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Jackson v. State6/30/1998
District Court of Oklahoma County is AFFIRMED.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
BEFORE THE HONORABLE DAN OWENS, DISTRICT JUDGE
LARRY KENNETH JACKSON was tried by jury for the crime of Murder in the First Degree in Case No. CF-94-6070 in the District Court of Oklahoma County before the Honorable Dan Owens, District Judge. Jackson was sentenced to death, and perfected this appeal. Judgment and Sentence is AFFIRMED.
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
BARRY ALBERT GINA WALKER ASSISTANT PUBLIC DEFENDERS PUBLIC DEFENDER'S OFFICE OKLAHOMA COUNTY 611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR OKLAHOMA CITY, OKLAHOMA 73102 ATTORNEYS FOR DEFENDANT
WENDELL B. SUTTON ASSISTANT PUBLIC DEFENDER OKLAHOMA COUNTY 611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR OKLAHOMA CITY, OKLAHOMA 73102 ATTORNEY FOR JACKSON
ROBERT H. MACY DISTRICT ATTORNEY
RAY ELLIOTT STEPHEN DEUTSCH ASSISTANT DISTRICT ATTORNEYS OKLAHOMA COUNTY 505 COUNTY OFFICE BUILDING
320 ROBERT S. KERR OKLAHOMA CITY, OKLAHOMA 73102 ATTORNEYS FOR THE STATE
SUSAN B. LOVING ATTORNEY GENERAL OF OKLAHOMA WILLIAM L. HUMES ASSISTANT ATTORNEY GENERAL 112 STATE CAPITOL BUILDING OKLAHOMA CITY, OKLAHOMA 73105 ATTORNEY FOR APPELLEE
OPINION BY: PER CURIAM
CHAPEL, P.J.: CONCURS
STRUBHAR, V.P.J.: DISSENTS
LANE, J.: DISSENTS
LUMPKIN, J.: CONCURS IN RESULTS
JOHNSON, J.: CONCURS
LANE, J: DISSENT
I respectfully Dissent to the result reached by the majority of this Court. I applaud and concur with the majority's clarification of the test to be used in determining whether an instruction on a defendant's theory of defense should be given. However, the majority falls into the same trap as the trial court by picking out evidence which "belies" or discredits the evidence supporting the defense and misapplies the test announced. The weighing of the evidence by the majority is a job left for the jury. "It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story." United States v. Bailey, 444 U.S. 394, 414-15, 100 S.Ct. 624, 637, 62 L.Ed.2d 575 (1980).
I find that the District Court's failure to instruct on the defense of voluntary intoxication constituted an abuse of discretion and created reversible error. Using the test announced by the majority, I would find that there was evidence presented which would support a prima facia case of voluntary intoxication.
Jackson testified, during the first stage of trial, that he consumed a "fifth" bottle of what he thought was Alize, an alcoholic beverage of unknown alcohol content, less than half of a quart bottle of 3.2 beer and took two puffs of a marijuana cigarette prior to the events that caused Ms. Cade's death. Jackson started drinking the Alize at about 10:15 a.m. and finished drinking the bottle within 15 minutes. Jackson took the two puffs of the marijuana cigarette before they purchased fried chicken for lunch. Jackson drank the beer after getting the chicken but before stopping at the motel .
Appellant testified that he was feeling "high" when he got to the motel room. Jackson did not remember going into the motel room, but remembers parts of being in the room. He guessed that he was "under the influence of intoxicating liquor" at the time.
Jackson remembered having sexual intercourse with Ms. Cade. He remembered that after that they sat talking about their relationship. He got up f
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