Jones v. State

• Citation: 1975 OK CR 222,542 P.2d 1316
• Decision Date: 14 November 1975
• Docket Number: No. F--74--744,F--74--744
• Parties: Ben Wiley JONES, Jr., Appellant, v. The STATE of Oklahoma.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1316

542 P.2d 1316

Ben Wiley JONES, Jr., Appellant, v. The STATE of Oklahoma.

No. F--74--744.

Court of Criminal Appeals of Oklahoma.

Nov. 14, 1975.

Rehearing Denied Dec. 4, 1975.

Ben Wiley Jones, Jr., appellant, was convicted for the offense of First Degree Murder; was sentenced to death, and appeals. Judgment and sentence affirmed.

Don Manners and Jay McCown, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Ben Wiley Jones, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--73--2221, for the offense of First Degree Murder, in violation of 21 O.S.Supp.1974, § 701.1, 9. In accordance with the provisions of 21 O.S.Supp.1974, § 701.3, defendant was thereafter sentenced to suffer death, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial, the State endeavored to establish by circumstantial evidence that the defendant committed the offense in an attempt to make himself appear to be the victim of the murder and thereby avoid confinement for another offense. The evidence tended to establish that the defendant entered a plea of guilty to State robbery charges on July 26, 1973, pursuant to an agreement with State and Federal authorities whereby he was then released from custody and judgment and sentencing was passed until August 27, 1973, at which time the State would recommend a probationary sentence if the defendant had assisted the Secret Service by providing that agency with information regarding local counterfeiting operations to which he purportedly had access, but if the defendant failed to provide such assistance he was warned that the State would recommend a substantial sentence of incarceration. The defendant thereafter did not provide the Secret Service with such information and failed to report regularly as directed. In the afternoon of August 11, 1973, the defendant borrowed a blue and white four-door Oldsmobile then in possession of Mary Magdeline Moore but belonging to the defendant's aunt, Mackie McFee. While driving that car, the defendant then checked into room 207 of the Sooner Inn Motel at about 8:30 p.m. that evening along with a female companion, Renita Williams. The couple left the motel about four hours later at approximately 12:40 a.m. on August 12, 1973, and the defendant drove Miss Williams directly home where he departed at about 1:00 a.m. Prior to leaving Miss Williams, however, in speaking of reincarnation, the defendant told her, 'If I die, don't worry because I will be back.' (Tr. 350) Early that same morning the defendant was observed picking up 13-year-old Ruben Junior Ellis for a ride to the bus station while driving a two-tone dark green or black four-door automobile by the mother of the child, Amy Lee Ellis, who placed the time at about 12:00 to 12:30 a.m. At about 4:00 a.m. that morning the defendant returned the Oldsmobile to his aunt who did not then see him again until after he was arrested for this offense. The body of Ruben Junior Ellis was discovered at about 2:00 p.m. that day in the bathtub of room 207 of the Sooner Inn Motel by an employee and the authorities were notified. The pathologist established that death had occurred sometime within the period from about 4:00 p.m. on August 11, 1973, to 10:00 a.m. of the following day. Blunt force trauma to the head had caused some injury to the brain, but death was due to manual strangulation through the use of someone's hands. After death the lower portion of the body was partially burned while in the bathtub with the use of a flammable liquid. The autopsy revealed no evidence of a sexual assault. Shoestring laces were found tied around the victim's ankles, and a ring and medallion identified as belonging to the defendant were found upon the body together with a partially burned wallet containing defendant's personal identification. This jewelry was last seen by Miss Williams on a table in the motel room when she and the defendant departed there the previous night. The victim's fingerprints, however, did not match those of the defendant's on file. State and Federal authorities then undertook efforts to locate the defendant without success, and he failed to appear for judgment and sentencing in State court on August 27, 1973, but was apprehended in December of that year in Los Angeles, California.

Defendant sought to prove that he fled in fear of reprisal from those involved in the counterfeiting operations upon which he was to provide information to the Secret Service, and was in flight when the subject offense occurred. Further, he endeavored to establish that the murder was more probably attributable to one George Jackson, Jr., also known as 'Diablo.' The defendant testified that shortly after he was released from custody on the robbery charges he learned through others that those involved in the counterfeiting operations had become aware that he was acting as an informant. After he left Miss Williams at about 1:00 a.m. on August 12, 1973, the defendant related that he went to Eddy Henry's Cafe where at about 3:00 a.m. he saw Gerald Pulliam and 'Diablo,' and the latter told the defendant that he was supposed to be killed by an individual upon whom he had agreed to provide information. The defendant testified that he then gave the key to room 207 of the Sooner Inn Motel to Gerald Pulliam so that he could retrieve the jewelry and billfold that the defendant had left there. Defendant explained that he had left the jewelry and billfold in the motel room when he previously departed with Miss Williams because he was rushed since her mother expected her home by 12:30 to 1:00 a.m. At about 4:00 a.m. that morning, the defendant testified that he then went to his aunt's home to return her car, pack some clothes and borrow some money. When Gerald Pulliam then failed to bring the defendant's jewelry and billfold, the defendant testified that at about 5:00 a.m. that morning he called a cab for transportation to the bus station where at about 6:30 a.m. he caught a bus to Boston, Massachusetts. Other witnesses established that at about 8:00 a.m. that morning the Fire Department investigated an accumulation of smoke in the area of room 207 of the Sooner Inn Motel, but then left when no fire was discovered. Other testimony was offered to establish that the defendant was not acquainted with the deceased, but that the deceased had previously been seen in the company of 'Diablo' who was known to sexually molest young males. The defendant admitted prior convictions for grand larceny and robbery, and that he used an alias while in flight.

The defendant presents seven assignments of error which insofar as possible will here be considered in the order in which they arose in the trial court below.

In his fourth assignment of error the defendant contends that the trial court erred in refusing to grant his application for an order committing him to a State hospital for mental observation and examination pursuant to 22 O.S.1971, §§ 1171 and 1172. At the hearing upon that application, which was presented one week prior to the scheduled date for trial, the defense attorney refused to place the defendant upon the witness stand and offered no evidence in support of the application, but as appears from the separate transcript of those proceedings, defense counsel did state that:

'The thrust of this motion, your Honor, is that I have been with Mr. Ben Jones and each time I talk to him I get a different array of circumstances. I don't feel like he is helping me prepare his defense, whether that is from some other reason than competency is questionable. I feel like since he has advised me only today that he was discharged from the United States Marine Corp for psychological problems and since this is a case involving, if he is convicted, the electric chair, that it would do no violence to the State and would protect the defendant fully if the Court would see fit to send him down for a mental determination.' (Tr. 2 and 3)

In reply thereto the prosecutor asserted that:

'. . . The Court has no sworn testimony before it from which to rule and we would argue that we have talked to Ben Wiley Jones too at some length over some period of time and within the last couple of weeks the last time. He has been in court and testified under direct examination and cross examination. There was never any issue raised as to his mental competency by his counsel or by the Court, or by the prosecution, there has never been any question about it. He answered all questions candidly and any questions that he had any question about that might incriminate him, he would hesitate to answer and would not answer, or would answer in a way that would protect himself. There wasn't any question in my mind but what he knew just exactly what he was doing, exactly where he was and just exactly what he was charged with, and just exactly what was going on.' (Tr. 3 and 4)

The following language pertinent to a resolution of this assignment appears in the Syllabus to Haynes v. State, Okl.Cr., 473 P.2d 299 (1970):

'Whether the defendant should be committed to a mental institution for observation is to be determined by the trial judge upon the evidence before him, and unless it is of such a nature as to create a doubt in his mind as to defendant's sanity, he is justified in denying defendant's request.

'The existence of a doubt as to defendant's sanity must arise from facts and circumstances of a substantial character. There must exist reasons to believe that the claim of insanity made on behalf of the accused is genuine and not simulated as a means of defeating or delaying justice and these questions must be decided by trial judge.

'The finding of the trial judge in this respect will not be disturbed on appeal unless his finding was contrary to the evidence and a...