Doyle Blythe v The State Of Oklahoma

M-2006-555

Filed: Apr. 12, 2007

Not for publication

Prevailing Party: Doyle Blythe

Summary

Doyle Blythe appealed his conviction for Reckless Conduct With a Firearm. Conviction and sentence were reversed and remanded for a new trial. A. Johnson dissented.

Decision

Appellant's Judgment and Sentence in Case No. CF-2005-88 in the District Court of Pushmataha County is REVERSED and REMANDED to the District Court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was the jury improperly instructed as to the Appellant's right of self-defense?
• was the Appellant denied access to impeachment evidence?
• was the verdict based on speculation?
• was the Appellant denied effective assistance of trial counsel?

Findings

• the court erred in denying the jury instruction on self defense
• evidence was not sufficient to establish a denial of access to impeachment evidence
• evidence was not sufficient to support the verdict, which was based on speculation
• the court erred in denying effective assistance of trial counsel
• the Judgment and Sentence is reversed and remanded for a new trial

M-2006-555

Apr. 12, 2007

Doyle Blythe

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, VICE-PRESIDING JUDGE:

Appellant appeals from his misdemeanor Judgment and Sentence in Case No. CF-2005-88 in the District Court of Pushmataha County. In that case, Appellant was charged with Feloniously Pointing a Firearm. A jury trial was conducted before the Honorable Mark R. Campbell, District Judge, on May 8, 9, and 10, 2006. In accordance with the jury verdict, Appellant was convicted of the lesser included misdemeanor offense of Reckless Conduct With a Firearm, and was sentenced to a term of six (6) months in the Pushmataha County Jail and a $500.00 fine.

On appeal Appellant raises the following propositions of error:

1. The jury was improperly instructed as to the Appellant’s right of self defense.
2. The Appellant was denied access to impeachment evidence.
3. The verdict was based on speculation.
4. The Appellant was denied effective assistance of trial counsel.

Appellant’s first proposition of error, coupled with the fourth, requires that the Judgment and Sentence be reversed, and the case remanded to the District Court for a new trial. The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Cipriano v. State, 2001 OK CR 25, q14, 32 P.3d 869, 873. Also, it is well settled that this Court will not interfere with a judgment as long as the instructions, when considered as a whole, fairly and accurately state the applicable law. Kinsey v. State, 1990 OK CR 64, 19, 798 P.2d 630, 634.

However, a defendant is entitled as a matter of law to have his theory of defense clearly set forth in an instruction to the jury, where there is evidence to support it and as long as that theory is tenable as a matter of law. Kinsey, 1990 OK CR 64 at 117-8, 798 P.2d at 632. Even if the defendant’s evidence is discredited, and wholly self-serving, the jury must be advised of the defendant’s theory of defense. Kinsey, supra; Jackson v. State, 1998 OK CR 39, 163, 964 P.2d 875, 891.

In this case, Appellant’s sole theory of defense was self defense, and evidence was presented relating to that theory. Appellant requested jury instructions on self defense, and objected when the trial court denied the request. As indicated by a note sent to the trial court during deliberations, the jury in this case recognized a tenable self defense issue and recognized that it had not been adequately instructed on the law of self defense. When considered as a whole, we do not find the instructions in this case fairly and adequately state the applicable law. Kinsey, supra.

The effect of not properly instructing the jury cannot be determined in this appeal. The State argues Appellant failed to show that he had a reasonable belief of imminent danger of bodily harm. We decline to address the merits of Appellant’s self defense claim. As a case cited by the State notes, it is within the exclusive province of the jury, as sole trier of facts, to determine, in the light of all the circumstances surrounding the incident, whether or not a reasonable ground existed as to constitute a justifiable defense to the person of the accused. West v. State, 1980 OK CR 82, 15, 617 P.2d 1362, 1366. Appellant’s jury should have been instructed on self defense, as they wanted to be.

The jury should have determined the reasonableness of Appellant’s actions based upon the evidence presented and the law contained in those instructions. The initial misstatement of the law of self defense by Appellant’s counsel to the trial court may have contributed to the failure to instruct on Appellant’s theory of self defense. We only address Appellant’s second proposition as it relates to trial on remand. Appellant has not established that the impeachment evidence he sought would be relevant evidence in the form of opinion or reputation to attack the credibility of a witness. 12 O.S.Supp.2002, § 2608.

**DECISION**

Appellant’s Judgment and Sentence in Case No. CF-2005-88 in the District Court of Pushmataha County is REVERSED and REMANDED to the District Court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Cipriano v. State, 2001 OK CR 25, q14, 32 P.3d 869, 873.
2. Kinsey v. State, 1990 OK CR 64, 19, 798 P.2d 630, 634.
3. Kinsey, 1990 OK CR 64 at 117-8, 798 P.2d at 632.
4. Jackson v. State, 1998 OK CR 39, 163, 964 P.2d 875, 891.
5. West v. State, 1980 OK CR 82, 15, 617 P.2d 1362, 1366.
6. 12 O.S.Supp.2002, § 2608.
7. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007).

Oklahoma Statutes citations:

• Okla. Stat. tit. 12 § 2608 (2002) - Impeachment Evidence

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:

• Cipriano v. State, 2001 OK CR 25, ¶14, 32 P.3d 869, 873
• Kinsey v. State, 1990 OK CR 64, ¶19, 798 P.2d 630, 634
• Jackson v. State, 1998 OK CR 39, ¶163, 964 P.2d 875, 891
• West v. State, 1980 OK CR 82, ¶15, 617 P.2d 1362, 1366