Guance v. State, F-86-264

• Decision Date: 02 March 1988
• Docket Number: No. F-86-264,F-86-264
• Citation: 751 P.2d 1074
• Parties: Billy Jack GUANCE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1074

751 P.2d 1074

Billy Jack GUANCE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-264.

Court of Criminal Appeals of Oklahoma.

March 2, 1988.

An Appeal from the District Court of Atoka County; Douglas Gabbard, II, District Judge.

Billy Jack Guance, appellant, was convicted of Shooting With Intent to Kill, in the District Court of Atoka County, in Case No. CRF-85-100, and sentenced to life imprisonment, and appeals.

AFFIRMED.

D. Clay Mowdy, Coalgate, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Billy Jack Guance, A/K/A Joseph Allen Guance, appellant, was tried by jury and convicted of Shooting With Intent to Kill [21 O.S. 1981, § 652], in Case No. CRF-85-100, in the District Court of Atoka County, the Honorable Douglas Gabbard, II, District Judge, presiding. The jury assessed punishment at life imprisonment. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

On June 11, 1985, appellant and his half-brother, Charles Michael Bear, rode a motorcycle from Paris, Arkansas, to Stringtown, Oklahoma, and stopped at a liquor store. As Bear exited from the liquor store parking lot, Officer Ronald Marley of the Stringtown Police clocked the motorcycle's speed at 67 m.p.h. in a 55 m.p.h. zone. Officer Marley pulled Bear over to the shoulder of the highway. Bear did not have a driver's license, and Officer Marley asked him to sit in the front passenger seat of the patrol car. As Officer Marley interviewed Bear, appellant dismounted from the motorcycle and walked to the front bumper of the patrol car. Appellant pulled a .38 special revolver, leaned down the hood and, holding the pistol about three feet from the windshield, fired three shots at Officer Marley. Bear reached inside his boot and pulled a .32 caliber revolver, which he fired at Officer Marley. Officer Marley bailed out of the patrol car and dropped his service revolver, apparently because one of the shots severed a nerve in his right arm which controls use of the hand. Officer Marley ran towards the back of the cruiser. Appellant picked up Officer Marley's .357 Magnum revolver and, as Officer Marley ran, emptied both pistols at Marley, who fell about eight feet behind the cruiser. A total of fifteen rounds were fired at Officer Marley, who was shot once each in the chin, the chest, and in both arms.

Bear and appellant fled on the motorcycle, which they ditched in some tall weeds by a railroad track about four miles from the shooting, and ran into the woods on foot. After finding the abandoned motorcycle, the Highway Patrol called for a tracking team from the McLoed Correctional Center. The dogs tracked appellant and Bear to the banks of the Muddy Boggy River. Both men were unarmed when captured. Appellant spontaneously told the trackers, "I did it. I did it. My brother didn't have anything to do with it." Appellant also voluntarily told the trackers where he threw the guns in the river. The following day, appellant and Bear voluntarily confessed to shooting Officer Marley and led the officers to the river, where the Lake Patrol recovered the three pistols: appellant's .38 special revolver, Bear's .32 caliber revolver and Officer Marley's .357 Magnum.

For his first assignment of error, appellant asserts the trial court fundamentally erred by overruling his motion for psychiatric examination. Appellant relies primarily in support of his proposition on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We find that appellant failed to establish a threshold showing to the trial judge that his sanity was a significant factor in his case.

Appellant filed a motion to be sent to Eastern State Hospital at Vinita, Oklahoma, for observation to determine both his present competency to stand trial and his sanity at the time of the offense. [O.R. 23] On hearing, appellant informed the trial court that his mother wanted him to be examined. "I mean, my mom told me to ask for help, I didn't want to ask for it." [Tr. 11] Appellant claimed he was subject to blackout spells and had injured his mother, sister and brother-in-law while blacked out. Appellant claimed he shot Officer Marley during one of these blackout spells and did not realize what he had done until he got to the woods. [Tr. 10-11] The trial court found insufficient evidence to commit appellant for observation.

In Ake, the Supreme Court found that "where a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83, 105 S.Ct. at 1097.

This case differs significantly from Ake. First, appellant's conduct was not such as to prompt the trial judge sua sponte to have appellant examined for competency. Appellant's competency to stand trial was never seriously at issue. Second, appellant claimed he blacked out and did not remember shooting Officer Marley, yet appellant's voluntary confession, which was available to the trial judge at the time of the hearing, described appellant's actions in detail, step-by-step, when he shot Officer Marley, negating his claim that he blacked out at the time of the offense. Third, appellant asked to be sent to Vinita for observation but never asked the court to appoint a psychiatrist to assist in evaluation, preparation or presentation of an insanity defense, nor did appellant request funds with which to hire a psychiatrist. Fourth, appellant did not raise an insanity defense at trial, choosing instead to stand on the weaknesses of the State's case, and the State did not present expert witnesses at trial to testify as to appellant's mental state at the time of the crime. We find that appellant failed to demonstrate to the trial judge that insanity would be a significant factor at trial. This assignment of error is without merit.

For his third assignment of error, appellant asser...