Lambert v. State

identity par- parties agree the indebtedness.5 The The that this contract is term B ty B or insurer entitled to obligation bondholder not an of the State of Oklahoma against of the the future enforcement debt the full for which faith and of the credit import. Ac- state is without constitutional pledged. Nothing State of Oklahoma rehearing granted for cordingly, should be legally herein be shall construed as obli- pro- of the entire further consideration bond gating Legislature Oklahoma the to make posal determine whether the credit en- any appropriation of funds. appro- place will in fact future hancement the validity the highway 1998 series bond upon priation squarely risk of the the bonds proposal proposal the bond herein rests State of Oklahoma. premise legisla- upon a B similar that future by the Report 5 The 1998 Annual Okla- obligated tures are appropria- to make the homa Bond Advisor6 lists State State long-term repay tions to Re- bond debt. Capitol Improvement Highway Revenue hearing granted may should be so this Court Bonds, Bonds, along Obligation with General consider whether the outcome of the Sardis Tax-Supported of Oklahoma “State litigation may Reservoir federal direct have a categorizes highway Bonds” bonds as but impact appropriation on the hence risk and Obligation Debts.”7 The Bond “Contractual the full faith credit of the Okla- State of reports that Advisor the State of Oklahoma’s proposal. homa as to the instant bond Capitol Improvement years Plan for fiscal 2000-2004 identifies billion in recom- $2.52 capital improvements projects

mended bonds, funds, by be funded revenue federal state and dedicated sources.8 It seems inev- several tax-supported itable that more reve- proposals nue bond will be submitted to this approval, prior approval Court for without 1999 OK CR 17 urgency resolving the electorate. The Wayne LAMBERT, Appellant Robert effect of credit enhancement insurance policy proposal on instant bond is obvi- ous. Oklahoma, Appellee. STATE Further, reports Bond Advisor proposed highway that after the were bonds No. F-96-1567. Court,9 approved the United States Appeals of Court of Criminal Oklahoma. against Government filed suit the State of in the District Oklahoma United States April 1999. Oklahoma, Court for Northern District of alleging Rehearing May State is default with Denied 1999. obligation respect payments to its to make legislative appropriations

from under con- tract for the construction of the Sardis Res- According

ervoir.10 Advisor’s Bond report, controversy meaning concerns the following language:

and effect contract Constitution, Capitol Application Improvement §§ 5. Oklahoma art. 9. Oklahoma Authority, supra, decided March re- April hearings denied judicial 6. This Court take notice of the State report. Bond Advisor’s Report, Bond 10. 1998 Annual Oklahoma State Advisor, p.17, reports the United Govern- States Report, 7. 1998 Annual Oklahoma State Bond July suit ment filed the and lists Advisor, p.24. contract, ser- same as the 1998 Sardis Reservoir bonds, highway as a "State of Oklahoma Tax- ies Report, Supported category 8. 1998 Annual Oklahoma State Bond in the of "Contractual Debt” Advisor, p.7. Obligation Debts.” Oklahoma, Indigent

Mark Barrett Defense Norman, Counsel, Appel- System, Trial for lant. Christopher, Indigent

Kristi L. Oklahoma System, Capital Di- Appeals Defense Direct Norman, vision, Appellate Appel- Counsel for lant. McClain, Attorney, Sapulpa,

Lantz District Appellee. Trial Counsel Edmondson, Attorney General W.A. Drew Oklahoma, Whittaker, Robert Assistant General, Attorney City, Appellate Oklahoma Appellee. Counsel for

OPINION

PER CURIAM. Wayne be- Robert Lambert was tried Court, County jury fore a in Creek District CRF-87-240, of two Case No. and convicted Degree counts of First Murder in violation O.S.1981, § 701.7. In accordance with recommendation,1 jury Donald Honorable 701.12(2); (2) espe- jury aggrava- § 1. The found the existence were of three murders heinous, (1) cruel, ting great cially circumstances: Lambert created atrocious (3) 701.12(4); person, probabili- of death to more than 21 O.S. and risk one existence of a felony murder. We dis- prosecution for Lambert to death on his Thompson sentenced D. agree. appeals Judgment his each count. Lambert

and Sentence. convicted of In Lambert was

murder, larceny, robbery and ar kidnapping, re appealed. this Court son. He Facts be Lambert’s murder convictions versed ¶2 Wayne Robert October On charge Lambert with did not cause State robbed, kid- Allen Hain Lambert and Scott felony original in its Information. murder murdered Laura Lee Sanders napped and charged original only Lam Information point, Houghton. At Michael some Relying malice murder. bert with the victims and Hain locked Information, took the stand at his gas cut the line the car. Lambert trunk of felonies, trial, underlying first admitted set the car on fire. and one of the defendants kill the victims. but denied he intended asphyxiation and thermal died of The victims Then, objections, the trial over Lambert’s burns. malice mur court instructed the on both felony jury returned a murder. The der and originally convicted 3 Lambert was murder, general of first which verdict victims degree murder of both 1988 of first compelled to as a find treat this Court also con- to death. He was and sentenced felony then con ing of murder. The Court kidnapping, two victed of two counts prejudiced and mis that Lambert was cluded automobile, larceny two of an counts charge felony by the failure to led State’s firearm, robbery and one counts of with a murder convictions murder and found the Judg- appealed his count of arson. other convictions had to be reversed.4 The this Court ment Sentence. affirmed, convic including Lambert’s were murder reversed Lambert’s convictions dangerous weapon. robbery with a tion for remanded the case for a death sentences and conviction, affirming robbery In remain- The Court affirmed the new trial.2 stated, recognize that should Court “We also ing convictions and sentences. charging re-file the information the State ¶4 re-trial, the filed an Before his State murder, felony place in to or in of addition charging Lambert Amended Information murder, aforethought the trial court malice and, in the Degree Malice Murder with First abrogate can the conviction for armed rob alternative, Degree Felony Murder.3 First bery Appellant in the event is convicted of jury trial was held. The the second felony murder.”5 guilty two counts of again found Lambert of ¶ trial, cor- 7 Before the second the State him to degree murder and sentenced first an Amended Infor- rected its error and filed on each count. death charging with two counts of mation Lambert and, alternative, in the two malice murder Jeopardy Double Claims underlying felony murder. The counts of ¶ error, felony charge was felony for the murder proposition Lam- his first jury robbery dangerous weapon. The jeopardy with a contends that double barred bert malice, being, regardless in the commission of ty that Lambert would commit criminal acts continuing dangerous weapon. robbery would constitute a violence that ... with a O.S.1981, 701.12(7). society, threat I, P.2d at 4. Lamben 503-05. Lambert [hereinafter L]. Lambert law, cannot 5. Id. Under Oklahoma defendant felony and the un of both murder be convicted provides, pertinent § 701.7 in 3. 21 felony felony support derlying mur used part: Oklahoma, charge. der See Harris degree person murder in the first A commits (1977) (un unlawfully person with malice when that and derlying felony felony merge into and murder aforethought the death of another human causes being.... purposes jeopardy double in one offense for Oklahoma). person A also commits the crime of murder degree when he takes the life of a human the first felony “continuing jeopardy” known implicit on murder and was instructed both “ jury Again, the returned a appeal malice murder. re-trials after a reversal on and ‘has degree murder. The general verdict first application proceedings where criminal abrogate underlying court did not trial against an not run accused have their full ”10 felony previously conviction that af- Supreme course.’ The Court has made I, appear it does firmed Lambert not “[ijnterests clear supporting that the continu- party requested either the court to do that ing jeopardy principle involve fairness to so- so. ciety, finality, lack of limited waiver.”11 Since case concerns re-trial after a argues appeal, 8 On that his appear degree appeal, successful it that 1996 first murder convictions are would dou- jeopardy jeopardy because he felony barred double has bar ble does not Lambert’s already underlying been the two convicted of prosecution. murder dangerous robbery weap- awith felonies — get prob- Lambert tries to around this felony these are final. on—and convictions by arguing jeopardy lem did not attach getting argu- Before into merits of this felony charge to the until murder 1996. Ac- ment, problem we note that we face same Lambert, cording separate prosecu- two we I and in faced Hain v. tions are at issue: the one in which jury, although instructed on State.6 prosecuted he was for malice murder and the murder, felony malice murder and returned a underlying jeopardy felonies and which for general verdict of first murder. This attached; robbery malice murder and “long has that a Court held conviction for prosecuted the one in in which he was murder where be affirmed alternative charged sup- felony theories are when the evidence for murder and malice murder and at aforethought felony ports either malice felony jeopardy which murder attached. Here, supported murder.”7 the evidence ei- argues jeopardy that since did not theory ther and the instructions both the- felony attach to murder until continu- However, proper. were because ories ing jeopardy apply. does not verdict, jury general we do not returned theory know under which convicted contrary, jeop 11 To the we find Lambert.8 This has held that where Court ardy felony charge for the murder at jury’s specify verdict either does tached at the trial. This first Court has murder, felony murder or malice verdict charges found that “where an information felony be treated must as one murder.9 murder, degree aforethought first malice a Thus, Lambert’s must conviction be treated felony-murder conviction for if be had felony turn as murder. We now to the mer- Thus, supported by if the evidence.”12 Lam jeopardy of Lambert’s Claim. its double prejudiced by felony bert had not been instructions, conviction murder a on those 9 It is that well-established when an grounds would have been affirmed. More appellate court reverses conviction and re over, trial, charge the failure to Lambert with jeop mands the for case a new double ardy felony process principle does not bar re-trial. This murder was a due error rath- 744, Id.; 22, denied, 124, 1993 cert. 1988 OK 6. OK CR 852 P.2d 511 9. Munson v. CR 758 1020, 1402, 324, 332, denied, 1019, (1994) U.S. 114 S.Ct. 128 L.Ed.2d 75 P.2d cert. 488 U.S. 109 7], case, 820, (1989). [hereinafter v. S.Ct. Hain A related Hain 102 L.Ed.2d 809 26, 1130, denied, cert. 519 U.S. 136 L.Ed.2d 117 S.Ct. 517 Lydon, Justices Court v. 10. Boston Mun. (1996), Hain II. will be referred to as 294, 308, U.S. 104 S.Ct. 80 L.Ed.2d (1984), Georgia, (quoting v. 311 323, 329, Price 26 L.Ed.2d 300 Id. at 752. 7. (1970)). problem This been avoided 8. could have had the Id. jury simply given indicating been verdict forms theory convicting under which was Lam- Munson, bert. 758 P.2d at 332. previously he had been v. the re-trial since jurisdictional error. Parker

er than underlying felony of kid of the State,13 convicted stated: this Court affirmed, that conviction was napping and on the trial court is conferred Jurisdiction agreed upheld but LaFevers’ The Court public of a offense the commission LaFevers was convicted conviction because in that trial properly venue lies where felony murder. murder and not of malice Thus, O.S.1991, §§ 121-136. court. distinguishable from La- case is Lambert’s jurisdiction triggered by trial court’s First, felony in LaFevers murder Fevers. filing alleging the of an Information charged in the first issue was public appro- with of a offense commission felony murder Jeopardy for trial. Therefore, this Court con- priate venue. until LaFevers’ charge thus did not attach any allege con- that failure to facts cludes case, trial. Lambert’s second Unlike stituting process due the offense raises ’ continuing LaFevers Court did not have the trial questions but does not affect felony-murder charge, jurisdiction over jurisdiction. court’s Second, in Lam here. the Court as we do Therefore, felony mur- Lambert’s re-trial clearly re-prosecution on bert I intended separate is not a new and action.14 der felony-murder. persuade tries to the Court State,15 question 13 The real here is wheth controls and bars that LaFevers affirming robbery convictions felony Again, er prosecution for murder. his LaFevers, precludes prosecuting disagree. Lambert I somehow we the defendant felony murder. punishing Lambert for originally tried and convicted of first law, felony murder and degree robbery, degree burglary, first kid Under Oklahoma vehicle; felony merge underlying into one off napping, larceny of a motor malice murder, arson, Traditionally, re degree degree when this Court first ense.17 third sodomy. appeal, felony both murder rape, views convictions for and forcible anal On felony, burglary, robbery, underlying we sustain the affirmed the and the the Court convictions, underlying vacate the larceny and re murder conviction and kidnapping and murder, argues degree felony the malice third ar conviction.18 versed son, underlying felony are final rape sodomy La convictions convictions.16 punish exact a again convicted of and the State cannot now Fevers was re-tried and re-trial, felony murder based on the same appeal murder. On ment for malice felony. underlying Lambert contends argued LaFevers error occurred when the punishment” problem charged felony him with murder in to cure the “double State (footnote finding murder that "the verdict on the inten 13. 1996 OK CR denied, interpreted omitted), charge an tional murder can be U.S. cert. implied acquittal.” not inter Id. at 458. We do pret general an first murder verdict as murder, Terry ap acquittal felony is not Meachum, (2d Boyd 77 F.3d 60 Cir. See State, 338, plicable. Md.App. Likewise Ball v. 57 1996) (finding jeopardy double did not bar re (1984) and United States v. Cava 470 A.2d 361 trial, felony court trial for murder where at first (8th 1991), naugh, which are 948 F.2d 405 Cir. person power had over defendant’s basic Lambert, by completely cited involve different judgment felony murder sense so as to render legal applicable are not and factual issues that charge). reliance on Todd v. Lans Lambert’s here. 167, 312, down, CR is mis 1987 OK clearly pros placed. separate Todd two involved 292, denied, CR P.2d cert. 15. 1995 OK 897 case involves a re ecutions whereas Lambert’s 820, 133 L.Ed.2d 763 516 U.S. appeal. also trial after a successful (6th Cir.1997). Potter, Terryv. 111 F.3d 454 cites Terry, charged the defendant was with inten 16. Id. and, alternative, wanton murder in the tional jury him of murder. The convicted intentional Oklahoma, 17. Harris v. 97 explicitly acquit but did not him of the murder 1054(1977). 53 L.Ed.2d ap wanton murder. The case was reversed on again charged peal, him under and the State 752; Munson, See, I, e.g., at The Sixth Circuit found Hain P.2d both murder theories. apply continuing jeopardy to wanton 332-33. that did not felony-murder here we must set aside the trial court’s failure to do so was an error. underlying convictions rather than the felo- authority haveWe to cure that error and to ny convictions. abrogate underlying the felonies at this time. By dismissing underlying felony convic- specifically I 14 The Court in Lambert tions, jeopardy objec- we cure the double jurisdiction underlying retained over the felo- tions. ny stating abrogate “the trial can that court robbery in the conviction for armed the event ¶ Moreover, O.S.1991, pro- § 1070 felony Appellant is convicted of murder.”19 vides, judgment against “On of affirmance Thus, jurisdiction underly- we have over the defendant, original judgment must be ing felonies well as as the murder convic- execution, carried appellate into as the court tions, appropriate craft we can reme- may Here, direct.” the Court directed dy any multiple punishment to cure problem. robbery convictions were to be affirmed proper problem The resolution this is to abrogated but could be if Lambert was sub- vacate the convictions and sentences for the sequently felony convicted of murder. Noth- underlying felonies. § ing in 1070 defeats or limits the action ¶ 15 To dissuade us from this course of Likewise, taken this Court in Lambert I. action, argues the Court did O.S.1991, empowers § this Court to jurisdiction not retain underlying over the exactly I, do what we did in Lambert and the language felonies and that the in Lambert I underlying felony may be vacated. regarding robbery convictions was mere- expressed 18 The Court and exercised its ly advisory.20 I advisory Lambert was not an jurisdiction continuing over Lambert’s rob- opinion. clearly appellate authority We had bery express convictions in its language and robbery over the clearly convictions and ex- instructions set out in I. The Court pressed abrogate that the district court could continuing jurisdiction retains its over the those convictions should Lambert be convict- felony murder convictions. We now affirm felony ed of murder. felony murder convictions and reverse ¶ 16 Lambert also seeks constricted with instructions to underlying dismiss the scope view of this Court’s mandate and robbery dangerous weapon. felonies with a State,22 relief.21 Greenwood v. the Court ¶ 19 Lambert raises a second double opinion stated that when we issue an or order, jeopardy proposition issue in his third empowered the trial court is to en error. order, Lambert contends that 21 opinion force that but the trial § 11 may beyond prosecution bars his go court our malice murder. mandate. The above, gen As discussed Court concluded that returned a the trial court had the power degree murder, eral authority given to act on verdict of first to it this even body opinion, though in the it including Court was instructed on both malice mur specific, explicit cases, felony der and instructions that be set murder. In such opinion.23 Clearly body out in the general felony Court treats the verdict granted Lambert I we the trial court murder. authori Since we must treat the verdict as ty abrogate underlying murder, felonies. felony question one of of wheth- 701.13, re-sentencing 19. 888 P.2d at 505. under 21 O.S.1981 Likewise, which is not at issue here. Johnson v. L.N., 20. Matter 1980 OK CR 617 P.2d 239. (1953), 97 Okl. Cr. 261 P.2d 905 inapplicable because it concerned this Court’s Brock, 21. See Bonner v. 1980 OK CR authority where the fails defendant to file a mo- 265; P.2d Greenwood trial, plainly tion for a new which is not at issue 895; Peck, 71, parte 381 P.2d Ex 96 Okl.Cr. 248 Appeals, here. Carder v. Court Criminal 1978 State, (1952); 444, P.2d 655 Reed v. 10 Okl.Cr. 130, inapplicable OK 595 P.2d be- (1914). 137 P. 369 authority cause it concerned the Court’s over OKCR46, 22. 1963 cases, 381 P.2d 895. State, juvenile and Wallace v. OK 1996 CR 8, 1084, jurisdiction 910 which P.2d concerns in Chaney 23. Id. at 898. Lambert's reliance on v. capital post-conviction proceedings, inap- is also Brown, 47, 159, 1985 OK CR 699 P.2d is mis- plicable. placed Chaney scope because concerned the 230 Relying on previous proceedings. jeopardy prosecution for first from bars

er double holding in transcripts and this those Court’s degree malice murder is moot. I, confes- the trial court allowed the Lambert Competency Issues jury. played to the sion to be ¶ re-trial, the trial Prior to Lambert’s 20 ¶ 24 This Court decided this issue post-examination compe- a court conducted appeal, I. In the current Lambert LambeH hearing competent Lambert tency and found holding hearing and relied a new waived appeal, Lambert raises to stand trial. On solely previous v. Denno on the Jackson concerning competency to issues his several hearing transcripts. As the Court found stand trial. I there is sufficient evidence Lambert finding waived his support the that Lambert prop ¶ 21 In fifth and thirteenth his opinion rights.27 concur with our earlier We error, Lambert raises concerns ositions of in allow find the trial court did err confession at regarding the admission his hearing. ing competency evidence at the Y, Proposition competency hearing. his that admission of his con Lambert contends ¶ proposition, 25 In his thirteenth competency trial was error fession at his competency hearing argues that his Lambert that he the State failed to show because prejudicial was unfair because impact intelligently knowingly and waived his outweighed probative ef his confession its police. rights speaking with the before above, the trial court did fect. As discussed allowing the con not abuse its discretion post-examination competency 22 The argues that fession to be heard. Lambert a hearing at issue here is the second time playing competency the confession competency jury has determined Lambert’s hearing probative To the was of little value. ap- During trial. Lambert’s initial to stand contrary, gave example an it a peal, this Court remanded the case for communicate, ability to which was Lambert’s competency proceeding.24 At retrospective jury. More relevant to the issues before retrospective competency hearing, over, this found this evidence relevant Court sought to introduce Lambert’s video- State competency retrospective 1991 Lambert’s taped confession. The trial court held hearing.28 its The trial court did not abuse hearing v. Denno25 and found Jackson allowing played to be discretion the video voluntarily knowingly waived Lambert jury.29 proposition This is denied. rights. The trial court allowed the video his I, jury. tape to shown to the be proposition 26 In his eleventh properly al- we found that the trial court error, Lambert contends the evidence is retrospec- this evidence at Lambert’s lowed jury’s finding that to sustain the insufficient competency hearing.26 tive competent trial. A defen he was to stand competency hearing competent is deemed to stand trial un At the before dant 23 re-trial, again sought proves by preponderance he the State less Lambert’s incompetent.30 played jury. evidence that he is have Lambert’s confession to the jury’s finding agreed forego contends that the that he was parties Both a Jackson transcripts competent sustained under this hearing rely on the cannot be Denno State, 22, voluntary rights. waiver of CR 808 P.2d a confession based on 24. Lambert v. 1991 OK 62, 1017, OK CR Lee v. 72. 1020. 368, 1774, L.Ed.2d 908 25. 378 U.S. I, (1964). 28. Lambert 888 P.2d at 499. I, seq. 29. 12 2401 et 888 P.2d at 499. Oklahoma, Connelly, Cooper S.Ct. 517 U.S. Id. Colorado v. See (1996); Bryan v. S.Ct. Lam- L.Ed.2d cert, denied, to be bert’s mental retardation is factor consid- voluntariness, -, U.S. 139 L.Ed.2d determining but mental ered in - 299 (1997). admissibility per retardation is not a se bar to State,31 proof. disagree. In McGregor stated,

burden of We The record v. the Court amply supports finding “Lay testify that Lambert was witnesses can about their obser- competent prepon- to stand trial under the vations of defendants if those observations reasonably proximate are pro- derance the evidence standard. This in time to the Here, proposition ceedings.”32 is denied. the State’s witnesses’ testimony rationally was based on per- their ¶27 argues Proposition Lambert ceptions and aided the trier of fact. Under prejudiced competency XII that he was in his law, § 2701 and our case the trial court did trial introduction other crimes evi in allowing testimony.33 not err object dence. Lambert failed to to this evi ¶ complains dence at trial and Lambert has waived review for all his fifteenth proposition of plain but error. The error that the evidence elicited was standard used to competent him probative relevant and find to to the issue of Lam stand trial is constitu- tionally earlier, competence infirm. As bert’s to stand trial. It related stated the court preponderance directly Dr. used the Goodman’s evaluation of Lam of the evidence stan- proof mental dard as its burden of bert’s state. Admission of evidence this trial.34 plain of other Lambert asserts that error crimes was not error and we occurred because grant require jurors the trial court decline to relief on this basis. did not find that Lambert had a rational as well as XIV, Proposition 28 In understanding factual proceedings. of the contends it was error for four wit State testify compe nesses about Lambert’s 31 The trial comport court’s instructions tence. These four witnesses worked for the Jury ed with the Oklahoma Uniform Instruc Department of regular O.S.1991, Corrections and had § tions and 1175.3. Lambert contact with Lambert. The witnesses stated competency criticizes the Oklahoma defini they competent. They found Lambert to be tion and contends it Dusky runs afoul of v. specifically compe did not state that he was Dusky, United States.35 In Supreme tent to stand trial. Because these four wit Court stated that the standard for determin experts, were nesses ing states that competency to stand trial is “whether it was testify error to allow them to about present [the has ability defendant] sufficient competence. Lambert’s lawyer to consult with his with a reasonable rational understanding —and governs 29 Title 12 whether he has a rational as well as factual admissibility lay opinion testimony. Sec- understanding proceedings against provides: tion 2701 him.”36 This Court has considered Okla If testifying the witness is not as an ex- determining competency homa’s standard for pert, testimony in opinions his the form of and found it Dusky consistent with the stand or inferences is limited to opinions those again competency ard.37 We find our stan inferences which are: dard comports is constitutional and with Rationally 1. perception based on the Dusky. witness; ¶32 Helpful to a clear understanding reviewing of his After all of al- Lambert’s testimony leged or the determination competency of a fact errors and defects proceeding, issue. proceeding we find that the 71, 1366, denied, 402, 788, 31. 1994 OK CR 885 P.2d cert. 35. 362 U.S. 80 S.Ct. 4 L.Ed.2d 824 827, 95, (1960). 516 U.S. (1995). 116 S.Ct. 133 L.Ed.2d 50 Id. at 80 S.Ct. at 789. See v. Godinez Id. at 1374. Moran, McCarty 33. Lambert relies on 1988 OK Harvey, CR 765 P.2d and Gabus v. 1984 OK 678 P.2d 253. Neither of these cases 37. Tate v. lay opinion testimony forbid the witness 1188; I, 497-98. occurred in this case. Oklahoma, 34.Cooper supra. showing that errors requires counsel’s comported process. due We

proper and with deprive the defen- any on these so serious as to grant to relief based were decline trial, a trial whose result is dant of a fair claims of error. both reliable. Unless a defendant makes Jury Issues Selection showings, cannot be said that the convic- it sentence resulted from a tion or death X, con Proposition Lambert adversary that process in the breakdown in trial abused its discretion tends the court renders the result unreliable.40 voir dire. This refusing to allow individual repeatedly individual voir Court has stated in fail- Lambert’s counsel was not ineffective required and the decision to allow dire is not ing change for a of venue. This to move voir dire is left to the sound discre individual rejected in Lam- issue had been raised argues tion of the trial court.38 in II.41 The decision to not bert I and Rain in the trial court abused its that his case change of venue under these circum- seek pretrial publicity all the discretion because of reasonable, strategic decision stances was a pretrial in Lambert overstates the his case. raised, likely and it is that had the issue been Many jurors had not heard publicity. of the Lambert would have lost on the merits heard of the the case and those who had appellate the trial and levels. More- both any they put aside affirmed that could case over, jurors many potential had not they might have. Lam preconceived notions jurors Those who heard of Lambert’s case. any jurors were not not shown that bert has they heard of the case affirmed that had its impartial, or that the trial court abused fairly put information and could aside denying him dire. individual voir discretion objectively judgment. sit grant to relief on this We decline basis. ineffec- has failed to show that counsel was regard. tive in this Ineffective Assistance of Counsel argues argues 34 Lambert his seventh 35 Lambert trial coun proposition of error that trial counsel was he failed to listen sel was ineffective because (1) change failing to move for a tape recording ineffective for of Lambert’s statements to a (2) venue, taped failing prior to listen to a police regarding other to to the crimes stage. The standard for tape during confession second the admission of that second reviewing of ineffective assistance of very claims stage. well-prepared, Trial counsel was by and was set out motions, counsel is well-established many and was a zealous submitted v. Washi Supreme Court Strickland client. The information on advocate his Strickland, out a ngton.39 the Court set surprise tape was not a to counsel and two-part reviewing claims of ineffec test for presented with the evidence was consistent tive of counsel: Indeed, assistance trial counsel called at trial.

First, testify during stage second and Lambert’s must show that coun- the defendant tape. testimony consistent with the performance was deficient. This re- was sel’s prudent if have been for counsel quires showing that counsel made errors Even it tape, tape functioning have listened to the that counsel was not so serious cumulative, surprise not a and consistent guaranteed the defendant as the “counsel” Second, stage testimony. the with Lambert’s second the Sixth Amendment. prejudice and trial counsel was the deficient There was no defendant must show not ineffective.42 performance prejudiced the defense. This OK CR 26, CR 38. Malone v. 1994 OK ("decision voir dire to allow individual jurors potential to the is also committed sound application for an evi- 42. Lambert also filed an right and is not a discretion of the trial court explore concerning dentiary hearing issues defendant”). guaranteed 3.11, effectiveness of trial counsel. Under Rule Ap- the Oklahoma Court Criminal Rules 22, Ch.18, (1998), evidentiary peals, App. 39. 466 U.S. an Title hearing only warranted if the defendant shows convincing evidence that trial coun- clear and CR sel was ineffective. Darks v. 1998 OK 40. Id. at 104 S.Ct. at 2064. Stage Issues The statute can be violated “whether First firearm is loaded or not” forbids the ¶ error, proposition of In his second 36 capa- “a blank or imitation firearm use of argues the evidence is insufficient raising ble in the mind of the one threat- of felony-murder convictions. support his a device a fear that it a ened with such 701.7(B), O.S.1981, person § “[a] 21 Under real firearm.”45 in the ... commits the crime of murder first life human McArthur thus makes clear that § when he takes the of a 801 can malice, in being, regardless of the commis- violated when a defendant an imita- be uses robbery dangerous weap- ... with a gun sion of tion firearm' —like a BB raise —-to Lambert claims that his use of an weapon on.” that the minds of the victims is a real gun Hough- unloaded BB to rob Sanders and firearm. Lambert concedes that his use of a robbery danger- with a gun Houghton ton did not constitute BB to rob Sanders and would claims, weapon, however, as that offense is understood § ous He violate 801. that rob- O.S.1981, reject § 21 701.7. We this bery dangerous weapon pur- under with a for the O.S.1981, claim. poses felony of murder under 21 narrowly § 701.7 drafted is more and that ¶37 21 purposes For the O.S. only dangerous weapon trig- actual of a use 1981, 701.7, felony § underlying of rob gers degree felony a first murder conviction. bery dangerous weapon with a is defined in O.S.1981, support argument, § 39 of this provides: 21 801 801.43 Section § argues 801 is written in the who, Any person persons or with the use disjunctive and that the use of the term “or” any dangerous any firearms or other robbery using indicates that an imitation fire weapons, the firearm is loaded or whether separate arm is a and different offense from not, who a blank or imitation fire- or uses robbery using dangerous weapon. He indi capable raising arm in the mind of the legislature cates that if the had intended to one with device a fear that threatened such include use of an imitation firearm under the firearm, attempts it is a real to rob or robs robbery dangerous weap umbrella of with any person persons, or or who robs or they specifically §in have 701.7 would business, attempts any place resi- rob done so. banking any dence or institution or other place by any person inhabited or attended analogizes to other 40 cases time, persons any day night, either or involving scope felony limitations on the felony, upon guilty shall be of a conviction State,46 cites Richie v. He murder. first therefor. kidnapping by which this Court found that 801, O.S.1981, § 21 the crime Under of rob felony un extortion was not an enumerated bery dangerous weapon with a can be accom However, § Lam der 701.7. contrast to plished by weapon, an imitation means of case, by kidnapping bert’s extortion is de In McAr gun. a BB which would include O.S.1991, 745(A), § fined in 21 whereas State,44 thur v. this Court stated: O.S.1991, § 21 kidnapping is defined in 741. Thus, Richie concerns two separate Significantly, section 801 allows for statutes; subjective

the consideration of a victim’s distinct Lambert’s case concerns Lambert also cites Boutwell v. weapon only § belief when the used is firearm. 37, 765, application 906 P.2d 168. Lambert’s 43. Powell denied, high newspaper meet does not this burden. 774 n. cert. 517 U.S. showing pre-trial (1996). articles and other evidence publicity adequately do not show that in this case trial counsel was ineffective. Given the lack of OK CR 48, 862 P.2d 482. 44. juror previous and this Court's decisions in bias II, Lambert I and Haiti the additional evidence Id. at 484. presented application fails to show convincing clear and evidence that trial counsel denied, OK CR cert. handling was ineffective in his of this issue. Ac 111, 136 L.Ed.2d cordingly, evidentiary hearing we find an to be unnecessary deny application. Lambert's robbery However, happened in the commission of Boutwell concerns State.47 Third, dangerous weapon; for remunera caused of the murder with a construction defendant(s) aggravating circumstance under in the commis tion while 701.12(3) applicable and is not dangerous weapon; robbery with a sion presented Sixth, in this case. These Fifth, to the facts Fourth, taking; wrongful; controlling and not force are not do cases Seventh, away; personal proper carrying like. that Lambert would the conclusion another; Ninth, ty; from the Eighth, of another; presence person or immediate Indeed, suggested narrow- Lambert’s fear; Eleventh, Tenth, by use or force robbery dangerous weapon that ing of with a firearm, or of a § with 701.7 is inconsistent is enumerated'in loaded/unloaded/ímiíaíiow State,48 dangerous weapon.52 other law. In James v. this Court’s case scope the under- the considered the Court under- demonstrates this Court’s Powell dangerous felony robbery a lying with robbery dangerous standing with a that James, weapon § under 701.7. In the defen- robbery § with weapon under 701.7 includes victim, but attempted had to rob the dant an imitation firearm. During the course was unsuccessful. ¶43 objects Finally, to the trial Lambert attempted robbery, was shot and the victim felony murder.53 court’s instructions argued an at- killed. defendant instructed the as fol- The trial court robbery among the tempted armed was not lows: § 701.7. The enumerated felonies under murder in person be convicted of No disagreed and “concluded the Court degree the has the first unless State attempted Legislature intended to include proved beyond a doubt each reasonable statute, robbery felony armed in the murder are: element of the crime. These elements attempted just they intended to include as robbery defining in armed First, human; armed the statute the of a death Likewise, Legislature in- robbery.”.49 Second, occurred as a result of the death robbery with an imitation tended to include happened in the an act or event which statute, just weapon felony as murder robbery dangerous with a commission of a robbery they to include with an intended weapon; robbery weapon in the with a dan- imitation Third, any caused the defendant weapon gerous statute.50 while in person engaged with he defendant ¶ Moreover, in footnote 8 of Pow robbery a with a dan- the commission of State,51 out the elements ell v. this Court set gerous weapon; felony un murder where the of first Fourth, robbery with a the elements of robbery dangerous derlying felony is with a alleged weapon dangerous the defendant is weapon. The Court wrote: commission of are as to have been Felony Degree First Mur The elements of follows: felony Robbery underlying der with the First, wrongful; First, Dangerous Weapon are: with Second, taking; human; Second, the death ’oc death of Third, away; carrying of an act or event which curred as a result satisfy requirements the statute. Lam- 47. 1983 OK CR 659 P.2d 322. Wilson, 282 Mont. bert's reliance on State v. (1997), misplaced. The is also 936 P.2d 316 48. 1981 OK CR 637 P.2d 862. quite O.S. Montana statute is different from 21 provides § no and Montana case law Id. at 865. guidance interpretation of Oklahoma law. by arguing distinguish tries to James 51. 906 P.2d at 774 n. 8. gun likely to cause death and the that a BB have resulted defendant’s conduct James could added). (emphasis 52. Id. However, specifically provides, in death. specifically recognizes, that an im- and McArthur here, firearm, Inexplicably, gun the State fails to address the BB at issue itation like dangerous weapon brief. qualify sufficient to issue its does Fourth, personal property; Lambert I the Court found sufficient evi- support finding dence to that Lambert another; Fifth, of rights.56 waived his We concur with our Sixth, person from the or the immediate opinion earlier and find the trial court did not another; presence of in allowing err this evidence. Relief is de- Seventh, fear; by force or proposition nied based on this of error. Eighth, through use of a loaded or un- VI, Proposition 46 In complains loaded firearm or a or imitation blank that reversible error in' guilt occurred capable raising firearm in the mind of phase of trial when the State’s rebuttal wit- person with threatened such device a ness, Goodman, Dr. improperly Thomas re- danger- fear that it is a real firearm or a ferred to other crimes evidence and violated weapon.54 ous prohibition against evidentiary harpoons. objects particularly language to the It is put well-established that “when one is eighth in in robbery element defini- trial, by one is to be if convicted at all tion, However, as set out above. the lan- evidence guilty which shows one of the of- guage eighth in the element is identical to charged; proof guilty fense that one is OUJI-CR 489 and OUJI-CR 2d ed. 4-144. other offenses not connected with that for with, language The is also consistent al- which one is on trial must be excluded.”57 to, though not identical footnote 8 of Powell evidence, however, Other crimes is admissi- State, discussed above. The trial court’s motive, if intent, ble it “tends to establish proper. instructions were accident, identity absence of mistake or or a ¶44 plan common scheme or which embraces the insists that the trial commission of two or more crimes so related court should have included an instruction proof to each other that of one tends to defining firearms. The inclusion of the in establish the other.”58 unnecessary struction was under the facts of this case. We find the evidence sufficient to ¶47 addition, the Court forbids wit- support Lambert’s conviction and find the making “evidentiary harpoons” nesses from trial proper. court’s instructions were This unfairly skewer the defendant. The .that proposition is denied. evidentiary Court has harpoons described voluntary generally statements made ex- proposition,55 his fifth Lam perienced police by lay officers or wit- bert contends that admission of his confes willfully jabbed nesses59 that “are rather during phase sion the first of trial error. was inject than inadvertent” to other crimes evi- During trial, stage the first the State prejudice dence calculated to the defendant sought parties to admit the confession. The prejudice and which do fact the defen- holding waived a new Jackson v. Denno dant.60 hearing simply and asked that the court re transcripts view proceed of the earlier argues 48 Lambert that Good ings. Relying transcripts on those and this stealing, man’s references to Lambert’s Lam I, jail Court’s decision in Lambert attempted trial court bert’s arson while and an played allowed the confession to be to the sexual assault Lambert committed when he jury. opinion, As young discussed earlier this imper- was adolescent constituted State, 54. O.R. Vol. XIV at 2544. 57. Burks v. 1979 OK CR State, grounds by overruled on other Jones v. proposition 55. See earlier discussion of fifth 1989 OK CR 772 P.2d 922. post-examination compe- error at it relates to the tency hearing. Id. Connelly, Id. See Colorado v. U.S. Lam- 59. Womble v. 1983 OK CR bert’s mental retardation is factor to be consid- 747, 749. voluntariness, determining ered in but mental per admissibility retardation is not a se bar to 60. Bruner v. P.2d voluntary rights. a confession based on waiver of 1375, 1378. Lee, 700 P.2d at 1020. admissibility photograph of a or bad of other crimes missible evidence inflammatory, gruesome or but evidentiary whether it is alternatively an acts61 substantially probative value is whether its Dr. harpoon. trial court had limited danger preju- unfair outweighed by the testimony regarding other Goodman’s 64 Moreover, probative value of “[t]he dice.” crimes, Dr. it is evident that Goodman murder victims can be mani- photographs of in con- referred to other crimes or bad acts ways, including showing in- numerous fested How- the court’s instructions. travention to wounds, nature, and location of extent ever, were brief and rela- these references delicti, establishing corpus depicting the circumstances, tively innocuous. Under scene, corroborating the medical crime error is harmless.62 testimony.”65 examiner’s complains also that 49 Lambert ¶52 At issue here are Exhibits prosecutor improperly elicited from G2, were black and white G1 and which gun the BB used Thomas White they photographs of the victims as were Lambert in case was stolen from White’s trunk of the car. Lambert cites found trial, objected to grandmother. At State,66 Livingston v. in which the Court held objection was overr the evidence and the photographs remains of of the charred irrelevant other uled.63 This evidence was morgue table were the victim laid out on the evidence, and it should not have been crimes although photographs prejudicial, two small However, again we must find that elicited. photo crime scene and a of the victim at the light overwhelming evidence of graph of the burned house were admissible. guilt, the error was harmless. photographs here are not as horrific as The VIII, objects Proposition In50 photo Livingston and the those discussed (2) (1) victims; photographs the the to: testimony, graphs, as as the witnesses’ well description of the victims’ State’s witnesses’ depicting crime scene were relevant in (3) scene; bodies and the crime Sanders’ corroborating the medical examiner.67 testimony identifying sleeping- mother’s J, S, objects R and Lambert also to Exhibits bag under burnt car. He found Sanders’ depicted which the victims. The trial none of argues prejudicial effect of this evidence discretion in admit court did not abuse its of his convictions. We warrants reversal Similarly, allowing ting photographs. these disagree. jurors examiner’s to view the medical doubt, report, relevant to the cause of a the murders and the which was 51 Without death, Final was not an abuse of discretion. method of death this case were horrible photo- ly, although witnesses related what necessity descriptions several and of scene, testimony they graphs capture some of this found the crime of this crime repetitive un- unduly prejudicial, was not or “[t]he horror. It is well established that test 68, 1088, State, 192, OK 907 P.2d 1094. 61. v. 1988 CR 767 P.2d 1995 Freeman OK CR 66. 1354, (prohibition against 1356-57 other crimes non- evidence includes bad acts which criminal). be State, 64, Sattayarak 67. v. 1994 OK CR 887 P.2d 1326, 1330, post-au distinguishable is because topsy photographs are not at issue here. Like witness, 62. Since Dr. Goodman was a rebuttal photographs in Lambert's case wise the at issue the failure to file a Buries notice was not error. distinguishable photographs from the at issue are 84, State, 60, v. OK CR 681 P.2d Freeman 1984 State, 47, Spunaugle P.2d in 246, 253, v. 1901 OK CR 946 State, 90, and Tobler Again, inexplicably the State fails to address 350, 355-56, photographs as the here by an raised Lambert. issue photographs decomposing of a or did not include Finally, photographs maggot-infested body. State, 41, CR 64. Hooks v. 1993 OK white, non-close-up photo here were black and denied, cert. 114 graphs photo of the interior of the trunk. These (1994). 128 L.Ed.2d 490 color, graphs distinguishable are from the close needlessly up photographs that this Court found OK P.2d 65. Trice v. CR 853 212-13, denied, gruesome OK CR in Jones U.S. cert. P.2d degree felony give, not a second murder prosecutor’s on this did justified. The comments argues The the issue Relief is instruction. State was not evidence admissible .error. However, this Court has stated “the waived. warranted.68 not give trial court should such instructions ¶53 complains about also they if requested or not are war- whether mother to tes- calling Laura Sanders’ State’s ranted review for evidence.”72 We identi- tify during stage. Mrs. Sanders first plain error. bag found under sleeping that was fied included offenses should be objected “Lesser to burned car. Lambert Sanders’ jury, only given to the but when warranted stipulate to at trial and offered evidence State,74 the evidence.”73 Foster v. sleeping bag belonged that the to Sanders’ degree felony Court stated that second brother. given where murder instruction should be I,69 during the first Hain robbery that the was not there is evidence trial, stage of the State also called Mrs. through accomplished dangerous the use of a daughter identify her and some Sanders Foster, however, weapon.75 In the Court I belongings. It is unclear from the Hain found the evidence did not warrant a second opinion how extensive or emotional Mrs. felony murder instruction where the testimony was. The Court conclud Sanders’ defendant used a bat and a knife to beat and to the testimony “the of the relatives as ed facts, stab the victim. Under those a lesser belong identification of the victims and their robbery by instruction on force or fear was unnecessary light ings may been have not warranted. facts, testimony the same at most it other ¶ Here, gun. BB used a not find that merely cumulative. We do gun weapon BB like a real and was looked Here, error has occurred.”70 fundamental designed place the victims fear. Hain relatively testimony was Mrs. Sanders’ knife, clearly dangerous which is used straightforward and unemotional. She did here,76 weapon. gun, BB Both the as used testify improper inappropriate in an knife, § and the fall under 801. Moreover, not manner. the State was obli squarely § Lambert’s actions fit under 801. stipulate gated accept Lambert’s offer to finding robbery A not accom- that the was bag.71 ownership sleeping of the to the plished by warranted force or fear was not relevant and no error occurred evidence.was The trial did not err the evidence. court testify allowing her to on this limited issue. failing sponte give to sua second ¶ proposi- argues in his ninth 55 Lambert felony murder instruction. the trial court should have tion of error that Finally, argues ¶57 Lambert given degree felony murder instruc- a second jury give instruction de on the failure to the lesser tion. The trial court did instruct murder, prived jury sentencing options full degree depraved mind of its second but required in Beck v. Alabama.77 Beck is request, did and the trial court not submitted in Hain’s re- 74. Id. at 1037. 68. Similar evidence was sentencing and this Court found the admis- trial prove aggraváting cir- sion was relevant State, 295, 75. See Swain v. 1977 OK CR 569 P.2d II, unduly prejudicial. cumstance and not Hain (finding court should have 1013-14 trial P.2d at 1142-43. given degree felony murder instruction second dangerous belt defendant was not where used 69. 852 P.2d at 752. 801). weapon under 70. Id. McArthur, supra. 76. State, Guy OK CR 778 P.2d 71. State, 72. Pickens v. 1994 OK CR 678, 682-83, grounds, on other Parker v. overruled P.2d 1996 OK CR 73. Foster v. 1031, 1039. ¶ applicable XVII, Proposition here because the In Lambert chal-

fully sentencing options, lenges constitutionality instructed on all its following (1) imprisonment, impris- which included life aggravating continuing life circumstances: (2) threat, possibility parole onment without the risk of death to more than one (3) heinous, person, death.78 atrocious or cruel. aggravating He also contends the circum- ¶ conclusion, 58 In we find that none of the adequately stances were not defined. We concerning stage raised issues the first disagree for the reasons set forth below. Lambert’s trial- are meritorious. We affirm Lambert’s murder convictions and vacate his ¶ repeatedly rejected 62 This Court has robbery convictions. constitutionality attacks on the of the con- tinuing aggravating threat circumstance.82 Stage

Second Issues compels deny argu- Our case law us to this objects ¶ ment. Lambert also OUJI-CR 2d IV, Proposition 59 In 4-74, continuing ag- which threat defines asks this Court to find the execution of the gravating circumstance.83 The instruction is mentally retarded violates the state and fed law, statutory consistent with our and case light Penry Lyn eral constitutions. giving and the trial court did not err in this augh,79 grant we decline to relief. instruction. This claim is denied. XVI, Proposition Lam argues during stage bert the second argues 63 Lambert that the risk of trial the court trial should have held a Jack person death to aggravating more than one hearing regarding son v. Denno the admissi circumstance is overbroad. Under our case bility audio-tape of Lambert’s confession of law, killing person of more than one certain crimes committed in Kansas. This under the circumstances this case satisfies tape prove continuing- was introduced to aggravating circumstance.84 This defini aggravating threat circumstance. Lambert persons tion narrows the class of who be object did not to the tape admission of the executed and is not unconstitutional. This request and he did not a Jackson v. Denno rejected. claim is hearing. The trial court asked making about a record and Lambert stated 64 Lambert claims that the hei objection nous, he no had to the introduction of the aggravating atrocious or cruel circum tape.80 A hearing Jackson v. Denno is not stance unconstitutionally is also broad. This required objection in the absence of an aggravating to the Court has narrowed this circum object evidence.81 by requiring Because Lambert did not finding stance that death was tape preceded to the admission of the and by physical did not “serious abuse.”85 request However, a hearing, Jackson v. Denno this Lambert contends the trial court proposition issue is waived. adequately The is denied. not did instruct the on this State, 72, 74, Cheney v. 1995 OK provides: CR 909 P.2d 83. OUJI-CR 2d 4-74 Reeves, 88, Hopkins 92 n. 73. See 524 U.S. alleged probabil- The State has that there exists a 1895, (1998). 141 L.Ed.2d 76 ity that the defendant will commit future acts of continuing violence that a constitute threat to 2934, 2954, 79. 492 U.S. 109 S.Ct. society. aggravating This circumstance is not (1989) (plurality opinion). L.Ed.2d 256 proved beyond established unless the State a reasonable doubt: 80. Vol. IV Tr. at 383. First, that the defendant’s behavior has demon- society; strated a threat to Second, 72, 86, Wainwright v. Sykes, probability a that 433 U.S. 97 S.Ct. this threat will contin- 2497, 2506, (1977). ue to exist 53 L.Ed.2d 594 in the future. Lambert cited several cases in which the erred trial court State, holding hearing requested in not 84. Hooker v. after 1994 OK CR 887 P.2d counsel denied, hearing. distinguishable the These cert. cases are be request hearing. cause Lambert did not such a 82. Hamilton v. 1997 OK CR Stouffer (and therein). cases cited 563-64. back, had been kid- in the and both victims aggravating

narrowing construction into the trunk napped, and forced the restrained trial court instructed The circumstance. in anguish this case of the car. The mental jury that: in the great victims were locked was as the instructions, term in these As used Any that was set on fire. trunk of car extremely or wicked means “heinous” “physical” failing the word error in to include evil; means outra- shockingly “atrocious” was harmless. vile; “cruel” means geously wicked high designed to inflict pitiless, or ¶ XVIII, Proposition 67 In to, enjoyment or indifference pain, of utter Eighth and Fourteenth contends that his of, sufferings of others. by in rights violated Amendment were heinous, “especially atrocious phrase The unadjudicated in of offenses sec troduction where to those crimes or cruel” is directed the use of stage. This- Court allows ond preceded the victim was the death of continuing unadjudicated prove offenses or serious abuse.86 of the victim torture Accordingly, proposition threat.90 contrast, provides: 2d 4-73

In OUJI-CR should be denied. instructions, term used these As error, proposition of his nineteenth extremely wicked or means “heinous” the trial court erred complains evil; outra- shockingly “atrocious” means give jury an instruction on refusing vile; “cruel” means geously wicked and meaning possibility of of life without high degree designed to inflict a pitiless, or that it is not parole. This Court has held to, enjoyment or pain, utter indifference fail to further for the trial court to error of, sufferings others. possi- the sentence of life without define heinous, atrocious,, phrase “especially The bility parole.91 our case law Under crimes where is directed to those or cruel” give refusing did not err trial court preceded of the victim was the death on life requested instruction Lambert’s .with- physical of the victim serious torture possibility parole.92 out the abuse, added) (emphasis Lastly, argues instruction is Plainly absent from Lambert’s error war Proposition XX that cumulative phrase “physical” in the last the word disagree and decline to relief. We rants error has occurred oth- instructions. This grant relief on this basis. State,87 In Mollett v. the Court er cases. “physical” was found the omission REVIEW SENTENCE MANDATORY relief where there was evidence grounds for suffering and showing conscious mental with 70. In accordance State,88 the In Johnson v. physical abuse. (1) 701.13(C), whether we must determine “physi- the absence of the word found Court imposed under the the sentence of death error, the error was but concluded cal” was any other passion, prejudice, or influence of grant relief. declined to harmless and (2) factor, whether the evi arbitrary State,89 the Court concluded Richie v. aggrava jury’s finding of supports the dence abuse, physical was evidence of since there jury found the exis ting circumstances. “physical” in the failing the word to include aggravating circumstances: tence of three harmless, error. was (2) instructions (1) person; to more than one risk of death (3) cruel; heinous, ¶ continu or and Here, physical atrocious evidence of there was ag- supported the evidence ing threat. The Houghton was stabbed prior to death. abuse 99, State, added). CR 867 P.2d v. 1993 OK (emphasis 90. Paxton at 2574 86. Vol. XIV O.R. Paxton, 1309, 867 P.2d at But see 1322-23. dissenting). (Chapel, 1334-36 OK CR 28, 939 P.2d 14. 87. 1997 Mayes CR 887 P.2d 1994 OK 91. CR 928 P.2d 88. 1996 OK at 1325 Mayes 92. But see OK CR 67, 89. 1995 dissenting). (Chapel, gravatmg Upon of affirming circumstances. review this case.2 I concur in Robert record, say convictions, we Wayne cannot the sentence of Lambert’s but I would imposed modify death was because pos sentences to life without the by passion, prejudice, any sibility parole influenced or other and order the sentences to arbitrary contrary consecutively. factor to 21 run 701.13(C). Finding warranting no error ¶ man, 2 Although grown he ais modification, judgments and sentences of change. spells cannot make He no better County Creek District Court are AF- year than a seven old and reads at a third FIRMED. grade level. When Lambert was seventeen old, years the Oklahoma Juvenile Services Decision Division him. testing tested The State’s re- Judgments 71. The and Sentences for IQ vealed that Lambert has an of 68 and that Degree First Murder are AFFIRMED. mentally he is retarded. Prior to this test- ing, struggled through special edu- CHAPEL, P.J., part/dissent in concur in barely cation managed classes. Lambert part get through kindergarten. Finally he dropped out of school when he was in the STRUBHAR, V.P.J., LANE and grade. seventh Lambert was never able to JOHNSON, JJ., concur. successfully setting, function in a school LUMPKIN, J., concur in results. dropped school, after he out of his mental ability retardation limited his to work or CHAPEL, P.J., concurring part survive the outside world. Lambert’s en- dissenting part: shaped by tire life has been his mental retar- majority 1 A today approves of the Court Although old, thirty years dation. he is now mentally the execution of a retarded man age eight year he has the mental of an old. age eight-year-old who has the mental of an thinking reasoning His equivalent are boy. rejects blithely The Court the claim that of a grade. child the second or third that the mentally execution of the retarded is, culpability necessity, His moral on the violates our state and federal constitutions. same level. deciding killing mentally to allow the Wayne 3 At issue is not whether Robert citizens, majority retarded swallows all punished actions; Lambert should be for his decency, sense of disregards the will of the question he should. The is how we as a people ignores princi- Oklahoma and society punish mentally should retarded. ples II, and values of Article section 9 of the question The answer to this speaks volumes Oklahoma Constitution.1 Because our State civilized, about people. us as decent constitution will not tolerate the execution of majority’s answer is shameful. mentally man, respectfully I retarded dis- ¶4 imposition sent penalty to the of the death Oklahoma does not execute children3 II, 1. Article Certainly, judge section 9 of the might Oklahoma Constitu- come on either down prohibits issue; punishment. tion cruel or unusual might wrongly, side of the he decide it but suggest he must decide. To that the issue in today’s opinion ought can or to be decided judges "leg- 2. Courts and are often criticized for legislature, politically while correct in some cir- islating” making "sociological” decisions. cles, patently legislature absurd. The cannot Usually polit- such criticism comes from extreme constitutionality determine the of its own acts. persons ignorant ical factions or other of our system, constitutionality legislative In our When, system however, government. judge only acts can be determined the courts. See presented properly justiciable is issue, with a raised Madison, Marbury v. 1 Cranch duty it is his or her to decide that issue in L.Ed. 60. accordance with the law. In this we case are squarely presented with the issue of whether or Oklahoma, imposition 815, 837, not the penalty of the 3. Thompson death on a v. 487 U.S. 108 mentally 2687, 2700, person (1988) Eighth retarded violates the (Eighth S.Ct. Amendment to the United prohibits person States Constitution or Amendment execution of who is 2, § Art. 9 of the Oklahoma age Constitution. The under crime). of sixteen at time of commission of raised, properly issue is and we must decide it.

241 4 average an age not that of nine to do so would violate tal above or insane because the recognizes common, decency.5 year of It that it needs evolving sense old.9 Oklahoma our decency step provide care to incompatible this sense of to and and assistance is with morally mentally Today, to kill indefensible then retarded. the Court it is the and thinks, killing and operates reasons these same someone who sanctions individuals. grader. Executing such level of a third the choosing to allow of 7 the execution executing comparable eight year an to man is retarded, mentally majority the on the relies boy. old Penry Lynaugh,10 v. which the United Diagnostic Statistical Manual 5 The and Supreme held Court that the federal States (1994) (DSM-IV)6 de- of Mental Disorders to requires states allow a defen constitution mentally as one retarded individual fines of re dant to introduce evidence his mental disability age itself whose manifests before mitigating against as a factor the tardation eighteen “significantly who subaver- and has However, penalty. of imposition the death i.e., function,” IQ age an below intellectual completely the the refused to bar exe Court “significant seventy, accompanied limita- with mentally of the under the cution retarded adaptive functioning.”7 men- tions in Unlike At the constitution.11 time the Su federal illness,8 perma- tal mental retardation is a preme Penry, only the federal Court decided developmental condition marked low nent government prohibited two states the and intelligence capacity. This low intellectual mentally of the retarded. Even execution mentally per- limits affects and the retarded circumstances, Supreme those under four think, ability and It plan to function. son’s justices Eighth that the Court believed by drugs psycho- or cannot'be ameliorated outright barred the execution of Amendment mentally although indi- therapy, the retarded O’Connor, mentally the retarded. Justice may strategies and to taught vidual be skills opinion, un plurality authored who the society. better function contrast willing go concluding far that she that illness, “faking” men- mental the likelihood say not that at that there existed could time tal is minimal. retardation barring the execution a national consensus However, mentally retarded. Justice the recognizes unique niche 6 Oklahoma position noted that the Court’s mentally occupy in O’Connor retarded our change should a national consen society could well and Title 10 of Oklahoma Stat- mentally provides execution of care for sus to ban the utes the State institutional emerge. mentally persons retarded who have a men- retarded dants, (1985) L.Rev. Wainwright, 4. 477 U.S. 106 53 Geo. Wash. 422-26 Ford 2595, 2602, (1986) (hereinafter Mentally ("Eighth Retarded L.Ed.2d 335 Criminal S.Ct. 91 Defen- ). inflicting prohibits the State dants Amendment from prisoner penalty upon a who is the insane”). of death O.S.1991, seq. § provides: Mentally 1005 See et re- 9. legal persons of this who are residents tarded Dulles, 86, 100-01, age Trop 5. who a mental not above that 356 U.S. state and have 590, 598, (1958) opin average nine-year-old be (plurality child ... L.Ed.2d 630 ion) [Eighth] provided (stating ... or com- that "the words admitted an institution per- precise scope munity mentally are and their services ... Other retarded Amendment who are must its mean who are of this state and not static. Amendment draw sons residents decency age may pro- ing evolving be standards of above such mental admitted from maturing progress society”). community upon ... recommen- vided services mark the superintendent institution of the dation approval of the Director. Psychiatric 6. Associa- Put out American tion, recognized as com- this treatise is the most prehensive manual classification reference disorders, (1989) opinion). (plurality mental their manifestations L.Ed.2d treatment. course, Supreme Court Of the United States speak at 39. under DSM-IV to this issue did not and could not Only Court can Constitution. the Oklahoma question whether execution of 8. For a discussion on the differences between answer mentally & violates the Oklahoma mental Ellis retarded mental illness and retardation see Luckasson, Mentally Constitution. Retarded Criminal Defen- Penry landscape 8 Since the national provides, has necticut “The court shall not im- changed dramatically. Ten more pose states have the sentence of death on the defendant mentally banned the execution of the retard- if ... at the time of the ... offense his Now, states, ed.12 penalty twelve death capacity significantly impaired mental was or government federal and thirteen non-death ability his to conform his conduct to the penalty jurisdictions13 ban the execution of requirements significantly of law was im- mentally Hampshire retarded. New has paired impaired but not so in either case as imposed penalty anyone the death on to constitute a prosecution.”15 defense to currently since 1976. legisla- Missouri has provides California also “evidence of dimin- pending tion mentally to bar the execution of capacity ished may or of a mental disorder persons.14 retarded be ... considered the court at the time of states, explicitly sentencing disposition Other while not or other ban- or commit- ning mentally per- execution of ment.”16 retarded Courts have overturned or modi- sons, prohibit persons the execution part with fied death sentences a because of limited mental example, abilities. For Con- defendant’s mental retardation.17 4—618(b)(Michie 1993) law, § provision 12. Ark.Code Ann. penalty the death shall not be 5— ("No defendant mental with retardation at the imposed upon any person with mental retarda- committing capital time of tion"); murder shall be 31-20A-2.1(B) (Michie sen § N.M. Stat. Ann. death”); § tenced to Colo.Rev.Stat. ("The 16-9-403 1994) penalty of death shall not be im- ("A (Supp.1994) sentence of death shall not be posed retarded”); any person mentally on who is imposed upon any defendant who is determined 400.27(12) (1995) ("In § N.Y.Crim. Proc. Law mentally to be a pursuant retarded defendant to pursuant the event the defendant is sentenced to any person section 16-9-402. If who is deter death, thereupon this section to the court shall mentally mined a to be retarded defendant is finding respect render a with to whether the guilty felony, found of a class 1 such defendant mentally defendant is retarded. If the court imprisonment”); (1990 shall be sentenced to life Ga. retarded, mentally finds the defendant is 17-7-131(j) § Supp.1994) Code Ann. ("In & court shall set aside the sentence of death and any the trial of case in which the death imprison- sentence the defendant either to life penalty sought which commences on or after parole ment imprison- without or to a term of 1, 1988, July judge accepting should the find in a felony ment for the class A-I of murder in the plea guilty mentally but retarded or the degree first impris- other than a sentence of life court find in its verdict that the defendant is parole”); § onment without Tenn.Code Ann. 39- guilty ed, charged mentally of the crime but retard 13-203(b) (1991 ("Notwithstand-' Supp.1994) & penalty imposed the death shall not be and ing any provision contrary, of law to the no impris court shall sentence the defendant to defendant with mental retardation the time of life”); § onment for (West Ind.Code Ann. 35-36-9-6 committing degree first murder shall be sen- (“If Supp.1994) the court determines that death"); tenced to Wash. Rev.Code Ann. mentally the defendant is a retarded individual 10.95.030(2) (West ("In case, § Supp.1995) no chapter, part under section 5 of this however, person shall a be sentenced to death if charging state’s 50-2-9(a) instrument filed under IC 35- person mentally retarded at the time the against that seeks a death sentence committed”). crime was dismissed.”); defendant shall be Kan. Stat. Ann. 21-4623(d) ("If, § (Supp.1994) at the conclusion section, jurisdictions 13. These hearing pursuant include twelve of a states to this the court the District mentally of Columbia. determines that the defendant is retard ed, the court shall sentence the defendant as law, provided by otherwise and no sentence of (1998). addition, 14. Missouri SB 1288 hereunder”); imposed Ky.Rev. death shall be Sept. Missouri Governor Mel Carnahan (Michie 1990) ("no § Stat. Ann. 532.140 offender pardoned mentally retarded man who had been seriously who has been determined to be a men eight-and-a-half years on death row for after tally provisions retarded offender under the emerged showing evidence the man was inno 532.135, execution”); subject KRS shall be Retarded, Protecting Mentally cent. Cap from (1992) ("If 412(g)(1) § Md.Code Ann. Art. Penry ital Punishment: State Since Efforts person was, guilty found of murder in the first Future, Recommendations 22 N.Y.U. Rev. committed, at the time the murder was less Change L. Soc. years person than 18 old or if the establishes preponderance was, person of the evidence that the 53a-46a(h) (1997). § 15. Conn. Gen.Stat. committed, at the time the murder was retarded, mentally person shall be sentenced 16. Ca. Penal Code 25. imprisonment imprisonment for life or for life possibility parole without the not be § n death”); See, Alabama, sentenced e.g., Hadley Neb.Rev.Stat. 28- 575 So.2d 145 105.01(2) (1997) ("Notwithstanding any Jimenez, (Ala.Crim.App.1990); other Arizona

243 “exacting ty act of by federal and constituted barbaric and As evidenced state 10 vengeance.”22 polls,18 public opinion mindless well legislation as executing the people American disfavor the in- same and interests 12 The concerns majority A of Oklaho- mentally retarded. in the ban on the execution of children volved imposition the death oppose the of mans are at in the execution and the insane issue mentally penalty on retarded defendants.19 mentally pro- of the Oklahoma retarded. and the Bar Association The American mentally extra-protection and treats vides of Mental Retardation American Association persons differently non-men- retarded from banning of mental- the execution recommend persons, by Title tally disabled as evidenced Thus, the death ly persons. while retarded Every caring hu- 10 of Oklahoma Statutes. form of penalty accepted to be an continues being experiences of a visceral reaction man mentally punishment, of the the execution thought executing an indi- revulsion at the of of step of the values is out with retarded are whose social mental abilities vidual and society. boy. eight year of greater than that an old no Indeed, protective society’s because the growing The ban on the execution 11 retarded, mentally systemic the the role over mentally retarded much in common has the mentally execution or extermination of the the of two other with the ban on execution against humanity that fills disabled is a crime and traditionally protected groups: children repug- and The shock horror23 one with barring the The for the insane. rationale executing by image the the nance evoked Thomp of children was set out execution grow- mentally by the evidenced retarded importance to great Of son v. Oklahoma.20 states, profes- ing and consensus citizens that under Thompson Court was the fact the organizations urge the that now ban or sional children differ law were treated Oklahoma mentally banning of the execution of the also ently adults. from The Court retarded. eighteen specifical swayed by the that states ¶ As the State of New York noted when ly required persons that be at least sixteen 13 mentally from the

years eligible penalt exempted the retarded to be for the death it old mentally penalty, the execution of the y21 by the Bar Association’s death American goals exempt penological serve fails to the that children be retarded recommendation deterrence, underpin barring exe which penalty. the of retribution from the death insane, penal- justify imposition death Su of the of the the United States cution “a against ty.24 heart of is that preme had a retribution Court visceral reaction directly finding related persons of such criminal sentence must be execution culpability criminal of- personal humani of the insane offended the execution Florida, (1990); repugnance Nurem- was evident in the P.2d 785 Brown v. 23. This Ariz. 799 denied, (Fla.1988), trials, prosecuted 488 U.S. burg 526 So.2d 903 944, rt. which war criminals ce (1988). 102 361 mentally 109 S.Ct. L.Ed.2d as for executing as well retarded humanity. against crimes and war crimes other Edwards, Keyes & Mental Re D.W. W.J. 18. See Penalty: and the Death Current Status tardation Gregg reinstating penalty death Exemption Legislation, American Bar Associa of tion 153, 182-83, Georgia, S.Ct. 96 (1997). 2929-30, (1976), Supreme L.Ed.2d 2,at 2n.l5. 19. Id. stated: Court category of Although we cannot "invalidate L.Ed.2d U.S. 20. 487 penalties penalties we because deem less severe (1988). adequate penology,” to serve ends of the lowest be noted that sixteen was It should totally imposed without cannot be so sanction Many age statute. allowed states justification gratu- penological it results anyone government bar the execution federal suffering. infliction of itous eighteen they at the time committed who is princi- penalty two The death is said to serve crime. purposes: and deterrence ple retribution social capital prospective crimes offenders. 399, 409-10, Wainwright, All U.S. 22. Ford 91 L.Ed.2d retarded, fender.”25 “Among mentally punishment retarded is a cruel or unusual ability every ‘reduced is found in dimension prohibited under Oklahoma I law. therefore of the functioning, including individual’s his respectfully dissent to the execution of a communication, language, attention, memory, mentally retarded man who the has mental ability impulsivity, to develop- control moral age eight-year-old boy. of an ment, self-concept, self-perception, suggesti- bility, knowledge information, of basic LUMPKIN, Presiding Judge, Vice concur ”26 general Mentally motivation.’ retarded in the results: reasoning powers individuals have limited ¶ 1 I in concur the results reached highly impulsive.27 and are They are far less Court both as to the affirmance of the convic- likely to understand or foresee the conse- tion judgment and the rendered as to the quences of their actions.28 These fundamen- sentence. tal and immutable compel characteristics ¶ 2 I dissented to the citizens, conclusion that vacation of the mur- mentally retarded children, der like convictions and lack sentences of death in culpability the moral to original subject appeal. State, them penalty to the ultimate Lambert v. of death, (Okl.Cr.1994). though they may Therefore, even subject be to I punishments wholeheartedly agree other severe impris- such as life with the affirmance imprisonment onment or life of the murder pos- without the convictions and sentence of sibility parole. opinion. However, death in execution of the this men- I am not tally ‘nothing retarded ... explanation “is more than sure the why Court’s it can purposeless imposition pain and needless vacate the underlying convictions for the fel- ”29 suffering.’ totally onies is amplify correct. I did not all problems I wording had with the of the ¶ Moreover, due to the restricted think- original opinion my in separate in vote ing and reasoning powers mentally of the case. Now I believe some of that terminolo- retarded, highly unlikely it is that the threat gy needs to be discussed. penalty any the death would have deter- rent effect. A mental person, retarded ¶ 3 I authority have failed to find for a trial ability whose engage to in thinking abstract legally court to “abrogate” a conviction which minimal, best, is great at will difficulty have has been appeal by affirmed on a court of in comprehending his own execution. It is only way last resort. The a trial court reac unlikely then that the threat punish- of this quires jurisdiction empowered and is with ment will capital any deter crime more than authority already to vacate an final conviction the execution of children or the insane will in through Oklahoma is the Post-Conviction operate as a deterrent. Relief Act. 22 O.S.Supp.1995, § See et seq. applicable 15 The That act is Oklahoma to Constitution bars “cru- the fact punishments.”30 el or in unusual situation this case. duty attempting It is our to ex interpret plain away to problem, and enforce the Oklahoma Con- the Court uses State, (Okl.Cr. stitution. Given Oklahoma’s Greenwood v. pro- traditional 381 P.2d 895 1963) retarded, mentally tection of the growing authority for the trial court to take national ban on the execution mentally part this action as a of our mandate. Howev retarded, er, and the lack penological goals reading of G'reenwood reveals its hold advanced the execution ing of these individu- in direct contradiction to what als, I believe the mentally opinion execution of the authority. fact, seeks to use as Arizona, 25. Tison v. Thompson, 29. 487 U.S. at 108 S.Ct. at 2700. 1676, contrast, 30. Okl. Const. Eighth Art. 9. In Penry, (J. 492 U.S. at 109 S.Ct. at 2961 Amendment of the federal constitution bars the (citation omitted). dissenting) Brennan imposition punishments.” of "cruel and unusual added) (emphasis 51, Mentally See Dodd v. Defendants, Retarded Criminal (Chapel, 427-32. concurring part dissenting part). Id. tragedy. which Howev- cites Reed v. fections caused Greenwood the Court (1914) er, P. law is bound to ours is court of which 10 Okl.Cr. equally law: following apply statement of of law and it enforce rule Applying the under established appeal standards. a ease has been affirmed After requires stan- of law adherence to these and is rule Appeals, the Criminal Court court, dards, might even in those times wish trial court we to the trial sent back judgment, to be power plane set aside said the human able to some has no from into as way change application particular must carried execution it be its but Court; the en- this otherwise directed situation. of law in forcement criminal Oklahoma ¶ making sociological deci 6 Rather than in confusion. be involved endless would completely the disregard would sion which Reed, Following that to the Court citation powers, of we must concept separation of in and addresses the issue Greenwood then applicable apply the law which is follow and states: My colleague time in state. seeks at this this is, therefore, opinion this Court the of [i]t justification modifying for the a constitutional jurisdiction the trial court was without Appellant’s in case based on sentence this (most original particu- the orders vacate to However, this is level of mental retardation. sentence) judgment allow larly the and and legislative an issue which is a matter for issued, to based on the cases new ones be the related Each of instances determination. authorities cited above. and legisla separate reflects in his vote a state O.S.1991, § 22 P.2d at 898. While 381 respective jurisdictions ture in each of the may re- appellate court provide “the does public policy on which has made a decision

verse, modify judgment or or sen- affirm Supreme this issue. The United States ”, I unable appealed from ... have been tence already of a has ruled execution Court authority application of that to find for the a viola person with retardation is not mental judgment to sentence statute vacate and noted, Constitution. As tion of Federal However, already which has been affirmed. in Supreme the United States Court decision con- agree I with the discussion of Court’s prece controlling still Penry Lynaugh is tinuing jurisdiction in case concur this and in that The Court said case: dent. underly- as to the vacation of the the results long and as can consider [s]o sentencers robbery dangerous of with a ing felonies of mental give mitigating effect to evidence weapon. sentence, imposing an indi- retardation in for application 4 I have also reviewed of whether ‘death vidualized determination only evidentiary hearing find it and contains punishment’ appropriate can be is the has speculations, Appellant not evidence. particular case. While a made each and con- failed to show this Court clear against of the national consensus execution evidence, vincing sought materials to be emerge mentally may someday retarded likely support have are to introduced or have reflecting ‘evolving of decen- standards allegation fact to an in law and to be relevant may progress a matur- cy that mark the of appeal appeal. in this The record on raised society,’ is evidence ing there insufficient change regarding the issue of in this case of today. that consensus of coverage it media contra- venue as related to suppositions alleged applica- in the dicts the 106 Therefore, the evidentiary hearing. tion for (1989). though Even the United 256 L.Ed.2d for showing has not been made threshold Supreme time in Court at some States warranting evidentiary an hear- purposes con to consider a “national the future decide ing this issue. on law, questions as it to decide sensus” seeks is the of this My empathy plight I do not believe it function colleague’s for the public is to make decisions based Appellant in this case commendable. Court of the merely opinion polls what other states plane, human of us and or On a each is touched duty to the law as done. Our follow when must witness the fruits have saddened we imper- specifically sets out as tragedy, the human our Constitution as well as human Legislature speaks Eighth Oklahoma estab- lant’s sentence does violate the lishing policy appellant’s for the citizens of this state. Amendment and overrule twen- ty point first of error.

¶ Specifically, Appellant’s facts reveal di- (68) agnosis sixty-eight I.Q. of a indicates a sought at 55. Bell certiorari with S.W.2d higher functioning level than that Pen- Supreme States Court in that United ry, years having who was over case, here, tested as very presented on the it issue (50) I.Q. fifty sixty-three an between was denied in 1997. 522 October U.S. (63). following ap- Penry statement There- L.Ed.2d plies equally fore, to Lambert: recently as October United Supreme presented with

Penry competent States Court was was found to stand trial. very words, issue in other he a Petition Certiorari was found to have the ability amplify Bell’s case and not to further lawyer with his with a chose consult modify Penry. its decision in reasonable of rational understand- ing, and was found have a rational as syntax my colleague’s 9 While seeks understanding pro- well as factual of the tug heartstrings plight at the for the (cite omitted). ceedings against him. retarded, mentally each of have and us would 338,109 at S.Ct. at empathy persons, 2954-55. for those individuals as empathy does allow us to subvert Recently, 8 Texas Criminal the Court of legislative process. the Matters public of Appeals addressed this same in Bell v. issue policy society and of the be values are to (Tex.Cr.App.1996). 938 35 In S.W.2d by legislative ap- our through decided bodies case, argued Bell that “because ten propriate public hearings and true determi- banning passed legislation states have execu- public of what public nation the desires as individuals, mentally tion of retarded there is policy. That proper is a function the of growing against a ‘national such consensus’ legislature republic, in our as each member stated, executions.” As the Texas court the represents his or her constituents and votes appellant any in that case did not discuss legislation based on decisions made pointed those statutes and to relevant no public input open committees after and dis- caselaw from or Texas other states. The cussion on the floor of the House and Senate. Texas court stated: by Legis- this case the law enacted the appellant acknowledges, As the United lature, by is to be the enforced Executive Supreme Ly States Court v. Penry interpreted, by and applied, branch as well as naugh, 335-38, at at U.S. cooperative the Judicial branch. This trium- 2955-57, Eighth held that the Amendment ensures virate the continuation of an ordered preclude mentally does not execution of society and threshold of moral es- values persons. long retarded ‘So as sentencers through defining tablished our statutes and give mitigating can consider and effect to conduct, prohibiting together criminal awith evidence,’ explained, the individ Court ‘an pro- requiring multitude other statutes ualized determination of whether ‘death is hibiting conduct. the appropriate punishment’ can be made particular in each Although ap case.’ Id. Today, only public policy the we to are pellant great introduced deal of mental apply is what is in our statutes. The statutes trial, jury retardation evidence at his applicable are provide which to this case chose give weight not to it sufficient penalty appropriate punishment death is an mitigate against imposition death procedures out. legisla under set The penalty. public ture has defined matter policy as a

This appellant’s aggravating Court addressed claim those circumstances which allow Penry supra, penalty held that and the death to be considered for the mitigat- because give was able to degree. crime murder in the first Our ing weight Penry’s only provide mental retardation pro statutes that execution is evidence, his death sentence did not violate hibited those individuals who are insane. Eighth also, §§ Amendment. 903 at S.W.2d See 1008. See Likewise, appel- 766-767. we hold that v. State 927 Medlock P.2d (Okl.Cr.1996).addition, correctly has decided it should This Court Oklahoma type same mistake here. not make that language of section Legislature amended 152(3) following: provide 21 to of Title committing capable of persons

All are crimes, belonging fol- except those to the are lowing ... Persons who classes: mental impaired reason of retardation committing upon proof that the time 1999 OK CIV APP charged against they them were act CITY, The CITY OF OKLAHOMA knowing wrongfulness;.... incapable of its municipal corporation, protec- Legislature provided Plaintiff/Appellant, has also statutes, Ap- competency of our which tions at each trial of this case pellant utilized Hamilton, Imogene W.E. HAMILTON trial, and competency to stand ensure his wife; husband also Allstar d/b/a fact requirement for the trier of included the Storage and Allstar Transfer and Co. question person mental- to answer the “is Shop, Defendants/Appellees, Plastercraft retarded, ill, person requir- ly mentally or a Title ing Section 3 of treatment as defined Freeman, “Butch” as Treasurer of Forrest O.S.1991, § 1175.5. That deter- 43A?” See County, Oklahoma, and Oklahoma Shir in this mination been made and affirmed has ley Darrell, Buchanan, F.G. “Buck” this case reflects case. The record Sr., County Earnest, as Board of Stuart ability Appellant’s to distin- determination of County, Commissioners, Oklahoma right been made guish wrong from has Oklahoma, Defendants. law, according to our and the trier of fact and 90,737. No. present- was also issue of mental retardation mitigating as a factor. The ed to time

jury in case for second has deter- Oklahoma, Appeals of Court of Civil mitigating suffi- mined that factor not Division No. 1. proof aggrava- of cient to overcome crime. tors this horrific 8, Feb. Rehearing Denied March not 11 us is an issue The issue before magnitude, public but one of constitutional May Certiorari Denied determined

policy. policy is to be Public gov legislative and executive branches judicial govern branch of ernment.

ment, sitting especially only in review a court cases, ill-equipped appeals criminal from public any policy.

to make determination appellate have Historically, each time courts public policy forum ventured into the law, it has disregarded rule of resulted turmoil, only denigration but a judicial system and rule of respect of Sandford, 60 U.S. e.g. law. See Dred Scott v. (1857); 393, 15 691 Ples 19 L.Ed. How. Ferguson, 16 sy v. U.S. (1896); People L.Ed. Lochner York, New 25 S.Ct. State of Wade, (1905); L.Ed. and Roe 705, L.Ed.2d 147 U.S.

Case Details

Case Name: Lambert v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 14, 1999

Citation: 984 P.2d 221

Docket Number: F-96-1567

Court Abbreviation: Okla. Crim. App.