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Black v. State

3/12/2001



Johnny Dale Black, hereinafter Appellant, was convicted of one count of Murder in the first degree (21 O.S.Supp.1997, § 701.7(A)) and one count of Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony (21 O.S.Supp.1992, § 652 ), following a jury trial in the District Court of Stephens County, Case No. CF-99-01 , the Honorable George W. Lindley, District Judge, presiding. The jury recommended death for the murder after finding four aggravating circumstances and fifteen (15) years imprisonment for assault and battery with a deadly weapon. The trial court sentenced Appellant accordingly. From this Judgment and Sentence, he appeals.


FACTS


On January 4, 1998, Cal Shankles went to the trailer home of Jesse Black where Jesse, his brothers Jimmy Black and Appellant, Robert Seale and several others were watching football playoffs. A nervous Shankles wanted the Black brothers and Robert Seale to accompany him while he went to find his brother. Shankles told the Blacks and Seale that he needed them to watch his back because Justin Hightower was looking for him over an affair he had been having with Hightower's soon-to-be ex-wife. Thereafter, Shankles, the Black brothers and Robert Seale left the trailer in Shankles' mother's green Neon with Appellant driving and Shankles on the lookout for Hightower's black Blazer.


Meanwhile, Bill Pogue and his son-in-law, Rick Lewis, drove to Ringling in Pogue's black Blazer to buy some chewing tobacco at a local convenience store. On their way back to Pogue's home, they passed the Neon at an intersection and one of its passengers yelled something at Pogue's Blazer. The Neon turned around and pulled in behind Pogue traveling at a high rate of speed and flashing its lights. Shortly thereafter, the Neon passed Pogue's Blazer and stopped in front of it. It was disputed at trial whether the Neon blocked the roadway.


According to Rick Lewis, the surviving victim, he and Pogue exited the Blazer. Lewis went around the back of the Blazer and came up behind Pogue. The four doors of the Neon opened and Jimmy Black, who was seated in the rear on the driver's side, got out and ran barreling towards them. In response, Pogue hit Jimmy Black in the face and the two began to wrestle towards and into the east bar ditch. Jesse Black and Appellant then ran towards Lewis, who hit Jesse Black, momentarily knocking Jesse down. Lewis was able to sidestep Appellant and throw him into the front of the Blazer. Appellant and Jesse Black then began fighting with Lewis in the west bar ditch. During the fight, Lewis looked up to see Cal Shankles with some type of club and felt a couple of blows to the head. Lewis did not remember seeing Shankles during the entirety of the fight and the evidence showed Shankles went from bar ditch to bar ditch alternately hitting Lewis and Pogue with some type of club. Lewis remembered seeing Robert Seale standing at the back of the Neon holding what looked like a tree branch, but never saw him fighting with anyone.


After several minutes of fighting, Lewis was able to break free and make his way to the east bar ditch where he saw Pogue on top of Jimmy Black and Appellant over Pogue's back. Lewis pushed Appellant off of Pogue and helped Pogue stand up and head toward the Blazer. Jesse Black then hit Lewis in the side of the head and said "that's for bustin' my lip." The Black brothers, Seale and Shankles then lined up behind the Neon yelling obscenities and taunting Lewis and Pogue. While Lewis assisted Pogue, who had been stabbed eleven times, into the Blazer, the Neon sped away. Although Lewis did not realize it during the fight, Appellant had stabbed him thirteen times with wounds to

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