Michael DeWayne Smith was convicted by an Oklahoma County jury in 2003 of the murders of Janet Moore and Sharath Pulluru, who died in Oklahoma City on February 22, 2002. Prosecutors said he was a gang member who killed Moore while looking for her son, whom he wrongly believed had given information to the police, and who killed Pulluru later the same day because he thought Pulluru had spoken disrespectfully of his gang in a newspaper interview. The jury sentenced him to death on both counts. In 2004 he was also convicted of second-degree murder in the death of a third person, Otis Payne, and received a separate life sentence.
Smith was 41 when he was executed in McAlester on April 4, 2024. He was the first person executed in Oklahoma that year and the twelfth since the state resumed executions in 2021. He had spent more than twenty years contesting the verdict, arguing in turn that he was intellectually disabled, that his confession was unreliable because of drug intoxication, that witnesses had recanted, and that testing of evidence would clear him. Every court that heard these arguments rejected them, and the Pardon and Parole Board voted 4-1 against clemency. At the clemency hearing Smith told the board he had not committed the crimes, and he also apologized to the victims' families.
Smith belonged to a gang in Oklahoma City. His intelligence was tested more than once, and the scores later became the center of the legal argument over whether he could be executed: courts recorded scores of 76 at the age of 18 and 79 in 2003, and a later test in 2009 gave a score of 71.
In November 2000 a 16-year-old gang associate of Smith's died during an incident in Oklahoma City. Smith was not involved. The state's case at trial was that the death of the 16-year-old, and what Smith took to be disrespect toward the gang in the press afterward, supplied the motive for the second killing in February 2002.
In 2004 Smith was convicted of second-degree murder in the death of Otis Payne and given a life sentence, separate from the capital case. Police were already looking for Smith in connection with that death when the killings of February 2002 took place, and the Attorney General's office described him in 2024 as a fugitive wanted for a separate killing at the time. Payne's death was not part of the capital trial, and its date has not been reported.
Janet Moore was 40, and she died in Oklahoma City. Prosecutors told the jury that Smith came looking for her son, who was not there, and that Smith killed her. In his statements to the police Smith said he had gone to find her son and killed her when she panicked.
Sarath "Babu" Pulluru, whose first name is also spelled Sharath, was 24. He died in Oklahoma City on the same day as Janet Moore. Prosecutors said Smith killed him because he believed Pulluru had made remarks to a newspaper about the earlier death of the gang associate. Pulluru had not spoken to reporters.
Smith was arrested on February 24, 2002, two days after the killings. Three days after the arrest he gave a recorded confession to detectives after receiving his Miranda warnings. Before his arrest he had also spoken of the killings to two people he knew. In the recorded statement Smith said he acted in retaliation for perceived wrongs to himself and his gang, that he went looking for Moore's son and killed her, and that he killed Pulluru to retaliate against Pulluru for what he took to be remarks in the press.
The state's case was that physical evidence from both scenes matched the details of the confession, and that the confession included information only the person responsible could have known. This became the central contest of the case. Smith's lawyers argued from the first that the confession was given while he was heavily intoxicated and that his low intelligence made the waiver of his rights invalid.
The case was filed in the Oklahoma County District Court as CF-2002-1329 and heard by Judge Twyla Mason Gray. The charges were two counts of Murder in the First Degree, one for each victim, and three further offenses, brought under 21 O.S. sections 1431, 801 and 1401, which arose from the same events. A jury heard the case in August and September 2003 and found Smith guilty on all five counts.
In the penalty phase the jury found two aggravating circumstances for each murder: that the murder was especially atrocious or cruel within the meaning of the statute, and that there was a probability that Smith would commit criminal acts of violence that would constitute a continuing threat to society. For the second finding the state offered evidence of earlier violent conduct for which Smith had not been convicted. The jury set the punishment at death on each murder count, 20 years on one of the other counts, 30 years on another, and 35 years with a $25,000 fine on the third. The judge imposed those sentences, which together came to 85 years on the non-murder counts.
Smith's direct appeal went to the Oklahoma Court of Criminal Appeals (case D-2003-1120) and raised eleven points. He argued that a potential alternate juror had been excluded improperly; that the two murders should not have been tried together; that a magistrate should not have arraigned him; that his waiver of his rights before the confession was not knowing and voluntary; that the trial judge had answered written questions from the jury without notice to defense counsel and without bringing the jury into court; that evidence about the November 2000 incident should not have been admitted; that the evidence was insufficient; that the aggravating circumstances were not proved; and that the errors taken together required a new trial.
On April 26, 2007, in Smith v. State, 2007 OK CR 16, the court affirmed the convictions and sentences. It found that the trial judge had been wrong to answer the jury's questions in that way, in breach of 22 O.S. section 894, but that the error caused no prejudice. It admitted the evidence about the earlier incident as corroboration of the confession, upheld both aggravating findings, and, in its mandatory review, held that the death sentences were not the product of passion, prejudice or any arbitrary factor and were appropriate. The U.S. Supreme Court denied certiorari on February 19, 2008.
The first application for post-conviction relief, filed in the same court (PCD-2005-142), argued that counsel had failed to present mitigating evidence. It was denied on February 24, 2009.
A second application, filed on April 20, 2010 (PCD-2010-150), brought three new lines of argument. Smith said he was intellectually disabled and so could not be executed; the court did not find him disabled, holding that the claim was waived and that under 21 O.S. section 701.10b a score of 76 or higher bars a finding of intellectual disability, and Smith had scored 76 and 79. He relied on affidavits from two witnesses from the trial, one of whom, in December 2009, recanted part of her testimony; the court held those claims procedurally barred because the facts had been available earlier. And he argued that his lawyers had failed to present evidence of brain damage related to drug use and of low intelligence, both at the confession stage and at sentencing; the court denied relief for lack of prejudice, observing that such evidence cuts both ways. The decision appears at 245 P.3d 1233.
Smith then sought federal habeas relief in the Western District of Oklahoma (CIV-09-293-D). On September 16, 2014, Judge Timothy D. DeGiusti denied the petition. He held the claims based on the witnesses' recantations procedurally barred in part and denied the rest on the merits, noting the confession and the evidence that supported it. On June 6, 2016, in Smith v. Duckworth, 824 F.3d 1233, the Tenth Circuit granted a certificate of appealability on four issues, intellectual disability, the waiver of his rights, the performance of counsel at sentencing, and cumulative error, and affirmed the denial of relief. It held that the state court had not unreasonably declined to adjust the IQ scores for the Flynn effect, and that Oklahoma's cutoff of 76 allows for the standard error of measurement that Hall v. Florida requires. The Supreme Court denied certiorari in 2017. The Oklahoma court decided a third post-conviction application on July 7, 2022.
Smith's execution was set for April 4, 2024. On February 23 Attorney General Gentner Drummond asked the Pardon and Parole Board to deny clemency, saying that Smith's claims of innocence had been "repeatedly rejected in court," that he had confessed on multiple occasions, that evidence at both scenes corroborated the confession, and that his intellectual disability claim was barred by his IQ scores. The Attorney General's office also noted that Smith was among about 10 percent of people on death rows in the United States who have killed more than one victim.
The board heard the case on March 6, 2024. Smith, by video, wept, said he had been high and did not remember being arrested, apologized to the victims' families, and said, "I didn't commit these crimes. I didn't kill these people." His lawyers, Mark and Lanita Henricksen, argued that he was intellectually disabled, that years of drug use had made his condition worse, and that serious doubts about his guilt remained. An assistant attorney general, Amie Ely, told the board that Smith remained "a continuing threat to society." The board voted 4-1 against recommending clemency; Calvin Prince III was the one member in favor.
On March 25 the Court of Criminal Appeals denied a request for a stay and a related appeal (MA-2024-195 and PC-2024-154). A district judge, Heather Coyle, had refused Smith's motion for further testing of evidence, and on April 2 the court affirmed that ruling in a unanimous opinion, writing that further testing would not undermine confidence in the conviction and that Smith had given "a very detailed, highly corroborated confession to police." Smith filed a fourth post-conviction application on April 2, resting on an affidavit signed on March 29 by one of the trial witnesses, who said parts of her 2002 testimony were false and had been induced by the court, the police and prosecutors. The court denied it on April 3 (PCD-2024-256), finding that the information could have been discovered with reasonable diligence much earlier and, in the alternative, that it lacked merit. On April 4 the U.S. Supreme Court denied both the stay application and the petition for certiorari, with Justice Gorsuch taking no part.
Smith was executed in McAlester on April 4, 2024, at the age of 41.
In Oklahoma a jury that convicts of first-degree murder in a capital case decides in a separate phase whether the state has proved at least one statutory aggravating circumstance and then sets the sentence. A death sentence is reviewed automatically by the Court of Criminal Appeals, which in Smith's case found it appropriate. Post-conviction applications after the first are limited by statute (22 O.S. section 1089(D)(8)) and court rule to claims that could not have been raised earlier, which is why most of Smith's later claims were barred without a ruling on their substance.
Smith's intellectual disability claim turned on a statute, 21 O.S. section 701.10b, under which a person with an IQ of 76 or higher cannot be found disabled. Oklahoma does not adjust scores for the Flynn effect, and the federal courts held that this was not contrary to Supreme Court law. The Attorney General cited the same scores in asking the board to deny clemency.
Smith's execution followed a long pause in the state's use of the death penalty. Oklahoma had stopped executions after problems with executions in 2014 and 2015 and resumed in late 2021. By April 2024 it had carried out 123 executions since its first in 1990, and 43 people were on its death row.
Smith denied the murders at his clemency hearing, in contrast to his recorded confession of 2002. His lawyers said the confession came while he was in a drug-induced state and that parts of it lacked support in the facts. Two witnesses from the trial later signed affidavits recanting parts of their testimony, in 2009 and in March 2024. The state said the confession was detailed, corroborated and given three times, and every court that reviewed the claims rejected them, most on procedural grounds and some on the merits.
November 2000: a 16-year-old gang associate of Smith's dies during an incident in Oklahoma City.
February 22, 2002: Janet Moore and Sharath Pulluru die in Oklahoma City.
February 24, 2002: Smith is arrested; a recorded confession follows three days later.
August and September 2003: jury trial in the Oklahoma County District Court; guilty on all five counts; death on each murder count.
2004: convicted of second-degree murder in the death of Otis Payne; life sentence.
April 26, 2007: Court of Criminal Appeals affirms.
February 19, 2008: U.S. Supreme Court denies certiorari.
February 24, 2009: first post-conviction application denied.
2010: second post-conviction application denied.
September 16, 2014: federal district court denies habeas relief.
June 6, 2016: Tenth Circuit affirms.
July 7, 2022: third post-conviction application decided.
February 23, 2024: Attorney General asks the board to deny clemency.
March 6, 2024: board votes 4-1 against clemency.
April 2 to 4, 2024: testing motion, fourth post-conviction application and stay requests denied.
April 4, 2024: executed in McAlester.