Shrum v. State

Nicky SHRUM, Appellant, Lee Oklahoma, Appellee.

STATE of No. F-98-497. Appeals Court of Criminal of Oklahoma. 27, 1999. Oct. Ward,

Farley Dunagan, Mike Assistant Wilburton, OK, Attorneys, for the District at trial. State Counsel, Smith, Appellate Allen Defense Norman, OK, Appellant appeal. on for Edmondson, Attorney W.A. Drew General Holmes, R. Assistant William General, OK, Attorney City, Oklahoma Appellee appeal. on

OPINION

STRUBHAR, Presiding Judge: ¶ Shrum, Nicky Appel- Lee hereinafter lant, count was convicted of one of First (Heat Passion) (21 Degree Manslaughter of- 711(2)), following jury a trial in County, of Latimer Case the District Court CF-97-42, No. the Honorable Janice K. Skimbo, Judge, presiding. Associate District (25) twenty-five jury recommended imprisonment sen- years and the court accordingly. judgment From this tenced sentence, appeals. Appellant We affirm. ¶ July Appellant On shot stepfather, Campbell, at killed his Cleo their County, following in Latimer Oklahoma home argument. The issue at trial was a heated Campbell Appellant shot with malice whether passion aforethought, in a heat of self- defense. error, Ap- proposition of 3 In his first should reverse his

pellant claims this Court passion manslaughter degree heat of first to dismiss be- conviction with instructions manslaugh- passion heat of degree cause first not a lesser included offense of ter is murder, the crime with which degree malice Specifically, Appellant ar- charged. he was 1) passion manslaughter is not gues: premedi- “necessarily included offense” 2) murder; acquit must when tated alleged in supports 3) Information; trial court had no a crime not includ- jurisdiction to instruct on 4) crime; Appellant’s ined passion for first heat conviction process. At him due manslaughter denied trial, requested both second the State and first heat depraved mind murder Law, McAlester, manslaughter instructions. elote, Attorney B Jeff in- gave only the OK, trial court Appellant at trial. any objection by charged, attempt struction without defense an or of to commit the counsel. offense. added). (emphasis

¶4 Appellant relies on traditionally 6 This has Court denied, 930, 118 2329, 141 instructing jury cert. 524 held that the trial court U.S. S.Ct. the (1998) verdicts, possible on all especially 702 in in L.Ed.2d which this Court reaf homicide cases, must include all firmed that lesser included of “an offense is a lesser included supported by fenses Clearly the evidence.2 only greater one the where offense cannot be murder, degree degree malice second necessarily without committing committed depraved manslaughter mind murder and are the lesser.” (quoting Id. at 1080 State v. ¶ Uriarite, question related offenses.3 80, 8, 193, The is whether 1991 OK CR 815 P.2d 195). necessarily the lesser offenses are Although Willingham held that second greater in jury the a may offense since con degree depraved mind murder was a vict a defendant of those offenses degree lesser included offense of first malice O.S.1991, greater included in the 22 crime. murder, Willingham did not address wheth principal impediment 916. The to adminis degree er first manslaughter tering related, on instructions but not neces constitutes lesser included offense of first included, sarily offenses is the defendant’s murder, seemingly malice left process right due to notice charges question that unresolved. against which he must defend. See Parker v. ¶ 5 Oklahoma has codified its lesser ¶ State, 19, 18, 980, 1996 OK CR 917 P.2d included offense doctrine1 22 985, denied, 1096, cert. 519 U.S. 117 S.Ct. provides: § 916 which 777, (1997). 136 L.Ed.2d 721 A defendant is jury may guilty find the may defendant of deemed to know that he be convicted of offense, any the commission of which is greater the charged crime with which he is necessañly in that with any which he lesser included offense whether the "provides 1. The permit lesser included offense doctrine jury rationally evidence would tire to find may guilty that a criminal defendant the acquit be convicted at accused of the lesser offense and State, any supported by greater.”); trial of him crime Rowland OK 1991 94, 10, ¶ than, 263, within, ("it duty which is CR 817 P.2d less but included 266 is the the of of charged by prosecution.” fense trial court to determine as a matter of law James A. Strazzella, justify whether the evidence is Shellenberger sufficient to and James A. The Less submission of instructions offense, aon er Included Doctrine and the Constitution: Offense doubt, and if there is the court should Development Jeop Due Process and Double of State, jury.”); submit the matter to the Remedies, Walton v. 1, ardy (1995). Marq.L.Rev. 79 6 227, 6,¶ 977, (the 1987 OK CR 744 P.2d 978 originally "While developed the doctrine as an duty upon court has a to instruct lesser- prosecution aid to the when there was insuffi supported by included offenses the evidence in offense, cient evidence to convict on the though homicide cases even the instruction is not today by seeking it is more often used defendants State, 38, ¶ requested); 29, Hall v. 1985 OK CR a conviction for an offense less serious than that 33, 39; State, 698 P.2d Dawson v. 1982 OK CR (footnotes actually omitted) charged.” Christen 94, ¶ 4, 447, (“the 647 P.2d 449 court should Blair, R. Lesser Included Offenses jury instruct the on law of each 697, (1985). 38 Okla.L.Rev. 697 homicide prove which the evidence tends to requested part whether it be on the of the defen- State, 55, 19, E.g., Le v. 1997 OK CR not, duty dant or decide, and it is the of the court to 535, 546, denied, 930, cert. 524 U.S. 118 S.Ct. law, any as a matter of whether there is 2329, (1998) ("[i]n 141 L.Ed.2d 702 a murder evidence that would tend to reduce the case, jury the trial court must instruct the on degree”). the offense to in the first every supported lesser included homicide offense evidence.”); Clayton 3. Lesser related are offenses those which are 3, 12, denied, 892 P.2d cert. "inherently greater related" to the be offense 846, (1995) 116 S.Ct. 133 L.Ed.2d 84 they category cause fall within the same of crime (“[t]his required Court has held a trial court is to interest, designed protect and are the same but degrees instruct on lesser of homicide when State, theoretically possible greater "it is to commit the evidence.”); warranted Malone v. committing offense without the lesser.” Edward 43, 8,¶ ("[i]t Mascolo, 1994 OK CR G. Due Procedural Process and the Less beyond dispute Doctnne, that the trial court must instruct er-Included 50 Alb.L.Rev. Offense (1986). every degree on of homicide where the tially applied statutory ap- pled in the Infor strict elements lesser included offense is not. constitutional notice co proach mation or This required which all of the elements not arise when a defendant nundrum does offense be contained theory that he lacked the neces defends on impos- greater offense so that it would be greater sary intent element of the greater sible to commit the offense without requests a related lesser offense instruc the lesser.4 Id. at 703. This committing also claim tion because such a defendant cannot test is the most inflexible and results few of notice. lack having offenses lesser included ones because any particular offense is 7 Whether requires possible it under all circumstances “necessarily depends included” another that the commission crime will upon which lesser included offense test also entail commission of lesser offense.5 approach the trial is utilized and whether is, however, Id. at 699. It the easiest part two evidence warrants instruction. This apply. “legal analysis requires courts to make a first whether a crime consti- determination about ¶ 8 The Court has also found lesser of- tutes lesser included of the [a offense] fenses are included where the legally possi- charged crime or whether it is greater and offense are in the lesser the charged [a ble for the crime to include lesser closely same class of offenses and are or Shellenberger A. included James offense].” related, inherently but the elements do not Includ- Strazzella, Lesser A. and James satisfy statutory the strict elements test. ed Doctrine and the Constitution: Offense approaches sub-catego- These fall into three Development Due and Process Double of pleadings approach, ries: the the evidence 1, Jeopardy Remedies 79 Marq.L.Rev. 6 approach hybrid pleadings and a and (1995). or Courts use several different tests test, approach. pleading In the evidence the approaches legal to make this conclusion and only looked not at the strict Court elements employed this Court has all of the different offenses, the but looked to facts al- Blair, Lesser past. in the R. tests Christen leged in the to deter- Included in 38 Okla. indictmenVinformation Offenses (1985). 697, great- L.Rev. 702-03 This Court ini- mine if a lesser included offense of See, ¶62, 27, e.g., Willingham, 1997 OK 947 not a lesser included offense. Also found no CR (holding degree depraved support burglary P.2d at 1081 second evidence to in the second instruction); State, degree 69 mind murder is not a lesser included offense of Thoreson v. Okl.Cr. 128, 896, (1940) (same); degree 100 P.2d 902 and Coch- first malice murder because there are State, 379, 974, (1910) degree ran v. 4 Okl.Cr. 111 P. 975 situations in which “first malice murder (same). imminently danger can occur of without the use State, 22, conduct.”); Floyd ous v. 1992 OK CR ¶ 10, 981, (when P.2d 829 984 lesser offense degree 5. The of first malice murder are: elements requires greater proof of an element the does human; 2) 1) the death of a the death was not, offense); it is not a then lesser unlawful; 3) by death was caused the defen- Uriarite, 80, 8,¶ State v. 1991 OK CR 815 P.2d dant; 4) the death was caused malice and with 193, ("an 195 is a lesser included one offense O.S.1991, 701.7(A) aforethought. § See 21 and only greater where the offense cannot be com 4-61, OUJI-CR(2d). No. The ele- Instruction necessarily committing mitted without the less passion manslaugh- degree ments of first State, 24, 18, er."); Hale v. 1988 OK CR denied, 750 human; 1) 2) ter are: the death of a the death 130, 136, 878, P.2d cert. 109 3) justifiable; by inflicted was not excusable 195, (1988) (extortion S.Ct. 102 L.Ed.2d 164 dangerous weapon means or in cruel or requires proof kidnapping manner; 4) defendant; of an element that caused unusual not, 5) extortion does so it is not a lesser included performing and when the conduct which extortion, kidnapping death, offense of but lesser defendant was a heat of caused the in manslaughter 711(2) included offense instructions on passion. See 21 4-96, OUJI-CR(2d). and Instruc- degree given only and second murder should be tion No. Under strict degree statutory degree pas- if warranted first mur elements test first heat 89, ¶ case.); State, 5, der Trevino 1987 sion not a lesser included of- is 575, (when 577 the lesser crime con because there fense of first malice murder crime, charged tains elements not found in the it are instances where the crime of State, offense); under is not a lesser included Harris v. malice murder could be committed cir- P.2d 372, 133, 8, (if not also include the 1955 OK CR there cumstances which would man- are in which offense can be elements of first heat situations lesser, committing slaughter. it committed without 700, statutory approach, er offense existed.6 Id. at 704- vived the strict elements ¶¶ cases, 62, Willingham, OS. In such the Information had to 1997 OK CR 1080, allege indicating Riley facts the commission of P.2d at court utilized while lesser offense because if the Informa- hybrid pleading/evidence Riley some test. apprise adequately tion failed to the accused 1997 OK CR offense, constituting of the facts the lesser (holding 533-34 lewd molestation is lesser the Information insufficient to rape). op- take offense of We this support a conviction of the lesser of- portunity formally adopt the test we in- fense. Id. at 704-05. determining use in lesser tend to par- offenses to aid the trial and the courts ¶ 9 This Court has utilized an evi- also determining if ties instructions on lesser approach dence the Court which looked to may given. included offenses or should be proved the facts at trial.7 Id. at 705-06. prospective only Our decision is and will be The evidence test considers not applied only pending on to those cases now elements, but looks to the crimes the trial appeal Although all future cases. prove. evidence tends to This test has been advantages each has test its disadvan- support used to a lesser included offense tages, approach we find the better is to use instruction where the facts at trial indicate a evidence test determine what consti- offense, but those facts were not al- any charged tutes a lesser included leged in the Information. Id. at 705. This means, case, crime.8 This in the instant that Court seems to utilize this test it when holds all lesser forms of homicide are that lesser included offense instructions are included and on instructions lesser forms supported by warranted when the evi- they homicide should be administered if are Although pleadings dence. Id. at 706. the supported by the evidence. liberal, they and evidence tests are more flexible, being have been criticized for too ¶ practice, 11 In if the trial court especially the evidence test because the exis- sponte proposes sua the lesser included of depends tence of the lesser included offense supported by fense instruction that is upon making the facts adduced at trial its objects, evidence and the defendant the de bounds difficult to ascertain. Id. at 701. right affirmatively fendant shall have the to ¶ 10 This any Court continues to be in waive lesser offense instruction approach proceed consistent its to supports that the evidence on an 1997, State, In nothing approach.” O’Bryan offenses. court re- “all or v. State, 51, ¶¶ State, 15, 31, ¶ See, e.g.,Riley v. 1997 OK CR 14- 7. Darks v. OK 1998 CR 954 P.2d 6. 152, 161; State, 62, 46, ¶ 15, 530, (because Johnson v. OK CR 1995 947 P.2d 533-34 all essential 918, 928, denied, 839, 911 P.2d S.Ct. cert. 519 U.S. 117 elements of lewd molestation were included in 116, Malone, (1996); 136 L.Ed.2d 67 1994 rape charge, lewd molestation in this case 43, 8, State, ¶ 712; Penny OK CR 876 P.2d at v. rape); awas lesser included offense of Morris v. ¶ 280, 12, 797, 800; 1988 OK CR 765 P.2d Barr State, 136, 18, 1157, 1979 OK CR V 603 P.2d State, ¶ 256, 11, 1184, v. 1988 OK CR 763 P.2d (an support 1160 insufficient information can 1187; Hale, 24, 19, ¶ 1988 OK CR 750 P.2d at any properly alleged conviction for lesser offense 136; State, ¶98, 5, Funkhouser v. 1986 OK CR support even if it cannot conviction for the crime 423, 424-25; State, Lopez 721 P.2d v. 1986 OK State, 21, charged); Stokes 86 Okl.Cr. 189 P.2d 63, 9, 369, 372; State, ¶ CR 718 P.2d Ross 424, (1948) (same), Parker, 428 overruled ¶ 1996 49, 14, 117, 121, aff'd, 1986 OK CR 717 P.2d 19, 4, 81, 2273, 23 n. P.2d at 4 917 986 n. Ross v. 487 U.S. 108 S.Ct. (1988); State, (holding alleges 101 L.Ed.2d 80 "[w]here Information an of Martin v. 1983 OK 168, 10-14, 37, 40, denied, CR HV 674 P.2d cert. pleads particular constituting fense and facts 1081, 1448, 465 U.S. 104 S.Ct. 79 L.Ed.2d 767 ordinary language, person offense in such that a (1984); State, 118, 5-8, ¶¶ Wilson v. 1982 OK CR understanding of common can know what is 784, 649 786. These cases held a lesser prepare charge, intended and a defense to the no given only included offense instruction should be occurs.”); State, process due violation Smith v. when warranted the evidence. 209, 348, (1946) (infor 83 Okl.Cr. 175 P.2d charging alleged mation defendant with murder adopt 8. Based on our decision to justify manslaughter sufficient facts to instruc approach, Willingham is overruled insofar as it tion); State, 208, 1094, Kelly v. 12 Okl.Cr. 153 P. holds second murder is not a lesser in- 1097 (1916). cluded offense of first malice murder. ¶28, 11, administering not eiT 876 P.2d 689-90. did heat 1994 OK CR requests Accordingly, the lesser instruction. this If State objects, and the defendant proposition offense instruction of error is denied. court should review the Information error, proposition 13 In his second that was made together with all material Appellant claims the evidence was insuffi preliminary to at available the defendant prove he did not act in cient self-defense discovery hearing through to determine beyond a reasonable doubt. We have re adequate defendant received no-

whether the find, although viewed record and there is tice that the case raised lesser related State’s evidence, conflict the evidence was offenses that should be deemed included.9 a rational sufficient for conclude be Parker, 19, 24, CR 917 P.2d See OK yond Appellant doubt that reasonable However, proposes if the trial court acting not in self-defense. Smith v. requests the lesser included offense State ¶50, 23, 1996 OK CR cert. object, and the defense instruction does denied, S.Ct. presume we will the defendant desired the (1997). Accordingly, Judg L.Ed.2d 1023 as a bene- lesser included offense instruction ment and Sentence of the trial court AF is Adopting way changes fit. scheme in no this FIRMED. functioned; rather, this how trial courts have provide guidance in the deci- scheme should making process sion and reconcile some of LUMPKIN, V.P.J., concurs in results. prior respect

this Court’s standards with administering instruc- JOHNSON, LILE, JJ., CHAPEL and tions. concur. ¶ 12 We now turn to the issue LUMPKIN, Vice-Presiding: concurs

presented in the instant case: whether first results. passion manslaughter of malice lesser included offense ¶ 1 I in concur the affirmance of the murder and whether the trial court erred in in judgment and sentence this case write but administering instructions on the lesser of separately in- to address the issue of lesser Applying fense. the standard set forth case, cluded offenses. In this we review the above, will we review evidence to deter only plain Appellant issue error as failed if the instruction warranted mine any objections to the heat of to raise case, In the instant there was evidence. his instructions and waived produced at uncontroverted evidence error, plain right Finding so now. no to do argument, that a heated that included shots the remainder of the Court’s discussion is altercation, being physical pre a fired and only dicta. shooting. sup ceded the Such evidence First, I believe a foundational discus- in ported passion manslaughter a heat of preserving is warranted to the rule of sion as During the instruction conference struction. pivotal responsi- appellate law and an court’s Appellant object, surprise or did not claim bility in doing so. Stare decisis is defined as argue that he would have defended the case to, by, or “to abide adhere decided cases.” Ap differently. Because this record shows Dictionary, page Black’s Law 5th Ed. pellant disposed body reluctantly and (1979). principle very a im- legal This sets arguably police told of its location which legal jurisprudence. portant cornerstone guilt, presume showed a consciousness of we provide steady plumb if The law must a line Appellant object and did not desired prevail. ability law is to of Appel him. the rule of instruction to benefit Because lawyers clients and object sup competently the evidence to advise lant failed to instruction, justice judges objectively depends on a ported the find the trial court do we problems, prosecu- testimony materially changes To If a be declined. avoid such 9. witness’ gives evidence a lesser may trial which rise to the accused in the tors elect to did offense of which the defendant notice, not have O.S.1991, § pursuant 404. alternative requested the State's instruction should (Okl.Cr.1991). consistency development way, certain “Stated another an of only law as dictated stare decisis. fense is lesser included one where the greater offense cannot be committed without right to 3 The a lesser offense necessarily committing the lesser.” Id. Al by 22 granted instruction in this case is though relatively is a Uñante recent state O.S.1991, apply § 916. Court should law, prior generally ment of case law has language judicially that and not amend it. held that an offense is a lesser one However, presents a this case classic exam only where the offense cannot be ple imprecise writing appellate of how necessarily committing committed without opinions disregard can later be basis to Applying the lesser. this statement of law to plain language statutory aof rule and the oft raised issue of whether the trial court expand legal concept beyond legislative its failing give jury erred in instruction on a Lane, Judge analysis intent. in his in Will offense, part analysis a two ingham v. 1079-83 First, be should used. the Court must deter (Okl.Cr.1997), legal utilized the correct methodol requested mine whether the instruction was ogy determining Degree Second Murder is an offense that was a lesser included Degree not a lesser included offense of First offense of in the informa analysis Murder. It is an which can with tion. specific This determination is not case objective scrutiny stand and is consistent only can by looking be made at the principles. legal disagree with established I statutory ques elements of the offenses in objective with the abandonment of the crite tion. Once determination has been made subjective ria set out in for the that an alternate offense is a lesser included concept set out in Shrum. offense, then we look to the in the evidence Initially, the Court discusses the particular case to if determine the evidence meaning “necessarily of the term included” in that case warrants an instruction on that However, in 22 as used lesser included offense. This determination simply Court has failed to read that term as specific, depending is case on the facts and included”, way saying another “lesser as However, evidence of each individual case. previously this Court and other states have opinions analysis often use a shortcut in that Applying application done. that of the term presented at trial is statute, in the section 916 would then be analyzed to necessity determine the for the properly interpreted stating as “[t]he cases, instruction. In certain such a method offense, may guilty find any the defendant analysis sufficiently can allega resolve the the commission of which is [a lesser] tion of Appellant. error raised It is charged, that with which he is or of an type analysis the same that is often used attempt Reading to commit the offense.” addressing ineffective assistance of counsel Section 916 in manner this is consistent with claims, prejudice if i.e. be cannot shown there law; prior prior our case law case which has requirement is no to determine if counsel’s (albeit largely entirely) remained not consis- performance deficient. See Strickland through years. finding appli- tent In our Washington, 104 S.Ct. inconsistent, cation of 916 so Section (1984) (where 2052, 2069, 80 L.Ed.2d 674 entirely prior Court reads too much into the claim of ineffectiveness of counsel can be cases, taking discussions on the issue of less- disposed grounds of on preju of lack of er included out of failing offenses context and followed.) dice, that course should be How to take into consideration shortcuts writ- ever, in writing such shortcut does not and ing. should not mean a new test has been invoked upon 5 Based Section this Court to determine the issue of lesser included part has held “[a] offense is a offenses. greater of the and the establishment of the essential Regardless elements of of the shortcuts or differ- fense establishes all the in writing styles prior opinions, elements ence required prove underlying premise lesser included of cases are all based on the Uriarite, fense.” State v. 195 that the alternate must be lesser primary charge included offense of upon the

that determination is not based particular separate facts of each case. comprise

offenses that lesser included of- change fenses do not from case to case. The only change is whether the evidence in each particular case sufficient to warrant a

instruction.

¶ Additionally, the Court seeks to over- Willingham turn as it relates to lesser in- Willingham adopted cluded offenses. analysis contained in the Committee Com- (2d) ments to the OUJI-CR as to second explanation murder. No has been abandoning given reasoning, that line of I can find none. The Committee Com- Willingham ments and are correct state- ments of the law. The Tenth Circuit has recognized Willingham

even as the law of Ward, Bryson this State. See 187 F.3d (10th Cir.1999). opinion This does provide overturning a sufficient reason for changing course

law in midstream.

¶8 I understand the issue of in- vexing cluded offenses is somewhat to both However, appellate judges. trial and type legal challenge discomfort this catalyst should not allowed to be be the objective legal discard standards. It is object these I reasons must the Court’s adoption embarking policy regard- on an of a ing lesser included that I offenses believe

disregards the doctrine of stare decisis and plain language of Section 916.

1999 OK CR 45 Jimmy BLAND, Dale Petitioner. Oklahoma, Respondent. STATE of No. PCD-99-1200. Appeals Court of Criminal of Oklahoma. Nov.

Case Details

Case Name: Shrum v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 27, 1999

Citation: 991 P.2d 1032

Docket Number: F-98-497

Court Abbreviation: Okla. Crim. App.