West v. State, F-88-1094

• Decision Date: 14 September 1990
• Docket Number: No. F-88-1094,F-88-1094
• Citation: 798 P.2d 1083
• Parties: Christian Ray WEST, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1083

798 P.2d 1083

Christian Ray WEST, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-1094.

Court of Criminal Appeals of Oklahoma.

Sept. 14, 1990.

An appeal from the District Court of Oklahoma County; William H. Henderson, District Judge.

Christian Ray West, Appellant, was tried by jury and convicted of Manslaughter in the First Degree in violation of 21 O.S.1981, § 711, Case No. CRF-87-6629, in the District Court of Oklahoma County. The jury recommended punishment of four (4) years imprisonment and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED.

Irven R. Box, Box & Clowdus, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen. and Steven Spears Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Judge:

Appellant Christian Ray West Was tried by jury and convicted of Manslaughter in the First Degree in violation of 21 O.S.1981, § 711, Case No. CRF-87-6629, in the District Court of Oklahoma County. The jury recommended punishment of four (4) years imprisonment and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. We affirm.

The decedent was killed during the early morning hours of November 14, 1987, when he was thrown from the back of a pickup truck driven by Appellant. Prior to this event, Teddy Jay and his cousin, the decedent, David Stone were driving away from a bar in Oklahoma City when they saw a black pickup being driven down Reno in an erratic manner as if it were "trying to start something" with a white car in front of it. The black pickup suddenly changed lanes and moved in behind Mr. Jay's vehicle, clipping the rear corner. The pickup then sped away. In an attempt to get the tag number of the pickup, Mr. Jay followed it to a dead end street, Virginia Drive, where Appellant stopped the truck. Jay and the decedent pulled in behind the pickup and approached the Appellant. Jay testified that he inquired of Appellant why he had hit his car and if he had insurance. When Appellant refused to provide proof of insurance, the decedent attempted to enter the vehicle from the passenger side and look in the glove compartment. Meanwhile, Appellant stumbled out of the driver's seat, emitting a strong odor of alcohol. Mr. Jay stated that he saw a twelve pack of beer in the front seat, half of which was empty. Jay proceeded to one of the nearby houses to call the police. He returned before making the call however, when he heard the truck start up. Mr. Jay subsequently turned the truck off, retrieved the keys from the ignition, and gave them to the decedent.

Mr. Jay once again attempted to call the police but again heard the engine of the truck. He looked up to see the pickup drive off across a yard and over a mailbox only to get stuck in a fence. As Appellant worked to free the truck, the decedent jumped into the bed of the truck. Freeing the truck from the fence, Appellant sped off with the decedent in the back. Mr. Jay followed the Appellant and observed the Appellant drive in a zig-zag manner, as if attempting to throw the decedent out of the truck. At the intersection of Reno and Meridian, the Appellant struck a Cadillac, causing the Cadillac to slide into a nearby ditch, and the decedent to be thrown out of the truck onto the pavement. The decedent suffered fatal head injuries. A blood alcohol test was performed on the Appellant approximately two hours later at the hospital with the results showing .19%.

The Appellant testified that he could not remember anything about the incident. He stated that the last thing he remembered was leaving his home at approximately 8:00 p.m. and then waking up hours later in the hospital.

In his first assignment of error, Appellant alleges the trial court erred in failing to give his requested jury instructions on self-defense. The Appellant offered jury instructions on the defense of duress and self-defense. The trial court accepted the instructions on duress but rejected those on self-defense.

It is well established that a defendant is entitled to any instructions on his theory of defense, provided such theory is tenable as a matter of law, or finds support in the evidence. Green v. State, 611 P.2d 262, 266 (Okl.Cr.1980); Gann v. State, 397 P.2d 686, 690 (Okl.Cr.1964). If there is no evidence in the record to support an instruction, it should not be given. Coulter v. State, 721 P.2d 818, 819 (Okl.Cr.1986). Self-defense is an affirmative defense which must be raised by the defendant unless the State's case shows that the homicide was justifiable. When the record reveals no evidence of self-defense, the trial court is not bound to instruct the jury on that defense. Holloway v. State, 712 P.2d 68, 69 (Okl.Cr.1986).

A thorough review of the record fails to support Appellant's contention. The evidence presented by the State shows that the Appellant initiated the confrontation by his reckless driving and striking the Jay vehicle. Self-defense is not available to a person who is the aggressor or who enters into mutual combat. Ruth v. State, 581 P.2d 919, 921 (Okl.Cr.1978); Jenkins v. State, 80 Okl.Cr. 328, 161 P.2d 90, 96 (1945).

The only evidence of self-defense came from the testimony of Jerry Crockett who was visiting a friend on Virginia Drive. He testified that he heard tires squealing and looked out the window to see two men exit a car and walk up to a pickup truck. The two men from the car shouted at the man in the pickup until he exited his vehicle. The two men then slapped the man from the pickup and pushed him around for approximately one minute until he returned to his pickup and drove off. Mr. Crockett admitted that he could not identify any of the men. On cross-examination, he testified that all three of the men were shouting at each other, but he never saw anyone knocked to the ground. We find that Mr. Crockett's testimony alone does not sufficiently establish the defense of self-defense. Lumpkin v. State, 683 P.2d 985, 987 (Okl.Cr.1984). The trial court was justified in refusing to give the instruction on self-defense. This assignment of error is therefore denied.

Appellant contends in his second assignment of error that the trial court erred in failing to grant a continuance in order for the defense to secure the testimony of the decedent's mother, Mrs. Pat Stone. At trial, defense counsel stated that Mrs. Stone had been served with a subpoena to appear at trial, but had failed to honor that subpoena. When counsel learned that she might not be a friendly witness and appear voluntarily defense counsel stated that due diligence had been used in attempting to locate her. Counsel refused the trial court's offer to issue a bench warrant and instead requested a continuance until Mrs. Stone could be located. Appellant's request was denied and defense counsel made an offer of proof that if called to testify Mrs. Stone would state that she had a conversation with Teddy Jay after the incident wherein he admitted that he and the decedent had physically beat up the defendant on Virginia Drive. She would also testify that Teddy Jay had a bad reputation for truthfulness and that he was a habitual liar.

This Court has held on numerous occasions that a motion for continuance must be accompanied by an affidavit for the continuance in compliance with 22 O.S.1981, § 584, and 12 O.S.1981, § 668. The record in this instant case reveals that a motion for continuance was heard by the trial court but does not indicate that an affidavit was filed in support of the same. The failure to file said affidavit is fatal. Rogers v. State, 721 P.2d 805, 807 (Okl.Cr.1986); Smith v. State, 644 P.2d 106, 108 (Okl.Cr.1982); Jones v. State, 595 P.2d 1344, 1349 (Okl.Cr.1979); Nichols v. State, 555 P.2d 70, 72 (Okl.Cr.1976); Crosswhite v. State, 317 P.2d 781, 785 (Okl.Cr.1957).

Further, a motion for continuance is directed to the sound discretion of the trial court. Absent an abuse of that discretion, this Court will not disturb the ruling of the trial court. Steele v. State, 778 P.2d 929, 930 (Okl.Cr.1989). Our review of the record shows that the trial judge did not abuse his discretion in refusing to grant the continuance and Appellant has failed to show how he was prejudiced by that ruling.

Appellant argues that Mrs. Stone's testimony was critical in establishing his defense of self-defense and to impeaching the character of Teddy Jay. To the contrary, her testimony would not only fail to contribute any relevant information but was potentially prejudicial to the defense. If Mrs. Stone were to have testified consistent with the offer of proof made by the defense, the evidence would still be insufficient to entitle the Appellant to utilize self-defense. Assuming arguendo, Teddy Jay and the decedent engaged in fisticuffs with the defendant on...