Thorson v. State
| Docket Number: | 2010-CA-01010-SCT Linked Case(s): 2010-CA-01010-SCT |
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| Oral Argument: | 06-07-2011 | |
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| Supreme Court: | Opinion Link Opinion Date: 09-15-2011 Opinion Author: Carlson, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Mental retardation - Expert testimony - Flynn Effect - Tree-stump effect Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Lamar, Kitchens, Chandler, Pierce and King, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 06-04-2010 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: Denied PCR based upon finding that the Appellant was not mentally retarded under Atkins v. Virginia, 536 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83 (2005). Case Number: 5190 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Roger Eric Thorson |
JIM DAVIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JASON LEWIS DAVIS, MARVIN L. WHITE, JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Mental retardation - Expert testimony - Flynn Effect - Tree-stump effect |
| Summary of the Facts: | Roger Thorson was convicted of capital murder and sentenced to death. On direct appeal, the Supreme Court remanded the case to the trial court to conduct a Batson hearing. On remand, the trial court found no Batson violation, thus holding that Thorson was not entitled to a new trial. On appeal, the 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. Thus, the case was reversed and remanded for a new trial. After another jury trial, Thorson was again convicted for the crime of capital murder and sentenced to death by lethal injection. His conviction and sentence were affirmed on appeal. Thorson subsequently filed a Petition for Post-Conviction Relief seeking an Atkins hearing. The Supreme Court permitted him an evidentiary hearing to determine whether he was mentally retarded. After conducting a hearing, the circuit court found that Thorson was not mentally retarded under Atkins. Thorson appeals. |
| Summary of Opinion Analysis: | No defendant can be adjudged mentally retarded under the Eighth Amendment unless the defendant produces an expert who testifies that the defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or the American Psychiatric Association, and the defendant has completed the Minnesota Multi phasic Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not malingering. 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. 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, the trial court should also consider the remaining Atkins prongs when reaching an ultimate determination regarding mental retardation. Ultimately, to prove mental retardation, a defendant must show by a preponderance of the evidence that he has significantly subaverage intellectual functioning, he has deficits in two or more adaptive skills, he was eighteen or younger when the retardation manifested itself, and he is not malingering. 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 argues that the trial court abused its discretion by allowing Dr. MacVaugh and Dr. McMichael to testify, because their backgrounds, training, and experience do not qualify them as experts. The trial court did not abuse its discretion by permitting Dr. MacVaugh and Dr. McMichael to testify as experts. The record shows that Thorson failed to object to the State’s experts. In death penalty cases, the contemporaneous objection rule is applicable, despite the heightened standard of appellate review. Thorson also 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. 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. Thorson argues that the trial court committed clear error by relying on the State’s experts’ findings, as opposed to Thorson’s experts’ findings. 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, M.R.E. 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. 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. Thorson argues that the trial court abused its discretion by not applying the Flynn Effect or the tree-stump effect to lower Thorson’s IQ score. 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. 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. Here, the trial court did not abuse its discretion by finding that Thorson did not have an IQ of 75 or below, despite the Flynn Effect or the tree-stump effect. The trial court heard conflicting testimony as to the soundness of applying these phenomena in this context. Moreover, the Court has not explicitly adopted or rejected the Flynn Effect or the tree-stump effect. 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. |
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