Wong v. Money

• Decision Date: 16 April 1998
• Docket Number: No. 96-4155,96-4155
• Citation: 142 F.3d 313
• Parties: Carrie C. WONG, Petitioner-Appellant, v. Christine MONEY, Warden; Attorney General of the State of Ohio, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 313

142 F.3d 313

Carrie C. WONG, Petitioner-Appellant, v. Christine MONEY, Warden; Attorney General of the State of

Ohio, Respondents-Appellees.

No. 96-4155.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 27, 1998.

Decided April 16, 1998.

F. Lee Bailey (argued), Kenneth J. Fishman (briefed), Bailey, Fishman & Leonard, Boston, MA, for Appellant.

Jonathan R. Fulkerson (argued), Jon C. Walden (briefed), Office of Atty. Gen. of Ohio, Columbus, OH, for Appellee.

Before: GUY, NELSON, and SUHRHEINRICH, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner Carrie C. Wong appeals from the district court's denial of her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We AFFIRM.

I.

On October 25, 1991, police officers in Jackson County, Ohio, responded to a 911 call placed by Petitioner's daughter, Patty Wong, indicating that Petitioner was acting oddly and in need of assistance. Officer Terry Snyder of the Oak Hill Police Department arrived at Petitioner's house, knocked on the back door, and identified himself as a police officer. Officer Snyder then heard a shotgun blast which went through the bottom part of the door. He retreated to his cruiser and called for back-up. Officer Dave Ward, Chief of the Oak Hill Police Department, arrived next at the scene. He and Officer Snyder heard another shot, which actually hit Ward's cruiser. At some point, either before or after this second shot, Patty came outside, explained that the dog had knocked over the gun, and then went back into the house.

Dr. Henry Wong arrived next. As he approached the back door, a third shot came through the door. This shot did not hit anyone; however, glass flew from the door and landed on Dr. Wong's feet. Dr. Wong attempted to run to another door, but officers handcuffed him and placed him in a cruiser.

Additional police officers arrived and completely surrounded the Wong house. Thereafter, two officers approached the house in an attempt to subdue the Petitioner. After initially speaking with one of the officers, Petitioner fired the shotgun again. Two officers were injured, including Officer Snyder who was struck in the face and lost an eye.

Petitioner then came out of the house, still armed with the shotgun, and began pacing back and forth in front of the garage. Petitioner fired the shotgun through an awning and subsequently reloaded the gun. After she fired the gun again, police officers were able to detain her as she attempted to reload.

In November 1991, the Jackson County Grand Jury returned an eight count indictment against Petitioner. Counts one through five charged Petitioner with felonious assault against a police officer, and count six charged her with felonious assault against her husband. All of these counts contained a firearm specification. Counts seven and eight charged Petitioner with felony vandalism for the damage done to police cruisers. These counts contained a firearm specification as well.

Given Petitioner's behavior and the observations of the police officers, defense counsel entered pleas of not guilty and not guilty by reason of insanity. In Ohio, a defendant is not guilty by reason of insanity with respect to the commission of an offense "only if he proves ... that at the time of the commission of the offense, he did not know, as a result of a severe mental disease or defect, the wrongfulness of his conduct." OHIO REV.CODE ANN. § 2901.01(N) (Anderson 1996). Prior to trial, Petitioner was examined by Dr. Newton Jackson, who was retained by defense counsel, and Dr. Donna Winter, who was appointed by the trial court. Both doctors determined that Petitioner met only one of the two requirements under Ohio law for a finding of insanity. However, the doctors disagreed as to which requirement Petitioner had satisfied. As a result of these conclusions, defense counsel did not present an insanity defense at trial.

Defense counsel did ask the court to allow the two psychologists to testify to establish the defense of diminished capacity. Counsel argued that Petitioner had a mental disease which, combined with alcohol and drug ingestion and other stressors, made her unable to possess the necessary mens rea for the crimes with which she was charged. The trial court concluded that Ohio law did not permit the defense of diminished capacity and that a defendant may not offer psychiatric testimony unrelated to the insanity defense to show that, due to mental illness, intoxication, or other reason, she lacked the mental capacity to form the mens rea element of the crime charged.

However, Petitioner and the State did enter into a stipulation, which stated: "If Dr. Jackson and Dr. Winter were called to testify in this case and if on October 25, 1991 the Defendant voluntarily ingested a large quantity of Fiorinal, it would be their opinion that she was in a state of voluntary intoxication." ¹ Defense counsel introduced limited evidence relating to Petitioner's voluntary intoxication and to her bizarre behavior during and immediately prior to the incident. Counsel attempted to show that Petitioner was distraught over the fact that her husband had blamed her for her recent miscarriage, that Petitioner had consumed large quantities of prescription pain killers and alcohol, and that Petitioner was actually under the belief that her husband and the police were conspiring to kill her. The trial court warned defense counsel early in the proceedings that it harbored substantial reservations about counsel's ability to demonstrate serious provocation based upon the facts of the case. The court later indicated that it would not give an aggravated assault instruction based on the facts in the case, but that it might be willing to instruct the jury that voluntary intoxication, while not a defense to a crime, nevertheless can negate the element of knowledge and require a finding of not guilty. Upon Petitioner's request, the trial court instructed the jury on the voluntary intoxication defense. The jury returned guilty verdicts on all counts, and Petitioner received a prison sentence totaling fifteen to forty years.

Represented by new counsel, Petitioner appealed to the Ohio Court of Appeals for the Fourth Appellate District and raised the following assignments of error:

1. The defendant was denied her right to the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution as well as Article I Section 10 of the Ohio Constitution when trial counsel failed to present the testimony of Dr.s (sic) Jackson and Winter to the jury and request a jury instruction on the defense of not guilty by reason of insanity.

2. The trial court erred to the prejudice of the defendant by refusing to instruct the jury on the lesser included offenses of aggravated assault and assault on count six (the felonious assault charge against Dr. Henry Wong) and by refusing to charge assault and negligent assault as lesser included offenses with regard to counts one through five.

3. The trial court committed plain error when it charged the jury on two (2) counts of felony vandalism and (A) failed to identify or relate either count to any evidence adduced at trial, and (B) charged the jury on a firearm specification related to each vandalism count.

4. The trial court erred to the prejudice of the defendant by refusing to allow expert testimony that the defendant's underlying psychological condition in combination with several other stressors diminished her capacity to form the requisite mental state necessary for conviction of the crime of felonious assault, State v. Wilcox (1982), 70 Ohio St.2d 182, 436 N.E.2d 523 to the contrary notwithstanding.

5. The defendant's conviction and sentence violate her right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I Section 9 of the Ohio Constitution where the uncontradicted evidence is that the offense behavior is the direct and proximate result of her mental disease or defect as opposed to her free will, O.R.C. §§ 2901.01(N) and 2945.371 to the contrary notwithstanding.

In her reply brief, Petitioner submitted two additional assignments of error:

6. The State failed to rebut Defendant's argument that she was denied effective assistance of counsel or to address, in the alternative, whether the trial court erroneously excluded expert testimony.

7. The Wilcox rule is unconstitutional as applied or, at a minimum, is inapplicable to this case.

On May 14, 1994, the state court of appeals affirmed, with one judge concurring only in the judgment. On September 22, 1994, the court of appeals denied Petitioner's motion for reconsideration.

On June 24, 1994, Petitioner sought leave to appeal to the Supreme Court of Ohio, raising the following propositions of law:

1. A defendant is denied the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I Section 10, of the Ohio Constitution, where trial counsel fails to present available expert testimony supporting the only viable defense, not guilty by reason of insanity, and fails to request an instruction on said defense. Counsel's ineffectiveness is compounded where counsel fails to either withdraw a defense that is abandoned or otherwise respond to a prosecutor's opening statement announcing a defense which defense counsel never offers or argues to the jury.

2. A reviewing court may not rely on facts extraneous to the record to reach its decision, particularly where said court is speculating as to the nature and import of said facts.

3. The failure of a trial court to instruct a jury on lesser included offenses of aggravated assault and negligent assault where there is an evidentiary basis for such instructions violates the rights of due process and effective assistance of counsel, guaranteed under the Sixth...