Committee Comments

It is settled law that inclusion of the testimony of an accomplice in the State's case obliges the trial court to instruct the jurors with respect to the requisite of corroboration of that testimony, in order to insure that a conviction rests on bases other than the unsupported testimony of one whose motives for testifying may be questionable. Glaze v. State, 1977 OK CR 206, 565 P.2d 710; Kern v. State, 1997 OK CR 95, 522 P.2d 644; Allen v. State, 1974 OK CR 91, 522 P.2d 243; Williams v. State, 1974 OK CR 7, 518 P.2d 322; McCormick v. State, 1969 OK CR 244, 464 P.2d 942, cert. denied, 397 U.S. 934 (1970). However, the requirements embodied in the statutory policies expressed in 22 O.S. 2001, § 742, relate only to a criminal trial on the merits, a proceeding from which a conviction can result; these requirements have no application to a preliminary examination. Bennett v. State, 1977 OK CR 303, 570 P.2d 345.

The trial court's obligation with respect to instructing the jury has been articulated by the Court of Criminal Appeals as follows:

Howard v. State, 1977 OK CR 93, ¶ 26, 561 P.2d 125, 130. Thus, selection of the appropriate accomplice instruction depends upon whether the witness is deemed to be an accomplice as a matter of law or whether the issue of the witness's status as an accomplice is a question of fact for the jury. An instruction covering each situation is included. Obviously, only one of these two instructions is to be given regarding any particular witness. These instructions are substantially similar to those approved in Kern v. State, supra (accomplice status determined by jury as question of fact); Young v. State, 1968 OK CR 190, 446 P.2d 79 (accomplice status determined as matter of law).

The quantum of proof necessary to establish corroboration need not be sufficient, in itself, to warrant a verdict of guilt; sufficiency is established "if the accomplice is corroborated with respect to one material fact by independent evidence tending to connect defendant with the commission of the crime." Doser v. State, 88 Okl. Cr. 299, 340, 203 P.2d 451, 472 (1949). See also Tillman v. State, 82 Okl. Cr. 276, 169 P.2d 223 (1946); Mitchell v. State, 59 Okl. Cr. 393, 60 P.2d 627 (1936). However, execution of the statutory policies expressed in section 742 mandates that the corroborating proof be independent of the testimony of another accomplice.

Refusal to instruct the jury with respect to accomplice testimony has been held to constitute reversible error, Williams v. State, supra, although the refusal to instruct has been termed nonprejudicial where a review of the record reflects abundant evidence of corroboration. Allen v. State, supra; Stidham v. State, 1973 OK CR 143, 507 P.2d 1312.

The question of whether a cautionary instruction regarding the credibility of an accomplice is warranted was resolved in the negative in Allen, supra, on the ground that a cautionary instruction is required only where "statements made by an accomplice or informer are uncorroborated." 1974 OK CR 91, ¶ 10, 522 P.2d at 246. Explication of the reasoning in Allen is necessary .

The defendant's argument in Allen was based on a case holding that, where incriminating testimony of an informer is uncorroborated, special cautionary instructions as to the testimony of the informer and his credibility are required. Smith v. State, 1971 OK CR 223, 485 P.2d 771. Logically, however, no such rule could be applied to accomplices, because by statute a defendant cannot be convicted on the uncorroborated testimony of an accomplice. Thus, a cautionary instruction on the credibility of an uncorroborated accomplice would never be called for, simply because the evidence would not be sufficient to support a conviction.

However, in Allen, the court based its decision affirming the conviction on the fact that the accomplice testimony was corroborated, whereas in Smith it was not. Instead of stating that the Smith rule is inapplicable to accomplice testimony, the court in Allen stated that "the cautionary instructions discussed [in Smith] are explicitly limited to those occasions when statements made by an accomplice or informer are uncorroborated. ... This requirement is, of course, necessary with uncorroborated testimony...." 1974 OK CR 91, ¶ 10, 522 P.2d at 246. A proper reading of Smith limits its rule to testimony of informers; the only reference in Smith to accomplices was in a quote from a United States Supreme Court opinion in which the Court stated that a defendant is entitled to a cautionary instruction where credibility of an accomplice or informer is in issue. Lee v. United States, 343 U.S. 747, 757 (1952).

The Oklahoma Court of Criminal Appeals ordered this Instruction modified in Pink v. State, 2004 OK CR 37, ¶ 23, 104 P.3d 584, 593, to the form shown above in order to specify that in determining whether accomplice testimony has been corroborated, the jury must (rather than may) be able to eliminate the accomplice testimony and determine that there is other evidence tending to show both that the charged offense was committed and the defendant was connected with the offense.

2006 SUPPLEMENT