State v. Norman, Cr. N

• Decision Date: 26 October 1993
• Docket Number: Cr. N
• Citation: 507 N.W.2d 522
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James Elwood NORMAN, Defendant and Appellant. o. 920291.
• Court: North Dakota Supreme Court

Page 522

507 N.W.2d 522

STATE of North Dakota, Plaintiff and Appellee, v. James Elwood NORMAN, Defendant and Appellant.

Cr. No. 920291.

Supreme Court of North Dakota.

Oct. 26, 1993.

Patricia L. Burke (argued), State's Atty., Bismarck, for plaintiff and appellee.

Marvin M. Hager (argued), Bismarck, for defendant and appellant.

NEUMANN, Justice.

James E. Norman appealed from his judgment of conviction for class AA felony murder. We affirm.

In the evening of January 13, 1992 James shot and killed his wife, Pamela Norman, in her home. James and Pamela's three children, Jamie, Jimmy, and John, witnessed the shooting. They told police officers that their mother had been shot by their father. Police found the murder weapon in James' automobile. James was arrested the next day, and he was charged with murder.

A jury found James guilty as charged, and he was sentenced by the district court to life imprisonment without possibility of parole for 30 years. James filed a timely notice of appeal from his conviction. Trial counsel was then granted permission to withdraw from the case, and new counsel was appointed to represent James on this appeal.

Before trial, James and the State stipulated that Pamela died on January 13, 1992, by multiple gunshot wounds fired from the Taurus .357 magnum caliber revolver that was found in James' automobile. James did not dispute that he fired the shots that killed Pamela. Instead, he offered a defense under Chapter 12.1-04.1, N.D.C.C., that he lacked criminal responsibility for his actions by reason of mental disease or defect at the time of the alleged offense. To assist in that defense, James requested and received a psychiatric examination at public expense, which was conducted by Dr. Karl Ulrich, a licensed psychiatrist at the North Dakota State Hospital. Dr. Ulrich concluded that James did not lack criminal responsibility for his actions because at the time of the shooting James did not lack substantial capacity to comprehend the nature or the consequences of his conduct. James then requested and was denied a second psychiatric examination at public expense. On appeal, James asserts that the denial of his request for a second examination constituted reversible error.

Section 12.1-04.1-02, N.D.C.C., authorizes state funded mental health services for certain defendants:

"Court authorization of state-funded mental-health services for certain defendants. A defendant who is unable to pay for the services of a mental-health professional, and to whom those services are not otherwise available, may apply to the court for assistance. Upon a showing of a likely need for examination on the question of lack of criminal responsibility or lack of requisite state of mind as a result of the defendant's mental condition, the court shall authorize reasonable expenditures from public funds for the defendant's retention of the services of one or more mental-health professionals...." [Emphasis added.]

James requested an examination by a licensed psychiatrist at the State Hospital, and the court granted that request. However, James complains that Dr. Ulrich is an employee of the State, that he is not a licensed forensic psychiatrist, and that he had no background in forensic psychiatry until becoming employed with the State.

James' examination was not inadequate merely because it was conducted by a government employee at the State Hospital. See State v. Indvik, 382 N.W.2d 623 (N.D.1986). Dr. Ulrich is the assistant medical director for the State Hospital and is also the medical director of the forensic and the extended treatment units there. Dr. Ulrich's deposition testimony reveals that he has conducted approximately 185 forensic evaluations during his career. He has testified in other court proceedings as a mental health expert. The record also reveals that Dr. Ulrich conducted a thorough evaluation of James' psychiatric condition. He interviewed James, he analyzed various test results, and he reviewed additional relevant information gathered by other mental health professionals.

James asserts that Dr. Ulrich's evaluation was "tainted" because Dr. Ulrich knew that one of the employees at the State Hospital had been accused of injuring James' ear while James was staying at the hospital. Dr. Ulrich testified in his deposition that as a supervisor at the hospital he wanted any misconduct by employees at the hospital to be discovered and the involved employee appropriately disciplined. We are unpersuaded that there is any merit to James' assertion that Dr. Ulrich's evaluation was in any way biased or tainted by James' allegations of employee misconduct at the hospital.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that when a defendant makes a preliminary showing that his insanity at the time of the offense is likely to be a significant factor at trial, he has a federal constitutional right to have the state provide access to a competent psychiatrist to examine him and to assist in the evaluation, preparation, and presentation of the defense. However, the court expressly limited the state's obligation to providing "one competent psychiatrist." Id., 470 U.S. at 79, 105 S.Ct. at 1094, 84 L.Ed.2d at 63.

We are unpersuaded that the trial court's denial of James' request for a second evaluation deprived James of either his constitutional or statutory right to publicly funded mental health services. No specific need or reason was shown. James has cited no authority giving a criminal defendant a right to shop for a psychiatrist at public expense until he finds one who will support his theory of the case. We conclude that the trial court did not err in refusing to authorize a second evaluation.

James also asserts that he received ineffective assistance of counsel during the trial. Through his appellate counsel, he complains that trial counsel waived the issue of insufficiency of the evidence on appeal by failing to bring a motion for judgment of acquittal at the conclusion of the State's case. State v. Allen, 237 N.W.2d 154 (N.D.1975) (motion for judgment of acquittal at the close of the prosecution's case in chief preserves the issue of insufficiency of the evidence). But see State v. Himmerick, 499 N.W.2d 568 (N.D.1993) (motion for judgment of acquittal is not necessary to preserve issue of insufficiency of the evidence in a bench trial case). James, writing his own supplement to counsel's appellate brief, also complains that his trial counsel was "never ready for court proceedings" and that trial counsel did not adequately communicate with James in preparing the case.

Effective assistance of counsel is guaranteed to criminal defendants by our state and federal constitutions. Woehlhoff v. State, 487 N.W.2d 16 (N.D.1992). In State v. Thill, 473 N.W.2d 451, 454 (N.D.1991), we summarized the procedure we use for reviewing an ineffective assistance of counsel argument that is raised in an appeal from a judgment of conviction:

"We have repeatedly stated that ineffective assistance of counsel claims should generally be raised in post conviction proceedings where an evidentiary record can be made. E.g., State v. Ricehill, 415 N.W.2d 481 (N.D.1987). However, when an ineffective assistance of counsel argument is urged on direct appeal we will review the record to determine if assistance of counsel was plainly defective, requiring a reversal of the conviction. See State v. Sayler, 443 N.W.2d 915 (N.D.1989). If from an examination of the record we cannot conclude that assistance of counsel was plainly defective, and if no other grounds for reversal exist, we will affirm the judgment without prejudice to the defendant pursuing an ineffective assistance of counsel claim at a post conviction proceeding where an adequate record can be developed. See State v. Frey, 441 N.W.2d 668 (N.D.1989)."

To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation. Sampson v. State, 506 N.W.2d 722 (N.D.1993). The burden of proving an ineffective assistance of counsel claim is on the defendant and, in reviewing the claim, we are mindful that it is for trial counsel and not the trial courts to determine trial strategy and tactics. State v. Wilson, 488 N.W.2d 618 (N.D.1992). Consequently, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Zeno, 490 N.W.2d 711 (N.D.1992). We will not second guess an unsuccessful counsel's defense strategy through the distorting effects of hindsight. See Houle v. State, 482 N.W.2d 24 (N.D.1992).

James did not dispute that he fired the shots that killed Pamela; rather, his defense was that he lacked criminal responsibility for his actions. At the conclusion of the State's case it was obvious that the State had presented a prima facie case in support of the class AA felony murder charge against James. Therefore, we conclude that trial counsel's failure to move for judgment of acquittal at the close of the State's case did not fall below reasonable standards of practice so as to constitute ineffective assistance of counsel. Also, it is not obvious on this record that trial counsel was so inadequately prepared or so failed to communicate with James in handling his defense that trial counsel's representation constituted ineffective assistance of counsel.

James' trial counsel made a motion before trial to transfer venue of the case from Burleigh County on the ground that pre-trial publicity...