TAHLEQUAH — The second trial for a man accused of first-degree murder was stricken from this week’s jury docket to allow the court to address competency issues of a key witness and second murder suspect.

Robert Lee Smallen, 60, is accused in the 2007 shooting death of Ronnie Hall.

Smallen’s defense counsel, Rex Earl Starr, said in his request that Smallen’s previous trial ended in a mistrial, with 10 jurors voting that Smallen was not guilty and two voting that he was.

After Smallen’s first trial, the state charged another man – Daniel Prentice Thornburg, who testified as a key witness against Smallen – with murder, saying he had also been involved in Hall’s death.

A judge this year ordered Thornburg to undergo a mental health evaluation. Thornburg’s own counsel had sought an evaluation and received a determination that he was not competent, and a subsequent evaluation by the state’s chosen expert resulted in the same determination.

Starr argues the case should be stricken until competency is restored “or other matters are fully resolved,” specifically because Thornburg is the “state’s main witness” and has been charged with the identical crime of murder.

According to a 2010 report filed by Jeanne Russell, a licensed psychologist, her evaluation of Thornburg resulted in doubts about his ability “to provide reliable and believable testimony.”

“Mr. Thornburg can tell the jury what occurred on the night that Mr. Hall died. However, he becomes easily confused should questions become too long or complex,” Russell wrote. “... Thornburg’s testimony during Mr. Smallen’s [first] trial reveals obvious deficits. ... He would sometimes guess based on the way the attorney asked the question in an effort to provide an answer.

As a result, responses were sometimes conflicting with those given during previous testimony, which has the potential to look like he was or is lying about his observations. Most deficits are most likely due to impaired intellectual functioning (Mild Mental Retardation).”

In July, licensed psychologist Curtis T. Grundy provided the state with his results after a judge ordered the evaluation. Grundy concluded Thornburg is able to appreciate the nature of the charges against him, but is not able to consult with his lawyer and rationally assist in the preparation of his defense.

“... Thornburg manifests Mild Mental Retardation that substantially limits his factual understanding of the proceedings and ability to rationally assist in his defense,” Grundy wrote. “... Mr. Thornburg was unable to accurately differentiate whether the prosecutor represented him or was against him. Likewise, he performed similar errors regarding the role of the defense attorney, expressing confusion about the role of his attorney.”

Thornburg also believed Russell, who conducted the first evaluation, had known his wife and functioned as a lawyer rather than as a mental health professional.

Grundy said it is unclear if Thornburg can attain competency “within a reasonable period of time with appropriate intervention and competency training.”

“He admits to a chronic history of marijuana use,” Grundy wrote.

“... His patterns of substance abuse may be further compromising his intellectual and cognitive functioning. A period of confirmed abstinence, combined with competency training, will clarify his restorability.”

Prosecutors, meanwhile, are requesting the court allow an amended information to be filed in Smallen’s case to allege Smallen was aiding and abetting Thornburg when they acted together to kill Hall.

Hall was allegedly shot multiple times in the head and body.

Both motions are set to be discussed during a hearing on Oct. 17 at 9 a.m.

Smallen is currently jailed in Muskogee County, court documents show.

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