IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-KA-01612-COA
NORRIS ALEXANDER A/K/A NORRIS APPELLANT CRAWFORD ALEXANDER A/K/A BUGGER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/26/2019 TRIAL JUDGE: HON. JAMES McCLURE III COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE DISTRICT ATTORNEY: JOHN W. CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: VACATED, REVERSED, AND REMANDED - 02/22/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Norris Alexander was seventeen when he stabbed his mother-in-law to death. In
1998, he was convicted of capital murder by a Panola County Circuit Court jury. The circuit
court sentenced Alexander to life imprisonment without eligibility for parole in the custody
of the Mississippi Department of Corrections.1
1 The State did not seek the death penalty in accordance with the wishes of the victim’s family. The statute allowed a life sentence at the time, but Alexander had pled guilty to two other drug-related charges prior to his trial. The court sentenced him as a ¶2. Following the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S.
460 (2012), Alexander filed a motion for post-conviction relief (PCR) in 2015 for a Miller
resentencing hearing. The circuit court granted Alexander’s motion and set the matter on
the docket for a Miller hearing. Prior to the hearing, Alexander’s counsel filed two separate
motions requesting funds to hire a mitigation specialist and a psychologist for purposes of
investigating potential evidence for the Miller hearing. The court denied both motions.
Thereafter, a Miller hearing was held, and the State called as witnesses Alexander’s former
defense attorney and the detective who investigated the capital murder. The defense called
no witnesses. After the court went through the required Miller factors, it sentenced
Alexander to life imprisonment as a habitual offender.2
¶3. On appeal, Alexander raises three issues: (1) the circuit court erred in denying his
motion for funds to retain necessary expert assistance in the fields of mitigation investigation
and adolescent development psychology; (2) the circuit court denied him due process by not
resolving whether he was a rare, permanently incorrigible juvenile homicide offender; and
(3) the circuit court deprived him of his constitutional right to have a jury impose his
sentence. After review, we find the circuit court abused its discretion in denying both of
Alexander’s motions for funds to hire experts when it held Alexander failed to show a
habitual offender. 2 The issue of Alexander’s habitual-offender status in conjunction with his Miller sentencing was heavily debated in the circuit court. However, neither party raised this issue on appeal.
2 substantial need for a mitigation expert and psychologist.3 While the court held the
defendant failed to show a substantial need for any expert, we find it was an abuse of
discretion to deny funds for any experts under the circumstances of this case. This Court is
not holding that a mitigation investigator or a child psychologist is required in every Miller
sentencing. But under the circumstances of this case, and without mandating a certain type
of expert or the number of experts, some funds instead of no funds should have been
authorized by the court to assist in preparation for the Miller hearing. Therefore, we vacate
Alexander’s sentence and reverse and remand for proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶4. On August 27, 1997, Alexander was charged with the capital murder of his mother-
in-law at her home in Panola County, Mississippi. In 1998, he was convicted of that crime
by a jury. Before that trial occurred, Alexander pled guilty to two crimes of sale of
marijuana. As a result of the previous felony convictions, the circuit court sentenced
Alexander to life without parole. In 2012, the United States Supreme Court decided Miller
which essentially held that sentencing a juvenile offender to a “mandatory” life sentence
without the possibility of parole is unconstitutional. Id. at 465 (emphasis added). In doing
so, the Supreme Court did not establish a uniform procedure for states to follow when
sentencing juvenile homicide offenders. Id. But the Court did provide some guidance by
noting that mandatory life sentences prevent the court from considering a number of relevant
factors:
3 Because we find the first issue dispositive, we decline to address Alexander’s remaining issues.
3 Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Miller, 567 U.S. at 477-78 (citations omitted). In Parker v. State, 119 So. 3d 987, 999 (¶28)
(Miss. 2013), the Mississippi Supreme Court adopted the Miller factors and held those
factors must be considered before sentencing.
¶5. As a result of the Miller ruling, Alexander filed a PCR motion to set his sentence
aside so the required factors could be argued and considered by the sentencing court. The
circuit court granted Alexander’s PCR motion on July 30, 2015, and set aside his sentence
from his original trial. Alexander was appointed a public defender to assist him at the new
sentencing hearing. On October 30, 2015, the court signed an order allowing the public
defender to withdraw because Alexander retained Ronald Lewis as private counsel.
¶6. On February 10, 2016, Lewis filed a motion requesting up to $10,000 in funds for
expert assistance in the field of “mitigation investigation” for Alexander’s Miller
resentencing hearing. The motion stated in relevant part:
There is reason to believe that there is a substantial amount of mitigating evidence to uncover and present in this case, particularly in relation to “the family and home environment that surround[ed]” Mr. Alexander. Unfortunately, no mitigation evidence was presented at trial because the
4 [S]tate, at the conclusion of the liability phase, honored the victim’s family’s wish to forego the death penalty. Since the only alternative at that time was a mandatory sentence of life without possibility for parole, Mr. Alexander’s trial counsel was foreclosed from putting on evidence of mitigating circumstances at the sentencing stage of his trial.
In order for undersigned counsel to prepare to put on evidence regarding “all of the circumstances set forth in Miller,” at a re-sentencing hearing, and to uncover and present other relevant mitigating evidence, undersigned counsel needs the assistance of a mitigation specialist.
....
The need for investigative assistance is especially strong in this case because of the passage of 39 years since the birth of Mr. Alexander and the extremely broad avenues of potentially relevant mitigating evidence.
¶7. Subsequently, on March 28, 2016, two days before a scheduled motions hearing,
Alexander’s counsel filed another motion requesting funds “not to exceed thirty thousand
dollars ($30,000) for expert assistance in the field of adolescent developmental psychology
and for a continuance to allow participation of expert in this case.” To establish the need
for the expert, the motion stated the following:
This court had a need for developmental expertise to consider relevant clinical information about Alexander’s developmental status at age 17. Such an expert can provide valuable general information about adolescent development and evaluate Alexander to form an opinion and testimony about his developmental characteristics relevant for mitigation.
While many records, including psychological records from Alexander’s adolescence no longer exist, a forensic developmental psychologist can look to school records, which do exist, as well as evidence of lengthy in-patient treatment in a psychological hospital, to piece together a portrait of Alexander in his adolescence. Also, the expert can provide valuable assistance to the court in answering questions about the impact of environment upon adolescent development.
5 Counsel for Alexander never set either motion for a hearing, and the court never held one.
Rather, the motions sat in the court file for three years, and Alexander’s childhood history
and mitigation evaluation investigation never occurred. On April 30, 2019, the circuit court
entered an order denying both motions. The court noted that Alexander’s attorney had failed
to contact the court administrator regarding setting a hearing on the motions and therefore
waived his “request for oral argument.”4 Further, the court denied the motions “on the
merits,” finding Alexander “neither established a substantial need for a psychologist[,] nor
for a mitigation investigator”and failed to provide any “basis for his request for $30,000 for
a psychologist.” The court then set the Miller hearing for later that year. The record is silent
as to why Alexander’s privately retained counsel did not do some sort of mitigation
determination between the April 30, 2019 order and the date of Miller hearing.5
¶8. Alexander’s Miller hearing was held on September 24, 2019. The court was clear as
to the purpose of the hearing by stating as an introduction that “the issue before the Court
as to the defendant on resentencing on a Miller vs. Alabama hearing, is . . . whether he is
eligible for a sentence life with parole or life without parole.”6
4 Defense counsel objected to this determination at the sentencing hearing and the court actually stated in its order that in March 2019 defense counsel “asked for hearing dates for the motions and asserting that setting the resentencing would be premature.” 5 At the September 2019 Miller hearing, defense counsel called no witnesses, offered no documents nor proffered any arguments within the Miller factors as to why Alexander should not be sentenced to life without parole. 6 The issue the court sought to clarify was how the habitual-offender statute would apply to a Miller sentencing. That issue has not been addressed by the United States Supreme Court or the Mississippi Supreme Court. That issue, despite being briefed by the parties at the trial level, is not raised in this appeal. The sentencing statute for murder at the
6 ¶9. After the court’s clarification, the State introduced two previous convictions of
Alexander for the sale of marijuana. Those convictions occurred in January 1996 and April
1996, almost two years after the capital murder for which the court was holding a Miller
hearing. Alexander pled guilty to those crimes before his original trial on the capital-murder
charge. Defense attorney offered no objection to the certified copies of those convictions
being introduced into evidence.
¶10. The State then called two witnesses to testify. The first was William Travis,
Alexander’s trial attorney. During the State’s questioning of his trial attorney, the following
exchange occurred:
Q: Is there anything that stands out about Mr. Alexander’s ability to assist you in your representation that would be different than any other client?
A. No, sir.
Q. And you were not involved in the initial stages when he dealt with police officers; is that correct?
Q: Now, in regards to your ability to deal with Mr. Alexander, would you state to the Court—excuse me, would you address that issue for the Court?
A. I recall no particular difficulties with myself and/or with Mr. Joe Van Dyke, my co-counsel.
Defense counsel did not conduct any cross-examination of Travis.
time of Alexander’s crime set the sentence automatically at life, and the habitual-offender statute would have set that life sentence as being served without parole. So, presumably that “mandatory” sentence would fall within the confines of a constitutionally required Miller hearing. Apparently, based on that presumption, the court held the hearing.
7 ¶11. The second witness the State called was Mark Whitten. Whitten was the individual
who investigated the crime for which Alexander was convicted. Whitten testified that
Alexander was “just shy of his [eighteenth] birthday” when the offense occurred, that
Alexander’s family were “good people,” and that he was a father to a young child. Further,
Whitten testified, without being offered as an expert, as to Alexander’s mental and maturity
level, life situation at the time of the crime, and “faculties” in the following exchanges:
Q. The second factor—excuse me. Did he seem to be a immature kid?
A. No, I mean, just a 17, 18-year-old kid.
Q. At any time did you feel like he was not appreciating the risk and consequences in this matter?
Q. To your knowledge was he in a difficult situation that he could not escape from?
A. No, I wouldn’t think so, you are living with your mother-in-law.
Q. Did he appear to lack any faculties that would require you to be cautious about interviewing him?
A. None that I recall.
In addition to the above exchanges, the State literally read the Miller factor to the
investigator and allowed him to opine as to its implication in the resentencing of Alexander,
without objection from the defense counsel. As to the fifth Miller factor, potential for
rehabilitation, the State offered a certified copy of a new seven-count indictment against
Alexander which included crimes that allegedly occurred while Alexander was in the Panola
County jail waiting for his Miller resentencing hearing. It is interesting to note that when
8 the court asked if defense had any objection to the document, the following response was
given:
For the record, the Court entered an order earlier stating that I had waived the right to put on evidence of sort that we’re talking about here today, and there was no known waiver by me. I actually had given the court administrator several dates that I was available for a hearing, and I never got a response. And I have found out since then that that was because the court administrator was ill, and so they didn’t get set. But I would like to make the record that I did not come prepared to deal with the Miller factors, because I didn’t have any evidence, because the Court denied my motion to have a psychologist, which might not have occurred had I known when to have her in court. She was prepared to do so. But I just would ask the Court to strike all of this Miller testimony.
(Emphasis added). The objection was overruled, and the document was admitted. After a
few more questions, the State then tendered the investigator for cross-examination by
defense counsel. The following cross occurred:
Q. Are you aware of any violent crimes committed by Norris Alexander since the death of his mother in-law?
A. I am not.
Q. He’s never, ever been convicted of a violent crime, has he, since other than that one?
A. Not to my knowledge. No, sir.
¶12. After considering the Miller factors, the circuit court sentenced Alexander to life
imprisonment as a habitual offender under Mississippi Code Annotated section 99-19-81
(Rev. 2015), which prevented his parole eligibility. Alexander appealed.
ANALYSIS
¶13. At the outset, we recognize that Alexander had a private attorney when he requested
9 a state-funded expert. However, a defendant does not automatically lose indigent status
because he has a private attorney. See Brown v. State, 152 So. 3d 1146, 1169 (¶99) (Miss.
2014) (reversing a trial court’s denial of expert funds, holding that the fact that Brown had
a private attorney did not preclude him from obtaining state funds for an expert); see also
State v. Vaughn, 279 S.W.3d 584 (Tenn. Crim. App. 2008). In the motion for funds to hire
a mitigation expert, Alexander’s attorney stated that “Alexander is indigent and cannot
afford to retain the services of Mr. Wright or any other mitigation specialist.” Notably,
Alexander’s indigent status was not a basis for the court’s denial of both his requests for
expert funds. Rather, the court held that “neither established a substantial need for a
psychologist[,] nor for a mitigation investigator.”
¶14. On appeal, Alexander claims that the court’s ruling to deny him funds for expert
assistance “deprived [him] of the basic tools to an adequate defense and ultimately denied
him the right to a fundamental fair resentencing hearing.” “The question of whether a
defendant has a right to funds is a question left to the sound discretion of the trial court.”
Moore v. State, 287 So. 3d 905, 920 (¶60) (Miss. 2019). This Court should not “hesitate to
reverse a trial court’s denial of expert assistance to an indigent defendant when the lack of
expert assistance denied the defendant due process such that the trial was rendered
fundamentally unfair.” Lowe v. State, 127 So. 3d 178, 181 (¶14) (Miss. 2013) (emphasis
added) (citing Fisher v. City of Eupora, 587 So. 2d 878, 883 (Miss. 1991)).
¶15. “The United States Supreme Court has held that the ‘basic tools of an adequate
defense or appeal’ must ‘be provided to those defendants who cannot afford to pay for
10 them.’” Eubanks v. State, 291 So. 3d 309, 316 (¶19) (Miss. 2020) (emphasis added)
(quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). The United States Supreme Court
further explained that “while the Court has not held that a State must purchase for the
indigent defendant all of the assistance that his wealthier counterpart might buy, it has often
reaffirmed that fundamental fairness entitles indigent defendants to ‘an adequate opportunity
to present their claims fairly within the adversary system[.]’” Ake, 470 U.S. at 77 (citation
omitted).
¶16. In determining whether an expert is a basic tool for an adequate defense, the court
considers three factors: (1) “the private interest that will be affected by the action of the
State”; (2) “the governmental interest that will be affected if the safeguard is to be
provided”; and (3) “the probable value of the additional or substitute procedural safeguards
that are sought, and the risk of an erroneous deprivation of the affected interest if those
safeguards are not provided.” Id. “Under the first prong, the private interest involved is an
individual’s interest in accurate criminal proceedings, which is ‘uniquely compelling’ and
heavily weighs in the individual’s favor.” Isham v. State, 161 So. 3d 1076, 1082 (¶26)
(Miss. 2015) (quoting Lowe, 127 So. 3d at 182 (¶18)). Under the second prong, we must
consider the governmental interest, which is pecuniary in nature “given that the county
government must provide funds for a court-ordered expert.” Id. at (¶27). However, that
interest is “insubstantial” and is “outweighed” by the government’s interest in obtaining a
fair and accurate resolution in criminal cases. Id. “Finally, the third prong, which this Court
analyzes the most intensely, requires the trial court to balance the probative value of expert
11 testimony for [Alexander] against the risk of not providing him expert assistance.” Id. at
(¶28).
¶17. “The determination of whether an indigent defendant must be provided expert
funding is made on a case-by-case basis, and a defendant must demonstrate a substantial
need in order to justify the trial court expending public funds for an expert to assist the
defense.” Lowe, 127 So. 3d at 181 (¶14) (citations and internal quotation marks omitted)
(emphasis added). Here, Alexander claimed a mitigation expert was necessary for his
defense so that his attorney could “prepare to put on evidence regarding ‘all the
circumstances set forth in Miller’ at a re-sentencing hearing, and to uncover and present
other relevant mitigating evidence.” Alexander relied on the American Bar Association
Guidelines, which state “[The] penalty phase preparation requires extensive and generally
unparalleled investigation into personal family history. At least in the case of the client, this
begins with the moment of conception.” ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases 10.7, cmt. (2003) (citations and
internal quotation marks omitted). He claimed that “[t]here is reason to believe that there
is a substantial amount of mitigating evidence to uncover and present in this case,
particularly in relation to ‘the family and home environment that surround[ed]’ [him].”
Additionally, Alexander argued that investigative assistance was needed because he was
thirty-nine years old, had been imprisoned for nearly twenty years, and “[e]very aspect of
[his] life from conception to the present day must be investigated[.]”7
7 While it is certainly recommended that exhaustive investigations occur as to mitigation, no court has ever held that the standard is to begin that investigation “with the
12 ¶18. Alexander also claimed that an expert in the field of adolescent developmental
psychology was necessary for his defense, arguing that “[s]uch an expert can provide
valuable general information about adolescent development and evaluate Alexander to form
an opinion and testimony about his developmental characteristics relevant for mitigation.”
He further argued that “the expert would have the ability to discuss the scientific research
that supported the U.S. Supreme Court’s presumptions about developmental immaturity of
adolescents in the above cases, and particularly in Miller, which is most relevant in this
case.” Finally, Alexander claimed that a forensic developmental psychologist could look
at the evidence regarding Alexander’s “lengthy in-patient treatment in a psychological
hospital . . . to piece together a portrait of Alexander’s adolescence.”
¶19. In denying Alexander’s requests for expert funds, the circuit court relied on Bass v.
State, 273 So. 3d 768 (Miss. Ct. App. 2018). Bass was a juvenile when he committed the
crime of first-degree murder. Id. at 772, 774 (¶¶1-2). Before his Miller hearing, he
requested funds for a mitigation expert and psychologist expert. Id. at 778 (¶32). Bass’s
request of a mitigation expert relied at least partly on his claim that “the defense required a
social history investigation ‘and that lawyers are trained in the law, not in conducting social
histories.’” Id. at 779 (¶36). The circuit court granted Bass’s request for a psychologist but
denied his request for a mitigation investigator, finding that Bass failed to show a substantial
need. Id. at 778 (¶32). The court explained that it was “‘not persuaded that attorneys are
so confined in their intellect, experience[,] and training that they are incapable of researching
moment of conception,” as stated in Alexander’s motion.
13 and reviewing the personal history of a defendant, determining what is pertinent and material
to the issue . . . [,] and presenting such evidence to the court.’” Id. at 779 (¶36). Bass
appealed and argued that the circuit court’s denial prevented him from presenting his entire
defense during sentencing. See id. at (¶37). On appeal, this Court found no abuse of
discretion because “the circuit court’s denial of expert funds for a mitigation investigator
neither deprived Bass of the opportunity to present his defense during sentencing nor
rendered his sentencing hearing fundamentally unfair.” Id.
¶20. More recently, in Moore, 287 So. 3d at 920 (¶61), the Mississippi Supreme Court
affirmed a circuit court’s denial of a juvenile homicide offender’s request for funds for a
mitigation expert.8 In doing so, the court stated that “[w]e have never held that expert
testimony is required in a Miller hearing.” Id. However, the court clarified, “This is not to
say that a specific case may not arise in which expert testimony could be helpful and could
be allowed.” Id. We find Alexander’s case qualifies as one of those cases.
¶21. As previously stated, this Court determines whether expert funding must be provided
on a case-by-case basis. Lowe, 127 So. 3d at 181 (¶14). It follows that each defendant’s
situation and basis for his request is unique to the particular facts of that case, especially as
it relates to a Miller hearing. Although Bass and Moore are instructive because they both
8 The supreme court affirmed Moore’s conviction but vacated his sentence of life imprisonment and remanded to the circuit court so that Moore could be resentenced by a jury pursuant to Mississippi Code Annotated section 99-19-101 (Rev. 2015). Moore, 287 So. 3d at 920 (¶61). Thus, the court stated that “given his resentencing before a jury—[Moore] may seek funds on remand should his counsel determine that an expert witness is warranted. If Moore does request funds, the trial court, of course, will still need to determine if Moore is entitled to them.” Id.
14 dealt with juvenile homicide offenders, neither is factually identical to the present case. For
example, the Moore decision does not detail Moore’s basis for his motion for expert funds
or the circuit court’s basis for denial of that motion. So this Court is unable to examine the
similarities and differences between the basis of Moore’s motion for expert funds for a
mitigation expert and Alexander’s motion for expert funds for a mitigation expert. Further,
Moore was remanded for a jury trial, and the issue of allowing an expert or not was reserved
for the trial court on remand. Moore, 287 So. 3d at 920 (¶61).
¶22. The Moore court held that “where the accused demonstrates that the trial court’s
abuse of discretion is so egregious as to deny him due process and where his trial [or
sentencing in this case] was thereby rendered fundamentally unfair” the appellate courts will
“grant relief.” Id. at (¶60). Here, Alexander’s sentencing was fundamentally unfair and
denied him due process. The defense had no witness to call. The defense had no
information to attempt to explain mitigation under the Miller factors. The defense provided
no documents to the court. As a result, the defense barely asked any questions. The defense
explained to the court that the denial of expert assistance prevented him from being
“prepared” for the Miller hearing.
¶23. Further, while Bass received expert funds for a psychologist to testify on his behalf
at his Miller hearing, Alexander received no funds for either expert. Consequently,
Alexander proceeded to a Miller hearing with no expert to aid in his defense. At the Miller
hearing, the State presented two witnesses who testified about Alexander in relation to the
Miller factors. In his order on the Miller factors, the judge repeatedly referred to the State’s
15 witnesses’ testimony and stated that Alexander “presented no testimony.” In each Miller
factor analysis, the judge weighed each factor against Alexander, noting for each factor that
Alexander “put on no proof.” However, Alexander was deprived of the opportunity to
present testimony and proof to rebut the State’s testimony because he did not receive funds
for either expert. In fact, Alexander’s attorney stated just that. At one point, he indicated
to the court the denial of funds to hire experts to assist him in preparing for and presenting
mitigation evidence prevented him from being prepared for the Miller sentencing hearing.
¶24. The dissent takes issue with the majority’s finding that the Miller resentencing
hearing in this case was fundamentally unfair by asserting that “Alexander and his counsel”
failed to present any mitigating evidence. With all due respect, that is precisely the point the
majority makes. As previously stated, appellate courts “should not hesitate to reverse a trial
court’s denial of expert assistance to an indigent defendant when the lack of expert
assistance denied the defendant due process such that the trial was rendered fundamentally
unfair.” See Lowe, 127 So. 3d at 181 (¶14). Moreover, the Mississippi Supreme Court has
held that “the burden rests with the juvenile offender ‘to convince the sentencing authority
that Miller considerations are sufficient to prohibit’ a sentence of life without parole.”
Wharton v. State, 298 So. 3d 921, 927 (¶25) (Miss. 2019) (quoting Jones v. State, 122 So.
3d 698, 702 (¶14) (Miss. 2013)).
¶25. Here, Alexander’s attorney asked the court for expert assistance to determine and
prepare mitigating evidence for an individual who had been incarcerated for nineteen years.
The goal of obtaining that expert assistance was to have witnesses who would be versed in
16 Alexander’s history and be able to testify about that history to the sentencing court. The
court denied Alexander’s requests and provided him no assistance at all. As a result, the
attorney announced to the court that he was not prepared for the Miller sentencing, called
no witnesses, offered no exhibits, nor provided the court any mitigating evidence of any sort.
Further, the attorney did not object to the State’s witness, Investigator Whitten, offering
opinions that were partly within the realm of the very expert Alexander sought. Simply put,
the court’s failure to provide an expert to assist the attorney in discovering and testifying to
potential mitigating evidence contributed, in part, to the fundamentally unfair nature of the
hearing.
¶26. In considering the Ake factors, we find that Alexander presented a substantial need
for some expert assistance in preparing for mitigation. Alexander was charged as a
seventeen year old, convicted of capital murder at the age of twenty-two, and has spent over
twenty-two years in prison. He did not have access to his psychiatric records, his school
records, or any other records that an expert could find relevant. While Alexander may
certainly be capable of relaying some event and information to his attorney, his attorney
cannot testify in a proceeding in which he is acting as the attorney.9 Further, the lawyer,
while trained in law and the admission of evidence in court, is not trained in adolescent
development and how particular life events may or may not influence a Miller factor. It
follows that the lack of that expert assistance and the manner in which it affected the Miller
hearing in this case denied Alexander due process, thereby rendering his hearing
9 See Miss. R. of Prof. Conduct 3.7; see also Graves v. Dudley Maples L.P., 950 So. 2d 1017, 1023 (¶¶23-24) (Miss. 2007).
17 fundamentally unfair. Therefore, we find the circuit court abused its discretion in denying
Alexander’s requests for expert funds.
¶27. To be clear, we do not find today that Alexander was entitled to $40,000 in expert
funds or that he was entitled to both of the requested experts. “An indigent defendant does
not have a constitutional right to hire an expert of his or her liking or to receive funds to hire
his own.” Evans v. State, 109 So. 3d 1044, 1049 (¶23) (Miss. 2013) (citing Ake, 470 U.S.
at 83). Rather, instead of denying Alexander’s motions altogether, the circuit court should
have provided Alexander funds for an adequate expert to support his defense. See Hunt v.
State, 687 So. 2d 1154, 1161 (Miss. 1996) (holding that an indigent’s right to defense
expenses requires the defendant to show such expenses are needed to prepare an adequate
defense). Accordingly, we vacate Alexander’s sentence and reverse and remand for
proceedings consistent with this opinion.
¶28. VACATED, REVERSED, AND REMANDED.
BARNES, C.J., WESTBROOKS, McDONALD AND McCARTY, JJ., CONCUR. GREENLEE, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WILSON, P.J., GREENLEE AND SMITH, JJ.
CARLTON, P.J., DISSENTING:
¶29. I respectfully dissent from the majority’s finding that the circuit court abused its
discretion in denying Alexander’s motions for funds to hire experts. After reviewing the
record, I find that Alexander’s counsel failed to identify a substantial need for expert
assistance. As a result, I find no abuse of discretion by the circuit court, and I would affirm
Alexander’s sentence. See Moore v. State, 287 So. 3d 905, 920 (¶60) (Miss. 2019).
18 ¶30. This Court reviews a lower court’s decision regarding “whether a defendant has a
right to funds” for expert assistance in the field of mitigation investigation for an abuse of
discretion. Id. In so doing, we
weigh[] on a case by case basis whether the denial of expert assistance for an accused is prejudicial to the assurance of a fair trial and will grant relief only where the accused demonstrates that the trial court’s abuse of discretion is so egregious as to deny him due process and where his trial was thereby rendered fundamentally unfair.
Id. (quoting Harrison v. State, 635 So. 2d 894, 901 (Miss. 1994)). Relevant to the issue in
Alexander’s case, the supreme court has established that when requesting funds for expert
assistance, “[a] defendant must come forth with concrete reasons, not unsubstantiated
assertions that assistance would be beneficial.” Id. The supreme court has clarified that
“[t]he Constitution does not require a State to furnish an indigent defendant with expert or
investigative assistance upon demand.” Id. (quoting Johnson v. State, 476 So. 2d 1195,
1202 (Miss. 1985)). Additionally, the supreme court “[has] never held that expert testimony
is required in a Miller hearing.” Id. at (¶61).10
¶31. The record reflects that in February 2016, Alexander filed his motion for funds for
expert assistance in the field of mitigation investigation. In his motion, Alexander requested
“up to $10,000” to retain the services of mitigation specialist Mackey Wright. In support
of his motion, Alexander claimed that “[t]here is reason to believe that there is a substantial
10 In its opinion, the majority cites to a comment to Guideline 10.7 of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, but I submit that the case before us is not a death penalty case. Our Mississippi caselaw is clear on the burden and requirements for requesting funds for expert assistance.
19 amount of mitigating evidence to uncover and present in this case, particularly in relation
to [his] family and home environment.” Alexander asserted that because no mitigation
evidence was presented at his trial below, “[t]he story of Mr. Alexander’s childhood has
never been told.” Alexander stated that his counsel needed the assistance of a mitigation
specialist “[i]n order . . . to prepare to put on evidence regarding ‘all of the circumstances
set forth in Miller’ at a re-sentencing hearing, and to uncover and present other relevant
mitigating evidence.” Alexander claimed that “[a] social history investigation is not within
the expertise of a lawyer.” Alexander further asserted that “[l]awyers are trained in the law,
while investigators and social service workers are trained in conducting social history
investigations.” Alexander stated that “[t]he need for investigative assistance is especially
strong in this case because of the passage of 39 years.” He claimed that “[t]he investigation
in this case is complicated by the fact that Mr. Alexander has been incarcerated for nearly
twenty years, and many of the relevant mitigating witnesses, documents, and other evidence
may be difficult to locate.” Alexander maintained that “[e]very aspect of Mr. Alexander’s
life from conception to the present day must be investigated.”
¶32. In March 2016, Alexander filed a motion seeking $30,000 in funds to retain
Antionette Kavanaugh as a witness to provide expert testimony in the field of adolescent
developmental psychology. In the motion, Alexander argued that the circuit court “has a
need for developmental expertise to consider relevant clinical information about Alexander’s
developmental status at age 17.” Alexander asserted that “[s]uch an expert can provide
valuable general information about adolescent development and evaluate Alexander to form
20 an opinion and testimony about his developmental characteristics relevant for mitigation.”
However, Alexander failed to set forth in his motion whether he possessed a developmental
issue that required expert assistance to investigate. Alexander also argued in his motion that
Kavanaugh could examine Alexander’s school records and records from his in-patient
treatment at a psychological hospital “to piece together a portrait of Alexander in his
adolescence . . . and provide valuable assistance to the court in answering questions about
the impact of environment upon adolescent development.”
¶33. Pursuant to the record, Alexander’s motions requesting funds for experts were
noticed for a hearing on March 31, 2016. Instead of offering arguments as to why he was
in substantial need of expert assistance for the re-sentencing hearing, the record shows that
at the hearing, Alexander made no arguments on the expert motions. Then, as stated by the
majority, “the motions sat in the court file for three years, and Alexander’s childhood history
and mitigation evaluation investigation never occurred.” Maj. Op. at ¶7.
¶34. On April 30, 2019, the circuit court entered its order denying Alexander’s motions.
In its order, the circuit court found that “Alexander has neither established a substantial need
for a psychologist nor for a mitigation investigator. Also, Alexander gives no basis for his
request for $30,000 for a psychologist.” The circuit court acknowledged the responsibility
of the States “to ensure defendants receive a fair opportunity to present their defense,
including receiving expert assistance when the denial of such assistance would render a trial
fundamentally unfair.” (Citing Barksdale v. State, 176 So. 3d 108, 111-12 (¶18) (Miss. Ct.
App. 2015)). The circuit court explained that “an indigent’s right to defense expenses is
21 conditioned upon a showing that such expenses are needed to prepare and present an
adequate defense.” (Citing Barnett v. State, 192 So. 3d 1033, 1039 (¶18) (Miss. Ct. App.
2015)). The circuit court further clarified that the defendant must provide concrete reasons
for requiring an expert and bears the burden of “demonstrat[ing] a substantial need in order
to justify the trial court expending public funds for an expert to assist the defense.”
¶35. After my review, I find that Alexander failed to meet his burden of providing the
circuit court with concrete reasons for requiring expert assistance. Instead, Alexander
offered “only unsubstantiated assertions that [expert] assistance would be beneficial.”
Barnett, 192 So. 3d at 1039 (¶18) (quoting Harrison, 635 So. 2d at 901). In his motion
requesting funds for a mitigation investigator, Alexander argued that he needed the
assistance of an expert to put forth evidence of Alexander’s family and home environment,
as well as his childhood. However, Alexander could have provided testimony about his
home and family life at his Miller hearing. Alexander also failed to set forth why “any
mitigating witnesses, documents, and other evidence would be difficult to locate” and
require the assistance of an investigator. Regarding Alexander’s claim that he needed the
assistance of an expert in adolescent developmental psychology, I find that Alexander’s
counsel could have subpoenaed his school and medical records and offered these records as
evidence at the Miller hearing without assistance from an expert. Additionally, as stated,
Alexander failed to establish that he possessed a particular developmental issue that required
expert assistance to investigate. I therefore find that the circuit court did not abuse its
discretion in denying Alexander’s motions.
22 ¶36. Additionally, upon reviewing the transcript from the Miller hearing, I disagree with
the majority’s finding that Alexander’s hearing was fundamentally unfair and denied him
due process. My review of the hearing transcript shows that the circuit court provided
Alexander with the opportunity to call witnesses and present evidence and testimony, but
Alexander and his counsel failed to exercise his right to present evidence at the hearing. The
record further shows that Alexander’s counsel admitted to the circuit court that he came to
the hearing unprepared to address the Miller factors:
But I would like to make the record that I did not come prepared to deal with the Miller factors, because I didn’t have any evidence, because the [c]ourt denied my motion to have a psychologist, which might not have occurred had I known when to have her in court. She was prepared to do so. But I just would ask the [c]ourt to strike all of this Miller testimony.
¶37. The majority opinion agrees with Alexander’s assertion that “the lawyer, while
trained in law and the admission of evidence in court, is not trained in adolescent
development and how particular events may or may not influence a Miller factor.” Maj. Op.
at ¶26. However, the majority opinion fails to acknowledge that “[a]t a minimum, counsel
has a duty to interview potential witnesses and to make independent investigation of the
facts and circumstances of the case.” Johns v. State, 926 So. 2d 188, 196 (¶38) (Miss. 2006)
(emphasis omitted). To be clear, this Court is not determining the issue of whether
Alexander’s counsel’s performance constituted ineffective assistance of counsel. I recognize
that no claim for ineffective assistance of counsel is before this Court in the present appeal.
In applying our standard of review, as set forth above, I find that the trial court did not abuse
its discretion in denying Alexander’s motions for funds to hire experts. Therefore, I would
23 affirm Alexander’s sentence without prejudice to his right to raise a claim of ineffective
assistance of counsel in a motion for post-conviction collateral relief.11
WILSON, P.J., GREENLEE AND SMITH, JJ., JOIN THIS OPINION.
11 See Brisco v. State, 295 So. 3d 498, 520-21 (¶¶63-64) (Miss. Ct. App. 2019), cert. denied, 293 So. 3d 834 (Miss. 2020) (affirming conviction and sentence but dismissing claims of ineffective assistance of counsel without prejudice to appellant’s right to raise those issues in a properly filed motion for post-conviction collateral relief).