IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Dec :59: CA SCT Pages: 22 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TERRY PITCHFORD, Appellant versus NO CA-1818-SCT STATE OF MISSISSIPPI, Appellee BRIEF OF APPELLEE JIM HOOD ATTORNEY GENERAL STATE OF MISSISSIPPI CAMERON L. BENTON SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar. No Counsel of Record OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) Telefax: (601)

2 TABLE OF CONTENTS page TABLE OF CONTENTS ii STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT Ground One: Ground Two: The Competency Hearing Ordered in this Case Comported with this Court s Explicit Instructions and the Law as it existed at the Time.. 11 The State s Experts Cited and Applied the Proper Standard to Determine Competence CONCLUSION CERTIFICATE ii

3 IN THE SUPREME COURT OF MISSISSIPPI TERRY PITCHFORD versus STATE OF MISSISSIPPI Appellant NO CA-1818-SCT Appellee BRIEF OF APPELLEE STATEMENT OF THE CASE On February 8, 2006, Pitchford was convicted of the capital murder of Reuben Britt during the commission of an armed robbery in violation of Miss. Code Ann (2)(e). A jury determined that Pitchford should suffer death for his crime. Pitchford s conviction and sentence were affirmed on direct appeal. See Pitchford v. State, 45 So.3d 216 (Miss. 2010). Thereafter, Pitchford filed a motion for leave to proceed with post-conviction relief. On February 14, 2013, the Mississippi Supreme Court granted in part and denied in part Pitchford s motion. See Pet. s Ex. 2, Order (Miss. 2013). Without a written opinion, the Court held that Pitchford s claims lack sufficient merit to warrant a hearing. Id. One claim, however, survived the brief order. The Court granted Pitchford s motion for leave to proceed in the trial court with his claim that he was entitled to a hearing on his competency to stand trial. Id. The Court specifically ordered that this 1

4 court shall hold a hearing on whether Terry Pitchford was competent to stand trial. Id. Therefore, Pitchford s competency at the time of his trial was the only issue to be considered on remand. STATEMENT OF FACTS On the morning of November 7, 2004, Walter Davis and his son entered the Crossroads Grocery store in Grenada County, Mississippi and found the lifeless body of Reuben Britt. Trial Transcript ( Tr. ) 357, 366. Walter Davis alerted the authorities. Tr Grenada County law enforcement officials investigated the crime scene. The investigation lead officials to conclude that Mr. Britt was shot with two different types of firearms. Tr. 492, 357, 360. In addition, law enforcement officials learned of a failed attempt to rob the Crossroads Grocery, days prior to Mr. Britt s murder. Tr (suppression hearing). Investigators discovered that Pitchford was involved in that failed robbery attempt. Id. The officials were told that, on the day of the attempted robbery, Pitchford and his coconspirator were in a gray Mercury or Crown Victoria with dark-tinted windows. Id. Based on this information, investigators went to Pitchford s residence. They found a car matching the description previously given. Id. Shirley Jackson, Pitchford s mother, gave officials permission to search the car. Tr ; ; 494. The search produced a.38 caliber revolver which, with additional evidence, linked Pitchford directly to the murder. Tr. 494, Pitchford later confessed that he (1) 2

5 attempted to rob the Crossroads Grocery store and (2) murdered Mr. Britt on November 7, Tr , 572, 564. In his conversations with a cellmate, Pitchford boasted that he shot Mr. Britt eight or nine times with the victim s revolver after Mr. Britt begged for mercy. Tr The Mississippi State Supreme Court s opinion, on direct appeal recounts these facts. See Pitchford, 45 So.3d at Prior to trial, the defense filed a motion for a mental evaluation requesting that the Court appoint a competent psychiatrist to assist him in the defense of this matter. C.P Pursuant to that motion, the parties agreed and the court ordered that Pitchford be evaluated at the Mississippi State Hospital to determine if he was competent to stand trial. C.P On January 11th and 25th, 2006, Pitchford was evaluated and tested by the State Hospital. 1 C.P The team of doctors found that Pitchford was competent to stand trial. 2 Id. They noted that testing and observation indicated Pitchford was attempting to malinger symptoms of mental illness. Id. (Pitchford complained of hearing voices). Admittedly, there was not a formal competency hearing held. The Court, however, did hold a motions hearing on February 2, 2006, during which it took up consideration of a motion to continue. Tr. 32. As part of that motion, defense counsel argued that a continuance of the trial date was needed to seek an independent mental evaluation. Tr. 33, Faced with the report from the court appointed experts opining that Pitchford was not 1 Pitchford was evaluated and tested by Doctors Reb McMichael, Criss Lott, and Gilbert Macvaugh. 2 The evaluators further found that Pitchford was not mentally retarded. 3

6 insane or retarded but was competent to assist in his defense, counsel essentially conceded the issue but suggested that he needed more time to gather mitigating evidence with the assistance of Dr. Baylor. Tr , 41-42, Counsel explained that he had consulted with an expert and had reason to believe that further testing might reveal a neurological defect that could be helpful mitigation evidence. Tr. 34, After hearing argument from both parties and having reviewed the written report from the court appointed experts, court found that Pitchford was competent and capable of proceeding and that further testing was not necessary. Tr Following, the trial which resulted in a conviction for capital murder and a death sentence, Pitchford filed an appeal. This Court affirmed his conviction and sentence. Pitchford then sought and was partially granted post-conviction relief. The Court ordered that the parties were to return to the trial court for a retrospective competency hearing. That hearing was held on May 11th and 12th, At the competency hearing, Pitchford called five witnesses on his behalf. The first witness was Joseph Cornish, an inmate, who was housed with Pitchford prior to trial. Competency Hearing Transcript ( T. ) 5. Cornish testified that he witnessed Pitchford talking to himself but then admitted he had little contact with Pitchford. T. 5-6, 11. Cornish also admitted he had been in prison for 19 out of his 37 years of age for at least six different convictions. T

7 Pitchford s next witness was Jonamath Thompson, an inmate. Thompson was also housed for approximately five to six months with Pitchford prior to trial. T. 15. He stated that he had been incarcerated for 19 of his 35 years of age. T. 21. Thompson testified that Pitchford was emotional on occasion and would talk to himself. T The next witness was Shirley Ann Jackson, Pitchford s mother. T. 23. Ms. Jackson testified that Pitchford starting hitting himself in the head around the age of 13 or 14. T. 24. When she asked her son about his behavior, Pitchford told his mother that he heard voices. Id. Ms. Jackson described an incident when Pitchford was 15; she found him on the bathroom floor with a bottle of over-the-counter pain pills. T , 29. She took him to the hospital. Id. According to Ms. Jackson, the pills Pitchford had taken were not strong enough to do any harm and he was released. T. 27. Later it was revealed that Pitchford had taken only six or seven naproxen tablets. T Ms. Jackson told the court that Pitchford was suspended from school and had not completed eighth grade. T. 37. She also admitted that she failed to provide any of this information when she testified at trial. T. 38. Next, Dominique Hogan, a former girlfriend and the mother of Pitchford s only child, took the stand. T. 41. Ms. Hogan testified that Pitchford had a fear of the dark, that she overheard him talking to himself and that she had seen him fighting with himself. T Pitchford s last witness was Dr. Rahn Bailey, a psychiatrist. T. 55. Dr. Bailey s testimony was essentially a recitation of his unsigned report. T. 100, ; Defendant s Competency Hearing Exhibit 2. The Petitioner admitted as much in his brief. Pet s Br. at Dr. Bailey evaluated Pitchford on February 4, 2006, just days prior to the beginning of trial. T. 86. The evaluation lasted approximately three hours. Id. 5

8 In addition to his report of the evaluation, Dr. Bailey provided two affidavits which were attached to Pitchford s PCR petition. The first affidavit was signed on November 8, 2007 and the second was signed on September 22, Attached to Petition as Exhibit 3. In the affidavits, Dr. Bailey stated, among other things, that he was hired to provide mitigation testimony in the event he was convicted of capital murder. Id. His report, however, clearly identified that the purpose of [the] evaluation was to assess Mr. Pitchford s competency to stand trial. Def s Hearing Exhibit 2. Rather than addressing any potential mitigation, Dr. Bailey s report focused entirely on the issue of competency. Id. Despite the explanation given in his sworn affidavits, Dr. Bailey told the court that my initial understanding was that, as generally with these cases, I do the assessment for competency, I would be available to come back if I was called... But it was my impression at the initial consultation it was for competency to stand trial. T Ultimately, Dr. Bailey concluded that Pitchford was not competent to stand trial. The trial judge questioned Dr. Bailey about his conclusion in the following exchange: Q. And, of course, you say you read this guilty I mean, is there anything in where I, you know, he engages quite fully with the Court on everything I asked him. He had a show, at least in my book, looked like a pretty rational answer to every question that I was asking about his constitutional rights and about everything concerning the process. So, you know, what is it out of this transcript of this aborted guilty plea that would lead one to think that it reflects that he is not competent? A. Well, my testimony is the part about him asking to speak to his mother argues against him being able to work with his attorney. Q. But you just said that would be a natural thing for somebody to do to talk to a loved one or family or friend? A. That s true. Q. So which is it? I mean, it either shows that he was rational wanting to talk 6

9 T to a family member or it shows that he wasn t but you are saying two different things. A. Well, I said I clearly think that his discussion with his lawyer throughout the event on January 19th shows that he is aware of his communications. The lawyer, Carter even says in there at times when Mr. Pitchford says we haven t discussed these things or we haven t discussed these things for a long time. It is very clear that there is a remarkably inconsistent process, a lot of communication, I think throughout the whole process. But, clearly, on that day they showed some disagreement about whether they were communicating. Mr. Pitchford s communication with the Court do show that there was some back and forth and he showed he could understand and communicate effectively as you were saying. I am explaining my comment earlier when asked about what I think about him asking to speak with his mother, I think that argues against him having confidence in his lawyer. Q. Well, maybe confidence in his lawyer but confidence in his lawyer and competency to plead guilty or go to trial are two drastically different things. Dr. Bailey also attempted explained to the court, that Pitchford could not be considered competent because he was unable to state a defense or alibi to the crime. T But, as noted by the court, his inability to provide an alibi is because he did not have one there was no legal defense. Id. Next, as evidence of Pitchford s lack of competence, Dr. Bailey stated that Pitchford was unable to maintain any long-term relationships other than with his family. T But his statement was directly refuted by testimony from Pitchford s girlfriend Ms. Hogue who testified that they had known each other since they were 13 years old and started dating six months later. T. 42. The couple dated for roughly six years up until Pitchford was incarcerated for capital murder at approximately 19 years of age. Id. Dr. Bailey failed to explain the contradiction between his rationale and the obvious facts. 7

10 The final insult to Dr. Bailey s credibility came after the State discovered a second report drafted and signed by Dr Bailey. T The second report had not been previously disclosed to the State during PCR proceedings. The signed report contained some insignificant corrections of typos as well as some drastic substantive changes. T One compelling change concerned Dr. Bailey s testimony and conclusion, in the first unsigned report and his in-court testimony, that Pitchford s mental illness inhibited his ability to communicate with his attorney. Pet s Exhibit 2 at p.5. In the second signed report, this conclusion had been changed to reflect that Pitchford s mental illness does not inhibit his ability to communicate. T. 198; State s Exhibit 1 at p.5. Dr. Bailey attempted but failed to convincingly explain the contradictory statements. T Even the court recognized the irreconcilable conflict in Dr. Bailey s testimony and reports, Well, I think the reason it sounds contradictory is because it is. Because you say one thing in one report and something else in the other report that is totally opposite. So, I mean, that s a contradiction that I m not understanding. So are you saying that he mental illness would or would not have inhibited his ability to communicate with his lawyer. T Again, Dr. Bailey tried but failed to reconcile the glaring contradictions in the two reports. Dr. Bailey s testimony was peppered with contradictions which was best summarized by the trial court; T Dr. Bailey s report and testimony was long on conclusions. His signed and unsigned reports contradicted each other, and portions of the reports that contradicted other portions of the reports. His testimony was also very contradictory. Ultimately, this court finds there was not a foundational basis for much of his testimony, and this court finds most of it lacking in credibility and believability. 8

11 The State put on its case starting with Dr. Reb McMichael, a psychiatrist and chief of forensic services at Mississippi State Hospital. T Dr. McMichael explained the evaluation process generally and as related specifically to Pitchford. Dr. McMichael along with, Dr. Macvaugh and Dr. Lott evaluated Pitchford for competency and to determine whether he was mentally retarded. T The team of doctors evaluated Pitchford the month prior to trail and their conclusions were recorded in a 19 page diagnostic summary. T. 235; State s Exhibit 3. They unanimously determined that Pitchford was competent to proceed to trial. Id. Dr. McMichael also reviewed Dr. Bailey s (unsigned) report and disagreed with essentially every conclusion reached therein. T The State s second witness was Dr. Gilbert Macvaugh, a forensic psychologist. T Dr. Macvaugh shared the opinion that Pitchford was not suffering from a mental illness. T He also stated that he suspected Pitchford was attempting to malinger symptoms of mental illness. T Like Dr. McMichael, Dr. Macvaugh concluded that Pitchford was competent to proceed at the time of trial. T Dr. Macvaugh also reiterated that nothing he reviewed or heard since the original evaluation (such as in court testimony and transcripts from the failed plea hearing) had altered his opinion. Dr. Macvaugh also offered comprehensive testimony of why Dr. Bailey s diagnoses were flawed. T Under cross examination in response to questioning by defense counsel, Macvaugh discussed the credibility of Shirley Jackson, Pitchford s mother. The following exchange occurred between defense counsel and Dr. Macvaugh; Q. Is the reason that their testimony doesn t in any way impact your conclusion is because you don t believe them or is it because even if you believed what they said to be true, it still wouldn t impact your findings? A. Well, that s a good question. I think that I did have concerns, 9

12 obviously, about the credibility of what they were testifying about in part because I understand how genuine mental illness works. I understand about the typical age of onset of psychosis and when that occurs. That did not at all square with what the fact witnesses were describing about his alleged onset of mental illness. That was the first major issue. The second major issue is that based on my understanding of what Mr. Pitchford s mother told Dr. McMichael when we evaluated Mr. Pitchford nine years ago, is that she would have had an opportunity to tell Dr. McMichael in January of 2006 all of the things that she testified to yesterday but my understanding is that she did not. * * * Q. And, in fact the mother testified that she didn t think that it was actually voices, that she was a Christian, and she thought it was Satan talking to him; did you hear her say that? A. I did hear her say that. Q. Okay. So after that, after her telling you that, you made a credibility determination based on her testimony? A. Sorry. Is that a question? Q. Yes, sir. I I I you did make a credibility determination based on her testimony, didn t you? A. Well, I believe you asked me to. And I believe my determination was in response to questions about that. And it is not perfect determination because I did not get an opportunity to ask her questions myself which is what I would like to do if I were going to make a more reliable determination if I could. But, and again, I am a little uncertain about the rules on this but I have read other information about Mr. Pitchford s mother from some of your other experts in this case about Mr. Pitchford s mother that also threatened or at least, potentially, threatened her credibility. I m happy to get into that if you would like for me to. Q. You could just tell me what other experts that you are talking about. That would be helpful. A. I am talking about an expert report that I was provided and reviewed by a Dr. Dudley, who I believe is a psychiatrist from New York who was retained by the defense in this case after Dr. Bailey who went on at length 10

13 about Mr. Pitchford s report that his mother abuse him throughout his childhood. So I don t know that I can necessarily listen to his mother testify yesterday without considering the possibility that she may have been involved in some other things that may also weaken her credibility and I say may because I don t know that for sure. T At the conclusion of the proof, the court recessed and returned a short time later with its decision declaring that Pitchford was competent to proceed at the time of trial. T SUMMARY OF THE ARGUMENT In this death penalty case, the State has responded to all of the Petitioner s assignments of error and the sub-parts raised for review in this Court. Because the State has provided a thorough response to each argument, the State requests leave to dispense with a more detailed Summary of the Argument. ARGUMENT Ground One: The Competency Hearing Ordered in this Case Comported with this Court s Explicit Instructions and the Law as it existed at the Time. In his first of two arguments, Pitchford presents a lengthy diatribe about the propriety of a this Court ordering a retrospective competency hearing. 3 The State submits that this entire assignment of error is barred from consideration based on the Petitioner s failure to raise the issue in the trial court and by the doctrine of res judicata. Miss. Code Ann (1)-(3). His complaint should not now be heard. Without waiving application of the bars, the State submits that the claim also lacks merit. Pitchford relies heavily on this Court s decision in Coleman v. State, 127 So.3d 161 (Miss. 2013) 3 Court Order dated February 14, 2013 No DR-1032-SCT. 11

14 for the proposition that a retrospective competency hearing is insufficient to satisfy the requirements of Uniform Rules of Circuit and County Court Practice Importantly, Coleman was decided eight months after the Order granting a retrospective competency hearing in Pitchford s case. The Court held, in Coleman, that a retrospective competency hearing does not satisfy the purpose of Rule Id. at 167. The Coleman opinion was careful to distinguish its holding from this case, Id. at Finally, we note that the facts and circumstances presented in Pitchford were significantly different than those before us in the present case. In Pitchford, the trial court held a hearing, but defense counsel was not given notice that mental competency to stand trial was to be determined at that time. Pitchford, 2010-DR SCT (Order of February 14, 2013). Here, the trial court outright denied Coleman a hearing and determined that he somehow had waived his right to a competency hearing, despite repeated requests for such a proceeding both before and during trial. In Pitchford, the defendant s competence to stand trial was determined based on a written report from the Mississippi State Hospital; but here, the trial court based its determination of Coleman s competence to stand trial on a four-page summary report. Pitchford, 2010-DR SCT. We found that, under the facts in Pitchford, where the trial court held a mental competency hearing but did not give notice to defense counsel, a retrospective mental competency hearing was sufficient to guard the defendant s due process rights. Id. On the other hand, under the facts in this case, when the trial court simply denied the defendant a hearing, we find that a retrospective mental competency determination does not adequately protect Coleman s due process rights. The Petitioner s claim is self defeating based on the plain language and holding in Coleman. This Court both ordered the retrospective competency hearing for Pitchford and later reaffirmed, in Coleman, that such a procedure was proper. Try as he may to convince the Court that the retrospective hearing should never have been ordered, no amount of legal maneuvering can avoid the Court s order in this case and the decision in Coleman. In his brief, the Petitioner repeatedly attacked issues that occurred pre-trial which are not proper for purposes of this appeal issues that should have been raised in the direct appeal of his 12

15 conviction and sentence but are now barred from further consideration. See Pet s Br. at These issues such as lack of notice, lack of opportunity to present witnesses and other evidence, and allegations that the pre-trial competency determination was erroneous were cured when this Court ordered a retrospective competency hearing. Despite this Court s explicit order and opinion in Coleman, an undaunted Pitchford persisted with the argument that the Court was wrong to have ever order a retrospective hearing. His argument is procedurally misplaced and barred from review. Miss. Code Ann (3) (res judicata). As for alleged issues that occurred during the actual hearing, Pitchford complained that the trial court relied on evidence that would not have been available at the time of trial. Pet s Br. at He specifically referred to Dr. Macvaugh s testimony during cross examination. As noted supra, Dr. Macvaugh was questioned by defense counsel about the credibility of Ms. Jackson s (Pitchford s mother) testimony. In response, Dr. Macvaugh explained that he gave little regard to Ms. Jackson s testimony because she had provided inconsistent information to other experts. T Dr. Macvaugh also testified that nothing he had heard or reviewed since the pre-trial evaluation of Pitchford changed his opinion that Pitchford was competent to proceed. T The testimony of which Pitchford now complains was elicited by his own counsel. He should not be allowed to argue error that was created by his own actions. There is no basis for relief simply because Pitchford does not like the answers given in response to his own questions. Pitchford next argued that the passage of time rendered the retrospective competency hearing unreliable because it had a negative impact on his expert s credibility. Pet s Br. at 23. The argument is essentially that Dr. Bailey was not able to independently recall the content of the evaluation and had to rely exclusively on his written report. In reality, the damage to Dr. Bailey s credibility was 13

16 his own testimony which, as discussed above, was full of contradictions. The death nail came when the State introduced a second written report signed by Dr. Bailey which was in direct conflict, in several important and substantive ways, with the first unsigned report. Pitchford finally argues that the retrospective hearing was inadequate because the trial judge was biased. This argument is barred from consideration by the doctrine of res judicata. Miss. Code Ann (3). Prior to the retrospective competency hearing, the Petitioner filed a motion for recusal of the trial judge with this Court. Pitchford v. State, 2010-DR-1032-SCT, Petition for Review of Motion for Recusal, June 24, The motion was denied by order of this Court on September 26, The issue is therefore procedurally barred. Pitchford s entire claim is nothing more than an attempt to challenge the propriety of this Court s order granting a retrospective competency hearing. There is no factual or legal support for his argument. The hearing took place as this Court directed and in accordance with the law. The alleged infirmities with the actual hearing, even as viewed most favorably to Pitchford, are inconsequential. All that was necessary to comply with the constitution was notice and opportunity to be heard which included the right to present witnesses and evidence. Pitchford was afforded both of those. He had ample notice of the hearing during which he could have consulted as many experts as the court allowed. Pitchford, however, chose to present expert testimony from only Dr. Bailey. 4 The hearing is not rendered inadequate because Pitchford s star witness was a disaster on the stand and ultimately impeached with his own conflicting reports. 4 On March 26, 2014, a hearing was held on the State s motion for a mental evaluation. As the undersigned counsel recalls, the Petitioner agreed not to present testimony from Dr. Dudley and Dr. Spica, who had evaluated Pitchford post-trial. As a result, the State s motion was either withdrawn or denied by the trial court. 14

17 The Petitioner has presented nothing to this Court that should give it pause about the propriety of a retrospective competency hearing or the reliability of the hearing that took place in this case. The claim lacks any merit and should be denied. In addition, the Petitioner s claim is barred for failure to raise the issue in the trial court and/or by the doctrine of res judicata as having previously been decided by this court. Ground Two: The State s Experts Cited and Applied the Proper Standard to Determine Competence. Pitchford s second and final claim for relief is equally unavailing. He argues that the State s experts failed to apply the proper standard for competency. Not only is this claim barred for failing to raise the issue at the competency hearing, it is also contradicted by the record. In support of his specious claim, Pitchford pointed to excerpts of testimony from Drs. McMichael and Macvaugh, though he does so incompletely. Drs. McMichael and Macvaugh s report correctly recites the standard for competency. State s Ex. 3 at pp. 1, Dr. McMichael s testimony was also consistent with the legal standard for competency. T After the State finished redirect of Dr. McMichael, the following exchange occurred: Q. [COURT] I want to ask you. Of course, Dr. Bailey and you are agreeing that competency can change from day-to-day. How are we as courts and judges ever to feel secure as to whether somebody that is in front of us is competent on a particular day or not? A. I think that if the defendant is not intellectually disabled and does not have a major mental disorder then one assumes that the defendant is competent. If the person does have a well-documented major mental disorder, depending on other factors, whether or not they are receiving treatment, that competence can vary. Competence is time limited and issue specific. T Dr. McMichael s response was simply one statement taken from much more descriptive testimony regarding Pitchford s mental evaluation. 15

18 Dr. Macvaugh also discussed the report introduced into evidence which recited the legal standard for competency. State s Ex. 3. Dr. Macvaugh testified, under cross examination, to the proper standard for competency; Q. Do you know what the prevailing standard is for a determination of competency in Mississippi? A. Yes, sir. Q. And, what is it? A. It is almost verbatim the Dusky standard from Dusky v. United States in 1960, United States Supreme Court which is whether the defendant has the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether or not he has a rational, as well as factual, understanding of the proceedings against him. I believe our Mississippi Supreme Court and again, I m a psychologist, not a lawyer, but we are expected to know this stuff. I believe our Mississippi State Supreme Court interpreted or adopted the Dusky case. In the case called Gamage v. State in 1987, I think it was first addressed in earlier case in 1983 called Caylor C-A-Y-L-O-R v. State. But in that case, unfortunately the doctors and I believe, the defense counsel if my memory serves me correctly had confused the issues of competence and sanity so it wasn t until four years later in the Gamage case that the Supreme Court of Mississippi actually adopted the Dusky standard. And it is my understanding that that remains good law today. I think the Court has expanded on some of that in some subsequent case laws. Jay v. State, Sanders, etc. But it is still the basic Dusky standard. Q. And does the Dusky standard incorporate the requirement that a recent hold issue for finding incompetence in the area is that a person has to suffer from a major mental illness or defect? A. It does not explicitly say that. No, sir. Q. And also Caylor versus State and Gamage versus State doesn t say that either, do they? A. Not that I recall. Q. And, in fact, there is no Mississippi Supreme Court case that says that 16

19 in order to find someone incompetent, you first have to determine that they have a major mental illness or defect? A. Not that I can recall. I wouldn t want to commit to answering your definition definitively because I would suspect that in some decision, at least in some dicta, some discussion about the presence or absence of mental disease or defect is probably in the ballpark there but I can t site a case in which they specifically rejected that word or adopted it. * * * Q. And just to be clear, your testimony is in order for someone to be found incompetent in the State of Mississippi, they first must be determined to have a major mental illness or defect? A. I think that depends on whether we are talking about an adult or a juvenile, and whether we are talking about someone who can speak a different language and come from a different culture. I think there are certainly cases in which a defendant who does not speak English and who is not familiar with the American criminal justice system may be before the Court on serious felony charges and lack on adequate rational and factual understanding of the legal proceedings or may be impaired in their capacity to consult with counsel because of language barriers or cultural issues. I think whether that equates to incompetence or not is up to the Court and not the doctors that make that evaluation. * * * Q. But other than those exceptions there has to be a finding of major mental illness or defect? A. By finding do you mean a legal finding or a clinical conclusion? Q. Well, you said you know what the law is so I am asking, legally, does there have to be a finding of a major mental illness or defect? A. Well, again, I m not a lawyer. Must understanding is that in the absence of a major mental disease or defect, the law assumes competence provided that those other variables that we just discussed juveniles and folks from other cultures and other languages are not part of the equation. 17

20 T Contrary to Pitchford s aspersions, Dr. Macvaugh was well versed in the law as it related to competency as is plainly obvious from his testimony. And despite Pitchford s argument, Dr. Macvaugh did recognize, recite, and apply the correct standard for determining competency. See Gammage v. Mississippi, 510 So.2d 802, 803 (Miss. 1987) (adopting the standard for competency as announced in Dusky v. United States, 362 U.S. 402 (1960)). There simply is no factual or legal support for Pitchford s argument. To the extent either Dr. Macvaugh or Dr. McMichael s testimony can be construed as a misstatement of the law, their summary report correctly noted the standard for competency. The summary report also contained their conclusion that Pitchford was competent at the time of trial. Their in-court testimony reaffirmed that conclusion. As a result, there is no merit to Pitchford s argument. The retrospective competency hearing comported with all dictates of the Constitution, prior precedent, and this Court s order. His Ground Two should be summarily denied. CONCLUSION Pitchford s claims either singularly or collectively are unworthy of relief. His first claim is nothing more than an attack on the Court s order requiring a retrospective competency hearing which is procedurally barred by res judicata and improper for direct appeal. His second claim is wholly refuted by the record. The State respectfully asks that the Court affirm the trial court s competency finding and dismiss this appeal. Respectfully submitted this the 30th day of December, 2016, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI 18

21 OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 Jackson, MS (601) FAX: (601) JASON L. DAVIS ASSISTANT ATTORNEY GENERAL CAMERON L. BENTON SPECIAL ASSISTANT ATTORNEY GENERAL MSB NO BY: s/ Cameron L. Benton CAMERON L. BENTON 19

22 CERTIFICATE OF SERVICE I, the undersigned, CAMERON L. BENTON, Special Assistant Attorney General counsel for the State of Mississippi, do hereby certify that I have this day caused to be electronically filed the foregoing pleadings with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Louwlynn Vanzetta Williams Jamila K. Alexander Mississippi Office of Capital Post-Conviction 239 North Lamar Street, Suite 403 Jackson, MS Respectfully submitted this the 30th day of December, BY: s/ Cameron L. Benton CAMERON L. BENTON 20