Carr v. State

• Decision Date: 11 August 2016
• Docket Number: No. 2014–CA–00726–SCT.,2014–CA–00726–SCT.
• Parties: Anthony CARR v. STATE of Mississippi.
• Court: Mississippi Supreme Court

196 So.3d 926

Anthony CARR

v.STATE of Mississippi.

No. 2014–CA–00726–SCT.

Supreme Court of Mississippi.

Aug. 11, 2016.

Office of Capital Post–Conviction Counsel by Alexander Kassoff, Jamila K. Alexander, Louwlynn V. Williams, attorneys for appellant.

Office of the Attorney General by Jason L. Davis, Cameron Benton, attorneys for appellee.

EN BANC.

LAMAR

, Justice, for the Court:

¶ 1. The Eighth Amendment to the United States Constitution prohibits execution of persons who are intellectually disabled.¹ Following a hearing, the Circuit Court of Quitman County found that death-row inmate Anthony Carr had failed to prove that he is within that category of persons. We reverse and remand for additional findings by the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Just before midnight on February 2, 1990, the Lambert Volunteer Fire Department responded to a call at Carl and Bobbie Jo Parker's home. Carr v. State, 655 So.2d 824, 830 (Miss.1995)

(“Carr I ”). Firemen found Carl and the Parkers' children, twelve-year-old Gregory and nine-year-old Charlotte, dead inside. Id. at 830. Carl and Gregory each had been shot twice. Id. at 832. Their feet and ankles were bound, and their wrists were tied behind their backs. Id. at 830. Charlotte had been shot three times, and a piece of binding was on her wrists. Id. at 830, 832. She was naked from the waist down under her dress, and there was evidence of sexual battery (both vaginally and anally). Id. at 830. Bobbie Jo's body was not found until after the fire was extinguished early the next morning. Id. She was burned beyond recognition and had been shot once. Id. at 830, 832.

¶ 3. Anthony Carr and Robert Simon Jr. were arrested the next day. Id. at 831

. After a nine-day trial, Carr was convicted on four counts of capital murder and sentenced to death for each. Id. at 832. This Court affirmed his convictions and sentences in 1995. Id. at 858.

¶ 4. In 2004, this Court granted Carr leave to proceed in the circuit court on his post-conviction relief claim that he is intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)

. Carr v. State, 873 So.2d 991 (Miss.2004) (“Carr II ”). Following a hearing, the circuit court denied Carr's petition.

¶ 5. Carr now appeals, raising two issues, which we restate as:

I. Is it unconstitutional for Carr to bear the burden of proof here, when the trial judge found that the question of his intellectual disability was “too close to call”?

II. Did the circuit court err in holding that Carr is not intellectually disabled?

DISCUSSION

¶ 6. Before turning to Carr's arguments, we first address briefly the State's argument that Carr's appeal should be dismissed as untimely. The circuit court denied Carr's petition on June 19, 2013. Carr moved for reconsideration under Rules 52(b)

and 59(e) of the Mississippi Rules of Civil Procedure on July 2, 2013—one day after the ten-day deadline under those rules. The court denied reconsideration on March 3, 2014, and, eighty-one days later, on May 23, 2014, Carr filed an out-of-time notice of appeal.²

¶ 7. First, there is no evidence in the record that the State objected or responded to Carr's motion for reconsideration. So the State's challenge to the timeliness of that motion is procedurally barred. Second, while we recognize that Carr's appeal was untimely filed, “[w]e may suspend Rules 2

and 4 ‘when justice demands' to allow an out-of-time appeal in criminal cases.” McGruder v. State, 886 So.2d 1, 2 (Miss.2003) (citing Fair v. State, 571 So.2d 965, 966 (Miss.1990) ).³ We do so here, because the stakes are significant, and the issues merit review.

I. Is it unconstitutional for Carr to bear the burden of proof here, when the trial judge found that the question of his intellectual disability was “too close to call”?

¶ 8. After hearing evidence from Carr and from the State, the trial judge found that the question of intellectual disability was “too close to call.” But because “[t]here cannot be a tie,” the burden of proof became the deciding factor, and the trial judge found that Carr had failed to meet his burden.

¶ 9. Carr argues that he proved by a preponderance of the evidence that he is intellectually disabled. Without conceding that position, he also insists that, even if there was an evidentiary “tie,” the case still must be resolved in his favor. Otherwise, argues Carr, a miscarriage of justice will result because the State will one day execute a person who is just as likely as not intellectually disabled.

¶ 10. To be clear, Carr is not asking this Court to alter the burden of proof in all Atkins cases. Rather, he argues that when the evidence of intellectual disability is an “actual tie”—as the trial judge found here—the State must then bear the risk of error because the possible injury to the petitioner (i.e., death) is far greater than the possible harm, if any, to the State. According to Carr, the social harm in executing someone who could be intellectually disabled, combined with the value that society places on individual liberty, requires the State to bear the risk. Moreover, argues Carr, imposing the risk of error on the State is consistent with the “heightened scrutiny” applied in death-penalty cases.

¶ 11. The State argues first that this issue is procedurally barred because Carr failed to raise it before the circuit court. We agree. See, e.g., Evans v. State, 725 So.2d 613, 632 (Miss.1997)

(collecting authorities). Carr claims it was impossible for him to do so “until the circuit court issued its order declaring the outcome of the hearing a tie.” But while that may be true, Carr could have raised the issue in his motion for reconsideration.

¶ 12. Procedural bar notwithstanding, we find also that this claim lacks merit. As the State points out, the burden of proof in Atkins cases is well-settled.⁴ And simply put, neither the Eighth Amendment nor the Due Process Clause requires that the State bear the burden here.

¶ 13. Carr's argument could be interpreted two ways. On one hand, he seems to argue that allocating the burden of proof to him under these facts violates his substantive Eighth Amendment right against cruel and unusual punishment. But the United States Supreme Court has never held nor even implied that a burden of proof alone can “so wholly burden an Eighth Amendment right as to eviscerate or deny the right.” Hill v. Humphrey, 662 F.3d 1335, 1351 (11th Cir.2011)

(emphasis omitted); see also

Hall v. Florida, –––U.S. ––––, 134 S.Ct. 1986, 2011, 188 L.Ed.2d 1007 (2014) (Alito, J., dissenting) (“As [the petitioner] concedes, the Eighth Amendment permits States to assign to a defendant the burden of establishing intellectual disability by at least a preponderance of the evidence.”).

¶ 14. A second interpretation of Carr's argument implicates due process rather than the Eighth Amendment. In effect, he argues that it is simply unfair to require petitioners to bear the burden of proof when the question of intellectual disability is “too close to call.” We note first that this argument is completely unsupported by any authority. A party either bears the burden of proof or it does not. Stated differently, the burden of proof is not somehow allocated once the evidence has been presented.

¶ 15. And importantly, Atkins did not establish a burden of proof. Nor did it provide definitive procedural or substantive guides for determining who is intellectually disabled. Bobby v. Bies, 556 U.S. 825, 831, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009)

. Instead, consistent with its approach to insanity in Ford v. Wainwright, 477 U.S. 399, 405, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the United States Supreme Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242.

¶ 16. States generally reserve the power to set burdens of proof unless their standard offends some fundamental principle of justice:

[I]t is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Medina v. California, 505 U.S. 437, 445, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992)

(quoting Patterson v. New York, 432 U.S. 197, 201–02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) ). So when analyzing whether a burden of proof offends a “fundamental principle of justice,” courts must consider historical practice and whether the burden violates a recognized principle of “fundamental fairness” in its operation. Medina, 505 U.S. at 446–48, 112 S.Ct. 2572

. But there is no historical prohibition on executing the intellectually disabled. Atkins was based on society's “evolving standards of decency,” not historical tradition. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 ; Hill, 662 F.3d at 1350.

¶ 17. And while some states have not expressly assigned a burden of proof in intellectual disability cases, “[a]ll of the states that have expressly assigned a burden of proof regarding mental retardation have assigned this burden to the defendant.” Peggy M. Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them from Execution, 30 J. Legis. 77, 118 (2003)

; see also

Hill, 662 F.3d at 1355 ; State v. Jimenez, 188 N.J. 390, 402, 908 A.2d 181, 188 (2006) ; opinion clarified, 191 N.J. 453, 924 A.2d 513 (2007). Simply put, the Constitution does not require that the State bear the burden of proof in intellectual disability cases. United States v. Webster, 421 F.3d 308, 311 (5th Cir.2005).

¶ 18. Finally, Carr has cited no authority to support his assertion that the burden of proof should shift to the State...