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Bland v. State5/16/2000
In Jackson v. State, 964 P.2d 875, 892 (Okl.Cr.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999) we stated that an instruction on voluntary intoxication should be given " hen sufficient, prima facia evidence is presented which meets the legal criteria for the defense of voluntary intoxication, . . ". 964 P.2d at 892. The Court further stated:
In clarifying this test, we now apply this test to the facts of this case. A defense of voluntary intoxication requires that a defendant, first, be intoxicated and, second, be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent or special mental element of the crime. OUJI- CR(2d) 8-36 & 8-39 (1996). Id.
In applying this test in Jackson, the Court found the defendant failed to present evidence that his mental powers were so overcome through intoxication that he could not form the specific intent to kill. The evidence in the present case warrants a similar finding.
Although evidence was presented by both the State (through Connie Lord) and the defense (from Appellant) that Appellant had ingested drugs the day of the murder, the evidence did not support a finding that his mental powers were so overcome through that drug use so that he could not form the specific intent to kill. Appellant testified that he had come down from his "drug high" by the time he arrived at the victim's residence. Further, Appellant testified in detail to his actions and thoughts from the point he arrived at the victim's home until the time he disposed of the body. He said that immediately after he shot the victim, he felt for a pulse. Upon realizing the victim was dead, Appellant testified " t tore me up pretty bad." Such a detailed account of the circumstances surrounding the murder defeats his claim to a voluntary intoxication defense. As we stated in Turrentine:
We find that Appellant's detailed description of the murders and the surrounding circumstances demonstrates that he was in control of his mental faculties and was not in the advanced state of intoxication he attempts to assert. His ability to recount these details undermines his claim on appeal that he was so intoxicated at the time of the murder that he could not have formed the intent to kill. Accordingly, the trial court, in a proper exercise of its judicial duty, found insufficient evidence to warrant an instruction on the defense of intoxication. 965 P.2d at 969 (internal citations omitted).
Accordingly, we find no error in the trial court's failure to submit a instruction on voluntary intoxication to the jury, and this assignment of error is denied.
B.
Appellant contends in his sixth assignment of error the trial court erred in failing to sua sponte instruct the jury on the offense of first degree manslaughter by resisting criminal attempt. Again, reviewing for plain error only, we find none. Cheney, 909 P.2d at 90.
In a criminal prosecution, the trial court has the duty to correctly instruct the jury on the salient features of the law raised by the evidence without a request by the defendant. Atterberry v. State 731 P.2d 420, 422 (Okl.Cr.1986). This means that all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the evidence. Shrum v. State, 991 P.2d 1032 (Okl.Cr.1999). However, the failure to object to the instructions (as in this case) waives the issue on appeal. Id. at 1036.
In determining whether the lesser form of homicide is supported by the evidence so as to warrant a jury instruction, thi
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