Murphy v. State

OK CR Petitioner, MURPHY, Dwayne Patrick Oklahoma, Respondent.

The STATE PCD-2001-1197.

No. Oklahoma. Appeals of of Criminal 4, 2002.

Sept. CF-1999-164A, and sentenced

Number to this conviction appealed his He death. affirmed We No. D-2000-705. in Case Court Mur and sentence. conviction Petitioner's 24, State, 47 P.3d 876. CR 2002 OK phy v. for Post-Con Application filed his Petitioner 7, 2002, pursuant February Relief on viction Accompanying that $ 1089. for eviden- motion is Petitioner's application 9.7(D), to Rule hearing, pursuant tiary filed Criminal Court the Oklahoma Rules App. Ch. Title Appeals, occasions, numerous 12 On scope of the narrow forth has set Post- the amended under available review McCarty e.g., Act. Procedure See Conviction 24, ¶ 4, P.2d State, OK CR denied, 120 S.Ct. 993, 528 U.S. cert. (1999). The Post-Con 509, 394 145 L.Ed.2d designed neither Act was Procedure viction another provide applicants nor intended State, 1997 OK CR v. appeal. Walker direct denied, 330, 327, 521 3, ¶ 3, cert. P.2d 933 2524, 1024 1125, L.Ed.2d 138 117 S.Ct. U.S. amended). The Act has (interpreting Act as very limited always provided petitioners at a collateral which to base grounds upon Accordingly, judgments. on their tack previ have been raised could claims that generally were not appeals but ous di addressed on waived; raised and claims of res the doctrine appeal are barred rect State, 85, CR 1994 OK judicata. Thomas (Okl.Cr.1994), 522, cert. ¶ 3, P.2d 525 888 denied, 116 S.Ct. L.Ed.2d 73 it even Act makes 13 The new ap post-conviction difficult more Walker, bars. procedural plicants to avoid Indigent Dupler, Oklahoma Bryan Lester ¶ 4, at 331. Under 933 P.2d CR 1997 OK Oklahoma, Norman, for Pe- System, Defense 1089(C)(1), 0.9$.2001, only claims § titioner. raised" not have been and could not "Iwlere AId. appeal will be considered. on direct FOR APPLICATION DENYING OPINION have could not claim capital post-conviction AND RELIEF POST-CONVICTION (1) if: it is an appeal on direct raised been HEAR EVIDENTIARY GRANTING appellate or of trial assistance ineffective ING defi the statute's meets claim which counsel Judge. LUMPKIN, Presiding (2) counsel; legal ineffective nition of recognized or claim was [ Murphy was basis Dwayne 1 Petitioner Patrick reasonably formulated have been could not in the Degree Murder convicted of First States Su of the United from decision County, Case Melntosh District Court Court, preme appellate a federal court or an and 20 of Oklahoma's Constitution. He re- State, appellate court of this or is a new rule quests evidentiary an hearing fully develop given of constitutional law retroactive effect mitigating evidence and to demonstrate appellate Court or an court arising prior from his counsels' de- prejudice 0.8.2001, 1089(D)(4)(b), §§ of this State. performances, ficient allegedly which denied 1089(D)(9). him a sentencing fair proceeding under the Eighth Amendment to the United States petitioner T4 burden, Should a meet Constitution and Article Section 9 of only this Court shall consider Okla- the claim if it "[sJlupports a conclusion either that the out- homa's Constitution. alleges He also viola- come of the trial would have been tions of the Fifth different Amendment United II, but for the States Constitution errors or that and to defendant Article Section factually ©.$.2001, innocent." 6 of Oklahoma's Constitution. 1089(C)(2). § Walker, As we said 16 Petitioner claims trial counsel capital post-con- amendments to the should have known murder conviction was viction review legisla- statute reflect likely, given the fact three witnesses preserve ture's intent to honor and testify were scheduled to regarding his in- legal principle finality judgment, Thus, volvement. he claims his trial counsel narrowly we will construe these amend- have compelling "should known that a mitiga- ments to effectuate that intent. Giventhe tion case in sentencing phase would be newly refined and limited review afforded only strategy reasonable for avoiding the capital post-conviction applicants, we must penalty." ultimate emphasize importance also of direct appeal raising as the mechanism for all T7 While conceding his presented counsel potentially meritorious claims. Because mitigating through various trial wit appeal provides appellants the direct their nesses, Petitioner claims the evidence was only opportunity fully to have this Court "incomplete, disjointed, and failed empha review all claims of might error which size several substantive weighed factors that relief, arguably urge warrant we them to against imposition the of death." He claims juncture. raise all such claims at that attorneys his reduced him "almost to a clini Walker, 3, 15, 1997 OK instrumentality CR 983 P.2d at cal revealing instead of the (footnote omitted, emphasis original). mitigating We wealth of cireumstances that were now turn to Petitioner's readily claims. jury's available for the considerat ion."1 four,

I propositions 5 In one and Petitioner appellate claims his trial and counsel failed to Furthermore, T8 upon based Dr. John R. adequately investigate, develop, present and affidavit, Smith's Petitioner claims his trial mitigating available evidence of Petitioner's appellate lawyers and were ineffective for deprived background, mental ex- failing to present and evidence of a discover posure to aleohol young and violence at a "significant neurological dysfunction age, neuropsychological impairments, and ingestion copious caused his mother's mitigating other through evidence available during amounts of pregnancy." aleohol witnesses, denying thus him effective assis- guaranteed tance of counsel the Sixth and T9 Petitioner claims his case is similar to Fourteenth Amendments to the United Williams v. Taylor, 362, 529 U.S. 120 S.Ct. 2, (2000). States Constitution and Article There, Sections 7 146 L.Ed.2d 389 the specifically childhood, Petitioner claims: his trial counsel familiar with his such as coaches and spent less meetings than one hour out-of-court classmates, were not called as witnesses, al- with him him; from the time of though they good his arrest until the opinions had family explained dysfunc- members who could have conclusion of trial; he was informed his he would testify guilt-innocence stage day the on the he tional and violent life were called; not family stand; took the prepare his trial counsel did not exposure and evidence of fetal alcohol was not trial; testify stage trial, during him to presented either depriving his at thus Petitioner's ex- penalty stage testimony, perts counsel failed studying possibility to ask that this con- questions regarding neglect, pover- his childhood neurological physical develop- tributed to . his and ty, friendships, employment history; people way. ment in detrimental present mitigating evidence review the must found defen Supreme Court States United trial, compare it failed to investi in Petitioner's lawyers ed trial dant Williams's post- mitigating evi in the presented mitigation evidence gate present substantial violating sentencing jury, post- thus record, if the and decide dence to conviction assistance right to effective the defendant's "a reasonable raises conviction v. Wash in Strickland as defined of counsel sentencing the result probability 104 S.Ct. ington, 466 U.S. if different" would have been proceeding L.Ed.2d 674 ex presented counsel had competent all the available significance of plained {10 finding, In so Williams, at relating to 529 U.S. matters pertinent evidence. noted several by the defendant's provided assistance at 1516. S.Ct. begin prepar They attorneys. did trial record thorough of the trial T12 A review stage of the defen sentencing ing for the following mitigating, or at least reveals the trial. before until a week capital trial dant's admitted mitigating, evidence was arguably investigation that They conduct an failed to trial: stage of Petitioner's during the first records extensive have uncovered would in the participated claimed he Petitioner "nightmar describing Williams's graphically actually kill vietim or beating but did not childhood," included evidence which ish genitalia; Petitioner the victim's amputate neglect criminal beatings and repeated the murder was extremely when drunk was par hands of his at the suffered defendant committed; he drank testified Petitioner social apparently records were ents. These police he was thirty-two and told attorneys least beers to which service documents wind"; the incident they have access.2 "three sheets did not wrongly believed situa Furthermore, long-standing to introduce domestic failed out of a counsel arose was tion, i.e., Williams the victim following available evidence: hatred for Petitioner's get and did not relationship victim's part borderline to the due some good, peace grade; he had been past sixth "common-law" Petitioner's so-called cracking helpful in incident, pre been wife; prisoner who had Petitioner during the ful carpen drug ring; he had earned prison beating Mark accomplices from vented his he seemed to prison; try degree while further; Peti Taylor Mark testified Sumka prison environment. thrive in the structured go person, does not is not a violent tioner sentencing a new granting defendant fights, had once blacked out looking for im placed Supreme Court proceeding, the history has a of drinking; Petitioner from defendant had portance on the fact family; first tasted alco in his he alcoholism crime, expressed in on the turned himself and drank age or twelve hol at the eleven actions, cooperated with remorse for his through years; he became regularly his teen investigations. police so; eighteen or daily age a drinker at relating to many five arrests he had as as $11 presented, there question good past; in he has a public intoxication his ap fore, holding in Williams is whether record; heavily-by own his he drank work i.e., case, Peti whether plies equally to this thirty beers a in excess of account he drank rendered appellate counsel trial and tioner's thirty beers day and twelve to Strickland on weekends assistance under effective weekday;5 a result of his as on a normal stage respect the second with Williams tempo drinking, frequently experienced question, he we To answer proceedings. Furthermore, "they" to him. what had done also included those records 2. The Court noted arguments Patsy detrimental to the she had that was Jacobs testified about some information efforts, including mitigation concerning several crime her defendant's before the with Petitioner juvenile. he was a while criminal convictions relationship the victim. Taylor Petitioner consumed testified 3. Mark many expert as he drank 5. Petitioner told one day question, at many least nine- on the in beers day "thirty packs" on some week- a three to five count. teen the most conservative ends. during incident, that, 4. Mark Sumka testified going to the victim was to do Petitioner said he rary memory; aleohol-depen- impulse loss of he is in cits control hyper- associated with dent, alcoholic; impulse an poor activity; he exhibits injuries he had three head in his control, (car drinking, even when not past but much accident where his head went drinking; windshield, when he has been through worse one ex a an accidental in whack pert ax, there was testified "no doubt" Petitioner the head an and a fall porch from a five) age degree damage have affected his has some brain because alcohol-dependeney possibly of his neurological due to development; Petitioner's father years; accidents he had over the Petitioner was not there for him when young he was a diagnosed child; was with adult attention deficit "probably" his father is an alcoholic disorder; hyperactivity and he has "border and his drinking mother's was described as "problem consumption;" related capacity," although line mental he and his he did finish high college school and attended courses. siblings basically four were raised their alone; mother Petitioner was often called stage proceedings, the second "nigger" (he growing when he up was is half following mitigating, arguably or at least mit American); Native American and half African igating, evidence was introduced: Petitioner some of his own poorly, relatives treated him eight designed scored an on a test to detect names; calling him frequent there were person psychopath whether or not a is a fights in family grew his up; when he Peti- (predator), thirty indicating with a seore of a tioner was a youth, hard worker in his be- person in psychopath; fact a Petitioner's family cause the had to work hard to make psychopath score on the test is considered meet; ends Patsy Petitioner and Jacobs fre- criminals, in comparison low to other indicat quently drank marriage hard and their was very ing he is a low risk for future violence in prone violence; personality domestic his prison setting, where alcohol is not avail change seemed to after he inwas a truck able; given a risk assessment evaluation wreck; Petitioner took the stand and ac- Petitioner also concluded he ais low risk for knowledge having part in the crime and prison future setting; violence Petitioner apologized family; graduat- to the victim's he very le., strong employment history, has a ed from high grade school with a point 3.0 employee he has been an "excellent" with few average grade and bad a point average 2.9 problems; jailers attendance Petitioner's had for the classes in college; he took he had problem had no during eight with him earned pris- certificates of some sort while good prisoner; months before trial-he was a on; he loves his children and desires to take he did well in school and was described as a them; care of and he would benefit "quiet" "good youth; kid" his when long-term alcohol therapy. treatment and testing intelligence, initially he was esti mated average intelligence addition, to be the low 114 In instruction told range, actually jurors seored a which following mitigating to consider the mildly mentally range, on the presented evidence that had been at trial: abbreviated form of the Wechsler Adult In any significant the defendant did not have Test; telligence history prior Petitioner's school activity; records eriminal the defen- twenty years earlier capacity indicated he was appreciate criminality dant's to of his conduct or to conform his conduct to mentally handicapped," "educable which is equivalent being mildly mentally requirements retarde impaired by of law was d;7 neurological alcohol; he is in testing, need of for the defendant was under the influ- he will damage have some amount of by brain ence of emotional disturbance virtue his of drinking; major due to excessive dependency; he has defi- alcohol the defendant un- acted trial, point expert you're 6. At another in the drinking you you this same when and when use damage ""verygood possibility," said brain awas destroy going brain cells He's to have some upon based tests he administered that indicated deficit there from that." later, signs neurological damage. soft of But during stage proceedings, the second the same expert 7. An testified Petitioner's score have expert testified that "the extent that he's con- concerns, by impulsivi- been affected cultural his years sumed alcohol and for the number of that testing and the conditions. ty, going he degree has done so he's to have some of What, damage. Okay? brain I don't know. But 9.7(D)(6), the Okla- hearing." Rule Rules to reduce which tended cireumstances der of 22, Title Appeals, influence Criminal was under the homa Court he in that the crime of (2002). 18, review the likely App. to be reha- We will alcohol; is defendant Ch. of by bilitated; post-conviction the defendant cooperation to Powell's affidavits attached age; the defen- authorities; light. the defendant's in this materials character; emotion- the defendant's dant's Here, we find these affidavits suffers from history; the defendant al/family suf evidentiary materials do not contain and mental retardation. mild by to show this Court ficient information the mate convincing evidence that and clear support his claim that To are have or sought to be introduced in his trial rials presented mitigating evidence support in law and fact to be likely have assistance of counsel ineffective amounted to assistance to Petitioner's ineffective relevant pre could have been comparison to what ie., claims, presentation of miti affi sented, various has submitted Petitioner functioning for "was not evidentiary gating materials evidence counsel davits and Rule guaranteed Pursuant the defendant review. the 'counsel' Court's as 9.7(D)(1)(a), the Oklahoma Court Rules er Amendment" or that "counsel's the Sixth 18, App. Title Ch. Appeals, deprive Criminal the defen were so serious as to rors (2002), evidentiary materials and affidavits trial, is a trial whose result of a fair dant applica post-conviction support of a filed in Strickland, at reliable." trial record but are part of the are not tion at S.Ct. rec capital post-conviction only part of the establish post-conviction 1 17 The affidavits such, and evidentia- affidavits As those ord. than was devel- "mitigating" evidence more on their merits ry are not reviewed materials grew They Petitioner oped at trial. establish are reviewed: but neighborhood, rough dangerous up in a showing if a threshold determine [To and often ne- underprivileged and he was If on the merits. require a review met to A occurred glected a child. lot of violence as require- Court determines home, stabbing including a Petitioner's 1089(D) Title 22 have ments of Section it unclear to gun, with a and assault of fact must be re- and issues been met witnessed these extent Petitioner what Court, issue it shall the District solved a violent father was events. Petitioner's remanding the District Court an order man, against violence Petitioner who used claim hearing the merits of the for a past. was his brother in the Petitioner application. raised in community by many in the and was liked well Furthermore, petitioners post-conviction quiet well behaved described affi- post-conviction seeking a review of their youth. application required to file an for are davits 9.7(D)(5), However, hearing. Rules evidentiary post-conviction Rule affida- T18 Appeals, Criminal Court the Oklahoma evidentiary materials do not demon- vits and application App. Title Ch. trial counsel to a failure Petitioner's strate evidentiary hearing affidavits "must present mitigating evidence of constitution- to show this information contain sufficient ally magnitude, as that Williams. deficient convincing evidence the by clear and above, jurors great were told As reflected have or sought to be introduced materials post-convie- Petitioner's life. The deal about fact to likely support law and to have evidentiary cer- materials tion affidavits and allegation raised the to an be relevant more, will almost al- tainly tell us but that Id. If post-conviction relief." application for you view a trial ways the case when requirements of "the this Court determines hindsight. 1089(D) met 22 have been of Title Section Moreover, post-conviction affida by the 1119 the resolved and of fact must be issues evidentiary materials often conflict and vits court, it issue an order remand- district shall testimony given by evidentiary other or with with each ing court for an to the district

565 at trial.8 Petitioner or others Several proposition two, 21 In Petitioner claims hearsay affidavits include unreliable refer his state and federal rights constitutional irrelevant, jury ences. of the information is trial were Some violated the failure to jury instruct the that it aggra- must find the aggravating and some of it is as as it is mitigating. vating outweighed mitigat- cireumstances the ing beyond circumstances a reasonable Viewing evidentiary 1 20 the affidavits and doubt. He claims that weigh- "because the post-conviction materials submitted as a ing determination is a factual determination whole, say, we cannot in accordance with which authorizes the sentencer to increase Williams, prob that there was "a reasonable punishment for murder statutory above the ability sentencing pro that of result maximum, the Oklahoma Constitution and ceeding compe would have been different" if the Sixth and Fourteenth Amendments to presented tent counsel had the materials and require the federal constitution that this de- explained significance. In opinion, their our termination be made and must be appellate per Petitioner's trial and counsels' proved beyond a reasonable doubt." Be- formances did not constitute the denial of cause this claim was not raised at trial or on reasonably competent assistance of counsel appeal, appellate he claims trial coun- prevailing professional under norms. See sel were ineffective. Strickland, 690, at 104 at S.Ct. ("court whether, ... light must determine specifically Petitioner attacks cireumstances, OUJI-CR 2d 4-76 and OUJI-CR 24 4-80 all of the identified or acts range they omissions were outside the wide of and claims violate the United States assistance"); professionally competent 22 Supreme Apprendi Court's decision in O.S.2001, 1089(D)(4)(b)(2); Walker, § Jersey, New 530 U.S. 120S.Ct. ¶ 11, (2000). There, OK CR 933 P.2d at n. 25. We L.Ed.2d 435 the United proposition found, find one and four are without non-capital States in a Thus, case, request merit. Petitioner's for an evi- prior "[olther than the fact of a dentiary hearing on his claims of ineffective conviction, any fact penal that increases the hereby ty beyond assistance of counsel DENIED. prescribed for a crime statuto example, evidentiary "Aggravating 8. For the affidavits and ma- circumstances are those which regarding guilt enormity terials are inconsistent the amount of increase the or of the offense. accomplished by drinking Murphy determining you may impose Elizabeth dur- which sentence case, ing you may pregnancy only aggrava- her with Elizabeth consider those Petitioner. time, apparently ting pregnan- described a circumstances before the set forth in these instructions. cy, you During unanimously when she drank 24 cans of Should find that beer. one or more however, pregnancy, aggravating beyond only she claimed that she circumstances existed a rea- doubt, many evenings help you drank two cans of beer on sonable are authorized to consider imposing portrayed you her relax. Elizabeth's sister a sentence of death. If do not Elizabeth unanimously beyond during as an alcoholic who drank to excess her find a reasonable doubt that pregnancy aggravating one or more of the and who had used excessive amounts circumstances existed, you prohibited considering (but of alcohol to induce abortions times after event, Petitioner). penalty pregnancy of death. In that her the sentence James Bowen (Petitioner's counsel) imprisonment possi- Murphy must be for life without the trial claimed Ms. maintained, interviews, bility parole imprisonment always during pre-trial of or for life with the possibility parole." consumption that her alcohol was minimal dur- ing pregnancy. family her He also claimed her members never contradicted this assertion. Fur- you unanimously 10. "If find that one or more of aggravating beyond thermore, Bowen with Dr. Jeanne Russell circumstances existed spoke trial, prior they doubt, discussed the "absence of penalty reasonable the death shall not be any Syn- visible characteristics of Fetal Alcohol imposed you unanimously unless also find Based, apparently, upon drome." this contradic- aggravating such circumsiance or circum- outweigh finding nothing more, stances more John R. Smith, one or tory psychiatrist neurologist purposes hired for mitigating you Even if find that circumstances. post-conviction proceedings, concluded that aggravating outweigh circumstances the miti- circumstances, you Petitioner has a "severe brain disorder which gating may impose a sen- clearly imprisonment possibility was never identified at his trial That tence of for life with the impairment Syndrome/Fetal parole imprisonment is Fetal Alcohol Al- for life without Syndrome." possibility parole." cohol Effect 566 statutory aggra unanimously find jury, quired to to a submitted must be

ry maximum beyond a reason vating exist Ap cireumstances doubt." beyond a reasonable proved and 490, at doubt, 120 S.Ct. 2862-63. able penalty can be prendi, 530 U.S. before the death penalty death holding, ap point, At that this considered. that argues as Petitioner jury instructions, penalty, and the in fact the maximum requires that jury plied to our avail deciding of the three aggravating simply circum which statutory jury find that long aggra proper, as punishments is so mitigating circumstances able outweigh stances outweigh mitigating cir vating it cireumstances doubt before beyond a reasonable . penalty cumstances. impose the death occasions, prior Ap- numerous T23 On reject Ap- the notion that 125 We thus pre have defendants prendi, when criminal invalidating for Okla- prendi forms a basis Petition arguments to the one sented similar sentencing We also capital scheme. homa's here, firm has stated its this Court er raises appellate counsel trial and find Petitioner's for balane- "specific standards position that previously failing for were not ineffective mitigating cireum- and ing aggravating raise this issue. required" under Oklahoma's stances are three, proposition Petitioner 126 e.g., Patton sentencing See capital scheme. claims, to his mild mental due 270, 299; 66, State, P.2d CR 973 v. 1998 OK the state and execution would violate 67, State, 908 P.2d CR v. 1995 OK Richie against prohibitions federal constitutional State, 87, 268, 279, v. 1995 OK CR Powell and would punishments unusual cruel and/or 765, point position on this 783. Our 906 P.2d decency. contemporary standards offend Apprendi changed as result has not legisla to consider recent He asks this Court decision, forth below. the reasons set for judicial "indicia of action and other tive First, was a five to Apprendi resolving this public sentiment" in current four, resulted in five non-capital decision that post- hold his He also asks us to claim. Supreme Court separate opinions from the abeyance pending proceeding in conviction Second, distinguishable facts. justices on Supreme decision the United States Court's not, opinion, language our

Apprendi's does Virginia.12 v. Atkins jury to find broadly require extend so circumstances, 127 Petitioner did not raise have al aggravating which although obviously appeal, he jury to exist be claim on direct ready been found so, he does not doubt, outweighed opportunity mit had the to do yond a reasonable to an inceffee- raise the issue here relation beyond a reasonable igating circumstances Third, Supreme States doubt. the United normal cireum- tive assistance claim. Under Arizona, stances, absolutely fatal to his this would be Ring recent decision Court's - 2428, -, 153 L.Ed.2d claim under post-conviction 122 S.Ct. U.S. act. Howev er, flurry legislative,13 due to a recent (2002), extending Ap- apparently while executive,14 judicial activity concerning capital sentencing holding prendi's issue, including schemes, light pre precise the United further on the sheds no Atkins, Supreme opinion in Court's States Fourth, under Oklahoma's cise issue here.11 scheme, give jurors will issue in order to sentencing are re we address this execution of men- which would have limited the Corcoran, Burch v. 273 F.3d 11. See also (4th Cir.2001){noting sentencing tally persons n. 6 under certain conditions. selecting appropriate simply sentence "was adjudging mental retardation standards already range penalties included notably consistent with in House Bill 2635 are penalty.") the death used the American Association standards (AAMR) Retardation American Mental decided Court on 12. Atkins was (APA), Psychiatric Association as reflected in 20, 2002, being prior hand to this decision June opinion. the Atkins footnotes three and five of - -, Atkins, S.Ct. ed down. See L.Ed.2d Keating vetoed 14. Oklahoma Governor Frank session, legislative Okla- 13. Late the 2002 Bill 2635 on June House legislature passed Bill homa's House

567 judges, developing the various district court to the the task of guidance appro State[s] to may attorneys, inmates who and death row priate ways to enforce the constitutional re upon appears striction its execution of sentences." what to be a new rule be affected law. of constitutional Id. currently law in this state 128 As the puts " 30 That this State an interesting in "(alll stands, persons capable are of commit position, considering legislature our has at- crimes," ting except in those certain statuto tempted that, to do just but our Governor classes, rily including "persons who defined apparently disagreed legisla- has with the impaired by reason of mental retardation are Thus, ture's upon efforts. the task falls committing upon proof that at the time of develop guide Court to standards to those charged against they incapa act them were affected until the other govern- branches of knowing wrongfulness" "[pler- its ble of and meeting ment can reach a of the minds on act, committed the or made the sons who this issue. ignorance charged, under an or mis omission disproves any criminal take of fact which According, hereby adopt we 0.8.2001, § yet, 152. And while intent." following definition for mental retarda mentally capable individuals are of retarded apply tion that alleging will to individuals Oklahoma, committing light crimes in in of they eligible are not to be sentenced to the

Atkins, holding those who fit within its penalty, death for use trials:1 longer eligible penalty.15 for the no death (1) person "mentally A If retarded": he notes, however, 129 Atkins there is significantly or she functions at a sub- (and disagreement serious thus no "national average substantially intellectual level that 16)among consensus" the States determin ability limits his or her to understand and ing which offenders are in fact retarded: information, process communicate, to to people mentally "Not all who claim to be experience mistakes, learn from to en impaired so as to will be within fall gage logical reasoning, range mentally impul to control of retarded offenders ses, and to understand the reactions of about who there is a national consensus." - (2) others; Atkins, The mental -, retardation mani U.S. at at 2250. S.Ct. age eighteen fested itself before the of important It is therefore to understand that (18)19; (8) and The mental retardation is attempt Atkins does not to define who is or accompanied by mentally purposes significant who is not retarded for of limitations sentence, eligibility "leave[s] for death adaptive functioning in at least two of the Atkins, According prised by Murphy 15. "death is not a suitable the test results. did reason- school, punishment mentally ably although ... for retarded criminal well in some of his school Construing mentally applying Eighth Amendment records indicated he was "educable light 'evolving handicapped," expert in the of our of decen standards a term his likened to the cy," punishment phrase we therefore conclude that such "mild mental retardation." 'places is excessive and that the Constitution power substantive restriction on the State's 18. Our use of the terms retarded and take the life' of a retarded offender." mental retardation is limited to cases where a - Atkins, -,at 122 S.Ct at 2252. person claims he or she is retarded to ineligible penalty. the extent be death for the 16. While I do not believe the law should be by opinion polls, interpreted I defer to the United age eighteen" 19. "Manifestation before the of terminology. States Court's question a fact intended to establish that the first signs appeared of mental retardation and were Murphy's alleged recognized eighteen. "mild mental retardation" before the defendant turned is, arguably, upon Lay opinion poor one of those borderline cases school records disagree. which reasonable minds could His re- Thus, not, considered. a defendant need neces- downplayed by sarily, intelligent quotient tardation-which was somewhat introduce an test ad- expert being possibly testing age eighteen his own due to ministered before the or a medi- opinion given age eighteen cal before conditions, cultural factors, Petitioner's so- jury purposes prove cialization-was submitted to a order his or her mental retardation mitigation, impose eighteen, although age but the decided to manifested before the penalty. Murphy's expert expected surely proof death be the more had he such would credible range would fall into a borderline was sur- that fact. by filing a notice in communication; that fact written notice of self- areas: following skill (and skills; copied liv for the social/interpersonal home to counsel care; the record (45) State) days prior forty-five self-direction; academics; less than no health and ing; resources; community and Discovery safety; use of The Criminal to trial. Oklahoma Code, 0.8.2001, § seq., 22 2001 et shall be work. relating the prove any he or to applicable burden to to evidence It is the defendant's by preponder a mentally retarded mental retardation. is issue of she Intelli at trial. the evidence20 ance of many fac are one of the gence quotients jury determines a de 188 If the considered, but are not may retarded, be mentally tors that defined as fendant is However, person no alone determinative. no opinion, shall this that defendant within mentally penalty. eligible to be considered longer eligible for the death be be shall an intelli or she has unless he retarded has However, jury if finds the defendant the below, seventy or as quotient of gence by is proven not he or she scientifically ree- by at least one reflected evidence, the defen preponderance a of the contemporary scientifically approved, and ognized, may functioning still be intellectual dant's quotient test. intelligent mitigating in the factor sen 21 considered as at all future and tencing stage. shall be used This standard trials, until such time as it capital pending legislative (1)

may replaced by a suitable be In those cases where enactment. the issue of properly has raised defendant (2) above, the mental as set forth mental the issue of 132 Unless jury re finds the defendant is not trial, prior is retardation is resolved (3) tarded, opinion, in as defined shall be decided of mental retardation sue penalty, trial jury imposes then the death capital murder sentencing stage of a defendant,22 shall, request upon of the court trial, forth in pursuant to the instruction set hearing for the post-judgment hold a Atkins Furthermore, in all future Appendix "A." jury's determining if decision purpose of intends to capital where the defendant trials of mental retardation has result on the issue to avoid of mental retardation use the issue sentence,23 ie., a sentence give ed an excessive penalty, the defendant shall the death ing. hearing thereon shall be held on the adopt preponderance of the 20. We sentencing prior spite and convinc- to formal sen- of the "clear date set for standard here adopted by Legislature ing" tencing. our evidence from that en- standard No additional used, patterned after which was but the House Bill tered into the trial record recog- doing, In so we arguments North Carolina's statute. parties allowed to make oral shall be adopted statutory that have nize other states from such trial evidence. relating proof retar- procedures to the of mental ie., proof, ap- split on the burden dation first-degree Sentencing 23. in a murder case a clear and con- proximately five states utilize 0.$.2001, governed by § 701.10 and sentenc- approximately vincing while eleven standard gov- ing on remand of a murder trial is preponderance of the evidence. To states use date, § However, 701.10a. 0.$.2001, erned has not States the United authority death Court has ultimate to review standard, particular but has left the mandated a O0.S.2001, sentences, pursuant penalty to 21 develop appropri- states to task to individual 701.13, report § which includes a from the trial ways would ate address the issue. While I hearing judge. an extension of that The Atkins intent, Legislature's stated have followed our line, 0.$.2001, judge's report. Along trial Court, whole, opted preponder- for a as has provides: § all of a verdict of 926.1 "In cases standard. ance of the evidence against any of the laws conviction for offense Oklahoma, may, jury and shall State of intelligent By contemporary, we mean the request upon the defendant assess and seventy quotient registering or below was test punishment in their verdict within declare the capital crime administered some time after the law, the court shall the limitations fixed may be understood was committed or is one that verdict, judgment according render a to such by contemporary standards. However, except provided." hereinafter 0.$.2001, § the trial court to "dis- hearing 928.1 allows request Atkins 22. The defendant's for an greater high- regard" than the a sentence that is writing, record, be made filed of shall (10) days law for the offense judge est limit declared to the trial within ten submitted according highest judgment limit jury prior "render verdict and to formal sentenc- tal retardation was introduced at trial penalty upon a imposed the death defen and/or retarded, (1) who is as herein dant the defendant either received an instruc defined. tion that his or her mental retardation was a consider, (2) mitigating factor for the judge's duty at an 135 The trial appealed his death sentence and therein hearing is to determine whether or Atkins raised the claim that the execution of the relating the factual determinations to the mentally retarded was cruel and unusual imposed by issue of mental retardation were punishment Eighth under the Amendment to prej passion, the influence of the under (or substantially the U.S. Constitution a simi udice, arbitrary In any or other factor.24 relating lar claim to his or her mental retar duty, administering judge this the trial shall (8) dation), or raised claim of ineffective her de of conduct his or own novo review counsel, appeal previ assistance of or in a presented at the evidence trial and determine post-conviction application, ous in which he mentally whether or not the defendant is or she appellate asserted trial counsel or retarded, defined, using prepon as herein counsel failed to the raise claim that the of the evidence standard. The trial derance mentally execution of the retarded judge findings shall make and conclu was cruel written punishment upon Eighth is and unusual sions whether or the defendant under the retarded, above, Amendment to the using the definition U.S. Constitution. findings cases, and file written and conclu those such the defendant's counsel shall file (15) days in of sions the record within fifteen application post-conviction either an for re hearing, judges the as an exhibit to the trial lief, if pending the defendant's is not case judge Court, report. Where a trial determines that application or an with this Court and, a defendant is conse pending appeal seeking in a a remand to the quently, jury's finding decision the appropriate evidentiary District for an Court defendant not retarded was due to hearing to determine whether or not suffi passion, prejudice, influence of or other cient evidence of the defendant's mental re factor, arbitrary may that issue be raised as tardation exists in order for the matter to be proposition for con of error this Court to resentencing, for remanded as ordered bel part mandatory sider as of its sentence re ow.26 view. pending capital appeals 186 For DECISION applications and inmates who file for carefully reviewing issue, 137 After Petitioner's post-conviction to relief address this Relief, Application for Mo- Post-Conviction preserved of the issue mental retardation is Evidentiary Hearing following tion for and Motion to cireumstances: those men cases where evidenceof defendant's Abeyance, Hold Post-Conviection Case we prescribed by particular regarding unduly law in the case." While sion mental in- retardation speaks "punishment, hearing, 928.1 whether of section fluenced. Atkins as herein de- scribed, imprisonment apply possibility or fine" and thus does not to would seek to forestall trials, concept apply the same to should mandatory and assist this Court in its sentence review. retardation, factual issue of mental but purely only in the form of recommendation from the judge report. trial to this Court in his or her 25. We use the de here to indicate that term novo hearing the Atkins is not to be a mere rubber- charged, pursuant 24. This Court has been determinations, stamping jury's factual § 0.$.2001, 701.13, with the responsibility independent review the evidence mental an conducting every a sentence review of criminal objective, judge, an retardation neutral unin- defendant who has been sentenced to death. fluenced the nature and circumstances of responsibility Part of our is to determine crime, affected or out- thereby, persons any "[wJhether the sentence of death was imposed side influence. passion, prejudice, under the influence of or arbitrary reflecting upon that other factor." In record, hand, appropriate post-conviction 26. Under an responsibility, applies as it the issue at could, however, order a case remand- Le., mental we can foresee the possi- resentencing necessity bility jury becoming angered ed without of an of a so incensed hearing. evidentiary about the circumstances of a crime that the deci- CHAPEL, J., concur in results. controverted, (1) previ- no exist

find: there material factual issues ously unresolved LILE, J., STRUBHAR, P.J., concur. confinement, ex- legality of Petitioner's (2) below; Petitioner's claim cept provided APPENDIX "A" ineffective for counsel was appellate that his BE USED JURY INSTRUCTION TO investigate, develop, and failing adequately RETAR- MENTAL WHEN ISSUE OF mitigating is with- present available BEEN HAS RAISED DATION (3) argu- merit; Apprendi Petitioner's out De- A conviction for Murder the First (4) merit; and Petitioner's without ments are death, imprison- life gree punishable retardation have to mental claims related possibility parole, or life ment without further stated Atkins and as per merit as imprisonment. The Defendant has raised above. imposition mental retardation as bar to penalty in this case. You must Application of the death Accordingly, Petitioner's if suffers determine the Defendant Relief, Evi- Motion for for Post-Conviction below mental retardation as it is defined Hearing, Motion to Hold Post- dentiary deciding impose. what sentence to before Abeyance are DENIED in Case Conviction except proposition three. Pe- all as to issues person advised that a is "mental- You are Re- for Post-Conviction Application titioner's sig- ly if he or she functions at a retarded" Evidentiary Hearing sub-average nificantly Motion for intellectual level lief and substantially ability un- respect to the issue limits his or her to hereby with GRANTED information, process to com- retardation, derstand and as set forth below. of mental municate, experience learn from or mis- to REMANDED 139 This case is therefore takes, engage logical reasoning, in to County for of MeIntosh to the District Court re- impulses, control and to understand the evidentiary hearing the sole issue of an on Intelligence quotients are actions of others. in mental retardation Petitioner's claim of many factors that be consid- one of the hearing, At that accordancewith this Order. ered, are not alone determinative. (60) days sixty held within which shall be decision, reaching your you must deter- Order, the District from the date of this mine: if Petitioner has Judge shall determine (1) person the defendant a who is men- Is 27 (at trial, ap on raised sufficient tally as defined in this in- evidentiary hearing) peal, at the or struction? with the accordance mental (2) present the mental retardation Was herein, the issue of forth definition set known before the defendant was ques decided as a mental retardation to be (18) eighteen years age? resentencing by a at a tion of fact (8) significant Does the defendant have Thereafter, judge hearing. the trial shall adaptive limitations in functions (20) twenty days within his written submit following least two of the skill areas: Court, findings concerning this to this issue communication; self-care; social/inter- transcript together and record of skills; personal living; home self-di- twenty days proceedings. Within rection; academics; safety; health and findings, of those written issuance resources; community use parties may briefs of no more than submit work? response pages ten to this Court thereto you preponderance If find of the Atking, findings, addressing the Court's answer to each of these evidence that or this Order. yes, you questions is then must so indicate on

your then decide verdict form. You must JOHNSON, V.P.J., part/dissent concur whether the defendant shall be sentenced imprisonment imprisonment life with- life or part. retarded, is, enough ques- defined. evidence to create a fact herein That tion whether the Petitioner on the issue of parole imprisonment, and so indicate sentenced life possibility imprison- out the life your you possibility parole If find the answer ment without verdict form. death. no, questions you must of the above your indicate on verdict form. You must so Preponderance evidence means probable the defendant be more than then decide whether shall not.

OUJI-CR 4-87 VERDICT FORM TO BE USED WHEN MENTAL OF RETARDATION ISSUE HAS BEEN RAISED THE OF COURT DISTRICT JUDICIAL IN THE DISTRICT OF SITTING IN AND THE STATE OF OKLAHOMA FOR COUNTY OKLAHOMA, ) OF THE STATE ) Plamatt g

vs. Case No. DOE,

JOHN i

Defe n dant. i

VERDICT We, cause, do, and sworn in empaneled above-entitled jury, upon follows: oaths. find as our is:

Defendant retarded,

Mentally by defined the Court's instructions, fix punishment at his/her retarded, Not by as defined the Court's instructions, fix punishment his/her

FOREPERSON of mental retardation. The U.S. JOHNSON, V.P.J., in concurs has held that retarded part/dissents part. and to execute the men cannot be executed agree majority tally 1 1 I that this Atkins v. case retarded is unconstitutional. — —, hearing Virginia, a must be remanded for on the issue S.Ct. (200 deciding procedures to be a new rule of law. used This is L.Ed.2d 335 2). mental retardation claims. future way in disagree 12 I with the which procedure estab- I as to the T2 dissent majority issues raised Atkins resolves determination as to the lished the Court executing men Virgimia.1 Atkins found Judge Chapel in his of mental retardation. a tally unconstitutional. This is retarded is proce- Concurring in has outlined Result Atkins, prohibition. fiat Under adopt. The trial court that I would also dure eligible person is not for the death evidentiary hearing pretrial hold a should urgency in sense of penalty. The Court's If the trial mental retardation. determine resolving issues stems from its desire Atkins preponderance court determines upcoming provide guidance trial courts mentally re- that the defendant however, trials; jury we should not rule so tarded, proceed as a non- the trial would require quickly that we fail to consider the If first-degree murder case. implications ments of Atkins or the find, jury then would court should not so impose. I afraid this procedures we am ma prior determination second make this jority opinion mistakes. makes both these Therefore, I would concur stage evidence. Judge Chapel's procedure full set forth Initially addressing 1 3 the Atkins claim Concurring opinion. in Result majority mistakenly post-conviction, "[ulnder without citation that normal states pointed out that after a 138 It should be claim would waived.2 cireumstances" this be that there is jury has made a determination post-con This is not the case. Oklahoma's judge is not mental a trial no requires to hear viction statute this Court jury going determination aside. to set claims which could not have been raised on change judges just Trial do not like appeal support direct a conclusion majority's proce- finding. Hopefully, if the trial would have been the outcome of the followed, then it would dure is the one that is are waived if differents.3 Grounds relief judges certainly my that trial would wish they were available to the defendant before closely look at the evidence as to mental application the last date on which an could be judgment as to retardation and use their timely question filed.4 There is no that At it that the same. I also want to make clear significant change in represents a the kins legal will not or should not doctrine of waiver 20, 2002, law. Before June neither the Unit apply in retarded defendants cases. Supreme nor this had ed States Court Court Clearly, Supreme the Court's cases and U.S. persons held that retarded were not majority's opinion herein make this a the fact, eligible penalty. the death In for both new rule of law and the waiver doctrine exactly opposite.5 A courts had held the apply. would not penalty death claim based on men colorable tal retardation could not have been reason ably any binding formulated from decision CHAPEL, J., concurring in result. any intrepid court in this state. some While agree Murphy's T1 I case must that be attorneys persisted raising what then was hearing issue, remanded for a on the issue of men- expecta a frivolous there was neither hope prevail, tal retardation. I have serious reservations tion nor the claim could analysis majority's the of this and an- mental retar about until Atkins was decided. The claim, proposed disagree other and with the dation issue could not have been raised - -, 2242, 1. U.S. 122S.Ct. 153L.Ed.2d335 legal previously was unavailable. 22 the basis (2002). ©.S.2001, 1089(D)(8),(9). §§ 0.$.2001, 1089(D)(2). § 22 4. Op. 2. at566. Lynaugh, 302, 2934, U.S. 109 S.Ct. 492 Penry 0.$.2001, 1089(C)(1),(2). Similarly, § (1989);

3. 22 the State, L.Ed.2d 256 Lambert v. 1999 221, denied, appropriately subsequent OK CR 984 P.2d cert. issue will be raised relief, applications post-conviction L.Ed.2d 687 for because 120 S.Ct. adopts determining no appeal because there was mental retar Murphy's direct it, settings if support respect he is dation in trial must the legal basis to both a spirit prohibition against outcome of the trial would as and the letter of the retarded the This majority opinion utterly of law have been different. matter execution. The fails scope squarely within the of the claim is to reflect both Court's intent to act. It has not been waived post-conviction flatly prohibit such executions and the will of must consider it on its merits. and this Court people regard. in this majority opinion T4 wants to have it The by majority's 6 I am troubled defini- ways. opinion first claims the issue both tion of mental which is in- also waived, given it the "recent but considers corporated proposed into the Instruction. activity" flurry on the issue.6 Atkins is of majority requires Like House Bill activity". part "flurry a It is bind proof mental retardation manifested it- ing precedent which this Court constitutional However, age self before the of 18. Either the issue was waived or must follow. requirement standing ambiguous. alone is waived, If the was it was not. issue opinion explains In footnote 19 the "manifes- majority opinion is worse remainder of suggests tation" various methods of deciding question than dicta-the Court is proof. explanation At the least should If statutory authority to answer. it has no incorporated body into the defini- is, believe, properly I raised the issue as requires proof tion. This definition also 1089(C), § under we do not need to make IQ seventy, through an of no more than for our decision to address this issue. excuses scientifically recognized approved case, post- the issue before us is the IQ "contemporary" test. Footnote de- majori I conviction claim. understand the "contemporary" fines as either a test admin- guidance ty's provide desire to to trial courts istered after the crime was commit- cases, will hear this issue future which ted, or "one that be understood dealing portion opinion with trial contemporary standards." I have no idea procedure is dicta. whole, Taken what this means. as issues, T5 As we address these the Court appears require proof definition of mental has the unusual but welcome benefit of a (manifested retardation both before before recent, expression Legislative clear intent. 18) test) (contemporary age and after passage of Bill 2685 was This term's House crime occurred. prohibit intended to execution of the mental person "[Nlo (not T7 The definition states: ly limit it under certain condi 18). tions, majority quotient suggests intelligence in note with an of more than seventy, scientifically as administered provided Bill House some definitions determining recognized approved intelligent quotient and standards who is men test, tally may death-eligible, eligible men- retarded and not be shall be to be considered majority substantially tally I and the borrows from retarded." am concerned that this saying any- might Bill While be misunderstood as the to define mental retardation.7 sign Bill one with an the Governor refused to House IQ test over 70 cannot claim to retarded, passage may expres mentally an no matter how severe- its be taken as majority sion of the will of the of Oklaho- ly developmentally he nor how disabled mans, citizens, adaptive showing significant that our like most of his limitations func- Atkins, virtually country tioning. person A who is unable to the as reflected do not mentally may I wish to execute the retarded. function but has a test score of ineligible penalty emphasize procedure this because claim to be for the death Op. at566. Oklahoma, 116 S.Ct. majority prudently The uses L.Ed.2d 498 "preponderance" particu- provided prove the standard. This is 7. The Bill that a defendant had to larly Cooper, practice convincing appropriate given mental retardation clear and evi- and the pre- majority the of states which have chosen dence. This standard was found unconstitution- of context, proper competency ponderance the in the mental al in the which offers dis- as standard turbing parallels Cooper to this situation. retardation context. majority's concern that murderers concerned unstated am also retardation. I mental they mentally retard- suddenly claim misinterpreted prohibit as will may be that this raising if this claim erimes in an ing a defendant of their ed after commission However, capital punishment. avoid test score over effort to has one the defendant possible retardation These results I the definition of mental under 70. believe and one enough with the Atkins that an entire class appear consistent should be flexible do not definitions of men persons "clinical retarded is not automati- conclusions that only subaverage (and require not cally illegally) exposed to the death tal retardation significant functioning, also pre- but penalty simply intellectual their situation because gave Atkins adaptive skills."8 bringing limitations forth evidence vents them from appropriate developing the task of the states from childhood. so, doing the procedures. enforcement brought post- as a first 19 This case is surely states intended claim; evidence of mental retarda conviction (a) perti seriously its discussion take mitigation, presented jury in tion was to the mental retardation characteristics nent the issue of execution of inappropriate pun an which make execution appeal. Follow retarded was not raised on (b) ishment, its conclusion Atkins, majority relue- ing the letter of executed. persons should not be Murphy tantly agrees that is entitled to raise IQ great majority's on an no The insistence being opin The this issue before executed. letter, but not er than 70 follows reasonably that the mental re ion concludes creates a more spirit, Atkins. It also the trial tardation issue must be remanded to passed than that narrow definition evidentiary hearing on the issue court for an "signifi Legislature. Bill 2635 defined House However, opin of mental retardation.9 subaverage general intellectual func cantly whether ion directs the court to determine below, IQ tioning" or but did not as an of 70 Murphy has raised "sufficient evidence" higher tests from rais prohibit persons with "enough create a fact defined as evidence to long ing as the issue of mental question mental retarda issue"-of IQ results of they had one test with also tion, question decided as a for the issue to be below, significant limita and showed or by jury resentencing hearing.10 of fact functioning. adaptive tions in majority require would the trial court to poses practical also 18 This definition findings make of fact and conclusions of law defendant-particularly an problems. If a determining met whether defendant has indigent, mentally challenged one-has no (of evidence"), burden and sub "sufficient record, transient, foreign- or a or is a school findings to this mit those and conclusions adult, er, just as an moved to Oklahoma Court, parties after which the would submit proof of man- well be no available there briefs on the issue. age of 18. This defen- ifestation before the raising opinion, 110 In its to issue an precluded from mental haste dant would be majority IQ appears to have real idea what an tested no retardation even with crime, showing post-conviction procedure and sim near the time of ability according to the little or no to function agree ilar cases will be. I that our is, clearly post-conviction jurisdiction in categories. That statute vests enumerated Court,11 findings this and the trial court's of adult, mentally mentally who was retarded filed in fact and conclusionsof law should be crime, he committed a retarded at the time However, penalty majority's plan the eligible for the death sim- this Court. would be questions Why to raises more than it answers. ply because he had no childhood evidence do we the trial court with the ex burden neither to the letter present. This conforms tremely phrase spirit prohibition against exe- nebulous "sufficient evi nor the of the Why simply require a defen dence"? not cuting mentally people. I share the retarded Op. 10. at570. - Atkins, --, 8. U.S. at 122 S.Ct. 2250. 0.$.2001, 1089(D)(1). 0.$.2001, 1089(D)(5). § §

9. 22 (using evidentiary separately preponderance a of dation in the prove his claim dant standard), evidence, jurors would de- of the the evidence preponderance a hearing adopted already majority has the question capital which before the liberate on that Why, evidentiary standard? appropriate jurors the sentencing began. If find Mur- trial trial court's receives the this Court retarded, after they mentally would subse- phy is conclusions, require the must we findings only on and consider quently hear evidence post-conviction The submit briefs? parties to parole. of life or life without punishments trial court's determina refers to the otherwise, statute punish- jurors If find "entry of as an on remand tion of issues begin. resentencing procedure ment would party that either provides judgment," disagree the dicta particularly 1112 I of that determi review may seek this Court's majority severely and page where the on days.12 In the absence of ten nation within ability unnecessarily restricts the of defen review, Legislature request for such post- dants to raise mental retardation adopt the trial either this Court to directs Essentially, pending conviction or in cases. briefin findings, order additional court's majority any claim in which disallows contrast, majority have would g.13 In previously raised mental retardation was not automatically. Is this the issue briefed appeal to in some fashion either at trial or on fact-finder on the to act as a planning Court If a retarded defendant this Court. opinion of mental retardation? issue pre-4tkins followed the set had counsel who claim of mental implies that colorable law, and heeded this Court's admonition tled again jury for will be remanded retardation issues, every not raise issue or "frivolous" resentencing hearing. at a consideration raising that defendant would be barred by pre Why, if the trial court determines procedure pending claim in a case. This this Murphy is the evidence ponderance of of specifically allows the execution death-eligible, and not retarded failed to defendants whose counsel be question mental retardation must hoops opinion. jump through created this jury question? If again as a remanded comply sweeping use of does not This waiver to have no conclusions are trial court's spirit Atkins or the letter or with either Jury in to a why not remand the issue weight, Legislature. does it have Nor the will of adopt simpler place? I would the first passing chal any chance of constitutional system. system. It fails to lenges in also the federal the trial remand this case to 11 I would plain language post- of the to the conform evidentiary hearing on the issue an court for statute, exactly for which allows conviction party If neither seeks mental retardation. subsequent type in initial or of claim claim, the trial I would review review of the Further, this applications.14 post-conviction and have findings and conclusions court's If a death-eligibility fundamental. issue I need to see no determine the issue. Court penal eligible for the death is not defendant briefing automatically require additional I capital trial. do not ty, be no there should every If trial court concludes case. use should foree the can or believe mentally retarded Murphy proved he is has claims. prevent these procedural waiver evidence, and we of the preponderance for trial setting procedure forth a case finding, I remand the adopt that would cases, this court in future to use courts resentencing life or life without jury primary issue-death- should focus on (or resentencing, parties if judge both parole mentally retard- If eligibility. a defendant If the trial court jury proceeding). waive a penalty, ed, eligible for the death he is not by a Murphy retardation has not shown finds hear or consider and the should evidence, I would still preponderance support sen- a death which would jury resentencing. Un- the case for remand life only possible sentences cireumstances, tence. The Murphy would those der to assure parole. In order or life without of mental retar- present to evidence allowed 0.$.2001, 1089(C), (D)(8),(9). 0.9.2001, 1089(D)(7). §§ 14. § 12. 13. Id. capital-stage quires jurors tainted with

that the trial is not to hear all the only improperly appeal evidence which can to aggravation time, mitigation and at the same jurors' passions (being and irrele emotions sentencing proceeding, and the same issue), any sentencing vant to I would re presented. evidence of mental retardation is quire the trial court to settle the issue before Although proof the burden of differs both State, begins. the trial In fairness to the a doubt) degree (preponderance v. reasonable give defendant notice of his intent should (defendant State), jurors and location jury raise mental retardation before a is would consider a defendant's mental retarda picked.15 pre The trial court should hold a tion claim they at the same time consider evidentiary hearing trial at which the defen imposing penalty, the death light and in may present support dant evidence to aggravating support evidence used to If claim of mental retardation. the trial jury sentence. After the a recommends preponderance court finds a of the evi verdict, only upon a defendant's written mentally dence that the defendant is retard request verdict, made after the trial ed, proceed non-capital the trial should as a court hearing" shall hold an "Atkins on the degree If first murder case. the trial court issue of mental retardation. No new evi find, capital does not so then the case should may presented meaningless dence at this However, proceed. aggravating before hearing, party may argue but each to the mitigating presented evidence is in the see- trial court. The trial court shall review the stage, may ond the defendant evi submit trial evidence of mental retardation de novo jury support dence to the his claim that he findings and make written and conclusions retarded, mentally again preponder is a regarding mental retardation. If the trial ance of the evidence. Jurors should deliber jury court finds that the erred in determin immediately presenta ate on this issue after ing ill, a defendant was not evidence; jury tion of if this finds a defendant finding appeal use that in an preponderance that a defendant Court, part mandatory of our sen retarded, they will consider recommend tence review. punishment non-capital at The that time.16 capital sentencing hearing only will continue T huge 15 There is a contrast in these two if finds defendant has not shown approaches. majority procedure The unnec he is retarded. essarily judicial wastes resources without providing any significant degree protection 4 14 procedures In contrast to the I would to either the defendant Why or the State. adopt above, majority as set forth does should pay the state of capi Oklahoma for a substantially change capital the current trial, why judicial tal should procedures. resources be Although majority trial re trial, in conducting consumed quires prior capital written notice of intent where to claim eligible the defendant mental is not no determination of re for the death penalty? Why witnesses, tardation is made until including after the defendant should degree grieving family has been convicted of first murder members of the murder stage majority the first of trial.17 The re victim, capital be forced to endure a second- this, majority requires specifically 15. findings bearing capital punishment beyond give holds that failure to written notice waives reasonable doubt. the issue. This Court has held that failure to file insanity written notice of an defense in a majority prefaces 17. The the discussion of trial justify case does not a trial court's refusal clause, procedure with the "Unless the issue of evidence, allow the where the State was aware prior mental retardation is resolved to trial...." pres- well before trial of the defendant's intent to context, Op. phrase meaning- State, ent the defense. Allen v. 1997 OK CR detailed, majority less. The sets forth a restric- importance 944 P.2d 936. Given the of a utterly tive and exclusive scheme which mental removes retardation claim-a determination death-eligibility-this imposition independent authority of a trial court's blanket to decide waiver rule failure to file written notice runs mental retardation claims. Under these circum- precedent counter to both this stances, Court's and the raise, a defendant has no avenue to Constitution. a trial court no to hear, retarda- mental authority prior tion issues to trial. provision Ring 16. This is consistent with the de- capital jury cision that a must make factual

577 mentally person a retarded penalty re death for give evidence even proceeding and stage one, illegal that evidence when is an their loved is not an excessive sentence-it garding majority re The belief otherwise sentence. the defendant relevance because have no can misunderstanding of Atkins jurors profound flects a Why be death-eligible? should is not Bill It intent of House 2635. and the aggravating cir with evidence presented mentally retarded charged, unconstitutional to execute much cannot be which cumstances charged devising with people. be This Court is found, defendant cannot the because less will en appellate procedures which mentally retarded trial and Partly to a due executed? impairme sure that cognitive and behavioral people are not retarded defendant's charged penalty, the death convicted of in these with nts,18 cireumstances aggravating crime, Rather than horrible; fre a or executed. the defendants cases are often charge, trying serupulously fulfill this may not ex quently poor witnesses has the majority winks at it This Court remorse, of mental retar and evidence hibit may aggravating easily some simple, itself be a fol opportunity dation to construct purpose possible jurors' death-eligi What procedure which considers minds.19 lowed majority bility begins. the trial The before jury evidence in by allowing a to hear served evidence, question retardation as an impact treats the mental victim aggravation, jurors afterthought, provides opportu no sentencing can irrelevant which is question majority nity to decide this free from other inflammatory? asks The only be evidentiary opinion The would may truly awful distractions. disregard what be jurors to crime, to override a genu not even allow a trial court and even a of the cireamstances defendant, jury's finding that a defendant was mistaken because that de inely unpleasant (and not mentally retarded thus could likely not retarded. not than is more fendant impossible receive death)-the jurors put in this may only Why be trial court state should may a finding, which be used in claim Finally, why is the trial court position? no clearer indica majority's appeal ! There can be on the results allowed to act majority is not concerned hearing? any In tion that Atkins post-trial ill-advised mentally re preventing the execution of the deter where a trial court cireumstance other Instead, pro majority sets forth erred, may court issue tarded. jury has mines the which, notwithstanding verdict.20 cedures judgment pending and future cases together, allow the continued execution taken Here, of constitutional the issue is where regret I defendants. a defendant's inabil and concerns dimensions majority opinion is say executed, deprives the I believe ity to this Court be limiting the deter remedy primarily concerned with authority trial court of limiting verdict, thus probably mination of mental jury most clearly erroneous holding".22 [Aikins's ] fit within "those who aggrava irrelevant evidence caused tion, majority's disagree with the 117 I also Apprendi23 claim that analysis Murphy's ma may found T The answer unconstitutional be were ree- the instructions of a verdict jority's characterization aggravating jurors were not told that cause retard ommending execution outweigh mitigating evi "an excessive sentence."21 person: cireumstances must ed says "appears majority Atkins page — On S.Ct. at 2251. —, U.S. at Atkins, 18. 16, the of law. In Footnote to be" a new rule — S.Ct. at 2252. —, U.S. at Atkins, 19. disagreement with Afkins's in- author notes noted retard reasons, Atkins "Mentally For these Eighth in its national consensus clusion of special aggregate risk in the face ed defendants analysis. page Also on Amendment majority admits wrongful Id. The execution." mentally retarded majority beyond dence a reasonable doubt. I believe 2002 OK CIV APP only we this claim not must review under K.G., M.G., In the Matter of A.G. Apprendi, light Ring v. Arizona.24 years age. under Children Ring capital jury any held that a must make findings bearing capital punish factual Oklahoma, Petitioner/Appellee, State of beyond ment a reasonable doubt.25 one sentence, majority manages to both mis ignore Ring; opinion Anthony Carter, III, construe and does Mark Respondent/Appellant. "apparently" Apprendi capital extend cases, explicitly part it does so and must be 96,930. No. analysis of our of this claim. I do not find Murphy's claim bas merit.26 Under Okla jurors through

homa law are the fact-finders Oklahoma, Appeals Court of Civil capital Ring assigns aout trial.27 to the DivisionNo. 1. offense, capital of a substantive element described as that which makes an increase in 23, Aug. 2002. punishment contingent authorized on a find ing of fact.28 The substantive element of

capital jury's murder in Oklahoma is the

finding aggravating circumstance nec

essary support sentence. The punishment imprison

increase in from life parole penalty

ment without to the death

contingent jury's finding on the factual of an

aggravating pro cireumstance. Oklahoma's jurors finding

vision that made

beyond a Ring reasonable doubt is all that

requires. 24, - -, 122 S.Ct. majority 153 LEd.2d ed equally binding on this agree Court, no maiter how little we with the Supreme interpretations. Court's - -, -, Ring, 25. U.S.at 122S.Ct. 2439-40, 2443; see also 530 U.S. at Apprendi, State, (Okl. 26. See Cannon v. No. PCD-2002-877 483-84, (jury 120 S.Ct. at 2359 must find fact 18, 2002) (not July, publication). Cr. authorizing greater punishment beyond a reason doubt). Ring's explicit able Given extension of 0.$.2001, 701.10, §§ 27. 21 TOL11.

Apprendi, majority's interpretation Appren- reaching di as not this claim is moot. I am - -, majority's unable Ring, to understand the comment US. at 122 S.Ct. at 2439. See and, Apprendi pre itself was a 5-4 Apprendi, decision also 530 U.S. at n. 120 S.Ct. at sumably, (an weight beyond not entitled to the same as Su n. 19 increase a maximum preme larger majority Court cases decided statutory authorized sentence is the functional (like Ring). offense). All equivalent Court decisions greater decid- of an element of a notes 24. possibility in footnote Oklahoma, longer ""yet" are no crimes in commit O.S.2001, § 20. 12 698. death-eligible Atkins. under Op.at568. 21. 466, 482-83, 23. v. New Jersey, Apprendi 2358-59, L.Ed.2d 435 S.Ct. reaching I Op. this conclusion at 567. majority opinion. phrases within the other note

Case Details

Case Name: Murphy v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 4, 2002

Citation: 54 P.3d 556

Docket Number: PCD-2001-1197

Court Abbreviation: Okla. Crim. App.