Johnson v. State

Decision Date22 November 1976
Docket NumberNos. F--76--449,F--76--450,s. F--76--449
Citation1976 OK CR 292,556 P.2d 1285
PartiesLonnie C. JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Judge:

Appellant, Lonnie C. Johnson, hereinafter referred to as defendant, and his co-defendant, Danny Parker, were charged, tried and convicted in the District Court, Pittsburg County, Cases Nos. F--75--176 and F--75--178, for the offenses of Kidnapping, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 741. In Case No. F--75--176, the kidnapping of Kim Thomas, the jury returned a verdict fixing the defendant's punishment at twenty-five (25) years imprisonment. In Case No. F--75--178, the kidnapping of Paula Workman, the jury returned a verdict fixing the defendant's punishment at seventy (70) years imprisonment. Both sentences were in accordance with the provisions of 21 O.S.1971, § 51. The trial court pronounced judgments and sentences in accordance with the verdicts of the juries. From each of these judgments and sentences an appeal has been filed with this Court. Since the same assignments of error are raised in both appeals, we have consolidated them for consideration.

At the two trials the testimonies of the two victims, Kim Thomas, a 16-year-old at the time of the abduction, and Paula Workman a 15-year-old at the time, were basically identical and are summarized below.

The two girls had gone to Miss Thomas' home at Route 1, McAlester, Oklahoma, on June 9, 1975. When Miss Thomas unlocked the door and pushed it open, co-defendant Parker 'came out from behind the hall door and told me to stand still or he would shoot me.' Upon hearing Miss Thomas' scream, Miss Workman ran around to the side of her house. Parker then put a gun to Miss Thomas' back and told her to tell Miss Workman to come back. Miss Workman returned and went back inside the house with Parker and Miss Thomas after Miss Thomas told her, 'Paula come back or he'll blow your head off.'

After the two girls were inside the house, Parker asked them if they had any money. The girls said they did not, and he told them, 'You had better be telling the truth or I will kill you.' Miss Thomas then gave Parker eight dollars. The defendant then held a weapon at Miss Thomas' back and forced her upstairs to get a picture of her parents. They returned downstairs and Parker forced Miss Workman, at gunpoint, to load Miss Thomas' car with a box containing items taken from the house. Miss Thomas identified the weapons used by the defendant and Parker as a '.12 gauge shotgun and a 30.06 deer rifle . . . stolen from my dad.'

The two girls were forced to accompany the defendant and Parker in Miss Thomas' car, which she drove. Miss Thomas testified that the defendant and Parker told her, 'If you take us back toward the prison, we won't hesitate to kill you.' Miss Workman testified that while the group was driving to Muskogee the defendant and Parker warned them 'that if a policeman or truck, you know with policeman or something was following us, that they would kill them if they had to.'

Near Muskogee, the car was in need of gasoline and the defendant and Parker told Miss Thomas to get the gasoline while they hid near the road with Miss Workman. Parker warned Miss Thomas that if she ever wanted to see Miss Workman again she 'had better go up there . . . get gas and . . . not call anybody.' He warned her that if she did not return 'within a certain period of time' he would kill Miss Workman. Miss Thomas testified that she followed the instruction.

The group then drove by back roads to Tulsa where they stopped to allow the girls to use the restroom. One girl at a time was allowed to go to the restroom while the other remained as hostage at gunpoint in the car.

While driving to Prague, the group stopped at a store where Parker bought a six-pack of beer. Miss Thomas testified that she and Miss Workman drank some of the beer because they were thirsty, and defendant and co-defendant Parker refused to buy anything else for them to drink. When they arrived in Prague defendant attempted to 'hot wire' a car but came back to Miss Thomas' car, explaining that the other car was not a good one.

The group then drove to Meeker, apparently the defendant's hometown, where the car ran out of gasoline. The girls were forced at gunpoint to go with the defendant and Parker into a wooded area where there was a large barn-like building which housed machinery. Defendant then departed to look for another car to 'hot-wire,' but was spotted by a police officer and returned to where Parker was holding the girls.

Miss Thomas testified:

'(A) lot of--I guess county police or whatever they are started coming around, and they must--we ran up by this--a street, and then I guess they spotted us and we ran back down into the woods again.

'Q. You say you ran, were they forcing you to run?

'A. Yes, sir.

'A. (T)hey said we had to cooperate or they would kill us.' (Tr. 43, Case No. F--75--176)

Thereafter, the group remained hidden in the area throughout the night while a search involving local and State law enforcement officers was conducted using helicopters, spotlights and dogs. At one point, the defendant fired a shot at the lights, and later fired at the dogs.

In the morning the defendant and Parker sent Miss Workman out to the searchers with a demand that they be given a car full of gasoline, $200.00, and a 'free-passageway' from the area with Miss Thomas. In Case No. F--75--176, Captain Ernest Allen of the Oklahoma Highway Patrol testified that he negotiated with the defendant on the demands, and testified that:

'(W)e had about three or four of these visits. I just went down and talked with him (defendant), . . . and I (would) go back and talk with the Chief Patrol and we couldn't meet their demands. In other words, we offered them the car and the money with the gas if they would release the girl unharmed. They refused to do this. . . .

'I then learned that Johnson had a sister that lived in Meeker. We contacted her and I again went back to the wooded area with the purpose to see if she could talk him into coming out and not harming the girl. This didn't work either. He just--he just told us that if we didn't give him what he wanted, the money and the car and the gas, that he would kill the girl. He wouldn't listen to his sister either.' (Tr. 50--51)

Trooper Gene Fitzpatrick of the Oklahoma Highway Patrol testified in Case No. F--75--178 that he had led the special team of troopers, eventually surrounding the defendant and Parker and forcing them to surrender. Miss Thomas was rescued unharmed.

In his two appeals, the defendant raises five assignments of error. Since the first three are not supported by any citations of authorities, we follow the rule this Court announced in Collins v. State, Okl.Cr., 407 P.2d 609, 610 (1965), which stated:

"It is necessary for counsel for plaintiff in error not only to assert error, but To support his contentions by both argument and the citation of authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that the trial court has erred.' Fryar v. State, Okl.Cr., 385 P.2d 818.' (Emphasis added)

See, Battle v. State, Okl.Cr., 478 P.2d 1005, 1007 (1970); Sandefur v. State, Okl.Cr., 461 P.2d 954, 956 (1969). We note, however, that all of the first three assignments of error are without merit.

The first assignment of error is that the trial court erred in refusing to grant defendant's motion for a change of venue. Counsel argues, without citation of authority, 'that it was at the time of trial impossible for him (defendant) to secure a fair trial in the jurisdiction due to the massive pretrial publicity, consisting of television as well as newspaper coverage; . . . publicity inundated this area and . . . potential jurors had been so inflammed by the publicity that it was impossible for the defendant to secure a trial from an unprejudiced and unbiased jury panel.'

A careful reading of the record shows that the defendant failed to comply with the statutory requirements for a change of venue, as outlined in 22 O.S.1971, § 561, which reads as follows:

'Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed from the county in which it is pending to some other county in said judicial district, Whenever it shall appear in the manner hereinafter provided that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of all allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. . . .' (Emphasis added)

Even if the defense had produced the required affidavits, this Court held as early as 1916, and consistently since, that the affidavits raise a question just as any other question of fact that might be submitted to the trial judge, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this Court. Wright v....

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