Davis v. State

¶1Concurs in Results.

¶2{1 While I concur in the results of this Opinion, I write separately to address the issue of instructions on lesser included offenses in homicide cases. I applaud the Opinion's author in his adherence to this Court's holding in Skrum v. State, 1999 OK CR 41, 991 P.2d 1032. This Court in Shrum recognized that an elements test in determin*141ing lesser included offenses to first degree murder is wholly unworkable and adopted a test which looks to, not only the elements, but also the lesser crimes the evidence tends to prove. Id. M19-10, at 1085-86. The Shrum test follows this Court's historical treatment of instructions on lesser forms of homicide, by instructing trial courts to look to the facts of their cases to determine whether instructions on lesser forms of homicide are warranted.1 The litany of cases instructing trial courts to examine the evidence to determine which instructions on lesser forms of homicide are warranted represents a foundational tenet in Oklahoma's case law which is sound and need not be abrogated.

¶3T2 The Opinion seems to advance a two step process in homicide cases; however, any two step analysis is superfluous, because the legal determination is already made, and the trial court need only look to the evidence to determine whether instructions on lesser forms of homicide are supported.2 Under our evidence code, the "prima facie" evidence may come from any relevant source, and the jury may weigh its credibility. As the Opinion states, the evidence in this case, primarily coming from the defendant's statements, do not support a prima facie case for instructions on the lesser offenses of first degree murder.

¶4T8 I further want to clarify that the writing in footnote 6 of the Opinion contains the views of the author and do not represent the Opinion of this writer. I am authorized to state that Justice WINCHESTER joins me in this opinion.

¶7Specially Concurring.

¶81 1 While the author has affirmed in footnote 6 his minority position regarding the submission of instructions on lesser included offenses, I write specially to reaffirm my position on the same. As we noted in Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, this Court has used both the statutory elements test and the evidence test at different times in the past. In Shrum, the Court gave thoughtful and thorough consideration to the different tests and unequivocally adopted the evidence test to determine what constitutes a lesser included offense. Id.1999 OK CR 41, T 10, 991 P.2d at 1086. This means, in the present case as it did in Shrum, that "all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the evidence." Id.

¶912 Of course, in order to ensure that instructions on lesser included offenses are given when required, the evidence test must be properly applied. Thus, I feel it is important to address the majority opinion's discussion regarding the quantum of evidence necessary to warrant jury instructions on a lesser included offense. The majority correctly notes that "[a] defendant's statements concerning the homicide are sufficient to warrant a jury instruction only if those statements are supported by other evidence presented at trial." This is an accurate statement of law.1 However, the majority *142later narrows this requirement by stating, "If [Appellant's statement about the homicide] is contradictory to or inconsistent with other evidence presented at trial, it is insufficient to warrant a jury instruction on a lesser included offense." This latter statement is simply incorrect. Under this test a defendant would never be entitled to instructions on a lesser included offense as it is inconceivable that there would ever be an instance where a defendant's statement did not conflict with other evidence.

¶10T3 In order to be entitled to instructions on a lesser included offense, there must be prima facie evidence of the lesser offense. Prima facie evidence is legally defined as evidence "which, if unexplained or uncontra-dicted, is sufficient to sustain a judgment in favor of the issue, but which may be contradicted by other evidence." Black's Law Dictionary 1190 (Sixth Edition 1990). Thus, if the defendant's statement about the homicide indicates he has committed a lesser offense and is also supported by some evidence presented at trial, even if there is other evidence which is in conflict and contradictory, it will provide the quantum of evidence necessary to entitle the defendant to instructions on the lesser included form homicide that the evidence supports. Appellant's statements in the present case did not indicate the commission of a lesser included crime, were unsupported by other evidence, were uncorroborated and were contrary to and inconsistent with all other evidence presented at trial. Accordingly, he was not entitled to instructions on the lesser included offenses.

¶11T4 As Judge Arlene Johnson's special concurrence in this case also addresses my concerns, I join her special writing. Additionally, I am authorized to state that Justice WINCHESTER joins in my special concurrence.