E-Filed Document Jul 3 2014 16:44:16 2013-CA-01130-SCT Pages: 23 IN THE SUPREME COURT OF MISSISSIPPI SHERWOOD DWAYNE BROWN Appellant v. CAUSE NO. 2013-CA-01130-SCT STATE OF MISSISSIPPI Appellee APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY APPELLANT SHERWOOD DWAYNE BROWN S REPLY BRIEF IN SUPPORT OF HIS APPEAL OF THE CIRCUIT COURT S ORDER ON ATKINS ISSUES ORAL ARGUMENT REQUESTED Garland T. Stephens James Douglas Minor, Jr. Weil, Gotshal & Manges LLP Bradley Arant Boult Cummings LLP 700 Louisiana, Suite 1700 P.O. Box 1789 Houston, TX 77002-2755 Jackson, MS 39215-1789 713-546-5011 601-948-3000 Fax: 713-224-9511 Fax: 601-948-3000 Email: garland.stephens@weil.com Email: dminor@babc.com Admitted pro hac vice Mississippi Bar No. 10045 John R. Lane Fish & Richardson P.C. 1221 McKinney, Suite 2800 Houston, TX 77010 713-654-5307 Fax: 713-652-0109 Email: jlane@fr.com Admitted pro hac vice ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS REPLY ARGUMENT... 1 A. The Circuit Court Applied Incorrect Legal Standards... 1 i. The circuit court held Mr. Brown to an improperly high standard by requiring that adaptive functioning deficits have onset before age eighteen... 1 a. The plain language of the Mississippi Atkins standard does not require an onset of adaptive functioning deficits before age eighteen... 2 b. Mississippi law does not require evidence of adaptive functioning deficits from persons who knew the death row inmate before age eighteen... 3 ii. The circuit court applied a higher standard of proof than is required for a finding of an adaptive functioning deficit in the area of functional academics... 5 iii. In finding that Mr. Brown did not have significant adaptive functioning deficits, the circuit court improperly focused on Mr. Brown s abilities instead of his disabilities... 8 B. The Circuit Court Made Findings That Are Contrary to the Overwhelming Evidence... 10 i. Despite the overwhelming amount of evidence to the contrary, the circuit court found no adaptive functioning deficit in the area of functional academics... 10 ii. Despite the overwhelming amount of evidence to the contrary, the circuit court found no adaptive functioning deficit in the area of work... 12 iii. Despite overwhelming evidence to the contrary, the circuit court found no adaptive functioning deficits in the areas of social/interpersonal skill and health and safety... 14 iv. The evidence overwhelmingly establishes that Mr. Brown s mental retardation had onset before age eighteen... 14 C. The Circuit Court Relied on Improperly Admitted Evidence to Mr. Brown s Prejudice. 16 i. The State ignores case law requiring that Dr. Storer s reports not be admitted... 16 ii. The circuit court s reliance on hearsay statements from Dr. Storer s improperly admitted report constitutes reversible error... 17 a. The circuit court improperly relied on Dr. Storer s recanted statement regarding substance abuse... 17 b. The circuit court relied on improperly admitted hearsay statements from Albert Lee Brown and Constance Buford Carter... 18 CONCLUSION... 19 i
TABLE OF AUTHORITIES Page(s) Cases Buckley v. Pounds, 85 So. 3d 925 (2012)...16 Chase v. State, 873 So. 2d 1013 (Miss. 2004)...1, 2, 14 Doss v. State, 19 So. 3d 690 (Miss. 2009)...4 Goodin v. State, 102 So. 3d 1102 (Miss. 2012)... passim Lanier v. State, 533 So. 2d 473 (Miss. 1988)...16 Richardson v. Derouen, 920 So. 2d 1044 (Miss. Ct. App. 2006)...17, 18 Thorson v. State, 76 So. 3d 667 (Miss. 2011)...2 Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450 (Miss. 2010)...9, 12 Other Authorities John H. Blume & Christopher W. Seeds, Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol y 689, 710 (2008-2009)...8 Knauss & Kutinsky, Into the Briar Patch: Ethical Dilemmas Facing Psychologists Following Atkins v. Virginia, 11 Widener L. Rev. 121, 131 (2004)...4 Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed. 1992)...3 Miss. R. Evid. 801...16 ii
REPLY ARGUMENT In its brief, the State misconstrues the standards for a finding of mental retardation that were set out by this Court in Chase v. State and ignores evidence showing that Mr. Brown has multiple significant adaptive functioning deficits. Like the circuit court s opinion, the State s arguments are based on evidentiary burdens that extend well beyond Mississippi s Atkins framework and the preponderance of the evidence standard that is applicable in Mississippi Atkins hearings. Holding Mr. Brown to nonexistent, heightened burdens constitutes legal error. In addition, the State s brief again, like the circuit court s opinion focuses on Mr. Brown s abilities instead of his deficits. This is a red herring, and wrong. The State s own expert witness, Dr. Reb McMichael, testified that in his twenty-plus years of clinical practice, he has treated hundreds of mentally retarded patients, many of whom work, drive, play sports, have children, cook, clean and do many other things that normal individuals do. This is especially true for mildly mentally retarded people, like Mr. Brown. (Tr. at 551:7-553:23.) The proper focus, in an Atkins analysis, is on the inmate s deficits, not on his or her abilities. At bottom, the State s brief contains multiple pages of irrelevant information, but where the State does address the errors in the circuit court s analysis that were explained in Mr. Brown s opening brief, the State s arguments are without merit. Mr. Brown therefore respectfully requests, based on the evidence of record and the proper application of the criteria for mental retardation set forth by this Court in Chase and its progeny, that the circuit court s findings be reversed, and that he be found mentally retarded. A. The Circuit Court Applied Incorrect Legal Standards i. The circuit court held Mr. Brown to an improperly high standard by requiring that adaptive functioning deficits have onset before age eighteen The State s arguments in defense of the circuit court s opinion are misguided. In its 1
brief, the State, like the circuit court, misconstrues the Mississippi Atkins standards set forth by this Court in Chase v. State, 873 So. 2d 1013 (Miss. 2004), and its progeny. a. The plain language of the Mississippi Atkins standard does not require an onset of adaptive functioning deficits before age eighteen Under Mississippi Atkins law, mental retardation must have onset before age eighteen. There is no requirement, as the State posits, that an inmate demonstrate that each of the individual criteria had onset before age eighteen. follows: In Chase, this Court articulated the standards for a finding of mental retardation as 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, 873 So. 2d at 1028. The onset language at the end of the above quote refers to Mental Retardation. The State, however, in defense of the circuit court s opinion, argues that the onset language modifies each of the preceding Criteria A and B. (Appellee s Brief at 17-20.) This is wrong. In multiple Atkins hearings in Mississippi, death row inmates have offered evidence to show that they meet Criterion A through IQ testing performed years after they were age eighteen. Indeed in this case, the State conceded Mr. Brown had met Criterion A in this same manner. 1 If the State s (and the circuit court s) interpretation of the applicable standards as set out in its brief were correct, this could not be true. 1 In this case, the State does not contest that Criterion A was met based on IQ testing of Mr. Brown, performed in 2007, many years after Mr. Brown turned eighteen in 1985. Thorson v. State, 76 So. 3d 667, 671, 683 (Miss. 2011) (evaluating IQ tests performed after the date of the crime in determining whether Criterion A was met). 2
similar: This Court s recitation of the Atkins standard eight years later in Goodin v. State is very 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 is almost identical. Id. Goodin v. State, 102 So. 3d 1102, 1112 (Miss. 2012). As explained in the language quoted above, the Court s criteria for mental retardation come from the AAMR (American Association on Mental Retardation). The actual language from the AAMR for criterion (3) states, Mental retardation manifests before age 18. Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed. 1992) (emphasis added). This should settle the issue of what must have onset before age eighteen: mental retardation. The State s argument that adaptive functioning deficits must occur before age eighteen is incorrect, and it was legal error for the circuit court to apply this standard. (Appellee s Brief at 18.) b. Mississippi law does not require evidence of adaptive functioning deficits from persons who knew the death row inmate before age eighteen As explained above, the circuit court misconstrued the Mississippi standards for a finding of mental retardation by concluding that adaptive functioning deficits must have onset before age eighteen. Based on that misconstruction of the law, the circuit court improperly disregarded the results of the Vineland-II test administered to Mr. Brown s wife, Angela Brown, who met Mr. 3
Brown when he was in his early twenties. (App. at 78-9 2.) Those testing results demonstrate that Mr. Brown has significant adaptive functioning deficits in multiple areas. (Tr. at 177:9-178:26.) Mississippi Atkins law including the very cases on which the State relies in its brief does not require evidence of adaptive functioning deficits from witnesses who knew the death row inmate before age eighteen. This Court stated in Goodin that witnesses familiar with the defendant s behavior before age eighteen would provide valuable information. 102 So. 3d at 1115. But there is no requirement, as the State argues (and as the circuit court found), that evidence on adaptive functioning deficits must be presented from a witness who knew the death row inmate before age eighteen. (Appellee s Brief at 17-18; App. at 79.) As this Court has recognized, evaluating an inmate for Atkins purposes may be complicated by the problems associated with retrospective diagnosis, but that is not a reason to deny an individual his constitutional rights. Goodin, 102 So. 3d at 1114. Further, as this Court held in Goodin, [t]he point of an Atkins hearing is to determine whether a person was mentally retarded at the time of the crime and therefore ineligible for the death penalty, not whether a person is currently mentally retarded. Id. at 1114 (emphasis added). In Goodin, this Court also stated that expert[s] should utilize the adaptive functioning instruments in a retrospective fashion with collateral informants who rate the defendant s adaptive behaviors prior to incarceration. Id. Further, in Doss, this Court found that adaptive functioning prior to incarceration should be the target for assessment. Doss v. State, 19 So. 3d 690, 714 (Miss. 2009) (citing and quoting Knauss & Kutinsky, Into the Briar Patch: Ethical 2 Citations herein to App. are citations to the page numbers in the Appendix as they were assigned by the circuit court. The circuit court s order is found at Appendix pages 75-87. 4
Dilemmas Facing Psychologists Following Atkins v. Virginia, 11 Widener L. Rev. 121, 131 (2004)). This Court s statements clearly show that the relevant period for assessment is the time of the crime and not before age eighteen. 3 Here, the circuit court drew a non-existent line at age eighteen and used that improper standard as a basis for disregarding the results of Dr. Zimmermann s Vineland-II testing of Angela Brown, Mr. Brown s wife. The circuit court dismissed the uncontroverted testing results on the basis that [n]o adaptive functioning tests were administered to anyone who had contact with Brown prior to age eighteen. (App. at 79 (emphasis in original).) The testing results showed that Mr. Brown had significant adaptive functioning deficits in multiple areas: communication, self-care, social/interpersonal skills, use of community resources, self-direction, functional academics, work, leisure, and safety. (Tr. at 178:17-26.) The circuit court s disregard for Angela Brown s Vineland-II test results was based on a misapplication of the law. This Court should therefore review, de novo, and reverse the circuit court s finding that Mr. Brown did not meet Criterion B under the Mississippi Atkins framework. ii. The circuit court applied a higher standard of proof than is required for a finding of an adaptive functioning deficit in the area of functional academics The circuit court held Mr. Brown to a higher standard than is required by Mississippi law for showing that he had a significant adaptive functioning deficit in the area of functional academics. The circuit court concluded, despite overwhelming evidence to the contrary, that no proof has been presented that there was ever a finding that Mr. Brown suffered from a learning 3 In Goodin, this Court identified work history as a one of the adaptive functioning areas that should be evaluated under the Mississippi Atkins framework. This shows why the State s (and the circuit court s) interpretation of Mississippi s Atkins standards is incorrect. If the onset of adaptive functioning deficits must occur before age eighteen, it makes no sense to include the inmate s work history, which predominantly, if not exclusively, takes place after age eighteen (especially for mentally retarded persons) as a criterion for evaluation. 5
disability much less that the disability met the legal definition of mental retardation for Atkins purposes. 4 (App. at 81.) In its brief, the State similarly argues that no evidence was presented which definitively established that Brown was ever in special education classes. (Appellee s Brief at 32.) The circuit court s and State s incorrect conclusions are in direct contravention of the framework this Court has set out for evaluating mental retardation for purposes of an Atkins claim. Vast, uncontroverted evidence of Mr. Brown s academic failures has been made of record. 5 On Mr. Brown s school transcript, the notation LD appears next to his grades for English, Reading, and Spelling in sixth grade. (Ex. 3 6 [deposition transcript of June Gilbreath] at 4:21-5:9.) The author of this notation, Mr. Brown s teacher, Ms. June Gilbreath, testified that the notations, which are in her handwriting, meant learning disabled or learning disability. (Id. at 5:3-12.) She further testified that she would teach modified for kids who had problems and needed some help, and that Mr. Brown was given tests that were easier than those he would have otherwise been given if he did not have a learning disability. (Id. at 5:23-6:1; 8:22-9:3; 10:8-23.) Ms. Girtha Fleming, a special education teacher, also reported that Mr. Brown was in 4 The circuit court s error in finding that no proof has been presented that the disability met the legal definition of mental retardation for Atkins purposes is addressed in detail in Appellant s Opening Brief. (See Appellant s Brief at 32-33.) This statement is nonsensical because the United States Supreme Court s decision in Atkins was two decades after the designation LD was entered on Mr. Brown s school transcript. 5 This evidence shows that Mr. Brown had documented deficits before age eighteen. So even if the State were correct (it is not) that the onset of adaptive functioning deficits must be before age eighteen, that is not outcome determinative in this appeal. 6 Citations herein to Ex. are citations to the Exhibits that were admitted into evidence at the Atkins hearing conducted in the DeSoto County Circuit Court on February 28 and March 1, 2013. 6
both the special education building and in special education classes. (Tr. at 161:24-162:3; 306:15-307:2.) There was also uncontroverted testimony from the State s witness, Ms. Susan Kizer, that the DeSoto County school system destroys all special education records seven years after a student leaves the school system. (Id. at 353:1-20.) Ms. Kizer testified that there are no special education records in existence from the time Mr. Brown attended DeSoto County schools. (Id.) Despite the various and uncontroverted testimony and evidence regarding Mr. Brown s learning disabilities and special education classes, the circuit court held Mr. Brown to an impossible standard, finding that he did not have an adaptive functioning deficit in the area of functional academics because no proof has been presented that there was ever a finding that Mr. Brown suffered from a learning disability. (App. at 81.) That is, the circuit court apparently was of the view that Mr. Brown must produce documents that Ms. Kizer made clear could not exist. (Id. at 80-81.) The circuit court s finding is inconsistent with the framework set forth by this Court for determining whether a death row inmate is mentally retarded for purposes of an Atkins claim. This Court has recognized that evaluating an inmate for Atkins purposes may be complicated by the problems associated with retrospective diagnosis, but that is not a reason to deny an individual his constitutional rights. Goodin, 102 So. 3d at 1114. Because the circuit court applied a standard that is inconsistent with Mississippi s Atkins framework, its finding that Mr. Brown did not have a significant adaptive functioning deficit in the area of functional academics should be reviewed, de novo, and reversed. 7
iii. In finding that Mr. Brown did not have significant adaptive functioning deficits, the circuit court improperly focused on Mr. Brown s abilities instead of his disabilities Like the circuit court, the State improperly points to Mr. Brown s abilities, rather than his disabilities. (Appellee s Brief at 26-27; 31; 37-38.) In assessing adaptive functioning deficits, the focus must be on deficits: [L]imitations rather than strengths do not often define mental retardation they always do. [T]he result in Williams was fueled by the erroneous belief that because an individual can do certain things, he or she cannot have mental retardation. The true measure of adaptive functioning is what an individual cannot do. John H. Blume & Christopher W. Seeds, Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol y 689, 710 (2008-2009) (emphasis in original). Indeed, the State s own expert, Dr. Reb McMichael, testified that in his twenty-plus years of clinical practice, he has treated hundreds of patients with mild mental retardation that had jobs, married, had children, drove, owned cars, played sports, cooked, and cleaned. (Tr. at 551:7-553:23.) Contrary to the circuit court s finding and the State s arguments, because Mr. Brown has certain abilities, that does not mean he is not mentally retarded. For example, in the functional deficit area of work, the circuit court dismissed uncontroverted evidence showing that Mr. Brown had more than fifteen jobs in a period of ten years and was frequently fired from those jobs because he could not perform the jobs satisfactorily, or for fighting with management and other employees. (App. at 82.) Instead, the circuit court focused on what Mr. Brown could do. The circuit found that Mr. Brown did not have an adaptive functioning deficit in the area of work because of his abilities to perform the functions of his jobs, including for example delivering beer, stocking shelves, and driving a truck: Brown s ability to perform the functions of his jobs 8
make substance abuse [rather than an adaptive functioning deficit] the more likely cause. 7 (App. at 82-83 (emphasis added).) This is precisely the type of error discussed in the law review article cited above, and is inconsistent with the testimony of the State s own expert and the diagnostic framework that is the basis of Mississippi s standards for determining if a person is mentally retarded for purposes of an Atkins claim. Further, the circuit court improperly acted as an expert, finding that the reason Mr. Brown was fired multiple times was due to substance abuse. See Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450, 457 (Miss. 2010) (stating that the trial judge is considered the gatekeeper and determines the value of the expert testimony, a role separate and apart from being an actual expert). In its order, the circuit court states that [t]he failure to hold a job is, without a doubt, a repeated pattern for drug abusers. (Id. at 83.) There is, however, no evidence in the record supporting such a conclusion and the circuit court s opinion provides no citation to the record in support of this proposition. See Goodin, 102 So. 3d at 1113 (holding that the court s finding that an inmate was not mentally retarded was not supported by the record and therefore clearly erroneous). Indeed, it is just as likely that the failure to hold a job is a repeated pattern for mentally retarded people. The circuit court s improper focus on Mr. Brown s capabilities instead of his inabilities, as well as the court s findings that are not supported by the record, are misapplications of the law. The circuit court s finding that Mr. Brown did not have significant adaptive functioning deficits in the area of work and other areas, based on these misapplications of the law, should be reviewed, de novo, and reversed. 7 As explained in more detail, infra, the circuit court s statement that Mr. Brown s job difficulties were potentially related to Brown s substance abuse (App. at 83) is contrary to the evidence presented at the Atkins hearing, and is based on improperly admitted hearsay. 9
B. The Circuit Court Made Findings That Are Contrary to the Overwhelming Evidence The circuit court dismissed overwhelming evidence showing that Mr. Brown has multiple adaptive functioning deficits. The State s arguments in its brief to the contrary do not hold water. These findings should be overturned, as they are clearly erroneous. i. Despite the overwhelming amount of evidence to the contrary, the circuit court found no adaptive functioning deficit in the area of functional academics Despite overwhelming evidence showing the contrary, the circuit court found that Mr. Brown did not suffer from an adaptive functioning deficit in the area of functional academics. The circuit court, similar to the State s argument in its brief, appears to have based its finding on a nonexistent requirement that special education records be produced documents that the State s own witness admitted were destroyed years ago. The circuit court s legal error on this point is discussed supra. Legal error aside, Mr. Brown proffered an immense amount of uncontroverted evidence at the Atkins hearing, all of which overwhelmingly shows that Mr. Brown suffered from a significant adaptive functioning deficit in the area of functional academics. The circuit court s dismissal of this overwhelming evidence cannot be squared with the preponderance of the evidence evidentiary standard that is applicable. See Goodin, 102 So. 3d at 1112. Indeed, if the evidence presented at Mr. Brown s Atkins hearing does not show by a preponderance of the evidence that Mr. Brown had a significant adaptive functioning deficit in the area of functional academics, it is hard to imagine how one could ever make such a showing. Among the uncontroverted evidence discounted by both the circuit court and the State is the testimony of Ms. June Gilbreath Mr. Brown s sixth grade teacher. Ms. Gilbreath stated that she had notated Mr. Brown s transcript with LD, meaning learning disability or learning 10
disabled, due to his academic difficulties. (Ex. 3 at 5:3-16.) She stated that she also modified his actual grades for the same reason. (Id. at 5:23-6:10, 8:22-9:4.) As she explained, Mr. Brown made Ds and Fs in grade five, yet moved to the next grade due to a social promotion. (Id. at 8:8-9:1.) Despite his grades seeming to improve due to their modification, he was held back in seventh grade for an extra half-year. (Id. at 9:15-10:3.) Mr. Brown himself reported that he was in special education classes (Tr. at 161:13-17), and Ms. Girtha Fleming, Mr. Brown s teacher, also reported that Mr. Brown was in both the special education building and in special education classes. (Id. at 161:24-162:3; 306:15-307:2.) When Mr. Brown was promoted in the sixth and seventh grades, it was not because of his academic achievements but instead due to his large size and athletic abilities. (Ex. 3 at 8:8-21; Ex. 9 [Willie Mae Brown affidavit] at 15.) But even Mr. Brown s impressive athletic abilities were burdened by his diminished mental capacity. As Mr. Brown s coach, Mr. Phillips, stated, He didn t know his right from his left, couldn t comprehend what we were trying to teach him in running plays, had to put a red dot on one side and blue dot on the other of the center s shorts and called the plays red and blue. (Tr. at 447:10-15.) The circuit court (and the State) chose to dismiss the clear evidence of consistent failure shown by Mr. Brown s academic records and the testimony to the same effect from individuals who actually taught and coached Mr. Brown. Instead, they point to the testimony of Susan Kizer, a State witness who became Special Education Director of the DeSoto County school system twenty-eight years after Mr. Brown attended school. (Appellee s Brief at 26, 31-32.) Ms. Kizer s opinions about Mr. Brown s learning disabilities should be accorded no weight. Ms. Kizer admitted on cross examination that she has never met Mr. Brown, and that any records 11
showing definitively that he was diagnosed as learning disabled while he was in the DeSoto County School System were destroyed many years ago. (Tr. at 353:1-354:15.) The circuit court, again acting as an apparent expert, found that Mr. Brown s significant academic deficits are not unique and could be explained by any number of reasons. (App. at 81.) The circuit court, however, cites to no support in the record in making these findings. The circuit court s dismissal of the overwhelming evidence showing that Mr. Brown has a significant adaptive functioning deficit in the area of functional academics including Mr. Brown s school transcripts showing his systematic academic failures and his teachers uncontroverted testimony regarding his learning disabilities is clearly erroneous and should be reversed. ii. Despite the overwhelming amount of evidence to the contrary, the circuit court found no adaptive functioning deficit in the area of work The circuit court, again improperly acting as an expert, dismissed uncontroverted evidence showing that Mr. Brown had substantial difficulties performing his seventeen jobs, and instead found that the testimony presented could clearly be explained just as easily as a substance abuse problem as a mental retardation indicator. (App. at 83.) It is not the court s place to make such a determination, absent supporting testimony from actual experts. See Utz, 32 So. 3d at 457. The State, in its brief, similarly ignores the evidence, agreeing with the circuit court s improper finding that Mr. Brown s work history is attributable to substance abuse. (Appellee s Brief at 38.) Moreover, the circuit court s conclusion that Mr. Brown s job difficulties were the result of substance abuse are unfounded and unsupported by the evidence. As explained in more detail, 12
infra, the circuit relied on an improperly admitted statement taken from Dr. Storer s expert report in forming its conclusion a statement that Dr. Storer admitted at the Atkins hearing is incorrect: 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. (Tr. at 462:29-463:4.) Indeed, Dr. Storer conceded at the Atkins hearing that the statement from Mr. Brown that he relied on for his opinion at most suggested that Mr. Brown was fired from one job, possibly because of drinking on the job. (See Tr. at 523:12-528:27.) Further, to the extent the circuit court relied on the supposed fact that Mr. Brown had a commercial drivers license which was a disputed fact such reliance is misguided. (See Appellee s Brief at 27; 37.) As the circuit court stated, No records, however, were produced showing his attendance at [the driving] school nor was evidence presented that Brown indeed possessed a commercial driver s license. (App. at 82-83.) Concluding Mr. Brown had a commercial drivers license despite no evidence to that effect is error. 8 Further, Dr. Storer s contention that Mr. Brown reported he had a commercial drivers license, and that he did not take a test to receive the license but instead was just given it is entirely consistent with the cloak of competency the tendency of mentally retarded persons to exaggerate their abilities. (Tr. at 156:12-27.) The State s expert s concession at the Atkins hearing that there was no evidence that substance abuse was the cause of Mr. Brown being fired from multiple jobs and the circuit court s reliance on facts about Mr. Brown s alleged commercial drivers license, unsupported by evidence, belie its findings. The circuit court s finding that Mr. Brown does not have an 8 Indeed, the circuit court dismissed the overwhelming evidence regarding Mr. Brown s learning disabilities on the basis that there was no proof, but then took a reverse position in finding, with no proof, that Mr. Brown had a commercial drivers license. 13
adaptive functioning deficit in the area of work despite having no less than fifteen jobs in ten years is clearly erroneous and should be reversed. iii. Despite overwhelming evidence to the contrary, the circuit court found no adaptive functioning deficits in the areas of social/interpersonal skill and health and safety The circuit court, in finding no deficits in the area of social/interpersonal skill and health and safety, set aside uncontroverted evidence supporting a finding that Mr. Brown had adaptive functioning deficits in these areas. Namely, the court dismissed Mr. Brown having engaged in a knife fight with his uncle, being charged with aggravated assault for stabbing his aunt, and being terminated from various jobs for fighting with management and other employers. (App. at 85.) The State, in its brief, provides no evidence to the contrary on any of these points. Putting aside this uncontroverted evidence, the circuit court yet again improperly acted as an expert, explaining away these deficits due to substance abuse problem[s]. (App. at 85-86.) However, the State never argued, nor was any evidence presented, that Mr. Brown s deficits were attributable to a substance abuse problem. The circuit court s findings were, again, findings that it made with no support, and are thus clearly erroneous. iv. The evidence overwhelmingly establishes that Mr. Brown s mental retardation had onset before age eighteen The circuit court erred in finding that Mr. Brown s mental retardation failed to manifest before age eighteen. As discussed supra, the circuit court held Mr. Brown to an improper standard, requiring that psychological testing be conducted on Mr. Brown prior to age eighteen. Instead, the clear standards recited above in Chase and Goodin require that mental retardation have onset before age eighteen. Mr. Brown cited overwhelming evidence in his opening brief showing his onset of mental retardation before the age of eighteen, none of which the State controverts. As such, the 14
preponderance of the evidence standard has clearly been met, and the circuit court s findings to the contrary are clearly erroneous. See Goodin, 102 So. 3d at 1112. Specifically, Mr. Brown s school record shows a pattern of repeated, severe failures, beginning in the first grade and continuing until Mr. Brown left the DeSoto County school system. (Ex. 2 [Mr. Brown s DeSoto County school records] discussed supra.) Ms. Gilbreath, Mr. Brown s sixth-grade teacher, testified that Mr. Brown was determined to be learning disabled and his schoolwork was modified accordingly. Several other individuals also reported that Mr. Brown was in special education classes. (Tr. at 161:13-17, 24-162:3.) Additional environmental and familial factors support a finding that Mr. Brown s mental retardation manifested prior to age eighteen, including lead poisoning and his admitted inhalation of leaded gasoline beginning around age six. (Id. at 182:10-23; 184:13-18.) Mr. Brown s mother admitted to drinking alcohol while she was pregnant with Mr. Brown. (Id. at 180:4-22.) Mr. Brown has a family history of mental disabilities. His brother has been institutionalized in various mental hospitals since 1991. (Ex. 9 at 19.) Two of his uncles, his great-grandmother, and his third cousin were institutionalized because of psychiatric and psychological problems. (Id. at 20.) The State does not deny any of this evidence, but instead attempts to circumvent it by lodging ad hominem attacks against Mr. Brown s expert, Dr. Zimmermann. For example, the State claims Dr. Zimmermann did not discuss in his report certain of Mr. Brown s abilities. (Appellee s Brief at 34.) But, as discussed supra, what matters for purposes of an analysis of adaptive functioning deficits is the inmate s disabilities, not his abilities. Indeed, the State does nothing more than accuse Dr. Zimmermann of leaving out tasks that need not be included, as they are irrelevant. 15
The evidence shows that Mr. Brown had significant academic difficulties as a child and a family history of mental disabilities, that his mother consumed alcohol during pregnancy, and that Mr. Brown repeatedly inhaled leaded gasoline as a small child. The State does not dispute these facts. Thus, the circuit court s finding that Mr. Brown s mental retardation did not have onset before age eighteen is clearly erroneous, and should be reversed. C. The Circuit Court Relied on Improperly Admitted Evidence to Mr. Brown s Prejudice i. The State ignores case law requiring that Dr. Storer s reports not be admitted The circuit court committed legal error in admitting Dr. Storer s over 100-page expert report and summary report and addendum into evidence. The State s attempt to cloak the admission of Dr. Storer s expert report as a constitutional issue (relating to the Confrontation Clause) misses the non-constitutional body of law relating to what is a very simple issue: the admissibility of evidence. (Appellee s Brief at 39.) The circuit court s error is reversible, as the admission of these materials were to Mr. Brown s prejudice, as explained below. An expert report is, by definition, hearsay, and as such, generally may not be admitted into evidence. See Miss. R. Evid. 801; Lanier v. State, 533 So. 2d 473, 487-89 (Miss. 1988). Further, because an expert testifies to a portion of his or her report does not mean that those portions of the report may be admitted, as the Mississippi Court of Appeals made clear in Buckley v. Pounds, 85 So. 3d 925 (2012). [T]o admit both would produce cumulative evidence that merely bolsters one or the other. Id. at 930. The result is that even the portions of Dr. Storer s report to which he testified cannot be admitted as evidence, as the circuit court improperly did. The State s brief misstates the law as it relates to experts and hearsay statements. As the State correctly notes, an expert may base his opinion solely on the testimony of others he has 16
witnessed. (Appellee s Brief at 43 (internal quotation omitted).) The State further claims that Rule 703 of the Mississippi Rules of Evidence clearly allows for such testimony. (Id.) This does not mean, however, that otherwise inadmissible hearsay statements may come into evidence via the expert or his report. As the Mississippi Court of Appeals has made clear, [e]xperts may rely on inadmissible hearsay in reaching their opinions; however, the hearsay evidence does not become admissible simply because the expert relied upon it. Richardson v. Derouen, 920 So. 2d 1044, 1049 (Miss. Ct. App. 2006). ii. The circuit court s reliance on hearsay statements from Dr. Storer s improperly admitted report constitutes reversible error The circuit court s error in improperly admitting Dr. Storer s various expert reports is reversible because the court relied on hearsay statements from those reports to Mr. Brown s prejudice. Specifically, the circuit court relied on statements by Dr. Storer in his report regarding substance abuse statements which Dr. Storer recanted at the Atkins hearing. The circuit court also improperly relied on inadmissible hearsay statements of Albert Lee Brown and Constance Buford Carter statements made by individuals not present for questioning by Mr. Brown at the Atkins hearing. a. The circuit court improperly relied on Dr. Storer s recanted statement regarding substance abuse To Mr. Brown s prejudice, the circuit court improperly relied on the following statement in Dr. Storer s expert report a statement that Dr. Storer recanted during the Atkins hearing: Mr. Brown 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 [Dr. Storer s expert report at 102].) In its brief, the State attempts to muddy what Dr. Storer made clear at the Atkins hearing: 17
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. (Tr. at 462:29-463:4 (emphasis added); Appellee s Brief at 41-42.) At the Atkins hearing, Dr. Storer plainly conceded that Mr. Brown did not say he was fired from jobs due to substance abuse. The State attempts to dodge Dr. Storer s concession by arguing that Mr. Brown s having been fired once possibly for drinking, while employed by Budweiser, evidences a substance abuse problem. 9 (Appellee s Brief at 41.) There is no support in the record for this conclusion. The circuit court s reliance on Dr. Storer s statement from his expert report, which Dr. Storer conceded in live testimony was false, constitutes reversible error. b. The circuit court relied on improperly admitted hearsay statements from Albert Lee Brown and Constance Buford Carter The circuit court relied on improperly admitted hearsay statements taken from Dr. Storer s expert report by individuals not present for questioning at the Atkins hearing. These hearsay statements include, inter alia: Albert Lee Brown telling Dr. Storer that while Mr. Brown worked at Budweiser he was not just a helper but was the driver of the truck and Constance Buford Carter telling Dr. Storer that Mr. Brown, while a driver at J.B. Hunt, had to fill out log books and all that kind of thing. (App. at 82.) The State in its brief, like the circuit court in its opinion, relies on these improperly admitted hearsay statements. (Appellee s Brief at 37.) Mr. Brown s counsel questioned Dr. Storer at the Atkins hearing about the contents of his report, but that does not clear the path for the admission into evidence of such statements where the declarants were not present at the hearing or otherwise questioned by Mr. Brown s counsel. See Richardson, 920 So. 2d at 1049. Further, because the circuit court relied on such improperly 9 The State argues that showing up drunk to work constitutes substance abuse. (Appellee s Brief at 41.) This argument misses the mark. Nowhere does Mr. Brown state that he was fired for showing up inebriated to work. At most, Mr. Brown stated that he was fired from one job a job at a beer distribution company for drinking on the job. 18
admitted hearsay statements in finding Mr. Brown not mentally retarded, the admission of the statements into evidence prejudiced Mr. Brown, resulting in reversible error. CONCLUSION For the reasons explained above and in Mr. Brown s opening brief, the circuit court s finding that Mr. Brown was not mentally retarded is flawed in multiple respects, and should not serve as the basis for allowing him to be executed by the State. Respectfully submitted this the 3 rd day of July, 2014. /s/ J. Douglas Minor, Jr. J. Douglas Minor, Jr. Mississippi Bar No. 10045 Bradley Arant Boult Cummings LLP P.O. Box 1789 Jackson, MS 39215-1789 601-948-3000 Fax: 601-948-3000 Email: dminor@babc.com Garland T. Stephens Admitted pro hac vice Weil, Gotshal & Manges LLP 700 Louisiana, Suite 1700 Houston, TX 77002-2755 713-546-5011 Fax: 713-224-9511 Email: garland.stephens@weil.com John R. Lane Admitted pro hac vice Fish & Richardson P.C. 1221 McKinney, Suite 2800 Houston, TX 77010 713-654-5307 Fax: 713-652-0109 Email: jlane@fr.com 19
CERTIFICATE OF SERVICE I, J. Douglas Minor, Jr., one of the attorneys for Appellant, do hereby certify that I have this day served a true and correct copy of the above and foregoing Reply Brief of Appellant by United States Mail to: Honorable Robert P. Chamberlin DeSoto County Circuit Court Judge P.O Box 280 Hernando, MS 38632 CIRCUIT COURT JUDGE Jason Davis MISSISSIPPI ATTORNEY GENERAL S OFFICE P.O. Box 220 Jackson, MS 39205 Phone: 601-359-3680 JDAVI@ago.state.ms.us Special Assistant Attorney General ATTORNEY FOR APPELLEE SO CERTIFIED, this the 3rd day of July, 2014. /s/ J. Douglas Minor, Jr. J. Douglas Minor, Jr. ONE OF THE ATTORNEYS FOR APPELLANT