Johns v. State

• Decision Date: 28 August 1987
• Docket Number: F-83-770,Nos. F-83-769,s. F-83-769
• Citation: 1987 OK CR 178,742 P.2d 1142
• Parties: David Harold JOHNS, and William H. "Smokey" Warren, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1142

742 P.2d 1142

David Harold JOHNS, and William H. "Smokey" Warren, Appellants, v. The STATE of Oklahoma, Appellee.

Nos. F-83-769, F-83-770.

Court of Criminal Appeals of Oklahoma.

Aug. 28, 1987.

Rehearing Denied Oct. 8, 1987.

As Corrected Oct. 6, 1987.

Patti Palmer, Deputy Appellate Public Defender, Mark Barrett, Asst. Appellate Public Defender, Norman, for appellants.

Michael C. Turpen, Atty. Gen., William H. Luker, Hugh A. Manning, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellants, David Harold Johns and William H. "Smokey" Warren, were jointly charged, tried and convicted in Muskogee County District Court, in Case No. CRF-82-515, for Conspiracy to Commit Armed Robbery (Count I) (21 O.S.1981, § 421), Attempted Armed Robbery (Count II) (21 O.S.1981, § 801), and First Degree Felony-Murder (Count III) (21 O.S.1981, § 701.7(B). Punishment was fixed, respectively, at ten (10) years, twenty (20) years, and life imprisonment. Appellants perfected separate appeals to this Court, which we have consolidated herein for review.

On the evening of December 7, 1981, the decedent, Tom Crossland, was arriving at his residence in Muskogee, Oklahoma, around 9:20 p.m., when Mrs. Crossland was aroused by her dogs' barking and by the sound of angry voices outside. She subsequently heard four gunshots. Upon leaving her residence to investigate, Mrs. Crossland found her husband lying on the ground behind his automobile. Mrs. Crossland's sister, Sybil Nails, lived in the residence next door. On the same evening, Ms. Nails was sitting in the driveway of her home with a friend, Margaret Strickland. As the women drove in, Ms. Strickland observed two males in the Crossland yard. The two women then observed the decedent drive up to his residence. Ms. Strickland saw a tall white man point a gun at a shorter white man, who was approaching the house. Both women then heard the firing of four gunshots in rapid succession and saw a tall white man running from the scene. The women then ran to find the decedent lying on the ground.

The decedent was taken to Muskogee General Hospital where he was pronounced dead on arrival. The medical examiner testified that the decedent sustained three fatal gunshot wounds, and that the shots were fired from no closer than two feet away from the decedent. The OSBI ballistics laboratory determined that the three slugs taken from the decedent's body were fired from a .22 caliber pistol. A .32 caliber handgun, which had recently been fired, was retrieved from underneath the decedent's body at the scene. Also recovered from the scene was a spent .32 caliber cartridge casing, which matched the handgun found underneath the decedent. A slip of paper, on which the name and phone number of appellant Warren was written, was found in the decedent's wallet.

On the day following the shooting, appellant Johns was observed at Muskogee General Hospital, where he attempted to obtain pain relievers for a migraine headache. The medical technician initially noticed blood on Johns' fingers and, after refusing to disburse pain relievers, noticed that Johns had left a spot of blood on the gurney where he had been sitting. Shortly thereafter, Johns entered the Emergency Room and admitted himself for treatment of a gunshot wound. The slug had entered his right buttock and exited his left groin. Later that day, two officers questioned Johns about the gunshot wound. Johns denied knowing appellant Warren, but admitted that he knew Warren as "Smokey" when the officers described the pink Cadillac which Warren drove.

During the State's case-in-chief, Roy Grayson testified that he was approached by his friend, appellant Johns, who asked if Grayson wanted to make some big money. Johns told Grayson that he had a friend, appellant Warren, who knew someone they could rob. Later, the three men met and rode together in Warren's pink Cadillac discussing plans for the robbery. They drove by the decedent's home and made plans to hide in the bushes. The decedent was the men's target, because he carried large sums of money won from gambling. On the night of the homicide, the three men met again and saw the decedent drive away from his home. Insofar as appellant Warren had gambled with the decedent in the past, the men surmised that the decedent was going to Sallisaw. They decided to rob the decedent that night. In the course of discussing how they would rob the decedent, Warren stated that he did not want the decedent hurt, and warned the other men that the decedent carried a gun. Warren gave Johns a .22 caliber handgun for the robbery. Johns complained, however, that the gun was not large enough.

Grayson testified that he and Johns hid in the bushes until the decedent came home. Warren waited in his car. When the decedent walked up his driveway, Johns jumped out from behind the bushes and yelled: "Hold it, this is a stickup." When the decedent motioned toward his pants, Johns fired three shots at him. Johns fled while the decedent was stumbling toward the ground, but the decedent managed to fire one shot at Johns. Later that evening, Grayson went to Johns' residence and discovered that Johns had been shot. At trial, several witnesses testified on behalf of the appellants. Appellants denied any involvement in the episode, and set forth the defense of alibi. Johns also testified in his own behalf.

I.

Appellants first claim that the trial court erred in permitting coconspirator Roy Grayson to testify concerning the conspiracy to commit armed robbery without first showing by independent evidence that a conspiracy existed and that the appellants were members of that conspiracy. We disagree. In rejecting this precise argument, the Tenth Circuit reasoned as follows:

The flaw in [appellant's] argument is simply that Rule 801(d)(2)(E) [12 O.S.1981, § 2801(4)(b)(5) ] and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Fed.R.Evid. 801(c) [12 O.S.1981, § 2801(3) ] ... There is absolutely no need to fit [the witness'] in-court statements into the coconspirator provision of Rule 801(d)(2)(E). See Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967) (rule requiring independent evidence of a conspiracy before admitting coconspirator out-of-court statements 'does not exclude proof of a conspiracy by the direct testimony under oath of a party to it'), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968). [The witness' direct] testimony constituted sufficient independent evidence of a conspiracy and [appellant's] participation therein.

United States v. Smith, 692 F.2d 693, 697-98 (10th Cir.1982).

We adopt the foregoing rationale in Smith and hold likewise that the direct testimony of Grayson concerning his and the appellants' participation in the conspiracy and its existence did not constitute hearsay under 12 O.S. 1981, § 2801(3), and thus was properly admitted. Grayson testified at trial under oath and was subject to cross-examination. Grayson's testimony concerning his own participation in the crime and his observations of the appellants' conduct was not hearsay within the definition of 12 O.S. 1981, § 2801(3). See Smith, supra. Finally, the out of court statements made by Johns and Warren constituted party admissions under 12 O.S. 1981, § 2801(4)(b)(1), and thus Grayson's testimony concerning such statements was properly admitted. See Brooks v. State, 714 P.2d 217, 219 (Okl.Cr.1986); Davis v. State, 647 P.2d 450, 451 (Okl.Cr.1982). See also United States v. Ruiz, 579 F.2d 670, 676 (1st Cir.1978) ("Out-of-court statements of an accused, either oral or written, are routinely admitted in criminal cases."). This assignment of error is without merit.

II.

The appellants next allege that there was insufficient evidence to corroborate Roy Grayson's testimony as required by 22 O.S. 1981, § 742. We disagree. The testimony of an accomplice does not require corroboration as to all material respects. Roberts v. State, 571 P.2d 129, 134 (Okl.Cr.1977), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). "If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all." Pierce v. State, 651 P.2d 707, 709 (Okl.Cr.1982). Circumstantial evidence may adequately corroborate the accomplice's testimony. Id.

The following independent evidence corroborates Grayson's testimony and connects appellant Johns with the commission of the offenses: The decedent's spouse heard four shots fired around 9:20 p.m. on December 7, 1981; the medical examiner testified that the decedent sustained three fatal gunshot wounds at close range; other witnesses testified that Johns was shot in the buttocks; a medical technician testified that sometime during the early morning hours of December 8, 1981, Johns showed up at a hospital emergency room requesting pain killers, had blood on his fingers, and left a spot of blood on the gurney where he was sitting; Johns then admitted himself into a hospital for a gunshot wound which had entered his right buttock and exited his left groin; evidence was introduced showing that the deceased's .32 caliber handgun found under his body had recently been fired; a single spent .32 caliber cartridge casing matching the handgun was found at the scene; Johns admitted knowing Warren as "Smokey" and was familiar with the pink Cadillac driven by Warren.

The following independent evidence corroborates Grayson's testimony and connects Warren with the commission of the offenses: Warren's name and phone number were found in the decedent's wallet; Warren admitted driving a pink Cadillac and buying a .22 caliber handgun two...