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Olsen v. State4/14/2003
C. Ineffective Assistance of Trial Counsel
[ ] Olsen contends that his trial counsel failed to provide effective assistance of trial counsel in three areas:
1) when counsel admitted guilt and never gave the jury the opportunity to consider the defense of mental illness during the guilt phase;
2) when counsel failed to impeach Division of Criminal Investigation Agent Kevin Hughes; and
3) when counsel failed to pursue a change of venue even when faced with waiving peremptory challenges in order to impanel a jury.
1. Counsel's Admission of Guilt
[ ] During voir dire of the jury panel, defense counsel told the entire venire of prospective jurors:
Ladies and gentlemen, before we start I'm going to tell you, I'm going to admit to you, that the issue in this case will not involve who did the shootings. That won't be the issue. We admit, ladies and gentlemen, that Martin Olsen shot all three of the individuals concerned in this case; Emma McCoid, Kyle Baumstarck, Art Taylor. That he did that on the evening of January the 20th, we admit that, that he shot them. They were facedown and he shot them in the back of the head. That he took money from that establishment and he left. He was ultimately captured near Buffalo. We admit all those facts, ladies and gentlemen, they are facts. They are there. He's confessed to it, many of you pointed that out in the questionnaires, that he's confessed to it. He's not only confessed to police officers he's confessed to his mother.
So before we start, I wanted to get that on the table. That won't be an issue. Okay. Do all of you understand then what I just told you? Do all of you understand that? What will be an issue in this particular case, ladies and gentlemen, is the degree of guilt. That's why we're here.
Later, counsel explained that he would use an intoxication defense to establish that Olsen could not have formed the requisite intent for first degree murder and was admitting to second degree murder. Olsen's specific contention on appeal is that counsel conceded his guilt without pursuing the affirmative defense allowed under Wyo. Stat. Ann. § 7-11-305(a) (Michie 1997), a plea of not guilty by reason of mental illness or deficiency. Wyo. Stat. Ann. § 7-11-304(a) (Michie 1997) defines this defense as:
A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental illness or deficiency mean only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable primarily to self-induced intoxication as defined by W.S. 6-1-202(b).
Olsen contends that Dr. Gummow's testimony during the sentencing phase that Olsen could not conform his conduct to the law permitted this affirmative defense to the crime charged and should have been presented during the guilt phase of the trial. A hearing was held on the State's motion for demand for notice of defense of mental illness or deficiency, and defense counsel informed the court that, based on two examinations, the defense did not anticipate changing the plea from not guilty to not guilty by reason of mental deficiency. The State contends that the hearing and a third examination show Olsen's defense counsel actively explored this potential defense by three expert examinations and reasonably concluded that the statutory definition of this affirmative defense was not established for presentation during the g
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