Jackson v. State

¶1concur in result:

¶2¶ 1 I concur in the results reached by the Court in this case. However, I cannot join in the analysis and verbiage utilized by the Court as to several of the issues raised in this appeal.

¶3¶2 I have previously stated my belief this Court should adopt a unified Spuehler-type approach to evaluating the sufficiency of the evidence in all cases, whether the evidence is direct and circumstantial, or whether .the evidence is entirely circumstantial. See White v. State, 900 P.2d 982 (Okl.Cr.1995)(Lumpkin, J.: Specially Concurring). I continue to urge the Court to adopt that unified standard of review even as it applies to the proof of the state of mind and, in this case, our review of the determination by the trier of fact that the state had satisfied its burden of proof as to malice aforethought.

¶4¶ 8 It appears the Appellant misconstrues the concept of when a lesser included offense instruction is warranted in a criminal proceeding. As we reiterated in Willingham v. State, 947 P.2d 1074, 1080 (Okl.Cr.1997),

a lesser included offense is a part of the greater offense and the establishment of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser included offense. Stated another way, an offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser. State v. Uriarite, 815 P.2d 193, 195 (Okl.Cr.1991); see also Jennings v. State, 643 P.2d 643, 645 (Okl.Cr.1982) (the elements of a lesser included offense must necessarily be included in the offense charged).

¶5Willinghamestablished once and for all second degree depraved mind murder is not a lesser included offense of first degree malice murder. Likewise, it is readily apparent second degree (escape from a penal institution) *899murder does not meet the criteria for a lesser included offense.

¶6¶4 The Appellant’s assertions that the trial court has a duty to instruct on all lesser included offenses seeks to embrace offenses that are not contained within the elements of the primary charge. Historically, convictions on a lesser included offense have been permitted because the lesser included offense is contained within the primary charge. Therefore, because it is a lesser included offense of that specifically charged, there is no due process problem. However, if it is not a lesser included offense, then a defendant has never been charged with that crime and the Court has not been vested with the authority to hold that person accountable for the uncharged crime. The United States Supreme Court, in DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937), has held that a conviction upon a charge not made in the information would be a denial of due process. See also Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979). The Supreme Court has also stated it offends due process where an appellate court upholds a conviction on grounds that were not charged in the information nor the basis of the conviction. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); Dunn v. United States, infra. Similarly, this Court has stated that while “an insufficient information cannot support a conviction, it can support a conviction for any lesser included offense which is properly alleged.” Morris v. State, 603 P.2d 1157, 1161 (Okl.Cr.1979).

¶7¶ 5 Granted, if a defendant requested an instruction of an offense not charged, one which is not a lesser included offense, the Court could say the conviction for that offense would be invited error. However, how can we have invited error and sustain a conviction when a person has never been charged with that crime? See also Schmuck v. United States, 489 U.S. 705, 716-718, 109 S.Ct. 1443, 1441-1452, 103 L.Ed.2d 734 (1988).

¶8¶ 6 I would agree that First Degree Manslaughter, heat of passion, could be a lesser included offense of malice murder, based on an analysis of the elements of each offense, i.e. whether the elements of the lesser are included within the elements of the primary charge. To determine whether First Degree Manslaughter, heat of passion, is a lesser included offense of malice murder, one must look at intent, i.e. the malice aforethought intent to take human life versus a sudden heat of passion. I submit that the concept of heat of passion is fairly embraced and included within the element of pre-meditation. See Schmuck, 489 U.S. at 720, 109 S.Ct. at 1452; Stevenson v. United States, 162 U.S. 313, 320, 16 S.Ct. 839, 842, 40 L.Ed. 980 (1896). A defendant in his defense could present evidence that he killed the person, knew what he was doing, but had a sudden heat of passion and that passion is what caused the homicide. Based on the evidence presented, the trial judge could find it sufficient to warrant an instruction on the lesser included offense of First Degree Manslaughter, heat of passion.

¶9¶ 7 A survey of the statutes of first degree murder and first degree manslaughter in all fifty states reveals several states have statutes similar to Oklahoma’s.1 In each of these states, manslaughter is a lesser included offense of first degree murder. In Wallace v. Indiana, 182 Ind.App. 256, 395 N.E.2d 274, 275 (1979), the Indiana Court of Appeals was faced with the issue of determining whether or not heat of passion manslaughter could be a lesser included offense of malice murder. In finding it could, the Court reasoned:

Voluntary manslaughter is an unlawful, intentional killing of a human being, without malice and with premeditation. Although the statute adds ‘upon a sudden heat,’ it is only in the application of the definition to a given case that this element must be made use of, for there could be< no such thing as an unlawful intentional killing without malice, unless it was done upon a sudden heat. This mitigating fact reduces the crime to manslaughter, if upon the whole evidence *900it appears sufficient to rebut the presumption of malice arising from a voluntary killing.

¶10Id.395 N.E.2d at 275. That is the type of analysis that should be applied to our statutes.

¶11¶ 8 In this case, counsel requested several instructions on what he argued were lesser included offenses to malice murder. As acknowledged in the Appellant’s brief, the trial court refused all of the requested instructions except for the first degree heat of passion manslaughter instructions.2 In accordance with the above analysis, I find the trial judge gave the only lesser included instruction which was warranted in this case. The other requested instructions do not raise an issue of a lesser included offense of malice murder. Therefore, Appellant had no right to receive an instruction for an offense that was not fairly embraced within the primary charge. In this case, only first degree heat of passion manslaughter was appropriate.

¶12¶ 9 As a part of the alleged errors raised in Proposition VIII, relating to instructions on lesser included offenses, Appellant also raises an issue regarding voluntary and involuntary intoxication as a theory of his defense. In addressing this issue as it relates to a defendant’s theory of defense, the Court states that it finds “it necessary to clarify the test to be used”. However, that clarification, in effect, creates more confusion for trial practitioners and judges regarding when a defendant’s theory of defense has been sufficiently supported by evidence to warrant an instruction.

¶13¶ 10 In Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990), we said “a defendant is entitled to an instruction on his theory of defense where there is evidence to support it, even if such evidence is discredited”. We stated further:

[t]o warrant a separate instruction, a defendant’s theory of defense must be a legal defense recognized in the law i.e. statutes or case law, ... Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. Once presented, it is then the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. The defendant is then entitled to an instruction on any theory of defense supported by the evidence, as long as that theory is tenable as a matter of law. [citations omitted]. Id. at 633.

¶14¶11 I agree with the Court’s statement in footnote 5, that it is the responsibility of the trial judge to determine if the evidence is “sufficient” to support the defense instruction and that sufficient means a defendant has presented the quantum of evidence required to establish a prima facie showing of the defense. However, I am concerned about language in the opinion indicating the evidence should not be weighed by the trial court and the Court’s use of “evidence” or “enough evidence” terminology when the standard of proof is “sufficient evidence”.3 As stated previously, I find the use of this “any evidence” terminology unsupported in the law. See Nance v. State, 838 P.2d 513, 517-18 (Okl.Cr.1992) (Lumpkin, J.: Concur in Part/Dissent in Part). All this language does is say the Court will not be bound by any objective standard for review or provide the trial court with any clarification as to what standard applies.

¶15¶ 12 The problem is, the trial court must weigh the sufficiency of the evidence in order to decide whether an instruction should be *901given. Some weighing of the evidence is necessary in order to determine whether a prima facie showing has been made. North Carolina has achieved a nice balance to this problem by holding that “in determining whether to give the substance of an instruction concerning a defense, the trial court must assess the evidence first for the legal principle it implicates, and second for the sufficiency, of the evidence itself’. North Carolina v. Marshall, 105 N.C.App. 518, 414 S.E.2d 95, 97 (1992). “[T]he measure of legal sufficiency is the ‘any competent evidence’ standard.... Therefore, if there is any competent evidence in the record when viewed in the light most favorable to the defendant from which the jury could determine [the existence of the defense theory], then the defendant is entitled to instruction on the defense [theory].” Id.The Supreme Court of Idaho adopted a slightly different terminology in applying the same type of standard. That Court established the following four-step analysis for dealing with defense theories and lesser included offense instructions: (1) Identify the specific elements necessary for the requested instruction; (2) Define the statutory elements, or as is the case, the common law elements of the requested instruction; (3) Consider the evidence presented to determine whether such evidence supports the requested instruction; and (4) If the requested instruction is not supported by the evidence, the Court must reject the requested instruction. See Idaho v. Hawley, 128 Idaho 874, 920 P.2d 391, 395-96 (1996). In Michigan v. Lemons, 454 Mich. 234, 562 N.W.2d 447, 454 (1997), the Court defined prima facie evidence as “evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports.”

¶16’ ¶ 13 The Court’s statement in this opinion that “[t]he evidence of the defense may come from any source and should not be weighed by the trial court” is in direct conflict with a large body of law defining the role of the trial judge in the course of a trial and the responsibility of determining when an instruction on a theory of defense should be given. When determining whether sufficient evidence has been presented to warrant the giving of an instruction, it is elementary that the trial judge must “weigh” the evidence. The judge must determine whether legally sufficient and competent evidence has been put forth to establish a prima facie showing which would warrant an instruction on that defense. In determining whether a prima facie showing has been established by competent evidence, the trial judge must analyze the evidence presented, together with the burden of proof and the elements of the defense.

¶17¶ 14 Rather than clouding the issue of when an instruction on a defendant’s theory of defense should be given, we should truly clarify the objective criteria trial judges can utilize. I urge the Court to further delineate the objective process we set out in Kinseyby adopting additional criteria drawn from the jurisdictions set out above. We should establish the following procedure for applying the standard set out in Kinsey:

1. To warrant a separate instruction, a defendant’s theory of defense must be a legal defense recognized in the law, i.e. statutes or caselaw. (Kinsey at 633)

2. Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. (Kinsey at 633)

3. Once presented, it is the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. (Kinsey at 633)

4. The measure of legal sufficiency is the “any competent evidence” standard as applied to establishing a prima facie proof of the defense. Therefore, if there is any competent evidence in the record, viewed in the light most favorable to the defendant, from which the jury could determine the existence of the legal defense, then the defendant is entitled to an instruction on the defense.

5. In applying the “any competent evidence” standard, the Court should (a) Identify and define the specific elements *902necessary for the requested instruction, i.e. either statutory or ease law elements for the defense; (b) Consider the evidence presented which meets the standard to determine whether such evidence supports each element of the defense; and (e) If the requested instruction is not supported by competent evidence the Court must reject the requested instruction.

6. In deciding whether a defendant has established a prima facie proof of the defense using the “any competent evidence” standard, the Court shall determine if the competent evidence presented is good and sufficient on its face. That means evidence which, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the defendant’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports. The issues of whether the evidence has been rebutted or contradicted are questions of fact for the jury to decide under proper instructions by the Court. The Court shall review the evidence presented to determine if the defendant has established prima facie proof of the defense which would warrant an instruction on the defense without speculating on whether the jury will find the evidence contradicted or rebutted.

¶18¶ 15 Applying this criteria to the facts of this case, I agree with the Court that Appellant failed to present sufficient evidence to support the giving of instructions on voluntary intoxication.

¶19V16 As I have stated many times before, we need to be consistent and give the trial court clear guidance as to the rule of law to be applied and the standards to be utilized in determining the application of that rule of law. Both in its’ discussion of lesser included offenses and instructions on a defendant’s theory of defense, the Court confuses rather than clarifies the issues. Rather than giving objective criteria the Court creates many shades of gray which do not enhance the administration of justice in our courts. By establishing clear, objective criteria in our analysis of issues on appeal, we provide the helpful guidance trial practitioners and judges deserve. At the same time, we discipline ourselves by providing a consistent method for reviewing the cases which come before us on appeal. That discipline ensures the consistent application of these principles and protects the system of justice from natural human vacillation based upon how individuals might view the facts after the fact.

¶23dissenting:

¶24VI I respectfully dissent to the result reached by the majority of this Court. I applaud and concur with the majority’s clarification of the test to be used in determining whether an instruction on a defendant’s theory of defense should be given. However, the majority falls into the same trap as the trial court by picking out evidence which “belies” or discredits the evidence supporting the defense and misapplies the test announced. The weighing of the evidence by the majority is a job left for the jury. “It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story.” United States v. Bailey, 444 U.S. 394, 414-15, 100 S.Ct. 624, 637, 62 L.Ed.2d 575 (1980).

¶25¶ 2 I find that the District Court’s failure to instruct on the defense of voluntary intoxication constituted an abuse of discretion and created reversible error. Using the test announced'by the majority, I would find that there was evidence presented which would support a prima facia case of voluntary intoxication.

¶26¶ 3 Jackson testified, during the first stage of trial, that he consumed a “fifth”1 bottle of what he thought was Alize, an alcoholic beverage of unknown alcohol content, less than half of a quart bottle of 3.2 beer and took two puffs of a marijuana cigarette prior to the events that caused Ms. Cade’s death. Jackson started drinking the Alize at about 10:15 a.m. and finished drinking the bottle within 15 minutes. Jackson took the two puffs of the marijuana cigarette before they purchased fried chicken for lunch. *903Jackson drank the beer after getting the chicken but before stopping at the motel.

¶27¶ 4 Appellant testified that he was feeling “high” when he got to the motel room. Jackson did not remember going into the motel room, but remembers parts of being in the room. He guessed that he was “under the influence of intoxicating liquor” at the time.

¶28¶ 5 Jackson remembered having sexual intercourse with Ms. Cade. He remembered that after that they sat talking about their relationship. He got up from the bed and went to the shower. He turned around and Ms. Cade was standing there hollering, screaming and kicking and hitting him. He said that he grabbed her and they wrestled to the floor.

¶29¶ 6 Jackson did not remember how he got the box knife in his hand. He testified that he didn’t remember cutting her. The next thing he remembered was sitting on the bed. He didn’t remember wrapping the box knife in a wash cloth and putting it under the mattress. He didn’t remember taking Ms. Cade’s jewelry or watch. He remembers being in the Jeep after that, but didn’t remember driving the Jeep.

¶30¶ 7 The next thing he remembers clearly is being in a field, getting up and starting to walk. He remembers getting a ride from three guys who took him to some apartments on Southeast 15th where his sister worked. He got to the apartments at about 6:00 or 6:30 p.m.

¶31¶8 Jackson testified that he didn’t remember everything because, “[bjesides being upset, I guess I was high off the beer and that bottle of stuff, I guess. I don’t know.” This equivocating testimony alone would not be sufficient to show that Appellant was so intoxicated that he could not form malice aforethought. However, Jackson presented testimony regarding how alcohol, in an amount consumed by him, would effect a person.

¶32¶ 9 Dr. Doniea testified that, if two hours had elapsed after Jackson drank the alcohol and beer, his blood-alcohol content would be .19%. Doniea testified that a person with a .20% or greater blood-alcohol level would be in a stupor with markedly diminished awareness of things going on around him and have diminished ability to focus attention or to perceive what is happening around him. He would also have severely impaired motor functioning. The testimony of Jackson along with the testimony of Dr. Doniea was sufficient to support the giving of instructions on the defense of voluntary intoxication.

¶33¶ 10 The trial court decided not to give the instruction on voluntary intoxication. In doing so, the court weighed Jackson’s in-court testimony against his earlier video taped confession. The trial court believed that Jackson related sufficient details about the events leading to the death of Ms. Cade and sufficient details of events after the death to negate the instructions on voluntary intoxication.

¶34¶ 11 However, in ruling that the instruction was not warranted, the trial court stated “based upon that, this Court did not believe that Mr. Jackson demonstrated beyond a reasonable doubt that he was incapable of performing the requisite malice aforethought elements of the murder in the first degree offense, which put the Court in the position of not granting those instructions for the reasons I have articulated in the record.”

¶35¶ 12 The trial court’s recitation that he did not believe that Jackson had “demonstrated beyond a reasonable doubt” his theory of defense shows the trial court’s complete abuse of discretion. This Court has never adopted a standard so high. Even our most recent cases do not announce a test so high.

¶36¶ 18 The test found in Valdez v. State, 1995 OK CR 18, ¶¶ 56-57, 900 P.2d 363, 379, cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 and Charm v. State, 1996 OK CR 40, ¶ 13, 924 P.2d 754, 761,2 that a defendant is required to present evidence sufficient to raise a reasonable doubt concerning his ability to form the specific intent to kill because of intoxication before instructions must be given, is plainly wrong. Once a defendant presents evidence of a defense, it is the State’s burden to prove beyond a *904reasonable doubt that the defense is invalid or unbelievable.

¶37¶ 14 In one of the primary cases on the giving of defense instructions we stated that “the jury must be advised of defendant’s theory of defense where there is evidence to support it, even though such evidence is discredited.” Holt v. State, 1955 OK CR 2, ¶ 112, 278 P.2d 855, 857; also see Tully v. State, 1986 OK CR 185, ¶ 17, 730 P.2d 1206, 1211. In Nance v. State, 1992 OK CR 54, 838 P.2d 513, 515, this Court held that a criminal defendant must be afforded the opportunity to have a jury consider his theory of defense regardless of the relative merit of the evidence offéred in support of the defense. “Any evidence, without consideration of its veracity, in light of the weight of the evidence, requires that instruction be given so that the jury may make the ultimate decision whether to accept or reject the offered defense.” Id.(citations omitted).

¶38¶ 15 In the present case, Jackson did not testify that he had sufficient recollection to give details concerning events prior to, during or after the death of Wendy Cade. The trial court thought otherwise and believed that Jackson had not provided sufficient evidence to show “beyond a reasonable doubt” that he was so intoxicated that he could not form the requisite malice aforethought element. Furthermore, as evidence of an abuse of discretion, the trial court, in his Capital Felony Report, indicated that the evidence did not foreclose all doubt respecting Jackson’s guilt and that' the trial court believed that Jackson was under the influence of alcohol.3 Clearly, the trial court believed that intoxication was a factor in this case. However, his rendition of an improper test caused him to abuse his discretion.

¶39¶ 16 It is both the weighing of the evidence and the use of a clearly improper test that constituted an abuse of discretion in this case. A defendant does not have to provide sufficient evidence to prove his defense beyond a reasonable doubt in order to get a defense instruction. He only has to provide evidence to support the defense. Then it is up to the jury, on proper instructions, to decide if the evidence is sufficient. For these reasons, this case must be reversed and remanded for a new trial.

¶40¶ 17 I am authorized to state that Judge STRUBHAR joins in this dissent.