Howell v. State

qua to the wife jewelry pass title not shown who was matrimonial donee any infirmities. had notice

have discovery will of decedent’s The later validity of the heirs’ not affect the

does representative personal

agreement. challenge agreement legal to the

pressed no equitable appellate plea for prius. His

at nisi

rescission, hence appeal, on cannot first made The issue should on review.

be addressed court. timely to the trial

have tendered been per- granted upon the certiorari 32 On petition, the Court representative’s

sonal vacated; opinion the sum- Appeals’

Civil attorney’s together with an

mary judgment are affirmed.

fee award V.C.J., WINCHESTER, OPALA, HARGRAVE,

LAVENDER, COLBERT,

EDMONDSON, TAYLOR

JJ., concur. KAUGER, J., WATT, C.J., and in result.

concur HOWELL, Petitioner, Wayne

Michael Oklahoma, Respondent.

STATE

No. PCD-2003-268. Appeals of Oklahoma.

Court of Criminal

June

551 Norman,

Bryan Dupler, Arledge, Laura M. OK, Attorneys for at Trial. Petitioner Brockman, Pattye High, David Asst. Dis- Edmondson, At- Attorneys, W.A. Drew trict Oklahoma, Dick- torney Jennifer General General, son, Attorney Oklahoma Assistant Ok, City, Attorneys Appeal. on for the State APPLICA- DENYING SECOND OPINION RE- FOR POST CONVICTION TION AFTER REMAND JURY LIEF FOR ISSUE OF DETERMINATION ON MENTAL RETARDATION JOHNSON, Judge. C. Howell, Petitioner, Wayne Michael jury County by a

convicted Oklahoma 1987-6784, Court, Case District No. CRF Murder, malice Degree committed with First O.S.1981, aforethought, in violation of 21 Application One of Second for PosWConvic- jury § punishment 701.7. The set at Relief, State, death tion Howell v. PCD 2003-268 (3) finding aggra- after the existence of three (Okl.Cr. 2003)(not 18, publica- November for vating appeal, circumstances.1 On we af- tion). After the District a Court found “tri- firmed Howell’s conviction but vacated his question of fact concerning able Petitioner’s sentence of death and remanded the case for mental retardation which must be resolved State, resentencing. Howell v. 1994 OK CR by jury,” granted post-conviction we relief ¶62, 39, 1086, jury 1095. A second jury and remanded his for case trial on his sentencing jury again was held and the re- State, claim of mental retardation. Howell with a finding turned sentence of death after (Okl.Cr. 2004)(not 3,May PCD 2003-268 for (3) aggrava- existence of the same three publication). ting original circumstances found in the sen- tencing. appeal resentencing, On from the 3 Howell’s trial on mental retarda- we affirmed Howell’s sentence of death. County was held in Oklahoma District State, 53, Howell v. 967 P.2d Court, Virgil Black, before the Honorable C. original application 1221. We denied his for May 27th, District on 2005. 23rd— post-conviction relief in Howell v. PC personal appearance waived his (Okl.Cr. 16, 1998)(not 1998-200 December for trial, represented by but was coun- publication). sought further review throughout sel to and the trial. The appeals. of the outcome of his state direct jury returned with a verdict that Howell is Supreme The Court of the United States retarded. The trial court de- Oklahoma, denied certiorari Howell v. 514 nied Howell’s motion for a trial. new U.S. 115 S.Ct. 131 L.Ed.2d 858 findings trial court filed written of fact and (1995) Oklahoma, and Howell v. 528 U.S. parties conclusions of Sup- law. Both filed (1999). 120 S.Ct. 145 L.Ed.2d 79 plemental September Briefs on ¶2 16, 2003, Howell, On through June jury’s Howell asks this Court to reverse the counsel, Application filed Second for trial, verdict and order new or in the Relief, pursuant Posb-Conviction to 22 O.S. alternative, modify his sentence of death to a 2001, § Accompanying Application 1089. non-capital sentence due to his mental retar- Evidentiary was a Motion for Hearing on dation. Claim, pursuant PosWConviction filed 9.7(D), Rule Rules the Oklahoma Court of ¶ Though appeal part this remains 22, Ch.18, Appeals, Criminal Title App. case, post-conviction of Howell’s we will re (2003). error, proposition In his sole How alleged view errors to have occurred in this light ell claimed that in Virginia, of Atkins v. jury trial on mental retardation in the same 304, 2242, 153 536 U.S. 122 S.Ct. L.Ed.2d 335 manner as appeal errors raised on direct (2002), his death sentence should vacated be State, from a trial on Myers the merits. v. and to a non-capital modified sentence.2 Al ¶22, 5, 2005 OK CR 130 P.3d 262. Howell ternatively, requested this Court re (11) propositions raises eleven of error. evidentiary mand the matter an hearing for prosecutor 1. The proper exceeded the to determine whether his mental disabilities opening bounds of statement and vio- bar his execution. We remanded to the Dis by trict lated County Court of Oklahoma Lambert indirect reference to for an evi- dentiary hearing. Granting capital open- See Order Mo the facts of the crime in Evidentiary Hearing statement; for on Proposition ing following aggravating 1. The Virginia, found the 2. cir- In Atkins v. 536 U.S. 122 S.Ct. (1) cumstances: the murder was (2002), committed for Supreme 153 L.Ed.2d 335 purpose avoiding preventing or a lawful mentally Court held the execution of retarded (2) prosecution, pre- arrest or the defendant was persons punish- constitutes cruel and unusual viously felony involving convicted of a the use or State, 32, ¶ 29, Murphy ment. In v. (3) person, threat of violence to the and there recognized light 54 P.3d we that in of At- probability existed a that the defendant would kins, mentally persons longer retarded are no commit criminal acts of violence that would con- eligible penalty. for the death continuing society. stitute a threat to ¶5 Murphy v. irrelevant and im- OK prosecutor’s 2. The ¶ 13, 556, 567, adopted CR we about Petitioner’s proper statements argument following retardation closing consti- definition of mental for character error; in determining use whether an individual is tuted reversible mentally ineligible and therefore for retarded improperly admitted 3. The trial court penalty: the death prejudicial law enforce- irrelevant concerning opinion Petitioner’s (1) ment person “mentally A retarded”: If he functioning proper without a mental significantly or she at a functions sub- foundation; average substantially level that intellectual ability limits his or her to understand and improperly 4. trial court admitted communicate, information, process opinion prejudicial testi- irrelevant mistakes, experience learn or en- prosecutor/cur- mony from a former gage logical reasoning, to control impul- judge concerning district Petition- rent ses, and the reactions to understand testify; competency to er’s (2) others; retardation The mental mani- improperly 5. The trial court admitted (18) age eighteen fested itself before the prejudicial letters at- irrelevant (3) accompa- The mental retardation is Petitioner; to the tributed by significant adaptive nied limitations of Petitioner’s use of 6. Evidence verbal functioning following in at two of the least denied Petitioner a fair tri- obscenities communication; self-care; skill areas: so- al. skills; cial/interpersonal living; home self- court’s instruction that men The trial direction; academics; safety; health and “present must be tal retardation resources; community use of and work. age 18 violated Atkins known” before prove It is the burden to he or defendant’s Virginia, 536 122 S.Ct. U.S. by preponder- she is retarded (2002); 2242, 153 L.Ed.2d 335 Intelligence of the at trial. ance evidence by denying 8. The trial court erred non- many quotients factors that are one of jury; forms unanimous verdict to the may considered, be are not alone de- but However, person terminative. no shall be preju- 9. The admission irrelevant and eligible to retarded be considered in- about murder dicial intelligence quo- unless he has an or she capi- vestigation and from Petitioner’s below, seventy tient of as reflected relevancy tal trial violated strict scientifically recognized, least one scienti- required limitations on such evidence fically approved, contemporary intelli- v. State and Atkins v. Lambert gent quotient test. Virginia; proof the of 10. The allocation of burden (footnotes omitted). Id. of the to by preponderance a evidence ¶ State, 11, OK CR 6 In v. Lambert Eighth violates the Petitioner the ¶ 3, 30, petitioner’s 71 P.3d stated a crimi- we adequate denies Amendment and an nal conviction of death not and sentence determining re- procedure for mental of jury’s relevant to determination men- the tardation; jury “should hear tal retardation and the 11. at trial proven The facts showed Peti- which of crimes for Lambert evidence the a mat- tioner’s mental retardation as convicted, particular was unless the facts of jury’s law. The ter of constitutional are the issue mental the case relevant to of contrary to the evidence verdict Any evidence should retardation. such be and cannot stand. (emphasis narrowly issue.” confined to that added). error, Brief, State, his first claim Supplemental in its submits proper the prosecutor the exceeded proper procedure and contends the trial court followed and violated opening statement properly instructed the and sufficient bounds by indirectly referring to the facts jury’s supported the determination Lambert evidence opening capital in her statement. of the crime that Howell is not retarded. opening purpose argument, 7 The state referring while to Howell’s evidence, ment the of the is to tell evidence the designed and other was attorneys expect present during trial. Its to illustrate how own statements scope is determined at the discretion of the writings and his showed he could communi- State, trial court. Hammon v. 1995 OK CR effectively ability cate and had the to learn ¶33, 1287, 1306. 87, P.2d logically. mistakes and to think This argument improper. was not Id. It was of- prosecutor 8 The this case response fered direct to Howell’s evidence involvement talked about Howell’s the adaptive functioning deficits. justice system, criminal his incarceration and escape facility, from a correctional and his ¶ 11 propriety As to the of the drug partic trafficking involvement in and in prosecutor’s remainder of the closing argu gone awry. prose ular drug deal After the ment, error, plain we review for because escape cutor mentioned Petitioner’s from a objections. counsel made no further Harris facility, correctional Petitioner’s counsel ob State, 2004 OK CR jected beyond that the statement was (failure object prosecutor’s closing argu proper scope opening statement and the error). plain ment waives all but Parties objection properly pros was overruled. The during closing have wide latitude argument outlining ecutor was which the evidence she to discuss the evidence and reasonable infer present intended to at trial. Next Petition evidence, ences from the and relief is re objected prosecutor’s er’s counsel to the quired only grossly improper where un part statement that Petitioner was of a num argument warranted affects defendant’s properly bers racket. The trial court over rights. Hanson v. objection noting prosecutor ruled this ¶ 13, grossly P.3d improper No merely during stated what Petitioner said arguments unwarranted appear in the record testimony. objection own Counsel’s last plain and we find no warranting error relief. prosecutor came after the referred to How ¶ During prosecutor’s direct exami- “people get ell’s that killed over City nation of Del Taylor, Police Officer dope money.” argued pros Counsel prosecutor if, any asked during time indirectly ecutor had referred to the facts of investigation, he ever “anything observed capital getting crime—someone killed you question that made his level of mental drugs money. objection over This too functioning?” objected Defense counsel as to properly specific as no overruled men objection lack of foundation and his was over- capital tion of Howell’s crime occurred and Taylor no, ruled. responded Officer I prosecutor’s statement was made to ex “I — prosecutor did not.” Then the asked if it plain stemming Howell’s actions from his you “ever might occurred] he be involvement in cocaine distribution. Taylor respond- retarded?” Officer court, upon objec- 9 The trial counsel’s ed, claim, “No.” In his argues third tions, properly prosecutor determined the the trial court erred when it City allowed Del proper scope had not open- exceeded the Taylor testify Police Officer about his ob- ing statement and had not exceeded the servations of Howell’s level of mental func- boundaries enunciated in Lambert. We find tioning. no error. ¶ ¶ claim, 13 10 In Admission of evidence his second Howell con discretion, within the trial court’s prosecutor’s closing argument tends the and will be also only objected upon showing prejudice. violated disturbed a of only Lambert. Counsel af ¶ State, prosecutor 23, 13, argued ter the Hooks v. 2005 OK nothing “[t]here’s CR 126 illogical 636, Wayne Opinion testimony lay about Michael P.3d 642. Howell. of a illegal permissible O.S.2001, There’s lot that’s been witness is about Michael under 12 Wayne § Howell.” The trial court 2701 rationally overruled when it is based on the objection the perception “under the circumstances.” of helpful the witness and is to circumstances, they The appear as in the the determination of a in fact issue. Little- record, ¶ prosecutor’s show that closing john 6, 35, 2004 OK CR

557 denied, showing ability communi- purpose of his to 543 U.S. 125 S.Ct. cert. (2004). 358, 160 Taylor’s cate, engage logical in L.Ed.2d 261 Officer to understand and of Howell’s level of opinion perception and reasoning, to show he understood the conse- properly admitted functioning was mental ability and had the quences of his actions not abuse its discre trial court did and the mistakes, learn from his and show he did upon his Taylor’s was based tion. interpersonal not have deficits in social and and his observations with Howell interactions admitted, properly The letters were skills. with Offi ability to communicate of Howell’s to, reading reference State’s His observation and Taylor and others. cer from, closing argument in was within them helpful to the lay was relevant and opinion acceptable argu- proper boundaries the first and third jury’s determination of ¶ 13, Hanson, ment. See 2003 OK CR retardation the definition of mental prongs of in (parties P.3d at 49 have wide latitude Murphy. in as forth set closing argument to discuss the evidence and ¶ claims, Proposition in 14 Howell also evidence). from the reasonable inferences Four, improperly trial court admit- that the Proposition No relief is warranted on Five. Judge Ray El- opinion ted the liott, prosecutor, concerning How- a former claim, counsel for In his sixth testify hearing in competency to at a ell’s argues Petitioner that evidence of Petition asked, “And prosecutor The profanity use of denied him of a funda er’s lawyers anyone testifying, else him did fair trial on mental retardation. any that he not express concerns ever objected three different occa Counsel on mentally capable making the decision to sions, noting that “F” Howell’s use objected on rele- testify?” Defense counsel word, thereof, variations and the use other objection vancy grounds and his was over- shocking cuss words were to the sensibilities Judge responded, “No.” When ruled. Elliott extremely prejudicial. of the any regard, in that if he had concerns asked properly The trial court overruled counsel’s “No, Judge responded, Elliott none at all.” objections, noting way phrased he its 15 The trial court did abuse contempt process for the answers showed his testimony. Judge allowing this discretion of his attitude and and were demonstrative Howell nor Elliott’s observation that neither understanding proceedings. of the any attorneys involved in his 1988 of the everyday language, profanity in his use objected proceeding to his decision criminal hear, preju unpleasant to were not so while testify grounds on the that he was not complete as to render his statements dicial making that decision was capable of (rel § O.S.Supp.2003, inadmissible. jury’s determination of both relevant to the may proba if evidence be excluded its evant prong definition of the first and third of the substantially outweighed tive value is Murphy. retardation as set forth mental trial court danger prejudice). of unfair ¶ 13, 126 Hooks, P.3d at 642. 2005 OK CR when it allowed did not abuse its discretion that no one From Elliott’s observation actual prosecutor to reference Howell’s objected ability testify or to to Howell’s examination of witnesses and words its juror testify, a rational make the decision to closing argument no relief is warranted properly could infer Howell’s counsel found Hooks, 23, 13, claim. on this competent him to witness. be 126 P.3d at 642. ¶ Next, Petitioner claims the proposition, his seventh trial court erred when it admitted “irrelevant jury instruction that claims the trial court’s by Howell to prejudicial” letters written “present and mental retardation must be Watson, and for Mona Lisa his co-defendant age eighteen violated the known” before spouse. of this evidence mer The admission Proposi- in enunciated Atkins. standards of the trial court was within the discretion trial court Eight, Howell claims the Hooks, of and we find no abuse discretion. ¶ give jury non- 23, 13, it refused to erred when 126 P.3d at 642. 2005 OK CR verdict forms. 9-12 were offered for the unanimous State’s Exhibits recently hearing. videotape addressed both of from that The We was then 22, Myers, in 2005 OK CR these issues admitted as State’s Exhibit ¶¶ 12-16, There, 130 P.3d at 268-269. we played jury.3 Following for the admission of upheld “present the use of the and known” videotape playing and after it for the language in the Oklahoma uniform in jury, Judge Elliott por was asked to read by in struction utilized the trial court this testimony tions of pro Howell’s from a court (2003 case. 2d. See OUJI-CR 4-68A 22,1996. ceeding April held Defense counsel Supp.). requirement We also found that the objected Judge reading Elliott’s of How Atkins, of a unanimous verdict did not violate testimony ell’s and to the admission of Lambert, Murphy fact was re grounds State’s Exhibit on the that the quired by the Constitution. Oklahoma Okla. substantially prejudicial evidence was more art.II, 19; 22, Myers, § Const. 2005 OK CR probative than testimony and that the ¶ 16, requirement 130 P.3d at 269. The of a indirectly suggested evidence Howell’s com unanimous verdict “neither increases the capital mission of a offense. The trial court person likelihood that a retarded objections. portions overruled the jurors will be executed nor does it force testimony from the December 1988 particular position” vote for a Id. We decline hearing April and from hearing to revisit these claims here and no relief is which were read into the part record are required Proposition on either Seven or appeal.4 this record on Proposition Eight. Nine, Proposition argues 20 In particular 22 The facts surround prejudicial the admission of irrelevant and ing capital crime for which Howell was testimony investigation about the murder Lambert, convicted are inadmissible under capital and from Petitioner’s trial violated particular “unless the case are rele facts of relevancy strict limitations on such evidence vant to the issue mental retardation.” required by Lambert State and Atkins v. added) Lambert, (emphasis 11, 2003 OK CR Virginia. complains about the ad- ¶ 3, evidence, 71 P.3d at 31. That if admit Judge Ray mission of all of Elliott’s testimo- ted, “narrowly should be confined” to the ny, Taylor’s testimony, Officer Phil Mona issue of mental retardation. “If Id. evidence testimony, Lisa Watson’s and the admission bearing on mental by retardation is available testimony by videotape of Howell’s own from transcript properly which was admitted in a his trial complains 1988. Howell also previous proceeding,” may that evidence be about the admission of the letters he wrote to Id., presented by transcript. already Mona Lisa Watson. We have deter- ¶ 3, n. 71 P.3d at n. 9. portions Judge mined testimony Elliott’s Taylor’s testimony, relating Officer ¶ 23 Our decision in clearly Lambert en- their appear observations Howell did not testimony visioned that pro- from a retarded, to be properly ad- ceeding might be if admissible it constituted Similarly, mitted. we found admission of the bearing evidence on the issue of mental re- letters written Howell to Watson was Here, tardation. complained of evi- proper. testimony dence is Howell’s own and his During during own statements an the direct in camera examination of hear- Elliott, ing. prosecutor completely him We have asked reviewed the portions transcripts read written Howell’s direct examination and viewed the video- (his trial) proceeding tape. from a court While much of the held evidence was ad- 5,1988 identify missible, videotape portions December and to certain were not and portions of Howell’s cross-examination were admitted violation of Lambert. referencing appeal. Portions of Granting Howell's See Order Joint Motion to capital commission of murder were redacted Supplement Post-Conviction Record and Order videotape. from the Directing Clerk File Attachments 1 and 2 in Record, (Old.Cr. Appeal PCD 2003-268 October Transcripts 4. The Official of Howell's 17, 2005)(not publication). for proceedings held December 1988 and April 1996 are contained in the record on exchange cocaine was of minimal the their first originally tried for was 24 Howell But, importantly, his testi- in December relevance. more Calhoun of Charlene murder leading up the to mony examination from the events their It was his direct about 1988. Judge description Elliott read to jury meeting, which of the elevated trial next portion jury drug viewed a surrounding impending the then the the emotions deal, on State’s description the cross-examination of the actual meet- State’s and his objections to both Counsel’s that ing suggested Exhibit 13. serious with Calhoun video- transcript playing the reading the criminal conduct followed. Howell testified reflects the overruled. The record tape were said, you up. “How She showed She the first Judge Elliott read prosecutor and said, said, doing.” I doing?” you I “How (40) direct examina- forty pages of Howell’s said, ‘Yeah, I got money?” “You the She point in Howell’s jury.5 At the tion to the money.” says, you “I I got She told the between testimony where the confrontation you I money the before ever told had began, Calhoun him and the victim Charlene come over here.” point, At that the objected again. counsel said, said, I it at?” She “Where’s judge’s suggestion, then prosecutor, at the said, drugs?” got I “I’ve the “Where’s the transcript so specific areas of the moved to $20,000. said, us I’m drugs.” I ‘You owe capital to the specific avoid references as to $20,000. you give me get here to When crime. $20,000 you give we in Ft. the and what (11) pages of 25 In the first eleven month, you give then I’ll anoth- Smith last to the testimony which was read Howell’s er kilo.” involvement jury, testified about his just point, Howell’s It was at before drug ring He testified in a cocaine business. have revealed how the would business, told how operation of the about meeting physical into a confronta- escalated racket, and how the it on a numbers worked Calhoun, that shooting of counsel tion and his place. took testified drug deals court directed objected again and the trial drug charge of the busi the man about prosecutor skip specific areas of the ness, money drugs described how skipped five transcript. prosecutor The then involved. packaged, and how he was were (5) began colloquy: this pages and with ability to reflected his questions directly Q: Why you to his counsel’s the car? respond did take responses coherent and showed and his were I already I the truck on fire. Howell: set respond logically. The could think and he there, you get I had to out knew drug his involvement dis evidence of looking out the win- People know. testimony, ring, by way own tribution dows. conduct, of criminal was rele while evidence you truck? Q: Why did burn the retardation, vant to the issue of mental be trying up I to cover Howell: Because was rationally, ability to think cause it showed his evidence, I my fingerprints, because instructions, responsible and to be to follow everything. truck and stole the money drugs. See large for sums of Hooks, 23, 17, at 644 CR 2005 OK there, Q: you what time was When (evidence ability to run a con petitioner’s you night, 9:00? Do it in the about enterprise was relevant tinuing criminal recall? retardation). of mental issue Yeah, something in there. around Howell: ¶26 remainder, consisting of The time it was. I don’t know what leading up to his specific drug deals around in these Q: lights there Were Calhoun, meeting should with Charlene right apartments here? portion of his testi admitted. have been lights around there? there Howell: Were was in mony explained how Calhoun which you people were home? Q: tell Yes. Could operation and which described volved in the (Tr. through page page prosecutor trial 5. The record shows 617) testimony from the 1988 read Elliott Howell's 560 ¶ home, Yeah, Approximately some of them was 30

Howell: six minutes into examination, videotaped prosecutor the yes. the began questions relating to ask to or refer skipped ques- 27 over prosecutor the ring to questions Charlene Calhoun. These with tions about what Howell did Calhoun’s might relatively have been innocuous had the body, page of the tran- moved to next jury just not heard Howell’s direct examina $60,000, script you why and asked “If had testimony tion surrounding of the facts his you just unpack money didn’t some of the Calhoun, meeting burning with of her buy lay different car and low? truck, subsequent flight and his to Florida. dope I Howell: Because don’t mess with specific While there was no reference to My money. partners straight told me Calhoun, Howell’s murder of Charlene there up, don’t touch it.... enough was reference to the victim and to his following jury conduct her murder for the Q: you hap- think What did would have piece together happened. portion what A pened you money? that had disturbed videotape this was admitted in violation today.... Howell: I wouldn’t be here This Lambert. real, people you is for don’t mess up with.... messing You’ll end dead Finally, portion we address that people’s money. with Judge testimony Elliott’s where he read testimony Howell’s from an in camera hear Florida, Howell then testified he went ing hearing, held in 1996.6 At this in camera hotel, stayed money in a and stashed the as complained having about to attend instructed. The remainder of his direct ex- hearing importantly and more about his jury. amination was not read to the attorneys dissatisfaction with one of his testimony portion 28 The of Howell’s ref- way handling the State was his court erencing his contact with Charlene Calhoun life, proceedings. all We note references to surrounding drug and the events deal parole life without and death not read her, murder, with which led to her should jury. testimony to the From Howell’s at this specific have been admitted. Howell’s While in camera hearing, fig a rational could testimony that he shot her was not read to system ure out that Howell understood the jury, it was obvious from what was read obviously well. He was familiar with certain that a serious crime occurred. had His testi- legal principles, expressed his concerns mony surrounding meeting with Calhoun rationally coherently. His statements closely are so entwined with the actual facts were relevant to the issue of mental retarda crime, i.e. her, shooting of the tion and showed he could understand and portion testimony this of his should not have information, communicate, process engage been admitted and was admitted violation logical reasoning and understand the reac of Lambert. suggested tions of others. It he does not significant communication, have limitations in ¶29 Next we address the admission of skills, social/interpersonal self-direction, and 13, videotape portion State’s Exhibit of a community use of resources. We find no prosecutor Macy’s Robert cross-examination error the trial court’s admission of that beginning of Howell at the 1988 trial. The portion Judge Elliott’s which the cross-examination relevant to the reading April involved Howell’s 1996 testimo issue of mental retardation. Because Howell ny. presence waived his at the mental retarda- jury trial, jury’s only opportu- it was the Atkins, Supreme Court ob- nity way to see Howell’s demeanor and the “Mentally served that retarded defendants prosecutor. he communicated with the He may give be meaningful less able to assis- prosecutor’s questions directly answered the tance typically poor to them counsel and are coherently witnesses, and was not evasive. At one may and their demeanor create an point, joke attempted he even with the impression unwarranted of lack of remorse Atkins, prosecutor. for their crimes.” 536 U.S. 320- April 6. read transcript, pages through Elliott from the that it was portions of and thereafter instructed Those at 2252. S.Ct. prove to mental retardation proper- Howell’s burden which prior provide by the evidence. preponderance was able to a of ly suggest he admitted counsel, clearly to his meaningful assistance ¶ claims the allocation of this 36 Howell not a and was proceedings, the understood Arizona, Ring v. to him violates 536 burden sug- demeanor witness. His typically poor 584, 2428, L.Ed.2d 556 122 S.Ct. 153 U.S. understanding inconsistent gested a level of (2002) Jersey, 530 Apprendi and v. New U.S. with mental retardation. (2000) 466, 2348, 435 147 L.Ed.2d 120 S.Ct. is a factual issue because mental retardation to trial court’s decision “The 33 by jury prior a must determined to absent a which be not be evidence will disturbed admit Apprendi, In accompanied imposing penalty. the death showing of abuse of discretion State, non-capital in a Supreme held case v. 2005 OK the Court by prejudice.” Mitchell ¶ 38, 1196, of a convic 15, 1207. For evi- that than the fact “[o]ther CR errors, inquiry tion, penalty for a dentiary proper any is wheth fact that increases the the statutory that the maxi “grave beyond prescribed has doubts” the er this Court crime jury, have been materi a of the trial would mum must submitted to outcome be Id. ally Ap error not occurred. proved beyond affected had the a reasonable doubt.” 490, when it abused its discretion The trial court at 120 S.Ct. at 2362- prendi, 530 U.S. significant portion of Howell’s holding Appren a Ring admitted extended the and allowed 609, his trial 1988 from capital Ring, cases. 536 U.S. at di to jury and it admitted it to be read to the when that 122 at 2443. Howell claims under S.Ct. exceeded Exhibit 13. This evidence State’s that a Ring Apprendi, the determination relat parameters of admissible evidence mentally retarded must be petitioner is not Howell was con ing to the crimes for which by beyond' a reasonable proven the State Lambert, forth in victed as set doubt. ¶11, 3, 71 P.3d at 31. legislature not con The Oklahoma has 37 ¶ However, totality reviewing the 34 in a maxi ditioned an increase defendant’s grave we have no presented, of the evidence that he is not punishment mum on the fact trial would retarded; the outcome of the doubts that fact a defendant is mentally materially had the error have affected mentally aggravating been not an not retarded is though the evidence not occurred. Even prove must circumstance which the State Lambert, we con beyond scope O.S.2001, went 21 beyond a reasonable doubt. beyond a was harmless clude its admission penalty a Eligibility § for the death 701.12. California, Chapman v. reasonable doubt. proof aggravating issue than different an 824, 828, 18, 24, 17 L.Ed.2d 386 U.S. 87 S.Ct. states have addressed Other circumstance. (1967). establish, by not a 705 Howell did reached the same claims and have similar evidence, that he is preponderance of the Laney, 367 S.C. conclusion. State v. See mentally even if the evidence retarded and post- (2006)(concluding 732 627 S.E.2d of Lambert had not admitted in violation cases, is a thresh mental retardation Atkins admitted, the evidence still would been a defen whether old issue that determines is men supported have a verdict Howell all); capital punishment at eligible for dant is tally retarded. Smith, People v. 193 Misc.2d (N.Y.Sup.2002)(upholding N.Y.S.2d error, How- proposition In tenth requiring defendant validity of statute of the burden ell claims the allocation mitigating cir as a prove mental retardation by preponderance of the evidence proof a by preponderance of the evi cumstance Eighth Amend- petitioner violated the pros rejecting contention that the dence adequate proce- him of an ment and denied obligation an affirmative ecution should have determining mental retardation. dure for beyond a doubt ab prove reasonable trial, requested the trial Prior to would render any factor which beyond a sence of prove require court the State penalty); ineligible for the death defendant that he is not reasonable doubt 835, 860, Williams, n. 35 831 So.2d court denied the motion State retarded. The trial ¶40 (La.2002)(Atkins error, to mental referred retarda- his last claim of exemption capital punish- proven submits the an facts trial showed he is as ment, fact retarded as a “not as a the absence which matter constitu- law, jury’s contrary tional operates equivalent ‘functional of an verdict is as the ” to the evidence and cannot stand. greater of a offense.’ Citations element omitted.); quotations Howell v. retardation, prove 41 To mental (Tenn.2004)(mental S.W.3d retarda- show, required Howell was prepon tion is a issue that threshold determines 1) evidence, derance of the that he functions eligible capital whether a defendant for significantly sub-average at a intellectual lev all, statutory punishment aggrava- at not a substantially ability el that limits his to un ting the lack which circumstance must be information, process derstand and to commu proved by beyond the State a reasonable nicate, experience mistakes, to learn from or doubt); Johnson, In re 334 F.3d engage logical reasoning, in to control (5th curiam)(“neither Cir.2003)(per Ring and impulses, and to understand the reactions of Apprendi nor Atkins render the absence of 2) others; that his mental retardation mani equivalent mental retardation the functional 3) 18; age fested itself before the and that capital of an element of murder which the significant he has adaptive limitations in beyond prove State must a reasonable functioning in at following least two of the doubt”). communication; self-care; skill areas: so skills; cial/interpersonal living; home self- ¶ 38 continue to hold that in We a direction; academics; safety; health and use post-conviction proceeding, when this Court resources; community Myers, and work. has for a remanded determination on ¶22, 6, 266; 2005 OK CR 130 P.3d at Mur retardation, the factual issue of mental a ¶ phy, 32, 31, 2002 OK CR 54 P.3d at 567- petitioner prove by must mental retardation 568. The issue of mental retardation is a preponderance a of the evidence. State ex. factual which by jury, issue was resolved Bass, 14, ¶ 8, rel. Lane v. 2004 OK CR jury’s and we afford the great decision defer 629, 631-632; Lambert, P.3d 2003 OK CR Myers, ence. id. at 130 P.3d at 266-267. ¶ 4, 32; Myers, 71 P.3d at jury’s We will not disturb a verdict where ¶ 6, 130 P.3d at 265. Mental retardation is a any competent there is reasonably evidence complete imposition bar to the of the death tending support it. Id. When a defen penalty; it statutory ag is different from a dant/petitioner challenges sufficiency gravating circumstance which increases the following jury’s the evidence verdict that he punishment offense, an for and we conclude retarded, she is not this Court holdings Ring Apprendi, that the in in will light review the evidence in a most favor opinion, our require prove do not State any able to the if State to determine rational beyond the lack of mental retardation a rea trier of fact could have reached the same sonable doubt. Id. conclusion. ¶42 Further, persuaded we are not Applying this standard of review to case, procedure by restructure our present the New Jer supports we find the record sey Superior holding in jury’s Court’s State v. Jim verdict that Howell is not enez, (A.D. N.J.Super. 880 A.2d 468 retarded. Howell was administered various 2005). holding intelligence Jimenez that the bur years tests over the and his proof den of prove should be on ranged the State to scores from 62 to 91. Howell’s scores a defendant’s mental by retardation is based on tests expert, administered Dr. upon Grant, that interpretation Court’s of its ranged own from 62 to 73.7 Dr. also Grant upon State Constitution public policy its administered various adaptive academic and Jimenez, grounds. functioning A.2d 489. Accord tests and concluded Howell’s re- ingly, proposition Howell’s tenth is denied. sults on those tests were consistent with his (SB-4), 7. Dr. Grant Comprehensive administered the Wechsler Adult In- and the Test of Non- telligence (WAIS-3), Scales—3rd (CTONI). Edition Intelligence Verbal Intelligence Stanford Binet Scale'—4th Edition Freeman, ex- Dr. Hutson noted Howell Howell is IQ He testified performances. injured leg significantly pressed has sub- concern about his mentally retarded and functioning objectives in multi- average general intellectual was able to communicate words, ideas, significantly impaired adaptive skills. syllabic communicate and make cogent arguments. Brenda testified 43 Howell’s sister children, Howell was raised as of nine one use 46 Dr. also noted Howell’s Hutson poverty. Al- an environment extreme request- community resources where Howell younger years than though she was three ed reduction or commutation sentence Howell, help said had to him dress she she correspondence written which contained rea- years five old. time she was about from the arguments. welding sonable He achieved speech difficulty with he had She said and received a commendation for certification what he was could understand she often Wyo- his work while incarcerated activities taught saying. She said she ability ming. Hutson testified Howell’s Dr. when he was nine. ABCs successfully from incarceration escape ¶44 David testified that Howell’s brother ability. intellectual Dr. Hutson showed his children, food they had no to eat. as often any not seen evidence that stated he had poverty. they in extreme He said lived special in classes while Howell was education in and attended school David said he Michael as a Dr. Hutson attending school child. said grade special in education same were the significant suffer from limita- Howell did not fun David said other children made classes. (noting tions in skills Howell fared well social of and called them retarded because them a that drug in his scene as user and he social special in classes. they were education skills, married), self-care, was communication childi-en called them David said other work, community and use of resources. “F”s. boys” they made David “flag because jobs. had He worked for said Michael several presented The at the evidence picking gar- garbage up his father’s service Howell did not meet even the trial shows loading bage, for Ross Metals batteries onto mental retar prong first of the definition of belt, conveyor Carnell as a a and for Gene ¶32, 31, Murphy, 2002 OK dation. CR said knew of a time laborer. David he never Although presented evi P.3d at Howell Michael lived when alone. IQ than 70 on dence scores lower he obtained occasions, Hutson, couple his on those tests Dr. a effort expert, 45 The State’s John questionable. properly The could mentally Al- was not find Howell retarded. did and con scores consider Howell’s above though Howell scored a 62 on WAIS-III Hutson, IQ at a level. An higher clude functioned by Dr. Dr. Hutson was he administered not determina score of 70 or below alone is with level of effort Howell uncomfortable Pickens v. tive of retardation. See put said Howell’s scores mental into the test. He ¶27, 14, 126 P.3d presenta- CR simply not with his 2005 OK were consistent (other functioning low interacting. intellectual talking During in evidence determining evaluation, may in whether appropriately, be considered responded Howell ability sub-average difficulty, fairly rapidly ques- has intellectual to someone without ability understand which limits one’s Although Hutson did not think tions. Dr. communicate, information, to learn process malingering, thought he Howell Howell was mistakes, engage in put experience from or he did care and did not acted like not reasoning, impulses and to logical Dr. to control effort the tests. Hutson forth his best on others). efforts, the reactions of Other mini- understand thought with his best Howell’s scores, suggest evidence, testing IQ near 80. He based besides mal score would be not in his abilities ed that was limited on his and conversa- opinion that interactions information, process not upon to understand and Howell and his review tions with skills, was able to Judge limited in communications conversation with Freeman mistakes, or was able experiences learn discharge in one 1996when wanted logical reasoning, and able attorneys engage in to be absent from the the reactions of others. exchange with to understand courtroom. mentally retarded, 48 The school records which were admit- this Court will review the poor light ted at trial show Howell made and often in evidence a most favorable to the however, State). failing grades; though these records do not Even relating some evidence show in special he was identified as need of to the crimes Howell improp- committed was admitted, erly education. we siblings School records of his find this evidence did verdict, jury’s Brenda and David contribute to the were admitted and their and its ad- beyond mission they records show was harmless special were identified as a reasonable evidence, Chapman, doubt. education students. From this U.S. 87 S.Ct. at establish, by 828. Howell did not prepon- could siblings have concluded his evidence, education, derance special he is but Howell was not. retarded if and even the evidence jury might admitted also have found Howell’s admitted, violation of Lambert had not been poor performance during academic the time the evidence still supported would not have effort, he attended school was due to lack of verdict that Howell is absences, retarded. or environmental factors rather ability. than lack of DECISION ¶ 49 His hand-written letters to Mona Lisa ¶ 52 Application Howell’s Second for Post- Watson show he communicated well in writ- Penalty Conviction Relief in a Death Case is ing; process he could understand and infor- DENIED and his sentence of death is AF- mation, mistakes, experience learn from 3.15, FIRMED. Pursuant to Rule Rules of engage logical reasoning and understand the Oklahoma Court Appeals, Criminal the reactions of others. The fact that he 22, Ch.18, (2006), Title App. the MANDATE wrote these letters showed he was able to upon ORDERED delivery issued relationship maintain a with Watson and filing of this decision. social/interpersonal were reflective of his skills. CHAPEL, P.J., A. JOHNSON and portions 50 The testimony of Howell’s LEWIS, JJ., concurs. hearings properly which were LUMPKIN, V.P.J., concurs in results. admitted also illustrate Howell does func- significantly tion at a sub-average level. His LUMPKIN, V.P.J., in concurs result. trial from 1988 showed he could ¶ 1 I in concur the result reached this process information, understand and commu- evidence, case and find no error in the in- nicate, engage logical in reasoning, and un- cluding portion of Howell’s derstand the reactions of others. His ex- regarding Charlene Calhoun that was read to change with Freeman in 1996 about jury, or law that would post- warrant leg, his broken discharging about his attor- conviction I specula- relief. find the Court’s ney, remaining and about pro- at the court knew, might inferred, have ceedings ability reflected his to understand more than they the evidence shows process information, communicate, en- regarding informed sup- murder is not gage logical reasoning, and understand the ported by the jury actually evidence the re- reactions of others. However, procedures ceived. as for the used by the in adjudicating Court the issue of evidence, 51 The admissible viewed retardation, mental only by I concur reason light State, in a most favorable to the showed of stare decisis for the same reasons set Howell did not significantly function at a sub- my writings State, forth in Myers average substantially level that limited his 262; State, OK CR 130 P.3d Lambert v. abilities to process understand and informa 30; 2003 OK CR 71 P.3d ex tion, communicate, experi to learn from Bass, rel. Lane v. mistakes, ence or engage logical reason ing, impulses, to control and to understand the reactions of Myers, others. See 2005 OK ¶22, 7, (when

CR 130 P.3d 262 a defendant

challenges sufficiency of the evidence

following jury finding is not he/she

Case Details

Case Name: Howell v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 29, 2006

Citation: 138 P.3d 549

Docket Number: PCD-2003-268

Court Abbreviation: Okla. Crim. App.