Notes on Use

The Oklahoma Court of Criminal Appeals held in Perez v. State, 798 P.2d 639, 641 (Okl. Cr. 1990), that this instruction must be given in conjunction with other appropriate self-defense instructions when the defendant has introduced sufficient evidence to warrant the instruction.

Committee Comments

This instruction sets forth the appropriate burden of proof when the defendant claims self-defense under either section 733 or section 643(3) as a defense to the charge. The burden of proof rests on the State. Self-defense is, however, a defense. Hence, the defendant must first come forward with sufficient evidence to raise self-defense as an issue, unless the evidence of the prosecution has raised the issue. If the defendant fails to come forward with evidence, or fails to come forward with sufficient evidence, the issue of self-defense is not raised in the trial, and the judge should not instruct on self-defense. Whether the defendant has come forward with sufficient evidence is a question of law for decision by the trial judge. Once the defendant has presented sufficient evidence to raise self-defense as an issue, the State has the burden of proof to overcome the defense beyond a reasonable doubt. It is a decision for the jury as to whether the State has met the burden of proof. Bearden v. State, 458 P.2d 914 (Okl. Cr. 1969).

Nor does 22 O.S. 1991, § 745, shift the burden of proof. Section 745 reads:

Section 745 is solely a statement of trial procedure which puts the burden of coming forward with evidence of mitigation, justification, or excuse on the defendant. If the defendant does not come forward with evidence of self-defense as justification, the issue of self-defense is not raised, unless the evidence of the State has raised the issue. Meadows v. State, 487 P.2d 359 (Okl. Cr. 1971).

No instructions on the defendant's burden to come forward with evidence, or on whether the defendant has presented sufficient evidence, are presented because, as questions of trial procedure, 22 O.S. 1991, § 745, and of law, they are beyond the legitimate concern of the jury.

Whenever there is sufficient evidence to raise the defense of self- defense, either from the evidence of the State or from evidence brought forward by the defendant, the trial judge has the duty to instruct on self- defense, whether the defendant requests instructions or not. Cordray v. State, 268 P.2d 316 (Okl. Cr. 1954); Owens v. State, 93 Okl. Cr. 156, 225 P.2d 812 (1950). See also Nance v. State, 838 P.2d 513, 515 (Okl. Cr. 1992) (instruction on defense of accidental homicide required where evidence produced at trial supported the defense). But see West v. State, 798 P.2d 1083, 1085 (Okl. Cr. 1990) (evidence insufficient to support instruction on self-defense).

In a murder case where a self-defense instruction is required, it may be appropriate for the trial court to also instruct on a lesser included offense such as manslaughter. In Walton v. State, 744 P.2d 977, 978-79 (Okl. Cr. 1987), the Court of Criminal Appeals held that the trial court did not err in not instructing on the lesser included offense of "heat of passion" first degree manslaughter, where there was no evidence that the killing was committed in the heat of passion and the defendant did not request the instruction. The court overruled its prior decision in Morgan v. State, 536 P.2d 952, 959 (Okl. Cr. 1975), which had mandated the giving of such an instruction.