MURPHY v. STATE

MURPHY v. STATE
2002 OK CR 32
54 P.3d 556
Case Number: PCD-2001-1197
Decided: 09/04/2002
PATRICK DWAYNE MURPHY, Petitioner -vs- STATE OF OKLAHOMA, Respondent

[54 P.3d 556]

OPINION DENYING APPLICATION FOR POST-CONVICTION
RELIEF AND GRANTING EVIDENTIARY HEARING LUMPKIN, PRESIDING JUDGE:¶1 Petitioner Patrick Dwayne Murphy was convicted of First Degree Murder in the District Court of McIntosh County, Case Number CF-1999-164A, and sentenced to death. He appealed his conviction to this Court in Case No. D-2000-705. We affirmed Petitioner's conviction and sentence. Murphy v. State,

¶2 On numerous occasions, this Court has set forth the narrow scope of review available under the amended Post-Conviction Procedure Act. See e.g., McCarty v. State,

¶3 The new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker,

¶4 Should a petitioner meet this burden, this Court shall consider the claim only if it "[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S.2001, § 1089 (C)(2). As we said in Walker,

The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.

Walker

¶5 In propositions one and four, Petitioner claims his trial and appellate counsel failed to adequately investigate, develop, and present available mitigating evidence of Petitioner's deprived background, mental retardation, exposure to alcohol and violence at a young age, neuropsychological impairments, and other mitigating evidence through available witnesses, thus denying him effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 7 and 20 of Oklahoma's Constitution. He requests an evidentiary hearing to fully develop the mitigating evidence and to demonstrate prejudice arising from his prior counsels' deficient performances, which allegedly denied him a fair sentencing proceeding under the Eighth Amendment to the United States Constitution and Article 2, Section 9 of Oklahoma's Constitution. He also alleges violations of the Fifth Amendment to the United States Constitution and to Article II, Section 6 of Oklahoma's Constitution.

¶6 Petitioner claims his trial counsel should have known a murder conviction was likely, given the fact that three witnesses were scheduled to testify regarding his involvement. Thus, he claims his trial counsel "should have known that a compelling mitigation case in the sentencing phase would be the only reasonable strategy for avoiding the ultimate penalty."

¶7 While conceding his counsel presented mitigating evidence through various trial witnesses, Petitioner claims the evidence was "incomplete, disjointed, and failed to emphasize several substantive factors that weighed against the imposition of death." He claims his attorneys reduced him "almost to a clinical instrumentality instead of revealing the wealth of mitigating circumstances that were readily available for the jury's consideration."

¶8 Furthermore, based upon Dr. John R. Smith's affidavit, Petitioner claims his trial and appellate lawyers were ineffective for failing to discover and present evidence of a "significant neurological dysfunction... caused by his mother's ingestion of copious amounts of alcohol during pregnancy."

¶9 Petitioner claims his case his similar to Williams v. Taylor,

¶10 In so finding, the Supreme Court noted several pertinent matters relating to the assistance provided by the defendant's trial attorneys. They did not begin preparing for the sentencing stage of the defendant's capital trial until a week before trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams's "nightmarish childhood," which included evidence of repeated beatings and criminal neglect the defendant suffered at the hands of his parents. These records were apparently social service documents to which the attorneys wrongly believed they did not have access.

¶11 The question presented, therefore, is whether the holding in Williams applies equally to this case, i.e., whether Petitioner's trial and appellate counsel rendered effective assistance under Strickland and Williams with respect to the second stage proceedings. To answer this question, we must review the mitigating evidence presented in Petitioner's trial, compare it to the mitigation evidence presented in the post-conviction record, and decide if the post-conviction evidence raises "a reasonable probability that the result of the sentencing proceeding would have been different" if competent counsel had presented and explained the significance of all the available evidence. Williams,

¶12 A thorough review of the trial record reveals the following mitigating, or at least arguably mitigating, evidence was admitted during the first stage of Petitioner's trial: Petitioner claimed he participated in the beating but did not actually kill the victim or amputate the victim's genitalia; Petitioner was extremely drunk

¶13 In the second stage proceedings, the following mitigating, or at least arguably mitigating, evidence was introduced: Petitioner scored an eight on a test designed to detect whether or not a person is a psychopath (predator), with a score of thirty indicating a person is in fact a psychopath; Petitioner's score on the psychopath test is considered low in comparison to other criminals, indicating he is a very low risk for future violence in a prison setting, where alcohol is not available; a risk assessment evaluation given to Petitioner also concluded he is a low risk for future violence in a prison setting; Petitioner has a very strong employment history, i.e., he has been an "excellent" employee with few attendance problems; Petitioner's jailers had had no problem with him during the eight months before trial-he was a good prisoner; he did well in school and was described as a "quiet" and "good kid" in his youth; when testing his intelligence, he was initially estimated to be in the low average intelligence range, but actually scored a 67, which is in the mildly mentally retarded range, on the abbreviated form of the Wechsler Adult Intelligence Test; Petitioner's school records from twenty years earlier indicated he was "educable mentally handicapped," which is equivalent to being mildly mentally retarded;

¶14 In addition, a jury instruction told jurors to consider the following mitigating evidence that had been presented at trial: the defendant did not have any significant history of prior criminal activity; the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired by alcohol; the defendant was under the influence of emotional disturbance by virtue of his alcohol dependency; the defendant acted un-[54 P.3d 563]der circumstances which tended to reduce the crime in that he was under the influence of alcohol; the defendant is likely to be rehabilitated; cooperation by the defendant with authorities; the defendant's age; the defendant's character; the defendant's emotional/family history; the defendant suffers from mild mental retardation.

¶15 To support his claim that the mitigating evidence presented in his trial amounted to ineffective assistance of counsel in comparison to what could have been presented, Petitioner has submitted various affidavits and evidentiary materials for this Court's review. Pursuant to Rule 9.7(D)(1)(a), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002), affidavits and evidentiary materials filed in support of a post-conviction application are not part of the trial record but are only part of the capital post-conviction record. As such, those affidavits and evidentiary materials are not reviewed on their merits but are reviewed:

[T]o determine if a threshold showing is met to require a review on the merits. If this Court determines that the requirements of Section

Furthermore, post-conviction petitioners seeking a review of their post-conviction affidavits are required to file an application for evidentiary hearing. Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). The application for evidentiary hearing and affidavits "must contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief." Id. If this Court determines "the requirements of Section

¶16 Here, we find these affidavits and evidentiary materials do not contain sufficient information to show this Court by clear and convincing evidence that the materials sought to be introduced have or are likely to have support in law and fact to be relevant to Petitioner's ineffective assistance claims, i.e., that in the presentation of mitigating evidence counsel "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" or that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland,

¶17 The post-conviction affidavits establish more "mitigating" evidence than was developed at trial. They establish Petitioner grew up in a rough and dangerous neighborhood, and he was underprivileged and often neglected as a child. A lot of violence occurred at Petitioner's home, including a stabbing and assault with a gun, but it is unclear to what extent Petitioner witnessed these events. Petitioner's father was a violent man, who used violence against Petitioner and his brother in the past. Petitioner was well liked by many in the community and was described as quiet and well behaved in his youth.

¶18 However, the post-conviction affidavits and evidentiary materials do not demonstrate a failure by Petitioner's trial counsel to present mitigating evidence of a constitutionally deficient magnitude, as that in Williams. As reflected above, jurors were told a great deal about Petitioner's life. The post-conviction affidavits and evidentiary materials certainly tell us more, but that will almost always be the case when you view a trial in hindsight. [54 P.3d 564]

 

¶19 Moreover, the post-conviction affidavits and evidentiary materials often conflict with each other or with testimony given by Petitioner or others at trial.

¶21 In proposition two, Petitioner claims his state and federal constitutional rights to jury trial were violated by the failure to instruct the jury that it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. He claims that "because the weighing determination is a factual determination which authorizes the sentencer to increase punishment for murder above the statutory maximum, the Oklahoma Constitution and the Sixth and Fourteenth Amendments to the federal constitution require that this determination be made by a jury and must be proved beyond a reasonable doubt." Because this claim was not raised at trial or on appeal, he claims his trial and appellate counsel were ineffective.

¶22 Petitioner specifically attacks OUJI-CR 2d 4-76

¶23 On numerous occasions, prior to Apprendi, when criminal defendants have presented similar arguments to the one Petitioner raises here, this Court has stated its firm position that "specific standards for balancing aggravating and mitigating circumstances are not required" under Oklahoma's capital sentencing scheme. See e.g., Patton v. State,

¶24 First, Apprendi was a five to four, non-capital decision that resulted in five separate opinions from the Supreme Court justices on distinguishable facts. Second, Apprendi's language does not, in our opinion, extend so broadly as to require a jury to find aggravating circumstances, which have already been found by that jury to exist beyond a reasonable doubt, outweighed the mitigating circumstances beyond a reasonable doubt. Third, the United States Supreme Court's recent decision in Ring v. Arizona, __ U.S. __, 122 S. Ct. 2428, __ L.Ed.2d __ (2002), while apparently extending Apprendi's holding to capital sentencing schemes, sheds no further light on the precise issue here.

¶25 We thus reject the notion that Apprendi forms a basis for invalidating Oklahoma's capital sentencing scheme. We also find Petitioner's trial and appellate counsel were not ineffective for failing to previously raise this issue.

¶26 In proposition three, Petitioner claims, due to his mild mental retardation, his execution would violate the state and federal constitutional prohibitions against cruel and/or unusual punishments and would offend contemporary standards of decency. He asks this Court to consider recent legislative and judicial action and other "indicia of current public sentiment" in resolving this claim. He also asks us to hold his post-conviction proceeding in abeyance pending the United States Supreme Court's decision in Atkins v. Virginia.

¶27 Petitioner did not raise this claim on direct appeal, although he obviously had the opportunity to do so, and he does not raise the issue here in relation to an ineffective assistance claim. Under normal circumstances, this would be absolutely fatal to his claim under the post-conviction act. However, due to a recent flurry of legislative,

¶28 As the law in this state currently stands, "[a]ll persons are capable of committing crimes," except those in certain statutorily defined classes, including "persons who are impaired by reason of mental retardation upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness" and "[p]ersons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent." 21 O.S.2001, § 152 . And yet, while mentally retarded individuals are capable of committing crimes in Oklahoma, in light of Atkins, those who fit within its holding are no longer eligible for the death penalty.

¶29 Atkins notes, however, that there is serious disagreement (and thus no "national consensus"

¶30 That puts this State in an interesting position, considering our legislature has attempted to do just that, but our Governor has apparently disagreed with the legislature's efforts. Thus, the task falls upon this Court to develop standards to guide those affected until the other branches of government can reach a meeting of the minds on this issue.

¶31 According, we hereby adopt the following definition for mental retardation that will apply to individuals alleging they are not eligible to be sentenced to the death penalty, for use in capital trials:

A person is "mentally retarded": (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18)

It is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence

This standard shall be used at all future and pending capital trials, until such time as it may be replaced by a suitable legislative enactment.

¶32 Unless the issue of mental retardation is resolved prior to trial, the issue of mental retardation shall be decided in the sentencing stage of a capital murder trial, pursuant to the instruction set forth in Appendix "A." Furthermore, in all future capital trials where the defendant intends to use the issue of mental retardation to avoid the death penalty, the defendant shall give written notice of that fact by filing a notice in the record (and copied to counsel for the State) no less than forty-five (45) days prior to trial. The Oklahoma Criminal Discovery Code, 22 O.S.2001, § 2001 et seq., shall be applicable to any evidence relating to the issue of mental retardation.

¶33 If the jury determines a defendant is mentally retarded, as defined within this opinion, that defendant shall no longer be eligible for the death penalty. However, if the jury finds the defendant has not proven he or she is mentally retarded by a preponderance of the evidence, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage.

¶34 In those cases where (1) a defendant has properly raised the issue of mental retardation, as set forth above, (2) the jury finds the defendant is not mentally retarded, as defined in this opinion, and (3) the jury then imposes the death penalty, the trial court shall, upon request of the defendant,

¶35 The trial judge's duty at an 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.

¶36 For pending capital appeals and inmates who may file applications for post-conviction relief to address this issue, the issue of mental retardation is preserved in the following circumstances: in those cases where evidence of the defendant's mental retardation was introduced at trial and/or the defendant either (1) received an instruction that his or her mental retardation was a mitigating factor for the jury to consider, (2) appealed his death sentence and therein raised the claim that the execution of the mentally retarded was cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution (or a substantially similar claim relating to his or her mental retardation), or (3) raised a claim of ineffective assistance of counsel, on appeal or in a previous post-conviction application, in which he or she asserted trial counsel or appellate counsel failed to raise the claim that the execution of the mentally retarded was cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. In such cases, the defendant's counsel shall file either an application for post-conviction relief, if the defendant's case is not pending in this Court, or an application with this Court in a pending appeal seeking a remand to the appropriate District Court for an evidentiary hearing to determine whether or not sufficient evidence of the defendant's mental retardation exists in order for the matter to be remanded for resentencing, as ordered below.

DECISION

¶37 After carefully reviewing Petitioner's Application for Post-Conviction Relief, Motion for Evidentiary Hearing and Motion to Hold Post-Conviction Case in Abeyance, we [54 P.3d 569]find: (1) there exist no controverted, previously unresolved factual issues material to the legality of Petitioner's confinement, except as provided below; (2) Petitioner's claim that his appellate counsel was ineffective for failing to adequately investigate, develop, and present available mitigating evidence is without merit; (3) Petitioner's Apprendi arguments are without merit; and (4) Petitioner's claims related to mental retardation have merit as per Atkins and as further stated above.

¶38 Accordingly, Petitioner's Application for Post-Conviction Relief, Motion for Evidentiary Hearing, and Motion to Hold Post-Conviction Case in Abeyance are DENIED as to all issues except proposition three. Petitioner's Application for Post-Conviction Relief and Motion for Evidentiary Hearing are hereby GRANTED with respect to the issue of mental retardation, as set forth below.

¶39 This case is therefore REMANDED to the District Court of McIntosh County for an evidentiary hearing on the sole issue of Petitioner's claim of mental retardation in accordance with this Order. At that hearing, which shall be held within sixty (60) days from the date of this Order, the District Judge shall determine if Petitioner has raised sufficient evidence

 

ATTORNEY ON APPEAL

BRYAN LESTER DUPLER
OKLAHOMA INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR PETITIONER

OPINION BY LUMPKIN, P.J.

PA

APPENDIX "A"

JURY INSTRUCTION TO BE USED WHEN
ISSUE OF MENTAL RETARDATION HAS BEEN RAISED

A conviction for Murder in the First Degree is punishable by death, life imprisonment without the possibility of parole, or life imprisonment. The Defendant has raised mental retardation as a bar to the imposition of the death penalty in this case. You must determine if the Defendant suffers from mental retardation as it is defined below before deciding what sentence to impose.

You are advised that a person is "mentally retarded" if he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative.

In reaching your decision, you must determine:

(1) Is the defendant a person who is mentally retarded as defined in this instruction?

(2) Was the mental retardation present and known before the defendant was eighteen (18) years of age?

(3) Does the defendant have significant limitations in adaptive functions in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work?

If you find by a preponderance of the evidence that the answer to each of these questions is yes, then you must so indicate on your verdict form. You must then decide whether the defendant shall be sentenced to life imprisonment or life imprisonment without the possibility of parole and so indicate on your verdict form. If you find the answer to any of the above questions is no, you must so indicate on your verdict form. You must then decide whether the defendant shall be sentenced to life imprisonment, life imprisonment with-[54 P.3d 556] out the possibility of parole or death.

Preponderance of the evidence means more probable than not.

OUJI-CR 4-87A

VERDICT FORM TO BE USED WHEN

ISSUE OF MENTAL RETARDATION HAS BEEN RAISED

IN THE DISTRICT COURT OF THE ___________________ JUDICIAL DISTRICT OF
THE STATE OF OKLAHOMA SITTING IN AND FOR __________________ COUNTY

THE STATE OF OKLAHOMA,

Plaintiff

vs.

JOHN DOE,

Defendant.

)
)
)
)
)
)
)
)
)

Case No. __________

VERDICT

We, the jury, empaneled and sworn in the above-entitled cause, do, upon our oaths, find as follows:

Defendant is:

_____________ Mentally retarded, as defined by the Court's instructions, and fix his/her punishment at _________________________________.

_____________ Not mentally retarded, as defined by the Court's instructions, and fix his/her punishment at _________________________________.

________________________
FOREPERSON

FOOTNOTES

JOHNSON, V.P.J.: CONCURS IN PART/DISSENTS IN PART

¶1 I agree with the majority that this case must be remanded for a hearing on the issue of mental retardation. The U.S. Supreme Court has held that the mentally retarded cannot be executed and to execute the mentally retarded is unconstitutional. Atkins v. Virginia, ___ U.S. ___ , 122 S. Ct. 2242, ___ L.Ed.2d ___ (2002). [54 P.3d 571] This is a new rule of law.

¶2 I dissent as to the procedure established by the Court as to the determination of mental retardation. Judge Chapel in his Concurring in Result has outlined a procedure that I would also adopt. The trial court should hold a pretrial evidentiary hearing to determine mental retardation. If the trial court determines by a preponderance of the evidence that the defendant is mentally retarded, the trial would proceed as a non-capital first-degree murder case. If the court should not so find, the jury then would make this determination prior to any second stage evidence. Therefore, I would concur in the full procedure set forth in Judge Chapel's Concurring in Result opinion.

¶3 It should be pointed out that after a jury has made a determination that there is no mental retardation, a trial judge is not going to set that jury determination aside. Trial judges just do not like to change a jury finding. Hopefully, if the majority's procedure is the one that is followed, then it would be my wish that trial judges would certainly look at the evidence closely as to mental retardation and use their judgment as to same. I also want to make it clear that the legal doctrine of waiver will not or should not apply in mentally retarded defendants cases. Clearly, the U.S. Supreme Court's cases and the majority's opinion herein make this a new rule of law and the waiver doctrine would not apply.

CHAPEL, J., CONCURRING IN RESULT:

¶1 I agree that Murphy's case must be remanded for a hearing on the issue of mental retardation. I have serious reservations about the majority's analysis of this and another claim, and disagree with the proposed procedures to be used in deciding this and future mental retardation claims.

¶2 I disagree with the way in which the majority resolves issues raised by Atkins v. Virginia.

¶3 Initially addressing the Atkins claim on post-conviction, the majority mistakenly states without citation that "[u]nder normal circumstances" this claim would be waived.

¶4 The majority opinion wants to have it both ways. The opinion first claims the issue is waived, but considers it given the "recent flurry of activity" on the issue.

¶5 As we address these issues, the Court has the unusual but welcome benefit of a recent, clear expression of Legislative intent. This term's passage of House Bill 2635 was intended to prohibit execution of the mentally retarded (not limit it under certain conditions, as the majority suggests in note 13). House Bill 2635 provided some definitions and standards for determining who is mentally retarded and may not be death-eligible, and the majority borrows substantially from the Bill to define mental retardation.

¶6 I am troubled by the majority's definition of mental retardation, which is also incorporated into the proposed Instruction. Like House Bill 2635, the majority requires proof that mental retardation manifested itself before the age of 18. However, this requirement standing alone is ambiguous. In footnote 19 the opinion explains "manifestation" and suggests various methods of proof. At the least this explanation should be incorporated into the body of the definition. This definition also requires proof of an IQ of no more than seventy, through a scientifically recognized and approved and "contemporary" IQ test. Footnote 21 defines "contemporary" as either a test administered after the capital crime was committed, or "one that may be understood by contemporary standards." I have no idea what this means. Taken as a whole, the definition appears to require proof of mental retardation both before (manifested before age 18) and after (contemporary test) the crime occurred.

¶7 The definition states: "[N]o person with an intelligence quotient of more than seventy, as administered by a scientifically recognized and approved intelligent quotient test, shall be eligible to be considered mentally retarded." I am concerned that this might be misunderstood as saying that anyone with an IQ test over 70 cannot claim to be mentally retarded, no matter how severely he is developmentally disabled nor how significant his limitations in adaptive functioning. A person who is virtually unable to function but has a test score of 71 may not claim to be ineligible for the death penalty [54 P.3d 573] by mental retardation. I am also concerned that this may be misinterpreted as prohibiting a defendant from raising this claim if the defendant has one test score over 70 and one under 70. These possible results do not appear consistent with the Atkins conclusions that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills."

¶8 This definition also poses practical problems. If a defendant - particularly an indigent, mentally challenged one - has no school record, or is a transient, or a foreigner, or just moved to Oklahoma as an adult, there may well be no available proof of manifestation before the age of 18. This defendant would be precluded from raising mental retardation even with an IQ of 56, tested near the time of the crime, and a showing of little or no ability to function according to the enumerated categories. That is, a clearly mentally retarded adult, who was mentally retarded at the time he committed a crime, would be eligible for the death penalty simply because he had no childhood evidence to present. This conforms neither to the letter nor the spirit of the prohibition against executing mentally retarded people. I share the majority's unstated concern that murderers will suddenly claim they are mentally retarded after commission of their crimes in an effort to avoid capital punishment. However, I believe the definition of mental retardation should be flexible enough that an entire class of mentally retarded persons is not automatically (and illegally) exposed to the death penalty simply because their situation prevents them from bringing forth evidence from childhood.

¶9 This case is brought as a first post-conviction claim; evidence of mental retardation was presented to the jury in mitigation, but the issue of execution of the mentally retarded was not raised on appeal. Following the letter of Atkins, the majority reluctantly agrees that Murphy is entitled to raise this issue before being executed. The opinion reasonably concludes that the mental retardation issue must be remanded to the trial court for an evidentiary hearing on the issue of mental retardation.

¶10 In its haste to issue an opinion, the majority appears to have no real idea what the post-conviction procedure in this and similar cases will be. I agree that our capital post-conviction statute vests jurisdiction in this Court,

¶11 I would remand this case to the trial court for an evidentiary hearing on the issue of mental retardation. If neither party seeks review of the claim, I would review the trial court's findings and conclusions and have the Court determine the issue. I see no need to automatically require additional briefing in every case. If the trial court concludes that Murphy has proved he is mentally retarded by a preponderance of the evidence, and we adopt that finding, I would remand the case for jury resentencing to life or life without parole (or judge resentencing, if both parties waive a jury proceeding). If the trial court finds Murphy has not shown retardation by a preponderance of the evidence, I would still remand the case for jury resentencing. Under those circumstances, Murphy would be allowed to present evidence of mental retardation separately (using a preponderance of the evidence standard), and jurors would deliberate on that question before the capital sentencing trial began. If jurors find Murphy is mentally retarded, they would subsequently hear evidence on and consider only the punishments of life or life without parole. If jurors find otherwise, the capital punishment resentencing procedure would begin.

¶

¶13 In setting forth a procedure for trial courts to use in future cases, this court should focus on the primary issue - death-eligibility. If a defendant is mentally retarded, he is not eligible for the death penalty, and the jury should not hear or consider evidence which would support a death sentence. The only possible sentences are life or life without parole. In order to assure [54 P.3d 575] that the trial is not tainted with capital-stage evidence which can only improperly appeal to jurors' emotions and passions (being irrelevant to any sentencing issue), I would require the trial court to settle the issue before the trial begins. In fairness to the State, a defendant should give notice of his intent to raise mental retardation before a jury is picked.

¶14 In contrast to the procedures I would adopt as set forth above, the majority does not substantially change the current capital trial procedures. Although the majority requires prior written notice of intent to claim mental retardation, no determination of retardation is made until after the defendant has been convicted of first degree murder in the first stage of trial.

¶15 There is a huge contrast in these two approaches. The majority procedure unnecessarily wastes judicial resources without providing any significant degree of protection to either the defendant or the State. Why should the state of Oklahoma pay for a capital trial, and why should judicial resources be consumed in conducting a capital trial, where the defendant is not eligible for the death penalty? Why should witnesses, including the grieving family members of the murder victim, be forced to endure a capital second-[54 P.3d 576] stage proceeding and even give evidence regarding their loved one, when that evidence can have no relevance because the defendant is not death-eligible? Why should jurors be presented with evidence of aggravating circumstances which cannot be charged, much less found, because the defendant cannot be executed? Partly due to a mentally retarded defendant's cognitive and behavioral impairments,

¶16 The answer may be found in the majority's characterization of a jury verdict recommending execution for a mentally retarded person: "an excessive sentence."

¶17 I also disagree with the majority's analysis of Murphy's Apprendi

FOOTNOTES