Osborne v. State

• Decision Date: 13 September 2012
• Docket Number: No. S–11–0281.,S–11–0281.
• Citation: 285 P.3d 248,2012 WY 123
• Parties: Shawn OSBORNE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

285 P.3d 248

2012 WY 123

Shawn OSBORNE, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0281.

Supreme Court of Wyoming.

Sept. 13, 2012.

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.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

KITE, Chief Justice.

[¶ 1] A Sheridan County jury found Shawn Osborne guilty of first degree murder. He appeals 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. We conclude Mr. Osborne has failed to meet his burden of proving he was prejudiced by any deficient performance of trial counsel and affirm his conviction.

ISSUE

[¶ 2] 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, 80 L.Ed.2d 674 (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?

FACTS

[¶ 3] In 2010, the Sheridan County prosecuting attorney charged Mr. Osborne with first degree murder in violation of Wyo. Stat. Ann. § 6–2–101(a) (LexisNexis 2011). According to the affidavit of probable cause attached to the information, Dee Himes came to the Sheridan police department on the afternoon of January 15, 2010, and reported that a dead body was under the trailer home where she and her boyfriend lived. She told police that Mr. Osborne, who also lived in the home, had awakened her and her boyfriend in the early morning hours that same day and told them he had killed Gerald Bloom, another occupant of the trailer home. She stated that she went to Mr. Bloom's bedroom where she saw his body lying on the floor. She said Mr. Osborne told her later that morning that Mr. Bloom's body was buried underneath the trailer home.

[¶ 4] Based upon Ms. Himes' report, police officers went to the trailer home and announced their presence. Mr. Osborne was the first to respond to the officers. His clothes and arms were stained with blood and he appeared to have been asleep. Inside the trailer home the officers found a knife in the kitchen sink along with cleaning products and what appeared to be diluted blood. The knife was later identified as belonging to Mr. Osborne. The officers also found blood stains on the carpet in one of the bedrooms. The officers found Mr. Bloom's body inside a sleeping bag in the crawl space underneath the trailer home. An autopsy revealed that Mr. Bloom died as a result of stab wounds to the neck.

[¶ 5] Based upon the evidence found at the trailer home and the witness statements, the officers took Mr. Osborne to the police station to be interviewed. During the interview, the officers told Mr. Osborne they had talked to other witnesses and asked Mr. Osborne if he wanted to tell them his side of the story. Mr. Osborne stated that he had gotten into a fight and it went too far. Mr. Osborne then requested an attorney and the officers ended the interview and placed him under arrest.

[¶ 6] Mr. Osborne was charged with first degree murder. He entered a plea of not guilty by reason of mental illness or deficiency. The district court ordered him to be evaluated at the Wyoming State Hospital twice, the first time to determine whether he was mentally fit to proceed pursuant to Wyo. Stat. Ann. § 7–11–303 (LexisNexis 2009) and later to determine whether due to mental illness or deficiency he lacked the capacity at the time of the killing to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law pursuant to § 7–11–304 (LexisNexis 2011). The state hospital concluded he was mentally fit to proceed and did not lack the capacity to appreciate the wrongfulness of his conduct.

[¶ 7] The case proceeded to trial. The State called David Widiker–Fausset as its first witness. Mr. Widiker–Fausset testified that he and Mr. Osborne had been drinking heavily throughout the evening and early morning hours preceding the killing. He testified that as they drove to the trailer home after the bars closed, Mr. Osborne became agitated and angry about people owing him money, including Mr. Bloom to whom he had loaned $20. Mr. Widiker–Fausset testified that Mr. Osborne continued to be angry and agitated when they arrived at the trailer home. He said Mr. Osborne headed for the bedroom where Mr. Bloom was sleeping, stating that he was going to get his money. According to Mr. Widiker–Fausset, Mr. Osborne said, “Watch this, I'm going to kill that motherfucker.” Mr. Widiker–Fausset testified that he followed Mr. Osborne to the bedroom and watched as Mr. Osborne began to choke Mr. Bloom. He said Mr. Bloom struggled and the two men fell to the floor where Mr. Bloom lost consciousness. He said Mr. Osborne checked Mr. Bloom's pulse, determined that he was still alive and then slit Mr. Bloom's throat twice and stabbed him in the neck five or six times.

[¶ 8] Mr. Widiker–Fausset testified that after killing Mr. Bloom, Mr. Osborne washed his hands in the kitchen sink and then went back into the bedroom. According to Mr. Widiker–Fausset, Mr. Osborne came out several minutes later pulling a sleeping bag with Mr. Bloom's body inside. He pulled it out the front door and over to the crawl space under the trailer home. He pulled aside some boards, shoved the sleeping bag containing the body into the crawl space and replaced the boards. Mr. Widiker–Fausset testified that Mr. Osborne then said, “There, I did it,” went back inside the trailer home and passed out on the couch. Mr. Widiker–Fausset testified that he, Mr. Osborne and others went to breakfast later that morning. He noticed Mr. Osborne had been drinking again and was still wearing the blood stained clothes he had on when he stabbed Mr. Bloom.

[¶ 9] The State also presented the testimony of a forensic pathologist who examined Mr. Bloom's body after the killing. He confirmed that Mr. Bloom had been strangled around the neck, his throat had been slit twice and he had been stabbed in the neck four times. He testified that two of the stab wounds involved significant force. He also testified Mr. Osborne's knife was consistent with the stab wounds and the slits to the throat.

[¶ 10] The State played for the jury the video recording of the police interviewing Mr. Osborne. When officers advised him they had spoken to other witnesses and asked if he wanted to tell his side of the story, Mr. Osborne said that he was “pretty sure what everyone else said is what happened.” He said he had gotten into a fight with Mr. Bloom over money and “went a little too far.” He asked for an attorney, stating “I'm in some deep shit, I know” and said he needed a lawyer to figure out whether “it was gonna be for life or for ten years.”

[¶ 11] The public defender appointed to represent Mr. Osborne attempted to prove Mr. Osborne was so intoxicated at the time of the offense that he was unable to form the specific intent necessary to support a first degree murder conviction. He presented evidence that Mr. Osborne began drinking on his way home from work on the evening before the killing and continued to drink heavily through the night and into the early morning hours. He presented evidence that Mr. Osborne drank numerous beers, at least one and possibly two pints of vodka and numerous shots of whiskey. He also presented evidence that Mr. Osborne had taken Adderall, an amphetamine, shortly before the killing. Witnesses who were with Mr. Osborne on the night of the killing testified he was drunk.

[¶ 12] Mr. Osborne testified in his own defense. He told the jury that he had three beers on his way home from work at 8:00 p.m., and drank a pint of vodka and another beer and a half at his girlfriend's house between 9:00 and 10:00 p.m. He testified that he and his friends then went to the bars where he drank beer and shots of whiskey for the next four hours in addition to taking a couple of Adderall. He testified that he probably drank five to eight rounds of beer and shots at the first bar and by the time they left for the second bar around 1:00 a.m. he was having a hard time. He testified that he probably continued drinking beer and shots of whiskey at the second bar but was not sure because he was not very coherent by then. He testified that he may have purchased another pint of vodka before leaving the second bar and remembered opening a beer when he arrived back at the trailer home.

[¶ 13] Evidence presented at trial further showed that after killing Mr. Bloom and disposing of the body, Mr. Osborne passed out on the couch. The next morning he drank another pint of vodka before going to...