Smith v. State, 2010 OK CR 24

Smith was convicted in 2003 of two counts of first-degree murder and sentenced to death in Oklahoma County; he previously challenged Judgment and Sentence on direct appeal and in earlier post-conviction proceedings.
In this second post-conviction filing, Smith alleges six claims including mental retardation under Atkins and ineffective assistance of counsel at trial, on appeal, and in post-conviction stages.
The court applies 21 O.S.Supp.2006, § 701.10b to evaluate mental retardation, requiring subaverage intellectual functioning, adaptive limitations, and onset before 18, with an IQ 70 or below as evidence, but explicitly bars IQ scores 76 or higher from being deemed mentally retarded.
Evidence proffered for MR includes IQ tests from 2001 (IQ 76), 2003 (IQ 79), and 2009 (IQ 71); the court concludes two scores (76 and 79) fall outside the statute’s remedial range and thus do not establish mental retardation.
Affidavits from Marcus Berry and Sheena Johnson offered new information but are procedurally barred because facts were known earlier or discovered more than sixty days before the current application, violating Rule 9.7(G)(3).
The court separately rejects theories of exculpatory evidence, ineffective assistance relating to PCP-induced intoxication and Miranda waiver, mitigation evidence as a basis for relief, and alleged errors concerning jury-note handling and cumulative error; all claims are denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith qualifies as mentally retarded under Atkins/701.10b	Smith meets MR criteria via low IQ, adaptive deficits, and onset before 18.	Scores 76 or higher exclude MR; evidence insufficient under statute.	No denial of MR; statute bars MR with IQ 76+; claim waived.
Whether newly offered exculpatory affidavits are procedurally barred	Affidavits show coercion and false testimony; exculpatory evidence was withheld.	Information was known earlier; second-PCR bar applies; discovery rules not met.	Procedurally barred; not entitled to relief.
Whether counsel were ineffective for Miranda waiver regarding PCP/mental impairment	Properly credentialed experts would show non-voluntary waiver due to PCP/low IQ/organic brain damage.	Evidence would not likely change trial court’s voluntariness finding; no prejudice.	No prejudice; Strickland OK; no relief.
Whether mitigation at sentencing was ineffective due to lack of evidence of brain damage/low intelligence	Mitigating evidence of PCP-induced brain damage and low intelligence should have been presented.	Evidence is a two-edged sword and unlikely to change sentencing outcome.	No reasonable probability of different result; not ineffective.
Whether jury-note handling and cumulative error warrant relief	Trial court’s handling of jury notes violated rights.	Issue resolved on direct appeal; res judicata bars further consideration.	Denied; res judicata applies.

Atkins v. Virginia, 536 U.S. 304 (U.S. 2002) (execution of mentally retarded violates Eighth Amendment)
Ford v. Wainwright, 477 U.S. 399 (U.S. 1986) (state must develop provisions restricting execution of the insane)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard; deficient performance and prejudice required)
Jackson v. Denno, 378 U.S. 368 (U.S. 1964) (in camera hearing on voluntariness of confession)
Berget v. State, 907 P.2d 1078 (Okla. Crim. App. 1995) (procedural bar/waiver principles for post-conviction claims)