Presiding Judge, Specially Concurring.
1 1 I agree with the decision to affirm the convictions and sentences in this case. I write separately, however, to clarify two points. First, I write to underscore and make clear that the opinion expressed in footnote 6 is solely that of the authoring judge and not the other judges of the court. Changing the test for instruction on lesser offenses is not necessary. Our existing case law on this issue is sound and proven.1 See *140Shrum v. State, 1999 OK CR 41, 110, 991 P.2d 1032, 1036 (under the evidence approach all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be submitted if they are supported by the evidence). Furthermore, the evidence test adopted in Shrum is consistent with this Court's earlier case law in homicide cases, holding that trial courts should look to the facts of the case to determine whether instructions on lesser offenses of homicide are warranted, regardless of any strict elements test or two step process. See eg., Tarter v. State, 1961 OK CR 18, 135, 359 P.2d 596, 601 (affirming that trial courts should give the defendant the benefit of any doubt which the evidence may suggest, and instruct the jury on the law of each degree of homicide which the evidence tends to prove); Smith v. State, 1986 OK CR 50, 59 OKk1.Or. 111, 115, 56 P.2d 923, 925 (this court has uniformly held that in a trial for murder the trial court must instruct the jury, with or without request, on the law of manslaughter if there is any substantial evidence that the crime charged may have been committed under circumstances which would reduce it from murder to manslaughter and any doubt about whether the crime is murder or manslaughter should be resolved in favor of the accused); James v. State, 1918 OK CR 6, 14 Okl.Cr. 204, 208, 169 P. 1127, 1128 (In a prosecution for murder the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and if the evidence tends to prove different degrees, the law on each degree which the evidence tends to prove should be submitted to the jury"); and see Carter v. State, 1994 OK CR 49, 140, 879 P.2d 1234, 1249 ("In a murder prosecution, the trial court is to instruct on every degree of homicide which the evidence tends to prove."). The claims raised by Davis in this appeal have been decided and rejected based upon our existing case law.
12 And second, I write to note that the opinion of the Court should not be read as changing the quantum of evidence necessary for an instruction on a lesser included offense. If evidence supports a lesser offense, even if that evidence is contradicted by other evidence which suggests a defendant may have committed the charged crime, a trial court should give a lesser offense instruction. Prima facie evidence is defined as evidence "which, if unexplained or uncon-tradieted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence." Black's Law Dictionary 1190 (Sixth Edition 1990). Where the purported evidence supporting a lesser offense, accepted as true, does not tend to establish a lower grade of homicide-as was the case here-the trial court should not give jury instructions on any lesser form of homicide. See Newsted v. Gibson, 158 F.3d 1085, 1092 (10th Cir.1998). Where, however, the evidence, if believed, supports a lesser offense, even if contradicted, the issue should be submitted to the jury for resolution.
T3 I am authorized to state that Judge C. JOHNSON and Justice WINCHESTER join this special concurrence.. Under a strict elements approach, a lesser included offense is an offense composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense. Instructions on lesser included offenses can only be given if the elements of the charged crime necessarily include all the elements of the lesser crime and the lesser *140offense is necessarily committed every time the greater crime is committed. The effect of this approach is to restrict instructions on lesser offenses at the trial level regardless of the evidence. Even if the trial evidence supported instruction on a lesser crime, unless its elements were completely encompassed by those of the charged crime, no instruction could be given. What this means in homicide cases is that there are no lesser included offenses of first degree malice aforethought murder because the statutory elements of the lesser forms of homicide are not necessarily included in the greater crime. For example, provocation, adequate or otherwise, is not present in every first degree malice aforethought murder case. As such, first degree heat of passion manslaughter is not a lesser included offense, despite being recognized as one for years.