Sherwood Dwayne Brown v. State of Mississippi

168 So. 3d 884, 2015 Miss. LEXIS 149, 2015 WL 1355371
CourtMississippi Supreme Court
DecidedMarch 26, 2015
Docket2013-CA-01130-SCT
StatusPublished
Cited by6 cases

This text of 168 So. 3d 884 (Sherwood Dwayne Brown v. State of Mississippi) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherwood Dwayne Brown v. State of Mississippi, 168 So. 3d 884, 2015 Miss. LEXIS 149, 2015 WL 1355371 (Mich. 2015).

Opinions

COLEMAN, Justice,

for the Court:

¶ 1. A DeSoto County jury convicted Sherwood Brown of one count of capital murder and two counts of murder and sentenced him to death. The Court grant[887]*887ed Brown’s successive petition for post-conviction relief and allowed Brown to proceed in the trial court on his claim that he was mentally retarded and exempt from execution. After a hearing, the trial court held that Brown had failed to prove by a preponderance of evidence that he was mentally retarded. Brown appealed.

Factual Background and Procedural History

¶ 2. The jury convicted Sherwood Brown of one count of capital murder, committed during the commission of felonious child abuse, for the murder of thirteen-year-old Evangela Boyd and two counts of murder for killing Verline Boyd and Betty Boyd, Evangela’s mother and grandmother. For the capital murder conviction, the jury sentenced Brown to death; the trial court imparted consecutive life sentences for the two counts of murder. A unanimous Supreme Court affirmed Brown’s convictions and sentences on direct appeal. Brown v. State, 690 So.2d 276 (Miss.1996).

¶ 3. Several years later, the Court unanimously denied Brown’s application for leave to seek post-conviction relief, in which he raised nearly seventy issues. Brown v. State, 798 So.2d 481 (Miss.2001). In 2004, Brown filed a successive application for leave to seek post-conviction relief, seeking permission to proceed in the trial court on his claim that he was mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Chase v. State, 873 So.2d 1013 (Miss.2004). - The Court granted Brown’s request for leave. Brown v. State, 875 So.2d 202 (Miss.2004). The trial court held an Atkins hearing and heard testimony from Brown’s wife, a former teacher, the special-education director for DeSoto County Schools, and three doctors who had evaluated Brown.

A. Family and Educators

¶ 4. Brown presented testimony from his wife, Angela Brown, and his sixth-grade teacher, June Gilbreath. Angela testified that she met Brown in late 1989 or early 1990, and they married in July of 1990. Both were in their early twenties. Angela and Brown lived with Brown’s parents for four years until his arrest in 1994. According to Angela, Brown never lived away from his parents’ home, but they were working toward getting their own place when he was arrested. Angela testified that Brown did not manage money well, did not have a bank account, and did not pay bills, but that he gave Angela money for groceries sometimes and gave his mother money for bills occasionally. Angela said Brown spent his free time with friends, often using drugs. Angela described Brown as immature, reckless, easily frustrated, and irresponsible, saying, “[i]t was like someone had always taken care of him so he didn’t have to do anything.” However, she testified that Brown could cook basic things, that he ran errands to a nearby store, and that he picked up after himself.

¶ 5. Angela said Brown had worked delivering beer for both the Miller and Budweiser beer companies, but he did not drive the delivery truck. She testified that Brown did not have any problems getting up and dressing himself for work, although his mother drove him to work. Angela thought Brown was fired from Budweiser, but she could not remember the reason. She testified that Brown loved football, and his family had told her that, when Brown was in high school, they thought he had a promising football career. She also told a story she had heard from Brown’s mother that, as a child, Brown dressed himself and drove to church while his mother slept. Angela testified that Brown often argued with both of his parents, and [888]*888she described his mother as “volatile” and “explosive” due to her alcohol problem. Despite their troubles, Angela testified that Brown loved his parents. Brown had two sons by another woman. Angela said that Brown interacted well with the children, but he was not left alone with them.

¶ 6. June Gilbreath taught Brown in sixth grade; she served as his advisory teacher and managed his academic transcript that year. Gilbreath explained that her handwritten notation of “LD” on Brown’s transcript meant “learning disabled” or “learning disability.” Gilbreath said Brown struggled academically in elementary school. He repeated first grade and, despite failing grades, Brown received “social promotions” because of his size in the fourth and fifth grades. In sixth grade, his grades improved because they were “modified,” which meant Brown was given easier material and tests than the other students. Brown spent a year and a half in seventh grade before being promoted to the second semester of eighth grade. Gilbreath said Brown’s grades were modified again in the eighth grade, and he received higher grades that year. Looking at Brown’s standardized test scores, Gilbreath testified that Brown was at a second-grade reading level and a third-grade math level when he was in fifth grade. In sixth grade, he scored a third-grade reading level and a fourth-grade math level. Finally, Gilbreath testified that Brown’s transcript reflected that he put forth his best effort during school.

¶ 7. Susan Kizer testified for the State. Kizer is the special-education director for DeSoto County Schools and previously was a special-education teacher. Kizer reviewed Brown’s transcript and testified about the handwritten “LD” notation. She explained that “SLD” was the correct way to denote a learning disability; “LD” had no meaning to her and was not a customary way to acknowledge that a student was learning disabled. Kizer testified that a transcript would not necessarily indicate whether a student was in special education. She explained that a teacher should not make a determination of whether a student has a learning disability, as that determination is made only after a comprehensive evaluation. Kizer did not have personal knowledge as to whether Brown was in special education, and she was not able to locate any DeSoto County School records showing that he was, because school records are destroyed after seven years.

B. Expert Testimony

¶ 8. Brown presented Dr. Marc Zimmer-mann, a licensed psychologist, as a expert witness. Dr. Zimmermann was accepted as an expert in clinical psychology, forensic psychology, intellectual disability, and IQ testing. He said that it is difficult to determine whether someone is mentally retarded absent a full assessment because most mentally retarded individuals are mildly so. He explained that the Diagnostic and Statistical Manual Fourth Edition (DSM-IV) — the American Psychiatric Association’s compendium of mental diseases — provides that most mentally retarded individuals achieve sufficient social and vocational skills to maintain minimal self-support but need assistance to deal with “unusual social or economic stress.” According to Dr. Zimmermann, some mentally retarded individuals marry, have children, cook, clean, drive, maintain their appearance, and play sports.

¶ 9. Dr. Zimmermann explained the three criteria necessary for a diagnosis of mental retardation: significantly low intellectual ability, two adaptive functioning deficits, and- manifestation prior to age eighteen. Dr. Zimmermann evaluated Brown in preparation for the Atkins hearing; Brown was thirty-nine years old at

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168 So. 3d 884, 2015 Miss. LEXIS 149, 2015 WL 1355371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherwood-dwayne-brown-v-state-of-mississippi-miss-2015.