IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00710-SCT DAV ID DICKERSON

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 04/12/2018 TRIAL JUDGE: HON. LAMAR PICKARD TRIAL COURT ATTORNEYS: BRAD A. SMITH JASON L. DAVIS ALEXANDER KASSOFF HUMPHREYS McGEE COURT FROM W HICH APPEALED: COPIAH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF POST-CONVICTION COUNSEL BY: ALEXANDER KASSOFF HUMPHREYS McGEE SCOTT A. JOHNSON ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD A. SMITH JASON L. DAVIS ASHLEY LAUREN SULSER NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST CONVICTION DISPOSITION: AFFIRMED - 03/05/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. A j ury convicted David Dick e r s o n o f c a pital m u rder, arson and arm ed robbery and sentenced him to death f

or capital m

urder. He was sentenced to t wenty y ears f or arson and f orty y ears f

o r arm ed r obbery , to run consecutively

. D ickerson a ppealed his c onvictions andsentences, and the Court af f irm e d. Dickerson v. S

tate , 1 7 5 S o . 3d 8, 12 (Miss. 2015). Dickerson then instituted post-conviction collateral relief proceedings. Dickerson claim s he is incom petent to proceed with the post-conviction proceedings; so the Court rem anded the case and ordered the trial court to determ ine whether Dickerson was com p etent to proceed in post-conviction proceedings. The t rial court f ound Dickerson com

petent. Dickerson now appeals that f

i nding. FACTS AND PROCEDURAL HISTORY ¶2. A grand jury in d i c t e d D i c k e r s o n f or c apital m

urder, arson and arm ed robbery

. Dickerson m oved f

or a determ ination of his com petency t o s t and trial. The court appointed
Dr. Criss Lott to evaluate D ickerson. Dr. Lott d eterm i ned t hat f urther o bservation was needed to determ ine the nature and severity of Dickerson’s m ental illness and to r ule out the possibility of m a lingering. Accordingly , Dickerson was sent to be evaluated by Dr. Robert Storer and Dr. Reb McMichael at the State Hospital at W hitf i eld f or two m onths. The trial

court then held a com

petency h earing at which a ll three doctors testif ied that Dickerson was

com petent to s tand trial according to the standard articulated in D u sky v . United States , 362 U.S. 402, 402, 8 0 S. Ct. 788, 4 L. Ed. 2 d 824 (1960). 1 Dic k e r s o n o f f e r ed n o w itnesses or evidence of his own at the hearing. The trial court f ound that Dickerson was com petent to

1 T o b e d eem ed co m

p eten t to s tan d trial u n d er t h e D u sk y stan d a rd , t h e “ d ef

en d an t m u st h av e th e ‘ su f

f icien t p r esen t a

b ility to co n su lt w ith h is law y er w ith a reaso n ab le d eg ree o f ratio n al u n d er s tan d in g . . . an d

. . . a ratio n al a s w ell as f actu al u n d erstan d in g o f th e p ro ceed i n g s ag ain st h i m . ’” B e a s l ey v . S ta te , 1 3 6 S o . 3 d 3 9 3 , 3 9 8 (M iss. 2 0 1 4 ) (q u o tin g D u sk y , 3 6 2 U .S . at 4 0 2 ). 2stand trial according to the Dusky standard a n d then h eld the trial in July 2012. The jury

f ound Dickerson guilty on all three charges and recom m ended t he death penalty

. D ickerson appealed t o t his Court. On appeal, “Dickerson r aise[ d] ten assignm e n ts of error[ ,]” including that “the trial court erred in f inding [ him ] com

petent to stand trial.” D ickerson , 175 So. 3d

at 14. T he Court held that the trial court’s f inding that “Dickerson w as com petent to stand trial was . . . not m anif

estly against the overwhelm ing w eight o f the evidence.” Id. at 17. The Court ultim ately

af f i rm ed Dickerson’s conviction and death sentence. Id. at 35. ¶3. Af ter his direct appeal, Dickerson f iled f or post-conviction relief a n d m oved to stay the post-conviction proceedings, claim ing that he was not com petent to proceed. The Court
gran t e d h i s m otion and rem a nded the m atter to the trial court f or a determ ination of Dickerson’s com

petency to proceed bef

ore the Court in p ost-conviction relief proceedings. ¶4. The trial court held a com petency hearing in February

2018 at which Dr. Storer and
Dr. M a l c o l m S pica both testif i ed that they h ad exam ined Dickerson to evaluate his

com petency , and the d octors were both a c cepted as e x p e r t s a t t h e hearing. Dr. Storer testif i ed that Dickerson was com petent to proceed because Dickerson possessed a factual and rational understanding o f post-conviction proceedings and h ad the ability to c o nsult with his attorney s. Dr. Spica also testif ied that Dick e r s o n h ad the ability t o com m unicate with his attorney s, but Dr. Spica’s report s upported Dickerson’s contention that h e did not have a rational or f

actual understanding o f post-conviction proceedings. A f ter hearing the doctors’ testim o nies and r eviewing both of the doctors’ written re p orts, the trial court f ound

3Dickerson com petent to proceed. Dickerson now appeals the trial court’s decision.

STANDARD OF REVIEW ¶5. A trial court’s f

indings regarding com

petency will not be o verturned unless the trial court’s decision was “m anif estly against the o verwhelm ing weight of the e vidence.” Beasley

v. State , 136 So. 3d 393, 398 (Miss. 2 014) (inte rnal q uotation m arks om itted) (quoting Martin v. State , 871 So. 2d 693, 698 (Miss. 2004)). DISCUSSION ¶6. Dickerson raises two assignm ents of error in this appeal. First, he c laim s that the trial court’s determ ination that he was com petent to proceed in p ost-conviction relief proceedings

was m anif

estly a gainst the overwhelm ing weight of the evidence. Second, Dickerson claim s that the trial court err e d by f ailing to accede to D ickerson’s assertion t hat the standard set f orth in Dusky and Gam m age v. State , 510 S o. 2d 802 (Miss. 1987), 2 is the only standard f or evaluating a p etitioner’s com petency to p roceed in post-convict i o n p roceedings in a Mississippi cour t a n d b y f ailing to apply the Dusky/Gam m age standard to determ ine

2 In G a m m a

g e , th e C o u rt ap p lied th e D u sk y stan d a rd an d h e ld th at “[ a] d ef en d an t n o t co m p eten t to stan d trial is o n e w h o d o es n o t h av e su f f icien t p resen t ab ility

to co n su lt w ith h is law y er w ith a reaso n ab le d eg ree o f ratio n al u n d erstan d i n g , o r d o es n o t h av e a ratio n al as w ell as a f

actu al u n d erstan d in g o f th e p ro ceed in g s ag ain st h im .” G a m m a g e , 5 1 0 S o . 2 d at 8 0 3 ( em

p h asis o m i tted ) (citin g D u sk y , 3 6 2 U

. S . at 4 0 2 ). 4Dickerson’s com p etency to proceed. 3
I. Whether the trial court’s determ ination that Dickerson w as com petent to proceed in post-conviction relief proceedings w as m ani f

estly against the overw h elm ing w eight of t he evidence. ¶7. Dickerson raises two m ain issues in his argum ent that the trial court’s determ ination of his com

petency was m anif

estly against the overwhelm ing weight o f the evidence. First, Dickerson argues that t he trial court’s reliance o n Dr. Storer’s report is m isplaced. Second, Dickerson claim s that the trial court erred by f ailing to adm i t Dr. Spica’s report i nto evidence and that Dr. Spica’s report should have been relied upon by the trial court. A. Dr. Storer’s Report ¶8. D i c k e r s o n a s serts t he trial court should not have relied o n Dr. Storer’s report and testim o ny because Dr. Storer, i n reaching his c o nclusion, (1) erred by f inding that D ickerson did not have a severe and per s i s t e n t me n tal illness; (2) incorrectly relied on his belief that

3 T h e S tate m ak es a cu rso ry claim t h at th ere is n o co n stitu tio n al rig h t to co m p eten cy i n p o s t-co n v ictio n p ro ceed in g s. D ick erso n arg u e s to th e co n trary

. We d eclin e to ad d res s th e issu e b ecau se it is n o t n ecessary to d ecid e th e case. “It is w ell-settled b y th e d ecisio n s o f th is C o u r t th at a co n stitu t io n al q u estio n w ill b e p assed o n w h ere th e issu es in v o lv ed in a p articu lar c ase a re su ch th at t h e case m ay b e d ecid ed o n o th er g ro u n d s.” W a rn er-L a m b ert C

o . v . P o tts , 9 0 9 S o . 2 d 1 0 9 2 , 1 0 9 3 (M iss. 2 0 0 5 ) (citin g B ro a d

h e a d v . M o n a g h a n , 1 1 7 S o . 2 d 8 8 1 , 8 8 8 (M iss. 1 9 6 0 )). “T h is C o u r t h as p rev i o u sly

stated th at w h en th ere is n o n ecessity to reach a q u estio n , w e w i ll n o t.” Id . “A s th is C o u rt stated in K ro n v. V a n C lea ve , 3 3 9 S o . 2 d 5 5 9 , 5 6 3 (M iss. 1 9 7 6 ), ‘co u rts w ill n o t d ecid e a co n stitu tio n al q u estio n u n less it is n ecessary to d o so in o rd er to d ecid e th e case.’” S co tt e x rel. S c o tt v

. F lyn t , 7 0 4 S o . 2 d 9 9 8 , 1 0 0 7 (M i ss. 1 9 9 6 ) ; see a lso J o h n so n v. M

em ’l H o sp . o f G u lfp o rt , 7 3 2 S o . 2 d 8 6 4 , 8 6 6 (M i ss. 1 9 9 8 ).

5m arked cognitive def icits in executive f

unctioning are not a c c e p t e d as m ental def ects that signif icantly interf

ere with com

petency -rela t e d a

b i l i t i e s ; ( 3 ) l a c k e d an understanding of postconviction r e lief proceedings, including what level of assistance an attorney requires of a petitioner during the proceedings; and (4) f ailed to adm inister any standard t est f or evaluating

com petency

. 1. Severe and Persistent Mental Illness ¶9. Dickerson argues that schizophrenia is a severe and persistent m e ntal illness and that
Dr. Storer’s diagnosis that Dickerson did not h a v e schizophrenia based on the lack of
sy m p tom s Dickerson display ed was erroneous. T he State argues that Dickerson f ailed to cite
any relevant authority to support this contention. “ Failure t o cite r elevant authority obviates the appellate court’s o bligation to review such issues.” A rrington v . S tate , 267 S o. 3d 753, 756 (Miss. 2019) (internal q uotation ma r k s om itted) (quoting Byrom v. State , 863 So. 2d 836, 853 (Miss. 2018)). ¶10. Regardless o f Dic k e r s o n ’ s f ailure to cite authority to support his contention, this Court has h eld that a person suf f ering f rom schizophrenia m a y

still be com

petent to stand trial as well as com

petent to b e executed. Hearn v. State , 3 So. 3 d 722, 7 36, 7 36 n.19 (Miss. 2008) (citing Indiana v. E dwards , 554 U.S. 164, 1 2 8 S

. Ct. 2379, 171 L. Ed. 2d 345 (2008)); Billiot v. State , 655 So. 2d 1, 17 (Miss. 1995). ¶11. Dickerson argues that Dr. Storer erred by determ ining that Dickerson did not suf f er f rom schizophrenia because Dickerson had been previously diagnosed with t h e i llness in

61997 by another doctor. Dr. Storer explained that he disagreed with the previous diagnosis

because Dickerson’s s y

m ptom s a t the t im e Dr. Storer evaluated him were not consistent with schizophrenia. Dickerson argues that his sy m ptom s of schizophrenia were m erely in

rem ission when Dr. Storer observed h im f or t his com

petency h earing. H e f

urther argues that according to the Diagnostic and Statistical Manual of Mental Diso r d e r s (DSM-5), a psy c h ologist seeing a patient d uring rem ission m ight f

a il to detect sy

m ptom s of the illness.
Dr. Storer, however, testif ied at the hearing that the DSM-5 s tates that “[ n]egative sy m ptom s

are m ore closely related to p r o g n o s i s t h an are positive s y m ptom s and t end to be the m ost
p e r s istent.” Accordingly , Dr. Storer testif ied that t he signs of the rem aining, underly i ng negative sy

mptom s would b e f

airly obvious to a trained psy c hologist. In his r eport, Dr. Storer noted that Dickerson’s em otional f unctioning was good and that his ey e contract was also appropriate. Based on Dickerson’s f ailure to display any signs of underly ing negative
sy m p tom s associated with schizophrenia, Dr. Storer concluded that Dickerson did not have schizophrenia. ¶12. Regardless of the procedural bar to this claim f or f ailure t o cite relevant authority , we f ind that Dr. Storer’s conclusion that Dickerson did not suf f er f rom a severe and persistent

m ental illness was reasonably based on the DSM-5. Theref o re the trial court’s f

inding that Dickerson did not suf

f er f rom a severe and persistent m ental illness was not m anif estly against the overwhelm ing weight of the evidence 2. C o g n i t i v e D e

f i c i t s i n E

x e c u t i v e Functioning Related to Competency

7¶13. Dickerson argues that Dr. Storer incorrectly stated t hat cognitive def icits in executive f unctioning are irrelevant and not accepted as m ental def ects that signif

icantly interf

ere with

com petency -related abilities. The State argues that Dickerson’s c laim is barred because he f ailed t o cite relevant legal authority to support it, because he f ailed t o object to Dr. Storer’s being allowed to testif

y as a n expert in the f

ields of clinical and f

o r e nsic psy c hology and because the doctrine o f res judicata bars his contention that his cognitive def i cits in executive f unctioning render him

incom petent. ¶14. Notwithstanding the p rocedural bars, Dr. Storer was accepted as an expert in the f ields of clinical and f

orensic psy chology and actually ref used to testif

y to what Dickerson claim s. At the c om

petency hearing, Dr. Storer ref used to testif

y that cognitive def

icits in executive f unction i ng are irrelevant to a court’s f i nding of com

p etency

. I nstead, he testif ied that cognitive def

icits i n executive f

unctionin g , alone, are not recognized as “a suf f icient f oundation f

or a f inding of [ i n]com

petence” in any jurisdiction of which he is aware. Even

so, Dr. Storer e xplained that the severity of t he dy sf un c t i o n s h o u l d d eterm i ne w hether the def icit in executive f

unctioning alone could support a f inding of i ncom

petence a nd of

f ered

an ex a mp l e of severe m em ory im pairm ent due to head traum a as an instance in which a cognitive def

icit in executive f

u n ctioning could s upport a determ ination of incom petency on its own. Those circum stances, however, are not present in Dickerson’s case. ¶15. Dr. Storer n o ted that e xecutive f u nctioning is one part of m any to be considered in a f inding o f com

p etency

. He l isted criteria f o r determ ining whether a person h as a cognitive

8def

ici t i n e xecutive f

unctioning. He f

urther testif

ied that the m ere presence of a def icit in executive f

unctioning in a person d oes not autom a tically m ean t hat the person will also have def icits in their com

petency -related abilities. ¶16. D r . S t o r e r a l s o p o i n t e d o ut that at the hearing held bef ore Dickerson’s tria l t o determ ine his com

petency to stand trial, Dr. Lott testif ied t hat, despite Dickerson’s having cognitive def

icits, he w as com

petent to stand trial. A ccording to the standard of com petency Dickerson asserts should apply in post-conviction p roceedings, c o u p led with his f ailure to of f er any e vidence that his c ognitive def icits in executive f

unctioning have c hanged since his pretrial com

petency hearing, this contention is barred by the doctrine of res judicata

. ¶17. The trial court’s f

inding that Dickerson did not have def icits in executive f

unctioning

severe enough to render h im incom petent to proceed in post-conviction proceedings was not

m anif estly against the overwhelm ing weight of the evidence. 3. D r
. S t o r e r ’ s a n d D i c k e r s o n ’ s U n d e r s t a n d i n g

s o f P o s t

- C o n v i c t i o n Proceedings ¶18. Dickerson argues that n either he nor Dr. Storer has a f actual understanding of

postconviction p roceedings o r of w hat a petitioner m ust be able to d o to assist post-conviction counsel. Dickerson’s counsel argues that post-convict i o n p roceedings, while b ackward looking, also involve an analy sis of n e w f a c t s and claim s that Dickerson does not have a f actual understanding of the nature of these p roceedings. The State disagrees a nd a rgues that
Dr. Storer a nd Dickerson both possess a f actual understanding of post-conviction

9proceedings.

¶19. The p urpose of t he Mississippi Unif orm Post-Conviction Collateral Relief Act “is to provide prisoners with a procedure, lim ited in nature, to r eview those objections, def enses, claim s, q uestions, issues or errors which in practical r eality c ould not b e o r should not have been r aised at t rial o r on direct appeal.” Mississippi Code Section 9 9-39-3(2) (Rev. 2015). ¶20. Dickerson uses his o w n statem ent, as recorded in Dr. S torer’s report, to support his contention that he lacks suf f i cient understanding of post-conviction proceedings. W hen Dr. Storer asked him what sorts of questions his post-conviction attorney s w ere asking him when they m e t, he replied, “ They ’re going on what t h e y a l r e a d y know. That’s the way postconviction is. They ’re going on every thing that’s already

been written.” ¶21. Dickerson also claim e d that he had sent lett e r s t o h i s p o s t

- c o n v i c t i o n c o u n s e l regarding his post-conviction proceedings but that he had y et to r eceive a reply

. W hile this

act does not necessarily m e an that Dickerson h as the ability to ef f ectively com m

u nicate with his counsel, it at least shows t hat he possesses a willingness to c om m unicate with his counsel and has m ade an active and rational ef f ort to do so. ¶22. D i c k e r s o n t hen argues that Dr. Storer does not understand the n a t u r e o f p o s t

conviction proceedings either. He of f ers Dr. Storer’s testim ony at the com p etency hearing at which Dr. Storer stated, “In m y consultations with attorney s . . . I have been advised . . . that post-conviction review is prim arily a review of the records to m ake sure that every thing

. . . was done correctly and in a ccordance with the rules and procedures as they stood at the

1 0tim e o f the trial,” to support h is a rgum ent. Dickerson, h o w e ver, prem a turely cuts of f Dr. Storer’s statem ent f

rom his testim ony at the com petency hearing. In the next sentence of his testim o ny , Dr. Storer stated, [ Post-conviction r eview] also includes[ s] n ew things. For exam ple, the Atkins ruling by the Suprem e c ourt. That ended up being applied retrospect i v e [ l y ]. Miller v. Alabam a rulings have been applied retrospectively

. So even though those m ay not h ave applied at the t im e of the t rial,

. . . in p o s t

- c o n v i c t ion proceedings, they m a y be brought up if they applied and were not brought up [ at trial]. My u n d e r s t a n ding is that all of that is e ncom passed in postconviction review. ¶23. A t t h e hearing, Dr. Storer also testif ied that it w as h is understand i n g t h a t p o s t

conviction attorney s a re supposed to engage in investigation of f acts that were not presented

at trial. Dr. Storer’s statem ent f rom his testim ony , r e ad in totality , does not support Dickerson’s argum ent that Dr. Storer lacks an understanding of the nature of post-conviction proceedings. ¶24. Dr. Storer explained that he used his understanding of t he nature of post-conviction
p r o c e edings in determ ining t hat Dickerson possesses a reasonable, f actual and ration a l understanding of the proceedings. Theref ore, t he trial court’s f

inding that Dickerson had a rational understanding o f the nature of post-conviction relief proceedings was n ot m anif estly against the overwhelm ing weight of the evidence.

1 14. Method s Dr. Storer U

sed to Evaluate Dickerson’s Competency ¶25. D i c k e r son argues that because Dr. Storer f ailed to perf

o rm any standard t e s t s f

o r

com petency , specif

ically the MacArthur Com petence A s sessm ent Tool - Crim inal Adjudication (MacCAT-CA), his report o n D i c k e r son’s com petency is inaccurate and should

not be r elied u p o n b y t he trial court. Once again, t he State argues that because D ickerson f ailed to cite any authority to support his argum ent, the issue is procedurally barred and the Court is under n o duty to review it. The State also argues that Dickerson waived r eview of this issue by f

a i ling to object to Dr. Storer’s m ethods bef o re or during the com

petency hearing. The State f

urther argues that because Dickerson stipulated his a c c e p t a n c e of Dr. Storer as a n expert i n the f ields of clinical and f

orensic p sy chology , h e i s b arred f rom raising issue with the m ethods u sed. Notwithstanding these procedural bars, the m ethods and test Dr. Storer adm inistered during his evaluation were reliable. ¶26. Dickerson claim s that t he MacCAT-CA is t he best known and m o st w idely used test by practitioners when com p etency is at issue. Dickerson a sserts that the MacCAT-CA is an evaluation procedure used to determ ine a def e n dant’s ability t o understand the nature of the proceedings. Dr. Storer claim s, however, that the MacCAT-CA does not apply here. ¶27. Dr. Storer t estif

ied the MacCAT-CA is intended to assess a def endant’s com

petency
to stand trial only and that it is not intended to assess any other ty p es or levels of com

petency

. He also testif

ied that he believes that com petency to p roceed in post-conviction proceedings is very di f

f e r e n t f rom com petency to stand t rial because of the dif f erence in the required

1 2abilities to perf orm vary ing ty

pes of tasks a t each stage. Accordingly , Dr. S torer testif ied that he would only a dm inister t he MacCAT-CA in an evaluation to assess com petency to stand trial and n o t in an a ssessm ent of any other level or sort of c om petency , including com

petency
to proceed in post-conviction p roceedings. Instead of the MacCAT-CA, Dr. St o r er adm inistered the P ersonality Assessm ent Inventory (PAI) to Dickerson i n order t o o b t a i n

o bjective inf

orm ation f

or diagnostic c larif

ication. Dr. Storer’s written report states t h a t “[ t]he PA I i s a self

-adm inistered, objective inventory o f adult personality designed to provide inf orm ation on cr i t i c a l c l inical variables.” Dr. Storer n oted that h e “would have loved to have given a direct m easure of com petence, but there i s no c o m petence assessm ent m easure that directly

looks at post-conviction com p etence.” ¶28. Dr. Storer’s f

ailure to adm i nister a test designed s trictly f or d eterm ining com

petency
to stand trial did not render his o pinion regarding Dickerson’s com petency to proceed in postconviction proceedings incorrect o r unreliable. Theref o re, the trial c ourt’s f

inding was not

m anif estly against the overwhelm ing weight of the evidence. ¶29. W e f

ind each error Dickerson alleges Dr. Storer com m it t e d i n h i s e v a l u a t ion of Dickerson to be without m erit. The trial court properly considered Dr. Storer’s report.
B. Dr. Spica’s Report ¶30. Dickerson argues that the trial court erred b y f ailing t o rule on the adm issibility of Dr. S p i c a ’s report a nd f

urther claim s that the report should have been adm itted because its conclusion that Dickerson was inco mp e t e n t to s tand t rial w as reliable. Dickerson f urther

asserts that the report should have been adm i tted because it was com p etent and r e l e v a n t 1 3evidence. The State argues that Dickerson’s f a ilure to obtain a ruling on h is m otion to adm it the evidence constitutes a waiver. The S tate claim s that despite the waiver, the trial c o u r t

com m itted no error because it did not exclude the report and did consider it in determ ining Dickerson’s com

p etency to proceed in post-conviction relief proceedings. ¶31. “[ I]t is the responsibility of the m ovant to obtain a ruling f rom the court on m otions

. . . and f ailure to do s o constitutes a w a i v er.” Sm ith v. State , 986 So. 2 d 290, 296 (Miss. 2008) ( internal quotation m arks om itted) (quoting Evans v. State , 725 So. 2d 613, 708 (Miss. 1997)). “ [ I ] t i s the duty of the objecting party t o obtain a ruling f rom t he trial court on objections, and

. . . i f t h e r e cord includes no ruling by the trial court, the o bjections are waived f or purpose of appeal.” Rials v. D uckworth , 822 So. 2d 2 83, 288 (Miss. 2002) (citing Floyd v. City of Crystal Springs , 749 So. 2d 110, 120 (Miss. 1999)). ¶32. The f

acts of Franklin v. Lovitt Equip. Co., Inc. , 420 So. 2d 1370, 1372 (Miss. 1982),

are sim i lar to what occurred h e r e . I n F ranklin , t he appellant claim ed that t he trial court f ailed to conside r p arol evidence that the appellant of f ered t o the c ourt even though the record “clearly indicate[ d] that the testim ony in question was perm itted to b e introduced into evidence

. . . . ” I

d . The appellant argued that the trial court f ailed to c o nsider the evidence based on the f

act that the trial court reserved ruling o n t he a dm issibility o f the evidence when it was presented and then f ailed to enter a d ef

i nitive ruling o n i ts adm issibility bef ore rendering a f

inal decision. Id. T his Court c oncluded, “Although the chancellor never ruled

on this issue, it m

ust be assum ed that he considered the parol evidence in rendering his f inal

1 4decision.” Id.

¶33. At Dickerson’s com pet e n c y h e a r i n g , D i c kerson m o ved t o have Dr. Spica’s report adm itted into evidence, and the State objected based on relevancy

. T he trial court allowed
Dr. Spica’s report to be m arked f or identif ication, noted t he objection and r eserved ruling on the adm i ssion of the report into evidence. A f ter the conclusion of Dr. Spica’s testim ony , the State renewed its o bjection to Dickerson’s m otion to adm it Dr. Spica’s report, and, again, the trial court reserved r

uling on the m atter. It was not until af t er both parties f

iled post-hearing brief s and t h e trial court had issued i ts Mem orandum Decision and Order that D ickerson renewed his m otion to adm it Dr. Spica’s report into evidence. ¶34. Dickerson argues t hat D r . S p i c a ’ s r e p o rt should h ave been adm itted as relevant evidence by citing Mississippi R ule of Evidence 401, which states that evidence i s relevant if “it has any tendency to m ake a f act mo r e or less probable than it would be without the evidence” and if “the f

act is of consequence i n determ ining the c a se.” Miss. R

. Evid. 4 01. Although the trial court f

ailed to rule on the adm issibility of Dr. Spica’s written report, it is clear that the trial court considered it f rom the language the court u sed in its Mem orandum Decision and Order. In that order, the trial court wrote that it reviewed the written reports of both Dr. S torer and Dr. S pica i n its determ ination of Dickerson’s com petency to proceed in post-conviction proceedings. ¶35. W e f

ind that any error the t r i a l court m a y h ave c om m itted by f ailing to rule on the adm issibility of Dr. S pica’s report woul d b e a h a r ml ess error because the trial court did

1 5consider Dr. Spica’s written report in its determ ination of Dickerson’s com petency

. ¶36. The tria l c o u r t f

ound Dickerson com

p etent to p roceed in post-conviction collateral relief proceedings af

ter considering the conf

licting evidence produced by each party and the conf licting reports a nd testim onies of t h e e xperts. W hen conf licting evidence capable of

m ore than one reasonable i nterpretation i s presented to t he court, the trial judge, as with any f inder of f act, is entitled to determ i ne the credibility of the witnesses and t he weight to af f ord their testim ony . Trim v. Trim , 3 3 So. 3d 471, 479 (Miss. 2010). Theref ore, we f ind that it

was w ithin the discretion of the trial c ourt to w eigh the credibility o f t he doctors’ conf licting testim o ny and to c hoose between their c o m p e ting interpretations. The trial court’s determ ination that Dickerson is com petent to p roceed was not m a nif estly against the overwhelm ing weight of

the evidence.
II. Whether t he trial c o u rt erred by failing to apply t he Dusky/Gammage Standard to determ ine com petency to proceed in post-conviction relief proceedings. ¶37. Dickerson argues that the Dusky/Gam m age standard is t he only standard that exists f o r d eterm ining com

petency in a Mississippi courtroom

. At the com p etency h earing, t h e State prof f ered t hat the standard f

or com petency in post-conviction proceedings should be that the “[ p]etitioner is c om petent to proceed in post-conviction review proceedings if he has suf f i cient present ability t o consult with his attorney s with a rational understanding as to f acts relevant to his case.” ¶38. The trial court noted t hat neither party cited any controlling authority setting f orth the

1 6standard that eithe r a s s e r t e d w a s a p p l i c a b l e t o c o m p e t e n c y d eterm inations f

or post-conviction relief proceedings. The trial court even addressed standards f or com petency used by other

states f or com petency d eterm inations in post-conviction. The trial court explained that in Florida, a petitioner m

ust identif y specif ic f actual m atters that require co m p e t e n t c o n s u l tation with counsel, and in Illinois, a petitioner m ust show why personal c om m unication would be required between petitioner and counsel. ¶39. The trial co u r t f

o u n d that D ickerson has the suf f icient present ability to consult his attorney s with a reasonable degree of rational understanding in investigating, preparing and presenting claim s f

or post-conviction relief

, as well as a r ational and f a c tual u nderstanding of the n ature and object of p ost-conviction proceedings. A c c ording to these f indings of f

act, the trial court determ ined that Dickerson was com petent t o proceed in p ost-conviction relief proceedings under any of the standards prof f e r ed b y the p arties o r under t he standards used by other states that acknowledge a right to c om petency during the p ost-conviction collateral relief stage. CONCLUSION ¶40. Af ter reviewing the record, we f i nd that t he trial court’s determ i nation that Dickerson is com petent to p roceed i n post-conviction collateral relief p roceedings was not m anif estly against the overwhelm ing weight of the evidence. ¶41. AFFIRMED.
R A N D O L P H , C . J . , K

I T C H E N S A N D K

I N G , P . J J . , M AX WEL L , B E A M , I S H E E A N D G RIFFIS, JJ., CONCUR. COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY MAX WELL AND BEAM, JJ. 1 7COLEMAN, JUSTICE, SPECIALLY CONCURRING:

¶42. I c o ncur w ith the m ajority ’s reasoning a n d r e s u l t

. I write s e parately to address the State’s argum ent that Dickerson has no r i g ht t o com p etency during his post-conviction collateral relief

proceedings. ¶43. In short, t he State is correct that we h ave never held that a petitioner enjoy s a statutory

or c onstitutional right to com petency during p ost-conviction proceeding s. D ickerson supports his position that a post-conviction petitioner has a r ight to com petency with Neal

v. S tate , in which the Court wrote in perf unctory f ashion that a def

endant m ust b e com

petent
at all stages of the c rim inal process, including post-conviction. Neal v. State , 687 So. 2d 1180, 1183 (Miss. 1996) (citing R um baugh v . Pr o c u n i er , 753 F.2d 395 (5th Cir. 1985)). However, Rum baugh does not concern the issue of whet h e r a p a r ty has t he right to be

com petent in post-conviction p roceedings. Instead, the Rum baugh Court con s idered whether one m

ust be c om

petent to waive a r ight to collatera l r e v i e w . Rum b augh v. Procunier , 753 F.2d 395, 3 98 (5th Cir. 1985) (citing Rees v. Peyton , 384 U.S. 3 12 (1966)). Dickerson and—m ore im portantly —t h e N e a l Court m isinterpret Rum baugh

. Id. at 402. Nothing i n Rum baugh conf ers a right to com

p etency a t the post-conviction stage of crim inal proceedings. Again, Rum baugh addressed the right to be com petent when waiving appeals and c ollaterally attacking convictions and sentences. Rum baugh , 753 F.2d at 398. As such, it speaks not at a ll to the question presented here—whether the Mississippi Post-Conviction Collateral Relief Act or the Mississippi Constitution provide a statutory right t o com petency during post-conviction proceedings. 1 8¶44. In today ’s case, the Court granted Dickerson’s request f or a com petency hearing by order

. T h e h e a ring having been heard and the d eterm ination that Dickerson is com petent having been m ade (an d n o w a f f i rm ed), it indeed seem s a bit late i n the current gam e to address the issue. It rem ains, however, a question that the Court should one day answer. MAX WELL AND BEAM, JJ., JOIN THIS OPINION.

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