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Stanley v. State8/11/1988
o isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400. " single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charges." Id. at 146-47, 94 S.Ct. at 400. "Before a federal court may overturn a conviction resulting from a state trial in which this instruction [that the law presumes witnesses speak the truth] was used, it must be established . . . that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Id. at 146, 94 S.Ct. at 400.
We strongly disapprove of any instruction which informs the jury that there is a presumption a witness speaks the truth and find it was error for the trial court to issue Instruction No. 16. An instruction which informs the jury that witnesses are presumed to speak the truth should never be issued in a criminal trial, and, in a close case, may constitute reversible error.
The question on appeal, however, is whether Instruction No. 16, under the facts and circumstances of this case, so infected the entire trial that the resulting conviction violates due process. We think not. The jury was charged fully and explicitly about the weight to be given to witness testimony, the presumption of innocence, and the State's duty to prove guilt beyond a reasonable doubt. Id. at 149, 94 S.Ct. at 401. We find the jury instructions, taken as a whole, fairly stated the applicable law and Instruction No. 16 did not deprive appellant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment. This assignment of error is without merit.
Appellant next asserts Jury Instruction No. 18 deprived him of a fair trial. On direct examination, in his case in chief, appellant volunteered he had previously been convicted of felony DWI, second and subsequent offense, for which he received two years probation. [Tr. at 183] Accepting the invitation, the State cross-examined appellant on his former felony conviction. [Tr. at 321]. Appellant argues the State violated Hawkins v. State, 717 P.2d 1156, 1158 (Okla. Crim. App. 1986), in which we found driving under the influence is not one of the offenses which may be used for general impeachment purposes under 12 O.S. 1981 § 2609 [12-2609]. Here, appellant, not the State, introduced this prior conviction into evidence. We find no violation of Hawkins; consequently, the court did not err by issuing Instruction No. 18 [OUJI-CR 824]. This assignment is meritless.
Appellant next asserts the trial court erred by failing to instruct the jury that appellant's defense of intoxication should, by itself, reduce the offense from First Degree Murder to First Degree Manslaughter. Appellant relies on Williams v. State, 513 P.2d 335, 339 (Okla. Crim. App. 1973), in which we found it is fundamental error not to instruct on manslaughter if there is any evidence which could reduce the crime from murder to manslaughter. We further found that, when an instruction on intoxication is appropriate, it is reversible error not to instruct the jury that intoxication can negate specific intent to kill. Appellant's reliance on Williams is misplaced, for in this case all the criteria of Williams were met: the trial court instructed the jury on the lesser included offenses of Second Degree Murder and First Degree Manslaughter; on the defenses of voluntary intoxication and involuntary intoxication; and that intoxication can negate specific intent to kill. This assignment is meritless.
Appellant next asserts the trial court erred by failing to instruct the jury
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