Nance v. State ( 1992 )

OPINION

LANE, Presiding Judge:

Appellant, Donald Wayne Nance, was convicted of Murder in the First Degree after a trial by jury in Case No. CRF-85-4577, in the District Court of Oklahoma County. The statutory punishment for the crime was life imprisonment and the trial court sentenced Appellant accordingly. Appellant has raised a number of allegations for our review, however, we find that one issue, the proper instruction of the jury, is dispositive of the case. Accordingly, we will confine our comments to that question.

Following the presentation of the evidence in this case, Appellant orally requested that the trial court instruct the jury on the law concerning his theory of defense, that being that the shooting was accidental. Specifically, Appellant requested that the court give the standard, uniform instructions concerning accidental homicide. The trial court refused on the basis that Appellant had not submitted the proposed instructions, Oklahoma Uniform Jury Instruction, Criminal (OUJI-CR) Nos. 725 and 727, in writing. Appellant then requested a thirty minute recess in order to obtain a copy of the written instructions. This request was also denied. No instructions on Appellant’s theory of defense were given to the jury. We find this deficit to be base, fundamental error.

This case involved the shooting death of Rodney Johnson. The evidence at trial was largely undisputed. Testimony established that on September 1, 1985, Appellant told his girlfriend, Sandra Marshall, that he was going to Abilene, Texas, to visit his family and asked her to go with him. Sandra, who lived with Appellant, told him that she did not want to go. Appellant left the apartment with his suitcase and a pistol case containing .357 and .44 magnum pistols.

After Appellant left the apartment, Sandra called a friend and made plans to go out late in the evening. She discussed her intention to call Johnson, whom she had been interested in for some time, to arrange a liaison. When she called Johnson, he agreed to come over to her apartment around 5:00. Sometime, late in the evening, Appellant called the apartment and told Sandra that he was on his way home. He did not tell her where he was calling from, however, Sandra assumed that he was calling from his parents home in Abilene.

In fact, Appellant never went to Abilene that day. Instead, he visited a number of his friends. He told them that he was supposed to go visit his parents, but that he was too tired to drive (he worked nights at the post office and then stayed up late after work) and wanted company on the trip. When none of the friends would agree to accompany him to Abilene, he took a nap and then went to get something to eat. He visited several other friends prior to calling Sandra to tell her he was on his way home.

When Appellant got home, he took the .44 Magnum out of the case and took it to the apartment with him. He testified at trial that he had been robbed three times and carried the gun for protection. He testified that he saw a light on in the apartment, heard a man’s voice, then unlocked the door. Sandra testified that he later told her that he had been listening outside the patio doors for some time.

When Appellant went into the apartment, he saw Marshall turning the corner toward the bathroom in her robe. He followed her into the bathroom and saw that someone was in the shower. Marshall testified that Appellant pulled back the curtain, waved the gun at Johnson, who was nude in the shower, and told him to get out. Marshall told the court that she left the bathroom intending to get clothes out of the closet. She testified that she heard a gunshot and then went back to the bathroom in time to see Johnson fall.

Appellant’s version of the actual incident was distinctly different from Marshall’s story. Appellant claimed that after he ordered Johnson to leave the apartment, he stepped backwards away from the bathtub. Because the bathroom was small, he bumped into Marshall, who tried to grab the gun. He claims that when he tried to protect himself from Marshall’s grab, he turned toward Johnson who also grabbed at the gun. Appellant testified that he kicked Johnson, then all three of them fell into the floor. He told the court that as he fell, the gun discharged, resulting in the death of Johnson from a single shot to the head.

We have long held that a criminal defendant must be afforded the opportunity to have a jury consider his theory of defense whether or not he requests instructions on that ground at trial if the evidence produced at trial supports the defense. Cherbonnier v. State, 751 P.2d 1098, 1099 (Okl.Cr.1988); Broaddrick v. State, 706 P.2d 534, 536 (Okl.Cr.1985); Payton v. State, 4 Okl.Cr. 316, 111 P. 666 (1910). This is true regardless of the relative merit of the evidence offered in support of the defense. Any evidence, without consideration of its veracity in light of the weight of the evidence, requires that instruction be given so that the jury may make the ultimate decision whether to accept or reject the offered defense. Grayson v. State, 687 P.2d 747 (Okl.Cr.1984); Holt v. State, 278 P.2d 855 (Okl.Cr.1955).

In the present case, Appellant testified that the shooting was accidental. He explained a series of events, which if believed, would constitute a defense to the crime of first degree murder. Clearly the trial court erred when it failed to instruct on this basis. Regardless of the lack of written request for the instructions, the trial court should have moved sua sponte to ensure that the jury was properly instructed in all matters of law which they were to consider. Lester v. State, 408 P.2d 563 (Okl.Cr.1965); Davidson v. State, 330 P.2d 607 (Okl.Cr.1958). On this basis, we find that the conviction must be reversed and the case remanded for a new trial.

This result is even more compelling after consideration of the events which occurred in the trial court’s chambers, prior to the instruction of the jury. After examination of the instructions proposed by the court, counsel for Appellant verbally requested that the court include the two uniform instructions which would advise the jury on the elements of the defense presented. The trial court refused to incorporate these two instructions on the basis that they were not offered in writing and then denied Appellant’s request for a short continuance to obtain copies of the instructions for submission to the court. While we agree with the trial court that this Court has long held that requested instructions must be offered in writing, we believe that the time has come to change the rule in certain instances.

As noted by the trial court, the well settled rule in this state requires that a defendant offer any requested instructions in writing prior to the settlement of the actual jury charge. Doolin v. State, 90 Okl.Cr. 188, 212 P.2d 136 (1949); Green v. State, 70 Okl.Cr. 228, 105 P.2d 795 (1940); Zeligson v. State, 43 Okl.Cr. 24, 276 P. 791 (1929). The reason for this long standing requirement was explained by the Supreme Court in Heatley v. Territory, 15 Okl. 72, 78 P. 79 (1904):

In this connection, a distinction must be observed between the giving of erroneous instructions and the failure to give correct and adequate instructions. On the former case the instruction is sufficiently called to the attention of the trial court by a single objection and exception, and it is not necessary to request and submit a correct instruction to be given in place of the erroneous one. But in the case of a mere failure to give corrected instructions covering the case, the error is not available on appeal, in the absence of a request for a proper instruction.

Id., 78 P. at 80.

The logic of the Court is clear; without a written copy of the proposed and rejected instruction, the reviewing court cannot properly judge whether or not the content of the instruction was appropriate and should have been given at trial. The rule, then is designed to facilitate appellate review of trial court proceedings and should not be used by a trial court to avoid properly instructing the jury.

In the case at hand, where the content of the instructions is not only mandated, but also contained in reference material widely available, the concerns underlying the creation of the rule are not appropriate. Any necessary review may be accomplished by reference to the instruction, located by the inclusion in the record of its number.

We find that while the wisdom of this rule is still absolutely valid, in practice today, the requirement should be subject to a slight modification. In cases such as the one before us, the requested instructions were part of the compiled, mandated, uniform set of instructions adopted and required for use in this state. Appellant asked the court to give two instructions out of this set, without modification. Given that these instructions are an integral part of criminal justice in Oklahoma (certainly each judge should have a set in close proximity), the rigid rule requiring submission of requested instructions in writing, when they are part of the uniform instructions, is redundant and without practical purpose since these instructions are already set out, in proper form, in OUJI-CR. Certainly as is illustrated here, the failure of the trial court to use those resources close at hand, resulting in the need for a new trial, rigid application of a rule which serves no purpose is not justifiable. Accordingly, we hold that when specific instructions are requested in a timely manner, and those instructions are unmodified uniform instructions, contained in OUJI-CR, the request for the instruction by number will be sufficient to satisfy the requirement that the request be in writing.

This change undertaken today is slight, and only applies in the case of the uniform instructions, however, it certainly satisfies the underlying reason which has long justified the need for written requests. If instruction other than one of the uniform instructions is requested, or if any modifications to the uniform instruction are requested, then those requests must still be fully set out in writing as has always been the case.

Based on our finding that the trial court failed to instruct the jury on Appellant’s theory of defense, this case is REVERSED and REMANDED for a new trial.

BRETT, PARKS and JOHNSON, JJ., concur. LUMPKIN, V.P.J., concurs in part/dissents in part.