Black v. State

• Decision Date: 12 March 2001
• Docket Number: No. D-1999-249.,D-1999-249.
• Citation: 2001 OK CR 5,21 P.3d 1047
• Parties: Johnny Dale BLACK, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

21 P.3d 1047

2001 OK CR 5

Johnny Dale BLACK, Appellant, v. STATE of Oklahoma, Appellee.

No. D-1999-249.

Court of Criminal Appeals of Oklahoma.

March 12, 2001.

Rehearing Denied April 9, 2001.

Deborah Maddox, Capital Trial Division, Oklahoma Indigent Defense System, Norman, OK, John Albert, Attorney At Law, Oklahoma City, OK, Attorneys for Appellant at trial.

Robert E. "Gene" Christian, District Attorney, Bret T. Burns, Assistant District Attorney, Stephens County Courthouse, Duncan, OK, Attorneys for the State at trial.

James H. Lockard, Sandra M. Cinnamon, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

STRUBHAR, Judge:

¶ 1 Johnny Dale Black, hereinafter Appellant, was convicted of one count of Murder in the first degree (21 O.S.Supp.1997, § 701.7(A)) and one count of Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony (21 O.S.Supp. 1992, § 652), following a jury trial in the District Court of Stephens County,¹ Case No. CF-99-01, the Honorable George W. Lindley, District Judge, presiding. The jury recommended death for the murder after finding four aggravating circumstances² and fifteen (15) years imprisonment for assault and battery with a deadly weapon. The trial court sentenced Appellant accordingly. From this Judgment and Sentence, he appeals.³

FACTS

¶ 2 On January 4, 1998, Cal Shankles went to the trailer home of Jesse Black where Jesse, his brothers Jimmy Black and Appellant, Robert Seale and several others were watching football playoffs. A nervous Shankles wanted the Black brothers and Robert Seale to accompany him while he went to find his brother. Shankles told the Blacks and Seale that he needed them to watch his back because Justin Hightower was looking for him over an affair he had been having with Hightower's soon-to-be ex-wife. Thereafter, Shankles, the Black brothers and Robert Seale left the trailer in Shankles' mother's green Neon with Appellant driving and Shankles on the lookout for Hightower's black Blazer.⁴

¶ 3 Meanwhile, Bill Pogue and his son-in-law, Rick Lewis, drove to Ringling in Pogue's black Blazer to buy some chewing tobacco at a local convenience store. On their way back to Pogue's home, they passed the Neon at an intersection and one of its passengers yelled something at Pogue's Blazer. The Neon turned around and pulled in behind Pogue traveling at a high rate of speed and flashing its lights. Shortly thereafter, the Neon passed Pogue's Blazer and stopped in front of it. It was disputed at trial whether the Neon blocked the roadway.

¶ 4 According to Rick Lewis, the surviving victim, he and Pogue exited the Blazer. Lewis went around the back of the Blazer and came up behind Pogue. The four doors of the Neon opened and Jimmy Black, who was seated in the rear on the driver's side, got out and ran barreling towards them. In response, Pogue hit Jimmy Black in the face and the two began to wrestle towards and into the east bar ditch. Jesse Black and Appellant then ran towards Lewis, who hit Jesse Black, momentarily knocking Jesse down. Lewis was able to sidestep Appellant and throw him into the front of the Blazer. Appellant and Jesse Black then began fighting with Lewis in the west bar ditch. During the fight, Lewis looked up to see Cal Shankles with some type of club and felt a couple of blows to the head. Lewis did not remember seeing Shankles during the entirety of the fight and the evidence showed Shankles went from bar ditch to bar ditch alternately hitting Lewis and Pogue with some type of club. Lewis remembered seeing Robert Seale standing at the back of the Neon holding what looked like a tree branch, but never saw him fighting with anyone.

¶ 5 After several minutes of fighting, Lewis was able to break free and make his way to the east bar ditch where he saw Pogue on top of Jimmy Black and Appellant over Pogue's back. Lewis pushed Appellant off of Pogue and helped Pogue stand up and head toward the Blazer. Jesse Black then hit Lewis in the side of the head and said "that's for bustin' my lip." The Black brothers, Seale and Shankles then lined up behind the Neon yelling obscenities and taunting Lewis and Pogue. While Lewis assisted Pogue, who had been stabbed eleven times, into the Blazer, the Neon sped away. Although Lewis did not realize it during the fight, Appellant had stabbed him thirteen times with wounds to the back of Lewis' head, spine, chest, side, buttock, leg and arm. After loading Pogue into the Blazer, Lewis raced him back to the Pogue barn, where family members took over and rushed both men to the Healdton hospital. Lewis was treated for his injuries and was later transferred to Ardmore for care. Pogue died at the Healdton hospital.

¶ 6 The morning after the fight Appellant fled to Texas, where he was later apprehended and voluntarily confessed. Jesse and Jimmy Black, Robert Seale and Cal Shankles were also arrested and made voluntary statements.⁵ In Appellant's voluntary statement to police, he claimed he did not go with Shankles to fight, but to see "what the deal was." He claimed he never intended to kill Pogue and he did not understand why Lewis and Pogue attacked his brothers. He maintained he did not remember stabbing Lewis and that he simply reacted because he was afraid for his brothers, Jesse and Jimmy. He claimed when he went to Jimmy's aid, he told Pogue to get off his brother or he would "stab" or "cut" him. When Pogue did not move, he stabbed him. According to Appellant, he and Pogue began to wrestle and roll around and Pogue kept rolling onto the knife. He maintained there was no intent to kill anyone and that his brothers did not know he used his knife. Other facts will be discussed as they become relevant to the propositions of error raised for review.

PRE-TRIAL ISSUES

¶ 7 In his twelfth proposition of error, Appellant claims he was denied due process of law when he was convicted of a greater offense than for which he was bound over at preliminary hearing. He maintains he was bound over on a charge of assault and battery with a dangerous weapon, but tried and convicted of the greater crime of assault and battery with a deadly weapon. Appellant never objected on these grounds.

¶ 8 The record shows Appellant was originally charged with assault and battery with a deadly weapon. At the beginning of preliminary hearing, the magistrate announced that each defendant was charged with first degree murder and assault and battery with a deadly weapon, which was confirmed by the District Attorney. At the conclusion of the preliminary hearing, the magistrate reviewed the evidence and ruled:

Upon those findings, the Court is compelled to bind over each of these Defendants and everyone of these Defendants in relation to each of the two charges that are charged against each of these Defendants.

(P.Hrg. 832)

¶ 9 Thereafter, the District Attorney clarified the magistrate's ruling and reminded the magistrate that as to Appellant the "bind over should reflect as to the assault and battery with a deadly weapon that he also be bound over with one prior Felony conviction." The magistrate ruled accordingly. That same day, the magistrate entered a written order entitled "Transcript of Examining Magistrate" in which he listed the crime charged as well as the crime for which the defendants were bound over as assault and battery with a dangerous weapon. Given the record of preliminary hearing and the fact the crime was misstated in both places on the written order, we find that the written order contains a scrivenor's error and that the record shows Appellant was bound over on a charge of assault and battery with a deadly weapon. As such Appellant was not denied due process and was tried on the appropriate charge for which he was bound over. Accordingly, no relief is required.

¶ 10 In his sixteenth proposition of error, Appellant claims his right to have an impartial magistrate preside at his preliminary hearing was denied. Prior to the hearing, Appellant unsuccessfully moved to disqualify the magistrate on grounds he had issued the search warrants and arrest warrants in this case. Appellant asserts that because the magistrate must have necessarily found probable cause in order to issue the warrants, the magistrate was unfairly predisposed to find probable cause at the preliminary hearing. Appellant claims this alleged error requires relief and asks this Court to reverse his conviction and remand this case for a proper preliminary hearing in front of an impartial magistrate.

¶ 11 Every person is entitled to have an impartial judge preside over his case. Okla. Const. art. 2, § 6. A judge who is interested in the cause or proceedings or the result thereof is disqualified to preside. 20 O.S.1991, § 1401. Rulings on motions to disqualify are within the sound discretion of the district courts and are reversed only where there has been a clear abuse of discretion. Nguyen v. State, 1992 OK CR 81, ¶ 19, 844 P.2d 176, 181,cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). Abuse of discretion has occurred where the trial judge's actions showed actual prejudice against the accused or the judge became intertwined in the case due to personal relationships. See Fitzgerald v. State, 1998 OK CR 68, ¶ 10, 972 P.2d 1157, 1163.

¶ 12 In the present case, neither Appellant's brief nor a review of the record reveals any particular instances of prejudice by the magistrate toward Appellant or that the magistrate became intertwined in the case due to some personal relationship with one of the parties. Nonetheless, Appellant would have this Court accept the argument that if a judge signs the search/arrest warrants in a case, that judge is necessarily biased/interested in the subsequent preliminary hearing.

¶ 13 We have reviewed our case...