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Olsen v. State4/14/2003
h as .37 and was probably no lower than .106. This expert explained the correlation between levels of intoxication and effect on cognitive ability. Before the defense presented its final witness, Olsen, the trial judge, and counsel met out of the presence of the jury and recorded Olsen's waiving his right to testify. At that time, defense counsel placed on the record Olsen's concern that Dr. Gummow had not been called to testify during the defense's case-in-chief and his statement that he agreed with the decision not to call her during the guilt phase of his trial.
[ ] The last defense witness, Olsen's mother, testified to establish that on the days he had been observed watching the Little Chief Bar, he was in Colorado. The defense rested, and the State did not offer any rebuttal evidence. Before closing arguments and out of the presence of the jury, Olsen, counsel, and the trial judge met to record defense objections to a number of jury instructions.
V. Closing Arguments
[ ] The instructions were read to the jury and included instructions on first degree murder, felony murder, second degree murder, aggravated robbery, simple robbery, and larceny. The State delivered its closing argument, explaining the verdict form and the lesser included offenses. In its theory of the case, the State argued to the jury that the issue really is, "was it done on purpose, purposely, the act done intentionally or deliberately, and not accidentally." The State argued that, in the time period immediately preceding the robbery and during the robbery, Olsen's actions were a series of deliberate acts that proved the robbery and murders were premeditated, and not the result of a "drunken, drug-crazed, brain-damaged guy." It also argued that the manner in which Olsen carried out the murders proved premeditation, rather than accident. In addressing the defense's forensic toxicology evidence, the State pointed out that the defens e expert had not personally observed Olsen's behavior that night, and the observations of those who had personally observed it did not support the expert's conclusions that Olsen did not know what he was doing that night or was incapable of forming intent. The State argued that Olsen's gambling debt story and other actions when confronted by his mother and police were not indicative of intoxication or alcoholic amnesia, but showed that Olsen remembered what had happened that night and consciously decided to deal with it and provide an explanation for his behavior.
[ ] In its closing argument, the defense contended that the eyewitness testimony established that Olsen was intoxicated on the night of the crime. Regarding the eyewitness who claimed to have seen Olsen suspiciously observing the Little Chief Bar days before the robbery, the defense pointed out that his story was inconsistent between his police interview and his testimony, pointed out that the vehicles he described Olsen sitting in did not exist, argued that the motel and pawn shop receipts and Mrs. Olsen's testimony established that Olsen was in Colorado on the dates he was allegedly seen, and argued that the witness had not seen Olsen. Moving to the forensic toxicologist's testimony concerning the effect of alcohol on a person, defense counsel noted that Olsen's actions and statements that night were consistent with someone who behaved as though very intoxicated and whose behavior changed with sobriety. Under the defense's theory, Olsen told his gambling debt story while very intoxicated and, after sobering for many hours, forgot about it in a manner consistent with the expert's testimony. The defense also pointed out that the jury had been instructed that intoxication can negate specific intent, and because the unrefuted e
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