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Chapple v. State8/27/1993
Order Denying Rehearing February 1, 1994.
BOOKER T. CHAPPLE, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE.
An Appeal from the District Court of Oklahoma County, David M. Cook, District Judge.
Carolyn L. Merritt, Asst. Public Defender, Oklahoma County Public Defender, Oklahoma City, for appellant.
Robert H. Henry, Atty. Gen., Steven S. Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
The opinion of the court was delivered by: LANE, Judge.
Booker T. Chapple, Appellant, was tried by jury for the crimes of Shooting With Intent to Kill After Former Conviction of A Felony (21 O.S. 1981 § 652 [21-652]) and Possession of a Loaded (sic) Firearm After Former Conviction of Two Felonies (21 O.S. 1981 § 1283 [21-1283]) in the District Court of Oklahoma County, Case No. CRF-89-6074. The jury returned a verdict of guilty and set punishment at one hundred (100) years imprisonment for Shooting With Intent to Kill, and seventy five (75) years for possession of a loaded (sic) firearm. The trial court sentenced the appellant in accord with the jury verdict.
In this perfected appeal the appellant argues (1) the trial court erred in its instruction on self-defense which failed to advise the jury of the State's burden to disprove self-defense beyond a reasonable doubt after the defendant raises the defense; (2) that the trial court erred in admitting the appellant's prior convictions during the second stage of trial; (3) that his fully pardoned felony conviction which was more than ten (10) years old should not have been used to enhance the punishment for possession of a firearm; and (4) that the trial court improperly instructed the jury in the second stage of trial on the use of his former convictions for impeachment purposes.
We agree the instructions on self-defense were inadequate to apprise the jury of the State's shifting burden and we reverse and remand Count I, Shooting with Intent to Kill, to the district court for new trial. We affirm the judgment for Count II, Possession of a Loaded (sic) Firearm, but vacate the sentence and remand for resentencing for the trial court erred in instructing the jury on enhancement. We also set forth the procedure to be followed when the charge of felon in possession is prosecuted in a multicount case.
This case arose out of a traffic incident near the Broadway Extension in Oklahoma City. While driving home to Edmond with her two teenaged sons on the evening of November 4, 1989, Judith Ann Strickland noticed the appellant driving erratically. He crowded cars, forced them to change lanes, attempted to pass on the shoulder. Strickland followed him when he exited the Broadway Extension at 63rd Street in order to get his tag number. At a stop light appellant slammed on his brakes. Strickland's car stalled when she slammed on her brakes to avoid hitting the appellant's car. The appellant then got out of his car, walked up to Strickland's front fender, smiled, and emptied five shots from his .38 caliber revolver into her windshield. The first bullet travelled through the collar of Strickland's coat, and lodged in her neck at the spine. Strickland drove home and was taken to the hospital by her husband. She reported the incident to the police.
At trial Appellant admitted shooting Strickland, but claimed he shot her in self-defense. He testified he had received threatening telephone calls, and was frightened by the car with three occupants which he thought chased him and tried to force him off the road. He
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