                 IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 2014-KA-00123-SCT

STATE OF MISSISSIPPI

v.

KEVIN SCOTT a/k/a KEVIN V. SCOTT a/k/a
KEVIN VINCENT SCOTT a/k/a KELVIN SCOTT
a/k/a KELVIN VINCENT SCOTT


DATE OF JUDGMENT:                     01/14/2014
TRIAL JUDGE:                          HON. JOHNNIE E. WALLS, JR.
TRIAL COURT ATTORNEYS:                JASON L. DAVIS
                                      JAMES W. CRAIG
                                      MEGHAN SHAPIRO
COURT FROM WHICH APPEALED:            BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:              OFFICE OF THE ATTORNEY GENERAL
                                      BY: JASON L. DAVIS
                                          BRAD ALAN SMITH
ATTORNEYS FOR APPELLEE:               JAMES W. CRAIG
                                      MEGHAN SHAPIRO
NATURE OF THE CASE:                   CRIMINAL - DEATH PENALTY - POST
                                      CONVICTION
DISPOSITION:                          AFFIRMED AND REMANDED - 06/01/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      MAXWELL, JUSTICE, FOR THE COURT:

¶1.   A Bolivar County Circuit Court judge ruled death-row inmate Kevin Scott was

intellectually disabled and thus ineligible for the death penalty under the Eighth
Amendment.1 The State has appealed. It argues: (1) the trial judge ignored the mandate of

Scott II,2 which directed Scott take a specific malingering test before his intellectual-

disability hearing; (2) the trial judge abused his discretion when he permitted Scott’s experts

to testify at the intellectual-disability hearing; and (3) the trial judge failed to make

independent findings of fact and conclusions of law when ruling Scott intellectually disabled.

¶2.    We find no reversible error. The requirement to take a specific malingering test was

expressly overruled four months after the mandate in Scott II.3 And the admission of Scott’s

experts was within the sound discretion of the trial court. Finally—though the State had

ample opportunity to do so—it made no attempt to supplement the record to prove its

allegation that the trial judge recited Scott’s proposed findings instead of making his own

independent findings. In short, the State’s failure to provide record evidence of this claim

prohibits us from reviewing it.

¶3.    Thus, we must affirm the order vacating Scott’s death sentence based on the finding

of intellectual disability. This finding does not relieve Scott from criminal culpability and

punishment.4 Scott’s conviction for capital murder still stands. We remand this case to the



       1
         See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)
(holding that, based on “evolving standards of decency,” imposing the death penalty on
intellectually disabled persons violates the Eighth Amendment).
       2
           Scott v. State, 938 So. 2d 1233, 1238 (Miss. 2006) (Scott II).
       3
        See Lynch v. State, 951 So. 2d 549, 557 (Miss. 2007) (clarifying that an Atkins
claimant may use any approved tests and procedures and does not have to take the
Minnesota Multiphasic Personality Inventory II (MMPI-II)).
       4
           See Atkins, 536 U.S. at 306, 122 S. Ct. at 2244.

                                               2
Bolivar County Circuit Court for Scott to be resentenced.5

                         Background Facts and Procedural History

       I.       Direct Appeal

¶4.    In November 1995, eighteen-year-old Scott killed Richard Lee while stealing his car.6

In 1998, he was tried before a Bolivar County jury, which found him guilty of capital murder.

After a separate hearing, the jury sentenced Scott to death.

¶5.    Scott appealed. We affirmed Scott’s conviction and death sentence. Scott I, 878 So.

2d 933. In doing so, we rejected Scott’s argument that he was intellectually disabled

and—based on the recently handed-down United States Supreme Court opinion, Atkins v.

Virginia—ineligible for execution.7 See Atkins, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.

2d 335 (holding that imposing the death penalty on intellectually disabled persons violates

the Eighth and Fourteenth Amendments). But we acknowledged Scott could be eligible for

a hearing on his intellectual-disability claim if he attached a sufficient affidavit to his

postconviction-relief (PCR) application. Scott I, 878 So. 2d at 948.

       II.      PCR Application

¶6.    Scott timely filed an application for PCR, which we granted in part in 2006. We

remanded to the Bolivar County Circuit Court the single issue of Scott’s alleged intellectual


       5
           See note 16, infra.
       6
        More details of the murder and Scott’s related aggravated-assault conviction can be
found in Scott v. State, 878 So. 2d 933, 939-42 (Miss. 2004) (Scott I).
       7
        While Atkins used the term “mentally retarded,” as did this Court when we adopted
the Atkins standard, that term has since been replaced by “intellectually disabled.” See
Chase v. State, 171 So. 3d 463, 466 n.1 (Miss. 2015) (Chase III).

                                             3
disability. Scott II, 938 So. 2d at 1250.

¶7.    In contrast to his direct appeal, we found Scott had provided the necessary affidavit

to entitle him to an Atkins hearing. Id. at 1238. The State conceded the affidavit by Scott’s

expert, Dr. Marc Zimmerman, satisfied the deficiencies we found in Scott I. But the State

took issue with “the findings and methods of Dr. Zimmerman.” Scott II, 938 So. 2d at 1238.

In particular, the State asserted “Dr. Zimmerman failed to administer the Minnesota

Multiphasic Personality Inventory II (MMPI-II),” which at the time was “required prior to

an adjudication on a claim of mental retardation pursuant to Atkins.”8 Id. In response,

“Scott argued that the MMPI-II is not an appropriate test for individuals with mental

retardation,” citing Dr. Zimmerman’s opinion “that the MMPI-II test would be of

‘questionable value’ because Scott is unable to read beyond a third-grade level.” Id. But as

“this Court ha[d] not disregarded the MMPI-II test,” we mandated that, “prior to an

adjudication on the mental retardation issue, Scott must obtain a MMPI-II test.” Id.

¶8.    Four months later, however, this Court did disregard the MMPI-II—or at least stopped

making the MMPI-II a mandatory requirement. Lynch, 951 So. 2d at 557. Under the Atkins

guidelines adopted in Chase v. State, 873 So. 2d 1013, 1029 (Miss. 2004),9 this court held

that the defendant’s expert was permitted to perform the MMPI-II “and/or other similar


       8
        In this Court’s first Atkins case, we held “that the Minnesota Multiphasic
Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales
make the test best suited to detect malingering.” Foster v. State, 848 So. 2d 172, 175 (Miss.
2003).
       9
         All references in this opinion simply to “Chase” refer to our 2004 opinion, Chase
v. State, 873 So. 2d 1013 (Miss. 2004). Reference to other Chase v. State opinions are
distinguished by either “Chase II” or “Chase III.”

                                             4
tests.” Lynch, 951 So. 2d at 556 (quoting Chase, 873 So. 2d at 1029). So in Lynch, we

clarified that “trial courts are free to use any . . . approved tests . . . to determine mental

retardation and/or malingering by a defendant.” Id. at 557.

       III.    Atkins Hearing

¶9.    Scott’s Atkins hearing was finally held over two days in December 2013 and one day

in January 2014.

¶10.   For Scott’s Atkins hearing, Dr. Zimmerman appended his 2005 report to address

adaptive functioning. And in 2012, Dr. Zimmerman interviewed six of Scott’s family

members face-to-face, administering retroactive Vineland Surveys. Based on those surveys

and Scott’s school records, Dr. Zimmerman concluded Scott had adaptive-functioning

deficits in at least five areas.

¶11.   But Dr. Zimmerman left unaltered the part of his 2005 report in which he concluded

Scott’s similar results on two different IQ tests administered on the same day—a 63 on the

Wechsler Adult Intelligence Scale-III (WAIS-III) and a 65 on the Kaufman Adolescent and

Adult Intelligence Test (Kaufman)—sufficiently eliminated the possibility that Scott was

malingering.

¶12.   This prompted the State to start the hearing with an objection. The State argued Scott

should not be permitted to move forward because he had not complied with this Court’s

specific mandate in Scott II. The State conceded the specific directive to administer the

MMPI-II had been overruled by Lynch. However, it argued Scott’s expert still had to

administer some type of “malingering instrument” before the hearing. According to the



                                              5
State, Dr. Zimmerman’s method for ruling out malingering—back-to-back IQ tests on the

same day—would not suffice, because it had not been peer-reviewed or widely accepted in

the forensic-psychology field.

¶13.   The trial judge postponed ruling on the State’s motion until after Dr. Zimmerman

testified about his testing procedures. During Dr. Zimmerman’s redirect, Scott’s counsel

presented an article by Dr. Gilbert S. Macvaugh and Dr. Mark D. Cunningham, “Atkins v.

Virginia: Implications and Recommendations for Forensic Practice,” 37 J. Psychiatry & L.

131 (2009). According to the article, “Although several instruments exist that are designed

to assess malingering of memory and cognitive deficits, these instruments lack sufficient

normative data for persons with mental retardation in their standardized samples.”

Consequently, the study suggests that administering these instruments “create[s] the risk of

false positives.” Id. at 172-73. Moreover, the article claims studies investigating the validity

of malingering instruments on the intellectually disabled “have produced mixed results.” Id.

at 173. In Drs. Macvaugh and Cunningham’s opinion, assessing suboptimum effort is

“greatly assisted by the presence of intellectual assessment results that predate the capital

charge. The stability of results from repeated intellectual assessments that are separated by

years . . . is also of inferential benefit.” Id. While they admitted they were “aware of no

longitudinal research investigating this premise,” they opined “it would seem to be a task of

improbable complexity to ‘dial in’ a performance consistent with mild mental retardation on

multiple test administrations separated by years, particularly when different instruments have

been employed.” Id.



                                               6
¶14.   Based on this article, the trial judge overruled the State’s objection and accepted Dr.

Zimmerman’s expert testimony that, to a reasonable degree of certainty, Scott met the three

criteria for intellectual disability and was not malingering.

¶15.   The judge also overruled the State’s objection to school psychologist Gussie Farris

being tendered as an expert. Farris testified that when Scott was in eighth grade his mother

asked for a comprehensive assessment of Scott. As part of the assessment team, Farris

administered the Wechsler Intelligence Scale for Children (WISC) to Scott, who received a

full-scale score of 68. While this score put Scott in the intellectually disabled range, Farris

said she did not classify Scott as “educable mentally retarded” due to the unwritten school

policy not to classify African-American male students like Scott as educable mentally

retarded unless absolutely necessary.10        Because Scott’s scores “could go either

way”—meaning she could classify him as “educable mentally retarded” or “specific learning

disability”—she chose to classify him as the latter. But in her expert opinion, Scott was

mentally retarded.

¶16.   In addition to Dr. Zimmerman’s and Farris’s expert testimony, the trial judge heard

from two lay witnesses—Diane Scott, Scott’s mother; and Linda Brasel, Scott’s special-

education teacher.

¶17.   The State’s expert, Dr. Robert M. Storer, then testified.          In contrast to Dr.

       10
          Farris testified this policy stemmed from the “Mattie T.” litigation—a forty-year
class action based on disparate treatment of black special-education students in Mississippi.
See S. Herr, Special Education Law and Children with Reading and Other Disabilities, 28
J. Law & Educ. 337, 361 (July 1999)) (unpublished) (noting Mattie T. v. Holladay,
DC74-31(S) (N.D. Miss.), resulted in a consent decree “to overhaul Mississippi’s special
education system”).

                                              7
Zimmerman, Dr. Storer believed Scott was malingering. Dr. Storer had tested Scott in 2012.

He administered to Scott several malingering tests11 and the WAIS-IV. Dr. Storer concluded

Scott was exaggerating psychological symptoms and had given inconsistent effort. Because

of this, Dr. Storer testified he was unable to evaluate Scott’s true intellectual ability. Dr.

Storer also testified he was unable to conclude Scott had any adaptive-functioning deficits

due to conflicting information from Scott’s family members.

¶18.   At the conclusion of the hearing, the judge ruled that Scott had proved by a

preponderance of the evidence that he is intellectually disabled and, thus, under Atkins, could

not be executed. By order, the judge vacated Scott’s death sentence.

       IV.    State’s Appeal

¶19.   The State has appealed the trial judge’s order. The State raises five claims:

       1.     The trial judge reversibly erred when he denied the State’s objection
              that Dr. Zimmerman gave no malingering measure as ordered by this
              Court.

       2.     The trial judge erred in holding Dr. Zimmerman had administered a
              valid malingering test.

       3.     The trial judge erred regarding the testimony of school psychologist
              Gussie Farris.

       4.     The trial judge erred in relying on the testimony of Dr. Zimmerman to
              determine Scott was intellectually disabled.

       5.     The trial judge’s judgment must be vacated and remanded so that he
              may issue his own findings of fact and conclusions of law and enter a
              new judgment on that basis.

       11
        To test for effort and malingering, Dr. Storer administered the Rey Fifteen Item
Memory Test (RMT), the Test of Memory Malingering (TOMM), the Miller Forensic
Assessment of Symptoms Test (M-FAST), and the Validity Indicator Profile (VIP).

                                              8
                                         Discussion

       I.     No Record Evidence

¶20.   We begin with the State’s last claim—the trial judge failed to make independent

findings. The State asserts the judgment was not based on the circuit court’s own findings

of facts and conclusions of law but instead reflects an almost-verbatim adoption of Scott’s

proposed findings of facts and conclusions of law.

¶21.   This is a serious allegation. As this Court has said, “[t]he ultimate issue of whether

[an Atkins claimant] is, in fact, [intellectually disabled] for purposes of the Eighth

Amendment, is one for the trial judge, who sits as the trier of fact and assesses the totality

of the evidence as well as the credibility of witnesses.” Doss v. State, 19 So. 3d 690, 714

(Miss. 2009). And only when a trial judge’s finding on intellectual disability is “clearly

erroneous” may this Court disturb it. Goodin v. State, 102 So. 3d 1102, 1111 (Miss. 2012).

But how can this Court apply a “clearly erroneous” standard when there is serious doubt as

to whether the trial judge made his own findings on the issue of Scott’s intellectual

disability?   In other words, adopting one side’s proposed findings—versus making

independent findings—seriously undermines the trial judge’s role as the fact-and-credibility

finder, as well as this Court’s deferential standard of review. Indeed, in Chase v. State, 112

So. 3d 421, 422 (Miss. 2013) (Chase II), the trial judge’s wholesale adoption of the State’s

proposed findings “rais[ed] concerns”—so much so that this Court specifically mandated the

trial judge “issue his own Findings of Fact and Conclusions of Law” on remand.

¶22.   But after contending that the trial judge’s adoption of Scott’s proposed findings



                                              9
requires reversal, the State wholly fails to support its contention with record evidence.

Instead, the State attached a copy of Scott’s proposed findings as an exhibit to its brief,

asking us to compare the document with the judge’s order. But as the State is well aware,

the State did not make this document part of the record, and merely attaching something to

a brief does not make it record evidence. And as the State is also well aware, this court is

precluded from delving into matters outside the record. See Hampton v. State, 148 So. 3d

992, 995 (Miss. 2014) (and cases cited therein); Keller v. State, 138 So. 3d 817, 873-74

(Miss. 2014). The State does not explain why it never sought to make Scott’s proposed

findings of facts and conclusions of law a part of the record. Nor does it explain why it never

moved to supplement the record once it was filed with this Court. See M.R.A.P. 10(e).

¶23.   Moreover, given the seriousness of the State’s contention—and Scott’s concession of

the similarity between his proposed findings and the judge’s order—this Court actually

ordered the Bolivar County Circuit Court to make an evidentiary finding whether the

document the State attached to its brief had in fact been submitted by Scott’s counsel to the

trial judge. Prior to the trial court’s determination, the State made no attempt to present

evidence to the trial court to support its contention or otherwise ensure Scott’s proposed

findings became part of the record. It simply sat idly by.

¶24.   Thus, through the State’s inaction, we are left with a serious appellate issue that has

no support in the record. Consequently, because there is no record evidence to support this

allegation, our precedent demands we find this issue to be without merit.

       II.    No “Malingering Test”



                                              10
¶25.   The State’s first two appellate issues center on the fact Dr. Zimmerman never

administered a test specifically designed to detect malingering.12 According to the State, Dr.

Zimmerman’s failure to give a “malingering test” ignored our mandate in Scott II and also

fell short of meeting Chase’s requirements.

              A.      Scott II’s Overruling

¶26.   The State concedes the requirement that Scott take the MMPI-II was overruled by

Lynch. But it still insists Scott had to undergo some sort of malingering test to comply with

Scott II. However, our mandate in Scott II was based on a specific point of law—“The

MMPI-II test is required prior to adjudication on a claim of mental retardation pursuant to

Atkins and Chase.” Scott II, 938 So. 2d at 1233. And that specific point of law was

expressly overruled. Lynch, 951 So. 2d at 557. With that overruling went the requirement

that Scott had to obtain any further testing before his Atkins hearing.

              B.      Chase’s Requirements

¶27.   With Scott II’s additional MMPI-II requirement overruled, Scott had the same burden

as any other Atkins claimant in Mississippi. In Chase, we held—

       [N]o defendant may be adjudged mentally retarded for purposes of the Eighth
       Amendment, unless such defendant produces, at a minimum, an expert who

       12
          Malingering is the “intentional production of false or grossly exaggerated physical
or psychological symptoms, motivated by external incentives such as avoiding military duty,
avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining
drugs.” Foster, 848 So. 2d at 175 (Miss. 2003); see also Scott II, 878 So. 2d at 946
(defining malingering as “grossly exaggerating or fabricating information” for reasons
including “avoiding arrest or evading prosecution and incarceration”). In the death-penalty
context, malingering has been described as the “deliberate feigning of [intellectual disability]
in order to avoid the death penalty.” Thomas v. Allen, 614 F. Supp. 2d 1257, 1302 (N.D.
Ala. 2009).

                                              11
       expresses an opinion, to a reasonable degree of certainty, that:

              1.      The defendant is mentally retarded, as that term is
                      defined by the American Association on Mental
                      Retardation and/or The American Psychiatric
                      Association;13

              2.      The defendant has completed the Minnesota Multi phasic
                      Personality Inventory-II (MMPI-II) and/or other similar
                      tests, and the defendant is not malingering.

Chase, 873 So. 2d at 1029.

¶28.   According to the State, to meet Chase’s second prong, Dr. Zimmerman had to

administer a test specifically designed to detect malingering—simply administering two

different IQ tests and comparing the results could not suffice.

¶29.   We disagree. As this court previously clarified in Lynch, there is no mandate of

specific testing to meet Chase’s requirements. Lynch, 951 So. 2d at 556-57. Instead, Scott

could rely on “any other tests and procedures permitted under the Mississippi Rules of

Evidence, and deemed necessary to assist the expert and the trial court in forming an opinion

as to whether the defendant is malingering.” Chase, 873 So. 2d at 1028 n.19 (emphasis

added).

¶30.   Here, both Scott’s expert and the State’s expert did agree on one thing. Both claimed

       13
          In 2004, we adopted both the American Association on Mental Retardation
(AAMR)’s and the American Psychiatric Association (APA)’s then-current definitions of
“mental retardation.” Chase, 873 So. 2d at 1027-28. A decade later, we updated the term
“mental retardation” to “intellectual disability” and adopted the latest definitions by AAMR,
now the American Association for Intellectual and Developmental Disability (AAIDD) and
the APA. Chase III, 171 So. 3d at 469-70. “The new AAIDD and APA definitions are
similar and require the same three basic elements of intellectual disability as the earlier
definitions: significantly subaverage intellectual functioning, significant deficits in adaptive
behavior, and manifestation before age eighteen.” Id.

                                              12
no malingering test has been “normed” for the intellectually disabled. For this reason, Dr.

Zimmerman administered no malingering tests, instead finding consistency across different

IQ tests ruled out malingering. By contrast, Dr. Storer administered four malingering tests,

finding consistency across different malingering tests indicated malingering. “Neither side’s

methodology, approach, or understanding of the issue is infallible.” Doss, 19 So. 3d at 714.

So long as the expert opinion about malingering is admissible under our Rules of Evidence,

the chosen method for reaching that conclusion goes to the weight and credibility of the

expert opinion, not its sufficiency to meet Chase’s requirement. See Chase, 873 So. 2d at

1028 n.19; see also Phillips v. State, 984 So. 2d 503, 510 (Fla. 2008) (deferring to the trial

court’s determination that the state’s expert, who testified the defendant was malingering,

was more credible than the defendant’s expert, who did not test the defendant for

malingering).

                C.   Mississippi Rule of Evidence 702

¶31.   This brings us to the State’s alternative argument that Dr. Zimmerman’s expert

opinion that Scott was not malingering was inadmissible under Rule 702 because the back-to-

back-IQ-test procedure does not find support within the forensic-psychology community.

See M.R.E. 702.

¶32.   Under Rule 702:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) the testimony
       is based upon sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles


                                              13
       and methods reliably to the facts of the case.

Essentially, the State is arguing Dr. Zimmerman’s testimony about malingering does not meet

the second prong because it is not the product of reliable principles and methods.

¶33.   But at the Atkins hearing, Scott presented evidence the forensic-psychology

community has accepted Dr. Zimmerman’s method—namely, the article by Dr. Macvaugh

and Dr. Cunningham. In addressing the suggestion no malingering test has been normed for

the intellectually disabled, Dr. Macvaugh and Dr. Cunningham opined that assessing

suboptimum effort is “greatly assisted by the presence of intellectual assessment results that

predate the capital charge. The stability of results from repeated intellectual assessments

that are separated by years . . . is also of inferential benefit.” Macvaugh & Cunningham,

supra at 173. While admittedly not aware of any “longitudinal research investigating this

premise,” in their view “it would seem to be a task of improbable complexity to ‘dial in’ a

performance consistent with mild mental retardation on multiple test administrations

separated by years, particularly when different instruments have been employed.” Id.

¶34.   The State argues Dr. Zimmerman’s back-to-back IQ testing did not put into practice

the article’s theory that it would be difficult to fake consistent scores on different tests

“separated by years.” But Dr. Zimmerman did not rely solely on back-to-back tests. In line

with the article, Dr. Zimmerman compared Scott’s scores on the two IQ tests he had

administered in 2005 with Scott’s scores on four prior IQ tests administered years earlier, two

of which were administered before he committed the capital crime, all of which yielded




                                              14
scores in the intellectually disabled range.14

¶35.   Admission of expert testimony is within the sound discretion of the trial court. Bishop

v. State, 982 So. 2d 371, 380 (Miss. 2008). And here, the trial court considered Dr.

Macvaugh and Dr. Cunningham’s article when ultimately ruling Dr. Zimmerman’s opinion

on malingering was reliable. Given our deferential standard of review, we find no reversible

error in admitting Dr. Zimmerman’s expert opinion that Scott’s multiple consistent IQ scores

in the intellectually disabled range ruled out the possibility of malingering.15

       III.   Additional Expert



       14
          Scott first was tested in 1992, when he applied for Social Security disability
benefits. He scored a 48. A year later, Farris administered the WISC as part of the
comprehensive assessment by Scott’s school. Scott obtained a full-scale score of 68. And
after he was arrested, Scott took the WAIS-III twice in 1997. The State’s expert, Dr. Criss
Lott, assessed Scott a full-scale score of 73. And Scott’s expert, Dr. Mulry Tetlow, gave
Scott a full-scale score of 60. In Chase, this Court adopted the American Psychiatric
Association’s view “that ‘mild’ mental retardation is typically used to describe persons with
an IQ level of 50-55 to approximately 70,” though “mental retardation may, under certain
conditions, be present in an individual with an IQ of up to 75.” Chase, 873 So. 2d at 1028.
       15
           Other jurisdictions have relied on this comparative method to rule out malingering.
E.g., Brumfield v. Cain, 808 F.3d 1041, 1060 (5th Cir. 2015) (rejecting Louisiana’s
argument that the defendant’s low IQ scores were the result of “low effort” in part because
the defendant’s expert testified the defendant’s “consistent scores across multiple tests over
multiple years ruled out malingering”); U.S. v. Nelson, 419 F. Supp. 2d 891, 902 (E.D. La.
2006) (finding the “most compelling argument against the possibility of malingering in this
case is the overwhelming consistency among all the intelligence testing”); Black v. State,
2005 WL 2662577, at *5 (Tenn. Crim. App. Oct. 19, 2005) (unreported) (noting the
defendant’s expert saw no evidence of malingering, even though he did not specifically test
for it, because “he administered a battery of tests, which would in effect rule out malingering
because it’s difficult to perform poorly on the same concept on various tests”); see also Hall
v. Florida, 134 S. Ct. 1986, 2011, 188 L. Ed. 2d 1007 (2014) (Alito, J., dissenting)
(dissenting in part based on the “well-accepted view . . . that multiple consistent scores
establish a much higher degree of confidence” that the score is an accurate reflection of the
defendant’s actual intellectual ability”).

                                                 15
¶36.       In addition to challenging the admissibility of Dr. Zimmerman’s expert testimony, the

State also argues the trial judge erred by permitting school psychologist Gussie Farris to

testify.

¶37.       According to the State, “Chase requires a ‘licensed psychologist[,]’ which Farris is

not.” Instead, Farris is a masters-level school psychologist for the Coahoma County School

District, licensed through the Mississippi Department of Education, with more than thirty

years’ experience in special education and administration of IQ tests.

¶38.       The State is correct that Chase requires an expert opinion from “a licensed

psychologist or psychiatrist, qualified as an expert in the field of assessing [intellectual

disability], and further qualified as an expert in the administration and interpretation of tests,

and in the evaluation of persons, for purposes of determining [intellectual disability].”

Chase, 873 So. 2d at 1029. But “[u]pon meeting this initial requirement to go forward, the

defendant may present such other opinions and evidence as the trial court may allow pursuant

to the Mississippi Rules of Evidence.” Id. In other words, while Chase requires the expert

opinion of at least one licensed psychologist, it does not restrict expert testimony to licensed

psychologists only. Instead, so long as Farris properly qualified as an expert under

Mississippi Rule of Evidence 702, she could give an expert opinion at Scott’s hearing.

Chase, 873 So. 2d at 1029.

¶39.       Again, we point out the admission of expert testimony is within the sound discretion

of the trial court. Bishop, 982 So. 2d at 380. To be admissible, “[e]xpert testimony must be

relevant and reliable.” Bateman v. State, 125 So. 3d 616, 625 (Miss. 2013). And here,



                                                16
Farris’s testimony was both. Her testimony of Scott’s 1993 assessment and school records

was relevant. And her education and experience supported the trial judge’s finding that her

expert testimony was reliable. Thus, the trial judge did not abuse his discretion when he

admitted Farris as an expert.

¶40.   Still, the State challenges Farris’s reliability, arguing she made statements during

cross-examination that showed she was biased. But concerns of bias go to the weight and

credibility of Farris’s testimony, not its admissibility. And the trial judge—not this court—is

the “sole authority for determining credibility of the witnesses.” Doss, 19 So. 3d at 694

(quoting Loden v. State, 971 So. 2d 548, 572-573 (Miss. 2007)). The trial judge found

Farris’s testimony to be credible. Our standard of review requires we defer to his credibility

determination.

       IV.     Opposing Experts

¶41.   In its first two issues, the State challenged the legal sufficiency and admissibility of

Dr. Zimmerman’s expert testimony, based on his underlying methodology. In its fourth

issue, the State challenges the weight the trial judge afforded Dr. Zimmerman’s expert

testimony that Scott met all three criteria of intellectual disability. Essentially, the State

argues the trial judge picked the wrong expert. Instead of relying on Dr. Zimmerman’s

opinion to support a holding of intellectual disability, the State suggests the trial judge should

have believed the view of its expert, Dr. Storer, who found Scott was malingering.

¶42.   But our legal role as a reviewing court is not to second-guess whether Dr. Storer’s

opinion that Scott was malingering was more credible than Dr. Zimmerman’s opinion that



                                               17
Scott was intellectually disabled. Instead, in cases like this one, where “we have . . . experts

who take opposite positions as to whether” Scott is intellectually disabled, Mississippi law

requires we defer to the trial judge, who “sits as the trier of fact and assesses the totality of

the evidence as well as the credibility of witnesses.” Doss, 19 So. 3d at 714. Only when a

trial judge’s finding on intellectual disability is “clearly erroneous” may we disturb it.

Goodin v. State, 102 So. 3d 1102, 1111 (Miss. 2012). But the mere likelihood we would not

have bought a particular expert’s view or would have ruled differently than the trial judge

does not amount to clear error. Booker v. State, 5 So. 3d 356, 358 n.2 (Miss. 2008) (citing

Easley v. Cromartie, 532 U.S. 234, 242, 121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001)).

¶43.   Here, the trial judge was faced with battling experts. Scott’s consisted of a licensed

forensic psychologist and a school psychologist who both testified Scott was intellectually

disabled. And the State offered a licensed psychology expert who testified he could not

reach a reasonable degree of certainty about the issue. After hearing from all experts, the

judge found Dr. Zimmerman’s and Farris’s testimony to be more credible. This finding is

entitled to deference. See Doss, 19 So. 3d at 714; see also Phillips, 984 So. 2d at 510

(“Although Phillips challenges the trial court’s credibility finding, we give deference to the

court’s evaluation of the expert opinions.”).

¶44.   Further, this finding was supported by lay testimony of Scott’s mother and special-

education teacher, Scott’s school records, and the fact he had received social security

disability benefits as a teenager based on “severe mental retardation.” Therefore, we do not

disturb the trial judge’s finding of intellectual disability on appeal.



                                                18
                                         Conclusion

¶45.   Finding no reversible error supported by the record, we affirm the trial court’s

judgment vacating Scott’s death sentence. While Scott may not be executed due to his

intellectual disability, “mentally retarded persons who meet the law’s requirements for

criminal responsibility should be tried and punished when they commit crimes.” See Atkins,

536 U.S. at 306, 122 S. Ct. at 2244, 153 L. Ed. 2d 335. So Scott still must be punished for

capital murder. As he has yet to be resentenced, we remand this case to the Bolivar County

Circuit Court for resentencing.16

¶46.   AFFIRMED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.




       16
          At the time Scott murdered Lee in November 1995, Mississippi Code Section 99-
19-101(2)(d) (Rev. 1994) provided—as it still does today—three sentencing options for
capital murder—life, life without the eligibility of parole, and death. Cf. Miss. Code Ann.
§ 99-19-101(2)(d) (Rev. 2015). But a year prior to the murder, the Legislature amended
Mississippi Code Section 47-7-3, the parole-eligibility statute, to remove parole eligibility
for capital murder. Instead, “[n]o person shall be eligible for parole who is charged, tried,
convicted and sentenced to life imprisonment under the provisions of Section 99-19-101[.]”
1994 Miss. Laws First Exec. Sess. ch. 25, § 5 (S.B. 2003) (currently codified as Miss. Code
Ann. § 47-7-3(1)(e) (Rev. 2015)). Reading Section 99-19-101 together with Section 47-7-3,
this Court has found there are only two sentencing options for capital murder—“death or life
imprisonment without the eligibility of parole.” Flowers v. State, 842 So. 2d 531, 557
(Miss. 2003). With Scott’s death sentence vacated as unconstitutional due to his intellectual
disability, only one available sentencing option is left—life without the eligibility of parole.

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