Blonner v. State

H35 ¶ 4 HANDS AND THE WITNESS OUR day this 20th SEAL OF THIS COURT December, 2005. 2005 OK CR 29 Chapel Charles S. /s/ OF the In re OF PORTION REVISION CHAPEL, Presiding Judge CHARLES S. OF OF the COURT CRIMINAL RULES Gary Lumpkin L. /s/ of Oklahoma. APPEALS OF STATE LUMPKIN, Presiding Judge L. GARY Vice A. Charles Johnson /s/ No. CCAD-2005-9. JOHNSON, Judge A. CHARLES Arlene Johnson /s/ Appeals of Court of Criminal Oklahoma. JOHNSON, Judge ARLENE David Lewis /s/ Dec. 2005. LEWIS, Judge DAVID IN AND ADOPTING REVISION ORDER

RE-PUBLISHING PORTIONS OF 13.8

FORM provisions of 1 Pursuant to the Section 2006 OK CR 1 1051(b) Statutes, of Title of the Oklahoma BLONNER, Appellant Virgo Ricardo revise, hereby adopt, promulgate and re- we 13.8, Rules portions of Form publish Appeals, Title Oklahoma Court Criminal Oklahoma, Appellee. STATE (striketh- 18, App. as follows: Ch. No. 0-2004-1175. words,

rough denotes deleted bold denotes words) added Appeals Court of Criminal of Oklahoma. Following changes to wit: Jan.

FORM 13.8 UNIFORM JUDGMENT

AND SENTENCE Judgment [NOTE ON USE: The uniform Form 13.8 shall be used in and Sentence felony all convictions and misde- subsequent meanor conviction felony. prosecuted which can be as a Provided, where the in those counties utilizing Attorney

office of District management the JustWare case software tailored to that allows Form 13.8 to be just provisions reflect of the uniform applicable particular form that are to a case, the use of that tailored Form 13.8 authorized.]

¶ 2 This revision shall become effective the date of this order.

¶ IT3 IS SO ORDERED.

1137 Smith, Mashburn, Greg

Fern Asst. District Attorneys, OK, City, Oklahoma Attorneys for evidentiary the State at hearing. Chesley, Capital Janet Defense Counsel Norman, OK, Attorney Appellant ap- on peal. Smith,

Fern Attorney, Asst. District Okla- OK, City, Attorney homa Appellee appeal.

OPINION AFFIRMING ORDER OF TRI- AL COURT ON CLAIM MENTAL OF RETARDATION AND ESTABLISH- ING PROCEDURE FOR THE RESO- LUTION OF FUTURE MENTAL RE- TARDATION CLAIMS JOHNSON, Judge. C.

¶ Appellant, Blonner, 1 Ricardo is current- ly charged with Degree First Murder Court, County Oklahoma District Case No. CF Following 1999-6416. this Court’s deci- Bass, sion State ex. rel. Lane v. 2004 OK 14, 629, Appellant CR 87 P.3d filed a Motion to Bill of Particulars due to mental requested retardation and evidentiary an hearing on the issue. Jerry The Honorable Bass, Judge, District conducted an evidentia- ry hearing 12th-14th, on October 2004. At hearing, conclusion of the Judge Bass Appellant found had not met his burden of proving, by preponderance evidence, that he is pursuant to the definition of mental retardation adopted by State, Murphy this Court in v. 2002 OK CR 32, 54 P.3d 556. The trial court’s written Findings of Fact and Conclusions of Law were filed the District Court and in this 17, Court on Thereafter, November 2004. Appellant appeal. filed this ¶ 2 error, In proposition his sole Appel- lant claims the trial concluding court erred in Mr. Blonner had not met his prov- burden of ing by a preponderance of the evidence that he is pursuant to the defi- State, nition set forth in Murphy v. 2002 OK 32, CR 54 P.3d 556. thorough After consid- eration of proposition, the record before Craig Corgan, Bruehl, Mary us, transcripts, exhibits, Janet argu- briefs and Norman, Chesley, OK, Attorneys for parties, Defen- ments of the we have determined the evidentiary dant at hearing. ruling trial court’s should be affirmed.

1139 Id., State, findings. 2004 2002 OK the trial court’s factual Murphy In 3 ¶14, 15, 87 P.3d at 633. 556, following OK CR adopted the 54 P.3d we CR retardation for individu for mental definition ¶ Applying that standard and look penalty allege they are not death who als novo, ing at the evidence de we find the capital trials: eligible for use ruling Ap should be affirmed. While court’s suggesting pellant presented some evidence (1) If “mentally retarded”: A retardation, he did he suffers from significantly at a sub- or she functions he by preponderance of the evidence not show substantially that average intellectual level prongs that he met all three of the definition ability to understand and limits his or her Murphy v. for mental retardation. communicate, information, process ¶6, 13, 66 P.3d mistakes, to en- experience from learn reasoning, impul- response Virginia, control In to Atkins v. gage logical ses, reactions of 153 L.Ed.2d 335 to understand the U.S. S.Ct. (2002), attempted others; mani- this Court to structure The mental retardation procedure capital age eighteen resolve defendants’ itself before the fested they claims that cannot be executed because (18); The mental retardation they This dili- retarded. by significant limitations in accompanied system gently worked to create a fair functioning in at least two of the adaptive adequately protected rights of the ac- communication; self- following skill areas: cused and the interests the state. Now skills; care; social/interpersonal home liv- adopted that we have seen the model self-direction; academics; ing; health and progeny implemented Murphy and its and resources; community and safety; use of ways appealed, improve we see in which to work. Court, claims. This the resolution of these prove to he It the defendant’s burden is therefore, following procedure adopts the to mentally by prepon- a or she is future Atkins claims. be utilized to resolve at trial. Intelli- derance of the evidence procedure To the extent the set forth many gence quotients are one of the fac- Opinion with or in conflict is inconsistent considered, may that but are tors be Bass, v. 2004 OK with State ex.rel. Lane CR However, person determinative. no alone State, 14, Murphy P.3d 629 and eligible to be considered 556, 32, those cases are OK CR 54 P.3d an intelli- retarded unless he or she has procedures superced- overruled and their below, seventy as gence quotient of or by procedure outlined ed below. scientifically by at least one rec- reflected trials, capital In6 future where ognized, scientifically approved, and con- as a the defendant claims mental retardation intelligent quotient test. temporary penalty, imposition to the of the death bar at all future shall be used This standard shall file his or her Notice the defendant trials, until time pending capital such and a de to Raise Mental Retardation as Intent may replaced by legisla- a as it be suitable penalty imposition of the death fense to the tive enactment. Quash Particulars due Motion to Bill of and (60) 32, ¶ 31, sixty days at within Murphy, 54 P.3d to Mental Retardation 2002 OK CR files its from the date the State Oklahoma a defendant seeks to have 567. When or from the date of ar prior to Bill of Particulars of mental retardation resolved issue trial, raignment, is later. The Notice capital trial court “shall whichever his or her accompanied by an averment that must be whether the Defendant has shown determine I.Q. at test show that he the defendant has least by preponderance a of the evidence below, margin 70 or within the ex. rel. a score of she is retarded.” State or ¶ 14, error, and date of Bass, setting forth the score 87 P.3d Lane v. to testing, for the defendant may appeal from the order party Either the issue of mental retarda apply eligible to raise ruling trial court’s and this Court will forth this If fails to set standard tion. the defendant preponderance of the evidence require- meeting eligibility information appeal conduct a de novo review on ment, jurors finding retarded. The shall receive the trial court should make mileage as on that the defendant has not met fees attendance and is allowed the record by mental retar- law. establishing the threshold for dation, Quash deny Bill of the Motion to ¶ 9 It defendant’s is the burden discovery complete After on the Particulars. evidence, by prove, preponderance to parties sixty within issue is afforded both mentally retarded, he or that she is as de (60) days and Mo- from date the Notice in Murphy v. 2002 OK fined CR filed, court Quash tion to is the trial shall 31, 54 P.3d 566: If trial on the addi- schedule issue. (1) “mentally A is retarded”: If he on prepare tional for the trial mental time significantly she or functions at sub- may required, trial court retardation average substantially intellectual level good upon later cause schedule ability limits his or her to understand and shown. information, communicate, process personally 7 If the defendant mistakes, experience from learn to en- right to a affirmatively waives his or her logical reasoning, gage impul- to control of mental on the determination retardation ses, and to understand reactions of

record, issue be tried bench others; The mental retardation mani- hearing and the as set be conducted age eighteen fested itself before the Bass, forth State ex.rel. Lane v. OK (18); and The mental retardation ¶14, 14, CR 87 P.3d 629. The decision accompanied by significant limitations in following trial shall court the bench adaptive functioning in at least two of the made in and memorialized communication; following skill areas: self- Granting Denying the written Order Mo care; skills; social/interpersonal home liv- grounds tion Bill of Particulars academics; self-direction; ing; health and retardation, filed in District safety; community resources; use of (10) days, setting ten forth Court within work. Findings of Fact and of Law. Conclusions prove It is the to defendant’s burden he or mentally by preponder- is she retarded Jury trials on issue of Intelligence ance of the trial. evidence at pursu mental retardation will be conducted many quotients are one of the factors that II, ant Art. to the dictates Okla. Const. may considered, are not but alone de- impanel jury § trial 191. The court shall However, person terminative. no shall be (12) composed jurors, twelve to summoned eligible to be considered question determine the sole of mental retar intelligence unless he or she an quo- has proceed dation. The court shall to the selec below, seventy by tient or as reflected at provided by tion of in the manner recognized, one scientifically least scienti- law, parties and shall nine be afforded fically approved, contemporary and intelli- each, peremptory challenges pursuant to 22 quotient gent test. O.S.2001, potential jurors § 655. The should qualified, not be death sole issue it prove because the Because is the defendant’s burden to to be determined is whether defendant is is the defendant he/she detainer, provides: entry only, 1. Section 19 for forcible and or detention therefore, property right by jury of real and collection of rents The remain inviolate, except concerning civil civil cases wherein the cases causes of action in- controversy does One Hun- volving amount in not exceed Twenty-five less than Hundred Dollars ($100.00), dred Dollars or in criminal cases ($2,500.00), juries persons. shall of six consist punishment charged by for is wherein the offense cases, In civil and in cases less criminal than only, exceeding fine One Hundred Dollars felonies, (3/4) of the whole three-fourths number Provided, however, ($100.00). Legisla- that the jurors concurring power to shall have render may provide involving ture trial in cases verdict. In all other the entire cases number of Juries lesser amounts. for the trial civil and jurors must concur to a verdict. render In case (12) per- criminal cases shall consist of twelve sons; by a verdict is less rendered than the whole misdemeanors, proceed- the trial of but in jurors, writing number of the verdict shall be in ings regulations violation or of ordinances signed by juror concurring each therein. towns, juvenile proceedings, of cities and actions

H41 demies; first, safety; of commu- first, health and use present evidence resources; nity and work? first and present to opportunity jury. Each closing arguments last you preponderance If find relevant to de- may witnesses party present that the answer to each of these evidence of mental retarda- of the issue termination you questions yes, then must find the is relating the crime with to tion. Evidence in- Defendant is retarded and so charged is not admis- is which the defendant your verdict form. dicate specifically rele- that evidence is sible unless you of the above If find the answer evidence of to refute the defendant’s vant no, you must find the questions is defen- relating to retardation. Evidence mentally retarded and so indi- dant is not only to the extent crimes is admissible other your form. cate on verdict the defendant’s evi- it relevant to refute Preponderance of the evidence means Lambert v. of mental retardation. dence probable more than not. ¶ 3, 71 P.3d 30. The unanimous. See Okla. jury’s verdict must be closing following 11 The instruction shall Art.II, § 19. Const. jury: given the fol- jury shall be instructed as 10 The lows: MENTAL RETARDATION—CLOSING

INSTRUCTIONS DETERMINA- INSTRUCTION ON

JURY rulings has made the conduct RETARDATION TION OF MENTAL the trial and the admission of evidence. empanelled to jury have been You the doing expressed In so the Court has not name of Defen- determine whether [insert any way weight nor intimated or retardation as it suffers from mental dant] given any credit to be evidence testimo- trial, is defined below. ny during the nor indicated admitted any way the conclusions to be reached “mentally that a You are advised by you in this case. signifi- if functions at a retarded” he or she cantly sub-average level that intellectual facts, judges weight You are the ability substantially limits his or her credibility of the of the evidence and the information, process understand determining weight In such witnesses. communicate, experience or to learn from interest, if you may consider: The credit mistakes, logical reasoning, to engage any, the witness have in the the impulses, control and to understand trial; wit- result of the the relation of the Intelligence quotients reactions of others. prejudice, or parties; ness to the the bias may many factors that be are one of the candor, any apparent; fair- if has been considered, but are not alone determina- ness, wit- intelligence and demeanor of the tive. ness; ability of the witness to remem- occurrences, past and the ber and relate decision, reaching your you must deter- In observation, opportunity means of mine: which the wit- knowing the matters about (1) who is men- Is the defendant testified. From all the facts ness has tally in this instruc- retarded as defined appearing in evidence and circumstances tion? during tri- coming your observation present the mental retardation Was al, by knowledge you which each aided eigh- defendant was and known before the you possess persons, with other common (18) years age? teen You should your will reach conclusions. sympathy, prejudice significant not let sentiment Does the defendant have deliberations, your but should in at least enter into adaptive limitations in functions your jurors impartially, as discharge duties following skill areas: communi- two your self-care; conscientiously faithfully under cation; social/interpersonal self-direction; the evi- skills; such verdict as living; aca- oaths and return home by dence warrants when measured these VERDICT instructions. We, jury, empanelled and sworn in There testimony has been introduced the cause, do, upon the above-entitled represented of witnesses who are to be oaths, find as follows: skilled in certain areas. Such witnesses expert are known in law as witnesses. [insert name of Defendant] is more testimony You consider the of these probably than not: give weight you witnesses and it such as _ Mentally retarded have, think it should but the value to be _ given testimony you their is for to deter- Not required mine. You are not to surrender your judgment any person own to that of FOREPERSON

testifying expert as an or otherwise. The testimony expert, any of an like that of jury If13 finds the defen witness, given other tois such as value mentally retarded, dant is court you think it entitled to is receive. open shall enter an granting Order court law, These instructions contain all the Quash the Motion to Bill of Particulars and otherwise, whether statute or applied to be proceed the case shall non-capital as a first case, by you in and the rules which degree jury murder case. If the finds the you weigh are to the evidence and deter- defendant is not mine the facts issue. You must consider court shall enter an in open Order the instructions as a whole and not a part denying Quash the Motion to Bill of Particu to the exclusion of the rest. You must not lars and proceed the case shall capital as a use arriving method of chance in at a degree first murder case. If the verdict, judgment but base it on the verdict, unable to reach a the trial court juror each concurring therein. enter an granting Quash order the Motion to you After your have retired to consider Particulars, Bill of finding the defendant to verdict select one of the as a foreman retarded. Lambert v. your upon and then enter deliberations. ¶11, 5, you verdict, agreed your When on a OK CR 71 P.3d 30. The trial foreperson it, will, sign you Order, alone will granting court’s denying the Mo body, as a it return Court. Your Particulars, tion to Bill of verdict must be unanimous. Forms of ver- filed in the District Court record within ten dict will be furnished. You will now listen (10) days jury’s from the date of the verdict. arguments to and consider the of counsel proper part are a of this trial. ¶ party may Either appeal file an jury’s from a verdict on mental retardation following verdict form shall be or from provided the trial court’s jury: decision on mental retardation. If sufficiency of the evi VERDICT FORM FOR DE- JURY dence challenged appeal, this Court will TERMINATION OF MEN- review the light evidence in the most favor TAL RETARDATION prevailing party able to the to determine whether a rational trier of fact could have IN THE DISTRICT COURT OF THE found that the defendant met or failed to _JUDICIAL DIS- meet his proving burden of mental retarda TRICT OF THE STATE OF OKLA- preponderance tion a of the evidence. HOMA SITTING IN AND FOR _COUNTY ¶ party seeking 15 The appeal to shall file ) ) a appeal notice of intent to designation and of record with the trial court clerk within five ) THE STATE OF OKLAHOMA, ) Plaintiff (5) days from the date the Order granting or ) No._ vs. Case denying Quash the Motion to Bill of Particu- ) ) JOHN DOE, Defendant. lars is filed in the District filing Court. The ) ) of the notice of appeal intent to in the Dis- System, to 1362 of jurisdictional pursuant and to Section Title failure is trict Court appointed or right of to or the retained other counsel timely constitutes waiver the file seeking to party appeal appeal. shall of on The record appeal. appeal, together of intent file the notice ¶ Petition in Error shall filed 19 The be court’s written order copy of the trial

with (60) sixty days the the within from date of appealed, the Clerk this Court being with pronounced ruling is in court to judge’s (10) days the date the notice ten from within jurisdiction The the of Court. invoke and in the district court. See Rule 2.5 is filed following in Error must contain the Petition 13.4, Rules the Oklahoma Court Crimi- of of information: (2005). 22, Ch.18, Appeals, App. nal Title (1) type the appeal The of and date the perfect appeal, To the the Peti Particulars; Bill filed its of State Error, original copy in tion certified (2) gave The date the Notice of defendant record, transcript brief proceedings of and Intent to raise Mental Retardation as the Clerk of this Court be filed with shall pen- the imposition of death defense (60) the sixty days from date the within alty; denying granting an enters order court (3) Quash Bill The date the Motion to of Bill of Particulars. the Motion due to Mental Retardation was Particulars required reporter The court shall be court; in the district filed preparation Re- expedite of the record. (4) and the court from The case number time shall consid- quests for extensions of be appeal lodged; which the 3.2(C), in Rule Rules ered accordance with of (5) [jury the trial on The date Appeals, Oklahoma Court Criminal the of [evidentiary hearing retardation] (2005). Ch.18, To the App. ensure Title held; was retardation] on mental (60) sixty perfected days, the appeal is within transcripts completed record and (6) granting deny- the The date Order clerk, and filed with the district and in the quash the motion to was filed immediately to the Clerk of the transmitted judge; name of district court and the Appeals appellate of Criminal and Court and, (40) days entry of of forty within counsel (7) being sought. nature of The relief court’s If the record is not the trial order. Application An for Accelerated Docket shall (40) days forty complete within with the Petition Error. See filed order, Non-Completion court’s Notice of XI, Rules Section the Oklahoma Court of shall be sent to Clerk of Record 22, Ch.18, App. Appeals, Title Criminal explaining the Appeals, of Criminal (2005). Application shall be served on The delay. hearing cause cause for A show (5) party days five from within the adverse this Court be scheduled. Application is filed and date on which the prepare clerk The district court shall of service. See contain certificate must (3) copies plead- file three certified of all 1.9(B) 3.4(A), Rules the Okla- Rules instruments, transcripts designated ings, Appeals, Title homa Court Criminal forty appeal record for inclusion within (2005). Ch.18, App. Upon filing (40) appealed days from the date of order Error, shall this Court schedule Petition provided for the from the manner same argument. oral matter for regular appeal of a as set preparation ¶20 Response shall filed Brief 2.4; 2.2, however, the forth in Rules 2.3 and twenty days from date the within set shall control. The due dates forth herein 13.15, Form Appellant’s brief filed. See transcript copy original certified the Oklahoma Court Criminal Rules with designated of the record be filed (2005). 22, Ch.18, App. Appeals, Title Court; of one certified the Clerk ¶21 Response Application and copy transcript of the and shall be record error, and, of attorney; specific propositions “brief provided to the contain district (1)certified specific refer- transcript argument, copy explanation record and record, Indigent transcripts to the the Oklahoma Defense ences to either and/or appropriate authority pertaining upon citations of DERED delivery filing issued issue(s) 11.5(B) raised. See Rule of this decision. (C), Rules the Oklahoma Court Crimi- (2005). Ch.18, Appeals, App. nal Title CHAPEL, JOHNSON, J., A. P.J. and concur.

¶22 argument Oral shall be limited to fifteen minutes to each side. The mov- LUMPKIN, V.P.J. concurs in ing party open shall be entitled to and con- part. in results/dissents argument. clude the oral At the conclusion LEWIS, J. concurs results. argument, may of oral this Court issue its decision court or take the matter LUMPKIN, J.,V.P. concur in under advisement. If the decision is taken part. results/dissents advisement, under this Court will issue a ¶ 1 I concur in the reached results in the (10) days written order within ten from the opinion, Court’s at least insofar as it affirms argument. date of the District compli Court’s decision. And I ¶23 jury If the renders a verdict Judge ment recognizing Bass for that there finding mentally the defendant is not retard is a distinct very difference between the nar appeal, ed and the defendant does not or the row class of ineligible individuals deemed verdict is appeal, affirmed on the case shall penalty by the death Supreme the U.S. Court proceed capital degree as a first murder 304, 122 Virginia, Atkins v. 536 U.S. S.Ct. case. The issue of mental retardation shall (2002), i.e., 153 L.Ed.2d 335 those who relitigated capital not be at degree first retarded, may and others who However, murder trial. evidence of the De learning deficiencies or even other functioning fendant’s intellectual and deficits types problems. of mental or emotional presented mitigating as evidence ¶2 that, beyond today’s But decision is during stage proceedings jury second if the regarded example judicial best as an activ- guilty. finds the defendant legislation control, ism spinning out of ¶24 If the renders a verdict such, which I must dissent. As it should finding defendant is wake-up serve as a call to the Oklahoma or the is unable to reach a verdict and Legislature to craft legis- mental retardation grants Quash the Motion to passes lation that Constitutional muster but Particulars, Bill of and the State does not is also consistent people. with the will of the appeal, or the appeal, verdict is affirmed on ¶ 3 Mental retardation issues have re- proceed non-capital case shall aas first quired this Court to legisla- exercise certain degree murder case. tive necessity functions out of due to the procedure 25 This utilized all timing Supreme decisions, of U.S. Court but future cases where the defendant raises men- the Court has now exceeded the role of the tal retardation imposition as bar to the judiciary separation under the doctrine of penalty. the death powers in Republic. When v. Atkins decided, Virginia DECISION was a mental retardation Murphy claim raised in ¶ 26 The trial denying court’s order Mr. ripe 54 P.3d 556 was for review and had Blonner’s Motion to the Bill of Partic- thereof, light be addressed in leg- without grounds ulars on retardation, of mental as (A input. islative prohibiting bill the execu- Findings set forth in the of Fact and Conclu- tion of the retarded had been Law, AFFIRMED, hereby sions of passed by Legislature but was thereafter this case is remanded the District Court of vetoed then Oklahoma Governor Frank County Oklahoma proceedings. further Keating.) 3.15, Pursuant to Rule Rules the Okla- homa Appeal, Criminal Title 4 Atkins had determined that there is a Ch.18, (2006), App. the MANDATE is against OR- “national executing consensus”1 - Atkins, appear Prior to numerous argued defendants before this Court had that there was a

H45 retarded, to leave that decision with a mentally it also noted “serious sound but you where draw the line disagreement” peers. about is in fact retarded: “Not all

regarding who ¶ Unfortunately, Miorphy procedures the retarded will people who claim to fairly have never been tested and have since range impaired fall within the be so as to never-ending in a state of flux.4 It been whom retarded offenders about say exaggeration no that the case has been Atkins, 536 there is a national consensus.” by possible attacked whenever those who did Thus, 317, 122 2250. the at S.Ct. at U.S. it, originally agree especially not with now developing were left with the task of States Murphy when those who voted for are no appropriate ways to enforce the constitution- longer sitting two-stage on this Court. The al restriction.2 procedure replaced has been with several began Murphy. that task in How- We alternatives, although originally not the ones ever, five-judge is a with- because this by Murphy’s Today’s advocated dissenters. resources, time, necessary personnel, out the applies “margin decision a of error” to what the experience to ascertain will arguably important aspect the most constraints, budgetary people or the State’s I.Q. Murphy, the 70 threshold score. In- temporarily Murphy attempted to resolve deed, away things its haste to do with all while, the mental retardation issue raised at Murphy, opinion actually language uses time, judicial the same exercise some re- “overruled,” saying it Murphy opinion was a collaborative has been at least inso- straint.3 fairly approach. that a moderate While today’s opinion, took far as it varies from thus required IQ at test of 70 or below it least adding more confusion to the trial bench as eligible men- order to be be considered they complex procedures. apply seek to these tally adopted preponder- it also a inability adopt proce- 7 The Court’s a than ance of the evidence standard rather a self-discipline dure and exercise the to stick stringent convincing more clear and stan- disregards with it the Rule of Law and dem- dard, Murphy incorpo- as some states have. why onstrates there is such an aversion to suggested by Judge rated instruction legislating from the bench. For when required fact- C. Johnson. The case also begin crafting law rather than Courts intensive issue of mental retardation it, interpreting we create chaos and skewed all, by jury. decided After the decision doctrines that are not in touch with the will upon this issue could render the most hei- worse, people. Even we fail to follow ineligible pen- nous murderers for the death politics of Law and where alty. reviewing Rule introduce After state law and consider- victims, potential impact belong. it it seemed does not complicated expensive. against executing thing "national consensus” the men- more Because But, true, tally assuming that procedures jurors hearing retarded. was would result in begin crime, where did the national consensus and end? only we details of the built in three checks and Did the national consensus include overtly mentally balances: mental retardation could be re- retarded, i.e., moderately to se- trial, by agreement parties; solved before (2) verely mentally I.Q.’s with retarded individuals judge following review de novo mildly it below 55? Or did also include the rubber-stamping trial that was "not to be mere (55 I.Q.), to 70 who often determinations;” jury’s factual obviously handicapped? And what about the appellate review. statewide consensus? Where do Oklahomans But, importantly, stand on this issue? more states, Today's disingenuously opinion 4. "Now what relevance is a consensus to the national adopted Murphy that we have seen the model interpretation language? of Constitutional progeny implemented appealed, we and its Ideally, job legisla- this would be for the state ways improve see in which to the resolution tures, judiciary. not for the truth, however, is that we these claims.” only implemented change, and continuous example, 3. For our mental retardation definition given Courts have never been an District paralleled that in Atkins and was to be used until opportunity rhythm into the of a known to settle "replaced by legislative a suitable enactment.” procedure that allows them to work out wanting Not overcrowded, to further burden confuse might procedure. problems that arise in courts, under-budgeted opted we two-stage proceeding, for a rather than some- 1146

¶ today. 8 This is where we find ourselves dicate the cases and issues before the rules,” keeps “changing The Court the add- Court. ing procedures loopholes that sure- more Legisla- 10 It is time for the Oklahoma ly Indeed, pending wreak havoc in trials. step plate up ture to to the and reclaim the trial, proposal requires separate a the latest legislative upon role this issue. Should we jury, appeal. process is so micro- issue, really adopt margin a of error on this literally managed spin. it makes one’s head so that the must trial State bear the fact, your way through In it is difficult to find appeal a costs of who cannot even today’s opinion getting without a headache. IQ produce legitimate score 70 addressed, Every contingency conceivable really separate below? Do we want a dispute, not in the context of a real but in retardation, on complete the issue of mental anticipation possible a one. The Court jury separate appeals process? with a goes they prosecutors so far to tell how as right speedy What does this do to the try oversteps must their cases. This our really trial? we want Do to mandate that judicial arguably separa- role and violates the jurors deciding mental retardation are not doctrine, powers poten- tion of in addition to qualified, jurors death we all know that when tially showing against bias the State’s case. likely consequences will know the of then- law, duty 9 This Court owes decision, regardless overtly of whether it is courts, practitioners, and the citi- pointed really prevent out?5 Do we want to consistent, provide logical, legally zens to introducing the State from evidence to the body sound law that all concerned trier of fact that is relevant to the issue rely they prepare on as make decisions and except mental retardation to the extent that for the future. Not constant bio- it pre- “refutes” evidence the defendant has rhythmic change in procedure it because sented, allowing keep thus a defendant to out so, right at seems the moment. And it will might powerful what be the most and rele- courts, interesting to see how the state’s vant evidence shows he or she is not attorneys district and federal courts sub- mentally retarded?

sequent appeals will view this Court’s men- jurisprudence, tal Maybe maybe retardation 11 we do and we don’t. burgeoning Legislature’s job Court’s mental retardation bu- But it seems to me it is the reaucracy threatens to questions, studying overwhelm the dis- to answer these after courts, issue, attorneys holding trict not to mention hearings, ascertaining im through courts, opin- pact who must wade it. Personal it will hearing have from witnesses, penalty arguably ions about the death surveying what the “statewide seeped is, process, into the debating and mental retar- consensus” on this issue portal through Otherwise, dation has become issue. we will have a similar may escape, Smith, non-retarded defendants even situation as occurred Schriro v. 546 juries reject U.S. -, 7, (2005). those who have had their men- 126 S.Ct. L.Ed.2d See, There, e.g. tal retarded claims. appeals began impos Pickens v. a federal court State, 612; ing 2005 OK CR 126 P.3d Lam- conditions on Arizona trial courts con State, 646; cerning bert 2005 OK CR 126 P.3d the issue of mental retardation be Salazar v. 126 P.3d apply fore Arizona had even had a chance to 625. I doubt this is procedures.6 consistent with the will its own chosen But the Su position preme of Oklahoma citizens or ais Court ruled that the federal court had legislature support. beyond Oklahoma would It authority acted its habeas and re certainly Supreme consistent with the role of the minded the federal that the judicial government only adju- develop branch Court had left it to the States matter, relating § 5. For that if the is not to be death- 1175.4 to determination of com- qualified, why legislating grant- is the Court petency appropriate. are more peremptory challenges qualifying of nine juiy? truly This is inconsistent. If it is Atkins, Following passed Arizona had separate proceeding on the issue mental retar- See, legislation. § retardation A.R.S. 13-703.02. dation, procedures then the contained in O.S. impan- require that another constitution- would ways to enforce the appropriate on this issue. eled al restriction.

¶ appellate is true here. This 12 The same stringent imposing has no business conditions on the lower district controversial adopted not been or even courts that have Legislature. by the Oklahoma considered ¶ claim, Appellant’s specific it is 13 As for 2005 OK CR 30 experienced type some of learn- clear that he McGEE, Christopher Dwayne Appellant through disability progressed as he v. absolutely no evidence school. But there is may of mental retardation. Teachers Oklahoma, Appellee. STATE of of men- he fell into classification assumed No. F-2004-527. tally assigned to the retarded because he was program” due to the stat- “special education Appeals of Criminal of Oklahoma. Court However, program. it is ed criteria for 5, 2006. Jan. placed for students to be not uncommon many falling for reasons special education

short of mental retardation. testing totally disproved Subsequent 14 claim. Dr. Appellant’s mental retardation IQ testing Appellant’s was revealed Call’s prior two adminis- which was consistent with test, i.e., a 2002 score of trations of the ipso of 78. These tests and 2001 score facto any retardation under refute claim of mental Atkins, mental retardation is a which found

cognitive present defect that from birth subject significant

and is therefore change time. over reasons, I in the 15 For these concur of the District

affirmance of the decision Court, opinion, of this but dissent to most really nothing advisory than more

dicta,7 ripe are not as the issues addressed adjudica- presented review or even response I hopefully tion. And await the Legislature, the Oklahoma which is needed more than ever. now LEWIS, Judge, Specially concurs. result; 1 I concur with the however the option seeking lose state should not its particulars agree if bill of cannot mental retardation trial. I verdict ¶72, 3, ("This Supposedly, precluded P.2d 240 this Court is from issu- OK CR throughout ing advisory opinions advisory opin- consistently and has so held refused to issue has See, history. e.g., Canady Reynolds, issues, However, ions"). many other as with so ¶54, 9, (“An advisory CR 880 P.2d OK precedent appear the law and it does not original opinion does not fall within the Court's desired results. obstruction to the Court's L.N., statutory jurisdiction”); Matter

Case Details

Case Name: Blonner v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jan 5, 2006

Citation: 127 P.3d 1135

Docket Number: 0-2004-1175

Court Abbreviation: Okla. Crim. App.