BEFORE ROY NOBLE LEE, P.J., DAN LEE AND GRIFFIN, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
Gregory Tubby, Harrison Johnson, Jr., and Arlene Johnson Tubby were indicted on February 6, 1985, for the November 3, 1984 murder of Edward John, who was Harrison's and Arlene's stepfather. John was killed by a blow to the head. The three were initially tried in February 1985 with the result being a mistrial, and they were tried again on July 15-17, 1985. Gregory Tubby and Harrison Johnson were found guilty of aggravated assault and sentenced to ten years' imprisonment. Arlene Johnson Tubby was found guilty of simple assault. The judge postponed sentencing Arlene due to her pregnancy and imminent delivery, and since she is not an appellant here her sentence does not appear in this record. Gregory Tubby and Harrison Johnson appeal, assigning as error:
1. IT WAS ERROR TO CONVICT AND SENTENCE OR EVEN TRY HARRISON JOHNSON, JR., A MINOR, WITHOUT CERTIFICATION FROM THE YOUTH COURT OR COMPLYING WITH LAW IN MAKING SUCH SENTENCE.
2. THE COURT ERRED IN GRANTING INSTRUCTIONS CONCERNING THE FACT THAT APPELLANTS COULD BE FOUND GUILTY OF LESSER OFFENSES SUCH AS AGGRAVATED ASSAULT OR SIMPLE ASSAULT WHEN THE INDICTMENT WAS THAT OF MURDER AND ALLOWING SUCH A CONVICTION FOR SUCH LESSER INCLUDED OFFENSES TO STAND.
3. THE COURT ERRED IN ADMITTING INTO EVIDENCE THE ALLEGED CONFESSIONS AND STATEMENTS
OF APPELLANTS TO OFFICERS.
4. IT WAS ERROR FOR THE COURT TO ALLOW INTRODUCTION OF CONFESSIONS OF BOTH APPELLANTS AND IN NOT GRANTING A SEVERANCE.
5. IT WAS ERROR FOR THE COURT NOT TO ALLOW ADDITIONAL CHALLENGES BY APPELLANTS AND IT WAS ERROR FOR THE COURT TO NOT DISMISS FOR CAUSE JUROR GLENDA MYERS HERRINGTON.
6. THE COURT ERRED IN OVERRULING THE MOTION OF NEW TRIAL, GRANTING THE INSTRUCTIONS FOR THE STATE OVER OBJECTION OF APPELLANTS AND REFUSING THE INSTRUCTIONS FOR APPELLANTS, AND THE VERDICT OF THE JURY IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND EVIDENCE AND NOT SUPPORTED BY ANY LAW OR EVIDENCE AND THE COURT ERRED IN NOT PERMITTING THE SELF DEFENSE OFFERED BY APPELLANTS.
7. IT WAS ERROR FOR THE COURT NOT TO HAVE AN INTERPRETER.
Harrison Johnson (Harrison) and Arlene Johnson Tubby (Arlene) are brother and sister. At the time of the murder of Edward John, Arlene was living with Gregory Tubby (Gregory), whom she has since married. Arlene and Gregory had one child, Chelsey, at the time of the incident, and at the time of trial Arlene was pregnant with their second child. Mary John is the mother of Harrison and Arlene. In 1981 Mary married Edward John. Theirs was, apparently, a stormy marriage, and a proffer made at trial of medical records indicated that Mary John had been hospitalized on several prior occasions as a result of being beaten by Edward.
On the night of Friday, November 3, 1984, Gregory, Arlene and Harrison were at the trailer shared by Mary and Edward to celebrate Arlene's birthday. Gregory and Arlene's daughter, Chelsey, was also there. At around midnight, Arlene, Gregory, Harrison, Edward and Mary were sitting around the kitchen table drinking when Mary stood up and announced that she was going to bed. Edward objected to Mary leaving, and hit her in the jaw. At that point, Gregory told Edward not to hit Mary, and a fight broke out between them. Ultimately, Arlene and Harrison were involved in the altercation, but not Mary, who retired to her bedroom.
A witness who lived across the street from Edward and Mary's trailer testified that at about 1:00 a.m. she saw three
people chasing another person out of the trailer park. This witness, Clyde Thompson, said that one of them had a broom (he thought it was the female) and another had a baseball bat. As they caught up with the man they were chasing, one of the attackers hit him over the head with the baseball bat and he fell. After he fell his assailants kicked him for a few minutes; then they left and returned to the trailer park. A few minutes later, two of them returned and kicked him again. According to Thompson the victim never moved after he fell. Thompson called the police at about 1:30 a.m.
The defendants testified that the fight was primarily a wrestling match. According to them, Edward pushed Gregory into the stove and pushed Harrison out the door of the trailer. The fight continued outside for a few minutes; then Edward returned to the trailer. Their testimony differed at this point - either Edward stated that he was going for his gun, or they thought he was going for it. Arlene, Gregory and Harrison followed him back into the house because they were worried about what he might do to Mary and Chelsey. The scuffle then moved back outside the trailer, with Arlene joining in to pull Edward off Harrison by his hair. Edward allegedly provoked the continuation of the fight by urging the three to "Come on. Come on." However, all three of the defendants testified that neither they nor Edward were armed, and that they ended the fight with Edward conscious, sitting up either in the street or nearby. There was some testimony to indicate that he could have been subsequently hit by a car.
After leaving Edward, the three defendants returned to the trailer to watch television. About thirty minutes later, Choctaw police came to the trailer and told them that Edward was dead. According to the pathologist, Dr. Robert Jarrett, an autopsy performed on John showed that he died from extensive bleeding caused by a fractured skull. His body also reflected multiple superficial lacerations and several blows to the head. A blood alcohol test performed on the body showed Edward's level to be .234.
Gregory Tubby was arrested at the scene around 2:00 a.m. on Saturday, November 3. He signed a waiver of rights form, said that Edward and his mother-in-law had been fighting, and refused any further statement. He was placed in the drunk tank, a 14' by 17' room with no mattresses. Harrison was arrested later that morning at about 4:30 - 5:00 a.m. He also signed a waiver of rights form, but refused to make a statement. Harrison gave his date of birth as 7/15/66, which would have made him 18 years of age at the time of the crime. However, two days later police learned from his mother that his birth date was actually 7/15/67; thus, he was only 17. Harrison
was put in an individual cell until it was determined that he was a juvenile; then he was transferred to a juvenile cell.
Both Harrison and Gregory are Choctaw Indians who speak Choctaw as their primary language. They were kept in jail over the weekend and several of their relatives and friends testified that they were denied visitation with them. The gist of this testimony was that the visitors were told that they would not be permitted to see the men until they had made a statement. Gregory testified that he was kept in the drunk tank with no bed, shower or change of clothes. Harrison said that the police would not let him make a phone call. The police and sheriff denied refusing visitation and alleged that the families were at the jail over the weekend, although they could not testify that they actually witnessed any visiting. They also denied any deliberate purpose in keeping Gregory in the drunk tank, but said it was necessary due to overcrowding.
Later on Saturday, the 3rd, Arlene came to the jail to inquire about her brother and boyfriend. According to the police, she smelled of alcohol and was very upset. They said that she asked why they were keeping Gregory and Harrison, and said that they hadn't done any more than she had. Arlene admitted the visit, but denied making the statement. She was told to go home, but was subsequently arrested on Monday.
On Monday, November 5, Gregory and Harrison signed another waiver of rights form, but, again, no statement was taken. Finally, on November 6 statements were given by both Harrison and Gregory. Gregory's statement was as follows:
After being advised of my Rights by Investigator Bobby Anderson and Lt. R. L. Wilcher, I give the following statement:
On the night of 3rd November 1984, I was at the Home of Edward John and Mary John at 401 Lewis Avenue, Trailor number one.
Edward hit me in the face and shoved me and he ran out front door and I followed him outside. I grabbed his foot and he almost fell down, but he kept going towards the road. I followed him on up the road and Edward was on the ground, I kicked him on his head. Arlene and I left him laying in the road, we went back to trailor and Harris was on the road with Edward. I hit him several times with my fist during the fight.
I went in Trailor and sit down. When Police came
I ran to rear of Trailor, I hid behind a closet door.
Police Arrested me and put me in a Police Car. I ...