Gibson v. State, s. A--15415

• Decision Date: 27 September 1972
• Docket Number: A--15417,Nos. A--15415,s. A--15415
• Citation: 501 P.2d 891
• Parties: Michael James GIBSON, Appellant, v. The STATE of Oklahoma, Appellee. Harley Ed DICKERSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 891

501 P.2d 891

Michael James GIBSON, Appellant, v. The STATE of Oklahoma, Appellee.

Harley Ed DICKERSON, Appellant, v. The STATE of Oklahoma, Appellee.

Nos. A--15415, A--15417.

Court of Criminal Appeals of Oklahoma.

Sept. 27, 1972.

O. A. Cargill, Jr., Stanley Pierce, Oklahoma City, Don Anderson, Public Defender, Oklahoma County, for appellants.

G. T. Blankenship, Atty. Gen., William M. Bonnell, Asst. Atty. Gen., for appellee.

CONSOLIDATED DECISION

BRETT, Judge:

Appellants, Michael James Gibson and Harley Ed Dickerson, both of whom will hereafter be referred to as defendants as they appeared in the trial court, were tried conjointly for the crime of murder; the jury returned a verdict finding them guilty and assessed their punishment at death by electrocution. From that judgment and sentence separate appeals have been perfected to this Court.

Michael James Gibson was represented at his trial and on appeal by attorneys of his own choice, Mr. O. A. Cargill, Jr., and Mr. Stanley Pierce, both of Oklahoma City; Harley Ed Dickerson was represented by the Oklahoma County Public Defender, both at his trial and on appeal. The two appeals are herein consolidated. We modify and affirm the convictions.

The information alleged that on December 28, 1968, defendants went to the home of Mr. Wilbur R. Ward in Midwest City, Oklahoma, and shot him to death. The deceased's wife, Crystal Mae Ward, was also shot several times, but she survived and testified at this trial. Mrs. Ward related that she heard the doorbell ring and heard her husband go to the door; she heard a shot and went immediately into the living room where she saw Gibson with a gun advancing toward her retreating husband; Dickerson was standing inside the front door. She said that Gibson shot her husband once or twice and then shot her in the stomach; that Dickerson took the gun from Gibson and shot her twice more; next Dickerson shot her husband again in the temple and several times in the face. She related that Dickerson then took Mr. Ward's billfold, handed some object to Gibson, after which they both fled 'real fast.'

The State Medical Examiner, Dr. James Luke, performed an autopsy on the deceased body on the day Mr. Ward was killed. Dr. Luke related: he found bullet wounds in the left temple, lower left chest, left-hand with re-entry of the bullet into the abdomen, left-side, and left-buttocks; and he stated that of the five bullet tracts found in the body, any one or more of them could have caused the death.

David Bryan Ray, who was sixteen years old, was called by the state as a witness. Earlier, on the day he testified, the court granted him immunity against prosecution for anything he might testify to concerning any part he played in this 'drama.' He testified that about eleven o'clock P.M. on the night of December 28th, he went to Dickerson's house and saw the deceased's billfold and its contents; he related that he saw another boy, Gary Hogue, print the note at Dickerson's request, which was attached to the billfold and dropped in a mail deposit box. The note read: 'Money is thicker than Blood. Thank you HA! HA!' Ray testified that later that night Gary Hogue drove him and Dickerson to the mail box at Brannon's Store on 29th street in Midwest City, and at Dickerson's direction he put the billfold in the mail box. The billfold and note were retrieved from the mail system by Mr. Morris W. Brown, a postal clerk. He identified the items retrieved from the United States Mail; and the state rested.

Other young persons who were at the Gibson home that night were: Patsy Gibson, Billy Ray Yarberry, Glenda Patterson, and Douglas Troxell. They all testified as witnesses for defendant Gibson and related substantially the same facts. Their testimony revealed Gibson returned home about eleven o'clock P.M., staggering and mumbling something about making magic, making the lamp move, and making people come out of the television. Gibson's mother also testified as a defense witness. She said that her son came home about five minutes after eleven o'clock P.M.; that he appeared to be drunk and unable to speak to her, that he possessed an offensive odor about his person, and that he did not leave the house again that night.

In an effort to establish the pattern of Gibson's actions, Roy Hendrix testified for Gibson and related that about six o'clock P.M. on December 28th, he was at Dickerson's house when both defendants were there trying to work on a motorcycle, but without success. He said that their coordination was poor because the two young men had been sniffing gold paint and drinking beer. He said he saw Dickerson consume two six-packs of beer.

Defendant Dickerson did not testify, but his co-defendant Gibson did testify in his own behalf. Gibson related he was eighteen years old; that since he was about fifteen years of age he had sniffed glue and gold paint; that recently he had commenced sniffing carbon tetrachloride; that he had also drunk beer with seconal and brandy, and had smoked marihuana; and, he described the effects each substance had on him. He said that on the afternoon of December 28th he was at Dickerson's house to help work on a motorcycle; that he started off on beer and gold paint, then brandy and 'carbon-tet,' and marihuana; he also related that he used some seconal. He testified that Dickerson was drinking beer with seconal and smoking marihuana. He remembered that Roy Hendrix came over to Dickerson's house, but could not relate the exact time of his arrival, nor the time he left. He testified that the last thing he could remember was getting into a car sometime late that evening. He said he could not remember returning home that night, nor having any coversation with his mother.

Defendant Gibson offered the testimony of a specialist is psychiatry and neurology, Dr. Sam Collins. Dr. Collins testified that he examined Gibson on three separate occasions, and related that in his opinion Gibson was incapable of premeditating any act on the night in question. He related also, that Gibson was unable to recall anything that happened that night. A hypothetical question was posed for the doctor, premised upon the earlier testimony of both defendant Gibson and his witness, Roy Hendrix, concerning the use of drugs of the kind and in the quantity testified to by the witnesses, and whether or not the user would know and understand what he was doing under the drug influence. Dr. Collins gave his opinion that a person under the influence of those drugs would not know what he was doing.

A second doctor, who was to testify for the defense, was unavailable because he was in surgery at the time, so the defense was granted permission to offer his testimony later, out of turn. However, this witness did not testify.

The state offered as rebuttal testimony that of Dr. Lorraine Smith, a psychatrist at Central State Hospital; Gary Hogue, who hand-printed the note attached to the billfold; Charles Dale Bates, who related portions of certain conversations he had with Defendant Gibson, after the crime was committed; and the earlier witness, David Bryan Ray, was recalled. Ray testified further concerning the note and billfold. He related, over defendant's objections, that Dickerson taped the note to the billfold, and that Gibson held the billfold while it was being taped. Ray testified further, over defendants' objections, that Gibson related, 'He said, well--he said he walked up to the door and rang the doorbell, and when he answered, when Mr. Ward answered the door, Mike said Hi, and then he shot him.' In an effort to weaken this witness' testimony, the defense showed that Ray was on probation from a criminal conviction at the time he testified.

Gary Hogue admitted that he printed the note which was attached to the billfold; and that he heard Gibson relate that he shot Ward in the stomach first. When the prosecution asked what Defendant Gibson's condition was, the witness, answered, 'Normal.' Defendant's objection to the answer was overruled. On cross-examination, the defense showed that Hogue was presently under bond on a pending charge; and the witness admitted that he knew defendant Gibson sniffed glue, 'All the time.'

Charles Bates testified to a purported conversation with Gibson, after the crime was committed, when he said Bigson indirectly admitted his part in the crime. Dr. Lorraine Smith was the last rebuttal witness 'He did. He did.' Vigorous came in answer to the question, '. . . did Michael Gibson relate to you any facts of any part that he played in this murder of Mr. Wilber Ward?' Dr. Smith answered, 'He did.' Vigorous objections were offered to the testimony of Dr. Smith relating to her testifying to anything Defendant Gibson related to her. This objection was primarily premised on the fact that her testimony violated the physician-patient relationship. The trial court denied defendants' objections and their motion for mis-trial on the grounds that her testimony was, as the court stated, '. . . highly relevant to the issues involved, and particularly Dr. Collins' testimony as well as that of the defendant Gibson. . . .' Dr. Lorraine Smith, being a psychiatrist at the Central State Hospital had examined Gibson, when he was committed there under court order; she also testified that in her opinion Gibson was sane. She testified further, with reference to one who had been sniffing paint, smoking marihuana and drinking beer from about noon until eleven o'clock P.M., 'I think if an individual were taking these throughout the day, and if he were in a state of exhilaration or the high as an effect of it, it wouldn't impair his knowing right from wrong.' Over objection of the defendants, Dr. Smith gave her opinion that Gibson was aware of what he was doing at the time the crime was committed.

At the conclusion of Dr. Smith's testimony, the state rested its case. Defendant Gibson moved for a mis-trial because no proper foundation was laid...