839 P.2d 1363 (Okla.Crim.App. 1992), F-86-679, Boyd v. State

Docket Nº:F-86-679.
Citation:839 P.2d 1363
Party Name:Ronald Keith BOYD, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:June 18, 1992
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 1363

839 P.2d 1363 (Okla.Crim.App. 1992)

Ronald Keith BOYD, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-86-679.

Court of Criminal Appeals of Oklahoma.

June 18, 1992.

Concurring Opinion by Justice Lumpkin July 7, 1992.

Rehearing Denied Nov. 24, 1992.

Page 1364

[Copyrighted Material Omitted]

Page 1365

An appeal from the District Court of Oklahoma County; James L. Gullett, District Judge.

RONALD KEITH BOYD, appellant, was convicted of First Degree Murder and Robbery With Firearms, in the District Court of Oklahoma County, Case No. CRF-86-218, sentenced to Death and Fifty (50) years imprisonment, respectively, and appeals. AFFIRMED.

E. Melvin Porter, Oklahoma City, Thomas Purcell and Anne M. Moore, Asst. Appellate Public Defenders, Norman, for appellant.

Robert H. Macy, Dist. Atty., Ray Elliott, Asst. Dist. Atty., Robert H. Henry, Atty. Gen., M. Caroline Emerson and Carol Price Dillingham, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Ronald Keith Boyd, appellant, was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.1981, § 701.7) (Count I), and Robbery With Firearms (21 O.S.1981, § 801) (Count II) in Oklahoma County District Court, Case No. CRF-86-218, before the Honorable James L. Gullett, District Judge. The jury found three aggravating circumstances and sentenced appellant respectively to death and fifty (50) years imprisonment. We affirm.

Appellant spent the evening of January 7, 1986, with his friends Byron Gibbs, Joe Jackson, and Lenora Denise Dunn. After spending several hours riding around Oklahoma City in a van, appellant asked Gibbs, the driver, to stop at a convenience store called Tom's Market located at 36th and Kelly. Gibbs complied with the request and Jackson and Dunn got out of the van. Jackson went to use the pay phone and Dunn began talking to appellant about robbing the store. Appellant responded by handing Dunn a revolver. Dunn went into the store and emerged a few moments later carrying the gun and a wad of money.

Dorthy Trimble was the clerk on duty at Tom's Market on January 7, 1986. She testified that at approximately 9:00 p.m. she was robbed by a black female with a gun. After the robbery Ms. Trimble called

Page 1366

the police and gave a description of the robber and the van.

After the robbery the group proceeded east on 36th street to Interstate 35 where appellant urged Gibbs to pull into the parking area of a Phillips 66 station so that he could use the pay phone. Gibbs stopped the van near the pay phones and appellant got out of the van and made a call.

Oklahoma City Police Officers Richard Riggs and Craig Gravel responded to the report of the armed robbery at Tom's Market. The officers were informed that the suspect was a black female who fled the area in a green van. The officers drove on 36th street looking for a van which matched the description. The officers noticed a green van parked at a Phillips 66 station and pulled their police car behind the van to investigate. Officer Gravel approached the rear of the van and saw that the vehicle was occupied by a female and two males. Officer Riggs walked towards appellant who was talking on the telephone. Officer Riggs told appellant to get off the phone and walk toward him. When appellant did not respond, Officer Riggs repeated the command. Appellant dropped the receiver and approached Officer Riggs with his hands concealed in his coat pockets. When Officer Riggs instructed appellant to take his hands out of his pockets, appellant, with his hands still concealed in the pockets of his coat, shot the Officer. The bullet struck Officer Riggs in the abdomen. Appellant then placed the gun against the chest of Officer Riggs and fired a second shot.

Appellant then approached the rear of the van where Officer Gravel was standing. Upon seeing appellant, Officer Gravel ran for the protection of the gasoline pumps. Officer Gravel heard several shots fired as he was running. Simultaneously, the van began to slowly roll out of the parking area with appellant now in front of the van using it for cover. Officer Gravel returned to Officer Riggs and both men shot in the direction of the van. The van rolled across 36th street and stopped after striking a fence. The three persons in the van were arrested at the scene. Appellant fled the area on foot.

Appellant ran to the house he shared with Fred Tubbs. Appellant fled from the house when a police helicopter and patrol cars arrived. The next morning appellant went to the home of Reginald Walker. Appellant told Walker that he wanted to leave town. Appellant admitted to Walker that he had shot a police officer, claiming that he had blanked out and the gun went off and he ran. Additionally, appellant told Walker that he had panicked when the officer approached him because there had been a robbery, he had recently gotten out of jail and that he did not want to be arrested. Appellant was ultimately arrested at Walker's home after police received a tip concerning his location.

ISSUES RELATING TO GUILT-INNOCENCE

In his first proposition of error, appellant contends that the trial court erred in failing to sue sponte instruct the jury on lesser included offenses. Specifically, appellant asserts that the testimony of Reginald Walker supported an instruction on First Degree Manslaughter and Second Degree Murder. Mr. Walker testified during the State's case-in-chief that on the morning after the murder appellant appeared at Walker's house. During the direct examination of Walker the following transpired:

Q: Tell this Court and jury what he told you. What you asked him and what he told you.

A: I asked him what he did. I asked him what happened. And he said he really didn't know. He was scared. That he had panicked at the--

Q: Did he tell you that he had been at 36th and I-35?

A: No. I knew he had been there.

Q: All right. What did he tell you happened there?

A: That the Officer Riggs approached him, and he turned around, and he said he just blacked out. Blacked twice. And he just, you know, the gun went off and another shot went off, and he turned and ran.

Page 1367

Q: Did he tell why he panicked?

A: Yes.

Q: What did he say?

A: He said there had been a robbery and that he had just recently gotten out of jail for some problem that he had had. I don't know if it was with Mr. Riggs or not. And that he was afraid of being arrested.

Q: He didn't want to go back to jail, isn't that what he told you?

A: Yes.

(Tr. III at 623-4).

The trial court is to instruct the jury on every degree of homicide which the evidence in any reasonable view suggests. Fowler v. State, 779 P.2d 580, 585 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990); Lee v. State, 700 P.2d 1017, 1019 (Okl.Cr.1985). A defendant is entitled to an instruction on a lesser included offense only when the evidence presented warrants such an instruction. Hale v. State, 750 P.2d 130, 136 (Okl.Cr.1988), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988); Foster v. State, 714 P.2d 1031, 1039 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). It is the duty of the trial court to 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. Williams v. State, 807 P.2d 271, 275 (Okl.Cr.1991); James v. State, 736 P.2d 541, 545 (Okl.Cr.1987), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987); Because we have held that where the evidence warrants a lesser included offense instruction a defendant is entitled to the same whether requested or not, Penny v. State, 765 P.2d 797, 800 (Okl.Cr.1988); Walton v. State, 744 P.2d 977, 978 (Okl.Cr.1987); Funkhouser v. State, 721 P.2d 423, 424-25 (Okl.Cr.1986), we review appellant's contention despite the fact that defense counsel did not specifically object to the instructions at trial nor did he submit additional instructions to the trial court.

We find that the above referenced testimony is insufficient to support an instruction on First Degree Manslaughter or Second Degree Murder. To be entitled to a First Degree Manslaughter instruction under 21 O.S.1981, § 711(2), evidence must be presented to support the conclusion that the homicide was perpetrated without a design to effect death by means of a dangerous weapon. While the testimony of Walker may have explained appellant's motive for shooting the Officer, (he did not want to return to jail) it does nothing to bolster the inference that appellant acted without a design to effect death. The State's evidence showed that after appellant shot the Officer the first time, he removed the gun from his coat pocket, placed the barrel against the Officer's chest and fired the weapon a second time. After reviewing the evidence, including the testimony of Mr. Walker, we do not believe that a rational juror could find that the death was not the result of a premeditated design to effect death. Accordingly, we find no abuse of discretion in the trial court's failure to instruct the jury on First Degree Manslaughter.

Nor do we find that the trial court abused its discretion in failing to give an instruction on Second Degree Murder. To be convicted of murder in the second degree, 21 O.S.1981, § 701.8(1), requires that the jury find that appellant evidenced a depraved mind in disregard for human life. We have held that this statute is applicable where there was no premeditated intent to kill any particular person. Dennis v. State, 561 P.2d 88, 94-5 (Okl.Cr.1977). Appellant contends that had the jury received an instruction on Second Degree Murder they could have concluded that appellant's acts were intended to injure and not kill Officer Riggs. We disagree. Premeditation sufficient to constitute murder may be formed in an instant. Williams, 807 P.2d at 275; 21 O.S.1981, § 703. The...

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