Myers v. State

WATT, C.J., WINCHESTER, CONCUR: LAVENDER,

V.C.J., HARGRAVE, OPALA, TAYLOR,

KAUGER, EDMONDSON, JJ. COLBERT,

NOT PARTICIPATING: J.

2005 OK CR 22 MYERS, Appellant

Karl Lee Oklahoma, Appellee.

STATE of PCD

No. 2002-978. Appeals

Court of Criminal of Oklahoma.

Nov.

264

Bryan Wyndi Thomas-Hobbs, Dupler, L. Indigent System, Capital Oklahoma Defense Division, Norman, OK, Post-Conviction at- torneys defendant/appellant for at trial on appeal. Ray Hasselman, Singer, Edith Assistant Attorneys, Rogers County District Court- house, OK, Claremore, attorneys for the State the trial on mental retardation. Arledge, Indigent Laura M. Oklahoma De- System, Capital fense PosMJonviction Divi- sion, Norman, OK, attorney appellant on appeal. response appeal.

No State OPINION DENYING POST-CONVIC- TION RELIEF AFTER MENTAL RETARDATION TRIAL JOHNSON, A. J. Myers 1 Karl Lee was tried Rogers County,

the District Case CF-96-233, No. and was convicted First Degree Cindy Murder for the death of Mar- zano.1 The found the existence of four circumstances, aggravating concluded that aggravating outweighed circumstances mitigating Myers evidence and sentenced Myers’s Judg to death. This Court affirmed ment and Sentence and the United Supreme Myers’s peti States Court denied tion for writ of in Myers certiorari v. Okla homa, U.S. S.Ct. (2001). L.Ed.2d ¶ Myers appli- initial thereafter filed an post-conviction cation for which relief unpublished opinion. denied an Degree Myers’s appeal was also convicted of First Mur- Shawn Williams. matter separate Rogers County currently pending der in a Court, trial in District before this Court in Case CF-96-233, No. Case for the death of No. D-2000-271. (OM.Cr.2001). County Rogers for a District Court of No. PCD-2000-516 Case factual issue. trial on that 4, 2002, Myers a second filed November On relief, raising, рost-conviction application 30, 2004, Judge impan- August Post 4 On issues, that he Atkins2 claim among other Myers’s jury to hear claim of mental eled a he was men- executed because could not be ten-day At the conclusion retardation. January On tally retarded. trial, jury found that mental retardation respond to At- ordered the State On Octo- Myers was not following August kins claim. On 4, 2004, Judge Findings filed her Post ber response, Court, receipt of State’s of Law with this Fact and Conclusions sup- denying part granting- concluding jury’s verdict was order issued an and was not influ- appli- ported the evidence post-conviction part Myers’s second any arbitrary by passion, prejudice or enced this mattеr remanded cation. We record, trial court The district court factor. County Rogers for an evi- of District Court with transcripts and exhibits were filed Myers’s hearing the issue of dentiary 27, this on October 2004. On Clerk of if was to there mental retardation determine 18, 2005, Myers supplemental January filed a to of mental retardation sufficient evidence raising four claims of error.5 brief jury trial on the issue. Myers to a entitle ¶ appeal part Though 5 this remains ¶ evidentiary hearing was held Myers’s 3 case, errors al post-conviction 27-28, in the District Court 2003 October during his trial leged to have occurred Dynda County Rogers before the Honorable will be reviewed on mental retardation Post, Judge. Judge Post submitted District ap as errors raised on direct same manner on November Findings of Fact to this Court review peal a trial on the merits. We from 12, 2003, present concluding had that Proposition Myers’s fourth claim first. to create a admissible evidence ed sufficient IV, jury’s verdict Myers contends that the of mental retarda question fact on the issue evidence, contrary and that the tion, requiring trial to resolve trial that he is at show facts established State, Murphy to v. pursuant factual issue that mentally argues He therefore retarded. 556, 32, ¶ 39, 568-70 54 P.3d 2002 OK CR would consti carry his death sentence to out ).3 Thereafter, (hereinafter Murphy I punishment. See At cruel and unusual tute adopt Judge to urging filed brief 304, 122 Virginiа, S.Ct. kins v. 536 U.S. reviewing the evi findings.4 Post’s After (2002). 2242, 153 L.Ed.2d 335 present dence we too found ¶ prove A must mental of mental retardation defendant ed sufficient evidence of the evi- by preponderance to retardation the matter back and we remanded 304, following funclioning at least two of the skill Virginia, U.S. 122 S.Ct. 2. v. Atkins communication; self-care; 2242, (2002) (holding execution areas: social/inter- 153 L.Ed.2d 335 self-direction; skills; living; personal cruel and home retarded constitutes of the academics; Eighth safety; punishment ‍​​‌‌​‌‌​‌‌​​​‌‌‌​​​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌​‌​​​‌‌‍use of commu- in violation of health and unusual Amendment.) resources; nity and work. 31, ¶ I, 32, Murphy 54 P.3d at 567- 2002 OK CR following adopted defi- Murphy 3. The I court 68. definition, part to the above three capital In addition "mentally sеntenc- retarded” nition of ing requires petitioner have at Murphy that a I also purposes: I.Q. 70 or below test score of least one full-scale (1) "mentally person If he or is retarded”: A "eligible to point in order to be at some in time sub-average significantly in- at a she functions I, Murphy mentally retarded.” be considered substantially limits his or tellectual level that 31, ¶ 32, at 54 P.3d 568. 2002 OK CR process ability informa- her to understand communicate, tion, experience learn to to from in this matter did not file brief 4. The State mistakes, reasoning, engage logical to or to being granted opportunity to submit a despite impulses, the reac- and to understand control (20) days twenty supplemental brief within others; (2) The mental retardation tions of Findings filing of Fact. the district court's eighteen age itself before manifested (3) (18); retardation is accom- The mental response. adaptive Again, State filed no panied by significant limitations ¶ State, Bass, I, 32, 31, v. denee.6 ex rel. Lane OK areas.7 2002 OK CR ¶ 8, 629, 631-32; CR P.3d Lambert weighs P.3d 567-68. The the evi- ¶11, 2003 OK presented by by dence defendant and 1) he He must show: functions state and determines whether the defendant significantly sub-average intellectual level proof has met his burden that he is men- substantially ability his under- limits to tally If the finds that information, process stand and to communi- is defendant as it did cate, mistakes, learn experience from case, in this the death sentencе stands. See engage logical reasoning, impul- to control Lambert, 2003 OK CR 71 P.3d at 32. ses, and to of oth- understand reactions ers; 2) person mentally his mental retardation manifest- Whether is 3) 18; question is a age evaluating ed itself before the that he fact.8 In significant adaptive questions has give limitations func- of fact decided tioning in at great jury’s finding. least two nine listed skill deference majority penalty 6. The where the states death has raised ... tioner sufficient evidence of his option is an utilize same Arkan standard. ... for the issue mental 5-4-618(c) (2004); § Code sas—Ark. Ann. Cali question retardation to be decided as a of fact (2005); 1376(b)(3) § fornia—Cal. Penal Code jury....”); a ¶ Martinez 19-2515A(3) (2004); § Idaho—Idaho Code Illi ("Where questiоn a fact 15(b) Comp. § nois'—Ill. ch. 725 Stat. 5/114— found, jury steps a then in to determine the (2004); Code Louisiana—La. Crim. Proc. art. ”); [mental issue .... retardation] see also Snow 905.5.1(C)(1) Code, (2004); Maryland—Md. State, ¶10, 9, 626, v. 2004 OK CR 87 P.3d 628 (2004); 2~202(b)(2)(ii) § Crim. Law Missouri— (despite finding, evidentiary trial court’s after an 565.030(4)(1) (2005); § Mo. St. Rev. Nebras hearing, petitioner that the did raise suffi 28-105.01(4) (2004); § ka—Neb. Rev. Stat. Ne question evidence cient to establish a of fact of 174.098(5)(b) (2004); vada—Nev. Rev. St. New retardation, mental this Court remanded for a 31-20A-2.1(C) § Mexico—N.M. Stat. Ann. question to resolve determination the fact (2005); New York—N.Y.Crim. Proc. retardation); State, regarding mental v. Pickens 400.27(12)(a) (2004), § held unconstitutional on 11, 16, 601, 2003 OK CR 74 P.3d 604 and LaValle, 88, grounds People other v. 3 N.Y.3d State, 2,¶11, v. 485, Lambert 2003 OK CR 71 P.3d at (2004); 783 N.Y.S.2d 817 N.E.2d 341 South (the petitioner 31 raised § sufficient evidence to Dakota—S.D. Codified Laws (2004); 23A-27A-26.3 question § Code create a retardation, fact on Tennessee—Tenn. Ann. 39—13— the issue of mental (2004); 203(c) § Utah—Utah Code Ann. 77-15a- so this Court for a remanded 104(12)(a) (2004); Virginia issue.). Code Ann. determination on this —Va. 19.2-264.3:1.1(C) (2004); § Washington—Wash. Other states have reached the same conclu 10.95.030(2) (2005); § Mississippi— Rev.Code State, 232, sion. See v. Perkinson 279 Ga. 610 State, 95, (Miss.2003); v. Russell 849 So.2d 148 533, (2005)(Where disputed, S.E.2d 537-38 Lott, 303, v. Ohio — State 97 Ohio St.3d 779 question issue mental retardation is a fact 1011, for 2002); (Ohio Pennsylvania— N.E.2d 1015 Hawthorne, 40, jury.); In re Mitchell, 258, 35 Cal.4th 24 Commonwealth v. 576 Pa. 839 189, 552, Cal.Rptr.3d (2005)(Men 202, P.3d (Pa.2003); 105 558 A.2d 211 n. 8 South Carolina— question 276, fact.)(Citing, Maynard, tal retardation is v. Franklin S.C. S.E.2d 356 588 cases, 604, /.); Warden, (S.C.2003); Briseno, among Murphy other v. 606 Burns Texas — Ex Parte 1, 351, 608, (2005)(If (Tex.Crim.App.2004). 12 Va. 135 S.W.3d 269 609 S.E.2d 610 appellate court finds the mental pursue eligible 7. To Atkins claim to be is it claim not frivolous must remand "factual mentally capital considered sentenc- issue” mental retardation to determination.); court the trial ing purposes, a defendant must have a scienti- Flores, 759, State v. N.M. 135 recognized, scientifically fically approved and 1264, (2004); 93 P.3d 1266 Atkins v. Common contemporary I.Q. full scale test score 70 or wealth, 73, 514, (2003); 266 Va. 581 S.E.2d 516 I, 32, ¶ 31, Murphy below. Lott, 303, State v. 97 St.3d Ohio 779 N.E.2d at 567-68. met this threshold burden 1011, (2002)("Whether mentally 1014 Lott is re presented when he evidence of mental retarda- issue....”); disputed is a tarded factual Stall tion in the District Court it found that he had State, 1128, v. worth 868 So.2d 1180 I.Q. full scale test scores of 70 or from below (Ala.Crim.App.2001)(Defendant produce did not proper present tests and sufficient evidence to question sufficient evidence raise a of fact on question Murphy part of fact on the I three retardation.). Dunn, But see mental State v. 831 agreed definition of mental retardation. We 862, (La.2002)("This factual/legal So.2d 887 de remanded matter for this trial mental following hearing made termination must be retardation. during guided by which the court will be evalua I, ¶32, 39, diagnosis by expertise 8. See tion and 54 P.3d at made those with ("the retardation.”). Judge diagnosing District shall if Peti- determine there fact could have reached the same conclu- will verdict where not disturb sion. Id.9 reasonably tend- any competent ís еvidence State, 2004 support it. See Johnson v. g¶ Applying of review this standard ¶23, 10, 41, 44-45. When OK CR case, sup present the record we find sufficiency challenges defendant jury’s ports the verdict that is not mentally ability following jury finding that he intellectual

the evidence by throughout has been tested his life use of will re- is not this Court tests, I.Q. (F.S.I.Q.) intelligence- full-scale in the favorable light view the evidence most tests, screening partial I.Q. tests. His if rational trier to determine the State ranged on these from 66 scores various tests F.S.I.Q. ranged His scores on to 88.10 tests 1909275, WL which have announced a standard *6 Courts deciding capital defendant (Ala.Crim.App.2004)(utilizing post- review in whether a a "rule 32” retarded, give to the factu- is dеference procedure, gives deference conviction the court findings Only al lower one of tribunals. court); findings to the factual Gause, of the trial State v. Georgia, jurisdictions, has announced these 458, (Ala.Crim.App.2004); 892 So.2d determining deter- standard of review in Briseno, (Tex. and Ex Parte 135 S.W.3d 12-13 Georgia mination of mental retardation. Crim.App.2004)("We to the trial court's defer Court, appeal, Supreme on direct reviews the findings underlying factual his recommendation light the state in the most favorable to evidence Thus, supported they when are the record. of fact and determines whether rational trier judge's total to a trial afford almost deference that the fаiled to could have found defendant supported determination of historical facts proving meet the burden of his mental retarda- record, fact-findings especially those when tion at the time of crime. See Pittman credibility are based on an evaluation (1998). It Ga. 499 S.E.2d However, ruling demeanor. if the trial court’s Maryland appears dard, same stan- would use the record, supported by may the case is unclear. See Richardson but findings."). reject the Md.App. n. 6 598 A.2d Supreme gives The Florida deference to evidence, (1991)(“there including was abundant finding the trial court's State, of fact. See Bottoson v. testimony, appellant's a own from which fact ‍​​‌‌​‌‌​‌‌​​​‌‌‌​​​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌​‌​​​‌‌‍31, (Fla.2002)(giv- 813 So.2d 33-34 & n. 3 'adaptive might finder have concluded that his credibility deference to trial evalua- court’s ...''). 'impaired' was not behavior' finding court's determination tions trial standard, jurisdictions, stating have a Other by supported of no mental retardation was judges making give the decision deference to record). Supreme Arkansas Court reviews The California, findings. factual In the trial court's pre-trial finding that a defendant trial court's post-conviction mental retardation issues death determi- and affirms the using corpus procedures. are habeas reviewed supported by nation if it is substantial evidence. Hawthorne, 189, Cal.Rptr.3d 24 105 See In re State, 379, 397, 329 Rankin v. Ark. 948 S.W.2d (2005). for P.3d at 558-559 When remanded (1997). 403 evidentiary hearings, findings are entitled factual weight by great supported to when substantial Lucas, testing began 682, Myers's when he was around six 33 16 Cal. evidence. In re Rptr.3d Cal.4th 1954, 477, 331, I.Q. (2004)("findings years he old. In scored a 73 full scale 94 483 later, test, fact, years though binding, great three to on the Stanford-Binet but are entitled 1957, I.Q. weight supported by evi scored a scale on the when substantial in he 66 full later, dence."). ap years complet- Myers On direct habeas review or direct ten same lest. Over tests, peal, scoring intelligence-screening reviews the whole record in the court 79 ed two light judgment to or order most favorable 88 in 1969 and an in below, in and conflicts the evidence must 1973, I.Q. Myers full scale on In scored a 75 Torres, People People. favor of the resolved in Intelligence Adult Scale-revised the Wechsler 705, 213, Cal.Rptr. Cal.App.3d 215 218 267 (WAIS-R) Hospi- given at the State Osawatomie (1990). test, In he scored a 64 on tal in Kansas. this Appeals gives Circuit Court defer- The 4th I.Q. I.Q. performance a 93 on verbal the trial the fact finder and reviews ence to later, year Myers in scored an on One findings for United of fact clear error. court's intelligence-screening test. While incar- another Roane, Cir.2004). (4th 378 F.3d States v. Oklahoma, 1977, Myers a 77 scored cerated in Supreme use an In Court would Tennessee portion given I.Q. the verbal of an test on evaluating discretion” standard when "abuse of Hospital State in Oklahoma. Eastern finding. See Howell v. trial court’s I.Q. Myers full scale on In scored a 77 (Tenn.2004)(commenting 456 n. 3 S.W.3d Phillip Murphy, given Ph.D. WAIS-R Dr. would be that the "abuse of discretion" standard However, questionable are the results of this test used). Texas, WAIS-R at the time was obsolete appellate because Murphy court Alabama and was WAIS-R last findings administered it. The an abuse of reviews a trial court’s — So.2d -, III was released in 1981 and the WAIS-R Morrow v. revised discretion. See high only showing from a low of 66 to a of 11.11 His a certificate he had learned to weld F.S.I.Q. seventy test scores below occurred and fabricate metal. preparation in 1957 once and twice ¶ Myers lived himself and was able litigation of his mental retardation claim. In to maintain his home and take care of himself relied, Myers part, the district court on Myers several animals. assisted these three test to show he func- scores that care his wife she was dying as of cancer. significantly sub-average

tioned at a intellec- capable enough was He to follow directions however, jury, tual level. was also enti- and retrieve supplies. needed medication and Myers’s tled to consider test scores above died, Myers After his wife managed his own seventy and conclude he functioned at affairs, including refinancing financial his Further, higher I.Q. level. tests alone property. are not determinativе of the issue of I, Murphy retardation. ¶ Myers effectively to able commu- ¶ 31, 54 P.3d at 568. people. with nicate He was to able socialize acquaintances difficulty. Myers with without supports finding Other evidence others, could understand make himself un- Myers prove by failed preponder- to derstood, express his wishes and understand ance of the evidence that he functioned significantly sub-average plan the reactions of others. He intellectual level was able significant and that he had for future events. He adaptive func- was able mislead communication, and, tioning people limitations in aca- when confronted with inconsis- community stories, demics and use of as resources tencies his he conform could his witnesses, alleged.12 Many lay he both story to fit the facts. And there was evi- expert, Myers’s testified about functional Myers negotiated dence that grant his own ability adaptive functioning. and his These immunity with a sheriff in Kansas for a crime witnesses established that held a he committed there. This record does not regular job driver, as a truck and had suc- support finding functions at a passed cessfully for a the test commercial significantly sub-average intellectual level or allowing driver’s license him to drive trac- he adaptive suffers from deficits in func- rig. He tor-trailer had also worked as a We, tioning. therefore, find that rational warehouse, operator loading forklift in a and jury could have concluded was not unloading lading. trucks based bills of retarded as defined I. job required That complete him to classroom now turn oth training, proficiency training pass a propositions I, er Proposition of error.13 In written to test order drive forklift. the Myers claims He was also do that the district court’s instruc able to some work as a “pres mechanic and for a tion mental worked time in an auto- retardation must be shop. in prison, Myers motive age While ent and known” before 18 violates At simple Myers learned to read material argues and earned “present kins. that the given I.Q. in 1997. The approximately points WAIS-R III was the standard in test will rise Murphy every the at the years field time its out administered that the test is in existence. predecessor. dated Myers experts Murphy requirement 12. Myers’s F.S.I.Q. met the prepara Two tested second litigation age that his tion the his condition manifested itself before the mental retardation presented He Myers treating I.Q. of 18. evidence a claim. In a scored 66 full scale physician, Intelligence who him on the Wechsler treated for a broken thumb Adult 3rd edi Scale old, (WAIS-III) years given by impression when he was expert, Ray ten noted tion his an Dr. Hand, Ph.D, Myers "mental Myers retardation” on his and in chart. also scored a 69 on Call, presented given by evidence the test that teachers and other chil- same Dr. John the State’s expert. During Myers dren noticed and made remarks that he was this time a also took brief by I.Q. unlike normal children and at a Nancy form test functioned lower administered Dr. Cowar- test, F.S.I.Q. level. also a range din. this test score of 66 On he scored in a between years he was six when around old. 67-69. 11.Myers argues I, F.S.I.Q. Propositions that his scores above II III are raised in a "Flynn conclusory were influenced the effect.” The manner with bare citations to the "Flynn theory law, analysis. effect” states that on results record case but without higher quest to non-unanimous verdict forms a burden submit language known” creates trial, object- lаnguage jury. used in Mur- the At defense counsel to than the “manifests” to objected the dis- to the uniform instructions and verdict phy Myers’s I. counsel ed adopted jury to giving requiring the instruction forms the return unani- trict court I, 4- proposed advising now known OUJI-CR 2d Murphy as mous verdict. Counsel (2003 Supp.). Myers proposed the dis- it non-unanimous 68A could return a “present and known” drop providing trict court it with non-unanimous verdict and language in instruction and substitute overruled verdict forms. The district court age “originates before 18.” district objection, request and denied the used objection, re- denied the court overruled the adopted in the verdict forms Lambert. gave adopted quest, and the instruction ¶ Requiring a unanimous ver I. Murрhy will not disturb this of mental does dict the issue retardation ruling court’s here unless the district Atkins, I, Murphy or Lambert. not violate Williams v. abuse of discretion is shown. ¶ the likelihood that a It neither increases person will be executed ¶ are Jury instructions sufficient jurors particu does force to vote for a nor it whole, if, they state when read as position. A unanimous is also lar decision McGregor applicable law. in all required by our constitution crim state ¶ 23, used CR 1380. As misdemeanors. Okla. inal cases other than context, a tran word “manifest” is Const, II, provides § 19.14 Lambert art. word “known” is an ad sitive verb unanimously procedure for a that cannot jective. Unabridged The Random House agree that a defendant is perceived or Dictionary defines “known” as instance, In that the benefit doubt truth; apprehended as or understood fact goes to and the district court the defendant certainty. “know” & clearly and with See imprison to life resentences defendant (2nd Dictionary House “known” Random possibility parole. Lam ment without ed.1997). as make It defines “manifest” “to ¶ 5, bert, 71 P.3d at 32. 2003 OK eye or under clear or evident to Atkins, Murphy Nothing in I or Lambert prove; put standing; plainly ... show happens if requires to be told what beyond question.” “manifest” doubt or See This it reach unanimous verdict. cannot ed.1997). (2nd Dictionary House Random claim is denied. “present find 14 We words everyday un- known” are of common words III, Proposition derstanding require level that do ‍​​‌‌​‌‌​‌‌​​​‌‌‌​​​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌​‌​​​‌‌‍by deny court erred claims that the district required prove that a proof above that quash his the venire motion to as it “manifested” itself. “Known” condition selection, change At the start of venue. in this instruction used relates change arguing for a of venue moved finding require ease scientific does a fair he could not receive I, diagnosis. 2002 OK medical See Rogers County because of exten trial ¶32, The n. at 567 n. 19. CR 31 coverage previous capi of his two sive media only perceived has to have been The district court denied murder trials. tal defen- recognized by or someone before the Myers thе to renew the motion and advised age of 18. court’s dant reached the The juror of bias there be evidence motion should accurately applicable stated the instruction coverage during selec on based media district law therefore we that the and find Myers his motion several tion. did renew giving court not abuse its discretion did the during jury arguing that times selection this uniform instruction. pub jurors previous about the questioning of ¶ the II, licity surrounding murder cases and Proposition that his Myers In claims 15 they stating knew jurors number of by denying his re- the district court erred cases, In curring power to a verdict. part, have render provides in "In shall civil Section felonies, jurors of must cases the entirе number three- all other criminal cases less than (3/4) jurors render verdict.” of con- concur to of whole number fourths the Dowd, something citing entire P.3d. at about them tainted the Irvin 366 U.S. Myers’s 1639, 1642, pool. The district court overruled 81 S.Ct. L.Ed.2d (1961). quash change motions the venire and ven- Irvin The court stated: ue each time he renewed them. as- however, required, jurors It is not that the the court abused its serts that district discre- ignorant totally be of the facts issues repeated denial tion because the court’s of swift, days involved. these wide- him trial deprived his of a fair with a motions spread and diverse of communica- methods impartial jury.15 fair and tion, important can expected case public arouse the interest ¶ reviewing 18 In this claim on vicinity, any scarcely of those best totality cir appeal, we evaluate qualified jurors to serve as will not have surrounding Myers’s mental re cumstances impression opinion formed some or as to tardation trial to determine whether of the particularly merits case. This is impartial jury.16 fair was tried before a true in criminal cases. 19, ¶ 20, DeRosa 2004 OK CR appeal Irvin, 722-23, On focus 366 U.S. at 81 S.Ct. at 1642. jurors might es who have not been ¶21 record The shows the district court jurors impaneled, actually but on the who carefully conducted selection to avoid DeRosa, impaneled. were tainting the entire venire. At no time were ¶ 21, 89 P.3d at 1135. We review record the details the crimes revealed to the jurors if Myers’s to see before whom potential jurors through selection claim of mental tried retardation was were process. Questions carefully were tailored so lay any prior knowledge able to aside potential jurors prior those who had case, opinions regarding the and render a knowledge say revealing could so without upon presented verdict based the evidence specific information. district exer The court juror impar court. “Because evaluation of pro cised extreme care to ensure that those tiality inquiry, largely is a upon factual based spеctive jurors knowledge prior who had did determinations, credibility numerous not infect did venire and not serve. change not a denial Court will reverse of Myers jurors has shown that the seated motion showing venue absent abuse of impartial. his case were not fair and Ac court.” discretion the trial Id. 1135-36. cordingly, we find that the district court did ¶ The record shows the district court failing quash abuse its discretion in prospective voir conducted extensive dire of change venire venue this case. See jurors regarding prior knowledge DeRosa, 19, ¶ 33, their 89 P.3d. Myers’s potential jurors cases. Nine were required. 1139-40. No relief is they removed cause because had some prior knowledge. Further, juror one DECISION during removed the trial because she remem- jury’s factually verdict is substan- something bered about the murder cases finding tiated. AFFIRM listening testimony

while to the of Mark is not retarded as defined in Mur- Marzano, the husband of murder victim Cin- Further, phy Myers’s I. we find other dy jurors who Marzano. None delib- justify Myers’s claims of error do not relief. they prior knowledge erated stated application post-conviction DE- relief is charges. about murder 3.15, NIED. Pursuant to Rule Rules right Appeals, “The Sixth Amendment to Oklahoma Title Criminal guarantees criminally Ch.18, (2005), trial App. ac the MANDATE is panel fair impartial upon cused a trial ORDERED delivery issued ¶ DeRosa, 19, jurors.” 17, filing 2004 OK CR of this decision.

15. district court noted on the record that 16. that his оne of does contend case is percent "jury the rare cases where so pool” media influence was ‍​​‌‌​‌‌​‌‌​​​‌‌‌​​​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌​‌​​​‌‌‍less than ten of the entire pervasive prejudicial prejudice and must prior knowledge of the case. 19, ¶ DeRosa, 19, presumed. See 2004 OK CR ¶ 22, 89 P.3d at 1135-36. jury gives proper deference to de CHAPEL, P.J., and standard C. JOHNSON at hand and is LEWIS, on the issue concur. terminations JJ: of review for with the standard consistent LUMPKIN, concur. specially V.P.J.: by the sufficiency of the evidence announced LUMPKIN, Presiding Judge: Vice v. Supreme Court in Jackson States United Specially Concur. 319, 2781, 307, Virginia, 443 U.S. S.Ct. ¶ retardation has (1979), of mental 1 The issue 2789, applied as 61 L.Ed.2d 560 challenging for this particularly proven to be Spueh in throughout years the this Court capital capital of in its review Court ¶ ler v. 1985 OK CR However, Judge appeals. post-conviction decided thereafter. 203-04 and cases thorough and provided has Johnson Arlene ¶ review, 4 This standard is not de novo applies it in scholarly analysis of that issue as entirety the look at the where we would case,1 helped doing has so this weigh objectively and then which evidence sticky in our issues resolve several Court Rather, stronger case.2 jurisprudence. side made the mental retardation rejected a mental where a has situations foremost, sets forth this ease 2 First and claim, give we the evidence of review this all-impоrtant standard case the prevailing party, appeal when a defendant will use on that evidence of the doubt wherever benefit sufficiency the evidence challenges the truly in it is one those is conflict.3 Unless finding that he or she is not following jury say can a rational “[wjhen rare situations where we is, That the de- mentally retarded. this conclusion juror could not have drawn sufficiency of the evi- challenges the fendant evidence, jury’s determination jury finding that he is from this following a dence And, will review the I state that mentally upheld. must must be to the light prejudice most favorable showing passion evidence absent a of fact if rational trier to determine State those situations making process, the decision same conclusion.” have reached the could tooth” rare. As the Court’s be “hens should states, evaluating questions of fact “In order review, which I with This standard by jury give great deference to we decided objec- wholeheartedly agree, an establishes jury’s finding. will not disturb enable the District Courts test that will tive any competent is jury verdict where there law applicable litigants to understand tending support it.”4 Moreover, reasonably accordingly. evidence respond did, viewing when post- found” as the have Petitioner's second case arises from 1. This pre- light to the favorable in the most application raised a men- evidеnce in which he conviction gives vailing party. standard Virginia, Id. "This familiar under Atkins v. claim tal retardation responsibility fact play of the trier of L.Ed.2d 335 full 122 S.Ct. 536 U.S. (2002) testimony, State., fairly in the to resolve conflicts evidence, in- weigh to draw reasonable for an first remanded 556. This Court P.3d evidentiary hearing that, and, facts.” Id. to ultimate following from basic facts ferences Under retardation issue. trial on the mental circumstances, routinely presumptions remands when this Court is in line with normal 3. This make, evidentiary hearing regularity proceedings, our under of the for an that of a matter like Act, instruction, solely hearing following constitution- Relief its Post-Conviction of ality enacted, evidentiary developing rec- conduct purpose and of counsel’s a law for the range falling assistance of of ineffective a wide of reasonableness. on the issues within ord the limited cate- innocence. or actual counsel gory retarda- the issue of mental of cases where hope will take My is that this Court sincere however, post-conviction, the hear- judicial tion arose in seriously re- and exercise these words determining if Petitioner purpose of is for the reviewing jury on the issue verdicts when straint opportunity deprived to have Virginia of the ac- Atkins v. retardation. of mental original the issue of mental trial decide against his or her ex- knowledged a natiоnal consensus However, retardation. ecution mentally re- people to be who claim all "[n]ot impaired within the as to fall Indeed, explained, will be so Virginia tarded Jackson v. as offenders about range what it believes. not "ask itself” court does Rather, consensus.” Atkins a national whom there is the Court at 2789. 99 S.Ct. U.S. at 2250. In 122 S.Ct. Virginia, U.S. "any of fact could rational trier asks whether ¶ Secondly, applying determinative, that standard of not alone the nu- defendant’s facts, the order in this IQ range review case merous scores in a that would not observes, however, correctly jury, “The him qualify mentally even in the mild also entitled to consider test scores range strong retarded is evidence he that is seventy conclude he above and that func- not mentally retarded. Thus, higher at tioned level.” the case ¶ Third, Myers acknowledges defen- that recognizes Myers presents one of those dants produc- have threshold burden of cases, difficult mental retardation with con- ing IQ acceptable at least one test score flicting placing evidence him at either or figure “margin below. It doesn’t in a very top mildly mentally of the retarded error,” effectively which would raise that or, likely, range solidly in the more border- A margin IQ threshold. error in scoring Here, intelligence range. jurors line require doesn’t the 70 threshold set forth in thoughtfully pre- considered evidence Murphy and this case to be raised. It sim- sented reached understandable deci- ply IQ means a defendant with borderline mentally sion that is retarded. may need to take the test several If a times. ¶ 6 This decision is consistent with Atkins produce IQ defendant cannot at least one Virginia, which described mental retarda- showing test operating defendant at least “disabilit[yj” tion “impairment” as or mentally within mild range, retarded reasoning, judgment, impulse control. way then going there is no he is to be able to Quoting 536 U.S. S.Ct. at 2244. prove mentally he is retarded at trial. More Psychiatric Association, from the American importantly, person he is not a who men- Supreme explained Court that mental tally although may he have some pathway retardation is a “final common learning types prob- disabilities or other processes pathological various that affect the lems. functioning system,” of the central nervous age onset which “must occur before finally, 9 And I spirit admire the Id., years.” n. U.S. S.Ct. tone of this decision. honors concept It is, therefore, at 2245. Mental retardation of stare wisely prim- decisis and builds on our cognitive begins defect manifesting at a eases, attacking than rather them. Orn- very young age and is irreversible. dealing eases with the issue mental retar- law, wildly fluctuating IQ 7 But dation should be applying about" scores, a 22-point personаl opinions difference with the low at about the penalty. death odd, high at 88. This is and not reality at all consistent with the of someone disability a lifelong

who had in the function- system. of his central nervous A truly

mentally person IQ retarded will not have

scores that bounce back and forth over so spectrum.5 IQ

broad a And while tests are words, competent reasonably other a line must be tending sup- drawn somewhere. evidence job sorting through The difficult the facts and port it. No one would want Court that claims determining mentally who is who is not adopt applies one standard of review but then ultimately upon properly will retarded fall in- standard, review, say a lesser de novo whenever jurors, judges. structed it not five And stands to majority disagrees of the Court with the trier of greatest challengеs jurors reason will fact's difficult decision. regard face in that will be to evaluate those place IQs individuals with them Indeed, DSM-IV-TR at 42 indicates that when range just "mild” above. scores, significant IQ there is a scatter test id., See 536 U.S. at n. 122 S.Ct. at 2245 weaknesses, profile strengths rather than (" typically 'Mild’ mental retardation is used to score, mathematically IQ derived will more people IQan describe approximately with level of 50-55 to accurately learning reflect one's abilities. 70.”) anticipate I that members words, great IQ ‍​​‌‌​‌‌​‌‌​​​‌‌‌​​​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌​‌​​​‌‌‍other fluctuation in scores always personally agree will not determination, something right, jury's indicates is not and should be with the but under the stan- today, ipso adopts person dard of review the Court accept evidence the is not must facta long their so decision as there is

Case Details

Case Name: Myers v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Nov 17, 2005

Citation: 130 P.3d 262

Docket Number: PCD 2002-978

Court Abbreviation: Okla. Crim. App.