Jeffery Robert Johnson v The State Of Oklahoma

F-2009-399

Filed: Apr. 15, 2011

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Jeffery Robert Johnson appealed his conviction for Assault and Battery with a Deadly Weapon, After Former Conviction of Two or More Felonies. His conviction and sentence were for twenty-seven years in prison. Judge Lumpkin dissented. In this case, Johnson was accused of stabbing his roommate, Maurice Sartor, during a fight over money. Sartor claimed he had found his empty wallet and confronted Johnson. Johnson argued he was defending his girlfriend when he stabbed Sartor, stating that Sartor had attacked them with a hammer. The main issue in the appeal was that the jury received confusing instructions about self-defense. The court decided that the instructions given might have made it unclear to the jury about who was the aggressor in the situation, which meant Johnson didn't get a fair trial. Because this was a significant problem, the court reversed Johnson's conviction and ordered a new trial. Johnson's other claims and request for a new trial based on new evidence were not considered necessary to address.

Decision

The Judgment and Sentence of the District Court is REVERSED and the matter REMANDED for a new trial. Johnson's motion for new trial on newly discovered evidence is MOOT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an instructional error that deprived Johnson of a fair trial regarding the defense of another?
• Did the district court's submission of a modified defense of property instruction confuse the jury?
• Was Sartor's use of force to recover his property justified under the circumstances?
• Did the instructional error prevent Johnson's jury from properly evaluating the evidence related to aggression?
• Was Johnson's right to a defense of another infringed by the jury instructions given at trial?

Findings

• the court erred in instructing the jury on the modified defense of property
• the instructional error deprived Johnson of his defense
• the judgment and sentence of the District Court is reversed
• the matter is remanded for a new trial
• Johnson's motion for new trial on newly discovered evidence is moot

F-2009-399

Apr. 15, 2011

Jeffery Robert Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Jeffery Robert Johnson was tried by jury and convicted in the District Court of Oklahoma County, Case No. CF-2008-1618, of Assault and Battery with a Deadly Weapon, After Former Conviction of Two or More Felonies in violation of 21 O.S.Supp.2007, § 652. The jury set punishment at twenty-seven years imprisonment. The Honorable Jerry D. Bass, who presided at trial, sentenced Johnson accordingly and ordered Johnson’s sentence to run concurrently with his sentences in CF-07-6072 and CF-06-3331. From this Judgment and Sentence Johnson appeals. Johnson also presents a Motion for New Trial on Newly Discovered Evidence. Johnson’s claim in his fifth proposition–namely that instructional error denied him a fair trial–requires discussion and relief. Because we find reversal is required on that claim, the remaining claims and Johnson’s motion for new trial need not be addressed.

Johnson’s sentence for Assault and Battery with a Deadly Weapon is subject to the 85% Rule under 21 O.S.Supp.2007, § 13.1(5) and he must serve 85% of his sentence prior to becoming eligible for consideration for parole. On February 22, 2008, Appellant Johnson stabbed his roommate Maurice Sartor in the abdomen after Sartor accused Johnson of taking money from his wallet. According to Sartor, he found his empty wallet in the kitchen around 4:30 a.m. and he got loud and belligerent to roust Johnson. Johnson and his girlfriend, Malinda Brookey, left the house followed by Sartor, shouting he wanted his money back. Johnson denied taking the money and kept walking. Sartor continued with his demands to return the money and took a swing at Johnson causing Johnson to fall into the bar ditch along the roadway. Sartor explained that Brookey grabbed him from behind and held onto his shirt. As Sartor struggled with Brookey, Johnson stabbed him. Sartor denied having any kind of weapon. Johnson raised the defense of defense of another and testified to a different version of events at trial. Johnson said that Sartor was drunk when he accused him of taking the money. Johnson was fed up with Sartor’s drunken rants that he had witnessed earlier in the week so he told Sartor’s girlfriend the truth about the missing money, namely that Sartor had spent it on drugs earlier in the week. Johnson claimed the revelation angered Sartor and Sartor came at him in the front yard with a claw hammer in his hand. As Sartor was about to strike Johnson, Brookey pushed Sartor and Sartor struck Brookey in the head with the hammer. Johnson said it was then that he stabbed Sartor to protect Brookey. Johnson admitted getting rid of the knife that night and leaving Oklahoma later that day.

The issue before us is whether the district court’s submission of a modified defense of property instruction and the definition of aggressor confused the jury and deprived Johnson of his defense. The instruction was given to explain the court’s belief that Sartor (the victim) was entitled to use force to prevent Johnson from taking his money whether or not Sartor’s belief was reasonable. Johnson claims that by telling the jury Sartor’s use of force to recover his allegedly stolen money was justified, the court deprived him of his defense that he had a lawful right to defend his girlfriend from Sartor’s attack. He reasons that if Sartor’s actions initiating the fight were justified, Sartor was no longer the aggressor. For this reason, the actions undertaken by Johnson and his girlfriend in response to Sartor’s attack made them the aggressors and Johnson was denied his defense because defense of another is not available to a defendant when the person on whose behalf the defendant intervened was the aggressor. Defense counsel objected to the instruction at trial, preserving this issue for appeal. We review a trial court’s rulings on jury instructions for an abuse of discretion. Cuesta-Rodriguez v. State, 2010 OK CR 23, IT 59, 241 P.3d 214, 234. Jury instructions are sufficient if when read as a whole they state the applicable law. Spence U. State, 2008 OK CR 4, I 8, 177 P.3d 582, 584. This Court will reverse the judgment only where an error in the jury instructions has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. 20 O.S.2001, § 3001.1; Spence, 2008 OK CR 4, I 8, 177 P.3d at 584.

It was error to give the modified defense of property instruction in this case relating to the victim’s actions. Under 21 O.S.2001, § 643 (3), a person who is about to be injured may use force in preventing or attempting to prevent an offense against his person or in preventing or attempting to prevent unlawful interference with personal property in his lawful possession. According to Sartor, he believed Johnson had already stolen his money and was leaving with it. Sartor pursued Johnson and took the first aggressive action by either taking a swing at Johnson or pushing him into the ditch. Sartor said he intended to get his money back through force if necessary. Because the theft, if any, had already taken place and the property was no longer in Sartor’s possession, § 643 did not permit Sartor to use self-help to forcefully take back his property. Thus, Sartor’s use of force here was not lawful even accepting his claims of theft as true. This instructional error prevented Johnson’s jury from properly evaluating the evidence. The modified defense of property instruction informed the jury that Sartor was entitled to use force to defend his property when he was not and, consequently, that Sartor was not the aggressor under the circumstances. The modified defense of property instruction denied Johnson his purported defense because he could no longer avail himself of the defense that he acted to defend another because defending the aggressor in an altercation is not protected under the law.

This case is reversed and remanded for a new trial with proper instructions consistent with this opinion. Johnson’s motion for new trial on newly discovered evidence is MOOT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2007, § 652.
2. 21 O.S.Supp.2007, § 13.1(5).
3. O.R.132.
4. Tr.II 6.
5. 21 O.S.2001, § 643 (3).
6. 20 O.S.2001, § 3001.1.
7. Black v. State, 2001 OK CR 5, 1 58, 21 P.3d 1047, 1069.
8. 21 O.S.2001, § 643(3).
9. 76 O.S.2001, § 9.
10. OUJI-CR(2d) 8-16 (Supp.2010).
11. OUJI-CR(2d) 8-4 (Supp.2010).
12. Blankenship v. State, 1986 OK CR 75, "I 8, 719 P.2d 829, 831-32.
13. Cowles v. State, 1981 OK CR 132, 11, 636 P.2d 342, 345.
14. Jones v. State, 2009 OK CR 1, I 65, 201 P.3d 869, 886.
15. Cipriano v. State, 2001 OK CR 25, 1 14, 32 P.3d 869, 873.
16. Patton v. State, 1998 OK CR 66, " 49, 973 P.2d 270, 288.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2007) - Assault and Battery with a Deadly Weapon
• Okla. Stat. tit. 21 § 13.1 (2007) - "85% Rule"
• Okla. Stat. tit. 20 § 3001.1 (2001) - Jury Instructions
• Okla. Stat. tit. 21 § 643 (2001) - Use of Force in Defense
• Okla. Stat. tit. 76 § 9 (2001) - Necessary Force
• Okla. Stat. tit. 21 § 733 (2001) - Use of Deadly Force in Defense

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Cuesta-Rodriguez v. State, 2010 OK CR 23, I 59, 241 P.3d 214, 234.
• Spence v. State, 2008 OK CR 4, I 8, 177 P.3d 582, 584.
• Black v. State, 2001 OK CR 5, I 58, 21 P.3d 1047, 1069.
• Turpen v. State, 89 Okla. Crim. 6, 16, 204 P.2d 298, 303 (1949).
• Blankenship v. State, 1986 OK CR 75, I 8, 719 P.2d 829, 831-32.
• Cowles v. State, 1981 OK CR 132, I 11, 636 P.2d 342, 345.
• Jones v. State, 2009 OK CR 1, I 65, 201 P.3d 869, 886.
• Cipriano v. State, 2001 OK CR 25, I 14, 32 P.3d 869, 873.
• Patton v. State, 1998 OK CR 66, I 49, 973 P.2d 270, 288.