Anthony Carr v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2017-CA-01481-SCT

ANTHONY CARR

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/25/2017
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
BY: ALEXANDER KASSOFF
JAMILA ALEXANDER
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JASON L. DAVIS
LADONNA C. HOLLAND
NATURE OF THE CASE: CIVIL-POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 06/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. The United States Supreme Court has held that the Eighth Amendment to the United

States Constitution prohibits the execution of intellectually disabled persons. On September

20, 2017, the Circuit Court of Quitman County denied Anthony Carr’s petition for post-

conviction relief (“PCR”), finding that Carr did not prove that he was intellectually disabled.

Carr appealed the trial court’s decision. We affirm.
 FACTS AND PROCEDURAL HISTORY

¶2. Anthony Carr was convicted of four counts of capital murder and sentenced to death

for each. Carr v. State, 655 So. 2d 824, 830 (Miss. 1995) (“Carr I ”).1 In Carr I, we

affirmed Carr’s conviction. Id. at 858.

¶3. In 2004, we granted Carr leave to proceed in the circuit court on his PCR claim that

he is intellectually disabled and, thus, ineligible for the death penalty under Atkins v.

Virginia.2 Carr v. State, 873 So. 2d 991 (Miss. 2004) (“Carr II ”). The trial court later

denied Carr’s petition for PCR (the “original order”), and Carr appealed. Carr v. State, 196

So. 3d 926 (Miss. 2016) (“Carr III”).

¶4. In Carr III, we reversed and remanded with directions for the trial court to make “new

factual findings applying the correct legal standard.” Id. at 944. Following the Carr III

decision, the trial court entered a revised order, again denying Carr’s petition for PCR (the

“revised order”). The trial court entered the revised order more than a year after remand. In

the interim, the trial court did not hold an additional hearing, and the parties did not request

one. Carr timely appealed.3

1
The facts surrounding Carr’s underlying offense have been discussed at length
previously by the Court and do not pertain to the issues on appeal.
2
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
3
Carr also filed a motion for reconsideration. Although it does not appear that the
motion for reconsideration was ever ruled on, we conclude that the instant appeal is proper.
Under Rule 6(b) of the Mississippi Rules of Civil Procedure, the time period to file motions
under Rule 52(b) cannot be extended. Miss. R. Civ. P. 6(b), 52(b). Thus, Carr’s motion for
reconsideration was untimely filed, and, with no arguments made by either party on appeal
about it, we conclude that the motion for reconsideration has been abandoned.

2
 STATEMENT OF ISSUES

¶5. On appeal, Carr raises three issues. The State raises four issues. For the sake of

clarity, we restate the issues as follows:

I. Whether the trial court erred by failing to hold a new evidentiary
hearing.

II. Whether the trial court erred in holding that Carr did not prove by a
preponderance of the evidence that he suffers from an intellectual
disability that manifested prior to age eighteen.

STANDARD OF REVIEW

¶6. The standard of review in the instant appeal is mixed. “[W]here questions of law are

raised the applicable standard of review is de novo.” Brown v. State, 731 So. 2d 595, 598

(Miss. 1998) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So. 2d 186, 191 (Miss.

1996)). When addressing whether the trial court and the Court in Carr III applied the correct

legal standard, a de novo standard is applied. On the other hand, the Court “will not reverse

the factual findings of the trial court unless they are clearly erroneous.” Walker v. State, 230

So. 3d 703, 704 (Miss. 2017) (citing Brown v. State, 731 So. 2d 595, 598 (Miss. 1999).

ANALYSIS

I. Whether the trial court erred by failing to hold a new evidentiary
hearing.

¶7. Carr argues that the trial court erred by failing to hold a new evidentiary hearing. In

support of his arguments, Carr presents evidence gathered from a new investigation that he

would like to present in a new evidentiary hearing, including expert evidence from Dr.

William Kallman. Carr maintains that the new evidence does not constitute new arguments.

3
Carr argues that the United States Supreme Court’s decision in Moore v. Texas, 137 S. Ct.

1039, 197 L. Ed. 2d 416 (2017) (“Moore I”), and the Court’s decision in State v. Russell,

238 So. 3d 1105 (Miss. 2017), have “wrought significant changes to Atkins jurisprudence,”

that “[t]he 2013 hearing was conducted under a different regime” and that Carr is therefore

entitled to a new hearing.

¶8. In response, the State argues that Carr waived the issue by not raising it in the trial

court. The State asserts that Carr’s argument is an attempt to relitigate the entirety of his

intellectual-disability claim. Further, the State argues that Carr is procedurally limited to the

issues that were the subject of Carr III’s remand.

¶9. Mississippi Code Section 99-39-21 addresses waiver in PCR proceedings. It reads,

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues
or errors either in fact or law which were capable of determination at trial
and/or on direct appeal, regardless of whether such are based on the laws and
the Constitution of the state of Mississippi or of the United States, shall
constitute a waiver thereof and shall be procedurally barred, but the court may
upon a showing of cause and actual prejudice grant relief from the waiver.

(2) The litigation of a factual issue at trial and on direct appeal of a specific
state or federal legal theory or theories shall constitute a waiver of all other
state or federal legal theories which could have been raised under said factual
issue; and any relief sought under this article upon said facts but upon different
state or federal legal theories shall be procedurally barred absent a showing of
cause and actual prejudice.

(3) The doctrine of res judicata shall apply to all issues, both factual and legal,
decided at trial and on direct appeal.

(4) The term “cause” as used in this section shall be defined and limited to
those cases where the legal foundation upon which the claim for relief is based
could not have been discovered with reasonable diligence at the time of trial
or direct appeal.

4
 (5) The term “actual prejudice” as used in this section shall be defined and
limited to those errors which would have actually adversely affected the
ultimate outcome of the conviction or sentence.

(6) The burden is upon the prisoner to allege in his motion such facts as are
necessary to demonstrate that his claims are not procedurally barred under this
section.

Miss. Code. Ann. § 99-39-21 (Rev. 2015).

¶10. The Court analyzes this issue in three parts.

A. Carr did not request a new hearing and thus waived the issue on
appeal.

¶11. Carr failed to timely request a new hearing in a motion before the trial court after Carr

III. Further, Carr failed to timely raise the need for a new hearing in a motion for

reconsideration after the trial court entered its revised order.4 Therefore, Carr has waived the

issue on appeal under Mississippi Code Section 99-39-21(1). See Miss. Code Ann. § 99-39-

21(1) (Rev. 2015). We next consider whether Carr has shown the requisite “cause” and

“actual prejudice” necessary to overcome the waiver.

B. Carr has not shown “cause” and “actual prejudice” to
overcome the waiver.

¶12. Section 99-39-21(1) requires “a showing of cause and actual prejudice.” Miss. Code

Ann. § 99-39-21(1) (emphasis added). Carr claims that caselaw handed down since the 2013

hearing and original order has significantly changed the landscape of Atkins jurisprudence,

thus requiring a new hearing. We address only the requirement of “actual prejudice,” as it

is dispositive.

4
Again, while Carr did request a new hearing in his motion for reconsideration after
the trial court entered its revised order, the motion for reconsideration was not timely.

5
¶13. Hall v. Florida was decided in May 2014. Hall v. Florida, 572 U.S. 701, 134 S. Ct.

1986, 188 L. Ed. 2d 1007 (2014). In Hall, the United States Supreme Court reevaluated its

Atkins jurisprudence and held that Florida’s bright-line IQ score cutoff “bars consideration

of evidence that must be considered in determining whether a defendant in a capital case has

intellectual disability.” Id. at 723. Hall made clear that an interrelated analysis was required:

“when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin

of error, the defendant must be able to present additional evidence of intellectual disability,

including testimony regarding adaptive deficits.” Id.

¶14. Here, in its revised order, the trial court noted that Carr’s IQ scores—ranging from 70

to 75 —“all fall on or within the margin of error applicable to the test.” The trial court then

analyzed the testimony of multiple experts and witnesses about Carr’s adaptive deficits. In

sum, the trial court conducted an interrelated analysis between Carr’s IQ score and his

adaptive-skill deficits. An interrelated analysis is what Hall requires. Id. Moreover, the trial

court examined and relied on our opinion in Carr III, which discusses Hall at length. Carr

III, 196 So. 3d at 933–35. Thus, the trial court complied with Hall, and Carr is not entitled

to a new hearing.

¶15. Moore I was decided in March 2017. Moore I, 137 S. Ct. at 1039. Moore I examined

the Texas Court of Criminal Appeals’ use of certain factors in its Atkins determinations. Id.

at 1044. The Moore I Court reiterated that “adjudications of intellectual disability should

be ‘informed by the views of medical experts’” and that the factors used by the Texas Court

6
of Criminal Appeals “‘creat[e] an unacceptable risk that persons with intellectual disability

will be executed.’” Id. (alterations in original) (quoting Hall, 572 U.S. at 721, 704).

¶16. Moore I reiterated Atkins and did not alter the Atkins landscape. Carr has failed to

demonstrate predudice under Moore I.5

¶17. The Court decided Russell in December 2017. Russell, 238 So. 3d at 1105. In

Russell, the Court reversed the trial court and held that the State’s request to evaluate Russell

before an Atkins hearing should have been granted. Id. at 1111. The Russell Court noted

that “our Atkins procedures clearly contemplate the State responding to the petitioner’s

evidence with its own expert opinion.” Id. Of particular importance in Russell was that the

State was not denied “a second, duplicate Atkins evaluation,” but “was requesting the Atkins

evaluation.” Id. at 1110 (emphasis in original).

¶18. Here, Carr does not claim that he was denied an Atkins evaluation. Further, Carr was

evaluated by two experts (including Carr’s expert, Dr. Gerald O’Brien), and the trial court

examined the testimony of each expert. Because, unlike in Russell, Carr was evaluated by

his own expert and was able to present testimony, Carr’s reliance on Russell fails to show

actual prejudice.

5
Following the 2017 remand to the Texas Court of Criminal Appeals, the United
States Supreme Court has reviewed and clarified Moore I. Moore v. Texas, 139 S. Ct. 666,
670-72 (2019) (“Moore II”). The Moore I Court had provided that “[c]linicians . . . caution
against reliance on adaptive strengths developed ‘in a controlled setting.’” Moore I, 137 S.
Ct. at 1050 (quoting Diagnostic and Statistical Manual of Mental Disorders 38 (5th ed.
2013)). The Moore II Court has reiterated its warning from Moore I, specifically pointing
out that trial courts should rely on adaptive-skill deficits rather than adaptive-skill strengths.
Moore II, 139 S. Ct. at 670-72. Moore II’s reiteration does not change the analysis here.

7
¶19. On a final note, Carr analogizes the case to Thompson v. State, 208 So. 3d 49 (Fla.

2016). Even though Thompson is not binding precedent, we address it here for the sake of

conclusiveness. In Thompson, the Supreme Court of Florida remanded the case for a new

evidentiary hearing, stating that “Thompson’s previous hearing on intellectual disability was

tainted by the bright-line cutoff of 70 for IQ scores” that was later denounced by Hall. Id.

at 58 (citing Hall, 572 U.S. at 724).

¶20. In Carr III, we recognized the unconstitutionality of the bright-line IQ score cutoff

and remanded for an interrelated analysis between the significantly subaverage intellectual

function and the significant deficits in adaptive behavior. Carr III, 196 So. 3d at 933–34.

In the original order, the trial court considered the second prong and concluded that Carr had

adaptive deficits in two skill areas. However, the trial court then failed to perform an

interrelated analysis between the first and second prong. Carr III’s remand instructions,

therefore, were properly aimed at providing clarification of its findings. Further, in its

revised order, the trial court explicitly noted its adherence to Carr III and at no point

indicated it was employing a strict score cutoff. Thompson is not analogous to the facts at

hand and does not support Carr’s assertion of actual prejudice.

¶21. As stated above, Section 99-39-21(1) requires “a showing of cause and actual

prejudice.” Miss. Code Ann. § 99-39-21(1) (emphasis added). Considering the recent Atkins

decisions, Carr is unable to establish actual prejudice. Without actual prejudice, the Court

need not address cause. Carr, therefore, cannot overcome that he waived a new hearing.

C. Carr III did not require a new evidentiary hearing on remand.

8
¶22. Carr III held that “a legal standard that views a full-scale IQ score as dispositive of

intellectual disability without performing and balancing an interrelated analysis of adaptive

functioning, runs afoul of the Eighth Amendment.” Carr III, 196 So. 3d at 943. Carr III

stated that reversal and remand was necessary

to provide the circuit judge an opportunity to consider whether Carr’s adaptive
functioning deficits—which the circuit judge found to exist—are so severe that
Carr should be ruled intellectually disabled through an interrelated analysis
with his IQ scores, which the circuit judge found to be between 70 and 75.

Carr III, 196 So. 3d at 944 (footnote omitted). Nothing in Carr III mandates a new hearing.

Instead, the Court examined the law, including Hall, and directed the trial court to make new

factual findings after performing the requisite interrelated analysis.

¶23. Carr also argues that the Carr III Court created a new Atkins standard. Carr argues

that, by remanding the case in 2016 “to provide the circuit judge an opportunity to consider

whether Carr’s adaptive functioning deficits—which the circuit judge found to exist—are so

severe that Carr should be ruled intellectually disabled through an interrelated analysis with

his IQ scores,” the Court created a new standard for determining whether a defendant has an

intellectual disability. Id. at 943 (emphasis added).

¶24. In Hall, the United States Supreme Court approvingly cited DSM-5 and quoted the

following language: “[A] person with an IQ score above 70 may have such severe adaptive

behavior problems . . . that the person’s actual functioning is comparable to that of

individuals with a lower IQ score.” Hall, 572 U.S. at 712 (alteration in original) (emphasis

added) (quoting Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013)).

The remand order from Carr III does not conflict with the language cited approvingly in

9
Hall. Further, no material difference exists between Hall’s instruction to determine whether

a defendant has “such severe” adaptive-functioning deficits as to render him or her

intellectually disabled through an interrelated analysis and Carr III’s instruction to determine

whether a defendant’s adaptive-functioning deficits are “so severe” to support a finding of

intellectual disability. Hall and Carr III therefore provide the same or substantially similar

instruction. We see no reason for a new evidentiary hearing at this juncture.

II. Whether the trial court erred in holding that Carr did not prove by
a preponderance of the evidence that he suffers from an intellectual
disability that manifested prior to age eighteen.

¶25. The Court has recognized that Atkins exempts all intellectually disabled people from

execution, even those people who are minimally intellectually disabled. Chase v. State, 873

So. 2d 1013, 1026 (Miss. 2004) (“Chase III”) (citing Atkins, 536 U.S. at 321). The Court

has also recognized that mild intellectual disability “may, under certain conditions, be present

in an individual with an IQ of up to 75.” Chase v. State, 171 So. 3d 463, 471 (Miss. 2015)

(“Chase V”) (quoting Chase III, 873 So. 2d at 1028 n.18). Further, in 2015, following the

Supreme Court’s guidance in Hall and accounting for “the medical community’s evolving

understanding of intellectual disability and its diagnosis,” Chase V adopted “the 2010

[American Association on Intellectual and Developmental Disability (AAIDD)] and 2013

[American Psychiatric Association (APA)] definitions of intellectual disability as appropriate

for use to determine intellectual disability in the courts of this state in addition to the

definitions promulgated in Atkins and Chase.” Chase V, 171 So. 3d at 471; see also Hall,

572 U.S. at 710 (“In determining who qualifies as intellectually disabled, it is proper to

consult the medical community’s opinions.”). In Chase V, we noted that “[t]he new

10
definitions have not materially altered the diagnosis of intellectual disability but have

provided new terminology.” Id. (citing United States v. Williams, 1 F. Supp. 3d 1124, 1146

(D. Haw. 2014)).

¶26. The AAIDD articulates the skills domains as follows:

The conceptual skills domain includes “language; reading and writing; and
money, time, and number concepts.” The social skills domain includes
“interpersonal skills, social responsibility, self-esteem, gullibility, naïveté (i.e.,
wariness), follows rules/obeys laws, avoids being victimized, and social
problem solving.” The practical skills domain includes “activities of daily
living (personal care), occupational skills, use of money, safety, health care,
travel/transportation, schedules/routines, and use of the telephone.”

Chase V, 171 So. 3d at 469 (citations omitted). The APA states,

The conceptual (academic) domain involves competence in memory,
language, reading, writing, math reasoning, acquisition of practical knowledge,
problems solving, and judgment in novel situations, among others. The social
domain involves awareness of others’ thoughts, feelings, and experiences;
empathy; interpersonal communication skills; friendship abilities; and social
judgment, among others. The practical domain involves learning and self-
management across life settings, including personal care, job responsibilities,
money management, recreation, self-management of behavior, and school and
work task organization, among others.

Chase V, 171 So. 3d at 469–70 (quoting Diagnostic and Statistical Manual of Mental

Disorders 37 (5th ed. 2013)). While some differences exist in the standards articulated by

the AAIDD and APA, ‘“the exact wording of the . . . standards ‘makes little substantive

difference in the context of Atkins,’” since all “are similar and require the same three basic

elements . . . significantly subaverage intellectual functioning, significant deficits in adaptive

behavior, and manifestation before age eighteen.” Chase V, 171 So. 3d at 470 (quoting

11
Williams, 1 F. Supp. 3d at 1146). Moreover, Chase V provided specific guidance on

Mississippi’s application of “significant deficits in adaptive behavior.” Id. We stated,

For the diagnosis of intellectual disability, significant limitations in adaptive
behavior should be established through the use of standardized measures
normed on the general population, including people with disabilities and
people without disabilities. On these standardized measures, significant
limitations in adaptive behavior are operationally defined as performance that
is approximately two standard deviations below the mean of either (a) one of
the following three types of adaptive behavior: conceptual, social, or practical
or (b) an overall score on a standardized measure of conceptual, social, and
practical skills. The assessment instrument’s standard error of measurement
must be considered when interpreting the individual’s obtained scores.

Chase V, 171 So. 3d at 486 (quoting Intellectual Disability: Definition, Classification, and

Systems of Support 43 (11th ed. 2010)).

¶27. In Carr III, we followed Chase V’s guidance, reasserting Mississippi’s adoption of

both the definitions from the AAIDD and the APA. Carr III, 196 So. 3d at 933 (citing

Chase V, 171 So. 3d at 471). Further, we recognized that “significant deficits in one of the

three adaptive-functioning domains are required,” which include the conceptual-skills

domain, the social-skills domain, and the practical-skills domain. Id. at 933 (citing Chase

V, 171 So. 3d at 469).

¶28. Here, the trial court reviewed our Carr III decision and restated the correct legal

standard addressing the three prongs of the test. See Carr III, 196 So. 3d at 933. Further, the

trial court correctly noted that “[t]here is some amount of interplay between two of the

criteria: (a) significantly sub-average intellectual function, and (b) significant deficits in

adaptive behavior.” The trial court also noted that “although an individual may possess an

IQ above what is normally considered appropriate for a finding of intellectual disability, the

12
deficits in such an individual’s adaptive behavior might be so severe that a finding [of]

intellectual disability may still be made or even compelled.” We review the trial court’s

analysis of each prong of the Atkins test separately.

1. Significantly subaverage intellectual function

¶29. The trial court analyzed the first prong as follows:

[T]he three IQ tests administered to Carr resulted in IQ determinations of 70,
72, and 75. These scores all fall on or within the margin of error applicable to
the test. They are not so dramatically low or high to be strongly suggestive
either way on the issue of intellectual disability. This is significant because,
“when a defendant’s IQ test score falls within the test’s acknowledged and
inherent margin of error, the defendant must be able to present additional
evidence of intellectual disability . . . .”

The trial court did not make a specific finding as to the existence of significantly subaverage

intellectual functioning at this juncture in its analysis, because doing so was not necessary.

The only factual finding the trial court needed to make—which it did in light of the evidence

presented—was that the “scores all fall on or within the margin of error applicable to the

test.” Having done so, the trial court properly utilized the correct legal standard, and we

cannot say that its findings amounted to clear error. See Hall, 572 U.S. at 723; see also Carr

III, 196 So. 3d at 934.

2. Significant deficits in adaptive behavior

¶30. The trial court correctly described each of the three domains: conceptual, social and

practical and recognized that “[s]ignificant deficits in one of the domains is required.” The

trial court then examined the testimony of three different witnesses to determine whether

Carr exhibited significant deficits in adaptive behavior. Specifically, the trial court reviewed

13
the testimony of Dr. Gilbert Macvaugh, the State’s expert witness, Dr. O’Brien, Carr’s expert

witness and Johnnie Chaney, a childhood associate of Carr’s.

¶31. Discussing adaptive-deficit testing, the trial court stated that, “[a]ccording to Dr.

Macvaugh, such tests were not designed to assess individuals who have been incarcerated

in a heavily structured environment such as exists in jails/prison.” The trial court noted that

“[u]ltimately, Macvaugh agreed that Carr exhibited deficits in the areas of functional

academics, employment, and perhaps social.” The trial court also considered the testimoney

of Carr’s expert stating, “Dr. O’Brien found deficits in all three domains and in 8 of the 10

adaptive skills” and explicitly “addressed the areas of communication, self-direction, leisure,

social, community use and work and found deficits in all such areas.” Further, the trial court

noted Johnnie Chaney’s testimony but found it to be a “mixed bag,” ultimately determining

that “the issue came down more to the testimony and credibility of the experts.” It then

found that Carr had not shown significant adaptive-skill deficits.

¶32. Carr argues that the trial court’s original order held that Carr had at least two of the

adaptive-functioning deficits. Carr also argues that the “so severe” language has changed

the standard to require “super deficits” in adaptive functioning. We disagree.

¶33. First, as concluded above, Carr III’s “so severe” language does not create a new

standard requiring “super deficits.” See Hall, 572 U.S. at 712 (alteration in original) (“[A]

person with an IQ score above 70 may have such severe adaptive behavior problems . . . that

the person’s actual functioning is comparable to that of individuals with a lower IQ score.”

(quoting Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013))).

14
¶34. Second, while the trial court did originally find that “Carr has demonstrated adaptive

skill deficits in at least two (2) of the adaptive skill areas,” the trial court did not find

significant adaptive-skill deficits. Under Chase V, adaptive-skill deficits require a showing

of “significant limitations in adaptive behavior” that “should be established through the use

of standardized measures normed on the general population, including people with

disabilities and people without disabilities.” Chase V, 171 So. 3d at 486 (quoting Intellectual

Disability: Definition, Classification, and Systems of Support 43 (11th ed. 2010)).

Specifically, Chase V provided that the “significant limitations in adaptive behavior are

operationally defined as performance that is approximately two standard deviations below

the mean . . . .” Id. (quoting Intellectual Disability: Definition, Classification, and Systems

of Support 43 (11th ed. 2010)).6

¶35. The Chase V Court also considered that none of the experts had performed the

adaptive-deficits analysis properly, noting that Dr. Macvaugh, who was one of the experts,

had written an article on the importance of using normed data. Id. (citing Macvaugh, G.S.,

& Cunningham, M.D., Atkins v. Virginia: Implications and Recommendations for Forensic

Practice, 37 J. of Psychiatry & the Law 131, 168 (2009)). The Chase V Court concluded that

because the burden rested on Chase, the trial court’s finding that Chase had failed to prove

intellectual disability did not constitute clear error. Chase V, 171 So. 3d at 486. Carr III did

6
The Moore II decision also described the clinical approach to determining the
significance of adaptive deficits: “clinicians look to whether an individual’s adaptive
performance falls two or more standard deviations below the mean in any of the three
adaptive skill sets (conceptual, social, and practical).” Moore II, 139 S. Ct. at 668 (quoting
Moore I, 137 S. Ct. at 1046).

15
not review Chase V’s emphasis on normed data. However, in requiring the trial court “to

consider whether Carr’s adaptive functioning deficits—which the circuit judge found to

exist—are so severe that Carr should be ruled intellectually disabled through an interrelated

analysis with his IQ scores, which the circuit judge found to be between 70 and 75,” Carr

III supported Chase V’s requirement. Carr III, 196 So. 3d at 943-44 (footnote omitted).

¶36. In sum, the trial court did as Carr III instructed. In weighing the testimony, the trial

court considered Carr’s adaptive deficits in an interrelated analysis with Carr’s IQ scores and

concluded that the deficits were not significant in nature. Further, because no expert

employed the use of normed data, we conclude, as we did in Chase V, that the trial court’s

rejecting Dr. O’Brien’s testimony and finding that Carr had not proved intellectual disability

by preponderance of the evidence was not clear error.

3. Manifestation before age 18

¶37. Carr argues that the trial court has still failed to issue a finding on the third prong.

Under the trial court’s revised analysis and findings on the second prong, analysis on the

third prong was not required. Hall, 572 U.S. at 723. However, the trial court did properly

analyze the third prong. Therefore, we disagree.

¶38. In Carr III, we stated, “Because the circuit judge found that adaptive functioning

deficits existed based on evidence which largely focused on Carr’s academic performance

before age eighteen, we instruct the trial court to review its findings on this prong upon

remand.” Carr III, 196 So. 3d at 943 n.10. The trial court considered the credibility of the

witnesses, their testimony and the evidence regarding Carr’s schooling and determined that

16
“Carr failed to show by a preponderance of the evidence that he was suffering from an

intellectual disability that had manifested itself prior to the age of 18.”

¶39. Just as Carr III directed, the trial court considered and weighed all of the evidence

presented and made a reasoned finding that Carr had failed to meet his burden. Specifically,

the trial court did not ignore any of the testimony but weighed it. See Brown v. State, 168 So.

3d 884, 894 (Miss. 2015) (distinguishing between a trial judge’s weighing testimony and his

not ignoring it). Thus, because we “give deference to the trial judge as the ultimate finder

of fact,” we do “not reweigh the evidence on appeal,” and we conclude that no clear error

exists. Id.

CONCLUSION

¶40. Carr’s argument for a new hearing is waived on appeal and, notwithstanding the

waiver, is without merit. Further, the trial court’s rejecting Dr. O’Brien’s testimony and

finding that Carr had not proved intellectual disability by preponderance of the evidence was

not clear error. Finally, the trial court properly revisited the third prong of the Atkins test as

required by the remand order in Carr III. Therefore, we affirm the decision of the trial court

holding that Carr is not intellectually disabled.

¶41. AFFIRMED.

RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM AND GRIFFIS, JJ.,
CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS, P.J., AND ISHEE, J.

KING, PRESIDING JUSTICE, DISSENTING:

¶42. Considering the totality of the evidence presented, I would hold that the trial court

clearly erred in its finding that Carr failed to prove by a preponderance of the evidence that

17
he was intellectually disabled within the parameters of Atkins v. Virginia, 536 U.S. 304, 122

S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Accordingly, I dissent from the majority’s affirmance

of the trial court’s decision and would reverse the trial court’s ruling and render judgment

in favor of Carr.

¶43. The United States Supreme Court, in Atkins, concluded that, construing the Eighth

Amendment “in the light of our ‘evolving standards of decency,’” the capital punishment

of intellectually disabled offenders is unconstitutional and constitutes cruel and unusual

punishment. Id. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L.

Ed. 2d 335 (1986)). As the majority states, the Atkins decision exempts even those who are

minimally intellectually disabled from execution. Chase v. State, 171 So. 3d 463, 467 (Miss.

2015) (Chase V) (emphasis added) (quoting Chase v. State, 873 So. 2d 1013, 1026 (Miss.

2004) (Chase III)). Intellectual Disability is “characterized by significant limitations in both

intellectual functioning and in adaptive behavior as expressed in conceptual, social, and

practical adaptive skills.” Chase V, 171 So. 3d at 469 (quoting Intellectual Disability:

Definition, Classification, and Systems of Support 1 (11th ed. 2010)).

¶44. At the conclusion of an Atkins hearing, the trial court must determine “whether the

defendant has established, by a preponderance of the evidence, that the defendant” is

intellectually disabled. Chase III, 873 So. 2d at 1029. “Preponderance of the evidence in

Mississippi, as elsewhere, simply means that evidence which shows that the fact to be proved

is more probable than not.” Gardner v. Wilkinson, 643 F.2d 1135, 1137 (5th Cir. 1981).

“This burden simply requires the greater or more convincing evidence. The burden is far less

than clear and convincing evidence or beyond a reasonable doubt.” City of Meridian v.

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Hodge, 632 So. 2d 1309, 1314 (Miss. 1994) (Smith, J., dissenting). Due to the irreversible

nature of capital punishment, “[t]horoughness and intensity of review are heightened in cases

where the death penalty has been imposed.” Irving v. State, 361 So. 2d 1360, 1363 (Miss.

1978) (citing Augustine v. State, 201 Miss. 731, 29 So. 2d 454, 454 (1947)).

I. Intellectual Functioning

¶45. Subaverage intellectual functioning is measured by intelligence quotient (IQ). Chase

III, 873 So. 2d at 1021. “[I]ntellectual disability ‘may . . . be present in an individual with

an IQ of up to 75.’” Chase V, 171 So. 3d at 468 (quoting Chase III, 873 So. 2d at 1028

n.18). Here, Carr established that his IQ scores fell within the range that can indicate

intellectual disability. Dr. William Kallman first evaluated Carr for intellectual disability in

1990, when Carr was twenty-five years old. Dr. Kallman found that Carr had a performance

IQ of 63 and a verbal IQ of 72, for a Full Scale IQ of 70. Dr. Kallman stated that Carr’s score

was in the mildly intellectually disabled range on the Wechsler Adult Intelligence

Scale–Revised (WAIS-R). Dr. Kallman concluded that Carr was functioning in the mildly

intellectually disabled range in intelligence and that Carr’s “performance on the IQ test and

the neuropsychological screening instruments are all indicative of someone who is

functioning at a relatively low level cognitively.” He found that “there were no signs of

malingering or intentional efforts to distort the data” and stated that Carr’s deficits were

spread across all areas and were nonspecific.

¶46. The Forensic Unit at Mississippi State Hospital (MSH) evaluated Carr in 2009, when

he was forty-four years old, and administered two IQ tests. The MSH report, signed by Dr.

Gilbert S. Macvaugh III, stated that Carr achieved a Full Scale IQ of 72 on the WAIS-IV. On

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the Stanford-Binet Intelligence Scales, Fifth Edition (SB5), Carr scored a Full Scale IQ of

75. Like Dr. Kallman, the MSH report found that Carr did not appear to be malingering

cognitive deficits. Dr. Macvaugh also stated that Carr’s IQ scores would have been even

lower had they been adjusted downward due to the Flynn Effect. The Flynn Effect “is a

phenomenon positing that, over time, standardized IQ test scores tend to increase with the

age of the test without a corresponding increase in actual intelligence in the general

population.” Thorson v. State, 76 So. 3d 667, 672 (Miss. 2011) (quoting Wiley v. Epps, 625

F.3d 199, 203 n.1 (5th Cir. 2010)). The MSH report concluded that Carr’s test scores did not

rule out the possibility of a diagnosis of mild intellectual disability. In addition, Dr. Gerald

O’Brien, a licensed psychologist, issued a report on April 6, 2012, in which he stated, with

a reasonable degree of certainty, that Carr met the intellectual-functioning prong of

intellectual disability.

¶47. Each of Carr’s IQ scores fell within the range that can indicate intellectual disability.

Because Carr proved by a preponderance of the evidence that his IQ was 75 or below, the

trial court must address the second Atkins prong—significant deficits in adaptive

functioning. Thorson, 76 So. 3d at 683.

II. Significant Limitations in Adaptive Behavior

¶48. The American Association on Intellectual and Developmental Disability (AAIDD)

defines each domain of adaptive functioning. The conceptual skills domain
includes “language; reading and writing; and money, time, and number
concepts.” The social skills domain includes “interpersonal skills, social
responsibility, self-esteem, gullibility, naïveté (i.e., wariness), follows
rules/obeys laws, avoids being victimized, and social problem solving.” The
practical skills domain includes “activities of daily living (personal care),
occupational skills, use of money, safety, health care, travel/transportation,

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 schedules/routines, and use of the telephone.” For a diagnosis of intellectual
disability, an individual must have significant deficits in one of the three
adaptive functioning domains.

Chase V, 171 So. 3d at 469 (citations omitted). I believe that Carr presented overwhelming

evidence that he had significant deficits in several domains of adaptive functioning.

¶49. Dr. O’Brien concluded that Carr was considered to be intellectually disabled

consistent with both Atkins and Chase. Dr. O’Brien found that Carr’s reports indicated

“significant deficits in all three adaptive types or domains defined by the AAIDD, and in

eight of the ten included skill areas. . . .” (Emphasis added.) Dr. O’Brien stated that Carr’s

deficits were “in the conceptual domain (including communication, functional academics,

and self-direction), the social domain (including leisure and social skills), and the practical

domain (including home living, health and safety, and self-care).” In addition, the MSH

report stated that Carr may have demonstrated significant limitations in at least two areas of

adaptive behavior before the age of eighteen, functional academics and work.

¶50. In the conceptual domain of adaptive deficits, competence in reading, writing, and

math reasoning become probative. Dr. Victoria Swanson, a licensed psychologist, evaluated

Carr in 2010, when Carr was forty-four years old. Even at age forty-four, Dr. Swanson found

that Carr was operating on a mostly fourth-grade level. Carr scored at a fourth-grade level

on Brief Achievement, Brief Reading, Brief Math, and Academic Skills. Carr’s highest score

was in Broad Reading and was at only a fifth-grade level.

¶51. Dr. Kallman testified that Carr’s IQ and achievement testing indicated that he

doesn’t have very good cognitive skills, he doesn’t understand a whole lot of
what goes on around him, he doesn’t have a lot of basic living skills, such as
simply arithmetic and reading abilities, and . . . Well, this person would have

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 great difficulty functioning independently in the world unless it was a fairly
simple task that did not require a lot of intellectual understanding and activity.

¶52. Carr’s school records also indicate significant deficits in functional academics. Carr

failed the third, seventh, and ninth grades and dropped out of school at age seventeen after

his second attempt at ninth grade. In addition, his grades were poor throughout the whole of

his school years. As the MSH report stated, Carr’s grades as a whole ranged “from failing

to barely passing in most subjects. . . .” In the fifth grade, Carr’s standardized testing scores

mostly were at the second-grade academic level. On standard achievement tests administered

in the eighth grade, Carr obtained national percentile rankings which ranged from the first

percentile to the thirty-sixth percentile. Carr’s reading standard score in the eighth grade was

in the .8 percentile, meaning that more than 99 percent of students taking the test scored

higher in reading than Carr. Similarly, in math over 99 percent of students ranked higher than

Carr, and 99 percent of students scored higher in spelling than Carr. Thus even Carr’s best

standardized test score was lower than 64 percent of the students who took the test. Carr’s

national percentile was ten, which meant that 90 percent of students taking the test scored

higher than Carr.

¶53. The MSH report concluded that Carr probably demonstrated adaptive-behavior

deficits in the area of functional academics prior to the age of eighteen. Dr. Macvaugh found

probative that Carr had failed the third, seventh, and ninth grades. In addition, it noted that

Carr’s grades had been “quite poor, ranging from failing to barely passing in most subjects

throughout his school years.” However, Dr. Macvaugh was concerned with Carr’s absences

from school. Although the trial court also was concerned about Carr’s poor attendance, even

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when Carr repeated grades, he continually maintained poor marks in school. In addition,

Carr’s IQ scores continually have remained around the same significantly low level.

¶54. Carr also presented sufficient evidence to show significant deficits in the social-skills

domain. Dr. Kallman’s report stated that Carr’s personalty assessment suggested that he was

a “severely disturbed individual who has been in a state of extreme emotional turmoil for

most of his life.” He additionally reported that Carr’s profile was “consistent with others who

are labelled [sic] ‘dangerous psychotics.’” Although the MSH report took issue with Dr.

Kallman’s suggestion that Carr may have been exaggerating symptoms of mental illness, Dr.

Kallman repeatedly stated in his report that the evaluation was a valid indicator of Carr’s

current state of cognitive and emotional functioning. Dr. Kallman additionally stated that

“[t]here were no signs of malingering or intentional efforts to distort the data.”

¶55. Carr additionally presented testimony from Johnie Chaney, a childhood acquaintance

of Carr’s. Chaney testified that when Carr was approximately fifteen or sixteen, Chaney

would have to help him “keep his clothes right on him.” Chaney testified that he would have

to tell Carr to tie his shoes and to clean up when he had “an odor.” Dr. O’Brien testified that

Chaney’s testimony was consistent with his own opinions regarding Carr’s deficits. The trial

court found probative the portion of Chaney’s testimony in which he stated that Carr had

played softball with other young people. And Chaney did state that Carr could play softball

in the outfield, however, he additionally stated that he had to tell Carr to run and catch the

ball. Chaney also testified that Carr got along with everybody only when they were not trying

to take advantage of him or trying to make him do crazy things. Therefore, I disagree with

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the trial court’s contention that Chaney’s testimony was not helpful and would find that

Chaney’s testimony showed additional deficits in Carr’s social and practical skills.

¶56. Dr. Macvaugh stated that Carr also may have demonstrated significant limitations

relating to work. He stated that he did not have access to information to confirm the validity

of Carr’s work experience and that it was unclear whether he experienced difficulty relating

to work. However, Carr clearly could not hold a steady job. Before the age of twenty-five,

Carr’s various positions included chopping cotton, working as a janitor, working at a tire

shop performing tire rotations, reading meters with the water department, working on boat

motors, and working at service stations and clubs. Dr. Macvaugh’s lack of access to

information from Carr’s former employers did not cancel out Carr’s broken work history,

which Dr. Kallman also noted.

¶57. Considering the totality of the evidence presented, I would find that the trial court

erred in its ruling that Carr failed to prove by a preponderance of the evidence that he

suffered from significant adaptive deficits.

III. Prior to Age Eighteen

¶58. Lastly, Carr presented sufficient evidence that his adaptive deficits did in fact manifest

prior to age eighteen. On remand, the trial court wrote that “there is no evidence that Carr

was administered an IQ test prior to age 18.” In addition, the MSH report stated that,

[i]n summary, Mr. Carr does, in our opinion, have intellectual limitations and
may very well have met the diagnostic criteria for [intellectual disability]
before the age of 18. However, we cannot be certain of this because he never
received intelligence testing or a standardized assessment of his adaptive
functioning before age 18.

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Yet Carr must not be penalized because he was not given an IQ test before his eighteenth

birthday. As Dr. O’Brien stated, “there’s almost never an IQ test in a case like this before the

age of 18. . . . But we do have what you might call collateral information about his academic

functioning which is strongly suggestive of an IQ score in the range we’re talking about.”

Thus, while Carr was not given a formal IQ test before he turned eighteen, he presented clear

evidence indicating his IQ and adaptive deficits prior to age eighteen—testimony from family

and friends and his school grades.

¶59. Dr. O’Brien reported that he definitively found that Carr’s deficits existed prior to age

eighteen. Dr. O’Brien testified that, at about the third-grade level, Carr started reaching the

end of his academic potential. Carr “reached the limit at which he could no longer keep up

with the average student in that school. . . .” Dr. O’Brien additionally found that Carr was not

considered to have been deceptive or malingering during any ability testing. Carr’s IQ scores

after he turned eighteen also present evidence of his intellectual functioning prior to his

turning eighteen. See Rivera v. Quarterman, 505 F.3d 349, 363 (5th Cir. 2007) (“And,

although Rivera did not take the WAIS-III test prior to age 18, the district court found that

the combination of his score of 68, other evidence of Rivera’s intellectual functioning, and

his performance in school ‘establish that Rivera had significantly subaverage intellectual

functioning prior to the age of 18.’”). Seven years after Carr turned eighteen, Dr. Kallman

established that Carr had an IQ score of 70.

¶60. Chaney testified that when Carr was approximately fifteen to sixteen, he had to tell

Carr when to tie his shoes and when he had an odor. Carr’s sister, Annette Carr, stated that

Carr was slow growing up and that he never lived independently. Carr’s sister, Sarah Carr

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Jefferson, also thought that Carr was slow and had mental-health problems. Sarah stated that

Carr would sometimes talk to dogs and that the dogs talked to him when he was young.

Carr’s former school teacher stated that she taught Carr in the fifth and sixth grades and that

Carr was a slow learner and a poor student. She attributed this to his home environment and

his attitude.

¶61. In addition, in its opinion remanding this case to the circuit court, this Court stated that

the trial court had found “that adaptive functioning deficits existed based on evidence which

largely focused on Carr’s academic performance before age eighteen . . . .” Carr III, 196

So. 3d at 943 n.10 (emphasis added). This Court then instructed the trial court to review its

findings on whether Carr’s adaptive functioning deficits existed prior to age eighteen. Id.

Thus, this Court’s own language on remand strongly indicated that Carr had in fact shown

adaptive-functioning deficits before he turned eighteen.

IV. Summary

¶62. As previously stated, Atkins prohibits the death penalty for those who are even

minimally intellectually disabled. The standard in this case was the preponderance of the

evidence. A preponderance of the evidence does not require proof beyond doubt nor does it

require even convincing proof. Producers Gin Ass’n v. Beck, 215 Miss. 263, 60 So. 2d 642,

644 (1952). A preponderance of the evidence means exactly that—the greater weight of the

evidence.

¶63. Carr presented a report and testimony from Dr. O’Brien, who found to a reasonable

degree of psychological certainty that Carr was intellectually disabled. In addition, Dr.

Kallman also found that Carr was functioning in the mildly intellectually disabled range. Carr

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presented evidence of Dr. Swanson’s testing that indicated Carr was functioning on a mostly

fourth-grade level, which was corroborated by Carr’s school records. And although Dr.

Macvaugh concluded that overall he was “unable to form an opinion to a reasonable degree

of psychological and psychiatric certainty regarding whether or not Mr. Carr is [intellectually

disabled] as defined by” Atkins and Chase, even he agreed that Carr may have demonstrated

significant limitations in at least two areas of adaptive behavior before the age of eighteen.

¶64. This is not even a case of opposing experts. The evidence showed that one expert

stated Carr could be intellectually disabled but that he was not certain. Yet Carr presented

evidence from two experts stating that he was intellectually disabled, presented school

records that showed significant academic deficits, presented testimony indicating that Carr

had to be told when to tie his shoes and when to bathe, and presented IQ tests showing

significant intellectual deficits. Because the death penalty is final and cannot be reversed, all

doubts are to be resolved in favor of the accused. Lynch v. State, 951 So. 2d 549, 555 (Miss.

2007). Resolving all doubts in favor of Carr, clearly the greater weight of the evidence

showed that Carr was intellectually disabled within the meaning of Atkins. I would find that

the trial court erred in its finding that Carr failed to prove his intellectual disability claim by

a preponderance of the evidence.

¶65. Carr established that his IQ scores each fell within the margin of error applicable to

the test, that he had significant adaptive deficits in more than one area, and that those deficits

manifested before the age of eighteen. Accordingly, I would reverse the trial court’s ruling

on intellectual disability and would render judgment in favor of Carr.

KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION.

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