Mann v. State, F-84-217

• Decision Date: 05 January 1988
• Docket Number: No. F-84-217,F-84-217
• Citation: 1988 OK CR 7,749 P.2d 1151
• Parties: Anthony James MANN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1151

749 P.2d 1151

Anthony James MANN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-217.

Court of Criminal Appeals of Oklahoma.

Jan. 5, 1988.

Rehearing Denied Feb. 29, 1988.

Richard A. Williams, Anadarko, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Anthony James Mann, was convicted of Murder in the First Degree in Grady County District Court Case No. CRF-83-45. 21 O.S.1981, § 701.7. He was given the death penalty and he appeals.

The victim, Charles Keene, was abducted and murdered in the early morning hours of January 23, 1983. His body was weighted with a heavy chain, fastened to a cement block and dropped in the Washita River. He had multiple contusions, cuts, including a slit in his throat and a broken leg. The cause of death, however, was attributed to two gun shot wounds, one in the head and one in the chest. At the time of Keene's death, he was staying with his ex-wife, Vickie Keene, and their two young children. He was abducted from her home on the night of his death.

Four people were charged with the first degree malice aforethought murder of Keene; they were: William Wayne Thompson, Bobby Joe Glass, Richard Jones and appellant. Appellant was Keene's ex-wife's 27-year-old brother and Thompson was her 15-year-old half-brother. The other two defendants were friends of Mann and Thompson. The four defendants were tried separately; all of them were found guilty and given the death penalty. At the time of this trial, Glass had been killed in prison.

The first witness called by the State was 15 year-old Thompson who was the self-proclaimed triggerman and planner in this case. It is from him that we get the story. Although divorced, Keene had been physically abusing his ex-wife, Vickie Keene. Mann and Thompson's plan on January 22, was to put a stop to the problem. Earlier that afternoon, Keene had chased appellant and Danny Mann, another brother, out of Vickie Keene's trailer house with a butcher knife. They had gone there with her to get her car. After this encounter, they went to see a deputy sheriff for help but were told nothing could be done. Tony Mann then gave his .45 caliber semi-automatic pistol, the murder weapon, to Vickie Keene so she could defend herself.

Thompson had heard about this episode from his mother and had seen the loaded gun on the kitchen cabinet at his mother's house. Glass, Jones, Mann and another man were sitting around on that Saturday evening drinking, smoking marijuana and taking valiums when Thompson asked appellant if he could join them; Mann agreed. During the evening, Mann, as the leader, hatched the plan to run Keene off by beating him up and putting him out on the highway with instructions not to come back. Thompson claimed that unknown to Mann, he and Glass put a cement block and chain in the trunk of the car and got the gun from the kitchen to take with them. Thompson said he and Glass intended at that time to murder Keene and dispose of the body by submerging it in the Washita River. This was the plan that was carried out.

Keene offered little resistance when they went to get him. Mann drove to the river with Glass and Thompson on either side of Keene in the back seat. Jones was passed out in the front seat. When they got to the river, Mann told Keene they were going to beat him up, he broke free and ran for the home of a Mr. and Mrs. Brown. A scuffle ensued and Thompson pulled out the gun. Keene, at 200 pounds, was substantially larger and stronger than Glass who was not large or Thompson who weighed only 115 pounds.

So as Thompson put it, "I was going to even up the size so I got that .45 and he grabbed it." The gun went off and was knocked out of Thompson's hand. We find from the Browns' testimony, the shot awakened them. Keene ran up on the porch and yelled for them to call the sheriff that "they" were trying to kill him. In addition to the gun, one of the men had a stick which was used to knock Keene out. The sheriff did not arrive before the badly beaten Keene was loaded unconscious in the trunk of the car and driven to the second location on the river. That is where the actual murder took place and the body was dumped. Thompson thinks Glass had the stick and that Keene's leg was not broken until later, although he is not sure when that occurred.

Thompson went on to testify that Mann tried to stop on the highway to let Keene out and at that point he pulled the gun on Mann and directed him where to go. Thompson claims he asked Mann to help with the murder but he refused and walked up the road until it was over. Thompson and Glass drug the unconscious Keene out of the trunk and down to the river. Keene then woke up and started beating on Glass. Glass was on the ground and it was then that Thompson shot Keene and Glass then grabbed the gun and also shot Keene. Then the two of them put the body in the river.

By Thompson's account of the events the last time Mann had any contact with Keene was at the Brown's house when Keene was unconscious. Contradicting testimony from other witnesses tells us that Keene, knowing he was going to be killed, asked Mann to take care of his children and that Mann retrieved some personal effects, a lighter and pocket knife, from Keene's body which he gave to his sister later. The implication is that these two events took place at the death scene contrary to Thompson's testimony. Thompson claimed, even though a shot had been fired at Brown's, that Mann did not know he was armed until he pulled the gun on him when they were back on the highway headed for the second stop.

This was not the first time a member of Vickie Keene's family had shot Charles Keene. Several years earlier, a brother-in-law had shot him because he thought Keene was going to kill her child. No charges were filed at that time.

Appellant's first assignment of error is an objection to the admission of a color video tape recording of Keene's body being recovered from the river. The only objection made at trial was that the exhibit was more prejudicial than probative. On appeal, however, appellant is also claiming the state failed to lay a proper foundation for the introduction of this exhibit. Appellant's failure to object at trial, that the state had not established the admissibility of the exhibit before it was offered, is a waiver of this issue. 12 O.S.1981, § 2104(A).

Appellant admits the video tape is relevant, but claims it was superfluous and prejudicial and, therefore, should have been excluded. 12 O.S.1981, § 2403. We find this evidence was not unduly gruesome or repetitious, as appellant claims; and we agree it was relevant. Therefore, we find no error in allowing the jury to see the limited portion of the video tape that was admitted. Thompson v. State, 724 P.2d 780, 782 (Okl.Cr.1986).

Appellant's second proposition of error is an objection to the introduction of four color photographs. The same pictures were offered in evidence in appellant's brother's case. As we found in that case, two of the photo exhibits, numbers 10 and 11, should not have been admitted due to their gruesome nature. Thompson, 724 P.2d at 782, 783. Although these photos were taken at the same time and the subject is essentially the same as in the video tape, due to the sharper focus and closer range the result is two inordinately grisley pictures of the body. The pictures show the mud, blood, and slime from the river, the slit in the victim's throat and the entry wounds of the bullets in the chest and head. However, the case against appellant was sufficient and we do not find this evidence affected the jury's verdict. Thompson v. State, 724 P.2d at 783. We do not find it was error to admit the other two photographs. Exhibit 9 showed the chain and block fastened to Keene's legs and was therefore more probative than prejudicial. Exhibit 8 was Keene's water logged belt which of course was not in the least gruesome. We find no error in the admission of this evidence.

In appellant's third proposition of error, he objects to the trial court's failure to instruct the jury on First Degree Manslaughter and Second Degree Murder. This contention is based on a claim that there was substantial evidence appellant was so intoxicated with drugs and liquor as to be incapable of forming the specific intent necessary to meet the first degree murder criteria. Appellant claims the court had an independent obligation to give instructions on these two theories even though appellant did not request them at trial. Gibson v. State, 501 P.2d 891, (Okl.Cr.1972). At trial, appellant's request for a heat-of-passion manslaughter instruction was denied, and it is not that issue that is now being questioned. This issue is based solely on a claim of diminished capacity due to intoxication.

Wayne Thompson's testimony was the only evidence offered to prove appellant was intoxicated on the night of the homicide. He did not estimate the volume of intoxicants taken or the time frame involved; he merely offered his opinion that appellant was drunk. The evidence shows Mann drove the car that evening around Chickasha, to and from Amber, a distance of 12 miles, and to two different locations on the Washita River, apparently without difficulty. According to Thompson, Mann said to him and Glass, "you all know it's Murder." Taking Thompson's testimony as accurate, Mann was not too drunk to know what was taking place.

Therefore, Thompson's testimony, taken as a whole, belies his claim Mann was intoxicated beyond a point which he could form the intent required to commit first degree murder. We find evidence of first degree murder, and we find no evidence to warrant instructions on any lesser offenses or of the alternate offense of second degree murder. See Franks v. Alford, 820 F.2d 345 (10th Cir.1987). The jury was properly and adequately instructed. See Seegars v. State, 655 P.2d 563 (...