Myers v. State

• Decision Date: 17 November 2005
• Docket Number: No. PCD 2002-978.,PCD 2002-978.
• Citation: 130 P.3d 262,2005 OK CR 22
• Parties: Karl Lee MYERS, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P.3d 262

2005 OK CR 22

Karl Lee MYERS, Appellant v. STATE of Oklahoma, Appellee.

No. PCD 2002-978.

Court of Criminal Appeals of Oklahoma.

November 17, 2005.

COPYRIGHT MATERIAL OMITTED

An Appeal from the District Court of Rogers County; the Honorable Dynda Post, District Judge.

Bryan L. Dupler, Wyndi Thomas-Hobbs, Oklahoma Indigent Defense System, Capital Post-Conviction Division, Norman, OK, attorneys for defendant/appellant at trial on mental retardation and appeal.

Ray Hasselman, Edith Singer, Assistant District Attorneys, Rogers County Courthouse, Claremore, OK, attorneys for the State at the trial on mental retardation.

Laura M. Arledge, Oklahoma Indigent Defense System, Capital Post-Conviction Division, Norman, OK, attorney for appellant on appeal.

No State response on appeal.

OPINION DENYING POST-CONVICTION RELIEF AFTER MENTAL RETARDATION TRIAL

A. JOHNSON, J.

¶ 1 Karl Lee Myers was tried by jury in the District Court of Rogers County, Case No. CF-96-233, and was convicted of First Degree Murder for the death of Cindy Marzano.¹ The jury found the existence of four aggravating circumstances, concluded that the aggravating circumstances outweighed the mitigating evidence and sentenced Myers to death. This Court affirmed Myers's Judgment and Sentence in Myers v. State, 2000 OK CR 25, 17 P.3d 1021, and the United States Supreme Court denied Myers's petition for writ of certiorari in Myers v. Oklahoma, 534 U.S. 900, 122 S.Ct. 228, 151 L.Ed.2d 163 (2001).

¶ 2 Myers thereafter filed an initial application for post-conviction relief which was denied in an unpublished opinion. Myers v State, Case No. PCD-2000-516 (Okl.Cr.2001). On November 4, 2002, Myers filed a second application for post-conviction relief, raising, among other issues, an Atkins² claim that he could not be executed because he was mentally retarded. On January 27, 2003, we ordered the State to respond to Myers's Atkins claim. On August 1, 2003 following receipt of the State's response, this Court issued an order denying in part and granting in part Myers's second post-conviction application. We remanded this matter to the District Court of Rogers County for an evidentiary hearing on the issue of Myers's mental retardation to determine if there was sufficient evidence of mental retardation to entitle Myers to a jury trial on the issue.

¶ 3 Myers's evidentiary hearing was held October 27-28, 2003 in the District Court of Rogers County before the Honorable Dynda Post, District Judge. Judge Post submitted Findings of Fact to this Court on November 12, 2003, concluding that Myers had presented sufficient admissible evidence to create a fact question on the issue of mental retardation, requiring a jury trial to resolve the factual issue pursuant to Murphy v. State, 2002 OK CR 32, ¶ 39, 54 P.3d 556, 568-70 (hereinafter Murphy I).³ Thereafter, Myers filed a brief urging this Court to adopt Judge Post's findings.⁴ After reviewing the evidence we too found that Myers had presented sufficient evidence of mental retardation and we remanded the matter back to the District Court of Rogers County for a jury trial on that factual issue.

¶ 4 On August 30, 2004, Judge Post impaneled a jury to hear Myers's claim of mental retardation. At the conclusion of the ten-day mental retardation trial, the jury found that Myers was not mentally retarded. On October 4, 2004, Judge Post filed her Findings of Fact and Conclusions of Law with this Court, concluding that the jury's verdict was supported by the evidence and was not influenced by passion, prejudice or any arbitrary factor. The district court record, trial court transcripts and exhibits were filed with the Clerk of this Court on October 27, 2004. On January 18, 2005, Myers filed a supplemental brief raising four claims of error.⁵

¶ 5 Though this appeal remains part of Myers's post-conviction case, errors alleged to have occurred during his jury trial on mental retardation will be reviewed in the same manner as errors raised on direct appeal from a trial on the merits. We review Myers's fourth claim first. In Proposition IV, Myers contends that the jury's verdict was contrary to the evidence, and that the facts established at trial show that he is mentally retarded. He argues therefore that to carry out his death sentence would constitute cruel and unusual punishment. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

¶ 6 A defendant must prove mental retardation by a preponderance of the evidence.⁶ State, ex rel. Lane v. Bass, 2004 OK CR 14, ¶ 8, 87 P.3d 629, 631-32; Lambert v. State, 2003 OK CR 11, ¶ 4, 71 P.3d 30, 32. He must show: 1) that he functions at a significantly sub-average intellectual level that substantially limits his 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) that his mental retardation manifested itself before the age of 18; and 3) that he has significant limitations in adaptive functioning in at least two of the nine listed skill areas.⁷ Murphy I, 2002 OK CR 32, ¶ 31, 54 P.3d at 567-68. The jury weighs the evidence presented by the defendant and by the state and determines whether the defendant has met his burden of proof that he is mentally retarded. If the jury finds that the defendant is not mentally retarded, as it did in this case, the death sentence stands. See Lambert, 2003 OK CR 11, ¶ 4, 71 P.3d at 32.

¶ 7 Whether a person is mentally retarded is a question of fact.⁸ In evaluating questions of fact decided by a jury we give great deference to the jury's finding. We will not disturb the jury verdict where there is any competent evidence reasonably tending to support it. See Johnson v. State, 2004 OK CR 23, ¶ 10, 93 P.3d 41, 44-45. When the defendant challenges the sufficiency of the evidence following a jury finding that he is not mentally retarded, this Court will review the evidence in the light most favorable to the State to determine if any rational trier of fact could have reached the same conclusion. Id.⁹

¶ 8 Applying this standard of review to the present case, we find the record supports the jury's verdict that Myers is not mentally retarded. Myers intellectual ability has been tested throughout his life by use of full-scale I.Q. (F.S.I.Q.) tests, intelligence-screening tests, and partial I.Q. tests. His scores on these various tests ranged from 66 to 88.¹⁰ His scores on F.S.I.Q. tests ranged from a low of 66 to a high of 77.¹¹ His only F.S.I.Q. test scores below seventy occurred once in 1957 and twice in preparation for this litigation of his mental retardation claim. In the district court Myers relied, in part, on these three test scores to show that he functioned at a significantly sub-average intellectual level. The jury, however, was also entitled to consider Myers's test scores above seventy and conclude that he functioned at the higher level. Further, I.Q. tests alone are not determinative of the issue of mental retardation. Murphy I, 2002 OK CR 32, ¶ 31, 54 P.3d at 568.

¶ 9 Other evidence supports the finding that Myers failed to prove by a preponderance of the evidence that he functioned at a significantly sub-average intellectual level and that he had significant adaptive functioning limitations in communication, academics and use of community resources as he alleged.¹² Many witnesses, both lay and expert, testified about Myers's functional ability and his adaptive functioning. These witnesses established that Myers had held a regular job as a truck driver, and had successfully passed the test for a commercial driver's license allowing him to drive a tractor-trailer rig. He had also worked as a forklift operator in a warehouse, loading and unloading trucks based on bills of lading. That job required him to complete classroom training, proficiency training and pass a written test in order to drive the forklift. He was also able to do some work as a mechanic and worked for a time in an automotive shop. While in prison, Myers learned to read simple material and earned a certificate showing he had learned to weld and fabricate metal.

¶ 10 Myers lived by himself and was able to maintain his home and take care of himself and several animals. Myers assisted in the care of his wife as she was dying of cancer. He was capable enough to follow directions and retrieve needed medication and supplies. After his wife died, Myers managed his own financial affairs, including refinancing his property.

¶ 11 Myers was able to effectively communicate with people. He was able to socialize with acquaintances without difficulty. Myers could understand others, make himself understood, express his wishes and understand the reactions of others. He was able to plan for future events. He was able to mislead people and, when confronted with inconsistencies in his stories, he could conform his story to fit the facts. And there was evidence that Myers negotiated his own grant of immunity with a sheriff in Kansas for a crime he committed there. This record does not support a finding that Myers functions at a significantly sub-average intellectual level or that he suffers from deficits in adaptive functioning. We, therefore, find that any rational jury could have concluded Myers was not mentally retarded as defined in Murphy I.

¶ 12 We now turn to Myers's other propositions of error.¹³ In Proposition I, Myers claims that the district court's instruction that mental retardation must be "present and known" before age 18 violates Atkins. Myers argues that the "present and known" language creates a higher burden than the "manifests" language used in Murphy I. Myers's counsel objected to the district court giving the instruction adopted in Murphy I, now known as OUJI-CR 2d 4-68A (2003 Supp.). Myers proposed the district court drop the "present and known" language in the instruction and substitute ...