Beck held that "a sentence of death [may not] constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." 447 U.S. at 627 (quotation omitted). The Court explained its rationale as follows: "[W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the 'third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." Id. at 637. In other words, the purpose of the rule "is to eliminate the distortion of the fact-finding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence." Spaziano v. Florida, 468 U.S. 447, 455 (1984) (citing Beck, 447 U.S. at 638-43). More recently, the Court has held there is no constitutional violation under Beck either when a court instructs the jury on one lesser included offense supported by the evidence even if others might be warranted, see Schad v. Arizona, 501 U.S. 624, 647-48 (1991), or when a jury is given no option other than a capital offense at the guilt phase of a trial where the state law under which the defendant was convicted has no lesser included offense, see Hopkins v. Reeves, 118 S. Ct. 1895, 1900-03 (1998).

Unlike Hopkins, 118 S. Ct. at 1900, where Nebraska courts had consistently held "that second-degree murder and manslaughter are not lesser included offenses of felony murder," id. (citations omitted), Oklahoma courts have treated first-degree "heat of passion" manslaughter as a lesser included offense of first-degree murder. See, e.g., Boyd v. Ward, 179 F.3d 904, 917 (10th Cir. 1999) (stating that under Oklahoma law "first degree manslaughter . . . is a lesser included offense of first degree murder") (citing Lewis v. State, 970 P.2d 1158, 1165-66 (Okla. Crim. App. 1999)); Shrum v. State, No. F-98-497, 1999 WL 974019, at *3 (Okla. Crim. App. Oct. 27, 1999); Turrentine v. State, 965 P.2d 955, 969 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535, 546 (Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998); see also Hooks v. Ward, 184 F.3d at 1235-37 (analyzing Oklahoma courts' refusal to give first-degree manslaughter instruction under Beck); Jackson v. State, 964 P.2d 875, 899 (Okla. Crim. App. 1998) (Lumpkin, J., concurring) (stating that "First Degree Manslaughter, heat of passion, could be a lesser included offense of malice murder, based on an analysis of the elements of each offense . . . . [T]he concept of heat of passion is fairly embraced and included within the element of pre-meditation").⁽⁴⁾

Respondent-appellee argues as a preliminary matter that Beck is inapplicable to Oklahoma. Unlike the procedure under review in Beck, in which the jury was forced to choose between death and acquittal, Oklahoma's capital trial procedure "allows a jury to know, during voir dire, that there are three sentencing options for first degree murder: life, life without parole, and death; therefore, the guilt determination is not dependent on the jury's feeling on whether the defendant deserves death." Willingham v. State, 947 P.2d 1074, 1082 (Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998), overruled on other grounds by Shrum, 1999 WL 974019, at *3 & n.8. After consideration of this distinction and careful review of Beck and its progeny, however, we determined conclusively that "a defendant in a capital case [is entitled] to a lesser included instruction when the evidence warrants it, notwithstanding the fact that the jury may retain discretion to issue a penalty less than death," and we held that the rule in Beck indeed applies to Oklahoma. Hooks, 184 F.3d at 1227. We therefore consider the merits of Hogan's Beck claim.
 
 

Under Beck, a petitioner is required to establish not only the denial of a lesser included offense instruction, but also that he presented sufficient evidence to warrant such an instruction. See Beck, 447 U.S. at 637. Thus, while the Oklahoma Court of Criminal Appeals cited a standard consistent with Beck, see Hogan I, 877 P.2d at 1160 (stating that "[t]he trial court only has the duty to instruct on lesser degrees when required by the evidence") (citing Dunford v. State, 702 P.2d 1051 (Okla. Crim. App. 1985); Jones v. State, 650 P.2d 892 (Okla. Crim. App. 1982)), we do not find the expected analysis under that standard in the discussion that follows. Instead, the Oklahoma Court of Criminal Appeals engaged in the wrong inquiry--asking on rehearing whether Hogan's self-defense instruction constituted a lesser included instruction, or initially whether the evidence was sufficient to support conviction on the greater charge, but never engaging in the correct inquiry as to whether Hogan presented sufficient evidence to warrant a first-degree manslaughter instruction.

Although Beck did not establish a clear rule as to the precise quantum of evidence that would warrant an instruction on a lesser included offense, the Beck Court noted that "[i]n the federal courts, it has long been 'beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'"

In Patrick's case, there is one brief [as though passing] mention of "any other charge." This passing mention does not fit the criteria of Beck. See excerpts attached which demonstrate Patrick's trial court's lack of due process of law.