Jackson v. State

LUMPKIN, Judge,

concur in result:

¶ 1 I concur in the results reached by the Court in this case. However, I cannot join in the analysis and verbiage utilized by the Court as to several of the issues raised in this appeal.

¶2 I have previously stated my belief this Court should adopt a unified Spuehler-type approach to evaluating the sufficiency of the evidence in all cases, whether the evidence is direct and circumstantial, or whether .the evidence is entirely circumstantial. See White v. State, 900 P.2d 982 (Okl.Cr.1995)(Lumpkin, J.: Specially Concurring). I continue to urge the Court to adopt that unified standard of review even as it applies to the proof of the state of mind and, in this case, our review of the determination by the trier of fact that the state had satisfied its burden of proof as to malice aforethought.

¶ 8 It appears the Appellant misconstrues the concept of when a lesser included offense instruction is warranted in a criminal proceeding. As we reiterated in Willingham v. State, 947 P.2d 1074, 1080 (Okl.Cr.1997),

a lesser included offense is a part of the greater offense and the establishment of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser included offense. Stated another way, an offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser. State v. Uriarite, 815 P.2d 193, 195 (Okl.Cr.1991); see also Jennings v. State, 643 P.2d 643, 645 (Okl.Cr.1982) (the elements of a lesser included offense must necessarily be included in the offense charged).

Willingham established once and for all second degree depraved mind murder is not a lesser included offense of first degree malice murder. Likewise, it is readily apparent second degree (escape from a penal institution) *899 murder does not meet the criteria for a lesser included offense.

¶4 The Appellant’s assertions that the trial court has a duty to instruct on all lesser included offenses seeks to embrace offenses that are not contained within the elements of the primary charge. Historically, convictions on a lesser included offense have been permitted because the lesser included offense is contained within the primary charge. Therefore, because it is a lesser included offense of that specifically charged, there is no due process problem. However, if it is not a lesser included offense, then a defendant has never been charged with that crime and the Court has not been vested with the authority to hold that person accountable for the uncharged crime. The United States Supreme Court, in DeJonge v. Oregon, 299 U.S. 353, 362 , 57 S.Ct. 255, 259 , 81 L.Ed. 278 (1937), has held that a conviction upon a charge not made in the information would be a denial of due process. See also Dunn v. United States, 442 U.S. 100, 106 , 99 S.Ct. 2190, 2194 , 60 L.Ed.2d 743 (1979). The Supreme Court has also stated it offends due process where an appellate court upholds a conviction on grounds that were not charged in the information nor the basis of the conviction. See Cole v. Arkansas, 333 U.S. 196, 201 , 68 S.Ct. 514, 517 , 92 L.Ed. 644 (1948); Dunn v. United States, infra. Similarly, this Court has stated that while “an insufficient information cannot support a conviction, it can support a conviction for any lesser included offense which is properly alleged.” Morris v. State, 603 P.2d 1157, 1161 (Okl.Cr.1979).

¶ 5 Granted, if a defendant requested an instruction of an offense not charged, one which is not a lesser included offense, the Court could say the conviction for that offense would be invited error. However, how can we have invited error and sustain a conviction when a person has never been charged with that crime? See also Schmuck v. United States, 489 U.S. 705, 716-718 , 109 S.Ct. 1443, 1441-1452 , 103 L.Ed.2d 734 (1988).

¶ 6 I would agree that First Degree Manslaughter, heat of passion, could be a lesser included offense of malice murder, based on an analysis of the elements of each offense, i.e. whether the elements of the lesser are included within the elements of the primary charge. To determine whether First Degree Manslaughter, heat of passion, is a lesser included offense of malice murder, one must look at intent, i.e. the malice aforethought intent to take human life versus a sudden heat of passion. I submit that the concept of heat of passion is fairly embraced and included within the element of pre-meditation. See Schmuck, 489 U.S. at 720 , 109 S.Ct. at 1452 ; Stevenson v. United States, 162 U.S. 313, 320 , 16 S.Ct. 839, 842 , 40 L.Ed. 980 (1896). A defendant in his defense could present evidence that he killed the person, knew what he was doing, but had a sudden heat of passion and that passion is what caused the homicide. Based on the evidence presented, the trial judge could find it sufficient to warrant an instruction on the lesser included offense of First Degree Manslaughter, heat of passion.

¶ 7 A survey of the statutes of first degree murder and first degree manslaughter in all fifty states reveals several states have statutes similar to Oklahoma’s. 1 In each of these states, manslaughter is a lesser included offense of first degree murder. In Wallace v. Indiana, 182 Ind.App. 256 , 395 N.E.2d 274, 275 (1979), the Indiana Court of Appeals was faced with the issue of determining whether or not heat of passion manslaughter could be a lesser included offense of malice murder. In finding it could, the Court reasoned:

Voluntary manslaughter is an unlawful, intentional killing of a human being, without malice and with premeditation. Although the statute adds ‘upon a sudden heat,’ it is only in the application of the definition to a given case that this element must be made use of, for there could be< no such thing as an unlawful intentional killing without malice, unless it was done upon a sudden heat. This mitigating fact reduces the crime to manslaughter, if upon the whole evidence *900 it appears sufficient to rebut the presumption of malice arising from a voluntary killing.

Id. 395 N.E.2d at 275 . That is the type of analysis that should be applied to our statutes.

¶ 8 In this case, counsel requested several instructions on what he argued were lesser included offenses to malice murder. As acknowledged in the Appellant’s brief, the trial court refused all of the requested instructions except for the first degree heat of passion manslaughter instructions. 2 In accordance with the above analysis, I find the trial judge gave the only lesser included instruction which was warranted in this case. The other requested instructions do not raise an issue of a lesser included offense of malice murder. Therefore, Appellant had no right to receive an instruction for an offense that was not fairly embraced within the primary charge. In this case, only first degree heat of passion manslaughter was appropriate.

¶ 9 As a part of the alleged errors raised in Proposition VIII, relating to instructions on lesser included offenses, Appellant also raises an issue regarding voluntary and involuntary intoxication as a theory of his defense. In addressing this issue as it relates to a defendant’s theory of defense, the Court states that it finds “it necessary to clarify the test to be used”. However, that clarification, in effect, creates more confusion for trial practitioners and judges regarding when a defendant’s theory of defense has been sufficiently supported by evidence to warrant an instruction.

¶ 10 In Kinsey v. State, 798 P.2d 630, 632 (Okl.Cr.1990), we said “a defendant is entitled to an instruction on his theory of defense where there is evidence to support it, even if such evidence is discredited”. We stated further:

[t]o warrant a separate instruction, a defendant’s theory of defense must be a legal defense recognized in the law i.e. statutes or case law, ... Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. Once presented, it is then the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. The defendant is then entitled to an instruction on any theory of defense supported by the evidence, as long as that theory is tenable as a matter of law. [citations omitted]. Id. at 633 .

¶11 I agree with the Court’s statement in footnote 5, that it is the responsibility of the trial judge to determine if the evidence is “sufficient” to support the defense instruction and that sufficient means a defendant has presented the quantum of evidence required to establish a prima facie showing of the defense. However, I am concerned about language in the opinion indicating the evidence should not be weighed by the trial court and the Court’s use of “evidence” or “enough evidence” terminology when the standard of proof is “sufficient evidence”. 3 As stated previously, I find the use of this “any evidence” terminology unsupported in the law. See Nance v. State, 838 P.2d 513, 517-18 (Okl.Cr.1992) (Lumpkin, J.: Concur in Part/Dissent in Part). All this language does is say the Court will not be bound by any objective standard for review or provide the trial court with any clarification as to what standard applies.

¶ 12 The problem is, the trial court must weigh the sufficiency of the evidence in order to decide whether an instruction should be *901 given. Some weighing of the evidence is necessary in order to determine whether a prima facie showing has been made. North Carolina has achieved a nice balance to this problem by holding that “in determining whether to give the substance of an instruction concerning a defense, the trial court must assess the evidence first for the legal principle it implicates, and second for the sufficiency, of the evidence itself’. North Carolina v. Marshall, 105 N.C.App. 518 , 414 S.E.2d 95, 97 (1992). “[T]he measure of legal sufficiency is the ‘any competent evidence’ standard.... Therefore, if there is any competent evidence in the record when viewed in the light most favorable to the defendant from which the jury could determine [the existence of the defense theory], then the defendant is entitled to instruction on the defense [theory].” Id. The Supreme Court of Idaho adopted a slightly different terminology in applying the same type of standard. That Court established the following four-step analysis for dealing with defense theories and lesser included offense instructions: (1) Identify the specific elements necessary for the requested instruction; (2) Define the statutory elements, or as is the case, the common law elements of the requested instruction; (3) Consider the evidence presented to determine whether such evidence supports the requested instruction; and (4) If the requested instruction is not supported by the evidence, the Court must reject the requested instruction. See Idaho v. Hawley, 128 Idaho 874 , 920 P.2d 391, 395-96 (1996). In Michigan v. Lemons, 454 Mich. 234 , 562 N.W.2d 447, 454 (1997), the Court defined prima facie evidence as “evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports.”

’ ¶ 13 The Court’s statement in this opinion that “[t]he evidence of the defense may come from any source and should not be weighed by the trial court” is in direct conflict with a large body of law defining the role of the trial judge in the course of a trial and the responsibility of determining when an instruction on a theory of defense should be given. When determining whether sufficient evidence has been presented to warrant the giving of an instruction, it is elementary that the trial judge must “weigh” the evidence. The judge must determine whether legally sufficient and competent evidence has been put forth to establish a prima facie showing which would warrant an instruction on that defense. In determining whether a prima facie showing has been established by competent evidence, the trial judge must analyze the evidence presented, together with the burden of proof and the elements of the defense.

¶ 14 Rather than clouding the issue of when an instruction on a defendant’s theory of defense should be given, we should truly clarify the objective criteria trial judges can utilize. I urge the Court to further delineate the objective process we set out in Kinsey by adopting additional criteria drawn from the jurisdictions set out above. We should establish the following procedure for applying the standard set out in Kinsey :

1. To warrant a separate instruction, a defendant’s theory of defense must be a legal defense recognized in the law, i.e. statutes or caselaw. (Kinsey at 633 )

2. Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. (Kinsey at 633 )

3. Once presented, it is the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. (Kinsey at 633 )

4. The measure of legal sufficiency is the “any competent evidence” standard as applied to establishing a prima facie proof of the defense. Therefore, if there is any competent evidence in the record, viewed in the light most favorable to the defendant, from which the jury could determine the existence of the legal defense, then the defendant is entitled to an instruction on the defense.

5. In applying the “any competent evidence” standard, the Court should (a) Identify and define the specific elements *902 necessary for the requested instruction, i.e. either statutory or ease law elements for the defense; (b) Consider the evidence presented which meets the standard to determine whether such evidence supports each element of the defense; and (e) If the requested instruction is not supported by competent evidence the Court must reject the requested instruction.

6. In deciding whether a defendant has established a prima facie proof of the defense using the “any competent evidence” standard, the Court shall determine if the competent evidence presented is good and sufficient on its face. That means evidence which, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the defendant’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports. The issues of whether the evidence has been rebutted or contradicted are questions of fact for the jury to decide under proper instructions by the Court. The Court shall review the evidence presented to determine if the defendant has established prima facie proof of the defense which would warrant an instruction on the defense without speculating on whether the jury will find the evidence contradicted or rebutted.

¶ 15 Applying this criteria to the facts of this case, I agree with the Court that Appellant failed to present sufficient evidence to support the giving of instructions on voluntary intoxication.

V16 As I have stated many times before, we need to be consistent and give the trial court clear guidance as to the rule of law to be applied and the standards to be utilized in determining the application of that rule of law. Both in its’ discussion of lesser included offenses and instructions on a defendant’s theory of defense, the Court confuses rather than clarifies the issues. Rather than giving objective criteria the Court creates many shades of gray which do not enhance the administration of justice in our courts. By establishing clear, objective criteria in our analysis of issues on appeal, we provide the helpful guidance trial practitioners and judges deserve. At the same time, we discipline ourselves by providing a consistent method for reviewing the cases which come before us on appeal. That discipline ensures the consistent application of these principles and protects the system of justice from natural human vacillation based upon how individuals might view the facts after the fact.

. These states include California, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Nebraska, South Dakota and Wyoming.

. The Court's confusion regarding which instructions were requested and given can be resolved by a review of the record. Appellant's requested instructions on Manslaughter referenced OUJI-CR 455 which is the "Manslaughter in the First Degree by Heat of Passion-Elements” instruction from the original OUJI-CR instruction book. Under that instruction, element three had two options, i.e. "Inflicted [in a cruel and unusual manner] [or] [by means of a dangerous weapon]”. Instruction 24 given by the Court in this case tracks OUJI-CR 455 and references OUJIOR 912, the instruction format for lesser included offenses. Therefore, whether construed as a manslaughter first degree heat of passion or dangerous weapon instruction, it is a proper instruction of the law under the facts of this case.

. In this case, the burden is confused when in Paragraph 68 the Court says "[w]e find that Jackson has failed to present evidence ...” and then in Paragraph 70 says "[w]e find that Jackson failed to present enough evidence ...”