IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-01818-SCT
TERRY PITCHFORD
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/13/2015
TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.
TRIAL COURT ATTORNEYS: RAYMOND M. BAUM
RAY CHARLES CARTER
DOUG EVANS
ALISON R. STEINER
GLENN S. SWARTZFAGER
SCOTT A. C. JOHNSON
CAMERON LEIGH BENTON
JASON L. DAVIS
MARVIN L. WHITE, JR.
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: JAMILA ALEXANDER VIRGIL
LOUWLYNN VANZETTA WILLIAMS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CAMERON LEIGH BENTON
JASON L. DAVIS
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: POST-CONVICTION RELIEF DENIED -
10/19/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BEAM, JUSTICE, FOR THE COURT:
¶1. Terry Pitchford was convicted of capital murder in February 2006 in the Grenada
County Circuit Court and sentenced to death. This Court affirmed his conviction and
sentence on direct appeal. See Pitchford v. State, 45 So. 3d 216 (Miss. 2010). Pitchford
thereafter filed a motion for leave to proceed in the trial court with a petition for post-
conviction relief (PCR), arguing inter alia he had not received a competency hearing in
violation of Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. This
Court granted Pitchford’s motion in part and ordered the trial court to conduct a retrospective
competency hearing.
¶2. Before the hearing was conducted, a plurality of this Court held that retrospective
competency hearings do not satisfy the purpose of Rule 9.06. See Coleman v. State, 127 So.
3d 161 (Miss. 2013). Despite this ruling, Pitchford’s retrospective competency hearing took
place in May 2015. The trial court found that Pitchford was competent to stand trial in
February 2006 and denied Pitchford’s PCR motion.
¶3. Pitchford appeals that judgment, claiming the retrospective competency hearing was
(1) an inadequate remedy for purposes of Rule 9.06, and (2) the State’s experts did not apply
the proper standard for competency to stand trial.
¶4. Finding no merit in Pitchford’s claims, we affirm the judgment of the trial court
denying Pitchford’s PCR petition based on the trial court’s finding that Pitchford was
competent to stand trial in February 2006.
FACTS AND PROCEDURAL HISTORY
2
¶5. On the morning of November 7, 2004, Walter Davis and his son entered the
Crossroads Grocery store in Grenada County, Mississippi, where they discovered the lifeless
body of Reuben Britt. Davis contacted authorities, and investigators with the Grenada
County Sheriff’s Department responded to the scene. The investigation concluded Britt had
been shot with two different types of firearms. Investigators also found missing from the
store a cash register, cash, and a .38 caliber revolver belonging to Britt.
¶6. Investigators received information that a vehicle owned by Pitchford matched the
description of the vehicle used by Britt’s assailants, and that Pitchford had been part of a
previous robbery attempt at the store, days prior to Britt’s killing. Based on this information,
investigators went to Pitchford’s residence, where they found a car matching the description
they had received from sources.
¶7. Shirley Jackson, Pitchford’s mother, gave officials permission to search the car. The
search produced Britt’s .38 caliber revolver.
¶8. Pitchford later confessed that he and Eric Bullins had gone to the store to rob it.
Pitchford said Bullins had shot Britt three times, and that he (Pitchford) had fired shots into
the floor. Pitchford also told investigators that he had attempted to rob the store a week prior
to Britt’s killing.
¶9. Pitchford was indicted in January 2005 for capital murder. In February 2005, counsel
appointed to represent Pitchford filed a motion stating that “defendant would show that he
has a history of mental problems and that this [c]ourt should appoint a . . . psychologist or
psychiatrist for the purpose of conducting a thorough mental examination.” The motion also
3
stated that the defendant “intends to offer expert witness testimony in the field of psychiatry,
on the issue of the defendant’s competence to stand trial, and insanity at the time of the
alleged offense. The defendant requests this [c]ourt appoint a competent psychiatrist to
assist him in the defense of this matter.” Pursuant to that motion and to agreement by the
parties, the trial court ordered that Pitchford be evaluated at the Mississippi State Hospital
to determine if he was competent to stand trial.
¶10. Pitchford was evaluated and tested by doctors at the state hospital on January 11 and
25, 2006. The doctors (Reb McMichael, Criss Lott, and Gilbert Macvaugh) determined that
Pitchford was competent to stand trial. They noted that testing and observation indicated
Pitchford was attempting to malinger symptoms of mental illness. They unanimously
concluded that Pitchford “has the sufficient present ability to consult with an attorney with
a reasonable degree of rational understanding in the preparation of his defense, and that he
has a rational as well as factual understanding of the nature and object of the legal
proceedings against him.”
¶11. No formal competency hearing was held. The trial court, however, held a motions
hearing on February 2, 2006, during which the court considered a motion to continue filed
by the defense that same day. As part of that motion, defense counsel argued that a
continuance was needed to seek an independent mental evaluation. Defense counsel claimed
more time was needed to gather mitigating evidence with the assistance of a defense expert.
Defense counsel told the court he had consulted with an expert and had reason to believe that
4
further testing might reveal a neurological defect that could be helpful mitigation evidence
at trial.
¶12. After hearing argument from both parties and having reviewed the written report from
the court-appointed experts, the trial court denied the defense’s request for continuance. The
trial court found that doctors from the state hospital had written a very thorough analysis and
had conducted all the evaluations that were necessary. They came up with nothing that
would indicate that Pitchford has “any neurological problems, any psychological problems,
any low I.Q., [or] anything that would justify another person coming in and evaluating Mr.
Pitchford.”
¶13. The case proceeded to trial on February 6, 2006. A jury found Pitchford guilty of
capital murder and imposed a sentence of death. This Court affirmed Pitchford’s conviction
and death sentence on direct appeal. Pitchford, 45 So. 3d 216.
¶14. Pitchford thereafter sought leave from this Court to proceed in the trial court with a
PCR petition. Pitchford raised a number of claims, including the claim that he was denied
a competency hearing prior to his trial for capital murder. This Court denied all claims
except Pitchford’s claim pertaining to a competency hearing. This Court ordered that the
matter be remanded to the trial court for a hearing on whether Pitchford was competent to
stand trial at the time the criminal trial took place in February 2006.
¶15. The hearing was held on May 11 and 12, 2015. Pitchford called five witnesses on his
behalf: Joseph Cornish (an inmate housed with Pitchford prior to trial in the Grenada County
jail); Jonamath Thompson (an inmate also housed with Pitchford prior to trial); Shirley
5
Jackson (Pitchford’s mother); Dominique Hogan (Pitchford’s former girlfriend and the
mother of Pitchford’s only child); and Dr. Rahn Bailey (a psychiatrist who had evaluated
Pitchford on February 4, 2006, just days prior to Pitchford’s criminal trial). For the State,
Drs. McMichael and Macvaugh testified.
¶16. At the conclusion of the hearing, the trial court issued a bench ruling, followed by a
written order, finding that Pitchford was competent to stand trial in February 2006.
¶17. The trial court specifically found “of no consequence” Cornish’s or Thompson’s
testimony. The trial court found their statements that Pitchford occasionally talked to himself
or appeared at times to be depressed while in jail prior to trial to be of no import. The trial
court added, however, that even if their testimony was true, it “offers nothing that would
suggest that Pitchford was not competent to stand trial.”
¶18. The trial court noted that Jackson testified that Pitchford had claimed to have heard
voices in his head as a child, and would occasionally “slap himself upside the head,” and that
he may have attempted suicide when he was fifteen or sixteen years of age. But Jackson also
testified that she did not take this claimed behavior seriously at the time. The court stated,
“her corresponding inaction confirms that she didn’t find these alleged incidents of such a
nature that she believed her son needed medical attention.”
¶19. The trial court noted that Hogan had testified she one time HAD heard Pitchford
talking to himself while in the shower and another time when he appeared to be “air boxing.”
But the court found that nothing to which Hogan testified offered any insight into Pitchford’s
competence to stand trial.
6
¶20. As to the respective expert witnesses, the trial court found the State’s expert witnesses
more credible than the defense’s expert witness. According to the court, Dr. Bailey’s report
and testimony was “long on conclusions and very short on facts to support his conclusions.”
Dr. Bailey’s “signed and unsigned reports contradicted each other, and portions of the reports
contradicted other portions of the reports.” Dr. Bailey’s testimony “was also very
contradictory,” and “there was not a foundational basis for much of his testimony,” and the
court found most of it “lacking in credibility and believability.”
¶21. The trial court also noted that Pitchford was represented at trial by one of the leading
capital defense lawyers in the state, “if not the entire Southeastern portion of this country,
that being Ray Charles Carter[,]” who was assisted by Ray Baum, “a long-time criminal
defense attorney.” At no time did defense counsel ever indicate to the court they were having
trouble communicating with Pitchford. The court also found it “telling” that neither Carter
nor Baum was called by Pitchford to testify at the retrospective competency hearing.
¶22. The trial court took into consideration the transcript from Pitchford’s guilty-plea
hearing, held in January 2006, less than a month prior to Pitchford’s criminal trial. Pitchford
had petitioned the trial court to enter a guilty plea. But after extensive colloquy with the
court, Pitchford withdrew his guilty plea and elected to go to trial. The court found the
transcript of that proceeding “shows an individual that understood the legal process and was
in full command of his mental faculties.” Pitchford’s defense attorney, Carter, also had
signed an attorney’s acknowledgment form that indicated he was satisfied that Pitchford had
the mental capacity to enter a valid guilty plea at the time.
7
¶23. Based on the evidence before it, the trial court found that Pitchford had failed to prove
by a preponderance of the evidence that he was not competent to stand trial in February 2006.
The court denied Pitchford’s PCR claim.
¶24. This appeal followed. Additional facts and procedural history will be related as
necessary throughout our discussion.
DISCUSSION
¶25. We address together Pitchford’s claim that the retrospective competency hearing was
an inadequate remedy for purposes of Rule 9.06, and that the State’s experts did not apply
the proper standard for competency to stand trial.
¶26. Relying on this Court’s decision in Coleman, 127 So. 3d 161, Pitchford contends his
capital-murder conviction should be reversed because the retrospective competency hearing
failed to satisfy the purposes of Rule 9.06, which Coleman held does not contemplate
retrospective competency hearings. Pitchford argues that the inadequacies of such hearings
led this Court to criticize and reject them in Coleman. Pitchford contends the same
inadequacies recognized in Coleman permeated his May 2015 retrospective competency
hearing.
¶27. The State argues that Pitchford’s claim is self-defeating based on the plain language
found in Coleman, which expressly noted Pitchford’s case and distinguished it by stating:
Finally, we note that the facts and circumstances presented in Pitchford
were significantly different than those before us in the present case. In
Pitchford, the trial court held a hearing, but defense counsel was not given
notice that mental competency to stand trial was to be determined at that time.
Pitchford, 2010-DR-01032-SCT (Order of February 14, 2013). Here, the trial
court outright denied Coleman a hearing and determined that he somehow had
8
waived his right to a competency hearing, despite repeated requests for such
a proceeding both before and during trial. In Pitchford, the defendant’s
competence to stand trial was determined based on a written report from the
Mississippi State Hospital; but here, the trial court based its determination of
Coleman’s competence to stand trial on a four-page summary report.
Pitchford, 2010–DR–01032–SCT. We found that, under the facts in
Pitchford, where the trial court held a mental competency hearing but did not
give notice to defense counsel, a retrospective mental competency hearing was
sufficient to guard the defendant’s due process rights. Id. On the other hand,
under the facts in this case, when the trial court simply denied the defendant
a hearing, we find that a retrospective mental competency determination does
not adequately protect Coleman’s due process rights.
Coleman, 127 So. 3d at 167-68.
¶28. The State further contends that Pitchford repeatedly attacks issues that arose prior to
his criminal trial in February 2006–issues that should have been raised on direct appeal, such
as lack of notice with regard to his competency hearing prior to trial, lack of opportunity to
present witnesses and other evidence, and allegations that the trial court’s pretrial
competency determination was erroneous. The State submits these claims are procedurally
barred and/or were nonetheless cured by the May 2015 retrospective competency hearing.
¶29. For reasons to be explained, we overrule Coleman and those cases in agreement with
it that a retrospective competency hearing does not adequately protect a defendant’s due
process rights. The great of weight of authority holds that such a hearing does not violate a
defendant’s due process rights when the facts of the case allow for it.
Legal Competence
¶30. It is a violation of due process to try or convict a criminal defendant who is legally
incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).
This prohibition is fundamental to our adversarial system of justice, and such circumstance
9
denies a defendant’s right to a fair trial. Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896,
43 L. Ed. 2d 103 (1975); Pate, 383 U.S. at 385, 86 S. Ct. 836.
¶31. The standard for competency to stand trial is whether the defendant has “sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding,”
and “has a rational as well as a factual understanding of the proceedings against him.”
Gammage v. State, 510 So. 2d 802, 803 (Miss. 1987) (citing Dusky v. United States, 362
U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curium)). Although a defendant may
be competent at the commencement of trial, “a trial court must always be alert to
circumstances [throughout trial] suggesting a change that would render the accused unable
to meet the standards of competence to stand trial.” Drope, 420 U.S. at 181.
¶32. The law, however, presumes a criminal defendant competent to stand trial. Evans
v. State, ___So. 3d ____, 2017 WL 2592415, *4 (Miss. June 15, 2017). And the defendant
bears the burden to prove “by substantial evidence that [he or she] is mentally incompetent
to stand trial.” Evans v. State, 725 So. 2d 613, 660 (Miss. 1997) (quoting Medina v.
California, 505 U.S. 437, 448, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992)).
Rule 9.06
¶33. At the time of Pitchford’s criminal trial, Rule 9.06 applied. It provides:
If before or during trial the court, of its own motion or upon motion of an
attorney, has reasonable ground to believe that the defendant is incompetent
to stand trial, the court shall order the defendant to submit to a mental
examination by some competent psychiatrist selected by the court in
accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the
defendant is competent to stand trial. After hearing all the evidence, the court
10
shall weigh the evidence and make a determination of whether the defendant
is competent to stand trial. If the court finds that the defendant is competent to
stand trial, then the court shall make the finding a matter of record and the case
will then proceed to trial. If the court finds that the defendant is incompetent
to stand trial, then the court shall commit the defendant to the Mississippi State
Hospital or other appropriate mental health facility.
URCCC 9.06 (emphasis added).1
¶34. In September 2005, based on an ore tenus motion of the parties, the trial court granted
a request to appoint experts at the state hospital to examine Pitchford and “determine his
competency to stand trial and whether or not under the M’Naghten2 standard he is insane and
whether or not under the Atkins3 ruling he is [intellectually disabled].” The order also
instructed examination of Pitchford to determine “any mitigating circumstances[.]”
Pitchford’s examination was not conducted until January 11, 2006, due to a backlog of
criminal cases assigned to the state hospital for evaluations. No psychological testing was
performed until January 26, 2006.
¶35. On February 2, 2006, Pitchford’s defense counsel filed a lengthy motion for a
continuance, requesting additional time to conduct a more “thorough mitigation
1
Rule 9.06 has since been replaced by Rule 12 of the Mississippi Rules of Criminal
Procedure (effective July 1, 2017). Mississippi Rule of Criminal Procedure 12.5(a) departs
from Rule 9.06’s mandatory-hearing requirement. In the absence of a motion by the court
or the parties, a hearing is no longer mandatory, but permissible. See Miss. R. Cr. P. 12.5(a)
cmt.
2
M’Naghten’s case, 8 Eng. Rep. 718 (1843) (establishing test applied in a number
of states to determine whether a defendant is competent to stand trial).
3
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)
(holding that execution of mentally retarded criminals are “cruel and “unusual” under Eighth
amendment to the United States Constitution).
11
investigation” into Pitchford’s “life history,” given that this was a death-penalty case. The
motion contained numerous arguments in support of the request, centering on the claim that
Pitchford had a right to have the evaluations conducted by doctors at the state hospital
reviewed by an independent expert in order to help prepare an adequate defense for both the
culpability and penalty phases of trial.
¶36. No express issue or concern was raised in the defense’s motion as to Pitchford’s
competency to stand trial. And the defense’s motion concluded as follows: “the defendant
respectfully moves this [c]ourt for a continuance of the trial date now set for February 6,
2006 or in the alternative to proceed to trial on that date if the State elects not to seek the
death penalty.” (Emphasis added.)
Rule 9.06’s Reasonable Ground(s) Requirement
¶37. Since this Court’s decision in Sanders v. State, 9 So. 3d 1132, 1142 (Miss. 2009),
Rule 9.06 has been construed to mean that, in any instance in which the trial court orders a
competency evaluation of the defendant, this establishes conclusively (for appellate-review
purposes) that the trial court had reasonable ground(s) to believe the defendant might be
incompetent to stand trial, thus triggering Rule 9.06’s competency-hearing mandate. See
Smith v. State, 149 So. 3d 1027 (Miss. 2014) (construing Sanders’s and Coleman’s
interpretation and application of Rule 9.06 to mean that a trial court’s grant of an order for
a mental competency evaluation is “conclusive of its having found reasonable ground to
believe [the defendant] was entitled to a mental examination and a competency hearing”);
see also Hollie v. State, 174 So. 3d 824, 830-32 (Miss. 2016) (in which a majority of this
12
Court held, based on Sanders, Coleman, and Smith, that a mental evaluation ordered by the
trial court constitutes “a per se showing that the trial court had reasonable grounds to believe
the defendant was incompetent to stand trial”).
¶38. We find this to be a hypertechnical interpretation and application of Rule 9.06 that
improperly expands the scope and purpose of the rule and conflicts with Mississippi
precedent. Therefore, we reject it.
¶39. Years ago, this Court found in the case of Jacquith v. Beckwith, 157 So. 2d 403
(Miss. 1963), that an order by the trial court submitting a criminal defendant to a competency
examination did not itself establish sufficient ground to question the defendant’s competence
to stand trial. The Jacquith Court acknowledged that such orders ordinarily are not
controverted, “since usually the defendant or his counsel request or agree to them.” Id. at
408. But Jacquith pointed out that the statute allowing for such examinations nonetheless
“requires some evidential basis.” 4 Id.
¶40. While Rule 9.06 was not in existence at the time of Jacquith, the same principle
recognized there was recognized by Chief Justice Waller in his dissent in Sanders, when
speaking to Rule 9.06. See Sanders, 9 So. 3d at 1142 (Waller, C.J., dissenting). The trial
court is obligated to hold a competency hearing only “where there is sufficient doubt about
4
Jacquith was speaking to former Section 2575.5 of Chapter 262, Mississippi Laws
(1942). That section became law in 1960 shortly after the United States Supreme Court’s
decision in Dusky, which was handed down earlier that same year. Section 2575.5’s
language was carried over to current Section 99-13-11, amended in 1997 to allow for
competent “psychologist(s)” to be selected in addition to “psychiatrist(s).” See Miss. Code
§ 99-13-11(Rev. 2015).
13
a defendant’s competence.” Id. “Sufficient doubt [or reasonable ground] in the court’s mind
was the cornerstone of [Rule 9.06] we then created.” Id. “In the absence of such doubt, the
obligation to sua sponte order a competency hearing simply does not arise.” Id.
¶41. Justice Coleman concluded similarly in his dissent in Smith. “To put it in Rule 9.06
terms, [the defendant] identifies nothing in the record of the criminal proceedings against him
to indicate the existence of any ‘reasonable ground to believe’ him incompetent to stand
trial.” Smith, 149 So. 3d at 1036-37 (Coleman, J., dissenting) (quoting Rule 9.06). Noting
what the Court of Appeals had found in Smith v. State, 149 So. 3d 1048 (Miss. Ct. App.
2013), Justice Coleman stated, “myriad reasons [may] exist to conduct a mental competency
examination aside from a determination that the above-described reasonable grounds exist.”
Id. at 1037 (citing Smith, 149 So. 3d at 1051-52).
¶42. We agree. In line with the requirement(s) recognized in Jacquith and in other similar
opinions, we hold that a trial court’s competency evaluation order does not in and of itself
conclusively (or necessarily) establish, for purposes of Rule 9.06’s mandates, or appellate-
review purposes, that the trial court had reasonable grounds to believe the defendant was
incompetent to stand trial. Such a determination must be made based on the facts and
circumstances attending each particular case.
¶43. For our purposes here, however, whether reasonable grounds existed when the trial
court ordered Pitchford’s competency evaluation in 2006 is moot given this Court’s 2013
order requiring the trial court to conduct a retrospective competency hearing. The sole
14
question now presented is whether the 2015 retrospective competency hearing conducted by
the trial court satisfied Rule 9.06’s mandate(s).
Retrospective Competency Hearing
¶44. At the outset, a plurality of this Court, as mentioned, held in Coleman that the
appropriate remedy for failure to hold a competency hearing is a new trial, not a retrospective
competency hearing. Coleman reasoned that the United States Supreme Court repeatedly
has recognized the “inherent difficulties of such a nunc pro tunc determination under the
most favorable circumstances.” Id. at 166 (quoting Drope, 420 U.S. at 183). Coleman
found that Rule 9.06 makes no mention of or suggests that a retrospective competency
hearing is permissible, for the rule clearly specifies that a competency determination must
occur before or during trial, not after trial, conviction, and appeal. Id. at 168. Coleman since
has been affirmed by a majority of this Court in Smith and Hollie.
¶45. Coleman is correct that the Supreme Court has said that retrospective competency
hearings present inherent difficulties. But the Supreme Court did not announce a per se rule
that retrospective competency hearings are forbidden. In Drope, the Court stated: “Given the
inherent difficulties of such a nunc pro tunc determination under the most favorable
circumstances, see [Pate, 383 U.S. at 386-87; Dusky, 362 U.S. at 403], we cannot conclude
that such a procedure would be adequate here.” Drope, 420 U.S. at 183 (emphasis added).
¶46. In James v. State, 86 So. 3d 286, 290-94 (Miss. Ct. App. 2012), Justice Maxwell, then
serving on the Court of Appeals and writing for a unanimous court, found that a retrospective
hearing previously ordered by the Court of Appeals and conducted three years after the
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defendant’s criminal trial, satisfied constitutional due process requirements and the purpose
of Rule 9.06. Id. (citing Hearn v. State, 3 So. 3d 722, 730 (Miss. 2008) (which held that a
Rule 9.06 hearing did not necessarily have to take place as long as “the purposes of Rule 9.06
were satisfied”)).
¶47. James noted that the Fifth Circuit, “though ‘acutely aware of the hazards connected
with retrospective competency hearings,’ nevertheless ‘has repeatedly sanctioned nunc pro
tunc proceedings where there is sufficient data available to guarantee reliability.’” Id. at 293
(quoting Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir. 1986)). See also Zapata v. Estelle,
588 F.2d 1017, 1020 (5th Cir. 1979) (“When the trial court does ignore a bona fide doubt as
to the defendant’s competence to stand trial, Pate dictates a nunc pro tunc competency
hearing if a meaningful inquiry into the defendant’s competence can still be had.”)
¶48. James further noted that a majority of courts now agree that “failure to hold a
competency hearing can be cured retroactively” where sufficient information exists to make
a retrospective hearing meaningful. James, 86 So. 3d at 293 (citing People v. Ary, 51 Cal.
4th 510, 120 Cal. Rptr. 3d 431, 246 P.3d 322, 329 (2011)).
¶49. We agree with the Court of Appeals. And to the extent Coleman, Smith, and Hollie
are inconsistent with our holding today, they are overruled.
¶50. Where sufficient information is available to conduct a meaningful hearing to evaluate
retrospectively the defendant’s competence to stand trial, such a hearing does not violate due
process standards. See, e.g., Wheat, 793 F.2d at 630 (“The test for the district court in
determining the question of meaningfulness is whether ‘the quantity and quality of available
16
evidence was adequate to arrive at an assessment that could be labeled as more than mere
speculation.’”) (quoting Bruce v. Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976), cert. denied,
429 U.S. 1053, 97 S. Ct. 767, 50 L. Ed. 2d 770 (1970)). “‘[C]ontemporaneous expert
medical evidence often provides the most useful evidence’ of whether a meaningful
retrospective hearing may be held.” James, 86 So. 3d at 293 (quoting Wheat, 793 F.2d at
630).
¶51. We also are in accord with the Fifth Circuit that the State should bear the burden of
demonstrating that a meaningful retrospective competency hearing can be conducted. Once
demonstrated, the defendant then bears the burden to prove he or she was “most probably”
incompetent at the time of trial. See, e.g., Bruce, 536 F. 2d at 1059.
Instant Case
¶52. Here, the record clearly illustrates that the information available to the trial court for
the retrospective competency hearing in May 2015 was more than adequate. Available and
used at the hearing was the state hospital’s medical report from the competency evaluation
Pitchford submitted to shortly before his trial in February 2006; the two doctors who
performed Pitchford’s evaluation(s); and the transcript from Pitchford’s guilty-plea
proceeding that occurred shortly before trial. The same judge who presided over Pitchford’s
trial had presided over Pitchford’s guilty-plea proceeding, and over the May 2015
retrospective competency hearing.
¶53. In addition, Pitchford presented his own witnesses, including an expert witness, Dr.
Bailey, who had evaluated Pitchford two days before the 2006 trial and thereafter formulated
17
a report that was never made available to the trial court during the 2006 trial. According to
Dr. Bailey, one of the main reasons he believed Pitchford was not legally competent to stand
trial in February 2006 was based on his review of the transcript from Pitchford’s guilty-plea
hearing.
¶54. During the guilty-plea hearing, Pitchford indicated that he wanted to speak to his
mother before entering a plea. In Dr. Bailey’s opinion, Pitchford’s “comments about his
mother, were the ones that seemed off balanced that he wanted to talk to his mother rather
than the attorney.” The trial court questioned Dr. Bailey about this as follows:
[Court]: “I think he was just wanting to talk to his mama to . . . decide,
you know, ‘Mama, what do you think about it?’ Which is that
unusual for a life-changing, drastic changing event for
somebody to want to talk to a friend or family member?”
[Dr. Bailey]: “No. It wouldn’t be unusual. It is highly likely that someone
would want to speak to a loved one if they are having great
difficulty.”
[Court]: And, of course, you say you read this guilty – I mean, is there
anything in where I, you know, he engages quite fully with the
[c]ourt on everything I asked him. He had a show, at least in my
book, looked like a pretty rational answer to every question that
I was asking about his constitutional rights and about everything
concerning the process. So, you know, what is it out of this
transcript of this aborted guilty plea that would lead one to think
that it reflects that he is not competent?
[Dr. Bailey]: Well, my testimony is the part about him asking to speak to his
mother argues against him being able to work with his attorney?
[Court]: But you just said that would be a natural thing for somebody to
do to talk to a loved one or family or friend?
[Dr. Bailey]: That’s true.
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[Court]: So which is it. I mean, it either shows that he was rational
wanting to talk to a family member or it shows that he wasn’t
but you are saying two different things.
[Dr. Bailey]: Well, I said I clearly think that his discussion with his lawyer
throughout the event on January 19th shows that he is aware of
his communications. The lawyer, Carter even said in their [sic]
at times when Mr. Pitchford says we haven’t discussed these
things or we haven’t discussed these things for a long time. It
is very clear that there is a remarkably inconsistent process, a lot
of communication, I think throughout the whole process. But,
clearly on that day they showed some disagreement about
whether they were communicating.
Mr. Pitchford’s communication with the [c]ourt do [sic] show
that here was some back and forth and he showed he could
understand and communicate effectively as you were saying. I
am explaining my comment earlier when asked about what I
think about him asking to speak to his mother, I think that
argues against him having confidence in his lawyer.
[Court]: Well, maybe confidence in his lawyer [sic] but confidence in his
lawyer and competency to plead guilty or go to trial are
drastically different things.
[Dr. Bailey]: That’s fair.
¶55. We find no error in the trial court’s decision to reject Dr. Bailey’s testimony with
regard to the guilty-plea proceeding. The transcript from that proceeding fully supports the
trial court’s finding that, even if Pitchford had lacked confidence in his defense counsel at
the time, he nonetheless had a rational understanding of the proceeding(s) against him.
¶56. We also find no merit in Pitchford’s claim on appeal that the State’s experts “failed
to apply the proper standard for competency.” The 2006 competency evaluation report
clearly found, as already mentioned, that: “Pitchford has the sufficient present ability to
consult with an attorney with a reasonable degree of rational understanding in the preparation
19
of his defense, and that he has a rational as well as a factual understanding of the nature and
object of the legal proceedings against him.”
¶57. Based on our review of the record, we find no error in the trial court’s conclusion that
Pitchford was competent to stand trial in 2006.
CONCLUSION
¶58. For these reasons, we affirm the judgment of the circuit court denying Pitchford’s
PCR petition based on the court’s finding that Pitchford was competent to stand trial in
February 2006.
¶59. POST-CONVICTION RELIEF DENIED.
WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHEN, P.J., CONCURS IN RESULT ONLY WITH
SEPARATE WRITTEN OPINION JOINED BY KING, J.
KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:
¶60. With respect, I concur in result only. Without question, Pitchford is procedurally
barred from challenging this Court’s prior order for a retrospective competency hearing. For
that reason, there is no need to consider, let alone to overrule, the well-established holdings
of numerous cases and to overhaul Mississippi’s law governing mental competency
determinations in criminal cases under Uniform Rule of Circuit and County Court Practice
9.06, with the effect of rolling back protections previously afforded criminal defendants.5 I
do agree with the majority’s conclusion that the trial court’s mental competency
5
Effective July 1, 2017, this Court adopted new rules governing mental examinations
and competency determinations. See M.R.Cr.P. 12. However, proceedings prior to July 1,
2017, including the instant case, were controlled by Uniform Rule of Circuit and County
Court Practice 9.06.
20
determination was not clearly erroneous, and that the State’s experts applied the proper
standard for mental competence. I would affirm, but for different reasons than those
articulated by the majority.
A. Pitchford’s challenge to this Court’s prior order for a retrospective
competency hearing is procedurally barred.
¶61. This matter commenced when Pitchford filed, in this Court, his application for leave
to proceed in the trial court with a motion for post-conviction relief. See Miss. Code Ann. §
99-39-27 (Rev. 2015). Pitchford made four claims in that application, including (1) that his
constitutional rights had been violated because he was not afforded a mental competency
hearing; (2) that he was deprived of his constitutional right to a fair trial due to racial
discrimination by the State during voir dire; (3) that he received ineffective assistance of
counsel; and (4) that he was denied a fair trial because a juror had concealed material facts
that showed the juror’s bias. In an order entered on February 14, 2013, this Court found that
the second, third, and fourth issues lacked sufficient merit to warrant a hearing. But we found
that Pitchford’s application should be granted regarding the issue concerning the mental
competency hearing. We set forth the following analysis of the issue:
[T]he record indicates that the trial judge ordered that Pitchford be evaluated
for competency to stand trial, and that an evaluation took place at the
Mississippi State Hospital. Pitchford alleges that his counsel appeared before
the trial court to argue several pending motions including defendant’s motion
for a continuance; and that – based upon a written report from the Mississippi
State Hospital – the trial judge decided he was competent to stand trial.
Pitchford further alleges that his counsel had no prior notice that his
competency to stand trial would be adjudicated that day. The State does not
dispute these allegations, and this Court finds no evidence in the record before
us that notice was provided to the Defendant that his competency to stand trial
would be adjudicated on the day of the hearing on pending motions.
21
This Court has held that, when a trial judge has ordered that a defendant be
evaluated for competency to stand trial, Rule 9.06 of the Uniform Rules of
Circuit and County Court Practice requires the trial judge to conduct a
competency hearing. A Defendant is entitled to reasonable prior notice of the
hearing at which competency to stand trial will be decided, so that the
defendant will have the opportunity to subpoena witnesses and produce
additional information for consideration by the trial judge.
Pitchford v. State, No. 2010-DR-01032-SCT (Order of Feb. 14, 2013). In granting
Pitchford’s request for leave to proceed in the trial court on his mental competency issue, we
remanded the matter to the Circuit Court of Grenada County for a hearing to determine
retroactively whether Pitchford had been mentally competent to stand trial during his
February 2006 capital murder trial. We denied his remaining claims.
¶62. Mississippi Code Section 97-39-27 provides that, in granting an application for leave
to proceed in the trial court with a motion for post-conviction relief, this Court possesses
discretion to “grant or deny all relief requested in the attached motion.” Miss. Code Ann. §
99-39-27(7)(a). We also may permit the filing of the motion in the trial court for further
proceedings. Miss. Code Ann. § 99-39-27(7)(b). The denial of an application is “a final
judgment and shall be a bar to a second or successive application under this article.” Miss.
Code Ann. § 99-39-27(9).
¶63. The February 14, 2013, order reveals that the Court considered the merits of
Pitchford’s claim regarding the denial of a mental competency hearing and determined that
the appropriate remedy under the particular facts presented was a retrospective competency
hearing. All other relief requested by Pitchford was denied. In 2015, the retrospective
competency hearing occurred, and the trial court entered an order finding that Pitchford had
22
been mentally competent during his 2006 trial and denying the motion for post-conviction
relief. Pitchford has appealed that order, and he now requests that this Court reconsider its
prior order of a retrospective competency hearing. The problem with this request is that the
question of the appropriate relief for the imperfect process in the trial court already has been
resolved, and, absent an exception, it cannot be relitigated. When this Court granted
Pitchford a retrospective mental competency hearing, we necessarily denied his claim that
a new trial was the appropriate remedy for the deficiencies in the trial court proceedings.
Under Section 99-39-27(9), claims that are denied are subject to a bar of successive
pleadings. Thus, Pitchford cannot raise the issue anew, absent an exception to the procedural
bar.
¶64. Section 99-39-27(9) provides that “excepted from [the bar of successive pleadings]
are those cases in which the prisoner can demonstrate either that there has been an
intervening decision of the Supreme Court of either the State of Mississippi or the United
States that would have actually adversely affected the outcome of his conviction or sentence
. . . .” Miss. Code Ann. § 99-39-27(9). The case of Coleman v. State, 127 So. 3d 161 (Miss.
2013), was decided approximately eight months after our order of February 14, 2013.
Pitchford claims that, because in Coleman, a plurality of this Court repudiated the notion that
a retrospective mental competency hearing could remedy a failure to hold a pretrial
competency hearing, we erred by ordering a retrospective competency hearing in his case.
But because Coleman distinguished the specific facts of Pitchford’s case, Coleman is not
an intervening decision that “would have actually adversely affected the outcome of
23
[Pitchford’s] conviction or sentence.” Coleman first set forth the facts before the Court in
its Pitchford order as follows:
[I]n Pitchford v. State, 2010–DR–01031–SCT (Order of February 14, 2013),
this Court ordered a post-trial competency hearing to determine whether the
defendant had been mentally competent to stand trial. In Pitchford, a capital
murder case, the trial court granted the defendant a competency hearing, and the
defendant submitted to a mental examination at the Mississippi State Hospital.
Pitchford, 2010-DR-01031-SCT. The trial court held a hearing to rule on
several pending motions as well as competency. Id. Defense counsel was not
provided notice that Pitchford’s competency to stand trial would be addressed
at the hearing, and came prepared to argue only the pending motions. Id. Based
on the written report from the Mississippi State Hospital, the trial court
determined that Pitchford was mentally competent to stand trial. Id. This Court
held that “[a] Defendant is entitled to reasonable prior notice of the hearing at
which competency to stand trial will be decided, so that the defendant will have
the opportunity to subpoena witnesses and produce additional information for
consideration by the trial judge.” Id. In order to afford Pitchford’s counsel
ample time to prepare, we ordered the trial court to conduct a hearing to
determine whether Pitchford had been mentally competent to stand trial. Id.
Coleman, 127 So. 3d at 165. Then, the plurality distinguished the case from Pitchford,
outlining the important factual differences in the cases as follows:
[W]e note that the facts and circumstances presented in Pitchford were
significantly different than those before us in the present case. In Pitchford, the
trial court held a hearing, but defense counsel was not given notice that mental
competency to stand trial was to be determined at that time. Pitchford,
2010–DR–01032–SCT (Order of February 14, 2013). Here, the trial court
outright denied Coleman a hearing and determined that he somehow had
waived his right to a competency hearing, despite repeated requests for such a
proceeding both before and during trial. In Pitchford, the defendant’s
competence to stand trial was determined based on a written report from the
Mississippi State Hospital; but here, the trial court based its determination of
Coleman’s competence to stand trial on a four-page summary report. Pitchford,
2010–DR–01032–SCT. We found that, under the facts in Pitchford, where the
trial court held a mental competency hearing but did not give notice to defense
counsel, a retrospective mental competency hearing was sufficient to guard the
defendant’s due process rights. Id. On the other hand, under the facts in this
case, when the trial court simply denied the defendant a hearing, we find that
24
a retrospective mental competency determination does not adequately protect
Coleman’s due process rights.
Id. at 167-68.
¶65. Coleman clearly distinguished the facts in Pitchford, concluding that the due process
concerns inherent in its decision to condemn retrospective mental competency hearings simply
were not present in Pitchford’s case, in which a hearing had occurred but the problem was
lack of notice to the defense. Because Coleman distinguished Pitchford, Coleman was not
an intervening decision that would have affected, adversely or otherwise, the outcome of
Pitchford’s conviction or sentence. There are no grounds for permitting Pitchford to relitigate
the question of whether reversal of his conviction was the appropriate remedy for the
procedural deficiencies in his pretrial mental competency determination, a matter finally
decided by this Court’s order dated February 14, 2013.6
¶66. Because Pitchford’s argument plainly is procedurally barred, we should not use his
argument as a vehicle for making determinations on when a competency hearing was required
under Rule 9.06 or whether retrospective mental competency hearings should be permissible.
These determinations are completely unnecessary to the resolution of Pitchford’s argument
6
Pitchford’s request that we revisit this issue also squarely implicates the law of the
case doctrine. “[A]s a general rule, when an appellate court passes upon a question and
remands the cause for further proceedings, the question there settled becomes the ‘law of the
case’ upon a subsequent appeal, provided the same facts and issues which were determined
in the previous appeal are involved in the second appeal.” Cont’l Turpentine & Rosin Co.
v. Gulf Naval Stores Co., 244 Miss. 465, 480, 142 So. 2d 200, 207 (1962). Under the law of
the case doctrine, our former decision on the question of Pitchford’s entitlement to a remedy
for the procedural defects in his competency determination is conclusive of the question
raised in this appeal after remand.
25
and, in fact, they revisit and redetermine the exact issue already decided by this Court on
February 14, 2013. Therefore, I would, with respect, deem them dicta.7 This Court should find
Pitchford’s argument procedurally barred and then proceed to review his other arguments, in
which he challenges the proceedings at the retrospective competency hearing and the trial
court’s rulings. But because this Court has declared that it is overruling the eight years of case
law that was carefully crafted to protect a criminal defendant’s constitutional right not to be
tried while incompetent, I am compelled to address those decisions.
B. The plain language of Rule 9.06 required a competency hearing after the
trial court ordered a mental evaluation.
¶67. The state and federal constitutions protect a criminal defendant’s due process right
against being tried while mentally incompetent. Pate v. Robinson, 383 U.S. 375, 385, 86 S.
Ct. 836, 15 L. Ed. 2d 815 (1966); Williams v. State, 205 Miss. 515, 524, 39 So. 2d 3, 4 (1949)
(citing Miss. Const. art. 3, § 26). To try or convict a criminal defendant while incompetent
“fundamentally impinges upon his right to a fair trial.” Hollie v. State, 174 So. 3d 824, 830
(Miss. 2015). As this Court has recognized, “[t]he United States Supreme Court has held that
‘the prohibition [against trying or convicting an incompetent defendant] is fundamental to an
adversary system of justice.’” Id. (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct.
896, 43 L. Ed. 2d 103 (1975)). The test for determining competence to stand trial is “whether
7
Indeed, the majority finds the issue of whether the trial court had reasonable ground
to order a competency hearing in this case to be moot. Maj. Op. at ¶ 43. Yet the majority
purports to alter the standard applicable to determining when a competency hearing was
mandated by Rule 9.06, in stark contravention of the bedrock principle that this Court must
refrain from adjudicating moot questions because we lack authority to issue advisory
opinions. In re Validation of Tax Anticipation Note, Series 2014, 187 So. 3d 1025, 1032
(Miss. 2016).
26
[a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding . . . and whether he has a rational as well as factual understanding
of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788,
4 L. Ed. 2d 824 (1960). We have held that a competent defendant is one:
(1) who is able to perceive and understand the nature of the proceedings; (2)
who is able to rationally communicate with his attorney about the case; (3) who
is able to recall relevant facts; (4) who is able to testify in his own defense if
appropriate; and (5) whose ability to satisfy the foregoing criteria is
commensurate with the severity of the case.
Hollie, 174 So. 3d at 830 (quoting Hearn v. State, 3 So. 3d 722, 728 (Miss. 2008)).
¶68. Effective May 1, 1995, this Court adopted Uniform Rule of Circuit and County Court
Practice 9.06, which safeguarded the right of criminal defendants against being tried while
mentally incompetent by providing the following procedure:
If before or during trial the court, of its own motion or upon motion of an
attorney, has reasonable ground to believe that the defendant is incompetent to
stand trial, the court shall order the defendant to submit to a mental examination
by some competent psychiatrist selected by the court in accordance with §
99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the
defendant is competent to stand trial. After hearing all the evidence, the court
shall weigh the evidence and make a determination of whether the defendant
is competent to stand trial. If the court finds that the defendant is competent to
stand trial, then the court shall make the finding a matter of record and the case
will then proceed to trial. If the court finds that the defendant is incompetent to
stand trial, then the court shall commit the defendant to the Mississippi State
Hospital or other appropriate mental health facility.
URCCC 9.06 (emphasis added). Rule 9.06 governs this case because it was the rule in effect
at the time of Pitchford’s trial.
27
¶69. In Sanders v. State, 9 So. 3d 1132, 1134-35 (Miss. 2009), the trial court had ordered
a mental evaluation of the defendant, but never held a hearing to determine the defendant’s
competence to stand trial. On appeal, Sanders argued that the trial court had erred by failing
to hold a mental competency hearing after it had ordered a mental evaluation. We noted that,
under the United States Constitution, the defendant is denied due process of law if the
evidence raises sufficient doubt as to his ability to stand trial and the trial court does not, on
its own, conduct a separate competency hearing. Id. at 1135 (citing Pate, 383 U.S. 375, 86 S.
Ct. 836). We further noted Pate’s holding that, when sufficient doubt exists as to the
defendant’s mental competence to stand trial, the defendant cannot waive a mental
competency determination by failing to request a hearing. Id. at 1136 (citing Pate, 383 U.S.
at 376-77, 86 S. Ct. 836). Then, we examined the language of Rule 9.06 itself, which plainly
“requires an on-the-record hearing to determine competency once the court has reasonable
ground to believe that the defendant is incompetent.” Sanders, 9 So. 3d at 1136. We
recognized that, because the rule employs the mandatory word shall, not the permissive word
may, “it is evident that it would be error not to hold a competency hearing once a trial court
orders a psychiatric evaluation to determine competency to stand trial.” Id.
¶70. In Jay v. State, 25 So. 3d 257, 261-62 (Miss. 2009), the defendant filed a motion for
an extension of time, alleging that he had suffered a severe traumatic brain injury. He attached
a physician’s letter to the effect that he was unable to participate in court proceedings. Id. at
262. In response, the trial court ordered a mental evaluation of the defendant. Id. at 262.
Although the report of the mental evaluation was filed two days before the trial, the trial went
28
forward with no on-the-record pretrial determination of Jay’s mental competence to stand
trial. Id. This Court unanimously reversed, holding that Rule 9.06 not only requires that the
trial court order the defendant to undergo a mental evaluation when the trial court has
reasonable ground to believe the defendant is mentally incompetent to stand trial, but that,
after said mental evaluation, “the court shall hold a competency hearing to determine whether
the defendant is competent to stand trial.” Id. We also found that, because the evidence raised
a bona fide doubt as to Jay’s mental competence to stand trial, the failure to hold a
competency hearing violated his constitutional due process rights. Id. at 263.
¶71. In Beasley v. State, 136 So. 3d 393, 398 (Miss. 2014), this Court again set forth the
firm requirements of Rule 9.06. We said that, “[s]imply put, Rule 9.06 ‘mandates that a
competency hearing be conducted following a court-ordered mental examination.’” Id. But
in Beasley, we found that no reversible error had occurred because the trial court had
complied with Rule 9.06. Id. at 399. The trial court had granted Beasley’s motion for a mental
evaluation on the ground that there was a legitimate issue as to Beasley’s mental competence.
Id. at 398. And after the completion of the mental evaluation, the trial court had held an on-
the-record competency hearing, weighed the evidence, and found Beasley competent to stand
trial. Id. at 399.
¶72. In Smith v. State, 149 So. 3d 1027, 1030 (Miss. 2014), the trial court ordered that
Smith undergo a mental evaluation, but the mental evaluation never took place. The trial court
never held a competency hearing before accepting Smith’s guilty plea. Id. Smith raised these
deficiencies in a motion for post-conviction relief. Id. at 1029. On appeal, relying on Sanders,
29
we held that “a trial court’s order of a mental evaluation to determine competency under Rule
9.06 means that the trial court had reasonable ground to believe the defendant was
incompetent to stand trial.” Id. at 1033. And according to Rule 9.06, once the trial court orders
a mental evaluation, after the completion of the mental evaluation, “the court shall conduct
a hearing to determine if the defendant is competent to stand trial.” Id. We held that, under
Rule 9.06, “when the trial court has such reasonable ground [to believe the defendant
incompetent to stand trial] a mental evaluation and competency hearing are required.” Id. But
because this Court was unable to determine whether the trial court had ordered the mental
evaluation for the purpose of determining Smith’s mental competence, rather than for some
other reason, we remanded for an evidentiary hearing to ascertain the purpose of the court-
ordered mental evaluation. Id. at 1034-35. We held that “if, after the evidentiary hearing, the
trial court determines that the purpose of the court-ordered mental evaluation was to
determine Smith’s competence to stand trial, Smith’s conviction cannot stand, and Smith must
be either retried or institutionalized following a mental evaluation and competency hearing
under Rule 9.06.” Id. at 1035.
¶73. This Court revisited this issue in Hollie, 174 So. 3d at 826, in which the trial court had
ordered a mental evaluation, but later accepted Hollie’s guilty plea without making any
determination concerning his mental competence. We reversed, applying our prior holdings
that “[i]n cases like today’s, in which a mental evaluation has been ordered, this Court has
held that this is a per se showing that the trial court had reasonable grounds to believe the
defendant was incompetent to stand trial.” Id. at 830. “As a result, once a mental evaluation
30
is ordered, a competency hearing is mandatory.” Id. We further recognized that a defendant
cannot waive the right to a competency hearing by not objecting to the trial court’s failure to
hold a competency hearing. Id. at 831. Although Hollie was not a majority opinion, six
justices agreed that the failure to hold a mental competency hearing was reversible error.
¶74. This Court has held that a competency hearing was not required after a court-ordered
mental evaluation as long as “the purposes of Rule 9.06 were satisfied.” In Hearn v. State,
3 So. 3d 722, 730 (Miss. 2008), this Court found that the purposes of Rule 9.06 were satisfied
because one of Hearn’s examining physicians had testified at trial about Hearn’s competence
and was cross-examined by Hearn’s counsel. In those particular circumstances, we held that
the failure to hold a competency hearing after the trial court had ordered a mental evaluation
was not reversible error. Id. Prior to Evans v. State, ___ So. 3d ___, 2017 WL 2592415,
(Miss. June 15, 2017), every case that addressed the issue distinguished Hearn on its facts and
treated Hearn as a narrow exception to the rule. But even in Evans, in which this Court found
that the purposes of Rule 9.06 had been satisfied even though no mental competency hearing
had occurred, this Court did not overrule our holdings that the rule’s plain language requires
that if the trial court orders a mental evaluation, a pretrial mental competency hearing must
follow.
C. This Court has established that a retrospective competency hearing is not
an appropriate remedy for the failure to hold a pretrial competency hearing
when one was required by Rule 9.06.
¶75. This Court addressed the appropriate remedy for a violation of the competency hearing
requirement of Rule 9.06 in Coleman, 127 So. 3d 161. In Coleman, a plurality of this Court
31
reversed a decision of the Court of Appeals, which had remanded the case for a retrospective
mental competency hearing after finding that the defendant erroneously had been denied a
mental competency hearing by the Lauderdale County Circuit Court. Id. at 162. The plurality
found that a nunc pro tunc mental competency hearing did not adequately protect the
defendant’s due process rights and the procedural guarantees of Rule 9.06, finding:
Rule 9.06 plainly mandates that the next step after the mental examination has
occurred is for the trial court to hold a separate competency hearing before trial.
This simply was not done. A retrospective competency hearing is not mentioned
or even suggested by Rule 9.06, for the rule clearly specifies that a competency
determination must occur “before or during trial,” not after trial, conviction,
and appeal. Thus, such an innovation should not be condoned by this Court. It
is neither prudent nor permissible for our trial courts, in their implementation
of Rule 9.06, to deny a timely hearing on the accused person’s mental
competence to stand trial, to proceed to trial, and then attempt later to remediate
the omission by conducting an extremely untimely mental competency hearing.
Id. at 168. The plurality found that a failure to follow Rule 9.06 cannot be cured by a
retrospective competency hearing.8 Id. at 168. In Smith and later, in Hollie, a majority of the
Court adopted Coleman’s holding that a retrospective mental competency hearing is not an
adequate remedy for the failure to hold the mental competency hearing required by Rule 9.06,
and that the appropriate remedy is a new trial.
D. The majority’s decision conflicts with Rule 9.06 and contravenes stare
decisis.
¶76. The majority purports to overrule Hollie, Smith, Beasley, Coleman, Jay, and Sanders
with no more explanation than that these decisions posited “a hypertechnical interpretation
8
As discussed above, Coleman expressly distinguished the facts of Pitchford,
finding that a retrospective competency hearing had been appropriate to cure the problem
with lack of notice in Pitchford’s case. Coleman, 127 So. 3d at 167.
32
and application of Rule 9.06 that improperly expands the scope and purpose of the rule and
conflicts with Mississippi precedent.” Maj. Op. at ¶ 38. With respect to the majority, it is
abundantly clear that these decisions did nothing more than apply the plain language of Rule
9.06, which provides that, if the trial court has reasonable ground to believe the defendant is
mentally incompetent to stand trial, the trial court shall order a mental evaluation and shall
conduct a mental competency hearing. URCCC 9.06. It is well established that this Court
applies the plain language of a statute or court rule when that language is unambiguous and
leaves no room for interpretation or construction, Coleman v. State, 947 So. 2d 878, 881
(Miss. 2006), therefore, doing so cannot be “hypertechnical.” The language of Rule 9.06 – the
rule applicable to Pitchford – is plain and unambiguous and employs the word shall, which
this Court has held on numerous occasions is a mandatory term. Tunica Cty. v. Hampton Co.
Nat’l Surety LLC, 27 So. 3d 1128, 1134 (Miss. 2009).
¶77. The majority also finds that these decisions conflict with Mississippi precedent. Maj.
Op. at ¶ 38. Respectfully, these decisions are Mississippi precedent – eight years of
Mississippi precedent that meticulously applied Rule 9.06. That the majority has changed its
collective mind does not signify any precedential conflict. The majority relies on Jaquith v.
Beckwith, 157 So. 2d 403 (Miss. 1963), admittedly a case from “[y]ears ago,” long before the
enactment of Rule 9.06, that held that the trial court’s order for a mental evaluation requires
“some evidential basis.” Maj. Op. at ¶ 39. Then, the majority finds that a trial court is
obligated to hold a mental competency hearing “only ‘where there is sufficient doubt about
33
a defendant’s competence.”9 Maj. Op. at ¶ 40. Thus, the majority jettisons the plain language
of Rule 9.06 and simply would return us to the minimum federal constitutional standard
articulated in Pate, with absolutely no regard for the procedural rule that this Court
thoughtfully and conscientiously promulgated to guarantee the constitutional rights of
criminal defendants not to be tried while mentally incompetent.
¶78. The majority likewise pivots on retrospective competency hearings, finding that these
hearings, once found to conflict with the requirements of Rule 9.06, now should be permitted
“where there is sufficient data to guarantee reliability” and “a meaningful inquiry into the
defendant’s competence can still be had.” Maj. Op. at ¶ 47. The majority bases this decision
not on our governing case law, but on an opinion from the Mississippi Court of Appeals and
on opinions from the Fifth Circuit Court of Appeals that retrospective mental competency
hearings do not offend due process provided certain requisites are met.
¶79. In undertaking to overruling Hollie, Smith, Beasley, Coleman, Jay, and Sanders, the
majority reduces the procedural protections heretofore in place to protect criminal defendants
against being tried while incompetent. In its bid to return this Court to pre-Rule 9.06 federal-
only constitutional standards, the majority not only ignores the plain language of Rule 9.06,
but it neglects the fact that this Court is fully empowered to construe our state constitution and
laws to provide greater protections for the rights of the citizenry than those afforded by the
9
Under Rule 9.06, a trial court could order a mental evaluation to determine mental
competence to stand trial only when the trial court had reasonable ground to believe the
defendant was incompetent to stand trial. URCCC 9.06. Therefore, logic dictates that if the
trial court ordered a mental evaluation, some basis existed for the court to doubt the
defendant’s competence to stand trial.
34
United States Constitution. Graves v. State, 708 So. 2d 858, 861 (Miss. 1997). This Court
already has determined that, under the plain language of Rule 9.06, the trial court’s order for
a mental evaluation means that the trial court had reasonable ground to doubt the defendant’s
mental competence, triggering the requirement for a hearing. And the Court already has
determined that retrospective mental competency hearings are inadequate to protect the
defendant’s due process rights and the procedural guarantees of Rule 9.06. Coleman, 127 So.
3d at 162; Smith, 149 So. 3d at 1035. The Court has no principled reason to revert to prerule
standards.
¶80. Another consideration is that the majority’s decision implicates the doctrine of stare
decisis. That doctrine provides “that prior applicable precedent usually must be followed even
though the case, if considered anew, might be decided differently by the current court.” The
trial bench and bar have a right to expect consistent decisions from this Court. United Servs.
Auto. Ass’n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005); Hye v. State, 162 So. 3d 750, 755
(Miss. 2015). We have said that:
The doctrine of stare decisis is the bedrock of our system of jurisprudence. It
has given direction and stability to the common law whose precepts constitute
the larger part of the rules by which we live and are governed. It demands
definiteness in the law, and that its rules be consistent so that they may be
known. It has been said to be the most fundamental characteristic of the
common law as distinguished from other systems.
State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991) (quoting Laurel Daily
Leader, Inc. v. James, 224 Miss. 654, 681, 80 So. 2d 770, 780-81 (1955) (Gillespie, J.,
Special Opinion)). Although this time-honored doctrine may be overcome if legal reason and
justice so demand, generally courts will depart from prior applicable precedent only “when
35
such departure is necessary to avoid the perpetuation of pernicious error.” Hye, 162 So. 3d
at 755; see also Bell v. State, 160 So. 3d 188, 195 (Miss. 2015) (stating that, even though the
current Court may disagree with a previous statutory interpretation, we must continue to apply
it unless we consider it pernicious, impractical, or mischievous in effect).
¶81. The majority makes no finding that our prior interpretation of Rule 9.06 has resulted
in pernicious error or that legal reason and justice demand a reduction in the process due to
potentially mentally incompetent criminal defendants. In my opinion, one could not so find,
because our prior interpretation of Rule 9.06 assured that a criminal defendant whose mental
competence has been placed in doubt, as evidenced by a trial court order for a mental
evaluation, was afforded the competency hearing necessary to resolve the vital question of
whether the defendant was mentally competent to stand trial. And certainly, a nunc pro tunc
competency hearing, in which the parties must struggle to establish what the defendant’s
mental state was in the distant past, affords far less protection than a timely pretrial
competency hearing. In my opinion, the majority’s decision fails to meet the high burden
required to dispense with our longstanding interpretation of Rule 9.06.
E. Conclusion
¶82. Pitchford’s attempt to reargue the question of the appropriate remedy for the procedural
deficiencies in his 2006 pretrial competency determination is procedurally barred because that
issue was finally decided by this Court in its order of February 14, 2013, which remanded the
case for a retrospective competency hearing. Because the issue is procedurally barred, there
is no need to alter, or even to discuss, the law governing mental competency determinations
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under Rule 9.06, and to do so is both imprudent and harmful. Although I condemn the
majority’s attempt to overrule eight years of precedent governing mental competency
determinations under Rule 9.06, I agree with its decision to affirm the outcome of Pitchford’s
retrospective competency hearing, but would do so by a different and less disruptive route.
KING, J., JOINS THIS OPINION.
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