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Bland v. State5/16/2000
s Court has reviewed evidence of lesser offenses in several different manners. In Malone v. State, 876 P.2d 707, 711-712 (Okl.Cr.1994), the Court said ". . the trial court must instruct the jury on every degree of homicide where the evidence would permit the jury rationally to find the accused guilty of the lesser offense and acquit him of the greater." The Court also said " he trial court must determine as a matter of law whether the evidence is sufficient to justify the submission of instructions on a lesser included offense to the jury." 876 P.2d at 712. In Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990) we again said the trial court is to determine whether the evidence was sufficient as a matter of law to warrant the instruction, however, " he trial court is to instruct the jury on every degree of homicide which the evidence in any reasonable view suggests." See also Jackson v. State, 554 P.2d 39, 43 (Okl.Cr.1976); Mikes v. State, 41 Okl.Cr. 283, 273 P.2d 284 (1929). In Rawlings v. State, 740 P.2d 153, 160 (Okl.Cr.1987) we said "an instruction on a lesser included offense need only be given when there is evidence that tends to prove the lesser included offense was committed." While in Tarter v. State, 359 P.2d 596, 601 (Okl.Cr.1961), this Court relied on Welborn v. State, 70 Okl.Cr. 97, 105 P.2d 187, and stated:
"In a prosecution for murder, the court should instruct the jury on the law of each degree of homicide which the evidence tends to prove, whether it be requested on the part of the defendant or not, and it is the duty of the court to decide, as a matter of law, whether there is any evidence that would tend to reduce the degree of the offense to manslaughter in the first degree."
In order to clear up any confusion caused by this prior case law and to have a uniform standard of review, we find the test to be used in determining whether evidence of a lesser form of homicide or lesser included offense is sufficient to warrant a jury instruction should be no different from the test used to determine when the evidence is sufficient to warrant a jury instruction on the defendant's theory of defense. In Jackson, 964 P.2d at 892, this Court held that the test to be used in determining whether the evidence warranted an instruction on voluntary intoxication should be no different from the test used on any other defense. "When sufficient, prima facia evidence is presented which meets the legal criteria for the defense of voluntary intoxication, or any other defense, an instruction should be given." Id. "Sufficient in this context simply means that, standing alone, there is prima facia evidence of the defense, nothing more." Id. at 904 fn. 5. See also White, 973 P.2d at 312 (Lumpkin, J., specially concurring) quoting Michigan v. Lemons, 562 N.W.2d 447, 454 (Mich.1997) ("before a defendant is entitled to an instruction on the defense . . . , he must establish a prima facie case of the . . . elements of that defense.") Prima facie evidence is defined as:
Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient . . . to sustain a judgment in favor of the issue which it supports. Id.
It is the trial judge's responsibility to determine whether prima facie evidence of the lesser offense has been presented to warrant the instruction. Omalza v. State, 911 P.2d 286, 303 (Okl.Cr.1995) (jury instructions are a matter committed to the sound discretion of the trial court).
In the present
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