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Chapple v. State8/27/1993
f the prior conviction is an element of the primary offense, it should be tried as a part of the guilt stage of trial. In Williams, the Court sought to clarify the procedure set forth by Section 860 and to overrule those court-created procedures which disregarded the provisions of Section 860. While Williams sought to remove the confusion surrounding the procedure to follow in cases of this type, I fear the Court is now charting a new course which will again ultimately create confusion as to the procedure which should be followed. To preclude that state of confusion from redeveloping as to the application of Section 860, I would apply our decision in Williams, regardless of the number of Counts which may be charged.
ORDER DENYING MOTION FOR REHEARING
Petitioner, the State of Oklahoma, is before the Court urging reconsideration of the decision to reverse and remand the conviction herein on the ground the trial court failed to instruct the jury on the State's shifting burden of proof once the defendant successfully raised self-defense. The State argues the Court improperly based it's decision on Perez v. State, 798 P.2d 639 (Okl.Cr. 1990) which was, by its own language, limited to prospective application only.
The State misapprehends the holding of the Court, for the opinion states plainly:
Prior to Perez the Court reviewed the jury instructions as a whole to determine whether they adequately set forth the State's shifting burden. See Hommer v. State, 657 P.2d 172 (Okl.Cr. 1983); Cantrell v. State, 562 P.2d 527 (Okl.Cr. 1977). As Appellant's case was tried prior to Perez, we examine the instructions as a whole to determine whether the jury was instructed adequately. August 27, 1993, Opinion at p. 1215.
The Court examined the instructions as a whole, and determined no instruction properly guided the jury regarding the State's shifting burden. Had jury instruction so advised the jury, the instructions of this point could have been deemed sufficient on appellate review whether or not the standard jury instruction, OUJI-CR 745, was given. This is a proper application of Perez. The State baldly asserts the instructions as a whole are sufficient, points to no place in the record where the trial court instructed on the State's shifting burden. This bald assertion is understandable, for nowhere in the record does the trial court so instruct.
The State's final argument, that the failure to instruct is harmless, "since the facts in this case do not lend themselves to a self defense argument in the first place" is not supported by the record. The trial court correctly found the defense was raised, and he instructed extensively, albeit incompletely, on the issue.
IT IS THEREFORE THE ORDER OF THE COURT that the Motion for Rehearing be DENIED.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN
PRESIDING JUDGE
concur in result
/s/ Charles A. Johnson
CHARLES A. JOHNSON,
VICE-PRESIDING JUDGE
/s/ James F. Lane
JAMES F. LANE,
JUDGE.
/s/ Charles Chapel
CHARLES CHAPEL,
JUDGE
/s/ Reta Strubhar
RETA STRUBHAR
JUDGE
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