Fairchild v. State

1999 OK CR 49 FAIRCHILD, Appellant, Stephen

Richard Oklahoma, Appellee.

STATE

No. F-96-121. Appeals of Oklahoma.

Court of Criminal 7, 1999.

Dec. Rehearing on Denial of

As Corrected

May Stephen tried Richard Fairchild was jury and convicted of Murder the First O.S.1991, 701.7(C),

Degree, 21 in Oklahoma County Case No. CF-93-7103. District Court aggravating found one circum- stance, especially that the murder was hei- nous, cruel, punishment set atrocious Wilson, Major The Honorable death. Dis- Judge, imposed trict the death sentence. original is before the Court appeal. Broomhall, Three-year-old Adam who ,as

weighed pounds, died a result of brain damage against he when was thrown caused wing surface of folded-down vertical th.e drop-leaf of a table mother’s live-in his Stephen Richard Fairchild. The boyfriend, hours, injury morning early occurred in the .Sunday, November Adam’s while mother, Broomhall, Stacy asleep in the was never-,regained Adam bedroom. conscious- morning. and he died later that Fair- ness living Stacy had her been and City. three children in Midwest ¶4 day killed, before Adam Stacy Fairchild and drank beer most of the evening. police afternoon and Fairchild told drinking p.m. beer 2:00 he had started about and had consumed about twelve cans of beer p.m. evening they 9:00 That visited Sta- Stensaas, Wallace, Pattye Sandra Okla- mother, Fickland, in cy’s who lived Jena Attorneys, County Assistant District homa Oklahoma, City. The children north watched City, for the at Trial. Oklahoma State while the TV and ate snacks one room Albert, John Assistant Public Defender Of- adults TV and drank beer anoth- watched Defenders, City, for fice of Public Oklahoma Stacy ready to er. When Fairchild and were Defendant at Trial. leave, they both too Fickland insisted were Peters, Appellate Lee Ann Defense Jones arranged for her intoxicated to and drive Counsel, Capital Appeals Direct Divi- Wade, seventeen-year-old daughter, Charity sion,Oklahoma Indigent System, Defense for to drive them home. appeal. Appellant on ¶ Originally planned stay Ms. Wade Edmondson, Attorney Drew General W.A. Stacy’s overnight resi- at Fairchild’s and Oklahoma, Whittaker, Robert Assistant plans changed dence. These when Fairchild General, City, Attorney Appel- for Oklahoma put made sexual advances toward her. She appeal. lee on her the kids to bed and called a cab to take angry got got home. Fairchild and out a OPINION ON REHEARING Charity if He told some- baseball bat. LILE, Judge: pick driver came to her one other than cab him Opinion following up, going he was to beat to death. He This is issued grab her arm her she wasn’t granted Appellant’s order which Pe- tried to and told Court’s finally Rehearing origi- leaving. able to-leave tition for and withdrew She was p.m. had Opinion August 1998. cab sometime before 10:30 She nal herein dated left, originally she and he was did not seek the checked on Adam before State penalty death this case. The first District sleeping his bed. arraignment place on Court took the same later, three hours Approximately as, after, day immediately Appellant and got up crying and out of bed. Adam woke preliminary hearing. bound over at Two up” Fairchild told Adam to “hush it weeks before trial the filed a motion State mouth, rupturing him in the the inside struck preliminary hearing remand for further upper lip. stop Adam still did not of his purpose alleging prior the stated convic- crying. Fairchild then held Adam’s chest granted tions. The trial court the State’s up against then his a hot wall buttocks Thereafter, Page motion. the State did file a heater. Adam suffered severe second-de- Information, alleging prior to the Two two gree grid-patterned on his burns chest and delay convictions. in no This resulted of the bottom, screaming. and was now trial and there was no violation of O.S. ¶ 7 Fairchild admitted to Detective Bur- However, day, the next before later, couple days pushed “I I ton think arraignment the second District Court against up up him the heater and held him days trial, jury ten before scheduled there,” and, screamed, “The he more Bill seeking State filed a of Particulars just kept hitting more I him.” Another penalty. requested, death Defense counsel ruptured blow struck Adam’s left ear and his granted, and was a continuance of the Finally, eardrum. Fairchild threw Adam setting. trial table, against drop-leaf dining and when Appellant filing claims that the floor, stopped screaming. Adam hit the he Page Two was a as it would serve no sham stopped breathing. He also purpose in a murder case where the mini bedroom, 8 Fairchild went woke mum sentence is life. The cases cited Broomhall, Stacy up and called 911. Par- longer applicable they are no shortly police. amedics arrived and then the present decided before our bifurcated were Fairchild claims he was intoxicated. Howev- State, procedure trial existed. In Seibert v. er, he was not too drunk write out a ¶ 205, 17, 790, 794, 1969 OK CR 457 P.2d we detailed, legible, story in coherent his own facing said that even if a defendant handwriting, claiming running in Adam was charge with a minimum sentence of life im right the house and “ran into the table.” prisonment, possibility if there ais that the ¶ Adam was rushed to Children’s Hos- jury court will instruct the on lesser included pital City every in Oklahoma where effort to trial, proper offenses at it is for the State to failed, pronounced save his life and he was Page alleging any felony file a Two former morning. autopsy dead later that An estab- bifurcated, convictions. The trial should be injury lished that to Adam’s head had result- Page and the Two would be read to the hemorrhaging ed in swelling severe in jury in stage, pertinent. the second if Id. right half of Adam’s brain and had ¶ 13 This Court does not condone ap- caused his death. Adam had sustained delay in filing the State’s the Bill of Particu proximately twenty-six body blows to his in- here, appropriate remedy lars. The howev cluding several to his head. er, striking is not the the Bill of Particu lars. The Hunter decision turned on the PRETRIAL ISSUES Court’s concern that the1 defendant must prepare have sufficient time to for trial. The Filing A. of the Bill of Particulars Bill of Particulars in Hunter was filed within Arraignment after First ¶19, 5, days seven of trial. 1992 OK CR ¶ Appellant argues Proposition VIII By granting P.2d at 65. Fairchild an ade that the Bill of Particulars should not have quate upon request continuance his been allowed the trial court because the case, prevented any the trial court error. prior State failed to file it to or District ¶ arraignment required by sub-proposition Court as Hunter v. 14 In a which State, 64, original Opinion, 829 P.2d 65. we failed to address our delay, speedy trial tributed to the and that he has Appellant claims he was denied shown delay, reject filing resulting prejudice the Bill of Particulars. from the late no we delayed the trial for a claims that this proposition He his of error and find that he was find, however, that year and a half. We right not denied his constitutional to a delay not caused the late much of the was speedy Simpson trial. 1982 OK CR claim, considering ¶¶ filing. his we must 35, 3-7, (Simpson 274-75 delay, length consider the causes for the delay by fifing created further his motion for acquiesced in delay, whether commitment); psychiatric examination and delay, and whether ¶¶ or contributed to the Stohler v. delay. prejudiced by the Appellant was (Stohler jail 1088-89 was held in 514, 529-536; Wingo, Barker v. 407 U.S. convicted). years over three before he was 2182, 2191-95, 117-18 S.Ct. 33 L.Ed.2d (1972); Rainey v. Competency B. to Stand Trial granted 19 The trial court the defense ' changed lawyers Appellánt three request competency for a evaluation and held during period, and each hew law- times post-examination competency hearing. 22 yer adequate prepare needed time to for O.S.1991, XVI, Proposition Ap- 1175.4. In Also, just days trial. before the November pellant argues he was held to the unconstitu- setting, Appellant’s trial attor- proving compe- tional standard of his lack of ney application Appel- filed an determine tency by convincing clear and evidence. See result, competency. lant’s As a the case was Oklahoma, Cooper v. 517 U.S. 116 S.Ct. continued. This resulted several months 1373, 134 L.Ed.2d 498 . Fairchild is delay, competency determination correct when he asserts this unconstitutional competency hearing post-examination in place standard was at the time of his 26,1995. April not concluded until hearing 'applied it him. and that was Further, although Appellant claims ,¶ post-evaluation 20 Evidence at the com- “extremely prejudiced” by delay in he was petency hearing the-parties’ stip- consisted of trial, preju- he fails demonstrate examining psychologist ulation that only “deprived He claims he was not dice. testify competent Fairchild would choosing, subjected the counsel of his he was report filed stand trial as indicated penalty actually to the death sentenced Kelly court. Forensic psychologist says depri- nothing to die.” He more about Shannon, Ph.D., reported to the court that completely and therefore vation of counsel allegations explain Fairchild able to was part explain support fails to that of his or him, against opin- that he voiced a “favorable assertion. attorney, an “aver- ion” toward his and had ¶ prejudiced claim that he was His knowledge. He had no bi- age” courtroom wrong. he was death is because sentenced to. regarding perceptions zarre or beliefs prevail argument he have To with this would legal process. improper delay to show that caused the sen- filing If tence. It did not. he meant that the ¶ psychologist 21 The concluded necessary, of the Bill of Particulars was a history injuries spite that in of a of head receiving to his antecedent condition dependence, Mr. Fairchild was able chemical correct; penalty, death he would be but this attorney in a rational man to work with his regardless would be true of when it was filed. only ner his own defense. The evidence delay particular did not cause sen- competence supporting finding of lack of imposed. tence The sentence of death re- came from statements Fairchild’s attor law, facts, jury’s sulted from the and the ney to the effect he did not believe Fairchild — from a denial of decision this ease help adequately with his defense. could speedy trial. gave opin this Counsel no factual basis for ion, presented. Considering length of time and no other evidence was that the completion competent Fairchild fifing charges from the of The trial court found of inordinate, Appellant stand trial.- trial was not con- subject agreed Fairchild trial Because was court and as a result denied proof, Appellant’s improper request ed to the standard of an instruction on vol right untary since Voluntary waived his trial intoxication. intoxication is competency post-examination hearing, on his a defense intent crimes and a de this Court will conduct novo review on Kreijanov not to intent crimes. See competency using proper sky standard of 706 P.2d proof. See Ochoa v. ¶¶ 590-91, and Smith v. Degree ¶ 25 First Murder of Child ¶50, statutorily in 21 defined proper proof 528. The of pre standard is a 701.7(C), § which effect of as Novem ponderance likely of the evidence: that more ber 1993: not, competence than lacked Fairchild person “A commits murder in the first counsel, opinion unsup stand trial. The of degree when of the death a child results facts, ported by any does not meet this bur from the willful malicious injuring, or tor- Therefore, applying den. the correct stan turing, using maiming2 or of unreasonable proof, dard of find carry we Fairchild did not person force willfully said or who shall incompetence, prove his burden to and he cause, procure permit any or of said acts to competent trial. to stand upon pursuant be done the child to Section 843 this title.” FIRST STAGE ISSUES O.S.1991, § 26 Title 21 8433 stated as

A. ISSUES CONCERNING DEFENSE of November 1993: OF VOLUNTARY INTOXICATION “Any parent or other who shall Mens Rea willfully injure, maliciously torture, or charged that, 23 The Information maim, upon use force unreasonable (18), age eighteen under the sexually “THE CRIME OF MURDER IN THE child, abuse such those terms are de- FIRST DEGREE WAS FELONIOUSLY fined Section 845 of this title or who COMMITTED IN OKLAHOMA COUN- cause, shall TY, procure permit any OKLAHOMA, BY said RICHARD STE- done, upon acts to be shall conviction be PHEN FAIRCHILD 33 YEARS OF punished by imprisonment in the State AGE WHO WILFULLY1 AND UNLAW- Penitentiary....” FULLY KILLED ADAM[ ] SCOTT BROOMHALL, A CHILD AGED 3 BY ¶ 27 Opinion In a 1991 Degree a First INJURING OR OTHERWISE USING Murder dispositive of a Child case UNREASONABLE] FORCE UPON issue, Judge said that Johnson the mens ADAM SCOTT BROOMHALL IN- 701.7(C) § rea for “general was a intent” FLICTING MORTAL WOUNDS “willfully” under the “maliciously”: terms WHICH CAUSED HIS DEATH ON 701.7(C) “Appellant complains ... NOVEMBER, THE 14TH DAY OF lacks mens We ... rea. must dis- 1993....” 701.7(C) agree. The intent for is found ¶ 24 Early question in the trial general § in 21 O.S. 843 under intent arose whether intent to ‘willfully ‘maliciously’. was an ele of See Drew v. State, charged. 224, (Okl.Cr.1989). ment of prosecutor 228, the crime 771 P.2d argued “specific injure” intent to assignment This of error lacks merit.” State, not an charged. 125, element of the crime as 22, The Workman v. 1991 OK CR "willfully” 1. force, ."Willful” spellings and are alternate "torturing” unreasonable terms "wilfully.” spellings "maiming” of "wilful” and required Both are would not be in an Informa- cases, O.S.1991, 701.7(C) used in the and statutes and tion § both are filed under 21 correct. injuring using which of unreasonable force is alleged. 2. "torturing” "maiming” Neither nor charged incorporated in the Information in this case. Since 3.Later amended and in 10 necessarily injuring both using O.S.Supp.1995, § terms include and 7115.

619 378, (Judges and Parks crimes. This limited defense was P.2d 383 Brett at first 824 Murder, grounds) (emphasis applied only premeditated other and dissented on added). could reduce Murder in lesser Degree Manslaugh cluded of “First offense 701.7(C) ¶28 “general § is a Since ter,” “general crime, a intent” if the defen crime, “specific a intent” and not intent” was, dant so intoxicated that he could not specific intent due to defense of “lack premeditated design form the kill. Chea voluntary inapplica is therefore intoxication” State, 566, 919, dle v. 11 Okl.Cr. 149 P. controlling is a case which ble. Workman Later this limited defense was extended to brought was not to the attention of this “specific other intent” crimes. appeal. Workman Court briefs on subject clearly applica states the law on this ¶32 statutory specific definition of Appellant Fairchild of November ble to usually intent crimes' include the words “in 1993when Broomhall was killed and Adam (or to”) to” by tent “intention followed a time of Fairchild’s trial and conviction. a further statement of intended action or long 29 Workman is consistent a See, consequence:' example, Degree for First line of criminal law cases in Oklahoma Murder,5 Aforethought Larceny,6 Malice Sec jurisdictions distinguished other that have Degree Burglary,7 ond Assault with Intent — “general “specific in between intent” Felony Kidnapping,8 Commit a and As syllabus by tent.” Court the 1953 Battery Dangerous Weapo sault and with a State,4 case of Vandiver v. we said: An n.9 aberration to this rule is Hocker State, 12, 51, smith v. CR

“Two classes ‘intent’ exist law, incorrectly ‘general which this Court held the criminal a so-called in- ‘Abuse, 843, § that Child 21 tent’ which must exist in all crimes and a by implication Degree therefore First Mur specific further mental element known as Child, O.S.1991, 701.7(C), § 21 particular der of which intent which is essential added.) reference, incorporates § (Emphasis spe 843 have a crimes.” requirement. § cific intent Neither 843 nor 1910, 30 Oklahoma have Since statutes 701.7(C) “intent,” contain the word do nor provided voluntary intoxication is no they contain a intent element or re by a defense to a crime: “No act committed quirement the defendant intend some voluntary in a while state intoxi- consequence. further act or future cation deemed criminal rea- shall be less having 21 son of his been such condition.” ¶33 hand, statutory On other O.S.1991,§ 153. definition of crimes which have held to be we However, (or 1915, “general has since Oklahoma intent” crimes held not to be crimes) generally exception made a limited case-law to do not con- by providing may statutory that intoxication con tain word “intent” within their See, Assault,10 partial example, Ag- types stitute defense to certain of definition. State, 617, State, 153, ¶¶ Ryans 4. Vandiverv. Okl.Cr. P.2d (1953), part grounds by (with therein) Reversed in on other intent to steal P.2d 558-559 ¶23 & n. added). Parker v. OK (emphasis 4, (Parker 986 & n. held the Informa allege tion need not all elements of crime with Vandiver, Okl.Cr. 261 P.2d at 624- precision jurisdiction in order to confer on the (assault (1953) with intent to commit court). felony) (kidnapping secretly with intent to con- fine) added). ¶¶39, 46, 67, (emphasis 5. Patton v. 270, 286, 287, 292. "Malice is that unlawfully away deliberate intention to take 1, 4-7, ¶¶ 210, Quinn OK CR 485 v. 1971 9. O.S.1991, being....” 21 life of a human 474, (with bodily P.2d 476 intent to commit 701.7(A) added). (emphasis § 641, harm) O.S.1991, added); (emphasis §§ 21 642 and 645. State, 11, Copperfield 6. v. 37 Okla.Crim. P. 255 590, (1927) (stealing 591 an automobile with State, 63, 6, ¶ Joplin deprive v. 1983 OK CR 663 P.2d it intent to the owner thereof and convert 10. 746, benefit) added). (emphasis 747. to his own use and 620 Arson,12 Battery,11 follows: “Malice is that deliberate inten-

gravated Assault and as — Manslaughter,14 Manslaughter unlawfully away Rape,13 tion to take the life of a added.) Child,15 Quick being_” and First Killing (Emphasis of Unborn human Degree Murder of a Child.16 ¶ “Malice,” given special 37 definition 701.7(A) purpose only, § for the is not ¶ definition, By statutory 34 “ with, synonymous and should not be confused ‘[W]ilfully’ applied to the intent with when with, ordinary definition of “malice” and omitted, implies act is or which an done expressions “maliciously” used such as simply purpose willingness commit a or mischief.” The definition “malicious referred to. It does the act or the omission O.S.1991, § at 21 is found 95: “The terms law, require any intent to violate or to ‘maliciously,’ employed, ‘malice’ when so O.S.1991, § injure 21 92. The another....” vex, import annoy injure a wish to or another “willfully” “maliciously” preceding terms or person, by proof pre- established either or defining proscribed normally act the words vex, sumption annoy, of law.” This “wish” to “specific criminal do not indicate crime disjunctive. By or is stated its Degree example, the First Ar intent.” For meaning, require clear it could not a wish to statute, Kreijanovsky held in son which we injure, may only vex, import but a wish to or crime, specific not a intent used both only annoy, only injure. a wish to or a wish to “Any person willjully who and mali words: burns_” Kreija ciously sets fire to or ¶ helpful meaning 38 It is to look at the ¶ 120, 9, novsky, 1985 OK CR 706 P.2d at 544 of as it “willful” has been defined added); O.S.1981, (emphasis § 21 1401. We general intent crimes of “Assault” and “Bat further held: O.S.1991, tery” § Title 21 OMahoma. crime, specific not a “[A]rson is any “An states: assault is willful and unlaw voluntary intoxication is available as a de attempt ful or offer with or force violence to the crime with which the fense when corporal do a hurt to another.” Title 21 charged defendant is has as its mens rea O.S.1991, § battery: battery “A defines spe criminal intent specific element or is willful and unlawful use force or O.S.1981, cial mental element. See 21 upon violence of another.” State, Boyd 1401 and v. 572 P.2d 276 involving “general Crimes these statutes are (Okl.Cr.1977),respectively.” except require intent crimes” those that intent, some further such as “intent ¶ “Special obviously mental element” bodily to Mil” or “intent to do harm.” Thus “willfully,” does not refer to terms like “mali Madden, we held in v. State 1977 OK CR ciously,” “knowingly,” as the Arson statute ¶ 155, 18, 1177, 1180: P.2d “willfully maliciously” contains the words “[S]pecific ag intent is not an element of Kreija and is “not a intent crime.” See, Quinn gravated battery. 120, 9, assault and novsky, 1985 OK CR 706 P.2d at ” State, Okl.Cr., Further, v. 485 P.2d 474 [1971]. “willfully” equivalent 544. Tarver, 156, “knowingly.” 1982 OK CR injuring” 39 The “willful ... terms of a ¶¶ 10-12, 651 P.2d at 1332-35. child, child, resulting in the death of the element,” “Special using mental as used in “willful ... of unreasonable force” on a child, child, Kreijanovsky, resulting in “pre- refers to such terms as the death of the O.S.1991, 701.7(C), design” aforethought.” meditated or “malice in 21 used are not re- dundant, aforethought” meanings partly “Malice” as used in “malice but their coincide 701.7(A) O.S.1991, § specially overlap. defined in 21 Quinn, ¶¶ 210, 1, 4-7, State, 566, 919, 11. 14. OK CR P.2d v. Cheadle 11 Okl.Cr. 149 P. 476; §§ 642 and 646. 922-24 State, 10-12, ¶¶ 12. 15. Tarver v. Kreijanovsky 1985 OK CR 1982 OK CR 544. 1334-35. ¶¶ Boyd 16. Workman v. P.2d

621 ¶ Holder, 18, ¶ 288, “Injuring” the class as it 1976 OK CR 556 P.2d at 40 is broader 1053. consequence, not or does describes a result type limit the of action which specify or ¶42 legislature “It obvious that is may in injury, may or causes special provision punish- intended to create a analogous to of force.17 It is

volve use severely ing persons more those who are killing” from the of the terms “willful the use guilty battering of children.” Id. case, manslaughter statute in the Tarver ¶ 43 as the “willful” use of force or Just “killing” states a result or conse where inflicting “great bodily injury” upon violence quence prohibited, but does not which person (Aggravated Battery) Assault and or limit the means which describe intent;19 require proof specific does not of a might accomplished. “killing” “Willful just killing” the “willful an as unborn kill,” killing” did not mean “intent nor quick (Manslaughter in child the First De- lato, or to even “intent to violate gree) require proof specific does not of a another,” the accused “en but meant intent;20 just “willfully as and malicious- conduct, inflicting injury upon gaged in the ly” setting burning fire or an inhabited mother, person with the awareness (Arson building Degree) First does not re- quick the death of the unborn child intent;21 quire proof specific of a neither Tarver, likely result.” OK CR would 1982 injuring resulting does the “willful” of a child ¶¶ 156, 10-12, 651 P.2d at 1334-35. death, in using nor the “willful” of unreason- upon resulting force in ¶ able a child death “Using' 41 unreasonable force” on a (First Child), Degree require Murder of a resulting child death is the more narrow in. proof of a intent.22 All of these class, prohibited as all .actions under “wilful,” “willful,” crimes contain the words 701.7(C) § which result in the death aof “willfully,” and none are necessarily injury, child cause but not all Crimes. “Using involve use of force. unreason analogous “battery.”

able force” We ¶ 44 in Petition for Rehear his State, 288, in Holder v. 1976 OK said CR ing incorrectly states: “The settled law ¶ 17, 1049, 1052, battery 556 P.2d is Oklahoma is that child abuse murder has a “any defined wilful and unlaw statute specific intent element.” He cites five cases upon ful use of force or violence State, support Grady of his assertion: v. (comparing of another.” We further said 3, 1069; 67, 947 P.2d Bannis OK CR 843): O.S.1971,§ § 642 with State, 60, 3, 930 P.2d ter 1996 OK CR 1178; Hockersmith v. “Virtually, especially under the circum- ¶51, 12, 793, 795; 926 P.2d Revilla v. case, proof stances the instant nec- 1143, 1148, 1994 OK CR 877 P.2d essary to sustain a conviction under one 1152; and Watkins OK CR statute would likewise sustain a conviction 744 P.2d 970. other, exception under the with the of an cases, That Actually, only additional Section 843. one of the cited element Hockersmith, being “specific element the-buiden of the State to intent” used the term demonstrate, majority opinion. under Section that the This was at age point in victim was under the of seventeen.”18 one the next to last sentence before Tarver, ¶¶ Examples injury of acts which result 20. 1982 OK CR 17. O.S.1991, require may 1334-35; death but do not force include such § at 713. willfully drowning, burning, freezing, acts as starving, child, poisoning asphyxiating, or 120, ¶9, Kreijanovsky, 21. willfully placing enticing or. a child 544; O.S.1991, 1401. dangerous place, path into a such as of a moving vehicle. Workman, OK CR 824 P.2d at 383; O.S.1991, 701.7(C). age eighteen. Later amended to Madden, 19. State v. 1180; §§ 642 and ¶ Hockersmith, Revilla, “[T]he in the case. 49 This Court stated in

the decision ¶61, 12, required prove 926 P.2d at 795. In this was not to the element OK CR State error, kill, regard, was in and we required prove Hockersmith intent to but of was to to the extent that the Hockersmith Appellant ‘willfully’ ‘maliciously’ overrule that or in- in the next to the last “specific” tortured, word is used jured, maimed or used unreason- majority decision of the sentence before the Revilla, upon the able force victim.” contrary and well- opinion, to Workman 24, 11, 877 P.2d at OK CR 1148. Revilla law in this State.23 established require prove did not the State to “intent to injure,” but stated that other-crimes evidence mean that have 46 This does not we properly “in- was admitted to show Revilla’s in force at the time changed the law that was injure” tent to the decedent and to refute his Appellant Fairchild’s crime or trial. ¶24, 28, claim of accident. Id. 1994 CR OK August decided until Hockersmith was not permitted 877 P.2d at 1152. It was to show Adam subsequent to murder of injure, required. an intent to but not It is subsequent to trial Broomhall and Fairchild’s conviction, proper to introduce evidence to refute and therefore could not have applied and could not have been claim of accident the burden to his case because on the upon prosecution relied him. is to show that the acts were willfully maliciously, committed or and not it true that these eases cited 47 While Tarver, “accidentally involuntarily.” or “intent to Fairchild do contain words ¶ 11, OK CR 651 P.2d at 1334-35. injure,” suggest language for none of them an additional instruction on “intent to case, 50 In the Watkins the defendant injure” only intent because the referred to is Wright, shot and killed Charles who was encompassed the intent within the term “will- Watkins, holding lap. in Watkins’ child his ful.” The crime can be committed either 215, ¶14, 744 P.2d at 968. willfully injuring willfully using or unreason- shotgun through Watkins had a rammed a Therefore, against able force the child. up Wright’s window it and held to head when requirement prove minimum is that the State only it was fired. The child received minor willfully that a defendant used unreasonable flying glass frag- incidental cuts from the upon force a minor child which caused an ments. We held that all the willful and injury in death of which resulted that intent malicious was directed towards child, willfully a or that defendant committed Wright, Charles towards the child. injury act which to a minor child caused Therefore, defendant’s conviction for which resulted the death of that child. Wright upheld, murder of his but convic- specific This does not make this crime a Injury tion for to a Minor Child was re- intent not entitle defen- crime and does prove versed. We held the evidence did not an dant to intoxication defense instruction. “willfully maliciously” that Watkins or in- ¶48 Appellant has cited no case which jured daughter. his The intent to suggests that intoxication defense is only general referred in- to intent person charged type available to a “willfully maliciously.” cluded in Id. abuse, murder, injuring a or with child holding There was no that this was minor child. held in Morse v. We intent crime. ¶51, 4, 309, 310, construing OK CR ¶51 O.S.Supp.1968, clarify § previous opinions 843: “Intoxication is no We our Watkins, Revilla, Hockersmith, Bannister, grown defense ... man to for a mistreat degree severity Grady specify beat a small to the that the “intent injure” hospitalization required.” only There mentioned in has those cases means change language subsequent general been no intent included within the terms § equivalent language “willfully” “maliciously.” versions of 843 or Thus the use of 701.7(C) require “injure” that would the term “willful” with in 21 O.S. 701.7(C) different result. require does not Workman, cited Also see cases and statutes in foot- 383; Vandiver, 97 Okl.Cr. at 261 P.2d at 619 notes 4-16 and 19-22 herein. intent, injure, willfully injuring require but a child did an intent willfully, injure. We have included the term commit corrected misstate- injury. by our ruling act which causes the ment of law Since herein. proof necessary to establish murder either ¶ Appellant’s for Re 52 In Petition by “willfully injuring by “willfully a child” correctly points defini hearing, he out that a using unreasonable a force on child” would in No. tion former Instruction 736 OUJI-CR case, be identical under the of facts it (now (2d)) implies that No. 8-39 OUJI-CR phrase adopted does not matter which was voluntary is also a defense to intoxication jury.. individual members of the Since special crimes with of known state mind infirm, constitutionally neither alternative is “willfully.” “Incapable The definition of of properly upon, since both were instructed Forming Special Mental Element” contained identical, proof since the burden of is and (2d), 8-39 “The Instruction No. OUJI-CR crime, resulting unavailability since the powers state in mental been which one’s have defense, permitted of the intoxication and intoxication, rendering it through overcome same, penalties are there is no violation impossible special mind to form state of Stromberg. of This analogous is to situations willfully/ corruptly/ knowingly/ known as ma aforethought where malice murder and felo- liciously,” authority, Oklahoma does cites no ny pled alternative, murder are and law, correctly express not and Oklahoma support there is evidence both theories. should not used future See trials. jury We have held that the failure of a ¶ 120, 9, Kreijanovsky, 1985 OK CR finding guilt indicate the basis of the of ¶¶ Tarver, 544; 10- not such cases was error. Newsted v. 12, 651 in P.2d at 1334-35. This incorrect ¶¶ 5-6, 734, 737; CR P.2d OK requested given struction was neither nor ¶¶ James v. trial, Fairchild’s and therefore no error oc P.2d curred. ¶ complains Fairchild his Petition B. EVIDENTIARY ISSUES a Rehearing interpretation for that new of applied Oklahoma law has been to him ex ¶ IV, III, Propositions 56 In and V the However, relating (cid:127)post law facto. first-stage evidentiary raises is- clearly intoxication defense estab- as a argument Proposition sues. His III is trial, lished at of his the time crime and support that the evidence was insufficient holdings our are that herein consistent with a because the of his in- conviction evidence law. No new law has been well-established at the time the crime was commit- toxication applied post created or to him ex facto. precludes proof ted of intent to or use question unreasonable force on a child. ¶ complains 54 Fairchild also in his of the intoxication its effect defendant’s original Rehearing Petition for our ability on to form a intent his Opinion herein created two alternate theories jury by judge from the trial who withheld prosecution, required of proof one which of Degree First of a believed Murder Child not, injure, an intent to and one which did 701.7(C) requiring only is a under crime charged and both of were in this case. which general Judge intent. criminal We hold bring He would into theorizes that his case Voluntary correct. intoxication Wilson was Stromberg California, conflict with partial defense intent (1931), U.S. 75 L.Ed. 1117 S.Ct. 120, 9, Kreijanovsky, crimes. which held that when case is submitted to 706 P.2d at 544. on one of alternate theories and infirm, constitutionally those theories is Degree First of a Child 57 As Murder conviction must be reversed. 701.7(C) under 21 crime, Opinion voluntary original hold in our intoxication is no de- We did withdrawn) (since voluntary evidence intoxication herein that murder will- fense. The guilt fully using question to the in this unreasonable force on a child is not relevant case, required injure, giving requested no intent to while murder and the of Fairchild’s voluntary significance jurors.25 special would intoxication would have instruction on In Revilla improper. OK CR have béen expert, Dr. Balding, an testi argument evidentiary 58 The second maybe particular study ninety- fied in a TV) (Proposition concerns admission testi- cases, percent five where the death of a witness, first-stage mony by Dr. the State’s injury, rep from severe head resulted Stuemky, physician who did not treat the resented form of child abuse.” We “some victim, expert as an witness who testified but testimony opinion found was an on “that the Appellant argues from medicaTrecord. injuries, appel the cause of decedent’s Stuemkys testimony portions three of Dr. Likewise, guilt.” Stuemky’s lant’s Dr. testi 1) his the vic- were inadmissible: conclusion “secondary mony including the words to child 2) abuse; injuries by tim’s were caused proper. abuse” was inju- of the his cumulative recitation victim’s 3) ries, ¶61 regarding his the fact and statements Stuemky Dr. was entitled to state pain. injuries these caused had opinion expert, he his as an and made no opinion personal statement about his of Fair- objection, strenuous defense Over guilt. “specialized knowledge child’s His prosecutor Stuemky Dr. if child the asked trier of fact to [did] assist the understand the diagnosis, his abuse were a medical and what a fact evidence to determine in [and] issue.” diagnosis concerning medical was Adam O.S.1991, “Testimony § in the form argued the defense Broomhall. When the opinion of an otherwise or inference admissi- response go would to the ultimate issue of objectionable ble is not it because embraces guilt, prosecutor countéred ar- with the by an ultimate issue to be decided the trier of gument legal definition24 medi- that the and O.S.1991,§ fact.” “may very cal abuse diagnosis of child be different.” The trial court overruled the ob- laymen generally 62 Since do not have jection Stuemky Dr. testified: “The expertise personally to evaluate the de- diagnosis of this child would be head medical gree of force needed to cause internal trauma injuries secondary to child Dr. abuse.” injury skull, human blunt force to the it is Stuemky opinion guilt stated no about the necessary experts we to have demon- of the Defendant. innocence strate, verbally graphically, what occurs. testimony Stuemky The of Dr. that the head phrase particular “child injury “secondary was to child abuse” meant significance legal abuse” in this case. has no injury the extent of the child’s appear did in “child abuse” not words head was consistent with not reasonable statute, O.S.1991, text of the murder accident, theory of was caused but 701.7(C), § § nor in acts some other than Adam. (except publisher’s heading which statute). ¶63 part important question not a of the Nor were the The most charging words “child abuse” used had in this case was to answer which of case, information in this court’s Fairchild’s versions of events were nor true. jury. given a his Sgt. instructions to the “Child abuse” is handwritten statement a.m., phrase by attorneys, only thirty-five shorthand used but Smith 2:10 minutes unconscious, said, signify does an ultimate after he not issue which Adam became responsible "[p]erson 24. See footnote 25 below. definition of for a child's includes, safety” parents," health or in addition to was The term "child abuse” never included in among others, living "any ... adult the home § § but was added when 843 was renum- of the Id. Since murderers child.” of a child § O.S.Supp.1995, bered as 10 7115 effective No- “responsible persons who are for not a child’s vember 1995 within the "Oklahoma Child under, safety” charged health or can still Reporting and Prevention The term Abuse Act.” 701.7(C) O.S.Supp.1998, § but could not be "Abuse,” alone, standing was not defined "abuse,” guilty we used of child have the term legislature purposes Act until 1998 Degree Opinion "First Murder of Child” O.S.Supp.1998, 7102 when 10 was amended " instead of the more traditional "Child term say, 'Abuse' means harm or threatened harm to Abuse Murder” to refer violation of safety by person responsible child’s health or 701.7(C). safety....” for the child's health or Id. The sitting TV at watching injury was down 1:35 the time she received the “I which running my to lose son Adam was caused her consciousness.” house, right and I ask he ran into the table argues in Proposition 65 Fairchild IV- get him alright. if he I not him was could Stuemky’s testimony C that Dr. was inadmis- him, I shaking so started but he to answer sible, respects for it was cumulative in some coming to” testimony of treating physicians to the days he in a later told Detective Burton Two paramedics responded and the who to the (Exhibit 15): taped interview # video find, however, allegedly 911 call. We testimony go cumulative was admitted as foun- up. wouldn’t shut I him to

“He told regarding the dation amount of force re- sleep. sleep. I I heard a went back to injuries, quired these to cause and the testi- I there up noise. woke loud mony regarding force was not cumulative. laying get up. down. I him Adam tried to Therefore, find no error in we the admission got scared.” I testimony. of this Burton, he told later in the Then Detective interview: same objected 66 At trial the defense screamed, Fairchild: “The more he the by testimony Stuemky Dr. regarding the just I kept hitting more on him.” pain experienced have Adam would as a re injuries, arguing pain

sult of his was Appellant first-stage urges “And I think I him issue. now this Fairchild: smacked IV-D). appeal argument (Proposition on again.” We Pain, disagree. and the deceased’s reaction living room?” Burton: “Was that the it, jury’s relevant to would be to the determi Fairchild: ‘Tes sir.” nation whether as to the defendant used Burton: “That’s when he wouldn’t wake against force this unreasonable child. This up, right?” part gestae. was of the res Evidence of the move, ‘Tes He so Fairchild: sir. wouldn’t pain by a suffered murder victim and caused Stacy I went there to bed by Appellant the accused admissible. cites I I get told her can’t Adam to move. says pain no case that is not admissible the — pretty I was intoxicated too much. stage first of murder trial. We find no just I my temper, couldn’t control error in admission of this the relevant evi guess.” O.S.1991, § dence. 12 ¶ important Thus it the was for ¶ Appellant objected at trial and whether could determine Adam’s death have V) appeal (Proposition to the introduction accidental. As we in the case of been noted autopsy # pho of State’s Exhibit a color State, 17, ¶8, v. 1988 OK Schultz CR tograph taken of the inside of Adam’s skull 559, 562, closely paral- P.2d where the facts cap lying background. on a blue cloth One those of the Fairchild leled ease: white, half of of the skull the inside is near necessarily upon “The State relied circum- entirety almost the of the other half is while stantial evidence that the was abused. by covered clotted The blood. exhibit was physicians The four all who testified objection during defense admitted over Lindsay’s inju- agreed that the extent of testimony. Appellant medical examiner’s ar led them to she was ries conclude that gues photograph the admission war abused, injuries and that those were re- Post-autopsy photographs rants reversal. The medical cent. examiner testified pro are found to when their be inadmissible by child’s death a severe was caused substantially outweighed by bative value is in a trauma to head which resulted O.S.1991, 2403; prejudicial their effect. 12 hematoma, acute bron- subdural and led to ¶ State, 64, 8, Sattayarak v. 1994 OK CR chopneumonia. physicians agreed 1330; State, Oxendine v. appel- accident described ¶¶ 6-8, 335 P.2d could not in the extent lant have resulted injuries. appellant easily her admitted instant case can be 68 The distin- Lindsay during guished Sattayarak was his sole care from and Oxendine cases, post- skullcap In each of those into evidence to corroborate the cases. tes- n autopsy photographs timony showed the irrelevant experts. of the medical crudely Y-incision on the exterior of stitched body in addition to the relevant wound C. JURY INSTRUCTIONS caused the murderer. Proposition challenges I 69 Ritchie v. 1981 OK CR given by the instruction the trial court on the ¶¶ 4-7, 632 P.2d is closer to the meaning of “willful” in the context of “willful case, sepa- In that facts of the instant case. use unreasonable force.” The instruction photographs three-year-old-child rate of the “Purposeful. defines “Willful” as follows: back, scalp peeled victim’s bare skull with the require any does not Wilful intent to violate brain, the inside of were his his skull law, or to another....” jury. to the The case was shown reversed object did not to this instruction at trial. case, new trial. Fairchild’s a Therefore, plain only. we examine for error single picture surgically of the inside of the confusing This instruction was found to be skullcap, scalp, removed not the brain or require and to reversal Hockersmith jury. shown to the Defendant had Ritchie admitted that she had struck the deceased (codefendant) boyfriend and that her had phrase 73 The same used Bannister severely “punished” throughout the deceased 60, ¶3, preceding evening. There was no claim errors, in combination with other Thus, of accident. there was no doubt that require also held to reversal. The same injury was caused the actions of the however, phrase, in the absence of other defendants. error, State, significant Grady in ¶ ease, however, 70 In Fairchild’s we ¶ 67, 3, (First Degree 947 P.2d 1069 living eyewitness except have no Fairchild Murder, Child), State, aof and Lewis v. 1998 happened, himself to tell us what and he has ¶24, 28, (Child 1158, OK CR 970 P.2d conflicting told several Robison v. stories. Abuse), was held to harmless error. be ¶

State, 31, 1080, 21, 1984 OK CR 677 P.2d ¶74 today Inasmuch as we hold “intent 1087, “[pjrobative pho held value of injure” required separate is not a element tographs of murder victim can be manifested (the Degree of First Murder of a Child mens nature, ways, including showing in numerous rea is included within the terms “willful in- extent, ... and location of wounds and cor juring” or “willful use of unreasonable roborating testimony.” medical examiner’s force”), we conclude that this instruction cor- photograph of Adam’s was skull relevant rectly stated the law in effect at the time of to the of death cause and to show the ex Appellant’s today. trial and the law in effect hemorrhaging, treme extent of and it was Watkins, Revilla, Any language in Hocker- only photograph medical examiner’s shown smith, Bannister, Grady inconsistent jury stage in the first of the trial. The holding expressly with our herein is over- photographs other medical examiner were ruled. stage they withheld until the second where particularly aggravator

were relevant to the ¶75 However, phrase “or to heinous, atrocious, “especially of or cruel.” confusing another” that was held to be in State, 45, See Ellis v. OK CR P.2d Hockersmith, although straight derived from 1289, 1299. definition, statutory necessary was not sterile, pho- “willfully,” We find that the clinical define but was one of three tograph properly examples of the “willfully” victim’s skull was of what did not mean. admitted. We do not find Exhibit # im- phrase That has now been removed from the properly jury. passions incited the of the definition Instruction No. 4-39 OUJI-CR (2d) case, specific (Supp.1997) any Under the circumstances of possible to avoid misun- distinguished, can derstanding part jury. Ritchie case be and it on the of the correctly was not an abuse of discretion to admit the new instruction states the basic def- photograph surgically of Adam’s removed inition and should continue to used. Appellant argues Prop charge, also a should instructions on lesser in- II the trial court committed reversible given. osition cluded offense be by denying requested instruction on error his ¶ 78 There was no evidence that the vic second-degree voluntary in murder due Nor tim not a child. other Voluntary may toxication. intoxication be a presented justified defense would have which valid defense to those crimes that include an giving manslaughter of a instruction. Degree As First element intent. properly request Trial counsel acted in not (§ 701.7(C)) by of a Murder Child means of one, ing and the properly trial court acted by willful use unreasonable force or .of giving manslaughter not instruction sua injuring does include an element willful State, sponte. Hooker v. 1994 OK CR intent, voluntary intoxication is not ¶¶ 31-33, 1351, 1360-61; 887 P.2d Ellis v. correctly a defense to it. The trial court ¶¶ 15-16, 1992 OK CR 867 P.2d give on lesser refused instructions includ 1297-98; Duvall v. 1991 OK CR offenses none called for ed were ¶¶ 9-10, 621, 627; 825 P.2d Fowler v. CR.41, evidence. Shrum v. OK , ¶¶ State ¶ 10, 70 OBJ 580, 585. Appellant argues also under Proposition his II court the trial should have SECOND-STAGE ISSUES sponte manslaugh instructed the sua degree perpetrated ter the first when A. EVIDENCE death, design without to effect and in a passion, cruel and heat but in a unusual eighteen 79 The State introduced 711(2). manner. See 21 We post-mortem photographs punishment case, held the Holder stage documenting injuries of trial suf ¶ 18, 556 P.2d at 1053c argues fered child victim. legislature “It is obvious that the intended Proposition V these are cumulative and special provision punishing to create a unduly prejudicial. severely persons more those who are Needlessly may cumulative evidence guilty battering children. Section 843 is court, be excluded the trial there is specific provision ... whereas Section point repetition at which needless can in- And, general provision.... 642 is a more jury Living- flame the and in error. result of the law construction dic- rules common ¶¶ 20-21, CR ston 907 appli- tate that of the the more two 1088,1094; O.S.1991, § 12 2403. These provisions given in cable be utilized situ- eighteen photographs were withheld not and ation. ... In a case such as the one before stage offered or until the second of admitted objective legislature, us the of in the creat- they particularly the trial when rele- were ing special battery provision, would be allegation “especially vant to the the hei- of thwarted if convicted offenders were under nous, atrocious, aggravating and cruel” cir- general provision the more when con- their ¶¶ Ellis, cumstance. age duct and the victim fell of their within Willingham v. P.2d 1289. In 1997 867 provisions the of the more statute. (over- 62, 41, OK CR 1083 being question age There no as to .the of part by ruled in grounds on other Shrum v. being years26 the less than seventeen 1999 10 n. OK CR refusing the trial court was to correct 8) n. 70 OBJ we said: jury instruct the Section 642.” under Likewise, “Photographs during admitted second §of where the violation 843 results child, stage were relevant to show the extent of in the death of the more specific the 701.7(C), injuries jury the the to provision, § and allow decide homicide should be injuries physical Only if whether the caused suf- used. there is evidence which tends negate fering Degree an the First or amounted to torture. There was to element of statute, admitting photographs Murder which would reduce the no error in the of Age years years. "eighteen” in 21 later "seventeen” O.S. 843 was amended to ing second-degree on his in this case either the first- burns chest and the victim bottom, finally by fatal stage of trial.” and inflicted the blow second throwing him a of several feet distance Willingham photographs held the cor against drop-leaf the Fairchild table. said testimony medical examiner’s the roborated statement, “The video-taped his more he ranging of the wide and “showed locations screamed, just kept hitting I on the more Willingham, OK the wounds.” victim’s by photo- him.” This was corroborated ¶62, 38, 947 P.2d at 1083. In Fairchild’s graphs showing multiple recent bruises case, many pictures necessary were to show body by autopsy finding Adam’s the and of injuries large of inflicted on dif number (beneath sub-galeal four or five severe Adam’s, body. parts of head and It ferent scalp) hemorrhages, contusions and addi- separate was estimated there-were (inside tion to the extensive sub-dural body. on Adam’s and We contusions head skull) hemorrhages swelling of the brain photographs of hold that the admission these which caused the death. Uncontroverted ev- was not error. pain idence also victim was established the ¶81 Proposition Appel IX the during burning, hitting according challenges of the lant the use same evidence Fairchild’s own child was admissions prove guilt aggravating and the circum thrown, screaming against until he “especially the murder was hei stance that testimony that table. There was second- atrocious, nous, argues or cruel.” He such burns, degree painful type are the most jeopardy use is a form double barred (Presumably third-degree burns. because constitutions, and federal well the state as destroyed nerve burns would have end- prosecution double barred ings.) screaming, Since Adam was we know 11(A). he was fatal conscious until the blow. Evi- provided gratuitous dence of this violence jeopardy 82 Double concerns are beyond prove sufficient a reason- evidence same, triggered by the not use evL pre- in this case able the murder guilt impose do.ubt prove punishment, dence to physical ceded and serious torture abuse. finding guilt necessary merely for the imposing single punishment. condition for B. JURY INSTRUCTION Phelps, See U.S. Lowenfield 108 S.Ct. L.Ed.2d Appellant’s Proposition X (1988). Likewise, 11(A) impli Section complains punctuation of erroneous in sec cated either. ond-stage jury Number 4. Instruction When duty trial court on its instructed Appellant argues Propo heinous, “especially determine whether prove the evidence is sition XI insufficient aggravating atrocious or cruel” circumstance heinous, “especially the murder was atrocious existed, following' gave it the in erroneous injuries upon or “the cruel” because inflicted struction: together the child worked to contribute to his that, in arriving “You are instructed at support a finding death.” In order to that a your punishment, you determination of heinous, atrocious, especially murder is must first whether at the determine time cruel, the evidence must be sufficient to show following this The crime was committed. preceded by the murder torture or seri beyond aggravating' circumstance existed a State, physical ous abuse. v. 1987 Stouffer reasonable doubt: ¶ 6, 562, 563; 742 P.2d OK CR Hawkins heinous, especially “1. The murder was ¶83, 42, State, v. 1994 OK CR 891 P.2d atrocious or cruel.” 596. Uncontroverted evidence' established by ruptured upper lip grammatically Fairchild Adam’s hit The first is flawed sentence mouth, period hit in the sentence ting him the his left ear with was inserted after eardrum, “committed,” rupture the word and this was sufficient force the followed “The,” separate by capítol indicating approximately 26 contusions “T" in new caused body, argues punctu- by Appellant on head and him the Adam’s burned sentence. The heater, holding up produc- him to a hot wall ation error the trial court advise caused weighing jury aggravating aggravating mitigat circumstance in cess of the and the that the doubt, beyond ing balancing by existed a reasonable rath- evidence. fact test set forth directing jury ques- to decide the than the the er instructions is a correct statement of law. ¶ objection contemporaneous State, 14, 43, tion. No was Scott v. CR 1995 OK 891 P.2d lodged, question plain so examine this 1283, 1297. we ¶ State, 20, 42, Perry v. 1995 OK CR error. ¶ requested, 90 The defense and P.2d note that when read We declined, an the trial court instruction on the aloud, easily the is not break the sentence meaning meaning of a life and the sentence detected. of a sentence without possibility of life ¶ 85 When we read the instructions as deliberations, parole. During jury the sent whole, we find Numbered Instructions out a asking note the whether defendant jury 11 all it must decide instructed the prison ever from would be released if he aggravating the circumstance exist- whether were possibility sentenced to life without the doubt, beyond a reasonable and that its ed parole. responded by trial court tell be unanimous. Because the decision must ing jury the it had all the evidence it needed properly instructions as a whole instruct the Appellant to decide the case. claims error. jury, plain we find there is no error. (XIV-E) the We find that trial court ruled ¶ Proposition In the Fourteenth properly in requested its denial the in Appellant challenges to the the raises five response jury structions and to the its (XIV- jury second-stage First instructions. question, duty explain for the has no court A), argues he did not inform trial court process parole jury. the Oklahoma to the jury mitigating finding circum previously We have this decided same issue. Ap did not stances have to unanimous. ¶¶ State, 51-52, Johnson v. 1996 OK CR pellant acknowledges this issue has been de 309, 320; State, McGregor 928 P.2d v. State, against Harjo him in cided OK ¶71, 36, 1366, 1383; Mayes, OK CR ¶47, 1067, 1081. 76, 882 P.2d We find no CR ¶44, 148, P.2d 1319-20. reason revisit the issue. XII, Proposition Appel (XTV-B) challenge 87 The second heinous, argues lant “especially atrocious on the use of miti addresses instructions aggravating or cruel” circumstance is uncon gating evidence. The standard instruction stitutionally vague. argument This has been mitigating evidence directed the Court, rejected by consistently we mitigating circumstances are those which “in find reason it here. Le v. no to revisit mercy, may fairness and be considered ex ¶¶ 552- tenuating reducing degree of moral 53; Smith v. OK CR culpability or blame.” This instruction is a P.2d Mayes correct statement of law. XVII, Proposition 92 In ¶44, 148, 1319- argues the death sentence was influenced There is here. no error passion prejudice. We do not find requested 88 The defense an in prejudice passion created undue directing jury that it could struction de Appellant. issues raised impose penalty cline the death even if it unanimously aggravating circum found an ERRORS TRANSCRIPT (XIV-C) argues Appellant stance. failing the trial court to so instruct erred ¶ transcript 93 The this case jury. rejected argument We have this errors, contains numerous and several bench find it. no reason to revisit Valdez v. Appellant conferences are not transcribed. ¶¶ State, 18, 1995 CR 900 P.2d OK argues Proposition deprives VI this State, 363, 385; 32, Bryson v. 1994 OK CR right meaningful appeal him of the be to a ¶ 61, 240, 262-263. fully. present cause he cannot his claims ¶89 (XIV-D) Appellant argues Appellant nothing beyond presents the The mere next speculation support argument pro trial court on the rank this misinstructed to 630 harm, provisions.” intelligence could understand its showing of we

factually. Absent some State, v. Id. Parker is warranted. find no relief ¶¶ 290, 56, 23-27, 887 P.2d 294- 1994 OK CR ¶ XIII, Appellant Proposition 97 In ¶ 13, 7,

295; Woodruff penalty argues of the death the authorization 1124, 1132. P.2d 846 requires only an a child which for murder injure, kill to not an intent to but TRIAL BY THE JUDGE REPORT willfully committing an act which [restated: - resulting in injury a child death or causes to ¶ Major Judge died 94 Wilson upon a willfully using - force unreasonable file a shortly trial and did not trial after death], - Eighth resulting in violates the report is man report in this The. trial case. the Federal Fourteenth Amendments of court rule. 21 by statute as well as dated 2, 7, 9, §§ and Article and 19 of Constitution 701.13; 9.2(D), O.S.1991, § Rule Rules Appellant Constitution. the Oklahoma - Appeals, Criminal Oklahoma Court of argument constitutional grounds his federal Ch.18, Upon O.S.Supp.1996, App. notice from Florida, 782, 797, 458 U.S. on Enmund v. report had Clerk that the the District Court (1982) 3368, 3377, 73 L.Ed.2d 102 S.Ct. filed, ordered an eviden- been this Court not Arizona, 137, 149-150, and Tison U.S. hearing whether tiary be held to determine (1987). 1676, 1684, 95 L.Ed.2d 107 S.Ct. report report, support notes to prepared the then deceased had been Tison, Appellant argues 98 The Judge an judge. Dan Owens filed District 1688, 157, at at 95 L.Ed.2d at U.S. 107 S.Ct. concluding order no trial notes existed culpable the least mental establishes prepared. Appellant ar report had been no eligibility as “the sufficient for death state missing gues Proposition VII disregard implicit in for human life reckless meaningful appellate him re report denies activities knowingly engaging criminal . view grave carry risk of death.” Ti- known argument, Ap- support of this felony-murder in which the son is a case in which this pellant cites two instances himself did not kill. This Court defendant report information from the trial Court used apply to a defen has found Tison does not modify Appellant points a sentence. hand, who, kill. by his own does Wis dant support ¶¶ nothing in the record to us to 38-40, 918 dom v. argument report might have con- the trial 384, 395. helpful to him. Where the

tained statements holding This is consistent filed, report and the trial cannot be Supreme holding in Enmund that Court’s beyond speculation nothing pure can show Eighth “requires that he Amendment him, suggest might helpful have been we it defendant] have [a himself death-sentenced find no relief is warranted. kill, killed, actually attempted to or intended v. Bull- that lethal be used.” Cabana force OF THE CHILD CONSTITUTIONALITY ock, 699, 88 106 S.Ct. U.S. STATUTE MURDER Eighth “The L.Ed.2d long so as the death Proposition Appel Amendment is satisfied 96 In XV the ineligi- imposed upon person defining Degree penalty First is not argues lant the statute Child, O.S.1991, 701(C), punishment.” under Enmund for such ble Murder of a 88 L.Ed.2d at unconstitutionally vague. Id. at 106 S.Ct. He asks the Court in fact holding 716. “If a sentenced to death its in Drew v. to reconsider kill, kill, killed, attempted intended to violated Eighth force” in 21 the Amendment itself not which the term “unreasonable 701(C) Id. The Oklahoma not to be his or her execution.” O.S.Supp.1982, was found impose higher stan- unconstitutionally vague. no reason Constitution does We find Drew, regard- ruling. dard than the Federal Constitution As we held to disturb Enmund, v. Bull- “sufficiently ing holdings Cabana language of the statute ock, ordinary or Tison. explicit persons that all clear and

631 child, resulting a in 100 We hold defendant con the death of the or uses upon resulting unreasonable force a Degree by a victed of First Murder of Child child; additionally the death of the and if one injury by of unrea willful or the willful use statutory aggravating or more of the circum may eligible. sonable force be death Where proven outweighs stances is which the miti willfully personally,27 a commits an defendant circumstances, gating any; if then that de produces injury upon act which an a child may fendant be sentenced to death.28 Tison, 158, say quired.” 27. This not to that a vicarious murderer 481 U.S. at 107 S.Ct. at eligible would not be death under a similar fact situation, Enmund, Bullock, Tison, question presented by but that is not In Cabana v. and Supreme applicability See the facts of this case. discussion of Court addressed the of the penalty accomplice 28 McCrackenv. State footnote herein. death to an in a case murder actually did who inflict the fatal wound. In Fairchild’s case we have a defendant who him- dissenting equate Degree opinions 28. The First self, alone, Therefore, acting actually killed. "felony Murder of a Child with murder.” De- Enmund, Bullock, requirements of Cabana v. and similarities, however, spite significant there are apply, Tison do not we and need not determine felony- differences. Unlike murders under the "major participant whether was a in a rule, Degree murder First Murder of a Child felony and exhibited reckless indifference to hu- by requires proof of a willful or malicious action — only participant. man life" he was the In perpetrator perpetrators resulting in the State, ¶¶ 22, 38-40, Wisdom v. 1996 OK CR 918 child, death of a either use of unreasonable 395, issue, precise at P.2d we decided this distin- by any upon force the child or act which results Enmund, guishing Tison and since Wisdom was injury Degree child. Murder to the In First person actually three-year-old who killed the Child, perpetrator a the willful acts of the cause boy by use of "willful unreasonable force.” requires an death. This intentional act rath- Today dissenting judges the two in Fairchild act, er than accidental or inadvertent an but apparently wish abandon their well reasoned requires injure. no intent to kill or Wisdom, holding although one of them wrote degree degree felony Like first malice and first Wisdom, and it was concurred in the other. murder, Degree may a First Murder of Child be says argument One of the dissenters now statutory punished death one if or more "remarkably analysis” Wisdom used a facile aggravating proven, they are circumstances opinion pronouncement." calls the a "dubious outweighed by any proven mitigating are not contrary, complete To the we find Wisdom is in circumstances. In McCracken v. Supreme jurispru- accord with current Court 68, 34-37, 323, 331-332, ¶¶ we held says dence. One of the dissents that Cabana v. felony may that even “a vicarious murderer be Bullock itself makes no comment on the level of kill, death fact, sentenced to absent an intent to if intent assumed in the Enmund rule. In aggravating sufficient circumstances exist.” (providing actually Enmund rule that one who — kills, kill, There were no dissents in the McCracken case attempts killing or intends that a with one place of the dissenters in the instant case employed, take lethal force be could be death) concurring opinion, in the and the other concur- sentenced to was reiterated at least four- — ring affirming majority opinion in the results McCracken’s teen times in the in Cabana v. Bullock, 378, 382, 383, 384, 385, penalty. Certainly holding death be 474 at would U.S. 386 387, 389, 391, 392, (twice), (thrice), applicable no less in a case a where 390 106 child, 701.7(C), 693, 695, (twice), (twice), "actually” kills a in violation of S.Ct. at (thrice), 696 697 698, 699-700, 700, (thrice), aggravating if "sufficient circumstances exist." (twice), 715, (thrice), Id. L.Ed.2d at 717, 718, (thrice), (twice). Supreme may Court has held that State 62, 65, not sentence a defendant to death “who does not Crawford kill, kill, 627, 640, attempt himself or intend that we held that a need not killing place specify degree take or that lethal force will whether the first murder convic Florida, employed,” aforethought Enmund v. 458 U.S. at tion was based on malice or "dur 3376; Bullock, ing felony,” 102 S.Ct. at Cabana v. 474 U.S. at commission of and need not kill, finding S.Ct. at 88 L.Ed.2d 704. In make a the defendant's Arizona, light "especially Tison v. 481 U.S. at S.Ct. [Crawford] of the fact that extended the Enmund rule to authorize acted alone in the commission of this offense.” penalty felony-murder interpretation the death also for defen- of Enmund Ti- Crawford personally unanimously approval by dant who did not kill but “who was a son was cited with major participant felony in a and exhibited reck- Court in Powell v. Strubhar), (opinion by less indifference to human life.” Tison held: J. "Only minority jurisdictions a small of those where we held that "Powell not entitled to imposing capital punishment felony mur- an Enmund instruction.” rejected possibility Supreme capital der have of a The United States Court decision in kill, States, Loving sentence absent an intent to and we do not v. United 517 U.S. 116 S.Ct. (1996), minority position constitutionally find this re- cited 135 L.Ed.2d 36 632 701.13(C). §

ACCUMULATION OF ERRORS We now conduct this mandatory sentence review. XVIII, Proposition 101 In ar- jury 103 aggravating The found one cir- gues the requires accumulation of errors re- cumstance, especially the murder was disagree. versal. We Given the uncontro- heinous, atrocious, or cruel. 21 overwhelming guilt verted and evidence of 701.12(4). § previously We have found case, errors, aggregate, these even in do Proposition XI pre- sufficient evidence was not warrant relief. support jury’s finding sented to the of this aggravating circumstance. MANDATORY SENTENCE REVIEW ¶ 104 The Court must also determine every capital In murder case imposed whether the sentence of death was analysis this Court conducts a final to deter passion, prejudice, under the influence of supports mine whether the evidence any the arbitrary other factor. We have exam- jury’s finding circumstances, aggravating of impact alleged ined the of trial error in this and whether the sentence of death was im case. overwhelming Given the and uncontro- posed passion, preju under the influence of guilt, any verted evidence of we find errors dice, any arbitrary other may factor. 21 O.S. which have occurred in the trial harm- Reeves, dissenting opinions, supports rather than contra- In the issue was whether Beck v. Ala bama, holding. Supreme dicts our Court held 447 U.S. S.Ct L.Ed.2d (1980), may prescribe the President of the United required States capí- a Nebraska court in a aggravating military capital felony-murder prosecution factors Id. tol to instruct cases. on of speculate at at 116 S.Ct. 1742. We need not recognize fenses that state law did not as lesse r meaning questions by offenses, about the asked Su- included not whether Enmund and Ti- preme argument Reeves, at 99, Court Justices at oral son were satisfied. 524 U.S. Loving case since we have the benefit of their S.Ct. at One of the dissents herein states: published opinions. justices final All Supreme required nine con- "The Court this [EnmundJTi- judgment affirming Loving's curred in the death though Hopkins ] son determination even. [sic] penalty. Loving single had been convicted in a [Actually, was actual Hopkins the killer.”. was separate Warden; trial of two However, murders and sentenced to the Reeves was killer.] the (under 918(1)) § pre- death. One 10 U.S.C. Supreme was require the Court did not an Enmund/ murder, (under meditated and one 10 U.S.C. Tison determination. Enmund and Tison were 918(4)) felony underlying only by murder. The Supreme mentioned Court in Reeves felony robbery, enumerated they did upon which not by because had been relied the errone require an intent to injure. kill nor an ruling. intent to Supreme ous lower court In fact the aggravator only specified felony for the mur- Eighth Court Appeals chided Circuit Court of Loving der count was that perpe- relying was the "actual for requiring on Tison and Enmund and killing,” trator of "triggerman.” respect killing, This mens rea with to the when the aggravator, prescribed in a 1984 Executive required felony Order intent murder convic President, by 918(4) was sufficient to save tion underlying was the intent to commit the by genuinely narrowing persons eligi- felony: the class of penalty. ble for the Loving, death Appeals “[T]he Court of read Tison and En- 1742; citing S.Ct. at Phelps, essentially requiring mund as States Lowenfieid U.S. 108 S.Ct. 98 L.Ed.2d felony alter their definitions of murder to in- Loving, Like Fairchild's case requirement in- elude a respect mens rea . Cabana, volves an killing accused (citations who did the killing. himself. the omitted), v. Bullock however, We need not majority opinion comment on the rejected precisely we such a of the United Appeals States reading Court of for the ruling and stated that 'our in Enmund review,

Armed by Forces on collateral guilt does not concern the or innocence .cited herein, — dissents precedential as it has no authori defendant it establishes no new elements of ty by in this Court and required is not the United by crime murder that must be found Supreme States holdings Loving, Court En .... and does not affect the state’s defini- ” mund, Bullock, Cabana v. Reeves, or Tison. tion of substantive offense.’ later, Reeves, years Two Hopkins U.S. at U.S. 118 S.Ct. at 1902. 1895, 1902-03, 118 S.Ct. Ironically, Supreme 141 L.Ed.2d 76 pointed Court out .that (1998), also dissenting. opinions cited (un- capitol felony-murder the Nebraska statute herein, Court, Supreme the United they sentence) States an der which affirmed the death did vote, 8-1 penalty kill, affirmed the death require proof in Nebras- of intent to while instruc- ka although case felony neither non-capitol the Nebraska second-degree tion on murder could underlying felony, murder statute rejected nor the properly sexual Nebraska courts because assault, required proof required of intent to kill proof precisely or intent it that additional ele- —(cid:127) injure. ment kill. Id.

633 beyond simply purpose willingness a doubt. a less reasonable When we or to commit individually, ag- in the act or the omission these errors and referred to. It does examine law, require any they intent to violate or to gregate, we find do not infect the trial injure another, acquire any advantage.” or to prejudice, passion, or other arbi- O.S.1991, words, § 21 92. In other “willful- trary factor. ly” as defined section 92 connotes Finding warranting 105 no error rever- specific intent rather than intent. The terms modification, Judgment sal or and Sen- “maliciously” “malice” and when used a tence of the District Court of Oklahoma vex, criminal annoy statute mean “a wish to County is AFFIRMED. injure person, or another established either by proof presumption of law.” 21 O.S. STRUBHAR, P.J., CHAPEL, J., and 1991, § “willfully” 95. Said definitions of dissent. “maliciously” employed throughout are to be Title 21 a plainly ap- unless different sense LUMPKIN, J., V.P.J., JOHNSON, pears. O.S.Supp.1997, § 21 91. concur. Hockersmith, 51, In3 1996 OK CR STRUBHAR, Presiding Judge, Dissenting: ¶¶ 10-12, 795, 926 P.2d at the Court held that majority 1 Because the chooses to de plain jury it was error to instruct part from this Court’s reasoned and well- required the term “wilful” no intent to violate precedent finding settled child abuse murder law, injure another, acquire or to or to crime, specific I is must dissent.1 any advantage. statutory We found the defi- Hence, unwavering my opinion I remain employed in nition instructions cre- injure that the intent to is an element ated conflict with the intent crime of including of child abuse murder child abuse holding, child abuse. Id. In so the Court murder committed willful un use of correctly statutory concluded the definition State, reasonable force. See Fairchild v. comport of “willful” did not with the of crime 47, 391, (Lane, 1998 OK CR 965 P.2d 403 J. child abuse and that a [of “different sense V.P.J.). Strubhar, dissenting joined by See plainly appeare[d]” willful] in this context. State, 67, Grady also 1997 OK CR O.S.Supp.1997, § 91. made This was 1069; Bannister State, 1996 OK CR Bannister, clear 60, 1176; Hockersmith v. P.2d at in which the Court followed CR 793. Hockersmith and stated: ¶ 2 nothing Child murder legisla- abuse more We do not believe this is what the murder, felony form than another of albeit in ture intended when it defined child abuse all degree section itself. See Drew v. and first child abuse murder as the ¶¶1, OK injuring, torturing, 13 & 771 P.2d “willful or malicious 229; 701.7(C). § 21 O.S.Supp.1998, maiming using & of unreasonable force child_” murder, O.S.1991, mens rea element child upon of abuse like ... In 21 [a] felonies, supplied by legislature § other enumerated provides that “[wher- underlying felony following which this case is child ever the terms mentioned in the (10 O.S.Supp.1999, formerly employed chapter, they abuse sections are this 843) O.S.1991, § requires employed which the acts are deemed to be in the senses them, willfully maliciously. abuse be except committed hereafter affixed to where Drew, plainly appears.” See 771 P.2d at different sense 21While recognize statutory I that the provides definition 92 then that a “willfully” applies may “willfully” yet as it to the intent with act not intend to omitted, “implies injure, which an act is done or “a different sense of term Svill- [the Although procedurally my opinion original opinion I believe this case is not In since the 3.14(B), proper rehearing, withdrawn, for see Rule Rules opinion opinion constitutes the Appeals, the Oklahoma Court Criminal Title parties right in this matter and both have the (1999) App. Ch. and Fairchild v. pursue further in accordance with this review (Strubhar, OK CR 992 P.2d 349 P.J. dissent- Court’s rules. ing), my I choose to focus remarks on the merits. ¶ 14, Watkins, fully’] plainly appears” when it is used in P.2d at degree the statutes on child abuse and first Court dismissed Watkins’ conviction for child employed in child abuse murder. As those abuse because Watkins’ conduct toward the statutes, the term willful—used inter- disregard showed reckless changeably require with malicious —must human life rather than an intent to injure an if the rea intent to mens element readily mandated the “clear and under sense, any for those crimes to make ” statutory Watkins, language. standable (footnotes omitted) 215, ¶14, 1987 OK CR 744 P.2d at 970. ¶ ¶67, 6, Grady, 4 In 1997 OK CR 947 precedent, Based the above I see no need 1071, improper the P.2d at Court held the retreat prior finding from our decisions statutory of “willful” definition did not war child abuse and child murder abuse plain rant reversal and was not error since intent crimes.3 Grady’s jury properly was the instructed bn murder, troubling majority’s elements of the crime of child abuse 6 Also is the hold- crime, including requirement the of an intent ing general eligi- that a intent is death injure. Regardless of the Court’s decision any finding culpability. ble without of This concerning impact of an erroneous defini holding imposition carry- allows for the and jury tion in of “willful” instructions in who, ing out penalty person of the death on a cases, finding these one unmistakable any without intent to much less intent Hockersmith, Grady Bannister and re child, to take the life of a nonetheless some- abuse, consequently mains —child and child how causes the death of that child. The murder, are abuse intent crimes re State, majority relies on Wisdom 1996 OK quiring injure. an intent to ¶22, 40, 384, holding. CR 918 P.2d 395 for its State, 5 In Revilla v. 48, 1997 OK CR Wisdom was child abuse murder case de- ¶ 5, 262, 265, 946 P.2d the Court stated that cided five to Hockersmith when prior months “[t]he decision Hockersmith merely ap- functioning the.Court under was the belief plied particular established law to the facts spe- law child abuse murder was added) (emphasis of case” and therefore cific prior crime as its .evidenced challenging jury the claim instruction subsequent decisions and Hockersmith deci- defining “willful” could not be reviewed on Revilla, sion. See 24, 14, 1994 OK CR 877 because Hock- post-conviction the merits on 1149; Watkins, 215, P.2d at 1987 OK CR ersmith intervening change not an ¶ 14, reviewing 744 P.2d at 970. In a claim established law relied on was Re- law. 4 that Wisdom was entitled to Enmund/Tison State, villa,2 itself, and Watkins v. instructions, Wisdom court distinguished Revilla, 215, 967, 744 CR P.2d 970. In construed the Enmund strictly holding, utilizing Court found the instructions concluding culpability instructions were not “willfully” “maliciously” the mens rea of necessary stage in the capital second of a “adequately jury] informed [the of the State’s prove abuse murder case burden that the death ... where the defendant [child’s] Revilla, 24, actually was intentional.” committed intentional abuse. 24, (1987). Enmund, 797, 2. Revilla v. 127 In 458 U.S. at denied, 1143, 1096, 764, 3376, cert. 513 U.S. 115 S.Ct. Supreme S.Ct. at Court held that ¾ (1995). 130 L.Ed.2d 661 defendant cannot receive a senténce of death for felony accomplice committed murder an un- agree 1 cannot that the isolated reference in killing less the defendant knew the would take Workman v. OK CR killed, used, place, knew lethal force would be denied, 890, cert. 506 U.S. Tison, 158, attempted killing. 481 U.S. at 258, may S.Ct. (1992), 121 L.Ed.2d 189 serve as 1688, Supreme S.Ct. at Court modified En- sweeping pronouncement this Court's that child holding major mund that defendant was a who light abuse murder intent crime committed, participant felony who dis- subject our more definitive cases on matter. life, played may reckless indifference to human Florida, 782, sufficiently culpable pen- the death 4. Enmund v. receive 458 U.S. 102 S.Ct. 30, (1982) alty. See 73 L.Ed.2d also Allen v. OK Tison v. Ari- zona, 481 U.S. 107 S.Ct. 95 L.Ed.2d ¶ 7 from the argued part Two recent decisions United death sentence. He that the Supreme culpa military defining States Court counsel that a felony article murder was assessment, bility finding constitutionally i.e. a capital intentional infirm aas offense harm, point made at require must be some because it did not an intent to kill process penalty for the death to be constitu and such defect could not be remedied be tionally felony sound murder eases where cause he triggerman. actual killer or Hart, (U.S.Ct. kill Loving intent to is not an element of the crime 47 M.J. 1998), denied, even if App. the defendant is the actual killer. Armed Forces cert. expansion This an constitutes U.S. 119 S.Ct. 142 L.Ed.2d 533 Enmund/Ti- Eighth son but is consistent with Amend Because neither Enmund nor Tison jurisprudence killers, capital ment because sen involved actual the Loving Court con tencing genuinely scheme “must narrow the ‘actually sidered “whether a who persons eligible penalty class of for the may death killed’ be sentenced to death a absent reasonably justify imposition finding and must the of person the intended to kill.” a more Loving, severe sentence on the defendant 47 M.J. at 443. Loving The court compared guilty to others found of murder.” stated: 862, 877, 103 Stephens, v.

Zant 462 U.S. S.Ct. speculating Without on the views of the (1983). 2733, 2742, 77 L.Ed.2d 235 membership current Supreme of the Court, we conclude that when Enmund ¶8 Reeves, Hopkins In 524 U.S. decided, and Tison majority were a of the 141 S.Ct. L.Ed.2d 76 Supreme unwilling Court was to affirm a (1998), the Court held that Beck5 not does felony death sentence for murder unless it require juries state trial courts to instruct on supported by finding culpability was a of offenses are not lesser include offenses killing based on an intentional or substan- charged of the crime under state law. In so participation tial felony in a combined with holding, the Court found that the states are Thus, reckless indifference to human life. constitutionally required to include a phrase, we conclude that “actually the requirement respect killing mens rea Tison, killed” in as used Enmund and in felony their long definitions murder so must be construed to mean a who culpability as an assessment Enmund/Tison kills, intentionally substantially partici- performed is penalty before the death pates felony in a and exhibits reckless Reeves, imposed. 524 U.S. at 118 S.Ct. indifference to human life. States, Loving at v. United 748, 773-74, U.S. 116 S.Ct. Supreme The Id. Court declined further re- (1996), Supreme L.Ed.2d 36 held Court view of this issue that it voiced such concerns delegated authority President had the during argument denying Loving’s about oral prescribe aggravating circumstances for the petition for Loving a writ of certiorari. military capital punishment scheme to main Hart, 525 U.S. S.Ct. validity tain the constitutional of it. The (1998). L.Ed.2d 533 aggravating additional establishing factors a Loving, in Like we are bound higher degree culpability necessary were Zant, requirement at U.S. military’s “to eligible felony save” the death “genuinely S.Ct. at narrow the class Military murder statute because the Code of persons eligible penalty” for the death criminalizing felony Justice article murder this can be done child abuse murder required Loving, no intent to kill. culpability if the cases defendant’s level of 756, 116 517 U.S. at at 1742. S.Ct. part narrowing process. Loving, of the See Following Supreme above, Court’s deci 47 M.J. at 444. As stated the better during argu sion and its voiced prece- concerns oral solution is to follow our established imposition ment penal holding about the of the death dent child abuse murder is a ty felony on murder defendants whose intent crime and avoid the Enmund/Tison required kill, Loving crimes problem altogether no intent as we did Wisdom. sought Barring further review of his prior holdings conviction and the return to our Alabama, 5. Beck v. 447 U.S. 100 S.Ct. 65 L.Ed.2d 392 crime, deciding year specific intent was issued the case over a murder is a child abuse under 21 ago.1 affirming per child abuse murder a cu- decision 701.7(C) pass constitutional muster as can judges concurring in opinion riam with three only if capital it is combined with a offense dissenting. judges result and two The case statutory aggravating circumstances our (1) one for two difficult reasons: (none culpa- concern the defendant’s of which (2) horrible, just question of facts are murder) culpability bility and the voluntary whether Fairchild was entitled to Combining requirements of Enmund/Tison. close. I voted to intoxication instruction was assessing punishment rea- these factors in original opinion concur result af- justifies more sonably imposition of the firming upon this case. That vote was based . on the vis severe sentence of death defendant very, very narrow resolution of the intent thereby guilty of murder a vis others found majority rehearing on unneces- issue. satisfying Zant. sarily erroneously expands the resolution maintain validi 11 To the constitutional Consequently, of that I dissented to issue. capital sentencing ty of scheme Oklahoma’s majority’s grant on decision to relief cases, culpability in child abuse murder Rehearing Fairchild’s Petition for and to point assessment must be made some opinion withdraw the handed down if process to determine the defendant 20,1998. August I case on further dissent to intentionally participated killed Rehearing Opinion the decision in the exhibiting child abuse a reckless indifference denying relief.2 I have Fairchild concluded I would rather have to human life. While clearly our case law holds that child abuse all the evidence and the sentencer who hears murder willful use of unreasonable force3 first hand make this de sees the witnesses is a I crime. would reverse that, termination, finding recognize I such a proper and remand the case for the instruc- Bullock, may appeal. made Cabana v. on be voluntary tions on intoxication. 689, 700, 88 U.S. 106 S.Ct. (1986) Accordingly, L.Ed.2d 704 this Court ¶ majority appears 2 The to have with- capital sentencing mandate that should either original opinion solely drawn the this case juries or undertake make this determination in order to revisit the issue of intent for culpability such a assessment future child crime of child-abuse murder willful use penalty abuse murder cases where the death proposition unreasonable force. That imposed penalty is to ensure the ultimate is properly petition not raised Fairchild’s for exacted on the small class of murderers who rehearing and cannot serve as a basis “are deemed the worst of the worst murder question. clearly revisit that limit Our rules ¶ Cheney v. ers.” OK (1) rehearing questions on relief submitted By making 78. child abuse appeal on direct which were overlooked holding- general murder a intent crime and (2)' original opinion, decisions conflict- culpability no assessment is Enmund/Tison ing express or''controlling with statutes au- defendants, required for child abuse murder thority brought not to this Court’s attention majority paves way higher a for court during pendency appeal.4 of the theOn penalty down the death in this and strike intent, original opinion simply in issue of discussed other horrific cases affirm join majority previously uninterpreted I stant case. As cannot section of endeavor, this I dissent. I child abuse murder statute. discuss the majority’s mistaken conclusion otherwise be- CHAPEL, Judge, Dissenting: original opinion low. As the neither over- apply controlling looked nor failed to authori- argued before this This case was ty, years ago opinion through almost and an there is no avenue which this Court two 701.7(C). January August 3. 21 1998 and that, origi- agree Judge I with Strubhar as the 3.14, 4. Rule Rules the Oklahoma Court withdrawn, nal opinion this constitutes the opinion Appeals, App. Criminal Title Ch. parties may pursue this case and both further review in accordance our Rules. with may properly may eligible reach the issue of intent murder Court defendant be for the penalty. death petition rehearing. on a majority 6' explicitly does not make question 3 The narrow raised in Fair- felony-murder analogy, opinion but the child is whether “willful use of unreasonable relies Wisdom v. State.7 Wisdom beat his so, requires specific force” intent. If Fair- stepson to death and was convicted of child child was entitled to an instruction on volun- abuse murder “use of unreasonable tary intoxication and the case should be re- rejected force.” We Wisdom’s Enmund/Ti- not, general versed. If this Court has held a argument using remarkably son anal facile eligible penalty intent crime is for the death ysis. We noted that Enmund and Tison kill, finding without of intent to both involved defendants who aided and any showing disregard or indif- reckless that, abetted and determined since Wisdom ference to the value of human life. actually himself, committed the murder those majority 4 The concludes that child apply. cases did not Thus this Court never general murder abuse intent crime. necessary sup reached the issue of intent However, this conclusion creates port death-eligibility. reasoning This did not logical anomaly, but a serious constitutional lead to Wisdom’s execution since we reversed- error. This Court cannot and should not the death conviction and remanded the sen eligible make a intent crime for the grounds. Thus, tence on other the United penalty. majority merely death con- Supreme States op Court did not have the actually cludes that a defendant who kills portunity pronounce to review this dubious may death-eligible any finding without of ment. injure. intent to kill or even This conclusion majority suggests 7 The Wisdom com- constitutionally Supreme unsound. The ports Eighth jurisprudence Amendment upheld Court has never such a conclusion and cites Cabana v. Bullock.8 In fact Caba- strongly and has indicated it -willnot so rule. na support holding. does not The issue only legitimate analysis finding a point Cabana was at what an Enmund death-eligible intent crime rests on a finding culpability of must be made. The comparison felony the law of murder. opinion relies on the Enmund formulation capital punishment provide Most states the that process somewhere in the there must be penalty occurring death for certain murders a person- determination that the defendant is felonies, in the course of enumerated and the ally culpable intentionally caused harm.9 underlying felony intent to commit the is states, As Enmund “It is fundamental that support sufficient to the conviction for mur- ‘causing intentionally punished harm must be Supreme der. The Court has that held such severely causing more than the same harm may death-eligibility convictions result unintentionally.’”10 quote In the cited (a) only if there ais determination that the majority, the Cabana describes Enmund as defendant intended life taken or contem- rule, stating categorical imposing the a sub- used,5 (b) plated that lethal force would be or imposition stantive limit on the of the death personal the defendant had substantial in- penalty, that “a who has not in fact underlying felony killed, kill, volvement in the and ex- attempted to a intended that disregard hibited reckless killing place indifference to take or that lethal force be used the value of human may life.6 This not be sentenced to death.”11 Cabana Enmund/Ti- necessary felony son formula before also notes Enmund concerned with Florida, Enmund, 5. Enmund v. U.S. 102 S.Ct. 458 U.S. at S.Ct. at 3377. (1982). 73 L.Ed.2d 1140 Hart, (quoting Respon- Id. H. Punishment and Arizona, 6. Tison v. 481 U.S. 107 S.Ct. (1968)). sibility 162 (1987). 95 L.Ed.2d 127 CR 22, Cabana, 7. 1996 OK P.2d 384. 474 U.S. at 106 S.Ct. at 697. 8. 474 U.S. 106 S.Ct. 88 L.Ed.2d 704 capital felony killing and still have no ele- for a and establishes

guilt or innocence capital crime.12 Ca- asked the particular punishment for it.”18 One Justice ments of of General, no comment the level itself makes in this bana “Was it clear case Solicitor Enmund rule. intent assumed felony aspect of homicides that it was premeditation that were the committed with Tison, Cabana, Enmund, 8 In aggravators?” Later a asked: Justice with the choice between Court was concerned finding personal cul- no a defendant with requirement kill there a—an intent to [I]s murder, pability- and a defendant who had for 918? section intentionally refers to one killed. Enmund intentionally, noting actually that who kills enough im- killing Accidental would be as .a deterrent penalty death “can serve 118, 10 pose penalty [Art. the death under premedita- murder is the result of when 918(4)]? U.S.C. None of these cases tion and deliberation.”13 a de- contemplated the issue Fairchild: actually any find- who killed without fendant during Suppose drop gun holdup. I injure. kill In ing somebody. gun[ goes Is ] off and kills Reeves,14 Supreme Court reit-

Hopkins v. enough satisfy requirements holding that courts erated Cabana’s state 918(4)19 [§] 10 U.S.C. point must at make an some Enmund/Tison that, argued although The Solicitor General personal culpability for a determination of felony-murder sufficient statute lacked felony-murder Supreme defendant.15 The satisfy Eighth intent to re- Amendment required this determination even Court death-eligibility, quirements for the Govern- though was the actual killer. Hopkins aggravating relied on the factor that ment ¶9 States,16 Loving the Su- v. United triggerman. Loving was the The Justice that, preme held without the addition Court continued: factors, Military aggravating a Code of Yes, get you but that still doesn’t to intent authorizing penalty the death Justice article aggravating factor isn’t an ele- and the felony sufficiently murder was not narrow ... ment. under Enmund where there was no determi- kill or defendant intended to nation actually Loving triggerman killed.17 was the may imposition limit of the death [I]t [the felony-murder Although Lov- case. provide missing penalty] it doesn’t but intent, ing resolved on the issue of was not element.... clearly of concern to several Justices argument. point

during oral At one Justice accidentally.20 triggerman it The can do counsel, “Enmund I petitioner’s Scalia told replied there, that the intro- your position you The Solicitor General supports think the, automatically “unlawfully kills”,. transpose the mens rea duction to statute said can’t Id., 385, felony-murder provisions 106 S.Ct. at court held the of the 12. U.S. at 696. 118(4) Military Uniform Code of Justice Article Enmund, 799, only at at 3377. when combined with an 13. 458 U.S. 102 S.Ct. were constitutional aggravating factor sufficient to meet both capital narrowing requirements 14. 524 U.S. 118 S.Ct. 141 L.Ed.2d and the En (1998). Hopkins culpability requirements. Loving issue in was whether state The v. mund/Tison Hart, (U.S.Ct.App. must instruct on offenses which are courts Armed M.J. charged 1998). offenses of the crime. lesser-included Forces Id., S.Ct. at 1902. 15. 524 U.S. at Id., 517 U.S. at 116 S.Ct. at 1742. U.S. 116 S.Ct. 135 L.Ed.2d 36 16. 517 U.S., Loving WL No. Loving was whether the The issue 9, 1996). (U.S.Oral.Arg. Jan. *11 prescribe necessary aggrava- President could violating separation ting factors without *34. 19. Id. at Loving powers doctrine. After this decision sought from the United States mandamus relief Appeals Id. at *35. Court of for the Armed Forces. That commented, majority have to be 12 The bulk of the discussion would “[TJhere proving culpability, reck- is devoted to that “willful use of presumably some level something gross negligence general lessness or unreasonable force” intent crime. is. requires pages like that.”21 This fourteen which the majority selectively general cites from intent returned to the 10 Later Justice Scalia explain attempts distinguish to eases appeared, it under question and said intent prior, deciding our cases this issue. The statute, perpetrate killing “You can majority opinion suggests Legisla- also intending kill.”22 The without Solicitor deliberately kept has redundant or un- ture statutory intent agreed there was no General necessary language every amendment to said, requirement, kill and Justice Scalia the child- abuse murder statutes. We have stands, guess I means [§] it now “[A]s consistently statutory language 'for held 118(4) invalid, constitutionally [as invalid requires underlying statute of child abuse penalty].”23 Another Justice add- the death injure.25 majority intent to The ed, previous phrase insists that our use of ihe Scalia, I’m, somewhat ... with Justice injure” says. “intent to does not mean what it 118(4) because of does [§] confused the — majority The holds that the entire child person permit engaged of a conviction statute, provisions murder even the abuse who, robbery say, negligently and let’s conduct, prohibiting encompasses malicious jus- unlawfully therefore without excuse only general unnecessarily intent. an that, tification kills someone else. And majority sweeping pronouncement the of this negli- provided he’s.the who did it - negates previous all law Court now our case unlawfully, gently and therefore would on this issue. imposition penal- permit the of the death ty.24 majority previous “clarifies” our (cid:127) ¶ exchange suggests 11 This the Court in- by suggesting that the “intent to cases any attempt will look with disfavor jure” requirement only in each means death-eligible general intent crime make a prove State must review of without at least an Enmund/Tison leading injury commit the act to the child’s culpability. majority provides personal brief, or death. A review .of the cases shows rejects for no such review and Fairchild’s enterprise. These extreme- this is a fruitless claim of error. Enmund/Tison Under ly plain holdings need no clarification. today, is convicted Court’s decision Fairchild ¶ 14 In Watkins State the defendant general intent crime and unconstitution- of a charged injury to a minor child: the ally eligible penalty with- made for-the death injured child was when the defendant fired any finding of intent. I would avoid this out shotgun through a window and killed some- by following problem completely our well- one held the evidence showed else. We holding child abuse murder is settled law life directed disregard reckless for human convicted, specific intent crime. If properly “intent to the child victim since there was no other child abuse murder Fairchild torture; injure, mandated to or maim as in- will not need defendant Enmund/Tison being statutory language the statute. The jury already will have structions since the understandable, readily clear and find personal we regarding made determination lacking present culpability. the element of intent 795; State, 51, 793, P.2d at *36. OK 21. Id. Revilla v. 1143, denied, 24, cert. 1994 OK CR 877 P.2d 22. Id. at *51. 1096, 764, L.Ed.2d 661 U.S. 115 S.Ct. State, 215, (1995); v. 1987 OK CR Watkins 23. Id. P.2d 967. 24. Id. at *52-53. 215, 26. 1987 OK CR 744 P.2d 967. State, 67, Grady 25. v. 947 P.2d 1070-71; 1069, Bannister v. 60, 1176; 930 P.2d Hockersmith

case.”27 legal mitment interpretation to the that the legislature intended made child abuse to charged 15 Revilla State28 child specific murder a intent crime. through abuse murder “use of unreasonable majority inexplicably suggests force.” The majority 17 The claims Workman v. required Revilla held State was not to disposes State38 of the issue of intent for prove injure.” contrary, “intent to On the child abuse murder. The entire Workman State,29 the Court cited Drew v. further dis- requirement discussion of the mens rea below, support holding cussed to its child abuse murder follows: child has abuse murder intent re- 701.7(C) § complains also quirement injure.30 of intent to Revilla also any again lacks mens rea. We must dis- specifically found the instructions were ade- 701.7(C) agree. The intent for is found quate jury required to tell the the State was in 21 O.S. 843 under the prove intentional,31 the victim’s death was ‘willfully’ ‘maliciously’. See Drew v. and found other crimes evidence admissible (Okl.Cr.1989). 224, 771 P.2d injure to show the defendant’s intent to assignment This of error lacks merit.39 victim.32 ¶ 18 This appear brief discussion does not ¶ 16 In Hockersmith v. State33 we held it phrase to use “general intent” as a term required was error instruct that “willful” art, question but as an answer to the injure no intent jury where the was not whether the child abuse murder statute con- injure” also instructed on the “intent to ele- any tains Although intent element at all. Again, ment of child abuse murder. it, majority Workman relies on the Fairchild regarding requirement Court cited Drew neither cites nor discusses Drew. As cited in injure.34 of a intent to Bannister v. Workman, Drew stated: reemphasized State35 the Hockersmith deci- clearly provides Section 843 found, specifically employed sion and “As those acts which are committed a willful [the abuse child abuse murder] or malicious manner fall within pur- statutes, interchange- the term willful—used view of the statute. Because the mens rea ably require with malicious —must an intent 701.7(C) element supplied by of Section injure if the mens rea element for those 843, Section argument we find that any Following crimes is make sense.”36 lacks merit.40 Hockersmith, Grady v. State37 held that the Drew also states: required child abuse murder statute intent to injure defining instruction prosecution “willful” attempts Where the to utilize requiring 701.7(C) no intent to conviction, was confus- Section for a murder it However, ing. the Court found where the must first establish that all of the elements adequately was otherwise O.S.1981,§ instructed on of child abuse under 843 are injure” element, the “intent to proved beyond error a reasonable In- doubt. automatically require instruction did not among re- cluded those elements is the re- versal. quirement These cases show an unbroken com- that the acts be committed added). (emphasis 27. Id. 34. Id. at 795. 1143, denied, OK CR 60,

28. 1994 OK CR cert. 35. 1996 930 P.2d 1176. 513 U.S. 115 S.Ct. 130 L.Ed.2d 661 Id. at 1178. 29. 1989 OK CR 771 P.2d 37. 1997 OK CR 947 P.2d 1069. Revilla, at 1148. denied, 38. 1991 OK CR cert. 506 U.S. 113 S.Ct. 121 L.Ed.2d 189 31. Id. at 1149. added). 32. Id. at 1152. (emphasis 39. Id. at 383 OK CR 51, 40.Drew, 33.1996 926 P.2d 793. 777 P.2d at 228. Therefore, majority apparently the 20 The realizes manner.

willful or malicious appearance inconsistency finding requirement adoption mens rea of the the parts abuse statute some .of murder 843 does alter State’s of Section not (i.e., previous require, specific intent all our proving element of burden of each ultimate - law) 701.7(C) portion requires only while one- beyond a reasonable case Section majority general The solution is to intent. doubt.41 that both “willful” and “malicious” de- insist support Workman’s broad Drew does not only general surprisingly, intent. Not .note gen- § § a 7115] [now statement that majority’s support cited eases none of the fact, In it does decide eral intent crime. above, legis- I proposition. this As note our merely § and and holds that issue specific “malicious” as a lature has defined 701.7(C) unspecified § an combined have intent crime. more rea- rea I submit the mens element. reading in Revilla and is contained sonable majority argument 1T21 The crux of the Hockersmith, interpreted to re- which Drew always general in- is that “willful” denotes quire specific a intent. tendentiously opinion tent.' The discusses general intent cases in which the term “will- was con- 19 The defendant Workman peripherally, may or appears ful” even be degree murder. of first child abuse victed appear. inferred to As the discussion below opinion impossible what it is to tell From notes, collectively represent all these cases prohibited gave rise to the particular act that, unsurprising gener- a conclusion However, opinion charge. on its face the crime, requires al intent the word “willful” specific crime. appears to refer to a intent only general a intent. clearly “mali- legislature has defined Our denoting crime.42 cious” as intent ¶22 defending regard- its conclusion majority attempts get The around this intent, majority many ing cites one of required reciting the definition of “malice” distinguished has cases which this Court degree murder conviction for a first malice general specific intent. In the between and 701.7(A). opinion compares § under syllabus, says: Vandiver v. State44 majori- “malicious.” The this definition with general 4: Two classes of “intent” exist (a) 701.7(C) § ty suggests either law, “general the criminal so-called in- against prohibition child murder mali- crimes, tent” which must exist in all 701.7(A) § incorporates cious conduct “spe- further mental element known as the (b) murder, legislative use of “malice” particular cific intent” which is essential apply of “malicious” does not definition crimes. 701.7(A) child abuse murder because uses incorrect, appears it is This sentence nowhere Vandi- “malice.” Not is this thesis, opinion, only specific in- directly majority’s ver which discusses opposed to the was con- requires tent. The defendant Vandiver since malice murder kidnap, intent to which victed of assault with to kill. Section under Workman trial was whether the State charged, prohibited will- the issue and Fairchild were secretly torture, Confine injury, maiming or showed he had the intent ful or malicious noted intent was an element force.43 As the victim. We use of unreasonable Workman kidnapping, and determined- say charged conduct of the crime does not whether “malicious,” evidence existed because alleged to “willful” or insufficient speculate statutory would have to on what must assume both terms Court Court might have done. “The law will were used. defendant statute, prohibi- contains the same 43. The current Id. 41. O.S.Supp.1995, § 7115. tion. ‘maliciously,’ when "The terms 'málice' vex, annoy employed, import so a wish Okl.Cr.217, (1953), re 44. by proof person, established either another part grounds by on other Parker versed in presumption of law.” 21 majority cites no case in which this Court held "malicious” denotes a intent. has beyond presume not an intention that real- intent status on an offense. In State v. ized the act.”45 phrase Madden48 the issue was whether the “great bodily majority syl- injury” aggravated 23 The uses the Vandiver as labus to conclude that the child mur- abuse sault statute was void. This Court held it der has no statute further mental element not, incidentally specific and noted specific requiring support intent. To aggravated intent was not an element of majority dubious conclusion the must find assault, general presumed intent was from “willfully maliciously” general refers to the act. The term “willful”is not an issue in only, even in intent the context of murder. the discussion of either the constitutional is majority Kreijanovsky The cites v. State46 Madden, sue or the dicta on intent. and the argument for the that “willful” “mali- and Quinn State,49 majority, rely on v. in which general cious” denote intent crimes and do distinguished aggravated we assault and bat require proof specific Kreija- not intent. tery greater from the offense of assault and novsky Degree was convicted of Bur- Second battery bodily with intent to do harm. glary and arson. This Court determined the Quinn noted the well-settled law of intent: failing trial court did not err in to instruct sponte voluntary sua on the issue of intoxi- “Generally speaking, to constitute a crime cation because must, except provided the act as otherwise [Ajrson crime, specific is not a intent and statute, accompanied by a criminal voluntary intoxication is available as de- accused, part intent on the of the only fense when the crime with which the negligent such and reckless conduct and charged defendant is has as its mens rea consequences indifference to the of con- specific spe- element a criminal intent or a regarded by duct as is equiva- the law as cial mental element. See lent to a criminal intent.”50 Boyd and 572 P.2d 276 (Okl.Cr.1977),respectively.47 We general found sufficient evidence in- Quinn “intentionally,” tent “willfully where suggesting There is no discussion that either deliberately” gun. fired a only general “willful” or “malicious” refer crimes. possible way intent to infer State51, Tarver v. this Court con- that, this from this case is paragraphs a few meaning strued the of “willful” in the man- later, discussing proposition, a different slaughter prohibiting killing statute willful statutes, opinion pro- cites the arson which an “unborn quick child.” We said “willful” is “willfully hibit from and malicious- equivalent “knowing,” cited the statute ly” burning proper- inhabited or uninhabited defining implying purpose “willful” as ty. may While this be a reasonable inference act,52 willingness to commit the and conclud- (for only), the term “willful” exactly it is subjec- ed the term refers to the defendant’s implied kind of dicta ought on which we (intending tive state of injury mind to inflict sweeping pronouncements. to base with awareness that death of the child would majority argues “helpful” it is result) likely requires no intent look at the use of “willful” dealing in cases State,53 kill. We relied on .Lamb general crimes, such as assault charged which a defendant was manslaughter. with willful contrary, On the those support provide. cases do not failure to the contention There we held “in this automatically word “willful” confers connection” willful was the same as know- Vandiver, 45. 261 P.2d at 625. 50. Id. at 476. CR 120, 706 P.2d 541.

46. 1985 OK 51. 1982 OK CR 1334-35. P.2d added). (emphasis Boyd Id. at rape held require Boyd, did not intent. O.S.1991, § 52. 21 at 278. 48. 1977 OK CR 53. 1956 OK CR 293 P.2d 624. (Okl.Cr.1971). 49. 485 P.2d 474 majority held that The notes Morse compares with here. majority Tarver

ing.54 The to the crime of was not defense Construing man- intoxication federal v. State55 Miller implies beating, that Fairchild and law, trial court held the slaughter this Court vain,hope cite the case “willfully” failed to meant to properly instructed it. It is far more the would overlook, Court lawful ex- intentionally, designedly or without it it likely that Fairchild failed to cite because injury causing an result- the act cuse commit an inaccurate state- course, both irrelevant and This, merely re- ing in death.56 charged ment of settled law. Morse was manslaughter. definition of states the beating precursor under the to 21 with child ¶26 Turning child abuse murder to the O.S.1991, claim denying 843. his the § In itself, majority compares “willful statute stated, to is no defense Court “Intoxication unreasonable injury” “willful use of with majority’s cases any crime... .”61 The cited preface “willful” de- suggest force” untrue; voluntary intoxi- show that majority argues general The intent. notes certainly all crimes defense to cation is killing” injury” is the same as “willful “willful specific in- requiring to form a a defendant spe- has no manslaughter, a crime which Further, an act. the child tent to commit majority on The relies intent element. cific longer contains the lan- abuse statute no suggest the “use v. State57 to Holder charged. Fi- guage under which Morse was (the battery equals will- force” unreasonable nally, deciding whether intoxication is a case force).58 Holder ful unlawful use of and battery on a child is remark- defense § battery 843 child abuse compared ably determining appropri- little value that under provisions and determined is intent rea where the issue ate mens only differing that ease the circumstances of is dead. and the victim requirement § element was says years majority disregarded our rules than 18 old.59 This victim be less grant petition for re- nothing beyond facts of that case. order to Fairchild’s expand hearing, opinion, and withdraw support its claim that In an effort to necessary holding on the intent the narrow only requires general murder child abuse so, doing murder. for child abuse intent, majority engages in ah irrelevant law, rejects, majority settled recasts child opinion examines semantic exercise. crime, general intent abuse murder as a statutes, apparently at ran- various criminal death-eligible. general intent crime makes a dom, determines that several I dissent. “intent” in the crimes contain the word general in- statutory language, several while opinion do not. The concludes tent crimes 701.7(C) § nor contains that neither word “intent” so both must be quantitative attempt at intent crimes. This statutory analysis legitimate inter- is neither analysis. might as pretation legal nor One legislature used count the times the well “the.” majority appears rely 28 The voluntary its claim that Morse v. State60 for required not intoxication instructions were Holder, 59. 1052. 54. Id. at 630. Okla.Crim.55, 130 P. 813 55. 51, 438 P.2d 309. 60. 1968 OK CR 56. Id. at 814. surprisingly, has 310. Not Morse Id. at 288, 556 P.2d 57. 1976 OK CR publication, that was been cited since once this, extremely,dubious discussion. 58. 21

Case Details

Case Name: Fairchild v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 11, 2000

Citation: 998 P.2d 611

Docket Number: F-96-121

Court Abbreviation: Okla. Crim. App.