Lambert v. State

¶1Dissenting.

¶2¶ 11 strongly dissent to the Court’s alarming decision to vacate Petitioner’s death sentence and then modify his sentence to life imprisonment without parole. The Court has no business replacing a validly reached and legally supportable jury decision with its own personal point-of-view.

¶3¶ 2 In Myers v. State, 2005 OK CR 22, ¶ 7, 130 P.3d 262, 2005 WL 3334712 this Court set forth the standard of review we will use on appeal when a defendant challenges the sufficiency of the evidence following a jury finding that he or she is not mentally retarded. But now, in one of the first post-Myers cases, the Court has already grossly misapplied that standard to the extent it can be argued Myers has been overruled by implication. To apply a certain standard of review means more than using the right terminology. Here the Court actually applies de novo review in a crusade to impose its will over that of the finder of fact.

¶4¶ 3 By stating that no rational trier of fact could have found Petitioner failed to meet his burden by a preponderance of the evidence, the Court ignores one important fact. Twelve rational jurors reviewed the evidence in this case and did in fact reach that conclusion. Unless we can say no rational juror could have possibly reached that decision upon viewing the evidence in a light most favorable to the State, we have a legal duty to affirm.

¶5¶ 4 The Court’s opinion can be reached in only two ways, and neither is legitimate. The first is if we substitute -our view of the evidence for the jury’s. But this course is against our well-established case law that the jury is the exclusive judge of the weight and credibility of the evidence. See Smith v. State, 1996 OK CR 50, ¶ 23, 932 P.2d 521, 530; Robedeaux v. State, 1993 OK CR 57, ¶ 43, 866 P.2d 417, 429. It is also contrary to the very purpose of this Court. As set out in Article 7, § 4, of the Oklahoma Constitution, “the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases”.1

¶6¶ 5 The second manner in which the Court could reach its decision is if the trier of fact is found to be irrational. But the Court does not go there, for obvious reasons. Instead, the opinion seems to find the jury’s verdict is not worthy of credence because (1) the jury panel was tainted therefore Petitioner was not tried by an impartial jury and (2) because inadmissible evidence was heard and used in arriving at the verdict.2

¶7¶ 6 As for the first point, the opinion finds the jury panel was tainted on the first day of voir dire by a comment from a prospective juror concerning facts of the crime for which Petitioner now sits on death row. The United States Supreme Court and this Court have long held that an accused is not entitled to a juror who knows nothing about his case. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also DeRosa v. State, 2004 OK CR 19, ¶ 17, 89 P.3d 1124, 1134; Braun v. State, 1995 OK CR 42, 909 P.2d 783, 792; McBrain v. State, 1988 OK CR 261, ¶ 16, 764 P.2d 905, 909. Rather, when evaluating whether a juror is sufficiently impartial to be allowed to serve, “Hit is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” DeRosa, 2004 OK CR 19, ¶ 17, 89 P.3d at *6611134, quoting Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642.

¶8¶ 7 In the present case, the jurors said they could set aside any knowledge of the facts of the case they may have had and would decide the issue of mental retardation based solely upon the evidence presented at trial. This is all courts can ask of a juror. A review of the record shows the jury panel was not tainted.

¶9¶ 8 Secondly, the rules of evidence were properly applied in this case. The trial judge carefully considered the probative value of evidence offered for admission versus its prejudicial impact. Both the defense and the State made objections repeatedly, and the record reflects numerous discussions on why particular evidence was or was not admissible. The record reflects that only evidence relevant to the issue of mental retardation was admitted.

¶10¶ 9 Looking to that evidence and applying the Murphy standards, Petitioner made the threshold showing of a full scale IQ test score under 70. Then, concerning the first Mmphy prong, the evidence was sharply conflicting concerning his ability to understand and process information, communicate, learn from experiences, engage in logical reasoning, control impulses, and understand the reactions of others. Thus, when viewed in a light most favorable to the State, there was more than enough evidence for jurors to reach the conclusion they did.

¶11¶ 10 Appellant had several IQ tests that placed him near the top of the mildly mentally retarded range. However, the State’s expert challenged the validity of some of the tests and there was evidence of malingering from several credible sources. Petitioner’s former teachers testified he was held back in school and placed in edueable mentally handicapped classes, but the State’s evidence showed his poor school performance could be attributed to parental neglect. One teacher testified Petitioner was a behavior problem. She had wanted to put him in a special education class, but Petitioner tested two points above the cutoff for that class. He dropped out of school after the 7th grade, but this was because he was suspended for hitting a teacher.

¶12¶ 11 Petitioner’s former cellmates testified he had trouble reading, writing, and communicating orally. But the State presented examples of Petitioner’s writing and testimony from three Department of Corrections employees (two of whom worked with mentally retarded inmates) who had significant contact with him.3 The employees testified Petitioner was able to converse like any other inmate, recreate, make purchases, read, write, sign his name, and keep clean. They did not think of him as mentally retarded. Indeed, he scored high enough to be recommended for Yo Tech and completion of his GED. The State also presented significant evidence of Petitioner’s communications with police, which showed he could communicate effectively and remember events and details of his crimes.

¶13¶ 12 As for the 3rd Murphy prong,4 adaptive functioning,5 the State was hard-*662pressed to rebut Appellant’s claims that he could not maintain a job and has never lived independently, for Appellant has been incarcerated for 21 of his 38 years of life (a fact defense counsel disclosed to jurors during opening statements). Thus, the State had to rely on Appellant’s criminal history.6

¶14¶ 13 Whether or not prior crimes required abstract thought or complex planning relevant to the issue of mental retardation depends on the facts of that particular crime, not the type of crime committed. In Appellant’s case, evidence of his prior crimes showed he did not have significant limitations in social/interpersonal skills — he was a leader and not a follower, as the experts said most mentally retarded people are. He communicated well. That is, he made himself understood to his cohorts and victims and he understood what his victims and the authorities said to him. Plus, he did not have significant limitations in self-direction, as he was able to evade authorities for weeks.

¶15¶ 14 The crucial point is this: the evidence was conflicting on the first and third Murphy prongs. As such, the jury’s decision must stand. This Court has no business substituting what “we would do” for what twelve competent jurors did. As we said in Martinez v. State, 1999 OK CR 33, ¶ 36, 984 P.2d 813, 824:

... a fundamental premise of our criminal trial system is that “the jury is the lie detector.” Determining the weight and credibility of witness testimony, therefore, has long been held to be the “part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.”

¶16984 P.2d at 824 (internal citations omitted).

¶17¶ 15 According to Myers, “We will not disturb the jury verdict where there is any competent evidence reasonably tending to support it.” 2005 OK CR 22, ¶ 7, 130 P.3d 262, 2005 WL 3334712. If only that were true. However, rather than following the now established law, the Court disregards that law and the analysis it requires to reach a desired result. In doing so it seeks to tie the hands of the State of Oklahoma as to how it is able to present relevant evidence in all future cases of this type. I regret the Court has elected to overstep its bounds on so many fronts in this particular case. I had always believed the law and relevant evidence would dictate a decision. That has not proven true in this matter and because of that fact, I must dissent.