Thomsen v. State, F-76-767
| Decision Date | 24 July 1978 |
| Docket Number | No. F-76-767,F-76-767 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Charles Olen THOMSEN, Appellant, v. The STATE of Oklahoma, Appellee. |
Appellant, Charles Olen Thomsen, hereinafter referred to as defendant, was charged in the District Court, Dewey County, Case No. CRF-75-34, with the offense of Murder in the Second Degree, in violation of 21 O.S.1971, § 701.2. The defendant was tried by a jury, convicted and sentenced to ten (10) years to Life in the State penitentiary. From this judgment and sentence a timely appeal has been perfected to this Court.
The State's first witness was Louis Thomsen, son of the defendant and the deceased, Sammie Thomsen. He testified that his mother spent the night of October 10, 1975, at his home and that the next day he drove her to her house, located one-half mile north of Camargo. When they arrived the defendant was present. Mrs. Thomsen entered the house immediately and the witness entered shortly thereafter, finding his mother and father engaged in an argument which lasted most of the morning. Finally, as the argument subsided she asked the defendant for a divorce. The witness noticed that his father had taken at least one drink of liquor on the morning in question. The situation was aggravated when Mrs. Thomsen discovered that the defendant had burned all of her clothes. At this point, Mrs. Thomsen asked the witness to take her with him. As they were getting into the car the defendant appeared with a shotgun and fired one shot, killing his wife. Louis Thomsen then went into the house to call an ambulance and at this time the defendant left the scene in his car.
The State then called Howard Hollen who testified that he saw the defendant at approximately 2:00 p. m. on the day in question, and the defendant admitted having killed his wife.
Gladys Hixson next testified that she and her husband had known the defendant for more than ten years. On the day in question at approximately 2:10 p. m., the defendant drove up to her house and asked to see her husband. Upon learning that he was not home the defendant asked Mrs. Hixson to keep two guns in the house for him. Mrs. Hixson then left to meet her husband at a funeral. When they returned the defendant was still there and after Mr. Hixson talked to him they drove him to Taloga to see an attorney. Later that same day, at approximately 8:00 p. m., the two guns were picked up by a deputy.
The State then called Bruce Seidel, Undersheriff of Dewey County, who testified that he picked up the guns in question and turned them over to the Sheriff's Office.
Next to testify was Lindsey Salisbury, Sheriff of Dewey County, who said he arrived at the defendant's residence at approximately 2:00 p. m. and found the body of Sammie Thomsen lying on the ground next to a 1969 Ford. He further testified that he found two scotch bottles inside the kitchen, one with a small amount of liquid in it.
The State's final witness was Porter Leslie, a medical doctor and also medical examiner for Dewey County, who testified as to the cause and approximate time of death.
At this time the State rested, and the defense put on its case.
The first witness for the defense was J. Moore Campbell, a medical doctor practicing in Oklahoma City who taught at the University of Oklahoma Medical School. He testified that he had been treating the defendant since October, 1972, for back problems and later for spontaneous muscle cramps and headaches, which this witness diagnosed as being symptomatic of Huntington's Disease. He further testified that while researching the defendant's background he determined that this disease had been recurrent in the defendant's ancestry.
The doctor testified that one aspect of this disease is recurrent insanity, which is characterized by irrational behavior and psychotic conduct. Furthermore, he stated that such seizures could be precipitated by anxiety or stress such as would accompany the process of making decisions, and that this could account for the actions of the defendant on the day in question. However, this witness admitted that this disease is very difficult to diagnose, except in the later stages.
The defendant's second and final witness was Moorman P. Prosser, a medical doctor specializing in neurology and psychiatry, who in addition to private practice has been employed for the past 15 years as a professor of psychiatry, neurology and behavioral science at the University of Oklahoma School of Medicine.
This witness testified that in his opinion the defendant was suffering from an organic brain disturbance. Furthermore, the past actions of the defendant were characteristic of Huntington's Disease and his family history lent weight to such a diagnosis. It was this witness' opinion that at the time of the shooting the defendant was suffering from temporary insanity due to the effects of Huntington's chorea, at which time he would be unable to control himself in a normal manner, or to weigh the difference between right and wrong.
At this point the defendant rested his case, and the State put on three rebuttal witnesses.
The State's first rebuttal witness was Karen Thomsen, wife of the defendant's brother, who testified that she saw the defendant's father daily for the last two to three years prior to his death, and she noticed no twitching of his limbs, his mental capacity appearing to her to have been normal.
The State then called Oswald A. Pardo, a medical doctor practicing psychiatry and the clinical director of Western State Hospital. He testified that the defendant was examined and observed for a period of several weeks by a team of six doctors, of which this witness was the chief examiner. Dr. Pardo stated that he was unable to find any clinical evidence, psychiatric or neurologic, of Huntington's chorea. Further, he found no evidence of any insanity which would preclude the defendant from being tried.
The State's final witness was Robert J. Englund, a physician with the University of Oklahoma Health Sciences Center and resident with the Department of Internal Medicine. This witness examined the defendant at Central State Hospital. The examination consisted of a detailed neurologic examination. The findings were that the defendant's brain and nervous system were within normal limits.
At this point the case was submitted to the jury.
In the first eight assignments of error, the defendant asserts that the trial court erred in giving Instruction Nos. 2, 5 and 7, and by failing to give instructions on manslaughter. A review of the record indicates that the defendant did not preserve these issues for review by this Court. It appears that the defendant did not object to the instructions and that he submitted no instructions concerning the points of law in question. This Court stated in Holloway v. State, Okl.Cr., 550 P.2d 1352 (1976), that:
(Citations omitted)
From a review of the instructions as a whole, it would appear that the instructions given by the trial court generally covered the subject matter and no substantial right of the defendant was...
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