Staggs v. State
| Decision Date | 08 January 1991 |
| Docket Number | No. F-87-286,F-87-286 |
| Citation | 1991 OK CR 4,804 P.2d 456 |
| Parties | David Mack STAGGS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
DAVID MACK STAGGS, appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CRF-86-49 in the District Court of Beckham County. The jury returned a verdict of guilty and set punishment at life imprisonment. From this judgment and sentence, appellant appeals. REVERSED and REMANDED FOR A NEW TRIAL.
Scott W. Braden, Asst. Appellate Public Defender, Norman, for appellant.
Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.
David Mack Staggs, appellant, was tried by jury for the crime of Murder in the First Degree, in violation of 21 O.S.1981, § 701.7, in Case No. CRF-86-49 in the District Court of Beckham County. The jury returned a verdict of guilty and set punishment at life imprisonment. From this judgment and sentence, appellant has perfected this appeal.
On April 12, 1982, a body that had been shot and which was later identified as Scott McCance, was found in a roadside ditch south of Elk City. The appellant had been seen with McCance on April 3, 1982, when they left the residence of Hargess, a mutual acquaintance, to get beer and ride around. Hargess and Duncan, who saw them leave together, never saw McCance after this date.
On May 8, 1986, the appellant was charged by information with first degree murder based upon malice aforethought. At trial, although the information was never amended to include any underlying felonies, the jury was instructed that they could find the appellant guilty of either first degree malice aforethought murder or felony murder, with the underlying felonies being robbery and kidnapping. As the appellant was never charged with either kidnapping or robbery, he was never put on notice that he would need to defend against any underlying felonies.
We find appellant's third assignment of error to be dispositive of this case. In his third assignment of error, the appellant first argues that the trial court committed reversible error by failing to require a unanimous jury verdict on a single theory of guilt, either malice aforethought murder or felony murder. He also argues that it was error for the trial court to instruct on felony murder because he was not charged with any underlying felonies. A review of the record reveals that the appellant did not object to the instructions given at trial nor did he request any of his own. However, insofar as we have found that the errors complained of are fundamental in that they deprived the appellant of a right essential to his defense, we can address them for the first time on appeal. See West v. State, 764 P.2d 528 (Okl.Cr.1988).
It is true that a unanimous verdict is guaranteed by the Oklahoma Constitution. Okla. Const., art. 2, § 19; Blackwell v. State, 663 P.2d 12 (Okl.Cr.1983). This Court has held that where a defendant is charged with alternative theories upon which to base a conviction for first degree murder, where each were alleged and proved, a defendant will not be found to have been denied a unanimous verdict when the jury does not specify the theory upon which they base their verdict of guilt, malice aforethought or felony murder. See James v. State, 637 P.2d 862, 865 (Okl.Cr.1981), overruled in part on other grounds, 743 P.2d 133 (Okl.Cr.1987); Plunkett v. State, 719 P.2d 834, 841 (Okl.Cr.1986) Newstead v. State, 720 P.2d 734, 737 (Okl.Cr.1986). However, in each of those cases, the defendant was charged with both malice aforethought murder and one or more of the enumerated underlying felonies for felony murder. The situation in the present case is distinguishable from those cases because here, the appellant was never charged with any underlying felonies.
In Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989), where the appellant was charged with the underlying felonies of kidnapping and armed robbery, we found that the inclusion of these offenses in the amended information put the appellant on notice that he could be tried for felony murder. However, in Munson, we specifically stated that "if appellant had not been put on notice of the underlying felonies that he would be required to defend against, due process considerations would have required a reversal." Id. at 332. A defendant must be given notice of the nature and cause of the...
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