Concur in Part/Dissent in Part.
¶ 1 I concur in the Court's decision to grant the Writ of Prohibition in this case. However, I must dissent to the Court creating a procedure that not only further delays a trial on the merits in a capital murder case, but is totally unnecessary.
¶ 2 While I recognize the Court is vested with the authority to create procedures of this type, I believe the first question to ask is whether the procedure is necessary. This Court has already developed a procedure through its decisions in Murphy v. State, 2002 OK CR 32, 54 P.3d 556; Lambert v. State, 2003 OK CR 11, 71 P.3d 30; and Pickens v. State, 2003 OK CR 16, 74 P.3d 601. Simply put, in a capital murder trial the jury is instructed regarding the law relating to mental retardation and directed to *636determine if the defendant is mentally retarded under those instructions in the penalty phase of the trial. If the jury finds the defendant mentally retarded, the instructions advise the death penalty cannot be applied. If the jury determines the defendant is not mentally retarded, they are instructed to consider the evidence relating to mental retardation as part of the mitigation evidence in the case. Upon assessment of the death penalty, in a case where mental retardation is raised as an issue, a post trial hearing, upon the request of the defendant, is required to have the trial judge determine "if the jury's decision on the issue of mental retardation has resulted in an excessive sentence, i.e., a sentence that imposed the death penalty upon a defendant who is mentally retarded, as herein defined." Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 568-69. This Court would then review all allegations of error in the trial during the direct appeal and mandatory sentence review.
¶ 3 The procedure for raising the issue of mental retardation for the first time as a part of a post-conviction application is just as simple and efficient. Simply put, an appellant must first make a showing either in the original or subsequent application for post-conviction relief, pursuant to Rule 8.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2003), that there is clear and convincing evidence of the issue of mental retardation to warrant a remand to the District Court for an evidentiary hearing. If remanded, the District Court will hold an evidentiary hearing to determine if there is sufficient evidence regarding whether the defendant is mentally retarded, as defined in Atkins and Murphy, to require a jury trial on the issue. If there is sufficient evidence and a jury trial on the issue of mental retardation is ordered, the sole issue for that jury is whether the defendant is mentally retarded. The procedure does not require a retrial on the issue of guilt.1 It goes without saying, any and all evidence relating to the issue of mental retardation, whether it arose during the original trial on the merits or was subsequently developed, would be admissible.
¶ 4 Here, the record reveals the District Court was aware of the separate procedures for the original trial on the merits and a hearing on post-conviction remand, but the judge was hesitant to follow the procedure. As a result, it appears the judge combined the two separate procedures into one. A part of this misconception is attributable to the final language in the Murphy decision. This type of problem was anticipated in the original language drafted in Murphy, ie. "unless the parties enter into a stipulation on this issue at trial or prior to trial ...". However, due to the group dynamics often present in the writing of appellate opinions, the language was changed to "unless the issue of mental retardation is resolved prior to trial, ...". Murphy, 2002 OK CR 32, 132, 54 P.3d at 568. Had the original language been left in place, the current confusion would likely not have occurred. I firmly believe defense attorneys and prosecutors would readily recognize those cases where mental retardation is clear and a stipulation should be entered. In those cases raising a question of fact, the issue should and would be determined by a jury, unless waived.
1 5 Instead of merely clarifying and applying the procedure already established, the Court elects to add time, hearings, and appeal to an already elongated process. In doing so, I believe the Court misuses the provisions of 22 0.8.2001, § 1053 to create an interlocutory appeal of an issue that will ultimately require review by this Court during the direct appeal of the case, should a verdict of guilt be entered. I cannot find support for that type of appeal created within the statute. The only sub-provision even remotely applicable is § 1053(5). However, that provision deals with suppressing or excluding evidence, not the determination of an issue on the merits, ie. mental retardation. We have previously held the quashing of a Bill of Particulars is an error to be addressed in a regular appeal. See Matthews v. State, 2002 OK CR 16, 45 P.3d 907, 924. Why create an interlocutory appeal on an issue that will ultimately also have to be adjudicat*637ed as a part of the direct appeal upon conviction? Further, our case law is replete with this Court firmly denying the use of an interlocutory appeal in the progress of a case. See, Nguyen v. State, 1989 OK CR 6, 772 P.2d 401, 403; Hardin v. State, 1982 OK CR 124, 649 P.2d 799, 804; State v. Lemmon, 1978 OK CR 10, 574 P.2d 1057, 1059; Jones v. Dillard, 1976 OK CR 9, 545 P.2d 209, 210.
¶ 6 Furthermore, the procedure created for this pre-trial hearing and interlocutory appeal itself creates potential problems. The Order says, "By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation." 2 Order at T 18. But then, the Order says, "At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record." Order at 14. Will this then require a determination of competency to be able to enter the waiver? How about a jury trial on competency prior to the evidentiary hearing? Remember, the issue a judge of the District Court is being asked to determine is if the defendant is mentally retarded. What happens if the defendant fails to enter a waiver on the record, does the Motion to Quash control or is the matter set for trial pursuant to Murphy ? These are the type of problems that can arise when courts seek to complicate otherwise simple procedures to try to answer a question that has already been answered.
¶ 7 Furthermore, creating a waiver of a Constitutional right and a new interlocutory appeal seems unusually "legislative" to me, especially where we do not have a better statutory basis than we do here. House Bill 2635, the original bill passed by our Legislature in 2002 prior to gubernatorial veto and the U.S. Supreme Court's decision in Atkins v. Virginia, did not provide for such a pretrial ruling, did not require a personal waiver, and did not create an interlocutory appeal. Currently, House Bill 2710 is pending in the 2004 session of the Legislature and it too is mute on these issues. I would be extremely hesitant to take the position this Court has now taken knowing the Oklahoma Legislature's only pronouncement concerning these issues addresses the issue of mental retardation in the context of a trial, consistent with our decision in Murphy. Does the Court truly believe it is saving "time and expense" by creating a new right of appeal before trial even begins? Does the Court really want to foree a criminal defendant into the Hobson's choice of waiving his or her right to have a jury decide the issue of mental retardation in order to obtain this pretrial determination? How will that waiver impact his or her ability to present the issue of mental retardation at sentencing, if the pretrial proceedings do not result in the desired results? Will this Court then abandon the legal principle of res judicata, forget the ruling on the interlocutory appeal because "death is different", and allow a defendant to have another bite at the apple? I highly doubt our Legislature will agree with this approach. However, that is a choice they will ultimately have to make.
¶8 The clear and simple way to address this Application for Writ of Prohibition is to say the question asked was answered in Murphy. Pursuant to the procedure and instructions adopted in Murphy the issue of mental retardation is tried to the jury during the penalty phase of a capital murder case. The duty of the trial judge at a post-trial "Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice, or any other arbitrary factor". See Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 569. This Court then reviews all issues at one time as a part of the direct appeal.
*638¶ 9 Appellate courts are tasked with the dual responsibility to adjudicate cases and manage the appellate system to ensure fair, objective, speedy and efficient disposition of cases. The court should be a part of the solution and not the problem in maintaining an efficient, responsive judicial system. In Murphy this Court ensured a defendant's right to due process was preserved and a jury, having received all relevant evidence both prior to and during the commission of the crime, was afforded the responsibility to determine the issue of mental retardation. The procedure adopted today appears to distrust the ability of a jury in capital cases to make that important decision. Rather, it seeks to provide the judges of this Court, under the guise of de movo review, the power to decide who shall be eligible for the death penalty. I have more faith in the men and women who perform the valuable service of jurors. I believe they follow their oaths and the instructions of the court in making those hard decisions. We should honor that service. Members of this Court are ill equipped to serve as a fact finder on these issues. Our job is to determine if the evidence supports the decision of the fact finder.
¶10 As previously stated, I acknowledge the authority of the Court to establish the pre-trial procedure. I find no authority to create an interlocutory appeal. And, I believe this procedure will create more issues than it resolves while denying a speedy and efficient determination of the trial on the merits before a jury.
. Lambert and Pickens were post-conviction cases that discussed only the scope of trial on remand for the issue of mental retardation. Those cases did not discuss or affect the procedure to be utilized when a defendant is initially on trial in a capital case.
. The Court does not even consider the fact the State also has a right to a jury trial. As we have previously held in Crawford v. Brown, 1975 OK CR 114, 536 P.2d 988, "Accordingly, we do not find it unconstitutional to predicate the informed, intelligent waiver of such a right upon the consent of the State's attorney and the judge of the trial court. The refusal of either to consent will result in a trial by jury as guaranteed to the defendant by our Constitution (Article II, Sections 19 and 20). The State in our adversary criminal justice system, has a valid and legitimate interest in trying its case before that body which both history and the framers of our Constitutions have felt produced the fairest end result-the jury." Id. at 990. See also, Valega v. City of Oklahoma City, 1988 OK CR 101, 755 P.2d 118, 119.