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Stanley v. State8/11/1988
5th, with B.F. slumped over in the passenger seat. The brother testified appellant appeared slightly intoxicated at that time. In his oral confession, appellant claimed his brother advised him to dispose of the body. Appellant drove to a marina at Lake Texoma, where he was surprised by a security guard who saw B.F.'s body in the front seat but thought she was asleep. Appellant then drove back to his brother's house in Calera, where he dumped B.F.'s body in a ditch alongside the road behind his brother's house.
On August 6, appellant's family searched the ditches behind the brother's house, found the body and called the sheriff. When the sheriff was unable to locate the body because of high weeds, the family led him to its location. Appellant was arrested the following morning by the Denison Police at Denison, Texas, and, after signing a Miranda waiver, appellant gave an oral and a written confession to the O.S.B.I. Four days later, appellant orally confessed again to the O.S.B.I. in the Bryan County jail.
At trial, appellant took the stand, testified in his own behalf, and raised the defense of intoxication. The trial court, over vigorous objection by the State, instructed the jury on the defenses of voluntary and involuntary intoxication. Additionally, the trial court, again over strenuous objection by the State, instructed the jury on the lesser included offenses of Second Degree Murder and First Degree Heat of Passion Manslaughter. The jury convicted appellant of First Degree Murder.
Appellant raises several assignments of error concerning the jury instructions, which we address first.
Appellant asserts two of the jury instructions, Numbers 16 and 18, deprived him of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment. We observe initially that appellant failed to object to the instructions given or offer any instructions of his own, thereby waiving all but fundamental error. See Maghe v. State, 620 P.2d 433, 436 (Okla. Crim . App. 1980).
Appellant's brother and sister-in-law evaded service of process and failed to appear at trial. The State presented the testimony of these witnesses to the jury by reading portions of the preliminary hearing transcript. The trial court instructed the jury, in Instruction No. 16:
In this case, the testimony of absent witnesses was read to you by way of transcript. You are instructed that you are not to discount this testimony for the sole reason that it comes to you in the form of a deposition. It is entitled to the same consideration, the same rebuttable presumption that the witness speaks the truth, and the same judgment on your part with reference to its weight, as is the testimony of witnesses who have confronted you from the witness stand.
Appellant argues instructing the jury that witnesses are presumed to speak the truth is fundamental error, relying on United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971), and United States v. Varner, 748 F.2d 925 (4th Cir. 1984). These cases hold it is "plain error" for a federal court to instruct the jury that the law presumes a witness speaks the truth.
The State, on the other hand, relies on Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), which holds that the federal rule arises from an exercise of an appellate court's supervisory power to direct inferior courts "to refrain from giving the instruction because it was thought confusing, of little positive value to the jury, or simply undesirable." Id. at 146, 94 S.Ct. at 400.
On habeas corpus review of a conviction arising from state court, the proper "question is not whether the trial court failed t
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