Darrin Lynn PICKENS, Petitioner, v. STATE of Oklahoma, Respondent.
No. PCD 2002-983.
Court of Criminal Appeals of Oklahoma.
July 23, 2003.
2003 OK CR 16 | 74 P.3d 601
¶1 Petitioner, Darrin Lynn Pickens, was convicted by a jury in Creek County District Court, Case No. CF 1990-66, of First Degree Murder, while in the commission of Robbery with a Dangerous Weapon, in violation of
¶2 On October 14, 2002, Petitioner filed a Second Application for Post-Conviction Relief, pursuant to
¶3 In this second Application for Post-Conviction Relief, Petitioner raises two claims:
- In light of the Supreme Court‘s recent ruling that executions of the mentally retarded are cruel and unusual punishment, Petitioner‘s death sentence should be vacated and modified to a non-capital sentence. In thе alternative, this case should be remanded for an evidentiary hearing to determine whether Petitioner‘s mental disabilities bar his execution, and
- The trial court‘s failure to instruct the jury that a critical factor in the sentencing stage had to be found beyond a reasonable doubt deprived Mr. Pickens of a fair sentencing determination in violation of the Oklahoma Constitution and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitutiоn.
¶4 Petitioner seeks review of Proposition Two on the merits as Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) set forth a new rule of constitutional law that was unavailable at the time of Petitioner‘s original Application for Post-Conviction Relief. See Rule 9.7(D) & (G), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). Petitioner claims the jury instructions in his case were unconstitutional under the standard set forth in Ring, because the jurors were not instructed it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.2 Petitioner argues the weighing determination is the essence of the decision the jury must make to impose the death penalty аnd thus must be proved beyond a reasonable doubt. Petitioner claims the failure to instruct the jury it must find the aggravating circumstances outweigh the mitigating evidence beyond a reasonable doubt “infects the very structure” of the capital sentencing proceeding and can never be harmless.
¶5 We considered and rejected this claim in Torres v. State, 2002 OK CR 35, 58 P.3d 214. There, we recognized the substan
¶6 The requirement set forth in Ring is satisfied by Oklahoma law which requires the jury to unanimously find any aggravating сircumstance beyond a reasonable doubt. Id. The instructions given in the second stage of Pickens’ trial satisfied this requirement and did not violate either the federal or Oklahoma constitutions. See Exhibit G, filed in support of Application. Therefore, post-conviction relief on Proposition Two is not warranted.
¶7 Petitioner argues review of Proposition One is authorized by Section 1089(D)(9), because the legal basis for the claim “was not recognized by” a final decision of the United States Supreme Court, until that Court‘s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Prior to that decision, the execution of the mentally retarded was not considered cruel and unusual punishment under the Eighth and Fourteenth Amendments. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We rejected this claim in Petitioner‘s direct appeal based upon the Penry decision. Pickens, 2001 OK CR 3, ¶ 51, 19 P.3d at 883. We agree with Petitioner that review of this claim on the merits in this subsequent post-conviction application is authorized by the plain language of Section 1089(D)(9).
¶8 We also review this claim as a “new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state and had not been announced before that date.”
¶9 It is clear the United States Supreme Court recognized a new constitutional rule barring the execution of the mentally retarded would fall outside Teague‘s ban on retroactive application of new constitutional rules because it placed the State‘s ability to execute that class of persons beyond the State‘s power. Penry, 492 U.S. at 330, 109 S.Ct. 2934; Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002). In Murphy v. State, 2002 OK CR 32, ¶ 28, 54 P.3d 556, we recognized that, in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), mentally retardеd persons are no longer eligible for the death penalty. Murphy clearly shows this Court‘s intention to apply Atkins retroactively to those persons already on death row. Murphy at ¶ 36, 54 P.3d at 569.
¶10 We initially remanded this case for an evidentiary hearing on the issue of mental retardation. See Order Granting Motion for Evidentiary Hearing on Propоsition One of Second Application for Post-Conviction Relief, Pickens v. State, PCD 2002-983 (Okl. Cr. November 19, 2002) (not for publication). We thereafter ordered the evidentiary hearing held in abeyance and directed the State to respond to Pickens’ Second Application for Post-Conviction Relief. See Order Granting Motion to Hold Order Granting Evidentiary Hearing in Abeyance; Order Directing Response, Pickens v. State, PCD 2002-983 (Okl. Cr. December 13, 2002) (not for publication). The State of Oklahoma filed its Response on February 14, 2003.
¶11 Petitioner‘s Atkins claim of mental retardation must be resolved pursu
¶12 Wе recently set forth the procedure to be followed on remand in Lambert v. State, 2003 OK CR 11, ¶¶ 3-5, 71 P.3d 30, 31-32, and that same procedure should be followed in this case.
¶13 Accordingly, as set forth in this Order, post-conviction relief is DENIED on Proposition Two and GRANTED on Proposition One. It is the order of this Court that this case be REMANDED to the District Court of Creek County for a jury hearing on the issue of mental retardation, in accordance with the procedures set forth in Lambert. The hearing shall be held within one hundred and twenty (120) days from the date of this Order. The trial court shall file findings of faсt and conclusions of law, including the jury‘s determination and any sentencing disposition, in this Court within forty-five (45) days from the conclusion of the jury proceeding.
¶14 IT IS SO ORDERED.
¶15 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 23rd day of July, 2003.
/s/ Charles A. Johnson.
CHARLES A. JOHNSON, Presiding Judge.
/s/ Steve Lile.
STEVE LILE, Vice Presiding Judge.
/s/ Gary L. Lumpkin.
GARY L. LUMPKIN, Judge.
/s/ Charles S. Chapel.
CHARLES S. CHAPEL, Judge.
/s/ Reta M. Strubhar.
RETA M. STRUBHAR, Judge.
LUMPKIN, Judge, Dissents.
¶1 Remanding this case for a jury determination on the issue of mental retardation is premature at this time and essentially “skips a step” in the Murphy analysis. In support of his claim, Petitioner has presented the following: 1) a copy of his first application for post-conviction relief showing the issue of his mental retardation has been raised previously; 2) a copy of the trial testimony of Dr. Hesson concerning his expert opinion on Petitioner‘s mental age and the contributing factors to that conclusion; 3) an affidavit from Dr. Mark Cunningham, Ph.D., concerning his June 2001 evaluation of Petitioner and his findings that before Petitioner was 18 years old he had IQ test scores ranging from 70 to 77, he had significant deficits in communication caрabilities and social/interpersonal skills, and he was placed in Educable Mentally Handicapped classes in school. Also included is an affidavit from Leatha Brannon, a correctional teaсher at the Jackie Brannon Correctional Center, wherein she states that while Petitioner was incarcerated at the center he struggled to learn and that she did not have any problems with Petitioner.
¶2 The evidence set forth above is not the quantum of evidence presented in Lambert1 which warranted a remand for a jury determination on the question of mental retardation. The information provided to this Court at this point is nоt sufficient to create a question of fact on Petitioner‘s mental retardation. It is sufficient only to warrant remanding this case to the trial judge for an evidentiary hearing on the issue of mental retardation. While we remanded the case for that purpose, such an evidentiary hearing has not been held in this case due to the stay subsequently entered by this Court. To hold such a hearing at this juncture provides both parties the opportunity to fully present evidence in an adversarial proceeding as to whether Petitioner has raised sufficient evidence (at trial, on appeal, or at the evidentiary hearing) of his mental retardation, in accordance with the definition set forth in