Batie v. State

• Decision Date: 27 January 1976
• Docket Number: No. F--75--528,F--75--528
• Citation: 545 P.2d 797
• Parties: Tommy Nolen BATIE and Joe Allen Batie, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 797

545 P.2d 797

Tommy Nolen BATIE and Joe Allen Batie, Appellants, v. The STATE of Oklahoma, Appellee.

No. F--75--528.

Court of Criminal Appeals of Oklahoma.

Jan. 27, 1976.

Rehearing Denied Feb. 12, 1976.

David K. Petty, Tryon, Sweet, Field & Petty, Guymon, for appellants.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Kenneth Lisle, Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellants, Tommy Nolen Batie and Joe Allen Batie, hereinafter referred to as defendants, were charged, tried and convicted in the District Court, Cimarron County, Case No. CRF--74--49, for the offense of Attempted Robbery With a Dangerous Weapon, in violation of 21 O.S.1971, § 801. Each defendant was sentenced to a term of seven (7) years' imprisonment, with the last two (2) years being suspended. From said judgments and sentences, a timely appeal has been perfected to this Court.

The State's first witness, Angel Vazquez, testified that he lived in Keyes, Oklahoma and was employed at the Stafford Elevator. He stated that in the early morning hours of December 6, 1974, four men broke into his house, hit him with a stick, stabbed him with a large knife and demanded his money. In court he identified defendant Joe Allen Batie as one of the men who had assaulted him and defendant Tommy Nolen Batie as one of the four men present on that evening. He said he was able to break loose and run for help, escaping with $920.00 on his person.

On cross-examination he admitted that he testified at the preliminary hearing that he could not remember defendant Tommy Nolen Batie as being present at the time the incident in question occurred. He also said that at the preliminary hearing he had testified he was attacked by defendant Joe Allen Batie who had cut him with the knife.

L. J. Stafford, Vazquez' employer, stated he took Vazquez to the hospital between 2:30 and 3:00 on the morning of December 6, 1974.

Carlos Crane, assistant manager at the Stafford Elevator, testified that on the previous afternoon Angel Vazquez was in the office counting his money when the defendants arrived and inquired about a job.

J. D. Wheeler, M.D., attending physician for Angel Vazquez, was called to testify for the State over defendants' objections on the ground that defendants had stipulated to the head injuries concerning which his testimony was sought. Dr. Wheeler's testimony regarding the victim's injuries reads as follows:

'A. He had lost a lot of blood. He had deep laceration across the face, cut through to the scalp, cut across his eyes and his nose was broken. He had two large wounds on the back of the head opened to the skull approximately 3 to 4 inches long. He also had a hole in his right leg, a puncture wound. His feet was full of sandburs and number of scrapes and burrs in his hands and feet. He was semi conscious. At the time I was unable to talk to him at all.' (Tr. 125)

Bob D. White, Cimarron County Sheriff, testified that he first saw Vazquez in the Cimarron County Hospital on the morning of December 6, 1974. He testified that he took photographs of Angel Vazquez which he identified as State's Exhibits Nos. 2 through 8. He further stated that during his investigation of the victim's residence photographs were taken which comprised State's Exhibits Nos. 9 through 23, showing evidence of forced entry into Vazquez' residence. He also found a two pronged meat fork, State's Exhibit No. 28, on the floor of the residence and a butcher knife State's Exhibit No. 29, on the cabinet near the back door.

Ann G. Reed, a forensic chemist employed by the Oklahoma State Crime Bureau, testified that various items of clothing including two pairs of boots were submitted to the laboratory for analysis. She identified all the items of clothing, State's Exhibits Nos. 24 through 27, and testified that they were all positive for human blood except the boots, which were positive for blood of unknown type. She also testified that the butcher knife and meat fork were positive for human blood.

Gilbert Martinez, Undersheriff of Cimarron County, corroborated certain testimony of Bob White.

The State's final witness was Leo F. Harriman, Deputy Sheriff of Cimarron County. He testified that he arrested Tommy Nolen Batie without a warrant at approximately 10:00 a.m. at Batie's residence, and arrested Joe Allen Batie at approximately 2:30 p.m. on December 6, 1974. Upon being shown the various items of clothing, tested by Ann G. Reed, he identified them as those which were worn by the defendants at the time of their arrest.

The State then rested.

Defendant Joe Allen Batie testified that he was at the Stafford Elevator on December 5, 1974, looking for work with co-defendant Tommy Nolen Batie and two other companions, but stated that they were not offered enough money and went elsewhere. He stated that two Mexicans, one of whom was Angel Vazquez, did take the job. He further testified that he, his brother, co-defendant Tommy Nolen Batie, Carl Burnett and Clayton Roach went to the residence of Angel Vazquez sometime in the early morning hours of December 6, 1974. He stated that the four of them went to the front door and upon receiving no response Carl Burnett and Clayton Roach went to the back door. The defendant estimated that 30 seconds later he and his brother followed. When they entered the back door, the victim was covered with blood and the floor was covered with broken glass and blood. The defendant also corroborated Leo Harriman's testimony that the pants, shirt and one pair of boots, entered into evidence, were worn by him on the night in question. He denied that either he or his brother, Tommy Nolen Batie, ever struck Vazquez with a knife or club, and he denied that money was ever mentioned.

The defendants' first assignment of error asserts the trial court erred in failing to instruct on certain lesser included offenses, specifically burglary in first degree, in violation of 21 O.S., § 1431; burglary in the second degree, in violation of 21 O.S., § 1435; felonious assault, in violation of 21 O.S., § 681; assault and battery with a dangerous weapon, in violation of 21 O.S., § 645; aggravated assault and battery, in violation of 21 O.S., § 647; and, intimidating laborers in violation of 21 O.S., § 837. The defendants are thus urging that the trial court's failure to instruct on these as necessary lesser included offenses violates 22 O.S.1971, § 916 and the principle that the court must submit instructions which include the applicable law necessary to resolve all the material issues raised or suggested by the evidence, citing Bailey v. State, Okl.Cr., 536 P.2d 985 (1975); Reeves v. State, Okl.Cr., 535 P.2d 706 (1975); Tarter v. State, Okl.Cr., 359 P.2d 596 (1961); and, Woodruff v. State, 74 Okl.Cr. 289, 125 P.2d 211 (1942). We do not agree.

In the instant case the victim, Vazquez, testified that the defendants, Joe Allen Batie and Tommy Nolen Batie, were two of the four men who broke into his house in the early morning hours of December 6, 1974, demanding at knife point his money, and after being beaten and cut he escaped to a friend's house. Defendant Tommy Nolen Batie did not take the stand to testify. Defendant Joe Allen Batie took the stand and testified that he and his brother, along with Carl Burnett and Clayton Roach, did go to Vazquez' house on December 6, 1974, at approximately the same time that Vazquez testified the incident in question occurred. He stated that they went there merely to talk to Vazquez about Vazquez' having taken the job hauling hay at the Stafford Elevator. He stated that upon their arrival at Vazquez' house they approached the front door and knocked, but upon observing a padlock on the door Carl Burnett and Clayton Roach proceeded around the house to the back door with the defendants remaining on the front porch. Joe Allen Batie testified that after a short period of time he and his brother proceeded around the house at which time he heard noise and observed the back door to be open. He stated that Clayton Roach was choking Vazquez. He stated that he observed Roach throw Vazquez toward the cabinets. At no time, he testified, did he see anyone holding a knife an Vazquez, nor did he see anyone hit Vazquez with a club. After Vazquez ran out of the back door they all left. According to Joe Allen Batie's testimony, neither he nor his brother, Tommy Nolen Batie, participated in the alleged offense.

This Court has repeatedly adhered to the general rule in Oklahoma that the instructions given to the jury are left to the discretion of the trial court, and that such discretion will not be interfered with as long as the instructions, considered as a whole, fairly and accurately state the applicable law. See, Barber v. State, Okl.Cr., 388 P.2d 320 (1963); Bradshaw v. State, Okl.Cr., 510 P.2d 972 (1973); Turman v. State, Okl.Cr., 522 P.2d 247 (1974); and Reddell v. State, Okl.Cr., 543 P.2d 574 (1975). Yet, we do agree with the cases cited by the defendants regarding the principle that they were entitled to instructions whether requested or not upon lesser included offenses of the subject charge, if the evidence so supports. However, the trial court should not instruct upon any degree of a crime or theory of defense which is not supported by the evidence. See, Rhoades v. State, 16 Okl.Cr. 446, 184 P. 913 (1919); Callaway v. State, Okl.Cr., 518 P.2d 1277 (1974); and Nickelberry v. State, Okl.Cr., 521 P.2d 879 (1974).

We are thus of the opinion that under the facts and circumstances herein discussed the evidence does not support any of the offenses as suggested by defendants as being lesser included offenses. Also see, Rodgers v. State, Okl.Cr., 510 P.2d 992 (1973). Therefore, we find no error in the trial court's instructions and for this reason we reject the defendants' first assignment of error.

We choose to discuss next the defendants' fourth assignment of error which asserts that the examining magistrate erred in...