State v. Black
| Decision Date | 10 July 2001 |
| Citation | 50 S.W.3d 778 |
| Parties | (Mo.App. S.D. 2001) State of Missouri, Respondent v. Gary W. Black, Appellant. SC82279 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott
Opinion Summary: In October 1998 in Joplin, Gary W. Black killed Jason Johnson, who he believed made a pass at Black's girlfriend in the line of a convenience store. Black followed the pickup truck in which Johnson was riding for nearly 10 minutes before pulling alongside the car in which Johnson was riding at a stoplight. Black exchanged words with Johnson, got out of his car, reached through the passenger window of the pickup and stabbed Johnson in the neck, completely severing his jugular vein and nearly severing his carotid artery. Black then returned to his car and drove into Oklahoma. As he fled the scene, Black commented about Johnson, who was African-American, "One nigger down." The stab wound, which was 4.5 to 6 inches deep, bled profusely and blocked Johnson's airway. He died three days later. A jury found Black guilty of first-degree murder and sentenced him to death.
Court en banc holds: (1) The court did not err in refusing a one-day continuance due to a defense attorney absence because Black was represented at all stages of his trial, including voir dire and the death qualification, by two attorneys, including by a principal attorney with experience in capital cases.
(2) The court properly excluded testimony that Johnson died because of bad medical care rather than Black's attack. Any negligence by a victim's doctors is irrelevant if death is the proximate result of a defendant's conduct, and here, the testimony elicited during Black's offer of proof shows Johnson's doctor did provide the recommended medical care.
(3) On the facts, Black's claim that malpractice evidence is relevant to refute the prosecutor's argument that the severity of the wound shows an intent to kill is almost frivolous. Further claims regarding malpractice testimony are not preserved for appeal, and the court did not abuse its discretion in refusing to allow impeachment on an immaterial or collateral matter.
(4) The court erred in admitting a knife because of inadequate foundation, but that error was harmless and does not warrant reversal of the conviction. The evidence is overwhelming that Black stabbed Johnson, including the defense's acknowledgment of the stabbing during closing argument, and there is no reasonable probability that the jury would have acquitted Black but for the erroneously admitted knife.
(5) Admission of the knife sheath was proper. The special protection against seizures on American Indian land does not apply to seizure of the sheath in Oklahoma because neither Black nor Johnson is of Native American descent.
(6) The court did not err in refusing to allow defense counsel to display a standard ruler during the guilty-phase closing argument to refute testimony of the wound's depth, as 4.5 to 6 inches is within a jury's common knowledge.
(7) The court properly refused defense counsel's demonstration during the guilt-phase closing argument of a bottle as a potential weapon, which Black claims was critical to his self-defense argument. The bottle was not admitted into evidence and did not resemble a bottle Johnson threw at Black after being stabbed.
(8) No error occurred in statements regarding Johnson's race made by the prosecutor during the guilt-phase closing argument because the race of Johnson, Black and Black's girlfriend were in evidence, and the prosecutor may argue inferences from the evidence.
(9) No plain error occurred in the court's failure to order a mistrial when the prosecutor argued Johnson died of his stab wounds. Black did not object to the statements at trial, and there is no credible evidence that anything other than the stabbing caused Johnson's death.
(10) No plain error occurred in the court's failure to instruct the jury regarding lesser-included offenses because Black did not request such instructions.
(11) The evidence sufficiently supports the jury finding that Black deliberated before stabbing Johnson. Black followed Johnson for nearly 10 minutes, got out of his car, walked to Johnson and reached through the window before stabbing him in the neck.
(12) No plain error occurred when the court accepted Black's waiver of his Sixth Amendment right to be present during the penalty phase of his trial. Despite his contention on appeal that his absence reflected poorly on him, Black admits he waived his right to be present voluntarily and knowingly. Similarly, no plain error occurred when Black's attorneys waived his right to be present during the instruction conference.
(13) The court properly refused to allow a penalty-phase witness to be impeached with evidence of misconduct that has not resulted in a conviction. Black did not preserve for appeal his contentions that the misconduct could show motivation for the witness to testify favorably for the State and that the employee left his job at the jail out of fear of Black or injuries Black inflicted on him.
(14) The prosecutor did not misstate the statutory aggravators during the penalty-phase closing argument, nor did the statements prejudice Black.
(15) Although the prosecutor improperly submitted the depravity-of-mind aggravator by encouraging the jury to find it based on a hate crime, Black was not prejudiced by it because penalty-phase evidence of racial motivation factually supported the prosecutor's argument. In addition, the jury found another valid statutory aggravator.
(16) No error occurred in statements made by the prosecutor during the penalty-phase closing argument that Black contends imply personal knowledge of facts in issue and improperly vouch that death was the proper sentence. One statement is merely a rhetorical argument based on the evidence, and the other was not preserved for appeal and does not rise to the level of plain error resulting in manifest injustice.
(17) Although the evidence does not support the depravity-of-mind aggravator, reversal of the sentence is not required because the jury found another aggravating circumstance, and one statutory aggravating circumstance may support a sentence of death.
(18) It was proper for the judge to determine that Black's prior convictions for felonious assault and armed robbery are serious and assaultive. It also was proper for the judge to submit these prior convictions separately, even though they occurred on the same date.
(19) The death penalty in this case passes independent proportionality review pursuant to section 565.035.
This writer would reverse Black's conviction and death sentence and remand to the trial court for entry of a judgment and sentence for second-degree murder. This author would go beyond the independent proportionality review mandated by section 565.035 by extending the de novo review standard for punitive damages cases articulated by the U.S. Supreme Court in Cooper Industries Inc. v. Leatherman Tool Group, Inc., ___ U.S. ___, 121 S. Ct. 1678 (2001), to death penalty cases. Although this author agrees there was time for deliberation, he believes the evidence showed rage, not the cool reflection required for a first-degree murder conviction. The writer surmises the defense's failure to request instructions for lesser-included offenses, including second-degree murder, might have resulted from a failed "all-or-nothing" legal strategy during the guilt phase. This writer also surmises the prosecution's strategy in calling Black's girlfriend during the penalty phase rather than the guilt phase was to use her testimony about Black's racial epithets to show "depravity of mind" to get the death penalty without undermining the deliberation consideration necessary for conviction. Although this author agrees Black's prior convictions for assault and armed robbery meet the threshold for imposition of the death penalty, the author believes the jury's recommendation of the death penalty was tainted by the evidence of racial hatred that was linked to the unsupported notion of depravity of mind.
Gary W. Black was convicted of first-degree murder and sentenced to death. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. Affirmed.
On the evening of October 2, 1998, Andrew Martin, Mark Wolfe and victim Jason O. Johnson met at a Joplin restaurant. After eating dinner and drinking beer, they decided to go to a downtown nightclub. Martin and the victim got into Martin's 1996 Ford F-150 pickup, while Wolfe followed in his Camaro. En route, they stopped at a convenience store. Martin and Wolfe remained in their vehicles while the victim entered the store and purchased a 40-ounce bottle of beer and a can of chewing tobacco. While in line, the victim stood behind Tammy S. Lawson. The jury viewed a tape of the victim and Lawson together in line.
Lawson was the girlfriend of defendant Gary W. Black, who was also parked outside the store. When the victim exited the store, Lawson pointed him out to the defendant. (During the penalty phase, Lawson testified that she was upset and told defendant that the victim made "a pass" at her.) The victim and Martin then left the store in the pickup, with Wolfe following in his Camaro. Defendant and Lawson were in defendant's car, close behind the Camaro.
When Martin stopped at the stoplight at 5th and Joplin, defendant pulled alongside in the right lane. Defendant began to "exchange words" with the victim. Defendant got out of his car, reached through the passenger window of the pickup, and stabbed the victim in the neck, nearly severing his carotid artery and completely severing his...
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