“The record also contains testimony from Dr. Goodman that his conversations with Hain were relied upon in determining [the defendant’s] competency, and evaluating his mental state. There is no assertion that the information related by Goodman was offered to prove the truth of the matter asserted. Rather, the statement was used to evaluate [the defendant’s] state of mind . . . .”
How later courts described this case
- “The record also contains testimony from Dr. Goodman that his conversations with Hain were relied upon in determining [the defendant’s] competency, and evaluating his mental state. There is no assertion that the information related by Goodman was offered to prove the truth of the matter asserted. Rather, the statement was used to evaluate [the defendant’s] state of mind . . . .”
Written by the judges who cited it.
The opinion
CHAPEL, Judge,
specially concurring:
Our reversal today is not based on a “technicality”, nor is this reversal based upon a desire by the judges of this Court to let a “guilty person go free.” The reason we are compelled to reverse is very simple: Lambert was convicted and sentenced to die for a crime he was never charged with. 1 No court can allow such a conviction to stand. Every person has the right to know what crime they are § charged with, and to be able to defend themselves against that crime. The Constitution does not permit, and we cannot allow, anyone to be convicted for a crime they do not know they are accused of.
*508 Malice aforethought murder and felony murder are completely separate crimes under Oklahoma statutes. 2 They may be, and routinely are, charged together as alternative versions of Murder in the First Degree. However, the proof required for each crime is different. When a defendant is accused of malice aforethought murder, the State must prove that he intended to murder his victim. To prove felony murder, the State need only show that the defendant committed one of several particular felonies against the victim and death resulted. Felony murder can be proved in a variety of ways, including testimony that the defendant committed the felony charged.
Here, Lambert was charged only with malice aforethought murder. The District Attorney, Lantz McLain, had the opportunity to charge Lambert in the alternative with felony murder as well, but chose not to do that. Lambert thus prepared to defend against a charge of malice murder, and his defense was that he did not intend to kill the victims. To convince the jury, he took the stand and admitted committing the robbery and kidnappings, each of which could support a felony murder charge, but denied any intent to kill either of the two victims. This testimony made sense against a charge of malice murder, but amounted to a form of suicide when the jury was later instructed that they could convict on a felony murder theory. In the most literal sense, by admitting the robbery and kidnapping, Lambert convicted himself of felony murder when he had not been charged with that crime, did not know he needed to defend himself against that crime, and did not know he could be convicted of it.
Neither our decisions in Munson v. State 3 nor Hain v. State 4 control here. Munson clearly says that a defendant may be tried for felony murder if he is on notice of the underlying felony unless he shows that he was misled by the charging Information. 5 Lambert was clearly misled by the decision to charge only malice murder, coupled with the District Attorney’s refusal to charge him with felony murder in the alternative, since Lambert relied on those decisions when he chose what became a disastrous defense strategy. Lambert’s co-defendant Hain was also charged with malice murder and his jury also was subsequently instructed on the felony murder alternative. However, we did not reach this problem in that case because Hain never testified, so he was not prejudiced by the irregular charging of offenses. Munson does not give the State the ability to tidck a defendant into confessing, in open court and under oath, to a crime for which he will be subsequently convicted but with which he was never charged.
This problem could have been avoided if the District Attorney had charged Lambert with both malice aforethought and felony murder alternatives, a course of action which we have approved and which is routinely followed by prosecutors in this state. 6 No reasonable excuse exists for this failure. As it is, this Court must reverse the conviction so Lambert may be properly tried only for a crime he is charged with, an elementary principle required by the Constitution and demanded by fundamental fairness.
. Where the charge is malice murder and the jury is instructed on felony murder as well, if the jury returns a general verdict of guilty, there is no way to tell which alternative the jury used in determining guilt. Thus this Court must assume that Lambert’s conviction was for felony murder. Tibbs v. State, 819 P.2d 1372 (Okl.Cr.1992); James v. State, 637 P.2d 862 (Okl.Cr.1981).
. 21 O.S.1991, §§ 701.7(A), 701.7(B).
. Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied, 488 U.S. 1019 , 109 S.Ct. 820 , 102 L.Ed.2d 809 (1989).
. Hain v. State, 852 P.2d 744 (Okl.Cr.1993), cert. denied, - U.S. , 114 S.Ct. 1402 , 128 L.Ed.2d 75 (1994).
. Munson, 758 P.2d at 332 .
. It should be noted that this is the second death penalty case we have recently had to reverse involving this District Attorney's inability to properly charge crimes. See Pickens v. State, 885 P.2d 678 (Okl.Cr.1994).