Howell v. State

• Decision Date: 29 June 2006
• Docket Number: No. PCD-2003-268.,PCD-2003-268.
• Citation: 2006 OK CR 28,138 P.3d 549
• Parties: Michael Wayne HOWELL, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

138 P.3d 549

2006 OK CR 28

Michael Wayne HOWELL, Petitioner, v. STATE of Oklahoma, Respondent.

No. PCD-2003-268.

Court of Criminal Appeals of Oklahoma.

June 29, 2006.

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Bryan Dupler, Laura M. Arledge, Norman, OK, Attorneys for Petitioner at Trial.

Pattye High, David Brockman, Asst. District Attorneys, W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer Dickson, Assistant Attorney General, Oklahoma City, Ok, Attorneys for the State on Appeal.

OPINION DENYING SECOND APPLICATION FOR POST CONVICTION RELIEF AFTER REMAND FOR JURY DETERMINATION ON ISSUE OF MENTAL RETARDATION

C. JOHNSON, Judge.

¶ 1 Petitioner, Michael Wayne Howell, was convicted by a jury in Oklahoma County District Court, Case No. CRF 1987-6784, of First Degree Murder, committed with malice aforethought, in violation of 21 O.S.1981, § 701.7. The jury set punishment at death after finding the existence of three (3) aggravating circumstances.¹ On appeal, we affirmed Howell's conviction but vacated his sentence of death and remanded the case for resentencing. Howell v. State, 1994 OK CR 62, ¶ 39, 882 P.2d 1086, 1095. A second jury sentencing was held and the jury again returned with a sentence of death after finding the existence of the same three (3) aggravating circumstances found in the original sentencing. On appeal from the resentencing, we affirmed Howell's sentence of death. Howell v. State, 1998 OK CR 53, 967 P.2d 1221. We denied his original application for post-conviction relief in Howell v. State, PC 1998-200 (Okl.Cr. December 16, 1998)(not for publication). Howell sought further review of the outcome of his state direct appeals. The Supreme Court of the United States denied certiorari in Howell v. Oklahoma, 514 U.S. 1113, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995) and in Howell v. Oklahoma, 528 U.S. 834, 120 S.Ct. 93, 145 L.Ed.2d 79 (1999).

¶ 2 On June 16, 2003, Howell, through counsel, filed his Second Application for Post-Conviction Relief, pursuant to 22 O.S. 2001, § 1089. Accompanying his Application was a Motion for Evidentiary Hearing on Post-Conviction Claim, filed pursuant to Rule 9.7(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003). In his sole proposition of error, Howell claimed that in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), his death sentence should be vacated and modified to a non-capital sentence.² Alternatively, Howell requested this Court remand the matter for an evidentiary hearing to determine whether his mental disabilities bar his execution. We remanded to the District Court of Oklahoma County for an evidentiary hearing. See Order Granting Motion for Evidentiary Hearing on Proposition One of Second Application for Post-Conviction Relief, Howell v. State, PCD 2003-268 (Okl.Cr. November 18, 2003)(not for publication). After the District Court found a "triable question of fact concerning Petitioner's mental retardation which must be resolved by a jury," we granted post-conviction relief and remanded his case for a jury trial on his claim of mental retardation. Howell v. State, PCD 2003-268 (Okl.Cr. May 3, 2004)(not for publication).

¶ 3 Howell's jury trial on mental retardation was held in Oklahoma County District Court, before the Honorable Virgil C. Black, District Judge on May 23rd-27th, 2005. Howell waived his personal appearance at the jury trial, but was represented by counsel prior to and throughout the trial. The jury returned with a verdict that Howell is not mentally retarded. The trial court denied Howell's motion for a new trial. The trial court filed written findings of fact and conclusions of law. Both parties filed Supplemental Briefs on September 23, 2005. Howell asks this Court to reverse the jury's verdict and order a new trial, or in the alternative, modify his sentence of death to a non-capital sentence due to his mental retardation.

¶ 4 Though this appeal remains part of Howell's post-conviction case, we will review errors alleged to have occurred in this jury trial on mental retardation in the same manner as errors raised on direct appeal from a trial on the merits. Myers v. State, 2005 OK CR 22, ¶ 5, 130 P.3d 262. Howell raises eleven (11) propositions of error.

1. The prosecutor exceeded the proper bounds of opening statement and violated Lambert by indirect reference to the facts of the capital crime in opening statement;

2. The prosecutor's irrelevant and improper statements about Petitioner's character in closing argument constituted reversible error;

3. The trial court improperly admitted irrelevant and prejudicial law enforcement opinion concerning Petitioner's mental functioning without a proper foundation;

4. The trial court improperly admitted irrelevant and prejudicial opinion testimony from a former prosecutor/current district judge concerning Petitioner's competency to testify;

5. The trial court improperly admitted irrelevant and prejudicial letters attributed to the Petitioner;

6. Evidence of Petitioner's use of verbal obscenities denied Petitioner a fair trial.

7. The trial court's instruction that mental retardation must be "present and known" before age 18 violated Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002);

8. The trial court erred by denying non-unanimous verdict forms to the jury;

9. The admission of irrelevant and prejudicial testimony about the murder investigation and from Petitioner's capital trial violated the strict relevancy limitations on such evidence required by Lambert v. State and Atkins v. Virginia;

10. The allocation of the burden of proof by a preponderance of the evidence to the Petitioner violates the Eighth Amendment and denies an adequate procedure for determining mental retardation;

11. The facts proven at trial showed Petitioner's mental retardation as a matter of constitutional law. The jury's verdict is contrary to the evidence and cannot stand.

The State, in its Supplemental Brief, submits the trial court followed proper procedure and properly instructed the jury and sufficient evidence supported the jury's determination that Howell is not mentally retarded.

¶ 5 In Murphy v. State, 2002 OK CR 32, ¶ 13, 54 P.3d 556, 567, we adopted the following definition of mental retardation for use in determining whether an individual is mentally retarded and therefore ineligible for the death penalty:

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) and (3) The mental retardation is accompanied by significant limitations in adaptive functioning 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.

It is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Id. (footnotes omitted).

¶ 6 In Lambert v. State, 2003 OK CR 11, ¶ 3, 71 P.3d 30, we stated a petitioner's criminal conviction and sentence of death were not relevant to the jury's determination of mental retardation and the jury "should not hear evidence of the crimes for which Lambert was convicted, unless the particular facts of the case are relevant to the issue of mental retardation. Any such evidence should be narrowly confined to that issue." (emphasis added). In his first claim of error, Howell contends the prosecutor exceeded the proper bounds of opening statement and violated Lambert by indirectly referring to the facts of the capital crime in her opening statement.

¶ 7 The purpose of opening statement is to tell the jury of the evidence the attorneys expect to present during trial. Its scope is determined at the discretion of the trial court. Hammon v. State, 1995 OK CR 33, ¶ 87, 898 P.2d 1287, 1306.

¶ 8 The prosecutor in this case talked about Howell's involvement in the criminal justice system, his incarceration and escape from a correctional facility, and his involvement in drug trafficking and in particular a drug deal gone awry. After the prosecutor mentioned Petitioner's escape from a correctional facility, Petitioner's counsel objected that the statement was beyond the proper scope of opening statement and the objection was properly overruled. The prosecutor was outlining the evidence which she intended to present at trial. Next Petitioner's counsel objected to the prosecutor's statement that Petitioner was part of a numbers racket. The trial court properly overruled this objection noting the prosecutor merely stated what Petitioner said during his own testimony. Counsel's last objection came after the prosecutor referred to Howell's testimony that "people get killed over dope and money." Counsel argued the prosecutor had indirectly referred to the facts of the capital crime—someone getting killed over drugs and money. This objection too was properly overruled as no specific mention of Howell's capital crime occurred and the prosecutor's statement was made to explain Howell's actions stemming from his involvement in cocaine distribution.

¶ 9 The trial court, upon counsel's objections, properly determined the prosecutor had not exceeded the proper scope of...