Kelly Knows He Faces Execution, Doctor Says

Testimony in the sanity hearing of triple murderer Horace Kelly took a dramatic turn Tuesday when a court-appointed psychiatrist said the inmate knows he is under sentence of death and why.

“My opinion is that he is aware of his impending execution,” Dr. Diane McEwen said. “He is aware of why he’s been sentenced.”

McEwen is the first witness to answer “yes” to both those questions--key issues in determining whether Kelly is mentally fit to be executed.

Painting a picture of the inmate that was vastly different from the incoherent, shambling wreck of a man his attorneys describe, McEwen said Kelly was able to provide information on a number of topics, including the names and ages of some of his victims.

She also said he played--and won--games of Tic-Tac-Toe and read off ingredients listed on a soda can.

Doctors who testified for Kelly’s attorneys, including the other court-appointed psychiatrist, have said the condemned man is suffering from a severe mental illness and was unable to speak to them coherently, answering in jumbled word salads.

McEwen said she got some of those kinds of answers too. But she responded by telling him, “That sounds like you’re faking it.”

“He smiled at me and he said, ‘Frame and fraud,’ ” she testified.

McEwen said Kelly also tended to answer “yes and no” or “good and bad” to questions. When she asked why, he said, “It’s my habit answer. It seems like it fits any question.”

McEwen said she thinks Kelly does have mental problems. But she did not find the kind of serious illness diagnosed by other doctors.

Under cross-examination, Kelly’s attorney Richard B. Mazer closely questioned McEwen about her methods as well as previous testimony from doctors who said Kelly was so out of touch he couldn’t even get his age right.

Kelly, 38, was to have been executed April 14 for killing three people in 1984.

But the execution was postponed after a prison evaluation raised questions regarding his sanity. It is illegal to execute the insane, and California law requires that such cases go to a jury. At issue: Can Kelly’s defense show he doesn’t know he’s about to be executed or why?

The prosecution’s first witness, San Quentin State Prison psychiatrist Jeanne Hoff, said only that she thought Kelly had an “emotional connection” to the phrase “put to death.”

But McEwen said that when she asked Kelly how he felt about being on death row, he replied, “Death row, execution, bad words.”

McEwen said she told Kelly, “You know, it seems hard to me to think that you will not get to grow old.”

“His response to that was, ‘I have been thinking about it. I can’t have a family.’ ”

McEwen also said Kelly was able to tell her his victims were “two girls and one boy.”

She asked if he meant that the victims were children.

“Then he answered, ‘Sonia Reed was 25 or 30, and Ursula Houser was 40. The boy was 12,’ ” she said.

In fact, Reed was 25 and Houser was 43. Kelly’s third victim was 11-year-old Danny Osentowski.

McEwen said Kelly talked about his family, saying he hadn’t seen his daughter “in a good while, since I left San Bernardino. She was this small . . . she was about 2. She was studying her numbers.”

At one point, McEwen drew grids for Tic-Tac-Toe games on paper and Kelly began playing.

McEwen said she lost two of five games they played; the other three ended in a draw. A poster showing the handwritten games was displayed to jurors.

Later, when asked about his reading ability, Kelly picked up a soda can and began reading off ingredients, trying to puzzle out some of the chemical names, she said. He also picked up a can of lemon tea and said, “I notice this isn’t diet,” she testified.

McEwen said she asked Kelly if he was watching his weight and how much he weighed. Kelly, who is not a large man, said he weighed more than 200 pounds and was more than 6 feet tall, making both of them laugh.

As McEwen testified about that conversation, Kelly, sitting quietly as he always does at his attorney’s table, smiled.

The sanity trial continues today in Marin County Superior Court, and jurors may begin deliberations by the end of the week.

Defense attorney Mazer said he learned Monday that a new execution date of June 9 has been set for Kelly by a judge in San Bernardino County, where two victims were killed.

State prosecutors also plan to go to Riverside County, where the third victim died, on Friday to ask for a second date in late June in case the hearing goes later.