Jones v. State

BRETT, Presiding Judge,

dissenting.

I respectfully dissent. Finding no error that would warrant reversal or modification, I would affirm the judgment and sentence.

I.

The alleged hearsay statements complained of in the first assignment of error are as follows:

1. Testimony by Dorothy Thompson that Wayne Thompson told her that “they had taken care of some business” and that Vickie Keene did not have to “bother with Charles no more.”

2. Dorothy Thompson also testified as to what Bobby Glass had told her about chasing Charles Keene down, the fight at “Opossum” Brown’s, and Charles getting the gun and trying to shoot him.

3. Testimony by Charlotte Mann relating the conversation she overheard between Wayne Thompson and Dorothy Thompson wherein Wayne admitted killing Keene and said Vickie would not have to worry about him any more.

4. Charlotte Mann also related her conversation with Tony Mann wherein Tony told her that Charles was really dead and that Wayne had killed him.

5. Charlotte Mann testified that Tony said that Charles was shot, cut up and dumped in the river with blocks on his feet, and that both Wayne Thompson and Bobby Glass shot him.

6. Bennie McCarthy related a conversation he had had with Tony Mann and Bobby Glass. Tony and Bobby said they had to go out to check the body and to get rid of the gun.

7. Bennie McCarthy also related a conversation with Bobby Glass in which Bobby said that he had shot Keene, that Thompson had cut him up, and that Tony Mann and the appellant had beaten Keene. Glass also told the witness that Jones and Mann had dragged the body to the river.

8. Bennie McCarthy testified that Tony Mann told him that the gun they were trying to sell was the one that “they” shot him with.

9. Testimony by Vickie Keene that Tony Mann told her that Charles was dead and that she did not have to worry any more. He also told her that Keene’s last words were to take care of his children.

10. Vickie Keene also testified that Tony Mann told Bobby Glass to return to the river to check the body and to put the gate back up.

The defense theory in this case was that Bobby Glass, Wayne Thompson and Tony Mann beat and then murdered Charles Keene while the appellant was passed out in the car. Assuming arguendo that the statements complained of constitute hearsay, most of them are harmless as they do *532 not implicate the appellant and, in fact, support the theory of defense. Specifically the testimony outlined in numbers 3, 4, 5, 6, 10, and the first statement in 9 fall into this category.

Bobby Glass was the first witness for the State. On cross-examination defense counsel asked questions which implied that Glass decided to lie about appellant’s participation so that he would also get the death penalty. The statements described in number 7 were admissible as prior consistent statements offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See 12 O.S.1981, § 2801(4)(a)(2).

The statements contained in numbers 1, 2, and 8 refer to actions taken by “they”. If by “they” the witnesses meant Bobby Glass, Wayne Thompson, and/or Tony Mann, the statements did not implicate the appellant and were therefore harmless. If, on the other hand, appellant was included, he would have been implicated and error might have resulted. However, the record was deliberately left ambiguous. When defense counsel objected to the first of these statements and wanted the question to be specific as to who “they” included, the judge responded that if he wanted to know the answer the witness would tell him. Defense counsel did not ask for clarification. The record remained, in all instances, ambiguous. Because appellant was not clearly implicated, I do not believe admission of the statements to be reversible error.

The second statement in number 9 — that Keene’s last words were to take care of his children — were not hearsay since they were not offered to prove the truth of the matter asserted. See 12 O.S.1981, § 2801(3). Furthermore, no objection was made at trial, so any error was waived. See Brewer v. State, 718 P.2d 354, 362 (Okl.Cr.1986).

Having examined each statement complained of, I do not find that any one statement or the statements taken as a whole warrant reversal of the appellant’s conviction.

II.

I agree with Judge Parks that admission of the two color photographs, State’s Exhibits 10 and 11, was error. I do not believe that this evidence determined the verdict, however. Thus the error does not necessitate reversal. See Thompson v. State, 724 P.2d 780, 783 (Okl.Cr.1986).

III.

Most of the alleged prosecutorial comments upon which Judge Parks’ reversal is predicated were not objected to at trial and were therefore waived. See VanWoundenberg v. State, 720 P.2d 328, 334 (Okl.Cr.1986). This is true of the comments and questions discussed under the headings B, C, and D of the majority opinion.

As for part B, when the victim’s last words in reference to taking care of his children were quoted, no objection was entered. Furthermore, the testimony was not hearsay since it was not offered to prove the truth of the matter asserted. See 12 O.S.1981, § 2801(3).

With reference to the majority’s part C, not only did defense counsel not object to the prosecutor’s asking the jury to disregard the manslaughter instruction, defense counsel appears to have agreed with the prosecutor and invited the prosecutor’s remarks when defense counsel stated in his own closing argument:

[The prosecutor will] also probably tell you this, if you don’t find him guilty of murder, don’t find him guilty of anything. Don’t find him guilty of manslaughter, don’t even consider that. Don’t even consider a lesser included because of the gruesomeness of the crime. There’s three verdicts. Guilty of murder. Guilty of Manslaughter, or not guilty. That means not guilty of anything period. That's all you have to consider. If you think this .. if you think and believe from the evidence that’s been presented that they have failed to prove beyond a reasonable doubt that Ricky Jones is guilty of murder as they have alleged, then you have a duty to find him not guilty. And I’m sure that all of you have the courage to do that; you have *533 the duty to do that, and you have that right.

T.R. 1110.

The comment about defense counsel’s “job” in part D of the opinion was neither objected to at trial, nor was it raised on appeal, except in the majority opinion.

As for part A of the majority opinion, the first question from voir dire was objected to. Although the trial court overruled the objection, he did admonish the jury that “there is no place in this trial for sentiment, sympathy or prejudice.” This admonition cured any error. See Mahorney v. State, 664 P.2d 1042, 1046 (Okl.Cr.1983).

The next quote was also objected to, but the objection was that the form of the question was argumentative, not because it amounted to a request for sympathy. The objection was sustained. The objection made did not preserve any error relating to evoking sympathy for the victim. Cf. Marks v. State, 654 P.2d 652, 655 (Okl.Cr.1982) (when a specific objection is made at trial to the admission of evidence, no different objection will be considered on appeal).

The remaining questions were not met with an objection.

IV.

I have examined those assignments of error raised in appellant’s brief that were not addressed in the majority opinion and found none that would warrant reversal or modification. For the above reasons, I would affirm the judgment and sentence. Therefore, I respectfully dissent to the majority opinion.