Smith v. State, F-80-423
| Decision Date | 07 September 1982 |
| Docket Number | No. F-80-423,F-80-423 |
| Citation | 650 P.2d 904 |
| Parties | Lena B. SMITH, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Lena B. Smith, appellant, was charged and convicted of Murder in the First Degree and Shooting with Intent to Kill in Canadian County District Court Case Nos. F-80-297 and F-80-298, respectively. She was sentenced to life imprisonment for the Murder conviction and to twenty-five years' imprisonment for Shooting with Intent to Kill. REVERSED and REMANDED.
Jess Horn, Oklahoma City, for appellant.
Jan Eric Cartwright, Atty. Gen., Michael Scott Fern, Asst. Atty. Gen., Oklahoma City, for appellee.
The extraordinary circumstances of this case require that it be reversed and remanded for a new trial. The pertinent facts are as follows:
On Sunday, October 8, 1978, the appellant, Lena Smith, drove her automobile into a Sav-Go gasoline station in Yukon and commenced honking her horn until someone came out of the building to her car. The appellant instructed that person to call an ambulance. It was subsequently discovered that the passengers in the appellant's car, her two young granddaughters, had been gravely wounded by gunshots. One of the children was killed by a .44 caliber slug which passed completely through her body and embedded in the front car seat. The bullet was fired less than thirty (30) inches from the victim. The other child was severely wounded by a .38 caliber slug which likewise passed through her body and embedded itself in the front car seat. That bullet was fired from a distance of twelve (12) inches. The appellant was also severely wounded. A third slug was not found in the automobile.
The appellant was arrested and charged with Murder in the First Degree and Shooting with Intent to Kill. She first appeared before the district court on November 1, 1978. She was represented by attorneys Richard J. Burton, of Washington, D.C., and Jess Horn of Oklahoma City, Oklahoma.
Pursuant to an order of the district court, the appellant was sent to Central State Griffin Memorial Hospital in Norman, Oklahoma, for sixty days' psychiatric observation on November 1, 1978. In a letter dated December 27, 1978, Dr. Loraine Schmidt, Chief of Forensic Psychiatry at Hayden H. Donahue Mental Health Institute, informed the prosecuting attorney and the district court that she believed the appellant was not competent to stand trial. 1
The appellant appeared in court on December 29, 1978, in regard to the letter. She was not accompanied by counsel. According to the bench notes in the record, one of the appellant's attorneys, Jess Horn, was contacted that same day by the judge concerning the letter. The appellant was readmitted to Central State for treatment.
On June 6, 1979, the appellant, having been adjudged competent to stand trial, was once again brought before the district court. She was advised of her rights and read the information filed against her. She was accompanied by her attorney, Jess Horn.
Pursuant to an order to undergo psychiatric examination, dated June 26, 1979, the appellant was examined by Dr. Nolan Armstrong, M.D., an Oklahoma City psychiatrist. Dr. Armstrong was selected by stipulation between the State and the appellant. The State compensated Dr. Armstrong for his services. Based on his observations of the appellant, Dr. Armstrong concluded that she was suffering from a mental illness which prevented her from knowing right from wrong when the shootings occurred.
The appellant's preliminary hearing was held on July 10, 1979. Counsel for the appellant was Jim Hugh Rinehart. Mr. Rinehart additionally represented the appellant before the district court in an application for bond reduction on July 12, 1979, and at the July 13, 1979 arraignment. Mr. Rinehart was permitted to withdraw from the case at the September 9, 1979, pre-trial conference. Jess Horn was substituted as the appellant's attorney.
The trial was held on October 10, 1979, with Jess Horn as counsel. The defense was insanity. The appellant presented Dr. Armstrong as an expert witness concerning her state of mind at the time of the shootings. Dr. Loraine Schmidt was subpoenaed by the State, but was not called to testify.
Evidence was adduced at trial to demonstrate that the appellant had a history of mental illness. She received shock treatment and medication for depression in an Amarillo, Texas, clinic as both an in-patient and an out-patient in 1964. In 1974, she was again treated with shock therapy, and was placed on medication consisting in part of forty (40) milligrams of valium per day. She continued taking the medication until sometime after the shootings occurred.
Numerous items found inside the appellant's car on the day of the shootings were introduced into evidence. Among those items were: a .38 caliber pistol and a .44 caliber pistol found lying in the front seat; 2 a .38 caliber slug and a .44 caliber slug, both of which were taken from inside the front car seat, 3 a note which the appellant had written and placed on the dashboard directing her husband's attention to approximately $5,600 in cash inside the glove compartment; and a note found inside the appellant's purse behind the driver's seat which instructed that the bodies of the appellant and her granddaughters be buried in the Yukon cemetery without notification of the appellant's relatives.
The appellant was convicted by a jury of the charges of First Degree Murder and Shooting with Intent to Kill. She was sentenced to life imprisonment for the murder, and to twenty-five (25) years' imprisonment for Shooting with Intent to Kill. Trial counsel is counsel on appeal.
Our primary concern in this case is the appellant's insanity defense.
Although two psychiatrists observed the appellant subsequent to the shootings only one, Dr. Armstrong, was called to testify. We believe that the omission of Dr. Schmidt's testimony reflects an extreme lack of diligence on the part of counsel for the appellant to ensure the appellant received a fair trial.
As noted above, the appellant was admitted to Central State Hospital in Norman by court order where she was evaluated for sixty days under the supervision of Dr. Schmidt. Although Dr. Schmidt's letter of December 27, 1978, addressed only the question of the appellant's competence to stand trial, 4 Dr. Schmidt testified during the hearing on the appellant's motion for a new trial that she was also of the opinion the appellant was insane at the time of the shootings. Dr. Schmidt further testified that she so informed the prosecutor prior to the appellant's trial. 5
Counsel for the appellant was apparently not aware of Dr. Schmidt's opinion concerning the appellant's sanity at the time of the shootings prior to trial. He was, however, aware that Dr. Schmidt considered the appellant incompetent to stand trial in December of 1978. He was contacted by the district court concerning the matter when he was representing the appellant at that time, and was furnished a copy of Dr. Schmidt's letter dated December 27, 1978, when he re-entered the case approximately one month prior to the appellant's trial.
Counsel for the appellant admits that he made no effort before commencement of the trial to contact Dr. Schmidt to ascertain what her testimony might be. He attributes this failure to a combination of two factors: first, that, in his opinion, Dr. Schmidt had a reputation as a witness not favorable to defendants in criminal cases; and, secondly, that Dr. Schmidt had been subpoenaed by the State. He argues that these two factors led him to assume Dr. Schmidt's testimony would have been unfavorable to the appellant.
Initially, we cannot say that counsel's assumptions of Dr. Schmidt's opinion in this case were well-founded. Dr. Schmidt saw the appellant soon after the shootings occurred, and had an opportunity to observe her for an extended period of time, as counsel well knew. On the basis of her observation, Dr. Schmidt was of the opinion the appellant was not competent to stand trial, as counsel also knew. This assessment came less than ninety days after the shootings occurred. We find it difficult to believe that, the subpoena notwithstanding, appellant's counsel never entertained a thought that the psychiatrist who found his client incompetent such a short time after the acts were committed could possibly have an opinion of her sanity at the time of the shootings which could prove useful to the insanity defense. 6
Not only was counsel unjustified in making the assumptions he did, he was further unjustified in relying on those assumptions in his preparation for trial. The American Bar Association Standard for Criminal Justice, Defense Function 4-4.1 maintains in part that,
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. (Emphasis added).
This case did not demand novel or extensive investigative techniques, nor was it an example wherein the omitted witness could not be located. Dr. Schmidt is a state employee whose professional position, place of business, and personal address were made known to the appellant's counsel prior to trial. The effort counsel would have had to exert to contact Dr. Schmidt was miniscule in comparison to the gravity of the situation. The appellant was charged with Murder in the First Degree and Shooting with Intent to Kill. A bill of particulars had been filed. Counsel should have realized his affirmative duty in such an extreme and crucial case to assemble all possible information relevant to the only defense his client had.
We recognize that the attorney for a defendant may, at times, have legitimate reasons for not calling certain witnesses to testify. The...
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