Tomlinson v. State
| Decision Date | 30 August 1976 |
| Docket Number | No. F--76--266,F--76--266 |
| Citation | 554 P.2d 798,1976 OK CR 206 |
| Parties | Johnnie Lonnie TOMLINSON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Johnnie Lonnie Tomlinson, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Canadian County, Case No. CRF--75--80, for the offense of Shooting with Intent to Kill, in violation of 21 O.S.1971, § 652. His punishment was fixed at twenty (20) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
The evidence presented on trial was substantially the following:
Donald Ray Ables, a service station attendant, testified that on April 8, 1975, at 8:30 p.m., he came in contact with the defendant as the Country Club Drive Service Station on Interstate 40; that he was servicing defendant's automobile when he noticed a pistol laying in the front seat and some rifles in the rear seat. Ables asked the defendant about the guns to which defendant replied that he was running from friends whom he had turned in for pushing drugs.
James Homer Rothrock testified that on the morning of April 9, 1975, he was standing at the intersection of 22nd and Choctaw in El Reno when he heard some shots come from the direction of I--40; that the shots had a different resonance, with one shot sounding dull, and a few seconds later, a series of rapid shots sounding louder.
Howard Gustafson testified that at 8:15 a.m., on April 9, 1975, he was in the driveway of his home which is located one and a half blocks from I--40; that he saw a Highway Patrol Trooper fall, catch himself and return fire. Gustafson also testified that the first shot sounded dull and the following shots were much louder.
James John Long, a truck driver, testified that on the morning of April 9, 1975, he was traveling west on I--40 when he came upon the scene. He and a partner went over to the highway patrol car and asked Trooper Scherman if he was hurt. Trooper Scherman replied that he had been shot. Long said there was a spot of blood on Scherman's shirt and the defendant was lying face down on the pavement near the left rear corner of his automobile.
The testimony of A. W. Barnett, Long's partner, generally substantiated this account.
Robert Underwood, Jr., an El Reno patrolman who was the first police officer to inspect the scene of the shooting after Trooper Scherman was taken to a hospital, testified that he found a loaded .32 caliber pistol laying in the grass approximately eight feet from the shoulder of the road. Underwood said that the defendant, as he was being placed in the ambulance, asked him, 'How is that trooper I shot?'
Don Wallach, an Oklahoma State Bureau of Investigation agent, testified that he conducted a search of the defendant's automobile under color of a search warrant. Over the objection of defense counsel and following an in camera hearing on its admissibility, Wallach testified as to certain evidence removed from the car. He identified the items in State's Exhibit No. 15 (), as a box of dynamite found in trunk. Wallach further identified State's Exhibits Nos. 17 through 21 as four firearms--'a .12-gauge pump shotgun, a 30-0-6 Springfield rifle, a .22-caliber automatic rifle, and a .16-gauge single shotgun' and a box containing ammunition similar to the ammunition found loaded in the weapons. He said these exhibits also were found in the automobile. In addition, Wallach testified that he removed a fused and capped stick of dynamite from the glove compartment, and approximately thirty sticks of dynamite from the defendant's automobile together with fuses and caps.
Highway Patrol Trooper Mike Grimes testified that he conducted the search with Wallach and generally verified Wallach's testimony.
Lawrence Wilson, a Canadian County Deputy Sheriff, testified that subsequent to reading the defendant his Miranda rights, he tape-recorded an interview with the defendant in his hospital room on April 10, 1975. The recording was played for the jury as State's Exhibit No. 23. In the recorded interview, the defendant admitted having a loaded pistol in the automobile, the rifles and shotguns and the dynamite located throughout the vehicle. The defendant further admitted shooting the trooper as a reflex action after the trooper had shot the defendant twice.
Trooper Scherman, the victim, testified that he first observed the defendant's automobile traveling fast and smoking while he had another vehicle stopped. Subsequently, he clocked the defendant at 80 miles per hour, traveling at a different direction on the interstate. Scherman pursued the defendant for approximately four miles with the patrol car's red light flashing before the defendant pulled over. This made him suspicious because, he related, most speeders pull over within one-half mile after pursuit begins. In addition, after the defendant stopped, he did not get out of the automobile immediately, but was 'messing around' inside. The defendant then got out and walked to the back of the automobile where the trooper was standing, in such a manner (Tr. 107) The trooper said he then kicked the defendant's pistol out of his reach and called the local police department. Bob Wallach of the El Reno Police Department took the trooper to the hospital.
Jack Smith, an El Reno policeman who was off duty at the time of the shooting, testified that on April 9, 1975, he was outside the emergency room of Parkview Hospital wherein both the defendant and Trooper Scherman were being treated. Smith said the nurse attending the defendant asked him to stand in the emergency room while she went about her work. Smith complied and the defendant asked him, 'Hey, man, is that god damn cop dead yet?'
Francis Horn, Parkview Hospital Administrator, identified defense Exhibit No. 1 as a copy of nurse's notes made on the 14th and 16th of April, 1975, but was not allowed to read an entry thereon concerning an attempted suicide by the defendant while he was in the hospital.
The defendant testified that he had never before been arrested; that on the day before the shooting he had a fight with his mother, withdrew approximately $800.00 from the bank and headed for California. He said he took the hand gun on the trip 'for the protection of the money.' He admitted that the rifles and shotguns found in the automobile belonged to him, but said he had previously placed them in the automobile and 'I really didn't think about the other (weapons) being in the car.' He also admitted having the dynamite in the automobile, but said that it had been purchased by him and his sister, without the knowledge of their step-father, to blow out stumps on some pasture land. When he began the trip he had forgotten that the dynamite was in the trunk. After he had gotten into Oklahoma, he heard a rattling sound in the trunk and when he investigated it, he discovered the dynamite. In an effort to keep it from moving around in the trunk, the defendant said he put some of the dynamite in the passenger's compartment of the automobile. He had no explanation for why the capped and fused stick of dynamite was in the glove compartment. After he arrived in Oklahoma, the defendant said he became lost and was on Interstate 40 looking for U.S. 66. While driving west on I--40, he saw a station wagon stopped by a Highway Patrol Trooper, who had black hair. Subsequently, after the defendant had turned around and was heading west on I--40, he noticed a patrol car, with an officer who had brown hair, following him. The defendant said he was afraid that the trooper had been overcome by the occupants of the station wagon, who he thought might be trying to pull him over and rob him using the trooper's patrol car. Not knowing if the man was really an officer, the defendant got out of the car with his gun. The defendant testified that he asked the trooper if he was a police officer, that the trooper did not answer, but drew his pistol and began firing at the defendant.
The defendant admitted to having 'visions' of his dead father and of being afraid of the dark. He said he had killed his dogs and a horse because he thought they were trying to hurt him. On cross-examination, the defendant said he had not taken any drugs or alcohol for twenty-four hours prior to the shooting.
Gerald Pyle, the defendant's counselor at Richland High School where the defendant was in the eleventh grade, testified that the defendant had a psychological problem manifested by his introverted behavior. Pyle said the defendant, who had not been in trouble at school, was called 'Scoobie' by the other students, but had not been hostile to the other students. The counselor said the defendant's psychological disorders became apparent when he wrote a school paper in his English class (Defense Exhibit No. 2), which begins:
Dr. Moorman Prosser, an Oklahoma City psychiatrist, testified that he personally examined the defendant on two occasions for a total of forty-five minutes. Prosser said, in his opinion,
'(T)his boy is so mentally ill that he does not have the ability to...
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