Ussery v. State
758 P.2d 319
Okla. Crim. App.
1988
Check Treatment

*1 USSERY, Appellant, Hank Lee Oklahoma, Appellee.

STATE F-86-280.

No. Appeals of Oklahoma.

Court of Criminal

June Aug. 8,

Rehearing Denied Appellate Pub- McCarty, L. Asst.

Lisbеth Defender, Norman, appellant. lic Gen., Henry, Atty. M. Caroline H. Robert Gen., City, Emerson, Atty. Asst. Oklahoma appellee. OPINION BUSSEY, Judge: Ussery, Lee appellant, Hank of First the crime convicted of 21 Manslaughter in Degree violation 711(2), in the District Court No. CRF-82-156 County Case Carter imprisonment. to life and was sentenced During spring Gibson, sharing victim, James and the Ardmore, Okla- living a motel space at employment as homa, they sought On June temporary laborers. *2 victim, Gibson, intoxicated, appellant, saying became “I think guy that’s the argument in an a married you involved with appellant The want there.” identified couple present who werе at the motel. The cooperated himself and with the authori- appellant became he criti- involved when ties. He was arrested night and drinking his roomate’s habit of and cized charged Degree First with Murder. flirt men’s attempting to with other wives. days. The trial lasted two Witnesses Gibson, interference, angered at this lоcked guests who at the were motel time at the motel room himself the and continued killing subpoenaed from out of drinking. Ussery presented State. character wit- According to the account of also nesses and testified on his own behalf. events, subsequent having the after the stabbing He admitted Gibson but main- door, appellant motel clerk unlock the the tained, defense, killing as his sole room, bed, entered the sat down on his own guilty was accidental. The returned a door, farthest from which was the and the lesser verdict of included offense talk to Gibson in to calm tried to an effort Degree Manslaughter, First and аssessed appellant him The down. testified punishment at imprisonment. Ussery abusive, became even more called Gibson Trial, timely a Motion filed for a New names, appellant threatening the and made 15, which was heard on December gestures empty whiskey an bottle. initially granted Ussery’s The court trial wеll-being, Concerned for his own the trial, ruling motion for new that the verdict up appellant picked large testified that he supported by was not the evidence. hunting purchased knife that he had Attorney objected District sought and re- gift protect his for father to himself while through petition lief from this Court attempted to leave the motel room. The prohibition writ of mandamus in Case appellant attempting claims that as he was attempted No. P-83-21. That appeal was leave, lunged ap- Gibson at him. When appeal dismissed because State not pellant raised his arms to off the ward discretionаry ruling through use of those attack, accidentally Gibson was stabbed extraordinary writs. Subsequently, the tri- The appellant the throat. testified that at ruling, al court reconsidered its its vacated point, stepped clutching Gibson back trial, granting order a new and reinstated me”, saying “you his wound stabbed Ussery sentence. now ran from motel room. appeals that decision of the court trial guests Other at the motel testified that alleging propositions various of error. they plight aware of when became Gibson’s seeking appellant came to their door Predictably, the first saying “I help, think hurt friend.” raised is that the triаl time, Gibson, By injured bleeding this reinstating original judg erred profusely, way had made his motel argues He and sentence. that while immediately The clerk called the office. O.S.1981, 952, title contains police collapsed doorway. and Gibson at the specific provisions granting a new provision this title has no trial whеreby a first officer the scene to arrive at granted authority court is its to vacate walking apparently observed granting own order a new trial. seeing from the away Upon motel. car, police appellant pointed to the mo- Reasoning that since state the statutes office, walking began tel turned and back granted, that once new trial has been lay. where Gibson As he turned towards parties position “in if no are the same motel, to return threw had,” O.S.1981, trial had been hunting shrubbery knife into some appellant emphasizes apparent incon- bordered motel near the street. gruity remaining subject of defendant change police judge’s time found “the whims By the officer Gib- son, p. at- had died from his One heart.” brief 9. He Gibson wound. guests citing tempts argument to the this directed the officer to bolster early propo in California for the tion of the record in case cases reveals that twо Hanks, 35 People he raises. See the trial court vacated the sition order Peo only thirty days Cal.App.2d after we ple Paysen, Cal.App. dismissing entered our the District Attorney’s attempted appeal. We do not span consider this to be an unreasonable persuaded by appellant’s ar We are *3 (10) adopt day time and refuse to a ten gument persuasive note that the value period urged as by appel “limitations” limited, very is of the cases cited at best. lant. opposite We also note that the conclusion proposition in much more appellant’s ‍‌​‌‌​‌‌​‌​‌‌​​‌​‌‌​‌‌​​‌‌‌‌​‌​​​​​‌​​‌​‌‌‌‌​​​‌​‍has beеn reached a recent As to first er- of ror, agreement in by Supreme holding decision the Colorado Court. we are with the Weller, People (Colo. Court in People See v. v. Supreme P.2d of the Colorado 679 1077 Weller, (Colo.1984). 679 P.2d 1077 A trial may, any prior court at time to time no Since there are Oklahоma cases which judgment final is entered in a criminal issue, we consider the well address this prosecution, exercise its sound discretion by the Su- reasoned discussion Colorado its interlocutory reconsider order Weller, preme supra., per- Court granting denying a motion for a new Weller question. suasive on this court many juris- examined cases from different proposition by The next of error raised dictions that: “A trial and concluded is that the court erred interlocutory may grant- rescind its giving eight jury instructions numbered ing judgment new before a final nine. will not We consider appeal entered and before a noticе of assignment of to error instruction number Weller, People v. filed.” 679 P.2d at 1080- eight of defense counsel’s because failure omitted). (Citations 81 object, to or to offer an instruc- alternative running through One common thread Woundenberg State, tion. See v. Van 720 cases which allows a trial court to reconsid Statе, (Okl.Cr.1986); Ross v. 328 717 P.2d that, grant of er the a new trial in order (Okl.Cr.1986). P.2d 117 law, comport process to with due of considering appellant’s in objection to timely motion to reconsider made be nine, number mindful of struction we are e.g. Hasty v. A & B Con See manner. single the established rule that “a instruc Co., (Tex.Civ. struction 612 267 S.W.2d judged tion ‍‌​‌‌​‌‌​‌​‌‌​​‌​‌‌​‌‌​​‌‌‌‌​‌​​​​​‌​​‌​‌‌‌‌​​​‌​‍to a artifi Ornelas, App.1981); Accord State v. 15 isolation, cial must viewed in the but (1971); People Ariz.App. 490 P.2d 25 charge.” Cupp v. context of the overall Phino, v. 104 80 A.D.2d 437 N.Y.S.2d 141, 146-7, Naughten, 94 U.S. S.Ct. (1981). here stresses the fact 396, 400, See 38 L.Ed.2d expired span that a 10 months between State, (Okl.Cr. also Rowell 699 P.2d 651 the time the trial court entered its order State, (Okl. 1985); Vigil vacating its order trial and Cr.1983). reading After all of the instruc disregard to (Appellant same. chooses opinion given, tions we are of the period stayed proceedings all fairly accurately instructed jury was during this Court’s consideration regarding applicable law in this case. petition.) A cur Attorney’s District mere is, еrror proposition second reading sory above cited cases of the therefore, without merit. shows, however, that it is not the number days whether reconsid raised is that determines The third ap deprived Rath timely prosecutorial eration is done in a manner. misconduct er, Specifically, the рoint pellant is when final a fair trial. determinative closing argu frames makes reference is rendered. The time Attorney referred forty the District vary these cases from five ments where of the com Hasty supra., as “the conscience days to fourteen timely Ornelas, counsel’s munity.” Defense supra. Our еxamina months in objection case, was sustained and the District the facts and circumstances of this Attorney promptly argument. concluded his that, was excessive. We note the fact at reading transcript our From of clos- hearing on defendant’s motion for new ing arguments, we cannot conclude thаt judge agreed, saying: “the by prejudiced the defendant was this com- sentence shocks conscious this [sic] point that he denied a fair judge ruled, however, Court.” The trial. See Smith v. P.2d powerless modify jury’s sentence. (Okl.Cr.1982), Glass (Okl.Cr.1985). stated, P.2d Certain com- we repeatedly As Attorney made may, ments the District will Court not disturb a un sentence some, unnecessarily be considered as less it is so excessive that shocks yet they graphic, still fail to we believe that court. Stewart v. conscience of any prejudice rise to level of which would (Okl.Cr.1986); Bolton impugn jury’s verdict. (Okl.Cr.1985); Hutson *4 (Okl.Cr.1976). 550 P.2d 969 Gen proposition The fourth raised is that erally, sentencеs that are within the statu appellant the received ineffective assist tory limits will not be appeal. disturbed on ance of counsel because defense counsel Luman (Okl.Cr. P.2d 472 did not move for a mistrial a remark after sentence here is the within prospective juror during made was O.S.1981, range provided by statute. stated, Simply person voir dire. asked are, however, persuaded We the be not to excused because she did believe judge’s argument comments and of defendant, guilty, the if found would imposition counsel of the maximum complete to serve a sentence. The sentence, case, may in this to' excessive promptly person excused this and point shocking the of conscience of replacement. continued voir dire with a court. nothing support There is to the record appellant’s prejudice. giving claim of Even There four weigh are facts which in fa- doubt, appellant’s claim of a the benefit leaving vor of the sentence undisturbed: nothing possibly there is here which could (1) unjustified was an there homicide rise to the of level ineffective assistance brought through danger- about the use of a Washington, Strickland v. enunciated in (2) weapon; appellant attempt ous did 466 U.S. S.Ct. L.Ed.2d weapon; (3) to hide the denied, ‍‌​‌‌​‌‌​‌​‌‌​​‌​‌‌​‌‌​​‌‌‌‌​‌​​​​​‌​​‌​‌‌‌‌​​​‌​‍ 674, (1984) rehearing U.S. leaving apparently po- the scene when the 1267, 104 S.Ct. L.Ed.2d arrived, (4) appellant’s lice and criminal proposition totally This of error lacks mer record. it. mitiga- The factors which tend to favor proposition The fifth of error raised is (1) punishment appellant’s tion of are: procedural history that the this case has of apparent injury and understandable fear of punishment inflicted cruel and unusual deceased; (2) of at the hands the fact upon appellant, violation attempt help that the did to find Eighth Amendment to the States United immediatеly for the deceased after allegation Constitution. This is both lack inflicted; (3) wound was and level ing authority unsup relevant is cooperation with the authorities at ported by any legal argument. We see no throughout investigation. scene and supports in the evidence record which (4) Other are: considerations the evidence appellant’s contentions and consider this good during reputation of the defendant’s assignment to be frivolous and without (5) stay community; his the trial City See Sisson v. Oklahoma merit. judge’s agree to the sentence. We reaction City, Kimber (Okl.Cr.1986); for the with counsel that the sen- 530, (Okl.Cr.1987). lin 736 P.2d tence under circumstances of this case

Appellant’s sixth of error is shocks the conscience of this Court and sentence, imposition based on it a life should modified. proposition of error rule last Walton errors, referring (Okla.Crim.App.1987) (Parks, J., propo- that cumulative Specially concurring). Although Morgan I-VI, fаir appellant a sitions denied controlling at appellant’s the time of our discus- clear from It should be trial, orig- within the contained trial court’s is no that there propositions sion these independent new inal for a trial is an argument. merit to this final conviction, ground reversing this which Accordingly, the verdict is the seed of dissent. Manslaugh- guilty of appellant is gravamen appellant’s complaint ter, The sen- Degree is AFFIRMED. First theory homicide, he raised the of accidental life, from tence, however, modified self-defense, merging, and the over his (45) imprisonment. years’ forty-five term of objection, of the two thеories in the same jury, thereby instruction confused the BRETT, P.J., concurs. depriving him of a fair trial. am com- PARKS, J., dissents. pelled agree. PARKS, dissenting: Judge, Oklahoma, In homicide is classified into separately express my (1) Murder; (2) dis- categories: I write four Man- holding slaughter; homicide; agreement majority’s Excusable motion homicidе. Justifiable rationale. Both common law our statutes court stated: distinguish homicide between excusable bluntly, my quite view of the put To *5 justifiable homicide. See R. Perkins & case, have either the Defendant should (3rd Boyce, 1123-27 ed. R. Criminal Law Degree Murder of First been convicted O.S.1981, Compare 21 731 with § having of this decedent caused death O.S.1981, 733. 21 § act, by рremeditated or should a acquitted. only reason that the

been taking of a homicide is Excusable De Manslaughter First misfortune; instruction on by accident or human life gree [given Mor the mandate of contrast, taking homicide is the justifiable is] 952, a case gan right, 536 P.2d 1975 matter of as a human Appeals. 879, I by of Criminal P.2d the Cоurt 637 Lee v. self-defense. part (Okla.Crim.App.1981); an error on 77 believe this was Elix 139, (1943). 45, one, Morgan requires two reasons: Okl.Cr. case, penalty attaches. no criminal voluntary Requires a either that when —no. voluntary Manslaughter instruction O.S.1981, 731(1) excus- defines Title 21 § de when the Defendant’s defense self committed acci- homicide as “When able defense, His fense. was not any doing self other ... defense dent or misfortune This was excusable homicide. but means, usual and act, by lawful lawful well, I a, I guess splitting hairs. caution, any unlawful ordinary and without do. must often think that’s what Courts intent.” two, very ‍‌​‌‌​‌‌​‌​‌‌​​‌​‌‌​‌‌​​‌‌‌‌​‌​​​​​‌​​‌​‌‌‌‌​​​‌​‍here I And want being is death of a human When the Morgan itself in the specific, the case misadventure, in of accident the result Court, going opinion of this and this term, criminal meaning no the true reversing like the District Court sound to the act responsibility attaches Appeals, is found the Court of Criminal killing appears slayer. When faulty premise. ... For ed on unintentional, perpetrator reason, Trial specific the Motion New doing wrongful purpose no acted with sustained, the cause is referred act, it was done the homicidal setting. enterprise, Judge for a trial the Chief a lawful engaged in he was further, go (empha negli- don’t think I need not the result and that it was added) on will be excusеd gence homicide sis —the of accident. the score Subsequent reinstate- to the trial court’s 404, conviction, 65 Okl.Cr. this Court Mead Thus, element when being too inflexible Morgan overruled absent, kill is the accidental homi intent to excusable, the element of

cide is unless by culpable negli

intent is substituted (second

gence, as 21 such §

degree manslaughter), or the commis act, such as O.S.

sion of an unlawful murder) 1981, 701.7(B) (felony or O.S. 711(1) (misdemeanor manslaugh

ter). defends on the basis

When the accused homicide, and does not claim

of accidental

self-defense, support in- and the facts an homicide, it is re-

struction on excusable justifiable on error to instruct

versible excusable homi-

homicide rather than on State, 507 P.2d Thompson

cide. (Okla.Crim.App.1973). Instructions, adopted Jury

Our Uniform differentiate between excusable ‍‌​‌‌​‌‌​‌​‌‌​​‌​‌‌​‌‌​​‌‌‌‌​‌​​​​​‌​​‌​‌‌‌‌​​​‌​‍(OUJI-CR 725-727) justifi-

homicide 743-752). Here, (OUJI-CR

able homicide (De- OUJI-CR trial court combined homicide, accident and

fense of Excusable act) with OUJI-CR 743

misfortune —lawful

(Defense justifiable use of of self-defense— force)

deadly instruction the same appellant’s objection. Nor did the tri-

over complete in-

al court issue a set such, homicide. As

structions on excusable *6 whole, instructions, did taken law, correctly applicable state the appellant’s theory

confused the as to therefore, would, reverse defense.

and remand for a new MUNSON,

Adolph Appellant, Honel Oklahoma, Appellee.

The STATE of

No. F-85-479. Appeals

Court of Criminal of Oklahoma.

June 1988.

As Corrected June

Rehearing July Denied