recognizing that this Court will follow the guidance of the Tenth Circuit until the United States Supreme Court rules on the applicability of a legal principle to Oklahoma
How later courts described this case
- recognizing that this Court will follow the guidance of the Tenth Circuit until the United States Supreme Court rules on the applicability of a legal principle to Oklahoma
- finding no abuse of discretion in for-cause removal of three jurors for inability to consider the death penalty, despite some "ambiguity" and "vacillating" by the jurors, after extensive voir dire by both parties
- stating that a complaining defendant must establish actual prejudice to succeed on his complaint that spectators wore ribbons
- “The heat of passion must render the mind incapable of forming a design to effect death before the defense of manslaughter is established.”
Written by the judges who cited it.
The opinion
LEWIS, Vice Presiding Judge,
Concurs in Results.
{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 *141 ing 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.
T2 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.
T8 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.
. Hanna v. State, 1977 OK CR 54, 125 , 560 P.2d 985, 991 ; Tarter v. State, 1961 OK CR 18 , 135, 359 P.2d 596, 601 ; Welborn v. State, 1940 OK CR 95 , 70 Okl.Cr. 97, 105-06 , 105 P.2d 187, 190-91 ; Smith v. State, 1936 OK CR 50 , 59 Okl.Cr. 111, 115-16 , 56 P.2d 923, 925 (and cases cited therein); James v. State, 1918 OK CR 6 , 14 Okl.Cr. 204, 208 , 169 P. 1127, 1128 ("'In a prosecution for murder the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and if the evidence tends to prove different degrees, the law on each degree which the evidence tends to prove should be submitted to the jury"); Turner v. State, 1912 OK CR 370 , 8 Okl.Cr. 11 , 126 P. 452, 462 (an Information which charges a homicide committed with premeditated design to effect the death includes every form, grade, and degree of homicide); also see Carter v. State, 1994 OK CR 49, 140 , 879 P.2d 1234, 1249 (In a murder prosecution, the trial court is to instruct on every degree of homicide which the evidence tends to prove.).
. The discussion of a two step process in Skrum is merely an introduction to the different tests used by courts across the country and does not necessarily reflect the method of determining lesser offenses in Oklakoma.