*1 sаy, weight to that the Courts of no can be may repugnancy, of a substi- pretense pleasure to the Constitutional own
tute their legislature”, or this case
intentions of a of Oklahoma duly valid verdict
citizens.
¶21 Myers, According to “We will jury verdict where there
disturb the reasonably tending to
competent evidence ¶22, 7, it.” 2005 CR
support
OK
If.
that were
true.
LEWIS, part/Dissents Judge, Concurs part. reversing in this the verdict concur modifying I dissent to
case. for a reverse and remand
sentence. would of mental
new trial on the issue retardation. SALAZAR, Appellant Lee
Maximo Oklahoma, Appellee.
STATE
No. PCD-2002-984. Appeals of Oklahoma.
Court of Criminal
Dec.
626 Court, 1987-460,
District Case No. CRF Murder, Degree Aforethought First Malice O.S.Supp.1982, § violation of 21 701.7 (Count 1) Burglary Degree, the First (Count 2). O.S.1981, § in violation of 21 (3) aggravating The found three circum- punishment stances existed1 and set at death (10) years for the murder and imprison- ten burglary. ment for the The trial court sen- accordingly. tenced Petitioner ap- On direct peal, we affirmed Petitioner’s convictions for burglary, murder and but vacated the death sentence and remanded the case for resen- State, 21, tеncing. v. Salazar 1993 OK CR sentencing proceeding852 P.2d 729 . A new McCall, was held before the Honorable Allen Judge, 14-17, 1994, District on November jury again and the returned a sentence (1) death. The aggravating found one appealed, circumstance existed.2 Petitioner again this Court reversed and remanded the case for resentencing hearing. a second State, 25, Salazar v. 1996 OK CR 1120.
¶2
sentencing
A third
hearing was con
McCall,
ducted before the Honorable Allen
Judge,
28-31,
on October
1996. The
Bryan
Dupler,
Alredge,
Lester
Laura M.
jury again
death,
returned a sentence of
Adams, O.I.D.S., Capital
Ruth
Vicki
Post
(2)
finding the existence of
aggravating
two
Division, Norman, OK, Attorneys
Conviction
circumstances —that the murder was commit
for Petitioner.
purpose
ted for the
avoiding
preventing
or
Elmore,
Generаl,
Attorney
Brant M.
Asst.
prosecution,
a lawful
or
arrest
and that Peti
Edmondson,
General,
Attorney
W.A. Drew
posed
continuing
society.
tioner
'threat to
OK,
City,
Attorneys
Respon-
Oklahoma
appeal,
On
we affirmed Petitioner’s death
dent.
State,
70,
sentence. Salazar v.
[t]he should not hear evidence of the crime for which Petitioner was sentenced convicted, crimes for which was [Lambert] to death.7 Nazari, special 4. Patt education teacher in Ard- formed Drs. Close and Kaufman —both which more, Oklahoma, taught (67) Petitioner in the Ard- sixty-seven reflected scores between and Development more (83). Center. She eighty-three testified he IQ given The last test was (50) (70) fifty seventy scored between IQ and on an April Petitioner in Dr. John Call and placed learning test to be in the disabled (68). sixty-eight Petitioner scorеd a center. Nazari testified she considered Petition- Gilliam, mentally er retarded. Aliene also an performed poorly 6. Dr. Price testified Petitioner students, learning Ardmore teacher of disabled Scale, Independent Living adaptive on the test of "significant subaverage testified Petitioner had significant abilities. Petitioner had deficits and functioning” intellectual and said she considered average. scored below Dr. Price also reviewed mentally him to be retarded. personal reflecting poor histories Petitioner had personal hygiene suggested adaptive which 5. Patt fifty Nazari testified he scored between functioning personal deficit in the area of care (50) seventy and Dr. Samual Sherman hygiene independent and life skills. (65) sixty-five testified Pеtitioner scored portion Intelligence verbal of the Wechsler Adult mildly mentally presented Test and was in 7. The State eleven witnesses who retarded testi- crimes, range. Dr. Sherman testified his fied about Global Assess- Petitioner's commission of (38) thirty-eight during ment Score investigation was which is "a about his behavior crimes, of his fairly functioning.” serious low level Dr. and about his behavior incarcerat- while prior intelligence per- Randall Price noted tests ed. were invalid gists who testified for Petitioner expert presented two also 10 The State intelligence regard to one of Peti- or unreliable. With dispute Petitioner’s witnesses these experts, suggested One of Dr. it was and evidence. tioner’s Call scores Call, the record was John tests” that have witnesses “unethical to administer рersua- most was the State’s shows Call not fall within. Dr. Call norms Petitioner did disa- pivotal witness. Call and most sive testing, Dr. Randall Price’s also refuted psychological Petitioner’s forensic greed with by claiming Dr. Price utilized “a part, testified that Petitioner witnesses who malingering test” and that non-standardized testified that retarded (Dr. Call) have administered a would not IQ reflecting a score lower each Dr. Call stated “[I]t’s non-standardized test. seventy invalid for one reason than with a board not a norm—it’s not norm to the was crucial another. His psychologist” to administer certified forensic it was he who discredited position, as State’s was unethical not a test. He also said it such of Petitioner’s wit- contradicted each report of the test. Dr. Call the results nesses. believed he had nevеr done testified of Dr. Price’s work sus- that made the rest Among things, Dr. Call testified other malingering. pect. He be- that Petitioner he, malingering when
lieved Petitioner only partially 13 The above illustrates the Adult Weehsler *5 upon relied extent to which the State Edition, Scale, and obtained Intelligence 3rd testimony primary as its wit- expert Call’s IQ of Dr. Call adminis- a full scale score and rebut Petitioner’s evidence ness to refute Memory Malingering of tered the Test Respon- Review of of mental retardation. (TOMM) Symptom Forced Choice Va- and a Respondent Supplemental dent’s Brief shows two lidity one of the Test. He described testimony upon Dr. almost exclu- relies Call’s one “malingering” tests he administered as sively claim that to refute Petitioner’s twenty-five showed Petitioner which he contrary the clear jury’s verdict was to him and asked to memorize common words weight presented at trial. It of the evidence anoth- gave Then he Petitioner those words. Respondent’s brief from review of obvious twenty-five pairs asked word er list of vitally testimony was that Dr. Call’s alone identify the words he had been Petitioner ease, partly important and it is to the State’s Dr. Call testified: asked to memorize. allegations raised for that reason that the words, by you If had never seen the support- Affidavits Proposition Six chance, get fifty percent ap- you would — Supplement the Record ing the Motion by just fifty percent correct proximately this concern. caused odds, odds guessing ... The the statistical you get no words correct are that would ¶ Proposition and in the Motion 14 In Six astronomical, un- so astronomical as be and Affidavits Supplement the Record likely, highly improbable occurrence. thereof, claims support Petitioner filed technique, Mr. Sala- particular that On relating to newly evidence that discovered twenty-five six words out of zar obtained testimony requires expert witness Call’s correct, probability point zero which is a or mod- a new determination remand for two, of a hundred. two chances out zero claims Dr. Petitioner ification of sentence. say a statisti- In science we ivould that’s scientific upon a non-standardized Call relied suggests cally significant event and that results, created, and its test which malingering. refuting ex- testimony Petitioner’s bolster his added). to talk (emphasis Dr. Call went on mеntal- findings Petitioner perts’ that was/is psychological “norms” for argues about Petitioner ly for retarded. Counsel admin- malingering tests he and testified the testing” “non standardized type is the “trying showed he was istered to Petitioner attacked Petition- pointedly Dr. Call which he is not.” retarded when to look utilizing and for key expert witness er’s expert’s ethics and questioned that which he that all the standard- 12 Dr. Call testified findings. by psycholo- test results obtained ized evidentiary Petitioner hearing 15 Counsel for admits that 18 An was conducted 29, 2004, on before June Allen procedure, specifically Honorable Call’s his ad- McCall, Judge. Two witnesses testi- Symptom ministration of a Forced Choice attorney represented fied—the who Petition- Test, Validity specifically challenged er at-the trial mentаl by counsel in Petitioner’s mental retardation expert John the State’s witness. trial. 2 of Counsel for states at f Certain were admitted exhibits into evidence the time of “[a]t Petitioner’s Brief cross- at the hearing, which included the Affidavits examination, believed that other counsel Supplement attached to Motion to Validity Symptom ‘Forced Test’ Choice men- Record, juror questionnaires, three Dr. Call’s report published, tioned Call’s another report and the Raw Data of Dr. The Call. alleged malingering. standardized measure trial court considered the questioning Counsel therefore avoided which witnesses, two parties, the exhibits of the give could further chance to ex- transcript of Petitioner’s mental retardation pand opinion on his about based trial, and its the file. review on its results.” Counsel Petitioner also Judge Findings McCall filed notes “Dr. forensic credentials and Fact and of Law in Conclusion this Court membership in Oklahoma Bar entitled July transcript 2004. The of the eviden-
him presumption to an initial that his testi- tiary hearing filed in Sep this Court on mony about forensic facts be basic give tember 2004. This Court will accurate and above board.” findings trial strong sup court’s deference if ¶ 16 attached record, The Affidavits to the Motion ported but we shall determine Supplement reflect evidence ultimate issue whether trial counsel newly-discovered was ineffective or whether discovered counsel until e.g. warrants new trial. after the on mental See Pat retardation. terson v. P.3d counsel for Petitioner admits that *6 925, 930; State, 21, Glossip to thе extent this evidence was discoverable ¶ 20, 602; 3.11(B)(3)(b)(iv), Rule trial, prior to mental Petitioner’s retardation Rules the Oklahoma Court Criminal failing of Petitioner’s counsel was ineffective for of Ch.18, (2004). Appeals, App. Title to discover utilize it. and ¶ 20 to regard With whether evidence newly In the claim consideration Dr. Call’s use of test non-standardized and discovered evidence claim Petitioner’s (which he and named created after his secre- that his to failing counsel was ineffective for tary support opinion to his that Petitioner evidence, discover the we remanded this mat- malingering faking mental retarda- ter evidentiary to the Court for an tion) prior to available men- Petitioner’s hearing. Remanding See Order to Dis- the hearing, tal retardation the trial court found: Cоunty trict Court of Comanche for an Evi- appears ... while there to be some confu- dentiary Hearing, Salazar v. PCD naming sion over ques- the test in (Okl.Cr. 4, 2004)(not publi- 2002-984 June tion, the actual test and in results were cation). Order, By that we noted this possession of the defense prior well availability Court’s concern “with Petitioner’s mental retardation This trial. prior evidence mental to Petitioner’s retarda- “newly does appear be situation of hearing, tion the effect the evidence would discovered evidence.” expert’s testimony have had on the State’s agree finding. We with this Dr. Evidence of determination, and the mental retardation Memory Call’s use of “Blackwell Test” whether the to discover failure and utilize prior was available to counsel to the mentаl this strategy, evidence was trial and whether trial; jury retardation the raw data for the impacted the evidence would have the verdict by test was turned over the State in discov- ery.8 rendered.” discovery Petitioner's from the counsel mental retarda- Call's raw data con- in this data Memory the State admitted turned over Dr. tained Dr. Call's "Blackwell Test.” Peti-
¶21 finding retardation trial and certain exhibits admit- court’s second The trial hearing, have evidentiary this evidence would at the shows related the effect ted this testimony expert’s and the on the greatly had State’s affected evidence would have The trial mental retardation determination. credibility as a witness and the state- Call’s court found: ments he which discredited Price made during evidentiary testimony expert and all of witnesses. hearing test which was indicates that the trial, prefaced 22 At the Dr. Call his newly thought discovered to be expert by telling jury he testimony was a malingering which he had fact a attorney licensed and he was board certified secretary an attempt named his after by Psy- of Professional American Board disguise from the test taker nature chology and the American Board Forensic delivery expla- test. While Psychology. “I’m He stated one in using smug, nation his reason about two Oklahoma there’s hundred for his pseudonym” “administrative version world that are board certified forensic Symptom Validity of the Forced Choice expert psychologists.” the other wit- (FCSVT) Unlike acceptable Test and would trial, nesses who in Petitioner’s had testified
have had little or no effect his overall cross). (direct “unique” Dr. Call held himself out as ex- testify He pert suited this area. stated totality of the evidence submit- Given the support there was sufficient data to Peti- jury during ted Petitioner’s mental trial, extremely unlikely it is tioner’s claim of mental retardation. that the confusion of this “administrative ¶ Dr. Call admitted he administered the pseudonym” have had effect on Intelligence Third Wechsler Adult Scale Edi- mental retardation determina- Range tion and the Achievement Test Wide previously, tion. As was an indicated Third Edition and administered two malin- jury, very attentive fair outstanding gering tests if Petitioner was to determine minded to all witnesses and counsel. The putting forth On those his best efforts. tests evidentiary by the presentations State administered Petitioner obtained it appeаred excellent and were IQ sixty-eight a full scale score of to the the instructions were Call stated and followed understood showed Petitioner was arriving There in the at the verdict. exists perform capacity at his not motivated “to record to believe the no reason *7 Dr. by jury when administered the test.” Call retardation determination malingering would different based on to the two have been went describe “newly those discovered evidence.” tests he administered —one of tests we Memory now know was the Blackwell Test. portion finding, we a of this agree While with test, said Petitioner’s ex- On Dr. Call cannot the trial conclu- agree we with court’s was tremely suggested low score he malin- discovery that of this relat- sion virtually Dr. that gering. Call then testified Dr. ing to use of a non-standardized every intelligence to Peti- test administered test, which administered to Petitioner and he professionals other health tioner mental secretary, named his would have had after from them were testimony. scores obtained little or no his Review effect on record, including the invalid for various reasons. of the mental entire questioning give charged which could he "could be therefore avoided tioner's counsel admitted knowledge Memory opin- the Blackwell Test expand Call a further chance along period," but stated he did not that time malingering results." about based on its At ion know a know what was and did not it was it hearing, explained evidentiary counsel Further, a Petitioner admits in test. prepared witness on the he cross-examine "[a]t in his Brief that tion, the time cross-examina- recognized Memory Malingering widely Test of believed that other 'Forced counsel (TOMM) generally only familiar with but was Symptom Validity Choice Test' mentioned validity symptom choice because forced published, report Call's another standard- was many. there were so malingering. alleged ized Counsel measure trial, within mental retardation Mr. Schulte: Is that norm At the profession? test re- Dr. Call discredited Cowardin’s Test from Kaufman of Education sults Dr. Call: It’s not a norm —it’s not norm from Detroit Test of psycholo- Achievement and with a board certified forensic stating Learning Aptitude, gist. these tests were person appropriate” for a “not yourself? Mr. Schulte: Such as reported Petitioner age; Dr. Cowardin Dr. Call: Correct. (69) sixty-nine on the Kaufman achieved a Dr. Call criticized Dr. Price’s use of this test Test, popu- percent in the bottom two of the report his failure to the results as show- lation, range he of a and that scored ing malingering. Petitioner was He testified (6) (11) year old on six to eleven the Detroit perform it be that would unethical malin- He concluded his about Dr. Test. results; report gering test and not he by testifying results her methods Cowardin’s per- testified it would make the rest of the were unethical. “suspect” very work him. son’s effectively testified for the State trial, 25 At findings opinion Price’s and his that Petition- reported Dr. Call discredited the test results was not be con- er retarded should by Dr. previous Sherman. Dr. Sherman’s suspect sidered because his was testimony was into rec- sworn read the trial Dr. Call’s tests showed Petitioner malin- ord. Dr. worked at State Sherman Eastern gering. Hospital during the time Petitioner was sent competency to attain trial. there stand colloquy 27 What the above shows is that portion Dr. Sherman administered the verbal effectively Dr. Call discredited Petitioner’s Intelligence of the Wechsler Adult Test to they experts by claiming improper used test- while he at Eastern State ing procedures, by using tests not “normed” Hospital, sixty-five Petitioner, and Petitioner scored a person prop- for a like (65). Petitioner’s Global Assessment Score erly reporting the results. Dr. Call Had (38), thirty-eight “fairly which was a things, done the exact same there be functioning.” serious low level of Dr. Call problem. no “in- discredited Dr. Sherman’s results as court, findings, The trial its stated valid,” because Sherman adminis- pseudo- Dr. Call’s use of an “administrаtive test; half did tered not administer nym” Symptom for the Forced Choice Validi- performance portion. ty Test he administered to Petitioner was trial, discovery its 26 At the Dr. Call invali- reasonable and would have had also testimony. little or no effect on his dated Dr. Randall Price’s Petition- We disagree. following transpired The evidence after trial er and his results. The obtained up Dr. Call himself at trial: shows had made non-standardized test to Peti- Doctor, go Mr. Schulte: I’d like to to Dr. pursuant tioner and it not administered you Price. I believe received his raw accepted scientific norms. Dr. Call’s let- data ... *8 Attorney, ter to the Assistant District Peti- 2, attempts tioner’s Exhibit to convince the accepted reader that his test was and reli- your there, findings What were sir? However, Dr. at able. Call’s admissions the Well, a neu- performing Call: he was evidentiary hearing show Dr. knew he ropsychological screening part and as test, relied on a similar to non-standardized screening, the he did administer a—it’s a trial, jury those he at the had discredited simple malingering non-standardized jury malingering. convince the Petitioner was test. Further, Rogers, of Dr. the Affidavit Peti- Why person do a Mr. Schulte: would was, fact, Exhibit it tioner’s shows sir, test, on a this non-standardized case according accepted scientific important? norms. Had Petitioner’s counsel realized the origins Dr. Call: I don’t know. and basis of Dr. Call’s “Blackwell ” Again, this Test,” tance of counsel is unfounded.’ could have discredited Dr. Memory he way give strong will to the trial in the same deference testing methods Call’s record, experts. supportеd by findings Petitioner’s court’s if the Call discredited issue of but we shall ultimate determine ¶ finding, the trial court 29 In this second Rule trial counsel ineffective. whether stated, extremely unlikely part “[I]t also Court, (B)(3)(b)Civ), Crimi- 3.11 Rules of ‘administrative the confusion this Ch.18, (2004); see Appeals, App. nal Title on have effect pseudonym’ would had ¶21, 20, Glossip, OK CR also retardation determination.... mental 597, 602. no There in the record reason be- exists lieve mental retardation determination evidentiary hearing, coun- 33 At trial jury have different based on been knew Dr. Call administered sel admitted he ” This find- ‘newly discovered evidence.’ from which he conclud- two tests ing is contradicted the record. mentally retarded as ed Petitioner was not exhib- 30 The trial court admitted certain One results seemed indicate. evidentiary hearing. at After the its recognized as test test counsel the TOMM trial, mental Petitioner’s retardation recognize but it did and the other he did juror surveys ju- to all twelve counsel sent to'inquire origins of not occur to him into the rors; only three .were Petitioner’s returned. test. It is evident from Petitioner’s 4B, 4A, juror and the three Exhibits 4C are testimony as at the brief well as counsel’s surveys were returned and these three which evidentiary hearing that his not to decision surveys evidentiary were admitted at pointedly question Call’s administration in- hearing. Although counsel for the State know “Blackwell of the we now as the had the State also obtained re- dicated Memory strategy. matter Test" was a of trial sponses, did those at the the State not offer strategy upon coun- it was a based hearing. evidentiary recognize signifi- sel’s admitted failure origins of- Dr. 4A, cance and determine the Exhibits 4B 31 Review of Petitioner’s raw Call’s and data. things: important and three all 4C shows surveyed jurors three Call as the rated Dr. must determine whether 34 We “highly most favorable or credible” State’s utilize this counsel’s failure to discover and witness; jurors surveyed all three rated the level of assis evidence rises to ineffective (Dr. Call)” “prosecution expert as the most prevail To a claim of tance counsel. testimony; jurors important and one of those counsel, petitioner ineffective assistance following “The incom- made the statement: (1) fell representation must show counsel’s greater credibility to plete testing gave objective standard of reasonable below testing.” сomplete Call’s See that, (2) probability a reasonable ness 4A, 4B 4C. Exhibits These errors, results of but counsel’s responses in the record constitute evidence have different. proceedings would been suggest which outcome 668, 687, Washington, 466 U.S. Strickland v. been have dif- might 104 S.Ct. 80 L.Ed.2d credibility ferent had of his use of á impeached been thorough in- [S]trategic made after choices administered, non-standardized, improperly vestigation relevant law and facts symptom validity forced choice test which unchallenge- virtually plausible options are Memory Test.” the “Blackwell named able; strategic made after less choices investigation reasonable complete are to determine than asked trial court We pro- precisely that reasonable utilize to the extent trial counsel’s failure to whether *9 support limitations judgments be a sound trial fessional evidence could considered words, counsel other investigation. In strategy and the court found “Petition- investiga- duty has a to make x-easonable er’s confusion the ‘administra- counsels’ over that a reasonable decision pseudonym’ tions to make tive cannot described as ei- be unneces- particular investigations makes strategy’ ‘trial ther a ‘failure to discover’ or case, particu- a sary. In ineffectiveness ‘any and notion of ineffective assis- concluded 634 investigate Accordingly, must
lar decision not to
be
38
it is the decision of this
directly
jury’s
assessed for reasonableness
all
hereby
verdict is
re-
circumstances,
heavy
apрlying a
mea-
hereby
versed. We
vacate Petitioner’s death
judgments.
sure of deference to counsel’s
modify
sentence and
his sentence to
im-
life
prisonment
possibility
parole.
of
690-691,
Id.,
U.S. at
104
at 2066.
466
S.Ct.
.without
O.S.2001,
grant
§
20
3001.1. Because we
re-
fathom,
cannot
in a
which
35 We
case
issue,
remaining
lief
propositions
on this
why
experts,
to a
of
boiled down
battle
Peti-
of error
not be
need
addressed.
to research the
tioner’s counsel failed
performed
Petitioner
confirm
origins
validity
and
scientific
DECISION
those tests before Petitioner’s mental retar-
jury’s
39 The
verdict on
retarda-
hearing.
provided
dation
The raw data was
Court,
County
Comanche
prior
to counsel
to the mental retardation
1987-460,
No.
is hereby
Case
CRF
RE-
jury trial. The evidence was discoverable
VERSED. Petitioner’s
is
death sentence
diligence
is
due
clear from anoth-
—that
VACATED and MODIFIED to
impris-
life
attorney’s discovery of
er
the information in
possibility
onment
parole.
without
separate
proceeding.
a
and unrelated
3.15,
Pursuant
to Rule
Rules
the Okla-
¶ Although
the trial court concluded in
22,
Appeals,
homa Court
Criminal
Title
finding
question
its last
that the evidence
Ch.18,
(2005),
App.
the MANDATE is OR-
impacted
would not have
the verdict ren-
upon
DERED
delivery
filing
issued
and
dered,
do not share that
we
same confidence. of this decision.
presented
supporting
claim of mental retardation. Dr.
testi-
CHAPEL,
JOHNSON,
P.J. and A.
J:
mony
his testing
was essential to refute
concur.
experts’
claims and attack his
LEWIS,
findings.
part/dissents
J.: concurs in
Evidence
Call had himself
part.
up
made
a
non-standard-
support
ized
his conclusion Petitioner
V.P.J.,
LUMPKIN,
dissents.
have
been valuable
impeachment
No
evidence.
reasonable trial
LUMPKIN, Vice-Presiding Judge:
supported
strategy would have
a decision not
dissent.
impeachment
important
utilize this
evi-
¶ 1 Upon
review
a
of the record in this
21,
e.g. Glossip,
dence.
CR
See
OK
case, I
judge
provided
find the trial
has
¶ 17,
the outcome would have been “A different. fore, I must dissent. probability probability is a reasonable suffi- ¶ 2 Initially, I range IQ find the broad cient to undermine in the out- confidence spanning test results Id., from 50 made come.” at 104 S.Ct. at U.S. showing ipso mentally Petitioner is not 2068. facto cognitive retarded. Mеntal retardation is a ¶ 37 presented Under the circumstances originates defect that at birth and is not here, jury’s we do have confidence in the subject change over See Murphy time. verdict that mentally Petitioner is not retard- P.3d case, likely ed. It is the outcome of the truly not, A retarded individual will verdict, would have been different had not, produce can test results over such impeach- counsel discovered utilized spectrum broad as has Petitioner. relating ment information to Dr. Fur- Call. ther, Further, we are disagree bothered this State’s majority’s wit- with the seemingly, intentionally, ness the trial testimony. misled characterization of Dr. Call’s parties reliability court about the a board certified psychologist, forensic strengthen his own tests State of well to this Court for his known agаinst Oklahoma’s case Mr. Salazar. in several involving of the recent cases issues *10 discovery process, deceptive in majority The to counsel the relating retardation. to mental testing process? in as well the testifying to Dr. Price’s as Petitioner in indicates Yes, improper but all counsel had to do was ask for a Dr. Call used findings opinion, as to the nature of the test and procedures, tests “normed” a clarification testing Petitioner, properly counsel would have been informed the test and did not person like recognized application simply was a of the the results. This is incorrect state- report Symptom Validity The Dr. Forced Choice Test that the record reflects ment of record. get to explained testing disguised his had been Petitioner’s actual fully and disclosed Call ap- responses possible or rather than a contrived tests were “normed” procedures, the So, Petitioner, reported response. did not do that. the that he Counsel propriate question this Court should ask is: “was all results. question the failure to ask that one sufficient use opinion 4 The further confuses the of to declare trial counsel ineffective?” I don’t disguise pseudonym” to an “administrative think so. scientifically rec- the nature an otherwise provided a 6 The test with the failure to use scienti- record reveals the State ognized open discovery and fically recognized test. The record reflects counsel they readily testing the agreed there was no such inde- admitted had all the witnesses test the “Blaсk- information from the State and Call pendently recognized labeled Memory merely prior This sufficient time to trial to have re- well Test”. was label They purpose to the test from searched and discovered this issue. utilized hide the taker, areas purpose being identify chose instead to focus on other and did the test the specific makeup par- malingerers. The actual test was the not research the this Test”, Validity As Symptom “Forced as ticular mechanism. counsel stat- Choice ed, by “Symptom strategic give choice made not simply to Dr. was referred recognized by opportunity Dr. Call more to validate his Validity Testing” as Richard Editor, author, book, testimony, opinions strength to the of his Rogers, not the of the due potential may impeachment have been Malingering and De- albeit Clinical Assessment of (1997).1 Therefore, place regarding the failure to the ception, Second Edition available testing procedure recognized target throughout as in random the words selection valid, method, only important test. the random selec- scientific the the How question. placement placement test is made giving method of the versus the nothing by how Dr. in the results we do not That issue had do with Call test might know. we do know other valid test have labeled the test to deceive Call test, opinion malingering meaning as the true of the results confirmed Symp- Choice faking and even without Forced i.e. determine whether Petitioner Test, Validity labeled capacity at the time. tom this case “Black- his level mental Test”, Memory opinion would well Dr. Call’s allegation 5 I view of error due been have admissible. pseudonym heading use of the case, determining findings 7 In I of a herring” a “red the real trust respected, judge, presented in this The seasoned trial issues case. McCall, paper Judge a cold record did not administer a test he Allen over
reveals jury. impact to determine the on the This just up or created on his own. He dreamed deprived of Symptom not a the defense was a Forced Choice Va- case administered where discovery that was needed lidity accepted principles evidence or Test which utilized my Based by preparation for trial. literature in the field. supported scientific reading presented, the record believe appears It this test was consistent sup- reaching accepted for which Petitioner’s this Court is conclusions TOMM test n regarding record the tests prepare. ported by trial counsel did Was use Memory Dr. Call and “Blackwell Test” somewhat term test, target randomly present rather than Rogers’ disagreement with as word reflected authority present supplemental correct first as done was the choice in Petitioner’s administered, Dr. Call. manner in which it was i.e. failure *11 experts. of other to that There- relation fore, to the Court’s decisionto I dissent must jury’s verdict mental retarda-
reverse analy- followthe method We should
tion. Myers out in our recent case of v.
sis set OK CR just suppose
WL there
error that does not exist in this record. As
Judge findings, McCall stated “this outstanding jury, attentive, very
was an
fair minded to all witnesses and counsel”. supports
The evidence verdict Court, Myers, pursuant
and this should verdict, looking
affirm that rather than modify excuse reverse valid sen-
tence.
LEWIS, Judge, part/dissents concurs in
part: reversing concur in the verdict in this However, I modifying
ease. dissent to
sentence. would reverse and remand for
new the issue mental retardation. OK CR 23 Wayne HOOKS, Appellan
Victor
t Oklahoma, Appellee.
STATE of
No. PCD-2002-980. Appeals
Court of Criminal of Oklahoma. 7, 2005.
Dec.