*1 nary complaints him, against approved
and his name withdrawn from the roll of practitioners;
active legal Oklahoma
6. approval respondent’s resignation
by this order is upon payment conditioned
of costs in the amount of $217.00
rеspondent’s eligibility for reinstatement to years Bar becomes effective five resignation’s
his approval date. Rudolph Hargrave
/s/
CHIEF JUSTICE
All Justices concur. Ray WEST, Appellant,
Christian Oklahoma, Appellee.
STATE of
No. F-88-1094. Appeals
Court of Criminal of Oklahoma.
Sept.
OPINION LUMPKIN, Judge: Ray tried Christian West Was in by Manslaughter and convicted of Degree in of 21 O.S. First violation 1981, 711, CRF-87-6629, in the Case No. § County. District The Court Oklahoma (4) punishment recommended of four years imprisonment and the trial court sen- accordingly. judg- is from tenced It Appellant appeals. ment and sentence that We affirm. during early was killed decedent
morning when hours November pickup he was thrown from the back of a Appellant. truck driven Prior to event, cousin, Jay and his the dece- dent, driving away from David Stone were City they when a bar in Oklahoma saw pickup being down in an black driven Reno “trying erratic manner as it were to start in of it. something” with white car front suddenly lanes pickup changed The black vehicle, Jay’s and moved in behind Mr. clipping pickup the rear corner. then get tag sped away. attempt In an Jay it pickup, number Mr. followed Drive, street, Virginia to a dead end where Appellant stopped Jay the truck. and pulled pickup behind Jay approached Appellant. testified inquired Appellant why he had hit his and if he had When cаr insurance. provide refused of insur- ance, attempted to enter the the decedent passenger vehicle side and look Meanwhile, compartment. Ap- glove seat, pellant stumbled out of the driver’s strong Mr. emitting a odor of alcohol. pack he saw a beеr stated that twelve seat, empty. the front half of which was nearby Jay proceeded to one of the houses mak- police. call He returned before however, ing the heard call up. Jay subsequently Mr. truck start off, keys truck retrieved the turned the ignition, gave to the them Box, Clowdus, R. Box & Oklahoma Irven decedent. City, appellant. again attempted JayMr. to call the once engine police again heard the Atty. Gen. and Steven Henry, H. Robert Kerr, Gen., up pickup looked to see the Atty. truck. He Spears Oklahoma Asst. yard over mailbox drive off across a City, appellee. get only stuck in a fence. As presented by evidence the State shows truck, worked to free the the decedent that the initiated the confronta- jumped into the Freeing bed the truck. tion driving striking his reckless *3 fence, the truck from Appellant Jay the sрed vehicle. Self-defense is not available off with the decedent in the Jay person back. Mr. a to who is the or who followed the Appellant and State, observed enters into mutual combat. Ruth v. manner, zig-zag 919, drive in a (Okl.Cr.1978); as if 581 P.2d 921 Jenkins v. attempting to State, 328, throw the of 90, decedent out 80 Okl.Cr. 161 P.2d 96 (1945). the truck. At the intersection of Reno and Meridian, Cadillac, struck a only The evidence of self-defense came causing nearby the Cadillac to a slide into testimony Jerry of Crockett who ditch, and the decedent be to thrown out of visiting Virginia was a friend on Drive. He pavement.
thе truck onto the The dece- squealing testified that he heard tires injuries. dent suffered fatal head A blood looked out the window to see two men exit performed alcohol test Appel- was on the up a car and walk pickup to a truck. The approximately lant twо hours later at the two men from the car shouted at the man hospital showing with the results .19%. pickup in the until he exited his vehicle. testified that he could not slapped The two men then the man from anything remember pickup pushed about the incident. He him ap- around for thing proximately stаted that the last he remembered one minute he until returned leaving his at approximately pickup home 8:00 his to and drove off. Mr. Crockett p.m. waking up and then hours in identify any later admitted that he could not of hospital. cross-examination, the men. On he testi- fied that all three of the men were shout- assignment error, Ap his first of other, ing anyone at each never saw pellant alleges the trial court erred fail ground. knocked to the We find that Mr. give requested to his instructions testimony Crockett’s alone does not suffi- on self-defense. offered ciently establish the dеfense of self-de- jury instructions of on defense duress State, 985, Lumpkin fense. v. 683 P.2d accepted self-defense. trial court (Okl.Cr.1984). jus- 987 The trial court was rejected the instructions on duress but refusing give tified in to the instruction on those on self-defense. assignment self-defense. This of error is It is well that a establishеd defen therefore denied. dant is entitled to on his instructions Appellant contends in his second as
theory defense, provided theory of such is signment of error that trial court erred law, support tenable as a matter or finds grant failing to a continuance in order in the evidence. Green to secure the (Okl.Cr.1980); 266 Gann v. 397 mother, decedent’s Pat Stone. At (Okl.Cr.1964). If P.2d 690 there is no trial, defense counsel stated that Mrs. support evidence in record to an in subpoena Stone had been with served a struction, given. not it should be Coulter trial, appear at but had failed to that honor (Okl.Cr.1986). subpoena. When counsel learned that she Self-defense is an affirmative defense might friendly be appear not witness and which must be raised the defendant voluntarily defense counsel stated that due unless the State’s case shows that diligence attempting had been used justifiable. homicide was When the record locate her. refused the trial Counsel self-defense, reveals no evidence the tri issue warrant court’s offer to a bench al bound to instruct the court not requested instead a continuance until Mrs. State, 712 Holloway that defense. P.2d re Appellant’s Stone could be located. quest was denied and defense counsel A thorough review of the record made an offer that called to support Appellant’s testify contention. Mrs. Stone would state that she had fails Considering with im- a conversation after thе back of the truck. peachment that Mr. Teddy Jay, only incident admitted he and wherein Jay physically up thoroughly had beat the de- cross-examined fense, prevented defendant on Drive. She would but the defense was not testify repu- testify had a presenting also bad other witnesses tо Jay. tation character Mr. for truthfulness and he was habitual liar. However, persuaded we are not Mrs. Stone would have testified consistent held on
This Court has numerous proof. did with the offer of Mrs. Stone occasions that motion for continuance *4 testify the at the appear defense accompanied by must be an affidavit for Sentencing Hearing. that she She stated compliance the with 22 continuance O.S. by of town she informed O.S.1981, was out was and 12 § § daughter her had been with that she served record that a in this instant case reveals subpoena appear to in court. denied She by motion continuance was heard the knowing the date of the trial and denied trial does not indicate that an court but Mrs. leaving testifying. town to avoid in support filed same. affidavit was having also denied conversations Stone to file said affidavit is fatal. failure 805, concerning State, (Okl.Cr. Teddy anyone 721 807 with or else Rogers v. P.2d 1986); 106, Teddy Jay’s or State, the details of the incident v. 644 P.2d 108 Smith State, (Okl.Cr.1982); to P.2d of events. We fail see how the Jones v. 595 version 1344, State, (Okl.Cr.1979); by Appellant prejudiced Nichols v. was the exclusion 1349 70, (Okl.Cr.1976); testimony. 72 555 P.2d Crosswhite this (Okl.Cr.1957). State, 317 P.2d 785 Further, testimony Mrs. was Stone’s defense, Appellant’s Further, critical to was a motion for continuance is presented with opportunity to ensure directed the sound trial to discretion appearance by accepting the trial discretion, her court. an abuse of that Absent offer to issue a bench warrant for court’s ruling not this Court disturb will indicated knew 929, her arrest. Counsel that he State, trial court. 778 P.2d Steele began potential trial she (Okl.Cr.1989). before was 930 Our review of the ly Any potential problems hostile witness. judge record that the trial did not shows in acquiring presence her at trial could refusing grant discretion in abuse his to prevented by having have the bench been has failed to the continuance repeatedly warrant issued. We have held prejudiced by ruling. show how he was profit alleged by that the cannot Appellant argues that Mrs. Stone’s testi- he or his in the first instancе errors counsel establishing mony critical his de- by their Staggs invited own conduct. impeaching to fense self-defense and (Okl.Cr.1986), P.2d 719 1294 Teddy contrary, Jay. character of To (Okl. Maynard v. only fail testimony her would not to con- Cr,1981). any relevant information but was tribute prejudicial the defense. If was unable to ob potentially to When to in order to secure Mrs. Mrs. were have testified consist- tain a continuance Stone attempted admit testimony, offer of made the Stone’s to ent with the defense, testimony through still be insuffi- her the evidence would statements witness, Benita cient to utilize self- another Blevins. entitle Assuming that Mrs. arguendo, defense. Blevins would have testified people engaged speak in fisticuffs with Stone came with the decedent Drive, Virginia Drive the incident and relat the defendant on evidence about Teddy driving, ed them her with Appellant’s that the reckless conversation incident, Jay. The trial the State’s and after that indicate court sustained before objection testimony ruling it was and that he Appellant was assign In his hearsay. final not to defend himself at- inadmissible entitled error, alleges ruling the ment of tempting to throw the was error and that thе statements of Mrs. was offered as to the date of these state- properly Stone were 12 ments. admissible under O.S.1981, 2804(B)(5), excep- the residual § apparent during It also became the trial hearsay disagree tion to the rule. We with that the families of Mrs. Stone and
Appellant and find prop- that the trial court Jay were involved a civillawsuit over the erly excluded the statements. decedent’s death. Such a lawsuit could certainly provide admissibility par- an incentive for the of evidence is within testify particular ties to in a manner. judge, the discretion of the trial and unless shown, a clear abuse of discretion is rever- light considerations, of the above sal will Ashinsky not be warranted. v. hearsay statements of Mrs. Stone lacked guarantees of trustworthiness neces- Hearsay is admissible under Sec- sary for admission into evidence. There- 2804(B)(5) tion if the declarant is unavail- fore, properly the trial court ruled able and the statement specifically assign- statements inadmissible and this by any foregoing exceptions covered ment of error is denied. equivalent but has guaran- circumstantial *5 upon foregoing, judgement Based tees of trustworthiness. The court must and sentence is AFFIRMED. determine that the statement is offered as evidence of material fact and the state- LANE, V.P.J., JOHNSON, J., probative point ment is more on the concur. any which it is offered than other evidence BRETT, J., concurs in result. proponent procure through which the can PARKS, P.J., dissents. reasonable efforts. PARKS, Presiding Judge, dissenting.
Here, the statements of Mrs. Stone
were offered as evidence of the
that
fact
opinion
I must
dissent to main
for the
ag
and the decedent were the
I
reason that
that
war-
find
the evidence
gressors
Appеl
such an
extent that the
ranted instructions of
self-defense.
necessary
lant felt it
to defend himself.
opinion
appellant
main
asserts that
was the
However, the statements of Mrs. Stone as
aggressor
the testimony
and discounts
through
parties
related
third
lacked
Jerry Crockett. It also overlooks the testi-
guarantees
necessary
Mary
trustworthiness. mony of Rose
Gamblin
stated
who
2804(B)(5) comparable
Section
to the re
confronting
that she saw two men
2803(24).
(which
exception
appellant)
sidual
of Section
smaller
been
would have
being
trustworthiness
the three and the smallest
of statements under
(Ted
punched by
Jay).
the tallest
The testi-
analyzed by evaluating
sections should be
mony of
the residents from
Drive
corroborating
veracity
the facts
having
squeal-
consistent of
heard
statement,
de-
circumstances which the
yelling
cussing
of tires and then
clarant made the statement and the incen
among the three men.
truthfully
he
speak
tive
or she had to
or
falsely. Stanberry v.
concerning
The instructions
self-defense
would allow
to determine who was
which
witnesses were
of Mrs.
No corroboration
Stone’s state-
They
more credible.
wоuld have informed
presented.
reject Appel-
ments was
We
determining
had
the rules
who
lant’s contention
of Jer-
right
use
force and the amount
ry Crockett corroborated Mrs. Stone’s
force which would have been allowed.
identify
as
statements
he was unable
Further,
particiрants.
time
many
held
This Court has
times as the
Mrs.
opinion
frame
which
Stone’s statements main
sets forth that the instruc-
allegedly made
at
were
established
tions on a
must be
defendant’s defense
given
trial.
Blevins testified that Mrs.
supported
the evidence.
speak
(Okl.Cr.1980)
neighborhood
came to
Stonе
her
Green
(Okl.Cr.
with some of the residents but no evidence
fense, I case be believe should appellant's
reversed order
might be considered. Petitioner, CONLEY,
Dale Oklahoma, Respondent.
The STATE of
No. O-90-0585. Appeals
Court of Criminal Oklahoma.
Sept. 18, 1990.
ORDER DENYING PETITION 31, 1990, petitioner May filed with On Injunc- Temporary a Petition for this Court Temporary Order in which al- tion and his constitu- leges that has been denied *6 right speedy tional a trial State v. CRF-86-113, Conley, District Court Dale Osage County. alleges He prosecute case for State has failed to a months, forty-one (41) period and there- fore, charges against him should be dismissed. response a
This Court directed July on petition to this State response, timely filed. which was delay concedes that there was the State (32) thirty-two thirty- approximately However, (34) it asserts that four months. delay negligence reason stall attempt not a deliberate According to prosecution of case. matter, parties in this records filed as proceeded has follows: the case petitioner appeared July 1. 1986— magistrate charges carry- before firearm, prior after three ing prohibited set felony convictions. Bond was at $5,000. petitioner was re- July
2. 1986— leased on bond. preliminary August hear- 3. 1986— scheduled, pe- postponed because an alcohol titioner checked himself into center. treatment preliminary September 1986— hearing scheduled 10-30-86.