Thursday, September 13, 2012

Summary 2012 WY 123

Summary of Decision September 13, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed. Justice Voigt filed a specially concurring opinion.

Docket Number: S-12-0281

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, Kyle A. Ridgeway, Student Intern, Prosecution Assistance Program.  Argument by Mr. Ridgeway.

Date of Decision: September 13, 2012
Facts:  A Sheridan County jury found Shawn Osborne guilty of first degree murder.  He appealed the conviction, claiming his trial counsel was ineffective in failing to properly investigate and seek expert assistance with his defense that he was under the influence of alcohol and amphetamines to such an extent that he could not form the specific intent necessary for first degree murder. 

Issues:  Mr. Osborne states the issue for this Court’s consideration as follows:

Was Shawn Osborne denied effective assistance of counsel when his trial counsel failed to properly investigate and secure expert testimony thereby violating the Sixth Amendment to the United States Constitution and the requirements of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984)

The State phrases the issue as follows:

Wyoming Statute[] § 6-1-202 disallows self-induced intoxication as a defense to a criminal charge, but it allows defendants to offer evidence of it if relevant to negate a specific-intent element of a crime.  Osborne’s trial counsel offered evidence of self-induced intoxication to negate the premeditation element of the first-degree murder charge but did not present any expert testimony.  Was counsel ineffective in failing to use an expert even though he reasonably investigated the facts of Osborne’s case and made all the relevant arguments and objections at trial?
Holdings:  The evidence against Mr. Osborne was overwhelming.  Given the strength of that evidence, the Court was not persuaded that a reasonable probability existed that but for any failure on defense counsel’s part to investigate and present expert testimony concerning substance abuse delirium, the outcome would have been different.  Even with such expert testimony, the Court concluded the probability in this case was that the jury would have convicted Mr. Osborne of first degree murder.  Affirmed.

VOIGT, Justice, specially concurring.

I concur in the result reached by the majority because that result is mandated by precedent.  I write separately only to give voice to a concern we all should have with the Strickland standard cited in the majority, a standard that we have followed for years.  The problem is that, while it is often relatively easy to prove defense counsel’s deficient performance, it is practically impossible to prove prejudice because it is practically impossible to prove that the outcome would have been different had the jury been allowed to hear certain evidence.  This is especially true because our system does not allow a defendant to query the jury about its deliberations.  W.R.E. 606(b); U.R.D.C. 701.

In finding a lack of prejudice, the majority states that the evidence of guilt was overwhelming. See supra ¶ 26.  We frequently rely upon that rationale in finding no prejudice under Strickland.  See, e.g., Sincock v. State, 2003 WY 115, ¶ 59, 76 P.3d 323, 342 (Wyo. 2003).  Of course, where defense counsel has failed to produce evidence, it is likely to appear that the State’s evidence is overwhelming.  A pair of deuces is overwhelming where one’s opponent folds without showing his cards.

In the instant case, defense counsel recognized that the only defense available to the defendant was the argument that the combination of alcohol consumption and the ingestion of the drug Adderall rendered the defendant incapable of forming the specific intent to kill.  At the hearing upon the motion for a new trial, subsequent counsel produced evidence through an expert forensic neuropsychologist that the defendant likely was suffering from substance abuse delirium, which would have left him incapable of forming the necessary specific intent.  This question is so obviously beyond the ken of the average person that defense counsel’s mention during the jury trial of the defendant’s use of Adderall was meaningless without expert testimony.  The only way to counter “overwhelming” evidence is with contrary evidence.  Counsel’s deficiency in this regard was glaring.

The point I wish to make is that where defense counsel’s performance has been shown to be so ineffective as to deprive the defendant of that counsel assured him by the Sixth Amendment, we cannot rely upon the adversarial process as having produced a just trial.  Nevertheless, we continue to require the appellant to prove the impossible--that the results would have been different. See, e.g., Montez v. State, 2009 WY 17, ¶ 3, 201 P.3d 434, 436 (Wyo. 2009); Harlow v. State, 2005 WY 12, ¶ 45, 105 P.3d 1049, 1069 (Wyo. 2005).  It seems that there should be some line of egregiousness that, when crossed, the presumption becomes one of ineffectiveness.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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