Mitchell v. State

• Citation: 876 P.2d 682
• Decision Date: 15 December 1993
• Docket Number: No. F-90-860,F-90-860
• Parties: Gregory MITCHELL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 682

876 P.2d 682

Gregory MITCHELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-90-860.

Court of Criminal Appeals of Oklahoma.

Dec. 15, 1993.

Rehearing Denied July 27, 1994.

As Corrected Dec. 6, 1994. ^*

An Appeal from the District Court of Tulsa County Jay D. Dalton, District Judge.

Appellant, Gregory Mitchell, was tried by jury and convicted of the crime of Robbery with Firearm in violation of 21 O.S.Supp.1982, § 801, in Case No. CF-89-1035 in the District Court of Tulsa County before the Honorable Jay D. Dalton, District Judge. The jury found Appellant guilty and recommended punishment at eighteen (18) years imprisonment. The trial judge sentenced accordingly. From this Judgment and Sentence, Appellant has perfected this appeal. This case is REVERSED and REMANDED for a new trial.

Terry Oliver (At Trial), Asst. Public Defender, Barry Derryberry (On Appeal), Asst. Public Defender, Tulsa, for appellant.

Timothy H. Harris (At Trial), Asst. Dist. Atty., Tulsa, Susan Brimer Loving (On Appeal), Atty. Gen., Jennifer B. Miller, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Vice Presiding Judge:

Appellant, Gregory Mitchell, was tried by jury and convicted of the crime of Robbery with Firearm in violation of 21 O.S.Supp.1982, § 801, in Case No. CF-89-1035 in the District Court of Tulsa County before the Honorable Jay D. Dalton, District Judge. The jury found Appellant guilty and recommended punishment at eighteen (18) years imprisonment. The trial judge sentenced accordingly. From this Judgment and Sentence, Appellant has perfected this appeal.

As we have found error requiring reversal, we deem a detailed recitation of the facts unnecessary. Additionally, we will address only that issue which requires reversal and remand for new trial.

Appellant complains:

1. That the flight instructions were improper because there was no evidence that Appellant, whose defense was that he was not present, departed with "consciousness of guilt in order to avoid arrest."

2. That the flight instructions were improper because it charged the jury with finding "the Defendant's innocence."

Appellant was charged with Robbery with Firearm. He was identified from a photographic lineup three days after the alleged robbery. He put on no defense at trial. The essence of his first argument is that the jury instruction is intrinsically erroneous because it assumes that the defendant committed the alleged crime. The OUJI-CR 806, as it relates to departure, is as follows:

EVIDENCE HAS BEEN INTRODUCED OF THE DEFENDANT'S DEPARTURE SHORTLY AFTER THE ALLEGED CRIME WAS COMMITTED. YOU MUST FIRST DETERMINE WHETHER THIS ACTION BY THE DEFENDANT CONSTITUTED FLIGHT.

THE TERM "FLIGHT," AS IT IS USED IN THIS INSTRUCTION, MEANS MORE THAN DEPARTURE OR CONCEALMENT. TO BE IN FLIGHT, A DEFENDANT MUST HAVE DEPARTED WITH A CONSCIOUSNESS OF GUILT IN ORDER TO AVOID ARREST.

**[THE DEFENDANT HAS OFFERED EVIDENCE EXPLAINING HIS ACTS. YOU MUST CONSIDER THE CLAIM OF THE DEFENDANT IN DETERMINING IF FLIGHT OCCURRED.]** Must be given where defendant has introduced evidence explaining his acts.

TO FIND THAT THE DEFENDANT WAS IN FLIGHT YOU MUST FIND BEYOND A REASONABLE DOUBT THAT: FIRST, THE DEFENDANT DEPARTED; SECOND, WITH A CONSCIOUSNESS OF GUILT; THIRD, IN ORDER TO AVOID ARREST FOR THE

CRIME WITH WHICH HE IS CHARGED.

IF, AFTER A CONSIDERATION OF ALL THE EVIDENCE ON THIS ISSUE, YOU FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS IN FLIGHT, THEN THIS FLIGHT IS A CIRCUMSTANCE WHICH YOU MAY CONSIDER WITH ALL THE OTHER EVIDENCE IN DETERMINING THE QUESTION OF THE DEFENDANT'S GUILT. HOWEVER, IF YOU HAVE A REASONABLE DOUBT THAT DEFENDANT WAS IN FLIGHT, THEN THE FACT OF ANY DEPARTURE IS NOT A CIRCUMSTANCE FOR YOU TO CONSIDER.

While the instruction does assume the defendant to have committed the crime, such assumption is well placed under the circumstances where the instruction is appropriate. This Court has long upheld the giving of flight instructions where the defendant interposed a plea of self-defense or justifiable homicide or testified at trial explaining his departure. See Colglazier v. State, 23 Okl.Cr. 23, 212 P. 332, 335 (1923); Bruner v. State, 31 Okl.Cr. 351, 238 P. 1000 (1925); Sprouse v. State, 52 Okl.Cr. 184, 3 P.2d 918, 919 (1931); Lunsford v. State, 53 Okl.Cr. 305, 11 P.2d 539, 540 (1932); Compton v. State, 74 Okl.Cr. 48, 122 P.2d 819, 821 (1942); Graham v. State, 80 Okl.Cr. 159, 157 P.2d 758, 763 (1945); Wilson v. State, 96 Okl.Cr. 137, 250 P.2d 72, 75 (1952); Smith v. State, 291 P.2d 378, 380 (Okl.Cr.1955); Ward v. State, 444 P.2d 255, 259 (Okl.Cr.1968); Padillow v. State, 501 P.2d 837, 841 (Okl.Cr.1972); Voran v. State, 536 P.2d 1322 (Okl.Cr.1975); Lane v. State, 572 P.2d 991, 994 (Okl.Cr.1978); Douma v. State, 749 P.2d 1163, 1167 (Okl.Cr.1988); Scott v. State, 751 P.2d 758, 760 (Okl.Cr.1988); Stewart v. State, 757 P.2d 388, 393 (Okl.Cr.1988); McDonald v. State, 764 P.2d 202, 204 (Okl.Cr.1988).

We have also held the instructions appropriate where defendant's statements concerning departure are made in a voluntary confession. See Denney v. State, 346 P.2d 359, 366 (Okl.Cr.1959); Potter v. State, 511 P.2d 1120, 1125 (Okl.Cr.1973); and Alberty v. State, 561 P.2d 519, 520 (Okl.Cr.1977). Under these circumstances, it is the defendant who either admits to the alleged crime and/or places himself at the scene, thus removing any assumptions.

Throughout the history of the judicial development of our law on flight instructions as it pertains to departure, we have required that the defendant offer evidence in explanation of such conduct. See Brunner, 238 P. 1000, where we stated:

Flight of a defendant is a circumstance tending to prove guilt, and where the state offers evidence of the conduct of defendant tending to prove flight, and the defendant offers evidence in explanation of such conduct, it is proper to submit the question of flight to the jury as a matter of fact for their determination, and to instruct them that, if they find beyond a reasonable doubt that the defendant fled, it may be considered as a circumstance tending to prove guilt. (Emphasis added.)

In Sprouse, 3 P.2d at 920, we held:

Where there is evidence of flight which is denied or what appears to be flight is explained, the court, if it instructs on the matter of flight should be guarded in its language and not assume the conduct of accused is a flight. (Emphasis added.)

In Lunsford, 11 P.2d at 540, this Court held:

The question of flight is one of fact and not of law, and where the question is controverted, the court in its instructions should not assume that the defendant fled, but if any instruction upon the question of flight is given, it should be submitted to the jury as a question of fact. (Emphasis added.)

It was our decision in Wilson, 250 P.2d at 75, that not only held that the trial courts should first define flight in their instructions to the jury, but also offered the following instruction on flight:

Evidence has been introduced relative to the departure of the defendant after the alleged assault had occurred. You are instructed that you must first determine whether or not the actions of the defendant constituted flight. In this connection you are told that you may consider all the facts and circumstances before you, including the defendant's explanation of his departure from the scene of the difficulty, and if after a consideration of such evidence you are convinced beyond a reasonable doubt that the defendant fled after the alleged assault occurred then such flight is a circumstance that may be considered by you with all the other facts and circumstances in evidence in determining the question of his guilt or innocence. (Emphasis added.)

It is clear from the above cases that instructions on flight pertaining to departure should be given only in cases where the evidence is controverted by the defendant and as an exception rather than as a rule.

It appears that the third paragraph of OUJI-CR 806 may be causing the confusion where it notes: "Must be given where defendant has introduced evidence explaining his/her acts." It could be inferred that even if the defendant does not introduce evidence explaining his/her acts, flight instructions pertaining to departure may still be given. The correct inference from that language is that in cases dealing with other acts constituting flight, i.e., concealment, escape or attempt to escape from custody, bond forfeiture, etc., the third paragraph need not be given. In those cases, the appropriate act is substituted for the word "departure," where relevant in the instruction. This inference is based on the fact that OUJI-CR 806 follows the guidelines articulated in Wilson, 250 P.2d 72. See Commission Comment, OUJI-CR 806, P. 284.

Because of the State's position that intentional flight is demonstrated merely by leaving the scene of the crime and because the flight instruction, as it pertains to departure, assumes the defendant to have committed the alleged crime, it is necessary to limit the giving of said instruction as indicated above. To do otherwise would put the trial court in the position of violating the elementary principle that the accused shall be presumed to be innocent until proven guilty. See State v. Bonning, 60 Mont. 362, 199 P. 274, 275 (1921), one of the cases on which this Court relied in Sprouse, 3 P.2d at 919.

Recently, this Court, in Kamees v. State, 815 P.2d 1204, 1206 (Okl.Cr.1991), held that the defendant's act of running away with the stolen item, completed the element of "carrying away" required for grand larceny. Thus, it was error, though harmless, to give instructions on flight. While the same argument can be made for robbery, we believe the violation of a defendant's fundamental presumption of innocence to be far more grave; and, thus the error to be fundamental. Based on the facts in this case, it was reversible error to give instructions on flight.

Appellant's second...