Shrum v. State

• Decision Date: 27 October 1999
• Docket Number: No. F-98-497.,F-98-497.
• Citation: 991 P.2d 1032,1999 OK CR 41
• Parties: Nicky Lee SHRUM, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

991 P.2d 1032

1999 OK CR 41

Nicky Lee SHRUM, Appellant, v. STATE of Oklahoma, Appellee.

No. F-98-497.

Court of Criminal Appeals of Oklahoma.

October 27, 1999.

Jeff Belote, Attorney at Law, McAlester, OK, for Appellant at trial.

Farley Ward, Mike Dunagan, Assistant District Attorneys, Wilburton, OK, for the State at trial.

Allen Smith, Appellate Defense Counsel, Norman, OK, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, for Appellee on appeal.

OPINION

STRUBHAR, Presiding Judge:

¶ 1 Nicky Lee Shrum, hereinafter Appellant, was convicted of one count of First Degree (Heat of Passion) Manslaughter (21 O.S.1991, § 711(2)), following a jury trial in the District Court of Latimer County, Case No. CF-97-42, the Honorable Janice K. Skimbo, Associate District Judge, presiding. The jury recommended twenty-five (25) years imprisonment and the trial court sentenced accordingly. From this judgment and sentence, Appellant appeals. We affirm.

¶ 2 On July 31, 1997, Appellant shot and killed his stepfather, Cleo Campbell, at their home in Latimer County, Oklahoma following a heated argument. The issue at trial was whether Appellant shot Campbell with malice aforethought, in a heat of passion or in self-defense.

¶ 3 In his first proposition of error, Appellant claims this Court should reverse his first degree heat of passion manslaughter conviction with instructions to dismiss because first degree heat of passion manslaughter is not a lesser included offense of first degree malice murder, the crime with which he was charged. Specifically, Appellant argues: 1) heat of passion manslaughter is not a "necessarily included offense" of premeditated murder; 2) a jury must acquit when the evidence supports a charge not alleged in the Information; 3) the trial court had no jurisdiction to instruct on a crime not included in the charged crime; and 4) Appellant's conviction for first degree heat of passion manslaughter denied him due process. At trial, the State requested both second degree depraved mind murder and first degree heat of passion manslaughter instructions. The trial court gave only the manslaughter instruction without any objection by defense counsel.

¶ 4 Appellant relies on Willingham v. State, 1997 OK CR 62, ¶ 19, 947 P.2d 1074, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998) in which this Court reaffirmed that "an offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser." Id. at 1080 (quoting State v. Uriarite, 1991 OK CR 80, ¶ 8, 815 P.2d 193, 195). Although Willingham held that second degree depraved mind murder was not a lesser included offense of first degree malice murder, Willingham did not address whether first degree heat of passion manslaughter constitutes a lesser included offense of first degree malice murder, and seemingly left that question unresolved.

¶ 5 Oklahoma has codified its lesser included offense doctrine¹ at 22 O.S.1991, § 916 which provides:

The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

(emphasis added).

¶ 6 This Court has traditionally held that the trial court instructing the jury on all possible verdicts, especially in homicide cases, must include all lesser included offenses supported by the evidence.² Clearly first degree malice murder, second degree depraved mind murder and manslaughter are related offenses.³ The question is whether the lesser offenses are necessarily included in the greater offense since a jury may convict a defendant of those offenses necessarily included in the greater crime. 22 O.S.1991, § 916. The principal impediment to administering instructions on related, but not necessarily included, offenses is the defendant's due process right to notice of the charges against which he must defend. See Parker v. State, 1996 OK CR 19, ¶ 18, 917 P.2d 980, 985,cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997). A defendant is deemed to know that he may be convicted of the greater crime with which he is charged and any lesser included offense whether the lesser included offense is pled in the Information or not. This constitutional notice conundrum does not arise when a defendant defends on a theory that he lacked the necessary intent element of the greater offense and requests a related lesser offense instruction because such a defendant cannot claim lack of notice.

¶ 7 Whether any particular offense is "necessarily included" in another depends upon which lesser included offense test or approach is utilized and whether the trial evidence warrants instruction. This two part analysis first requires courts to make a "legal determination about whether a crime constitutes [a lesser included offense] of the charged crime or whether it is legally possible for the charged crime to include [a lesser included offense]." James A. Shellenberger and James A. Strazzella, The Lesser Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies 79 Marq.L.Rev. 1, 6 (1995). Courts use several different tests or approaches to make this legal conclusion and this Court has employed all of the different tests in the past. Christen R. Blair, Lesser Included Offenses in Oklahoma, 38 Okla. L.Rev. 697, 702-03 (1985). This Court initially applied a strict statutory elements approach which required all of the elements of the lesser included offense to be contained in the greater offense so that it would be impossible to commit the greater offense without also committing the lesser.⁴ Id. at 703. This test is the most inflexible and results in few offenses having lesser included ones because it requires under all possible circumstances that the commission of the greater crime will also entail commission of the lesser offense.⁵ Id. at 699. It is, however, the easiest to apply.

¶ 8 The Court has also found lesser offenses are necessarily included where the lesser and the greater offense are in the same class of offenses and are closely or inherently related, but the elements do not satisfy the strict statutory elements test. These approaches fall into three sub-categories: the pleadings approach, the evidence approach and a hybrid of the pleadings and evidence approach. In the pleading test, the Court looked not only at the strict elements of the offenses, but looked to the facts alleged in the indictment/information to determine if a lesser included offense of the greater charged offense existed.⁶Id. at 700, 704-05. In such cases, the Information had to allege facts indicating the commission of some lesser offense because if the Information failed to adequately apprise the accused of the facts constituting the lesser offense, the Information was insufficient to charge and support a conviction of the lesser offense. Id. at 704-05.

¶ 9 This Court has also utilized an evidence approach in which the Court looked to the facts proved at trial.⁷ Id. at 705-06. The evidence test considers not only the elements, but looks to the crimes the trial evidence tends to prove. This test has been used to support a lesser included offense instruction where the facts at trial indicate a lesser offense, but those facts were not alleged in the Information. Id. at 705. This Court seems to utilize this test when it holds that lesser included offense instructions are only warranted when supported by the evidence. Id. at 706. Although the pleadings and evidence tests are more liberal, they have been criticized for being too flexible, especially the evidence test because the existence of the lesser included offense depends upon the facts adduced at trial making its bounds difficult to ascertain. Id. at 701.

¶ 10 This Court continues to be inconsistent in its approach to lesser included offenses. In 1997, the Willingham court revived the strict statutory elements approach, Willingham, 1997 OK CR 62, ¶¶ 19, 27, 947 P.2d at 1080, while the Riley court utilized the hybrid pleading/evidence test. Riley v. State, 1997 OK CR 51, ¶ 15, 947 P.2d 530, 533-34 (holding lewd molestation is a lesser included offense of rape). We take this opportunity to formally adopt the test we intend to use in determining lesser included offenses to aid the trial courts and the parties in determining if instructions on lesser included offenses may or should be given. Our decision is prospective only and will be applied only to those cases now pending on appeal and in all future cases. Although each test has its advantages and disadvantages, we find the better approach is to use the evidence test to determine what constitutes a lesser included offense of any charged crime.⁸ This means, in the instant case, that all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the evidence.

¶ 11 In practice, if the trial court sua sponte proposes the lesser included offense instruction that is supported by the evidence and the defendant objects, the defendant shall have the right to affirmatively waive any lesser included offense instruction that the evidence supports and proceed on an "all or nothing approach." O'Bryan v. State, 1994 OK CR 28, ¶ 11, 876 P.2d 688, 689-90. If the State requests the lesser included offense instruction and the defendant objects, the trial court should review the Information together with all material that was made available to the defendant at preliminary hearing and through discovery to determine whether the defendant received adequate notice that the State's case raised lesser related offenses that should be deemed included.⁹See Parker, 1996 OK CR 19, ¶ 24,917 P.2d at 986. However, if the trial court proposes or the State requests the lesser included offense...