Jackson v. State

LANE, Judge,

dissenting:

VI I respectfully dissent to the result reached by the majority of this Court. I applaud and concur with the majority’s clarification of the test to be used in determining whether an instruction on a defendant’s theory of defense should be given. However, the majority falls into the same trap as the trial court by picking out evidence which “belies” or discredits the evidence supporting the defense and misapplies the test announced. The weighing of the evidence by the majority is a job left for the jury. “It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story.” United States v. Bailey, 444 U.S. 394, 414-15 , 100 S.Ct. 624, 637 , 62 L.Ed.2d 575 (1980).

¶ 2 I find that the District Court’s failure to instruct on the defense of voluntary intoxication constituted an abuse of discretion and created reversible error. Using the test announced'by the majority, I would find that there was evidence presented which would support a prima facia case of voluntary intoxication.

¶ 3 Jackson testified, during the first stage of trial, that he consumed a “fifth” 1 bottle of what he thought was Alize, an alcoholic beverage of unknown alcohol content, less than half of a quart bottle of 3.2 beer and took two puffs of a marijuana cigarette prior to the events that caused Ms. Cade’s death. Jackson started drinking the Alize at about 10:15 a.m. and finished drinking the bottle within 15 minutes. Jackson took the two puffs of the marijuana cigarette before they purchased fried chicken for lunch. *903 Jackson drank the beer after getting the chicken but before stopping at the motel.

¶ 4 Appellant testified that he was feeling “high” when he got to the motel room. Jackson did not remember going into the motel room, but remembers parts of being in the room. He guessed that he was “under the influence of intoxicating liquor” at the time.

¶ 5 Jackson remembered having sexual intercourse with Ms. Cade. He remembered that after that they sat talking about their relationship. He got up from the bed and went to the shower. He turned around and Ms. Cade was standing there hollering, screaming and kicking and hitting him. He said that he grabbed her and they wrestled to the floor.

¶ 6 Jackson did not remember how he got the box knife in his hand. He testified that he didn’t remember cutting her. The next thing he remembered was sitting on the bed. He didn’t remember wrapping the box knife in a wash cloth and putting it under the mattress. He didn’t remember taking Ms. Cade’s jewelry or watch. He remembers being in the Jeep after that, but didn’t remember driving the Jeep.

¶ 7 The next thing he remembers clearly is being in a field, getting up and starting to walk. He remembers getting a ride from three guys who took him to some apartments on Southeast 15th where his sister worked. He got to the apartments at about 6:00 or 6:30 p.m.

¶8 Jackson testified that he didn’t remember everything because, “[bjesides being upset, I guess I was high off the beer and that bottle of stuff, I guess. I don’t know.” This equivocating testimony alone would not be sufficient to show that Appellant was so intoxicated that he could not form malice aforethought. However, Jackson presented testimony regarding how alcohol, in an amount consumed by him, would effect a person.

¶ 9 Dr. Doniea testified that, if two hours had elapsed after Jackson drank the alcohol and beer, his blood-alcohol content would be .19%. Doniea testified that a person with a .20% or greater blood-alcohol level would be in a stupor with markedly diminished awareness of things going on around him and have diminished ability to focus attention or to perceive what is happening around him. He would also have severely impaired motor functioning. The testimony of Jackson along with the testimony of Dr. Doniea was sufficient to support the giving of instructions on the defense of voluntary intoxication.

¶ 10 The trial court decided not to give the instruction on voluntary intoxication. In doing so, the court weighed Jackson’s in-court testimony against his earlier video taped confession. The trial court believed that Jackson related sufficient details about the events leading to the death of Ms. Cade and sufficient details of events after the death to negate the instructions on voluntary intoxication.

¶ 11 However, in ruling that the instruction was not warranted, the trial court stated “based upon that, this Court did not believe that Mr. Jackson demonstrated beyond a reasonable doubt that he was incapable of performing the requisite malice aforethought elements of the murder in the first degree offense, which put the Court in the position of not granting those instructions for the reasons I have articulated in the record.”

¶ 12 The trial court’s recitation that he did not believe that Jackson had “demonstrated beyond a reasonable doubt” his theory of defense shows the trial court’s complete abuse of discretion. This Court has never adopted a standard so high. Even our most recent cases do not announce a test so high.

¶ 18 The test found in Valdez v. State, 1995 OK CR 18, ¶¶ 56-57 , 900 P.2d 363, 379 , cert. denied, 516 U.S. 967 , 116 S.Ct. 425 , 133 L.Ed.2d 341 and Charm v. State, 1996 OK CR 40, ¶ 13 , 924 P.2d 754, 761 , 2 that a defendant is required to present evidence sufficient to raise a reasonable doubt concerning his ability to form the specific intent to kill because of intoxication before instructions must be given, is plainly wrong. Once a defendant presents evidence of a defense, it is the State’s burden to prove beyond a *904 reasonable doubt that the defense is invalid or unbelievable.

¶ 14 In one of the primary cases on the giving of defense instructions we stated that “the jury must be advised of defendant’s theory of defense where there is evidence to support it, even though such evidence is discredited.” Holt v. State, 1955 OK CR 2, ¶ 112 , 278 P.2d 855, 857 ; also see Tully v. State, 1986 OK CR 185, ¶ 17 , 730 P.2d 1206, 1211 . In Nance v. State, 1992 OK CR 54 , 838 P.2d 513, 515 , this Court held that a criminal defendant must be afforded the opportunity to have a jury consider his theory of defense regardless of the relative merit of the evidence offéred in support of the defense. “Any evidence, without consideration of its veracity, in light of the weight of the evidence, requires that instruction be given so that the jury may make the ultimate decision whether to accept or reject the offered defense.” Id. (citations omitted).

¶ 15 In the present case, Jackson did not testify that he had sufficient recollection to give details concerning events prior to, during or after the death of Wendy Cade. The trial court thought otherwise and believed that Jackson had not provided sufficient evidence to show “beyond a reasonable doubt” that he was so intoxicated that he could not form the requisite malice aforethought element. Furthermore, as evidence of an abuse of discretion, the trial court, in his Capital Felony Report, indicated that the evidence did not foreclose all doubt respecting Jackson’s guilt and that' the trial court believed that Jackson was under the influence of alcohol. 3 Clearly, the trial court believed that intoxication was a factor in this case. However, his rendition of an improper test caused him to abuse his discretion.

¶ 16 It is both the weighing of the evidence and the use of a clearly improper test that constituted an abuse of discretion in this case. A defendant does not have to provide sufficient evidence to prove his defense beyond a reasonable doubt in order to get a defense instruction. He only has to provide evidence to support the defense. Then it is up to the jury, on proper instructions, to decide if the evidence is sufficient. For these reasons, this case must be reversed and remanded for a new trial.

¶ 17 I am authorized to state that Judge STRUBHAR joins in this dissent.

. A "fifth” is one fifth of a gallon or four fifths of a quart. Webster's II New Riverside University Dictionary 476 (1988). A 750 ml bottle is usually called a "fifth.”

. In Charm , the voluntary intoxication instructions were given, but the jury did not have the option of a lesser included offense. Therefore, it is distinguishable from the present case.

. Section C, Questions 11 and 26 of form 13.12, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1997, Ch. 18, App.