# Davis v. State > Court of Criminal Appeals of Oklahoma · December 12, 2011 · 268 P.3d 86 URL: https://www.frixlaw.com/law-library/cases/5156641 ## Case - **Full name:** Nicholas Alexander DAVIS v. The STATE of Oklahoma - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** December 12, 2011 - **Citations:** 268 P.3d 86; 2011 OK CR 29; 2011 Okla. Crim. App. LEXIS 35; 2011 WL 6282347 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Johnson, Lewis, Lumpkin, That, Winchester - **Cited by:** 66 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5156641 ## How later opinions describe it (automated extraction) - 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 ## Opinion text C.. JOHNSON, Judge, Specially Concurring. 1 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. 12 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 *142 later 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. T3 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. T4 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. . This statement is based largely on the Tenth Circuit Court of Appeals' ruling in Newsted v. Gibson, 158 F.3d 1085, 1092 (10th Cir.1998), where the only evidence supporting the lesser offense was the defendant's own statement which was inconsistent with all other evidence and even *142 conflicted with other statements he had made about the crime. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5156641. Public record. Not legal advice.