Chapple v. State

1993 OK CR 38, 866 P.2d 1213, 65 O.B.A.J. 558, 1994 Okla. Crim. App. LEXIS 6, 1993 WL 328903
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 1, 1994
DocketF-90-1089
StatusPublished
Cited by24 cases

This text of 1993 OK CR 38 (Chapple v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chapple v. State, 1993 OK CR 38, 866 P.2d 1213, 65 O.B.A.J. 558, 1994 Okla. Crim. App. LEXIS 6, 1993 WL 328903 (Okla. Ct. App. 1994).

Opinions

OPINION

LANE, Judge:

Booker T. Chappie, Appellant, was tried by jury for the crimes of Shooting With Intent to Kill After Former Conviction of A Felony (21 O.S.1981, § 652) and Possession of a Loaded (sic) Firearm After Former Conviction of Two Felonies (21 O.S.1981, § 1283) in the District Court of Oklahoma County, Case No. CRF-89-6074. The jury returned a verdict of guilty and set punishment at one hundred (100) years imprisonment for Shooting With Intent to Kill, and seventy five (75) years for possession of a loaded (sic) firearm. The trial court sentenced the appellant in accord with the jury verdict.

In this perfected appeal the appellant argues (1) the trial court erred in its instruction on self-defense which failed to advise the jury of the State’s burden to disprove self-defense beyond a reasonable doubt after the defendant raises the defense; (2) that the trial court erred in admitting the appellant’s prior convictions during the second stage of trial; (3) that his fully pardoned felony conviction which was more than ten (10) years old should not have been used to enhance the punishment for possession of a firearm; and (4) that the trial court improperly instructed the jury in the second stage of trial on the use of his former convictions for impeachment purposes.

We agree the instructions on self-defense were inadequate to apprise the jury of the State’s shifting burden and we reverse and remand Count I, Shooting with Intent to Kill, to the district court for new trial. We affirm the judgment for Count II, Possession of a Loaded (sic) Firearm, but vacate the sentence and remand for resentencing [1215]*1215for the trial court erred in instructing the jury on enhancement. We also set forth the procedure to be followed when the charge of felon in possession is prosecuted in a multi-count case.

This ease arose out of a traffic incident near the Broadway Extension in Oklahoma City. While driving home to Edmond with her two teen-aged sons on the evening of November 4, 1989, Judith Ann Strickland noticed the appellant driving erratically. He crowded cars, forced them to change lanes, attempted to pass on the shoulder. Strickland followed him when he exited the Broadway Extension at 63rd Street in order to get his tag number. At a stop light appellant slammed on his brakes. Strickland’s ear stalled when she slammed on her brakes to avoid hitting the appellant’s car. The appellant then got out of his car, walked up to Strickland’s front fender, smiled, and emptied five shots from his .38 caliber revolver into her windshield. The first bullet trav-elled through the collar of Strickland’s coat, and lodged in her neck at the spine. Strickland drove home and was taken to the hospital by her husband. She reported the incident to the police.

At trial Appellant admitted shooting Strickland, but claimed he shot her in self-defense. He testified he had received threatening telephone calls, and was frightened by the car with three occupants which he thought chased him and tried to force him off the road. He testified he tried to scare them away by shooting at them but did not intend to kill anyone. In the second stage of trial the appellant admitted to two prior felony convictions, one for DUI in 1986 and one for armed robbery in 1968 which was fully pardoned in 1974.

At the end of the guilt stage the trial court instructed the jury on self-defense as follows:

Evidence has been introduced of self-defense as a defense to the charge that the defendant has committed the crime of SHOOTING WITH INTENT TO KILL as charged in Count I (Instruction 10)
A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he was in imminent danger of death or great bodily harm. (Instruction 11)

The trial court refused Appellant’s request for the following instruction:

It is the burden of the State to prove beyond a reasonable doubt that the defendant was not acting in self-defense. If you find that the State has failed to sustain that burden, then the defendant must be found not guilty. (Defendant’s Requested Instruction No. 9)

This requested instruction sets forth the State’s shifting burden and is a proper statement of the law which should have been given to the jury. Perez v. State, 798 P.2d 639 (Okl.Cr.1990). Specific instruction on the State’s shifting burden is mandatory when self-defense is properly raised. Id. at 640-41. Prior to Perez the Court reviewed the jury instructions as a whole to determine whether they adequately set forth the State’s shifting burden. See Hommer v. State, 667 P.2d 172 (Okl.Cr.1983); Cantrell v. State, 562 P.2d 527 (Okl.Cr.1977). As Appellant’s case was tried prior to Perez, we examine the instructions as a whole to determine whether the jury was instructed adequately.

No instruction as to the State’s shifting burden was given to the jury in this case. The jury therefore could not possibly have applied the law of self-defense properly. This error is extremely prejudicial to the defendant’s case and requires reversal and remand of Count I for new trial.1

[1216]*1216Having reversed Count I, we will address Appellant’s remaining arguments only as they pertain to Count II, Possession of a Loaded (sic) Firearm After Former Conviction of Two Felonies. Appellant correctly argues his prior convictions were improperly used for enhancement of punishment.

The error which ultimately lodged in the sentencing instructions for Count II arose on the second page of the Information.2 The State charged the crime After Former Conviction of Two Felonies, robbery with firearms and felony DUI. Both of these former convictions cannot be used for enhancement, for one must be used as an element of the crime charged in Count II: felon in possession.

Under the plain language of the enhancement statute, 21 O.S.1981, § 51A, the twenty-two (22) year old armed robbery conviction can not be used to enhance punishment:

No person shall be sentenced as a second and subsequent offender ... when a period of ten (10) years has elapsed since the completion of the sentence imposed on the former conviction; provided, said person has not, in the meantime, been convicted of a misdemeanor involving moral turpitude or felony.

This crime could be used, however, as an element of the crime, felonious possession of a firearm. Fenter v. State, 695 P.2d 12 (Okl.Cr.1985).

The trial court correctly kept the jury from using the robbery conviction when it set punishment for Count I. However, it allowed the jury to consider both of the former convictions for enhancement of Count II under the following instructions:

... You may consider both prior felony convictions in assessing the defendant’s punishment for the crime of Count 2— POSSESSION OF A LOADED FIREARM AFTER FORMER CONVICTION OF TWO (2) FELONIES.

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Cite This Page — Counsel Stack

Bluebook (online)
1993 OK CR 38, 866 P.2d 1213, 65 O.B.A.J. 558, 1994 Okla. Crim. App. LEXIS 6, 1993 WL 328903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chapple-v-state-oklacrimapp-1994.