Carter v. State

• Decision Date: 29 July 1994
• Docket Number: No. F-91-160,F-91-160
• Citation: 1994 OK CR 49,879 P.2d 1234
• Parties: Ernest Marvin CARTER, Jr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1234

879 P.2d 1234

Ernest Marvin CARTER, Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-91-160.

Court of Criminal Appeals of Oklahoma.

July 29, 1994.

Rehearing Denied Sept. 21, 1994.

An Appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

Ernest Marvin Carter, Jr., Appellant, was tried by jury and convicted of the crime of

First Degree Murder while in the commission of a robbery pursuant to the felony murder doctrine codified at 21 O.S.1981, § 701.7, Case No. CRF-90-1012 in the District Court of Oklahoma County. The jury recommended the death penalty and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED.

David Autry, Paul Faulk, Asst. Public Defenders, Oklahoma City, for appellant at trial.

Robert Macy, Dist. Atty., Steve Deutsch, Asst. Dist. Atty., Oklahoma City, for State at trial.

Dora S. Roberts, Oklahoma City, for appellant on appeal.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for State on appeal.

OPINION

LUMPKIN, Presiding Judge:

Appellant Ernest Marvin Carter, Jr., was tried by jury and convicted of the crime of First Degree Murder while in the commission of a robbery pursuant to the felony murder doctrine codified at 21 O.S.1981, § 701.7, Case No. CRF-90-1012, in the District Court of Oklahoma County. The jury recommended the death penalty and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant and co-defendant Charles Summers ¹ were found guilty of the first degree murder of Eugene Manowski, the security guard at the Oklahoma Auto Auction. On January 28, 1990, at approximately 8:00 a.m., Mr. Manowski was found by the day security guard in a pool of blood on the floor of the guard shack. He had been shot once in the head at close range. The lights in the guard shack had been turned off and the door was open. The drive-in gates to the auction yard were partially open and the lock on the gate was either bent or cut off.

Appellant had been employed by the Auto Auction as a security guard for approximately sixty (60) to ninety (90) days. He had been fired during the second week in January 1990. On the evening of January 27, 1990, Appellant, co-defendant Summers and Summers' girlfriend, Tammy Lewis, drove from their home in Chandler to the Oklahoma Auto Auction in Oklahoma City. With Summers driving, they pulled up to the Auto Auction. Summers broke the silence maintained since the group left Chandler by announcing "this is good". Appellant grabbed a pair of bolt cutters and left the car. Summers and Lewis returned to Chandler. Approximately two (2) hours later, Appellant woke up Summers and Lewis and told them he needed help with the truck and that he had killed a man. Summers and Lewis found Appellant in possession of a white wrecker truck with the word "Auction" on its side. They towed the truck to Summers' body shop in Chandler.

Larry Denson, an automobile mechanic who occasionally did work for co-defendant Summers, was approached by Appellant later that afternoon and asked to repair a white pickup with a wrecker attachment. Appellant told Denson he had "ripped the truck off." Denson attempted to humor Appellant, but Appellant persisted saying "a guy seen me rip it off but he's not going to tell anybody ... I offed him." When Appellant told Denson he had no choice but to kill the decedent, Denson told him he did have a choice, that he should not have been there.

Appellant and Summers painted the truck from the Auto Auction and removed the wrecker attachment, placing it in an old pickup with the intention of hiding it on family property. When the pickup containing the wrecker attachment became stuck in the mud, the wrecker attachment was removed and partially buried. A few days later, Appellant and Summers took the truck from the Auction to a county road between Chandler and Davenport and attempted to burn it.

Appellant took the witness stand in his own defense and denied any involvement in the robbery/homicide. He admitted seeing the wrecker from the Auto Auction in Summers' body shop, the same day he heard about the murder, and to assisting Summers and Lewis in getting rid of the truck. Appellant testified he helped Summers paint the Auto Auction truck and remove the wrecker assembly.

PRE-TRIAL ISSUES

Appellant asserts in his first assignment of error that the trial court erred in denying his repeated requests for a trial separate from that of his co-defendant. Appellant argues that the defenses presented by himself and co-defendant Summers were mutually antagonistic. Therefore, under recent rulings from this Court, he and his co-defendant were entitled to separate trials. The State disputes this argument claiming that the joint trial was proper as the defenses were not mutually antagonistic.

Defenses are mutually antagonistic where each defendant attempts to exculpate himself and inculpate his co-defendant. VanWoundenberg v. State, 720 P.2d 328, 331 (Okl.Cr.1986), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). In Bryson v. State, 876 P.2d 240, 247-50 (Okl.Cr.1994) we found this two part test for establishing mutually antagonistic defenses requires a defendant to both (1) exculpate himself and (2) inculpate a co-defendant. In the present case, both defendants denied involvement in the robbery/homicide at the Oklahoma Auto Auction, but admitted to conduct which would make them accessories after the fact. Appellant doing so in his trial testimony and co-defendant Summers in pre-trial statements to police.

In his testimony Appellant admitted his involvement in attempting to get rid of the stolen wrecker from the Auto Auction. He testified to assisting the co-defendant in repainting the truck, dismantling the winch assembly, and hiding the winch. When asked how he thought the wrecker got to the co-defendant's shop, he said he thought someone had stolen it for Summers, he did not think Summers was actually at the Auto Auction. Appellant further testified that when he assisted in the concealment of the truck he did not know that Mr. Manowski had been murdered. Appellant in no way inculpated the co-defendant in the murder of Eugene Manowski. Similarly co-defendant Summers did not inculpate Appellant in the murder. In pre-trial statements to police, co-defendant Summers admitted only to towing the wrecker from his shop to the outskirts of town. He denied any knowledge of the murder or that the wrecker had been stolen from the Auto Auction. Both men attempted to exculpate themselves but not by inculpating the other. Therefore their defenses were not mutually antagonistic. Bryson v. State, 876 P.2d at 247-50.

Contrary to Appellant's further argument, antagonistic defenses were not created by the conduct of the defense attorneys. During the trial the defendants were obviously hostile to each other, but their disagreements concerned peripheral issues, and not the crime itself. In arguments to the jury and cross-examination of witnesses both defendants attempted to disparage the character and reputation of the other; allegations that co-defendant Summers had access to guns and that he sold drugs and acquired stolen property out of his body shop; that Appellant had a reputation for being violent; and that each was intimately involved with Tammy Lewis and she was biased in favor of the other. None of this however, addressed the actual defenses to the crimes. The nature of these arguments was accurately summarized by the trial court in commenting on an allegation regarding stolen property out of the co-defendant's body shop. The trial court described the parties arguments as "attempted character assassination on an irrelevant issue." (Tr. 822).

While counsel for each defendant did attempt to cast aspersions at their co-defendant, and neither counsel displayed much restraint in attacking the other, the thrust of their arguments was to test the State's case. Each argued that the evidence linked the co-defendant to the crime, but each also argued that the evidence also linked others to the crime, including Tammy Lewis and Larry Denson. Although both defendants introduced prior bad acts of the other, neither assisted the State in making its murder case against the other. As neither defendant attempted to exculpate himself by inculpating the other, their defenses were not mutually antagonistic. Therefore, the trial court's denial of severance was proper.

In his second assignment of error, Appellant alleges he was denied a fair trial because the judge who presided over the trial, District Judge Jack Parr, had been recently defeated in a bid for re-election. Appellant argues this action "undermines and emasculates the principle of equality and the spirit and purpose of the Constitution." (Appellant's brief, pg. 30). He further argues that "compounding the blatant jurisdictional error", was the prejudicial manner in which the judge behaved towards the defense. Judge Parr had been a long time district judge in Oklahoma County when he was defeated in an election held in the fall of 1990. He was subsequently appointed by the Oklahoma State Supreme Court to sit as a temporary judge and presided over the trial of this case in February, 1991. ² Title 20 O.S.1981, § 103.1, allows the State Supreme Court to appoint active retired judges to sit as temporary judges and empowers them to make final disposition of any matter regularly submitted or tried before the judge during the term of his or her designation ³. Therefore, we find no error in Judge Parr's presiding over the trial of this case.

Further, we find no merit to Appellant's allegation of bias and prejudice on behalf of the trial judge. There is a general presumption of impartiality on the part of judges as to matters before them. Pittman v. State, 718 P.2d 366, 369 (Okl.Cr.1986). In making a claim of bias, a defendant must...