Smith v. State

• Decision Date: 15 September 2006
• Docket Number: No. F-2004-857.,F-2004-857.
• Citation: 144 P.3d 159,2006 OK CR 38
• Parties: Pearl SMITH, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

144 P.3d 159

2006 OK CR 38

Pearl SMITH, Appellant v. STATE of Oklahoma, Appellee.

No. F-2004-857.

Court of Criminal Appeals of Oklahoma.

September 15, 2006.

As Corrected September 28, 2006.

An Appeal from the District Court of Cherokee County; the Honorable Darrell Shepherd, Associate District Judge.

Park Medearis, Tahlequah, OK, counsel for appellant at trial.

Sandra Mulhair Cinnamon, Oklahoma Indigent Defense System, Norman, OK, counsel for appellant on appeal.

Richard Gray, District Attorney, Janet Bickle Phillips, Assistant District Attorney, Tahlequah, OK, counsel for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, Vice-Presiding Judge.

¶ 1 Appellant Pearl Smith was charged and tried by jury for First Degree Murder (21 O.S.2001, § 701.7(A)), Case No. CF-2003-220, in the District Court of Cherokee County. The jury found Appellant guilty of the lesser offense of Second Degree Murder (21 O.S.2001, § 701.8) and recommended as punishment twenty-eight (28) years imprisonment. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant raises the following propositions of error in support of her appeal:

1. Defense counsel provided ineffective assistance of counsel.

2. The prosecution's gender based exclusion of female jurors violated Appellant's right to equal protection and due process of law.

¶ 3 After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined the conviction should be reversed and the case remanded for a new trial.

¶ 4 Just before 10:00 p.m., June 10, 2003, William Cunningham received a phone call from his neighbor, Appellant, asking him to come to her home to help her. Appellant sounded somewhat agitated to Cunningham, but he thought one of her goats had merely gotten stuck in the fence again. Cunningham finished his dinner, put his shoes on, and drove to Appellant's home. Arriving in approximately five minutes, Cunningham entered the front door to find the victim, Appellant's husband, lying on the floor. He had a gunshot wound to the chest. Cunningham immediately checked the victim for a pulse but found none. Cunningham asked Appellant what happened and she admitted to shooting him, saying she couldn't take another beating. Cunningham found Appellant to be "rather hysterical" and took approximately 15 minutes to calm her down before calling 911 to report the shooting. As Cunningham spoke with Appellant, he noticed a 9mm automatic pistol on the table. Appellant admitted that was the gun she had used to shoot the victim.

¶ 5 The Sheriff and her deputies arrived soon thereafter. The 9 mm pistol on the table was confiscated. It still had a live round in the chamber, but the gun was jammed so as not to fire. Emergency medical personnel determined the victim was dead at the scene.

¶ 6 Appellant was Mirandized¹ and agreed to speak with the deputies. She admitted to shooting the victim and using the gun on the table to do so. She later gave deputies a written statement and testified at trial. Essentially, she stated that she and the victim had been married since 1987. She said that during the early years of the marriage, the victim was not abusive, but demanding. Then beginning in "the late 1980's" he became physically abusive by shaking, hitting and pushing her, and twisting her arm behind her back. She said he would double up his fist and hit her, usually on her back where it would not show. She said the beatings got worse through the years. He told her not to tell anyone because it would make him lose his job and then he would make her sorry for telling. He told her he would "snap her like a twig".

¶ 7 She said the victim had carried a gun for years and would greet people at the door to their house with a gun. She said that for a period of time, the victim worked out of town during the week and was home only on the weekends. She said he told her to mow the grass while he was gone, and when he returned home, he would measure the grass to make sure it had been mowed to his specifications. She told about another time when she painted the bathroom pink. The victim didn't like pink, and told her she could not eat or sleep until it was repainted. She said if his dinner was not cooked exactly the way he wanted, he would throw it at her. One time she suggested something he should do in a class he was teaching and he slapped her so hard her glasses flew off and she fell to the ground. Another time, he got so mad he broke the door frame to the bedroom.

¶ 8 Appellant said she thought about leaving the victim several times but did not have any money. In order to have some money, she began raising goats. She said she was fairly successful and several people purchased goats from her. Appellant said the victim did not like the business and did everything he could to ruin it. She said the victim's abuse caused her to have migraines and raised her blood pressure. Appellant said that near the end of May 2003, she had surgery on her wrist which had been broken years before but never reset. After her surgery she was unable to milk the goats as she had been doing. She said the victim was mad because she had the surgery and because he had to milk the goats. (She said she had tried to dry up the goats' milk but had not been completely successful).

¶ 9 Appellant said that in the month prior to the shooting, the victim got meaner. He routinely kicked the dog out of his way and shot her cat. One day when she and the victim were both outside, the victim threw her down in a ditch and "beat the dickens out of" her. She said they had been arguing for about 10 days before the shooting. The night of the shooting, she had a migraine, took medicine for it and lay down. She awoke to the victim shaking her, telling her to get up, calling her a "lazy bitch" and demanding dinner on the table. As Appellant cooked dinner, the victim told her he wasn't going to milk the goats anymore. Despite the fact her wrist was still in a splint, she gathered together the items necessary to milk the goats. She said this only made the victim madder. He grabbed the things from her, said he wanted dinner on the table when he got back, and pushed her out of the way. Appellant said she just couldn't take it any more and began to cry. When the victim returned and saw her crying, he got even madder, and shouted at her. Appellant said she ran to her bedroom to get away from him. Once in the bedroom, she noticed the gun lying on a table. She said she picked it up, but sat down on the bed. Appellant said she was not really thinking about what she was doing. She said the victim continued to yell at her and threatened to come into the bedroom to get her. She didn't want him to come into the bedroom because he had broken the door frame 10 days earlier.

¶ 10 Appellant said the next thing she knew, she was back out in the living room. The victim was sitting at a table. She said it wasn't until she saw his eyes widened that she realized she still had the gun in her hand. She said the victim got up, slammed his fist on the table, and said, "right here, right now; if you think you're big enough". Fearing another beating from the victim, Appellant said she fired the gun at him. Appellant said she couldn't take it anymore and felt she had no choice. She then put the gun to her own head and pulled the trigger. Appellant said the gun jammed, adding "God hates me." She said she did not remember anything that happened afterwards.

¶ 11 Appellant admitted she had never told anyone about the beatings, nor had she filed any police reports regarding the victim's abusive treatment of her. The defense presented nine (9) witnesses at trial who testified to observing various incidents of the victim's abusive behavior toward Appellant. However, the defense did not present an expert on Battered Woman's Syndrome, instead relying on "generalized self-defense."²

¶ 12 In her first proposition of error, Appellant contends she was denied the effective assistance of counsel for the following reasons: 1) the failure to procure and present an expert on Battered Woman Syndrome, a decision which cannot be considered sound trial strategy; 2) the failure to respond to the State's discovery request with witness summaries sufficiently informative to put the State on notice of the defense witnesses' expected testimony; 3) the failure to present evidence relevant to the Battered Woman Syndrome; 4) the failure to be an effective advocate for Appellant by failing to adequately investigate the crime scene and be prepared to exploit the fact the State had not conducted a crime scene investigation; and 5) the failure to object to the State's use of peremptory challenges and intentionally discriminating with defense counsel's own peremptory challenges.

¶ 13 In regards to her claims concerning the Battered Woman Syndrome (BWS), Appellant argues counsel's failure to present the "obvious and appropriate defense" of BWS in light of the evidence supporting such a defense constitutes ineffective assistance of counsel. In support of her argument, Appellant relies on Bechtel v. State, 1992 OK CR 55, 840 P.2d 1, and Paine v. Massie, 339 F.3d 1194, 1201 (10th Cir.2003). In these cases, this Court and the Tenth Circuit Court of Appeals said that when an attorney represents a battered woman claiming self-defense, the attorney should put on an expert to explain BWS to the jury. While an expert is not mandatory, each case will be reviewed on the facts to determine if an expert should have been used. In Paine, the Tenth Circuit Court of Appeals held that under the circumstances of that case, counsel's failure to present an expert on BWS to the jury was objectively unreasonable. 339...