Johnny W. Ward v State Of Oklahoma
F-2019-16
Filed: Dec. 12, 2019
Not for publication
Prevailing Party: State Of Oklahoma
Summary
Johnny W. Ward appealed his conviction for Assault and Battery with a Deadly Weapon and Possession of a Firearm. Conviction and sentence were 30 years for Assault and 10 years for Possession, served at the same time. Judge Hudson dissented. In this case, Ward was found guilty after shooting someone and had a previous felony. During the trial, he argued that the way the eyewitness identified him was unfair. However, the court decided the identification was acceptable. He also claimed there wasn’t enough evidence to prove he did the crime, but the court found there was enough evidence that showed he shot the victim. Finally, Ward thought his punishment was too harsh, but the court upheld the sentences, deciding they were appropriate given the seriousness of his actions. Therefore, the appeal was denied, and his conviction stands.
Decision
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was the eyewitness identification of Appellant based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial?
- Was the State's evidence presented at trial sufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony?
- Is Appellant's sentence excessive and should it be modified?
Findings
- the trial court did not abuse its discretion in denying the motion to suppress the identification
- the evidence was sufficient to establish beyond a reasonable doubt that Appellant committed the crimes
- modification of the sentences is not warranted
F-2019-16
Dec. 12, 2019
Johnny W. Ward
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. 1 It is from this judgment and sentence that Appellant appeals.
1 Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.
Appellant raises the following propositions of error in support of his appeal:
I. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant’s rights to due process and a fair trial.
II. The State’s evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss.
III. Appellant’s sentence is excessive and should be modified.
After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.
In Proposition I, Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one-person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. [A]bsent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations…. Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128 quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one-person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. See Ford v. State, 1975 OK CR 28, ¶ 22, 532 P.2d 89, 95 (abuse of discretion review applied to challenge to in-court identification). However, even if we were to find the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied.
In Proposition II, Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony Conviction. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts the State’s evidence showed only that he was in the wrong place at the wrong time. Actually, the evidence showed much more than that. Reviewing Appellant’s challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. The evidence and reasonable inferences therefrom show that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Appellant’s challenge to the sufficiency of the evidence is denied.
In Proposition III, Appellant argues that his sentence is excessive and should be modified. He asserts that, although [his] sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the alleged offenses as it cannot be said that the facts of the offenses justified the sentences imposed. Appellant’s sentences were within the applicable statutory range. See 21 O.S.2011, §§ 652(A), 1284 and 51.1(C). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim, multiple times, as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Modification of the sentences is not warranted and this proposition is denied.
Accordingly, this appeal is denied.
DECISION
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY
THE HONORABLE THOMAS H. ALFORD, DISTRICT JUDGE
APPEARANCES AT TRIAL
BRIAN WATTS
OKLA. INDIGENT DEFENSE SYSTEM
COUNSEL FOR THE DEFENSE
222 N. 4TH ST.
MUSKOGEE, OK 74401
APPEARANCES ON APPEAL
NICOLLETTE BRANDT
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT
ORVIL LOGE
TIM KING
DISTRICT ATTORNEY
ASST. DISTRICT ATTORNEY
MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA
CAROLINE E.J. HUNT
ASST. ATTORNEY GENERAL
MUSKOGEE CO. COURTHOUSE
313 N.E. 21ST ST.
MUSKOGEE, OK 74401
COUNSEL FOR THE STATE
OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur
Footnotes:
- 21 O.S.2011, § 652
- 21 O.S.Supp.2014, § 1283
- 21 O.S.2011, § 13.1
- Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34.
- Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128 quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969).
- Ford v. State, 1975 OK CR 28, ¶ 22, 532 P.2d 89, 95.
- Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682.
- 21 O.S.2011, §§ 652(A), 1284 and 51.1(C).
- Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 652 (2011) - Assault and Battery with a Deadly Weapon
- Okla. Stat. tit. 21 § 1283 (2014) - Possession of a Firearm After Former Conviction of a Felony
- Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
- Okla. Stat. tit. 21 § 1284 (2011) - Sentences for Firearm Violations
- Okla. Stat. tit. 51.1 § (2011) - Sentencing Guidelines
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:
- Young v. State, 2000 OK CR 17, I 30, 12 P.3d 20, 34
- Harrolle v. State, 1988 OK CR 223, I 7, 763 P.2d 126, 128
- Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969)
- Ford v. State, 1975 OK CR 28, I 22, 532 P.2d 89, 95
- Mitchell v. State, 2018 OK CR 24, I 1, 424 P.3d 677, 682
- Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928