Lead Opinion
OPINION DENYING POST-CONVICTION RELIEF AFTER MENTAL RETARDATION TRIAL
¶ 1 Karl Lee Myers was tried by jury in the District Court of Rogers County, Case No. CF-96-233, and was convicted of First Degree Murder for the death of Cindy Mar-zano.
¶ 2 Myers thereafter filed an initial application for post-conviction relief which was denied in an unpublished opinion. Myers v.
¶ 3 Myers’s evidentiary hearing was held October 27-28, 2003 in the District Court of Rogers County before the Honorable Dyndа Post, District Judge. Judge Post submitted Findings of Fact to this Court on November 12, 2003, concluding that Myers had presented sufficient admissible evidence to create a fact question on the issue of mental retardation, requiring a jury trial to resolve the factual issue pursuant to Murphy v. State,
¶ 4 On August 30, 2004, Judge Post impaneled a jury to hear Myers’s claim of mental retardation. At the conclusion of the ten-day mental retardаtion trial, the jury found that Myers was not mentally retarded. On October 4, 2004, Judge Post filed her Findings of Fact and Conclusions of Law with this Court, concluding that the jury’s verdict was supported by the evidence and was not influenced by passion, prejudice or any arbitrary factor. The district court record, trial court transcripts and exhibits were filed with the Clerk of this Court on October 27, 2004. On January 18, 2005, Myers filed a supplemental brief raising four claims of error.
¶ 5 Though this appeal remains part of Myers’s post-conviction case, errors alleged to have occurred during his jury trial on mental retardation will be reviewed in the same manner as errors raised on direct appeal from a trial on the merits. We review Myers’s fourth claim first. In Proposition IV, Myers contends that the jury’s verdict was contrary to the evidence, and that the facts established at trial show that he is mentally retarded. He argues therefore that to carry out his death sentence would constitute cruel and unusual punishment. See Atkins v. Virginia,
¶ 6 A defendant must prove mental retardation by a preponderance of the evi-
¶ 7 Whether a person is mentally retarded is a question of fact.
¶ g Applying this standard of review to the present case, we find the record supports the jury’s verdict that Myers is not mentally retarded. Myers intellectual ability has been tested throughout his life by use of full-scale I.Q. (F.S.I.Q.) tests, intelligence-screening tests, and partial I.Q. tests. His scores on these various tests ranged from 66 to 88.
¶ 9 Other evidence supports the finding that Myers failed to prove by a preponderance of the evidence that he functioned at a significantly sub-average intellectual lеvel and that he had significant adaptive functioning limitations in communication, academics and use of community resources as he alleged.
¶ 10 Myers lived by himself and was able to maintain his home and take care of himself and several animals. Myers assisted in the care of his wife as she was dying of cancer. He was capable enough to follow directions and retrieve needed medication and supplies. After his wife died, Myers managed his own financial affairs, including refinancing his property.
¶ 11 Myers was able to effectively communicate with people. He was able to socialize with acquaintances without difficulty. Myers could understand others, make himself understood, express his wishes and understand the reactions of others. He was able to plan for future events. He was able to mislead people and, when confronted with inconsistencies in his stories, he could conform his story to fit the facts. And there was evidence that Myers negotiated his own grant of immunity with a sheriff in Kansas for a crime he committed there. This record does not support a finding that Myers functions at a significantly sub-average intellectual level or that he suffers from deficits in adaptive functioning. We, therefore, find that any rational jury could have concluded Myers was not mentally retarded as defined in Murphy I.
¶ 12 We now turn to Myers’s other propositions of error.
¶ 13 Jury instructions are sufficient if, when read as a whole, they state the applicable law. McGregor v. State,
¶ 14 We find that the words “present and known” are words of common everyday understanding that do not require a level of proof above that required to prove that a condition “manifested” itself. “Known” as it relatеs to the jury instruction used in this ease does not require a scientific finding or a medical diagnosis. See Murphy I,
¶ 15 In Proposition II, Myers claims that the district court erred by denying his request to submit non-unanimous verdict forms to the jury. At trial, defense counsel objected to the uniform instructions and verdict forms requiring the jury to return a unanimous verdict. Counsel proposed advising the jury that it could return a non-unаnimous verdict and providing it with non-unanimous verdict forms. The district court overruled the objection, denied the request and used the verdict forms adopted in Lambert.
¶ 16 Requiring a unanimous verdict on the issue of mental retardation does not violate Atkins, Murphy I, or Lambert. It neither increases the likelihood that a mentally retarded person will be executed nor does it force jurors to vote for a particular position. A unanimous decision is also required by our state constitution in all criminal cases other than misdemeanors. Okla. Const, art. II, § 19.
¶ 17 In Proposition III, Myers claims that the district court erred by denying his motion to quash the venire and change venue. At the start of jury selection, Myers moved for a change of venue arguing he could not receive a fair mental retardation trial in Rogers County because of the extensive media coverage of his previous two capital murder trials. The district court denied the motion and advised Myers to renew the motion should there be evidence of juror bias based on media coverage during jury selection. Myers did renew his motion several times during jury selection arguing that the questioning of jurors about the previous publicity surrounding his murder cases and the number of jurors stating that they knew
¶ 18 In reviewing this claim on appeal, we evaluate the totality of the circumstances surrounding Myers’s mental retardation trial to determine whether Myers was tried before a fair and impartial jury.
¶ 19 The record shows the district court conducted extensive voir dire of prospective jurors regarding their prior knowledge of Myers’s cases. Nine potential jurors were removed for cause because they had some prior knowledge. Further, one juror was removed during the trial because she remembered something about the murder cases while listening to the testimony of Mark Marzano, the husband of murder victim Cindy Marzano. None of the jurors who deliberated stated they had any prior knowledge about Myers’s murder charges.
¶ 20 “The Sixth Amendment right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial jurors.” DeRosa,
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases.
Irvin,
¶21 The record shows the district court carefully conducted jury selection to avoid tainting the entire venire. At no time were the details of the crimes revealed to the potential jurors through the jury selection process. Questions were carefully tailored so that those potential jurors who had prior knowledge could say so without revealing the specific information. The district court exercised extreme care to ensure that those prospective jurors who had prior knowledge did not infect the venire and did not serve. Myers has not shown that the jurors seated in his case were not fair and impartial. Accordingly, we find that the district court did not abuse its discretion in failing to quash the venire and change venue in this case. See DeRosa,
DECISION
¶ 22 The jury’s verdict is factually substantiated. We AFFIRM the finding that Myers is not mentally rеtarded as defined in Murphy I. Further, we find that Myers’s other claims of error do not justify relief. Myers’s application for post-conviction relief is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Notes
. Myers was also convicted of First Degree Murder in a separate trial in Rogers County District Court, Case No. CF-96-233, for the death of Shawn Williams. Myers’s appeal in that matter is currently pending before this Court in Case No. D-2000-271.
. Atkins v. Virginia,
. The Murphy I court adopted the following definition of "mentally retarded” for capital sentencing purposes:
A person is "mentally retarded”: (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive funclioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work.
Murphy I,
In addition to the above three part definition, Murphy I also requires that a petitioner have at least one full-scale I.Q. test score of 70 or below at some point in time in order to be "eligible to be considered mentally retarded.” Murphy I,
. The State did not file a brief in this matter despite being granted the opportunity to submit a supplemental brief within twenty (20) days of the filing of the district court's Findings of Fact.
. Again, the State filed no response.
. The majority of states where the death penalty is an option utilize this same standard. Arkansas — Ark. Code Ann. § 5-4-618(c) (2004); California — Cal. Penal Code § 1376(b)(3) (2005); Idaho — Idaho Code § 19-2515A(3) (2004); Illinois' — Ill. Comp. Stat. ch. 725 § 5/114— 15(b) (2004); Louisiana — La. Code Crim. Proc. art. 905.5.1(C)(1) (2004); Maryland — Md. Code, Crim. Law § 2~202(b)(2)(ii) (2004); Missouri— Mo. Rev. St. § 565.030(4)(1) (2005); Nebraska — Neb. Rev. Stat. § 28-105.01(4) (2004); Nevada — Nev. Rev. St. 174.098(5)(b) (2004); New Mexico — N.M. Stat. Ann. § 31-20A-2.1(C) (2005); New York — N.Y.Crim. Proc. § 400.27(12)(a) (2004), held unconstitutional on other grounds in People v. LaValle,
. To pursue an Atkins claim and be eligible to be considered mentally retarded for capital sentencing purposes, a defendant must have a scientifically recognized, scientifically approved and contemporary full scale I.Q. test score of 70 or below. Murphy I,
. See Murphy I,
Other states have reached the same conclusion. See Perkinson v. State,
. Courts which have announced a standard of review in deciding whether a capital defendant is mentally retarded, give deference to the factual findings of lower tribunals. Only one of these jurisdictions, Georgia, has announced a standard of review in determining a jury determination of mental retardation. The Georgia Supreme Court, on direct appeal, reviews the evidence in the light most favorable to the state and determines whether a rational trier of fact could have found that the defendant failed to meet the burden of proving his mental retardation at the time of the crime. See Pittman v. State, 269 Ga. 419,
Other jurisdictions, stating a standard, have judges making the decision and give deference to the trial court's factual findings. In California, death post-conviction mental retardation issues are reviewed using habeas corpus procedures. See In re Hawthorne,
The 4th Circuit Court of Appeals gives deference to the fact finder and reviews the trial court's findings of fact for clear error. United States v. Roane,
In Alabama and Texas, the appellate court reviews a trial court’s findings for an abuse of discretion. See Morrow v. State, — So.2d -,
The Florida Supreme Court gives deference to the trial court's finding of fact. See Bottoson v. State,
. Myers's testing began when he was around six years old. In 1954, he scored a 73 full scale I.Q. on the Stanford-Binet test, but three years later, in 1957, he scored a 66 full scale I.Q. on the same lest. Over ten years later, Myers completed two intelligence-screening tests, scoring a 79 in 1969 and an 88 in 1971.
In 1973, Myers scored a 75 full scale I.Q. on the Wechsler Adult Intelligence Scale-revised (WAIS-R) given at the Osawatomie State Hospital in Kansas. In this test, he scored a 64 on verbal I.Q. and a 93 on performance I.Q.
One year later, in 1974, Myers scored an 87 on another intelligence-screening test. While incarcerated in Oklahoma, in 1977, Myers scored a 77 on the verbal portion of an I.Q. test given at Eastern State Hospital in Oklahoma.
In 1999, Myers scored a 77 full scale I.Q. on the WAIS-R given by Dr. Phillip Murphy, Ph.D. However, the results of this test are questionable because the WAIS-R was obsolete at the time Murphy administered it. The WAIS-R was last revised in 1981 and the WAIS-R III was released
Two experts tested Myers’s F.S.I.Q. in preparation for the litigation of his mental retardation claim. In 2002, Myers scored a 66 full scale I.Q. on the Wechsler Adult Intelligence Scale 3rd edition (WAIS-III) given by his expert, Dr. Ray Hand, Ph.D, and in 2004, Myers scored a 69 on the same test given by Dr. John Call, the State’s expert. During this time Myers also took a brief form I.Q. test administered by Dr. Nancy Cowar-din. On this test, he scored in a range between 67-69.
.Myers argues that his F.S.I.Q. scores above 70 were influenced by the "Flynn effect.” The "Flynn effect” thеory states that results on any given I.Q. test will rise approximately 3 points for every 10 years that the test is in existence.
. Myers met the second Murphy requirement that his condition manifested itself before the age of 18. He presented evidence that a treating physician, who treated him for a broken thumb when he was ten years old, noted an impression of "mental retardation” on his chart. Myers also presented evidence that teachers and other children noticed and made remarks that he was unlike normal children and functioned at a lower level. Myers also had a F.S.I.Q. test score of 66 when he was around six years old.
. Propositions I, II and III are raised in a conclusory manner with bare citations to the record and case law, but without analysis.
. Section 19 provides in part, "In civil cases, and in criminal cases less than felonies, three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict.”
. The district court noted on the record that less than ten percent of the entire "jury pool” had prior knowledge of the case.
. Myers does not contend that his case is one of the rare cases where media influence was so pervasive and prejudicial that prejudice must be presumed. See DeRosa,
Concurrence Opinion
Specially Concur.
¶ 1 The issue of mentаl retardation has proven to be particularly challenging for this Court in its review of capital and capital post-conviction appeals. However, Judge Arlene Johnson has provided a thorough and scholarly analysis of that issue as it applies in this case,
¶ 2 First and foremost, this ease sets forth the all-important standard of review this Court will use on appeal when a defendant challenges the sufficiency of the evidence following a jury finding that he or she is not mentally retarded. That is, “[wjhen the defendant challenges the sufficiency of the evidence following a jury finding that he is not mentally retarded, this Court will review the evidence in the light most favorable to the State to determine if any rational trier of fact could have reached the same conclusion.”
¶ 3 This standard of review, with which I wholeheartedly agree, establishes an objective test that will enable the District Courts and litigants to understand the applicable law and respond accordingly. Moreover, the standard gives proper deference to jury determinations on the issue at hand and is consistent with the standard of review for sufficiency of the evidence announced by the United States Supreme Court in Jackson v. Virginia,
¶ 4 This standard is not de novo review, where wе would look at the entirety of the evidence objectively and then weigh which side made the stronger case.
¶ 6 This decision is consistent with Atkins v. Virginia, which described mental retardation as a “disabilit[yj” or “impairment” of reasoning, judgment, and impulse control.
¶ 7 But Myers had wildly fluctuating IQ scores, a 22-point difference with the low at 66 and the high at 88. This is odd, and not at all consistent with the reality of someone who had a lifelong disability in the functioning of his central nervous system. A truly mentally retarded person will not have IQ scores that bounce back and forth over so broad a spectrum.
¶ 8 Third, Myers acknowledges that defendants have the threshold burden of producing at least one acceptable IQ test scorе of 70 or below. It doesn’t figure in a “margin of error,” which would effectively raise that threshold. A margin of error in IQ scoring doesn’t require the 70 threshold set forth in Murphy and this case to be raised. It simply means a defendant with a borderline IQ may need to take the test several times. If a defendant cannot produce at least one IQ test showing the defendant operating at least within the mild mentally retarded range, then there is no way he is going to be able to prove he is mentally retarded at trial. More importantly, he is not a person who is mentally retarded, although he may have some learning disabilities or other types of problems.
¶ 9 And finally, I admire the spirit and tone of this decision. It honors the concept of stare decisis and wisely builds on our prim-eases, rather than attacking them. Orn-eases dealing with the issue of mental retardation should be about" applying the law, not personal opinions about the death penalty.
. This case arises from Petitioner's second post-conviction application in which he raised a mental retardation claim under Atkins v. Virginia,
. Indeed, as Jackson v. Virginia explained, the court does not "ask itself” what it believes.
. This is in line with presumptions we routinely make, like that of regularity of the proceedings, of a jury following its instruction, of constitutionality of a law enacted, and of counsel’s conduct falling within a wide range of reasonableness.
. My sincere hope is that this Court will take these words seriously and exercise judicial restraint when reviewing jury verdicts on the issue of mental retardation. Atkins v. Virginia acknowledged a national consensus against the execution of the mentally retarded. However, "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mеntally retarded offenders about whom there is a national consensus.” Atkins v. Virginia,
. Indeed, DSM-IV-TR at 42 indicates that when there is a significant scatter in IQ test scores, a profile of strengths and weaknesses, rather than the mathematically derived IQ score, will more accurately reflect one's learning abilities. In other words, a great fluctuation in IQ scores indicates something is not right, and should be ipso facta evidence the person is not mentally retarded.