IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-01481-SCT ANTHONY

CARR

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/25/2017 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: ATTORNEYS FOR APPELLANT: QUITMAN COUNTY CIRCUIT COURT OFFICE OF CAPITAL POST-CONVICTION BY: ALEXANDER KASSOFF ATTORNEYS FOR APPELLEE: JAMILA ALEXANDER OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS LADONNA C. HOLLAND NATURE OF THE CASE: CIVIL-POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/06/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. The United States Suprem e Court has held that the Eighth Am endm e nt to the United States Constitution prohibits the execution of intellectually d isabled p ersons. O n Septem ber 20, 2 017, the C ircuit Court of Quitm an County denied Anthony C arr’s petition f or postconviction relief (“PCR”), f inding that Carr did not prove that he was intellectually disabled. Carr appealed the trial court’s decision. W e af f irm

.FACTS AND PROCEDURAL HISTORY

¶2. Anthony Carr was convicted of f our counts of capital m

urder a nd sentenced to death f or eac h

. C

a r r v . State , 655 So. 2d 824, 830 (Miss. 1995) (“ Carr I ”). 1 I n Carr I , we af f irm ed Carr’s conviction. Id. at 858. ¶3. In 2004, we granted Carr l eave to proceed i n the circuit court on h is PCR claim that h e i s intellectually disabled and, thus, ineligible f or the death penalty under Atkins v. V irginia

. 2 Carr v. State , 873 So. 2d 991 (Miss. 2 0 0 4 ) ( “ C a r r II ”). The trial c ourt later denied Carr’s petition f

or PCR ( the “original order”), and Carr appealed. Carr v . State , 196 So. 3d 926 (Miss. 2016) (“ Carr III ”). ¶4. In C

arr III , we reversed and rem anded with directions f or the trial court to m ake “new f actual f i ndings apply i ng the correct legal s tandard.” Id. at 944. Following the Carr III decision, the tr ial court entered a revised order, again deny i ng Carr’s petition f or PCR (the “revised order”). T he trial court entered the revised order m o re than a y ear af ter rem and. In the interim , the trial court d id not hold an additional hearing, and the parties d id not request

one. Carr tim ely

appealed. 3

1 T h e f acts su rro u n d in g C arr’s u n d e rly in g o f f en se h a v e b een d iscu ssed at len g th p rev io u sly

b y th e C o u rt an d d o n o t p ertain to th e i ssu es o n ap p eal.

2 Atkins v. V

irginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).

3 Carr also f

iled a m otion f

or reconsideration. Although i t d o e s not appear that the m otion f o r reconsideration was ever ruled on, we conclude that the instant a ppeal is proper. Under Rule 6(b) of the Mississippi Rules of Civil Procedure, the tim e period to f ile m otions under Rule 5 2(b) c annot be e xtended. Miss. R. Civ. P. 6(b), 5 2(b). Thus, Carr’s m otion f or reconsideration was untim ely f iled, and, with no argum e nts m ade by either party on appeal about it, we conclude that the m otion f or reconsideration has been abandoned. 2STATEMENT OF ISSUES

¶5. On appeal, C arr raises three issues. T he Sta t e r a i s e s f o u r i s s u e s . For the sake of clarity , we restate the issues as f ollows:
I. W hether the trial court e r r e d b y f ailing to hold a new evidentiary hearing.
II. W hether the trial court erred in h oldi n g t h a t Carr did n ot prove b y a preponderance of the evidence that he suf f ers f rom an intellectual disability that m anif

ested prior to age eighteen. STANDARD OF REVIEW ¶6. The s tandard of review in the i nstant appeal is m ixed. “ [ W ]here questions of law are rai s e d t he applicable standard of review is de novo .” Brown v. State , 731 S o. 2d 595, 598 ( M iss. 1998) (citing Bank of Miss. v . S. Mem ’l Park, Inc. , 677 So. 2d 186, 19 1 ( M i s s . 1996)). W hen addressing whether the trial c ourt and the Court in Carr III applied the correct legal standard, a de novo standard is applied. On the other hand, the Court “ will not reverse the f actual f indings of the trial court unless they are clearly e rroneous.” Walker v. State , 230 So. 3d 703, 704 (Miss. 2017) (citing Brown v. State , 731 So. 2d 595, 598 (Miss. 1999). ANALYSIS I. Whether the trial c ourt erred by failing to hold a new e videntiary hearing. ¶7. Carr argues that the trial c ourt erred by f ailing to h old a new evidentiary hearing. In support of his a rgum ents, Carr presents evidence gathered f r om a new investigation that he would like to present in a n ew evidentiary hearing, inc l u d i n g expert evidence f rom Dr. W i lliam K allm an. Carr m a intains that the n ew evidence d oes not constitute new argum ents.

3Carr argues that the United States Suprem e Court’s decision in Moore v. Texas , 137 S. Ct.

1039, 197 L. Ed. 2d 416 (2017) (“ Moore I ”), an d t h e C o u r t ’ s decision in State v. Russell , 238 So. 3d 1105 (Miss. 2017), have “wrought signif icant changes to Atkins jurisprudence,” that “[ t]he 2013 hearing was conducted under a dif f erent regim e” and that Carr is theref ore entitled to a new hearing. ¶8. In response, the State a rgues that Carr waived the issue b y not r a i s i n g i t in the trial

court. The State asser t s that Carr’s argum ent is an attem pt to r elitigate the entirety of his intellectual-disability claim

. Further, the State argues that Carr is procedurally l im ited to the issues that were the subject of Carr III ’s rem a nd. ¶9. Mississippi Code Section 99-39-21 addresses waiver in PCR proceedings. It reads, (1) Failure by a p risoner t o raise objections, def enses, claim s, q

uestions, issues or errors either in f

act o r law which w e r e capable of determ ination at trial and/or o n d irect appeal, regardless of w hether such are b ased on the laws and the Constitution of the s t ate of M ississippi or of t h e U nited S tates, shall constitute a w aiver thereof and shall be procedurally barred, but the court m ay upon a showing of cause and actual prejudice grant relief f rom the waiver. (2) The l itigation of a f

actual i ssue at trial and on direct appe a l o f a s p ecif ic state or f ederal legal theory or theories shall c onstitute a waiver of a l l o ther state or f e deral l egal theories which could have b een raised under said f actual issue; and any relief sought under this article upon said f acts but upon dif

f erent state or f ederal l egal theories shall be procedurally barred absent a showing of cause and actual prejudice. (3) The doctrine of res j udicata shall apply to all issues, both f actual and l egal, decided at trial and on direct appeal. (4) The term “cause” a s used in this se ction shall be d ef ined and lim ited to those cases where the legal f oundation upon w hich the claim f or r elief is based could not h ave been discovered with reasonable diligence at the tim e of trial or direct appeal.

4(5) The ter m “actual prejudice” as used in this section shall be def ined and limited t o those errors which would h ave actually adversely af f ected the ultim ate outcom e of

the conviction or sentence. (6) The burden is upon the prisoner to allege i n his m otion such f acts as are necessary to dem onstrate that his claim s are n ot procedurally barred u nder this section. Miss. Code. Ann. § 99-39-21 (Rev. 2015). ¶10. The Court analy

zes this issue in three parts. A. Carr did not request a n ew hearing and thus w aived the issue on appeal. ¶11. Carr f

ailed to t im ely request a new hearing i n a m otion bef ore the trial court af

ter Carr
I I I

. F urther, Carr f

ailed to tim ely raise the need f or a new h earing in a m oti o n f o r reconsideration af

ter the trial court entered its revised order. 4 Theref ore, Carr has w aived the issue on appeal under Mississippi Code Section 99-39-21(1). See Miss. Code Ann. § 99-39- 2 1 ( 1 ) ( R ev. 2015). W e next consider whether Carr has shown the requisite “cause” a n d “actual prejudice” necessary to overcom e the waiver.
B. Carr has not shown “cause” a n d “actual prejudice” to overcome the waiver. ¶12. Section 99-39-21(1) requires “a showing of cause and a ctual prejudice.” Miss. Code Ann. § 99-39-21(1) (em

phasis added). C arr claim s that caselaw h anded down since the 2013 hearing and original order has signif icantly changed the landscape of Atkins jurisprudence, thus requiring a new hearing. W e address only the requirem ent of

“actual prejudice,” as it is dispositive.

4 A g ain , w h ile C arr d id req u est a n ew h earin g in h is m o tio n f o r reco n sid e ratio n af

ter th e trial co u rt en t ered its rev ised o rd er, th e m o tio n f o r reco n sid eratio n w as n o t tim ely

. 5¶13. Hall v. Florida was decided i n May 2014. Hall v . Florida, 5 72 U .S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014). In Hall , the United States Suprem e Court reevaluated its Atkins jurisprudence and held that Florida’s bright-line IQ score cutof f “ bars consideration of evidence that m

ust be considered in determ ining w hether a def endant in a capital case has intellectual disability .” Id. a t 723. Hall m ade clear that an interrelated analy sis was required: “when a def

endant’s IQ test score f

alls within the test’s acknowledged and i nherent m argin of error, the def

e ndant m ust be able to p resent additional evidence o f intellectual disability , including testim ony

regarding adaptive def

icits.” Id. ¶14. Here, in its revised order, the trial court noted that Carr’s IQ scores—ranging f rom 70

to 75 —“all f

a ll on or within the m argin of e r ror applicable to the test.” T he trial court then analy zed the testim ony of m

ultiple experts a n d witnesses a bout Carr’s adaptive d ef

icits. In

sum , the trial court c onducted a n i n t e rrelated analy sis between Carr’s I Q score and his adaptive-skill def

i cits. An interrelated analy sis i s what Hall requires. Id. Moreover, the trial

court exam ined and relied on o ur opinion in Carr III , which discusses Hall at length. Carr
III , 196 So. 3d at 933–35. Thus, the trial court com plied with Hall , and Carr is n ot entitled to a new hearing. ¶15. Moore I was decided in March 2017. Moore I , 137 S

. Ct. at 1 039. Moore I e xam ined the Texas Court of Crim inal Appeals’ use of certain f a ctors in its Atkins determ i nations. Id.

at 1 044. The Moore I Court reiterated that “adjudications o f intellectual disability should be ‘inf orm ed by the views of m edical experts’” and that the f actors used by the Texas Court

6of Crim inal Appeals “ ‘creat[ e] an unacceptable r isk that persons w ith intellectual disability

will be executed.’” Id. (alterations in original) (quoting H all , 572 U.S. at 721, 704). ¶16. Moore I

reiterated Atkins a nd did not alter the A tkins landscape. Carr has f ailed to dem onstrate predudice under Moore I

. 5 ¶17. The Court d ecided R u s s e l l i n D e c e mb e r 2 0 17. Russell , 238 So. 3d at 1105. In Russell , the Court reversed the trial court and held that the State’s request to e valuate Russell bef ore an Atkins hearing should have been g ranted. Id. at 1111. The Russell Court noted that “our Atkin s procedures clearly contem plate the State responding t o the petitioner’s evidence with its o wn e xpert opinion.” Id. Of particular im portance in Russell was that the State was n ot denied “ a second, duplicate Atkins evaluation,” but “was requesting the Atkins evaluation.” Id. at 1110 (em phasis in original). ¶18. Here, Carr does not claim that he was denied an A t kins evaluation. F urther, Carr was evaluated by two experts (including Carr’s expert, Dr. Gerald O’Brien), and the trial court

exam ined the t estim ony o f each expert. Because, unlike in R ussell , Carr was evaluated by his o wn expert and was a ble t o p r esent testim ony , Carr’s reliance on Russell f ails to show actual prejudice.

5 F o llo w in g th e 2 0 1 7 r em an d to th e T ex as C o u r t o f C r i mi n al A p p eals, th e U n i ted S tates S u p rem e C o u rt h as rev iew ed an d clarif ied M o o re I

. M o o re v. T ex a s , 1 3 9 S

. C t. 6 6 6 , 6 7 0 -7 2 (2 0 1 9 ) (“

M o o re I I ” ). T h e M

o o re I C o u rt h ad p ro v id ed th at “ [ c] lin ician s . . . cau tio n ag ain st relian ce o n ad ap tiv e stren g th s d ev elo p ed ‘in a co n tro lled settin g .’” M o o re I , 1 3 7 S

. C t

. at 1 0 5 0 (q u o tin g D ia g n o stic a n d S ta tistica l M a n u a l o f M e n ta l D iso r d e r

s 3 8 (5 th ed

. 2 0 1 3 )). T h e M

o o re I I C o u rt h as reiterated its w arn i n g f r o m M o o re I , sp ecif ically p o in tin g o u t th at trial co u r

ts sh o u ld r ely o n ad ap tiv e-sk ill d eficits rath er th an ad ap tiv e-sk ill stren g th s . M o o re II , 1 3 9 S

. C t. at 6 7 0

- 7 2

. M o o re II ’s reiteratio n d o es n o t ch an g e th e an aly sis h ere. 7¶19. On a f inal note, Carr analogizes the case to T hom pson v. State , 208 So. 3d 49 (Fla. 2016). Even though Thom p son is not binding precedent, we address it here f or the sake of conclusiveness. I n Thom p son , the Suprem e Court of F lorida rem anded the case f or a new evidentiary hearing, stating that “Thom pson’s previous hearing on intellectual disability was tainted by the b r ight-line cutof f of 70 f o r IQ scores” that was later denounced b y H all

. Id. at 58 (citing Hall , 572 U.S. at 724). ¶20. In Carr III

, we recognized the unconstitutionality of the bright-line IQ score cutof f and r em anded f

or an interrelated analy sis between the signif icantly subaverage intellectual f unction and the signif

icant def icits in adaptive behavior. Carr III , 196 So. 3d at 933–34.
In the original order, the trial court considered the second prong and concluded that Carr had adaptive d ef

icits in two skill areas. However, the trial c ourt then f ailed to perf

orm an interrelated analy sis b etween t h e f i r s t and second prong. Carr III ’s rem and instructions, theref ore, were properly aim e d at providing clarif ication of i t s f

i n d i n gs. Further, in its revised order, the trial court explicitly noted its ad h e r e n ce t o Carr III and at no point indicated it was em

p loy ing a strict score c utof f

. Thom pson is not analogous to the f acts at hand and does not support Carr’s assertion of actual prejudice. ¶21. As stated above, Section 99-39-21(1) requ i r e s “ a s h o w i n g o f c a u s e a n d actual prejudice.” Miss. C ode A nn. § 99-39-21(1) (em phasis added). Considering the recent Atkins decisions, Carr is unable to establish actual prejudice. W ithout actual prejudice, the Court need not address cause. Carr, theref ore, cannot overcom e that he waived a new hearing. C. Carr III did not require a new evidentiary hearing on remand.

8¶22. Carr III held that “a legal standard that views a f ull-scale I Q score as dispositive of intellectual d isability without p e rf orm ing and b alancing an interrelated analy sis of adaptive f unctioning, runs a f

o u l of the Eighth Am endm ent.” Carr III , 196 So. 3d at 9 43. Carr III stated that reversal and rem and was necessary

to provide the circuit j udge an opportunity to consider w hether Carr’s adaptive fu n c tioning def

icits—which the circuit judge f ound to exist—are s o s e v e r e t h a t C a rr should be ruled intellectually disabled through a n interrelated analy s i s with his IQ scores, which the circuit judge f ound to be between 70 and 75. Carr III , 196 So. 3 d at 944 (f

ootnote om itted). Nothing in Carr III m andates a new hearing. Instead, the C ourt exam ined the law, including Hall , a nd directed the trial court to m ake new f actual f indings af ter perf orm i ng the requisite interrelated analy sis. ¶23. Carr also argues that the Carr I II Court c r eated a new Atkins standard. Carr argues that, by rem a nding the c ase in 2016 “ to provide the circuit judge an opportunity to consider whether C arr’s adaptive f

unctioning def

icits—which the circuit judge f o und to exist—are so

severe that C arr should be ruled intellectually disabled through an interrelated analy sis with his I Q scores,” the Court created a new standard f or determ i ning whether a def endant has an intellectual disability

. Id. at 943 (em phasis added). ¶24. I n Hall , the United States Suprem e Court approvingly cited DSM-5 and quoted the f ollowing language: “[ A ] p erson w ith an I Q score above 70 m ay h ave such severe adaptive behavior problem s . . . that the person’s actual f un c t i o n i n g i s com

parable to that of individuals with a lower IQ s core.” Hall , 572 U.S. at 712 ( alteration in o riginal) (em phasis added) (quoting Diagnostic and Statistical Manual of Mental D isorders 37 (5th ed. 2013)). The rem a n d order f

rom C arr III does not conf

lict with the language cited appr o v i n g l y in

9Hall

. F urther, no m aterial dif f e rence exists between Hall ’s instruction to determ ine whether

a d ef endant has “such sever e ” a d a p t i ve-f unctioning def

icits as to render him or her intellectually d isabled through an interrelated a n a l y s i s a n d C a r r I I I ’ s instruction to determ ine whether a def

endant’s adaptive-f

u nctioning def

icits a r e “so severe” to s upport a f inding of intellectual d isability

. Hall and Carr III theref ore provide the s am e or substantially sim ilar instruction. W e see no reason f or a new evidentiary

hearing at this juncture.
II. Whether the t rial court erred i n holding that Carr did not p rove by a preponderance of the evidence that he suffers f rom an intellectual disability that m anifested prior to age eighteen. ¶25. The Court has recognized that Atkins exem pts all intellectually disabled p eople f rom execution, even those people who are m inim ally intellectually disabled. Chase v. State , 873 So. 2d 1013, 1026 (Miss. 2004) (“ Chase III ”) (citing Atkins , 536 U.S. at 321). The Court has also recognized that m ild intellectual di s a b i l i t y “ m ay , u nder certain conditions, be present in an individual with an IQ of up to 75.” Chase v. State , 171 So. 3d 463, 471 (Miss. 2015) (“ Chase V

”) (quoting Chase III

, 873 So. 2d at 1028 n.18). Further, in 2015, f ollowing the Suprem e Court’s guidance in Hall and accounting f o r “the m edical com m

unity ’s evolving understanding of intellectu a l d i s a bility and i ts diagnosis,” Chase V adopted “the 2010 [ Am erican Association on Intellectual and D evelopm ental D isabilit y ( A A I DD)] and 2013 [A m e r i c a n Psy chiatric Association (APA)] d ef initions of intellectua l d i s a b i l i t y a s a p p r o p r i a t e f or u se to d eterm ine intellectual disability i n t h e c o u r ts of this state in addition to the def initions prom

ulgated in Atkins and Chase .” Chase V , 1 71 So. 3d at 471; s ee also Hall , 5 7 2 U.S. at 710 (“In determ ining who q ualif ies a s intellectually disabled, it i s p r o p e r t o consult the m edical com m u nity ’s opinions.”). In C hase V , we noted that “[ t]h e n ew 1 0def

initions h ave no t ma t e r i ally altered the diagnosis of intellectual d isability but have provided new term inology

. ” Id. (citing United States v . William s , 1 F

. Supp. 3d 1124, 1146 (D. Haw. 2014)). ¶26. The AAIDD articulates the skills dom ains as f ollows: The c o nceptual skills dom ain includes “language; reading and writing; and m oney , tim e , and num

ber co n c e p t s.” The social skills dom ain includes “interp e r s o n a l s k i l l s , s o c i al responsibility , self -esteem , gullibility , n aïveté ( i.e., wariness), f

ollows rules/obey s laws, avoids b eing victim ized, and social problem solving.” The practical skills d om ain i ncludes “acti v i t i es of daily living (personal care), occupational skills, use of m oney , saf ety , health care, travel/transportation, schedules/routines, and use of the telephone.” Chase V , 171 So. 3d at 469 (citations om itted). The APA states, The conceptual (

a cademic) dom ain involves com petence in m em ory , l a n g u a g e , reading, writing, m ath reasoning, acqui s i t i o n o f p r a c t i c a l k n o w l e d g e , problem s solving, and judgm ent in novel situations, am o ng others. The social domain involves aware n e s s of others’ thoughts, f eelings, a nd experiences; em pathy ; interpersonal com m unication skills; f

riendship abilities; and social judgm ent, am ong others. The practical domain involves lea rning and self

m anagem ent across lif

e settings, including personal care, job responsibilities, m oney m a nagem ent, recreation, s elf -m a n agem ent of behavior, and school and work task organization, am ong others. Chase V , 171 S o . 3 d at 469–70 (quoting Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013)). W hile som e dif f erences exist in the standards articulated by the AAIDD and APA, ‘ “ the exact wording of the

. . . standards ‘m akes little s u bstantive dif f erence in the context of Atkins ,’” since all “are sim i lar and require the sam e three basic elem ents

. . . signif

icantly subaverage intellectual f unctioning, signif

icant def icits in adaptive behavior, and m anif

estation b e f

ore a ge eighteen.” Chase V , 171 So. 3 d at 470 (quoting

1 1William s , 1 F. Supp. 3 d a t 1146). M o r e o v e r , C h a se V p rovided specif

ic guidance on Mississippi’s application of “signif icant def icits in adaptive behavior.” Id. W e stated, For the diagnosis of

intellectual disability , signif icant lim itations in adaptive behavior s h o u ld be established through the use of standardized m easures norm ed on the general population, i n c l u ding people with d isabilities and people without d i s a bilities. On these s tandardized m easures, signif icant lim itations in adaptive behavior are operationally def ined as perf

orm ance that is approxim ately two standard deviations below the m ean of either (a) one of the f ollowing three ty

pes of adaptive behavior: c onceptual, social, o r practical or (b) a n overall score on a standardized m easure of conceptual, social, and practical skills. The assessm e n t i n strum ent’s standard error of m easurem ent m ust be considered when interpreting the individual’s obtained scores. Chase V , 171 So. 3d at 486 (quoting I ntellectual Disability: Definition, Classification, and Systems of Support 43 (11th ed. 2010)). ¶27. In Carr I

II , we f ollowed Chase V

’ s guidance, reasserting Mississippi’s a doption of both the def

initions f rom the AAIDD and the APA

. Carr III , 196 So. 3d at 933 (citing Chase V , 171 S o. 3d at 471). Further, w e r ecognized that “signif icant def icits in one of the three adaptive-f

unctioning dom ains are required,” w h i ch include the conceptual-skills dom ain, the social-skills dom ain, and the practical-skills d om a i n. Id. at 933 (citing Chase
V , 171 So. 3d at 469). ¶28. Here, th e t r i a l c o u r t r e v iewed our Carr I II decision and restated the c orrect legal standard addressing the three prongs of the test. See Carr III , 196 So. 3d at 933. Further, the trial court correctly noted t h a t “ [ t ] h e r e is s om e am ount of interplay between two of the criteria: ( a) signif

icantly sub-average intellectual f u nction, and (b) signif

icant d e f icits in adaptive behavior.” The trial court also n oted that “ a lthough a n i ndividual m ay possess an IQ above what is norm ally considered appropriate f or a f inding o f i ntellectual disability , the

1 2def

icits in such an i n d i v idual’s adaptive behavior m ight be so severe that a f inding [ of

] i n t e llectual disability m a y still be m ade or even com pelled.” W e review the tria l c o u r t ’ s analy sis of

each prong of

the A tkins test separately

. 1. Significantly subaverage intellectual function ¶29. The trial court analyzed the f irst prong as f

ollows: [ T]he three IQ tests adm inistered t o Carr r esulted in IQ determ inations of 70, 72, and 75. T hese scores all f all on or within the m argin o f e r ror applicable to the test. They are n o t s o d r a ma t ically low or high to b e s trongly suggestive either way on the issue of intellectual disability

. This is signif icant because, “when a def

endant’s IQ test s c o r e f

alls within the test’s acknowledged and inheren t ma r gin of error, the def endant m ust be able to present additional evidence of intellectual disability . . . .” The trial court did not m ake a specif ic f inding as t o the existence of s ignif icantly s u baverage intellectual f

unctioning at this juncture in its analy sis, because doing so was not necessary

. The o nly f

actual f inding the trial court needed to m ake—which i t did i n light of the evidence presented—was tha t t h e “ s cores all f all on or within the m argin of error applicable to the

t e s t

. ” Having done so, the trial court properly utilized the c orrect legal standard, a n d w e
cannot say that its f

i ndings am ounted to clear error. See Hall , 572 U.S. at 723; s ee a lso Carr
III , 196 So. 3d at 934.

2. Significant deficits in adaptive behavior ¶30. The trial court correctly described each of the three dom ains: conceptual, s ocial and practical and recognized that “[ s]ignif icant def icits i n o ne of the dom a ins is required.” The trial court then e xam ined the testim ony of three dif f erent witnesses to deter mi n e whether Carr exhibited signif

icant d ef icits in adaptive behavior. Specif ically , the trial c ourt reviewed

1 3the testim ony of Dr. Gilbert Macvaugh, the State’s expert witness, Dr. O’Brien, C arr’s expert

witness and Johnnie Chaney , a childhood associate of Carr’s. ¶31. D i s c u ssing adaptive-def icit testing, the trial court stated that, “[ a]ccordin g t o D r . Macvaugh, such tests w ere not de s i g n e d t o assess individuals who have been incarcerated in a heavily structured environm ent such as exists in jails/prison.” The trial court noted that “[ u]ltim ately , Macvaugh agreed that Carr exhibited d e f icits in the areas of f

unctional academ ics, e m

ploy m ent, and perhaps social.” The trial c ourt also considered the testim oney of Carr’s e xpert stating, “Dr. O’Brien f ound def icits in all three dom ains and in 8 of the 10 adaptive skills” a nd explicitly “ addressed the areas of c om m unication, self

-direction, leisure, social, com m

unity use and work and f

ound def icits in a ll such areas.” F urther, the trial court noted J ohnnie Chaney ’s testim o ny but f ound it to be a “m ixed bag,” ultim ately determ ining that “the issue cam e down m o r e to the testim ony and credibility o f the exper t s . ” I t t h e n f ound that Carr had not shown signif i cant adaptive-skill def

icits. ¶32. Carr argues that the trial court’s original order held that Carr had at least two of the adaptive-f

unctioning def

icits. C arr also argues that the “so severe” language h as changed the standard to require “super def icits” in adaptive f

unctioning. W e disagree. ¶33. F i r s t , a s c o n c l uded above, Carr III ’s “so severe” language does n ot create a new standard requiring “super d e f icits.” See Hall , 572 U.S. at 712 (alteration in original) (“[ A]
person with an IQ score a

bove 70 m ay have such severe adaptive behavior problem s . . . that the person’s actual f

unctioning is com

parable t o that of i ndividuals with a lower IQ score.” (quoting Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013))).

1 4¶34. Second, while the trial court did originally f ind that “Carr has d em onstrated adaptive skill def icits in at least two (2 ) o f t h e a d a p t i ve skill areas,” the trial court did not f ind significant adaptive-skill def icits. Under Chase V

, adaptive-skill def

icits require a showing of “ signif icant lim itations i n adaptive behavior” that “ s hould be e stablished through the use of standardized m easures n o rm ed on the general po p u l a t i o n, including people with disabilities a nd people without disabilities.” Chase V , 171 So. 3 d at 486 (quoting Intellectual Disability: Definition, C lassification, and Systems of Support 4 3 ( 1 1th ed. 2010)). Specif ically , C hase V provided that the “signif icant l im itations in adaptive b ehavior are operationally def

i ned as perf

orm a nce that i s approxim atel y two standard deviations below the m ean . . . .” Id. (quoting Intellectual Disability: Definition, Classification, and Systems of Support

43 (11th ed. 2010)). 6 ¶35. The Chase V Court also considered that none of the ex p e r t s h a d p e r f o r me d the adaptive-def

icits analy s is properly , noting that Dr. Macvaugh, who was o ne of the experts, had written an article on the im portance of using norm ed data. Id. ( citing Macvaugh, G.S., & C unningham , M.D., Atkins v. Virginia: I mplications and R ecommendations f or Forensic Practice, 37 J. of P sy chiatry & the Law 131, 168 (2009)). T h e Chase V Court concluded that because the burden rested on Chase, the trial court’s f inding that Chase had f

ailed to prove intellectual disability did not constitute clear error. C hase V , 171 So. 3d at 4 86. Carr III did

6 T h e M o o re II d ecisio n also d escrib ed th e clin i ca l a p p r o a c h t o d eterm in in g th e s i g n if i can ce o f ad ap tiv e d ef

icits: “clin ician s lo o k t o w h eth er an in d iv id u al’s ad ap t i v e p erf o r ma n c e f

alls tw o o r m o re stan d ard d e v iatio n s b elo w th e m ean i n an y o f th e th ree ad ap tiv e sk ill sets (co n c ep tu al, s o cial, an d p ractical).” M o o r e II , 1 3 9 S

. C t

. at 6 6 8 (q u o tin g M o o re I , 1 3 7 S . C t. at 1 0 4 6 ). 1 5not review C hase V ’s em phasis on norm ed data. H owever, in requiring the trial court “to consider whether Carr’s adaptive f unctioning def

icits—which t h e circuit judge f ound to exist—are so s evere that Carr should be ruled intellectually disabled through an interrelated analy sis w ith his IQ s cores, which the circuit judge f ound to b e between 70 a n d 7 5 , ” Carr
III supported Chase V

’s requirem ent. Carr III

, 196 So. 3d at 943-44 (f

ootnote om itted). ¶36. In s um , the trial court d id a s Carr III instructed. In weighing the testim ony , the trial

court considered Carr’s adaptive def icits in an i nterrelated analy sis with Carr’s IQ s cores and concluded th a t t h e def

icits were not signif

icant in n ature. Further, because no expert

em ploy e d the use of norm ed data, we conclude, as we did in Chase V , that the trial court’s rejecting Dr. O’Brien’s testim ony and f inding that Carr had not proved i ntellectual disability by preponderance of

the evidence was not clear error. 3. Manifestation before age 18 ¶37. Carr argues that the tria l c o u r t has still f ailed t o issue a f

i nding on the third prong. Und e r the trial c ourt’s revised analy sis and f indings on the second prong, analy sis on the third prong was not required. Hall , 572 U.S. at 723. However, the trial court did properly analy ze the third prong. Theref ore, we disagree. ¶38. In Carr III

, we stated, “Becaus e t h e c i r c u i t j udge f ound that adaptive f

u nctioning def icits existed based on evidence which largely f ocused on Carr’s academ ic perf orm ance bef ore age eighteen, we i n s t r u c t the trial court t o review its f indings o n this prong upon

rem and.” Carr I

II , 196 So. 3d at 943 n.10. The trial court considered the credibility of the witnesses, their testim ony a nd the evidence regarding Carr’s schooling and determ ined that

1 6“ C a r r f

ailed t o show by a preponderance of the evidence that he was suf f eri n g f r o m a n intellectual disability

that had m anif

ested itself

prior to the age of

18.” ¶39. Just a s Carr III directed, the trial court considered and weighed all o f the e v i d e n ce presented and m ade a reasoned f inding that Carr had f

ailed to m eet his burden. Specif ically , the trial court did n ot i gnore a ny of the testim ony but weighed it. See B rown v . State , 168 So. 3d 884, 894 (Miss. 2015) (distinguishing between a trial judge’s weighing t estim ony and his

not ignoring it). T hus, because we “give def erence to the trial judge as the ultim ate f inder of f act,” we do “not r eweigh th e e v i d e n c e on appeal,” and we conclude that n o c lear error exists. Id. CONCLUSION ¶40. C a r r ’ s a r g u me n t f or a new hearing is waived on a p peal and, notwithstanding the waiver, is without m e rit. Further, the trial court’s rejecting Dr. O’Brien ’s t estim ony and f inding that Carr had not proved intellectual disability b y preponderance of the e v idence was
not clear error. Finally , the trial court properly revisited the third prong of the Atkins test as required by the rem and order in C arr III

. Theref ore, we af f i rm the decision of the trial court holding that Carr is not intellectually disabled. ¶41. AFFIRMED. RANDOLPH, C.J ., COLEMAN, MAX WELL, BEAM AND GRIFFIS, JJ., CONCUR. KING, P.J., D ISS E N TS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J. KING, PRESIDING JUSTICE, DISSENTING: ¶42. Consider i n g t h e t o t a l ity of the evidence p resented, I would hold that the trial court clearly erred in its f

inding that Carr f

ailed to prove by a preponderance of the e v idence that 1 7he was intellectually disabled w ithin the param eters of Atkins v. V i rginia , 536 U.S. 304, 122 S. C t. 2242, 153 L. Ed. 2d 335 (2002). Accordingly , I dissent f rom the m ajority ’s af

f irm ance of the trial court’s d ecision a n d w o u l d reverse the trial court’s ruling a n d r ender j udgm ent in f a vor of Carr. ¶43. The U nited States Sup r e me C o u rt, in Atkins , c oncluded that, construing the Eighth
Am endm ent “in the l igh t o f our ‘evolving standards of decency ,’” the capital punishm ent of intellec t u a lly d isabled of f enders is unconstitutional and constitutes cruel and unusual punishm ent. Id. at 3 21 (quoting Ford v. Wainwright , 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986)). As the m ajority states, the Atkins decision exem p ts even those who are minimally intellectually disabled f rom e xecution. Chase v

. State , 171 So. 3d 463, 467 (Miss. 2015) ( Chase V

) ( em phasis added) (quoting Chase v . S tate , 873 So. 2d 1013, 1026 (Miss. 2004) ( Chase I

II ) ). Intellectual Disability is “characterized by signif icant lim itations in both intellectual f

unctioning a nd in adaptive behavior as expressed in conceptual, s ocial, and practical a daptiv e s k i l l s . ” C hase V , 171 S o. 3d at 469 (quoting Intellectual D isability: Definition, Classification, and Systems of Support 1 (11th ed. 2010)). ¶44. At the conclusion of an Atkins hearing, th e trial court m ust determ ine “whether the def end a n t h as e stablished, by a preponderance of the evidence, that the def endant” is intellectu a l l y d isabled. Chase III , 873 So. 2d at 1029. “Preponderance of the evidence in Mississippi, as elsewhere, sim ply m eans that evidence which shows that the f act t o be proved is m ore probable than n o t

. ” G a r d n e r v. Wilkinson , 643 F.2d 1135, 1137 (5th Cir. 1981). “This burden s im

p ly requires the greater or m ore convincing evidence. The burden is f ar less than c lear a n d c o n vincing evidence or bey ond a reasonable doubt.” C ity of Meridian v. 1 8Hodge , 632 So. 2d 1309, 1314 (Miss. 1994) (Sm ith, J., dissenting). Due to the irreversible

nature of capital punishm ent, “[ t]horoughness and i ntensity of review are heightened in cases where the death p e n a lty has been im posed.” Irving v. State , 3 61 So. 2d 1360, 1363 (Miss. 1978) (citing Augustine v. State , 201 Miss. 731, 29 So. 2d 454, 454 (1947)).
I. Intellectual Functioning ¶45. Subaverage intellectual f unctioning i s m easured b y intelligence quotient ( IQ). Chase
III , 873 So. 2d a t 1021. “ [ I]ntellectual dis a b i lity ‘m a y . . . be present in an individual with

an IQ of up to 7 5.’” Chase V , 171 So. 3d at 4 6 8 ( q u o t i n g C h a s e III , 8 73 So. 2d at 1028 n.18). Here, C arr established that h is IQ scores f ell w i t h in the range that can indicate intellectual disability

. Dr. W illiam Kallm an f irst evaluated Carr f

or i ntellectual disability in 1990, w hen Carr was twenty

- f ive y ears old. Dr. Kallm an f ound that Carr had a perf

orm ance IQ of 63 and a verbal IQ of 72, f or a Full Scale IQ of 70. Dr. Kallm a n stated that C arr’s score

was i n the m ildly intellectually disabled range on the W echsler A dult I n t elligence S c a le–Revised (W AIS-R). D r. K allm an concluded that Carr w a s f unctioning in the m ildly intellectually disabled r ange in intelligence and that Carr’s “perf orm ance on the IQ test and the neuropsy chological screening instrum ents are all indicative of som e one who is f unctioning at a relatively low level c ognitively .” He f ound that “there were no signs of

m al i n g e r i n g o r intentional ef f orts to distort the data” and stated that Carr’s def icits were spread across all areas and were nonspecif ic. ¶46. The Forensic Unit at Mississippi State Hospital ( MSH) evaluated Carr in 2009, when he was f orty -f o u r y ears old, a nd adm inistered two IQ tests. T he MSH report, signed by Dr. Gilbert S

. Macvaugh III, stated that Carr a chieved a Full Scale IQ o f 72 on the W AIS-IV. On 1 9the Stanf

ord-Binet Intelligence Scales, Fif th E dition (SB5), Carr scored a F ull S cale IQ of
75. Like Dr. Kallm an, the M SH report f ound that Carr did n o t a p p e a r t o be m alingering cognitive def

icits. D r. Macvaugh also stated that Carr’s IQ scores would have been even lower had they b e en adjusted downward due to the Fly nn Ef f e ct. The Fly

nn E f f ec t “ i s a phenom enon positing that, over tim e, st a n d ardized IQ t est s cores tend to i ncrease with the
age of the test without a corresponding increase in a c t u a l i ntelligence i n the general population.” Thorson v. State , 76 So. 3d 667, 672 (Miss. 2 011) (quoting Wiley v. Epps , 625 F.3d 199, 203 n.1 (5th C ir. 2010)). The MSH report concluded that Carr’s test scores did not rule out the possibility of

a diagnosis of

m ild intellectual disability

. In addition, Dr. Gerald O’Brien, a licensed psy chologist, issued a report on April 6, 2012, in which he stated, with

a r e a s o n a ble degree o f c ertainty , that Carr m et the intellectual-f unctioning prong o f intellectual disability

. ¶47. Each of Carr’s IQ scores f ell within the range that can indicate intellectual disability

. Because Carr p roved by a preponderance of the e vidence that his IQ wa s 7 5 o r b e l o w, the trial court m

ust address the second Atkins prong—signif icant def icits i n a daptive f unctioning. Thorson , 76 So. 3d at 683.
II. Significant Lim itations in Adaptive Behavior ¶48. The Am erican Association on Intellectual and Developm ental Disability (AAIDD) def ines each doma i n o f adaptive f unctioning. T he conceptual skills dom ain includes “language; reading and w riting; an d mo n ey , tim e, a nd num ber concepts.” T he social skills dom ain includes “ interpersonal s k i l l s , social responsibility , self

-esteem , g u llibility , n aïveté ( i.e., wariness), f ollows rules/ob e y s l aws, avoids being victim ized, and social problem solving.” The practical skills dom ain includes “activities of d aily living ( personal care), o ccupational skills, use of m oney , saf ety , h ealth care, travel/transportati o n , 2 0schedules/routines, and use of the telephone.” For a diagnosis of intellectual

disability , an indivi d u a l m ust have signif

icant d ef icits i n o ne o f the three adaptive f unctioning dom ains. Chase V , 171 S o. 3d at 469 ( citations om itted). I believe that Carr presented overwhelm ing evidence that he had signif icant def icits in several dom ains of adaptive f

unctioning. ¶49. Dr. O’Bri e n c o n c l u d e d t h a t C a r r w a s c o n s i dered t o be intellectually disabled consistent with both Atkins and Chase

. Dr. O’Brien f o u n d that Carr’s r eports indicated “signif icant def icits i n all three adaptiv e t y p e s o r d om ains def

ined by the AAIDD, and in eight of the ten i ncluded skill a reas. . . .” (Em phasis added.) Dr. O ’Brien stated that Carr’s def icit s were “in the conceptual d om ain (including com m unication, f

unctional academ ics, and self -direction), the social dom ain (including leisure a nd social skills), and the practical dom ain (including hom e l iving, health and saf ety , and self

- care).” In addition, the M S H report stated that Carr m ay have dem onstrated signif icant lim itations in at l east two areas of adaptive behavior bef

ore the age of

eighteen, f

u nctional academ ics and work. ¶50. I n t h e c o n c e ptual dom a in of adaptive def icits, com petence in reading, writing, and

m ath reasoning becom e probative. Dr. Victoria Swanson, a licensed psy chologist, evaluated Carr in 2010, when Carr was f orty -f our y ears old. Even a t age f orty -f our, Dr. Swanson f

ound that Carr was operating on a m ostly f ourth-grade level. C arr scored at a f o urth-gra d e level

on Brief Achievem e nt, B rief Reading, Brief M ath, a nd Academ ic Skills. Carr’s h ighest score was in Broad Reading and was at only a f if th-grade level. ¶51. Dr. Kallm an testif ied that Carr’s IQ and achievem ent testing indicated that he doesn’t have very good c ognitive s kills, he doesn’t u nderstand a whole lot of what goes on a round him , he doesn’t h ave a l ot of basic living skills, such as sim ply a rithm e tic and reading abilities, a nd

. . . W ell, this person would have 2 1great d i f f i c u l ty f unctioning independently in the world u nless i t was a f a irly sim ple task that d id not require a lot o f intellectual understanding and activity

. ¶52. Carr’s school r ecords also indicate signif icant def icits in f unctional academ ics. Carr f ailed the third, seventh, and ninth grades and dropped out of school at age seventeen af ter his s econd attem

pt at n i nth grade. In addition, his grades w ere poor throughout the whole of his s chool y ea r s . A s the MSH report stated, Carr’s grades as a whole ranged “f rom f ailing

to b arely passing i n m ost subjects.

. . .” I n the f if th g rade, Carr’s standardized testing scores

m ostly were at the second-grade academ ic level. On standard achievem ent tests a d m inistered in the eighth grade, C arr obtained national percentile rankings which ranged f rom the f irst percentile to the thirty -sixth percentile. C arr’s r eading standard score i n the eighth grade was in the

. 8 p e r c e n tile, m eaning that m ore than 99 p ercent of s tudents taking the test scored higher in reading than Carr. Sim ilarly , in m ath o ver 99 percent o f students ranked higher than Carr, and 99 percent of

students scored higher in s pelling than Carr. T hus even Carr’s best standardized test score was lower than 64 percent of the students who took the test. Carr’s

n a tional percentile was ten, w hich m eant that 90 percent of s t udents taking the t e s t s c o r e d higher than Carr. ¶53. T h e M S H report concluded that Carr probably d em onstra t e d a d a p t i v e - b e h a v i o r def icits i n the area of f

unctional academ ics prior to the age of eighteen. Dr. Macvaugh f ound probative that Carr h a d f

ailed the third, seventh, and ninth grades. In addition, it noted that Carr’s grades had been “quite poor, ranging f rom f ailing to b arely passing in m ost subjects throughout h is school y ears.” However, Dr. Macvaugh was concerned with Carr’s absences f rom s chool. Although the trial c ourt also w as c oncerned about Carr’s poor attendance, even

2 2when Carr repeated g rades, he continually m aint a ined p oor m arks in school. In addition,

Carr’s IQ scores continually have rem a ined around the sam e signif icantly low level. ¶54. Carr also presented suf f icient evidence to show s ignif icant def i cits in the social-skills dom ain. Dr. Kallm an’s report s tated that C a rr’s personalty assessm ent suggested that he was

a “severely disturbed individual who has been in a state of extr e me e mo t i onal turm oil f or

m ost of his lif

e.” He additionally reported that Carr’s prof i le w as “consistent with others who

are labelled [ sic ] ‘ d a n g erous psy chotics.’” Although the MSH report took issue with Dr. Kallm an’s suggestion that Carr m ay have been exaggerating sy m ptom s of m ental i llness, Dr. Kallm an repeatedly stated in h i s repo r t t h a t the evaluation was a valid indicator of Carr’s

current state of cognitive a nd em otional f unctioning. D r . K a l l ma n a d ditionally s tated that “[ t]here were no signs of

m alingering or intentional ef f orts to distort the data.” ¶55. Carr additionally presented testim ony f rom Johnie Chaney , a childhood acquaintance of Carr’s. Chaney testif

ied that when Carr was approxim ately f if teen or si x t e e n , Chaney would h a ve to help h i m “keep his clothes right on him .” Chaney testif ied that he w ould have

to t ell Carr to tie his shoes and to clean up when he h ad “an odor.” Dr. O’Brien testif ied that Chaney ’s testim ony w as consistent with his own opinions regarding Carr’s def icits. The trial

c o urt f o und probative the portion of C haney ’s testim ony in which he stated that C a r r h a d play ed sof

tball with other y oung people. And Chaney d id state that Carr could p lay sof tball in the outf

ield, h owever, he additionally stated that he had to tell Carr to r un and catch the ball. Chaney also testif

i ed that Carr got along with every body only when they were n ot try ing

to take a dvantage of him or try ing to m ake him do crazy things. Theref

ore, I disagree with

2 3the trial court’s contention that C h a ney ’s testim ony was not helpf ul a n d would f

ind that Chaney ’s testim ony

showed additional def

icits in Carr’s social and practical skills. ¶56. Dr. Macvaugh stat e d t h a t C a r r also m ay have d em onstrated s ignif icant lim itations relating to work. He s tated that he did not have access to inf orm ation to c onf

irm the validity of Carr’s work experience and that it was unclear whether he e xperienced dif f i culty relating

to work. However, C arr clearly could not hold a steady job. Bef ore the a g e of twenty -f

ive, Carr’s vari o u s p o s i t i o ns included chopping c o tton, working as a janitor, working at a tire shop p erf orm i ng t ire rotations, reading m eters with the water departm ent, working on boat

m otors, and w orking at service stations and clubs. Dr. Macvaugh’s lack of a c c e ss to in f o r m a tion f

rom Carr’s f

o rm er em ploy ers did not cancel out Carr’s broken work history , which Dr. Kallm an also noted. ¶57. C o n s i d e ring the totality of the evidence presented, I would f ind that the trial court erred in its ruling that C a rr f ailed to prove by a preponderance of the evidence that he suf f e red f r om signif icant adaptive def

icits.
III. Prior to Age Eighteen ¶58. Lastly , Carr presented suf f icient evidence that h is adaptive de fi c i t s d i d i n f a c t m anif est prior to age eighteen. O n r e ma n d , t h e trial court wrote that “there is no evidence that Carr was adm inistered an IQ test prior to age 18.” In addition, the MSH report stated that, [ i]n sum m ary , Mr. C arr does, in our opinion, have intellectual lim itations and m ay very w ell have m et the diagnostic criteria f or [ intellectual di s a b i l i ty ] bef ore the age of 18. However, we cannot be certain of this because he never received intelligence testing or a s tandardized a ssessm e nt of his adaptive f unctioning bef

ore age 18.

2 4Yet Carr m ust not be penalized because he was not given an IQ test bef ore his eighteenth birthday

. As Dr. O’Brien stated, “there’s alm ost never an IQ test in a case like this bef ore the
age of 18.

. . . But w e do have w hat y ou m ight call collateral inf orm ation about his a cadem ic f unctioning which i s strongly suggestive of an IQ s core in the range we’re talking about.” Thus, while Carr w as not given a f orm al IQ test bef

ore he turned eighteen, he presented clear evidence indicating his I Q and adaptive def icits prior to age e i g h t e e n

— t e s t i m o n y f

rom f am ily and f riends and his school grades. ¶59. Dr. O’Brien reported that he def initively f ound that Carr’s def

icits existed prior to age eighteen. Dr. O ’Brien testif ied that, at about the third-grade level, Carr started reaching the end o f his academ ic p otential. C arr “reached the lim it at which he could no longer keep up with the average student in that s chool.

. . .” Dr. O’Brien additionally f ound that Carr was not considered to have been d eceptive or m a lingering during any ability testing. Carr’s IQ scores af ter he t urned eighteen also present evidence of his i ntell e c tual f unctioning prior to his turning eighteen. See R ivera v. Q uarterm an , 505 F.3d 349, 3 6 3 (5th Cir. 2007) (“And, although Rivera did n ot take the W AIS-III test prior to age 18, the district court f ound that the com bination of h i s score of 68, other evidence o f Rivera’s i ntellectual f u nctioning, and his perf orm ance in school ‘establish that Rivera ha d s i g n i f icantly subaverage intellectual f unctioning prior to the age of 18.’”). S even y ears af ter Carr turned eighteen, Dr. Kallm an established that Carr had an IQ score of 70. ¶60. C h aney testif

ied that when Carr was approxim ately f if teen to sixteen, he had to t e l l Carr when to tie his shoes a nd when he had a n odor. Carr’s s ister, Annette Carr, stated that Carr was slow growing up and that he never lived indepe n dently

. Carr’s sister, Sarah Carr 2 5Jef

f erson, also thought that Carr was s low and h ad m ental-health p roblem s. Sarah s tated that Carr woul d som etim e s talk to d ogs and that the dogs talked to him when he was y oung. Carr’s f orm e r s chool teacher stated that she taught Carr in the f if th and sixth grades and that Carr was a slow learner and a poor student. She attributed this to his hom e environm ent and his attitude. ¶61. In a ddition, in its opinion rem anding this case to the circuit c ourt, this Court stated that the trial court had f

ound “that adaptive f

unctioning def

icits existed b ased o n evidence which largely focused on C

arr’s acade m i c performance before age eighteen

. . . .” Carr III , 196 So. 3d at 943 n.10 (em

phasis added). This Court then instructed the trial court to review its f indings on whether C a r r ’ s a daptive f u nctioning def

icits existed prior to age eighteen. Id. Thus, this Court’s own language on rem and strongly i ndicated that Carr had in f act shown adaptive-f

unctioning def

icits bef ore he turned eighteen.
IV. Sum m ary ¶62. As previo u s l y s t a t e d , A t k i ns prohibits the death penalty f or those who are even minimally intellectually disabled. The st a n d a rd in this case was the preponderance of the evidence. A preponderance of the evidence does not require proof bey ond doubt n or does it require even convincing p r oof

. Producers Gin Ass’n v. Beck , 215 Miss. 2 63, 60 So. 2d 642, 644 (1952). A preponderance o f the evidence m eans exactly that—the greater weight of the evidence. ¶63. Carr presented a report and testim ony f rom Dr. O’Brien, who f

ound to a reasonable degree of psy chological c ertainty that Carr was i ntellectually d i s a b led. In addition, Dr. Kallm an also f

ound that Carr was f

unctioning in the m ildly i ntellectually disabled range. Carr

2 6presented evidence of Dr. S wanson’s testing that indicated Carr was f unctioning on a m ostly f ourth-grade level, which was corroborated by Carr’s school records. And alt h ough Dr. Macvaugh concluded that overall he was “unable t o f orm an opinion to a reasonable degree of psy chological and psy chiatric certainty regarding w hether or not M r. Carr i s [ i ntellectually disabled] as def

ined by ” A tkins and Chase , even he agreed that Carr m ay have dem onstrated signif icant lim itations in at least two areas of adaptive behavior bef ore the age o f eighteen. ¶64. T h i s i s not e ven a case o f opposing experts. The evidence s h owed that one expert stated Carr could be i n t e l l e c t ually disabled but that he was not certain. Yet Carr presented evidenc e f

r o m two experts stating that he was i ntellectually disabled, presented school records that showed signif icant academ ic def

icits, presented testim o ny indicating that Carr had to be told when to t ie his shoes and w h e n t o bathe, a nd p resented I Q t ests showing signif icant intellectual def

icits. Because the death p enalty is f i nal and cannot be r eversed, all doubts are to be r esolved in f avor of the accused. Lynch v. State , 951 S o. 2 d 549, 555 (Miss. 2007). Resolving a l l d o u b ts in f avor of Carr, clearly the greater weight o f the evidence showed that Carr was i ntellectually disabled within the m eaning of Atkins

. I would f ind that the trial court erred in its f inding that Carr f

ailed to prove his intellectual disability claim by a preponderance of

the evidence. ¶65. Carr established that his IQ scores e ach f ell within the m argin of error applicable to the test, that he had signif

icant adaptive def

icits in m ore than one area, and that those def icits

m anif ested bef ore the age of eighteen. Accordingly , I would reverse the trial c ourt’s ruling on intellectual disability

and would render judgm ent in f avor of Carr. KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION. 2 7