Nelson v. State

• Decision Date: 08 March 2001
• Docket Number: No. F-99-1543.,F-99-1543.
• Parties: Bruce Allen NELSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

21 P.3d 55

2001 OK CR 4

Bruce Allen NELSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-99-1543.

Court of Criminal Appeals of Oklahoma.

March 8, 2001.

Don J. Gutteridge, Jr., Oklahoma City, OK, Counsel for Appellant at trial.

Sue Taylor, Assistant District Attorney, Stephens County Courthouse, Duncan, OK, Counsel for the State at trial.

Lisbeth L. McCarty, Norman, OK, Counsel for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals Oklahoma City, OK, Counsel for the State on appeal.

OPINION

LUMPKIN, PRESIDING JUDGE:

¶ 1 Appellant, Bruce Allen Nelson, was tried in a non-jury trial before the Honorable George W. Lindley, District Judge, District Court of Stephens County, Case No. CF-96-56 and CF-96-59, and convicted of Shooting a Firearm with Intent to Kill, in violation of 21 O.S.Supp.1992, § 652(A), and Feloniously Pointing a Firearm, in violation of 21 O.S. 1991, § 1289.16. He was sentenced to life imprisonment on the shooting with intent to kill charge and ten (10) years imprisonment on the pointing a firearm charge. The trial judge ordered the sentences to run consecutively. Appellant now appeals his convictions and sentences.

¶ 2 Appellant graduated from Duncan High, then spent one year at Oklahoma State University. He reportedly dropped out due to "financial limitations." Appellant worked at Halliburton for six years.¹

¶ 3 At the age of thirty, the record indicates Appellant was shot in the head three times.² The details or severity of that shooting are not provided. For the next seven years, Appellant remained unemployed.

¶ 4 The record indicates Appellant has a "history of receiving psychiatric treatment."³ Prior to committing the crimes charged, Appellant had been treated for substance abuse problems at Western State Hospital and "services" at Jim Taliaferro Community Mental Health Center. It is unclear what role Appellant's head injury played in his later psychiatric treatments, because the record does not state exactly when Appellant's psychiatric problems began. However, the record indicates his head injury was a "possible etiological factor in the development of his mental illness," and Appellant's substance abuse was excessive during the year prior to his arrest for the crimes charged in this case.⁴ The record suggests, therefore, that Appellant's problems developed after he was shot in the head, and his psychological state was becoming increasingly problematic in the year prior to this incident.

¶ 5 On February 19, 1996, at least three people saw Appellant carrying a gun through his Duncan neighborhood. Appellant pointed the gun at his neighbor, Michael Culberson. He then lowered the gun and pointed it at the house next to Culberson's. He again lowered the gun and entered his own house. Culberson called the police.⁵

¶ 6 At least six police officers responded to the call of a man with a gun in a neighborhood. As they arrived, Culberson told the officers about the situation. Officers Westbrook and Lang approached the house and were greeted by loud rock and roll music. They knocked on the front door but nobody answered.

¶ 7 As Officer Westbrook used a P.A. system to order Appellant out of the house, Officer Lang made the decision to attempt to enter the house through the rear door. (The officers did not know if anyone else was inside the home.) Lang kicked in the back door and squeezed through. He found he was on an enclosed porch, and the actual back door still had to be penetrated. At this point, Lang saw a figure approaching the back door. Lang yelled, "[P]olice officer, get on the floor." The subject obeyed. Seconds later the back door opened, and Lang was shot five times. Appellant fired first, but Lang returned eleven rounds. Lang's life was saved because he was wearing body armor. Nevertheless, Lang was hit several times. Appellant finally surrendered his gun to police and was taken into custody.

¶ 8 After Appellant was arrested and an information was filed, Appellant's attorney filed an application for competency evaluation, claiming Appellant "exhibits signs of a lack of sufficient competency to understand and appreciate the nature of the charges against him and to effectively assist his counsel in defense of his case."⁶ A hearing was held on the application on March 29, 1996. Gordon Wilson, a psychologist for Taliaferro Community Mental Health Center testified that Appellant is "very delusional." He believes the United States government has a conspiracy to wrongfully imprison him and that . . . they have got some kind of toxic poison that they are poisoning him with.⁷ Wilson testified Appellant was "not rational" and that the things Appellant told him were "bizarre" and "not logical."⁸ Wilson testified that, in his opinion, Appellant was suffering from schizophrenia. Appellant had a history of treatment for this condition and was suffering from hallucinations. Wilson believed this condition had been going on for a long time.⁹

¶ 9 Shortly thereafter, the trial court entered an order stating Appellant "is not presently able to effectively and rationally assist in his defense as a result of his incompetence, and is not capable of achieving competency within a reasonable period of time, and is a mentally ill person requiring treatment" under Oklahoma's statutes.¹⁰

¶ 10 On January 14, 1997, Curtis D. Grundy, Eastern State Hospital's Forensic Psychologist, provided a letter to the district court advising that Appellant remained incompetent to stand trial. While Appellant had an ability to appreciate the charges against him, his ability to rationally assist his counsel remained questionable. Appellant had spoken to Grundy about subpoenaing "capital federal capital investigators," "respectable, not objectionable extra defense witnesses," and "finding the hidden microphones." He also believed his behavior was controlled by a computer and satellites.¹¹ Appellant had delusions of persecution and grandiosity.¹² He was diagnosed as having a "severe persistent mental illness" and that he should be considered a potential threat to himself and others if released.¹³ Following this report, the Court again, on February 26, 1997, adjudged Appellant to be incompetent.

¶ 11 One year later, February 19, 1998, Grundy gave another report indicating Appellant had achieved competency as a result of drug therapy. Appellant's delusions and hallucinations had stopped, and he now recognized his prior beliefs were false. Grundy reported a clinically significant change with a stable return of reality-based thinking.¹⁴ Appellant was able to understand the charges against him, discuss his legal predicament, and assist in his own defense. Significantly, Grundy reported, "He is capable of describing the pleas which are available to him, including the concepts of guilty, not guilty, no contest, and not guilty by reason of insanity."¹⁵ However, Appellant still had a "severe and persistent mental illness which requires continued treatment."¹⁶ He was diagnosed as a paranoid schizophrenic who should remain on medication. (He has a history of medication noncompliance.)

¶ 12 On March 3, 1998, following the filing of this report, the trial court again found Appellant incompetent to stand trial.¹⁷ However, the next year, a May 11, 1999 follow-up report by Kathryn LaFortune, another forensic psychologist, determined Appellant was now competent to stand trial. The trial court entered an order adjudging Appellant competent to stand trial on May 24, 1999.¹⁸

¶ 13 After his preliminary hearing in June, 1999, Appellant was bound over for trial. He then pled not guilty by reason of insanity.¹⁹

¶ 14 Appellant waived jury trial. As his non-jury trial began, October 6, 1999, Appellant's attorney stated, "I understand that the Record might reflect that Mr. Nelson pled not guilty by reason of insanity. If in fact that's the case, he wants to withdraw that plea and just plead not guilty."²⁰ Appellant's counsel then indicated Appellant "was concerned and I did want to make sure for the Record it's cleared up that his plea is just straight not guilty."²¹ The trial judge indicated, "Judge Enos took the not guilty, and it was not guilty by reason of insanity, but you're indicating that you're withdrawing that?" Appellant's counsel stated, "We are withdrawing . . . the plea of not guilty by reason of insanity." The trial judge agreed to this request.

¶ 15 Accordingly, no evidence of Appellant's insanity was presented at the non-jury trial. However, at the time of sentencing, Appellant's counsel argued, "I think it is pretty apparent that Mr.-that Mr. Nelson, at least at the time of the offense and certainly thereafter had had some-some severe mental problems. I think that that was a contributing cause to what transpired on that particular date. We would just ask the Court to take some of these things into consideration whenever it imposes a sentence . . . ."²²

¶ 16 In his first proposition, Appellant claims error occurred when the same judge improperly presided over both the preliminary hearing and the trial, without Appellant ever being asked to waive the two-judge rule. Appellant claims this was a violation of 22 O.S.1991, § 576 and this Court's holding in Doss v. State, 1992 OK CR 15, ¶ 7, 829 P.2d 45, 46.

¶ 17 Section 576 of Title 22 provides, "The judge who conducts the preliminary examination shall not try the case except with the consent of all parties." Using this statutory provision, Appellant relies on the following language from Doss:

Since section 576 requires the consent of all parties, in all future cases, the trial court should inform the defendant of his statutory right and secure a response on the record. Accordingly, we are required to REVERSE and REMAND this case for a NEW TRIAL.

Appellant claims this language requires this Court to reverse his conviction.²³

¶ 18 The record reflects that just as Appellant's...