Capital Habeas Petitioner Gets Remand Based on Incorrect Instruction on Second-Degree Murder

Taylor v. Workman, 2009 WL 213112 (1/30/09) (Published) - A habeas reversal of an Oklahoma death penalty conviction (!!!!) due to a failure to give a correct lesser-included offense instruction for second degree murder. First, the state court applied law that was contrary to S. Ct. case law when it upheld the conviction because evidence supported the first degree murder conviction. The lesser-included-offense instruction ("LIOI") must be given if there is sufficient evidence to support it, even if there is sufficient evidence to support the greater charge. Second, there was sufficient evidence to support the LIOI where the defendant did not know the victim and testified he got scared by an encounter with someone else and, as he was leaving, saw the deceased out of the corner of his eye and fired shots in his direction, hitting the deceased in the back, without thinking. From that testimony the jury could reasonably find the defendant did not have a premeditated design to kill the deceased, even though he may have intended to harm him. The 10th relied on the fact that the trial court did give an LIOI [it just wasn't the correct one] and the prosecution did not object. Third, the instructional error was not harmless. The instruction told the jury it could not find the defendant guilty of second degree murder unless it found the defendant did not intend to kill or harm the deceased. The law actually only required a lack of intent to kill. This went to the heart of the defense.