Hooks v. State

■ LUMPKIN, V.P. J.,

concurs in results.

¶ 1 I concur in the results reached by the Court, but write separately to address certain points. Initially, I find this Court has properly applied the standard of review set forth in Myers v. State, 2005 OK CR 22 , 130 P.3d 262 , for use on appeal when a defendant challenges the sufficiency of the evidence following a jury finding that he or she is not mentally retarded.

¶ 2 Additionally, I find the broad range of IQ test results spanning from 53 to 80 made a ipso facto showing Petitioner is not mentally retarded. A truly mentally retarded individual will not, indeed cannot, produce test results over such a broad spectrum. That is, a person with an IQ in the low fifties is incapable of suddenly scoring in the low eighties. While Petitioner apparently had some learning difficulties as he progressed through school, which may have been compounded by the automobile accident when he was 16 years old, mental retardation does not appear to be the cause of those problems. *646 Mental retardation is a cognitive defect that originates at birth and is not subject to change over time. See Murphy v. State, 2003 OK CR 6, ¶ 23 , 66 P.3d 456, 460 . As an inherent defect that manifests in childhood, the disease may not be cured or rehabilitated. This is one of the primary reasons why the Supreme Court determined in Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) that mentally retarded persons must be protected from the imposition of the death penalty.

¶ 3 I also agree that Petitioner’s ability to carry on a criminal enterprise, i.e. a prostitution ring, was relevant evidence to the issue of mental retardation as it was indicative of his adaptive functioning and level of intelligence. There is little difference in relevance between this type evidence and a person’s past work experience. Both demonstrate one’s ability to plan, manage, execute plans, follow through with orders, etc. Just because a person has chosen a past work history of criminal conduct does not mean the evidence is inadmissible. If it is relevant to show a person’s intellectual ability and adaptive functioning pursuant to the Murphy criteria, it should be admissible.

¶ 4 But the Court wrongly attempts to limit the type of other crimes evidence that may be presented, stating “individual acts of violent crime, such as armed robbery or rape, require little or no abstract thought or complex planning” and therefore are not relevant to the issue of mental retardation. Whether or not prior crimes required abstract thought or complex planning depends on the facts of that particular crime, not the type of crime committed. Evidence of a defendant’s prior criminal history (including adjudicated and unadjudicated offenses) should not be categorically excluded. Certainly, the evidence must be scrutinized to ensure it is not presented merely to create prejudice or inflame the jury. However, as in this case, it is possible and appropriate to present that evidence in such a manner as to be a valid tool in assisting the fact finder in evaluating the true abilities or limitations of the defendant.

¶ 5 The same is true regarding the facts of the homicide for which the defendant received the death penalty. If the manner in which the crime was planned, managed, and carried out is such that those facts address a defendant’s level of intelligence or adaptive functioning, the evidence should be admitted, to the extent it survives a 12 O.S.2001, § 2403 analysis, to assist the fact finder in reaching its decision under the law and the evidence of the case. This Court cannot be a prophet as to what may be relevant in a particular future case, and thus, should not attempt to act like one with such broad, non-fact based arbitrary pronouncements. As in this case, we must evaluate the evidence in all future cases based on the context and relevance to the issues presented.