Fox v. State

• Decision Date: 04 October 1991
• Docket Number: No. C8-90-2676,C8-90-2676
• Parties: Audie Lynn FOX, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 821

474 N.W.2d 821

Audie Lynn FOX, Appellant, v. STATE of Minnesota, Respondent.

No. C8-90-2676.

Supreme Court of Minnesota.

Oct. 4, 1991.

Syllabus by the Court

The post-conviction court properly denied post-conviction relief on the claim that appellant was unable to participate in his defense at trial because of the effects of Thorazine, an antipsychotic drug administered to relieve hypertension, anxiety, and auditory hallucinations. In addition, appellant's claims for relief in his pro se supplemental brief were also properly denied.

Audie Fox, pro se.

John Stuart, Minnesota Public Defender, Susan Andrews, Asst. State Public Defender for Conflicts, St. Paul, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sheila Kerwin, Assts. Atty. Gen., St. Paul, John J. Muhar, Itasca County Atty., Grand Rapids, for respondent.

Heard, considered and decided by the court en banc.

YETKA, Justice.

Audie Fox appeals from an order of the Itasca County District Court denying post-conviction relief under Minn.Stat. § 590.04 (1990). Appellant claims that he was unable to participate in his defense during his 1982 first-degree murder trial because of the effects of chlorpromazine (Thorazine), an antipsychotic drug administered to appellant before and during the trial to relieve appellant's anxiety, hypertension, and auditory hallucinations. We affirm the district court.

An Itasca County grand jury indicted appellant on two counts of first-degree murder ¹ in the shooting death of Itasca County Deputy Sheriff Robert R. Lawson. At appellant's arraignment on the indictment, the trial court ordered a mental status examination pursuant to Rule 20 of the Minnesota Rules of Criminal Procedure. After an examination at the Minnesota Security Hospital in St. Peter, appellant was found competent to stand trial.

Appellant entered pleas of not guilty and not guilty by reason of mental illness. Following a change of venue to Crow Wing County, appellant was tried and found guilty of one count of first-degree murder (intentional killing of a peace officer engaged in the performance of official duties) and was sentenced to life imprisonment. On direct appeal to this court, appellant contended that the trial court erred (1) in not instructing the jury that, under the peace officer statute, the state must prove that the defendant knew that the victim was a "peace officer" and (2) in not submitting to the jury, as a lesser offense, a third-degree murder instruction under Minn.Stat. § 609.195 (1982). This court affirmed the conviction. See State v. Fox, 340 N.W.2d 332 (Minn.1983).

Appellant filed a pro se petition for post-conviction relief in January 1990, 8 years after his conviction. In his petition, appellant sought a new trial and review of the following issues:

1. Whether appellant was denied effective assistance of counsel because his privately retained attorney had no criminal trial experience;

2. Whether appellant's trial counsel was incompetent because he failed to object to certain jury instructions;

3. Whether appellant was unable to participate in his defense because of medication he had been receiving before and during the trial;

4. Whether appellant was denied a fair trial because his trial attorney denied him the right to testify in his own behalf;

5. Whether appellant was denied a fair trial because the state coerced appellant's aunt to testify against him by threatening her with prosecution for aiding in the commission of the crime, knowing that appellant's aunt was allegedly "mentally ill or retarted" [sic]; and

6. Whether the evidence was sufficient to support the jury's guilty verdict for intentional murder of a peace officer.

The post-conviction proceeding took place at the Minnesota Correctional Facility in Stillwater on September 20, 1990. The evidence at the hearing focused primarily on appellant's claim that he was prevented from participating fully in his defense because of the effects of Thorazine. Appellant and his mother testified on his behalf; the state presented an expert witness who testified to the effects of antipsychotic drugs.

The post-conviction court denied appellant's request for a new trial on all the asserted grounds. This appeal followed and is limited to the issue of whether appellant is entitled to a new trial since he was allegedly unable to participate in his own defense because of the effects of Thorazine. In addition, the appellant filed a pro se supplemental brief in which he asserts ineffective assistance of trial counsel and additional facts supporting his request for a new trial.

A complete recitation of the facts underlying appellant's conviction is unnecessary for this appeal. This court's opinion in the direct appeal adequately summarizes the events leading to appellant's arrest.

Appellant was represented by private counsel at the post-conviction hearing. Although counsel raised all the issues in appellant's pro se petition, counsel emphasized and the testimony focused on appellant's alleged inability to participate in his defense because of the effects of Thorazine. Appellant did not present any expert testimony on the effects of Thorazine. Appellant's motion to submit expert affidavits after the hearing was denied.

Appellant's mother, Jeanette Fox, testified first as to appellant's condition at trial. She visited appellant "several times" after his arrest and "on weekends" during his trial. Mrs. Fox testified that she often had trouble communicating with appellant. Appellant's voice was "very slurred," and appellant sounded as if he had a "real thick tongue." On some occasions, she alleges, appellant was unable to recognize her when she visited him.

Appellant testified to the amount and effects of the medications he was receiving prior to and during trial. When appellant was sent to the Minnesota Security Hospital at St. Peter in early December 1981, he was given 200 milligrams of Thorazine four times a day. This was the highest dose appellant received at any time after his arrest. Appellant testified that he was unable to stay awake and his hands would shake at that dosage (800 milligrams/day). He also complained that his tongue felt "dry * * * and thick."

Because of these side effects, appellant's Thorazine treatment was reduced from 800 milligrams/day to 600 milligrams/day shortly after his arrival in St. Peter. Beginning in January 1982 and at the time of his discharge on March 25, 1982, appellant was receiving 100 milligrams of Thorazine daily. Appellant continued to receive the 100-milligram dose at bedtime throughout the trial dates of April 20-26, 1982.

Appellant testified that he felt like a "zombie" during the trial; he said that he saw people talking, but could not understand or hear what was being said. He complained of being numb, unable to do anything without direction but sleep, and claims that he could not remember "much of anything" from the trial because of his medication. Finally, appellant testified that he was able to answer questions at the post-conviction hearing because he had been "off" Thorazine since 1986.

On cross-examination, appellant conceded that he had agreed with counsel that he should not testify at trial. Appellant insisted that he did not actually make the decision, but simply "agreed with whatever was going on at the time." Appellant also refused to acknowledge that he had been satisfied with his trial counsel's services at the time of trial. ² He claimed that any evaluation of counsel's services at trial was tainted by appellant's medicated state during the trial.

The state presented the expert testimony of Dr. Eduardo Colon, a psychiatrist at the University of Minnesota. Dr. Colon had reviewed the records of the medications administered to appellant at the Minnesota Security Hospital and the Crow Wing County jail. He was asked specifically to testify concerning the medications appellant was receiving the week before and during the trial.

Dr. Colon testified that chlorpromazine, of which Thorazine is a brand name, is an antipsychotic drug or major tranquilizer. According to Dr. Colon, appellant's dose of Thorazine at the time of trial was "a fairly small dose." He stated that Thorazine generally can cause some drowsiness and may have an impact on psychotic symptoms. However, where a person has been taking the drug for a significant amount of time, "the sedation usually goes away and/or doesn't occur as much" with a 100-milligram dose.

Dr. Colon opined that the dose of Thorazine appellant was receiving from April 20-26, 1982, would have a minimal effect in terms of sedation or on his ability to consult or help his attorney in his trial. Dr. Colon based his opinion on appellant's tolerance level after having been on the 100-milligram dose for at least 2 months and his having had a much higher dosage before that. However, Dr. Colon pointed out that he was not aware of appellant's mental status at the time of trial. In addition, he testified that some people are affected more strongly by drugs than others.

On cross-examination, Dr. Colon testified to the process by which drugs such as Thorazine "wear off" or are released from the body. He explained that the half-life of Thorazine is anywhere from 10 to 40 hours. This means that if medication is stopped at a given moment, the effects of that drug can continue for several days, depending on the amount and duration of administration. These lingering effects also are possible when a person goes from a higher dosage to a lower dosage. However, in assessing one's ability to assist with the defense of a murder case, Dr. Colon indicated that whether a person was "over-sedated" necessarily would be considered in performing a psychiatric evaluation of competency.

Finally, appellant asserts in his pro se supplemental brief that he should have been allowed to testify at his trial because he was the only one who could "explain what I was going through at...