IN THE SUPREME COURT OF MISSISSIPPI
N O. 2016-CT-01502-SCT SHANNON CRAIG PARKER a/k/a SHANNON C. PARKER a/k/a SHANNON PARKER

v. STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI DATE OF JUDGMENT: 09/27/2016 TRIAL JUDGE: HON. JON MARK W EATHERS TRIAL COURT ATTORNEYS: CANDANCE L. RICKMAN BENJAMIN DODD THORNTON ZACHARY MONROE VAUGHN REBECCA PRUETT DENHAM COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/23/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. S h a n n o n C r a i g P a r k e r a p p eals his aggravated-assault conviction a n d enha n c e d

sentence. W e assigned h is appeal to the C ourt of Appeals, which af f irm ed. However, theappellate court was divided on one of the three issues Parker raised—whether the trial judge

abused his discretion i n deny ing Parker’s request f or a m ental evaluation to pursue a possible insanity d e f

ense. W e granted Parker’s petition f or writ of certiorari to review this issue. ¶2. Af ter review, we hold the trial judge d id not a b u s e h i s d i s c r e t i on when he denied Parker’s pro s e mo t i o n f

or a m ental evaluation. Although given the opportunity to do so, Parker presented no concrete reason establishing the need f or a m e ntal evaluation to assist
i n the pursuit of a viable insanity def ense. Instead, Parker o f f ered only unsupported assertions of dim inished capacity —a def ense n ot re c o gnized by Mississippi law. W e thus af f irm

. B ackground Facts and Procedural History
I. Shooting ¶3. Eric a nd Edna Burkett were standing outside their hom e in Hattiesburg, Mississippi, when a whi t e p i ckup truck stopped in f ront o f them

. The driver got out, and the Burketts asked i f h e n e e d e d h elp. The m an m um bled som e thing, grabbed a rif l e, and shot Eric, wounding him . The m an also f ired shots at Edna but m issed. Soon af t er, the police f

ound the white t ruck in a nearby ditch. Its tires were still spinning. T he driver, l ater identif ied as Parker, was in the truck. He was arrested and later conf irm ed by the Burketts as the m an who attacked them

. ¶4. Par k e r a p p e a r e d to be under the inf luence. So police waited until the next day to interview him

. 1 Parker, through a written statem e nt, told police “ I don’t no [ sic] victim

.

1 P ark er v o lu n tarily w aiv ed h is M ira n d a rig h ts. M

i ra n d a v. A rizo n a , 3 8 4 U .S

. 4 3 6 , 8 6 S

. C t. 1 6 0 2 , 1 6 L

. E d

. 2 d 6 9 4 (1 9 6 6 ) (req u irin g t h a t, p rio r to a c u s to d ial in terro g atio n , 2Don’t e ven no [ sic] victim

. All I rem em ber is sitting spinning.” A t t he i nterviewing of f icer’s

recom m endation, Parker underwent a m ental evaluation. The evaluation was perf orm ed by

a licensed prof

essional counselor. Parker told the counselor that he had previously been treated f or anxiety a nd depression. The counse l o r c o n c l u ded that Parker “was verbal and responsive” and that “[ h]is thought processes were rational.”
II. Rejected Plea ¶5. Although i ndicted on two counts of assault, the State elected t o proceed only on the aggravated assault a gainst Eric, with a f ive-y ear sentencing enhancem ent f or using a f

irearm

. See Miss. Code Ann. § 9 7-3-7(2)(a) (Rev. 2014) (aggravated assault); Miss. Code Ann. § 97-
3 7 -37(1) ( Rev. 2014) ( f

i rearm enhancem ent). A week bef ore the scheduled trial, P a r k e r planned to plead guilty

. But at the plea hearing, Parker claim ed he had no recollection of the crim e. And he m aintained he could not verif y the State’s recitation o f t he f acts. Under the circum stances, the trial judge determ i ned h e could n ot accept Parker’s plea. At that point, the judge turned to pretrial m atters. ¶6. One of these m atters was def ense counsel’s prior i ndication t hat she did not intend to call a n expert. At this point, Parker’s counsel clarif ied that “this is where M r. Parker and I disagree on the strategies of this trial.” W hile Parker wanted a m ental evaluation, counsel advised him

he did not f

all within “the param e ters that t he law requires in order to request

a m ental evaluation.” Despite the tim e lim it to m ake such a request having already passed,

th e p erso n b ein g i n t e rv iew ed b e w arn ed th at h e h as a rig h t to r em ain silen t , th at an y statem en t h e m ak es m ay b e u sed as ev id en c e ag ain st h im , an d th at h e h a s a rig h t to th e p resen ce o f

an atto r n ey , eith er retain ed o r ap p o in t ed ).

3the trial judge p e r mi t t e d P a rker to f ile a m o tion f

or a m ental e valuation pro se. The judge also set the m atter f

or a hearing the f

ollowin g M o n d a y . T h e j udge advised Parker that he

m ay need to bring witnesses.
III. Motion for Mental Evaluation ¶7. The hearing began w ith P arker’s c ounsel conf i rm ing she and her co-counsel did not believe they could, a s a m atter of p rof essional ethics, present Parker’s m otion. Specif ically , counsel stated t hat, “I d on’t believe under M’Naghten that I would be able to present that

m otion.” Parker then argued his m otion pro se. He f irst attem pted to rely on what he had written in his unsworn m otion. The m otion cited what the Burketts and arresting of f icers had allegedly said about t his behavior the night h e shot Eric. But the trial judge instructed Parker that he could not cite what other p eople allegedly s aid outside the c ourtroom as e vidence. The trial judge then as k e d a series of probing questions about P arker’s m e ntal-health and prescription-drug history

. Parker recollected he had s u f f ered f rom anxiety a n d d epression and once attem

pted suicide. At the end of the hearing, the trial judge concluded: Basical l y b a s e d on what the [ trial] Court has to look at i n term s o f the treatm ent f

or a nxiety a nd depression and the unf ortunate event w ith attem

pting to c om m i t s uicide one tim e, there’s nothing in any thing, t hat inf

o rm a tion or the dem eanor I ’ve seen, t he m otions that have been f iled, the court f

i le itself , m y interactions w ith Mr. Parker to lead m e to b elieve t hat there’s a n y ratio nal basis f or appointing a psy chiatrist or psy chologist t o e xam ine him f or the purpose of

determ ining either his com petency or sanity

. ¶8. T h e case p roceeded t o trial three day s later. The jury f ou n d P a r k e r g u i l t y o f aggravated assault and using a f i rearm during t h e c o mmi s s ion of his crim e. The judge

4sentenced Parker to twenty y ears f or the assault conviction, w ith an a dditional f ive y ears f

or the f irearm enhancem ent.
IV. Appeal ¶9. This Court assigned Parker’s appeal t o the Court of Appeals, which af f irm ed. Parker presented three issues on appeal: (1) the trial ju d ge erred in allowing the State’s f irearm expert to t estif

y ; (2) the trial j udge abused his discretion in deny in g P a rker’s m otion f or a

m ental evaluation; and (3) the f irearm enhancem ent violated the c o nstitutional prohibition against double jeopardy

. W hile t h e a ppellate court unanim ously agreed the f irst and third issue s p r e sented no r eversible error, the court was equally divided on the second issue. Based on this split, w e granted Parker’s peti t i o n f o r certiorari review. Although Parker reasserted all three a

ppellate issues in his petition, we lim it our review to the i s s u e o f Parker’s request f

or a me n t a l e v a l u a tion. See Guice v. S tate , 952 S o. 2d 129, 133 (Miss. 2007) (recognizing this C ourt’s “unque s t i o n a b l [ e]” authority to lim i t the question on certiorari review).
Discussion
I. Com p etency versus Insanity ¶10. In his petition, Parker echoes the criticism m a de i n t he d issenting Court o f Appeals opinion that “the trial court was f ocused on Parker’s ability to s t and trial rather than his sanity

at the tim e of the i ncident.” Parker v. State , No. 2016-KA-01502-COA, 2018 W L 1602585,

at * 9 (Miss. Ct. App. A pr. 3, 2018) (Tindall, J., dissenting). The dissent to this opinion lodges the sam e com

p laint.

5¶11. W e recognize, without questi o n , that com petency a nd sanity are two distinct concepts.
Sanders v. S

tate , 9 So. 3d 1132, 1137 ( M iss. 2009). Com petency to s tand t rial i s m easured

at the tim e of trial. And i ts standard is “whether the def endant has ‘suf

f icient present ability

to consult with his lawy e r with a reasonable degree of rational understanding’ a nd ‘has a rational as well as f

actual understanding of the proceedings against him .’” Martin v. State , 871 So. 2d 693, 698 (Miss. 2004) (quoting D usky v. United States , 362 U.S. 402, 80 S. Ct.
7 8 8 , 4 L. Ed. 2d 824 (1960)). By contrast, insanity

— o r, m o re p recisely , a def endant’s

a f f irm ative def

ense of n ot guilty by reason of insanity —is m easured at t he tim e of th e crim inal of

f ense. And its standard is the “ M’Naghten r

ule.” Davis v. State , 551 So. 2d 165, 173 (Miss. 1989). Under this rule:
To establish a def

ense on t he g round of insanity , it m ust be c learly proved t hat at the tim e of com m itting of the act the accused was l aboring u nder such def ect of reason f

r o m d i s ease o f the m ind a s (1) not to know the nature and quality of t he act h e was doing, or (2) if he did know it, that he did not know that what he was doing was wrong.
Id. ( citing Hunter v. S

tate , 489 So. 2d 1086, 1090 (Miss. 1 986); Laney v. State , 486 So. 2d 1242, 1245 (Miss. 1986)). ¶12. First, we point out that just b ecause Parker advanced his m otion f or m ental evaluation

o n h i s claim that h e m ay have been legally insane w hen he shot Eric does n ot put the tria l

c o u r t i n e r ror f

or also m aking an on-the-record r uling on Parker’s com

petency

. In f

act, then-applicable U nif

o rm Rule of Circuit and County Court P ractice 9.06 m andated the trial judge sua sponte o r der a m ental evaluation a nd conduct a com petency hearing if

the judge

6had “reasonable ground t o believe that [ Parker was] incom petent to stand trial[ .]” 2 Parker’s actions l eading u

p to the m otion hearing at least raised the specter of his potential inability

to consult with his c ourt-appointed attorney s o r understand the proceedings against him

. 3 So

we certainly do n o t f

ault the trial court f

or using t he hearing t o ensure n o reasonable ground existed to believe Parker was incom petent to stand trial and f a c e a jury s eve n ty -two hours later. ¶13. F u r t h e r , t h a t t h e c ourt assessed Parker’s com p etency does not m ean it f ail e d t o consider his potential insanity def ense as a basis f

or granting a m ental evaluation. The record shows the court p erm itted Parker to f ile his pro se m otion out of tim e, 4 despite Parker’s counsel inf

orm i ng the court s he could no t e t hically f ile a m o tion f

or m ental evaluation because s he did not believe Parker m et the conditions to receive one. The court was in f act

2 C f. H o u s e v . S ta te , 7 5 4 S o . 2 d 1 1 4 7 , 1 1 5 1 (M i ss. 1 9 9 9 ) ( “[ T ] r ial co u rts are [ c o n stitu tio n ally ] o b lig a ted to co n d u ct a co m p eten cy h earin g , eith er o n th e d ef en d an t’s m o tio n o r su a sp o n te, if

th ere is su f

f icien t d o u b t ab o u t

a d ef en d an t’s co m

p eten ce.” (citin g D r o p e v. M isso u r i , 4 2 0 U .S

. 1 6 2 , 1 8 0 , 9 5 S

. C t. 8 9 6 , 9 0 8 , 4 3 L

. E d

. 2 d 1 0 3 (1 9 7 5 ); P a te v. R o b in so n , 3 8 3 U .S . 3 7 5 , 3 7 8 , 8 6 S . C t. 8 3 6 , 8 3 8 , 1 5 L

. E d . 2 d 8 1 5 (1 9 6 6 ) )).

3 P a r k e r h a d f

i led n u m ero u s p ro se m o tio n s, in clu d in g a “ M o tio n to B e an d A llo w S h an n o n C raig P a rk er to B e C o - co u n sel B e sid e O n e C an d an ce R ick m o n P u b lic D ef en d er,”

“ M o t i o n o f R elease A n d /o r F ire P u b lic D ef en d er F iled b y D ef

en d an t,” an d “ M o tio n f

o r P re l i m i na r y I njunc t i on/ Tran s f

er.” A n d at t h e p rio r h earin g , P ark er h ad o p en ly d isag reed w ith h is ap p o i n ted co u n sel’s assessm en t o f P ark er’s p o ten tial in san ity d ef en se.

4 U n d er th e au th o r i ty

g ran ted in th en - ap p licab le R u l e 8

. 0 2 , th e trial co u rt h ad set a d u e d ate o f A u g u st 3 0 , 2 0 1 6 , to f ile a m o tio n f

o r m en tal ex am in atio n . S e e U R C C C 8

. 0 2

. U n d e r t h en -ap p licab l e R u le 9 .0 7 , th is w as also th e d ead lin e to in f o rm th e S tate an d th e co u rt th at P ark er in ten d e d to rely o n an in san ity d ef en se. S e e U R C C C 9 .0 7

. P ark er d i d n o t in f o rm th e co u rt h e h ad w an ted to f ile h is m o tio n f

o r m en tal ev a lu atio n b ased o n a p o ten tial in san ity d ef en se u n til tw o w eek s l ater, o n S ep t e mb e r 1 5 , 2 0 1 6 , ex actly o n e w eek b ef o re th e sch ed u led trial. 7cautious and set the m otion f o r a pretrial hearing, t elling Parker the court “intend[ e d] to take testim o ny ” and advising him he m ay have to call witnesses in support. ¶14. At the hearing, when Parker directed the court’s a t tention to his claim t h a t h e w a s insane at the tim e of the c rim e, t he court patiently responded, “ All right, well, I ’m here, and
I’ l l sit here a s long as we need to sit here to l et y o u of f er m e p roof that y ou have a m ental problem or disease that would—that had som e e f f ect on why y ou don’t rem e m ber what happened.” Still, Parker f ailed t o produce a ny proof

. And the trial judge ag a i n r eassured
him , “I’ll let y ou go a nd say whatever y ou wanted to say , and then I’m going to go through this and do what I want to do, and y ou be thinking, if there’s any other proof you want me
to consider, any medical records, any witnesses, anything of that nature , I’ll sit here

. . . till [ f ive o’clock]. If

we need to reconvene in the m orning, we’ll do that.” (Em phasis added.) Despite the o pportunity , guidance, and reassurance by the trial court, P arker m ade n o attem pt to call any

witness. Nor did he attem pt to subm it any

records. ¶15. Af ter Parker f

ailed to present any proof , the trial judge expressly concluded: [ T]here’s nothing in a ny

thing, that inf

orm ation or t he dem eanor I’ve s een, the m o t i o n s that h ave been f iled, the court f

ile itself , m y interactions with Mr. Parker t o l ead m e t o believe that there’s any r ationa l b a s is f or appointing a psy chiatrist or psy ch o l ogist to exam ine him f or the purpose o f determ ining either his com

petency o r sanity .” (Em phasis a dded.) Our review of t he record dem onstrates t he trial judge thoroughly considered Parker’s request f or a m ental evaluation to assist a potential insanity def ense. II. Unsubstantiated Assertions

8¶16. As to the m erits of this request, we agree w ith t he Court of Appeals plurality that the

trial court did not abuse its discretion when it denied Parker’s m otion f or a m ental evaluation. ¶17. “This C ourt weighs on a c ase by case b asis whether the denial of expert assistance f or

an accused i s prejudicial to the assurance of a f air trial

. . . .” Johnson v. State , 529 So. 2d 577, 590 (Miss. 1988). W e “will grant relief only where the a ccused dem onstrates that the trial court’s abuse of discretion i s so egregious as to deny him due process and where his trial was thereby

rendered f

undam e ntally

unf air.” Id. ¶18. “[ W ]hen a def

endant dem onstrates to the t rial judge t hat h is sanity at the tim e of the of f ense i s t o b e a signif

i cant f actor at trial, the State m ust, at a m inim

um , assure the def endant access to a c om

petent psy chiatrist” who will e xam ine a n d assist h im

. A k e v. Oklahom a , 470 U .S. 68, 83, 105 S. C t

. 1 0 8 7 , 1 096, 84 L. Ed. 2d 53 (1985). “Of course a def e n dant m ust com e f

orth with concrete reasons, not u nsubstantiated assertions that assistance would be benef icial.” Harrison v. S

tate , 635 So. 2d 894, 901 (Miss. 1994) (citing
Butler v. State , 608 S o . 2 d 3 1 4 , 3 2 1 (Miss. 1992); Hansen v. State , 592 So. 2d 114, 125 (Miss. 1991); Griffin v. State , 557 So. 2d 542 (Miss. 1990)). ¶19. Parker relied exclusively on (1) his assertion he d id not k now the victim a nd could not

rem em b er any t hing about the n ight of the assault and (2) his own personal recollection about his m ental-health history

. T his history included his taking prescription d rugs f o r anxiety and depression and a s uicide attem pt three y ears earlier. But, as the Court of Appeals plurality aptly p ut it, Parker’s history o f treatm ent f o r anxiety and d epression “has n o apparent relevance to his ability to know right f rom wrong at the t im e o f the of f e nse.” Parker , 2018

9W L 1 602585, at * 6. Cf. Sanders v. State , 63 So. 3d 497, 506 (Miss. 2011) ( “Just because

a p e r son is schizophrenic does n ot m ean that person is M’Naghten insane.” (citin g L a n e y

v. State , 486 So. 2d 1242, 1245 (Miss. 1986))). N or d oes Parker’s testim ony that he does not

rem em b er shooting Eric establish M’Naghten insanity

. Not being able to rem em ber is not the sam e thing as not being a ble to distinguish right f

rom wrong. See, e.g. , United States v. Holsey , 995 F.2d 960, 9 63 (10th Cir. 1993) (holding that the d ef endant’s testim ony that he “had ‘blacked out’ and did not rem em ber robbing the bank” did not am ount to evidence that the def endant s u f

f ered f rom a m ental def

ect rendering the def

endant “unable to a

ppreciate the nature and quality o r the wrongf ulness of h is acts”); William s v. State , 228 S.E.2d 806,
8 0 7 (Ga. 1976) (“This testim ony by appellant, that he does not rem e m ber what happ e n e d , does not require a charge on insanity .”); Jackson v. State , 253 S.E.2d 874, 877 ( Ga. Ct. App. 1979) (“Evidence that the def endant d oes not rem em

ber o r was in a ‘blan k e d out’ state of

m ind during the com m ission of the acts charged is insuf f icient to r aise the issue of insanity .” (citations om itted)); Sparkm an v. State , 469 S.W .2d 692, 696-97 (Tenn. Crim

. App. 1970) (“Insanity and am nesia are distinct conditions, even though am n esia som etim es is an incident of i nsanity

. Insanity is incapacity to discrim inate between r ight a nd wrong, w hile am nesia is sim ply t he inability to r em em ber.”); Jeffley v. State , 938 S

. W. 2 d 5 14, 515 (Tex. Ct. App. 1997) (“Loss of m em ory , however, is insuf f icient t o show insanity .”); Ex parte Saylee , No. 03-18-00124-CR, 2019 W L 1 413043, at *6 (Tex. Ct. App. Mar. 29, 20 1 9 ) (“Not

rem em b ering conduct i s distinct f rom not knowing that conduct is wrong and does not entitle

an accused t o t h e i n sanity def ense.”). This is especially so when the m em ory loss m ay be

1 0attributable to voluntary intoxication o r drug use. 5 See Sm ith v . State , 445 So. 2 d 227, 231 (Miss. 1984) (“[ I]f

a person, when sober, is capable of distinguishing right and wrong and voluntarily i ntoxicates or drugs him self to the extent that he does n ot know or understand his actions , e . g ., steals, robs, or m urders, he is responsible a nd he m ay be c onvicted and sentenced f

or the crim e .” ( citing McDaniel v. S tate , 356 S o. 2 d 1 1 51, 1161 ( Miss. 1978) (Sugg, J., specially concurring))); Patterson v. State , 127 So. 3 d 1124, 1 131 (Miss. Ct. App. 2013) ( holding that not being a ble to rem em

b er com m itting t he crim e d u e t o v o luntary intoxication is not a viable insanity def ense). ¶20. At best, Parker’s testim ony su g g e sted “ dim i nished capacity ”

— a def ense that is not recognized under Mississippi law. Cannaday v. State , 4 55 So. 2d 713, 720 (Miss. 1 9 8 4 ) ; Patterson , 127 So. 3d at 1131. W hen it com e to i nsanity , however, we agree with the Court of Appeals plurality t hat P arker f ailed to present “any concrete reason” e s tablishing a m ental evaluation was necessary o r that Parker had a v iable i nsanity def ense. Parker , 2018 W L 1602585, at *6. T hus, “given the broad d i s c retion af f orded to trial courts in determ ining whether to order a m ental evaluation[ ,]” we f ind no reversible e r

ror. Harden v. State , 59 So. 3d 594, 603 (Miss. 2011).
III. Hearsay ¶21. As to Parker’s other statem e n t s

— w h i c h t h e d i s s e n t s u ggests s hould have been considered c om

petent evidence in support of Parker’s m otion—the trial judge did not abuse

5 Albeit m o nths af

ter the crim e, Parker testif ied under oath that, if he in f a c t did what t h e S t a t e a c c u sed him of doing, then the j udge should punish him to the f ull e xtent of the law—indicating that, when n o t under the inf luence of any substance, h e k n ew right f rom wrong. 1 1h i s discretion in excluding them as hearsay

. Again, Parker did not call any witnesse s .

Instead, he m erely of

f ered an unsworn pleading as s upport, w hich contained what he alleged

were statem ents f

rom others. The judge explained that Parker could not of f er out-of -court
statem ents f

rom others about h ow he was acting that night to prove in f act how he acted. As the trial court correctly described it, w h a t Parker was attem pting to of

f er was textbook hearsay . Parker wanted to of f er statem ents by the arresting of f i cers and victim s, m ade out of c ourt, to prove the truth of what they had asserted—nam ely , that Parker a ppea r ed t o be

“ b e l l i g e r e n t,” that P arker “appeared to be under the inf l uence o f som e ty

pe o f drug o r alcohol,” and that Parker had been “talking i n a s t r a n g e l anguage” and “m u m b ling.” See Miss. R. Evid. 801(c) (“‘Hearsay ’ m eans a state m ent t hat: (1) the declarant does not m ake while t estif

y ing at the current trial or hearing; and ( 2) a party of f e r s in evidence to prove the truth of the m atter asserted in the statem ent.”). ¶22. The f

act Parker him self supposedly could not recollect his behavior or state of m ind when he shot Eric does not change the f undam ental evidentiary rule that he could not testif y about what others witnessed. Of course, Parker could have c alled the a rresting of f icers and victim s to testif

y about what Parker had said that night to prove Parker’s state of m ind. 6 If he had done so, their testim ony w o u ld not be hearsay , because it would have been of f ered

n o t t o p rove what Parker said was true but instead to prove Parker’s incoherence. But,
t h o u g h h e w a s given the opportunity to do so, that is not what P arker did. Instead, Pa r k e r

6 We n o te th e B u rk etts an d arrestin g o f f icers d id t esti f

y at trial. B u t th eir later in

co u rt testim o n y d o es n o t ch an g e th e f act th at th e s tatem en ts cited in th e p retrial m o tio n w ere h earsay . 1 2tried to shoehorn in unsworn out-of -court statem ents f

rom o thers aim ed at proving what was asserted about Parker’s behavior was in f act true. Again, w ith respect f or the dissent, this is hearsay

. ¶23. The h earsay -exception c ases the dissent cites a r e c l e a r l y d i s t i n g u i s h a

b l e . F o r e x am ple,
in Peterson v. State , 671 So. 2d 647, 657 ( Miss. 1996), 7 a s exual-battery case, the def endant tried to introduce a statem ent his victim m ade to him t he night of t he assault t hat earlier that evening s om eone had called her a “slut and a w hore.” The def endant of f ered this evidence
“as relevant to [ his] state of m ind on the night of the of f ense.” Id. at 651. More s pecif ically , he of f ered the evidence t o show w hat he “could e xpect regarding sexual relations.” Id. at 657. T his Court a f

f irm ed t he irrelevance and inadm issibility of t his statem e nt in a sexualbattery c ase. But we noted the out-of -cou r t s t a t e m e nt was not hearsay because it was “of f e red to prove the def

endant’s state of m ind, rather than t he truth of its assertions.” Id.
at 657 (em

phasis added). In o t her words, the statem ent was of f ered to show the def

endant’s claim ed belief that the victim was prom iscuous, not that she was in f act and truth a “slut and a whore.” 8 Id.

7 A s th e d issen t a c k n o w led g e s, P eterso n h as b een s u p ersed ed b y ru le o n o th er g r o u n d s as r eco g n ized in C a sto n v. S

ta te , 9 4 9 S o . 2 d 8 5 2 , 8 5 5 -5 6 (M iss. C t. A p p . 2 0 0 7 )

.

8 T h e sam e is tru e f

o r E selin -B u llo ck

& A s s o cia tes In su ra n ce A g en cy v . N a tio n a l G e n e ra l In su ra n ce C

o . , 6 0 4 S o . 2 d 2 3 6 , 2 4 2 (M is s . 1 9 9 2 ), in w h ich th is C o u rt e x p licitly h eld th a t t h ere w as “n o issu e ab o u t th e tru t h o f t h e m atter asserted .” E selin -B u llo ck w a s a to rtio u s -in terf

eren ce-w ith -b u s in ess-relatio n s case b etw een an in s u ran ce a g en cy , E selin

B u llo ck , a n d t h e in su r er it rep r esen t ed

. F o llo w i n g H u rrican e E len a in 1 9 8 5 , th e in su rer d e c i d e d i t w as co st-p ro h ib itiv e to rein s u re a lo n g th e M ississip p i G u lf C o a s t. T h e in su re r sen t letters d irectl y t o c l i e n ts n o tif y in g th em t h a t th eir “ p o licies w ere b ein g can celled b ecau se [ th e ag en cy ] n o lo n g er rep resen ted [ th e in su red ]

. ” Id . at 2 3 9 . A t trial, o n e o f th e 1 3¶24. Here, by sharp contrast, Parker of f ered the out-of

-court s t a t e me n t s i n a n e f f o r t to
prove he tru l

y was a cting “ belligerent,” he in truth “appeared to be u nder the i nf luence of

som e ty pe of drug or alcohol,” a n d he was in f act “talking in a strange language” and

ag en ts t ried to testif

y ab o u t th e p h o n e calls h e r eceiv ed f ro m u p set clien ts. H e ex p lain ed th e clien ts b lam ed th e ag e n cy ab o u t th e can cellatio n s o f th e ir p o licies an d th o u g h t , b ased o n th e w o rd in g o n th e letters, th at t h e a g en cy w as g o in g o u t o f b u sin ess. T h e trial co u r t su stain ed th e in s u rer’s o b

j ectio n o n h earsay

g ro u n d s. T h is C o u rt rev ersed , h o ld in g th e o u t-o f -co u rt statem en ts b y clien t s w ere n o t h earsay b ecau se “[ t] h ese statem en ts w ere n o t o f f e r ed to p ro v e th at th e clien ts w ere tru ly u p set, t h a t t h e clien ts i n tru th b lam ed E selin -B u llo ck f o r th eir can cellatio n s, o r th at th e clien ts in tru th b eliev ed th at E s elin -B u llo ck w as g o in g o u t o f b u sin ess.” Id

. at 2 4 2 . In stead , “[ t] h ese statem en ts w ere o f f ered s im p ly to p ro v e th at su ch statem en ts w ere m ad e b y E s elin -B u llo ck clien ts in r esp o n se to can c ellatio n n o tices.” A s to th e th ree n o n -M ississip p i cases th e d issen t cites, th ey to o are d istin g u i s h a b l e b ecau se th e o u t-o f

-co u rt statem en ts w ere n o t b ein g o f f ered to p ro v e th e tru th o f th e m atter asserted

. U

n ited S ta tes v. D e trich , 8 6 5 F

. 2 d 1 7 (2 d C ir. 1 9 8 8 ) w as a f ed eral d ru g -traf

f ick i n g case in w h ich th e d ef

en d an t claim ed h e h ad b ro u g h t a su it b ack f ro m In d ia as a f

av o r f o r a f rien d w h o se co u sin w as g ettin g ma r r i ed

. H e w as m et at th e airp o rt b y th e D ru g E n f o rcem en t A d m in istratio n , w h ich f o u n d h ero in h id d en in th e sh o u l d e r p ad s o f th e su it. T h e S eco n d C ircu it h eld th e d e f en d an t sh o u ld h av e b een allo w ed to in t ro d u ce t h e co u sin ’s o u t-o f -co u rt statem en t to t h e D E A th at h e w as g ettin g m arried

. “With o u t reg ard to th e tru th o f [ th e c o u sin ’ s] m a rriag e p lan s,” th e statem en t w as circu m stan tial ev id en ce o f th e d ef en d a n t ’s state o f m i n d an d h is claim h e th o u g h t h e w as p erf o rm in g an in n o c en t a f

av o r. Id . at 2 1

. L a m b e rt v. S

ta te , 8 8 8 P .2 d 4 9 4 (O k la. C rim

. A p p . 1 9 9 4 ) w as a d eath

- p en alty ap p eal in w h ich th e d ef

en d a n t arg u ed th e S tate’s ex p ert w h o p erf o rm ed th e co m

p eten cy ev alu atio n sh o u ld n o t h av e b een allo w ed to testif y th at h e (th e ex p ert) relied , in p art, o n co n v ersatio n s w i th an a cco m

p lice. T h e O k l a h o m a C o u rt o f C rim i n a l A p p eals r ej ected th i s arg u m en t b ecau se th ere w as “n o assertio n th at th e in f o rm atio n related b y

[ th e ex p ert] w as o f

f ered to p ro v e th e tru th o f th e m atter asserted .” Id . at 5 0 1

. R ath er, th e a c co m p lice’s statem en t “w as u sed to ev alu ate th e [ d ef

e n d an t’s] state o f

m in d , an d to sh o w h i s ab i lity to p lan .” Id

. F in ally , S ta t e v. C ra fts , 6 2 7 A .2 d 8 7 7 ( C o n n . 1 9 9 3 ) w as a g ru e s o m e m u rd er case in w h ich th e state’s th eo ry w a s th at th e d ef en d an t m u r d ered h is w if

e u p o n l earn in g s h e p lan n ed to d iv o rce h im

. T h e state in tro d u ced f iv e w itn e s ses w h o t e s t i f

i e d th at th e v ictim h ad to ld th em th a t, if so m eth in g h ap p en ed to h er, th ey s h o u ld n o t b eliev e th at i t w a s an accid en t. In rej ectin g th e d ef

en d an t ’s h earsay claim , th e S u p rem e C o u rt o f C o n n e cticu t n o ted t h at “[ a ] n o u t-o f -co u rt statem en t is h earsay . . . o n ly if it i s o f f e r e d t o p r o v e th e tru th o f th e m atter asserted in th e statem e n t.” Id . at 8 8 6 (em

p h asis ad d ed )

. A n d in th a t case, “b ecau se th e state o f f ered th e ev id en c e to estab lish o n ly t h e v i ctim ’s state o f m in d , th e statem en ts w ere n o t h earsay .” Id

. 1 4“m

um bling” t he night he shot Eric. So the statem ents were inadm issible hearsay

. See Miss.
R. Evid. 801(c), 802. Thus, w e f i nd the trial c o urt d id not abuse its d iscretion i n ref using to consider this incom

petent e vidence when m aking the discretionary decision to deny Parker’s unsupported m otion f

or a m ental evaluation.

Conclusion ¶25. On the lim ited issue o f t h e t r i a l j u d g e ’ s d e n i al o f Parker’s m otion f or a m ental evaluation, we f

ind no reversible error. W e t h e r e f o r e a f f i rm the judgm ents of the Forrest County Circuit Court and the Court of Appeals. ¶26. AFFIRMED.
RANDOLPH , C .J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE W RITTEN OPINION JOINED BY KING, P.J. GRIFFIS, J., NOT PARTICIPATING. KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶27. The m ajority erroneously af f i r ms t h e t r i a l court’s denial of Parker’s m otion f or a

m ental evaluation, f

inding the evidence insuf f icient. Because Parker m ade a s atisf actory showing conce rning the q uestion of h is sanity , the t rial court abused its discretion. I respectf ully dissent f

rom t he m ajority ’s holding a nd would f ind that Parker’s pro se m otion
f or a m ental evaluation should have been granted. ¶28. On January

28, 2016, Eric and Edna Burkett were outdoors when Parker, driving a white p ickup truck, stopped i n f ront of their hom e. The Burketts, who did n ot know Parker,

a s ked whether they could help h i m . The Burketts testif i ed that Parker was a cting “a little

s t r a n g e . ” H e h a d started “talking in a strange language” and “m um bling incoherently .” P a

r k e r

1 5took a .22 caliber rif l e f rom his truck a nd f

ired three shots at the Burketts, one of which struck Eric Burkett in the stom ach. A neighbor of the Burketts called the police. ¶29. Approxim ately

f if teen m inutes later, law enf orcem ent of

f i cers f ound Parker’s truck
in a ditch less than half a m ile f rom the Burketts’ hom e. He was s itting in the vehicle and its tires were spinning. Parker did not try to f lee when of

f icers ordered him to exit the truck. A police of f icer testif ied that, when Parker stepped out of his vehicle, h e “stood there and stared

at [ the o f f icer].” The police of

f icer went o n to testif

y that Parker “was kind of wobbly ” and had dif f icultly standing straight, ultim ately f alling to the ground. Parker then was arrested. ¶30. At the p olice station that night, a detective chose not t o try to o btain a s tatem ent f rom Parker. According to the detective, one o f the reasons she did not i nterview Parker was because o f her belief that his statem ent could not h ave been voluntarily or knowingly m ade

at t h a t tim e. She s peculated that Parker m ight h ave been under the i nf luence of som e substance. No evidence was obtained f rom t h e vehicle or the scene that supported this suspicion. Parker’s b l o o d w a s not t ested f or alcohol or drugs. On the f ollowing day the detective obtained a h andwritten statem ent f rom Par k e r t h a t s a id, sim ply , “ I don’t no [ sic] victim . Don’t even no [ sic] victim

. All I rem e m ber is sitting spinning.” Af t er m eeting with Parker, the detective recom m e nded that m ental health personnel evaluate him

. ¶3 1

. A b rief ev alu atio n d id o c cu r th e d ay af ter th e in cid en t. T h e rep o rt stated t h at P ark er h ad b een treated f

o r d ep r essio n an d an x iety f o r y ears an d th a t h is cu rren t m ed icatio n s w ere Wellb u t rin , V iib ry d , an d X an ax . T h e rep o rt d id n o t ad d r ess P ark er’s m e n tal st a t e o n th e

n ig h t o f th e in cid e n t, an d n o th in g su g g ests th at th e ev alu atio n w as p erf o rm ed to assess h is

1 6m en tal co m p eten cy to stan d trial. T h e rep o rt w as p rep ared b y a p e r s o n w h o se n am e is
f o l lo w ed b y “L P C ,” w h ich I b eliev e stan d s f o r L i cen sed P ro f

essio n al C o u n selo r, an d
“N C C ,” w h ich I b eliev e stan d s f o r N atio n al C ertif

ied C o u n selo r . She recom m ended that Parker be seen by a “m edical provider at the jail f or placem ent on m edications treating his [ sy m ptom s] of anxiety and depression.” ¶32. Dur i n g a p r e t r i a l h e a r ing in circuit court, Parker told the trial j udge that h e had no recollection of the shooting and did not know whether he had com m itted the crim e. Parker told the judge that he wanted a m e ntal evaluation to s upport an insanity def ense. The court
gave Parker a n opportunity to p r e p a r e his m otion, w hich h e draf t ed b y 5:00 p.m . the
f ollowing evening. 9 A f

ew day s later, Parker argued his own m otion to the court. ¶33. Parker began his argum ent by reading h i s t h r e e - p a g e m o t i o n. T he m otion asserted that,

at the tim e of the o f

f ense, Parker “ was in no r ight state of m i nd” and was n ot “able to know right f rom w rong.” Park e r ’ s m otion noted that a r resting of

f icers h ad described him as “belligerent” and had t hought that he “appeared t o b e under the inf luence o f so me ty

pe of drug o r a lcohol.” The m otion noted also that the Burketts had t old p olice t hat he was “talking
in a strange language” a nd “m um b ling incoherently .” Parker’s m otion stated f u rther that he had been treated f

or depression and anxiety and had been p rescribed W ellbutrin, Viibry d, and
Xanax. Finally , Parker requested a m ental exam i nation and a n expert to tes t i f y i n s u pport of his insanity

def ense.

9 P ark er h ad b e en f

o u n d b y th e trial co u rt to b e in d ig en t. Although he had a courtappointed attorn e y , P a r k e r draf ted and f iled the m otion p ro se because h is a ttorney s, according to Parker, d id not want to pursue an insanity def ense. B o th atto rn ey s w ere p resen t at th e m o tio n h earin g . 1 7¶34. Af

ter reading h is m otion aloud, Parker testif ied to a history of m ental-illness-related
h o spitalizations, t he nam es or locations of m edical f acilities at which he had r e c e i v e d

treatm ent, a prior suicide attem pt, and a num

ber of m edications he had t aken o ver the y ears f or anxiety , depression, and p s y chosis. Parker also testif ied that, at the tim e he assaulted the Burketts, he was u n der a doctor’s care and on m edication f or anxi e t y a n d d e p r e ssion. In addition, Parker testif

ied that he received Social Security disability benef its f o r phy sical and

me n t al issues. Parker testif ied he had no idea whether he had been under the i nf l u e n c e o f alcohol or drugs. ¶35. Throughout the h e aring, t he circuit judge f ocused on Parker’s m ental com petency to stand trial rather than on his a lleged insanity at the tim e of the of f ense. 10 Parker m a de it clear that he was not questioning his com petency t o stand trial. 11 Ultim ately the circuit court denied Parker’s m otion: “I f

ind that M r. Parker is com petent to stand trial at t his tim e , and the trial will go f o rward on Thursday [ .]” Parker was tried, convicted, and sentenced. A plurality of

10 T h e circu it c o u rt m ad e t h e f o l l o w in g statem e n t s: “I w an t y o u to tell m e . . . [ th e reaso n s] y o u h av e a m en tal co n d itio n [ ] th at lead s y o u to b e in co m p eten t to st a n d t r i a l o r assist y o u r atto rn e y s [ .] ” ; “[ S ] o are y o u co m p eten t[ ? ] [ D ] o y o u f

eel l ik e y o u ’re co m

p eten t to assist y o u r atto rn ey s i n p rep a rin g y o u r d ef e n s e ? ”; “[ I] n d eterm in i n g w h eth er o r n o t th e d ef en d a n t is co m p eten t to stan d trial an d assist in h is trial

. . . th e [ c] o u rt h a s o b s erv ed th e d ef en d a n t ’s d em ean o r an d co n d u ct[ .] ”; “ I h av e f ailed t o o b serv e o r p erceiv e an y u n to w a rd co n d u ct o n th e p art o f th e d ef en d a n t.”; “I f

in d n o b asis to d eem M r. P ark e r in co m p eten t to assist in h is d ef

en se o r p ro ceed t o trial[ .] ”; “[ S ] p ecif i cally t h e [ c] o u rt f

in d s th at M r. P ark er ap p ears to h av e su f

f icien t p resen t m en tal - - p resen t su f f icien t - - p resen t ab ility to co n f er w i th h is atto rn ey s[

. ] ”; “ T h e r e f o r e , I f in d th at M r. P ark er is co m p eten t to stan d trial at th is tim e[ .] ”

11 P ark er m ad e th e f

o llo w i n g s tatem en ts: “Judge, this h as nothing to do with m e standing trial.”; “Judge, like I stated, this has n o t h i n g to do with t his tim e and period right now. It has to d o with” t he tim e o f the crim e; “But, J udge, we’re not t alking about what I was capable of

doing then or now. W e ’re talking about what happened on that night.” 1 8the Court of Appeals a f f irm ed; the Court of Appeals was evenly divided—alm ost; one judge voted, without opinion, to af f i rm i n part and d issent in p art. 12 Parker v. State , No. 2 016-KA01502-COA, 2018 W L 1602585, at *1, *7 (Miss. Ct. App. Apr. 3, 2018). ¶36. A t rial court’s ruling on a m otion f or a m ental evaluation is r eviewed under an abuse of discretion standard. Wheeler v. State , 536 So. 2d 1347, 1354 (Miss. 1988). In doing so,

we e xam ine “all of t he evidence” that was b ef ore the trial court. Richardson v. State , 74 So. 3d 317, 323 (Miss. 2011). W e also determ ine whether the trial court “applie d t h e c o r r e c t legal standard.” Greater Canton F o r d M e r c ury, Inc. v. Lane , 997 So. 2d 198, 202 (Miss. 2008) (quoting Burkett v. Burkett , 537 So. 2d 443, 446 (Miss. 1989)). ¶37. Parker’s m otion f

o r a m ental evaluation raised specif ically the issue of his sani t y at the tim e of the of

f ense. In determ in ing sanity i n crim inal c ases Mississippi utilizes the

com m on law M’Naghten t est. 13 “Under the M’Naghten test, the a c cused m ust be ‘ “laboring under such def

ect of reason f

rom disease of the m ind as (1) not to know the n a ture and

12 N o w -P resid in g Ju d g e Wilso n au th o red t h e p l u rality o p in io n . T h e n -C h ief Ju d g e L e e, t h en -P resid in g Ju d g e G rif f is, n o w -C h ief Ju d g e B a r n e s, an d Ju d g e F air co n cu rred

. Ju d g e G r een lee co n cu rred in p a r t an d d issen ted in p art w ith o u t sep arate w ritten o p in i o n . Ju d g e T i n d ell d i s s e nt e d with sep arate w ritten o p i n io n , j o in ed b y th en -P resid in g Ju d g e Irv i n g an d Ju d g es C arlto n , G r een lee, an d Westb ro o k s.

13 T h e M ’N

a g h t e n t e st w as an n o u n c ed f irst b y th e E n g lish H o u se o f L o rd s. M ’N a g h ten ’s C

a se (1 8 4 3 ) 8 E n g . R ep . 7 1 8 , 1 0 C lark & F

. 2 0 0

. T h is C o u r t e x p r e ssly ad o p ted th e M ’N

a g h ten test in 1 9 5 5

. J

o h n so n v. S

ta te , 2 2 3 M iss. 5 6 , 6 7 , 7 6 S o . 2 d 8 4 1 , 8 4 4 (1 9 5 5 ) (“We ap p ly t h e t est o f th e l e a d i n g E n g l ish case k n o w n as M ’ N a g h ten ’s case, w h ich is th e m aj o rity ru le.” (citin g 1 4 A m . Ju r . C rim in a l L a w § § 3 8

- 4 0 )). T h e J o h n so n C o u rt ad o p t ed th e test, n o tin g th at earlier M ississip p i d ecisio n s h a d reco g n ized an d ap p l ied th e su b stan ce o f th e ru le. S ee, e.g
. , E a tm a n v. S

ta te , 1 6 9 M iss. 2 9 5 , 1 5 3 S o . 3 8 1 , 3 8 1 (1 9 3 4 ).

1 9quality of the act h e was d oing or (2) if he did know it, that he did not know that what he was

doing was wrong.”’ Hearn v. State , 3 So. 3 d 722, 738 (Miss. 2008) (quoting Woodham v. S t a t e , 800 So. 2d 1148, 1158 (Miss. 2001) ( quoting Roundtree v. State , 568 So. 2d 1 1 7 3 , 1181 (Miss.1990))). ¶38. We a p p ly the M’Naghten test in l ight of t he m inim u m constitutiona l p r o t e c t i o n s af f orded by the due process of

law provisions of the F ourteenth Am endm ent to the United
States Constitution; our analy sis necessarily is bound by the United S tates Suprem e Court’s interpretation o f t hat am e ndm ent. See P enick v. State , 440 S o. 2 d 5 4 7 , 5 5 1 (Miss. 1983) (“[ W ] e [ a r e] bound to f

ollow the holding of the U.S. Suprem e Court’s interpretations of the Fourt[ eenth] Am endm ent to the U.S. Constitution.”); see also , Miss. Const. art. 6, § 155. 14 Respecting the question of an indi g e nt def endant’s claim of insanity at t he t im e of the of f ense, the United States Suprem e Court has held

This C ourt has l ong recognized that when a S tate brings i ts judicial power to bear o n an indigent def endant in a crim inal proceeding, it m ust take steps to assure that t he def endant has a f

air opportunity t o present his def e nse. This elem entary principle, grounded in signif icant part o n the Fourteenth Am endm ent’s d

u e process guarantee of f

undam ental f

airness, derives f

rom the belief that justice ca nnot be equal where, sim ply a s a result of his poverty , a def endant i s denied the opportunity to participate m e aningf ully in a judicial proceeding in which his liberty is at stake. . . .

. . . .

14 T h e U n ited S tates C o n s titu tio n , to w h ich th is C o u r t u n q u estio n a b ly is b o u n d , estab l ish es a m in im

u m s tan d ard f

o r state c o u rts. T h o u g h u n n ecessary h ere, “We are em p o w e red b y o u r state co n s t i t u t io n to ex c eed f ed eral m in im

u m s tan d ard s o f co n stitu t io n ality an d m o re strictly en f o rce [ co n stitu tio n a l rig h ts] .” D o w n ey v. S ta te , 1 4 4 S o . 3 d 1 4 6 , 1 5 1 (M iss. 2 0 1 4 ). 2 0W e theref ore h old that when a def

endant dem onstrates to the t rial judge t hat his sanity at the tim e of the of f ense is to be a s ignif

icant f actor at trial, the State m ust, at a m inim

um , assure the def

endant access to a com

pet e n t p sy chiatrist who will conduct an appropriate e x am ination and assist i n evaluation, preparation, and presentation of the def ense. Ake v. Oklahom a , 470 U.S. 68, 76, 83, 105 S. Ct. 1087, 1092-96, 84 L. Ed. 2d 53 (1985). ¶39. Bef

o re the Court is the question of w hether Parker suf f iciently dem onstrated to the trial judge that his s anity at the tim e of the o f f ense was “seriously in question.” Id. at 82. In analy zing this issue, we review the evidence that was bef ore the circuit court.
A. Evidence Considered by the Circuit Court ¶40. As noted above, Parker s ubm itted a pro se m otion f or m ental e valuation and testif ied
in support of his m otion. Parker testif ied a bout his history of m ental-illness- r e l a t e d hospitalizations, the nam e s or l ocations of m edical f acilities at which h e had received m ental health treatm ent, a prior s uicide attem pt, and a num

b er of m edications he had taken over the
y ears f or anxiety , depression, and psy chosis. Som e of the prescribed drugs Parker testif ied he had taken were W ellbutrin, Viibry d , and Xanax. P arker testif ied also that, at the tim e he assaulted the Burketts, he was under a doctor ’ s c a r e and w as on m edicine f or anxiety and depression. 15 I n a ddition, Parker testif ied that he received Social Security disability benef its
f or phy sical and m ental issues. Finally , Parker testif ied that he had no recollection of what had happened during the shooting and that he did not rem em ber having been there.
B. Evidence Not Considered by the Circuit Court

15 O f sig n if

ican ce, p erh ap s, is th at P ark er d i d n o t testif y , an d h e d i d n o t tell th e L P C /N C C ex am in e r th at h e w as, at th e tim e, tak in g m ed icatio n f o r p sy ch o sis. 2 1¶41. The circuit court m a de no m e n t i o n o f h a v i n g c o n s i d e r ed a ny o f the f ollowing additional evidence b ef

ore deny ing Parker’s m otion. P arker testif ied that the ar r e s t i n g of f icers had described him as “belligerent” and had thought that h e “appeared to be under the
inf luence of som e ty

pe of d rug or alcohol.” Accordingly , l aw enf orcem ent p ersonnel did not
attem pt to obtain a statem ent f

rom Parker on the night he was taken i nto custody

. Parker also

te s t if ied t hat Eric Burkett had said t hat Parker was “talking in a strange language and

m um bled.” Parker f

urther testif

i ed that Edna Burkett had said P arker was “ m um bling” and had “continued to m

um b le som e one’s nam e.” ¶42. The c ircuit court did not consider that evidence because it determ ined, sua sponte , that all of t he statem e nts were inadm issible hearsay : “[ W ]hat y ou’ve done, Mr. Parker, is [ that]
y ou [ have] cited a bunch of p eople and w hat t hey allegedly said, but they ’re not in the

courtroom , a nd that’s hearsay

. . . . and I d on’t see that there’s an exception to t he rule against hearsay .” W ith respect, the trial judge was m istaken in his evidentiary a n aly sis. ¶43. “Hearsay ” is d e f

i n e d a s “ a s t a t e me n t that (1) the declarant does not m ake while testif y ing at the current trial or hearing; and (2) a party of f ers i n evidence to p rove the truth of t h e ma t t e r asserted in the statem ent.” M.R.E. 801(c). Parker did not o f f er into evidence the above statem ents to prove the truth of the m atters asserted. 16 He was n ot try ing to prove that he w as “under the inf luence of som e ty

pe o f d rug o r alcohol” or th a t h e actually was

16 N o w -C h ief J u d g e B arn es o f th e C o u rt o f A p p eals h as ex p o u n d ed o n th is p ro b l em : “A ll to o o f

ten , w e see reco rd s w h ere a w itn e ss is in f o r m ed h e ‘can ’ t say

w h a t an y o n e else said ’ w ith o u t an y attem

p t to d eterm i n e w h eth er th e statem en ts are b ein g u sed to p ro v e th e tru th o f th e m atter.” H

a rrell v. S

ta te , 1 7 9 S o . 3 d 1 6 , 2 2

– 2 3 (M iss. C t. A p p . 2 0 1 4 ) (B arn es, J., d issen t in g )

. 2 2“talking in a strange language” and “m um bling.” He of

f ered the statem ents to prove, as best he could, h is state of m ind at the tim e o f t he of f ense. M.R.E. 803(3) (Then-Existing Mental,
Em otional, or Phy sical Condition). ¶44. Under the applicable exception, Mississippi R u les of E v i d e n ce 803(3), statem ents “of f e red to p rove t he def

endant’s state o f m ind, rather than t he truth of [ the m atters] assert[ ed]

. . . . [ are] not hearsay under the Mississippi Rules o f Evidence.” Peterson v. State , 671 So. 2 d 647, 657 (Miss. 1996), superseded by rule on other grounds as recognized in Caston v. State , 949 So. 2d 852, 855-56 (Miss. Ct. App. 2007). See generally Eselin-Bullock
& Assocs. Ins. Agency, I nc. v. Nat’l Gen. Ins. Co. , 604 So. 2d 236, 242 (Miss. 1992). See also United States v

. Detrich , 865 F.2d 17, 2 1 (2d Cir. 1988) (when “the s t atem ent is of f ered

a s circum stantial evidence of [ the def endant’s] state of m ind, it d oes n ot f all wit h i n t h e def inition” of hearsay ); Lam bert v . State , 888 P.2d 494, 501 (Okla. Crim

. App. 1994) (“The record also contains testim ony f rom Dr. G oodm a n that his conversations with Hain were rel i e d u p o n in determ ining [ the d ef endant’s] com

petency , and evaluating his m ental state. There is no assertion that the inf orm ation related by G oodm a n was of f e r ed to p rove the truth of the m atter asserted. Rather, the statem ent was u sed to evaluate [ the def endant’s] state of

m ind

. . . .”); State v. C

rafts , 627 A.2d 877, 886 (Conn. 1993) (“A statem ent t hat i s of f ered

to establish circum stantially the s tate of m ind of the declarant is not o f f ered f or the truth of the statem ent.”). ¶45. The m ajority f

i nds t hat Parker of

f ered the out-of

-court s tatem ents f

or the purpose o f proving that he was, i n f

act, belligerent, i ncom

prehensible, and generally unable to control

2 3h i ms e l f

, inter a lia

. The m ajority asserts this properly w as d eem ed inadm issible hears a y without exception, and distinguishes the above

- c i t e d cases illustrating the state-of -m ind exception. ¶46. However, the record ma k e s clear that Parker d id not of f er the statem ents to prove
tr u t h o f t he m atter asserted, nor did he of f e r them to prove his s anity , or lack thereof

. The

ou t

- o f

- c o u r t statem ents were o f f ered to show P arker’s state of m ind during and soon af ter his bizarre, m otiveless a ssault o n t he Burketts. He had no recollection of the events, but other witnesses did. This was apparent f rom Parker’s testim ony

at the pretrial hearing: [ Court]:

. . . I want y ou to tell m e what it is a b o u t this case and y o ur involvem ent in i t that could convince m e that y ou h ave a m ental condition, t hat leads y o u t o be incom

p etent to stand trial or to assist y o u r a t t o r n e y s in the def ense of y our case?

. . . . [ Def endant]:

. . . I have no recollection of any idea of w hat I w as d o ing in Palm er’s Crossing that night. I don’t e ven rem em ber being there. I don’t have any recollection of what happened. M y mental c apability at that time of said crime, I h ave n o i dea. I was not even at myself. I mean there’s people that put

-- that state this, and me, myself, I have n o recollection

. That’s a 24-hour period of tim e that when I was brought to Forrest County Jail and then woke up the next m orning in the holding cell. (Em phasis added.) ¶47. These c o n t e mp o r a n eous statem ents o f P arker’s are about his then-existing m ental,

em otional, or phy sical condition at the tim e of the shooting. P a r k e r testif ied he had no

awareness or m em ory of his actions. It does not f o llow that t he s tatem ents were of f ered to
prove t he f

act of his behavior

—as the m ajority f

inds. The out-of

-court statem ents provided by several witnesses relate to Parker’s m e n tal condition or state of m ind at the tim e of and

2 4soon af

ter the t ragic shooting. Nor does the f a ct that Pa r k e r testif

ied about what others

w i t n e s s e d preclude t he s tatem ents’ adm issibility

. These statem ents are t h e k i n d c o n t e m

p l a t e d by Rule 803(3), a well-known exception to the rule against hearsay

. ¶48. From all indications, Parker was lucid and rational at the tim e he stood b ef ore the trial

court and begged f

or a m ental health evaluation b y a court-appointed expert. Parker did not claim t h at he was m entally incom petent to stand t rial or to assist counsel with his def ense. Thus, the trial judge was addressing a question t hat wa s n o t b e i ng asked, w hile leaving unanswered the all-im

portant question of w hether Parker had m ade a suf f i cient showing of his state of m ind at t he tim e of his assault upon the Burk e t t s t o warrant a m ental health

exam ination by a q

ualif ied, c ourt-appointed m ental health prof essional. The judge’s f

ailure

to consider Parker’s rendition of relevant witness statem ents m ade in close proxim ity in t im e
to the assault w as error which w as, in signif icant p art, due to the judge’s e r roneous belief that the statem ents were inadm issible hearsay

. C. Application of the Rule to the Evidence Presented ¶49. Parker dem onstrated to the trial judge t h a t his sanity at the tim e of the of f ense was “seriousl y i n q u estion.” Ake , 470 U.S. at 8 2. To t hat e nd, Parker adduced the f ollowing evidence:

• Parker had no recollection of what had h appened on the night of the crim e. This was neither questioned nor rebutted by the State.

• P a r k e r d id not rem em ber b eing at the s cene of the c rim e . Th i s was not contradicted.

• Parker h a d sa i d , w i thout contradiction, that he d id not know the victim , Eric Burkett.

2 5• There was no i ndication that P arker had any m o tive to shoot Eric Burkett.

• The investigating of f icer believed t hat Parker, on the nigh t o f t h e crim e, was not in a state of m ind in which h e k n o w i ngly and voluntarily could give a statem ent.

• The arresting of

f icers described Parker as “belligerent.”

• The arresting of

f icers thought Parker “appeared to b e under t he inf luence of som e ty p e of drug or alcohol.”

• The Burketts observed Parker “ t alking in a strange language” and “m um bling.”

• Parker had a history of m ental illness.

• In the past, Parker h ad b e e n t a king a num ber of m edications f

or anxiety , depression, psy chosis, and m ental illness, i ncluding W e l lbutrin, Viibry d, and Xanax.

• Parker told the LPC/NCC e x a mi ner that he was t aking prescribed m e dications f

or anxiety and depression.

• Parker had attem

pted suicide on a prior occasion.

• Parker had been receiving S o cial S ecurity d isability benef its f or phy sical and m ental illness. ¶50. B a s e d o n t h e a bove evidence, I would f ind that Parker m or e t h a n a d e q u a t e l y “dem onstrate[ d] t o the trial judge that his sanity at the tim e o f the of f ense [ was s eriously in question.]” 17 Id. a t 82-83. See a l s o L i l e s v. Saffle , 945 F.2d 333, 341 (10th Cir. 1991) (sim ilar evidence r e q u i r e d habeas relief f o r trial court’s f

ailure to order m ental evaluation under Ake ); De Freece v. State , 848 S.W .2d 150, 151 (Tex. Crim

. App. 1993) (evidence that

17 T h e S t ate d id n o t reb u t o r ch allen g e an y o f P ark er’s ev i d e n c e. T h e trial j u d g e ask ed , “A ll rig h t, d o es th e S tate h av e an y th in g ? ” T h e p ro secu to r resp o n d ed , “We h av e n o p ro o f to o f f er, Ju d g e. Ju st arg u m en t.” 2 6def

endant “heard voices he ‘couldn’t overcom e’” and previous diagnosis of m ental illness suf f i cient to require reversal of trial court’s denial f or m ental evaluation under Ake ); Lindsey

v. State , 3 3 0 S

. E

. 2 d 563 (Ga. 1 985) (evidence that d ef endant had a history of m ental problem s and that def

endant had b een d iagnosed as a paranoid schizophrenic and had been prescribed antipsy chotic m edications suf f icient to require r eversal of trial court’s denial of

m ental evaluation under Ake ). ¶51. As explained in Ake , a def enda n t n e e d m ake only a “ preliminary s howing that his sanity at the tim e of

the of f ense” i s at issue in order to trigger the constitutional protection of “ access to a psy chiatrist’s assistance.” Ake , 4 70 U .S. at 74 (em phasis added). I t is bey ond
any reasonable argum ent that Parker’s prof f ered evidence a m ounted to a suf f icient preliminary showing

. A nd once such a prelim i n a r y showing h as been m ade, an indigent def endant m ust be given the “raw m aterials integral to the building o f a n ef f ective def ense.”
Ak e , 470 U.S. at 77. This analy sis com ports with the M ’Naghten test, Hearn , 3 So. 3d at 738, and other principles o f constitutional f airness. Lowe v. State , 1 27 So. 3d 178, 181 (Miss. 2013) (“W e will not hesitate to reverse a trial c ourt’s denial of e xpert assistance to an indigent def

endant w hen the lack of expert assistance d enied the def endant due process such that the trial was rendered f undam entally unf

air.” (citing Fisher v. City of Eupora , 587 So. 2d 878, 883 (Miss. 1 991))). See also Bishop v. State , 96 Miss. 8 46, 52 So. 2 1, 22-23 (1910). ¶52. T o b e c l e a r , t h i s prelim inary showing i s f ar f rom dispositive of the qu e s t i o n o f whether P a r k e r h a s p resented a viable insanity def ense, o r t hat he will ever do so. That “ultim ate issue is to be determ ined by the jury .” B illiot v. State , 4 54 S o. 2d 4 45, 463 (Miss.

2 71984). As the m ajority observes, Parker’s ability or inability to r e c a l l h i s actions does not

af f ect whether h e could disti n g u i s h r i g h t f rom wrong at the tim e of the a l leged crim e. But Parker h as m ade a suf

f icient prelim inary showing on the question o f h is sanity at t he tim e of the of f ense to warrant a m ental health evaluation under A ke . Indeed, part of t he reason f or conducting a m ental evaluation i s t o help the def endant determ ine whether an insanity def ense is viable. Liles , 945 F.2d at 340 ( “ O n e of the f unctions o f [ ] a court-appointed
psy c h iatric e xpert, theref ore, is to assist the d e f

e n s e i n determ ining whether an insanity def ense is viable or warranted under the circum stances o f a p articular case.” ( citing Ake , 470 U.S. at 82)). ¶53. P a r k e r questioned his own sanity and thus provided the trial court am p le reason t o require a m ental h ealth e xam ination by a court-appointed prof essional in accord a n c e w i t h
Ake

. For these reasons, I dissent a nd would reverse Parker’s conviction a n d s e n t e n ce and would rem and the case to the Forrest County Circuit Court f

or a new trial. KING, P.J., JOINS THIS OPINION

.

2 8