                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2003-DR-01335-SCT

RICKY CHASE


v.


STATE OF MISSISSIPPI


DATE OF JUDGMENT:                               2/28/1990
TRIAL JUDGE:                                    HON. JOE N. PIGOTT
COURT FROM WHICH APPEALED:                      COPIAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         CYNTHIA STEWART
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                              DUNN LAMPTON
NATURE OF THE CASE:                             CIVIL - DEATH PENALTY - POST-
                                                CONVICTION
DISPOSITION:                                    SUCCESSIVE APPLICATION FOR LEAVE TO
                                                SEEK POST-CONVICTION RELIEF GRANTED
                                                IN PART AND DENIED IN PART - 05/20/2004

MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     On June 20, 2002, the United States Supreme Court decided that execution of the mentally

retarded constitutes cruel and unusual punishment and is therefore prohibited by the Eighth Amendment to

the United States Constitution. Atkins v. Virginia, 536 U.S. 304,122 S.Ct. 2242,153, L.Ed. 2d 335

(2002). As a result, numerous hopeful death row inmates have engaged in exhaustive research and

reexamination of their trial records to determine whether the issue of mental retardation was raised. Many
who claim it was raised are now applying for leave to seek post-conviction relief. This case involves one

such death row inmate.

                                 I. Facts and Procedural History

¶2.     Almost fifteen years ago, Ricky Chase and Robert Washington entered the home of Elmer and

Doris Hart in Hazlehurst while Elmer was away. They overpowered Doris, bound her, and began

ransacking the home. During the robbery, Elmer returned home and attempted to free his wife, but was

shot in the head and killed. Chase and Washington each claimed that the other was the killer and the

mastermind of the robbery.

¶3.     Washington pled guilty, received a life sentence and testified against Chase, who was tried and

convicted of capital murder on February 28, 1990, and sentenced to death. Chase's conviction and

sentence were affirmed by this Court on direct appeal. See Chase v. State, 645 So.2d 829 (Miss.

1994), cert. denied, Chase v. Mississippi, 515 U.S. 1123, 115 S.Ct. 2279, 132 L. Ed. 2d 282

rehearing denied, 515 U.S. 1179, 116 S.Ct. 20,132 L.Ed.2d 903 (1995). Thereafter, this Court set

an execution date of October 11, 1995.

¶4.     Six days before the execution was to be carried out, Chase filed in the United States District Court

for the Southern District of Mississippi, a motion for stay of execution and appointment of counsel to assist

him in pursuing his federal habeas corpus remedies. The stay was granted one day before the execution

was to be carried out, and attorney Cynthia Stewart, was appointed to represent Chase. However,

instead of proceeding in federal court, Chase returned to this Court on July 15, 1996, and filed an

Application for Leave to File Motion1 to Vacate Judgment and Death Sentence, which raised fifteen issues.


        1
        The type of motion Chase asked this Court to allow him to pursue in the trial court is known
by various names, including motion for writ of state habeas corpus, motion to vacate death sentence,

                                                     2
On August 7, 1997, this Court denied the Application in its entirety. See Chase v. State, 699 So. 2d

521 (Miss. 1997).

¶5.     Chase then turned back to the federal courts and filed a petition for writ of habeas corpus, which

was denied by the United States District Court on January 2, 2001 (separate final judgment entered

January 19, 2001). The denial of federal habeas corpus was affirmed, Chase v. Epps, 74 Fed. Appx.

339 (5th Cir.), rehearing and rehearing en banc denied, 83 Fed. Appx. 674 (5th Cir. 2003), cert.

denied. 541 U.S.__ (May 17, 2004) (No. 03-9512). In the meantime, the Atkins decision was handed

down, which prompted Chase to file with this Court his Successive Application For Leave to File Motion

to Vacate Death Sentence. ¶6.             Ordinarily, a criminal defendant is allowed to file only one

application with this Court for leave to proceed in the trial court with a motion for post-conviction relief.2

However, there are narrow exceptions, one of which is where “there has been an intervening decision

of the Supreme Court of . . . the United States which would have actually adversely affected the outcome

of his . . . sentence. . . .” MISS. CODE ANN. § 99-39-27 (9) (Supp. 2000) (emphasis added). Because

Atkins is such an “intervening decision,”3 the Application is not barred as a successive application, and

is eligible to be considered on its merits.4 After the Successive Application was filed, the State filed its


and motion for PCR, or post conviction relief. Such motions, and applications to this Court for leave to
file them, are governed by the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss Code
Ann. §§ 99-39-1 to -29 (Rev. 2000 & Supp. 2003).
        2
        MISS. CODE ANN. § 99-39-27 (9). Additionally, the application was filed more than one year
following Chase’s conviction. Therefore, unless it falls within one of the statutory exceptions, the
Successive Application is time barred by MISS. CODE ANN. § 99-39-5 (2) (Supp. 2003).
        3
         The State concedes that Atkins qualifies as an “intervening decision which could possibly have
actually adversely affected the outcome of Chase’s sentence in this case.”
        4
        In cases where successive applications are filed, this Court may examine the “application,
motion, exhibits, the prior record, and the state’s response, together with any exhibits submitted

                                                      3
response. Chase then filed a Motion to Amend his Successive Application. The State followed up with

its response. We now proceed to analyze the matters before us to determine whether this Court should

rule directly on the merits of Chase’s Amended Successive Application, or allow Chase to file it with the

trial court, followed there by an evidentiary hearing.

                 II. The Successive Application for Post-Conviction Relief

¶7.     We first turn to Chase’s Successive Application for Post-Conviction Relief, his Motion to Amend

the Successive Application, and the State’s response, and analyze each in light of Atkins.

¶8.     Chase’s Successive Application essentially asserts that Chase is mentally retarded and, therefore,

exempt from the death penalty. The State is aggressively opposed to both Chase’s Successive Application,

and his proposed motion, for several reasons.

        1. Deficiencies in the Successive Application.

¶9.     The State alleges numerous deficiencies in Chase’s Successive Application. We find each should

be separately addressed.

        Was the Successive Application Prepared for Chase, or a Different Prisoner?

¶10.    Attached to the Successive Application is Chase’s proposed Motion to Vacate Death Sentence

which Chase hopes to pursue, provided his Successive Application is successful. The proposed Motion

to Vacate Death Sentence included a discussion of certain test scores, alleged testing by Dr. Mark

Zimmerman, school records, and testimony of a sister who refers, not to "Ricky" but, to "Ronnie."

Additionally, the motion cites to an attached affidavit from Dr. Mark Webb, dated February 4, 1998.

However, the motion also cites to affidavits of Dr. Zimmerman and Sandra Chase, neither of which is


therewith . . . ,” and “grant or deny any or all relief requested in the attached motion . . . .” MISS. CODE
ANN. § 99-39-27 (7) (a). Alternatively, this Court may “[a]llow the filing of the motion in the trial court
for further proceedings . . . .” MISS. CODE ANN. § 99-39-27 (7) (b).

                                                         4
attached. The motion also states, “ Chase alleges that Dr. Zimmerman examined him at Parchman on

December 31, 2002.”

¶11.    The State responded to the Successive Application by alleging that Chase (or the lawyer who filed

the Successive Application on Chase’s behalf) used an Emergency Application filed with this Court in

January 2003 on behalf of another death row inmate, Ron Chris Foster,5 and simply substituted Chase's

name for Foster's in the text of the Application. According to the State,"[n]one of the factual information

contained in this proposed motion relates to Ricky Chase -- it is all copied verbatim from the Foster

memorandum."

¶12.    As additional support for its contention that Chase’s Successive Application was not prepared for

Chase, the State filed the affidavit of Mary Tucker, property officer at the Mississippi Correctional Facility

located at Parchman. Tucker’s affidavit stated that she had reviewed the inmate visit records, and that Dr.

Zimmerman did not visit Chase on December 31, 2002. This, the State claims, supports its allegation that

counsel for Chase used the petition filed on behalf of Foster, and substituted Chase's name for Foster's.

¶13.    Apparently, after studying the State’s allegations for approximately six weeks, counsel for Chase

found them to be meritorious. On September 3, 2003, Chase filed a Motion to Amend Successive

Application for Leave to File for Post-Conviction Relief. Attached thereto was the Amended Successive

Application and a new (unsigned) Motion to Vacate Death Sentence. In the Motion to Amend, counsel

stated that she “inadvertently failed to remove several paragraphs specific to the Foster petition . . . .”




        5
         In January, 2003, Chris Foster filed an application for post-conviction relief, claiming that he
was mentally retarded and, therefore, protected by Atkins from execution. This Court remanded the
matter to the circuit court on the issue of his alleged mental retardation. Foster v. State, 848 So. 2d
172 (Miss. 2003).

                                                      5
¶14.    By way of attempted explanation, Chase's attorney, Cynthia Stewart, claims that she had not had

significant involvement in Chase's case prior to filing the motion. Characterizing Stewart’s claim as

“disingenuous,” the State points out Stewart’s considerable involvement, including that she was“sole

counsel for Chase on state post-conviction review.6

¶15.    The Motion to Amend claims that the amendment will not prejudice the State, and that “[t]he

amendment is necessary in the interest of justice to correctly state the facts on which Chase relies in his

Atkins claim.” We agree.

        Did Chase Fail to Comply With the Requirements of MISS. CODE ANN. § 99-39-11

(3)?

¶16.    The State also urges us to find that Chase failed to verify the documents pending before us.

Specifically, the State claims that the successive application filed by Chase fails to comply with the dictates

of Miss. Code Ann. § 99-39-11 (3), which states:

                 (3) The motion shall be verified by the oath of the prisoner.

The State informs us that it finds “no verification by Chase” of the “motion to amend or the attached

application or proposed petition.”




        6
          There can be no doubt that the legal profession in general, and trial counsel (plaintiff and
defense) and the judiciary in particular, have come under serious attack in Mississippi and, really, the
entire country, in the last decade. Many, claiming they see lack of integrity and honor, have lost
confidence in the system itself. This Court accepts its share of the blame for failing to require strict and
faithful compliance with the ethical and professional responsibilities of those entrusted with the privilege
of practicing law and serving in judicial office.
         The counsel and trial judges involved in several recent cases were placed on notice that,
following a short warning period, that will change. This Court will begin strictly enforcing the obligations
of fidelity to the law and commitment to the oath, when practicing law and serving in the judiciary. We
take this opportunity to serve notice that the warning period will soon end.

                                                      6
¶17.    We find no requirement of verification in MISS. CODE ANN. § 99-39-11(3). Nor do we find

anywhere any requirement of verification of an application to this Court for leave to proceed in the trial

court, or of a motion to amend the application. However, verification of the Motion to Vacate Death

Sentence is required by MISS. CODE ANN. § 99-39-9(3). Although Stewart did not even sign the Motion

to Vacate Death Sentence attached to the Successive Application, she did sign the Motion to Vacate Death

Sentence attached to the Motion to Amend the Successive Application. However, the verification required

by statute was not included, and Stewart did not sign the Certificate of Service.

¶18.    The provisions of Miss. Code Ann. § 99-39-27(2) (Supp. 2003), clearly require the petitioner to

attach to the Application (and any successive application) filed with this Court, “the original and two (2)

executed copies of the motion proposed to be filed in the trial court . . . .” Since verification of the Motion

to Vacate Death Sentence is statutorily required, execution of the motion is not complete until it is verified.

Absent “substantial compliance” with the requirements of MISS. CODE ANN. § 99-39-9(4) (Supp. 2003),

a prisoner sentenced to death faces possible dismissal of his application and motion. Id.

¶19.    This oversight is inexcusable particularly in a death penalty case. Nevertheless, we see nothing to

be gained in this particular case by returning the Motion and Application for verification, and we are loathe

to dismiss Chase’s Application and Motion due to errors by his counsel. See Puckett v. State, 834 So.

2d 676, 678 (Miss. 2002) (when a party is prohibited from exercising right to proceed by circumstances

clearly beyond his control, and due process and fundamental fairness issues are present, relief is justified).

We therefore now proceed to evaluate the Motion to Amend Successive Application and the proposed

Motion to Vacate Death Sentence.

¶20.    The argument presented by Chase's counsel in support of the Motion to Vacate Death Sentence,

is as follows:

                                                      7
        Ricky Chase meets the test for mental retardation under any standard. Dr. Mark Webb,
        who was the original expert on Chase's first post-conviction petition, evaluated Chase's
        medical records for mental retardation. Webb's affidavit reports that Ricky Chase is mildly
        mentally retarded with a 77 on the verbal, but only a 64 on the performance part of the
        test, indicating mild [mental] retardation and a learning disability. . . . The records reviewed
        include medical records from Hardy Wilson Memorial Hospital, records of Dr. Ray Pate
        and records of a psychological examination done by Dr. John Perry. Thus Chase meets
        all three of the criteria used in all of the tests cited by the Court in Atkins. The conclusion
        is inescapable: Ricky Chase cannot be sentenced to death consistent with the Eighth
        Amendment and Atkins.

¶21.    Counsel for Chase supports the Motion to Vacate Death Sentence with the affidavit of Dr. Webb,

claiming that Dr. Webb was “the original expert on Chase’s first post-conviction petition . . . .” However,

Dr. Webb’s affidavit is dated February 4, 1998, six months after this Court denied Chase’s “first post-

conviction petition.” See Chase v. State, 699 So.2d 521 (Miss. 1997). Therefore Dr. Webb’s affidavit

could not have been previously submitted to this Court. Since this misrepresentation does not affect

Chase’s substantive argument, we find it to be harmless as to Chase.

¶22.    Dr. Webb is a practicing psychiatrist who was requested to “review Chase’s medical records in

order to give an opinion with regard to Ricky Chase’s mental functioning.” Dr. Webb reviewed: (1)

“Chase’s medical records from Hardy Wilson Memorial Hospital,” (2) “the records of an examination given

by Dr. Ray Pate,” and (3) “the records of a psychological evaluation done by Dr. John Perry.”

¶23.    Based upon his review of those records, Dr. Webb provides the following opinions:

        1.      Chase scored a 77 on the verbal portion of the WAIS-R but
                only a 64 on the performance portion of the test.

        2.      The difference of thirteen points is indicative of a learning
                disability as well as a deficiency in adaptive behavior.

        3.      Chase’s performance on the sub-parts of the WAIS-R, that
                difference being greater than 10%, is significant.

        4.      Ricky Chase suffers from mild mental retardation.

                                                       8
        5.       Chase would be easily swayed by persons in authority.

        6.       Chase’s disabilities would call into question the veracity of any
                 statement that Chase made under stress.

        7.       Chase’s disabilities would call into question his ability
                 to make a knowing and voluntary statement.

¶24.    Finally, Dr. Webb states, “to a reasonable degree of psychiatric certainty” that further evaluation

of Chase is necessary, and that, in order to evaluate Chase's disability, he would need to interview Chase,

review additional medical records, perform a full medical and legal history, and conduct research into the

psychological and psychometric aspects of the materials presented by counsel for Chase.

¶25.    The State, not impressed with the presentation or argument advanced by Chase, responds with

several arguments.

        The State’s Attack on Chase’s Factual Presentation.

¶26.    The first is that Chase “has not made a sufficient showing” for remand, and he is not entitled to an

Atkins hearing, because "merely claiming to be mentally retarded does not suffice." As support, we are

directed to Johnson v. State, 508 So. 2d 1126 (Miss. 1987), where Johnson, a death row inmate,

attempted to stop his imminent execution by claiming insanity under MISS. CODE ANN. § 99-19-57 (2)(b).

Johnson attached to his motion the affidavits of a clinical psychologist and a psychiatrist. Without discussing

the contents of the affidavits, this court, stated that Johnson "failed to establish to a reasonable probability

that he is presently insane.” Accordingly, this Court found that Johnson “fell short of the evidentiary

showing required of a proponent of this claim." Johnson, 508 So. 2d at 1127.

¶27.    Although Johnson may be persuasive in future cases, it involved a claim of insanity, wherein the

law has been settled for many years. The defendant and his counsel were on notice of the requirements

of law long before the trial. Here, neither Chase nor his counsel could have known the holding in Atkins

                                                       9
prior to trial. Nor did they have benefit of the procedural guidance offered in this opinion. Therefore,

Johnson is inapposite here.

         The State’s Attack on Dr. Webb.

¶28.     The State next turns to Dr. Webb, tacitly conceding that he claims Chase is mentally retarded.

Nevertheless, the State attacks the credibility of his opinion, and the appropriateness of his affidavit,

pointing out five “deficiencies” that we are urged to consider. They are that Dr. Webb:

         8.       has never seen, examined or tested Chase;

         9.       is a psychiatrist, rather than a psychologist;

         10.      fails to identify any single area of deficiency in specific adaptive behaviors;

         11.      offers only conclusory statements in his affidavit;

         12.      does not state that Chase’s claimed deficiencies manifested prior to age eighteen.

¶29.     These are valid points and, no doubt, will be repeated to the trial judge at the hearing. However,

as stated supra, our function in this case, given the lack of notice to Chase of the Atkins decision, as well

as the unavailability to Chase of the procedural requirements discussed infra, is to determine whether

Chase is entitled to a hearing, rather than to weigh the credibility of evidence to be presented at that

hearing.

¶30.     That is not to say that we are without authority to decide the merits of a successive application and

a motion for post-conviction relief. See MISS. CODE ANN. § 99-39-27 (7) (Supp. 2003) (Supreme

Court, in its discretion, may grant or deny any or all relief requested in the attached motion, or allow the

filing of the motion in the trial court).

¶31.     Here, we find that due process requires us to allow the motion to be filed in the trial court, enabling

Chase and the State to fully present to the trial judge evidence as required by Atkins.

                                                       10
¶32.    Having attacked the credibility of the opinions offered by Dr. Webb, the State addresses the three-

prong test for mental retardation.

        The State’s Attack on Chase’s Claim of Mental Retardation: Criterion A –
        Subaverage Intellectual Functioning.

¶33.    Both definitions of mental retardation cited in Atkins discuss subaverage intellectual functioning.

This criterion is measured by what is commonly referred to as intelligence quotient, or “IQ.”7 The State

concedes that, as tested8 by Dr. Perry, Chase’s full scale IQ of 71 is within the range of possible mental

retardation. However, the State cites the American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders IV (4t h Edition, 1994)9 for the proposition that a diagnosis of mental

retardation requires evaluation of both IQ and adaptive functioning.

        Thus, it is possible to diagnose Mental Retardation in individuals with IQ’s between 70 and
        75 who exhibit significant deficits in adaptive behavior. Conversely, Mental Retardation
        would not be diagnosed in an individual with an IQ lower than 70 if there are no significant
        deficits or impairments in adaptive functioning.

DSM-IV, at 40. Stated differently, persons in the upper (cutoff) IQ range of 71 to 75, must have exhibited

significant deficits in adaptive behavior for a legitimate diagnosis of mental retardation. Conversely,




        7
         Although we do not endorse or require that experts use any particular test for determination of
IQ, we note that Atkins cited, with approval, AAMR, Mental Retardation: Definitions, Classification,
and Systems of Supports 5 (9th ed. 1992), for the proposition that the Wechsler Adult Intelligence
Scales test (WAIS-III) is the “standard instrument in the United States for assessing intellectual
functioning.” Atkins, 536 U.S. at 309 n.5. See also Russell, 849 So. 2d at 148, which
acknowledges the WAIS, Form R, for measuring full scale IQ.
        8
         Dr. Perry tested Chase using the WAIS-R.
        9
        Commonly referred to as DSM-IV. This manual provided the definition of mental retardation
adopted by the American Psychiatric Association, and cited in Atkins. See Atkins, 536 U.S at 308
n.3, citing Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed.1992)
(discussed infra.).

                                                    11
persons with lower IQ’s, but no significant impairment in adaptive functioning, may not be mentally

retarded at all.

¶34.    Other than pointing out that Dr. Perry stated Chase “did not seem to be performing his best” on

the tests, the State offers no argument to rebut Chase’s claim that his Full Scale IQ of 71 indicates

subaverage intellectual functioning, and is within the range which can indicate mental retardation.

        The State’s Attack on Chase’s Claim of Mental Retardation: Criterion B –
        Significant Limitations in Adaptive Functioning.

¶35.    The second requirement for mental retardation, according to Atkins, is a finding of “significant

limitations in adaptive functioning in at least two . . . skill areas . . . .” Atkins, 536 U.S. at 308 n.3. It is

in this area that the State launches its most passionate attack. The State begins by conceding that Dr.

Webb claims Chase has a deficiency in adaptive behavior. However, Dr. Webb fails to identify from the

specific adaptive behaviors listed in Atkins, any single specific area (much less two specific areas, as

required by Atkins) of deficiency. This, claims the State, renders Dr. Webb’s affidavit totally conclusory

on the issue of Chase’s possible mental retardation and further demonstrates that Dr. Webb’s affidavit “is

not of the quality or kind” useful in this case.

¶36.    Contrasting the dearth of evidence that Chase is mentally retarded, the State directs our attention

to the opinions of John W. Perry, Ph.D., a psychologist, and Ray Pate M.D., a psychiatrist, both of whom

provided opinions to trial counsel. Those opinions were discussed in great detail in this Court’s opinion

on Chase’s claim of ineffective assistance of counsel. Chase, 699 So. 2d at 527-29. For our purposes

here, suffice it to say that neither doctor specifically found Chase to be mentally retarded.




                                                       12
¶37.     The State provides us with a great deal of what it characterizes as evidence that Chase is not

deficient in adaptive functioning, beginning with an analysis of Chase's testimony at trial, at the suppression

hearing, at the hearing on the motion to revoke change of venue, and at the guilt phase of the trial.

¶38.     Numerous portions of Chase's testimony are cited to demonstrate that Chase speaks and reasons

too well to be mentally retarded. Certain words, phrases, analogies, and "detailed, coherent and lengthy

responses" are pointed out.

¶39.     The State points to numerous examples where Chase read well, spoke well, reasoned well,10

provided lengthy,11 complicated answers to questions, and “demonstrated insight into his life, the crime, and

the situation he was in.” The State then offered its opinion that “[m]entally retarded people do not have

this type of insight into their situation.”

¶40.     The State offers other evidence that Chase does not suffer severe limitations in adaptive functioning.

He was never in special education classes, never failed a grade in school, and played quarterback on the

football team. He completed a welding course with the Job Corps, became a certified welder, and worked

as a welder and, when he wasn’t welding, he did yard work and washed cars.

¶41.     Finally, the State observes that Chase cooked for his mother, had a girlfriend and other friends, and

had no deficits in his social skills.

¶42.     Again, while all of these arguments, if properly offered and admitted, would certainly be persuasive

and interesting to the trial judge at the hearing, it is our function here only to determine whether to allow the

hearing to take place.



         10
       For instance, Chase testified, “I didn’t feel like I had the right to give permission to search
somebody else’s car.”
         11
           For instance, one of Chase’s answers required four pages of transcript.

                                                       13
        The State’s Attack on Chase’s Claim of Mental Retardation: Criterion C –
        No Manifestation of Retardation Prior to Age Eighteen.

¶43.    As a final assault on Chase’s claim to Atkins protection, the State points out that Dr. Webb's

opinion does not address whether Chase’s claimed deficiencies in intellectual functioning manifested prior

to age eighteen, as required by both definitions of “mentally retarded” adopted by this Court in Foster12

and Russell.13 See Atkins, 536 U.S. at 308 n.3, citing Mental Retardation: Definition, Classification,

and Systems of Support 5 (9th ed. 1992) (discussed infra).

¶44.    We agree that the failure to provide evidence that mental retardation manifested prior to age

eighteen would be fatal to Chase’s Motion to Vacate Death Penalty.

       II. Is Ricky Chase entitled to Eighth Amendment Protection under Atkins?

        The Issue Before Us.

¶45.    The only issue in Chase’s Motion to Amend Successive Application is his claim that, because he

is retarded, he cannot constitutionally be executed. However, we reiterate that the issue before this Court

in this case is somewhat different. It is not our function to determine whether Chase is mentally retarded.

We are required to determine whether to allow Chase to amend his Successive Application, and proceed

in the trial court with his Motion to Vacate Death Sentence, that is to say, his claim that he is mentally

retarded.




        12
            Foster, 848 So. 2d at 175. See n.4 and accompanying text, supra.
        13
            Russell v. State, 849 So. 2d 95, 149 (Miss. 2003). Willie C. Russell was convicted of
capital murder, and sentenced to death. On direct appeal, this Court affirmed. On motion for post-
conviction relief, Russell claimed to be mentally retarded. This Court granted Russell leave to proceed
in the trial court for an Atkins hearing on the issue of his alleged mental retardation and possible
exemption from the death penalty. Russell and Foster, were decided by this Court on the same day
under separate opinions, both penned by Presiding Justice Waller.

                                                    14
¶46.    In arriving at our decision to grant the Successive Application and remand for a hearing, we take

into account the fact that Chase had no reason to know at the time of his trial that a determination by the

trial court that he was mentally retarded (even slightly) would spare him the death penalty. Additionally,

Chase falls into the limited class of prisoners who filed their motions for an Atkins hearing prior to

receiving procedural guidance from this Court.

¶47.    Thus, because he has arguably demonstrated that his IQ falls within the range of possible mental

retardation, and because he has presented an affidavit which asserts that he suffers from “mild retardation,”

we cannot constitutionally deny Chase the opportunity to present the issue to the trial court. It is at the trial

court that all of the arguments presented by the State will be weighed along with other evidence presented,

and a final determination will then be made as to whether Chase is mentally retarded and, thus, ineligible

for execution.

                                        III. The Atkins Decision.

¶48.    In order to fulfill our obligation to provide guidance to counsel and our trial courts, we now address

the Atkins decision, the definition of mental retardation to be used in our courts, and the procedure to be

used for Atkins claims.

¶49.    We are bound by oath to ensure that this Court and our trial courts remain within Constitutional

limits. This requires more than a mechanical application of the Atkins decision. Therefore, we begin by

carefully evaluating, not only the holding in Atkins, but also the United States Supreme Court’s basis and

reasoning for that holding.

        The Eighth Amendment to the United States Constitution.




                                                      15
¶50.    At the core of theAtkins decision is the Eighth Amendment to the United States Constitution. The

deceptively simple wording of that amendment is: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

¶51.    This constitutional limit on governmental power to punish has been utilized by the courts on

occasion to terminate cruel, brutal practices, and to reverse disproportionate and unjust sentences of

incarceration. Some examples include a life sentence under a recidivist statute, where the crimes were

shoplifting two cans of sardines, and stealing the money to pay for them;14 and handcuffing a prisoner who

was already subdued to a hitching post for seven hours without water.15

¶52.    Although the Eighth Amendment has been applied to these, and numerous other non-capital

prosecutions, its application to capital cases has been the most controversial.

        National Consensus.

¶53.    There are few instances where the courts look to public opinion for guidance. However, in order

to apply the Eighth Amendment to a given circumstance, a court must necessarily determine that which is

“cruel and unusual.” Thus, the Atkins Court followed the longstanding requirement that the Eighth

Amendment “draws its meaning from the evolving standards of decency that mark the progress of a

maturing society.” Atkins, 536 U.S. at 311-12 (citing Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2

L.Ed.2d 630 (1958)).

¶54.    This task of discerning “evolving standards” is not an easy one. The U.S. Supreme Court has

consistently held that evolving standards of decency are most reliably learned by looking to legislation

enacted in the several states. Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256

        14
          Ashley v. State, 538 So. 2d 1181 (Miss. 1989).
        15
          Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L. Ed. 2d 666 (2002).

                                                    16
(1989). The reason this is so, as explained by the Atkins majority, is that the enactments of the various

legislatures are the “clearest and most reliable objective evidence of contemporary values.” Atkins, 536

U.S. at 312 (citations omitted). This approach was further justified by Chief Justice Rehnquist in his

dissent.

           The reason we ascribe primacy to legislative enactments follows from the constitutional role
           legislatures play in expressing policy of a State. “[I]n a democratic society legislatures, not
           courts, are constituted to respond to the will and consequently the moral values of the
           people.” Gregg v. Georgia, 428 U.S. 153, 175-176, 96 S.Ct. 2909, 49 L.Ed.2d 859
           (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia,
           408 U.S. 238, 383, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972) (Burger, C.J., dissenting)).
           And because the specifications of punishments are “peculiarly questions of legislative
           policy,” Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405
           (1958), our cases have cautioned against using “the aegis of the Cruel and Unusual
           Punishment Clause“ to cut off the normal democratic processes, Gregg, supra, at 176, 96
           S.Ct. 2909 (quoting Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 20 L.Ed.2d
           1254 (1968) (plurality opinion)).

Atkins, 536 U.S. at 323 (Rehnquist, C.J., dissenting). The Chief Justice further explained that sentences

imposed by juries, although not afforded the same weight, are important indicators of contemporary values.

Id.16

¶55.       Having thus set forth how contemporary standards of decency are discerned, the Atkins majority

analyzed State legislative action regarding the death penalty for retarded persons. The following time line

can be drawn from the opinion:

           a.      Prior to 1986, there existed no legislative action regarding “the suitability of
                   imposing the death penalty on mentally retarded offenders. . . .” Atkins, 536
                   U.S. at 313.


           16
           The Court pointed out that contemporary values have, in the past, served to require abolition
of the death penalty as a punishment for rape of an adult woman, Coker v. Georgia, 433 U.S. 584,
593-96, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and “for a defendant who neither took life, attempted
to take life, nor intended to take life.” Enmund v. Florida, 458 U.S. 782, 789-93, 102 S.Ct. 3368,
73 L.Ed.2d 1140 (1982).” Atkins, 536 U.S. at 312.

                                                        17
       b.      In 1986, a mentally retarded murderer in Georgia was executed. Id.

       c.      That same year, although not constitutionally required to do so,17 the Georgia
               legislature, for the first time, enacted a statute which prohibited execution of
               mentally retarded prisoners. Id., at 313-14, citing Ga. Code Ann. 17-7-131(j)
               (Supp. 1988).

       d.      In 1988, Congress excluded mentally retarded persons from its legislation which
               reinstated the federal death penalty. Id. at 314.

       e.      In 1989, Maryland enacted a statute similar to Georgia’s. Md. Ann. Code, Art.
               27, § 412(f)(1) (1989).

       f.      In 1990, Kentucky and Tennessee became the third and fourth States to enact
               legislation which prohibited execution of mentally retarded persons.

       g.      In 1991, a similar statute was enacted in New Mexico.

       h.      In 1993 and 1994, similar statutes were enacted in Arkansas, Colorado,
               Washington, Indiana, and Kansas.

       i.      In 1994, Congress expanded its death penalty legislation, and again exempted the
               mentally retarded. Id.

       j.      In 1995, New York reinstated the death penalty, but exempted the mentally
               retarded.

       k.      “Nebraska followed suit in 1998.” Id.

       l.      In 2000 and 2001, similar statutes were enacted in South Dakota, Arizona,
               Connecticut, Florida, Missouri, and North Carolina.

       m.      In 2001, similar legislation passed the Texas House and Senate, but was vetoed
               by Governor Perry, who stated: “We do not execute mentally retarded murderers
               today.” Id. (citation omitted).


       17
          In 1989, the U.S. Supreme Court held that, under certain conditions, mentally retarded
persons could be executed. Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989). The Atkins Court pointed out, however, that in 1989, only two legislatures, “ ‘even when
added to the 14 States that have rejected capital punishment completely, do not provide sufficient
evidence at present of a national consensus’ ” Atkins, 536 U.S. at 314 (citing Penry, 492 U.S. at 334,
109 S.Ct. 2934).

                                                 18
¶56.    In addition to the above, the Atkins Court pointed out that no State had passed “legislation

reinstating the power to conduct such executions. . . .”Id. at 316.

¶57.    As further evidence of the national consensus, the legislatures of the States cited above “voted

overwhelmingly in favor of the prohibition,” Id., and as a final justification, even in States with no prohibition

against executing the mentally retarded, it is rarely carried out. Id.

¶58.      Accordingly, the Atkins majority held that, since a national consensus exists which disapproves

the execution of the mentally retarded, “death is not a suitable punishment for a mentally retarded criminal.”

Id. at 321. The Court further stated, “We therefore conclude that such punishment is excessive and that

the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded

offender.” Id. (citation omitted).

¶59.    In addition to its discussion of the national consensus, the Atkins majority presented a detailed

justification and validation of what it perceives to be the national consensus. The Court stated that the two

penological purposes served by the death penalty are retribution and deterrence. Id. at 319. These

purposes cannot be met by the execution of mentally retarded persons. Id. Furthermore, the Atkins

majority pointed out that mentally retarded persons are particularly vulnerable to the risk of false

confessions and poor performance as witnesses presenting mitigating circumstances. Id. The majority

further stated that mentally retarded defendants “may be less able to give meaningful assistance to their

counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack

of remorse for their crimes.” Id., at 320-21.

¶60.    The two dissenting opinions took strong issue with the majority’s views concerning both a national

consensus, and perceived justification for it. Nevertheless, unpersuaded by the dissents, the majority held



                                                       19
that mentally retarded persons are exempt from capital punishment. Atkins, is the law, and we are bound

to apply it to cases which come before this Court.

        The Scope of Atkins.

¶61.    To fully appreciate and accept that Atkins exempts all mentally retarded persons -- even those

who are minimally mentally retarded -- from execution, a careful reading of the majority opinion, as well

as both dissents, is required. This is so because of ambiguous statements in the majority opinion which

appear to conflict with other statements in the majority opinion, and with the understanding of the majority

holding as expressed by Chief Justice Rehnquist and Justice Scalia in dissent.

¶62.    After making the case that a national consensus exists to exempt the mentally retarded from

execution, the Atkins majority stated:

        To the extent there is serious disagreement about the execution of mentally retarded
        offenders, it is in determining which offenders are in fact retarded. In this case, for
        instance, the Commonwealth of Virginia disputes that Atkins suffers from mental
        retardation. Not all people who claim to be mentally retarded will be so
        impaired as to fall within the range of mentally retarded offenders about
        whom there is a national consensus. As was our approach in Ford v.
        Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to
        insanity, “we leave to the State(s) the task of developing appropriate ways to enforce the
        constitutional restriction upon [their] execution of sentences.” Id. at 405, 416-417, 106
        S.Ct. 2595.

Atkins, 536 U.S. at 317 (footnote omitted) & (emphasis added).             If one accepts on its face the

emphasized language, then it must follow that the persons to whom this statement applies are, in fact,

mentally retarded, but not so retarded as to fall within the “national consensus” range. Stated differently,

the statement implies that mentally retarded persons can constitutionally be executed, so long as they don’t

fall within the range “about whom there is a national consensus.”




                                                     20
¶63.    However, other statements in the decision indicate that the Court found no reason to disagree with

the proposition that “death is not a suitable punishment for a mentally retarded criminal .” Atkins,

536 U.S. at 321 (emphasis added). The Court further states, “We are not persuaded that the execution

of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of

the death penalty.” Id. (emphasis added); “[T]he Constitution ‘places a substantive restriction on the

State’s power to take the life’ of a mentally retarded offender.” Id. (emphasis added) & (citation

omitted).

¶64.    Additionally, the statutes enacted by the various States, and cited by the majority, draw no

distinction as to degrees of mental retardation and, thus, all mentally retarded persons in those States are

exempt.

¶65.    As a final confirmation that theAtkins majority intended to grant the Eighth Amendment exemption

to even the most marginally mentally retarded persons, regardless of degree, the two dissenting opinions

clearly assume as much. Justice Scalia lamented what he understood to be the majority’s conclusion “that

no one who is even slightly mentally retarded can have sufficient “moral responsibility to be subjected to

capital punishment for any crime.” Id. at 339 (Scalia, J., dissenting, joined by Rehnquist, C.J., and

Thomas, J.). Chief Justice Rehnquist, also in dissent, complained that the majority had used faulty data and

imprecise methodology in supporting its conclusion “that a national consensus has developed against

imposing the death penalty on all mentally retarded defendants. . . .” Id. at 328 (Rehnquist, C.J.,

dissenting, joined by Scalia and Thomas, JJ.).

¶66.    Accordingly, we conclude the Atkins majority granted Eighth Amendment protection from

execution to all mentally retarded persons.

        Who is Mentally Retarded?

                                                    21
¶67.    The Atkins Court left to the States “the task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of sentences.” Id. at 317. As previously discussed,

numerous States have already done so by legislative enactment. Mississippi, however, has no statute which

prohibits the death penalty for the mentally retarded. It is, of course, the prerogative of the Mississippi

Legislature to join, or not join, those States which have enacted such legislation, and whose statutes set

forth the definition of mental retardation to be applied in their respective States to the statutory prohibition.

Absent such legislative enactment, however, it falls upon this Court to set the limits and define the

procedure which will safeguard the Eighth Amendment protection of mentally retarded persons, as required

by Atkins.

¶68.    In order to fulfill this requirement, we must provide a definition of mental retardation to be used in

our courts.

¶69.    The Atkins majority cited, with approval, two specific, almost identical, definitions of “mental

retardation.” The first was provided by the American Association on Mental Retardation (AAMR):

        Mental retardation refers to substantial limitations in present functioning. It is
        characterized by significantly subaverage intellectual functioning, existing concurrently with
        related limitations in two or more of the following applicable adaptive skill areas:
        communication, self-care, community use, self-direction, health and safety, functional
        academics, leisure, and work, Mental retardation manifests before age 18.

Atkins, 536 U.S. at 308 n.3, citing Mental Retardation: Definition, Classification, and Systems of

Support 5 (9th ed.1992). The second was provided by The American Psychiatric Association:

        The essential feature of Mental Retardation is significantly subaverage general intellectual
        functioning (Criterion A) that is accompanied by significant limitations in adaptive
        functioning in at least two of the following skill areas: communication, self-care, home living,
        social/interpersonal skills, use of community resources, self-direction, functional academic
        skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18
        years (Criterion C). Mental Retardation has many different etiologies and may be seen as
        a final common pathway of various pathological processes that affect the functioning of the

                                                       22
        central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 39 (4th
        ed.2000).

Id.

¶70.    The Diagnostic and Statistical Manual of Mental Disorders, from which the American Psychiatric

Association definition is quoted, further states that “mild” mental retardation is typically used to describe

persons with an IQ level of 50-55 to approximately 70. Id. at 42-43. The Manual further provides,

however, that mental retardation may, under certain conditions, be present in an individual with an IQ of

up to75.18 Id. at 40. Additionally, According to the Atkins majority, “[i]t is estimated that between 1 and

3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the

cutoff IQ score for the intellectual function prong of the mental retardation definition.” Id. citing 2

Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds 7th ed.

2000) (emphasis added).

¶71.    These definitions were previously adopted and approved by this Court in Foster v. State, 848

So. 2d 172 (Miss. 2003). This Court further held in Foster 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
        must prove that he meets the applicable standard by a preponderance of the evidence. .
        . . This issue will be considered and decided by the circuit court without a jury.

Id. at 175.




        18
           This point is conceded by the State. However, IQ, alone, does not determine mental
retardation. According to the DSM-IV, “it is possible to diagnose Mental Retardation in individuals
with IQ’s between 70 and 75 who exhibit significant deficits in adaptive behavior. Conversely, Mental
Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant
deficits or impairments in adaptive functioning.

                                                     23
¶72.    These definitions, approved in Atkins, and adopted in Foster, together with the MMPI-II,19

provide a clear standard to be used in this State by our trial courts in determining whether, for Eighth

Amendment purposes, a criminal defendant is mentally retarded. The trial judge will make such

determination, by a preponderance of the evidence, after receiving evidence presented by the defendant

and the State.

        Procedure to be used.

¶73.    Having established the definition of mental retardation to be used for purposes of Eighth

Amendment protection to mentally retarded defendants, we now turn to the procedure to be used in

reaching a determination of mental retardation.

¶74.    We hold that no defendant may be adjudged mentally retarded for purposes of the Eighth

Amendment, unless such defendant produces, at a minimum, an expert who 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;

        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.

¶75.    Such expert must be a licensed psychologist or psychiatrist, qualified as an expert in the field of

assessing mental retardation, and further qualified as an expert in the administration and interpretation of

tests, and in the evaluation of persons, for purposes of determining mental retardation.




        19
           Although this Court has identified the MMPI-II as a test that should be given, we now clarify
our position by stating that the expert should use the MMPI-II, and/or 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.

                                                    24
¶76.    Upon 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.

¶77.    Thereafter, the State may offer evidence, and the matter should proceed as other evidentiary

hearings on motions.

¶78.    At the conclusion of the hearing, the trial court must determine whether the defendant has

established, by a preponderance of the evidence, that the defendant is mentally retarded. The factors to

be considered by the trial court are the expert opinions offered by the parties, and other evidence if

limitations, or lack thereof, in the adaptive skill areas listed in the definitions of mental retardation approved

in Atkins, and discussed above. Upon making such determination, the trial court shall place in the record

its finding and the factual basis therefor.

        Prerequisite to a hearing.

¶79.    With the sole exception discussed below, no defendant may be granted a hearing on the issue of

Eighth Amendment protection from execution, due to alleged mental retardation unless, prior to the

expiration of the deadline set by the trial court for filing motions, the defendant shall have filed with the trial

court a motion, seeking such hearing. The defendant must attach to the motion an affidavit from at least

one expert, qualified as described above, who opines, to a reasonable degree of certainty, that: (1) the

defendant has a combined Intelligence Quotient (“IQ”) of 7520 or below, and; (2) in the opinion of the

expert, there is a reasonable basis to believe that, upon further testing, the defendant will be found to be

mentally retarded, as defined herein.




        20
          As previously stated, the cutoff score for the intellectual functioning prong of the test is 75.
See n.20, and accompanying text, supra. Thus, defendants with an IQ of 76 or above do not qualify
for Eighth Amendment Atkins protection.

                                                       25
¶80.    Upon receiving such motion with attached affidavit, and any response filed by the State, the trial

court shall provide a reasonable amount of time for testing the defendant for mental retardation. Thereafter,

the trial court shall set a hearing on the motion, and the matter shall proceed.

        Applications for Post-Conviction relief.

¶81.    We further hold that, for defendants whose trials were held prior to publication of this opinion, the

affidavit as described above shall be attached to the defendant’s application for post-conviction relief. Such

application shall then be considered pursuant to the provisions of Sections 99-39-1, et seq.

        The Petition of Ricky Chase.

¶82.    The State makes numerous valid points concerning the lack of evidence presented by Chase on

factors other than IQ. The State also raises troubling questions about the validity of the affidavit and

opinions of Dr. Webb. However, such matters should be submitted to the trial court, who will determine

their admissibility, and serve as the finder of fact.

¶83.    Chase has submitted an affidavit from a psychiatrist stating that he suffers from mild mental

retardation. Because of Chase’s unusual and limited circumstances, including the fact that his conviction

occurred prior to Atkins, and the fact that Chase had no notice of the requirements stated herein, we find

that Chase has presented the bare minimum necessary under the circumstances, and is entitled to proceed

to a hearing in the trial court on this issue. CONCLUSION

¶84.    After careful consideration, this Court dismisses the Successive Application for Leave to File

Motion to Vacate Death Sentence filed by Ricky Chase, as it was rendered a nullity by the Successive

Application attached to Chase's Motion to Amend. The Motion for Leave to Proceed In Forma Pauperis

and the Motion to Proceed Without Verification filed by Chase should be, and is hereby, granted. The

Motion to Amend Successive Application for Leave to File for Post-Conviction Relief filed by Chase is


                                                        26
granted, and the Successive Application attached to the Motion to Amend is granted, such that Ricky

Chase is allowed to proceed in the Copiah County Circuit Court on the sole issue of his alleged mental

retardation, consistent with the requirements in this opinion.

¶85. SUCCESSIVE APPLICATION FOR LEAVE TO FILE MOTION TO VACATE
DEATH SENTENCE, DISMISSED; MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS GRANTED; MOTION TO PROCEED WITHOUT VERIFICATION
GRANTED; MOTION TO AMEND SUCCESSIVE APPLICATION FOR LEAVE TO
FILE MOTION TO VACATE DEATH SENTENCE GRANTED. SUCCESSIVE
APPLICATION FOR LEAVE TO FILE MOTION TO VACATE DEATH SENTENCE, AS
AMENDED, GRANTED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND
RANDOLPH, JJ., CONCUR. EASLEY, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION, JOINED BY SMITH, C.J. DIAZ, J., NOT PARTICIPATING.

        EASLEY, JUSTICE, SPECIALLY CONCURRING:


¶86.    I concur with the majority's opinion granting Chase leave to proceed in the trial court on his mental

retardation claim. However, I write separately because I would require the trial courts to make specific

findings on the record as to each factor in considering the defendant's claim of mental retardation.

¶87.    Based upon a preponderance of the evidence, the trial court should consider these specific

guidelines, where applicable. Therefore, I would require the trial court to make a formal enumeration of

these specific guidelines on the record for clarity purposes.21 The factors are as follows:

        1. Whether the defendant filed in the trial court a motion with an attached affidavit of at least one

qualified expert seeking a hearing on the claim of Eighth Amendment protection from execution based on

mental retardation. The affidavit shall contain a statement to a reasonable degree of certainty that the

defendant (1) has a combined IQ of 75 or below; and (2) upon testing, the expert has a reasonable belief


        21
           This would work best if the trial court specifically states the factors one by one as we have
held in other cases such as Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss. 1994).

                                                     27
that the defendant will be found to be mentally retarded. (Any defendant whose trial was held prior to

today's decision, shall attach an affidavit of at least one expert to the application for post-conviction relief.)

        2. Whether the defendant meets the definition of mental retardation in Atkins and as adopted by

this Court in Foster.

        3. Whether the defendant has significant limitation in adaptive functioning in at least two areas per

Atkins such as communication, self-care, home living, social skills, community use, self-direction, health

and safety, functional academics, leisure, and work.

        4. Whether the defendant's mental deficiencies manifested prior to age 18 per Foster and

Russell.

        5. Whether the defendant has sub average intellectual functioning.

        6. Whether an MMPI-II test and/or any other tests or procedures necessary to help the expert

and the trial court to detect malingering has been performed and its findings.

        7. Whether a licensed psychologist or psychiatrist, qualified as an expert in the fields of assessing

mental retardation, administrating and interpreting tests, and evaluating people on the basis of determining

mental retardation, renders an opinion to a reasonable degree of certainty that the defendant (1) is mentally

retarded as defined by the AAMR and/or the APA, and (2) completed the MMPI-II and is not a

malingerer.

¶88.    At a minimum, the trial court must make these specific enumerated findings on the record when

presented with a claim of mental retardation. This will promote a careful and informed decision by the trial

court and avoid needless confusion on appeal. Also, this will allow the parties and their attorneys to clearly

understand what is expected. For these reasons, I specially concur with the majority opinion.

        SMITH, C.J., JOINS THIS OPINION.

                                                       28
