# Lay v. State

> Court of Criminal Appeals of Oklahoma · February 12, 2008 · 179 P.3d 615

URL: https://www.frixlaw.com/law-library/cases/9797252

## Case

- **Full name:** Wade Greely LAY, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** February 12, 2008
- **Citations:** 179 P.3d 615; 2008 OK CR 7; 2008 Okla. Crim. App. LEXIS 6; 2008 WL 366150
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Chapel, Johnson, Lewis, Lumpkin
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by a later decision.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797252

## Opinion text

LUMPKIN, Presiding Judge,
concurring in results.
¶ 1 I concur in the results reached by the Court in this case. However, I have a problem when the Court says, when discussing the appointment of standby counsel, that it “is not now required by either the State or Federal Constitution,” and then holding “we require that the trial court appoint standby counsel in all capital cases where an indigent defendant is representing himself/herself.” While that decision might be the best policy for a trial judge to follow, there is no basis in the law to make such a pronouncement. In fact, it violates the holding in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975) that allows a defendant to knowingly waive the right to counsel. It is improper to force a standby counsel on a defendant who does not want standby counsel. This is an example of an appellate court wanting to impose its view of what is a good practice on the trial courts while disregarding what the law says about the issue. While I agree that in the proper case this would be the best practice, I cannot join in the carte blanche ordering it in all cases.
¶ 2 I also disagree with the Court’s analysis of pro se Proposition VII regarding the circumstantial evidence instruction. This Court’s decision in Easlick v. State, 2004 OK CR 21 , 90 P.3d 556 , fully set out the historical legal basis for the Court’s decision to abolish the antiquated and legally unsupportable “reasonable hypothesis test” for circumstantial evidence. That decision controls over the now vacated by implication OUJI-CR (2d) 4-77. Trial judges are required to instruct based on the current law, not on what the law used to be. Therefore, the Court’s statement that OUJI-CR (2d) 4-77 is still applicable is a gross misstatement of the law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797252. Public record. Not legal advice.