Lead Opinion
OPINION DENYING SECOND APPLICATION FOR POST CONVICTION RELIEF AFTER REMAND FOR JURY DETERMINATION ON ISSUE OF MENTAL RETARDATION
¶ 1 Petitioner, Michael Wayne Howell, was convicted by a jury in Oklahoma County District Court, Case No. CRF 1987-6784, of First Degree Murder, committed with malice
¶2 On June 16, 2003, Howell, through counsel, filed his Second Application for Posb-Conviction Relief, pursuant to
¶ 3 Howell’s jury trial on mental retardation was held in Oklahoma County District Court, before the Honorable Virgil C. Black, District Judge on May 23rd — 27th, 2005. Howell waived his personal appearance at the jury trial, but was represented by counsel prior to and throughout the trial. The jury returned with a verdict that Howell is not mentally retarded. The trial court denied Howell’s motion for a new trial. The trial court filed written findings of fact and conclusions of law. Both parties filed Supplemental Briefs on September 23, 2005. Howell asks this Court to reverse the jury’s verdict and order a new trial, or in the alternative, modify his sentence of death to a non-capital sentence due to his mental retardation.
¶ 4 Though this appeal remains part of Howell’s post-conviction case, we will review errors alleged to have occurred in this jury trial on mental retardation in the same manner as errors raised on direct appeal from a trial on the merits. Myers v. State,
1. The prosecutor exceeded the proper bounds of opening statement and violated Lambert by indirect reference to the facts of the capital crime in opening statement;
2. The prosecutor’s irrelevant and improper statements about Petitioner’s character in closing argument constituted reversible error;
3. The trial court improperly admitted irrelevant and prejudicial law enforcement opinion concerning Petitioner’s mental functioning without a proper foundation;
4. The trial court improperly admitted irrelevant and prejudicial opinion testimony from a former prosecutor/current district judge concerning Petitioner’s competency to testify;
5. The trial court improperly admitted irrelevant and prejudicial letters attributed to the Petitioner;
6. Evidence of Petitioner’s use of verbal obscenities denied Petitioner a fair trial.
7. The trial court’s instruction that mental retardation must be “present and known” before age 18 violated Atkins v. Virginia,536 U.S. 304 ,122 S.Ct. 2242 ,153 L.Ed.2d 335 (2002);
8. The trial court erred by denying non-unanimous verdict forms to the jury;
9. The admission of irrelevant and prejudicial testimony about the murder investigation and from Petitioner’s capital trial violated the strict relevancy limitations on such evidence required by Lambert v. State and Atkins v. Virginia;
10. The allocation of the burden of proof by a preponderance of the evidence to the Petitioner violates the Eighth Amendment and denies an adequate procedure for determining mental retardation;
11. The facts proven at trial showed Petitioner’s mental retardation as a matter of constitutional law. The jury’s verdict is contrary to the evidence and cannot stand.
The State, in its Supplemental Brief, submits the trial court followed proper procedure and properly instructed the jury and sufficient evidence supported the jury’s determination that Howell is not mentally retarded.
¶5 In Murphy v. State,
A person is “mentally retarded”: (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18) and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work.
It is the defendant’s burden to prove he or she is mentally retarded by a preponderance of the evidence at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.
Id. (footnotes omitted).
¶ 6 In Lambert v. State,
¶ 8 The prosecutor in this case talked about Howell’s involvement in the criminal justice system, his incarceration and escape from a correctional facility, and his involvement in drug trafficking and in particular a drug deal gone awry. After the prosecutor mentioned Petitioner’s escape from a correctional facility, Petitioner’s counsel objected that the statement was beyond the proper scope of opening statement and the objection was properly overruled. The prosecutor was outlining the evidence which she intended to present at trial. Next Petitioner’s counsel objected to the prosecutor’s statement that Petitioner was part of a numbers racket. The trial court properly overruled this objection noting the prosecutor merely stated what Petitioner said during his own testimony. Counsel’s last objection came after the prosecutor referred to Howell’s testimony that “people get killed over dope and money.” Counsel argued the prosecutor had indirectly referred to the facts of the capital crime — someone getting killed over drugs and money. This objection too was properly overruled as no specific mention of Howell’s capital crime occurred and the prosecutor’s statement was made to explain Howell’s actions stemming from his involvement in cocaine distribution.
¶ 9 The trial court, upon counsel’s objections, properly determined the prosecutor had not exceeded the proper scope of opening statement and had not exceeded the boundaries enunciated in Lambert. We find no error.
¶ 10 In his second claim, Howell contends the prosecutor’s closing argument also violated Lambert. Counsel objected only after the prosecutor argued “[t]here’s nothing illogical about Michael Wayne Howell. There’s a lot that’s been illegal about Michael Wayne Howell.” The trial court overruled the objection “under the circumstances.” The circumstances, as they appear in the record, show that the prosecutor’s closing argument, while referring to Howell’s prior testimony and other evidence, was designed to illustrate how Howell’s own statements and his writings showed he could communicate effectively and had the ability to learn from mistakes and to think logically. This argument was not improper. Id. It was offered in direct response to Howell’s evidence of adaptive functioning deficits.
¶ 11 As to the propriety of the remainder of the prosecutor’s closing argument, we review for plain error, because counsel made no further objections. Harris v. State,
¶ 12 During the prosecutor’s direct examination of Del City Police Officer Taylor, the prosecutor asked if, at any time during his investigation, he ever observed “anything that made you question his level of mental functioning?” Defense counsel objected as to lack of foundation and his objection was overruled. Officer Taylor responded “I — no, I did not.” Then the prosecutor asked if it “ever occurred] to you that he might be mentally retarded?” Officer Taylor responded, “No.” In his third claim, Howell argues the trial court erred when it allowed Del City Police Officer Taylor to testify about his observations of Howell’s level of mental functioning.
¶ 13 Admission of evidence is within the trial court’s discretion, and will be disturbed only upon a showing of prejudice. Hooks v. State,
¶ 14 Howell also claims, in Proposition Four, that the trial court improperly admitted the opinion testimony of Judge Ray Elliott, a former prosecutor, concerning Howell’s competency to testify at a hearing in 1988. The prosecutor asked, “And prior to him testifying, did his lawyers or anyone else ever express any concerns that he was not mentally capable of making the decision to testify?” Defense counsel objected on relevancy grounds and his objection was overruled. Judge Elliott responded, “No.” When asked if he had any concerns in that regard, Judge Elliott responded, “No, none at all.”
¶ 15 The trial court did not abuse its discretion in allowing this testimony. Judge Elliott’s observation that neither Howell nor any of the attorneys involved in his 1988 criminal proceeding objected to his decision to testify on the grounds that he was not mentally capable of making that decision was relevant to the jury’s determination of both the first and third prong of the definition of mental retardation as set forth in Murphy. Hooks,
¶ 16 Next, Petitioner claims the trial court erred when it admitted “irrelevant and prejudicial” letters written by Howell to Mona Lisa Watson, his co-defendant and former spouse. The admission of this evidence was within the discretion of the trial court and we find no abuse of discretion. Hooks,
¶ 17 In his sixth claim, counsel for Petitioner argues that evidence of Petitioner’s use of profanity denied him of a fundamentally fair jury trial on mental retardation. Counsel objected on three different occasions, noting that Howell’s use of the “F” word, variations thereof, and the use of other cuss words were shocking to the sensibilities of the jury and were extremely prejudicial. The trial court properly overruled counsel’s objections, noting the way he phrased his answers showed his contempt for the process and were demonstrative of his attitude and understanding of the proceedings. Howell’s use of profanity in his everyday language, while unpleasant to hear, were not so prejudicial as to render his complete statements inadmissible. 12 O.S.Supp.2003, § 2403 (relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). The trial court did not abuse its discretion when it allowed the prosecutor to reference Howell’s actual words in its examination of witnesses and closing argument and no relief is warranted on this claim. Hooks,
¶ 18 In his seventh proposition, Howell claims the trial court’s jury instruction that mental retardation must be “present and known” before age eighteen violated the standards enunciated in Atkins. In Proposition Eight, Howell claims the trial court erred when it refused to give the jury non-unanimous verdict forms.
¶ 20 In Proposition Nine, Howell argues the admission of irrelevant and prejudicial testimony about the murder investigation and from Petitioner’s capital trial violated the strict relevancy limitations on such evidence required by Lambert v. State and Atkins v. Virginia. Howell complains about the admission of all of Judge Ray Elliott’s testimony, Officer Phil Taylor’s testimony, Mona Lisa Watson’s testimony, and the admission of Howell’s own testimony by videotape from his trial in 1988. Howell also complains about the admission of the letters he wrote to Mona Lisa Watson. We have already determined portions of Judge Elliott’s testimony and Officer Taylor’s testimony, relating to their observations that Howell did not appear to be mentally retarded, were properly admitted. Similarly, we found admission of the letters written by Howell to Watson was proper.
¶ 21 During the direct examination of Judge Elliott, the prosecutor asked him to read portions of Howell’s direct examination from a court proceeding (his jury trial) held December 5,1988 and to identify a videotape of portions of Howell’s cross-examination from that hearing. The videotape was then admitted as State’s Exhibit 13 and was played for the jury.
¶ 22 The particular facts surrounding the capital crime for which Howell was convicted are inadmissible under Lambert, “unless particular facts of the case are relevant to the issue of mental retardation.” (emphasis added) Lambert,
¶ 23 Our decision in Lambert clearly envisioned that testimony from a prior proceeding might be admissible if it constituted evidence bearing on the issue of mental retardation. Here, the complained of evidence is Howell’s own testimony and his own statements during an in camera hearing. We have completely reviewed the written transcripts and viewed the videotape. While much of the evidence was admissible, certain portions were not and were admitted in violation of Lambert.
¶ 25 In the first eleven (11) pages of Howell’s testimony which was read to the jury, Howell testified about his involvement in a cocaine drug ring business. He testified about the operation of the business, told how it worked on a numbers racket, and how the drug deals took place. Howell testified about the man in charge of the drug business, described how the drugs and money were packaged, and how he was involved. Howell’s testimony reflected his ability to respond directly to his counsel’s questions and his responses were coherent and showed he could think and respond logically. The evidence of his involvement in the drug distribution ring, by way of his own testimony, while evidence of criminal conduct, was relevant to the issue of mental retardation, because it showed his ability to think rationally, to follow instructions, and to be responsible for large sums of money and drugs. See Hooks,
¶26 The remainder, consisting of the specific drug deals leading up to his meeting with Charlene Calhoun, should not have been admitted. The portion of his testimony which explained how Calhoun was involved in the operation and which described their first cocaine exchange was of minimal relevance. But, more importantly, his testimony about the events leading up to their next meeting, his description of the elevated emotions surrounding the impending drug deal, and his description of the actual meeting with Calhoun suggested that serious criminal conduct followed. Howell testified
She showed up. She said, “How you doing?” I said, “How you doing.” I said, “You got the money?” She said, ‘Yeah, I got the money.” She says, “I told you I had the money before I ever told you to come over here.”
I said, “Where’s it at?” She said, “Where’s the drugs?” I said, “I’ve got the drugs.” I said, ‘You owe us $20,000. I’m here to get $20,000. When you give me the $20,000 and what we give to you in Ft. Smith last month, then I’ll give you another kilo.”
It was at that point, just before Howell’s testimony would have revealed how the meeting escalated into a physical confrontation and his shooting of Calhoun, that counsel objected again and the trial court directed the prosecutor to skip to specific areas of the transcript. The prosecutor then skipped five (5) pages and began with this colloquy:
Q: Why did you take the car?
Howell: I already set the truck on fire. I knew I had to get out of there, you know. People was looking out the windows.
Q: Why did you burn the truck?
Howell: Because I was trying to cover up the evidence, my fingerprints, because I stole the truck and everything.
Q: When you were there, what time was it in the night, about 9:00? Do you recall?
Howell: Yeah, something around in there. I don’t know what time it was.
Q: Were there lights around in these apartments right here?
Howell: Were there lights around there?
Q: Yes. Could you tell people were home?
Howell: Yeah, some of them was home, yes.
¶ 27 The prosecutor skipped over the questions about what Howell did with Calhoun’s body, moved to the next page of the transcript and asked “If you had $60,000, why didn’t you just unpack some of the money and buy a different car and lay low?
Howell: Because I don’t mess with dope money. My partners told me straight up, don’t touch it....
Q: What did you think would have happened had you disturbed that money?
Howell: I wouldn’t be here today.... This is for real, people you don’t mess with.... You’ll end up dead messing with people’s money.
Howell then testified he went to Florida, stayed in a hotel, and stashed the money as instructed. The remainder of his direct examination was not read to the jury.
¶ 28 The portion of Howell’s testimony referencing his contact with Charlene Calhoun and the events surrounding the drug deal with her, which led to her murder, should not have been admitted. While Howell’s specific testimony that he shot her was not read to the jury, it was obvious from what was read that a serious crime had occurred. His testimony surrounding his meeting with Calhoun are so closely entwined with the actual facts of the crime, i.e. Howell shooting her, that this portion of his testimony should not have been admitted and was admitted in violation of Lambert.
¶29 Next we address the admission of State’s Exhibit 13, a videotape of a portion of prosecutor Robert Macy’s cross-examination of Howell at the 1988 trial. The beginning of the cross-examination was relevant to the issue of mental retardation. Because Howell waived his presence at the mental retardation jury trial, it was the jury’s only opportunity to see Howell’s demeanor and the way he communicated with the prosecutor. He answered the prosecutor’s questions directly and coherently and was not evasive. At one point, he even attempted to joke with the prosecutor.
¶ 30 Approximately six minutes into the videotaped examination, the prosecutor began to ask questions relating to or referring to Charlene Calhoun. These questions might have been relatively innocuous had the jury not just heard Howell’s direct examination testimony of the facts surrounding his meeting with Calhoun, his burning of her truck, and his subsequent flight to Florida. While there was no specific reference to Howell’s murder of Charlene Calhoun, there was enough reference to the victim and to his conduct following her murder for the jury to piece together what happened. A portion of this videotape was admitted in violation of Lambert.
¶ 31 Finally, we address that portion of Judge Elliott’s testimony where he read Howell’s testimony from an in camera hearing held in 1996.
¶ 32 In Atkins, the Supreme Court observed that “Mentally retarded defendants may be less able to give meaningful assistance to them counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.” Atkins,
¶ 33 “The trial court’s decision to admit evidence will not be disturbed absent a showing of abuse of discretion accompanied by prejudice.” Mitchell v. State,
¶ 34 However, reviewing the totality of the evidence presented, we have no grave doubts that the outcome of the trial would have been materially affected had the error not occurred. Even though the evidence went beyond the scope of Lambert, we conclude its admission was harmless beyond a reasonable doubt. Chapman v. California,
¶ 35 In his tenth proposition of error, Howell claims the allocation of the burden of proof by a preponderance of the evidence to the petitioner violated the Eighth Amendment and denied him of an adequate procedure for determining mental retardation. Prior to trial, Howell requested the trial court require the State to prove beyond a reasonable doubt that he is not mentally retarded. The trial court denied the motion and thereafter instructed the jury that it was Howell’s burden to prove mental retardation by a preponderance of the evidence.
¶ 36 Howell claims the allocation of this burden to him violates Ring v. Arizona,
¶ 37 The Oklahoma legislature has not conditioned an increase in a defendant’s maximum punishment on the fact that he is not mentally retarded; the fact a defendant is not mentally retarded is not an aggravating circumstance which the State must prove beyond a reasonable doubt. 21 O.S.2001, § 701.12. Eligibility for the death penalty is a different issue than proof of an aggravating circumstance. Other states have addressed similar claims and have reached the same conclusion. See State v. Laney,
¶ 38 We continue to hold that in a post-conviction proceeding, when this Court has remanded for a jury determination on the factual issue of mental retardation, a petitioner must prove mental retardation by a preponderance of the evidence. State ex. rel. Lane v. Bass,
¶ 39 Further, we are not persuaded to restructure our procedure by the New Jersey Superior Court’s holding in State v. Jimenez,
¶40 In his last claim of error, Howell submits the facts proven at trial showed he is mentally retarded as a matter of constitutional law, and the jury’s verdict is contrary to the evidence and cannot stand.
¶ 41 To prove mental retardation, Howell was required to show, by a preponderance of the evidence, 1) that he functions at a significantly sub-average intellectual level that substantially limits his ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; 2) that his mental retardation manifested itself before the age of 18; and 3) that he has significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. Myers,
¶42 Applying this standard of review to the present case, we find the record supports the jury’s verdict that Howell is not mentally retarded. Howell was administered various intelligence tests over the years and his scores ranged from 62 to 91. Howell’s scores on tests administered by his expert, Dr. Grant, ranged from 62 to 73.
¶ 43 Howell’s sister Brenda testified that as one of nine children, Howell was raised in an environment of extreme poverty. Although she was three years younger than Howell, she said she had to help him dress from the time she was about five years old. She said he had difficulty with speech and she often could not understand what he was saying. She said she taught Howell his ABCs when he was nine.
¶44 Howell’s brother David testified that as children, they often had no food to eat. He said they lived in extreme poverty. David said he and Michael attended school in the same grade and were in special education classes. David said other children made fun of them and called them retarded because they were in special education classes. David said the other childi-en called them “flag boys” because they made “F”s. David said Michael had several jobs. He worked for his father’s garbage service picking up garbage, for Ross Metals loading batteries onto a conveyor belt, and for Gene Carnell as a laborer. David said he never knew of a time when Michael lived alone.
¶ 45 The State’s expert, Dr. John Hutson, did not find Howell mentally retarded. Although Howell scored a 62 on the WAIS-III administered by Dr. Hutson, Dr. Hutson was uncomfortable with the level of effort Howell put into the test. He said Howell’s scores were simply not consistent with his presentation in talking and interacting. During his evaluation, Howell responded appropriately, without difficulty, and fairly rapidly to questions. Although Dr. Hutson did not think Howell was malingering, he thought Howell acted like he did not care and did not put forth his best effort on the tests. Dr. Hutson thought with his best efforts, Howell’s minimal IQ score would be near 80. He based that opinion on his interactions and conversations with Howell and upon his review of Howell’s conversation with Judge Freeman in 1996 when Howell wanted to discharge one of his attorneys and to be absent from the courtroom. In the exchange with Judge Freeman, Dr. Hutson noted Howell expressed concern about his injured leg and was able to communicate objectives in multi-syllabic words, communicate ideas, and make cogent arguments.
¶ 46 Dr. Hutson also noted Howell’s use of community resources where Howell requested sentence reduction or commutation by written correspondence which contained reasonable arguments. He achieved a welding certification and received a commendation for his work activities while incarcerated in Wyoming. Dr. Hutson testified Howell’s ability to escape successfully from incarceration showed his intellectual ability. Dr. Hutson stated he had not seen any evidence that Howell was in special education classes while attending school as a child. Dr. Hutson said Howell did not suffer from significant limitations in social skills (noting Howell fared well in his social scene as a drug user and that he was married), communication skills, self-care, work, and use of community resources.
¶ 47 The evidence presented at the trial shows Howell did not meet even the first prong of the definition of mental retardation. Murphy,
¶ 49 His hand-written letters to Mona Lisa Watson show he communicated well in writing; he could understand and process information, learn from experience or mistakes, engage in logical reasoning and understand the reactions of others. The fact that he wrote these letters showed he was able to maintain a relationship with Watson and were reflective of his social/interpersonal skills.
¶ 50 The portions of Howell’s testimony from the prior hearings which were properly admitted also illustrate Howell does not function at a significantly sub-average level. His trial testimony from 1988 showed he could understand and process information, communicate, engage in logical reasoning, and understand the reactions of others. His exchange with Judge Freeman in 1996 about his broken leg, about discharging his attorney, and about remaining at the court proceedings reflected his ability to understand and process information, communicate, engage in logical reasoning, and understand the reactions of others.
¶ 51 The admissible evidence, viewed in a light most favorable to the State, showed Howell did not function at a significantly sub-average level that substantially limited his abilities to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others. See Myers,
DECISION
¶ 52 Howell’s Second Application for Post-Conviction Relief in a Death Penalty Case is DENIED and his sentence of death is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Notes
. The jury found the following aggravating circumstances: (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, (2) the defendant was previously convicted of a felony involving the use or threat of violence to the person, and (3) there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
. In Atkins v. Virginia,
. Portions of Howell's testimony referencing his commission of capital murder were redacted from the videotape.
. The Official Transcripts of Howell's testimony from proceedings held December 5, 1988 and April 22, 1996 are contained in the record on appeal. See Order Granting Joint Motion to Supplement Post-Conviction Record and Order Directing Clerk to File Attachments 1 and 2 in Appeal Record, PCD 2003-268 (Old.Cr. October 17, 2005)(not for publication).
. The record shows the prosecutor and Judge Elliott read Howell's testimony from the 1988 jury trial from page 5 through page 44. (Tr. 613, 617)
. Judge Elliott read Howell’s testimony from the April 22, 1996 transcript, pages 7 through 16.
. Dr. Grant administered the Wechsler Adult Intelligence Scales — 3rd Edition (WAIS-3), the Stanford Binet Intelligence Scale' — 4th Edition (SB-4), and the Comprehensive Test of NonVerbal Intelligence (CTONI).
Concurrence Opinion
concurs in result.
¶ 1 I concur in the result reached by this case and find no error in the evidence, including the portion of Howell’s testimony regarding Charlene Calhoun that was read to the jury, or law that would warrant post-conviction relief. I find the Court’s speculation the jury knew, or might have inferred, more than the evidence shows they were informed regarding the murder is not supported by the evidence the jury actually received. However, as for the procedures used by the Court in adjudicating the issue of mental retardation, I concur only by reason of stare decisis for the same reasons set forth in my writings in Myers v. State,