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[T] State v. Cooper5/15/2003
. Michael Cooper appeals from a judgment convicting him, over pleas of not guilty by reason of mental disease or defect (NGI), of a fifth offense of operating a motor vehicle while intoxicated (OWI), a second offense of operating after revocation (OAR), and disorderly conduct. Cooper also appeals from an order denying his post-conviction motion for a new trial, claiming that the trial court failed to adequately consider his competency to stand trial, that he was denied a fair trial due to memory problems, and that he was denied effective assistance of counsel in several respects. We affirm on the competency and fair trial issues and conclude that most of the errors trial counsel is alleged to have committed were non-prejudicial. However, we are persuaded that trial counsel's failure to obtain Cooper's medical records and present them to the court-appointed psychiatrist who evaluated Cooper may have allowed the jury to be misled on the question of whether Cooper suffered from a mental defect. Therefore, we reverse and remand for retrial solely on the NGI issue.
BACKGROUND
. On September 17, 2000, bystanders at the scene of an accident informed the responding police officers that the driver of the car had fled. The officers found Cooper lying in a field nearby, observed several indicia of intoxication and took him into custody. Cooper alternated between yelling obscenities and slumping into a sleeplike state throughout the processing of his arrest. He refused to take a breath or blood alcohol test, and was ultimately charged with OWI-5th, OAR-2nd, being a habitual traffic offender, and disorderly conduct.
. Cooper initially entered guilty pleas to all of the charges, although he maintained that he could not actually remember the night in question. Cooper asked to withdraw his pleas prior to sentencing, however, at which time the court was informed that medical records submitted with Cooper's presentence investigation report showed that Cooper suffered from a number of significant cognitive deficits, particularly in the areas of learning and memory, as well as syncopal episodes, following what was believed to have been a bout of meningitis or encephalitis in 1999. The trial court permitted Cooper to withdraw his guilty pleas and enter new NGI pleas, and further ordered that Cooper's competence to stand trial be evaluated.
. The court-appointed psychiatrist examined Cooper without having seen Cooper's medical records. He concluded that Cooper had organic brain damage from meningitis or encephalitis and that he suffered serious memory deficits and seizures as a result. He further opined that Cooper had been in a post-seizure state when arrested, and that he had been incompetent to refuse consent to the breath and blood tests. The psychiatrist's report failed to address Cooper's competency to stand trial, and neither the parties or the court noticed the oversight or raised the issue again prior to trial.
. At trial, five officers testified that Cooper had exhibited slurred speech, red eyes, and difficulty walking, and that they had detected a strong odor of alcohol on him. Another witness who had been at the accident scene said that Cooper appeared intoxicated based on his speech and walking difficulties, although that witness had testified at the preliminary hearing that he had not detected an odor of alcohol on Cooper.
. Defense counsel did not ask the bystander about his preliminary hearing testimony, and did not ask the officers why they had failed to obtain an involuntary blood draw from Cooper. He also did not call Cooper's live-in girlfriend to testify that Cooper had not been drinking when they went out to dinner that evening. Coo
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