Charm v. State, F-94-1069
| Citation | 924 P.2d 754,1996 OK CR 40 |
| Decision Date | 22 August 1996 |
| Docket Number | No. F-94-1069,F-94-1069 |
| Parties | Kenneth Chad CHARM, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Kenneth Chad Charm was tried by a jury in Comanche County District Court Case No. CRF-93-259 and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7 (Count I), First Degree Rape, After Former Conviction of Two or More Felonies in violation of 21 O.S.1991, § 1114(A)(3) (Count II), and Kidnapping, After Former Conviction of Two or More Felonies in violation of 21 O.S.1991, § 741 (Count IV). 1 The jury found the existence of the following three aggravators: that the murder was committed to avoid lawful arrest or prosecution; that the murder was especially heinous, atrocious or cruel; and, that Charm constituted a continuing threat to society. 2 In accordance with the jury's recommendation, the Honorable Roy D. Moore sentenced Charm to death on Count I, to one hundred-twenty years imprisonment on Count II, and to fifty-four years imprisonment on Count IV.
On July 20, 1993, Kenneth Charm and Ron Jessie kidnapped, raped and murdered fourteen year-old Brandy Hill. Charm confessed to police, describing in detail how the events unfolded and how he was involved in their development. His defense at trial was that he was too intoxicated on drugs and liquor to have formulated the specific intent to kill.
In his first proposition, Charm argues that his murder conviction and death sentence are void because the Information did not allege the essential elements of first degree malice aforethought murder and thus failed to confer subject matter jurisdiction on the district court. Indeed, rather than properly stating that Charm committed the first degree murder with "malice aforethought," the Information filed against him stated--in outdated statutory language--that he committed the homicide "with a premeditated design to effect the death" of the victim. Citing Pickens v. State 3 and Miller v. State, 4 Charm claims this technical, linguistic error deprived the trial court of subject matter jurisdiction and violated due process. This claim does not warrant relief.
In Miller, this Court held that an Information which does not allege each element of the crime charged is not only violative of due process, but that such a defective Information fails to confer subject matter jurisdiction on the trial court. However, we recently overruled Miller's "bright line" rule in Parker v. State, 5 concluding that defects in the charging language of an Information will no longer automatically deprive the trial court of subject matter jurisdiction. 6 Instead, such defects will be assessed under due process standards. "Where the Information alleges an offense and pleads particular facts constituting the offense in ordinary language, such that a person of common understanding can know what is intended and prepare a defense to the charge, no due process violation occurs." 7 The Information in this case states that Charm
unlawfully, wilfully and feloniously, without authority of law, and with a premeditated design to effect the death of one Brandy Crystian Hill, a human being, did then and there kill one Brandy Crystian Hill by means of a blunt instrument, to-wit: hammer, held in the hands of the said defendant[ ] and with which [he] hit and clubbed the said Brandy Crystian Hill in the head, causing mortal wounds to the head and body of the said Brandy Crystian Hill and from which mortal wounds the said Brandy Crystian Hill did languish and die....
Although this Information did in fact use the old "premeditated design" language rather than "malice aforethought," there is nothing ambiguous about the charge and Charm does not claim that there was. This Information was sufficient to put Charm on notice that he was being charged with and had to defend against first degree malice aforethought murder. Accordingly, it did not violate due process. This proposition is denied.
In his second proposition, Charm claims the trial court violated his constitutional rights by failing to instruct the jury on the lesser included offenses of second degree murder or first degree manslaughter after instructing the jury on the defense of voluntary intoxication. The trial court administered Charm's requested instructions covering his sole defense of voluntary intoxication. However, the trial court refused to give Charm's requested instruction on second degree murder. Charm now argues that the trial court should have given his requested second degree murder instruction, and also should have sua sponte administered a first degree manslaughter instruction.
Without the instructions on second degree murder and first degree manslaughter, Charm argues, the jury's only options were convicting or acquitting him of first degree murder. 8 Charm claims, on authority of Schad v. Arizona, 9 Beck v. Alabama, 10 and Pickens, 11 that the trial court's failure to provide the jury with a third, non-capital option violated his Eighth and Fourteenth Amendment rights. Charm is incorrect.
Beck and Schad held that "in death cases, the jury must be instructed on lesser included noncapital offenses supported by the evidence, in order to give the jury a viable option between acquittal and a death penalty offense." 12 Thus, lesser included offense instructions need not automatically be given in death cases, but are required only when supported by the evidence. The evidence in this case did not support an instruction on either first degree manslaughter or second degree murder, and the trial judge thus properly refused to administer them.
The crime of first degree manslaughter on which Charm claims the trial court should have administered an instruction is found at 21 O.S.1991, § 711(2). A homicide is first degree manslaughter "[w]hen perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon...." To warrant a manslaughter instruction, the evidence must "reasonably suggest that [the accused] committed the murder in the heat of passion and without an intent to kill." 13 The "passion" necessary to support a manslaughter instruction must be so great as to "render the mind incapable of forming a design to effect death...." 14 The elements of heat of passion are 1) adequate provocation; 2) a passion or emotion such as fear, terror, anger, rage or resentment; 3) homicide occurred while the passion still existed and before a reasonable opportunity for the passion to cool; and 4) a causal connection between the provocation, passion and homicide. 15
Charm does not present and the record does not reflect evidence of victim provocation and the requisite resulting emotional response of the perpetrator which must exist before a manslaughter instruction may be properly administered. The evidence establishes that upon no provocation whatsoever, Charm strangled and bludgeoned the victim with the specific intent to cause her death. These facts do not support a first degree manslaughter instruction.
The crime of second degree murder for which Charm requested an instruction is set forth at 21 O.S.1991, § 701.8(1). There, second degree murder is defined as a homicide "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...." The facts in this case reveal that Charm helped his accomplice kidnap their friend's fourteen year-old daughter and drive her into an isolated area; that he watched while his accomplice attempted to rape her; that he raped her himself; that his accomplice began choking her until blood came out of her mouth; that he noted to his accomplice, "You didn't kill her, man"; that he (Charm) tried to choke her but "she wouldn't die"; that his accomplice then hit her in the head with a sledgehammer; that Charm noted she was still shaking; that Charm--afraid of going to jail--"grabbed the hammer from [his accomplice], and ... hit her to make sure she was dead"; and that he was an equal participant in these acts. Nothing in these facts suggests anything but a design to effect the death of one specific person. 16 These facts do not support a second degree murder instruction.
The only arguable justification for a first degree manslaughter or second degree murder instruction in this case comes from the trial judge's conclusion that the evidence warranted an instruction on the defense of voluntary intoxication. Contrary to the trial judge's conclusion, however, the evidence did not support a jury instruction on the defense of voluntary intoxication. To be entitled to such a defense instruction, Charm was required to present evidence sufficient to raise a reasonable doubt concerning his ability to form the specific intent to kill. 17 He did not meet this requirement and the trial judge should not have administered a voluntary intoxication instruction.
In his confession, Charm did state that he had not eaten and had been drinking and taking pills prior to the murder. Witnesses who saw Charm just prior to the commission of these crimes also testified that they had seen him drinking. However, those witnesses further testified that Charm did not appear intoxicated. Additional evidence belying Charm's claim of intoxication came from his...
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