief in the circuit court on the appellant’s Atkins claim on June 17, 2004. See
Brown v. State, 875 So.2d 202 (Miss. 2004). On August 10, 2007, the appellant filed his Motion to
Vacate Death Sentence based on the appellant’s Atkins claim with the trial court and State responded
in due course. The hearing took place in the Circuit Court of Desoto County on February 28, 2013
and March 1, 2013. The trial court, in a written opinion issued on May 31, 20135, found that Brown
was not mentally retarded as contemplated by Atkins. From this holding, the appellant now appeals,
rasing the following claims:
1.
Was it legal error for the circuit court to disregard the results of Angela
Brown’s Vineland-II test on the basis that she did not know Mr. Brown
before he was eighteen years old?
2.
Was it legal error for the circuit court to disregard evidence of Mr. Brown’s
significant adaptive functioning deficit in the area of functional academics on
the basis that there was no proof of his learning disability?
3.
Was it legal error for the circuit court to find that Mr. Brown did not have a
significant adaptive functioning deficit in the area of work on the basis that
Mr. Brown was able to perform some of his job functions?
4.
Was the circuit court’s finding that Mr. Brown did not have a significant
adaptive functioning deficit in the area of functional academics clearly
erroneous?
5.
Was the circuit court’s finding that Mr. Brown did not have a significant
adaptive functioning deficit in the area of work clearly erroneous?
6.
Was the circuit court’s finding that Mr. Brown did not have significant
adaptive functioning deficits in the areas of self care and home living clearly
erroneous?
7.
Was the circuit court’s finding that Mr. Brown did not have significant
adaptive functioning deficits in the areas of social/interpersonal skills and
health and safety clearly erroneous?
8.
Was it an abuse of discretion for the circuit court to admit Dr. Storer’s expert
5
App. R.E. 7.
8
report into evidence—and rely on a statement in the expert report that Dr.
Storer conceded at the Atkins hearing was not true—as a basis for finding that
Mr. Brown did not have a significant adaptive functioning deficit in the area
of work?
With the submission of the State’s Post-remand Brief of the Appellee this case is now ready
for decision.
II. STATEMENT OF FACTS
The facts of this case were set forth in the Court’s opinion on direct review in Brown v. State,
690 So.2d 276 (Miss. 1996), and are as follows:
Early Thursday morning, January 7, 1993, five year old Yoichi Boyd went
down the road to her grandmother’s house to wait for the school bus. Upon entering
the house, she discovered the bodies of her aunt and grandmother, Verline and Betty
Boyd. When the school bus arrived, she told the bus driver what she had found. The
bus driver went back to the house with the child and saw the body of Verline Boyd
in the doorway.
The DeSoto County Sheriff’s Department received a dispatch at 7:50 a.m. that
morning advising them of a murder on Boyd Road in the Eudora Community.
Captain Janet Taylor and Lieutenant Tim Roberts arrived at the scene at 8:08 a.m.
The front door was open when they arrived, and the house was “totally ransacked.”
Verline Boyd was lying on the floor in the doorway leading from the porch to the
dining room. Upon discovering Betty Boyd's body in the living room, Taylor
determined that additional assistance was needed and radioed for backup support.
Sheriff James Riley and Captain Johnie Combes soon arrived and they completed
their search of the house. It was then that they found the nude body of Evangela
Boyd in the laundry room.
Eighty-two year old Betty Boyd died from “multiple chop wounds to the
head.” Dr. Steven Hayne, the forensic pathologist who performed postmortem
examinations on all three victims, testified that the largest of these extended “from
the forehead to the chin coursing through the nose and mouth area” and measured
nineteen centimeters or approximately seven and one half to eight inches long, and
was roughly four inches deep. She also suffered a horizontally-oriented chop wound
to the back of the skull, measuring some eight centimeters or nearly four inches wide.
Dr. Hayne described some twelve “traumatic findings” or chop wounds to her face,
skull and brain, as well as bruises to her head, eyes, chin and hand, and a fractured
jaw. He opined that a considerable amount of force was required to produce the
injuries she sustained.
9
Verline Boyd, who was found face-down by the front door, died from
multiple chop wounds to the forehead and right posterior aspect of her head, which
caused lacerations to her brain. The largest of the head wounds was some five and
one half inches long. She suffered injuries to her hands which Dr. Hayne described
as “supportive of the concept of a defensive posturing injury; that is, a person who
is trying to ward off a blow, in this case a chop wound, by raising one's hand, forearm
as well as digits, either right or left or both, usually trying to protect the face as well
as the neck and the upper part of the chest.”
Thirteen year old Evangela Boyd, like her mother and grandmother, died from
multiple chop wounds to her head. The primary wound, to the back of her head, was
approximately seven inches long. In addition to the fatal head injuries, Dr. Hayne
identified chop wounds as long as four inches on her left shoulder; chop and stab
wounds as well as large scrapes on her back; scrapes and abrasions on the right hip;
multiple abrasions and lacerations near the right knee; multiple chop wounds to the
right forearm and fracture in the ulna and radius of that arm; chop wounds on her
right hand, one of which nearly severed her thumb; and lacerations to the fingers on
her right had which had nearly cut the fingers in two. Although the girl’s nude body
was discovered with her bra pulled behind her head, Dr. Hayne found no evidence
of sexual assault.
There was a ten to twelve inch long gash in the ceiling of the laundry room
where Evangela Boyd was killed. Further, Dr. Hayne testified that the wounds
sustained by all three victims could have been caused by “a machete, a hatchet, an ax,
a kizer blade or similar type weapons, weapons that would have a relatively sharp
edge, would have some significant weight and would provide a broad cutting
surface.”
Verline Boyd had left her shift as a salad maker at the Piccadilly Cafeteria in
the Southland Mall in Whitehaven, Tennessee, at some time between 8:45 and 8:50
p.m. on the night of January 6, 1993. The drive from Whitehaven to Boyd Road was
approximately twenty-two-and-one-half miles and took about twenty-five minutes.
She was found by the front door, with her keys still in her hand and wearing a jacket.
At the crime scene, investigators focused on bloody shoeprints found on the
porch and front door threshold. Mississippi State Highway Patrol Criminal
Investigator, Lieutenant Bill Ellis and Scotty Wood, Chief Investigator for the
DeSoto County Sheriff's Department, made a periphery examination of the Boyd
property. They identified shoeprints consistent with those found on the porch and
threshold near Verline Boyd’s car and traveling to and from the Boyd residence along
a dirt field road leading to Barbee Road, about a quarter of a mile away. Officer
Wood testified that they found a print about twenty yards from the Boyd residence,
near the road, as well as additional prints going both directions along the dirt path.
The shoeprints ultimately led authorities to the home of twenty-four year old
Sherwood Brown, where he had been staying with his parents. It was raining at the
10
time and, as Wood testified, it was a race against time to take photographs and make
plaster casts of several prints before the heavy rains began.
That afternoon, Sheriff Riley talked by telephone with Brown, who was at
work at Enco Materials on Highway 78 in the vicinity of Olive Branch, Mississippi,
and told him that authorities wanted to speak with him. When Officers Wood and
Ellis arrived at the business a few minutes after 5 p.m., Brown had left. The
warehouse manager had given him a ride to the bus station at Shelby Drive and Elvis
Presley Boulevard in Memphis. Wood spotted a shoe print in some dust on the floor
of the warehouse where he worked that appeared to match those they had seen at the
Boyd house, as well as along the footpath. He later received a phone call from a
pawnshop owner that Brown had purchased a gun that day. Lieutenant Ellis testified
that they made several fruitless attempts to locate Brown at his wife’s house on
Shadowline Road in Memphis as well as at his girlfriend’s home in Coldwater,
Mississippi. He later learned that Brown had gone to the Villa Inn Motel on
Highway 61 in South Memphis. Along with Memphis detectives, he went to the
motel and “found that a person identified as Sherwood Brown had checked into that
motel under the name of Sherwood Jones and gave the Shadowline address.” Brown
was no longer there.
After Wood and Ellis’ unsuccessful efforts to locate Brown, and friends and
relatives in the Eudora Community were unable to find him there, DeSoto County
authorities contacted the Memphis Police Department, since Brown had more
relatives and contacts in Memphis. They met with the city’s Homicide Bureau and
Tactical Unit on Friday, January 8, 1993, and advised them that Brown was wanted
in connection with a triple homicide, that he was armed and had a history of violent
behavior, and that because of shoeprints and the large quantity of blood at the scene,
his shoes and clothes had possible evidentiary value.
Brown called his friend, James Coleman “Chick” Jones around 6:00 p.m. on
Friday afternoon, January 8, 1993. He asked Jones to meet him at the Villa Inn
Motel. Jones testified that when he arrived, Brown was not in his room, but hiding
around the corner, and explained to him that he had wanted to make sure that Jones
wasn’t being followed. Jones further stated that Brown told him that he was running
from the police. At Brown’s request, the two went to pick up Brown’s wife, Angela,
with Brown hiding in the backseat of the car. After they brought Angela Brown back
to her home, Jones and Brown went back to the motel for several hours. He then
testified that Brown told him that he had knocked on the door of Mrs. Boyd’s house,
and when Evangela answered the door, “[t]hey go into another room, start talking and
flaunting around and feeling on her or whatever,” 1 Betty Boyd was supposed to have
been at church, but she was at home and when she saw Brown, they argued and he
grabbed “something similar as he described a joe blade” and hit her. Jones recalled
that Brown told him:
After that, he continues to flaunt with the little girl. He said he fucked her.
11
She was trying to fight back, so he just beat her some so she was temporarily
unconscious, and as she was in the midst of fighting back she was getting cut
at the same time.
He then told Jones that he heard a door shut and thought it was one of the Boyd boys.
He went to the front door, stood behind it, and when Verline Boyd came in, hit her
on the back of the head. After that, he said, Evangela was trying to leave, and he had
to stop her, so he just grabbed “whatever he grabbed and just stopped her, cut, her,
hatchet or whatever, just he stopped her.” He told Jones that he walked home along
the path. Jones stated that while they were talking, Brown was very nervous, wild,
angry and upset, constantly shaking and smoking cigarettes. At one point, he put a
gun to his head. Jones told Brown that if he didn’t turn himself in, that he was going
to call the sheriff. Jones later called Sheriff Riley and told him that Brown was at the
Villa Inn.
Brown was arrested at the Memphis home of his aunt shortly after midnight
on January 11, 1993 by officers of the Memphis Tactical Unit. At the time of his
arrest, Brown was wearing only his underwear, and because it was a cold, rainy night,
pointed out his shoes and overcoat to Officer Thomas Helldorfer. Having been
advised of the potential evidentiary value of Brown’s shoes and any clothing, his
request to wear the items was denied and the shoes and coat, as well as two guns and
an ax found at the house, were taken into custody.
In his statement to Officers Wood and Ellis, made at the Memphis Criminal
Justice Center, Brown denied that he had been on Boyd Road the Wednesday night
of the murders; rather, he stated that he had arrived at his parents’ house at around
8:00 p.m. and had gone straight to bed. He stated that he had smoked some
marijuana and drunk some beer. When officers confronted him with corroborated
statements from friends he’d been with that night and accused him of lying, he
became defensive, admitted that he’d also smoked some crack cocaine and told them
that he wasn’t admitting anything; they would have to prove it. At the suppression
hearing, Brown denied that he had been advised of his rights or that he had signed a
waiver of rights, and charged that Woods had started screaming at him, calling him
a liar and along with “three or four of them,” had whipped him.
Because there was evidence that the victims had struggled with their assailant,
Officer Ellis asked Brown to remove his shirt for examination of his upper torso
during the interrogation. Wood testified that they observed a cut on his left wrist and
one on the little finger of his right hand. Ellis photographed the injuries. In his
statement, as well as in his testimony at the suppression hearing, Brown indicated
that he had gotten the cut on his wrist at work and the one on his finger while fighting
with his girlfriend. At the trial, experts in the area of oral pathology and forensic
odontology debated whether the cut on Brown's left wrist could have been a bite
mark.
12
Brown’s size twelve Fila running shoes, the threshold of the Boyd home as
well as boards taken from the porch, three pieces of broken glass, photographs of
shoe prints from the scene and casts made from the impressions in the mud likewise
were subjected to expert scrutiny. Geary Kanaskie, an expert in the field of shoeprint
comparison for the Federal Bureau of Investigation, focused on the toe design of the
left shoe, which corresponded with the bloody prints left on the porch and threshold
of the Boyd residence, as well as with the photographs and cast impressions made at
the scene. The toe design further corresponded in size with Brown’s size twelve Fila
running shoes. He indicated that approximately twenty-three of the photographs
submitted for his analysis corresponded with Brown’s shoes, several showed a
different design and others did not reveal a clear design impression. Kanaskie noted
that while Fila is one of the top three sellers of running shoes, shoes as large as those
submitted for comparison are not big sellers. He further testified that the company
has marketed as many as three or four hundred styles of shoes, the design of the sole
is unique to each particular line or style.
Joe Errera, a forensic serologist for the Federal Bureau of Investigation, tested
Brown’s Fila running shoes for the presence of blood, as well as the prints left on the
metal threshold and wooden porch boards. He explained that he first performed a
visual inspection of the item submitted for analysis to determine if there are any
stains to be tested. He then performed what he described as “a screening test for the
possible presence of blood,” followed by a confirmatory test, a chemical test that
allows him to absolutely determine that blood is present. He found no evidence of
blood on the right shoe. On the left shoe, however, toward the toe and mid-section,
he testified that “there were two areas which upon applying the chemical screening
test for the possible presence of blood tested positive.” Clarifying his efforts at
confirmatory testing, he noted that, as distinguished from a stained item that has been
left undisturbed, “environmental interactions with an item from temperature and
bacteria and actual physical removal of a stain can all come into play to remove
blood from an item to the point where my tests cannot specifically detect it.”
_________________
1. There was evidence that Brown had been lusting after young Evangela Boyd.
Laura Jones, Chick Jones’ mother and a friend who fixed the Boyd women’s hair,
testified that one day in 1992 or 1993, when Evangela was at her house, she had
overheard Brown say, “I’m going to get some of that.” She further stated:
Well, I didn’t say anything to him at first, you know, because he
was—everybody was still outside. But when I came inside, then later on he
came in the house and asked for some water, and I told him that I heard him,
and I told him he should be ashamed of his self, and he just smiled, you
know, and he, That was just ripe. I told him she was just a young child, I
said, That’s a young child. And he said that she was just ripe, ripe like a
peach.
690 So.2d at 280-83.
13
III. SUMMARY OF THE ARGUMENT
The appellant claims the trial court applied the incorrect legal standards in adjudicating his
Atkins claim in that the court required proof of adaptive functioning deficits prior to age eighteen.
The appellant also claims the trial court committed error in denying his claim of mental retardation
based on the evidence and testimony he offered concerning adaptive functioning. The appellant
further avers that the trial court committed error in admitting the expert report of Dr. Robert Storer
and by admitting testimony from Storer regarding statements of collateral sources interviewed
personally by Dr. Storer as part of his evaluation of the appellant. The State submits that the
appellant’s claims are either barred from consideration and/or alternatively devoid of any legal merit.
IV. STANDARD OF REVIEW
As the Court held in Goodin v. State, 102 So.3d 1102 (Miss. 2012), regarding the standard
of review for an evidentiary hearing in a post-conviction case, such as the one sub judice:
¶ 30. This Court has provided the following standard of review for an
evidentiary hearing conducted by a trial court in a post-conviction-relief case:
“When reviewing a lower court’s decision to deny a petition for post [-]
conviction relief this Court will not disturb the trial court’s factual findings
unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d
595, 598 (Miss.1999) (citing Bank of Mississippi v. Southern Mem’l Park,
Inc., 677 So.2d 186, 191 (Miss.1996)) (emphasis added). In making that
determination, “[t]his Court must examine the entire record and accept ‘that
evidence which supports or reasonably tends to support the findings of fact
made below, together with all reasonable inferences which may be drawn
therefrom and which favor the lower court’s finding of fact ....’ ” Mullins v.
Ratcliff, 515 So.2d 1183, 1189 (Miss.1987) (quoting Cotton v. McConnell,
435 So.2d 683, 685 (Miss.1983)). That includes deference to the circuit
judge as the “sole authority for determining credibility of the witnesses.”
Mullins, 515 So.2d at 1189 (citing Hall v. State ex rel. Waller, 247 Miss. 896,
903, 157 So.2d 781, 784 (1963)).
Doss v. State, 19 So.3d 690, 694 (Miss.2009) (quoting Loden v. State, 971 So.2d 548,
572–73 (Miss.2007)). Although the trial court’s findings of fact will not be disturbed
unless found to be clearly erroneous, questions of law are reviewed de novo. Doss,
14
19 So.3d at 694 (quoting Brown, 731 So.2d at 598). “The burden of proof at an
evidentiary hearing on a PCR case is on the petitioner to show ‘by a preponderance
of the evidence’ that he is entitled to relief.” Doss, 19 So.3d at 694 (quoting
Miss.Code Ann. § 99–39–23(7) (Rev.2007)).
102 So.3d at 1111.
The appellee submits that the holding of the trial court “will not be disturbed unless found
to be clearly erroneous. . . .” Id.
V. THE CLAIMS
I.
THE CIRCUIT COURT APPLIED THE CORRECT LEGAL
STANDARDS IN ADJUDICATING THE APPELLANT’S ATKINS
CLAIM
The appellant’s initial argument is that the trial court “held Mr. Brown to heightened
standards that are not required for a finding of mental retardation under Mississippi law.” App. at
24. Specifically, the appellant argues that the trial court “(1) applied incorrect legal standards, (2)
it made clearly erroneous factual finding, and (3) it relied on documents for its findings that were
improperly admitted into evidence.” Id. The appellant argues further that the trial court committed
error in that it “reject[ed] the results of testing performed by Mr. Brown’s psychologist”6 because
no adaptive deficit testing measures were administered to “to anyone who had contact with Brown
prior to age eighteen.” App. 26. The appellant’s claims are specious. The State submits the trial
court properly considered evidence presented by both parties and applied the correct legal standards
as the record clearly reflects.
At the outset, the appellee submits the trial court applied the correct legal authority and
standards in adjudicating the case at bar. Specifically, the trial court followed the Court’s holding
in Chase v. State, 873 So.2d 1013, 1028 (Miss. 2004), noting that:
6
App. 25.
15
In Chase v, State, 873 So. 2d 1013, 1028 (Miss. 2004), the Mississippi
Supreme Court stated that mental retardation can be assessed by evaluating three
criteria: “The essential feature of Mental Retardation is significantly sub-average
general intellectual functioning (Criterion A) that is accompanied by significant
limitations in adaptive functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health, and safety
(Criterion B). The onset must occur before age 18 years (Criterion C).” Chase v.
State, 873 So. 2d 1013, 1028 (Miss. 2004).
For purposes of Atkins evaluations, an evaluation of mental retardation must
also include a determination as to whether the petitioner was malingering during his
or her mental evaluations. Chase, 873 So.2d at 41, Lynch v. State, 951 So.2d 549,
556 (Miss. 2007). Malingering is “[flaking mental retardation in order to avoid
punishment,” Lynch, 951 So. 2d at 561 (Randolph, J., concurring). Various
psychological tests are available to assess malingering. Lynch, 951 SO.2d at
556-557.
A defendant must prove that he meets the standard for mental retardation by
a preponderance of the evidence. Chase, 873 So.2d at 1028 (quoting Foster v. State,
848 So.2d 172, 175 (Miss.2003)).
App. R.E. 8-9.
The appellee submits the trial court applied the correct standard in adjudicating the appellant’s claim
of mental retardation, following the Court’s guidance in Chase its progeny. There is no error in that
regard. The appellant’s claim, at it’s root, is not related to the misapplication of any standard at all.
Rather, the appellant’s claim is based on his erroneous interpretation of the second and third prongs
of an Atkins analysis, those being the assessment of adaptive functioning and proof of the onset of
mental retardation prior to age eighteen (18). In short, the appellant is simply aggrieved that the
evidence he offered on these two prongs was insufficient to warrant a determination that Brown is
mentally retarded.
As this Court has repeatedly held, in order to succeed on a claim of mental retardation one
16
must satisfy the “two, almost identical, definitions of ‘mental retardation’”7 as announced in Atkins
and embraced by the Court in Chase, those being:
The first definition, from the American Association on Mental Retardation states:
Mental retardation refers to substantial limitations in present functioning. It
is characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, community use,
self-direction, health and safety, functional academics, leisure, and work,
Mental retardation manifests before age 18.
Id. The second definition, from The American Psychiatric Association, states:
“The essential feature of Mental Retardation is significantly subaverage
general intellectual functioning (Criterion A) that is accompanied by
significant limitations in adaptive functioning in at least two of the following
skill areas: communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B). The onset must occur before age 18
years (Criterion C). Mental Retardation has many different etiologies and
may be seen as a final common pathway of various pathological processes
that affect the functioning of the central nervous system.” Diagnostic and
Statistical Manual of Mental Disorders 39 (4th ed.2000).
102 So.3d at 1121.
To the extent the appellant takes the position that the onset of adaptive deficits does not have to
manifest prior to age eighteen (18), the appellee submits that position is incorrect. Id. Both
subaverage intellectual functioning as well as adaptive deficits must manifest prior to age eighteen
(18) in order for one to be adjudicated as mentally retarded. Id. In the case sub judice, the trial court
clearly did not disregard informants who were given adaptive functioning measures, but who did not
know Brown prior to age eighteen (18), however, that is indeed significant. As stated, any deficits
in adaptive functioning must have existed in adolescence, prior to that age. Arguably, without
7
See Goodin v. State, 102 So.3d 1102, 1121 (Miss. 2012).
17
having someone who can inform a court as to a capital litigant’s adaptive functioning prior to age
eighteen (18), a claim of mental retardation cannot be sustained. See Goodin, 102 So.3d 1102, 1121
(Miss. 2012).
At any rate, the trial court clearly committed no error with regard to this prong, as is
evidenced by the trial court’s holding in which it detailed the evidence of adaptive functioning,
which was presented and considered. App. R.E. 10-18. Nowhere in that opinion does the trial court
state that it disregarded testimony of informants who did not know Brown prior to age eighteen (18).
Nowhere in the transcript of the proceedings does the trial court state that these informants would
be disregarded. The appellant’s claims to the contrary are wholly unsupported by the record. Indeed,
the record shows that the trial court considered all testimony offered by the appellant with regard to
adaptive functioning. The appellant’s claims to the contrary are wholly unsupported by the record.
Also unsupported are the appellant’s claims regarding the onset of limitations in adaptive
functioning. App. 28. The Court has repeatedly held that the onset of mental retardation must occur
prior to age eighteen (18). This includes the onset of significant deficits in adaptive functioning,
hence, the need for a retrospective assessment of any potential deficits and the need for a collateral
source who knew the appellant prior to age eighteen (18). Onset of any adaptive deficits must
therefore have manifested prior to age eighteen (18), as the Court recently reiterated in Goodin v.
State, 102 So.3d 1102 (Miss. 2012) holding:
¶ 33. This Court in Chase adopted the clinical definition of mental retardation
set forth by the Supreme Court in Atkins. “Mental retardation refers to substantial
limitations in present functioning.” Chase, 873 So.2d at 1027 (quoting Atkins, 536
U.S. at 308 n. 3, 122 S.Ct. 2242). According to the AAMR, mental retardation is
characterized by: (1) “significantly subaverage intellectual functioning,” (2)
“existing concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, community use,
self-direction, health and safety, functional academics, leisure, and work,” (3) which
“manifests before age 18.” Id. The definition of mental retardation from the APA
18
is almost identical.1 Id.
_________________
1. The APA’s definition of mental retardation comes from the Diagnostic and
Statistical Manual of Mental Disorders: “The essential feature of Mental Retardation
is significantly subaverage general intellectual functioning (Criterion A) that is
accompanied by significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B). The onset must occur before age 18 years
(Criterion C).” Chase, 873 So.2d at 1028 (quoting Atkins, 536 U.S. at 308 n. 3, 122
S.Ct. 2242) (quoting Diagnostic and Statistical Manual of Mental Disorders 39 (4th
ed.2000))).
102 So.3d at 1112. [emphasis added]
Clearly, onset of adaptive deficits must occur prior to age eighteen and are not to be assessed at “the
time of the crime, by comparing the inmate’s functioning at that time to people who are similar in
age” at the appellant argues. App. 30. That is not the law. The law of this state requires onset of
both significantly subaverage intellectual functioning coupled with significant limitations in adaptive
functioning in at least two of the specified skill areas, both of which must manifest prior to age
eighteen (18). Goodin, supra. The Court also specifically acknowledged this in Goodin holding that
the “definitions of mental retardation require onset before age eighteen.” 102 So.3d at 1114 (citing
to Thorson v. State, 76 So.3d 667, 672 n. 8 (Miss.2011) (“The onset of mental retardation for Atkins
has to be before the defendant is older than eighteen years of age.)) The Court elaborated on the
retrospective nature of assessing for adaptive functioning and in so doing offered methods for such
assessment prior to age eighteen (18), holding that:
Interviews with educators or others in the community familiar with the defendant’s
behavior before age eighteen also would provide valuable information.
Adaptive-functioning tests may be administered to these individuals as well. A
retrospective evaluation also could include a thorough review of school records,
social history, and work history, among other things.
Goodin, 102 So.3d at 1115. [emphasis added]
19
The appellant’s claim that he is not required to show significant deficits in adaptive functioning prior
age eighteen is simply not supported by the law. The trial court applied the correct “standard” in
every respect and thus committed no error. The appellant is entitled to no relief on this assignment
of error.
II.
THE CIRCUIT COURT’S FINDINGS OF FACT REGARDING
THE APPELLANT’S ADAPTIVE FUNCTIONING ARE NOT
CLEARLY ERRONEOUS
The appellant next argues that the trial court’s findings were contrary to the evidence. App.
at 35. He is mistaken. The trial court’s holdings with regard to adaptive functioning are amply
supported by the record. The trial court clearly considered the testimony of all witnesses in arriving
at the conclusion that Brown suffered from no significant deficits in adaptive functioning. Again,
the State submits the record speaks for itself in this regard and offers the following in support of that
proposition.
The appellant’s claim of error with regard the trial court’s holding on the issue of adaptive
functioning is a continuation of his specious claim that the court “rejected the results of testing” by
Brown’s psychologist because no adaptive measures “were administered to. . . anyone who had
contact with Brown prior to age eighteen.” App. 25. While the court addressed the fact that no
retrospective adaptive deficit testing measures were administered to anyone who knew Brown prior
to age eighteen8, the court did not disregard testing performed by Brown’s psychologist, Dr. Marc
Zimmerman. Rather, the trial court considered all testimony offered by the appellant regarding
alleged adaptive deficits. Specifically, with regard to adaptive deficits, the trial court held, citing to
guidance on that issue provided by the Court’s opinions in Gooden and Doss v. State, 19 So.3d
8
See App. R.E. 10-11.
20
690,714 (Miss. 2009), that:
To assess the adaptive functioning in this case, Brown’s expert administered
the Vineland-II test to Angela Brown. He later admitted the test was recommended
for someone who knew the person being evaluated before the age of 18, but that she
only knew Brown after he was eighteen. The State’s expert administered the
ABAS-II test to Brown. He later conceded the ABAS test should not be used for this
purpose. Dr. Storer did not administer any measure to any other collateral source
such as Angela Brown, stating he was unable to do so because he was not provided
her contact information prior to his evaluation of the petitioner on May 14, 2012. He
later stated that contact information meant phone number. No adaptive functioning
tests were administered by Dr. Storer or by Dr. Zimmerman to anyone who had
contact with Brown prior to age eighteen. Both experts talked to some of his teachers
regarding Brown’s academic history prior to eighteen. Both experts also contacted
family members and other sources, including referring to work and school records.
Both of the experts relied on information not provided at the hearing.
a) Significant adaptive functioning deficit in the area of functional academic skills
June Gilbreath, one of Sherwood Brown’s sixth-grade teachers testified that
Brown’s school transcript indicated that he repeated first grade, and that he repeated
a semester of the seventh grade before he was promoted to eighth grade. Gilbreath
also testified that Brown’s school transcript indicated that he did not pass the fifth
grade (where he made all Os and Fs), but that he was nonetheless promoted to the
sixth grade, likely as a “social promotion” because of his height. Gilbreath testified
that the initials “LD” next to the English, Reading, and Spelling on Brown’s
transcript during his sixth-grade year were her handwriting. She testified that LD
meant “learning disability” or “learning disabled” and that Brown’s grades in sixth
grade were “modified.” She testified that she would “teach modified” for kids who
had problems and needed some help, and Brown was given tests that were easier than
he would have been given if he did not have a learning disability. Gilbreath further
testified that the scores in the section of Brown’s school record entitled “Evaluation
of Social & Personal Assets” show that Brown was engaged in his schoolwork and
was putting forth good effort. Susan Kizer, currently the Special Education Director
in the DeSoto County school system, testified having never met Brown, nor taught,
nor had any contact with Brown while he was in DeSoto County Schools, and that
years ago, the DeSoto County School District destroyed all special education records
from the time period when Brown was in school. Kizer testified that a notation of
LD on Brown’s sixth grade transcript does not indicate that the petitioner was
learning disabled. She stated that such a determination would have been the result
of a comprehensive evaluation and would not be based on notations on one grade of
a student’s transcript.
Dr. Zimmerman testified that Brown reported to him as being in special
education classes. Zimmerman also testified that he interviewed another of Brown’s
21
teachers, Ms. Fleming, who also reported that Brown was in special education.
Zimmerman testified that Brown had an adaptive functioning deficit in the area of
functional academic skills. Dr. Storer administered this measure in part to do a check
of Brown’s reading achievement. These reading sub-tests revealed that Brown’s
sight word reading ability was at the 8.9 grade level or just under the ninth grade.
Brown’s sentence comprehension ability was measured at a grade level of 7.0. Dr.
Storer also administered the Mini Mental Status Exam which is a screening measure
for cognitive impairment that assesses immediate and delayed memory as well as
orientation issues. Brown’s scores on this instrument indicated minimal or no
impairment. Dr. Storer further testified that in assessing for adaptive deficits, he
interviewed Constance Buford Carter, who was identified as a former girlfriend of
Brown and the mother of two of his children. Dr. Storer also interviewed Danny
Phillips, a former high school football coach of Brown who stated that Brown had
trouble telling his left from his right. Dr. Storer testified that Brown’s inability to
tell his left from his right did not in and of itself mean he was mentally retarded. Dr.
Storer also interviewed the petitioner’s former high school principal who stated that
Brown’s grades were good in gym and football. Dr. Storer also spoke to Benny
Flynn, also a former coach, who stated that Brown would not have been allowed to
play football if he did not have passing grades. Mr. Flynn further stated that to his
knowledge Brown was never determined to be ineligible. Based on Brown’s school
transcript and the testimony of Ms. Gilbreath, Dr. Zimmerman, Dr. Storer, and other
evidence presented at the Atkins hearing, the Court concludes that Brown did suffer
some deficiencies in academic achievement. However, the deficiencies do not appear
to be the type confined to those suffering from mental retardation. Further, other than
Ms. Gilbreath’s identification of “LD” meaning “Learning Disability” or “Learning
Disabled”, no proof has been presented that there was ever a finding that Mr. Brown
suffered from a learning “disability” much less that the disability met the legal
definition of mental retardation for Atkins purposes. Certainly, with utmost respect
to Ms. Gilbreath, she never claimed to have diagnosed Brown as such.
Brown obtained grades sufficient to obtain numerous promotions in school,
his academic progress (while lagging) improved throughout his school years and his
comprehension level rose as he promoted through the grades. His difficulties in
school are simply not unique and could equally be explained by any number of
reasons other than an “adaptive functioning deficit.” The Court finds that, while
Brown has certainly presented legitimate evidence of academic difficulties, he has
not met the applicable burden of proof to establish that he had a significant adaptive
functioning deficit in the area of functional academic skills.
b) Significant adaptive functioning deficit in the area of work
Brown’s Social Security records indicate that Brown held sixteen or
seventeen different jobs from 1983 until 1993, the year he was incarcerated. Dr.
Zimmerman testified that Brown stated in an interview that he was terminated from
various jobs because he could not perform the jobs satisfactorily, or for fighting with
22
management and other employers. Dr. Zimmerman testified that, in his opinion,
Brown had an adaptive functioning deficit in the area of work. Brown’s wife
testified that Brown had a number of jobs, including working for two beer
distribution companies as well as another company. She stated that the petitioner’s
job at those beer distribution companies involved delivering beer to the stores and
stocking the shelves. Dr. Storer testified that Brown reported that he had a
commercial driver’s license. There was contradictory testimony to whether Brown
actually drove a commercial vehicle. Dr. Storer spoke with petitioner’s father, Albert
Lee Brown, Constance Buford Carter and reviewed Dr. Little’s report and the 1998
affidavit of Angela Brown. Dr. Storer testified that Albert Lee Brown stated the
petitioner worked for Budweiser and was not just a helper but was the driver of the
truck. Ms. Carter stated that the petitioner had worked for a Mississippi energy place
and was “working on the poles.” Dr. Storer further testified that Carter stated that
Brown had worked on an assembly line as a packer. Ms. Carter also told Dr. Storer
that Brown drove a truck for Budweiser and later drove a truck for J.B. Hunt
Trucking Company. She told Dr. Storer that Brown, while a driver at J.B. Hunt, had
to fill out log books and all that kind of thing. When questioned on the issue of ever
having obtained a commercial driver’s license, Brown informed Dr. Storer that he
had attended a driving school in Crystal City, Missouri. No records, however, were
produced showing his attendance at that school nor was evidence presented that
Brown indeed possessed a commercial driver’s license. Brown also told Dr. Storer
during the interview that he was in the Job Corps. While having multiple jobs could
be indicative of a deficit in adaptive functioning, Dr. Storer did not assign such a
deficit in this case. Rather, Dr. Storer testified that in his opinion these job
difficulties were potentially related to Brown’s substance abuse.
The testimony made it clear that Brown had a substance abuse problem
during the times in question. Certainly, there was some testimony that the mental
retardation/substance abuse issue might be like the “chicken and the egg.” However,
the testimony presented could clearly be explained just as easily as a substance abuse
problem as a mental retardation indicator. The failure to hold a job is, without a
doubt, a repeated pattern for drug abusers. Brown’s ability to perform the functions
of his jobs as well as the testimony regarding his commercial license and training he
received through driving school and the jobs corps make substance abuse the more
likely cause. It certainly does not establish an adaptive functioning deficit.
Ultimately, the petitioner attempts to simply claim that the end result proves the
cause. In other words, the testimony can be summarized as stating that because
Brown had many jobs and because that can be an indicator of an adaptive functioning
deficit, then it must establish an adaptive functioning deficit. The Court disagrees.
Based on Brown’s social security records, the testimony of Brown’s wife, the
testimony of Dr. Zimmerman, and other evidence presented at the Atkins hearing, the
Court concludes that Brown did not have a significant adaptive functioning deficit
in the area of work.
c) Significant adaptive functioning deficits in the areas of self care and home living
23
Ms. Angela Brown testified that Brown never lived by himself. She testified
Brown did not understand the concept of money at an appropriate age. She recalled
that Brown was never able to handle his own financial affairs, or even make sound
decisions with regard to spending money. She further recalled that Brown never had
any type of bank account but acknowledged that Brown gave her money for groceries
and other things. Brown’s mother, Ms. Willie Mae Brown, had to handle all of his
finances. She also testified that Brown was able to cook food for himself and was
able to clean up after himself. She also testified that Brown helped his mother with
chores and ran errands whenever she needed something. She testified that Brown
washed clothes, washed dishes and drove to the store to get items. Brown told Dr.
Storer that he cooked, and Storer asked for specific directions from Brown to verify
he was not making this up. Angela Brown stated in her affidavit that Brown as a
child got himself dressed for church and went on his own. Constance Buford Carter
told Dr. Storer that Brown took his children to the doctor. Storer also spoke with
other individuals who knew Brown when he was in school.
Brown appears to have lived at his parent’s home for a lengthy time and
allowed his mother and, subsequently his wife, to take care of him in many regards.
This, in and of itself, is hardly an indicator of mental retardation and is certainly not
proof of an adaptive functioning deficit. It is not uncommon for young men to
continue to live at home and allow their mother (or wife) to care for them and, while
being possibly reflective of immaturity, does not meet the definition of an adaptive
functioning deficit. Further, this evidence certainly fits the expected pattern of a drug
abuser. Based on Ms. Angela Brown’s testimony and other evidence presented at the
Atkins hearing, the Court finds that Brown does not have significant adaptive
functioning deficits in the areas of self care and home living.
d) Significant adaptive functioning deficit in the area of social/interpersonal skills
Angela Brown testified that Brown has a large scar on his neck that was the
result of a knife fight that he had with his uncle, when Brown was 20 or 21 years old.
She later testified however, that she did not witness the fight nor was she present.
Angela Brown also testified that in 1986, Brown was charged with aggravated assault
for stabbing his aunt in the hip after a family outing at Arkabutla dam. She testified
in regards to Brown’s relationship with his parents, specifically that Brown’s mother
may have had a drinking problem which caused her to have anger issues. She
testified that she had problems with Brown’s mother as well. Dr. Zimmerman
testified that in his interview with Brown, Brown reported that he was terminated
from his various jobs because he could not perform the jobs satisfactorily, or for
fighting with management and other employers.
The testimony shows a few outbursts of anger, a number of which took place
in a volatile household setting. Once again, the Court would note that such behavior
is common for someone suffering from a substance abuse problem. Based on the
testimony of Ms. Angela Brown, Dr. Zimmerman and other evidence presented at the
24
Atkins hearing, the Court concludes that Brown did not have a significant adaptive
functioning deficit in the area of social/interpersonal skills.
e) Significant adaptive functioning deficits in the areas of health and safety
Dr. Zimmerman suggested that Brown’s use of drugs and alcohol represented
an adaptive deficit in the areas of health and safety. He testified that Brown reported
to Dr. Storer that, at age 6 or 7, Brown would inhale gasoline until he passed out.
According to Zimmerman, the gasoline Brown was inhaling likely contained lead
because Brown’s gasoline inhalation occurred in the mid-1970's, a time when
gasoline typically contained lead. Dr. Zimmerman also testified that exposure to lead
is specifically noted by the Diagnostic and Statistical Manual IV as a predisposing
or risk factor for mental retardation. Angela Brown testified that Brown was a
reckless driver and that he wrecked and totaled several cars. Ms. Brown also recalled
that Brown did not go to either the doctor or dentist of a regular basis.
These are mere isolated incidents some of which clearly reflect substance
abuse. Likewise, a broad statement that Brown did not regularly go to the doctor or
to a dentist is insufficient. Based on the evidence presented at the Atkins hearing, the
Court concludes that Brown did not have significant adaptive functioning deficits in
the areas of health and safety.
App. R.E. 10-18.
As the preceding excerpt from the trial court opinion clearly shows, evidence offered by the appellant
regarding adaptive deficits was in no way disregarded. Rather, the trial court clearly considered the
testimony of the appellant’s expert who administered retrospective adaptive deficit testing measures
to witnesses as well as the testimony of those tested who did not know Brown prior to age eighteen
(18). The lengthy excerpt is included for the Court’s convenience and to illustrate the deficiency in
the appellant’s argument that the trial court failed to consider testimony and/or evidence offered in
support of claims of adaptive deficits resulting from giving test measures to informants who did not
know the appellant prior to age eighteen (18). In a well reasoned opinion, the trial court addressed
each and every claim of alleged deficits in adaptive functioning as well as their corresponding areas
raised by the appellant and disposed of them accordingly. This was not done in violation of
Mississippi law with regard to Atkins hearings. Rather, the trial court’s opinion is entirely consistent
25
the Court’s holding in Chase, Gooden and Doss.
The evidence presented clearly supported the trial court’s determination that Brown is not
mentally retarded and that he suffers from no significant deficits in adaptive functioning which
would entitle him to relief pursuant to Atkins. A review of the evidence presented and the testimony
offered, clearly supports the trial court’s ruling.
At the hearing, the appellant offered testimony from his sixth grade teacher June Gilbreath
via a video taped deposition in an attempt to show significant adaptive deficits in academics. Tr. 74.
Ms. Gilbreath’s testimony coupled with the introduction of Brown’s school transcript revealed that
while Brown was not an ideal student, he was certainly capable of achieving passing grades. Further,
Ms. Gilbreath’s statement in her video taped deposition regarding the notation “LD” on Brown’s
sixth grade year column on his transcript, as being evidence that Brown had been determined to be
learning disabled was incorrect as the State’s witness, Susan Kizer, director of special education for
Desoto County and a former teacher, testified that such a notation did not constitute an official
designation nor did it signify that Brown was ever in special education classes. Tr. 349. While it
does appear, that Brown did not excel in school and that he may have been in some remedial classes,
no evidence was introduced which established the appellant was ever in special education or that he
was ever determined to be mentally retarded.
Angela Brown, the appellant’s wife, testified that Brown earned a living as a delivery helper
for a beverage company. Tr. 50. She later acknowledged that in prior testimony provided through
her affidavit provided in the appellant’s successive petition for post-conviction relief, that she had
stated that the appellant was a delivery man. Id. 51. She testified that the appellant worked and
earned a living. Id. 55. She also testified that Brown supported his mother financially and helped
with chores around the house. Id. 55-6. Clearly, the appellant was able to work and earn a living and
26
handle money, which demonstrates that he did not have deficits in this area, as the trial court
correctly held.
Further, Dr. Storer’s interviews with former girlfriend, Constance Buford Carter and Albert
Brown, the appellant’s father, reinforce this lack of significant deficits in adaptive functioning in a
number or areas including, but not limited to, communication skills, daily living skills and work.
Their statements indicate that Brown was much more than simply a delivery worker. Their
statements support the appellant’s own contention that he indeed drove a delivery truck as the
testimony by Dr. Storer clearly shows:
I talked with Mr Brown’s father, Mr Albert Lee Brown, who said that Mr.
Brown had worked for Budweiser, and I asked Mr. Albert Brown specifically
whether Mr. Brown was a helper or a driver. And Mr. Albert Lee Brown assured me
that Mr. Brown was not just a helper but was the driver of the truck.
Tr. 455.
Dr. Storer testified further concerning statements made by Ms. Carter regarding whether or not
Brown was a driver or not:
. . . . I asked her if she knew anything about Mr. Brown working for the beverage
company driving a delivery route, and she said, “Budweiser. Yes, he did delivering
to stores.” I asked her if Mr. Brown had any difficulty in that work, maybe finding
his way around town or locating places where he’s scheduled to deliver, and Ms.
Carter replied, “Of course not.” I asked her about the last job she knew that Mr.
Brown had, and she said that he had been driving a truck for, quote, “J.B. Hunt
Trucking Company.” I asked her whether that was as a driver, and she said it was.
She said, “had to fill out log books and all that kind of thing.”
Thus, claims by Brown’s expert, Dr. Zimmerman, that Brown suffered from adaptive deficits
in the area of work were not supported by the testimony of other witnesses, as the trial court correctly
held.
Likewise not supported by the record and the evidence presented at the hearing, were Dr.
27
Zimmerman’s contentions that based on his administration of the Vineland9 to Angela Brown, that
the appellant had significant adaptive functioning deficits in the areas of “communication, self-care,
social/interpersonal skills, use of community resources, self direction, functional academics, work,
leisure and safety.” Tr. 178. Testimony by Angela Brown as well as testimony by Dr. Storer
contradicted those determinations. Indeed, the record is clear that Brown had no deficits in any of
these areas, with the possible exception of academics.
Mrs. Brown’s testimony and statements by Ms. Carter showed that the appellant was able to
communicate well and that he had no deficits in the area of social and interpersonal skills. Both
Brown and Carter provided statements showing the appellant could cook, clean and take care of
himself. Tr. 41, 241, 445-46. Moreover, statements by Carter demonstrated that the appellant was
able to care for their two children and that he took them to and from the doctor. Id. 440-41.
In regards to self direction, testimony was provided which showed that Brown, as a child was
capable of dressing himself for church and was able to get there by himself. Tr. 442,445. Further,
evidence and testimony showed the appellant was certainly able to work and provide for himself and
his family. While it appears he may have had anger issues, may have abused various substances and
may have had issues with his supervisors, these did not indicate significant adaptive deficits which
would warrant a determination that Brown is mentally retarded, in and of themselves. Indeed, other
than problems with his grades in school, the evidence presented and testimony given, clearly
supported the trial court’s determination that the appellant suffered from no significant deficits in
adaptive functioning.
Beyond all that, the transcript of the proceedings clearly shows that Dr. Zimmerman’s
9
The Vineland Adaptive Behavior Scales.
28
findings and conclusions were more than suspect. If nothing else, his admissions that he augmented
his report to suit counsel for the appellant, including his admission that he changed and included
wording in his report pursuant to their instructions, including how he was to say things in his report,
is more than significant. Tr. 191-200. Dr. Zimmerman admitted that he did not follow the ethical
guidelines for forensic psychologists, on a number of instances. Tr. 239-41. He admitted that
articles he cited in his expert report were not relied upon by him but were rather provided by counsel
for the appellant. Tr. 198. Most telling is Dr. Zimmerman’s admission that counsel for Brown told
him that if he said something “one way it meant something and that’s not what I meant so I reworded
it.” Id. at 200. Further, Zimmerman admitted to administering the Norris Education Achievement
Test to Brown who was thirty-nine (39) at the time, all the while acknowledging that the Norris was
designed to only be administered to an individual no older than seventeen years and eleven months.
Id. 218. He further admitted that he knew he was required to give special instructions to Brown
before he took the test, as the appellant was an adult, but he nonetheless chose not to. Id. at 219.
He also admitted that he relied on a screening instrument to support his opinion that the appellant
suffered from significant neuropsychological deficits when that screening instrument’s publishers
specifically noted that it should not be used for such purpose. Tr. 220. Dr. Zimmerman also
admitted that the reason he chose not give the full battery of the Luria-Nebraska was because it took
four hours to administer and he was not told by counsel for Brown to give that particular test. Tr.
221-22.
Further, Dr. Zimmerman found adaptive deficits in the area of social life based on
altercations with family members who drank frequently and tended towards violent behavior, but
later acknowledged that problems getting along with such family members would not “in and of
itself” show that Brown was mentally retarded. Tr. 251. Dr. Zimmerman admitted that he was
29
required to put everything in his report as it relates to a determination of mental retardation pursuant
to the ethical guidelines for forensic psychologists but confessed he left out of his report, Angela
Brown’s statements about the appellant being able to dress himself for church, feed himself and get
to church on his own at the age of thirteen. Tr. 239-39. He further admitted that if we were doing
his report over he might have included this information. Id. at 239-40. He further acknowledged
that he failed to include in his report that Brown helped his mother with laundry, cooking, ironing
and cleaning. Tr. 241. He failed to note in his report that Brown was able to cook for himself and
others. Id. Dr. Zimmerman also opined that the appellant had adaptive deficits in the area of
community resources but then offered absolutely no evidence in support of that claim. Tr. 242.
Dr. Storer’s testimony was clearly more credible on every level. Dr. Storer found no
significant deficits in adaptive functioning which would warrant a determination that Brown was
mentally retarded. This determination is supported by the evidence presented and the testimony
provided.
Angela Brown, who testified on direct examination that she married Brown in 1990 but
acknowledged that as the appellant was arrested in 1994, they had only spent “three or four years
together.” Tr. 49. She testified in regards to the appellant’s relationship with his parents,
specifically that Mr. Brown’s mother may have had a drinking problem which caused her to have
anger issues. Tr. 35-6. She testified that she had problems with Brown’s mother. Tr. 53. She also
testified about a fight in which Sherwood Brown’s uncle cut or stabbed him with a knife at a family
gathering. Tr. 38-9. She later testified however, that she did not witness the fight nor was she
present. Tr. 54. Ms. Brown further testified that the appellant did not have a checking or savings
account but later acknowledged that Brown gave her money for groceries and other things. Tr. 43.
She also testified that Brown was able to cook food for himself and was able to clean up after
30
himself. Tr. 55-6. She also testified that Brown helped his mother with chores and ran “errands
whenever she needed something.” Id. She testified that Brown washed clothes, washed dishes and
drove to the store to get items. Id. She further testified that Brown had a number of jobs, including
working for two beer distribution companies as well as another company. Tr. 41-2. She stated that
the appellant’s job at those beer distribution companies involved delivering beer to the stores and
stocking the shelves. Tr. 50. She further testified that Brown drove a car and that he had his own
vehicle. Tr. 42. She also testified that the appellant played football and “loved it.” Tr. 45. She
testified that the appellant gave some money he earned at work to his mother but that he kept most
of “his money, his earning.” Tr. 58.
As previously stated, the appellant offered the video deposition of Brown’s sixth grade
teacher, June Gilbreath. Tr. 66. Mrs. Gilbreath was only one of Brown’s sixth grade teachers who
testified regarding a notation of “LD” she made on the appellant’s transcript which she stated “can
mean” “learning disability or learning disabled” not that it did mean that. App. R.E. 143. Gilbreath
Video Deposition Transcript at 5. However, Mrs. Gilbreath only taught Brown in the sixth grade
and was not his only teacher that year but was rather the appellant’s “advisory teacher” and therefore
filled in the grades for that one year on his transcript. Id. at 6. Mrs. Gilbreath reviewed Brown’s
transcript and testified that he did not pass the first grade and was apparently socially promoted in
the sixth grade. Id. 7-8. She further testified that Brown’s grades in sixth grade improved from
previous years because of a modified learning program she instituted with him. Id. at 8-9. Again,
Gilbreath’s testimony regarding the notation LD as being learning disabled was contradicted by the
testimony of Donna Kizer.
The State called Ms. Kizer, special education director of the Desoto County Schools. Tr.
345.
Ms. Kizer reviewed Brown’s school transcript and testified that a notation of “LD” on
31
Brown’s sixth grade line does not indicate that the appellant was learning disabled. Tr. 351. Kizer
testified that such a determination would have been the result of a “comprehensive evaluation” and
would not be based on notations on one grade on a student’s transcript. Id. Ms. Kizer further
testified that she had no records of Brown ever having been in special education classes but noted
that her records only went back seven (7) years. That said, no evidence was presented by appellant
which definitively established that Brown was ever in special education classes.
The appellant’s expert, Dr. Marc Zimmerman, testified that his administration of the
Vineland to Ms. Brown indicated that the appellant had adaptive deficits in the areas of
communication and coping and/or daily living skills. Dr. Zimmerman stated that the sub domain
scores obtained for these areas indicated that Brown was functioning no better than that of a thirteen
(13) year old, according to Ms. Brown. Tr. 177-78. Zimmerman concluded that based on his
administration of the Vineland to Ms. Brown that the appellant had significant adaptive functioning
deficits in “communication, self-care, social/interpersonal skills, use of community resources, self
direction, functional academics, work, leisure and safety.” Tr. 178. Dr. Zimmerman supported his
determination of these deficits further, based on his interviews of Girtha Fleming, a special education
teacher, June Gilbreath, Brown’s sixth grade teacher, Constance Carter Buford, who knew the
appellant and one of Brown’s former employers, Robert Seymour. Tr. 154-55. Dr. Zimmerman also
testified that he reviewed the appellant’s school and social security records. Tr. 155.
Dr. Zimmerman testified that the appellant had worked for sixteen (16) employers between
1981 and 1993, the year he was arrested. Dr. Zimmerman testified that his interview of the appellant
revealed the reason for this number of employers was that Brown “got in to disputes with
management or with his coworkers.” Tr. 170. Dr. Zimmerman further testified regarding the
appellant’s family life including an alleged altercation between the appellant and his grandfather
32
which resulted in counseling. Tr. 171. Dr. Zimmerman suggested this altercation and a history of
familial issues showed an adaptive deficit in the area of communication skills. Tr. 173. He further
suggested that Brown’s uses of drugs and alcohol represented an adaptive deficit in the areas of
health and safety. Id.
In an attempt to show onset of mental retardation prior to the onset of age eighteen (18)
Zimmerman testified that the consumption of alcohol by the appellant’s mother may have caused
his mental retardation along with some head trauma Brown suffered. Tr. 181-82. He also suggested
that Brown’s inhaling of gasoline may have contributed to his mental retardation and referenced an
article on that subject regarding the content of lead in gasoline. Tr. 182-84. On cross examination
however, as previously noted, Dr. Zimmerman candidly admitted that he did not prepare his own
report but rather was assisted by counsel for the appellant. Specifically, Zimmerman testified that
he was “helped to prepare the report. . . by Mr. Brown’s attorney. . . .” Tr. 191. He testified that
counsel for the appellant helped organize and word the report. Id. Dr. Zimmerman further admitted
that he was provided articles by counsel for the appellant in the preparation of his report, including
the article regarding lead in gasoline. Tr. 199. He further admitted that he reworded his report to
suit counsel for the appellant, saying “[t]hey told me if I said it one way, it meant something, and
that’s not what I meant so I reworded it.” Tr. 200.
Dr. Zimmerman also admitted that he failed to follow test protocols in administering the
Norris Educational Achievement test as he failed to give special instructions to Brown who was age
thirty-nine (39) when given the test and the age ceiling of that test is seventeen years and eleven
months. Tr. 217-19. Dr. Zimmerman also admitted that he did not give the full test battery of the
Luria Nebraska Neuropsychological test despite having given the screening test, upon the advice of
appellant’s counsel. Tr. 222. Dr. Zimmerman admitted that he had no evidence which supported
33
that Brown was ever enrolled in special education classes other than what he had been told by the
appellant and by Brown’s sixth grade teacher, June Gilbreath. Tr. 229. Dr. Zimmerman also
admitted that Brown’s troubles with his family based on substance abuse and psychological
difficulty within his family did not “in and of itself show that he’s mentally retarded.” Tr. 236. Dr.
Zimmerman also acknowledged that the ethical guidelines for forensic psychologists require him to
include all evidence in a report, even if it is contrary to the expert’s ultimate opinion, yet he did not
include evidence of Brown’s ability to care for himself, such as getting up and dressing himself and
going to church without assistance at age thirteen (13). Tr. 240-41. He further testified that he
failed to include in his report that he had evidence that Brown did laundry, cooked, ironed and
cleaned. Tr. 241.
The State called Dr. Robert Storer, a clinical and forensic psychologist licensed in both
Louisiana and Mississippi.10 Dr. Storer performed a two-part direct examination of Brown at the
State Hospital on May 7, 2012 and May 14, 2012. Tr. 375. As part of that examination, Dr. Storer
administered the WAIS-IV to the appellant. Tr. 389-90. Brown scored a 75 on this administration.
Tr. 413. Brown’s score of 75, thus necessitated Dr. Storer’s addressing the second prong of an
Atkins determination, that being the assessment of adaptive deficits. See Chase, supra.
Dr. Storer assessed Brown to determine if he was malingering and ultimately found that he
was not. Tr. 410-11. Specifically, Dr. Storer administered the Rey 15 Item Memory Test, the Miller
Forensic Assessment of Symptoms Test or M-FAST and the Validity Indicator Profile or VIP. Tr.
404-07. Again, Dr. Storer did not determine the appellant was malingering nor did Dr. Zimmerman.
Dr. Storer then administered the Wide Range Achievement Test (WRAT) which has a
10
Dr. Storer was offered and accepted as an expert in both clinical and forensic
psychology. Tr. 373-74.
34
number of sub-tests for adaptive deficits in the areas of reading and mathematics. Tr. 414. Dr.
Storer administered this measure in part to “do a check of [Brown’s] reading achievement.” Tr. 415.
These reading sub-tests revealed that Brown’s sight word reading ability was “at the 8.9 grade level”
or “just under the ninth grade.” Tr. 416. Brown’s sentence comprehension ability was measured at
a grade level of 7.0. Id. Dr. Storer also administered the Mini Mental Status Exam which is a
“screening measure for cognitive impairment” that assesses immediate and delayed memory as well
as orientation issues. Tr. Tr. 417. Brown’s scores on this instrument indicated “minimal or no
impairment.” Id.
Dr. Storer further testified that in assessing for adaptive deficits, he interviewed Constance
Buford Carter, former girlfriend of Brown and the mother of two of his children. Tr. 438. Dr. Storer
testified that Carter, who met and was involved with the appellant while she was still in high school,
stated that Brown “always visited the oldest” child and further that she had no concerns about Mr.
Brown’s ability to care for their children. Tr. 441. She further stated that Brown would take the
children to the doctor. Id. Dr. Storer testified this was indicative of the appellant possessing “fairly
good communication skills”, “fairly good awareness of health issues” as well as a “sense of
responsibility with his children.” Tr. 441-42.
Dr. Storer also addressed the affidavit of Brown’s wife, Angela Brown, offered by the
appellant in his successive petition for post-conviction relief, in which she stated that the appellant,
as a thirteen year old child, would rise, dress himself and make his way to church on his own. Tr.
445.
Dr. Storer testified the ability to do this demonstrated
Brown’s ability to function
independently and was evidence that he possessed self direction. Id. Dr. Storer further testified that
the appellant was able to cook for himself, such things as chicken and dumplings as well as fried
chicken. Id. Dr. Storer testified that during his interview of the appellant, Brown provided specific
35
instructions on how to fry chicken, which suggested no significant deficits in the appellant’s “ability
to cook and take care of one self.” Tr. 446.
Dr. Storer also interviewed Danny Phillips, Brown’s former high school football coach, who
stated that the appellant had trouble telling his left from his right. Dr. Storer testified that Brown’s
inability to tell his left from his right did not in and of itself mean he was mentally retarded. Tr.
447. Dr. Storer also interviewed the appellant’s former high school principal who stated that
Brown’s grades were good in gym and football. Tr. 448. Dr. Storer also spoke to Benny Flynn, also
a former coach, who stated that Brown would not have been allowed to play football if he did not
have passing grades. Tr. 448. Mr. Flynn further stated that to his knowledge Brown was never
determined to be ineligible.
Dr. Storer also reviewed the appellant’s academic records and testified that Brown had failed
the first grade and that the transcript was unclear as to what occurred in his fifth grade to sixth grade
year. Tr. 451-52. Dr. Storer noted that the appellant had passing grades in the sixth grade in all
subjects except English, which was “marked as 71/66.” Tr.452. Dr. Storer also provided testimony
regarding Brown’s scores on the California Achievment Test (CAT), which was administered to him
in the fifth grade. That administration indicated that Brown’s reading ability was on a second grade
level and his math ability was almost on a fourth grade level. Tr. 453. Dr. Storer subsequently
testified that it was significant that upon the administration of the CAT the following year, while
Brown was in the sixth grade, his reading score improved “one full year plus. . . .” Tr. 454. This,
according to Dr. Storer showed that the appellant was moving forward in his education, an indication
that Brown was not mentally retarded. Id.
Dr. Storer next examined Brown’s occupational history. Tr. 454. In so doing, Dr. Storer
spoke with the appellant’s father, Albert Lee Brown, Constance Buford Carter and reviewed Dr.
36
Little’s report and the affidavit of Angela Brown. Tr. 455. Dr. Storer testified that Albert Lee
Brown stated the appellant worked for Budweiser and was “not just a helper but was the driver of
the truck.” Tr. 455. Ms. Carter stated that the appellant had worked for a “Mississippi energy place”
and was quote, “working on the poles.” Id. Dr. Storer further testified that Carter stated that Brown
had worked on an “assembly line packing.” Tr. 456. Ms. Carter also told Dr. Storer that Brown
drove a truck for Budweiser and later drove a truck for J.B. Hunt Trucking Company. Id. She told
Dr. Storer that the appellant, while a driver at J.B. Hunt, had to “fill out log books and all that kind
of thing.” Id. When questioned on the issue of ever having obtained a commercial driver’s license,
the appellant informed Dr. Storer that he had attended a driving school in Crystal City, Missouri.
Tr. 458. While no records were produced showing his attendance at that school nor was evidence
presented that the appellant ever had been issued a commercial driver’s license, Brown nonetheless,
insisted that he drove trucks on various jobs. Tr. 458-59. Brown’s own testimony coupled with that
of the other witnesses clearly supports the appellant’s own statements and supports the trial court’s
reliance on them.
Brown also told Dr. Storer during the interview that he was in the Job Corps. Dr. Storer
testified that he secured records from the Job Corps which showed the appellant had completed his
“initial training” in Hernando, Mississippi, and was then sent to the Pine Knot Job Center in Pine
Knot, Kentucky. Id. Dr. Storer further testified that the Job Corps records revealed that Brown
“traveled independently by bus” to Whitley City, Kentucky to begin work with the Job Corps and
that he “first enrolled in welding” but then “switched to mechanics.” Id. Dr. Storer testified that
Brown was awarded a “leadership raise” in January of 1986 and that the appellant was specifically
identified as a “center leader.” Tr. 457.
Dr. Storer also reviewed Brown’s social security records which, indicated that Brown “either
37
had sequential short-term jobs” or that he had “overlapping part-time work.” Tr. 461. Dr. Storer
testified that when questioned on the issue of multiple jobs, Brown stated that he “quit the first
time” because he “got into it with the supervisor” and that he was terminated from Budweiser based
on “performance” because he “wasn’t going to the stores” to deliver merchandise but was instead
“getting drunk.” Tr. 461-62. While having multiple jobs could be indicative of a deficit in adaptive
functioning, Dr. Storer did not assign such a deficit in this case. Rather, Dr. Storer testified that in
his opinion these job difficulties were potentially related to Brown’s substance abuse. Tr. 462,
465-66. The appellant’s substance abuse problems including both drugs and alcohol were clearly
apparent from the record. Tr. 40, 44, 54, 173, 236-37, 251, 466. Thus, the trial court’s holding with
regard to the appellant’s substance abuse was not error.
The testimony and evidence presented at the hearing on this matter clearly supports the trial
court’s determination that Brown is not mentally retarded. The trial court committed no error with
regard to the legal standards applied regarding adaptive functioning and the evidence clearly and
overwhelmingly supported the court’s holding. The appellant’s claims to the contrary are without
legal merit. Brown is entitled to no relief on these assignments of error.
III.
THE APPELLANT’S CLAIMS THAT THE EXPERT REPORT OF
DR. STORER AND HIS TESTIMONY REGARDING STATEMENTS
MADE BY COLLATERAL SOURCES ALBERT LEE BROWN AND
CONSTANCE BUFORD CARTER WERE IMPROPERLY
ADMITTED AND/OR CONSIDERED ARE BARRED FROM
CONSIDERATION AND ARE ALTERNATIVELY DEVOID OF
MERIT
The appellant’s final assignments of error are that the trial court improperly admitted the
expert report of Dr. Robert Storer11 and improperly considered statements made by Albert Lee Brown
11
App. at 45.
38
and Constance Buford Carter.12 The appellee submits that he is mistaken on both claims. At the
outset, the appellee submits these claims are barred from consideration for failure to cite to any
relevant authority for his position. As the Court held in Brawner v. State, 947 So.2d 254, 265 (Miss.
2006)(citing to Glasper v. State, 914 So.2d 708, 726 (Miss.2005)), “failure to cite to relevant
authority relieves us of the duty of reviewing the issue.” Here, the appellant has failed to cite to any
relevant authority which states that an expert’s report cannot be admitted when an appellant has
been provided said report well in advance of the hearing and when the expert testifies and is subject
to cross-examination.13 As Dr. Storer was clearly subject to cross examination14 and as the appellant
was provided Dr. Storer’s summary report and full report, well in advance of the hearing, there was
no Confrontation Clause violation. Further, as the record of the proceedings clearly reflects, counsel
questioned Dr. Storer on every aspect of his report on direct examination, contrary to the claims of
the appellant. Additionally, the appellant’s claim that the trial court improperly considered
statements made to Dr. Storer by Albert Lee Brown and Constance Buford Carter is barred from
consideration for failure to make a contemporaneous objection at the time of their introduction and
is alternatively, devoid of merit.
The appellant makes but two arguments regarding Dr. Storer’s report. One, that the trial
court relied on a statement in Dr. Storer’s report that was allegedly contradicted by his testimony15
12
App. at 48.
13
The appellant was provided Dr. Storer’s report shortly after its completion on May
20, 2012, well in advance of the February 28 - March 1, 2013, hearing.
14
Dr. Storer was cross examined regarding his report, by counsel for appellant,
extensively. See Tr. 481-545.
15
App. 48.
39
and two, that the circuit court “relied on improperly admitted statements taken from Dr. Storer’s
expert report made by individuals not present for questioning by Mr. Brown.” App. 48. Both of
these claims are specious. In the first claim, the appellant argues that the trial court “wholly
adopted” that “substance of” alleged contradictory testimony by Dr. Storer, compared to his report,
regarding the reasons why the appellant could not keep a job for very long, which was related to
substance abuse. The appellee submits that the appellant completely mischaracterized the trial
court’s holding in this regard. During direct examination, upon being questioned as to the reason
why Brown had trouble keeping jobs, Dr. Storer testified:
A.
We asked him about difficulties at work, and it’s on Page 40 up at the top of
the page. It’s really the first block. Quote, we asked him why he stopped
working for these companies, Miller, Budweiser, and his response was,
quote, “I think, I think I quit the first time, got into it with the supervisor the
second time ... got fired at Budweiser ... guess my performance wasn’t good
enough ... I was supposed to be a merchandiser. . . switching beer around. .
.oldest stuff in the front. . . wasn't going to the stores,” parenthesis,
“(laughing) getting drunk!”
Tr. 461-62.
In his full report, in addition to specifically addressing Brown’s substance abuse,16 Dr. Storer noted
that:
Mr. Brown had occupational difficulties in that he was fired from several jobs.
During our interview of him, however, he reported that he was usually fired as a
result of substance use influencing his performance and not because he was unable
to do the work.
Ex. 20, Storer Full Report at 102.
This statement was clearly based, in part, on Dr. Storer’s interview with Brown in which the
appellant admitted he was fired for not doing his job properly and for being drunk. Clearly, Dr.
16
See State’s Hearing Ex. 20., Storer Full Report, at 40-42.
40
Storer’s statement that Brown was fired “as a result of substance use” was accurate. The basis for
the appellant’s claim is that during his testimony Dr. Storer attempted to clarify that Brown had
never specifically stated that he had been fired for “substance abuse” but rather that the appellant told
him he was fired for showing up drunk. The appellant objected during that portion of Storer’s
testimony as the following exchange shows:
BY DR. STORER: . . . . I know that several folks who were asked during this
hearing whether Mr. Brown was ever fired for substance abuse I want to make it
clear, he didn’t say he was I was fired for substance abuse. What he said was I
wasn’t showing up, I was drunk, and therefore, I got fired. And that’s not an unusual
pattern. With somebody with substance use problems
BY MR. STEPHENS Objection, Your Honor. I move to strike that last testimony
about what Mr. Brown said. That appears nowhere in his expert report.
462-63.
The trial court sustained the objection with regard to Dr. Storer’s testimony regarding what Brown
told him was the reason for his being fired, despite the fact that those reasons are clearly in Dr.
Storer’s report, as previously noted. It is abundantly clear from the record that Dr. Storer was merely
pointing out that Brown had not specifically said that he was fired due to “substance abuse” but
rather that one of the reasons was that he was showing up drunk. Dr. Storer certainly included
Brown’s statement to that effect in his report. The appellant submits that showing up drunk to work
constitutes substance abuse. At any rate, the trial court did not “wholly adopt[]” Dr. Storer’s
statements on this specific issue. Rather, the trial court correctly held that Brown had no significant
deficits in the area of work and in so holding, the trial court specifically addressed Brown’s various
jobs as well as the evidence of Brown’s years long substance abuse which was well documented.
See Claim II, supra; App. R.E. 14-15. After detailing Brown’s various jobs, the trial court
acknowledged Dr. Storer’s testimony that some of Brown’s job difficulties were “potentially related
41
to Brown’s substance abuse” which was clearly established through the testimony at the hearing.
Id. The appellee submits there is no error here. The appellant’s claims to the contrary are wholly
unsupported by the record of the proceedings. Brown is entitled to no relief on this assignment of
error.
The appellant next assigns error to the trial court in that it “relied on improperly admitted
statements taken from Dr. Storer’s expert report made by individuals not present for questioning by
Mr. Brown.” App. 48. As previously stated, the appellee submits this claim is barred from
consideration and is completely devoid of legal merit.
The appellant fails to cite to anywhere in the record of the proceedings where these alleged
statements were improperly admitted. Rather, the appellant simply references the trial court’s
opinion regarding Dr. Storer’s testimony concering what other witnesses had told him about Brown’s
work history, specifically statements made to Dr. Storer by Albert Lee Brown and Constance Buford
Carter. App. 48. The appellant fails to cite to any relevant authority, in support of his claim and for
that reason, his claim is barred from consideration. See Keller v. State, ___ So.3d ___, 2014 WL
465676 *47-8 (Miss. 2014)(“Failure to cite relevant authority obviates the appellate court’s
obligation to review such issues.”)(citing to Byrom v. State, 863 So.2d 836, 863 (¶ 84) (Miss.2003)
(quoting Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001) (citing Williams v. State, 708
So.2d 1358, 1362–63 (Miss.1998))).
Additionally, during Dr. Storer’s testimony concerning his interviews with Albert Lee Brown
and Constance Buford Carter, the appellant made no contemporaneous objection with regard to that
testimony nor to any other testimony of Dr. Storer regarding additional collateral sources. Tr. 45567. See Keller v. State, ___So.3d ___, 2014 WL 465676 *32 (Miss. 2014)(holding “[t]he rule that
failure to make a contemporaneous objection waives the issue on appeal generally applies to death
42
penalty cases”)(quoting Ross v. State, 954 So.2d 968, 987 (¶ 27) (Miss.2007) (citing Williams v.
State, 684 So.2d 1179, 1189 (Miss.1996)); see also Thorson v. State, 76 So.3d 667, 677-78 (Miss.
2011)(holding that “‘[i]n death penalty cases, the contemporaneous objection rule is
applicable,’despite the heightened standard of appellate review.”)(quoting Williams v. State, 684
So.2d 1179, 1203 (Miss.1996)); Gillett v. State, 56 So.3d 469, 520-21 (Miss. 2010). Therefore, the
appellant’s claim is barred from consideration.
Alternatively and without waiving the bars to consideration, Mississippi Rule of Evidence
703 clearly allows for such testimony as the Court held in McGilberry v. State, 741 So.2d 894
(Miss.1999), reiterating the settled law of this state which “supports the position that an expert may
base his opinion solely on the testimony of others he has witnessed.” See also Worthy v. McNair,
37 So.3d 609, 615-16 (Miss. 2010)(holding that Rule 703 of the Mississippi Rules of Evidence
provides that “[t]he facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to him at or before the hearing.”). Further, this
Court has expressly endorsed the practice of and “importance of interviewing family and friends
knowledgeable about the defendant’s past” in assessing adaptive functioning. See Goodin v. State,
102 So.3d 1102, 1114 (Miss. 2012)(citing to Doss v. State, 19 So.3d 690, 714 (2009). Dr. Storer’s
questioned testimony regarding Brown’s work history was obtained in part through his interviews
with Albert Lee Brown and Constance Buford Carter and was therefore not error.17 The appellant’s
claim, while barred, is alternatively devoid of merit. Brown is entitled to no relief on this assignment
of error.
CONCLUSION
17
Having been provided Dr. Storer’s report well in advance of the hearing the
appellant could have subpoenaed additional witnesses had he chosen to do so.
43
For the above and foregoing reasons the State would submit the holding of the trial court
denying relief on the appellant’s claim of mental retardation should be affirmed.
Respectfully submitted,
JIM HOOD
ATTORNEY GENERAL
STATE OF MISSISSIPPI
JASON L. DAVIS
SPECIAL ASSISTANT ATTORNEY GENERAL
Counsel of Record
Miss. Bar. No. 102157
S/
Jason L. Davis
OFFICE OF THE ATTORNEY GENERAL
Post Office Box 220
Jackson, Mississippi 39205
Telephone: (601) 359-3680
jdavi@ago.state.ms.us
44
CERTIFICATE
I, Jason L. Davis, Special Assistant Attorney General for the State of Mississippi, do hereby
certify that I have this day electronically filed the foregoing POST-REMAND BRIEF OF
APPELLEE with the Clerk of the Court using the MECF system which sent notification of such
filing to the following:
Honorable Robert P. Chamberlin
Circuit Court Judge
P.O. Box 280
Hernando, MS 38632
Garland T. Stephens
700 Louisiana, Suite 1600
Houston, TX 77002-2755
John R. Lane
One Houston Center
1221 McKinney, Suite 2800
Houston, TX 77010
J. Douglas Minor, Jr.
P.O. Box 1789
Jackson, MS 39215-1789
This, the 17th day of May, 2014.
S/
Jason L. Davis
45