Johnson v. State

• Decision Date: 05 August 1996
• Docket Number: No. F-93-281,F-93-281
• Citation: 928 P.2d 309,1996 OK CR 36
• Parties: Mark David JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 309

928 P.2d 309

Mark David JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-93-281.

Court of Criminal Appeals of Oklahoma.

Aug. 5, 1996.

As Corrected Aug. 22, 1996.

Rehearing Granted Dec. 24, 1996.

Gary L. Henry, Ardmore, Samson R. Buck, Ardmore, Defense Counsel, at trial.

Fred Collins, District Attorney, Ardmore, L. Jack Barton, First Assistant District Atty., Marietta, Prosecutors, at trial.

Carol A. Walker and Robert W. Jackson, Asst. Appellate Indigent Defenders, Norman, for Appellant on appeal.

Susan Brimer Loving, Attorney General of Oklahoma, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for the State on appeal.

OPINION

LANE, Judge:

Mark David Johnson, Appellant, was convicted by jury for the crime of malice aforethought First Degree Murder in violation of 21 O.S.1991, § 701.7(A) in Love County District Court Case No. CRF-91-46. The jury recommended the death sentence after finding two aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel, and (2) there was a probability that the defendant would pose a continuing threat to society. See 21 O.S.1991, § 701.12(4), (7). The trial court sentenced accordingly. We affirm judgment and sentence.

FACTS

Thirty-three year old Billy Webb lived with his mother in the Presidential Gardens apartment complex in Norman, Oklahoma. He had mental problems, and acted like a twelve or thirteen year old child. He played with the residents' children, took medication for his mental problems, and often behaved oddly. He stared at people and showed up on their patios and in their garages uninvited. People who knew him believed he was harmless. The apartment manager, Carol Lowe, knew him well, and gave him odd jobs around the complex.

On July 23, 1991 Mark David Johnson, who lived at the complex and worked there as the painter, told Lowe that if he thought Webb was going to hurt her children he would "take a baseball bat to him, pour gas on him and throw a match on him." Johnson had made a similar statement to Lowe's husband. The next day Johnson told several co-workers that if they couldn't do anything about Webb, he could.

The next evening Webb held the flashlight while one of the tenants and her boyfriend put mud flaps on her truck. When the job was done, Webb told them he was going to go out and party. He left in an orange and white Chevrolet pickup with Mark David Johnson and Rickey Masquat. ¹ The next morning around 6:30 a.m. a motorist saw Webb standing naked in the middle of Putnam Road near Marietta in Love County. The motorist thought Webb was covered with mud. He called the Love County Sheriff, and Deputy Kenny Walker came to the site and heard Webb calling to him from tall grass by the side of the road. Webb was bleeding from a head wound, and his skin had been burned off. He told Walker that "Mark" hit him over the head with a baseball bat, and "Rickey" poured gasoline on him from a plastic jug and set him on fire. Webb also told him the men were headed to Dallas in a 1973 or 1974 orange and white Chevrolet pickup truck. Unknown to Deputy Walker, Johnson and Masquat had been contacted by the Highway Patrol earlier that morning as they walked away from their orange and white Chevrolet pickup that was stuck in the median of I-35 with a flat tire. The Trooper offered to call a wrecker, but when the men stated they wanted to call home, they were taken to the Chickasaw Trading Post. As a result of radio contact between the Sheriff's office and the Highway Patrol, Johnson and Masquat were arrested at the trading post.

The Trooper noticed blood on Johnson's sleeve and Johnson explained the blood came from the bloody nose he got when the truck hit the ditch. A bloody baseball bat, and a plastic jug with traces of gasoline was found in the bed of the truck. Forensic examination established the blood on the bat and shirt was consistent with Webb's blood. Johnson's shorts had gasoline on them. A plastic cap which fit the jug perfectly was found at the site where Webb was burned.

Webb lived for approximately seventeen hours after being burned. He was treated at the scene, at the Love County Health Center, at Ardmore Memorial Hospital, and at the Hillcrest Burn Center in Tulsa. He remained lucid until his death, his pain minimized by the fact the nerves in his skin had been burned away. During this time he was able to communicate, for he rejected sedatives in the hope he would be able to talk with his mother before he died.

Webb told the paramedic who treated him at the scene, "Rick and Mark, my friends" had done this to him. When the paramedic asked why they did it, Webb replied, "They say I messed with some kids and I didn't do that." Webb told a Tulsa Police Detective the same thing he told Deputy Walker, Mark hit him with the bat and Rick soaked him with gasoline and set him on fire.

I. JURY SELECTION

Appellant argues in his first proposition of error the trial court erred by failing to remove three veniremen for cause. Venireman Whiteley was passed for cause by the defendant, veniremen Miller-Reed and Robertson were challenged when each expressed the opinion that if the defendant was innocent he should take the stand. The trial judge denied these challenges, and the defense then struck these veniremen by peremptory challenge.

The State relies on Plantz v. State, 876 P.2d 268, 277 (Okl.Cr.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995) to argue the defense waived any appellate argument regarding Whiteley when it passed her for cause at trial. We find Plantz controlling, and do not reach the merits of this argument which has not been preserved for our review.

After Miller-Reed and Robertson expressed their opinion that the defendant should testify if he was innocent, the trial court explained the defendant's Fifth Amendment right to silence, and admonished these veniremen they would be instructed not to consider the defendant's silence at all. When the trial judge asked if they could follow this law, they replied they could.

This Court will reverse the decision of a trial court regarding jury selection only if that decision rises to an abuse of discretion. Id. at 277. A trial judge commits an abuse of discretion when the judge's decision is not supported by the law or facts of the case. Walker v. State, 780 P.2d 1181, 1183 (Okl.Cr.1989). Excusal for cause is justified when, among other things, a juror cannot try the issue impartially, and without prejudice to the substantial rights of the party challenging the juror. See 22 O.S.1991, § 659. When the two veniremen agreed to follow the law as set forth by the judge, they no longer prejudiced the substantial Fifth Amendment right of the defendant. Therefore, the trial court's decision to deny the challenge for cause is within the proper exercise of his discretion.

During voir dire the trial court asked prospective jurors:

If you find that the law and the evidence in this case warrants the recommendation of the death penalty could you vote to recommend that penalty?

The Appellant argues in his sixth proposition of error that by using the word "recommend", the trial court lessened the responsibility these jurors would feel, as they could conclude the appropriateness of the death sentence rested elsewhere. Such a result, he asserts, would violate the Eighth Amendment of the federal constitution. See Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985).

This argument was rejected in Romano v. State, 847 P.2d 368 (Okl.Cr.1993), affirmed, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). In Romano the trial court's use of the word, "recommend" in voir dire was not error where the proper and complete sentencing instructions were given in the second stage of trial. Id. at 390. Appellant tries to distinguish his case by arguing the fact the jury sent a note to the judge during deliberations asking whether life without parole meant the defendant would never be paroled. We find nothing in the post-sequestration communication that takes this case outside the reasoning of Caldwell or Romano. We address the correctness of the trial court's response to the jury below.

II. FIRST STAGE OF TRIAL: GUILT-INNOCENCE

A. EVIDENTIARY ISSUES

Appellant challenges the sufficiency of the evidence in his third and fifth propositions of error. He asserts the State failed to prove beyond a reasonable doubt that he (1) intended the victim be killed; and (2) was a principal, even as an aider and abetter. Appellant bases this argument on the uncontroverted evidence that Masquat soaked the victim with gasoline and set him on fire. The State counters with Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr.), cert. denied 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). In that case the accused helped plan the murder, acted as a lookout during the murder, and helped dispose of the body, but did not personally kill the victim. Id. at 333. This evidence was sufficient to prove malice aforethought.

The State introduced the following uncontroverted evidence. Three days before the murder Johnson said he would hit Webb with a baseball bat, soak him with gasoline and set him on fire if Webb hurt a child. As Johnson and Masquat attacked Webb, one of them told Webb he was being burned because he had harmed a child. Blood consistent with Webb's blood was found on Johnson's shirt; gasoline was found on his shorts. Johnson and Masquat were together when they picked Webb up in Norman, together during the attack, and together as they walked away from their mired truck.

We will apply this evidence first to the question of intent to kill. Malice aforethought, an element of murder in the first degree as charged in this case, is the deliberate intention to take away the life of a human being. 21 O.S.1991, § 701.7. This intent is manifest by external circumstances capable of proof. Id.

Both direct and circumstantial evidence of...