Sherwood Dwayne Brown v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2013-CA-01130-SCT

SHERWOOD DWAYNE BROWN a.k.a.
SHERWOOD BROWN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/31/2013
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JAMES DOUGLAS MINOR, JR.
GARLAND T. STEPHENS
JOHN R. LANE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JASON L. DAVIS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 03/26/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. A DeSoto County jury convicted Sherwood Brown of one count of capital murder and

two counts of murder and sentenced him to death. The Court granted Brown’s successive

petition for post-conviction relief and allowed Brown to proceed in the trial court on his

claim that he was mentally retarded and exempt from execution. After a hearing, the trial

court held that Brown had failed to prove by a preponderance of evidence that he was

mentally retarded. Brown appealed.
 Factual Background and Procedural History

¶2. The jury convicted Sherwood Brown of one count of capital murder, committed

during the commission of felonious child abuse, for the murder of thirteen-year-old Evangela

Boyd and two counts of murder for killing Verline Boyd and Betty Boyd, Evangela’s mother

and grandmother. For the capital murder conviction, the jury sentenced Brown to death; the

trial court imparted consecutive life sentences for the two counts of murder. A unanimous

Supreme Court affirmed Brown’s convictions and sentences on direct appeal. Brown v.

State, 690 So. 2d 276 (Miss. 1996).

¶3. Several years later, the Court unanimously denied Brown’s application for leave to

seek post-conviction relief, in which he raised nearly seventy issues. Brown v. State, 798 So.

2d 481 (Miss. 2001). In 2004, Brown filed a successive application for leave to seek post-

conviction relief, seeking permission to proceed in the trial court on his claim that he was

mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S. 304 (2002),

and Chase v. State, 873 So. 2d 1013 (Miss. 2004). The Court granted Brown’s request for

leave. Brown v. State, 875 So. 2d 202 (Miss. 2004). The trial court held an Atkins hearing

and heard testimony from Brown’s wife, a former teacher, the special-education director for

DeSoto County Schools, and three doctors who had evaluated Brown.

A. Family and Educators

¶4. Brown presented testimony from his wife, Angela Brown, and his sixth-grade teacher,

June Gilbreath. Angela testified that she met Brown in late 1989 or early 1990, and they

married in July of 1990. Both were in their early twenties. Angela and Brown lived with

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Brown’s parents for four years until his arrest in 1994. According to Angela, Brown never

lived away from his parents’ home, but they were working toward getting their own place

when he was arrested. Angela testified that Brown did not manage money well, did not have

a bank account, and did not pay bills, but that he gave Angela money for groceries sometimes

and gave his mother money for bills occasionally. Angela said Brown spent his free time

with friends, often using drugs. Angela described Brown as immature, reckless, easily

frustrated, and irresponsible, saying, “[i]t was like someone had always taken care of him so

he didn’t have to do anything.” However, she testified that Brown could cook basic things,

that he ran errands to a nearby store, and that he picked up after himself.

¶5. Angela said Brown had worked delivering beer for both the Miller and Budweiser

beer companies, but he did not drive the delivery truck. She testified that Brown did not have

any problems getting up and dressing himself for work, although his mother drove him to

work. Angela thought Brown was fired from Budweiser, but she could not remember the

reason. She testified that Brown loved football, and his family had told her that, when Brown

was in high school, they thought he had a promising football career. She also told a story she

had heard from Brown’s mother that, as a child, Brown dressed himself and drove to church

while his mother slept. Angela testified that Brown often argued with both of his parents,

and she described his mother as “volatile” and “explosive” due to her alcohol problem.

Despite their troubles, Angela testified that Brown loved his parents. Brown had two sons

by another woman. Angela said that Brown interacted well with the children, but he was not

left alone with them.

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¶6. June Gilbreath taught Brown in sixth grade; she served as his advisory teacher and

managed his academic transcript that year. Gilbreath explained that her handwritten notation

of “LD” on Brown’s transcript meant “learning disabled” or “learning disability.” Gilbreath

said Brown struggled academically in elementary school. He repeated first grade and, despite

failing grades, Brown received “social promotions” because of his size in the fourth and fifth

grades. In sixth grade, his grades improved because they were “modified,” which meant

Brown was given easier material and tests than the other students. Brown spent a year and

a half in seventh grade before being promoted to the second semester of eighth grade.

Gilbreath said Brown’s grades were modified again in the eighth grade, and he received

higher grades that year. Looking at Brown’s standardized test scores, Gilbreath testified that

Brown was at a second-grade reading level and a third-grade math level when he was in fifth

grade. In sixth grade, he scored a third-grade reading level and a fourth-grade math level.

Finally, Gilbreath testified that Brown’s transcript reflected that he put forth his best effort

during school.

¶7. Susan Kizer testified for the State. Kizer is the special-education director for DeSoto

County Schools and previously was a special-education teacher. Kizer reviewed Brown’s

transcript and testified about the handwritten “LD” notation. She explained that “SLD” was

the correct way to denote a learning disability; “LD” had no meaning to her and was not a

customary way to acknowledge that a student was learning disabled. Kizer testified that a

transcript would not necessarily indicate whether a student was in special education. She

explained that a teacher should not make a determination of whether a student has a learning

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disability, as that determination is made only after a comprehensive evaluation. Kizer did

not have personal knowledge as to whether Brown was in special education, and she was not

able to locate any DeSoto County School records showing that he was, because school

records are destroyed after seven years.

B. Expert Testimony

¶8. Brown presented Dr. Marc Zimmermann, a licensed psychologist, as a expert witness.

Dr. Zimmerman was accepted as an expert in clinical psychology, forensic psychology,

intellectual disability, and IQ testing. He said that it is difficult to determine whether

someone is mentally retarded absent a full assessment because most mentally retarded

individuals are mildly so. He explained that the Diagnostic and Statistical Manual Fourth

Edition (DSM-IV) – the American Psychiatric Association’s compendium of mental diseases

– provides that most mentally retarded individuals achieve sufficient social and vocational

skills to maintain minimal self-support but need assistance to deal with “unusual social or

economic stress.” According to Dr. Zimmermann, some mentally retarded individuals marry,

have children, cook, clean, drive, maintain their appearance, and play sports.

¶9. Dr. Zimmermann explained the three criteria necessary for a diagnosis of mental

retardation: significantly low intellectual ability, two adaptive functioning deficits, and

manifestation prior to age eighteen. Dr. Zimmermann evaluated Brown in preparation for

the Atkins hearing; Brown was thirty-nine years old at the time of the evaluation. Dr.

Zimmerman used the Wechsler Adult Intelligence Scale, Third Edition, to measure Brown’s

IQ, and found that he had a seventy-five full-scale IQ, falling within the mildly mentally

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retarded range. The State’s expert also found Brown’s IQ to be seventy-five. Dr.

Zimmermann opined that the consistency indicated that the score was accurate and that

Brown was not malingering. Dr. Zimmermann also administered the Rey-15 Item Test,

which showed a low probability that Brown was malingering.

¶10. Next, Dr. Zimmermann analyzed Brown’s adaptive functioning deficits. He

interviewed several people who knew Brown, reviewed his school and social security

records, and administered the Vineland Adaptive Behavior Scales to Brown’s wife. The

Vineland measures a person’s ability to function in various aspects of life, covering the

adaptive functioning areas listed in the DSM-IV.1 He administered the test to Brown’s wife,

Angela, because of a phenomenon called the Cloak of Competency, which posits that

individuals tend to overestimate their own skills. Because the DSM-IV requires onset before

age eighteen, ideally the tested person should have known the subject prior to that age.

Although Angela did not know Brown prior to age eighteen, Dr. Zimmermann administered

the Vineland to her because she was the person who knew Brown closest to age eighteen of

those available to test. Dr. Zimmermann explained that he asked Angela to answer the

questions by thinking back to when they first met, closest to age eighteen.

¶11. Based on the information provided by Angela, Dr. Zimmerman testified that the

Vineland test revealed that Brown’s age equivalence for receptive speech was three years,

seven months; expressive speech was seven-and-a-half years; written communication was

1
The adaptive functioning areas are: communication, self-care, home living, social
and interpersonal skills, use of community resources, self-direction, health and safety,
functional academics, work, and leisure. Chase, 873 So. 2d at 1027-28 (¶ 69).

6
ten years; personal daily living skills was ten-and-a-half years; domestic skills was thirteen

years; community skills was nine years and ten months; interpersonal relationships was

eleven-and-a-half years; and coping skills was three years, five months. Dr. Zimmermann

conceded that Brown had the ability to take care of his own basic hygiene and to cook basic

dishes. He acknowledged Brown’s substance abuse and opined that it evidenced an adaptive

functioning deficit in health and safety. Questioned about Brown’s adaptive functioning

deficit in academics, he opined that, while the “LD” notation may not be dispositive of a

deficit, schools commonly label children as learning disabled rather than assess for mental

retardation. Dr. Zimmermann concluded that Brown has significant adaptive functioning

deficits in communication, self-care, social/interpersonal skills, use of community resources,

self-direction, functional academics, work, leisure, and safety. Dr. Zimmerman opined that

the deficits in adaptive functioning existed prior to Brown’s commission of the crime.

¶12. As for manifestation prior to age eighteen, Dr. Zimmermann identified Brown’s

academic transcript and conflicts with family members as a child. He also pointed to several

factors that could have predisposed Brown to mental retardation as a child: his mother’s

alcohol use during pregnancy, head trauma from a childhood car accident, inhaling gasoline

as a child, and his family’s history of mental illness. Ultimately, Dr. Zimmermann opined

that Brown was mentally retarded, possessing a seventy-five IQ and several adaptive

functioning deficits, which he concluded manifested before age eighteen.

¶13. The State presented Dr. Robert Storer, the State’s psychologist, who also evaluated

Brown in preparation for the Atkins hearing. Dr. Storer was accepted as an expert in clinical

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and forensic psychology. After evaluating Brown, Dr. Storer concluded that Brown is not

mentally retarded. To measure Brown’s IQ, Dr. Storer administered the Wechsler Adult

Intelligence Scale, Fourth Edition, which revealed that Brown had an IQ of seventy-five.

Like Dr. Zimmermann, Dr. Storer testified that similar results in their respective testing

bolstered their reliability. Dr. Storer administered several measures to determine whether

Brown was malingering and concluded that he was not. Dr. Storer administered two tests

to determine whether Brown possessed the ability to take a test designed to measure adaptive

functioning deficits. The Wide Range Achievement Test indicated that Brown’s word-

reading ability was just below a ninth-grade level and his sentence-comprehension ability

was at a seventh-grade level. The Mini Mental Status Exam, which measures memory and

dementia, indicated that Brown had minimal or no impairment in those areas.

¶14. Dr. Storer also evaluated Brown to determine whether he possessed any adaptive

functioning deficits. Dr. Storer noted Brown’s ability to care for his children and take them

to the doctor. He explained that, while not dispositive, that suggested Brown possessed good

communication skills, awareness of health issues, and a sense of responsibility. Dr. Storer

opined that Brown’s ability to cook evidenced his ability to care for himself and weighed

against an adaptive functioning deficit in that area. Dr. Storer reviewed Brown’s academic

transcript and noted that the fact that Brown had failed the first grade was of particular

concern because failing early grades indicates more severe problems, but that it does not in

and of itself mean a person is mentally retarded. Overall, he opined that the transcript

revealed Brown was not a stellar student, but that he passed numerous grades and advanced

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in standardized test scores from year to year. Dr. Storer said he could not formulate an

opinion as to what the “LD” notation meant. He acknowledged that Brown was probably in

special education classes, but said that would not mean Brown had received the

comprehensive testing necessary to determine if he was mentally retarded. Dr. Storer

reported that Brown’s football coaches stated that he was never deemed academically

ineligible to play football.

¶15. Dr. Storer opined that Brown’s participation in the Job Corps indicated good use of

community resources. Considering Brown’s work history, Dr. Storer testified that Brown’s

numerous job changes could indicate an adaptive functioning deficit, but that it was more

likely explained by his substance abuse. Dr. Storer acknowledged, however, that evidence

pointed to Brown being fired, on one occasion, for fighting with a manager. Dr. Storer

interviewed Brown’s father and Brown’s highschool girlfriend and mother of two of his

children. Both indicated that Brown had a commercial driver’s license. Brown himself also

claimed that he had a commercial driver’s license.

¶16. When asked if Brown’s fights with family members was evidence of mental

retardation, Dr. Storer said it could be if Brown’s reaction resulted from a lack of

understanding or inappropriate emotional response, but that he had seen no evidence of that.

Instead, he found that fighting was not unusual in Brown’s family environment. Dr. Storer

administered the ABAS-II to measure adaptive functioning deficits and testified that the test

did not reveal any adaptive functioning deficits. He concluded that Brown had difficulties

9
in some areas, but none was significant enough to rise to the level of an adaptive functioning

deficit. Thus, Dr. Storer opined that Brown was not mentally retarded.

¶17. Dr. Reb McMichael, the State’s psychiatrist, evaluated Brown along with Dr. Storer.

He was called as a rebuttal witness by Brown’s counsel, but was not qualified as an expert.

Dr. McMichael testified that approximately eighty-five percent of mentally retarded

individuals are mildly mentally retarded. He testified that individuals with mild mental

retardation are capable of driving cars, cooking, cleaning, maintaining personal hygiene,

maintaining employment, getting married, and having children. Dr. McMichael was present

for Dr. Storer’s interview with Brown and had input into Dr. Storer’s report. Because Dr.

McMichael was not qualified as an expert, he was not permitted to testify as to whether he

believed Brown to be mentally retarded.

C. Trial Judge’s Order

¶18. Following the hearing, the circuit judge entered an order on the Atkins issues. The

order cited the Chase standard that a finding of mental retardation requires subaverage

intellectual functioning, significant limitations in adaptative functioning in at least two areas,

and onset prior to age eighteen. The trial judge found that Brown had the necessary

subaverage intellectual functioning to be deemed mentally retarded pursuant to Atkins and

Chase. Both experts determined that Brown had a full-scale IQ of seventy-five, and the

parties agreed that Brown’s score placed him in the range necessary to satisfy the first Chase

prong. The trial judge then considered the evidence and testimony regarding Brown’s

academic skills, work history, self-care and home living, social/interpersonal skills, and

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health and safety. He concluded that Brown did not have any functional deficits in these

areas. Thus, the trial court found that, while Brown had a low IQ, he failed to show that he

had adaptive functioning deficits or mental retardation manifested before age eighteen.

Therefore, the trial court held that Brown had failed to prove by a preponderance of evidence

that he was mentally retarded. Brown appealed.

Discussion

¶19. Brown asserts that the trial court failed to apply the Chase standards correctly and that

the opinion “is based on a misapplication of the law and factual conclusions unsupported by

the substantial evidence.” Brown raises several assignments of error on appeal, each of

which can be included under the following three issues: (1) whether the trial court applied

an incorrect legal standard; (2) whether the trial court’s findings of fact were clearly

erroneous; and (3) whether the trial court erred in admitting certain expert testimony.

¶20. Brown had the burden of proof at the evidentiary hearing to show by a preponderance

of the evidence that he is mentally retarded and, thus, entitled to relief. Goodin v. State, 102

So. 3d 1102, 1111, 1112 (¶¶ 30, 32) (Miss. 2012). The standard of review following an

evidentiary hearing in a post-conviction relief case is well settled:

“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) . . . . 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.

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 1983)). That includes deference to the circuit judge as the “sole authority for
determining credibility of the witnesses.” Mullins, 515 So. 2d at 1189[.]

Goodin, 102 So. 3d at 1111 (¶ 30) (quoting Doss v. State, 19 So. 3d 690, 694 (¶ 5) (Miss.

2009)). Questions of law are reviewed de novo. Id.

I. Whether the trial court applied an incorrect legal standard to the application
of the Chase standard.

¶21. “[T]he clinical definition of mental retardation requires (1) subaverage intellectual

functioning (2) accompanied by significant limitations in at least two adaptive skills (3) that

manifest before age eighteen.” Goodin, 102 So. 3d at 1104 (¶ 2) (citing Atkins, 536 U.S. at

318; Chase, 873 So. 2d at 1027-28). Brown argues that the circuit judge applied an incorrect

legal standard for three reasons: (1) he claims that the trial judge turned the “manifest before

age eighteen” requirement into an evidentiary requirement that only evidence from people

Brown knew before age eighteen could be used to prove adaptive functioning deficits; (2)

Brown argues that the trial judge imposed a heightened burden when considering whether

Brown proved the existence of an adaptive functioning deficit in functional academics; (3)

Brown asserts that in the adaptive functioning area of work, the trial judge incorrectly

focused his analysis on what Brown could do, rather than what he could not do.

A. Onset Prior to Age Eighteen

¶22. The parties dispute whether the Chase standard requires the petitioner to present

evidence that adaptive functioning deficits manifested prior to age eighteen. Brown argues

that “there simply is no requirement under Mississippi law that adaptive functioning deficits

be present before age eighteen,” and he asserts that the Court has held that adaptive

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functioning deficits should be measured “prior to incarceration” not “before age eighteen.”

Brown is taking the Court out of context. The rationale behind the Court’s statement that

adaptive functioning deficits should be measured “prior to incarceration” is that deficits in

adaptive functioning should not to be measured after the defendant has been incarcerated,

because inmates do not have the option to perform the activities and behaviors that are

assessed. Thus, assessment of adaptive functioning after a defendant has been incarcerated

likely would not be an accurate assessment of his or her abilities at the time of the crime.2

The Court clearly has held that the onset of significantly subaverage intellectual functioning

and adaptive functioning deficits both must manifest prior to age eighteen.

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. . . .

Goodin, 102 So. 3d at 1112 (¶ 33) (emphasis added). Brown’s argument that adaptive

functioning deficits do not have to be present prior to age eighteen is without merit.

¶23. Brown also argues that the judge erroneously disregarded the results of the Vineland

Adaptive Behavior test because Angela did not know Brown before he turned eighteen. The

2
See Doss v. State, 19 So. 3d 690, 714 (¶ 49) (Miss. 2009) (quoting Linda Knauss
and Joshua Kutinsky, Into the Briar Patch: Ethical Dilemmas Facing Psychologists
Following Atkins v. Virgina, 11 Widener L. Rev. 121, 131 (2004) (“Few (if any) measures
of adaptive functioning have been designed or normed for use with a correctional
population. Thus, adaptive functioning prior to incarceration should be the target for
assessment.”)).

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Vineland measures a person’s ability to function in various aspects of life, and that test was

given to Brown’s wife, Angela. She was asked to recall back to as close to Brown being

eighteen as possible. In his order, the trial judge acknowledged that the test had been

administered to Angela. The judge also recognized that the doctor who had administered the

test, Dr. Zimmerman, admitted that it would have been preferable for the test to be given to

someone who knew Brown before age eighteen. In his discussion of the adaptive functioning

deficits, the judge mentioned Angela’s testimony about Brown, including references Angela

made to things she had heard about Brown as a child and teenager.

¶24. Under Atkins and Chase, the third requirement for proving mental retardation is

manifestation before age eighteen. See Atkins, 536 U.S. at 308 n.3, 318; Chase, 873 So. 2d

at 1022-23 (¶¶ 43-44). In Goodin, we held that an expert may utilize any accepted test of

adaptive functioning deficits, but that a retrospective analysis is necessary to show onset prior

to age eighteen. Goodin, 102 So. 3d at 1114 (¶ 39). We stated:

This Court has noted the importance of interviewing family and friends
knowledgeable about the defendant’s past. 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.

Id. The judge had before him testimony from expert psychologists who had evaluated

Brown, interviewed Brown’s family members, friends, and former educators, and reviewed

Brown’s school records, work history, family history, and social history. The judge also

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heard testimony from Brown’s wife and a former teacher. He had ample evidence of

Brown’s behavior and abilities before age eighteen.

¶25. The trial judge outlined the evidence and testimony that had been presented and

concluded that it was not persuasive that mental retardation had manifested before Brown

was eighteen:

In an attempt to show onset of mental retardation prior to the onset of age
eighteen, Dr. Zimmerman testified that the consumption of alcohol by Brown’s
mother may have caused his mental retardation along with some head trauma
Brown suffered. He also asserted that Brown’s family history of mental illness
supports a finding that he is mentally retarded. Brown’s sixth grade teacher
testified, and the State disputed, that Brown was in special education classes.
No results of any psychological testing done before Brown was 18 was
presented. On his school transcript, the California Achievement Test results
showed he was reading at a second grade level in the fifth grade and was
almost a fourth grade level in math[,] and the next year he improved
somewhat. The [c]ourt finds that the petitioner offered no persuasive testimony
[that] supports the onset of mental retardation prior to age eighteen.

The judge considered and weighed all of the evidence presented and made a reasoned finding

based on the evidence and testimony before him. Certainly the record does not indicate that

the trial judge “ignored” the Vineland test results as Brown alleges. Although it cannot be

concluded from the record that he did so, if the trial judge determined that less weight should

be given to the Vineland test result because Angela did not know Brown before age eighteen

or for any other reason, then he had the discretion to do so. We give deference to the trial

judge as the ultimate finder of fact, and we will not reweigh the evidence on appeal.

¶26. Brown’s claim that the trial judge incorrectly heightened the standard by requiring

Brown to utilize only evidence from before he was eighteen is not supported by the record.

B. Functional Academics

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¶27. Next, Brown argues that the trial judge applied a heightened burden of proof in his

analysis of functional academics. In his analysis of adaptive functioning in the area of

functional academics, the judge considered conflicting evidence of whether Brown had been

identified as a learning-disabled student. The judge also acknowledged that there was no

evidence of a formal finding that Brown had a learning disability, “much less that the

disability met the legal definition of mental retardation for Atkins purposes.” The judge had

conflicting evidence before him from teachers, coaches, a principal, and Brown himself.

However, it was not disputed that Brown failed to present evidence of a formal evaluation

or finding of a learning disability. Even though his school records had been destroyed,

Brown did not put on evidence of anyone who remembered that he had been formally

evaluated.

¶28. The judge took into consideration that there was no evidence of a formal evaluation

and considered that among all of the evidence presented, including: testimony of educators;

Brown’s school transcript showing his grades and promotion through school; Brown’s

reading level and sentence-comprehension skills, which were between a seventh-grade and

ninth-grade level; and other test results presented by the experts. The judge concluded that

Brown “did suffer some deficiencies in academic achievement,” but that the deficiencies did

“not appear to be the type confined to those suffering from mental retardation.” He held that

Brown did not satisfy the burden of proof for establishing that he had a significant deficit in

adaptive functioning in the area of functional academic skills. Brown’s argument that the

judge applied a heighten burden of proof is without merit.

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 C. Work

¶29. Finally, Brown argues that, in his analysis of the adaptive functioning area of work,

the trial judge incorrectly focused on what Brown could do, rather than what he could not do.

Brown cites a law review article for the proposition that the analysis of adaptive functioning

deficits must focus on deficits, not abilities. But that view is inconsistent with our precedent,

which has considered expert testimony regarding what a person is able to do in conjunction

with what he or she cannot do. See Goodin, 102 So. 3d at 1106, 1110-11; Thorson v. State,

76 So. 3d 667, 673 (Miss. 2011); Doss, 19 So. 3d at 712. Assessing either deficits or abilities

in a vacuum would not give a full picture of an individual’s functioning in any area. Further,

other than the apparent inability to hold a job, evidence was not presented about what Brown

could not do in the area of work. The trial judge did not err by considering Brown’s abilities

along with his deficits.

¶30. Each of Brown’s claims regarding the trial court’s application of the correct legal

standard is without merit. The trial judge applied the correct legal standard in determining

whether Brown satisfied the Chase requirements.

II. Whether the trial court’s finding that Brown did not have significant deficits
in adaptive functioning was clearly erroneous.

¶31. To satisfy the clinical definition of mental retardation, the petitioner must prove

beyond a preponderance of the evidence that he had significant limitations in at least two

adaptive functioning skills. Goodin, 102 So. 3d at 1104, 1111 (¶¶ 2, 30) (citations omitted).

Following an evidentiary hearing in a PCR case, the trial court’s findings of fact must be

clearly erroneous to warrant reversal. Goodin, 102 So. 3d at 1111 (¶ 30) (quoting Doss, 19

17
So. 3d at 694). The adaptive skill areas to be considered are: communication, self-care, home

living, social and interpersonal skills, use of community resources, self-direction, health and

safety, functional academics, work, and leisure. Goodin, 102 So. 3d at 1112 (¶ 33); Chase,

873 So. 2d at 1027-28 (¶ 69).

¶32. Brown claims that the trial court’s finding that he did not have significant adaptive

functioning deficits in the areas of functional academics, work, self-care and home living,

social/interpersonal skills, and health and safety was clearly erroneous. Brown takes issue

with the trial judge’s conclusion that many of Brown’s job difficulties and trouble in the

areas of social/interpersonal skills and health and safety could have been attributed to a

substance abuse problem. While the judge did note that many of the cited issues were

consistent with someone who had a substance abuse problem, that was not the only evidence

he considered. In a twelve-page order, the judge outlined the testimony and evidence

presented regarding each area of adaptive functioning.

¶33. The trial judge first considered whether Brown had an adaptive functioning deficit in

the area of functional academic skills. The judge outlined the testimony from Gilbreath,

Kizer, Dr. Zimmerman, and Dr. Storer and concluded that “Brown did suffer from some

deficiencies in academic achievement,” but “the deficiencies do not appear to be the type

confined to those suffering from mental retardation.” He stated that other than the “LD”

notation, “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.” Finally, the judge found that Brown’s academic difficulties

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were “simply not unique and could equally be explained by any number of reasons other than

an ‘adaptive functioning deficit,’” and that Brown had failed to satisfy his burden of proof

to show a significant adaptive functioning deficit in functional academic skills.

¶34. Next, the trial judge analyzed whether Brown had an adaptive functioning deficit in

the work area. The order discussed Dr. Zimmermann’s testimony that Brown had lost several

jobs for poor performance or fighting with his supervisors and his expert opinion that Brown

had a corresponding adaptive functioning deficit. The trial judge noted that Brown worked

as a delivery person for several companies; worked for an energy company; worked as a

packer on an assembly line; and had been in the Job Corps. The order discussed Dr. Storer’s

expert findings that, though frequent jobs changes could evidence an adaptive functioning

deficit, he did not attribute Brown’s struggles to an adaptive functioning deficit and opined

that the job difficulties may have been due to Brown’s substance abuse. The trial judge

concluded that Brown did not have a significant adaptive functioning deficit in work. The

order reasoned that “the testimony presented could clearly be explained just as easily as a

substance abuse problem as a mental retardation indicator.” The judge found that Brown’s

ability to perform his jobs made substance abuse a more likely cause of his termination, and

that his repeated job turnover did not establish an adaptive functioning deficit.

¶35. The judge then considered whether Brown had an adaptive functioning deficit in the

areas of self-care and home living. The trial judge considered that Brown had never lived

on his own, did not understand money, and could not manage his own finances, but could

cook, clean, and take his children to the doctor. The judge concluded that, while Brown

19
continued to live with his parents as an adult and allowed his mother and wife to take care

of him, that “does not meet the definition of an adaptive functioning deficit” and “fits the

expected pattern of a drug abuser.”

¶36. Analyzing whether Brown had an adaptive functioning deficit in social and

interpersonal skills, the judge noted that Brown had several violent confrontations with

family members and that Brown claimed he was fired from various jobs for fighting with

management. The fights with his family members often occurred at home, which seemed to

be a volatile setting where fighting was common. The judge concluded that the outbursts of

anger described would be common for someone with a substance abuse problem and that

Brown had failed to prove an adaptive functioning deficit.

¶37. Finally, the order considered whether Brown had an adaptive functioning deficit in

the areas of health and safety. The order noted Dr. Zimmermann’s expert opinion that

Brown’s substance abuse both later in life and as a child was indicative of an adaptive

functioning deficit and a predisposing factor for mental retardation. The judge also noted

that Brown’s wife had reported that he was a reckless driver, totaling several cars, and that

he did not go to the doctor on a regular basis. He concluded that “[t]hese are mere isolated

incidents some of which clearly reflect substance abuse” and “a broad statement that Brown

did not regularly go to the doctor or to a dentist is insufficient.”

¶38. Although Dr. Zimmerman opined that Brown had significant deficits in adaptive

functioning, Dr. Storer concluded that Brown’s scores on formal measures of adaptive

functioning were below average, “but not two standard deviations or more below average as

20
would be required for a diagnosis of mental retardation.” A “conflict in the evidence

presented is properly resolved by the trier of fact[,]” in the case sub judice, the trial judge.

Martin v. State, 871 So. 2d 693, 698 (¶ 18) (Miss. 2004). We will not reweigh evidence or

make findings of fact. “Fact-finding is left to the trial courts, and we ‘review findings of fact

with great deference.’” Butler v. State, 102 So. 3d 260, 270 (¶ 29) (Miss. 2012) (citing Scott

v. State, 981 So. 2d 964, 969-70 (¶ 21) (Miss. 2008)).

¶39. In the instant case, the trial court considered expert testimony, psychological testing

and evaluation, school records, social history, work history, testimony from teachers, and

testimony from Brown’s wife, and found that Brown had failed to prove by a preponderance

of the evidence that he had significant limitations in at least two adaptive functioning skills.

Brown’s case is not “a rare case that merits reversal, because the evidence is so convincing,

barely controverted, and covers such a span of time.” Goodin, 102 So. 3at 1113 (¶ 37).

Giving the appropriate deference to the trial judge as the finder of fact and viewing the

evidence in the light most favorable to the trial court’s findings, the judge’s findings were

supported by the evidence presented and were not clearly erroneous.

III. Whether the trial court erred by admitting Dr. Storer’s report into evidence
and by relying on certain statements therein.

¶40. Brown claims that it was an abuse of discretion for the trial court to admit Dr. Storer’s

expert report into evidence because it contained inadmissible hearsay. He also asserts that

the trial judge erroneously relied on statements about his substance abuse that were

contradicted at the hearing and that the trial judge should not have relied on information in

the report from individuals who did not testify at the hearing.

21
 A. Admissibility of Expert Reports

¶41. Brown asserts that expert reports are hearsay and, as a general rule, it is error to admit

an expert report into evidence. “‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Miss. R. Evid. 801(c). Certainly, expert reports may contain statements

from individuals not called to testify at trial, because an expert is allowed “to base his

opinion on the opinions of others [that] are not in evidence so long as experts in the field

ordinarily rely on such opinions in forming their own opinions.” Alexander v. State, 759 So.

2d 411, 420 (¶ 30) (Miss. 2000) (quoting Gray v. State, 728 So. 2d 36, 56-57 (¶ 86) (Miss.

1998) (citing Miss. R. Evid. 703)).

¶42. Brown claims that the trial court erred by considering statements made to Dr. Storer

by Albert Brown, Brown’s father, and Constance Carter, Brown’s high school girlfriend and

the mother of two of his children. Brown argues that the statements were hearsay and that

he did not have the opportunity to cross examine the individuals. Dr. Storer testified that he

had interviewed both individuals, and he testified as to the information they provided, which

largely pertained to Brown’s work history. Both said that Brown drove a delivery truck and

that he had a commercial driver’s license. The statements in question were not offered “to

prove the truth of the matter asserted.” Rather, the statements were used to explain the basis

of Dr. Storer’s conclusions and opinions regarding Brown’s work history. Thus, the

statements were not hearsay. See Flowers v. State, 842 So. 2d 531, 559 (¶ 87) (Miss. 2003).

22
¶43. Further, the weight and credibility of expert testimony is to be determined by the trier

of fact. Ladnier v. State, 878 So. 2d 926, 931 (¶ 16) (Miss. 2004). When, as here, the finder

of fact is faced with expert opinion testimony based on facts not within the personal

knowledge of the expert, that the undergirding facts are not within the personal knowledge

of the expert goes to the overall weight of the expert’s opinions. See McCaffrey v. Puckett,

784 So. 2d 197, 203 (¶ 19) (Miss. 2001). Accordingly, it stands to reason that the finder of

fact must be able to examine the underlying facts to make the necessary credibility

determinations. To the extent the trial judge examined the testimony of nontestifying

individuals, which was included in the expert’s report and about which the expert testified

at the hearing, to determine the credibility of Dr. Storer’s expert opinion and the weight to

give said opinion, we hold that the trial judge did not err.

¶44. As to the admission of the report in general, Dr. Storer was called to testify and

testified in detail about his report, his opinions, and the information gleaned from

interviewing Brown’s family and friends. Brown had a sufficient opportunity to cross-

examine Dr. Storer. In a fact-intensive situation in which expert testimony is necessary, such

as in determining mental retardation, the circuit judge could benefit from having the expert

reports available after the hearing. The judge, noting that it was a bench trial with no jury,

acknowledged the argument that expert reports contain hearsay and assured counsel that he

would designate the portions of the report relied upon. The judge also admitted Dr.

Zimmerman’s expert report. “Our well-established standard of review for reviewing the trial

court’s admissibility of evidence, including expert testimony, is abuse of discretion.” Jones

23
v. State, 918 So. 2d 1220, 1223 (¶ 9) (Miss. 2005) (citations omitted). Where the admission

of the evidence did not result in prejudice to the accused, we will affirm the trial court. Id.

There is no evidence that the trial judge relied on anything from Dr. Storer’s report that was

not presented at the hearing. We cannot say that admitting the report resulted in prejudice

to Brown. Thus, we hold that the judge did not err in admitting the expert report in the

instant case.

B. Substance Abuse

¶45. Brown also asserts that the trial court relied on a statement in the expert report that Dr.

Storer conceded at the Atkins hearing was not true as a basis for finding that Brown did not

have a significant adaptive functioning deficit in the area of work. Brown is referring to the

trial judge’s conclusion that Brown’s numerous jobs and failure to hold a job “could clearly

be explained just as easily as a substance abuse problem as a mental retardation indicator.”

Brown claims that the judge improperly relied on the following statement from Dr. Storer’s

report: “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.”

Brown claims that the judge improperly relied on the foregoing statement because, at the

Atkins hearing, Dr. Storer said that statement was not true. The record does not support

Brown’s claim.

24
¶46. At the hearing, Dr. Storer clarified that Brown did not say “I was fired for substance

abuse.” Rather, in response to Dr. Storer’s question about why Brown stopped working for

Miller and Budweiser, Brown’s exact words were:

I think, I think I quit the first time, got into it with 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 (laughing) getting drunk!

The quote from Brown was in Dr. Storer’s report and was read verbatim at the hearing. Dr.

Storer also testified that Brown had told him “that many of his employments were [a]ffected

by his substance use.” Dr. Storer’s statement in the report that “[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” was not contradicted by his testimony at the hearing. Certainly,

Brown’s own statement that he got fired because he was getting drunk instead of going to

work indicates that he was fired because substance abuse influenced his performance.

¶47. The experts and lay witnesses presented a significant amount of evidence about

Brown’s substance abuse, which began as early as age six or seven. The trial judge, as the

finder of fact, who had the opportunity to hear all of the witnesses’ testimony and review the

evidence, could have determined that Brown’s own admission that he was getting drunk

instead of going to work, coupled with the testimony about his substance abuse, could have

been a reason for his being fired. That determination could have been reached without the

report being admitted into evidence, because Brown’s quote was read verbatim at the

hearing. There is no indication from the record that the trial judge relied on any statement

that was not true or was improperly admitted into evidence.

25
¶48. The judge noted the possibility that Brown had a commercial driver’s license, that

Brown had received job training, and that there was no indication that Brown could not

perform the functions of his jobs. Thus, it seemed more likely that substance abuse was the

cause of his problems. Further, the judge stated that just because a person’s having many

jobs can be an indicator of a deficit in adaptive functioning does not mean it unequivocally

establishes an adaptive functioning deficit. Where the evidence and testimony indicate that

other causes for having many jobs are present, the court has the discretion to weigh all of the

evidence and make that determination. The issue is without merit.

Conclusion

¶49. The trial judge heard the testimony, considered the testimony and evidence presented,

followed the procedure established in Chase, and applied the correct legal standard for

determining whether Brown was mentally retarded under Atkins and Chase. Giving

deference to the trial judge as the finder of fact, we cannot say that his findings were clearly

erroneous.

¶50. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., CONCUR.
DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
KITCHENS AND KING, JJ. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. LAMAR, J.,
NOT PARTICIPATING.

DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶51. I fully join Justice Kitchens’s well-reasoned dissent which correctly finds that, under

our currently existing Atkins standards, the trial court erred by finding that Sherwood Brown

26
is not intellectually disabled and exempt from execution. I write separately to express grave

concern about whether, under our current Atkins standards, courts can fairly determine which

offenders are constitutionally exempt from the death penalty.

¶52. In Atkins, the United States Supreme Court expressed very specific concerns about

executing persons whose mental capacities are reduced to the extent that they present

significant risks particular to the judiciary.3 Such concerns include the risk of “false

confessions;” a lesser ability on the part of the offender to “make a persuasive showing of

mitigation in the face of the prosecutorial evidence of one or more aggravating factors;”

reduced ability to “give meaningful assistance to their counsel;” and reduced ability to make

good witnesses because “their demeanor may create an unwarranted impression of lack of

remorse for their crimes.”4

¶53. But rather than exempt from the death penalty persons whose reduced mental

capacities are found by the jury to present these concerns, the Atkins Court simply exempted

all persons who bear the mental health label “mentally retarded.”5 This Court then followed

the Supreme Court’s lead and adopted the mental health definition corresponding with that

label, essentially leaving it to the mental health community to decide who does, and does not,

qualify for execution under the Constitution.6

3
Atkins v. Virginia, 536 U.S. 304, 317-21, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002).
4
Id. at 318-21.
5
Id. at 321.
6
Chase v. State, 873 So. 2d 1013, 1027-28 (Miss. 2004).

27
¶54. My concern is that the mental health community—which has no responsibility to

address the Atkins Court’s constitutional concerns—continually changes the “mental

retardation” label for reasons that bear no relationship to the Atkins Court’s concerns. This

eliminates any confidence of a connection between the continually changing label and the

Court’s actual concerns. This disconnect, for instance, would allow the mental health

community to increase drastically the threshold for mental retardation, rendering the label

incapable of addressing the Court’s constitutional concerns. Further, not only do these

definitions change over time, but so too has the label, from mental retardation to intellectual

disability.7

¶55. My concern takes into account the fact that the mental health community recognizes

at least two different definitions of intellectual disability; one produced by the American

Association on Mental Retardation (AAMR), and another produced by the American

Psychiatric Association (APA). The Atkins opinion—handed down in 2002—quoted the

AAMR’s 1992 definition of “mental retardation,”8 presumably without knowing that the

AAMR would, that very same year (2002), adopt a new definition.9 The Atkins Court also

quoted from the APA’s fourth edition of its Diagnostic and Statistical Manual of Mental

7
Hall v. Florida, _ U.S. _, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007 (2014).
8
Atkins, 536 U.S. at 308 n.3 (quoting Mental Retardation: Definition, Classification,
and Systems of Supports 5 (9th ed. 1992)).
9
Mental Retardation: Definition, Classification, and Systems of Supports (10th ed.
2002).

28
Disorders (DSM), produced in 2000.10 The DSM’s fifth edition, which contains still another

new and different definition of intellectual disability, was released in 2013.11 What is more,

given the fact that these mental health standards change over time, this Court’s decision to

adopt the definition that existed in one snapshot in time—ignoring its perpetual

change—made the definition from what was one of many definitions.

¶56. It seems to me that—rather than exempting from the death penalty all persons who

bear the label “mentally retarded” as that label existed when we decided Chase or as

continually defined, changed, and amended by persons who bear no duty or responsibility to

meet the judiciary’s constitutional concerns—we should consider a judicial definition of

intellectual disability that directly addresses the constitutional concerns expressed by the

Atkins Court. This, I believe, is what the Atkins Court invited us to do when it stated:

Not all persons who claim to be mentally retarded will be so impaired as to fall
within the range of mentally retarded offenders about whom there is a national
consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106
S. Ct. 2595, 91 L. Ed. 2d 335 (1986), with regard to insanity, “we leave to the
State[s] the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.” Id. at 399, 405, 416-417, 106
S. Ct. 2595.12

¶57. In implementing the Ford directive concerning insanity, the judiciary is unconcerned

with the mental health community’s various definitions of insanity, substituting instead a

judicial definition, commonly known as the M’Naghten Rule, that is designed to meet the

10
Atkins, 536 U.S. at 308 n. 3 (quoting Diagnostic and Statistical Manual of Mental
Disorders 41 (4th ed. 2000)).
11
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).
12
Atkins, 536 U.S. at 317.

29
concerns of the judiciary, rather than those of the mental health community.13 Were we to

do the same for intellectual disability, we would be assured that at least the correct question

is considered.

KITCHENS AND KING, JJ., JOIN THIS OPINION.

KITCHENS, JUSTICE, DISSENTING:

¶58. After Sherwood Brown received a death sentence for capital murder, this Court

granted him an evidentiary hearing to determine whether he is intellectually disabled14 and,

therefore, exempt from execution. In denying Brown relief, the circuit court applied the

wrong legal standard. Now the majority perpetuates that error. Upon review of the evidence

presented to the trial court, and applying the correct legal standard, I would find that Brown

is intellectually disabled and ineligible for execution.

I. The circuit court applied an incorrect legal standard.

¶59. Brown argues that the circuit judge applied an incorrect legal standard for three

reasons and that his factual findings should be given no deference. Specifically, he argues

that the trial judge “turned the requirement that the onset of mental retardation be before age

eighteen into an evidentiary requirement that only evidence from contacts before age

eighteen may be used to prove adaptive functioning deficits . . . .” This concern about the

13
Roundtree v. State, 568 So. 2d 1173, 1179 (Miss. 1990).
14
Intellectually disabled has replaced the term mentally retarded in the professional
vernacular. The United States Supreme Court has recognized this change. Hall v. Florida,
_ U.S. _, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007 (2014).

30
trial court’s application of the Chase15 standard embodies two distinct disputes between the

parties.

¶60. First, the parties dispute whether the Chase standard requires the petitioner to present

evidence that each adaptive functioning deficit manifested prior to age eighteen, or whether

the petitioner need only provide evidence that the intellectual disability manifested in some

way prior to the age of eighteen years. Second, the parties dispute whether the trial judge

actually disregarded the results of Dr. Marc Zimmermann’s Vineland adaptive functioning

test because it was administered to Angela Brown, who did not know Brown prior to his

attainment of the age of eighteen.

¶61. The Vineland measures adaptive functioning in various aspects of life. Dr.

Zimmermann administered the test to Angela because, according to a phenomenon called the

Cloak of Competency, individuals tend to overestimate their own skills. Because a diagnosis

of intellectual disability requires onset prior to age eighteen, the tested person should have

known the subject person prior to his attainment of that age. Though Angela did not know

Brown at that age, Dr. Zimmermann explained that he had asked Angela to answer the

questions by thinking back as close to age eighteen as she had known Brown. Dr.

Zimmermann opined that the Vineland results indicated that Brown had an adaptive

functioning deficit in the area of communication.

¶62. The trial court provided an in-depth analysis of the adaptive functioning areas. As he

considered each area, the trial judge detailed the evidence supporting or refuting an adaptive

15
Chase v. State, 873 So. 2d 1013 (Miss. 2004)

31
functioning deficit in the particular area. But, before he engaged in that area-by-area analysis,

the trial judge articulated some general principles about adaptive functioning deficits. There,

he noted that Dr. Zimmermann had administered the Vineland test to Angela and stated “[h]e

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 trial judge’s

order also noted the lack of “psychological testing before Brown was 18.”

¶63. The circuit judge appears not to have taken into account Dr. Zimmermann’s Vineland

test results, because Dr. Zimmerman had relied on information from times after Brown had

become eighteen years of age. No other reading of the order is tenable in light of the trial

judge’s detailed analysis of the evidence he considered without a single mention of the

Vineland. The majority disagrees, finding that “the judge mentioned Angela’s testimony

about Brown.” But, while the judge mentioned Angela’s qualitative testimony, his detailed

review of the evidence omitted any reference to the quantitative results produced by the

Vineland. To disregard this evidence was legal error.

¶64. This Court adopted its Chase standard directly from two pieces of medical literature

on intellectual disability. Each medical definition requires onset or manifestation prior to age

eighteen. Chase v. State, 873 So. 2d 1013, 1027-28 (Miss. 2004) (quoting Atkins v. Virginia,

536 U.S. 304, 308 n.3, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (quoting Mental

Retardation: Definition, Classification, and Systems of Support 5 (9th ed. 1992); Diagnostic

and Statistical Manual of Mental Disorders 39 (4th ed. 2000))). In Goodin v. State, we noted

that an expert may utilize any accepted test of adaptive functioning deficits, but that a

32
retrospective analysis is necessary to show onset prior to age eighteen. Goodin v. State, 102

So. 3d 1102, 1104 (Miss. 2012) (internal citations omitted). We stated:

This Court has noted the importance of interviewing family and friends
knowledgeable about the defendant’s past. 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.

Id. at 1115 (internal citations omitted). Goodin adopted that standard from the opinion of the

United States District Court for the Eastern District of Louisiana in United States v. Hardy.

Id. at 1114 (quoting United States v. Hardy, 762 F. Supp. 2d 849, 881-82 (E. D. La. 2010)).

In Hardy, the district court likewise required retrospective analysis, but stated:

Certainly a person’s level of adaptive functioning in the present might provide
some information about his abilities during the developmental period as, all
things being equal, a person without limitations in the present is less likely to
have had limitations before, and a person with limitations today is more likely
to have had them during the developmental period.

Hardy, 762 F. Supp. 2d at 881 (citing American Association on Intellectual and

Developmental Disabilities, 95-96 (11th ed. 2010) (relegating contemporary assessment to

a possible additional tool); Id. at 46 (noting retrospective diagnosis requires evaluation of

subject’s “previous functioning”)). So the onset requirement necessitates a retrospective

analysis to before age eighteen. However, evidence from after age eighteen still carries

probative value. The trial judge converted the requirement that some evidence show

manifestation before age eighteen into a requirement that the petitioner utilize only evidence

from events and circumstances before age eighteen. By so doing, he applied the wrong legal

33
standard and his factual findings are entitled to no deference. Neal v. State, 687 So. 2d 1180,

1187 (Miss. 1996). And this error infects the circuit judge’s consideration of criteria B and

C because the quantitative evidence produced by the Vineland was relevant to establish

adaptive functioning deficits and manifestation prior to age eighteen.

¶65. Because the trial judge failed to apply the correct legal standard, I would review his

factual findings de novo. Id.

II. The circuit court’s ruling ignores the overwhelming weight of the
evidence.

¶66. Brown bore the burden of proving by a preponderance of the evidence that he had “(1)

subaverage intellectual functioning (2) accompanied by significant limitations in at least two

adaptive skills (3) that manifest before age eighteen.” Goodin, 102 So. 3d at 1104 (citing

Atkins, 536 U.S. at 318; Chase, 873 So. 2d at 1027-28). He also had to show that he was not

malingering. Chase, 873 So. 2d at 1029. Reviewing the evidence de novo, I would find that

Brown met his burden.

¶67. The State conceded the subaverage intellectual functioning—both experts agreed

Brown had a seventy-five IQ—and malingering elements during the evidentiary hearing. So

the only question before this Court is whether Brown established two or more adaptive

functioning deficits, and that they manifested prior to age eighteen, by a preponderance of

the evidence.

Functional Academics

¶68. June Gilbreath taught Brown in sixth grade and was tasked with filling out his

academic transcript that year. She testified about her experience with Brown as a student and

34
explained the information contained in his transcript. Much of her testimony centered on a

handwritten “LD” notation on Brown’s transcript, which Gilbreath said that she wrote. She

testified that the notation indicated that Brown was “learning disabled” or had a “learning

disability.”

¶69. The trial judge found that the State refuted this evidence with the testimony of Susan

Kizer. She reviewed Brown’s transcript and testified that “SLD” is the correct way to denote

a learning disability. She also stated that “LD” was not a customary way to acknowledge that

a student was learning disabled. Additionally, she explained that a student would not be

labeled learning disabled except upon completion of a comprehensive evaluation. But she

testified that a transcript may or may not indicate whether a student was enrolled in special

education and that school records from the time Brown attended have been destroyed. She

also admitted that she had no personal knowledge about Brown.

¶70. In the past, we have noted the importance of the fact that the petitioner’s evidence was

“barely controverted” by the State’s evidence when reversing a trial judge’s finding that the

petitioner is not intellectually disabled. Goodin, 102 So. 3d at 1113. Susan Kizer’s testimony

does not refute Gilbreath’s testimony that Brown had been identified as learning disabled.

Though she testified that “SLD” is the appropriate notation, she did not testify that no teacher

ever would use “LD.” She admitted that she lacked personal knowledge about Brown. And

the fact that a learning disability needed to be determined through a comprehensive

evaluation is of no consequence because she could not testify to any personal knowledge that

Brown never had such an evaluation and could not produce any record to support such a

35
conclusion. Kizer’s testimony, at most, reflects an opinion that Gilbreath used an incorrect

notation on Brown’s transcript.

¶71. Gilbreath also explained that Brown struggled academically in the first through fifth

grades, but that his grades improved because they were “modified,” meaning Brown was

given easier material and tests than other students received. Gilbreath explained that this

practice continued in the eighth grade, where Brown also received higher grades. She also

testified that Brown repeated the first grade, received “social promotions” because of his size

in the fourth and fifth grades despite failing grades, and spent a year and a half in the seventh

grade before being promoted to the second semester of the eighth grade.

¶72. The State’s expert, Dr. Storer, noted that the fact that Brown failed the first grade was

of particular concern because failing early grades indicates more severe problems. He opined

that an adaptive functioning deficit in functional academics was belied by the fact that Brown

passed numerous grades. But Dr. Storer’s opinion failed to account for Gilbreath’s

undisputed testimony that Brown’s grades were modified and that he received multiple social

promotions.

¶73. Dr. Storer also cited Brown’s standardized test scores, which advanced from year to

year. Gilbreath explained those scores. She noted that in the fifth grade, Brown had achieved

only a second-grade reading level and a third-grade math level. In sixth grade, he had a third-

grade reading level and a fourth-grade math level. She explained that Brown struggled

despite giving his best effort in school. Finally, Dr. Zimmermann opined, based on this

information, that Brown had a significant adaptive functioning deficit in the area of

36
functional academics. He explained that it is common for schools to label a child learning

disabled rather than to assess for intellectual disability.

¶74. The overwhelming, barely controverted evidence shows that Brown struggled

significantly in school and that his successes were the result of decreasing standards and

social promotions. That is to say, even when Brown advanced, he did not do so based on his

ability. The State failed to refute this evidence in any substantial way. Goodin, 102 So. 3d

at 1113. Finally, Brown’s expert opined that he possessed an adaptive functioning deficit in

this area. Applying a de novo review, I would find that Brown established an adaptive

functioning deficit by a preponderance of the evidence.

¶75. Further, because all of the evidence of this deficit relates to a time before Brown

turned eighteen, Dr. Zimmermann opined that this established manifestation prior to age

eighteen. That conclusion is not contradicted by the evidence. So the manifestation element

is satisfied with respect to this deficit.

Communication

¶76. Dr. Zimmermann opined that Brown has a significant adaptive functioning deficit in

the area of communication. Dr. Zimmermann based that conclusion on the Vineland test,

which the trial judge failed to consider. That test revealed that Brown’s age equivalence for

receptive speech was three years, seven months; expressive speech, seven years, six months;

written communication, ten years, zero months. And Gilbreath noted that, in the fifth grade,

Brown had a second-grade reading level and in sixth grade, a third-grade reading level based

on standardized test scores.

37
¶77. Likewise, Dr. Storer administered the Wide Range Achievement Test (WRAT) and

concluded that Brown currently possesses a word-reading ability just below a ninth-grade

level and a sentence comprehension ability at the seventh-grade level. And the only evidence

to refute Brown’s deficit in this area was that Dr. Storer noted that Brown’s ability to care

for his children and take them to the doctor suggested, but did not establish, that Brown

possessed good communication skills. This left Brown’s evidence “barely controverted.” Id.

¶78. I also would find that Brown proved an adaptive functioning deficit in communication

by a preponderance of the evidence. The State simply failed to refute Dr. Zimmermann’s

findings in this area. And, like functional academics, this deficit manifested prior to age

eighteen as evidenced by the standardized test scores in Brown’s academic transcript and

June Gilbreath’s testimony.

¶79. Because the State conceded the subaverage intellectual functioning and malingering

elements, and because Brown proved adaptive functioning deficits in functional academic

skills and communication which manifested prior to age eighteen by a preponderance of the

evidence, I would find that he is intellectually disabled under our Chase standard.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

38