explaining that where defendant enlists accomplices to assist in carrying out murder plan, defendant's leadership role warrants *413 consideration in imposing death penalty
How later courts described this case
- explaining that where defendant enlists accomplices to assist in carrying out murder plan, defendant's leadership role warrants *413 consideration in imposing death penalty
- no error in trial court's refusal to instruct jury it could impose life or life without parole even after finding aggravating cireum-stance(s)
- instructions on a defense are to be given only when there is sufficient evidence on record to support that defense.
- instruction on lesser-included offense need only be given when there is evidence in the record to support such instruction
Written by the judges who cited it.
The opinion
CHAPEL, Judge,
dissenting:
I believe the defenses in this case were mutually antagonistic and the trial should *267 have been severed. However, even if I could accept the majority’s view that the defenses in this ease were not antagonistic, I could not agree that both these defendants should be required to join in them peremptory challenges. Title 22 O.S.1991, § 655 provides that co-defendants “shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges ... In prosecutions for first degree murder, nine jurors each.” This Court has stated that “[tjrial judges should be ever cognizant that the provisions of Section 655 do not require a showing of mutually antagonistic defenses to have a statutory right to separate peremptory challenges.” Neill v. State, 827 P.2d 884, 887 (Okl.Cr.1992). Neill divided inconsistent defenses into two categories: those that go to culpability and those that relate directly to guilt or innocence. Id. Only the latter were held to warrant granting each defendant separate challenges under Section 622, relying on Murray v. State, 528 P.2d 739, 740 (Okl.Cr.1974). Neill, 827 P.2d at 891 .
Reliance on Murray in developing this interpretation was improper. Murray was decided one year before Section 655 was amended to permit separate .challenges where inconsistent defenses exist. In Murray , this Court found the defendants’ defenses were mutually antagonistic because each defendant exculpated himself and inculpated the other, warranting severance. Id. at 740 . The Court then briefly discussed peremptory challenges, noting that defendants were denied their statutory right to nine peremptory challenges because each would have received those if severance had been properly granted. Murray could not discuss the provision for inconsistent defenses added to Section 655 the next year, and did not discuss the prejudice that arises when defendants are denied their right to exercise nine perempto-ries each in the same trial. That is the issue before us today.
The legislature in amending Section 655 intended to establish a lower standard than “mutually antagonistic” for separate challenges in a joint trial. 1 An inconsistent defense that relates directly to guilt or innocence is nothing more than a mutually antagonistic defense. This definition, adopted in Neill , should be discarded and this Court should adopt a definition of “inconsistent defenses” which comports with the statute’s plain language and the legislature’s intent. Defendants have inconsistent defenses if both defenses cannot be true, or one co-defendant must disprove or disparage the defense of the other in order to prove his defense.
By this definition, the defendants’ defenses in this case were inconsistent. Both defenses could not be true, and Bryson at least had to disprove or disparage Plantz’s defense in order to prove his own. Failure to give each defendant the full complement of nine peremptory challenges resulted in prejudice. The defendants used all nine challenges. Four challenges were used to remove jurors when defendants’ motions to remove those jurors for cause were overruled. Defendants made a record of their differing choices and the jurors each would have removed, had they had nine challenges.
Although 20 O.S.1981 § 3001.1 prohibits reversal on mere statutory technicalities unless they rise to the level of a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right, that is not the case here. Denying co-defendants with inconsistent defenses their full share of peremptory challenges is a substantial violation of a federal constitutional right. If a defendant does not receive the amount of peremptory challenges provided by state law, his “right” to peremptory challenges is “denied or impaired” in violation of due process. Ross v. Oklahoma, 487 U.S. 81, 89-91 , 108 S.Ct. 2273, 2279-80 , 101 L.Ed.2d 80 (1988). Appellants met the Ross standard by showing that they were denied the amount of peremptories provided by state law, and by indicating on the record the other jurors that *268 would have been stricken had each been granted the full complement of challenges.
. The standard would have to be lower than mutually antagonistic because once that level is met the question of peremptories in a joint trial is moot. At that point, separate trials are required, at which time defendants obviously also get their full complement of peremptory challenges.