Wilson v. State, 18496

• Decision Date: 30 March 1989
• Docket Number: No. 18496,18496
• Citation: 771 P.2d 583,105 Nev. 110
• Parties: Edward Thomas WILSON and John Steven Olausen, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 583

771 P.2d 583

105 Nev. 110

Edward Thomas WILSON and John Steven Olausen, Appellants, v. The STATE of Nevada, Respondent.

No. 18496.

Supreme Court of Nevada.

March 30, 1989.

Lawrence D. Wishart, Reno, for appellant Wilson.

Phillip M. Stone, Reno, for appellant Olausen.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., and Gary Hatlestad, Deputy Dist. Atty., Washoe County, for respondent.

OPINION

PER CURIAM:

Appellants John Olausen and Edward Wilson pleaded guilty to first degree murder, robbery with use of a deadly weapon, and kidnapping with use of a deadly weapon, and the district court sentenced them to death. We upheld their sentences in Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983), and in Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985). Appellants then sought post-conviction relief in the district court, claiming that their trial counsel's performances at the 1979 penalty hearing violated their Sixth Amendment right to effective assistance of counsel. The district court denied their petitions, and Wilson and Olausen appeal.

Olausen's claim has merit because the record indicates that his attorney neglected to present a wealth of mitigating evidence that was available to him at the time of the penalty hearing. Moreover, counsel made a number of damaging remarks to the sentencing panel during his opening statement and closing argument. Therefore, because he did not receive the effective assistance of counsel during the sentencing phase, we now vacate Olausen's death sentence and remand his case to the district court for another penalty hearing. We affirm the district court's decision with respect to Wilson.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court defined standards for a defendant's Sixth Amendment right to effective assistance of counsel. The court described two components of a showing of ineffective assistance of counsel in the context of a murder conviction or death sentence. First, the accused must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Second, defendant must demonstrate that the attorney's deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064.

In order to prove prejudice, the accused must show that there is a reasonable probability that, but for counsel's mistakes, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. Thus, when a defendant challenges a death sentence, he must demonstrate a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2068.

Olausen argues that his attorney's decision not to present a large body of mitigating evidence, coupled with counsel's egregious remarks before the sentencing panel, denied him the effective assistance of counsel. We agree.

The bulk of the five-day penalty hearing consisted of the district attorney's presentation of aggravating factors. James Forman, Olausen's trial counsel, asked only his mother and father to testify on his behalf. Although their testimony was relevant, it would naturally appear somewhat biased in favor of Olausen. Incredibly, given the wealth of other mitigating evidence available to him, the parents' testimony was the only evidence presented by Forman in support of Olausen's attempt to avoid a death sentence.

Forman refused to allow Olausen's parents to testify as to his difficult childhood following their divorce and Mr. Olausen's remarriage to an emotionally unstable woman. He also refused to present the father's testimony concerning phone calls made to both parents two days before the murder, when the eighteen-year-old Olausen asked for permission to return home, but was rejected by both of his parents. ¹

John Olausen (Olausen's father), testified at the 1987 hearing for post-conviction relief. Mr. Olausen stated that in 1979, he told Forman about his son's difficult childhood and the problems the family had endured in the recent past. Mr. Olausen also told Forman about his son's involvement in sports activities and the Boy Scouts.

According to Mr. Olausen, Forman's response to this information was "[h]e's not a kid anymore, he's a murderer. He's someone that it would be a waste of time to present that type of background ... and this stuff, ... it would just piss off the judge." (Emphasis added.) Apparently, Mr. Forman decided that an attempt to save his client from the death penalty would not be worth the effort.

Furthermore, Forman failed to take advantage of NRS 7.135 which permits court-appointed attorneys to employ investigators to assist them in preparing their client's defense. When Mr. Olausen personally offered to hire an investigator in the preparation of his son's case, Forman became defensive and said: "I'm only getting $7,500 for this case. If I didn't want to handle it or I didn't think I could, I sure wouldn't bother with it.... It's not important, that type of stuff, it would just waste the court's time."

Before the 1979 penalty hearing, Olausen's sister, Suzanne, contacted approximately twenty people in his home town of Chico, California who told her that they would be willing to testify on Olausen's behalf. ² When Suzanne told Forman that these people were willing to testify, Forman discouraged the idea because it would waste court time. ³ Forman was also disinterested in Olausen's struggle with dyslexia because "[i]t didn't have anything to do with the crime that Olausen had committed." When Suzanne told Forman that Olausen saved his cousin's life when they were children, Forman responded: "He was a child. They were boys. It [doesn't] have any bearing. He's a man now."

After his arrest in 1979, detectives interrogated Olausen for approximately one hour and ten minutes. Although the police officers ostensibly recorded Olausen's entire confession, there were over fifteen minutes of time unaccounted for on the cassette tape. Mr. Olausen was present at his son's interrogation, and later testified that the detectives turned off the tape recorder when Olausen began to become emotional. Moreover, although he remembered his son expressing remorse for his crime and sympathy for the victim's family, Mr. Olausen testified that the final recording included none of these statements.

On several occasions before the penalty hearing, Mr. Olausen spoke to Forman regarding the missing segments of the tape. Forman told Mr. Olausen that since "the whole courtroom's full of cops, ... [it would] be useless to try and bring something like this when we're the bad guys."

Moreover, in 1979, Douglas Mathewson, a Mormon bishop, visited Olausen several times in his jail cell. On those occasions, Olausen expressed his sorrow and remorse for his actions. Olausen also asked the bishop for instruction in the process of repenting. Mathewson visited Forman prior to the sentencing hearing and raised the issues of Olausen's sorrow, remorse and repentance. Forman never asked Mathewson to testify.

We note from the record that Fred Stites and David Lani, the two young men prosecuted with John Olausen and Edward Wilson, received sentences of life imprisonment without possibility of parole for their complicity in the same homicide. As mitigating circumstances for Stites and Lani, the sentencing panel found that both young men exhibited remorse for their crime. Not surprisingly, the panel failed to make this same finding with respect to Olausen, who received a death sentence. Accordingly, we disagree with Forman's conclusion that it would have been "useless" to present evidence of Olausen's remorse at the 1979 penalty hearing.

When, as in the instant case, judges have sentencing discretion, possession of the fullest information possible regarding the defendant's life and characteristics is essential to the selection of an appropriate sentence. Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). A sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence. Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670, 90 L.Ed.2d 1 (1986).

Forman's failure to present more mitigating evidence on Olausen's behalf was error serious enough to abrogate Olausen's Sixth Amendment right to counsel. Because of the gravity and sheer quantity of counsel's omissions, there exists a reasonable probability that, absent Forman's errors, the sentencing panel would have concluded that the balancing of aggravating and mitigating circumstances did not warrant death. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Therefore, Forman's deficient performance prejudiced Olausen and he is entitled to a new sentencing proceeding. Id. at 687, 104 S.Ct. at 2064.

In addition, Forman's performance before the sentencing panel was remarkable not for the forcefulness of his advocacy, but rather for the ambivalence he showed toward Olausen's case. In both his opening statement and closing argument, Forman alternated between comments intended to spare his client from the death penalty, and remarks that were more appropriate for the district attorney.

At the start of his opening statement, Forman indicated to the sentencing panel his perceived weakness of Olausen's case when he said: "I will be very honest with this court that until five minutes ago, I didn't know which way I was going to proceed." Continuing, Forman told the three-judge panel: "I could put him up to say he is sorry, but everybody is sorry at this time. I'm sorry, and I'm sure they would say they are sorry." He downplayed the significance of Olausen's remorse again when he said: "The remorse today is not going to bring Officer Hoff back. It isn't going to help these defendants."

Finally, Forman summed up the reasons for not...