Salazar v. State

• Decision Date: 07 December 2005
• Docket Number: No. PCD-2002-984.,PCD-2002-984.
• Citation: 126 P.3d 625,2005 OK CR 24
• Parties: Maximo Lee SALAZAR, Appellant v. STATE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

126 P.3d 625

2005 OK CR 24

Maximo Lee SALAZAR, Appellant v. STATE of Oklahoma, Appellee.

No. PCD-2002-984.

Court of Criminal Appeals of Oklahoma.

December 7, 2005.

Bryan Lester Dupler, Laura M. Alredge, Vicki Ruth Adams, O.I.D.S., Capital Post Conviction Division, Norman, OK, Attorneys for Petitioner.

Brant M. Elmore, Asst. Attorney General, W.A. Drew Edmondson, Attorney General, Oklahoma City, OK, Attorneys for Respondent.

OPINION GRANTING POST-CONVICTION RELIEF

AFTER REMAND FOR JURY DETERMINATION ON ISSUE OF MENTAL RETARDATION

Opinion by C. JOHNSON, J.

¶ 1 Petitioner, Maximo Lee Salazar, was convicted by a jury in Comanche County District Court, Case No. CRF 1987-460, of First Degree Malice Aforethought Murder, in violation of 21 O.S.Supp.1982, § 701.7 (Count 1) and Burglary in the First Degree, in violation of 21 O.S.1981, § 1431 (Count 2). The jury found three (3) aggravating circumstances existed¹ and set punishment at death for the murder and ten (10) years imprisonment for the burglary. The trial court sentenced Petitioner accordingly. On direct appeal, we affirmed Petitioner's convictions for murder and burglary, but vacated the death sentence and remanded the case for resentencing. Salazar v. State, 1993 OK CR 21, 852 P.2d 729. A new sentencing proceeding was held before the Honorable Allen McCall, District Judge, on November 14-17, 1994, and the jury again returned a sentence of death. The jury found one (1) aggravating circumstance existed.² Petitioner appealed, and this Court again reversed and remanded the case for a second resentencing hearing. Salazar v. State, 1996 OK CR 25, 919 P.2d 1120.

¶ 2 A third sentencing hearing was conducted before the Honorable Allen McCall, District Judge, on October 28-31, 1996. The jury again returned a sentence of death, finding the existence of two (2) aggravating circumstances — that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and that Petitioner posed a continuing threat to society. On appeal, we affirmed Petitioner's death sentence. Salazar v. State, 1998 OK CR 70, 973 P.2d 315. Petitioner's Original Application for Post-Conviction Relief and Verified Motion for Evidentiary Hearing on Post-Conviction Claims were denied. See Order Denying Application for Post-Conviction Relief and Verified Motion for Evidentiary Hearing, Salazar v. State, PC 1998-663 (Okl.Cr. August 20, 1999)(not for publication). The United States Supreme Court denied certiorari in Salazar v. Oklahoma, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999).

¶ 3 On November 4, 2002, Petitioner filed a Successor Application for Post-Conviction Relief, pursuant to 22 O.S.2001, § 1089, and a Motion for Evidentiary Hearing, filed pursuant to Rule 9.7(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). We remanded the matter to Comanche County for an evidentiary hearing on Petitioner's claim of mental retardation, as raised in Proposition One of his Successor Application for Post-Conviction Relief. See Order Granting Motion for Evidentiary Hearing on Proposition One of Successor Application for Post-Conviction Relief, Salazar v. State, PCD 2002-984 (Okl.Cr. December 12, 2002)(not for publication). After the evidentiary hearing, we granted post-conviction relief, in part, and remanded this case to Comanche County District Court for a jury determination on Petitioner's claim of mental retardation. See Order Denying Post-Conviction Relief on Proposition Two; Order Granting Post-Conviction Relief on Proposition One and Remanding to the District Court of Comanche County for a Jury Determination on the Issue of Mental Retardation, Salazar v. State, PCD 2002-984 (Okl.Cr. June 11, 2003)(not for publication).

¶ 4 Pursuant to this Court's June 11th, 2003 Order, the Honorable Allen McCall, District Judge of Comanche County, empanelled a jury and trial on Petitioner's claim of mental retardation was held September 2nd, 2003 through September 5th, 2003. At the conclusion of the hearing, the jury found Petitioner was not mentally retarded. Petitioner, through counsel, then filed a Motion for New Trial, Judgment Notwithstanding the Verdict and Post-Trial Review in the District Court. The District Court denied these motions after a hearing on October 7, 2003. The trial court filed its Findings of Fact and Conclusions of Law in this Court on November 3, 2003.

¶ 5 Counsel for Petitioner filed a new Petition in Error and sought clarification of the procedure to appeal from the jury's verdict and from the trial court's Findings of Fact and Conclusions of Law. On January 15, 2004, counsel for Petitioner filed the Brief of Petitioner with Combined Motion for New Trial Based on Newly Discovered Evidence. A Motion to Supplement the Record, with attached supporting affidavits, was also tendered for filing on that date. In response to the request for clarification and in consideration of other pending cases involving post-conviction mental retardation claims, we published uniform procedures to be followed in capital post-conviction mental retardation cases. Salazar v. State, 2004 OK CR 4, 84 P.3d 764. In that Order, we advised Petitioner to file a new brief in compliance with the procedures and rules set forth therein and also denied Petitioner's Motion for New Trial on Newly Discovered Evidence.³ Salazar, 2004 OK CR 4, ¶¶ 3, 9, f. 2, 4, 84 P.3d 764, f. 2, 4. Thereafter, Petitioner's Brief was filed on February 18, 2004. Respondent's Supplemental Brief Following Jury Determination was filed on February 18, 2004.

¶ 6 Petitioner raises six propositions of error arising from the jury's determination that he is not mentally retarded:

1. The district court erred in the admission of "other crimes" evidence having little or no relevance to the limited question of mental retardation;

2. Deliberate, non-responsive comment on Mr. Salazar's right to remain silent by the State's expert witness violated the privilege against self-incrimination;

3. The trial court's instruction that mental retardation must be "present and known" before age 18 violated Atkins v. Virginia; 4. The trial court erred by denying Mr. Salazar's request to submit non-unanimous verdict forms to the jury;

5. The jury's verdict found Mr. Salazar "not mentally retarded" contrary to the clear weight of the evidence properly admitted at trial; and,

6. Newly discovered evidence about the prosecution expert's use of a non-standardized "malingering test," and his misleading testimony about his own testing and that of a defense expert, requires remand for a new trial or modification.

¶ 7 In Lambert v. State, 2003 OK CR 11, 71 P.3d 30, we said an

[A]tkins claim of mental retardation must be resolved pursuant to the definition of mental retardation as set forth in Murphy v. State. For capital purposes, a mentally retarded person is one with significantly limited ability to intellectually and adaptively function in enumerated areas, who has at least one IQ test score of 70 or below, and in whom the retardation manifested itself below age 18....

(footnotes omitted) Id., 2003 OK CR 11, ¶ 2, 71 P.3d at 31. The decision to be made on remand "is solely devoted to the question" of mental retardation. Id., 2003 OK CR 11, ¶ 3, 71 P.3d at 31. Petitioner's "criminal conviction and death sentence are not relevant to this issue" and

[t]he 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.... The only issue is whether [Lambert] meets the Murphy definition for mental retardation.

Id.

¶ 8 In Proposition Five, Petitioner claims the jury's verdict that he is not mentally retarded is contrary to the clear weight of the admissible evidence. We consider this claim with the claim raised in Proposition Six — that newly discovered evidence about the prosecution expert's use of a non-standardized "malingering test," and his misleading testimony about his own testing and that of a defense expert, requires remand for a new trial or modification.

¶ 9 At the jury determination hearing, Petitioner presented testimony from two of Petitioner's school teachers who recognized his mental retardation before the age of eighteen.⁴ He presented evidence of intelligence testing reflecting at least one score below seventy (70).⁵ He presented testimony showing significant deficits in certain areas of adaptive functioning.⁶ The State presented evidence to refute these claims and much of the State's case consisted of testimony concerning the circumstances surrounding crimes committed by Petitioner, although not the crime for which Petitioner was sentenced to death.⁷

¶ 10 The State also presented two expert witnesses to dispute Petitioner's intelligence testing scores and evidence. One of these witnesses was Dr. John Call, and the record shows Dr. Call was the State's most persuasive and most pivotal witness. Dr. Call disagreed with Petitioner's forensic psychological witnesses who testified that Petitioner was mentally retarded and Dr. Call testified that each of the IQ tests reflecting a score lower than seventy was invalid for one reason or another. His testimony was crucial to the State's position, as it was he who discredited and contradicted each of Petitioner's witnesses.

¶ 11 Among other things, Dr. Call testified that Petitioner was malingering. He believed Petitioner was malingering when he, Dr. Call, administered the Wechsler Adult Intelligence Scale, 3rd Edition, and obtained a full scale IQ score of 68. Dr. Call administered the Test of Memory Malingering (TOMM) and a Forced Choice Symptom Validity Test. He described one of the two "malingering" tests he administered as one in which he showed Petitioner twenty-five common words and asked him to memorize those words. Then he gave Petitioner another list of twenty-five...