*1 one, more, being an affirmative the defense claim
PSO has the burden to show Allen’s applicable statute of
was time-barred
limitations. Id. If the factual determination on the issue is rea-
made the trial court evidence,
sonably supported by the will not disturb it on review. Ibid. Compensation Workers’ injurious the last date of
court found 14, 1989,
exposure February approxi
mately two weeks before the claim was filed. addition, specifically the trial court held run,
the statute of limitations had not i.e. the § timely Both
claim was filed under 43. finding legal
factual conclusion are evidence,
reasonably supported Choate, supra. will not disturb it.
we Con
sequently, we need not determine when the so that a
condition first became manifest diagnosis reasonably
medical could have been of, discovery Coy
made under 43. The rule in this case. n - play did not come into reasons, foregoing
For the above and Appeals
opinion of the Court of is VACAT- Compen-
ED and the order of the Workers’
sation Court SUSTAINED.
All the Justices concur.
Gregory MITCHELL, Appellant, Oklahoma, Appellee.
STATE
No. F-90-860. Appeals
Court of Criminal of Oklahoma.
Dec. 1993. July
Rehearing Denied *2 requires issue which reversal
remand for new trial.
Appellant complains: 1. That the instructions were im- proper because there was no evidence that Appellant, whose defense that he was present, departed with “consciousness guilt in order to avoid arrest.” That im- instructions were proрer charged with find- because it ing “the Defendant’s innocence.”
Appellant charged Robbery with with photo- Firearm. He was identified from graphic lineup days three after the robbery. putHe no trial. The defense at argument essence of first is that intrinsically instruction is because erroneous assumes that the defendant committed alleged crime. The as it re- lates to is as follows: BEEN INTRO- EVIDENCE HAS OF THE DE- DUCED DEFENDANT’S AL- AFTER THE PARTURE SHORTLY LEGED CRIME WAS COMMITTED. FIRST DETERMINE YOU MUST (At Trial), Terry Public De- Oliver Asst. BY THE WHETHER THIS ACTION (On fender, Barry Derryberry Appeal), Asst. DEFENDANT CONSTITUTED Defender, Tulsa, appellant. Public FLIGHT. (At Trial), Timothy H. Dist. Harris Asst. “FLIGHT,” IT USED THE TERM AS IS (On Tulsa, Ap- Atty., Loving Brimer Susan INSTRUCTION, MEANS IN THIS Miller, Atty. Gen., Asst. peal), Jennifer B. DEPARTURE CON- MORE THAN OR Gen., City, Atty. appellee. Oklahoma FLIGHT, A BE CEALMENT. TO IN DEPART- DEFENDANT MUST HAVE OPINION OF ED WITH A CONSCIOUSNESS ARREST. IN TO AVOID GUILT ORDER JOHNSON, Presiding Judge: Vice OFFERED DEFENDANT HAS **[THE Mitchell, Gregory was tried Appellant, ACTS. EXPLAINING HIS EVIDENCE Robbery jury and of the crime of convicted THE CLAIM YOU MUST CONSIDER O.S.Supp. Firearm in violation with. DETER- THE DEFENDANT IN OF No. CF-89-1035 Case OCCURRED.]** IF MINING FLIGHT County Tulsa before District Court of intro-' has where defendant Must be Dalton, Judge. Jay D. District Honorable acts. explaining his duced evidence guilty recom- Appellant found (18) eighteen years punishment mended THE FIND THAT DEFENDANT TO judge ac- imprisonment. The sentenced FIND IN YOU MUST WAS Judgment and Sen- cordingly. From this A REASONABLE BEYOND tence, appeal. perfected this FIRST, THE DEFENDANT THAT: SECOND, reversal, PARTED; A CON- WITH requiring have error As we found THIRD, GUILT; IN OF the facts SCIOUSNESS recitation of we deem detailed THE FOR Additionally, ORDER TO AVOID ARREST unnecessary. we will address circumstances, HE der it is the defendant CRIME WHICH these WITH who either admits to the CHARGED. and/or places removing himself at thе thus IF, AFTER A CONSIDERATION any assumptions. ALL THE EVIDENCE ON THIS IS- *3 SUE, A REASON- YOU FIND BEYOND Throughout history judicial de- THAT THE ABLE DOUBT DEFEN- velopment flight of our law on instructions as FLIGHT, THEN DANT IN THIS WAS pertains required we have A CIRCUMSTANCE explana- that the defendant offer evidence in MAY WITH WHICH YOU CONSIDER Brunner, of such P. tion conduct. See 238 ALL THE OTHER EVIDENCE IN 1000, where we stated: QUESTION THE THE TERMINING OF Flight of a defendant is a circumstance HOWEVER, DEFENDANT’S GUILT. tending prove guilt, and where the state IF A YOU HAVE REASONABLE offers evidence of the conduct of defendant THAT IN DEFENDANT WAS prove flight, tending to and the defendant THE FACT ANY THEN in explanation offers evidence of such con- A DEPARTURE IS NOT CIRCUM- duct, proper question to submit the of TO STANCE FOR YOU CONSIDER. flight as a matter of fact for determination, the instruction does assume the
While their and to instruct them crime, that, defendant to have committed such they beyond find a reasonable assumption placed fled, is well under the circum that the defendant doubt appropriate. where the instruction is stances considered as a circumstance added.) long upheld giving of This Court has prove guilt. (Emphasis flight instructions where the defendant inter 920, Sprouse, 3 P.2d at wе held: justifiable posed plea a of self-defense there Where is evidence of which is explaining homicide or testified at trial his appears denied or what to be State, departure. Colglazier v. 23 Okl. See court, explained, it instructs on the 23, 332, (1923); Cr. 212 P. 335 Bruner v. guarded matter of should be in its State, 351, (1925); P. 31 Okl.Cr. 238 1000 language and not аssume the of conduct State, 184, 918, Sprouse v. 52 3 P.2d Okl.Cr. added.) flight. (Emphasis accused is a (1931); State, 305, 919 v. 53 Okl.Cr. Lunsford Lunsford, 540, 11 P.2d at this Court 539, State, (1932); Compton 11 P.2d 540 v. 74 held: 48, 122 819, (1942); Okl.Cr. P.2d 821 Graham question of is one of fact and not State, 159, 758, v. 80 Okl.Cr. 157 P.2d 763 law, question and ivhere the is contro- (1945); State, 137, Wilson v. 250 verted, the court in its instructions should 72, (1952); State, 75 P.2d Smith v. 291 P.2d fled, not assume that the defendant but if State, 378, (Okl.Cr.1955); 444 380 Ward v. upоn question 255, (Okl.Cr.1968); 259 Padillow v. given, it should be submitted to the State, 837, (Okl.Cr.1972); 501 P.2d 841 Varan added.) (Emphasis aas of fact. State, (Okl.Cr.1975); v. Lane State, 991, (Okl.Cr.1978); v. 572 P.2d 994 Wilson, It was our decision in 250 (Okl.Cr. State, 1163, Douma v. 749 P.2d 1167 75, that held that the trial (Okl. 1988); State, v. 751 P.2d Scott courts should define in first their Cr.1988); Stewart v. 757 P.2d jury, structions to the but also offered the (Okl.Cr.1988); McDonald v. 764 P.2d following flight: instruction on (Okl.Cr.1988). 202, 204 Evidence has been introduced relative to appro-
We have also held the instructions
of the defendant after the
priate
You
in-
where defendant’s statements concern-
assault had occurred.
are
ing departure
voluntary
you
are made
a
con-
structed that
must first determine
Denney
fession.
346 P.2d
whether or not the actions of the defen-
See
(Okl.Cr.1959);
flight.
Potter v.
511 P.2d
dant constituted
this connection
(Okl.Cr.1973);
Alberty
you
you may
are told that
all the
consider
you,
Un-
facts and circumstances before
running away
act of
with
chiding
his
item,
difficulty,
completed
the scene
the stolen
the element of
away”
“carrying
required
grand larceny.
and if after a considеration of such evi-
harmless,
beyond
Thus,
error,
you
though
are convinced
reason-
dence
it was
fled
after
argu
able doubt that
instructions
While
same
then
occurred
such
robbery,
assault
ment can be made
we believe
be con-
circumstance
the violation of a defendant’s fundamental
by you with all the оther facts and
sidered
presumption of innocence to be far more
and,
circumstances
grave;
error to be
thus the
fundamen
or innocence.
case,
tal.
facts in this
it was
Based
added.)
(Emphasis
*4
error
on
reversible
to
instructions
that instruc-
It is clear from the above cases
argument
that
secоnd
is
pertaining
tions
to
should
on
charged
jury
the
to
the
instruction
the
find
given only in
the evidence is
be
cases where
beyond
was
defendant
innocent
reasonable
and
as an
controverted
instruction,
doubt,
language
to
in the
due
the
exception rather
as a rule.
than
“...
this
then
is
circumstance which
appеars
paragraph of
It
that the third
you may
all
other
consider with
the
causing
806
the confusion
OUJI-CR
question
in
case
of the
the
the
where it notes: “Must be
where defen
guilt
innocence.”
explaining
dant
introduced evidence
his/
early opinions of this
in
cites several
Court
It
that
her acts.”
could be inferred
even
However,
support
argument.
of his
we do
the
does not introduce evidence
defendant
analogous
to
not find OUJI-CR 806
acts,
explaining
instructions
his/her
essence,
the
instructions
those cases.
given.
pertaining
still be
juries
they
found and
were instructed that
language
from that
is
correct inference
from
that the defen
beliеved
the evidence
dealing with
acts
that in cases
other
consti
information,
alleged
it
dant
the act
did
i.e., concealment,
tuting
escape
flight,
or at
him,
duty
fur
would be their
to convict
and
tempt
escape
custody, bond
forfei
they
hearing
ther after
all the evidence
be
n ture, etc.,
paragraph
the
need not be
third
innocent,
the
then
lieved that
defendant was
cases,
given.
appropriate
those
the
act is
duty
acquit
it
their
him.
In those
“departure,”
for the word
where
substituted
cases,
consistently
the
this Court
held that
the
This inference is
relevant in
instruction.
the
violated
most fundamental
806
based on the fact that OUJI-CR
follows
is on the State and not
rule that the burden
Wilson,
guidelines
the
articulated
Further,
required
the
defendant.
the
Comment, Commission
See
prove
not
act
that he did
do the
defendant
806, P. 284.
This Court stat
the information.
position
that inten-
Because
State’s
resting on the defen
ed that the
burden
merely by leav-
tional
is demonstrated
of his
dant was to raise a reasonable doubt
ing
crime
because the
the scene
guilt.
instruction,
pertains
as
to have committed
assumes the defendant
recently,
reaffirmed
More
this Court
crime,
necessary to limit the
improper
long
position
our
held
that it
as indicated above.
giving of said instruction
guilt or
jury thеy must
tell a
determine
put
trial court in
To do otherwise would
jury’s duty
It
to determine
innocence.
elementary
position
violating
prin-
guilt
has demonstrated
whether
State
presumed to
ciple
the accused shall be
If the State fails
beyond a reasonable doubt.
v.
proven guilty.
until
See State
be innocent
burden,
must find thе
its
sustain
362,
274,
P.
275
Bonning, 60
199
Mont.
guilty.
v.
735
not
Vuletich
defendant
(1921),
this
one of the cases which
lan
While the
569
Sprouse,
... the standard presentation pre- of evidence is a flight is not whether other relative to tions explicable of the cir- the requisite for an instruction is on issue explanations surrounding apprehension, theory cumstances the of defense. whether, of other the context but viewed case, presented present In the the State evidence, or inno- tends to еstablish departure from the evidence cence. the scene of the crime. Whether conduct McDonald v. question properly left constituted (Okl.Cr.1988) complained the appropriate instructions. under proper as it given was not a correct statement of the 806 is paragraph of did third OUJI- not сontain the law whenever and should be This held that CR 806. tending to presented State necessary paragraph third where However, I do concur show ex- failed offer evidence defendant portion last instruc amendment plaining his from the scene of the “determining changing phrase tion State, 511 P.2d Potter v. crime. See also guilt or inno question of the defendant’s (Okl.Cr.1973) flight in- (giving of “determining cence” upheld despite failure of defendant struction guilt” per our decision Vule scene). leaving explain tich v. represent appro- I find the above cases Judge to state LANE I am authorized interpretation governing priate law jоins separate in this vote. giving To limit the of an instruction. flight to the existence of con-
instruction on
CHAPEL, Judge, specially concurring:
*6
presented by the
troverting
defense
opinion suggests
unfairly
would
as the Court
with the Court’s decision in
I concur
incorrectly
in-
evidence of
allow
a
trial.
reverse and remand for
new
case to
jury.
terpreted
applied
This
Hоwever,
opportunity
I
would take this
evidence of
struction must be
each time
abandon
use
not,
explained or
presented,
is
whether
trials
The Oklahoma
criminal
in Oklahoma.
jury’s
mak-
properly
decision
channel
Instruction,
806, cannot be made
not
ing process to
that evidence is
ensure
wording
changеs
minor
be-
acceptable
given greater weight than it should receive.
is
valid reason to ever
there
no
cause
instructions,
guidance
of the
Without
such an instruction.
just
be-
jump to the conclusion
could
First,
pur
no real
the instruction “serves
scene, he
left the
or she
cause a defendant
general
рose,
particularization
it is a
as
Through
holding
ipso
guilty.
facto
evidence, and as the
charge on circumstantial
determines,
decision,
with a
in this
the Court
circumstantial evidence
is free
use
state
result,
allowing
it will be
“consciousness” of
guilt.”
argue the defendant’s
Cam
flight to
argue
the issue
the State
Ga.
345 S.E.2d
eron v.
argument in
case where evidence
closing
(1986) (Bell, J., Concurring).
without the
during
admitted
being submitted to the
narrowing instruction
however, evidence that
importantly,
More
of an
left the scene
person
departed.
“...
or she
proves
that he
the well
majority does
contest
knowledge that
common
a matter of
[I]t is
be a circum-
rule that
can
established
Therefore,
entirely innocent do sometimes
are
guilt.
men who
to show
stance
through
fear
fly
of a crime
from
scene
tending to show
any evidence
when
parties, or
guilty
apprehended as the
being
commission of
it be relevant
whether
appear as witness
unwillingness tо
from an
from the
the offense
U.S.,
16 S.Ct.
Alberty
introduced,
es.”
on the
be instructed
U.S.
(1896).1
infer
864, 868,
To
Melissa Louise Oklahoma, Appellee.
STATE of Gile,- trial, City, Merle Oklahoma at Allen No. F-90-0328. Smith, Defender, Appellate Indigent Asst. Appeals Court of Criminal of Oklahoma. McCarty, Deputy Appellate and Lisbeth L. Defender, Norman, Indigent appeal, on 3,May 1994. appellant. Deason, trial, L. Donald Susan Brimer Loving, Atty. Gen. of Oklahoma Patrick Gen., Crawley, Atty. T. City, Asst. Oklahoma appeal, appellee. SUMMARYOPINION STRUBHAR, Judge: This case involves the murder of Robert City, Adams in Oklahoma Oklahoma Au- gust Appellant, Melissa Louise O’Bryan, was convicted of Murder in the first *7 degree imprisonment and sentenced to life 701.7(A) by jury. O.S.Supp.1982, § 21 O.S.Supp.1987, Appellant 701.9. raises three appeal challenging issues on her con- viction.
I. The evidence is support insufficient to Murder; First-Degree the verdict of II. The trial court in failing erred struct the on the lesser included offense First-Degree Manslaughter, despite Ap- pellant’s request that no such instruction be given;
III. received ineffective assis- tance of counsel.
Upon thorough review of those issues we conclude that each of contentions lack Accordingly, Appel- merit. we affirm do, however, lant’s conviction. We find that that the accused fled the scene of an actual or 483 n. 83 S.Ct. n. L.Ed.2d U.S., supposed Wong crime.” Sun v. 371 U.S.