author: MAXWELL, JUSTICE, FOR THE COURT: WALLER, CHIEF JUSTICE, DISSENTING:

text:
    STATE of Mississippi v. Willie C. RUSSELL a/k/a Willie Russell a/k/a William C. Russell
    NO. 2015-KA-00245-SCT
    Supreme Court of Mississippi.
    December 14, 2017 Modified on Denial of Rehearing April 12, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND
    ATTORNEYS FOR APPELLEE: RICHARD JOHN BOURKE, DAVID PAUL VOISIN
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. A jury sentenced Willie C. Russell to death for murdering a correctional officer. Russell later claimed he was intellectually disabled and thus could not be executed under Atkins v. Virginia . In 2014, the trial court set an Atkins hearing to determine if Russell was intellectually disabled.

¶ 2. Prior to the hearing, the State moved to assess Russell based on his claimed intellectual disability. But Russell was opposed to the State's expert conducting an Atkins evaluation. Years earlier, in 2006, Russell had undergone psychological testing ordered in a separate aggravated-assault case. But that testing was for his competency to stand trial-not assessing intellectual disability. Although the State had initially proposed that the 2006 assessment cover both issues, Russell's attorney also objected back then to the State evaluating Russell's Atkins claim in that proceeding. So Russell was never evaluated on the specific criteria for intellectual disability under Atkins .

¶ 3. Furthermore, the record shows both Russell and the State understood that the 2006 testing would not serve as his complete Atkins assessment. And, indeed, according to the State's expert, additional testing was required. Still, the trial court denied the State's motion to evaluate Russell, concluding the prior testing was sufficient. Consequently, the court's denial led to what was essentially a one-sided Atkins hearing.

¶ 4. At the end of the hearing-at which Russell's expert testified-the trial court ruled that Russell was intellectually disabled under Atkins and Chase and vacated his death sentence. The State has appealed. After review, we find the trial court reversibly erred. While Atkins determinations are legal decisions, they are decisions that must be informed by medical experts. And here, we find the trial judge abused her discretion by denying the State's well-supported motion to evaluate Russell prior to the Atkins hearing.

¶ 5. We reverse the order vacating Russell's death sentence. And we remand this matter to the trial court with instructions that the State's expert be permitted to evaluate Russell before the Atkins hearing.

Background Facts and Procedural History

I. Capital-Murder Conviction and Death Sentence

¶ 6. In 1989, while an inmate at the State Penitentiary at Parchman, Russell stabbed and killed a corrections officer. A jury convicted Russell of capital murder and sentenced him to death. On appeal, this Court affirmed his conviction but vacated his death sentence and remanded for resentencing. Russell v. State , 607 So.2d 1107 (Miss. 1992) ( Russell I ). On remand, Russell once again was sentenced to death. And this Court affirmed. Russell v. State , 670 So.2d 816 (Miss. 1995) ( Russell II ).

¶ 7. Russell filed for post-conviction relief (PCR). In 2002, while his petition was still pending, the United States Supreme Court handed down Atkins , holding that, based on "evolving standards of decency," imposing the death penalty on intellectually disabled persons violates the Eighth Amendment. Atkins , 536 U.S. at 321, 122 S.Ct. at 2252. This Court granted Russell permission to amend his PCR petition to include the claim that he is intellectually disabled and thus, under Atkins , cannot be executed. This Court granted Russell's PCR petition in part, granting him leave to proceed in the trial court with his Atkins claim. Russell v. State , 849 So.2d 95, 149 (Miss. 2003) ( Russell IV ).

II. Aggravated-Assault Charge

¶ 8. At the time his Atkins petition was granted, Russell was facing a separate charge of aggravated assault. While on death row, Russell had shot at another corrections officer with a homemade "zip gun." As part of his defense to this charge, Russell asserted that he was incompetent to voluntarily confess and stand trial. He also claimed he was insane at the time he shot at the corrections officer.

¶ 9. Because of the pending Atkins issue, Russell asked that his aggravated-assault trial be stayed. But by 2006, three years had passed without Russell pursuing his Atkins claim. At this point, a different trial judge presiding over the assault case refused to let that charge linger on the docket any longer. The assault trial would move forward, with or without the Atkins issue being resolved.

¶ 10. The State initially suggested evaluating both Russell's Atkins claim and his mental-health-related defenses in the aggravated-assault case at the same time. And the original evaluation order included a directive to assess Russell's Atkins claim. But Russell opposed proceeding in this manner. Instead, he argued that the judge who was presiding over his aggravated-assault trial-a different judge than the one handling the Atkins claim-had no authority over the Atkins claim raised in his separate capital-murder case. The trial court succumbed to his request and struck that portion of its order.

¶ 11. As a result, the State Hospital did not assess whether Russell had an intellectual disability preventing the State from executing him. Page one of the 2006 case report notes the order to evaluate Russell's Atkins claim was vacated. And in the transcript of Russell's 2006 clinical interview, his counsel agreed "[t]his isn't going to be a complete Atkins assessment."

¶ 12. Russell did, however, participate in a clinical interview by Dr. Reb McMichael, Dr. Gilbert Macvaugh III, and Dr. Criss Lott. And he underwent three psychological tests-the Wechsler Adult Intelligence Scale-3rd Edition (WAIS-III), the Wide Range Achievement Test, 4th Edition (WRAT-4), and the Green's Word Memory Test (WMT). Dr. McMichael also reviewed extensive records to compile the 2006 State Hospital's report. Dr. McMichael testified during the aggravated-assault trial that Russell was competent to confess voluntarily and to stand trial and was not insane at the time he shot at the corrections officer. Dr. McMichael also offered his unsolicited opinion that Russell was not intellectually disabled, based on the 2006 evaluation.

III. Motion to Evaluate

¶ 13. In 2010, Russell finally filed his Atkins petition with the trial court. After reviewing the State Hospital records from Russell's 2006 assessment, which clearly indicated Russell's Atkins assessment had yet to occur, the State moved to evaluate Russell on his Atkins claim. Russell objected. Russell's counsel represented to the trial judge-again, a different judge than the one presiding over the aggravated-assault charge-that Russell only agreed to be evaluated in 2006 with the express understanding he would not be tested any further.

¶ 14. The trial court held a hearing, during which the State called Dr. Macvaugh, its designated Atkins expert. Dr. Macvaugh, a participant in the 2006 evaluation, testified that he recalled cautioning Russell and Russell's counsel that any data collected in the aggravated-assault evaluation could be used in a future Atkins assessment. But there was never any agreement Russell would not be further tested. Indeed, in the transcript from the 2006 clinical interview, Russell's counsel had conceded the evaluation would not be a full Atkins assessment and objected only to Russell "being given the same test batteries twice in the course of the next year or anything like that."

¶ 15. Dr. Macvaugh further testified that "additional intellectual assessment is needed, additional adaptive assessment is needed, and additional malingering assessment is needed, ... in order to offer an opinion to a reasonable degree of psychological certainty as to whether or not Mr. Russell has mental retardation pursuant to Atkins ." Specifically, Dr. Macvaugh wanted to administer the most up-to-date Wechsler Adult Intelligence Scale-the WAIS IV-because it incorporates significant developments in the field since the WAIS III. Dr. Macvaugh also planned to test Russell for adaptive-functioning deficits-something he and his colleagues did not assess in 2006. But beyond that, he explained he was ethically and professionally bound not to go into more specifics about what tests he might administer. In particular, divulging beforehand to Russell's counsel what tests were to be administered could affect the validity of the test results. It could also box Dr. Macvaugh in to administering certain instruments, even though he might later determine, in his professional opinion, other tests would be better.

¶ 16. On cross-examination, Dr. Macvaugh was pressed as to why, in contrast to Dr. McMichael, he could not simply rely on the 2006 data to form an expert opinion. Dr. Macvaugh responded that he disagreed with Dr. McMichael that the prior testing was sufficient to form an opinion on intellectual disability when that issue is raised in a death-penalty case. He further explained "[i]t doesn't make clinical, forensic, or ethical sense to me to not want more, better data when the stakes are as high as they are."

¶ 17. Though the trial court's order acknowledged Russell had agreed that the 2006 evaluation would not be a complete Atkins assessment, the judge nonetheless decided no further testing was needed to form an expert Atkins opinion. In particular, the trial court was swayed by Dr. McMichael's opinion given in the non-death-penalty case and the fact Dr. Macvaugh would not divulge specifically what tests he planned to administer. The trial court treated the State's motion as one for a "subsequent exam." And the court ruled the State had not shown good cause to administer any further tests. Instead, "[t]o permit the State's expert to examine Mr. Russell a second time would be to permit an unfair and unwarranted forensic advantage."

IV. Atkins Hearing

¶ 18. The trial court heard Russell's Atkins petition on September 8-9 and December 17, 2014. Russell presented three witness. First, he called Clementine Harrison, a volunteer investigator with the Louisiana Capital Assistance Center (LCAC) in 2007. Harrison testified she had investigated Russell's Atkins claim, collecting Russell's school records and witness statements. Next, Russell called Anne Preziosi, a mitigation specialist with LCAC, to testify as an expert. But due to her lack of qualifications, she could only testify as a lay witness about the records and witness statements she collected. Finally, Russell's expert, clinical psychologist and neuropsychologist Dr. John Goff, testified. Dr. Goff concluded that Russell is intellectually disabled, based on Russell's prior IQ scores, his adaptive-functioning deficits, and his placement in special-education classes, indicating onset prior to age eighteen. Dr. Goff also opined Russell was not malingering. See Chase , 873 So.2d at 1027-28 (setting forth the criteria for determining whether a criminal defendant is intellectually disabled for Eighth Amendment purposes).

¶ 19. When Russell rested, the State announced it would not present any witnesses. On December 31, 2014, the trial court entered an order vacating Russell's death sentence. And the State appealed.

Discussion

¶ 20. While the State raised three issues on appeal, we need focus on only one-the trial court's denial of its motion to evaluate Russell on his Atkins claim.

¶ 21. The State suggests this issue raises a purely legal question, requiring de novo review. But we review discovery matters, even in death-penalty PCRs, for abuse of discretion. E.g., Brown v. State , 88 So.3d 726, 730 (Miss. 2012). That said, in this case, we find the trial court abused its discretion when it ruled the State had "adequate opportunity" and information to evaluate Russell's Atkins claim, because that ruling is not supported by the record.

¶ 22. Instead, the record is clear that the State Hospital did not assess in 2006 whether Russell had an intellectual disability preventing the State from executing him. The first page of the 2006 case report notes the order to evaluate Russell's Atkins claim was vacated. And in the transcript of Russell's 2006 clinical interview, Russell's counsel agreed "[t]his isn't going to be a complete Atkins assessment." Dr. Macvaugh, who participated in the 2006 assessment, confirmed this, testifying unequivocally that the State doctors were not ordered to and did not evaluate Russell's claim that he was intellectually disabled.

¶ 23. Thus, contrary to the trial court's characterization, when the State moved in 2012 to evaluate Russell on his Atkins claim, it was not seeking a second, duplicate Atkins evaluation. It was requesting the Atkins evaluation. The State made this request not to redo what had already been done or, as the trial court put it, to gain a "forensic advantage." Instead, it made this request at the behest of its expert. According to Dr. Macvaugh-no stranger to Atkins and its requirements -additional intellectual, adaptive, and malingering assessments were necessary "in order to offer an opinion to a reasonable degree of psychological certainty as to whether or not Mr. Russell has mental retardation pursuant to Atkins ."

¶ 24. Despite this, the trial court ruled that Dr. Macvaugh had performed all the necessary testing to form an expert opinion, even though he testified that, in his professional opinion, more data was required. In other words, it was the trial judge-not the expert-who opined that no further assessment was necessary. As support, the trial court relied on the testimony given by Dr. Reb McMichael in Russell's aggravated-assault case that Russell was not intellectually disabled, based on the 2006 evaluations. But the only impact of this opinion was that it contributed to the trial court finding Russell was competent to stand trial on the assault charge. Significantly, Dr. McMichael's opinion had no bearing on whether Russell could be put to death. When the stakes were raised and the life-and-death question of Russell's intellectual ability to suffer execution was posed to Dr. Macvaugh, Dr. Macvaugh testified the 2006 evaluations were not sufficient to form an opinion to a reasonable degree of psychological certainty.

¶ 25. When questioned by Russell's counsel on why he could not just use the 2006 data, as Dr. McMichael did in the assault case, Dr. Macvaugh replied, "It doesn't make clinical, forensic, or ethical sense to me to not want more, better data when the stakes are as high as they are." In other words, according to an Atkins expert, forming an expert opinion on intellectual disability is a much weightier task in the Atkins context, requiring more specific and better data.

¶ 26. While Atkins determinations are legal decisions, they are decisions that, according to the United States Supreme Court, must be informed by medical experts. Hall , 134 S.Ct. at 2000, 188 L.Ed.2d 1007 (acknowledging Atkins decisions require "substantial reliance on the expertise of the medical profession"). Here, instead of being informed by the medical expert on what assessments are necessary, it was the trial judge who informed the expert what assessments were sufficient. This was an abuse of discretion.

In reaching this conclusion, the trial court not only improperly stepped into the role of a forensic psychologist, but it also broke with this Court's precedent recognizing that the medical expert is in the best position to determine what testing is sufficient to form an opinion on the petitioner's intellectual disability. See, e.g., Lynch v. State , 951 So.2d 549, 556-57 (Miss. 2007) (abolishing this Court's prior mandatory requirement that the experts administer a specific test for malingering); see also State v. Scott , 2014-KA-00123-SCT, 233 So.3d 253, 261, 2017 WL 2377563, at *6 (Miss. June 1, 2017) (clarifying that the expert must be given the freedom to chose the method he or she deems appropriate, in his or her expert view, to make an Atkins assessment).

¶ 27. In doing so, the trial judge placed the State in an impossible position. Dr. Macvaugh was adamant that, professionally and ethically, he could not form an opinion on Russell's Atkins claim without further assessment. But the trial court ruled no further assessment could take place. Instead, the State would have to rely on data its own expert deemed insufficient to support a critical determination as to whether Russell could be put to death. Thus, the State was placed in a position where it was unable to test, and possibly attempt to disprove through expert testimony, Russell's claim he could not be executed. Even Russell's counsel recognized this bind, essentially predicting the State would not call an expert in defense because Dr. Macvaugh had been so adamant that the 2006 evaluation was insufficient to form an expert opinion to a degree of reasonable psychological certainty on the Russell Atkins claim. Because our Atkins procedures clearly contemplate the State responding to the petitioner's evidence with its own expert opinion, the trial court abused its discretion when it restricted the State in this way.

Conclusion

¶ 28. We reverse the order vacating Russell's death sentence and remand this matter to the trial court, with instructions that the State's expert be permitted to evaluate Russell prior to the Atkins hearing.

¶ 29. REVERSED AND REMANDED.

RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., KING AND COLEMAN, JJ.

WALLER, CHIEF JUSTICE, DISSENTING:

¶ 30. Because the record was adequate and sufficient for Russell's Atkins evaluation, the trial court did not abuse its discretion in denying the State's motion to have Russell subjected to additional psychological testing by its privately retained expert. Accordingly, I respectfully dissent.

¶ 31. The majority contends that Russell conceded the need to undergo additional psychological testing by the State for an evaluation of his Atkins claim. See Maj. Op. at ¶¶ 3, 11, 14, 17, 22. At the time Russell's Atkins claim was remanded to the trial court, Russell was awaiting trial on an aggravated-assault charge in another case. In the course of those proceedings, Russell was ordered to undergo a mental evaluation at the State Hospital to assess his competency to waive his constitutional rights and his sanity at the time of the offense. The State, aware of Russell's Atkins claim, requested that Russell be evaluated one time for the purposes of both cases:

[I]t would be judicially efficient and prudent for the safety of those who have to examine Defendant and transport him to said examination to have Defendant Russell examined at the Mississippi Hospital at Whitfield once rather than having to move him from maximum security twice. His alleged mental retardation is the basis for his motion to suppress as well as his pending status to be executed. Both issues will be before the Circuit Court of Sunflower County. The examination should determine if Defendant is mentally retarded, if this retardation, if such exist [sic], together with any other factors, rendered him incompetent to waive his constitutional rights, if the alleged mental retardation renders him incapable of being executed under Atkins, supra, and to determine his sanity at the time of the alleged offense.

Russell agreed to this procedure on the condition that, to the extent possible, the results of his mental evaluation in the assault case would serve the State's purposes for the Atkins claim and that he would not be subjected to additional testing.

¶ 32. Russell's first evaluation occurred on April 1, 2006. In preparing for the testing, Dr. Reb McMichael asked Russell's attorney whether the information obtained from Russell could be used for his Atkins claim. Russell's attorney stated his understanding that the evaluations could be used to support or oppose Russell's pending Atkins claim. The majority then points out that Russell's attorney stated, "[t]his isn't going to be a complete Atkins assessment ...." See Maj. Op. at ¶¶ 11, 22. But a reading of the rest of this statement shows that it was no admission at all: "... but, to the extent that there's information obtained or history or what have you, that that's going to be ... serve for the purposes of subsequent, the [ Atkins ] proceeding as well." At oral argument, in response to a question on this exact statement, Russell's attorney explained that he simply was acknowledging that additional sources of evidence would need to be collected to reach a determination on Russell's intellectual disability, specifically for adaptive functioning, which is largely based on secondary historical sources:

We concentrated on conducting a detailed and thorough investigation of adaptive functioning. Dr. Goff went out and visited with eleven witnesses: three teachers, an employer or co-worker, neighbors, family members, people he had lived with, the aunts who had raised Mr. Russell. All of those persons were available to the State at all times. They could have gone and seen any of them. In fact, we provided in discovery their statements, four months before the hearing concluded in December. And the State chose to sit on its hands and not conduct any of that investigation. And so again, when the State complains that it has not had an opportunity to conduct an adaptive deficit assessment, that is a fault entirely of its own making. And Your Honor, I was referring in that interview with Dr. McMichael and Mr. Russell to the fact that this wouldn't be a complete Atkins evaluation, it was exactly that sort of thing that I had in mind-that they would have to go out into the community and do more for an Atkins evaluation. We weren't going to finish and have an Atkins report at the end of that interview.

Further, during the hearing on the State's motion for an evaluation, Russell's attorney gave this response to the State's request for additional testing:

We have no problem with the State doing whatever other investigation it needs to do to complete an investigation of the Atkins issue. If the doctors feel like they need to talk to other people, review other records, or do anything else, then we have no problem with that.
Our only concern-the narrow area of dispute before your Honor today in this proceeding-is whether the State can obtain a court order to force Mr. Russell to submit to further testing by State experts, whether that's either appropriate, given the history, or whether it's necessary, given the testing that's already been done, and whether it's fair, given the defendant's rights in preparing and presenting his own case.

Russell's appellate brief also addresses the State's assertion that Russell's 2006 evaluations did not constitute a sufficient basis to reach an Atkins determination:

Dr. Macvaugh's testimony did highlight that there were large areas of work to be completed in his Atkins evaluation in the form of records collection and interview of collateral witnesses. However, none of these required re-testing of Mr. Russell and it is telling that the State chose not to conduct any of these parts of the Atkins evaluation, even after the defense provided records and witness statements in discovery.

Respectfully, my reading of the record shows that Russell never conceded that additional psychological testing by the State was required for his Atkins claim.

¶ 33. The majority also states that, when the State moved to evaluate Russell for intellectual disability in 2012, it was requesting "the Atkins evaluation." Maj. Op. at ¶ 23 (emphasis in original). But the reports from Russell's 2006 psychological evaluations were not rendered meaningless in the Atkins context simply because they did not contain conclusions on Russell's intellectual disability. In fact, one of Dr. Macvaugh's colleagues at the State Hospital testified that sufficient testing had been conducted during those evaluations to offer an opinion on Russell's intellectual disability. At a pretrial hearing in Russell's assault case, Dr. Reb McMichael, one of the doctors from the State Hospital who had participated in Russell's 2006 evaluations with Dr. Macvaugh, specifically stated that Russell was not intellectually disabled based on that very same testing. On cross-examination, Dr. McMichael testified:

Q: And he was not subjected to and didn't participate in the full range of testing and assessment that would ordinarily go into an assessment of mental retardation, correct?
A: Not correct.
Q: You think you've done everything you would need to do to conduct a mental retardation assessment in this case?
A: I think that given all of the history that we reviewed in a three-hour interview and in many examples of his ability to understand and use language, I feel that I have adequately assessed whether or not Mr. Russell is mentally retarded.

Thus, the precise question before this Court is not whether Russell's 2006 evaluations constituted a "complete Atkins evaluation," but whether the trial court could rely on the results of those evaluations, along with the other evidence before it, to reach a conclusion on Russell's Atkins claim without subjecting Russell to further psychological testing.

¶ 34. The procedural framework established by this Court in Chase v. State requires the petitioner to prove two elements by a preponderance of the evidence in order to succeed on an Atkins claim. Chase , 873 So.2d 1013, 1029 (Miss. 2004). First, the defendant must prove that he or she is intellectually disabled, as defined by the American Association for Intellectual and Developmental Disabilities and/or the American Psychiatric Association. Id. This element requires proof of three interrelated criteria: (1) significant subaverage intellectual functioning ("Criterion A"), (2) significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety ("Criterion B"), and (3) onset before age eighteen ("Criterion C"). Id. at 1028 (quoting Atkins v. Virginia , 536 U.S. 304, 308 n.3, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ). And second, the defendant must prove that he or she is not malingering. Id. Again, it is the burden of the petitioner, and not the State, to prove each of these elements.

¶ 35. Proving these elements likely will require the defendant to undergo certain psychological tests, such as IQ tests or achievement tests. See, e.g. , Chase , 873 So.2d at 1028 (quoting Diagnostic and Statistical Manual of Mental Disorders 42-43 (4th ed. 2000)) (noting that an IQ score of 75 typically is considered the cutoff score for the intellectual-functioning prong of intellectual disability). But in some cases, and specifically with regard to adaptive functioning under Criterion B, it may not be appropriate to administer any standardized tests to the defendant. For example, in Thorson v. State , 76 So.3d 667, 672 (Miss. 2011), the forensic team at the State Hospital-including Dr. Macvaugh-specifically noted that it had not administered any standardized adaptive-functioning tests to the defendant because "retrospective testing for adaptive functioning is not standardized for use with offenders who have been incarcerated for a number of years." As such, an assessment of a defendant's adaptive functioning may include "interviewing family and friends knowledgeable about the defendant's past," "interviews with educators or others in the community familiar with the defendant's behavior before age eighteen," and "a thorough review of school records, social history, and work history, among other things," which may not require direct contact with or testing of the defendant. Goodin v. State , 102 So.3d 1102, 1115 (Miss. 2012).

¶ 36. Here, the trial court considered the State's motion to evaluate Russell under Rule 35 of the Mississippi Rules of Civil Procedure, which authorizes the trial court to order an individual to undergo a physical or mental examination if that person's physical or mental condition is "in controversy." Miss. R. Civ. P. 35(a). An order under Rule 35"may be made only on motion for good cause shown ...." Id. The State does not object to the trial court's reliance on this standard, and the majority does not mention it. I note, however, that Rule 35 imposes the same good-cause standard as the discovery provision of the Uniform Post-Conviction Collateral Relief Act. See Miss. Code Ann. § 99-39-15(1) (Rev. 2015) ("A party may invoke the processes of discovery available under the Mississippi Rules of Civil Procedure ... if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise."). Applying this standard, we must find that the State had shown good cause justifying additional psychological testing of Russell in order to conclude that the trial court abused its discretion in denying the State's motion. To do so, we must compare the State's two specific requests-intelligence testing and adaptive-functioning testing-to the evidence already available to the trial court, keeping in mind the elements that must be proved in an Atkins case.

I. Intellectual Functioning

¶ 37. This Court has held that a defendant may satisfy Criterion A of the definition of intellectual disability by presenting evidence that he or she has a full-scale IQ score of 75 or lower. Chase , 873 So.2d at 1029. Similarly, the United States Supreme Court recently found that a defendant's IQ score of 74 satisfied Criterion A and required the lower court to "move on to consider [the defendant's] adaptive functioning" under Criterion B. Moore v. Texas , --- U.S. ----, 137 S.Ct. 1039, 1049, 197 L.Ed.2d 416 (2017). See also Chase , 873 So.2d at 1028 (finding that Criterion A may be satisfied by a full-scale IQ score of 75 or below). The Moore Court reached this determination based solely on the results of an IQ test administered to the defendant in 1989, even though the defendant's Atkins hearing was held in 2014 and the defendant had taken more recent IQ tests. Id. Here, Russell presented the trial court with two prior IQ scores, both of which satisfied Criterion A. In 1989, prior to his capital-murder trial, Russell was administered the WAIS-R, and he produced a full-scale score of 68. And in 2006, Russell was administered the WAIS-III by Dr. Macvaugh, and he produced a full-scale score of 75. Dr. Macvaugh testified that the WAIS-III was the "gold standard" IQ test at the time it was administered to Russell. See also Atkins , 536 U.S. at 309 n.5, 122 S.Ct. 2242 (identifying the WAIS-III as "the standard instrument in the United States for assessing intellectual functioning"). Accounting for the Flynn Effect, which both of the experts in this case considered a valid statistical adjustment, Russell's scores on those tests would be lowered to 66 and 72, respectively. Thus, the psychological testing already available to the trial court established that Russell satisfied Criterion A.

¶ 38. The State complains that the trial court could not perform a "complete" Atkins evaluation without allowing Dr. Macvaugh to administer the WAIS-IV, the successor to the WAIS-III. To be clear, the WAIS-IV is the only specific psychological test Dr. Macvaugh identified as necessary to reach an opinion on Russell's Atkins claim. However, Dr. Macvaugh testified that the WAIS-R and the WAIS-III were the most up-to-date IQ tests available at the time they were administered to Russell. In fact, Dr. Macvaugh personally administered the WAIS-III to Russell, and he stated that he did not doubt the validity of Russell's score on that test:

Q: So you're not saying you need to give him a WAIS-IV because the WAIS-III you already gave him should not be considered a valid estimate of his true intellectual ability.
A: Definitely not saying that, no.

Dr. Macvaugh also testified that Russell's score on the WAIS-III was "certainly among the data points that I would seriously consider in my conceptualization of whether Mr. Russell has mental retardation." This testimony is supported by the reports from Russell's 2006 evaluations, which state that Dr. Macvaugh "explained to Mr. Russell that the results of the intelligence testing could potentially be used to argue whether or not he should receive the death penalty." And finally, Dr. Macvaugh opined that, in his experience, individuals usually produce lower scores on the WAIS-IV than the WAIS-III.

¶ 39. In determining whether good cause existed to order Russell to undergo an additional IQ test administered by the State's expert, the trial court had to consider two existing IQ scores proving that Russell was within the range that satisfied the intellectual-functioning prong of intellectual disability. The State presented no evidence suggesting that those scores were invalid or that they could not be used in an Atkins analysis. The only reason offered by the State in support of administering the WAIS-IV was that it was a newer test based on more recent scientific data. But in the State's own expert's opinion, Russell probably would produce a lower score on the WAIS-IV than he did on the WAIS-III. In denying the State's motion for an evaluation, the trial court did not place the State in an "impossible position," as the majority complains. Instead, the trial court correctly weighed the need for additional intelligence testing against the existing evidence of Russell's intellectual functioning, along with the risk of testing error, and determined that the State had not shown good cause to conduct additional testing. Under these facts, I would not find that the trial court abused its discretion in denying the State's request to have its own expert administer the WAIS-IV to Russell.

II. Adaptive Functioning

¶ 40. The second requirement for a diagnosis of intellectual disability is "significant limitations in adaptive functioning in at least .... two skill areas ...." Chase , 873 So.2d at 1021 (quoting Atkins , 536 U.S. at 308 n.3, 122 S.Ct. 2242 ). Formal adaptive-functioning tests are not standardized for individuals who have been incarcerated for long periods of time, because they are designed to test an individual's ability to perform certain tasks and live independently outside of the prison community. See Thorson , 76 So.3d at 672. Therefore, as previously mentioned, an evaluation of an Atkins defendant's adaptive functioning generally requires an evaluation of other sources of evidence, such as academic records, employment records, and interviews with individuals who knew the defendant prior to age eighteen. See Goodin , 102 So.3d at 1115.

¶ 41. Here, the trial court had access to the transcript of Russell's three-hour clinical interview at the State Hospital in 2006. Dr. Macvaugh was present for this interview. The interview covered a wide range of topics, including Russell's family history, academic history, employment history, and medical history. The report from this interview clearly states that "information from this evaluation could be used to assist the Court in assessing whether or not [Russell] is mentally retarded and therefore eligible or not eligible for the death penalty." Russell also was administered the WRAT-4, an academic achievement test, in 2006, and he produced scores ranging from third-grade to sixth-grade equivalency, which were consistent with his IQ

socres. The WRAT can be used to assess a person's adaptive functioning in the area of functional academics and has been relied on by experts in several previous Atkins cases in Mississippi. See Chase v. State , 171 So.3d 463 (Miss. 2015) ; Thorson v. State , 76 So.3d 667 (Miss. 2011) ; Doss v. State , 19 So.3d 690 (Miss. 2009) ; Spicer v. State , 973 So.2d 184 (Miss. 2007). As with the WAIS, the State did not present any evidence suggesting that a WRAT would be administered differently as part of an " Atkins evaluation" as opposed to a competency or sanity evaluation. In addition, the WRAT-4 remains the most current version of the WRAT, so the State cannot complain that Russell's scores on the WRAT-4 are "outdated."

¶ 42. At the hearing on the State's motion to evaluate Russell, the State began its argument by conceding that "there are no measures for adaptive functioning." Dr. Macvaugh confirmed, "It's difficult to assess an individual's skills using traditional assessment measures, measures designed to assess for adaptive behavior, because the opportunities for a death row inmate to engage in those kinds of behaviors are not available based on what those measurements attempt to measure." Dr. Macvaugh did state that other measures can be used to assess adaptive functioning, such as "interview kinds of tasks, additional kinds of psychometric testing, and review-extensive review of the previous history, especially before age 18." However, aside from the general statement that he "probably also would be administering some kinds of adaptive behavior tasks ...," Dr. Macvaugh was unwilling to divulge any specific measure that he would use to evaluate Russell, explaining that he had not determined what types of assessments would need to be administered. Dr. Macvaugh stated that he might administer a money-management subtest of the Independent Living Scales, but as pointed out by the trial court, that test had not been normed for prison inmates, and Russell had been asked numerous questions related to money management during his 2006 interview.

¶ 43. In reviewing the State's motion to evaluate Russell, the trial court was tasked with determining whether additional psychological testing of Russell was necessary to reach a conclusion on his adaptive functioning under Criterion B, in light of the existing evidence that was relevant to that issue. Based on Dr. Macvaugh's own admission that standardized adaptive-functioning assessments are not normed for prison inmates like Russell, along with Dr. Macvaugh's refusal to point to any specific test that he would administer to Russell, I would find that the trial court did not abuse its discretion in denying the State's motion to evaluate Russell. Dr. Macvaugh stated that "interview kinds of tasks" can be used to assess adaptive functioning, but Russell had already undergone an extensive clinical interview, and Dr. Macvaugh did not explain why that interview could not be used for the purposes of an adaptive-functioning assessment. Dr. Macvaugh also mentioned that a thorough review of Russell's previous history would be necessary, but such a review would not require psychological testing of Russell. While the majority does not address the substantive issue of Russell's intellectual disability, it is important to note that Russell presented the trial court with his academic records from kindergarten through twelfth grade, along with his scores on several standardized achievement tests. Additionally, Russell's expert witness either interviewed or reviewed the written statements of twenty-three witnesses who had known Russell as a child or young adult, including his family members, classmates, neighbors, teachers, coaches, and co-workers. Dr. Macvaugh acknowledged the importance of this type of evidence to an adaptive-functioning analysis, stating, "we think it's important to attempt to collect collateral data from those types of individuals who knew the individual about whom the assessment is being conducted to collect those types of adaptive behavior data." But the State did not need to subject Russell to psychological testing to gain access to this evidence. Accordingly, I would affirm the trial court's denial of the State's request to evaluate Russell's adaptive functioning.

CONCLUSION

¶ 44. Because the trial court acted within its discretion in finding that the State had not shown good cause to subject Russell to additional psychological testing, I respectfully dissent. I would affirm the trial court's denial of the State's motion to evaluate Russell.

KITCHENS, P.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.

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

      Chase v. State , 873 So.2d 1013, 1027-28 (Miss. 2004).

      Hall v. Florida , --- U.S. ----, 134 S.Ct. 1986, 2000, 188 L.Ed.2d 1007 (2014).

      Since the 2006 evaluation of Russell for the aggravated-assault case, Dr. Macvaugh had left his employment at the State Hospital and gone into private practice.

      The twenty witness statements she gathered were admitted into evidence over the State's objection.

      At a prior hearing on the State's motion to continue the Atkins hearing to a date when its expert, Dr. Macvaugh, was available, Russell's counsel had suggested there was no need for Dr. Macvaugh to testify any further, having already been clear that he lacked sufficient data to form an opinion to a reasonable degree of psychological certainty whether Russell was intellectually disabled under Atkins .

      The State also challenged the trial court's finding that Russell had proved by a preponderance of the evidence that he is intellectually disabled under Atkins and Chase and asserted "cumulative error" warranted reversal.

      Again, Russell only objected in 2006 to "being given the same test batteries twice in the course of the next year or anything like that"-something not at issue here, as the State filed its request to evaluate Russell six years later .

      In addition to performing numerous Atkins evaluations and testifying as an expert in many Atkins hearings, Dr. Macvaugh was asked by the American Association for Intellectual and Developmental Disability (AAIDD), a leading advocacy group for the intellectually disabled, to contribute to its "death penalty manual." Dr. Macvaugh wrote two chapters for the manual, which serves as a guide to forensic psychologists assessing intellectual disability in the context of Atkins . This Court has adopted the AAIDD's definition of intellectual disability for purposes of Atkins determinations. See Chase v. State , 171 So.3d 463, 469-70 (Miss. 2015).

      Indeed, in Mississippi, a petitioner cannot move forward with his Atkins claim unless he has produced expert testimony by a qualified licensed psychologist or psychiatrist that he meets the clinical definition of intellectually disabled. Chase , 873 So.2d at 1029.

      See n.6, supra.

      See Chase , 873 So.2d at 1029.

      At the time Chase was decided, this organization was called the American Association on Mental Retardation. Chase , 873 So. 2d at 1029.

      Chase specifically mentioned the Minnesota Multiphasic Personality Inventory-II (MMPI-II) as a test designed to detect malingering, but this Court more recently has clarified that it neither endorses the MMPI-II as the best test nor requires it to be given. Lynch v. State , 951 So.2d 549, 557 (Miss. 2007)

      The State also alleged that additional malingering testing was necessary. But Russell was administered malingering instruments in conjunction with his IQ tests in 1989 and 2006, and he was not malingering on either occasion. Because the purpose of a malingering instrument is to ensure the validity of other psychological tests, additional malingering testing would be necessary in this case only if the trial court allowed the State to administer other psychological tests to Russell.

      Dr. Macvaugh also testified that Russell's score on the WAIS-IV would have to be adjusted to account for the Flynn Effect, if he were ordered to take that test.


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Garrett Eugene RAY a/k/a Garrett E. Ray a/k/a Garrett Ray v. STATE of Mississippi
    NO. 2016-KA-01555-SCT
    Supreme Court of Mississippi.
    January 18, 2018 Rehearing Denied March 29, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Garrett Eugene Ray's appointed appellate counsel filed a Lindsey brief, certifying she had thoroughly examined the record and found no arguable issues supporting Ray's appeal. Ray has opted to file a pro se brief. In it, he argues the crack cocaine found in a cigarette pack he tried to discard when approached by officers was unlawfully obtained. He also insists the State violated his constitutional right to confront an informant who provided information to narcotics officers, leading to his drug arrest. This Court disagrees with both of Ray's assertions.

¶ 2. Ray abandoned the cocaine by throwing it out of his vehicle's window. Thus, the drugs were not seized in violation of the Fourth Amendment. Furthermore, the informant did not testify and was not an eyewitness to or a participant in Ray's drug possession. Nor were the informant's statements used against Ray. So the State was not obligated to disclose his or her identity, and there is no Sixth Amendment Confrontation Clause violation.

¶ 3. We affirm.

Background Facts and Procedural History

¶ 4. Investigators with a Stone County narcotics task force received a tip from an informant about an unknown individual offering to sell crack cocaine. On January 15, 2013, Investigators Aaron Grob and Chris Ory met with the informant. The investigators directed the informant to arrange, by phone, a drug sale with this individual for later that day. The drug sale would take place at a gas station on Highway 49 in McHenry, Mississippi.

¶ 5. Testimony from a pretrial hearing showed the informant called Grob and Ory and told them that a black male, driving a white SUV, would be traveling from Harrison County into Stone County. And the SUV would park on the north side of the gas station's parking lot. Investigators Grob and Ory were given the dealer's phone number. Grob and Ory left the task force office and traveled to McHenry, Mississippi. The informant was not with them.

¶ 6. The investigators set up surveillance at McDaniel's Country Store across Highway 49 from the gas station. Less than an hour later, they spotted a black male driving a white Toyota Sequoia pull into the gas station parking lot. The driver parked on the gas station's north side. The vehicle had a Harrison County license plate, matching the description the investigators had received.

¶ 7. Investigators Grob and Ory drove across Highway 49 from McDaniel's to the gas station. Ory got out of the vehicle and approached the SUV from the front. Meanwhile, Grob drove around the gas station and parked behind the SUV. Grob called the number provided by the informant. He then watched the driver answer a cell phone and begin speaking. Ory also observed Grob make the call and saw the driver answer a cell phone and begin speaking.

¶ 8. At this point, Grob got out of his vehicle and approached the SUV on the passenger's side. The investigators were in plain clothes but had their badges visibly displayed around their necks. Both identified themselves as law enforcement. The driver's attention was focused on Grob. Not seeing Ory approach from the front driver's side, the driver threw a green Newport cigarette pack out the driver's window. The cigarette pack hit Ory in the chest, and he caught it in his hands.

¶ 9. The investigators then removed the driver from the SUV, handcuffed him, and explained why they were detaining him. At trial, both investigators identified Ray as the driver.

¶ 10. Ray initially claimed they had "the wrong guy." But he immediately backtracked and said "you've got me, sir." Once Ray was in handcuffs, Ory and Grob opened the cigarette pack and found two individually wrapped, rock-like substances, along with some cigarettes. A field test identified the substances as "cocaine base."

¶ 11. Ray was taken to the Stone County narcotics task force office and given a Miranda form. Grob explained the form and Ray's Miranda rights. Ory observed Grob explain the form to Ray, and Ray sign the form, waiving his rights. Ray then gave an oral statement to Grob. He told Grob that he had recently begun manufacturing and selling crack cocaine. He admitted he had planned to sell the larger of the two rocks and either sell or use the smaller. On March 7, 2013, Chris Wise with the Mississippi Crime Laboratory tested the two individually wrapped rocks. He identified one as .3 grams and the other as 1.1 grams-both contained cocaine.

¶ 12. Ray was indicted on October 23, 2013, for possessing cocaine with the intent to distribute. On January 14, 2014, Ray waived arraignment and pleaded not guilty. On May 13, 2014, the State moved to amend Ray's indictment to reflect his habitual-offender status, citing four previous convictions for transfer of a controlled substance. Ray filed a motion requesting the State produce the confidential informant, alleging the informant was present and participated in the criminal activity.

¶ 13. On September 18, 2014, Judge Bourgeois heard testimony from Investigator Grob and arguments on whether the confidential informant should be revealed. But Judge Bourgeois withheld a ruling. He gave Ray more time to present further arguments to the court. Neither the record nor the transcript contains the judge's ruling. However, Judge Bourgeois later referred to a ruling by Judge Clark denying Ray's motion to reveal the confidential informant. The informant was not an eyewitness at the gas station on January 15, 2013, and did not testify at Ray's trial.

¶ 14. Ray's first trial began on January 20, 2015, before Judge Clark. That same day, the State moved to amend Ray's indictment to include the cocaine's weight. Ray did not object to this amendment. Ray's first trial ended in a mistrial after the jury could not reach a unanimous verdict. So Ray was retried on September 20 and 21, 2016, before Judge Bourgeois. This time, the jury found Ray guilty of possessing cocaine with intent to distribute. Ray was sentenced as a habitual offender to sixteen years in the custody of the Mississippi Department of Corrections, to be served day-for-day.

¶ 15. Ray's appellate counsel has filed a Lindsey brief. She maintains there are no arguable issues for appeal. Ray chose to file a pro se brief, asserting: (1) he was denied the right to make a statement to the jury without taking the stand, (2) his arrest was the result of an unlawful search and seizure, (3) he was wrongfully denied the right to confront the confidential informant, and (4) his trial and appellate counsel were constitutionally deficient.

Discussion

I. Opening Statement

¶ 16. Ray is correct that he had a right to make an opening statement "without impingement of his constitutional right against self-incrimination." Trunell v. State , 487 So.2d 820, 826 (Miss. 1986). But the trial judge never denied Ray this right. Ray admits in his brief that his trial lawyer advised him against making an opening statement to the jury. And Ray followed this advice. In short, Ray never requested and was not denied an opportunity to make an opening statement. Thus, there is no error.

II. Unlawful Search and Seizure

¶ 17. Ray argues the evidence against him was unlawfully obtained because Grob and Ory did not have a search warrant. He also insists he was illegally arrested. Both of his assertions lack support.

A. Search and Seizure

¶ 18. Ray was neither under arrest nor had he been stopped and detained when Investigators Grob and Ory approached and identified themselves as law enforcement. Rather, Ray voluntarily threw the cigarette pack out the driver's window. Unbeknownst to him, Ory was standing near his driver's side window and watched Ray throw the pack.

¶ 19. Ray's own acts disclosed the cigarette pack and its contents, so "there was no seizure in the sense of the law when the officers examined the contents ... after it had been abandoned." Hester v. U.S. , 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). In Harper v. State , a defendant who had failed to comply with officers' instructions to stop, but was not seized or arrested, discarded a matchbox containing cocaine. Harper v. State , 635 So.2d 864, 867 (Miss. 1994). This Court deemed the drugs were abandoned and not the fruit of an unlawful seizure or arrest. Id. Similarly here, Ray had not been seized or arrested when he threw the cigarette pack out of his driver's side window. So there was no Fourth Amendment violation.

B. Arrest

¶ 20. A warrantless arrest requires probable cause. See Smith v. State , 386 So.2d 1117, 1119 (Miss. 1980) (citations omitted). "[P]robable cause, as the very name implies, [deals] with probabilities." Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). These probabilities "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. "Probable cause exists where 'the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Draper v. United States , 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959) (quoting Carroll v. United States , 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925) ).

¶ 21. Here, Investigators Grob and Ory heard Ray set up a drug sale with the informant. Later that day, the informant called Grob and Ory and gave a description of the seller and the seller's vehicle. Grob and Ory observed an African-American man, driving a white SUV with Harrison County tags, park in the pre-arranged part of the gas station's parking lot-all of which matched the informant's information. Grob pulled in behind the SUV and dialed the seller's number, which the informant had also provided. Both Grob and Ory saw Ray answer the phone and begin speaking to Grob. At that point, both investigators identified themselves and approached the SUV. Ray then threw his cigarette pack-containing the cocaine-out his driver's side window.

¶ 22. Between the informant's corroborated information and the officers' own observations, there were articulable facts within investigators' knowledge leading them to reasonably believe a person matching Ray's description had arrived at the gas station to sell cocaine. We see no error in Ray's arrest.

III. Confidential Informant

¶ 23. Ray also argues the trial judge violated his Sixth Amendment right to confront the informant by not requiring the State to disclose his or her identity.

¶ 24. Citing Turner v. State , Ray argues that, because the confidential informant was an "eyewitness" to Ray's criminal activity, the State had a duty to disclose the informant's identity. Turner v. State , 501 So.2d 350, 352 (Miss. 1987). In Turner , this Court reversed a trial judge who denied a continuance to locate a previously undisclosed informant who was an eyewitness to the hand-to-hand drug sale underlying Turner's criminal charges. After review, we find that Turner involved a much different scenario and is inapplicable here.

¶ 25. In this case, Ray's counsel filed a pretrial motion seeking disclosure of the informant's identity. The request was prompted by Ray's lawyer's erroneous belief that the informant was present when Ray was arrested and the drugs discovered. A pretrial hearing was held, and testimony established that-unlike in Turner -the informant was not an eyewitness. Instead, the informant had arranged by phone for an individual-who had recently contacted the informant seeking to sell drugs-to deliver cocaine to the gas station. But the informant was not an eyewitness to nor a participant in Ray's drug possession at the gas station. Indeed, the informant was not even present when Ray arrived at the gas station, discarded the cocaine, and was arrested. After hearing this evidence, the trial judge denied Ray's request to disclose the informant's identity.

¶ 26. We review a circuit judge's ruling regarding disclosure of a confidential informant for abuse of discretion. Hannah v. State , 111 So.3d 1196, 1200 (Miss. 2013) (citation omitted).

¶ 27. Uniform Rule of Circuit and County Court Practice 9.04(B)(2) explains:

Disclosure of an informant's identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe the constitutional rights of the accused or unless the informant was or depicts himself/herself as an eyewitness to the event or events constituting the charge against the defendant.

¶ 28. Again, there was no evidence the informant was an eyewitness to Ray's drug possession. And there were no allegations of entrapment, misidentification, or other similar claims necessitating disclosure. In short, neither Ray nor his attorney showed how the informant's identity was material to Ray's drug possession. We see no abuse of discretion by the trial court. And Ray's Sixth Amendment right to confrontation was not violated. However, even if denying disclosure was error, it was at most harmless, based on the overwhelming evidence of Ray's guilt, including his abandonment of the cocaine and confession.

IV. Ineffective Assistance of Counsel

¶ 29. Lastly, Ray argues both trial and appellate counsel were ineffective. While Ray asserts that appellate counsel "... has not attempted to fully argue all of the raised issues in the J.N.O.V.," he points to no failings or errors by trial counsel.

¶ 30. The standard for considering ineffective assistance is the same for appellate and trial counsel. Foster v. State , 687 So.2d 1124, 1138 (Miss. 1996) (citation omitted). To prevail on a claim of ineffective assistance of counsel, Ray must show: (1) his attorney's performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). To qualify as deficient, an attorney's performance must fail to meet "an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. at 2064-65. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." Id. at 689, 104 S.Ct. at 2065 (citation omitted). For prejudice to exist, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

¶ 31. Ray points to no purported deficiencies by trial counsel. And his appointed appellate counsel followed the correct procedure under Lindsey , 939 So.2d at 748. We find Ray has not met his burden of showing deficient, prejudicial performance by either of his attorneys.

Conclusion

¶ 32. Ray abandoned the evidence he now complains of and the trial judge did not abuse his discretion in not requiring disclosure of the informant. If he did, the denial was at most harmless error. Furthermore, Ray fails to show his trial and appellate counsel were constitutionally deficient. We therefore affirm Ray's conviction and sentence.

¶ 33. AFFIRMED .

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      See Lindsey v. State , 939 So.2d 743, 748 (Miss. 2005) (appellate counsel must certify that he or she has thoroughly examined the record, and that there are no arguable issues supporting the defendant's appeal).

      See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      In his reply brief, Ray argues the audio recording of his phone call with the informant was illegally obtained, therefore any resulting evidence was tainted and inadmissible. Ray also argues that certain evidence-his oral statement made to Grob and the cigarette pack-should have been excluded by the trial court. But this Court does not consider issues raised for the first time in an appellant's reply brief. Sanders v. State , 678 So.2d 663, 669-70 (Miss. 1996) (citations omitted).

      The rules governing disclosure of confidential informants have changed now that the Mississippi Rules of Criminal Procedure have taken effect. See Miss. R. Cr. P. 17.6(a)(2).

      See also Esparaza v. State , 595 So.2d 418, 424 (Miss.1992) ("[T]he confidential informant did not witness the offense charged and did not serve as a witness in the proceeding. The informant merely provided data that established probable cause to support a search warrant. Under Mississippi law, that degree of connection with the crime charged constitutes too tenuous a link to justify disclosing the informant.")

      To the extent Ray now raises hearsay challenges to Grob's and Ory's general testimony about tips they received about criminal activity, any objection was forfeited and lacks merit. Not only was there no objection, but even if there had been, "an informant's tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time." Swindle v. State , 502 So.2d 652, 657-58 (Miss. 1987).

      See Delaware v. Van Arsdall , 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (finding "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt").


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Ralph Arnold SMITH, Jr., individually, and ex rel. The State of Mississippi v. James M. HOOD, III, who purports to be Acting as Attorney General for the State of Mississippi
    NO. 2016-CA-01438-SCT
    Supreme Court of Mississippi.
    March 1, 2018 Rehearing Denied April 12, 2018
    ATTORNEY FOR APPELLANT: WILLIAM CHARLES BELL
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: HAROLD EDWARD PIZZETTA, III
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Ralph Smith sued the Attorney General of Mississippi, Jim Hood, in the Hinds County Circuit Court. Smith filed various causes of action, each of which was premised on Smith's purely legal argument that the Office of the Attorney General is in the judicial branch of the state government. The circuit court disagreed with Smith and found that, as a matter of law, the Office of Attorney General is in the executive branch, and so, the circuit court granted summary judgment in favor of Hood. Smith now appeals.

¶ 2. This case requires this Court to address whether the Office of Attorney General-located in Article 6 of our state Constitution-is a member of the executive or judicial branch of our government. We find our caselaw on this question is clear: the Office of Attorney General is a member of the executive branch of the government. And so, we affirm the circuit court's grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2012, Smith was arrested and indicted in Leflore County for capital murder, conspiracy, and burglary. This arrest led to a litany of suits filed against various parties including: the State of Mississippi, the District Attorney for the Fourth Circuit, the Attorney General's Office, the Department of Mental Health, and the Greenwood Police Department.

¶ 4. Relevant to this appeal, on June 27, 2016, Smith filed a civil action against the Attorney General of Mississippi, Jim Hood, in the Hinds County Circuit Court. The specific cause of action brought by Smith was, initially, a complaint for quo warranto under Mississippi Code Section 11-39-1 (Rev. 2012). But, over the course of the proceedings, the circuit court twice allowed Smith to amend his complaints. The second amended complaint contained three causes of action: a statutory writ of quo warranto , a declaratory judgment, and a statutory writ of prohibition. All of Smith's causes of action were premised on the legal theory that the Attorney General is a judicial officer, and thus, he was precluded from carrying out any law-enforcement or prosecutorial duties, as those are duties reserved for the executive branch.

¶ 5. After Smith filed his first amended complaint, the Attorney General filed an answer and moved for summary judgment-arguing among other things that, as a matter of law, this Court had determined conclusively that the Attorney General is housed in the executive branch of our state government. After additional procedural actions, and a hearing on the matter, the circuit court granted summary judgment in favor of the Attorney General. In granting the summary judgment, the circuit court agreed with the Attorney General that, as a matter of law, the Office of Attorney General is within the executive branch of the state government. And so, on October 4, 2016, the circuit court entered a final judgment. The next day, Smith timely filed his notice of appeal.

STANDARD OF REVIEW

¶ 6. Under Rule 56 of the Mississippi Rules of Civil Procedure, summary judgment is proper in cases where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). On appeal, this Court reviews a circuit court's grant of summary judgement de novo. Conrod v. Holder , 825 So.2d 16, 18 (Miss. 2002).

DISCUSSION

¶ 7. Appealing the circuit court's grant of summary judgment in favor of the Attorney General, Smith argues that, under the Constitution of the State of Mississippi, the Attorney General is within the judicial branch. In light of this Court's well-established caselaw on this question, we find Smith's argument completely devoid of legal merit.

¶ 8. The offices of Attorney General and the state's district attorneys find their creation in Article 6 of our Constitution. Miss. Const. art. 6, §§ 173, 174. Article 6 is titled "Judiciary," and, along with the creation of the Office of Attorney General, Article 6 also creates the judicial branch of the Mississippi state government. Miss. Const. art. 6. Because of its placement under article 6, Smith argues that as a purely legal matter, the Attorney General (and district attorneys) are members of the judicial branch and not the executive branch. Yet this argument ignores this Court's caselaw on this question.

¶ 9. Indeed, when addressing a location-based argument, as Smith makes here, we have held that an office's location within the text of the Constitution does not necessarily determine its branch of government. See Dye v. State ex rel. Hale , 507 So.2d 332 (Miss. 1987) (noting that, even though the offices of Attorney General and district attorney are found under the article labeled "Judiciary," they belong to the executive department of government). In explaining the significance (or lack thereof) of where an office is created under our Constitution, we have explained:

We think the import of the constitution's article labels more modest. They are a mere facility of convenience, adding or detracting nothing from the content of the substantive language of the various sections of the constitution. Indeed, the article labels carry no more significance than do the section numbers.

Id. at 346 n.20.

¶ 10. In In re Fordice , we also opined that the Office of Attorney General was a member of the executive branch. In re Fordice , 691 So.2d 429 (Miss. 1997) (holding that this Court did not have original jurisdiction over the Governor's petition seeking mandamus or prohibition against the Attorney General because the Governor sought "to direct or prohibit action on behalf of an officer within the executive branch of government " (i.e, the Attorney General) ) (emphasis added). And when addressing other prosecutorial offices, such as that of a district attorney, we have explained that a prosecutor "is an officer of the executive department of government, as distinguished from the judicial department." Jackson v. State , 311 So.2d 658, 661 (Miss. 1975).

¶ 11. After reviewing the relevant caselaw, we find that Smith's argument that our Constitution places the Office of Attorney General within the judicial branch is without merit. First, Smith bases his argument on the mere fact that the office is located within Article 6, which is entitled "Judiciary," and this location-based argument is one that we have explicitly rejected. See Dye , 507 So.2d at 332. Second, we have been consistent in our finding that the Office of Attorney General is a component of the executive branch. And while we are cognizant of the fact that we never have directly confronted a case in which a litigant, such as Smith, challenges the Attorney General's ability to discharge his law-enforcement and prosecutorial duties (by arguing that he is constitutionally prohibited from discharging such duties), we find that our previous opinions addressing this matter are clear: the Office of Attorney General, under our Constitution, is a component of the executive branch. That the office is located within the article entitled "Judiciary" is of no consequence.

CONCLUSION

¶ 12. With all this in mind, we find that the circuit court was correct in finding Smith's argument legally flawed. And so we affirm the circuit court's grant of summary judgment in favor of the Attorney General. In affirming the circuit court, we decline to consider the propriety of Smith's claims in and of themselves.

¶ 13. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.


text:
    Stacy TRIPLETT v. SOUTHERN HENS, INC.
    NO. 2016-CA-01157-SCT
    Supreme Court of Mississippi.
    March 15, 2018
    ATTORNEYS FOR APPELLANT: ADAM FRAZIER THRASH, GARY DALE THRASH
    ATTORNEYS FOR APPELLEE: STEPHEN J. CARMODY, CHRISTOPHER RAY FONTAN
    BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Stacy Triplett filed three lawsuits against her former employer, Southern Hens-all stemming from an incident in which Triplett, while working, witnessed the gruesome death of a coworker. This incident caused Triplett mental anguish leading to an award of workers' compensation benefits. After Triplett allegedly incurred some trouble in collecting her award of workers' compensation benefits, Triplett sued Southern Hens and Southern Hens's carrier, Liberty Mutual. Triplett's first lawsuit against Southern Hens, for failure to pay, ultimately was dismissed. Triplett then filed a second lawsuit against Southern Hens in the Jones County Circuit Court, this time for failure to report. But for whatever reason, Triplett failed to serve Southern Hens within 120 days, as required under Mississippi Rule of Civil Procedure 4(h).

¶ 2. With no official court action on her second suit, and admittedly knowing that she could not show good cause for failure to serve in the second suit, Triplett filed a third suit against Southern Hens in the Jones County Circuit Court. This suit, like Triplett's second one, was for failure to report. Aware of the second suit, the circuit court dismissed Triplett's third suit as an impermissible duplicative suit. Triplett appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In early September 2012, Triplett, an employee at Southern Hens working the night shift, witnessed the gruesome death of a coworker. The incident caused Triplett emotional trauma-for which she sought the medical treatment of a physician. The treating physician released Triplett from work and prescribed her medication coupled with counseling sessions.

¶ 4. While these facts are disputed, Triplett claims that Southern Hens received notice that her injury was work-related on several occasions between September 9, 2012, and October 10, 2012. Triplett claims that Southern Hens failed to timely report the claim to the insurer, Liberty Mutual-which led to an inexcusable delay of Triplett receiving her benefits. And so, in July 2013, Triplett filed a petition to controvert her claim with the Mississippi Workers' Compensation Commission (the Commission), alleging that she had suffered a compensable injury in the course of her employment and she had suffered a disability as a result. Then in August 2013, Triplett filed a motion to compel medical benefits and weekly compensation against the employer and carrier. On October 17, 2013, the judge for the Commission entered an order in which the judge found no medical evidence to dispute Triplett's total-disability claim and also awarded Triplett a ten-percent penalty for untimely paid benefits. After the award, however, Triplett had trouble collecting the scheduled benefit payments from the insurer. Triplett's trouble in receiving timely payments led to three different lawsuits.

¶ 5. First, on April 9, 2014, Triplett filed suit against Southern Hens and Liberty Mutual in the Jones County Circuit Court (Triplett I ). In this suit, Triplett sued Southern Hens and Liberty Mutual for alleged bad faith and gross negligence relating to their alleged failure to pay her workers' compensation benefits in a timely manner. On May 13, 2014, Southern Hens and Liberty Mutual jointly removed the case to the United States District Court for the Southern District of Mississippi. On August 27, 2014, the United States District Court granted Southern Hens's Rule 12(b)(6) motion and dismissed Triplett's failure-to-pay lawsuit against Southern Hens. Specifically, the district court ruled that Triplett had failed to state a claim for relief against Southern Hens for alleged bad faith or gross negligence.

¶ 6. Nearly ten months after filing her first suit, on June 9, 2015, Triplett filed a second suit against Southern Hens, again in the Jones County Circuit Court (Triplett II ). This time, Triplett sued only Southern Hens, and did so under a new theory of liability-alleged bad faith and gross negligence in failing to report her claim to Liberty Mutual in a timely manner. Even though she filed the claim, Triplett failed to serve Southern Hens with process within the mandatory 120-day period prescribed under the Mississippi Rules of Civil Procedure.

¶ 7. On December 22, 2015, with Triplett II still pending in the same court, Triplett filed a third lawsuit against Southern Hens in the Jones County Circuit Court (Triplett III ). The legal theory on which Triplett sued on in this suit was the same as it was in Triplett II -bad faith failure to report. Then on March 7, 2016, Southern Hens moved to dismiss Triplett III. At the time it filed its motion, Southern Hens was unaware that Triplett II even existed-because the company never had been served with process in that suit. Oral argument on Southern Hens' motion was heard, and during the hearing, Triplett's counsel notified Southern Hens and the circuit court of the existence of Triplett II -including the fact that Triplett never had served Southern Hens with process in that case. Following the hearing, the circuit court ordered both parties to provide supplemental briefing on the issue of whether Triplett II tolled the statute of limitations for purposes of Triplett III.

¶ 8. On May 23, 2016, the circuit court dismissed Triplett II. And then finally, after reviewing the supplemental briefing, the circuit court dismissed Triplett III on July 13, 2016. The basis for the circuit court's dismissal was that-by filing Triplett III -Triplett had violated Mississippi's rule prohibiting duplicative litigation (claim-splitting). The circuit court, however, declined to address the statute-of-limitations issue-as it was not dispositive.

¶ 9. On August 8, 2016, Triplett appealed the circuit court's dismissal of Triplett III.

STANDARD OF REVIEW

¶ 10. A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure presents an issue of law, and it is reviewed de novo. Cook v. Brown , 909 So.2d 1075, 1077-78 (Miss. 2005). Indeed, a Rule 12(b)(6) motion for failure to state a claim "tests the legal sufficiency of the complaint." Lang v. Bay St. Louis/Waveland Sch. Dist. , 764 So.2d 1234, 1243 (Miss. 1999). This Court must affirm the grant of the circuit court's motion to dismiss if, taking the allegations in the complaint as true, there is no set of facts that would allow the plaintiff to prevail. Poindexter v. Southern United Fire Ins. Co. , 838 So.2d 964, 966-67 (Miss. 2003).

DISCUSSION

¶ 11. On appeal, Triplett argues that the circuit court erred in finding that, by filing her third lawsuit against Southern Hens while her second lawsuit was still pending, she violated Mississippi's prohibition on duplicative actions.

¶ 12. Under Mississippi law, plaintiffs are prohibited from bringing duplicative actions. See Carpenter v. Kenneth Thompson Builder Inc. , 186 So.3d 820, 824-827 (Miss. 2014). This rule finds its roots in the policy rationale of judicial economy: it works to prevent the waste of scarce judicial resources and to foster "the efficient and comprehensive disposition of cases." Id. at 824 (citing Katz v. Gerardi , 655 F.3d 1212, 1217 (10th Cir. 2011) ). Indeed, we have held "[p]laintiffs have no right to maintain two actions on the same subject in the same court, against the same defendant at the same time." Id. (quoting Curtis v. Citibank , 226 F.3d 133, 139 (2d Cir. 2000) ). And "[u]nlike the doctrine of res judicata, a final judgment is not required in order to apply a claim-splitting analysis; rather, the test is 'whether the first suit, assuming it were final, would preclude the second suit.' " Id. at 825 (quoting Katz , 655 F.3d at 1218-19 ).

¶ 13. Here, Triplett meets the test for duplicative actions as set forth in Carpenter . First, Triplett was maintaining two actions (Triplett II and III ), on the same subject (bad-faith failure to report), against the same defendant (Southern Hens), at the same time. See Carpenter , 186 So.3d at 824. And if this Court were to assume that Triplett's second suit against Southern Hens, for bad-faith failure to report, was final, it certainly would have precluded her third suit against Southern Hens, which also was for bad-faith failure to report. See id. at 825.

¶ 14. But Triplett contends that her case fails to meet this test. In fact, Triplett argues that she was not maintaining two actions at the same time. In making this assertion, Triplett argues that when she filed her third case, the second suit already was nullified due to her failure to serve process under Rule 4(h). Triplett's argument, simply put, is that there was no duplicative action here because her second suit was dismissed by operation of Rule 4(h).

¶ 15. Rule 4(h) requires service of the summons and complaint within 120 days of filing of the complaint, or the action shall be dismissed without prejudice unless "good cause" can be shown as to why service was not made within that period. M.R.C.P. 4(h). Triplett admits that she did not possess "good cause" as required under Rule 4(h). Instead, what Triplett argues is that, once the 120-day period had passed, her second case (Triplett II ) was dismissed by operation of Rule 4(h). In other words, Triplett's position is that the circuit court need not dispose of the action for it to be dismissed. But this argument runs counter to this Court's holding that, even after the 120-day period for service of process lapses, the trial court must formally dismiss the complaint before it becomes a nullity. Crumpton v. Hegwood , 740 So.2d 292, 294 (Miss. 1999) (holding that, at the end of the 120 days provided for under Rule 4(h), the statute-of-limitations period begins to run again, but the complaint itself is not automatically dismissed).

¶ 16. Here, despite the fact that Triplett admittedly had no basis to seek an extension of time to effectuate service of process, the circuit court did not dismiss Triplett II until May 23, 2016-five months after she had filed the duplicative suit, Triplett III. And so Triplett's second suit, despite her argument, technically was being maintained at the time she filed her third suit. Because of this, we find Triplett's argument-that she was not maintaining two actions at the same time-unpersuasive.

¶ 17. Next, in support of her contention that she was not maintaining two suits at the same time, Triplett argues that, at the time the order dismissing her third suit was rendered, her second suit had been formally terminated. And so Triplett argues that she was not maintaining her second suit. We also find this argument unpersuasive. Triplett violated the prohibition of duplicative actions at the moment she filed her third suit, on December 22, 2015. At that time, both of Triplett's suits (Triplett II and Triplett III ) were active, and thus, her third suit became null. That her second suit was dismissed before the circuit court's order dismissing her third suit is irrelevant.

¶ 18. And finally, Triplett argues that there was no evidence that she filed her third action to improperly extend a procedural right that she otherwise would not have had. Indeed in Carpenter , we quoted an opinion from the Tenth Circuit Court of Appeals explaining that "a plaintiff may not use the tactic of filing two substantially identical complaints to expand the procedural rights he would have otherwise enjoyed." Carpenter , 186 So.3d at 824 (quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp. , 296 F.3d 982, 990 (10th Cir. 2002) (internal quotations omitted) ). That said, we find this argument unpersuasive. For one, under Carpenter , this is not the conclusive test for whether a plaintiff has violated the prohibition on duplicative actions; it is but a part of a broader consideration. Also, contrary to Triplett's assertion here, the record shows that, in filing her third suit, Triplett did extend a procedural right which she otherwise would not enjoy. Indeed, filing the third suit-had the circuit court allowed it to proceed-would have tolled the statute of limitations for her bad-faith, failure-to-report claim.

¶ 19. As for the Carpenter case itself, Triplett argues that the facts of that case are wholly distinguishable from the facts here. Indeed, in Carpenter , the plaintiff, a year after filing her suit, moved to amend the complaint to add new defendants. Carpenter , 186 So.3d at 822. The motion to amend was filed within the statute of limitations. Id. Later, the plaintiff filed a second motion seeking leave to amend her complaint and unsuccessfully attempted to set a hearing on the motion before the expiration of the statute of limitations. Id. at 823. The circuit court ultimately approved the second amended complaint-after the statute of limitations had run. Id. Anticipating that the amendment would not be granted, the plaintiff filed a second complaint prior to the statute-of-limitations deadline. Id. The defendant then moved to dismiss both cases, and the circuit court dismissed the second suit, finding that it impermissibly split the plaintiff's claim. Id. On appeal, this Court affirmed the circuit-court judgment, holding that plaintiffs have no right to maintain two actions on the same subject, in the same court, against the same defendant, at the same time. Id. at 824.

¶ 20. We recognize that the facts of Triplett's case are not the same as the facts of Carpenter . Triplett was not awaiting a ruling on a motion before the circuit court; however, the plaintiff in Carpenter was. Additionally, the plaintiff in Carpenter filed the second action to bar the newly discovered defendants from raising a statute-of-limitations defense; while here, Triplett filed Triplett III against the same defendant (Southern Hens). So, while we are cognizant of the fact that these cases are not factually similar, we find that Carpenter is important here, not because of its specific facts, but because of the rule set forth in the opinion. And this rule gives us a test, which, as we explained above, is met here.

¶ 21. What is more, in expounding upon the rule prohibiting duplicative claims, this Court in Carpenter relied on a case from the Seventh Circuit Court of Appeals that is factually similar to Triplett's case here. See Carpenter , 186 So.3d at 826 ; see also Serlin v. Arthur Andersen & Co. , 3 F.3d 221 (7th Cir. 1993). In Serlin , the defendants moved to dismiss a complaint on grounds that it was not served within the time limits as set forth in Rule 4(j) of the Federal Rules of Civil Procedure. Serlin , 3 F.3d at 223. Realizing that the motion might not be ruled upon within the applicable statute of limitations, the plaintiff in Serlin filed a second complaint in the same court, against the same defendant. Id. Upon motion by the defendant, the trial court dismissed the plaintiff's second complaint as duplicative of his first one. Id. On appeal, the Seventh Circuit affirmed the dismissal as a duplicative action, which it found was filed in an attempt to preserve a claim after the plaintiff had failed to serve process in conformance with the rules in the original action. Id. at 221.

¶ 22. The facts of Serlin are similar to the facts here. Like the plaintiff in Serlin , Triplett, in Triplett II , failed to serve process on the defendants within the time frame (120 days) required under the rules. And so, knowing she could not show good cause, Triplett, just as like the plaintiff in Serlin , filed another suit, Triplett III -alleging the same cause of action, against the same defendant, in the same court. In fact, the only difference between the two cases is that in Serlin , there was a pending motion to dismiss for failure to timely serve process; where as here, there was no pending action on Triplett II relating to Triplett's failure to timely serve process. Indeed, the record shows that Southern Hens was not even aware of the second suit, Triplett II , for failure to report-as it had not been served with process.

¶ 23. That Triplett may find herself outside of the statute of limitations due to Triplett III being declared null is of no consequence. As the Seventh Circuit noted in Serlin , "even if [the plaintiff] eventually does find himself out of court, that result will be entirely a consequence of the plaintiff's own failure to follow the rules." Serlin , 3 F.3d at 224. Additionally, the Serlin Court further noted that the plaintiff had legitimate methods to preserve his claim-for example, he could have promptly and voluntarily dismissed the case and then refiled it with proper service. Id. Here, by not effectuating service within 120 days, Triplett, like the plaintiff in Serlin , failed to follow the rules. And just as the Seventh Circuit noted, Triplett, like the plaintiff in Serlin , could have used legitimate means to preserve her claim-such as voluntarily dismissing Triplett II. But Triplett did not do this; she instead chose to file a duplicative claim in the same court, regarding the same matter, against the same defendant.

CONCLUSION

¶ 24. In sum, we find that Triplett-by filing Triplett III while Triplett II was still pending-violated the prohibition against duplicative actions. Indeed, Triplett III was filed against the same defendant as in Triplett II (Southern Hens), in the same court as Triplett II (Jones County Circuit Court), and Triplett III sought the same relief sought in Triplett II (bad-faith failure to report). And so this Court must ask "whether the first suit, assuming it were final, would preclude the second suit." See Carpenter , 186 So.3d at 825 (quoting Katz , 655 F.3d at 1218-19 ). And to that end, we find that it would. For these reasons, we affirm the circuit court's dismissal of Triplett III as an impermissible duplicative action.

¶ 25. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      We find it important to note that-as for the duplicative-claim analysis-the majority's opinion in Carpenter garnered only a plurality of the votes of this Court. But the concerns which kept the separate opinion in Carpenter from joining the majority opinion do not apply here. For one, the separate opinion, authored by Justice Lamar, took issue with the particular facts of Carpenter . Specifically, the separate opinion did not agree that, in that case, the identity-of-the-parties element was met. Carpenter , 186 So.3d at 828 (Lamar, J., concurring in part, dissenting in part). But Carpenter involved multiple defendants, and here, it is undisputed that Triplett II and Triplett III both dealt with the same singular defendant-Southern Hens. What is more, the separate opinion in Carpenter seems to suggests that in this case, on these facts, there would be an impermissible duplicative action. Indeed, the separate opinion noted that "[t]he majority correctly state[d] that 'plaintiffs have no right to maintain two actions on the same subject in the same court, against the same defendant at the same time.' " Id. (quoting Curtis v. Citibank , 226 F.3d 133, 139 (2d Cir. 2000) ). And here, you have two actions (Triplett II and III ), on the same subject (failure to report), filed in the same court (Jones County Circuit Court), against the same defendant (Southern Hens), and at the same time.