Black v. State

• Decision Date: 23 November 2004
• Docket Number: No. SC 85535.,SC 85535.
• Citation: 151 S.W.3d 49
• Parties: Gary BLACK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

151 S.W.3d 49

Gary BLACK, Appellant, v. STATE of Missouri, Respondent.

No. SC 85535.

Supreme Court of Missouri, En Banc.

November 23, 2004.

Melinda K. Pendergraph, Office of Public Defender, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Breck K. Burgess, Asst. Attys. Gen., Jefferson City, MO, for Respondent.

LAURA DENVIR STITH, Judge.

Gary Black appeals from the denial of post-conviction relief from his conviction and death sentence for the first-degree murder of Jason Johnson. He alleges that his trial counsel was ineffective in failing to impeach four witnesses with prior inconsistent statements that he argues showed that the murder was not the result of deliberation. The motion court found that these failures were not the result of trial strategy, but found no prejudice.

This Court agrees that, in the circumstances of this case, defense counsel's failure to impeach these key witnesses with their prior statements about the incident in which Mr. Black stabbed the victim was ineffective. It also was so prejudicial as to undermine this Court's confidence in the outcome of the trial. Accordingly, this Court reverses the judgment. Pursuant to Rule 84.14, the case is remanded for a new trial on all issues. Because of the Court's resolution of this issue, it does not reach the other issues raised as to the failure to call a blood splatter expert and toxicologist, the failure to request submission of a second-degree murder instruction, or the failure to challenge other evidence or make other motions.

I. FACTUAL BACKGROUND

The victim, Jason Johnson, was black; the movant, Gary Black, and his girlfriend, Tammy Lawson, are white. Mr. Johnson's death on the evening of October 2, 1998, grew out of movant's race-based reaction to the victim's behavior toward Tammy Lawson.

After leaving work on the day of the murder, Mr. Johnson went to a restaurant in Joplin. While the evidence is inconsistent as to how much he had to drink before the incidents leading to his death, it is clear that he had at least two or three beers with his friends, Andrew Martin and Mark Wolfe, over the next few hours. The defense presented evidence that at the time of his death his blood alcohol content (BAC) was .29 and that Mr. Johnson had been "mouthy" to some girls at the restaurant earlier in the evening.¹ All agree that, after drinking at the restaurant, Mr. Martin and Mr. Johnson left in Mr. Martin's Ford F-150 truck to go to an area nightclub. Mr. Wolfe followed in his Camaro. On the way, they stopped at a convenience store, and Mr. Johnson went inside to purchase a can of chewing tobacco and a 40-ounce bottle of beer.

By chance, Mr. Black's girlfriend, Tammy Lawson, was in the same convenience store and Mr. Johnson stood behind her in the checkout line. She got upset, believing that Mr. Johnson was making a pass at her. Once she left the store and went to Mr. Black's car, she pointed Mr. Johnson out to Mr. Black as Mr. Johnson left the store holding the beer bottle in a paper bag. She said something, apparently describing the incident. According to her later statement to police, Mr. Black got angry and wanted to confront Mr. Johnson.

Once Mr. Johnson got back in the truck, they drove off, with Mr. Wolfe following. But, this time, Mr. Black and his girlfriend followed too. When she asked what he was going to do, Mr. Black answered that he was "going to hurt that nig____." Mr. Martin stopped the truck at a stoplight at 5th and Joplin, in front of a Joplin nightclub, and began talking to two girls, Michelle Copeland and Gloria Norman, who were standing just outside the driver's side door. At the same time, Mr. Black and his girlfriend pulled alongside the passenger side of the truck, next to where Mr. Johnson was sitting.

Tammy Lawson later told police that Mr. Black's anger increased when Mr. Johnson yelled at them, calling her a bitch and a whore, and the two men exchanged words from their vehicles. All further agree that Mr. Black thereafter stabbed and killed Mr. Johnson. But, they do not agree as to how that stabbing occurred. These differences are crucial, Mr. Black argues, for the jury was likely to find that they mark the difference between a murder after deliberation, thus making him guilty of first-degree murder, and a murder committed while seeking to injure the victim, but without deliberation or intent to kill, making him guilty of second-degree murder or voluntary manslaughter rather than first-degree murder.

The State presented testimony from the victim's friends, Andy Martin and Mark Wolfe, as well as from a witness outside the nightclub, Jamie Brandon, that Mr. Black got out of his car, walked over to the passenger-side window of the truck, reached in the window as the victim tried to open the door, and stabbed the victim in the left side of the neck, severing the jugular vein and nearly severing the carotid artery. As Mr. Black then returned to his car, the victim got out of the truck and staggered after him, throwing the 40-ounce beer bottle at him, bag and all. The victim then got back in the truck, bleeding seriously, and bystanders attempted to help slow the bleeding by applying pressure to the wound. Paramedics arrived and took the victim to the hospital. He underwent surgery, but died three days later, on October 5, 1998. Meanwhile, Mr. Black returned to his car, allegedly telling his girlfriend, "one nig____ down," and drove off. The State argued that this evidence showed deliberation in that it showed he followed the victim's truck with the intended purpose of stabbing and killing him, rather than killing him in the course of a fight, without deliberation.

Mr. Black presented a different story. He denied that he deliberated about killing the victim. He said he killed Mr. Johnson in self-defense after the latter tried to hit him with the beer bottle, and that even if not acting in self-defense, the State at most proved second-degree murder in the course of a fight, not a deliberate stabbing. In support, Mr. Black presented the testimony of defense witnesses Gloria Norman and Ronald Friend, who testified that the victim got out of the truck before he began bleeding and that the victim and Mr. Black fought in the street. He also presented evidence that he did not stab the victim until after the latter swung at him with the 40-ounce beer bottle.

This evidence arguably was supported by forensic evidence that once the victim was stabbed, his blood would have spurted out heavily and spattered in a peculiar pattern, so that witnesses would have had to see substantial blood on Mr. Johnson once he was stabbed. If, as the defense witnesses indicated, witnesses did not see blood on Mr. Johnson until after he got out of the truck, then it would undermine the State's theory that Mr. Black stabbed the victim in the truck, rather than in a fight, and so undermine the State's claim that the killing occurred as a result of deliberation rather than passion.

The jury was thus left with two very different accounts of the incident — one offered by the defense and one offered by the State through its witnesses Mark Wolfe, Jamie Brandon, Andrew Martin, and defense witness Michelle Copeland. The jury had to pick which witnesses to believe. For this reason, Mr. Black argues, it was essential to impeach the testimony of the witnesses relied on by the State. Defense counsel did impeach State's witness Andrew Martin in this manner, showing that in his initial statements to police he had said that the victim got out of the pickup before Mr. Martin saw blood on him, and that he saw the blood only as the victim returned to the truck, and that only at trial did he say that the victim began spurting blood while still in the truck.

But, defense counsel failed to impeach the testimony of Mr. Wolfe, Mr. Brandon, and Ms. Copeland, even though counsel did have prior inconsistent statements by these witnesses. Specifically, Mr. Wolfe had told one of the first officers on the scene that he saw Mr. Black and the victim get out of their vehicles and exchange words and saw a brown bag containing the beer bottle hit Mr. Black's head or arm. He told an investigator that he saw the victim connect with at least one blow to Mr. Black. This is inconsistent with his trial testimony that he saw Mr. Black jab at the victim through the window.

Similarly, Mr. Brandon told an officer at the scene that the men got out of their vehicles and exchanged blows in the middle of the road, which is at odds with his trial testimony that Mr. Black swung his hand through the window and then the victim got out. Michelle Copeland, too, told an investigator that she saw and heard the victim yelling at someone, saw him open the passenger door and get out, and at that time she saw no injury. This contrasts with her trial testimony that the victim remained in the pickup.

Had this evidence been admitted to impeach these witnesses, it also would have been admissible as substantive evidence. Rowe v. Farmers Ins. Co., 699 S.W.2d 423, 428 (Mo. banc 1985); Sec. 491.074, RSMo 2000. Counsel admitted at the post-conviction hearing that she had no trial strategy for failing to impeach these witnesses. While the trial judge was not required to accept this self-analysis, he specifically found that the failure to impeach was not trial strategy.

There was also conflicting evidence as to how much Mr. Johnson, Mr. Wolfe, and Mr. Martin had to drink that night. The defense was able to introduce evidence that the victim's blood alcohol content was .29, but the State questioned the accuracy of the test result. Defense counsel could have supported its position by impeaching Mr. Martin by showing that, although at trial the latter said the victim got to the restaurant at 6:30 or 7:00 p.m. and just had a few beers, prior to trial he said the victim went directly to the restaurant after getting off work. Mr. Johnson got off work at 4:19 p.m. And,...