Roger Eric Thorson v. State of Mississippi ( 2010 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-CA-01010-SCT
ROGER ERIC THORSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/04/2010
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JIM DAVIS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JASON LEWIS DAVIS
MARVIN L. WHITE, JR.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 09/15/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Roger Eric Thorson was indicted on June 3, 1987, and charged with the capital murder
of Gloria McKinney, his ex-girlfriend, during the commission of a kidnapping on March 4,
1987. On Thorson’s direct appeal of his capital-murder conviction and sentence of death, this
Court affirmed the trial court on all issues except a Batson issue, and the case was remanded
to the trial court to conduct a Batson hearing.1 Thorson v. State, 653 So. 2d 876, 896 (Miss.
1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
1994). On remand, the trial court found no Batson violation, thus holding that Thorson was
not entitled to a new trial. Thorson v. State, 721 So. 2d 590, 592 (Miss. 1998). On appeal,
this Court found that the trial court had committed reversible error in allowing the State to
peremptorily strike a member of the jury venire based solely on her religious affiliation, in
violation of Article 3, Section 18 of the Mississippi Constitution and Mississippi Code
Section 13-5-2. Id. at 598. Thus, the case was reversed and remanded for a new trial. Id.
After another jury trial, Thorson was again convicted for the crime of capital murder and
sentenced to death by lethal injection, and on appeal, this Court affirmed both the conviction
and sentence. Thorson v. State, 895 So. 2d 85, 132 (Miss. 2004). The United States
Supreme Court denied Thorson’s petition for writ of certiorari on October 3, 2005. Thorson
v. Mississippi, 546 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83 (2005).
¶2. Thorson subsequently filed a Petition for Post-Conviction Relief with this Court,
seeking an Atkins hearing pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153
L. Ed. 2d 335 (2002); Lynch v. State, 951 So. 2d 549 (Miss. 2007); and Chase v. State, 873
So. 2d 1013 (Miss. 2004). See Thorson v. State, 994 So. 2d 707, 709 (Miss. 2007). We
granted Thorson relief and permitted him an evidentiary hearing to determine whether he was
mentally retarded. Id. On January 7-8, 2010, the Circuit Court of the Second Judicial District
of Harrison County conducted a hearing, with Judge Roger T. Clark presiding. After the
hearing, Judge Clark took the matter under advisement, directed the court reporter to
transcribe the proceedings and to furnish copies of the transcript to counsel for the parties,
and established a briefing schedule. Once all briefs had been submitted, Judge Clark, on June
4, 2010, entered an eight-page order thoroughly discussing the issue before him and finding
2
that Thorson was not mentally retarded under Atkins. Upon entry of this order denying his
petition for post-conviction relief under Atkins, Thorson appealed to us.
¶3. The Court heard oral arguments of counsel and received from the parties, through
counsel, post-argument citation of supplemental authority under Mississippi Rule of
Appellate Procedure 28(j). Upon review, we find that the trial court did not abuse its
discretion by finding that Thorson was not mentally retarded. The record supports the trial
court’s finding that Thorson failed to meet the first prong of Atkins, 536 U.S. 304.
PROCEEDINGS IN THE TRIAL COURT
¶4. At the evidentiary hearing on January 7-8, 2010, both the defense and the State
offered expert testimony on the issue of whether Thorson was mentally retarded under
Atkins, which required Thorson to show that: (1) he had significantly subaverage intellectual
functioning; (2) he had deficits in two or more adaptive skills; (3) he was eighteen years of
age or younger when the retardation manifested itself; and (4) he was not malingering. See
Chase, 873 So. 2d at 1027-29 (interpreting Atkins, 536 U.S. 304).
¶5. Thorson called Dr. Victoria Swanson and Dr. Mark Zimmerman,2 who both testified
that Thorson was mentally retarded. In rebuttal, the State called Dr. Gilbert MacVaugh and
Dr. Reb McMichael, who disagreed with Thorson’s experts and opined that Thorson was not
mentally retarded. Both parties’ experts either conducted or had other psychologists to
2
Dr. Zimmerman did not determine whether Thorson had deficits in adaptive
functioning under the second Atkins prong. He performed no testing for deficits in adaptive
functioning. Rather, Dr. Zimmerman testified that Thorson’s IQ established that Thorson had
satisfied the first Atkins prong.
3
conduct IQ tests on Thorson. Both parties’ experts3 also relied on IQ tests formerly
conducted on Thorson in reaching their opinions. Accordingly, for the first prong, the trial
court heard expert testimony based, inter alia, on three IQ tests and two psychiatric
examinations:
! Dr. William Gasparrini conducted the WAIS-R 4 on Thorson in 1988,
finding that Thorson had a full-scale IQ of 77.
! Dr. Henry Maggio conducted a psychiatric examination on Thorson in
2002 and agreed with an IQ score of 77.
! Dr. Mark Zimmerman conducted the WAIS-III 5 on Thorson in 2005,
finding that Thorson had a full scale IQ of 70.
! Dr. Victoria Swanson conducted several examinations on Thorson,
reviewed the IQ tests performed on Thorson, and opined that Thorson
had an IQ of 71 to 72.
! Dr. Gilbert MacVaugh, with the aid of his team at Whitfield, conducted
the WAIS-III on Thorson, finding his IQ to be 79.
¶6. Having heard testimony from both parties’ experts and having considered all the IQ
tests performed on Thorson, the trial court found that Thorson had failed to show that he had
an IQ of 75 or below:
All of the IQ test scores contained in this record were administered after 1987,
the date of the crime. The earliest tests resulted in full scale I.Q. results of 77
and 79. Dr. William Gasparrini administered the WAIS-R to Thorson in 1988
and found his “full scale I.Q. to be 77.” In 2000, Dr. George Tate reported that
Thorson’s mother told him that the school told her that Thorson was just above
the level for special ed classes. Dr. Henry Maggio conducted a psychiatric
examination of Thorson on February 28, 2002, and agreed with the IQ score
of 77. The reports of these doctors were submitted as evidence, and were
reviewed by all of the experts. Dr. Gilbert S. MacVaugh, as part of a team of
forensic clinicians at Whitfield, evaluated Thorson on August 25, 2008, and
3
Dr. William Gasparrini and Dr. Henry Maggio did not testify at the hearing. Only
Dr. McMichael, Dr. Swanson, Dr. Zimmerman, and Dr. MacVaugh testified at the hearing.
4
Wechsler Adult Intelligence Scale-Revised.
5
Wechsler Adult Intelligence Scale-Third Edition.
4
found he was not mentally retarded. At that time Thorson achieved a “full
scale” I.Q. of 79. Defense expert, Dr. Mark Zimmerman, tested Thorson in
2005 and placed Thorson’s I.Q. at 70. He reached this result in part by
adjusting the raw score based on the “Flynn Effect.”
....
As the fact-finder, it is clear to this Court that Roger Thorson’s I.Q. has not
been proven to be 75 or below . . . .
¶7. In reaching his conclusion that Thorson did not have an IQ of 75 or below, the trial
judge did not find Thorson’s experts’ reliance on the Flynn Effect to be persuasive. The
Flynn Effect “is a phenomenon positing that, over time, standardized IQ test scores tend to
increase with the age of the test without a corresponding increase in actual intelligence in the
general population. Those who follow the Flynn Effect adjust for it by deducting from the
IQ score a specified amount for each year since the test was normalized.” Wiley v. Epps, 625
F.3d 199, 203 n.1 (5th Cir. 2010) (citing In re Salazar, 443 F.3d 433 n.1 (5th Cir. 2006)).
¶8. Notwithstanding the trial court’s finding that Thorson had not met the first prong of
Atkins, the trial court, “out of an abundance of caution . . . reviewed the evidence regarding
the other three prongs of the Atkins test, adaptive skills, manifestation before age eighteen,
and malingering.” 6 As to the second Atkins prong, addressing whether Thorson had shown
at least two deficits in adaptive functioning, the State did not retrospectively assess Thorson
for adaptive functioning by applying standardized tests, maintaining that retrospective testing
for adaptive functioning is not standardized for use with offenders who have been
6
In actuality, after addressing adaptive skills, Judge Clark found that “[w]ithout
sufficient proof to establish deficits in adaptive functioning, there is no need to address
malingering or proof of mental retardation onset prior to age eighteen.”
5
incarcerated for a number of years. Instead, to make its determination, the State reviewed
more than 300 documents pertaining to Thorson’s history and interviewed Thorson, but did
not conduct personal interviews of any witnesses. Based on this research, Dr. MacVaugh
concluded that Thorson’s only adaptive deficit was in the area of functional academics.
¶9. In contrast, Dr. Swanson conducted a Vineland-II Adaptive Behavior Scales (VABS-
II) test and an Adaptive Behavior Assessment System-II (ABAS-II)7 to determine whether
Thorson had deficits in adaptive functioning. Specifically, she administered these tests
retrospectively 8 to Thorson’s former girlfriend and a co-worker of Thorson’s from the 1980s.
Applying these tests, Dr. Swanson ultimately concluded that, prior to the age of eighteen,
Thorson’s
subdomain standard scores indicate that, at about the age of 18 to 22, deficits
(2 or more standard deviations below the mean) existed in the areas of (1)
communication; (2) functional academic skills; (3) self-care; (4) use of
community resources; (5) social/interpersonal relationships; (6) leisure; (7)
self-direction; (8) health; and (9) work.
¶10. Aside from the Vineland test, Dr. Swanson also interviewed several other witnesses
familiar with Thorson and reviewed numerous documents relating to Thorson’s history. She
7
According to Dr. Swanson’s report, the VABS-II and the ABAS-II are “the three
preferred standardized instruments currently used in assessing adaptive behavior” and are
considered the “gold standard in these types of assessments.”
8
The onset of mental retardation for Atkins has to be before the defendant is older
than eighteen years of age. Accordingly, Dr. Swanson had to apply her Vineland tests
retrospectively on Thorson, now a middle-aged man. Experts for each side agreed that being
on death row for twenty years could have had an effect, either positively or negatively, on
Thorson’s adaptive functioning.
6
conducted other tests9 on Thorson, including the Woodcock Johnson test to assess Thorson’s
academic functioning. Dr. Swanson testified that, based on the Woodcock Johnson test,
Thorson had a score of 52 in oral communication, consistent with a first-grade level and
“much lower in comprehension, fifth grade spelling, fourth grade math.” The Wide Range
Achievement Test, Fourth Edition (WRAT-4) revealed that Thorson’s word recognition was
on a sixth-grade level.
¶11. In light of these findings, her mental examination of Thorson, and the Vineland test,
Dr. Swanson further concluded that Thorson currently had “significant limitations,” which
satisfied Atkins’s second prong, in communication, functional academics, self-direction, and
work skills.10
¶12. Viewing all the evidence offered at the hearing concerning Thorson’s adaptive
functioning, the trial court found Dr. Swanson’s retrospective tests to be “unreliable and
unpersuasive.” The trial court stated,
Dr. Swanson’s opinion is that Thorson is deficient in at least eight areas of
adaptive functioning with “significant limitations” in 1) communication, 2)
functional academics, 3) self direction and 4) work skills . . . . The Court has
given careful consideration to all available evidence and the experts’
interpretation of it. The defense would discount Dr. MacVaugh’s opinions
because he reviewed the voluminous documents and interviewed Thorson, but
conducted no “personal interviews of any witness” to support his opinion. Dr.
9
On page twenty of her report, Dr. Swanson discussed a mental-status examination
that she had conducted. She also conducted the WRAT-4 (Wide Range Achievement Test,
Fourth Edition).
10
Dr. Swanson testified that she had found eight adaptive deficits in Thorson prior to
the age of eighteen and four as an adult: “The testing that I did and others did, the affidavits
I looked at, testing I did, indicated to me that he met the adaptive criteria prior to the age of
18, and I listed here eight of the eleven areas. And at this time it’s my opinion that he meets
them in four.”
7
Swanson reviewed the same material, and administered retrospective tests to
Thorson’s former girlfriend and a co-worker of Thorson’s at Morrison’s
Cafeteria in the mid to late 1980s . . . Dr. Swanson also interviewed Thorson’s
birth mother, adopted sister, uncles and aunts, cousins, a schoolteacher and
special education administrator. Some of these interviews confirmed
information previously provided but did not provide any new information that
is persuasive in making an Atkins determination. Dr. McMichael, expert for
the state, testified that the retrospective testing administered by Dr. Swanson
should be viewed with a “great deal of scepticism [sic].” The Court finds the
application of the retrospective Vineland tests unreliable and unpersuasive.
¶13. The trial judge then specifically discussed the evidence in support of his conclusion
that Thorson had failed to prove adaptive deficits in communication and work skills. He
found that the “record is replete with examples of Thorson’s ability to communicate, albeit
not always truthfully.” He also found that a social-history evaluation performed circa 2001
noted that Thorson’s development was within the normal range; Thorson’s medical requests
from 1988 to 1998 demonstrate an ability to ask for specific medications and to monitor the
medications he received; and a neurologist, Dr. Sidney Smith, had examined Thorson on
April 3, 1987, and had found that Thorson was “completely oriented” and without “cognitive
deficits.” The trial court also pointed out that Dr. McMichael had testified Thorson’s
vocabulary and word use, as demonstrated in his videotaped statement, was not consistent
with a mentally retarded person.
¶14. Regarding work skills, the trial court found that Thorson had maintained several jobs
from 1974 to 1987, and some of those jobs had lasted for more than a year. The trial court
reasoned that the record did not reveal why Thorson had left these jobs or had been asked to
leave. Additionally, the trial court noted that Thorson, in a 2008 interview, had stated “that
8
he used marijuana beginning at age thirteen and did ‘thirty-five to forty joints’ daily until he
was nineteen.”
¶15. Both Dr. MacVaugh and Dr. Swanson agreed that Thorson had a deficit in academic
functioning. The trial judge even stated that “except for the deficit in academics the
defendant has failed to establish significant deficits in any other adaptive functioning.”
However, the trial court further explained that Thorson had failed to prove by a
preponderance of the evidence that Thorson’s academic deficits “were caused by his mental
retardation.” Accordingly, the trial court concluded that Thorson did not have a deficit in
academic functioning for purposes of Atkins. The trial judge did not provide any specific
discussion as to why Thorson did not have a deficit in self-direction.
¶16. In today’s appeal, Thorson argues that the trial court committed clear error when it
found that Thorson was not mentally retarded under Atkins. Thorson alleges that the trial
court committed several errors, arguing that the trial court abused its discretion (1) in
permitting Dr. MacVaugh and Dr. McMichael to offer expert testimony for the State related
to the assessment or diagnosis of mental retardation; (2) by not relying on Dr. Swanson’s and
Dr. Zimmerman’s expert assessments and diagnoses of mental retardation; (3) by accepting
Dr. MacVaugh’s and Dr. McMichael’s determination that Thorson did not exhibit
significantly subaverage intellectual functioning; (4) by rejecting Dr. Swanson’s and Dr.
Zimmerman’s determination that Thorson exhibited significantly subaverage intellectual
functioning; (5) by ignoring scientifically established errors of measurement for the
assessment of significantly subaverage intellectual functioning; (6) by accepting Dr.
MacVaugh’s and Dr. McMichael’s determinations that Thorson did not have concurrent
9
deficits or impairments in at least two areas of adaptive functioning; (7) by rejecting Dr.
Swanson’s determination that Thorson exhibited concurrent deficits or impairments in at
least two areas of adaptive functioning; (8) by rejecting Dr. Swanson’s use of retrospective
testing for adaptive functioning; (9) by rejecting Dr. Swanson’s clinical judgment; and (10)
by applying an incorrect standard to the adaptive-functioning prong of a mental-retardation
assessment and ignoring clear evidence of onset prior to age eighteen.
¶17. For purposes of this opinion, we have combined some of these issues. Moreover,
because this Court finds the first issue to be dispositive, we do not address the second Atkins
prong – deficits in adaptive functioning – or any issues raised by Thorson pertaining thereto.
DISCUSSION
¶18. “When reviewing a lower court’s decision to deny a petition for post conviction relief
this Court will not disturb the trial court’s factual findings unless they are found to be clearly
erroneous.” Doss v. State, 19 So. 3d 690, 694 (Miss. 2009) (citing Brown v. State, 731 So.
2d 595, 598 (Miss. 1999)) (citations omitted). This Court “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 findings of fact . . . .’” Doss, 19 So. 3d at 694 (citing Mullins
v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)) (citations omitted).
¶19. However, “‘where questions of law are raised the applicable standard of review is de
novo.’” Doss, 19 So. 3d at 694 (citing Brown v. State, 731 So. 2d at 598). “The burden of
proof at an evidentiary hearing on a PCR case is on the petitioner to show ‘by a
10
preponderance of the evidence’ that he is entitled to relief.” Doss, 19 So. 3d at 694 (citing
Miss. Code Ann. § 99-39-23(7) (Rev. 2007).
¶20. In Atkins, 536 U.S. at 321, the United States Supreme Court held that imposing the
death penalty on mentally retarded inmates constituted cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution. The Atkins decision
left to the States “the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.” Lynch, 951 So. 2d at 556 (citing Atkins, 536
U.S. at 317) (citations omitted).
¶21. In Atkins, the majority approvingly cited two definitions of mental retardation. The
American Association on Mental Retardation 11 (AAMR) provided one definition:
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.
Chase, 873 So. 2d at 1027 (quoting Atkins, 536 U.S. at 308 n.3). The American Psychiatric
Association (APA) provided the second, similar definition of mental retardation:
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
11
The American Association for Mental Retardation is now the American Association
for Individuals with Developmental Disabilities (AAIDD).
11
seen as a final common pathway of various pathological processes that affect
the functioning of the central nervous system.
Chase, 873 So. 2d at 1028 (citing Diagnostic and Statistical Manual of Mental Disorders 12
39 (4th ed. 2000)).
¶22. In Foster v. State, 848 So. 2d 172, 175 (Miss. 2003), this Court adopted these
definitions and further held that “the Minnesota Multiphasic Personality Inventory-II
(MMPI-II) is to be administered since its associated validity scales make the test best suited
to detect malingering . . . .” In Chase, we clarified this statement, “stating that the expert
should use the MMPI-II, and/or any other tests and procedures permitted under the
Mississippi Rules of Evidence, and deemed necessary to assist the expert and the trial court
in forming an opinion as to whether the defendant is malingering.” Chase, 873 So. 2d at 1028
n.19.
¶23. In Chase, this Court held that no defendant can be adjudged mentally retarded under
the Eighth Amendment unless the defendant produces 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;
2. The defendant has completed the Minnesota Multi phasic Personality
Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not
malingering.
Chase, 873 So. 2d at 1029.
12
The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR),
published by the APA, sets forth this diagnostic criteria for mental retardation.
12
¶24. In Chase, this Court explained that the DSM-IV provides that “‘mild’ mental
retardation is typically used to describe persons with an IQ level of 50-55 to approximately
70.” Chase, 873 So. 2d at 1028 n.18. Accordingly, we note that the cutoff for mild mental
retardation is an IQ of 70, which is two standard deviations of 15 points below the mean of
100, as measured by the Wechsler Adult Intelligence Scale. See Atkins, 536 U.S. at 309 n.5;
Bowling v. Commonwealth of Kentucky, 163 S.W.3d 361, 374-75 (Ky. 2005) (informing
that the Wechsler Adult Intelligence Scale (3rd. ed.) defines significantly subaverage
intellectual functioning as . . . two or more standard deviations below the mean).
¶25. In Chase, this Court noted further that “mental retardation may, under certain
conditions, be present in an individual with an IQ of up to 75” if this individual “exhibit[s]
significant deficits in adaptive behavior.” Chase, 873 So. 2d at 1028, 1028 n.18. Therefore,
if a defendant proves by a preponderance of the evidence that his or her IQ falls at or below
the cutoff for mild mental retardation,13 the trial court should also consider the remaining
Atkins prongs when reaching an ultimate determination regarding mental retardation. Id.14
13
IQ tests typically have a standard error of measurement (also called a “confidence
interval”). Accordingly, a base IQ score actually represents a range that could be five points
higher or lower. Thus, despite the fact that 70 is the typical cutoff for mental retardation, the
psychology profession accepts 75 as a qualifying score for a diagnosis of mental retardation.
See DSM–IV–TR at 41–42. Of course, the defendant with an IQ of 75 or below must satisfy
the remaining Atkins prongs. See Chase, 873 So. 2d at 1028 n.18.
14
For the sake of clarity, we note that the evidence sufficient to warrant the granting
of an evidentiary hearing under Atkins in no way permeates the trial judge’s testing and
weighing of the evidence presented at the actual Atkins hearing. See Bell v. State, ___ So.
3d ___, 2011 WL 322413, at *3 (¶11) (Miss. Feb. 3, 2011) (noting that evidence presented
by the defendant’s experts in support of this Court’s grant of an Atkins hearing could be
further tested at the actual hearing).
In Chase, this Court set forth the requirements a defendant must meet to have an
evidentiary hearing: “(1) the defendant has a combined . . . [IQ] of 75 or below, and; (2)
13
¶26. This Court also explained that any defense expert addressing whether a defendant
meets the requirements of Atkins “must be a licensed psychologist or psychiatrist, qualified
as an expert in the field of assessing mental retardation, and further qualified as an expert in
the administration and interpretation of tests, and in the evaluation of persons, for purposes
of determining mental retardation.” Chase, 873 So. 2d at 1029.
¶27. Ultimately, to prove mental retardation, a defendant must show 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. Id. at 1027-29.
I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
IN PERMITTING DR. MacVAUGH AND DR. McMICHAEL TO
OFFER EXPERT TESTIMONY FOR THE STATE RELATED
TO THE ASSESSMENT OR DIAGNOSIS OF MENTAL
RETARDATION.
¶28. The trial judge declared Dr. MacVaugh to be an expert in forensic psychology with
a particular emphasis in Atkins determinations and Dr. McMichael to be an expert in the field
of forensic psychology. Thorson contends that the trial court abused its discretion by
allowing Dr. MacVaugh and Dr. McMichael to testify. Specifically, Thorson argues that Dr.
MacVaugh’s and Dr. McMichael’s backgrounds, training, and experience do not qualify
them as experts under Chase, and allowing them to testify would render the Atkins decision
illusory.
in the opinion of the expert, there is a reasonable basis to believe that, upon further testing,
the defendant will be found to be mentally retarded, as defined herein.” Chase, 873 So. 2d
at 1029. The requirements for proving that one is entitled to an evidentiary hearing differ
from the actual requirements of proving mental retardation to a trial court.
14
¶29. In support of this argument, Thorson argues that Dr. MacVaugh was admitted only
as an expert in forensic psychology and that Dr. MacVaugh admitted that he was self-
educated on Atkins. Thorson also points out that Dr. MacVaugh is not board-certified and
argues that he has insufficient experience, focusing his practice solely on forensic
psychology and having “only personally examined ‘probably a hundred’ individuals to
determine whether or not they are mentally retarded, much of which was done in his
doctorate and post-doctorate training.” Moreover, Thorson contends that Dr. MacVaugh has
assessed individuals for mental retardation only twenty-five times in the last four years,
which is obviously insufficient.
¶30. Thorson also argues that Dr. McMichael was improperly qualified to testify as an
expert under Chase, which requires qualification “as an expert in the field of assessing
mental retardation . . . [and] in the administration and interpretation of tests . . . .” See Chase,
873 So. 2d at 1029. Thorson points out that Dr. McMichael candidly admitted that he neither
administers nor interprets results for the purpose of diagnosing patients as mentally retarded
and that he has not done many evaluations for the sole purpose of determining mental
retardation.
¶31. The State argues that Thorson waived any objections to both of the State’s experts
because Thorson did not object to the trial court’s expert certification of either Dr.
MacVaugh or Dr. McMichael. The State argues that “[h]eightened appellate scrutiny in
death penalty cases does not require abandonment of our contemporaneous objection rule
which applies with equal force to death cases.” See Scott v. State, 878 So. 2d 933, 953 (Miss.
2004), overruled on other grounds by Chamberlin v. State, 989 So. 2d 320 (Miss. 2008).
15
¶32. Alternatively, the State argues that Dr. MacVaugh was properly qualified as an expert.
In support of this argument, the State cites Doss v. State, 19 So. 3d 690 (Miss. 2009), and
Wiley v. Epps, 668 F. Supp. 2d 848 (N.D. Miss. 2009), in which Dr. MacVaugh was certified
as an expert. The State argues that Dr. MacVaugh’s experience – performing hundreds of
assessments – not only makes him qualified to assess mental retardation in a clinical context,
but also makes him uniquely qualified to assess mental retardation in individuals on death
row. Additionally, the State argues that Dr. McMichael, Service Chief of the Forensic
Services Unit at the Mississippi State Hospital, was correctly qualified to testify under
Atkins. The State contends that Dr. McMichael is a licensed forensic psychiatrist.
¶33. This Court finds that the trial court did not abuse its discretion by permitting Dr.
MacVaugh and Dr. McMichael to testify as experts. The record reveals that Thorson failed
to object to the State’s experts. This Court has held that “[i]n death penalty cases, the
contemporaneous objection rule is applicable,” despite the heightened standard of appellate
review. Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996).
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
BY NOT RELYING ON DR. SWANSON’S AND DR.
ZIMMERMAN’S EXPERT ASSESSMENTS AND DIAGNOSES
OF MENTAL RETARDATION.15
15
Appellant’s Issue IX is included under this section: Whether the trial judge abused
his discretion by rejecting Dr. Swanson’s clinical judgment. Issue IX is essentially the same
as Issue II. Thorson argues that the trial court erred by failing to rely on Dr. Swanson’s
clinical judgment, which the AAIDD defines as “a special type of judgment that emerges
directly from extensive data and is rooted in a high level of clinical experience . . . .” See
AAIDD, User’s Guide: Mental Retardation – Definition, Classification, and Systems of
Supports (10th ed. 2007). Basically, Thorson argues that Dr. Swanson was the only expert
qualified to provide reliable clinical judgment and the trial court abused its discretion by
finding the State’s experts to be more persuasive.
16
¶34. In its Order, the trial court found that Thorson had failed to prove mental retardation
by a preponderance of the evidence. Thorson now argues that the trial court abused its
discretion by not relying on Thorson’s more experienced experts who testified that Thorson
suffered from mild mental retardation.
¶35. In support of this argument, Thorson describes his experts’ credentials. Thorson
points out that Dr. Zimmerman has had extensive experience in testing individuals for mental
retardation as part of his clinical practice, having, inter alia, been responsible for assessing
individuals to determine whether they were qualified for admission into the Lufkin State
School in Texas. Dr. Zimmerman also has tested hundreds, if not thousands, of individuals
for mental retardation and has been qualified as an expert in several states. Thorson also
points out that Dr. Swanson, a clinical psychologist, testified for Thorson. Dr. Swanson is
eminently qualified, having assessed and tested “thousands and thousands” of people for
mental retardation since 1973. Dr. Swanson ultimately testified that, with a reasonable
degree of medical certainty, she believed Thorson is mentally retarded under Atkins.
¶36. This Court finds that Thorson’s argument is misplaced. Thorson cannot show that the
trial court abused its discretion simply because Thorson’s two experts are vastly experienced
in assessing mental retardation. This Court has never rubber-stamped the opinions of experts
simply because the experts are experienced. See Miss. R. Evid. 702; see also Edmonds v.
State, 955 So. 2d 787, 791 (Miss. 2007) (excluding the testimony of a qualified expert’s
testimony and explaining that “a court should not give such an expert carte blanche to proffer
any opinion he chooses”).
17
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
BY ACCEPTING DR. MacVAUGH’S AND Dr. McMICHAEL’s
DETERMINATION THAT THORSON DOES NOT EXHIBIT
SIGNIFICANTLY SUBAVERAGE INTELLECTUAL
FUNCTIONING AND BY REJECTING DR. SWANSON’S AND
DR. ZIMMERMAN’S CONTRARY DETERMINATIONS.
¶37. Relying on the testimony of Dr. McMichael and Dr. MacVaugh, the trial court found
that Thorson did not exhibit significantly subaverage intellectual functioning. Thorson
contends that the trial court committed clear error by relying on the State’s experts’ findings,
as opposed to Thorson’s experts’ findings.
¶38. Thorson argues that Dr. MacVaugh administered no tests to determine Thorson’s level
of intellectual functioning. Instead, six doctoral-level students performed most of the
substantive work that Dr. MacVaugh relied upon in forming his expert opinion that Thorson
is not mentally retarded. Dr. Robert Storer, a post-doctoral psychologist, administered the IQ
test upon which Dr. MacVaugh based his expert report. Thorson argues that the State “should
not be allowed to bootstrap potentially unscientific or improper testing performed by a
potentially unqualified, and absent, witness by allowing another witness to ‘rely’ on the work
of the absent witness.” Thorson also points out that Dr. McMichael candidly admitted that
he does not administer or interpret IQ tests.
¶39. Moreover, Thorson argues that, even assuming Dr. MacVaugh’s reliance on the work
of others in reaching his conclusions comports with the APA and the AAIDD, then the Full-
Scale IQ (FSIQ) of 79 that resulted from the State’s IQ testing of Thorson should be reported
with a confidence interval of between 75 and 83, without applying the Flynn Effect and the
18
tree-stump effect.16 Dr. Swanson explained in her report and testified that “all the AMR [sic]
editions that we’ve discussed and the DSM pay particular attention to the standard error of
measurement . . . . They ask you to look at the standard error of measurement or the
confidence interval around that score” which is “plus or minus five” points. Accordingly,
considering this confidence interval, Thorson contends that he has satisfied the first prong
under Atkins, an IQ of 75 or below, and argues that the trial court’s reliance on Dr.
MacVaugh’s finding that Thorson did not have subaverage intellectual functioning was
clearly erroneous given Dr. MacVaugh’s methodology.
¶40. Pointing to his own experts’ findings, Thorson continues to argue that the trial court
abused its discretion in finding that Thorson did not have subaverage intellectual functioning.
He points out that Dr. Zimmerman’s personally conducted IQ test17 of Thorson, which scored
70, was consistent with mental retardation. Dr. Zimmerman found that Thorson was not
malingering18 and ultimately concluded that, based on thirty years of experience, Thorson
was mentally retarded.
¶41. Thorson continues, providing that Dr. Swanson determined, based on her extensive
review of Thorson, that Thorson’s full-scale IQ was probably around 71 or 72 and that
Thorson had not been malingering. Dr. Swanson did not personally perform an IQ test but
16
This Court will address later the Flynn Effect and the tree-stump effect.
17
Dr. Zimmerman conducted the Wechsler Adult Intelligence Scale Three, the Test
of Memory Malingering, the Short Category Test, the Wisconsin Card Sort, the Screening
Test for the Luria-Nebraska Neuropsychological Battery, the full Luria Neuropsychological
Battery, the Wide Range Achievement, and the Benton Visual Retention Test and
malingering tests. All of these tests were consistent with mental retardation.
18
None of the experts found evidence to prove that Thorson was malingering.
19
reviewed IQ tests conducted by Dr. Gasparrini in 1988, by Dr. Zimmerman in 2005, and at
Whitfield in 2008. She also testified that Thorson’s intellectual development “topped off”
somewhere around the sixth grade, consistent with mild mental retardation, and that Thorson
was still functioning at that sixth-grade level.
¶42. In contrast, the State argues that the trial court did not abuse its discretion by relying
on the expert testimony of Dr. MacVaugh. The State argues that Thorson did not object to
the fact that the Whitfield doctors administered the tests to Thorson, and, therefore,
Thorson’s claim is without merit. Alternatively, the State argues that Dr. MacVaugh
evaluated Thorson on August 25, 2008, and found him not to be mentally retarded. The team
of six doctoral-level forensic clinicians/students at Whitfield conducted the assessment of
Thorson, reviewing Thorson’s available records,19 psychological testing, and a clinical
interview. Dr. MacVaugh also reviewed two reports submitted by Dr. Swanson as well as her
raw data. Dr. MacVaugh testified that Thorson “scored a 29 out of 30" on a cognitive
screening instrument which “suggests normal range of cognitive functioning.” He also
testified that Thorson was not malingering and that he had achieved a full-scale IQ of 79 on
the WAIS-III.
¶43. The State adds that Dr. MacVaugh also reviewed Thorson’s report cards from first
grade through his sophomore year at Ocean Springs High School. According to the State,
these progress reports indicated that Thorson did not apply himself in school. The State also
provided a copy of Thorson’s General Educational Development Test (GED) or High School
Equivalency Diploma. In addition, the State pointed out that Dr. MacVaugh’s IQ score of 79
19
The Whitfield team reviewed 309 documents.
20
was within two points of Dr. Gasparrini’s 1988 score of 77, despite the fact that these scores
were achieved on two different editions of a test, administered decades apart.
¶44. Dr. McMichael testified that Thorson failed to meet the first Atkins prong because
Thorson did not have a sufficiently low IQ. He testified that Thorson’s word choice in his
videotaped statement was not consistent with someone who was mentally retarded.
¶45. Having considered the record, we find the trial court did not abuse its discretion by
relying on the testimony of the State’s experts and finding that Thorson does not have an IQ
of 75 or below. Although Dr. MacVaugh did not personally administer the IQ test to
Thorson, the test was administered by a post-doctoral psychologist, present in the courtroom
on the day of the hearing. Thorson did not object to Dr. MacVaugh’s testimony before the
trial court, and even assuming that Thorson had made a contemporaneous objection,
Mississippi Rule of Evidence 703 permits experts to base their opinions on evidence not in
the record so long as experts in the field ordinarily rely on such opinions in forming their
opinions. Here, all of the IQ tests performed on Thorson were submitted into evidence and
subject to cross-examination. Both Dr. MacVaugh and Dr. Swanson relied on IQ tests
performed by other psychologists in reaching their opinions. This argument is without merit.
¶46. Moreover, the trial judge had ample evidence before him in the form of two IQ tests
above 75 to determine that Thorson was not mentally retarded. Although the margin of error
or confidence interval in Dr. MacVaugh’s IQ test of 79 was 75-83, we find that the trial court
committed no error by not picking the low end of an error margin to serve as a basis for
finding that Thorson had proven mental retardation by a preponderance of the evidence,
especially in light of the other IQ test score above 75. As Dr. MacVaugh stated, “[I]t’s a little
21
intellectually dishonest to do that because you don’t interpret a score only as existing in the
low end of the confidence interval.” Moreover, Chase does not provide that the defendant’s
IQ may fall within an error margin of mental retardation before the trial court considers the
remaining Atkins factors. Chase, 873 So. 2d at 1028 n.18.
¶47. Accordingly, because of the varying IQ tests and the fact that Thorson had the
burden of proof, we find that Thorson did not prove by a preponderance of the evidence that
he has significantly subaverage intellectual functioning. Of course, this argument
presupposes that the trial court did not abuse its discretion by not applying margins of error
to the IQ tests, which is the next issue this Court will address.
IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
BY NOT APPLYING ERRORS OF MEASUREMENT FOR THE
A SSE SSM E N T O F SIG N IFIC A N T L Y SU B A V E R A G E
INTELLECTUAL FUNCTIONING.
22
¶48. As stated, the trial court found that Thorson had not proven significantly subaverage
intellectual functioning. The trial court, however, did not apply the Flynn Effect20 or the tree-
stump effect,21 which would have lowered the IQ scores. The Flynn Effect
is the name in recognition of the central role played by Professor James R.
Flynn in discovering and, in a series of fifteen or more publications between
1984 and today, documenting the fact that IQ scores have been increasing in
one generation to the next in all fourteen nations for which IQ data is available
....
For the Wechsler (WISC and WAIS) and the Stanford-Binet IQ tests, the best
rule of thumb is that Full Scale IQ gains have been proceeding at a rate of 0.30
points per year ever since 1947. This rate is based on comparisons of all the
Wechsler and Standford-Binet tests used in recent years . . . . It means that for
every year the test passes between when an IQ test was normed, that is, when
its standardization sample was tested, obsolescence has inflated their IQs by
0.30 points.
Allen, 614 F. Supp. 2d at 1275.
20
Several courts have addressed the extent to which a trial court should consider, if
at all, the Flynn Effect. See Sasser v. Hobbs, 751 F. Supp. 2d 1063, 1082 n.15, (W.D. Ark.
2010) (citing Thomas v. Allen, 614 F. Supp. 2d 1257 (N.D. Ala. 2009) (holding that “[a]
court must consider the Flynn Effect and the standard error of measurement in determining
whether a petitioner’s IQ score falls within a range containing scores that are less than”
seventy); Walker v. True, 399 F.3d 315, 322-23 (4th Cir. 2005) (vacating district court’s
opinion which dismissed the habeas petition, and remanding for consideration of “relevant
evidence, namely Flynn Effect evidence”); In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir.
2007) (refusing to recognize one way or the other whether or not the Flynn Effect is
scientifically valid); Bowling v. Commonwealth, 163 S.W.3d 361, 374-75 (Ky. 2005)
(noting that because the Kentucky statute unambiguously sets IQ score of 70 as cutoff, courts
cannot consider the Flynn Effect or standard error of measurement)).
21
According to Dr. Swanson, the tree-stump phenomenon is specific to the WAIS-III,
which possibly included “too many low functioning people in the normative sample at the
lower end. So what we found is you could give the test to somebody, [and] [he or she] would
miss every item and . . . still score in the 40's. So that’s what the tree-stump means. A tree-
stump could make the same IQ as a person that you administered it to. This had an effect in
elevating the scores . . . .”
23
¶49. The trial court considered these phenomena in its Order; however, in finding these
tests to be unpersuasive, the trial court stated:
The tests administered to Thorson are accepted as standard recognized testing
which meet the testing standards required by Chase. There was some
controversy over the application of “the Flynn Effect” and the “tree stump
effect” which would require adjusting the I.Q. scores. All experts agreed that
I.Q. scores are adjusted under certain circumstances . . . and that an I.Q. score
is not exact . . . .
¶50. Thorson now argues on appeal that the trial court abused its discretion by not applying
the Flynn Effect or the tree-stump effect to lower Thorson’s IQ score. Thorson points out that
Dr. Swanson testified that failure to take the Flynn Effect into account results in an
artificially high IQ score. Dr. Swanson wrote in her expert report that “[t]he Flynn Effect is
generally accepted in the scientific community and experts in the field of mental retardation
recommend that both the obtained and Flynn-adjusted IQ scores be reported in Atkins-related
cases.” Moreover, Thorson states that the AAIDD recognizes the Flynn Effect as necessary
for reliability, particularly when conducting retrospective diagnoses, “when the individual
with mental retardation did not receive an official diagnosis of mental retardation during the
developmental period.”
¶51. According to Dr. Swanson, Thorson’s IQ is likely 71 or 72, applying these
adjustments to Thorson’s varying IQ scores. Dr. Swanson’s report stated,
taking into account the Flynn Effect and the confidence interval for the three
tests . . . Mr. Thorson’s three Flynn-adjusted Full Scale IC (FSIQ) scores –
including the test conducted by the State – fall somewhere between 64 and 72
(FSIQ, 67, 2005) and 71 and 80 (FSIQ, 75; 2008) at the 95% confidence
interval. As noted above, the confidence interval is the probability the obtained
score (FSIQ) reflects his true score . . . . A comparison across the three
confidence intervals indicates there is an obvious overlap at 71 to 72.
24
63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81
1988 W AIS-R (FSIQ–74) Dr. Gasparrini
63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81
2005-W AIS-III (FSIQ–67) Dr. Zimmerman
63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81
2008-W AIS-III (FSIQ–75) State Hospital
¶52. Thorson also points out that Dr. MacVaugh, in his report, applied the Flynn Effect and
incorrectly stated that the IQ cutoff was 70 for mental retardation, as opposed to 75. Dr.
MacVaugh wrote in his report that
Mr. Thorson’s true IQ score would likely fall somewhere between 75 and 83.
However, because IQ scores become artificially inflated as the test becomes
outdated (i.e., “Flynn Effect”), Mr. Thorson’s IQ score should be modified to
account for test obsolescence. After adjusting for the Flynn Effect (.3 points
per year) . . . Mr. Thorson’s Full Scale IQ score of 79 should be reduced by
four points, which places his Full Scale IQ score at 75 . . . Nevertheless, Mr.
Thorson’s IQ score is still above the cutoff for mental retardation (i.e.,
approximately 70 or below).
¶53. In contrast, the State argues that the trial court heard evidence from both parties
concerning standard errors of measure and considered them when making its conclusions.
The State cites Dr. MacVaugh’s testimony 22 that the Flynn Effect is a “statistical
phenomenon” and that considerable controversy exists regarding its application in this
context:
22
In his appellate brief and at the hearing, Thorson mentioned Wiley v. Epps, 668 F.
Supp. 2d 848, 894 (N.D. Miss. 2009), in which Dr. MacVaugh stated that “the Flynn Effect
is generally accepted in the psychological community and must be taken into consideration
in interpreting Petitioner’s full-scale IQ.” Thorson also questioned Dr. MacVaugh on cross-
examination about an academic article in which Dr. MacVaugh stated that “the Flynn Effect
has gained sufficient scientific acceptance that this factor should be described in Atkins
assessments and that Flynn-corrected IQ scores . . . should be reported in addition to the
observed scores.”
25
Q. Yes, sir. Well, the Flynn Effect is something that you have looked into
and you’re well familiar with, correct?
A. I am.
Q. That is – – it is not universally accepted in the field at this time, is it?
A. I think the Flynn Effect is generally accepted in the scientific
community. I think what is more controversial is whether or not
adjustments should be made to individual scores. The research looks at
group means, that is the overall scores that tend to increase over time
based on the instrument, not a particular individual’s score.
Q. All right, sir. So in other words, to automatically assume that each
individual test – IQ test should be reduced by what is known as the
Flynn Effect has not been universally accepted in the field?
A. It has not.
Dr. McMichael also testified, stating that, to his knowledge, the publisher of the WAIS-III
(the IQ test administered to Thorson) does not endorse the recommendation to modify the
WAIS-III scores to correct for the Flynn Effect.
¶54. This Court finds that Dr. MacVaugh was correct in his statement that the cutoff for
mild mental retardation is 70. See Chase, 873 So. 2d at 1028 (stating that “‘mild’ mental
retardation is typically used to describe persons with an IQ level of 50-55 to approximately
70”). However, in Chase, importantly, this Court also recognized that, 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.’” Id. at 1028 n.18.
Accordingly, if the defendant establishes by a preponderance of the evidence that his or her
IQ is 75 or below, then the trial court must address the second Atkins prong – deficits in
adaptive functioning.
26
¶55. We cannot say that the trial court abused its discretion by finding that Thorson did not
have an IQ of 75 or below, despite the Flynn Effect or the tree-stump effect.23 The trial court
heard conflicting testimony as to the soundness of applying these phenomena in this context.
Moreover, this Court has not explicitly adopted or rejected the Flynn Effect or the tree-stump
effect. We also need not address the veracity of the Flynn Effect or the tree-stump effect
under our rules of evidence today, as neither party objected to the trial court considering
these phenomena.
¶56. In light of the conflicting expert testimony surrounding the Flynn Effect and the fact
that this Court has neither adopted nor rejected this effect, this Court cannot say that the trial
court committed clear error. The trial judge’s Order indicates that he considered both the
Flynn Effect and the tree-stump effect, as presented by the experts, but found them
unpersuasive under the facts of this case.
CONCLUSION
¶57. Based on today’s discussion, we find that Thorson failed to prove significantly
subaverage intellectual functioning by a preponderance of the evidence under Atkins. We
agree that the trial court’s factual findings were not clearly erroneous and find that Thorson
failed to meet his burden of proof at the evidentiary hearing. The trial court had before it two
IQ scores over the requisite minimum for continuing to test the defendant under Atkins.
Therefore, the trial court did not have to address the remaining Atkins prongs. Because of
23
Dr. MacVaugh also testified at trial that the tree-stump effect was a statistical
phenomenon and that he was “not quite convinced yet that individual scores should be
adjusted because of the tree-stump effect . . . .”
27
our disposition on the issues discussed, we need not discuss the remaining issues raised by
Thorson.
¶58. Thus, the trial court’s denial of Roger Eric Thorson’s petition for post-conviction
relief is affirmed.
¶59. AFFIRMED.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR.
28