The STATE of Oklahoma, ex rel. C. Wesley LANE II, District Attorney, Appellant v. Jerry D. BASS, District Judge of the Seventh Judicial District Oklahoma County, Oklahoma, Appellee.
No. PR-2003-946.
Court of Criminal Appeals of Oklahoma.
March 9, 2004.
2004 OK CR 14
¶ 12 IT IS SO ORDERED.
¶ 13 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19th day of February, 2004.
/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
¶ 1 On August 25, 2003, Petitioner, the State of Oklahoma, by and through C. Wesley Lane II, District Attorney, Aaron Balch and Fern Smith, Assistant District Attorneys, filed a Petition for Writ of Prohibition, or in the alternative, Petition for Writ of Mandamus, requesting this Court prohibit the District Court of Oklahoma County from conducting a separate jury trial on the issue of mental retardation in Case No. CF-99-6416, The State of Oklahoma v. Richard Virgo Blonner.
¶ 2 Blonner is charged with First Degree Murder (and other additional charges). The State of Oklahoma filed a Bill of Particulars alleging the existence of aggravating circumstances warranting imposition of the death penalty. The State alleges in its application that Respondent, the District Court of Oklahoma County, the Honorable Jerry D. Bass, District Judge, exercised judicial authority unauthorized by law by granting Defendant Richard Blonner‘s request for a separate jury trial on the issue of mental retardation prior to conducting Blonner‘s trial for the charged offense. The mental retardation jury trial was scheduled to begin Monday, September 29, 2003. Alternatively, the State alleges that Judge Bass erred when he refused to conduct a separate evidentiary hearing on the issue of mental retardation. Specifically, the State argues that the defendant is required to make a prima facie showing of his mental retardation at an evidentiary hearing held for that purpose before allowing submission of the issue to a jury. The State cites our recent decisions in Murphy v. State, 2003 OK CR 6, 66 P.3d 456 [hereafter Murphy II], Lambert v. State, 2003 OK CR 11, 71 P.3d 30, and Pickens v. State, 2003 OK CR 16, 74 P.3d 601.
¶ 3 On September 10, 2003, we directed Respondent to file a response to the State‘s application. That response was filed on September 22, 2003, by designated representatives of the Oklahoma Indigent Defense System (OIDS), by and through counsel Mary Bruehl, Debbie Maddox and Janet Chesley.
¶ 4 In its response, OIDS alleges there is no legal authority directing the District Court to order an evidentiary hearing requiring an accused to present prima facie evidence sufficient to raise a question of fact on the issue of mental retardation before being able to bring his mental retardation claim before a jury. OIDS claims that the prima facie standard argued by the State, and the procedures set forth in this Court‘s decisions in Murphy II, Lambert, and Pickens apply only in post-conviction death cases. OIDS submits that an accused bears the burden of proving he is death ineligible by a preponderance of the evidence, and that the trial court properly ordered a separate jury trial on the issue of mental retardation prior to any trial upon the merits.
¶ 5 For a writ of prohibition, Petitioner must establish (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy.
¶ 6 Both parties have confused the issues addressed by the trial court in its ruling authorizing a separate jury trial on the issue of mental retardation, and have also misconstrued this Court‘s various post-conviction decisions addressing the mental retardation issue. We understand the confusion created by this Court‘s creation of procedures dealing with mental retardation in post-conviction proceedings and in trial proceedings and take this opportunity to further clarify our prior opinions and procedures in pending and future capital trials. We appreciate Judge Bass‘s efforts to give meaning to all the language in Murphy II and his efforts to protect the rights of the defendant. Still, we find that the State is entitled to the relief requested, as neither Murphy II, Lambert, nor Pickens require or authorize the District Court to empanel a separate jury trial on the issue of mental retardation before a defendant has been brought to trial on the capital offense.
¶ 7 In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court held that imposition of the death penalty upon those who are mentally retarded violates the
¶ 8 We stated in Murphy I that this definitional standard was to be used in all future and pending capital trials where the issue of mental retardation is raised at the trial court level pending enactment of suitable legislation replacing this procedure. Id. At trial, it is the defendant‘s burden to prove he or she is mentally retarded by a
¶ 9 In resolving the request for a separate jury trial on the issue of mental retardation, Judge Bass correctly recited the procedures and guidelines from Murphy I. He then stated:
“In the Murphy I case the jury hears all of the evidence. They hear all of the evidence about the facts of the murder and then they hear the aggravators and the mitigators and the evidence on mental retardation. They hear the whole ball of wax.
But in this Lambert case—and I am fully aware that it is post-conviction. I understand that. But in this Lambert case the Oklahoma Court of Criminal Appeals has decided that in the Lambert case that Lambert is not to be remanded for a sentencing stage, but is to be remanded on the sole issue of mental retardation. They are not—the jury is not to be death qualified because they are only hearing the issue of mental retardation....
So in Murphy I the jury gets to hear everything; in Lambert the jury doesn‘t hear everything.
And this leaves me in a quandary because if I proceed with Blonner and they hear everything and the Oklahoma Court of Criminal Appeals says, no, we should have had a hearing on the sole issue of mental retardation and then proceed to trial and then the mental retardation issue has been resolved.
Whereas, if I follow Lambert and we have like a competency trial that is similar on this determination of mental retardation, then we never get to that and we don‘t have a capital trial. And if I don‘t—if I don‘t follow Lambert and the case is appealed then there is no telling how many trials that this court, as well as other courts in this courthouse and other courthouses around the State, and we could try several and then have to turn around and have to re-try those on the issue of mental retardation....
Because of the magnitude of the Court‘s [Lambert] decision, I‘m going to order a jury trial on the issue of mental retardation only and order that the jury is not to hear the facts of the case except narrowly under the Lambert decision, if there is some narrow exceptions on the issue of mental retardation. And then if that jury makes a finding that he is mentally retarded then the State cannot proceed on the capital murder.”
¶ 10 We understand the District Court‘s concern for following this Court‘s directives and erring on the side of caution to avoid the need to potentially retry a capital case. However, as properly noted by Judge Bass, Lambert is a post-conviction ruling. It did not overrule, abrogate or modify the procedures established in Murphy I as they relate to pending and future capital cases where the defendant claims he or she is mentally retarded. “Unless the issue of mental retardation is resolved prior to trial,” Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567, the proper procedure to be used was that recited by Judge Bass from the decision in Murphy I and the mental retardation issue is to be addressed only after a finding of guilt in a capital trial.
¶ 11 Unfortunately in Murphy I, this Court did not elaborate on how the issue of mental retardation could be resolved prior to trial and only discussed the procedure to be followed when the issue was not resolved prior to trial. Here, we take the opportunity to further clarify how the issue of mental retardation can be resolved prior to trial, as contemplated by the language in Murphy I.
¶ 12 In all pending and future cases, a defendant shall be required to file his or her
¶ 13 After the State files its Bill of Particulars and after the defendant files Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty, the defendant may file a Motion to Quash Bill of Particulars due to Mental Retardation and request an evidentiary hearing if the defendant wants to resolve the issue of mental retardation prior to trial. By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation.2
¶ 14 The trial court shall set the matter for evidentiary hearing within sixty (60) days. At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record. The hearing shall be conducted after complete discovery is afforded both parties under the
¶ 15 Either party may file an appeal from the trial court‘s order granting or denying a Motion to Quash Bill of Particulars on grounds of mental retardation.4 This Court will apply the preponderance of the evidence standard on appeal and conduct a de novo review of the trial court‘s factual findings.
¶ 16 The party seeking to appeal shall file a notice of intent to appeal and designation of record with the trial court clerk within five (5) days from the date the judge‘s ruling is pronounced in open court. The filing of the notice of intent to appeal in the district court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. The party seeking to appeal shall file the notice of intent to appeal, together with a copy of the trial court‘s written order being appealed, with the Clerk of this Court within ten (10) days from the date the notice is filed in the district court. See
¶ 18 The court reporter shall be required to expedite preparation of the record. Requests for extensions of time shall be considered in accordance with
¶ 19 The district court clerk shall prepare and file three (3) certified copies of all pleadings, instruments, and transcripts designated for inclusion in the appeal record within forty (40) days from the date of the order appealed from in the same manner provided for the preparation of a regular appeal and as set forth in
¶ 20 The Petition in Error shall be filed within sixty (60) days from the date the judge‘s ruling is pronounced in open court to invoke the jurisdiction of this Court. The Petition in Error must contain the following information:
- The type of appeal and the date the State filed its Bill of Particulars;
- The date the defendant gave Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty;
- The date the Motion to Quash Bill of Particulars due to Mental Retardation was filed in the district court;
- The case number and the court from which the appeal is lodged;
- The date on which the court order was entered and the name of the judge; and,
- The nature of relief being sought.
¶ 21 The Brief of Appellant shall be filed with the Petition in Error and shall be served on the adverse party within five (5) days from the date on which the Brief is filed and must contain a certificate of service. See
¶ 22 The Answer Brief shall be filed within twenty (20) days from the date the Appellant‘s brief is filed.
¶ 23 The content of the briefs of the parties shall be in compliance with
¶ 24 Because an appeal from a trial court‘s decision on a Motion to Quash Bill of Particulars on grounds of Mental Retardation is an interlocutory appeal and time is of the essence, this Court will expedite its handling of these cases.
¶ 25 We are mindful of the concern that the issue of mental retardation might be overshadowed by the facts of a particular capital case and/or in spite of a showing of mental retardation when the issue is decided by a jury at trial. Accordingly, the above procedure provides the defendant with an alternative method to having the issue decided prior to trial. If the trial court denies the Motion to Quash Bill of Particulars on grounds of Mental Retardation, and if that decision is appealed and is affirmed on ap-
¶ 26 If the defendant opts for jury determination of the mental retardation issue and does not seek resolution of the issue prior to trial, the procedures outlined in Murphy I for a post-judgment Atkins hearing are intended to provide another level of review. In cases where the issue of mental retardation is properly raised and the jury finds the defendant is not mentally retarded and imposes the death penalty, the trial court shall, upon the defendant‘s request, hold a post-judgment Atkins hearing for the purpose of determining if the jury‘s decision on the issue of mental retardation resulted in an excessive sentence (a sentence imposing the death penalty on a defendant who meets the Murphy I definition of mentally retarded). Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 567. The trial judge‘s duty at a post-judgment Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice or any other arbitrary factor. The trial judge shall conduct a de novo review of the evidence presented at trial and determine whether or not the defendant is mentally retarded, as defined in Murphy I, using a preponderance of the evidence standard. Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 568.
¶ 27 We must also address the State‘s contention that “it is incumbent upon a defendant to present sufficient evidence, at an evidentiary hearing before the trial court, that he is mentally retarded so as to raise a question of fact to be resolved by a jury.” The post-conviction cases relied upon by the State for that contention, Lambert and Pickens, do not require a defendant to present prima facie evidence of mental retardation before being entitled to raise the matter at trial; Lambert and Pickens are instructive for post-conviction matters. No pretrial evidentiary procedure was established by Murphy I. Prima facie evidence of mental retardation does not need to be shown prior to trial. However, as with other claims and defenses raised at trial, the defendant must present prima facie evidence at the jury trial on the issue of mental retardation sufficient to warrant the instruction on mental retardation.
¶ 28 The State‘s Application for Writ of Prohibition is GRANTED. This matter is remanded to the District Court of Oklahoma County with instructions to vacate its order granting Defendant Blonner‘s request for a separate jury trial on the issue of mental retardation. The District Court is directed to proceed with Blonner‘s trial in accordance with the procedures outlined in this Order.
¶ 29 IT IS SO ORDERED.
¶ 30 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day of March, 2004.
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Presiding Judge.
/s/ Steve Lile
STEVE LILE, Vice Presiding Judge.
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Judge.
/s/ Reta M. Strubhar
RETA M. STRUBHAR, Judge.
GARY L. LUMPKIN, J., Concur in part/Dissent in part.
LUMPKIN, J.: Concur in Part/Dissent in Part.
¶ 1 I concur in the Court‘s decision to grant the Writ of Prohibition in this case. However, I must dissent to the Court creating a procedure that not only further delays a trial on the merits in a capital murder case, but is totally unnecessary.
¶ 2 While I recognize the Court is vested with the authority to create procedures of this type, I believe the first question to ask is whether the procedure is necessary. This Court has already developed a procedure through its decisions in Murphy v. State, 2002 OK CR 32, 54 P.3d 556; Lambert v. State, 2003 OK CR 11, 71 P.3d 30; and Pickens v. State, 2003 OK CR 16, 74 P.3d 601. Simply put, in a capital murder trial the jury is instructed regarding the law relating to mental retardation and directed to
¶ 3 The procedure for raising the issue of mental retardation for the first time as a part of a post-conviction application is just as simple and efficient. Simply put, an appellant must first make a showing either in the original or subsequent application for post-conviction relief, pursuant to
¶ 4 Here, the record reveals the District Court was aware of the separate procedures for the original trial on the merits and a hearing on post-conviction remand, but the judge was hesitant to follow the procedure. As a result, it appears the judge combined the two separate procedures into one. A part of this misconception is attributable to the final language in the Murphy decision. This type of problem was anticipated in the original language drafted in Murphy, i.e. “unless the parties enter into a stipulation on this issue at trial or prior to trial ...“. However, due to the group dynamics often present in the writing of appellate opinions, the language was changed to “unless the issue of mental retardation is resolved prior to trial, ...“. Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 568. Had the original language been left in place, the current confusion would likely not have occurred. I firmly believe defense attorneys and prosecutors would readily recognize those cases where mental retardation is clear and a stipulation should be entered. In those cases raising a question of fact, the issue should and would be determined by a jury, unless waived.
¶ 5 Instead of merely clarifying and applying the procedure already established, the Court elects to add time, hearings, and appeal to an already elongated process. In doing so, I believe the Court misuses the provisions of
¶ 6 Furthermore, the procedure created for this pre-trial hearing and interlocutory appeal itself creates potential problems. The Order says, “By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation.”2 Order at ¶ 13. But then, the Order says, “At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record.” Order at ¶ 14. Will this then require a determination of competency to be able to enter the waiver? How about a jury trial on competency prior to the evidentiary hearing? Remember, the issue a judge of the District Court is being asked to determine is if the defendant is mentally retarded. What happens if the defendant fails to enter a waiver on the record, does the Motion to Quash control or is the matter set for trial pursuant to Murphy? These are the type of problems that can arise when courts seek to complicate otherwise simple procedures to try to answer a question that has already been answered.
¶ 7 Furthermore, creating a waiver of a Constitutional right and a new interlocutory appeal seems unusually “legislative” to me, especially where we do not have a better statutory basis than we do here. House Bill 2635, the original bill passed by our Legislature in 2002 prior to gubernatorial veto and the U.S. Supreme Court‘s decision in Atkins v. Virginia, did not provide for such a pre-trial ruling, did not require a personal waiver, and did not create an interlocutory appeal. Currently, House Bill 2710 is pending in the 2004 session of the Legislature and it too is mute on these issues. I would be extremely hesitant to take the position this Court has now taken knowing the Oklahoma Legislature‘s only pronouncement concerning these issues addresses the issue of mental retardation in the context of a trial, consistent with our decision in Murphy. Does the Court truly believe it is saving “time and expense” by creating a new right of appeal before trial even begins? Does the Court really want to force a criminal defendant into the Hobson‘s choice of waiving his or her right to have a jury decide the issue of mental retardation in order to obtain this pretrial determination? How will that waiver impact his or her ability to present the issue of mental retardation at sentencing, if the pretrial proceedings do not result in the desired results? Will this Court then abandon the legal principle of res judicata, forget the ruling on the interlocutory appeal because “death is different“, and allow a defendant to have another bite at the apple? I highly doubt our Legislature will agree with this approach. However, that is a choice they will ultimately have to make.
¶ 8 The clear and simple way to address this Application for Writ of Prohibition is to say the question asked was answered in Murphy. Pursuant to the procedure and instructions adopted in Murphy the issue of mental retardation is tried to the jury during the penalty phase of a capital murder case. The duty of the trial judge at a post-trial “Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice, or any other arbitrary factor“. See Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 569. This Court then reviews all issues at one time as a part of the direct appeal.
¶ 10 As previously stated, I acknowledge the authority of the Court to establish the pre-trial procedure. I find no authority to create an interlocutory appeal. And, I believe this procedure will create more issues than it resolves while denying a speedy and efficient determination of the trial on the merits before a jury.