Pat Lee Richardson v The State of Oklahoma

F 2005-362

Filed: Jun. 16, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Pat Lee Richardson appealed his conviction for First Degree Manslaughter. Conviction and sentence were modified from 35 years to 20 years imprisonment. Judge Lumpkin dissented. In this case, Pat Lee Richardson was found guilty of killing a man after a disagreement about money. He argued that he had the right to defend himself under a law that allows people to use force if someone unlawfully enters their home. However, the court said that the victim was not inside the house but on the porch when he was stabbed, so that law did not apply. The court also decided that Richardson's actions were not justified as self-defense since he was not in serious danger at the time. Although the court agreed that the evidence showed Richardson was guilty, they felt that the punishment of 35 years was too harsh and changed it to 20 years. One judge disagreed with this decision, believing that the original sentence was appropriate given the seriousness of the crime.

Decision

The Judgment of the trial court is hereby AFFIRMED, but the sentence is MODIFIED to a term of twenty (20) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a complete defense under Oklahoma's "Make My Day Law?"
• Did trial counsel provide effective assistance by failing to present an affirmative defense under the "Make My Day Law?"
• Was the conviction supported by sufficient evidence to establish justifiable homicide?
• Is the imposed sentence excessive and should it be modified?

Findings

• the court erred in applying the "Make My Day Law" as the victim did not enter the dwelling
• evidence was not sufficient to support a claim of ineffective assistance of counsel
• the court found no basis for justifiable homicide was established by the evidence
• the court modified the sentence from thirty-five years to twenty years imprisonment

F 2005-362

Jun. 16, 2006

Pat Lee Richardson

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Pat Lee Richardson, was convicted after a non-jury trial for First Degree Manslaughter, in violation of 21 O.S.2001, § 711(2), in Comanche County District Court, Case No. CF 2004-309. Appellant was sentenced to thirty-five (35) years imprisonment. From the Judgment and Sentence imposed, Appellant filed this appeal. Mr. Richardson raises the following propositions of error:

1. Appellant’s conviction should be reversed, because he had a complete defense, based on Oklahoma’s Make My Day Law;
2. Appellant was denied effective assistance of counsel by trial counsel’s failure to present an affirmative defense under the Make My Day Law;
3. Appellant’s conviction should be reversed, based on the defense of justifiable homicide; and,
4. Appellant’s sentence is excessive and should be modified.

After thorough consideration of the propositions raised, the Original Record, Transcripts, the arguments and briefs of the parties, we have determined that Appellant’s conviction should be affirmed, but his sentence modified for the reasons set forth below.

In Proposition One, under 21 O.S.2001, § 1289.25, commonly referred to as the Make My Day law, … any occupant of a dwelling is justified in using any degree of physical force, including but not limited to deadly force, against another person who has made an unlawful entry into that dwelling, and when the occupant has a reasonable belief that such other person might use any physical force, no matter how slight, against any occupant of the dwelling. This is an affirmative defense in criminal prosecutions for an offense arising from the reasonable use of force. 21 O.S.2001, § 1289.25(C). Appellant was not entitled to a defense under § 1289.25 as the uncontroverted evidence showed the victim did not enter Appellant’s house but was standing on the front porch when he was stabbed. Conover v. State, 1997 OK CR 6, 1 56, 933 P.2d 904, 917-918. Mulkey v. State, 1911 OK CR 41, 113 P. 532, relied upon by Appellant for the assertion that a home’s porch satisfies the requirement of entry into a dwelling under the Make My Day Law defense is distinguishable from the specific provisions of § 1289.25 requiring entry into the home before the occupant can use force against the intruder. Even if Appellant was entitled to protect himself while seated on his porch by stabbing the victim, he certainly was not entitled to stab the victim a second time as the victim lay on the ground already wounded. Accordingly, we find no error occurred in the trial court’s failure to apply § 1289.25 to Appellant’s case.

In Proposition Two, based upon our finding that the evidence did not support a defense under the Make My Day law, we find trial counsel’s failure to present a defense under § 1289.25 does not render the results of the trial unreliable. Therefore, counsel cannot be found ineffective. Workman v. State, 1991 OK CR 125, I 19, 824 P.2d 378, 383.

In Proposition Three, we find the evidence did not warrant a finding of justifiable homicide. Justifiable homicide in self-defense occurs when one person, not at fault in bringing on the struggle, kills another under apparent necessity to save himself from death or great bodily harm. Camron v. State, 1992 OK CR 17, I 13, 829 P.2d 47, 52; see also 21 O.S.2001, § 733. The apprehension of danger and the belief of the necessity which would justify killing in self-defense are not to be tested by the defendant’s honesty or good faith but by whether the defendant had reasonable grounds to believe the killing necessary. Camron, 1992 OK CR 17, I 13, 829 P.2d at 52. Self-defense is not available to a person who is the aggressor or who enters into mutual combat. West v. State, 1990 OK CR 61, 1 7, 798 P.2d 1083, 1085. While the evidence shows the victim was certainly aggressive and antagonistic, there is no evidence to support a finding that Appellant was in fear of great bodily injury or that he believed killing the victim was the only way to save himself from harm. Appellant stabbed the unarmed victim who presented no serious threat to Appellant. Therefore, the trial court properly rejected the theory of justifiable homicide.

In Proposition Four, Appellant argues his sentence is excessive and should be modified. We agree. Under all the facts of this case, including the mitigating factors apparent from the record, the sentence imposed shocks the conscience of the Court, and we find the sentence should be modified to a term of twenty (20) years imprisonment. 22 O.S.2001, § 1066; Rea v. State, 2001 OK CR 28, 1 5, 34 P.3d 148, 149.

DECISION

The Judgment of the trial court is hereby AFFIRMED, but the sentence is MODIFIED to a term of twenty (20) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 711(2)
2. 21 O.S.2001, § 1289.25
3. 21 O.S.2001, § 1289.25(C)
4. 21 O.S.2001, § 733
5. 22 O.S.2001, § 1066
6. Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149
7. Workman v. State, 1991 OK CR 125, 19, 824 P.2d 378, 383
8. Camron v. State, 1992 OK CR 17, 13, 829 P.2d 47, 52
9. West v. State, 1990 OK CR 61, 7, 798 P.2d 1083, 1085
10. Conover v. State, 1997 OK CR 6, 1, 56, 933 P.2d 904, 917-918
11. Mulkey v. State, 1911 OK CR 41, 113 P. 532
12. Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711.2 (2001) - First Degree Manslaughter
• Okla. Stat. tit. 21 § 1289.25 (2001) - Make My Day Law
• Okla. Stat. tit. 21 § 733 (2001) - Justifiable Homicide
• Okla. Stat. tit. 22 § 1066 (2001) - Modification of Sentences

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Conover v. State, 1997 OK CR 6, 1 56, 933 P.2d 904, 917-918
• Mulkey v. State, 1911 OK CR 41, 113 P. 532
• Workman v. State, 1991 OK CR 125, 1 19, 824 P.2d 378, 383
• Camron v. State, 1992 OK CR 17, 1 13, 829 P.2d 47, 52
• West v. State, 1990 OK CR 61, 1 7, 798 P.2d 1083, 1085
• Rea v. State, 2001 OK CR 28, 1 5, 34 P.3d 148, 149