                     IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-01089-SCT

RICKY CHASE a/k/a RICKY ROY CHASE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          05/06/2013
TRIAL JUDGE:                               HON. LAMAR PICKARD
TRIAL COURT ATTORNEYS:                     JAMES W. CRAIG
                                           CYNTHIA ANN STEWART
                                           MARVIN L. WHITE, JR.
COURT FROM WHICH APPEALED:                 COPIAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES W. CRAIG
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: MARVIN L. WHITE, JR.
                                               JASON L. DAVIS
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 04/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Ricky Chase filed a motion for post-conviction relief (PCR) in the Circuit Court of

Copiah County arguing that he is intellectually disabled under Atkins v. Virginia, 536 U.S.

304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), and exempt from execution. The circuit court

denied relief, finding that Chase had failed to prove by a preponderance of the evidence that
he is intellectually disabled.1 Chase appeals, arguing that the circuit court made legal errors

and that its fact-findings were clearly erroneous. We affirm. We take the opportunity

presented by this case to recognize the definitions of intellectual disability promulgated by

the American Association on Intellectual and Developmental Disabilities in 2010 and the

American Psychiatric Association in 2013. We hold that these definitions may be used in our

courts in determining whether a criminal defendant is intellectually disabled for the purposes

of the Eighth Amendment.

                               PROCEDURAL HISTORY

¶2.    Chase was convicted of the August 14, 1989, capital murder of Elmer Hart and

sentenced to death. He appealed, raising twenty assignments of error related to the guilt and

sentencing phases of his trial. This Court affirmed his conviction and sentence on February

24, 1994, and denied rehearing on December 8, 1994. 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,

(1995), reh. denied, 515 U.S. 1179, 116 S. Ct. 20, 132 L. Ed. 2d 903 (1995). On July 15,

1996, Chase filed an application for leave to file a motion for PCR pursuant to the Uniform

Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. §§ 99-39-1 to 99-39-29

(Rev. 2007). This Court denied his application on August 7, 1997. Chase v. State, 699 So.

2d 521 (Miss. 1997).

       1
          The terms “intellectually disabled” and “intellectual disability” have replaced the
terms “mentally retarded” and “mental retardation” in the professional vernacular. The
United States Supreme Court has recognized this change. Hall v. Florida, ___ U.S. ___, 134
S. Ct. 1986, 1990, 188 L. Ed. 2d 1007 (2014). These terms have the same legal meaning. Id.
In this and future opinions this Court will use the new terminology except where a quotation
necessitates use of the older terminology.

                                              2
¶3.    Next, Chase filed a petition for writ of habeas corpus in the United States District

Court for the Southern District of Mississippi. See Chase v. Epps, 74 Fed. App’x. 339, 340

(5th Cir. 2003). The district court denied relief but issued a certificate of appealability on a

single issue concerning Chase’s trial counsel’s handling of the evidence of his mental

retardation. See id. at 341. The United States Court of Appeals for the Fifth Circuit affirmed

the denial of habeas relief on August 7, 2003. Id. at 345. The Fifth Circuit denied Chase’s

petition for panel rehearing and his petition for rehearing en banc. Chase v. Epps, 83 Fed.

App’x 673 (5th Cir. 2003). The United States Supreme Court denied Chase’s petition for a

writ of certiorari on May 17, 2004. Chase v. Epps, 541 U.S. 1050, 124 S. Ct. 2180, 158 L.

Ed. 2d 746 (2004).

¶4.    On June 20, 2002, the Supreme Court decided Atkins v. Virginia, which held that the

execution of an intellectually disabled individual constitutes cruel and unusual punishment

prohibited by the Eighth Amendment. Atkins, 536 U.S. at 321, 122 S. Ct. 2242. This decision

prompted Chase to file a successive application for leave to file a motion for PCR in this

Court. Chase v. State, 873 So. 2d 1013, 1016 (Miss. 2004). We held that, although the

UPCCRA permits a defendant to file only one motion for PCR, the intervening Atkins

decision excepted Chase’s case from that procedural bar. Id. (citing Miss. Code Ann. §

99-39-27(9) (Supp. 2000)). In ruling on Chase’s application, this Court set out two

definitions of mental retardation to be used in our courts and established the prerequisites for

a hearing and “the procedure to be used in reaching a determination of mental retardation.”

Id. at 1027-30. We granted the application because Chase had met the prerequisites and, on



                                               3
May 20, 2004, we remanded the case to the circuit court for an evidentiary hearing on the

issue of whether Chase is intellectually disabled within the meaning of Atkins. Id. at 1030.

¶5.    The evidentiary hearing occurred on August 16-17, 2010. On November 8, 2010, the

circuit court issued an order finding that Chase is not intellectually disabled. In so holding,

the circuit court simply adopted the proposed findings of fact and conclusions of law

submitted by the State. Chase appealed, and, on January 15, 2013, this Court issued an order

vacating the circuit court’s judgment and remanding for the circuit court to issue its own

findings of fact and conclusions of law. Chase v. State, 112 So. 3d 421, 422 (Miss. 2013).

We also clarified that “psychologists and psychiatrists rendering opinions on mental

retardation in death penalty cases may rely on the testing administered by others.” Id. at 421

(citing M.R.E. 703). On May 6, 2013, the circuit court entered an order finding that Chase

is not intellectually disabled and later denied his motion for reconsideration. Chase has

appealed.

                 DEFINITIONS OF INTELLECTUAL DISABILITY

       A. Atkins/Chase standard

¶6.    In Chase’s 2002 appeal, this Court addressed the Atkins decision. We recognized “that

Atkins exempts all mentally retarded persons – even those who are minimally mentally

retarded – from execution.” Chase, 873 So. 2d at 1026. Because Atkins left to the states the

task of defining intellectual disability, and because our Legislature had not undertaken that

task, we provided two complementary definitions of intellectual disability that were cited

with approval in Atkins. Id. at 1027-28; see Foster v. State, 848 So. 2d 172, 175 (Miss.



                                              4
2003) (adopting the definitions from Atkins). The definition from the American Association

on Mental Retardation states:

       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.

Id. at 1027 (quoting Atkins, 536 U.S. at 308 n.3, 122 S. Ct. 2242 (citing Mental Retardation:

Definition, Classification, and Systems of Support 5 (9th ed.1992))). The American

Psychiatric Association’s definition states:

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

Chase, 873 So. 2d at 1028 (quoting Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242). This Court

held that these definitions “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.” Chase, 873 So. 3d at 1028.

¶7.    We also recognized that, while mild intellectual disability describes persons with an

IQ between 55 and 70, intellectual disability “may, under certain conditions, be present in

an individual with an IQ of up to 75.” Chase, 873 So. 2d at 1028 n.18; see Hall v. Florida,



                                                5
___ U.S. ___, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014). We observed that

       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.

Chase, 873 So. 2d at 1028 n.18.

¶8.    Chase promulgated a procedure to be used to determine a defendant’s claim of

intellectual disability. We held that, for entitlement to a hearing on the issue of intellectual

disability, the defendant must produce an expert who testifies 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; and (2) the defendant has completed the

Minnesota Multiphasic Personality Inventory–II (MMPI–II) and/or other similar tests, and

the defendant is not malingering. Chase, 873 So. 2d at 1029. Subsequently, this Court

clarified that our trial courts are free to use the MMPI-II or similar tests, the Wechsler Adult

Intelligence Scales Test, the Structured Interview of Reported Symptoms (SIRS), the Validity

Indicator Profile (VIP), and the Test of Memory Malingering (TOMM), and/or other tests

suggested and approved by mental health professionals in determining intellectual disability

and/or malingering. Lynch v. State, 951 So. 2d 549, 556 (Miss. 2007). At a hearing on

intellectual disability, the defendant must prove by a preponderance of the evidence that “(1)

he has significantly subaverage intellectual functioning; (2) he has deficits in two or more

adaptive skills; (3) he was eighteen or younger when the retardation manifested itself; and

(4) he is not malingering.” Thorson v. State, 76 So. 3d 667, 676-77 (Miss. 2011). We also

                                               6
have held that, because Atkins is concerned with whether an individual was intellectually

disabled at the time of the crime and whether the intellectual disability manifested prior to

age eighteen, intellectual disability must be assessed retrospectively to those relevant times.

Goodin v. State, 102 So. 3d 1102, 1115 (Miss. 2012). To this end, an individual’s present

functioning is relevant if it is informative of the individual’s condition at the time of the

crime and/or prior to age eighteen.

       B. Recent definitions of intellectual disability

¶9.    Since our adoption of the definitions of mental retardation in Foster and Chase, our

Legislature has not enacted legislation addressing the constitutional ban on the execution of

the intellectually disabled. Thus, it remains this Court’s duty “to set the limits and define the

procedure which will safeguard the Eighth Amendment protection of mentally retarded

persons, as required by Atkins.” Chase, 873 So. 2d at 1027. But in Hall v. Florida, the

United States Supreme Court held that states’ discretion to define intellectual disability for

Eighth Amendment purposes is not unlimited. Hall, ___ U.S. ____, 134 S. Ct. at 1998. We

are mindful of Hall’s directive that the states lack “unfettered discretion to define the full

scope of the constitutional protection” and that “Atkins provide[s] substantial guidance on

the definition of intellectual disability.” Hall, ___ U.S. ____, 134 S. Ct. at 1998-99.

¶10.   This case presents the Court with the opportunity to recognize developments in the

field of assessing intellectual disability that have manifested since Atkins and Chase. Since

Atkins, the American Association on Mental Retardation (AAMR), recently renamed the

American Association on Intellectual and Developmental Disability (AAIDD), promulgated



                                               7
new definitions of intellectual disability that changed the terminology applicable to adaptive

functioning. In 2002, the AAMR promulgated the following definition: “Mental Retardation

is a disability characterized by significant limitations in both intellectual functioning and in

adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” Mental

Retardation: Definition, Classification, and Systems of Support 1 (10th ed. 2002). In 2010,

the AAIDD promulgated a definition that changed the term “mental retardation” to

“intellectual disability.” The 2010 definition states: “Intellectual Disability is characterized

by significant limitations in both intellectual functioning and in adaptive behavior as

expressed in conceptual, social, and practical adaptive skills.” Intellectual Disability:

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

must have originated prior to age eighteen. Id.

¶11.   The 2010 AAIDD manual defines each domain of adaptive functioning. The

conceptual skills domain includes “language; reading and writing; and money, time, and

number concepts.” Id. at 44. The social skills domain includes “interpersonal skills, social

responsibility, self-esteem, gullibility, naïveté (i.e., wariness), follows rules/obeys laws,

avoids being victimized, and social problem solving.” Id. The practical skills domain

includes “activities of daily living (personal care), occupational skills, use of money, safety,

health care, travel/transportation, schedules/routines, and use of the telephone.” Id. For a

diagnosis of intellectual disability, an individual must have significant deficits in one of the

three adaptive functioning domains. Id. at 43.

¶12.   In 2013, after the hearing presently under review, the American Psychiatric



                                               8
Association also promulgated a new definition of intellectual disability: “Intellectual

disability (intellectual developmental disorder) is a disorder with onset during the

developmental period that includes both intellectual and adaptive functioning deficits in

conceptual, social, and practical domains.” Diagnostic and Statistical Manual of Mental

Disorders 33 (5th ed. 2013). The APA’s description of the adaptive functioning domains is

similar to the AAIDD’s description:

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

Id. at 37. The adaptive functioning prong is met when the individual has significant

limitations in one of the three domains. Id. at 38.

¶13.   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. Although the new definitions changed the terminology applicable to adaptive

functioning, other courts have recognized that “the exact wording of the various standards

makes little substantive difference in this Atkins context.” U.S. v. Williams, 1 F. Supp. 3d

1124, 1146 (D. Haw. 2014) (citing U.S. v. Hardy, 762 F. Supp. 2d 849, 879-80 (E.D. La.

2010)). This is because both the earlier and later standards promulgated by the AAIDD and



                                              9
the APA “direct clinicians to the same standardized measures of adaptive behavior, such as

the Vineland Adaptive Behavior Scales–II (VABS–II) and the [AAIDD’s] Adaptive

Behavior Scale.” Williams, 1 F. Supp. 3d at 1147 (quoting Hardy, 762 F. Supp. 2d at 879-

80). And “[e]ven after release of the DSM–5, prong two still ‘generally requires a more

expansive investigation of a defendant’s life history and skill levels than could be fully

evaluated through use of a normed instrument,’” and still involves “significantly more

subjective clinical judgment.” Id. (quoting U.S. v. Salad, 959 F. Supp. 2d 865, 878 (E.D. Va.

2013)).

¶14.   The experts presented by both Chase and the State relied on the 2010 AAIDD

definition in this case. Dr. Gerald O’Brien testified that, to a practicing psychologist, the

differences in the 2010 AAIDD definition and the Atkins/Chase definitions are not

professionally significant. Dr. Daniel Reschly, who relied on the 2010 AAIDD definition

throughout his report, testified that the conclusions he reached under that definition were

comparable to those reached under the Atkins/Chase definitions. He testified that, under

either the Atkins/Chase definitions or the 2010 AAIDD definition, Chase had significant

limitations in intellectual functioning and in adaptive behavior that manifested prior to age

eighteen.

¶15.   This Court is faced with the reality of evolving standards for determining intellectual

disability in the medical community. While a legal determination of intellectual disability for

the purposes of the Eighth Amendment is distinct from a medical diagnosis, Hall ___ U.S.

___, 134 S. Ct. at 2000, legal determinations of intellectual disability are informed by



                                              10
established clinical standards. See Hall, ___ U.S. ___, 134 S. Ct. at 1993. Hall held that

“Atkins provide[s] substantial guidance on the definition of intellectual disability.” Hall, ___

U.S. ___, 134 S. Ct. at 1999. And Hall recognized the significant role of the medical

community in informing legal determinations of intellectual disability, stating:

               That this Court, state courts, and state legislatures consult and are
       informed by the work of medical experts in determining intellectual disability
       is unsurprising. Those professionals use their learning and skills to study and
       consider the consequences of the classification schemes they devise in the
       diagnosis of persons with mental or psychiatric disorders or disabilities.
       Society relies upon medical and professional expertise to define and explain
       how to diagnose the mental condition at issue. And the definition of
       intellectual disability by skilled professionals has implications far beyond the
       confines of the death penalty: for it is relevant to education, access to social
       programs, and medical treatment plans. In determining who qualifies as
       intellectually disabled, it is proper to consult the medical community’s
       opinions.

Hall, ___ U.S. ___, 134 S. Ct. at 1993.

¶16.   In 2004, this Court adopted the AAMR and APA definitions of intellectual disability

cited in Atkins. As part of the medical community’s evolving understanding of intellectual

disability and its diagnosis, those institutions have promulgated new definitions of

intellectual disability that are generally accepted in the medical community. The new

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

provided new terminology. Williams, 1. F. Supp. 3d at 1146. We find that judicial

recognition of the new terminology conforms with the directives of Atkins and Hall and will

facilitate legal determinations of intellectual disability by allowing our courts to rely on the

newer, generally-accepted definitions most frequently used by modern clinicians. We now

adopt the 2010 AAIDD and 2013 APA definitions of intellectual disability as appropriate for

                                              11
use to determine intellectual disability in the courts of this state in addition to the definitions

promulgated in Atkins and Chase.

                                             FACTS

¶17.   At the hearing, Chase presented the testimony of Dr. Daniel Reschly, a professor of

education and psychology at Peabody College of Vanderbilt University, who is permanently

licensed as a school psychologist in Arizona and Iowa, and Dr. Gerald O’Brien, a licensed

Mississippi psychologist. Considering test results, personal history records, an interview with

Chase, and Dr. Reschly’s third-party interviews, both opined that Chase was intellectually

disabled. Chase also called Amanda Gugliano, a postdoctoral clinician at the Mississippi

State Hospital who performed the IQ testing of Chase during his mental evaluation at the

state hospital on January 11, 2010. The State presented the testimony of Dr. Gilbert

Macvaugh, a licensed psychologist who supervised Chase’s mental evaluation at the state

hospital. The psychologists’ reports and the documentation of Chase’s personal history on

which they relied was admitted into evidence.

       A. Chase’s evidence

               1. Gugliano

¶18.   Gugliano testified that she administered the Weschler Adult Intelligence Scale, Fourth

Edition (WAIS-4), to Chase to determine his IQ score. She testified that Chase’s full-scale

IQ score was 72, and that this score was adjusted to 71 due to the Flynn Effect, a

phenomenon under which IQ scores become artificially inflated as the test becomes outdated.

She testified that the margin of error for the WAIS-4 is plus or minus five points, meaning



                                                12
that Chase’s full-scale IQ would fall between 67 and 76. The report noted that, in 1989, after

his capital-murder arrest, Chase had been assessed for intellectual disability by Dr. John W.

Perry. Dr. Perry administered the Wechsler Adult Intelligence Scale-Revised (WAIS-R), the

Wide Range Achievement Test-Revised (WRAT-R), and the Wechsler Memory Scale and

assessed Chase as having a full-scale IQ of 71. Gugliano also administered the TOMM,

which showed that Chase was not malingering, or pretending to have, cognitive impairment.

However, the state hospital’s report noted that Chase was ill and fatigued when the tests were

administered and that these conditions may have negatively affected his performance.

              2. Dr. Reschly

¶19.   Dr. Reschly testified that he has studied the psychology of intellectual disability since

1967. He specialized in school psychology, and he testified that school psychologists “are

responsible for more diagnoses in [intellectual disability] than any other psychological or

medical specialty.” He testified that, for twenty years, he has been active in the American

Psychological Association Division 33, a division devoted to developmental disabilities and

intellectual disabilities. He taught psychology programs at the University of Arizona and

Iowa State University. Dr. Reschly testified that, in the course of his work, he supervises

counseling psychologists who evaluate individuals for intellectual disability. He testified that

he has evaluated individuals for intellectual disability on numerous occasions and has

presented several papers to the American Psychological Association on the question of

intellectual disability in death penalty cases.

¶20.   Dr. Reschly relied on the testing performed at the state hospital and by Dr. Perry to



                                              13
find that Chase met the intellectual-functioning prong of the test for intellectual disability.

He also found that Chase had significant limitations in adaptive functioning that manifested

prior to age eighteen. Dr. Reschly expressed his findings in terms of the 2010 AAIDD

definition of intellectual disability and found that Chase had significant limitations in the

conceptual, social, and practical domains. But he also testified that, under the 2002

definitions, Chase was deficient in seven areas: communication, self-direction, functional

academics, work, social/interpersonal skills, use of community resources, and safety. To

reach these conclusions, Dr. Reschly relied on Chase’s school records from the Hazlehurst

Public Schools, the 2010 Mississippi State Hospital Report, Dr. Perry’s 1989 report, Chase’s

social security records, his driver’s license records, testimony from Chase’s trial, and

interviews with Chase’s teachers, relatives, and friends who knew him prior to age eighteen.

                      a. Conceptual skills

¶21.   Dr. Reschly stated that “poor and failing school performance prior to age 18 is a

significant indicator of significant limitations in the conceptual skills domain.” He identified

a downward trend in Chase’s grades from first to tenth grade. Chase’s school records show

that he performed above average from the first through fourth grades, showed some decline

in the fifth grade, and began performing below average in the sixth grade. He repeated the

tenth grade and dropped out of school before completing his second year in tenth grade. Dr.

Reschly stated that this downward trend in grades is “frequently seen with persons with

mental retardation due to the increasingly abstract nature of the school curriculum and

academic demands.”



                                              14
¶22.   Chase’s ninth-grade science teacher, Ida Minor, his civics teacher, Foster Topp, and

his sister-in-law, Sita Johnson, all said that they saw Chase daily and that he had been very

slow to learn and to apply abstract information. Topp said Chase was among the lowest

students in his class. Chase’s middle-school girlfriend, Sandra Adams, and Shirley Norrells,

the mother of Chase’s high-school girlfriend, Deborah Norrells, said that Chase was

exceptionally slow and needed assistance with his homework. According to Dr. Reschly’s

investigation, Hazlehurst Public Schools did not have special education services during the

period that Chase was in school from 1975 to 1985.

¶23.   Dr. Reschly found that Chase had language deficits. He found from his interview with

Chase that he “produced verbal language at a very high rate, but frequently was repetitive,

rambling, directionless, and without clear purpose.” He opined that Chase frequently did not

understand his own statements, could not organize his thoughts logically, and jumped from

one topic to another in the same sentence. Dr. Reschly provided several examples of these

sentences, including, “My sister, you gotta catch her, she works all the time, like a kangaroo,”

“One of my teachers called my mother, she said she was pleased with my progress in school

but didn’t like the girl,” and, asked what he learned in the Job Corps, Chase stated “welding

. . . I started in culinary arts and business administration but once again, chasing girls, got

lured into welding.” Dr. Reschly found these and other statements “either illogical or patently

untrue.” He also found that Chase did not understand his culpability for the capital murder,

which showed abstract thinking deficits. He interviewed Jerome Cleveland, who had played

football with Chase. Cleveland said that, while Chase was a fast and successful football



                                              15
player, he had been too intellectually slow to follow the plays.

¶24.   Dr. Reschly noted that several persons he interviewed said that Chase often told

“wildly improbable” stories and often misunderstood normal conversations. Dr. Reschly

found Chase’s statement that he had been expelled from school for having sex on campus to

be untrue because Minor said that had never happened and if it had, the teachers would have

known. Dr. Reschly also found Chase’s statement that, at age twelve, while trying to dunk

a basketball, he had hit his head on the basketball rim so hard he had passed out, to be untrue

because it was implausible. He stated that Chase also gave incredible explanations for

leaving employment, such as a fear of snakes, intolerance of cold weather, excessive heat,

and a sexual liaison. Dr. Reschly stated that his interviews indicated that the real reason

Chase had left these jobs was his incompetence, and Chase’s incredible explanations were

an attempt to pass as normal, which is indicative of intellectual disability.

¶25.   Addressing reading and writing skills, Dr. Reschly found that Chase had scored in the

twentieth percentile on several achievement tests administered during his childhood and adult

years. He opined that these scores rendered him functionally literate, but that they conflicted

with the observations of those around Chase. Dr. Reschly said that several observers claimed

Chase could not do his own homework and could not read well enough to understand simple

directions, such as those on a box of macaroni and cheese. Nonetheless, Dr. Reschly found

that “Chase has a relative strength, for a person with mental retardation, in reading and

writing.” On cross-examination, he stated that Chase’s reading and writing skills were not

at the level typically found with intellectual disability. But he stated that Chase’s functional



                                              16
literacy does not rule out intellectual disability, and that persons with intellectual disability

“are expected to have strengths and weaknesses.”

¶26.   Dr. Reschly also found Chase deficient in money, time, and number concepts. Chase’s

mother said that Chase did not understand money. Johnson, who knew him from ages twelve

through fourteen, said that he did not understand money and could not tell time accurately.

Dr. Reschly noted Chase’s statement in his interview that he did not trust banks with his

money. Dr. Reschly stated that Chase could not understand the seven-percent sales tax. He

opined that Chase’s difficulty telling time contributed to his chronic lateness and missed

appointments in middle and high school.

                      b. Social Skills

¶27.   Dr. Reschly found that Chase had significant limitations in the area of social skills

caused by his intellectual limitations. He found that Chase made ineffective attempts to fit

in, was heavily dependent on a benefactor for social guidance, and was naive, gullible, and

frequently exploited by others. While Chase attempted to fit in with peers by telling tall

stories, he seemed oblivious to his peers’s negative reactions to his tall stories, had trouble

following the gist of conversations, and repeated others’ ideas. Dr. Reschly described this

behavior as an attempt to pass as normal. His teachers, Minor and Johnson, said that Chase

did not interact normally with other children and often befriended younger children. Dr.

Reschly opined that Chase had befriended younger children in order to better understand the

social interaction and that this was characteristic of intellectual disability. Shirley Norrells

said that Chase rarely interacted with other boys visiting her home. Chase’s mother and



                                               17
Shirley both recalled that Chase’s girlfriend Deborah had controlled Chase, including during

social interactions and daily activities. Dr. Reschly stated that Chase confirmed that he had

few friends as a child and never had a best friend. Dr. Reschly opined this history was

consistent with intellectual disability, because most intellectually disabled persons have

“inadequate social skills and limited interactions with normal peers.”

¶28.   Dr. Reschly found that Chase exhibited deficits in social responsibility; he was

chronically late; he could not complete his homework; and he could not reliably purchase

items from a grocery list. Topp, Chase’s civics teacher, said that Chase’s failing grade in his

class showed that he was “really, really low” and could not understand his rights and

responsibilities as a citizen. Dr. Reschly also found a deficit in social responsibility from the

fact that Chase may have fathered a child out of wedlock. On cross-examination, Dr. Reschly

admitted that this finding was based on his own moral judgment that fathering a child out of

wedlock showed an adaptive behavior deficit.

¶29.   Dr. Reschly found that Chase had a deficit in self-esteem, because he was excessively

dependent on others who made fun of him because he was slow and unskilled. He found that

Chase was highly dependent on others, especially Deborah and Shirley Norrells, to make

decisions for him, and that the Norrells had acted as “benefactors,” who are persons critical

to the coping skills of an intellectually disabled person. He noted that Chase’s statement that,

if only he had gone to Deborah’s house on the morning of the crime as Deborah had asked

him to do, he never would have gotten into trouble.

¶30.   Dr. Reschly found that Chase was gullible and easily led by others. Adams and



                                               18
Johnson said that other children often cheated or tricked Chase out of the money his mother

gave him. Adams also said that, unlike the other boys his age that she had dated, Chase was

“slow and backward” sexually and that she had to teach him about kissing and light petting.

Dr. Reschly found that this description contrasted significantly with Chase’s elaborate tales

of sexual conquest.

¶31.   Regarding following rules and obeying laws, Chase’s mother informed Dr. Reschly

that Chase was much slower to follow directions than other children and needed increased

supervision and direct guidance. Dr. Reschly noted that Chase also had abused a wide range

of illegal drugs beginning at age twelve or thirteen and also had committed legal violations

during his teen years. Dr. Reschly found that Chase’s compliance with rules was greatly

dependent on Deborah; Chase admitted in his interview that Deborah had “helped [him]

decide things and kept [him] out of trouble.”

                      c. Practical Skills

¶32.   Dr. Reschly found that Chase had severe adaptive behavior limitations in the practical

skills domain and “likely cannot care for himself competently nor support himself

economically or maintain himself in the community as a respectable citizen.” He found

particularly significant Chase’s statement that, if he was released from prison, he would want

to live with his mother but, if she had already passed away, he would want to stay in prison

because he needed someone to take care of him.

¶33.   Regarding daily living activities, Chase’s mother said that Chase had been more

difficult than other children to accomplish developmental milestones such as toilet training.



                                             19
Chase’s mother said he could cook a little. Persons recalled that Chase’s mother still picked

out his clothes in high school. Chase stated that he washes his clothes in his prison cell toilet

because he believes the prison laundry service is dirty, and Dr. Reschly found this action to

be lacking in reason and judgment. Further, Chase reported that he had not slept for several

days except for one nap, which Dr. Reschly found to be impossible. Dr. Reschly found that

Chase’s statement that he removes salt from noodles by running water over them was

incredible. Overall, Dr. Reschly found Chase’s daily living skills to be a mix of some good

habits, good grooming, and cleanliness, along with some bad habits.

¶34.   Dr. Reschly also found deficiencies in Chase’s occupational skills. Social security

records showed that Chase had may different employers and that his employment generally

was short-term. Marshall Gordon, Chase’s peer in middle school and high school, told Dr.

Reschly that Chase had been unable to use tools competently in industrial arts class such as

a hammer, handsaw, and chisel. Chase watched others work but completed no projects of his

own and did not receive credit for the course. From this, Dr. Reschly concluded that Chase

had very poor spatial relations. Shirley stated that Chase could not change a light bulb.

Chase’s mother and Johnson recalled that Chase soon was dismissed from his few jobs

because he could not do the work or could not manage the social demands of the workplace.

Dr. Reschly stated that Chase told unbelievable stories about the reasons for his dismissal

from jobs, and he “strongly suspect[ed]” that Chase had lost these jobs due to incompetence.

¶35.   Dr. Reschly said that Chase did not understand or appropriately handle money because

Chase said he did not trust banks and would rather hold his money himself, because Chase’s



                                               20
mother had left money for him daily, and because others reported that Chase could not handle

money and frequently lost his money when other kids cheated him. Also, Chase has never

paid rent, and he told Dr. Reschly that he cannot keep track of his prison commissary

expenses.

¶36.   Dr. Reschly found that Chase’s safety and health care skills were deficient because

he will not take the prescribed medication for his high blood pressure, stating that he does

not “want to become dependent.” Dr. Reschly also concluded that Chase “was significantly

delayed and deficient in acquiring and using skills related to travel and transportation.” He

found that Chase had never had a driver’s license because, although Chase claimed to have

been issued a South Carolina driver’s license, there was no record of it and Chase’s

description of obtaining the license was suspicious. And Shirley testified that Chase had been

unmotivated to drive and had been completely dependent on others for transportation to his

various jobs and during his school years. Because others reported that Chase was chronically

late and could make appointments only with Deborah’s assistance, Dr. Reschly concluded

that Chase was deficient in the area of schedules and routines. He noted that Chase had no

trouble using the telephone.

              3. Dr. Gerald O’Brien

¶37.   Dr. O’Brien testified that he has practiced clinical forensic psychology in Mississippi

for thirty years, and that his practice includes the diagnosis of intellectual disability. He

reviewed the testing, records, and other information gathered by the other experts in this case.

Dr. O’Brien testified that he interviewed Chase and administered a single test, a brief ability



                                              21
test called the Shipley-II, and the results were consistent with Chase’s scores on the other

ability tests. He did not administer a malingering test. From Dr. O’Brien’s review of all the

evidence, he concluded that Chase was intellectually disabled under the Atkins standard. He

concluded that, under the 2010 AAIDD definition, Chase was severely deficient in

conceptual skills and practical skills, but not in social skills.

¶38.   Dr. O’Brien stated that, due to the phenomenon of the “cloak of competency,” a

psychologist should not rely on self-reporting of abilities by the person being assessed for

intellectual disability. This is because intellectually disabled persons often want to appear

competent and will misreport the reasons for their problems with school, socializing, and

employment to hide the fact that real cause of the problems is intellectual disability. He

testified that Chase exhibited this phenomenon. Dr. O’Brien stated that, in childhood and

adolescence, Chase was greatly dependent on his mother, his girlfriends, and others, and now

he is dependent on the prison system’s structured environment to care for his needs. Dr.

O’Brien believed that, due to Chase’s test scores, the school data, and others’ descriptions

of Chase, Chase’s vocabulary usage did not necessarily reflect his actual abilities.

       B. State’s Evidence

               1. Dr. Gilbert Macvaugh

¶39.   Dr. Macvaugh testified that he is a licensed clinical and forensic psychologist at the

Mississippi State Hospital. He and a forensic evaluation team, including Gugliano and Dr.

Reb McMichael, performed a mental evaluation of Chase on January 11, 2010, and generated

a report. Dr. Macvaugh’s report stated that Dr. Macvaugh had relied on court records, school



                                               22
records, hospital records, correctional records from 1990-2009, prior testing, Dr. Perry’s

psychological evaluation, a report by S. Ray Pate Jr. dated February 14, 1990, a handwritten

statement by Chase, a three-hour-and-twenty-five-minute clinical interview with Chase, and

psychological testing performed by Gugliano, including the WAIS-IV, the WRAT-4, and the

TOMM.

¶40.   Dr. Macvaugh’s report stated that Chase was forty-one years old and never had been

married. The report discussed Chase’s prior mental evaluations. Dr. Perry performed a

mental evaluation of Chase on December 11, 1989, after his arrest for capital murder. Dr.

Perry administered the Wechsler Adult Intelligence Scale-Revised (WAIS-R), which showed

that Chase had a full-scale IQ score of 71. He had a verbal IQ score of 77 and a performance

IQ score of 64. Dr. Perry did not test for malingering, but he noted that Chase had not

appeared to put forth his best effort in the performance part of the test. However, he believed

the testing gave a “fairly good estimate” of Chase’s mental ability. Dr. Perry also

administered the Weschler Memory Scale, on which Chase attained a 99, in the average

range. He also gave Chase the WRAT-R, which showed Chase had reading recognition skills

at the tenth-grade level and spelling and arithmetic skills at the seventh-grade level. Dr. Perry

found Chase competent to stand trial, and he deemed his intellectual ability to be “at least in

the borderline range.”

¶41.   On February 14, 1990, Dr. Ray Pate performed a psychiatric evaluation of Chase at

the Copiah County Detention Center. He noted that, after his capital-murder arrest, Chase

had attempted suicide and had been hospitalized, but that the next day he was deemed



                                               23
medically safe and returned to jail. Dr. Pate was unable to detect any memory deficit or

mental illness. Dr. Mark Webb evaluated Chase’s mental functioning on February 4, 1998,

as part of Chase’s effort to secure a hearing on intellectual disability. Dr. Webb reviewed

Chase’s medical records and prior mental evaluations. He found that the thirteen-point

difference between Chase’s verbal score of 77 and performance score of 64 on the WAIS-R

was indicative of a learning disability and adaptive behavior deficiency. He found to a

reasonable degree of psychiatric certainty that Chase suffered from mild mental retardation

and that further evaluation was necessary.

                      a. Intellectual Functioning

¶42.   Dr. Macvaugh concluded, to a reasonable degree of psychological certainty, that

Chase has borderline intellectual functioning and is not intellectually disabled within the

meaning of Atkins. Regarding the intellectual functioning prong, Dr. Macvaugh found that

Chase’s test results showed a full-scale IQ score of 71 and that he was not malingering. But

Dr. Macvaugh noted that, while nothing indicated Chase had attempted to seem more

cognitively impaired than he really was, other factors may have affected his performance on

intelligence testing. These factors included that Chase had been transferred to the facility in

the very early morning, had vomited prior to the testing and had not been eating well, and

was sleepy and fatigued during testing.

                      b. Adaptive Behavior

¶43.   Regarding the adaptive behavior prong, Dr. Macvaugh testified that school records

are one of the most important tools in assessing intellectual disability. He provided a detailed



                                              24
review of Chase’s educational history. Records from the Hazlehurst City School District

showed that Chase failed tenth grade and dropped out of school during his second attempt

to pass tenth grade. He had failed no other grades and lacked any history of special education

services. In contrast with Dr. Reschly’s finding that special education had not been available

while Chase was in school, Dr. Macvaugh determined from his investigation that special

education services had been available in Chase’s school at least as early as 1980. He found

it significant that Chase had never been referred for special education, although he admitted

that not all intellectually disabled children are identified in school.

¶44.   Dr. Macvaugh also found that Chase’s grades were inconsistent with intellectual

disability. Chase had made straight A’s in the first grade and his grades continued to be

above average until the sixth grade, when they began to decline, culminating in his failure

of the tenth grade. In sixth grade, Chase was administered the California Achievement Test

and scored in the twenty-second percentile; Dr. Macvaugh opined that this score was

inconsistent with intellectual disability because an intellectually disabled person would be

expected to score in the second percentile or below.

¶45.   Dr. Macvaugh also found that Chase had given an average performance on the

Weschler Memory Scale, which is inconsistent with intellectual disability, and he described

how persons with intellectual disability demonstrate difficulty taking that test. On the

WRAT-4, Chase demonstrated reading recognition skills at the tenth-grade level and spelling

and arithmetic skills at the seventh-grade level. Dr. Macvaugh found Chase’s WRAT-4

scores did not indicate intellectual disability. Additionally, Dr. Macvaugh found that the



                                              25
vocabulary usage, speech patterns, and social skills Chase demonstrated at his interview at

the state hospital were inconsistent with a person who suffers from intellectual disability. Dr.

Macvaugh found that Chase’s knowledge of football exceeded the abstract-thinking abilities

of one with intellectual disability.

¶46.   Dr. Macvaugh also reviewed Chase’s employment history, which revealed

employment for short periods of time. When Chase left school, he spent twenty-three months

in the Job Corps in South Carolina. There, he learned welding and earned a welder’s

certificate. He then moved to Illinois and worked brief periods simultaneously at a plastic

company and at a Wendy’s restaurant. Chase said that he left Illinois when the weather

turned cold. He returned to Hazlehurst and worked at Kitchens’ Brothers Lumber Company

for about two months. According to Dr. Pate’s report, Chase left Kitchens’ Brothers because

the pay was low, the work was hard, and he could not satisfy his supervisor. Then, he got a

job working for a construction company that was building a bridge and left when the job was

complete. But Chase told Dr. Macvaugh that he worked on the bridge job as a welder for

about three weeks and left because he had become overheated. Chase said that the longest

period of time he had been employed was about three weeks. He reported that, between jobs,

he earned extra income washing cars and doing yard work. Dr. Macvaugh found Chase’s

work history, including his work as a welder and his working at two jobs simultaneously, did

not evince significant adaptive functioning deficits.

¶47.   Dr. Macvaugh also reviewed Chase’s history of substance abuse and criminal activity.

Chase’s correctional records indicated that he used alcohol and marijuana. Chase told Dr.



                                              26
Macvaugh that he also had used cocaine, ecstasy, and speed. Chase told Dr. Macvaugh and

Dr. Pate that he had helped steal a car as a teenager, and that he had been on probation. Chase

also reported having been accused of breaking into stores. He was not sent to a training

school or alternative school.

¶48.   Dr. Macvaugh admitted that it would have been preferable to have interviewed

persons who had known Chase prior to age eighteen in the assessment of his adaptive

functioning. He testified that members of the forensic team had attempted on several

occasions to contact those persons, but that these attempts had been unsuccessful. However,

Dr. Macvaugh opined that the failure to conduct interviews did not undermine his opinion.

He opined that the information from interviews performed by Dr. Reschly lacked sufficient

convergence to conclude that Chase had significant adaptive behavior deficits. Further, he

opined that Dr. Reschly had used his own personal and moral judgment about what was

normal rather than relying on nationally accepted standards.

¶49.   Dr. Macvaugh opined that Chase did not exhibit significant deficits in any domain of

adaptive functioning. Dr. Macvaugh found that Chase’s academic history, performance on

the WRAT-R, and average performance on the Wechsler Memory Scale were inconsistent

with the academic and conceptual skills of a person with intellectual disability. He found

Chase’s social behaviors to be inconsistent with intellectual disability. Dr. Macvaugh

concluded from the totality of the information that, although Chase has some intellectual

limitations, he is not intellectually disabled under Atkins and Chase.

       3. Circuit Court’s Holding



                                              27
¶50.   The circuit court found that Chase had not proved by the preponderance of the

evidence that he is intellectually disabled under Atkins and Chase. The trial court discounted

Dr. O’Brien’s testing result because he did not administer a test for malingering. The court

found that Dr. Reschly had relied on his own personal opinions and moral judgment in

concluding that Chase’s behaviors equated with intellectual disability. The circuit court

found Dr. Macvaugh’s opinion to be more credible than those of Dr. Reschly.

                                STANDARD OF REVIEW

¶51.   On review of the trial court’s decision after an evidentiary hearing on a post-

conviction-relief motion, this Court will affirm the trial court’s fact-findings unless they are

clearly erroneous. Goodin, 102 So. 3d at 1111 (quoting Doss v. State, 19 So. 3d 690, 694)).

We “must examine the entire record and accept ‘that evidence which supports or reasonably

tends to support the findings of fact made below, together with all reasonable inferences

which may be drawn therefrom and which favor the lower court’s finding of fact . . . .’”

Goodin, 102 So. 3d at 1111 (quoting Doss, 19 So. 3d at 694). This Court is to defer to the

trial court as the “sole authority for determining credibility of the witnesses.” Goodin, 102

So. 3d at 1111 (quoting Doss, 19 So. 3d at 694). Of course, questions of law are reviewed

de novo. Goodin, 102 So. 3d at 1111 (quoting Doss, 19 So. 3d at 694).

                                       DISCUSSION

¶52.   Chase raises several arguments on appeal that we have distilled into the following

issues: (1) whether the circuit court committed errors of fact and law in finding that Chase

had not proven significantly subaverage intellectual functioning; (2) whether the circuit court



                                              28
committed errors of fact and law in finding that Chase had not proven significant deficits in

adaptive functioning; and (3) whether the circuit court erred by denying Chase’s motion for

reconsideration without an evidentiary hearing to assess the credibility of those interviewed

by Dr. Reschly.

       I.     WHETHER THE CIRCUIT COURT ERRED BY FINDING THAT
              CHASE FAILED TO PROVE SIGNIFICANTLY SUBAVERAGE
              INTELLECTUAL FUNCTIONING.

¶53.   The circuit court recognized that, to meet the first prong of the Atkins/Chase test for

intellectual disability, Chase had to show significantly subaverage intellectual functioning.

The circuit court found that Chase had a full-scale IQ score of 71 and that testing had shown

he was not malingering. The circuit court found that “Chase’s IQ testing scores of 71 fall

within the range wherein mental retardation may be present in an individual, under certain

conditions.” The circuit court noted Dr. Macvaugh’s testimony that a 71 IQ indicates

borderline intellectual functioning, but that, due to the standard margin for error, an IQ score

from 70-75 could indicate intellectual disability.

¶54.   The circuit court concluded that Chase had presented sufficient evidence of

significantly subaverage intellectual functioning to warrant consideration of his adaptive

functioning. Then, the circuit court examined the evidence and found that Chase had not met

the adaptive functioning prong. But, after analyzing adaptive functioning, the circuit court

re-examined the evidence of subaverage intellectual functioning and questioned the validity

of the 71 IQ score. The court noted that Dr. Perry had not given a malingering test, and that

both Dr. Perry and Dr. Macvaugh had found Chase had not put forth his best effort during



                                              29
testing. Relying on Dr. Macvaugh’s testimony that Chase’s scores on the WRAT-R and the

Weschler Memory Scale were inconsistent with intellectual disability and that Chase’s

suboptimal performance could have negatively affected his test results, the circuit court

“viewed [Chase’s IQ score] as leaning towards the high mark of the range of standard

deviation, not the lower.” Therefore, the circuit court found that Chase had not met his

burden of proof of significantly subaverage intellectual functioning.

¶55.   Chase first takes issue with the circuit court’s holding that his full-scale IQ score was

71. He argues that the 2010 testing at the state hospital actually resulted in a full-scale IQ

score of 70. He recognizes the testimony of Gugliano and Dr. Macvaugh that the testing

showed that his full-scale IQ score was 72. He also recognizes that Gugliano testified that

his score of 72 was adjusted to 71 due to the Flynn Effect. But he argues that testimony by

Dr. Macvaugh establishes that his full-scale IQ actually was 70. Dr. Macvaugh testified that

the WAIS-IV showed his full-scale IQ was 72, but that:

       in reviewing the raw scores since we did this evaluation, we have found one
       scoring error that changes the overall score to a 71. So we gave him a score
       that was higher on one item of one particular subtest than he should have been
       awarded, and we made an adjustment for that, and we believe that his correct
       score is 71, not a 72.

Dr. Macvaugh did not mention the Flynn Effect. Chase argues that, considering the point

deducted for the subtest scoring error described by Dr. Macvaugh, along with the point

deducted for the Flynn Effect described by Dr. Gugliano, the circuit court should have found

that Chase’s full-scale IQ score was 70, not 71. He further argues that he was prejudiced by

this error because the trial court increased his burden of proof of adaptive functioning.



                                              30
¶56.   The circuit court did not clearly err by finding Chase’s full-scale IQ to be 71. The state

hospital’s report stated that Chase’s score was adjusted from 72 to 71 due to the Flynn Effect.

Gugliano corroborated this adjustment in her testimony. Although Dr. Macvaugh testified

that Chase’s score was adjusted from 72 to 71 due to a scoring error in one of the subtests,

neither the state hospital’s report, which Dr. Macvaugh authored, nor Gugliano, who

performed the testing, mentioned a scoring error. Thus, Dr. Macvaugh’s description of a

scoring error was not substantiated by either his own report or the testimony of the clinician

who administered the test. The circuit court did not clearly err by relying on the state

hospital’s report and Gugliano’s testimony to find that Chase’s IQ score was 71.

¶57.   Further, the circuit court did not increase Chase’s burden of proof of adaptive

functioning due to the 71 IQ score. The circuit court correctly identified that Chase’s burden

was to prove by a preponderance of the evidence that he had significant deficits in adaptive

functioning. This is the same burden of proof that applies to a petitioner with an IQ score of

70; the petitioner must prove significant deficits in adaptive functioning that manifested prior

to age eighteen. Chase, 873 So. 2d at 1027-29.

¶58.   Next, Chase argues that he had proved significantly subaverage intellectual

functioning as required by this Court’s holding in Goodin. We agree. The state hospital

report authored by Dr. Macvaugh concluded that Chase had a full-scale IQ of 71 and the

TOMM did not indicate malingering. While the report noted that Chase’s performance may

have been compromised by his illness and fatigue, it also stated that “based on his scores on

the malingering measure that we administered to him, there was no indication that Mr. Chase



                                              31
was attempting to look more cognitively impaired than is actually the case.” But at the

hearing, Dr. Macvaugh distanced himself from his report’s conclusion that Chase was not

malingering. He stated that Chase’s suboptimal performance during both his 1989 testing

with Dr. Perry and his 2010 testing at the state hospital, along with his high vocabulary

scores in 1989, threatened the validity of the test results. He believed that Chase had the

ability to obtain a higher score.

¶59.   In Chase, we held that experts should use “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; see also Lynch v. State, 951 So. 2d 549, 557 (Miss. 2007) (holding that trial

courts may use any approved test to determine mental retardation and/or malingering). In

Goodin, we held that a circuit court had erred by relying upon “unsupported allegations of

malingering.” In Goodin, Dr. O’Brien testified that he suspected Goodin of malingering. Id.

at 1107. But two other experts found no evidence of malingering. Id. at 1108. Dr. Paul Deal

testified that Goodin was malingering because his vocabulary usage, comprehension, and

understanding at a mental evaluation varied the test results. Id. at 1109. However, he

admitted that Goodin’s score on the TOMM did not strongly suggest malingering. Id. at

1110. This Court held that the circuit court had clearly erred by relying on unsupported

allegations of malingering. Id.

¶60.   Goodin stands for the proposition that a circuit court should not rely on unsupported

testimony of malingering at variance with the results of malingering tests. We find that Chase



                                             32
met his burden of proof of subaverage intellectual functioning.

¶61.   Chase also complains that the circuit court erroneously gave more weight to Dr.

Macvaugh’s testimony that Chase’s 71 IQ score was not reflective of his actual ability than

to Gugliano’s testimony that his score was in the range for intellectual disability. Because we

hold that Chase proved subaverage intellectual functioning, we need not address this issue.

       II. WHETHER THE CIRCUIT COURT ERRED BY FINDING THAT
       CHASE FAILED TO PROVE SIGNIFICANT DEFICITS IN ADAPTIVE
       FUNCTIONING.

¶62.   Chase argues that the circuit court committed errors of fact and law in its finding that

he had failed to prove significant deficits in adaptive functioning. As we have held, the

adaptive functioning prong requires that the petitioner show significant deficits in one of the

adaptive functioning domains identified in the 2010 AAIDD and 2013 APA definitions of

intellectual disability, or, under the Atkins/Chase definitions, show significant deficits in two

or more adaptive functioning areas. Dr. Reschly testified that Chase had significant deficits

in all three adaptive functioning domains under the 2010 AAIDD definition and significant

deficits in seven adaptive functioning areas under the Atkins/Chase definitions. Dr. O’Brien

found that Chase had significant deficits in the conceptual and practical domains under the

2010 AAIDD definition. And Dr. Macvaugh found that Chase lacked significant deficits in

any area of adaptive functioning. After reciting the evidence of adaptive functioning, the

circuit court found the opinions of Dr. Macvaugh to be most persuasive. The circuit court

found that Dr. Reschly’s opinions were unpersuasive because many of his conclusions were

grounded in his own personal opinions and moral judgments and did not have a substantial



                                               33
scientific basis.

¶63.   Chase argues that the circuit court erroneously found that Dr. Reschly did not rely on

any methodology to assure the interview sources’ credibility. He also argues that the circuit

court’s decision contravened Goodin by relying on Dr. Macvaugh’s testimony that Chase’s

vocabulary usage and score on the Wechsler Memory Scale were inconsistent with

intellectual disability. Chase contends that our holding in Goodin necessitates the use of

interviews in the assessment of adaptive functioning and that the circuit court was bound to

accept the findings of Dr. Reschly. He argues that the circuit court clearly erred by finding

Dr. Reschly’s opinions were not credible. He also argues that Goodin requires a retrospective

analysis of adaptive functioning and the trial court erred by accepting Dr. Macvaugh’s

conclusions because they relied on Chase’s present abilities. Finally, Chase argues that the

circuit court’s finding that he had failed to meet the adaptive functioning prong was clearly

erroneous.

¶64.   As an initial mater, we agree with Chase that the circuit court clearly erred by finding

that Dr. Reschly used no methodology to assure the credibility of the interview sources. In

fact, Dr. Reschly testified that he had used the convergent validity principle2 to assess the

credibility of the sources. However, that error was of little import to the circuit court’s

holding. It is manifest from the circuit court’s opinion that the primary reason it found Dr.

Reschly’s opinions unpersuasive was that Dr. Reschly relied on his own personal opinions

and moral judgments rather than on science. The trial court found Dr. Reschly’s opinions to

       2
        According to the testimony, that principle holds that consistency across multiple
sources tends to show that the sources were telling the truth about what they observed.

                                             34
be “replete with instances of attributing deficits easily and based on personal beliefs, not

science.”3

¶65.   We turn to Chase’s argument that Goodin required the trial court to accept the

opinions of Dr. Reschly. Chase’s argument, and that of the dissent, misinterprets Goodin to

hold that a trial court must credit the conclusions an expert draws after interviewing family,

friends, and educators in a retrospective analysis of adaptive functioning. Goodin stated the

following regarding retrospective analysis of a defendant’s adaptive functioning:

       Mental retardation in the Atkins context must therefore be diagnosed, if it is
       to be diagnosed at all, retrospectively . . . . This Court has noted the importance
       of interviewing family and friends knowledgeable about the defendant’s past.
       Interviews with educators or others in the community familiar with the
       defendant’s behavior before age eighteen also would provide valuable
       information. Adaptive functioning tests may be administered to these
       individuals as well. A retrospective evaluation also could include a thorough
       review of school records, social history, and work history, among other things.

Goodin, 102 So. 3d at 1115 (citations omitted). While Goodin held that interviews could be

valuable evidence, this Court did not deprive the circuit court of its fundamental role in

evaluating the credibility of the conclusions the expert draws from the interviews. We reject

Chase’s invitation to enact a rule that a circuit court must blindly accept a psychologist’s

interpretation of witnesses’ answers to interview questions as dispositive of the adaptive

functioning prong of the test for intellectual disability. We hold that the circuit court was

entitled to evaluate the scientific validity and credibility of Dr. Reschly’s opinions and to

       3
         Contrary to the dissent’s position, the trial court did not find Dr. Reschly’s opinions
less credible due to “inherent bias” of the sources. In fact, the trial court never stated that the
interview sources were “inherently biased.” The trial court’s primary reason for discounting
Dr. Reschly’s opinions was its finding that many of his conclusions were not grounded in
science, but in his own personal opinions and moral judgments.

                                                35
reject them if it found them not credible. Id. at 1111.

¶66.   The circuit court did not clearly err by rejecting the testimony of Dr. Reschly. Dr.

Reschly performed no testing of Chase, preferring to rely on the 2010 testing performed by

the state hospital and the battery of tests performed in 1989 by Dr. Perry. Dr. Reschly

interviewed Chase and conducted interviews of Chase’s family, friends, and educators who

knew him prior to age eighteen. Because Dr. Reschly performed no testing, his conclusions

about Chase’s abilities were based on his review of others’ testing and his interpretation of

the significance of the sources’ descriptions of Chase’s behavior. The circuit court found that

Dr. Reschly’s conclusions about Chase’s behavior were based largely on personal opinions

and moral judgment, not science. The circuit court cited several of Dr. Reschly’s opinions

which it found not credible. We discuss each of the circuit court’s findings in turn.

¶67.   The circuit court held that Dr. Reschly had relied on his personal beliefs when he

found that Chase demonstrated a significant deficit in social responsibility by unknowingly

fathering a child out of wedlock. This finding was fully supported by Dr. Reschly’s

admission at trial that this opinion was based on his own moral judgment of Chase’s

behavior. Dr. Reschly also assigned an adaptive deficit to Chase’s statement during his

interview that he washes salt off prepackaged noodles. Dr. Reschly found this demonstrated

an adaptive deficit because washing salt off noodles is impossible. The circuit court found

this to be “an insufficient and ungrounded basis for finding a deficiency, but an action

[washing salt off noodles] that is entirely possible.” The circuit court further found that Dr.

Reschly used his own personal judgment in determining that Chase told made-up stories to



                                              36
mask his intellectual deficiency, and that Dr. Reschly “simply decided himself what was and

was not possible.”

¶68.   Dr. Reschly’s report indicates that, except for Chase’s story of being suspended for

having sex on school property, which Dr. Reschly verified was untrue after talking to his

teacher, Dr. Reschly’s opinions about the veracity of Chase’s descriptions of past incidents

were entirely subjective. The circuit court found that Dr. Reschly’s finding that Chase was

lying when he said he had been knocked out when he hit his head on a basketball rim at age

twelve or thirteen was not credible. The circuit court found that Dr. Reschly simply assumed

this event was implausible without asking followup questions. The circuit court found that

Dr. Reschly’s assignment of deficits to Chase due to his short work history and the fact that

his mother still bought him clothes and gave him money was not credible because Dr.

Reschly failed to take into consideration the fact that Chase was ages sixteen through

nineteen during this time. The circuit court found that, while Dr. Reschly found that certain

statements Chase had made during the interview were illogical or untrue, his only basis for

that conclusion was his own personal unfamiliarity with Chase’s linguistic expressions. The

circuit court also noted Dr. Reschly’s conclusion that Chase’s chronic lateness demonstrated

an adaptive deficit in the area of time concepts. Dr. Reschly testified that Chase’s chronic

lateness showed he had problems telling time, but Dr. Macvaugh testified that this conclusion

was erroneous. These credibility decisions are entrusted to the circuit court under our

standard of review.

¶69.   The circuit court also found unpersuasive Dr. Reschly’s opinion about Chase’s



                                             37
understanding of his liability for capital murder. Dr. Reschly stated:

              Mr. Chase’s language and thinking limitations are revealed in a
       comment by Dr. Pate in 1989, quoted in the MS State Hospital Report: “He
       does not want to die but hates that he has no future because of something he
       didn’t do.” Clearly Mr. Chase failed then and now to understand his culpability
       as someone who admitted to assisting and encouraging a crime that caused a
       murder. (Ricky Chase’s Trial Testimony, 1990). Culpability is an abstract idea,
       involving understanding the relationship among several elements. Such
       language and abstract thinking deficits are at the heart of the exclusion of the
       death penalty with persons with mental retardation.

The circuit court was unpersuaded by this opinion because Chase demonstrated an

understanding of his criminal liability. The circuit court stated that “certainly accomplice

liability is an area which many people, even those with legal training, often do not fully

understand and certainly an argument by Chase that as the non-triggerman in a murder equals

less culpability is not so easily categorized as deficient.” This finding was fully supported by

the law and the record. Under Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed.

2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127

(1987), to be sentenced to death, a person convicted of capital murder actually must have

killed, attempted to kill, intended to kill, or intended that lethal force be used in a felony.

Chase consistently maintained at his sentencing hearing that his participation in the robbery

and murder were wrong, but that, because he did not fire the fatal shot or intend the murder,

he should not receive the death penalty. He stated:

              I was wrong. I was just as much involved in it as he was. I was wrong
       for being there and I was wrong for taking a part in it, because I knew it was
       wrong, it was dead wrong. What I’m saying is, to the Judge, the DA, the Court,
       the Grand Jury, is that I’m not the one who shot Mr. Hart. I didn’t kill him. I
       was there and I was wrong for being there, but I didn’t kill him.
       ...

                                              38
               I’m not ready to pay the price for nothing, but I broke the law and I
       know I have to be punished for me taking my part in that murder, but I don’t
       feel like – I don’t feel like, in fact, I know that I shouldn’t be punished for
       what I’m charged with, because I didn’t commit the crime, although
       sometimes someone shoots a person and they’re right there with him, they’re
       just as guilty as he is.
       ...
               I was just as guilty as he is, but I didn’t pull the trigger that killed Mr.
       Hart. I did not fire the shot. I did not fire the shot that killed Mr. Elmer Hart.

The circuit court reviewed the same medical history and trial transcripts as Dr. Reschly and

was entitled to find that Chase’s statements did not justify Dr. Reschly’s conclusions about

Chase’s understanding of his criminal liability.

¶70.   We recognize an additional deficiency in Dr. Reschly’s opinions not identified by the

circuit court. Citing the 2010 AAIDD manual, Dr. Reschly’s report indicated that adaptive

behavior is evaluated through the use of standardized measures. He quoted the manual’s

directive that significant adaptive functioning deficits are assessed in the following manner:

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

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

Yet Dr. Reschly used no normed data to evaluate the results of the interviews he conducted.

Instead, he relied on his own personal opinions and clinical judgment as to what the

information he gathered meant. We find that, without reference to a standardized measure

                                               39
normed on the generalized population, Dr. Reschly’s conclusions lacked the sound scientific

basis demanded in the context of an Atkins evaluation. Dr. O’Brien’s opinions suffered from

the same deficiency. We find that the circuit court did not clearly err in rejecting the

conclusions of Dr. Reschly and Dr. O’Brien.

¶71.   We turn to the circuit court’s reliance on Dr. Macvaugh’s findings. Dr. Macvaugh

performed a retrospective analysis as required by Goodin. He reviewed Chase’s school

records, including his transcripts from the Hazlehurst City School District, his attendance

records, and the results of standardized achievement testing and aptitude testing, all from

before Chase attained the age of eighteen. He also reviewed Chase’s employment history, the

psychological testing performed by Dr. Perry in 1989, when Chase was twenty, and a report

by Dr. Ray Pate dated February 14, 1990. During the 2010 assessment of Chase at the state

hospital, Dr. Macvaugh interviewed Chase and assessed his performance on the WRAT-4,

which measures spelling, mathematics, and reading recognition. Based on all of this

evidence, Dr. Macvaugh opined that Chase had no significant deficits in any area of adaptive

functioning.

¶72.   We reject Chase’s argument that the the circuit court erred by relying on Dr.

Macvaugh’s findings that Chase’s scores on the Wechsler Memory Scale and his vocabulary

usage at the interview were inconsistent with intellectual disability. Chase cites Goodin’s

statement that the overwhelming evidence of Goodin’s intellectual disability could “not be

discounted by the assertion that he is too adept at using language . . . .” While Goodin

indicated that an assertion that an individual’s language skills alone cannot outweigh other



                                            40
overwhelming evidence of intellectual disability, it did not hold that indicators such as

vocabulary usage and memory can never factor into a legal determination of intellectual

disability. Dr. Macvaugh’s findings of no intellectual disability did not solely rest upon

Chase’s vocabulary usage and memory, but took copious other evidence into consideration.

The circuit court did not err by relying on Dr. Macvaugh’s statements about Chase’s

vocabulary usage and memory because those were but two facets of his overall assessment

of Chase’s condition.

¶73.   Nonetheless, Dr. Macvaugh’s conclusions exhibited the same deficiency we identified

in Dr. Reschly’s testimony. Dr. Macvaugh’s opinions about Chase’s abilities rested solely

upon his clinical judgment, with no reliance on normed data, with the exception of the

WRAT-4, which measures only spelling, mathematics, and reading recognition. Certainly,

reliance on clinical judgment is warranted in the area of adaptive functioning. See Doss, 19

So. 3d at 713 (stating that “[a]daptive functioning historically has been assessed ‘on the

inherently subjective bases of interviews, observations, and professional judgment’”); Hardy,

762 F. Supp. 2d at 883 (stating that “[t]he evaluation of a person’s adaptive functioning

involves significantly more subjective clinical judgment. That judgment is still constrained

to some extent by the criteria spelled out by the APA and AAMR/AAIDD, as well as the use

of standardized tests”). But Dr. Macvaugh himself recognized the important role of normed

data to evaluate intellectual disability, even in the context of a death-row inmate attempting

to meet the Atkins standard. In a peer-reviewed article by Dr. Macvaugh that was admitted

into evidence in this case, Dr. Macvaugh stated the following regarding Atkins evaluations



                                             41
of incarcerated individuals:

       [I]nformation regarding adaptive function[ing] is most reliably obtained
       through the descriptions of third parties who have had the opportunity to
       closely observe the examinee in the community. The individual under
       evaluation is not the most reliable source of information regarding his own
       adaptive functioning. [A]ppraisal of the adaptive quality of behavior is most
       reliably based on comparison of described behavior with that of a normative
       group (e.g., standardized adaptive behavior rating scales).

Macvaugh, G.S. & Cunningham, M.D., Atkins v. Virginia: Implications and

Recommendations for Forensic Practice, 37 J. of Psychiatry & the Law, 131, 168 (2009)

(emphasis added). Despite his article’s emphasis on the importance of using normed data, Dr.

Macvaugh did not follow the procedures he advocated in his assessment of Chase.4 We find

that none of the experts in this case conducted nearly the depth of investigation appropriate

for assessing intellectual disability for the purposes of Atkins. Nonetheless, the burden of

proof rested with Chase. The circuit court did not clearly err by rejecting the opinions of Dr.

Reschly and Dr. O’Brien and finding that Chase had failed to prove intellectual disability by

a preponderance of the evidence.

       III.   WHETHER THE CIRCUIT COURT ERRED BY DENYING
              CHASE’S MOTION FOR RECONSIDERATION WITHOUT AN
              EVIDENTIARY HEARING TO ASSESS THE CREDIBILITY OF
              THE PERSONS INTERVIEWED BY DR. RESCHLY.

¶74.   Chase timely filed a motion for reconsideration, raising numerous issues. In the

motion, Chase noted the circuit court’s recognition of Dr. Macvaugh’s testimony that he had



       4
         The 2010 AAIDD manual explains that, infrequently, standardized assessments
cannot be used and provides guidelines for that scenario. Intellectual Disability: Definition,
Classification, and Systems of Support 48 (11th ed. 2010). No expert in this case provided
an explanation for why he did not use standardized assessments.

                                              42
wanted to interview the third parties interviewed by Dr. Reschly, but he had been unable to

contact them. Chase requested that the circuit court reopen the hearing, take additional

testimony from these third parties, and make new findings of fact and conclusions of law.

¶75.    Chase filed his “motion for reconsideration” under Mississippi Rules of Civil

Procedure 59(e) and 52(b). We have held that a “motion for reconsideration” is treated as

a motion to alter or amend the judgment under Rule 59(e). Brooks v. Roberts, 882 So. 2d

229, 233 (Miss. 2004). Rule 59(e) states that “[a] motion to alter or amend the judgment shall

be filed not later than ten days after entry of the judgment.” Rule 52(b) states, in pertinent

part:

                (b) Amendment. Upon motion of a party filed not later than ten days
        after entry of judgment or entry of findings and conclusions, or upon its own
        initiative during the same period, the court may amend its findings or make
        additional findings and may amend the judgment accordingly. The motion may
        accompany a motion for a new trial pursuant to Rule 59.

M.R.C.P. 52(b). Neither Rule 59(e) nor Rule 52(b) contemplates reopening the judgment to

take additional testimony and amend the judgment. That procedure is embraced by Rule

59(a), which governs motions for a new trial and states that “[o]n motion for a new trial in

an action without a jury, the court may open the judgment if one has been entered, take

additional testimony, amend findings of fact and conclusions of law or make new findings

and conclusions, and direct the entry of a new judgment.” M.R.C.P. 59(a). See Graves v.

Dudley Maples, L.P., 950 So. 2d 1017 (Miss. 2007) (stating that “[t]he proper method to

address any concerns about evidence [is] through a motion for a new trial pursuant to

M.R.C.P. 59”); Street v. Street, 936 So. 2d 1002, 1008 (Miss. Ct. App. 2006) (stating that



                                             43
“the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for

a new trial is identical; both motions must be made ‘not later than ten days after the entry of

judgment’”) (quoting M.R.C.P. 59(b)).

¶76.   We review Chase’s request for the circuit court to reopen the judgment, take

additional testimony, and amend the judgment as a motion for a new trial under Rule 59(a).

The denial of a motion for a new trial is reviewed for abuse of discretion. Rogers v. Morin,

791 So. 2d 815, 820 (Miss. 2001). In his motion, Chase argued that the case should be

reopened to allow Dr. Macvaugh to interview the third parties or to allow them to testify. On

appeal, Chase argues that the circuit court should have reopened the proceedings to hear

testimony from the third parties. Dr. Macvaugh testified that, while he would have preferred

to conduct interviews, he had sufficient information with which to reach a conclusion on the

question of whether Chase was intellectually disabled. Dr. Macvaugh believed his evaluation

of Chase to be complete, and there is no indication that hearing testimony from the third

parties would have caused Dr. Macvaugh to revisit his opinions. The trial court did not abuse

its discretion by denying Chase’s motion for a new trial.

                                      CONCLUSION

¶77.   We affirm. The circuit court did not clearly err by finding that Chase had failed to

prove intellectual disability by a preponderance of the evidence, and it did not abuse its

discretion by denying Chase’s motion for a new trial. We hold that the definitions of

intellectual disability promulgated by the American Association on Intellectual and

Developmental Disabilities in 2010 and the American Psychiatric Association in 2013 may



                                              44
be used in our courts in determining whether a criminal defendant is intellectually disabled

for the purposes of the Eighth Amendment.

¶78.   AFFIRMED.

    RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR.
DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY WALLER, C.J., AND KING, J. KITCHENS, J., NOT PARTICIPATING.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶79.   I dissent for two reasons. First, under our current Atkins law and procedure, the

circuit judge failed to follow this Court’s precedent, applied a flawed Atkins standard, and

incorrectly found that Chase is not intellectually disabled and exempt from execution.5

Second, this and other recent Atkins cases have convinced me that our existing Atkins

standard and procedures are inadequate to alleviate the Eighth Amendment concerns

implicated when an intellectually impaired offender faces potential capital punishment.

       I.     The circuit court applied a flawed legal standard.

¶80.   The circuit judge discredited Dr. Reschly’s testimony for doing exactly what this

Court has instructed him to do. Dr. Reschly relied on interviews with Chase’s family and

teachers. Our decision in Goodin v. State established that those interviews are an important

component in a retrospective Atkins evaluation.6 So, clearly, the circuit judge disregarded

our precedent and employed a flawed legal standard that required Dr. Reschly to base his



       5
         Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); Chase
v. State, 873 So. 2d 1013 (Miss. 2004).
       6
        Goodin v. State, 102 So. 3d 1102, 1115 (Miss. 2012) (quoting Doss v. State, 19 So.
3d 690, 714 (Miss. 2009)).

                                            45
opinions on the circuit judge’s own subjective standards.

¶81.   To fully appreciate this error, one must view it in light of the circuit judge’s ruling as

a whole. The circuit judge found that Chase failed to meet his burden to show the existence

of adaptive functioning deficits. Why? Not because the circuit judge found the State’s

evidence more convincing. Instead, for at least one legally invalid reason, he discredited Dr.

Reschly’s findings and rejected them wholesale.

¶82.   The circuit judge reached that conclusion largely because Dr. Reschly relied on

interviews with Chase’s family, teachers, and others who knew him prior to age eighteen to

assess Chase’s adaptive functioning. The circuit judge found such sources inherently biased,

and, in turn, found Dr. Reschly’s acceptance of their statements biased. He also found that

Dr. Reschly’s report failed to present a methodology for questioning those witnesses.

¶83.   The circuit judge’s inherent distrust of these sources sits in stark contrast to

professional standards, and to our precedent which specifically endorses interviews with

family and others who knew the accused prior to age eighteen. In Goodin, this Court stated

that “because the definitions of mental retardation require onset before age eighteen, when

evaluating anyone over the age of eighteen—incarcerated or not—some type of retrospective

analysis must be employed.”7 To that end, we stated:

       This Court has noted the importance of interviewing family and friends
       knowledgeable about the defendant’s past. Interviews with educators or others
       in the community familiar with the defendant’s behavior before age eighteen
       also would provide valuable information. Adaptive-functioning tests may be
       administered to these individuals as well. A retrospective evaluation also could

       7
           Goodin, 102 So. 3d at 1114 (citing Thorson v. State, 76 So. 3d 667, 672 n.8 (Miss.
2011)).

                                              46
       include a thorough review of school records, social history, and work history,
       among other things.8

¶84.   So this Court has acknowledged that family, friends, and educators are important

resources to assess adaptive functioning. The circuit judge disregarded that principle of law

when he found those sources inherently biased, especially given that the record lacks any

indication that any witness lied. Simply put, the circuit judge’s ruling was not based on any

finding that a particular witness was biased, but rather on a finding that statements from this

particular class of witnesses were biased and unreliable. This was legal error.

¶85.   To be sure, our precedent does not require the circuit judge automatically to accept

all information derived from family members, teachers, and friends from the past. But our

precedent does preclude a finding that information from such sources is inherently unreliable.

¶86.   Further, the circuit judge simply was incorrect when he found that Dr. Reschly

provided no methodology for judging the credibility of those informants. In his report, Dr.

Reschly explained that the primary measure of credibility for third-party informants is the

convergent validity principle, a recognized principle that was unchallenged by the State. The

examiner must look for consistency in the information received from multiple sources or

through multiple methods to justify his reliance on that information. And, in the evidentiary

hearing, Dr. Reschly testified that he observed that consistency across his sources. This too

was error, which the majority concedes along its road to affirm. And these errors are

compounded by the fact that the circuit judge readily accepted Dr. Macvaugh’s opinions,

despite the fact that Dr. Macvaugh never conducted a single third-party interview, which we

       8
           Goodin, 102 So. 3d at 1115 (citing Doss, 19 So. 3d at 714) (emphasis added).

                                              47
deemed so vital in Goodin.

¶87.   Also, Dr. Reschly found evidence of a lack of social responsibility in Chase’s claim

that he had reason to believe he had fathered a child with an unknown woman. The circuit

judge—with no basis in scientific literature or expert opinion to support his

conclusion—found that this was not appropriate scientific evidence of an adaptive

functioning deficit. I do not wish to be misunderstood on this point. The circuit judge did

not find one expert more credible than another. He simply disagreed with a scientific

principle stated by Dr. Reschly, a professor of psychology at Peabody College of Vanderbilt

University; a permanently licensed school psychologist in Arizona and Iowa with a

bachelor’s degree from Iowa State University, master’s degree from the University of Iowa,

and Ph.D. from the University of Oregon; having studied in the field of intellectual disability

“particularly the psychological aspects of mental retardation systematically since 1967;” and

having been active in the American Psychological Association’s division devoted to

developmental disabilities and intellectual disabilities “for about twenty years.”

¶88.   Further, the circuit judge simply was incorrect when he attacked Dr. Reschly’s finding

that Chase fabricated stories about sexual exploits to appear normal because “he did not

appear to corroborate any of these allegedly ‘made up stories,’ but rather simply decided

himself what was and wasn’t possible.” Contrary to the judge’s assertion, both Dr. Reschly’s

report and his testimony explain that he confirmed that Chase had never been expelled from

school for having sex on campus as he claimed by asking one of Chase’s teachers and his

principal.



                                              48
¶89.   The circuit judge also criticized Dr. Reschly’s use of Chase’s mistaken belief that he

is not culpable for his crime because accomplice liability is, in the judge’s view, a difficult

subject to understand “even [for] those with legal training.” But Dr. Reschly did not find a

deficit in Chase’s failure to understand the nuance of his culpability as an accomplice, but

rather Chase’s view that he had done nothing wrong despite the fact that he had admitted to

assisting and encouraging a murder. As Dr. Reschly explained, understanding culpability

requires abstract reasoning, and the absence of that reasoning indicates an adaptive

functioning deficit.

¶90.   Similarly, the circuit judge found that “Dr. Reschly assigned deficits to Chase’s fairly

short work history, and that his mother still bought him clothes and gave him money.

However, he did not believe it relevant to this finding that Chase was 16-19 through his work

history.” But in actuality, Dr. Reschly found that Chase’s work history evidenced an

adaptive functioning deficit not because it was short, but because he concluded that Chase

repeatedly had lost jobs because of his inability to perform his job functions. And Dr.

Reschly focused not on the fact that Chase’s mother bought clothes for him, but on the fact

that he was “excessively dependent on Mrs. Chase, who carefully directed and monitored Mr.

Chase’s dress, hygiene, and grooming.” For example, she had to select his clothing for him

when he was in high school.

¶91.   Further, the circuit judge’s troubled attempt to apply our Atkins standard extended to

his analysis of the first criterion: subaverage intellectual functioning. As the majority

concludes, “the circuit court clearly erred by crediting Dr. Macvaugh’s unsupported



                                              49
allegations of malingering that conflicted with the results of the TOMM and by finding that

Chase had failed to meet his burden of proof of significantly subaverage intellectual

functioning.”

¶92.   In sum, the circuit judge discredited Dr. Reschly’s testimony wholesale, largely

because Dr. Reschly relied on sources of information that this Court has found important in

Atkins evaluations. That was legal error. And the trial judge compounded his error by

undermining Dr. Reschly’s scientific analysis with rebukes that were unsupported in the

evidence. Because of this error, we should reverse the circuit judge’s ruling and, at a

minimum, remand this case to the circuit judge for new findings.

       II.      Chase is intellectually disabled.

¶93.   Though the circuit judge’s legal error requires reversal, our inquiry cannot stop there,

because Chase contends that the overwhelming weight of the evidence shows that he is

intellectually disabled and exempt from execution. Under our current caselaw, Chase bore

the burden to prove by a preponderance of the evidence that he has subaverage general

intellectual functioning evidenced by an IQ of seventy-five or lower (criterion 1); significant

limitations in adaptive functioning in two or more of the areas of communication, self-care,

community use, self-direction, health and safety, functional academics, leisure, and work

(criterion 2); and manifestation prior to age eighteen (criterion 3).9 In my opinion, the

overwhelming weight of the evidence shows that Chase met that burden.

       Criterion A



       9
           Chase, 873 So. 2d 1027-28.

                                              50
¶94.   To establish the first criterion, Chase had to show that he possesses subaverage

intellectual functioning.10 A petitioner’s intellectual functioning is measured in terms of IQ

and defined as a full-scale IQ at or below 75.11 A showing must also be made that the

petitioner was not malingering during testing—that is, intentionally scoring lower than he is

capable of scoring to obtain a secondary gain.12

¶95.   Chase has been administered two IQ tests. In 1989, Chase took the Wechsler Adult

Intelligence Scale Revised and scored a full-scale IQ of 71. In 2010, Chase took the

Wechsler Adult Intelligence Scale Fourth Edition and obtained a corrected full-scale IQ of

71. Dr. Reschly explained that Chase was given a test to measure malingering with the 2010

exam, and that the test showed no indication of malingering. These facts were undisputed

in the evidentiary hearing. So Chase indisputably established the first criterion.

       Criterion B

¶96.   Chase next had to establish the existence of two or more adaptive functioning

deficits.13 This prong has been satisfied as well.

       Communication

¶97.   During his interview with Chase, Dr. Reschly found Chase’s use of language

“repetitive, rambling, directionless, and without clear purpose.” He noted that Chase often



       10
            Id. at 1028.
       11
            Id.
       12
            Id.
       13
            Id.

                                             51
failed to complete sentences or rambled across several unrelated topics in a single sentence.

This made his speech difficult to follow. Dr. Reschly also found that Chase would make

illogical or improbable statements. One example is Chase stating: “My sister, you gotta

catch her, she works all the time, like a kangaroo.” Dr. Reschly explained that Chase’s

difficulties with language were closely related to his limited abstract reasoning. And people

who knew Chase during high school explained that he frequently would fail to understand

the content of a conversation.

¶98.   Chase possesses very basic literacy in the twentieth percentile. Dr. Reschly opined

that scoring in the twentieth percentile does not exclude a diagnosis of intellectual disability.

Dr. Macvaugh opined that intellectually disabled individuals usually do not score that high.

But Dr. Reschly found that Chase’s actually functioning fell short of the literacy levels his

test scores revealed. He explained that Chase’s reading and writing were above average for

a person with an intellectual disability, but significantly below an average person. For

instance, several people claimed that Chase struggled to read and understand simple

instructions, like those on a macaroni box.

¶99.   The state hospital also administered the Wide Range Achievement Test, Revision

Four. On that test, Chase scored in the nineteenth percentile—9.6 grade equivalent—in word

reading; the eighteenth percentile—10.4 grade equivalent—in sentence comprehension, the

twenty-fifth percentile—10.3 grade equivalent—in spelling; the tenth percentile—5.7 grade

equivalent—in math computation, and the fourteenth percentile reading composite score.14

       14
         I stop here to note that the majority incorrectly concludes that the experts in this
case failed to employ sufficient normed data in their respective adaptive functioning

                                               52
¶100. Given this overwhelming evidence, I would find that Chase established an adaptive

functioning deficit in communication.

       Self-Care/Self-Direction/Home-Living

¶101. Chase’s mother reported that Chase always had struggled to understand directions.

She explained that he needed more supervision than her other children and that he had to be

guided directly. Chase expressed that he depended on the judgment of his girlfriend to make

good decisions and keep him out of trouble. In fact, Chase’s mother directed and monitored

his hygiene and grooming. Even in high school, his mother had to pick out his clothes for

him. And a friend reported that Chase once attempted to cut his own hair, resulting in it

looking bad, but he was oblivious about how bad it looked.

¶102. Chase’s mother reported that he was difficult to toilet train, and that he reached most

early-childhood-development landmarks later than her other children. Chase explained that,

while incarcerated, he washes his clothes in his cell toilet instead of using the prison laundry

or the sink in his cell. Chase also admitted that he cannot keep up with his prison

commissary account. Chase also suffers from high blood pressure, but he refuses to take his

blood-pressure medication because he believes that he will become dependent on it. Chase

has also, while incarcerated, attempted suicide by hanging in his cell. None of this evidence

was refuted. So, I would find that Chase also established a deficit in this area.


analyses. Each relied on the normed results of the Wide Range Achievement Test. What
is more, the majority imposes a new legal requirement on Atkins evaluations—that every
evaluation must, as a matter of law, include normed tests—which did not exist when Chase
prepared for the evidentiary hearing in this case. If the majority wishes to impose this new
legal requirement, due process demands that Chase be given an opportunity to present that
evidence in a new evidentiary hearing.

                                              53
       Social/Interpersonal Skills

¶103. People interviewed by Dr. Reschly reported that Chase often told improbable stories

to fit in socially. Dr. Reschly explained that Chase used these stories to cover up his failures,

such as explaining that he was expelled from school for having sex when he actually dropped

out because of his academic struggles. People who knew Chase in high school reported that

Chase would continue to tell those stories, despite a negative reaction from his peers. And

Chase had little interaction with his peers during his teen years, preferring to interact with

children younger than himself.

¶104. People who knew Chase from his school years suggested that he stuck out because he

was so intellectually slow. Chase often gave money away in what one person described as

an attempt to buy friends. And several people reported that Chase was often easily led into

trouble by others.     Dr. Reschly opined that Chase struggled to understand social

responsibility. Chase’s civics teacher reported that Chase received an F in his class because

he could not understand the basic obligations of a citizen. Chase also believes he may have

fathered a daughter with a woman he does not know. So Chase established an adaptive

functioning deficit in the absence of contrary evidence.

       Functional Academic Skills

¶105. Chase struggled in school as a child. His teachers reported that he needed a great deal

of help and had difficulty understanding abstract information. Several teachers stated that

Chase needed to be in special education, but was not, because special education classes were

not available while he was in school. But Dr. Macvaugh confirmed with Hazelhurst Schools



                                               54
that special education became available in 1985, the year Chase dropped out. His teachers

also explained that, despite the fact that Chase gave good effort in school, he was unable to

understand things that the other children could. Chase was described as one of the lowest

students in his classes and received mostly Ds and Fs in his later school years.

¶106. Chase’s transcript reveals that, while he progressed through school grades, his

performance continually dropped. Dr. Reschly explained that this is a common characteristic

of those with intellectual disability. Chase was retained in the tenth grade and dropped out

of school during the second nine weeks of his second tenth-grade year. Dr. Macvaugh

opined that intellectually disabled individuals usually do not reach the tenth grade. Dr.

Reschly noted that in the ninth grade, Chase obtained only three and a half out of a potential

six to eight credits toward graduation, and in tenth grade none at all. I would find that the

evidence shows a deficit in this area.

       Work

¶107. In his high-school trade class, Chase struggled to use basic tools like saws, chisels,

and hammers. He would attend that class and watch others work, but he never completed any

projects himself. Chase’s girlfriend’s mother reported that, at age sixteen, Chase could not

change a lightbulb for her. According to his social security records, from January 1985 until

December 1989, Chase had eight different jobs and earned less than three hundred dollars

from six of those. Several people explained that Chase often lost those jobs because he could

not adequately perform his duties. This undisputed evidence establishes an adaptive

functioning deficit in this area.



                                             55
¶108. Based on this evidence, Dr. Reschly opined that Chase had the necessary adaptive

functioning deficits to satisfy the second prong of Chase. Dr. O’Brien agreed. Employing

our de novo review in light of the circuit judge’s legal error, we agree and find that Chase’s

largely undisputed evidence established two or more adaptive functioning deficits by a

preponderance of the evidence. Though Dr. Macvaugh disagreed with that conclusion, he

did so without the benefit of the necessary third-party interviews from Chase’s

developmental years, which present most of the evidence of adaptive functioning deficits.

So Chase satisfied the second prong.

       Criterion C

¶109. Finally, Chase had to establish that his deficits manifested prior to age eighteen.15 All

of the third-party informants whom Dr. Reschly interviewed knew Chase prior to that age.

Further, the experts in this case relied on information from Chase himself, describing conduct

from before age eighteen. Finally, while the experts disputed whether Chase had adaptive

functioning deficits, no expert ever suggested that he had deficits that manifested later than

age eighteen. So I would conclude that the undisputed evidence shows that Chase’s adaptive

functioning deficits manifested prior to age eighteen.

¶110. Because I believe that the overwhelming weight of the evidence shows that Chase

satisfied all three prongs of the Chase criteria, I would find that he is intellectually disabled

and exempt from execution.

       III.     Our Flawed Atkins Standard



       15
            Chase, 873 So. 2d at 1028.

                                               56
¶111. While the foregoing explanation expresses my belief that the record shows that Chase

was entitled to relief under our current Atkins standard, the record in this case also reveals

a far more pernicious concern. None of the dispute between the experts at trial, the parties

on appeal, or between the majority opinion and this dissent bears any relevance to the Eighth

Amendment concerns which significantly guided the Atkins decision and required this Court

to adopt an Atkins-related standard and procedure in the first place. I am concerned that

neither the experts, nor the circuit judge, nor the parties, nor this Court has considered the

appropriate Eighth Amendment questions. For that reason, I have come to believe new

Atkins standards may be needed.

¶112. When the Atkins court exempted the intellectually disabled from execution under the

Eighth Amendment to the United States Constitution, it did so based in part on specific

concerns related to the diminished capacity of those offenders, and their relation to the

judicial process.16 The Court noted the risk of “false confessions;” a lesser ability on the part

of the offender to “make a persuasive showing of mitigation in the face of the prosecutorial

evidence of one or more aggravating factors;” reduced ability to “give meaningful assistance

to their counsel;” and reduced ability to be good witnesses because “their demeanor may

create an unwarranted impression of lack of remorse for their crimes.”17 The Supreme Court

also buttressed a growing national consensus against executing the intellectually disabled

with its conclusion that neither of the penological purposes of the death penalty—retribution



       16
            Atkins, 536 U.S. at 317-21.
       17
            Id. at 318-21.

                                               57
and deterrence—was served by their execution.18

¶113. But, rather than articulate a legal standard to determine who presented these concerns,

the Court delegated that responsibility to the states.19 In response, in Chase, we adopted a

mental health definition associated with that label, which the Atkins Court cited but did not

require.20 Our Chase decision failed to take into account the fact that mental health

professionals who articulate these definitions and change them over time bear no obligation

to consider the legal concerns of the Eighth Amendment when they do so. The fact is, under

our application of Atkins in Chase, offenders may be eligible for execution simply because

we apply irrelevant characteristics for Eighth Amendment purposes, such as manifestation

prior to age eighteen. For instance, a person at age thirty, but before his crime, who suffers

a brain injury that results in a 60 I.Q. and severe deficits in two or more areas of social

function, is currently eligible to be sentenced to death, simply because his mental disability

did not manifest prior to age eighteen. But his current mental state is exactly the same as a

person who is not eligible for that sentence because his condition did manifest prior to age

eighteen. While manifestation prior to age eighteen may be significant in acquiring the

mental health label of intellectual disability, it is wholly insignificant with respect to the

Eighth Amendment concerns voiced by the Atkins Court.

¶114. This system is arbitrary on its face, and we should consider a judicial definition of


       18
            Id.
       19
        Id. at 317 (citing Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d
335 (1986)).
       20
            Chase, 873 So. 2d 1027-28.

                                             58
intellectual disability that meets constitutional concerns. Our approach should be to exclude

from the death penalty only those who raise true constitutional concerns, rather than those

who meet the mental health community’s views of what it means to be intellectually disabled

for their diagnostic purposes.

       WALLER, C.J., AND KING, J., JOIN THIS OPINION.




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