# Smith v. State > Court of Criminal Appeals of Oklahoma · December 6, 1996 · 68 O.B.A.J. 112 URL: https://www.frixlaw.com/law-library/cases/9792790 ## Case - **Full name:** Roderick L. SMITH, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** December 6, 1996 - **Citations:** 68 O.B.A.J. 112; 932 P.2d 521; 1996 OK CR 50; 1996 Okla. Crim. App. LEXIS 63; 1996 WL 557818 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Strubhar, Johnson, Chapel, Lane, Lumpkin - **Cited by:** 54 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/9792790 ## How later opinions describe it (automated extraction) - holding “evidence that [children] witnessed the stabbing [death] of their mother supports a finding of extreme mental cruelty” - rejecting argument that the “great risk of death” aggravating circumstance is unconstitutionally vague and overbroad ## Opinion text ORDER GRANTING REHEARING Petitioner, Roderick L. Smith, was convicted of five counts of First Degree Murder in the District Court of Oklahoma County, Case No. CF-93-3968. He was sentenced to death on each count. From this Judgment and Sentence Petitioner perfected a timely appeal to this Court. Oral argument was heard on May 8, 1996, and a decision was rendered in a published opinion handed down by this Court on October 1,1996. See Smith v. State, 932 P.2d 521 (Okl.Cr.1996). Subsequently, Petitioner filed a Petition for Rehearing. Petitioner bases his request for rehearing upon the contention that the opinion is in conflict with authority not previously before this Court. See Rules of the Court of Criminal Appeals, 22 O.S.1991, Ch. 18, App., Rule 3.14(B)(1). Petitioner directs this Court’s attention to that part of the opinion which addressed the issue of whether Petitioner was entitled to an instruction on second degree depraved mind murder. The opinion correctly noted that an instruction on this degree of murder is warranted where the evidence supports a finding that the homicide was “perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” See 21 O.S.1991, § 701.8. However, the opinion went on to find that the facts did not warrant an instruction on this degree of murder because the Petitioner had not chosen his victims randomly. This analysis focused on the language “any particular individual” and construed it too narrowly, limiting its use to situations where a person’s wrath is not directed against any particular person. While second degree depraved mind murder may still apply to such situations, it has not been limited to such situations. Convictions for second degree depraved mind murder have been upheld in cases where the victim was specifically targeted. See Quit-Hams v. State, 779 P.2d 990 (Okl.Cr.1989); Dorsey v. State, 739 P.2d 528 (Okl.Cr.1987); Hall v. State, 698 P.2d 33 (Okl.Cr.1985). Allowing that this crime has been applied to situations where the accused may have *540 intended to harm the victim but did not intend to kill, we find that under the facts of the present case, Petitioner was still not entitled to such an instruction. Given the evidence presented at trial, the only reasonable inference is that Petitioner specifically targeted his victims and that he intended to kill them. Again, the trial court did not err in failing to instruct the jury on the crime of second degree depraved mind murder. Finally, Petitioner asks this Court also to reconsider its ruling regarding whether Petitioner was entitled to manslaughter instructions. Again, Petitioner contends that the opinion is contrary to controlling authority. We have reviewed this allegation and have found that this issue was decided based upon appropriate controlling authority. Accordingly, for the reasons discussed above regarding the second degree depraved mind murder instruction, we find that the Petition for Rehearing should be GRANTED. However, no relief is warranted. IT IS THEREFORE THE ORDER OF THIS COURT that this Petition for Rehearing is GRANTED with no relief required. The Clerk of this court is directed to issue the mandate forthwith. IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 6th day of December, 1996. /s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge /s/ Charles S. Chapel CHARLES S. CHAPEL Vice Presiding Judge /s/ Gary L. Lumpkin GARY L. LUMPKIN Judge Concur in Result /s/ James F. Lane JAMES F. LANE, Judge /s/ Reta M. Strubhar RETA M. STRUBHAR, Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792790. Public record. Not legal advice.