Knoxville — Convicted murderer Steven Dean McGinnis, along with his criminal trial attorney, Richard Phelps, testified in the closing portions of today's post-conviction relief hearing.
While on the stand, there was a great deal that Phelps did not recall about the case. The crime occurred in 2008 and did not go to trial until 2009.
Phelps concurred that the State pared down its witness list 10 days before trial. This included cutting Robin Matrie, the VA recreation worker who also had a personal relationship with McGinnis. Private Investigator Scott Gratias testified earlier in today's hearing that part of his strategy was to implicate Matrie in the murder.
"It didn't matter to me what Mr. Gratias thought," Phelps said. "(Matrie) have inconsistent stories and was also the first on the scene. It was going to be our strategy to have her at the scene of the crime."
The cut in witnesses came after the Attorney General's Office replaced Assistant AG Scott Brown with Assistant AG Tom Miller. Brown had surgery and could not continue with the trial.
"It cut out a great deal of what we had planned to do," Phelps said about Matrie's cut from the witness list.
There were three VA doctors called during the criminal trial. According to McGinnis, none of them were treating him at the time of the murder, nor did they have the background information on his condition that Dr. Bruce Sieleni had. Sieleni testified this morning about the years he has treated McGinnis and the severity of McGinnis' post-traumatic stress disorder (PTSD).
Phelps did not have an independent evaluation of McGinnis prepared for the murder trial. The State did hire a doctor, whom McGinnis claimed spent "one hour" with him. In that time, the doctor smoked, drank soda and took phone calls.
Phelps testified that he did not feel the testimony of the State's doctor was the trigger in the jury's decision to convict McGinnis. Judge Brad McCall asked Phelps what Phelps thought was the cause.
"I think it was Mr. McGinnis' demeanor throughout the trial," Phelps said. "I don't think he smiled once."
He believes the jury is convinced someone is dangerous when he or she is not allowed to leave the courtroom and roam the halls.
"There was nothing we could do about it. We worked and we tried," Phelps said.
Phelps believes he gave McGinnis' defense a good effort.
"You never know if you did the best job," Phelps said. "We used what we had and we did not prevail."
McGinnis said he has been dealing with PTSD since 1996. It stems from his military service in Panama and the Persian Gulf. He describes his symptoms as being hyper vigilant and having an inability to trust others, and that he has no memories during his flashbacks.
While McGinnis could not remember the incidents, he said he was told that during his time in the Marion County Jail, he had two flashbacks. At one point, he was behind a stairway, convinced it was a cave. In another incident, he approached another prisoner's cell with the intent to kill him.
McGinnis does not remember what happened on Sept. 21, 2008, the day he shot Rob Ohl. He said he told Phelps on a number of occasions whom Phelps should have had testify, but these people were not contacted. A request was made to bring an independent PTSD expert, based in Wisconsin, to the trial. However, the state denied this request for funds to pay for this.
A portion of the basis for McGinnis' application for post-conviction relief was that Phelps would not let McGinnis testify. Phelps admitted that he thought having McGinnis testify would have been risky, but the decision was left to McGinnis.
"If he wanted to testify, he would have," Phelps said.
On the stand, McGinnis said he felt his testimony would have helped his case. He thinks he could have demonstrated what Ohl meant to him as a friend.
"Me and Mr. Ohl were friends," McGinnis said. "We basically did everything together. He was the only friend I trusted."
He later said about testifying, "I felt I could have cleared up a lot of loose ends."
During her cross-examination of McGinnis, Assistant County Attorney Tiffany Kragnes asked McGinnis to specify what he meant by this.
"(Matrie) was trying to veer away from me when we were actually a couple," McGinnis said. "If the VA had found out that we were dating, she would have been fired."
McGinnis said he had a conversation with Ohl about the possibility that Ohl had reported the relationship with Matrie. According to McGinnis, Ohl's response was that he would kill whomever reported them.
Deb Danielson treated McGinnis as a counselor at the VA, but was no longer his counselor at the time of the murder. McGinnis called her several times the day of the murder and reportedly told her that he shot Ohl. McGinnis said she was still his counselor at the time and that Phelps should have tried to establish patient-counselor privilege and keep Danielson from testifying. McGinnis also denies telling her that he shot Ohl.
"To my knowledge, I don't think I ever told her that," McGinnis said. "I wanted her whole testimony thrown out."
Kragnes further explored McGinnis' relationship with Matrie. McGinnis had said that he believes she was more involved with the crime than she discussed.
"I, just like my attorneys, felt she had more to do with this case," McGinnis said. He could not specify what she did nor did not do in this case that hurt him, but he added, "She never really told the truth about anything."
McGinnis' attorney in this hearing, Nicholas Bailey, asked a few more follow-up questions. Bailey presented him with a handwritten note, apparently from Matrie.
"I don't remember her telling me anything she's got written here," McGinnis said. He said he did love her and did not want anything bad to happen to her.
Kragnes asked McGinnis if he believed this love would have been a motive in Ohl's murder. McGinnis said yes.
Bailey made a brief closing statement, in which he believes it was proven today that the defense was "half-hearted" and that Sieleni should have been called to testify at the murder trial. He also discredited the original defense strategy of blaming McGinnis' PTSD and trying to implicate Matrie in the shooting.
"I think Mr. McGinnis is deserving of a new trial," Bailey said.
McCall believes McGinnis should have articulated better how the testimony of the doctors he chose would have helped. The judge said he read through the trial transcript this week and believes that Sieleni's description of McGinnis' PTSD demonstrated a more severe condition than that portrayed by any of the doctors who did testify.
"I think (Sieleni) even said, 'one of the most severe (cases) he ever treated,'" McCall said. He went on to say that while Sieleni said McGinnis had a "significant" problem with PTSD, the doctor did not indicate that this would have precluded McGinnis to know right from wrong, even in a flashback.
Bailey said the problem is that the defense allowed the State's doctor to discuss McGinnis' condition, without its own expert testimony. McCall indicated that McGinnis failed to show today that there is reason to believe the outcome of his trial could have been different if the defense was better.
In Kragnes' statement, she said that McGinnis failed to demonstrate how PTSD could have precluded any reasonable jury from finding him guilty. She added that PTSD does not make ability to tell right from wrong indistinguishable. There was also no testimony from appellate counsel, whom McGinnis also blamed in his application for relief.
Bailey has 14 days to submit a written summation about the case to McCall. Kragnes will submit one on behalf of the State by Sept. 20.
Look for a full report on today's hearing in the Sept. 6 Journal-Express.