State v. Black

50 S.W.3d 778, 2001 Mo. LEXIS 71, 2001 WL 766930
CourtSupreme Court of Missouri
DecidedJuly 10, 2001
DocketSC 82279
StatusPublished
Cited by69 cases

This text of 50 S.W.3d 778 (State v. Black) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Black, 50 S.W.3d 778, 2001 Mo. LEXIS 71, 2001 WL 766930 (Mo. 2001).

Opinions

BENTON, Judge.

Gary W. Black was convicted of first-degree murder and sentenced to death. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. Affirmed.

On the evening of October 2, 1998, Andrew Martin, Mark Wolfe and victim Jason O. Johnson met at a Joplin restaurant. After eating dinner and drinking beer, they decided to go to a downtown nightclub. Martin and the victim got into Martin’s 1996 Ford F-150 pickup, while Wolfe followed in his Camaro. En route, they stopped at a convenience store. Martin and Wolfe remained in their vehicles while the victim entered the store and purchased a 40-ounce bottle of beer and a can of chewing tobacco. While in line, the victim stood behind Tammy S. Lawson. The jury viewed a tape of the victim and Lawson together in line,

Lawson was the girlfriend of defendant Gary W. Black, who was also parked outside the store. When the victim exited the store, Lawson pointed him out to the defendant. (During the penalty phase, Lawson testified that she was upset and told defendant that the victim made “a pass” at [784]*784her.) The victim and Martin then left the store in the pickup, with Wolfe following in his Camaro. Defendant and Lawson were in defendant’s car, close" behind the Cama-ro.

When Martin stopped at the stoplight at 5th and Joplin, defendant pulled alongside in the right lane. Defendant began to “exchange words” with the victim. Defendant got out of his car, reached through the passenger window of the pickup, and stabbed the victim in the neck, nearly severing his carotid artery and completely severing his jugular vein.

Defendant immediately returned to his car. Victim left the pickup, staggered over to defendant’s car, and threw the bottle of beer at him. It is unclear whether the bottle struck defendant. (It did become clear during penalty phase that leaving the scene, defendant commented, “One nigger down,” and threw the knife out the car window.) Defendant then fled to Oklahoma.

The stab wound — 4.5 to 6 inches deep— bled profusely. Bystanders attempted to slow the bleeding with clothing and towels. Paramedics arrived to find the victim unresponsive, from massive blood loss. Blood drained into the victim’s airway, depriving him of oxygen. The victim died three days later.

Defendant was arrested in Oklahoma on a Missouri warrant. During inventory, police found an empty knife sheath in his car. Based on a statement by Tammy Lawson, an officer found the knife in a grassy area near a cemetery, about 20 blocks from the crime scene.

After deliberating less than two hours, the jury found defendant guilty of first degree murder. The jury later recommended the death penalty, finding two statutory aggravators — prior serious as-saultive convictions and depravity of mind. The trial court sentenced the defendant to death.

I.

Defendant argues that the trial court clearly abused discretion in refusing a one-day continuance when one attorney was sick and unable to conduct the death qualification part of voir dire.1 The attorney who did conduct it, defendant contends, was unprepared. Defendant further asserts a violation of a guideline that a capital defendant be represented by two qualified attorneys at every stage. See Guideline 2.1, ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989 ed.); Rule 29.16.

In fact, defendant was represented by two attorneys at every stage, including voir dire. (Another attorney served as second chair in place of the sick attorney.) A principal attorney conducted the voir dire, including the death qualification. The court refused a continuance because that attorney was “capable and experienced counsel in this sort of case,” as confirmed by her own statements.

Continuances are within the sound discretion of the trial court, and a “very strong showing” is required to prove abuse. State v.. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). Because the trial court found this principal attorney capable and experienced, it did not abuse discretion denying a continuance.

[785]*785II.

A.

According to defendant, the trial court should have admitted testimony that the victim died as a result of bad medical care, rather than defendant’s attack. Specifically, defendant believes that the victim may have survived but for his physician’s failure to administer the blood thinner Heparin.

In fact, the victim received the blood thinner Lovenox. According to defendant’s own offer of proof, treating physician Dr. Meier was advised to administer Lovenox or Heparin, and administered Lo-venox.

Any negligence of the victim’s doctors is irrelevant if death is the proximate result of defendant’s conduct:

The unlawful act need not be the immediate cause of death. It is enough that it be a contributing proximate cause, although other contributing causes may have intervened.

State v. Williams, 652 S.W.2d 102, 111-12 (Mo. banc 1983). See also State v. Bolder, 635 S.W.2d 673, 680 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983) (immaterial whether victim died from an infection resulting from the stabbing, rather than from the stabbing itself).

In this case, both the treating physician and the pathologist testified that the victim died from the stab wound and the direct results of that stab wound. The trial court did not abuse discretion in refusing to admit irrelevant testimony of alleged improper medical care. See State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997).

Defendant next asserts that evidence of malpractice is relevant to refute the prosecutor’s argument that the wound’s severity shows an intent to kill. On the facts here, this assertion is almost frivolous. Defendant stabbed the victim in the neck, inflicting a 4.5 to 6.0-inch deep wound, nearly severing a carotid artery and completely severing a jugular vein.

Defendant further alleges that malpractice testimony would counter evidence of the medical efforts to save the victim’s life. This argument is not preserved for appeal, and as discussed, the adequacy of the victim’s medical treatment is irrelevant.

Finally, defendant claims that malpractice evidence would impeach Dr. Meier, by showing his motive to exaggerate the victim’s injuries. This argument is also not preserved for appeal. At any rate, the trial court properly exercised discretion in refusing to allow impeachment on an immaterial or collateral matter. See State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc), cert. denied, 531 U.S. 845, 121 S.Ct. 114, 148 L.Ed.2d 70 (2000).

B.

Citing an inadequate foundation, defendant attacks the admission of Exhibit 10— the knife used to stab the victim. The foundation to admit the knife consisted of Sergeant Goodwin’s testimony, Dr. Meier’s testimony, and Exhibit 11—an empty knife sheath.

Sergeant Goodwin testified that after Tammy Lawson made a statement to the police, the Chief of Police told him to look for a knife in the grassy area near a specific cemetery.

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Cite This Page — Counsel Stack

Bluebook (online)
50 S.W.3d 778, 2001 Mo. LEXIS 71, 2001 WL 766930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-black-mo-2001.