Hommer v. State

• Decision Date: 06 January 1983
• Docket Number: No. F-80-767,F-80-767
• Citation: Hommer v. State, 657 P.2d 172 (Okla. Crim. App. 1983)
• Parties: Juanita Louise HOMMER, a/k/a Juanita L. Bryant, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 172

657 P.2d 172

Juanita Louise HOMMER, a/k/a Juanita L. Bryant, Appellant, v.The STATE of Oklahoma, Appellee.

No. F-80-767.

Court of Criminal Appeals of Oklahoma.

Jan. 6, 1983.

An Appeal from the District Court of Comanche County; J. Winston Raburn, District Judge.

Juanita Louise Hommer, a/k/a Juanita L. Bryant, appellant, was convicted of Manslaughter in the First Degree, in Comanche County District Court, Case No. CRF-79-540, and sentenced to five (5) years' imprisonment. AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Deputy Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, Juanita Louise Hommer, a/k/a Juanita L. Bryant, was convicted of Manslaughter in the First Degree, Case No CRF-79-540, in the District Court of Comanche County.She was sentenced to five (5) years' imprisonment.

The victim, with whom appellant was living at the time of the homicide, died of a knife wound to the pericardial sac and the left ventricle of the heart.The appellant was one of three individuals present at the scene of the crime when the police officers arrived.

In her first proposition of error, the appellant argues that Instructions No. Five (5) and Four (4) were erroneous.The appellant alleges that these errors were not waived by the failure of the defense to object to the instructions or offer her own because she was deprived of the fundamental right to clear instructions essential to her defense.Palmer v. State, 78 Okl.Cr. 220, 146 P.2d 592(1944).We will consider her arguments.

According to the appellant, the fatal flaws of InstructionNo. 5 are threefold: first, that the instruction required the appellant to measure the amount of force appropriate to her self-defense; second, that the jury was required to determine the sufficiency of the force according to their own objective viewpoint, without regard for what appeared reasonably necessary to the appellant at the time of the crime; and third, that the effect of the instruction was to shift the burden to the defense to prove self-defense beyond a reasonable doubt.

The appellant finds her argument in the case law of this State and attempts to identify a precedential niche where this instruction might fit and relief be granted.Her reliance on Franks v. State, 8 Okl.Cr. 71, 126 P. 582(1912);andWingfield v. State, 89 Okl.Cr. 45, 205 P.2d 320(1949), are ill-founded because the tenuous distinctions enunciated in those cases are outmoded.In Franks, this Court found that the phrase "just such force as was necessary ... and no more" required the defendant to measure the exact force necessary to avert danger during the heat of passion and held that this was an impermissible burden.Subsequently, in Wingfield, the jury was instructed to determine whether the defendant had used unreasonable force in self-defense.The crucial distinction, validating the Wingfield instruction, was that the Franks instruction required an on-the-scene calculation by the defendant, whereas the instruction in Wingfield "placed upon the jury the responsibility of measuring under the circumstances the force applied by the defendant and to determine whether or not he used more force than was reasonably necessary ..."Wingfield, supra, at 326.

It would be absurd to anticipate that a defendant could calculate a mathematically accurate quantity of force essential to do no more than repel an attack, at the moment of the attack.It is equally unrealistic to acknowledge the jury's responsibility to judge the appropriateness of the force used by the defendant under the circumstances and simultaneously pretend that there is no responsibility on the part of the defendant to measure the force necessary at the time of the attack.The jury is required to determine whether "... a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger ... [and further] ... The amount of force used may not exceed the amount of force a reasonable person, in the circumstances and from the viewpoint of the defendant, would have used ..."OUJI-CR744.The measurement of force sufficient to repel an attack must be made by the defendant on the scene; he will be judged subsequently by the jury on the reasonableness of his reaction under the circumstances.Franks and Wingfield, supra, are overruled as far as their inconsistency with this holding.

The pertinent portion of the challenged InstructionNo. 5 reads as follows: "... provided the force or violence used in self-defense is not more than sufficient to prevent such offense..."Although this is not a model instruction, the trial court did not have the benefit of either the subsequently published Oklahoma Uniform Jury Instructions or an alternative instruction by the defense.The instruction did not place an impermissible burden on the appellant to measure the force necessary to resist attack.Furthermore, no reference to an objective versus a subjective standard is found in this instruction, and no law is cited which makes the "viewpoint" a required part of a self-defense instruction, even though the better practice would be to instruct on that aspect of the defense, as is done in the Uniform Instructions, supra.

Finally, the appellant has failed to persuade this Court that InstructionNo. 5 shifted the burden to the defendant to prove self-defense.The cited portion reads as follows: "... if you find from the evidence that the acts of the defendant were committed in defense of her person..."The burden was properly placed on the State in Instruction No. One (1), and the use of the word "find" in InstructionNo. 5, did no more than refer to the jury's "finding" that the defendant had established self-defense by sufficient evidence; it was then the State's burden to prove absence of self-defense beyond a reasonable doubt.

Instruction No. Four (4) is fatal in its failure to define "felony" when instructing on justifiable homicide, according to the appellant, who cites ...