 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Bland v. State5/16/2000
case, Appellant sought an instruction on the offense of first degree manslaughter by resisting criminal attempt. Title 21 O.S.1991, § 711(3) provides in pertinent part:
Homicide is manslaughter in the first degree in the following cases:
3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.
Here, the only evidence supporting Appellant's claim to this instruction is his testimony that the victim assaulted him and that he shot the victim in response to the assault. Appellant argues that his statement is sufficient to warrant the instruction. In Newstead v. Gibson, 158 F.3d 1085, 1092 (10th Cir.1988) the Tenth Circuit concluded that when the only evidence supporting the appellant's claim to an instruction on a lesser form of homicide was his own self-serving statements and those statements were contradictory and inconsistent with the other evidence presented at trial, the evidence was insufficient to warrant the jury instruction. The Court stated " he evidence is simply insufficient for a reasonable jury to concluded that Mr. Newstead acted in a heat of passion." Id.
In the present, the evidence showed the victim was shot once in the back of the head. This fact would suggest the victim had turned away from Appellant and does not support Appellant's allegation that he was being assaulted by the victim or that he was resisting a criminal attempt by the victim at the time of the shooting. Appellant's self-serving statement does not present sufficient evidence to establish a prima facie case of first degree manslaughter by resisting criminal attempt and is therefore insufficient to warrant a jury instruction on that offense. This assignment of error is denied.
C.
In Proposition VIII, Appellant argues the trial court erred in failing instruct the jury on second degree murder. Appellant's requested instruction was refused by the trial court.
Murder in the second degree occurs " hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual." 21 O.S.1991, § 701.8(1). We have held that this statute is applicable where there is no premeditated intent to kill any particular person. Boyd, 839 P.2d at 1367. Appellant contends that had the jury received an instruction on Second Degree Murder they could have concluded that he did not intend to kill the victim. We disagree.
As discussed in Proposition III, premeditation sufficient to constitute murder may be formed in an instant. Id.; 21 O.S.1991, § 703. The evidence presented at trial does not support the conclusion that Appellant acted without any premeditated design to effect death. We have held that where there is no evidence to support a lower degree of the crime charged or lesser included offense, it is not only unnecessary to instruct thereon, the court has no right to ask the jury to consider the issue. Boyd, 839 P.2d at 1367. Accordingly, we find no error in the trial court's failure to give an instruction on second degree murder. This assignment of error is denied.
SECOND STAGE ISSUES
A.
In his fifteenth assignment of error, Appellant contends his rights to a fair and reliable sentencing proceeding were compromised by the introduction of testimony concerning crimes which occurred twenty years ago. To support the aggravating circumstances of "prior violent felony" and "continuing threat", the State introduced evidence of Appellant's convictions in 1975 for manslaughter and kidn
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|