IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TERRY PITCHFORD, Appellant versus NO. 2015-CA-1818-SCT STATE OF MISSISSIPPI, Appellee BRIEF OF APPELLEE JIM HOOD ATTORNEY GENERAL STATE OF MISSISSIPPI CAMERON L. BENTON SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar. No. 101207 Counsel of Record OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680 Telefax: (601) 359-3796 [email protected]E-Filed Document Dec 30 2016 11:59:17 2015-CA-01818-SCT Pages: 22
Transcript
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI
TERRY PITCHFORD, Appellant
versus NO. 2015-CA-1818-SCT
STATE OF MISSISSIPPI, Appellee
BRIEF OF APPELLEE
JIM HOODATTORNEY GENERALSTATE OF MISSISSIPPI
CAMERON L. BENTONSPECIAL ASSISTANT ATTORNEY GENERALMiss. Bar. No. 101207Counsel of Record
On February 8, 2006, Pitchford was convicted of the capital murder of Reuben Britt
during the commission of an armed robbery in violation of Miss. Code Ann. § 97-3-19 (2)(e).
A jury determined that Pitchford should suffer death for his crime. Pitchford’s conviction
and sentence were affirmed on direct appeal. See Pitchford v. State, 45 So.3d 216 (Miss.
2010). Thereafter, Pitchford filed a motion for leave to proceed with post-conviction relief.
On February 14, 2013, the Mississippi Supreme Court granted in part and denied in part
Pitchford’s motion. See Pet.’s Ex. 2, Order (Miss. 2013).
Without a written opinion, the Court held that Pitchford’s claims “lack sufficient merit
to warrant a hearing.” Id. One claim, however, survived the brief order. The Court granted
“Pitchford’s motion for leave to proceed in the trial court with his claim that he was entitled
to a hearing on his competency to stand trial.” Id. The Court specifically ordered that this
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court “shall hold a hearing on whether Terry Pitchford was competent to stand trial.” Id.
Therefore, Pitchford’s competency at the time of his trial was the only issue to be considered
on remand.
STATEMENT OF FACTS
On the morning of November 7, 2004, Walter Davis and his son entered the
Crossroads Grocery store in Grenada County, Mississippi and found the lifeless body of
Reuben Britt. Trial Transcript (“Tr.”) 357, 366. Walter Davis alerted the authorities. Tr.
366-67. Grenada County law enforcement officials investigated the crime scene. The
investigation lead officials to conclude that Mr. Britt was shot with two different types of
firearms. Tr. 492, 357, 360.
In addition, law enforcement officials learned of a failed attempt to rob the Crossroads
Grocery, days prior to Mr. Britt’s murder. Tr. 95-6 (suppression hearing). Investigators
discovered that Pitchford was involved in that failed robbery attempt. Id. The officials were
told that, on the day of the attempted robbery, Pitchford and his coconspirator were in a gray
Mercury or Crown Victoria with dark-tinted windows. Id. Based on this information,
investigators went to Pitchford’s residence. They found a car matching the description
previously given. Id. Shirley Jackson, Pitchford’s mother, gave officials permission to
search the car. Tr. 95-98; 100-02; 494.
The search produced a .38 caliber revolver which, with additional evidence, linked
Pitchford directly to the murder. Tr. 494, 469-70. Pitchford later confessed that he (1)
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attempted to rob the Crossroads Grocery store and (2) murdered Mr. Britt on November 7,
2004. Tr. 429-31, 572, 564. In his conversations with a cellmate, Pitchford boasted that he
shot Mr. Britt eight or nine times with the victim’s revolver after Mr. Britt begged for mercy.
Tr. 429-31. The Mississippi State Supreme Court’s opinion, on direct appeal recounts these
facts. See Pitchford, 45 So.3d at 222-23.
Prior to trial, the defense filed a motion for a mental evaluation requesting that the
“Court appoint a competent psychiatrist to assist him in the defense of this matter.” C.P. 20-
21. Pursuant to that motion, the parties agreed and the court ordered that Pitchford be
evaluated at the Mississippi State Hospital to determine if he was competent to stand trial.
C.P. 177-78. On January 11th and 25th, 2006, Pitchford was evaluated and tested by the
State Hospital.1 C.P. 1023-43. The team of doctors found that Pitchford was competent to
stand trial.2 Id. They noted that testing and observation indicated Pitchford was attempting
to malinger symptoms of mental illness. Id. (Pitchford complained of hearing voices).
Admittedly, there was not a formal “competency hearing” held. The Court, however,
did hold a motions hearing on February 2, 2006, during which it took up consideration of a
motion to continue. Tr. 32. As part of that motion, defense counsel argued that a
continuance of the trial date was needed to seek an independent mental evaluation. Tr. 33,
40-41. Faced with the report from the court appointed experts opining that Pitchford was not
1 Pitchford was evaluated and tested by Doctors Reb McMichael, Criss Lott, and GilbertMacvaugh.
2 The evaluators further found that Pitchford was not mentally retarded.
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insane or retarded but was competent to assist in his defense, counsel essentially conceded
the issue but suggested that he needed more time to gather mitigating evidence with the
assistance of “Dr. Baylor.” Tr. 37-40, 41-42, 45-46. Counsel explained that he had
consulted with an expert and had reason to believe that further testing might reveal a
neurological defect that could be helpful mitigation evidence. Tr. 34, 41-45. After hearing
argument from both parties and having reviewed the written report from the court appointed
experts, court found that Pitchford was competent and capable of proceeding and that further
testing was not necessary. Tr. 50-54.
Following, the trial which resulted in a conviction for capital murder and a death
sentence, Pitchford filed an appeal. This Court affirmed his conviction and sentence.
Pitchford then sought and was partially granted post-conviction relief. The Court ordered
that the parties were to return to the trial court for a retrospective competency hearing. That
hearing was held on May 11th and 12th, 2015.
At the competency hearing, Pitchford called five witnesses on his behalf. The first
witness was Joseph Cornish, an inmate, who was housed with Pitchford prior to trial.
Competency Hearing Transcript (“T.”) 5. Cornish testified that he witnessed Pitchford
talking to himself but then admitted he had little contact with Pitchford. T. 5-6, 11. Cornish
also admitted he had been in prison for 19 out of his 37 years of age for at least six different
convictions. T. 12-13.
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Pitchford’s next witness was Jonamath Thompson, an inmate. Thompson was also
housed for approximately five to six months with Pitchford prior to trial. T. 15. He stated that he
had been incarcerated for 19 of his 35 years of age. T. 21. Thompson testified that Pitchford was
emotional on occasion and would talk to himself. T. 15-16.
The next witness was Shirley Ann Jackson, Pitchford’s mother. T. 23. Ms. Jackson testified
that Pitchford starting hitting himself in the head around the age of 13 or 14. T. 24. When she asked
her son about his behavior, Pitchford told his mother that he heard voices. Id. Ms. Jackson
described an incident when Pitchford was 15; she found him on the bathroom floor with a bottle of
over-the-counter pain pills. T. 26-27, 29. She took him to the hospital. Id. According to Ms.
Jackson, the pills Pitchford had taken were not strong enough to do any harm and he was released.
T. 27. Later it was revealed that Pitchford had taken only six or seven naproxen tablets. T. 242. Ms.
Jackson told the court that Pitchford was suspended from school and had not completed eighth grade.
T. 37. She also admitted that she failed to provide any of this information when she testified at trial.
T. 38.
Next, Dominique Hogan, a former girlfriend and the mother of Pitchford’s only child, took
the stand. T. 41. Ms. Hogan testified that Pitchford had a fear of the dark, that she overheard him
talking to himself and that she had seen him fighting with himself. T. 43-44.
Pitchford’s last witness was Dr. Rahn Bailey, a psychiatrist. T. 55. Dr. Bailey’s testimony
was essentially a recitation of his unsigned report. T. 100, 110-11; Defendant’s Competency Hearing
Exhibit 2. The Petitioner admitted as much in his brief. Pet’s Br. at 23-24. Dr. Bailey evaluated
Pitchford on February 4, 2006, just days prior to the beginning of trial. T. 86. The evaluation lasted
approximately three hours. Id.
5
In addition to his report of the evaluation, Dr. Bailey provided two affidavits which were
attached to Pitchford’s PCR petition. The first affidavit was signed on November 8, 2007 and the
second was signed on September 22, 2011. Attached to Petition as Exhibit 3. In the affidavits, Dr.
Bailey stated, among other things, that he was hired to provide mitigation testimony in the event he
was convicted of capital murder. Id. His report, however, clearly identified that the “purpose of
[the] evaluation” was to “assess Mr. Pitchford’s competency to stand trial.” Def’s Hearing Exhibit
2. Rather than addressing any potential mitigation, Dr. Bailey’s report focused entirely on the issue
of competency. Id.
Despite the explanation given in his sworn affidavits, Dr. Bailey told the court that “my
initial understanding was that, as generally with these cases, I do the assessment for competency, I
would be available to come back if I was called . . . But it was my impression at the initial
consultation it was for competency to stand trial.” T. 213. Ultimately, Dr. Bailey concluded that
Pitchford was not competent to stand trial. The trial judge questioned Dr. Bailey about his
conclusion in the following exchange:
Q. 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 Court on everything I asked him. He had a show, at least in my book, looked like a pretty rational answer to everyquestion that I was asking about his constitutional rights and about everythingconcerning the process. So, you know, what is it out of this transcript of this abortedguilty plea that would lead one to think that it reflects that he is not competent?
A. “Well, my testimony is the part about him asking to speak to his motherargues against him being able to work with his attorney.
Q. But you just said that would be a natural thing for somebody to do to talk to a loved one or family or friend?
A. That’s true.
Q. So which is it? I mean, it either shows that he was rational wanting to talk
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to a family member or it shows that he wasn’t but you are saying two different things.
A. Well, I said I clearly think that his discussion with his lawyer throughout theevent on January 19th shows that he is aware of his communications. The lawyer,Carter even says in there at times when Mr. Pitchford says we haven’t discussedthese things or we haven’t discussed these things for a long time. It is very clear thatthere is a remarkably inconsistent process, a lot of communication, I think throughoutthe whole process. But, clearly, on that day they showed some disagreement aboutwhether they were communicating.
Mr. Pitchford’s communication with the Court do show that there was someback and forth and he showed he could understand and communicate effectively asyou were saying. I am explaining my comment earlier when asked about what I thinkabout him asking to speak with his mother, I think that argues against him havingconfidence in his lawyer.
Q. Well, maybe confidence in his lawyer but confidence in his lawyer and competency to plead guilty or go to trial are two drastically different things.
T. 215-16.
Dr. Bailey also attempted explained to the court, that Pitchford could not be considered
competent because he was unable to state a defense or alibi to the crime. T. 218-20. But, as noted
by the court, his inability to provide an alibi is because he did not have one–there was no legal
defense. Id.
Next, as evidence of Pitchford’s lack of competence, Dr. Bailey stated that Pitchford was
unable to maintain any long-term relationships other than with his family. T. 220. But his statement
was directly refuted by testimony from Pitchford’s girlfriend Ms. Hogue who testified that they had
known each other since they were 13 years old and started dating six months later. T. 42. The
couple dated for roughly six years up until Pitchford was incarcerated for capital murder at
approximately 19 years of age. Id. Dr. Bailey failed to explain the contradiction between his
rationale and the obvious facts.
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The final insult to Dr. Bailey’s credibility came after the State discovered a second report
drafted and signed by Dr Bailey. T. 195. The second report had not been previously disclosed to
the State during PCR proceedings. The signed report contained some insignificant corrections of
typos as well as some drastic substantive changes. T. 196-97. One compelling change concerned
Dr. Bailey’s testimony and conclusion, in the first unsigned report and his in-court testimony, that
Pitchford’s mental illness inhibited his ability to communicate with his attorney. Pet’s Exhibit 2 at
p.5. In the second signed report, this conclusion had been changed to reflect that Pitchford’s mental
illness does not inhibit his ability to communicate. T. 198; State’s Exhibit 1 at p.5. Dr. Bailey
attempted but failed to convincingly explain the contradictory statements. T. 198-203. Even the
court recognized the irreconcilable conflict in Dr. Bailey’s testimony and reports,
Well, I think the reason it sounds contradictory is because it is. Because yousay one thing in one report and something else in the other report that is totallyopposite. So, I mean, that’s a contradiction that I’m not understanding. So are yousaying that he–mental illness would or would not have inhibited his ability tocommunicate with his lawyer.
T. 203. Again, Dr. Bailey tried but failed to reconcile the glaring contradictions in the two reports.
Dr. Bailey’s testimony was peppered with contradictions which was best summarized by the trial
court;
Dr. Bailey’s report and testimony was long on conclusions. His signed andunsigned reports contradicted each other, and portions of the reports that contradictedother portions of the reports. His testimony was also very contradictory. Ultimately,this court finds there was not a foundational basis for much of his testimony, and thiscourt finds most of it lacking in credibility and believability.
T. 299.
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The State put on its case starting with Dr. Reb McMichael, a psychiatrist and chief of forensic
services at Mississippi State Hospital. T. 225. Dr. McMichael explained the evaluation process
generally and as related specifically to Pitchford. Dr. McMichael along with, Dr. Macvaugh and Dr.
Lott evaluated Pitchford for competency and to determine whether he was mentally retarded. T. 234.
The team of doctors evaluated Pitchford the month prior to trail and their conclusions were recorded
in a 19 page diagnostic summary. T. 235; State’s Exhibit 3. They unanimously determined that
Pitchford was competent to proceed to trial. Id. Dr. McMichael also reviewed Dr. Bailey’s
(unsigned) report and disagreed with essentially every conclusion reached therein. T. 236-37.
The State’s second witness was Dr. Gilbert Macvaugh, a forensic psychologist. T. 248. Dr.
Macvaugh shared the opinion that Pitchford was not suffering from a mental illness. T. 257. He also
stated that he suspected Pitchford was attempting to malinger symptoms of mental illness. T. 258.
Like Dr. McMichael, Dr. Macvaugh concluded that Pitchford was competent to proceed at the time
of trial. T. 259. Dr. Macvaugh also reiterated that nothing he reviewed or heard since the original
evaluation (such as in court testimony and transcripts from the failed plea hearing) had altered his
opinion. Dr. Macvaugh also offered comprehensive testimony of why Dr. Bailey’s diagnoses were
flawed. T. 262-65.
Under cross examination in response to questioning by defense counsel, Macvaugh discussed
the credibility of Shirley Jackson, Pitchford’s mother. The following exchange occurred between
defense counsel and Dr. Macvaugh;
Q. Is the reason that their testimony doesn’t in any way impactyour conclusion is because you don’t believe them or is it becauseeven if you believed what they said to be true, it still wouldn’t impactyour findings?
A. Well, that’s a good question. I think that I did have concerns,
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obviously, about the credibility of what they were testifying about in partbecause I understand how genuine mental illness works. I understand aboutthe typical age of onset of psychosis and when that occurs. That did not at allsquare with what the fact witnesses were describing about his alleged onsetof mental illness. That was the first major issue.
The second major issue is that based on my understanding of whatMr. Pitchford’s mother told Dr. McMichael when we evaluated Mr.Pitchford nine years ago, is that she would have had an opportunity to tell Dr.McMichael in January of 2006 all of the things that she testified to yesterdaybut my understanding is that she did not.
* * *
Q. And, in fact the mother testified that she didn’t think that it was actually voices, that she was a Christian, and she thought it was Satan talkingto him; did you hear her say that?
A. I did hear her say that.
Q. Okay. So after that, after her telling you that, you made a credibility determination based on her testimony?
A. Sorry. Is that a question?
Q. Yes, sir. I–I–I–you did make a credibility determination based on her testimony, didn’t you?
A. Well, I believe you asked me to. And I believe my determination wasin response to questions about that. And it is not perfect determinationbecause I did not get an opportunity to ask her questions myself which iswhat I would like to do if I were going to make a more reliable determinationif I could. But, and again, I am a little uncertain about the rules on this butI have read other information about Mr. Pitchford’s mother from some ofyour other experts in this case about Mr. Pitchford’s mother that alsothreatened or at least, potentially, threatened her credibility. I’m happy to getinto that if you would like for me to.
Q. You could just tell me what other experts that you are talking about. That would be helpful.
A. I am talking about an expert report that I was provided and reviewed by a Dr. Dudley, who I believe is a psychiatrist from New York who wasretained by the defense in this case after Dr. Bailey who went on at length
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about Mr. Pitchford’s report that his mother abuse him throughout hischildhood. So I don’t know that I can necessarily listen to his mother testifyyesterday without considering the possibility that she may have been involvedin some other things that may also weaken her credibility and I say “may”because I don’t know that for sure.
T. 265-68.
At the conclusion of the proof, the court recessed and returned a short time later with its
decision declaring that Pitchford was competent to proceed at the time of trial. T. 296-301.
SUMMARY OF THE ARGUMENT
In this death penalty case, the State has responded to all of the Petitioner’s assignments of
error and the sub-parts raised for review in this Court. Because the State has provided a thorough
response to each argument, the State requests leave to dispense with a more detailed Summary of
the Argument.
ARGUMENT
Ground One: The Competency Hearing Ordered in this Case Comported withthis Court’s Explicit Instructions and the Law as it existed at theTime.
In his first of two arguments, Pitchford presents a lengthy diatribe about the propriety of a
this Court ordering a retrospective competency hearing.3 The State submits that this entire
assignment of error is barred from consideration based on the Petitioner’s failure to raise the issue
in the trial court and by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(1)-(3). His
complaint should not now be heard.
Without waiving application of the bars, the State submits that the claim also lacks merit.
Pitchford relies heavily on this Court’s decision in Coleman v. State, 127 So.3d 161 (Miss. 2013)
3 Court Order dated February 14, 2013 No. 2010-DR-1032-SCT.
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for the proposition that a retrospective competency hearing is insufficient to satisfy the requirements
of Uniform Rules of Circuit and County Court Practice 9.06. Importantly, Coleman was decided
eight months after the Order granting a retrospective competency hearing in Pitchford’s case. The
Court held, in Coleman, that a retrospective competency hearing does not satisfy the purpose of Rule
9.06. Id. at 167. The Coleman opinion was careful to distinguish its holding from this case,
Finally, we note that the facts and circumstances presented in Pitchford weresignificantly different than those before us in the present case. In Pitchford, the trialcourt held a hearing, but defense counsel was not given notice that mentalcompetency 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 deniedColeman a hearing and determined that he somehow had waived his right to acompetency hearing, despite repeated requests for such a proceeding both before andduring trial. In Pitchford, the defendant’s competence to stand trial was determinedbased on a written report from the Mississippi State Hospital; but here, the trial courtbased its determination of Coleman’s competence to stand trial on a four-pagesummary report. Pitchford, 2010-DR-01032-SCT. We found that, under the factsin Pitchford, where the trial court held a mental competency hearing but did not givenotice to defense counsel, a retrospective mental competency hearing was sufficientto guard the defendant’s due process rights. Id. On the other hand, under the factsin this case, when the trial court simply denied the defendant a hearing, we find thata retrospective mental competency determination does not adequately protectColeman’s due process rights.
Id. at 167-68.
The Petitioner’s claim is self defeating based on the plain language and holding in Coleman.
This Court both ordered the retrospective competency hearing for Pitchford and later reaffirmed, in
Coleman, that such a procedure was proper. Try as he may to convince the Court that the
retrospective hearing should never have been ordered, no amount of legal maneuvering can avoid
the Court’s order in this case and the decision in Coleman.
In his brief, the Petitioner repeatedly attacked issues that occurred pre-trial which are not
proper for purposes of this appeal–issues that should have been raised in the direct appeal of his
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conviction and sentence but are now barred from further consideration. See Pet’s Br. at 14-17.
These issues– such as lack of notice, lack of opportunity to present witnesses and other evidence,
and allegations that the pre-trial competency determination was erroneous– were cured when this
Court ordered a retrospective competency hearing. Despite this Court’s explicit order and opinion
in Coleman, an undaunted Pitchford persisted with the argument that the Court was wrong to have
ever order a retrospective hearing. His argument is procedurally misplaced and barred from review.
Miss. Code Ann. § 99-39-21(3) (res judicata).
As for alleged issues that occurred during the actual hearing, Pitchford complained that the
trial court relied on evidence that would not have been available at the time of trial. Pet’s Br. at 21-
22. He specifically referred to Dr. Macvaugh’s testimony during cross examination. As noted supra,
Dr. Macvaugh was questioned by defense counsel about the credibility of Ms. Jackson’s (Pitchford’s
mother) testimony. In response, Dr. Macvaugh explained that he gave little regard to Ms. Jackson’s
testimony because she had provided inconsistent information to other experts. T. 265-68. Dr.
Macvaugh also testified that nothing he had heard or reviewed since the pre-trial evaluation of
Pitchford changed his opinion that Pitchford was competent to proceed. T. 293.
The testimony of which Pitchford now complains was elicited by his own counsel. He should
not be allowed to argue error that was created by his own actions. There is no basis for relief simply
because Pitchford does not like the answers given in response to his own questions.
Pitchford next argued that the passage of time rendered the retrospective competency hearing
unreliable because it had a negative impact on his expert’s credibility. Pet’s Br. at 23. The argument
is essentially that Dr. Bailey was not able to independently recall the content of the evaluation and
had to rely exclusively on his written report. In reality, the damage to Dr. Bailey’s credibility was
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his own testimony which, as discussed above, was full of contradictions. The death nail came when
the State introduced a second written report signed by Dr. Bailey which was in direct conflict, in
several important and substantive ways, with the first unsigned report.
Pitchford finally argues that the retrospective hearing was inadequate because the trial judge
was biased. This argument is barred from consideration by the doctrine of res judicata. Miss. Code
Ann. § 99-39-21(3). Prior to the retrospective competency hearing, the Petitioner filed a motion for
recusal of the trial judge with this Court. Pitchford v. State, 2010-DR-1032-SCT, Petition for
Review of Motion for Recusal, June 24, 2013. The motion was denied by order of this Court on
September 26, 2013. The issue is therefore procedurally barred.
Pitchford’s entire claim is nothing more than an attempt to challenge the propriety of this
Court’s order granting a retrospective competency hearing. There is no factual or legal support for
his argument. The hearing took place as this Court directed and in accordance with the law. The
alleged infirmities with the actual hearing, even as viewed most favorably to Pitchford, are
inconsequential. All that was necessary to comply with the constitution was notice and opportunity
to be heard which included the right to present witnesses and evidence. Pitchford was afforded both
of those. He had ample notice of the hearing during which he could have consulted as many experts
as the court allowed. Pitchford, however, chose to present expert testimony from only Dr. Bailey.4
The hearing is not rendered inadequate because Pitchford’s star witness was a disaster on the stand
and ultimately impeached with his own conflicting reports.
4 On March 26, 2014, a hearing was held on the State’s motion for a mental evaluation. As the undersigned counsel recalls, the Petitioner agreed not to present testimony from Dr.Dudley and Dr. Spica, who had evaluated Pitchford post-trial. As a result, the State’s motionwas either withdrawn or denied by the trial court.
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The Petitioner has presented nothing to this Court that should give it pause about the
propriety of a retrospective competency hearing or the reliability of the hearing that took place in this
case. The claim lacks any merit and should be denied. In addition, the Petitioner’s claim is barred
for failure to raise the issue in the trial court and/or by the doctrine of res judicata as having
previously been decided by this court.
Ground Two: The State’s Experts Cited and Applied the Proper Standard toDetermine Competence.
Pitchford’s second and final claim for relief is equally unavailing. He argues that the State’s
experts failed to apply the proper standard for competency. Not only is this claim barred for failing
to raise the issue at the competency hearing, it is also contradicted by the record.
In support of his specious claim, Pitchford pointed to excerpts of testimony from Drs.
McMichael and Macvaugh, though he does so incompletely. Drs. McMichael and Macvaugh’s
report correctly recites the standard for competency. State’s Ex. 3 at pp. 1, 18-19. Dr. McMichael’s
testimony was also consistent with the legal standard for competency. T. 234-35. After the State
finished redirect of Dr. McMichael, the following exchange occurred:
Q. [COURT] I want to ask you. Of course, Dr. Bailey and you are agreeing that competency can change from day-to-day. How are we as courts andjudges ever to feel secure as to whether somebody that is in front of us iscompetent on a particular day or not?
A. I think that if the defendant is not intellectually disabled and does not have a major mental disorder then one assumes that the defendant iscompetent. If the person does have a well-documented major mentaldisorder, depending on other factors, whether or not they are receivingtreatment, that competence can vary. Competence is time limited and issuespecific.
T. 245-46. Dr. McMichael’s response was simply one statement taken from much more descriptive
Dr. Macvaugh also discussed the report introduced into evidence which recited the legal
standard for competency. State’s Ex. 3. Dr. Macvaugh testified, under cross examination, to the
proper standard for competency;
Q. Do you know what the prevailing standard is for a determination ofcompetency in Mississippi?
A. Yes, sir.
Q. And, what is it?
A. It is almost verbatim the Dusky standard from Dusky v. United Statesin 1960, United States Supreme Court which is whether the defendant has thesufficient present ability to consult with his attorney with a reasonable degreeof rational understanding and whether or not he has a rational, as well asfactual, understanding of the proceedings against him.
I believe our Mississippi Supreme Court and again, I’m a psychologist, not a lawyer, but we are expected to know this stuff. I believe our Mississippi State Supreme Court interpreted or adopted theDusky case. In the case called Gamage v. State in 1987, I think it was firstaddressed in earlier case in 1983 called Caylor–C-A-Y-L-O-R v. State. Butin that case, unfortunately the doctors and I believe, the defense counsel if mymemory serves me correctly had confused the issues of competence andsanity so it wasn’t until four years later in the Gamage case that the SupremeCourt of Mississippi actually adopted the Dusky standard. And it is myunderstanding that that remains good law today. I think the Court hasexpanded on some of that in some subsequent case laws. Jay v. State,Sanders, etc. But it is still the basic Dusky standard.
Q. And does the Dusky standard incorporate the requirement that a recent hold issue for finding incompetence in the area is that a person has tosuffer from a major mental illness or defect?
A. It does not explicitly say that. No, sir.
Q. And also Caylor versus State and Gamage versus State doesn’t say that either, do they?
A. Not that I recall.
Q. And, in fact, there is no Mississippi Supreme Court case that says that
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in order to find someone incompetent, you first have to determine that theyhave a major mental illness or defect?
A. Not that I can recall. I wouldn’t want to commit to answering yourdefinition definitively because I would suspect that in some decision, at leastin some dicta, some discussion about the presence or absence of mentaldisease or defect is probably in the ballpark there but I can’t site a case inwhich they specifically rejected that word or adopted it.
* * *
Q. And just to be clear, your testimony is in order for someone to be found incompetent in the State of Mississippi, they first must be determinedto have a major mental illness or defect?
A. I think that depends on whether we are talking about an adult or a juvenile, and whether we are talking about someone who can speak adifferent language and come from a different culture. I think there arecertainly cases in which a defendant who does not speak English and who isnot familiar with the American criminal justice system may be before theCourt on serious felony charges and lack on adequate rational and factualunderstanding of the legal proceedings or may be impaired in their capacityto consult with counsel because of language barriers or cultural issues. Ithink whether that equates to incompetence or not is up to the Court and notthe doctors that make that evaluation.
* * *
Q. But other than those exceptions there has to be a finding of major mental illness or defect?
A. By finding do you mean a legal finding or a clinical conclusion?
Q. Well, you said you know what the law is so I am asking, legally, does there have to be a finding of a major mental illness or defect?
A. Well, again, I’m not a lawyer. Must understanding is that in the absence of a major mental disease or defect, the law assumes competenceprovided that those other variables that we just discussed–juveniles and folksfrom other cultures and other languages are not part of the equation.
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T. 276-79.
Contrary to Pitchford’s aspersions, Dr. Macvaugh was well versed in the law as it related to
competency as is plainly obvious from his testimony. And despite Pitchford’s argument, Dr.
Macvaugh did recognize, recite, and apply the correct standard for determining competency. See
Gammage v. Mississippi, 510 So.2d 802, 803 (Miss. 1987) (adopting the standard for competency
as announced in Dusky v. United States, 362 U.S. 402 (1960)). There simply is no factual or legal
support for Pitchford’s argument. To the extent either Dr. Macvaugh or Dr. McMichael’s testimony
can be construed as a misstatement of the law, their summary report correctly noted the standard for
competency. The summary report also contained their conclusion that Pitchford was competent at
the time of trial. Their in-court testimony reaffirmed that conclusion.
As a result, there is no merit to Pitchford’s argument. The retrospective competency hearing
comported with all dictates of the Constitution, prior precedent, and this Court’s order. His Ground
Two should be summarily denied.
CONCLUSION
Pitchford’s claims either singularly or collectively are unworthy of relief. His first claim is
nothing more than an attack on the Court’s order requiring a retrospective competency hearing which
is procedurally barred by res judicata and improper for direct appeal. His second claim is wholly
refuted by the record. The State respectfully asks that the Court affirm the trial court’s competency
finding and dismiss this appeal.
Respectfully submitted this the 30th day of December,2016,
JIM HOOD, ATTORNEY GENERALSTATE OF MISSISSIPPI
18
JASON L. DAVISASSISTANT ATTORNEY GENERAL
CAMERON L. BENTONSPECIAL ASSISTANT ATTORNEY GENERAL MSB NO. 101207
BY: s/ Cameron L. Benton CAMERON L. BENTON
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 220Jackson, MS 39205(601) 359-3680FAX: (601) [email protected]
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CERTIFICATE OF SERVICE
I, the undersigned, CAMERON L. BENTON, Special Assistant Attorney General
counsel for the State of Mississippi, do hereby certify that I have this day caused to be
electronically filed the foregoing pleadings with the Clerk of the Court using the ECF system
which sent notification of such filing to the following:
Louwlynn Vanzetta WilliamsJamila K. Alexander Mississippi Office of Capital Post-Conviction239 North Lamar Street, Suite 403Jackson, MS 39201
Respectfully submitted this the 30th day of December, 2016.
