finding counsel effectively conceded defendant's guilt of murder by telling prospective jurors in voir dire that there was "no question" of defendant's guilt
How later courts described this case
- finding counsel effectively conceded defendant's guilt of murder by telling prospective jurors in voir dire that there was "no question" of defendant's guilt
- holding error alone does,not. reverse convictions in Oklahoma, only error plus injury
- expressly referring to this error
Written by the judges who cited it.
The opinion
LUMPKIN, Judge:
Specially Concur.
{1 I concur in the Court's decision to affirm the judgments and sentences in this case and the modification of Count 8. However, I write to point out a statutory distinction to the general rule addressed in Proposition II. In footnote 18, addressing the issue of whether there was sufficient evidence of voluntary intoxication which necessitated the giving of a lesser included instruction, the Court quotes Wharton on Homicide for the proposition that if sufficient evidence exists to meet the voluntary intoxication requirements then either "manslaughter or murder in the second degree" would be the proper lesser included instruction. - While legal treatises are valuable in conveying the general legal principles and practices, it is necessary to go to specific statutes to determine if the legislature has followed the general principles or has deviated from them through the enactment of specific penal statutes.
2 Determining whether instructions on a lesser included offense should be given is a two step analysis. First, it must be determined whether the alleged lesser offense is a legally recognized lesser included offense of the charged offense. Shrum v. State, 1999 OK CR 41, ¶ 7 , 991 P.2d 1032, 1035 . This Court has traditionally looked to the statutory elements of the charged crime and any lesser degree of crime to determine the existence of any lesser included offenses. Id. This determination is not case-specific and can only be made by looking at the statutory elements. Id., 1999 OK CR 41, ¶ 5 , 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in results). A lesser offense is a part of the greater offense when the establishment of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser included offense. 22 00.98.2001, § 916; State v. Uriarite, 1991 OK CR 80, ¶ 8 , 815 P.2d 193, 195 . See also *997 Schmuck v. United States, 489 U.S. 705, 716-717 , 109 S.Ct. 1443, 1451 , 103 LEd.2d 734 (1989).
T 3 The second step of the analysis looks to the evidence to determine whether prima facie evidence of the legally recognized lesser included offense has been presented at trial. Bland v. State, 2000 OK CR 11, 156 , 4 P.3d 702, 719-20 . See also Ball v. State, 2007 OK CR 42, ¶ 32 , 173 P.8d 81, 90. Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater. Eigember v. State, 2007 OK CR 29 , ¶ 111, 164 P.3d 208 , 386 citing Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir.1999).
¶ 4 Historically, Second Degree Murder has been recognized as a lesser included offense of First Degree Murder. 1 See Simpson v. State, 2010 OK CR 6, 116-18 , 230 P.3d 888, 897 ; Ball, 2007 OK CR 42, ¶ 37 , 173 P.3d at 91 ; Williams v. State, 2001 OK CR 9, ¶¶ 22-28 , 22 P.3d 702, 711-712 ; Freeman v. State, 1994 OK CR 37, ¶¶ 9-12 , 876 P.2d 283, 286 ; Dennis v. State, 1977 OK CR 83, ¶ 24 , 561 P.2d 88, 94-95 ; Gibson v. State, 1970 OK CR 171, ¶¶ 9-10 , 476 P.2d 362, 364-865 ; Jewell v. Territory, 4 Okl. 53 , 43 P. 1075, 1078-1082 (1896).
15 Next, looking at the evidence in this case, no rational jury would have acquitted Appellant of First Degree Murder in favor of a finding of guilt of Second Degree Murder. Therefore, the trial court did not abuse its discretion in failing to submit a jury instruction on Second Degree Murder as a lesser included offense of First Degree Murder.
. But see, contra Willingham v. State, 1997 OK CR 62, ¶¶ 20-27 , 947 P.2d 1074, 1080-1081 (second degree murder is not a lesser included offense of first degree murder) overruled in part, Shrum, 1999 OK CR 41, 110 , 991 P.2d at 1036 . Due to the confusion over the years and a desire to give the trial bench and bar a bright line to apply in determining lesser included offenses as to Murder, First Degree, I concurred in Willing ham. However I accede to the current interpretation to ensure the trial bench and bar have a unified method to analyze future cases.