Hames v. State ( 1991 )

PARKS, Judge,

dissenting:

I respectfully dissent. I am puzzled by the majority’s determination that the trial court properly denied appellant a jury instruction on proximate cause. Denying him of his requested instruction stripped appellant of his defense.

The majority properly states that an accused is entitled to an instruction on any theory of defense if it finds possible support in the evidence, even if that evidence is discredited. Broaddrick v. State, 706 P.2d 534 (Okl.Cr.1985). However, contrary to the majority’s determination, competent evidence existed to support appellant’s theory. First, the accident occurred on a rainy night on a dimly lit road. Second, the decedents were driving a vehicle which was illegally operated on a public road. Third, there was evidence indicating that the decedent’s vehicle had been stalling all evening but even with this knowledge, the riders chose to drive it. Fourth, the decedents knew or should have known that when this vehicle stalled, its lights would not operate. Fifth, an expert testified that at the time of the collision, the lights of the illegal vehicle were out. Finally, the autopsy report showed that decedents were intoxicated at the time of death.

Clearly, there was an abundance of evidence to support defendant’s theory that the accident would have occurred regardless of his alcohol use.

I fail to follow the majority’s logic in dismissing appellant’s proposition. First, the majority states that “the decedents did not merely run off the road or run into the truck, they were struck by the pickup from behind and the resulting injuries were the cause of death.” Although this statement is true, I fail to see its relevance. A stalled, small vehicle without lights could easily be run into on a dark, wet road. Therefore, the decedent’s negligence may have been the proximate cause of their deaths.

Next, the majority states that the identity of the driver was not at issue. Again, this statement is irrelevant. Appellant never denied either at trial or on appeal that he was the driver of the pickup. In fact, he approached the police officer who came to the scene and informed him that he was the operator of the truck.

Third, the majority states that “comparative negligence and contributory negligence are not defenses to a criminal charge.” This statement misses the mark. Appellant does not contend that comparative or contributory negligence is a defense. He merely contends that the trial court erred in failing to give an instruction on proximate cause.

Finally, the majority concludes that the jury instructions taken as a whole fairly stated the applicable law. It is true that this Court will consider whether instructions in their entirety accurately state the law. McKinnon v. State, 752 P.2d 833 (Okl.Cr.1988). However, where the trial court denied the defendant an instruction on his theory of defense, the jury could not possibly have known how to correctly apply and analyze all the evidence in order to come to a determination of guilt or innocence.

In Williams v. State, 554 P.2d 842 (Okl.Cr.1976), this Court held that the trial court committed reversible error by denying defendant a proximate cause instruction in a negligent homicide ease. There, we stated:

While contributory negligence on the part of decedent was not a defense, the court should have instructed the jury that the decedent’s negligence, if shown, should be considered with all the other evidence to determine whether the negligence of the defendant was the proximate cause of the killing or whether defendant’s act or omission was culpably negligent under the circumstances.

Williams at 845-46 quoting State v. Bowser, 124 Kan. 556, 261 P. 846 (1927).

For the foregoing reasons, I would find that the trial court committed fundamental error by failing to provide the jury with defendant’s requested proximate cause instruction.