Long v. State
74 P.3d 105
Okla. Crim. App.
2003
Check Treatment

*1 OK CR 14 Ryan LONG, Appellant, Oklahoma, Appellee. STATE F-2001-1452.

No. Appeals of Oklahoma. of Criminal

July *2 Jr., Gutteridge,

Don Indigent J. Defense System, City, OK, Attorney OKlahoma for Defendant at trial. Eugene Christian,

Robert District Attor- ney, Taylor, Sue Attorney, Assistant District Duncan, OK, Attorneys for State at trial. McCarty, Lisbeth Appellant L. Defense Counsel, Indigent System, Norman, Defense OK, Attorney Appellant appeal. for on Edmondson, General, Attorney W.A. Drew Bates, Kellye General, Attorney Assistant OK, City, Attorneys Oklahoma Appellee appeal. OPINION ON REHEARING LILE, Presiding Vice Judge: Appellant, Ryan Long, was con- victed after a Degree trial of First Aforethought Malice Murder in violation of 21 0.8.8upp.1998, 701.7(A), in the District Stephens County, Court of Case No. CF- 2000-145. George The Honorable Lind- W. ley, Judge, District sentenced imprisonment without possibility evidenceis considered in tent and admissible appeal his perfected parole. reaching Borden v. a decision. to this Court.1 116; Fox OK then 15 May Appellant, T2 On There is certain- OK CR father, adoptive years age, stabbed ly nothing Appel- in the record nor raised *3 Hoyt Long, to death. arguments presump- lant's to overcome that challenges his Appellant first experienced judge, an trial T3 tion. This was grounds that the trial, jury trial on the again at Appellant confessed of and evi- waiver independent of confessions over- dence competent, to show a record is insufficient whelmingly supported the verdict. This by minor of intelligent waiver a knowing and proposition is denied. intelligence had suffered horrif average who resulting in vari physical ic and sexual abuse Appellant asserts that there history imma and a of mental illnesses ous he in was insufficient evidence to establish that thinking. case law establishes ture Our tended to kill his father. We review the only by jury right trial can be waived "the of light to the evidence most favorable showing such waiver a clear that if there is and determine if a rational fact-finder State intelligently competently, knowingly and could have found the elements of the crime 191, State, v. 1987 OK CR given." Bench beyond Spuehler a v. reasonable doubt. State, 136, 140; Kerr v. 1987 OK CR Here, State, 132, 1985 OK CR 709 P.2d 202. State, 1370; CR v. 1982 OK 738 P.2d Colbert by Appellant what to do as he sat considered 624; 654 P.2d See also Westbrook weapons in sleeping father with hand. Arizona, S.Ct. admitted that he knew his father would He (1966). Appellant relies for this L.Ed.2d 429 father twice in probably die. He stabbed his that sketchy court minute argument on a dagger with a and when his father the chest appearance, waiver and set memorializes the him in the awoke he stabbed three times However, an non-jury trial date. ting of a ap a knife. As his mother neck with transeripts appeal on dis examination him proached, Appellant told her to let die. by Appellant, with appearance an closes proposition This is denied. counsel, judge specific for the before the trial that Appellant asserts the sen jury considering a trial. purpose of waiver examine under the tence is excessive. We questioned properly both The trial court rule of Rea v. OK waiver, concerning Appellant and counsel precedent. If the and decades similar understanding, competency and Appellant's by range prescribed is within the sentence the voluntariness of the waiver. and if and it does not shock the statute finding with our trial court made a consistent Court, modify we will conscience of record, which we see law and the facts recommended a sentence. The State proposition This is de reason to disturb. trial Appellant asserts that the and sentence nied. gave sentence. judge improperly a harsher that, just of the State is complains, for The recommendation Appellant T4 next Sentencing, in a non- judge recommendation. appeal, on that the trial the first time trial, judge. confession, duty of the trial jury is the taped which improperly heard Appellant do not review the suppressed. hardship later We this he extreme suffered mitigating influence. The fact strong taped confession but was admissibility of the very procedure trial used possibility of rehabilitation was rather that the not unusual. The crime procedure brutality of this This here. and the utter slim are unable strong aggravators. We part of the were recording heard the as trial court case, that say, all of the facts of granted then under suppress and motion prop modified. This should be a trial court the sentence presume, motion. when We fact, compe- is denied. only that osition operates as the trier of original opinion issued herein was with- 1. The rehearing May following drawn motion for

T7 that asserts he was denied reason he adoptive stabbed his father was to and prevent corporal cites statu- punishment." further This the court to al- presents self-defense, tory authority a claimin the nature of requires jury not a claim of duress. low in a ©.S.1991, 577, 0.8.1991, § § 111 In the case of the battered statutes, face, apply These on their jury syndrome, woman we treat the defense as judge. trials and not trials one the nature of self-defense. Bechtel v. Constitution, II, also cites Oklahoma Art. Likewise, provides that an accused "shall where the victim is also the same have the to be heard himself and exerting claimed to be the issue is provision counsel...." This constitutional self-defense. The duress defense envisions a *4 interpreted require has never been to a trial person third compelling by the defendant

judge closing arguments to hear in a non- physical threat of immediate violence to com jury trial. against mit a erime person another or the 18 It is true that "a judge may trial property of another. deny absolutely opportunity any for closing {12 Herring summation at all." v. New Additionally, duress is not a York, 853, 2550, 95 S.Ct. 45 L.Ed.2d taking defense to the intentional of an inno (1975). Herring, In a New York statute cent life person. threatened Tully v. State, judge presiding 1986OK CR allowed a over a criminal trial to refuse to hear closing Clearly, the defense of duress argument on Acting behalf of a defendant. origin has in its the common law and is authority, under that judge the trial in Her society's "based on person, realization that a ring request denied the of counsel for the evils, when faced with the choice of two defendant closing argument. to make a punished should not be accomplishing Supreme United States Court found the ab evil, thereby lesser and avoiding the crime of solute denial to violate the Sixth Amendment greater magnitude." Tully, 730 P.2d at 1209. guarantee of "assistance of counsel." Her ring, 422 U.S. at 95 S.Ct. at 2556. Equally T 14 clear is the common law limi- Blackstone, tation of the defense as stated T9 The facts of the case before that when the harm contemplated by the Here, us lead to a different result. the de than, greater to, defendant is equal or fendant request did not harm, threatened ought "he rather to die object and did not when the began trial court escape by himself than the murder of an pronounce to its verdict at the close of the Blackstone, innocent." W. Commentaries evidence. request Where did not object when the trial same, court did not ask for argue generally 15 It is accepted that duress is State, is waived. See Moore v. 1987 OK CR taking not a defense to the life anof innocent (waiver closing P.2d 161 as sound Annot., person. 40 ALR.2d 906-07. As strategy). At most we examine for Law, stated Wharton's Criminal 15th Edi- plain error in such an event and we find none tion, § 52: "At common law ... a defendant Simpson here. v. is not allowed to take the life of an innocent P.2d 690. third even when he is ordered to do so under a threat of instant death." {10 Appellant complains next his trial counsel was ineffective under Any Strick other rule simply repugnant is Washington, land v. nearly U.S. 104 S.Ct. decency universal standards of devel- (1984), 80 L.Ed.2d 674 oped and our many cases over experi- decades of human applying the rule of Strickland. ence. Oklahoma specifically delineated asserts that his trial counsel legally should have acceptable justifications those and ex- raised the defense of homicide, because he cuses for which are set forth at 21 §§ corporal and the ©.9.2001 "suffered from punishment, 731 & 733. Duress is neither an imprisonment possibility without the justification of homicide for nor exeuse parole. Judgment and Sentence of the law. under Oklahoma AFFIRMED. district court are Tully in reasoning forth set T 17 The compelling and remains compelling then was LUMPKIN, JOHNSON, P.J., J., Tully, in rationale today. "[Tlhe we said As concur. killing intentional this defense to for denial of theory that one should premised on STRUBHAR, J., concurs results. life rather than one's own or sacrifice risk J., CHAPEL, dissents. Tully, person." of an innocent take the life 730 P.2d at CHAPEL, Judge, dissenting: common long-standing rule of the 1 This {1 today's opinion I dissent from Court enactment, statutory law, was unmodified upon Long's claim its resolution of based Spunaugle improperly modified regarding closing argu- we 1997 OK ment, opinion's as well as the discussion that it conflicts today to the extent overrule legal defense duress. pronouncement. with York,1 Supreme Herring 12 In v. New the defense of duress T19 Since held that a defendant has a constitu *5 of this case appropriate under the facts not argument, right closing to make a even tional right find a valid waiver and since we wrote, in trial.2 The "There a bench Court that that trial coun jury trial and we find to no doubt that can be closing right to preserve to the sel's failure defense is a element of the adver the basic strategy, we can argument sound trial was sary factfinding process in a criminal trial." of trial counsel no ineffective assistance find closing argu recognized The likewise Court pursuing these mat of counsel not reason objec being critical to the "ultimate ments as Washington, ters. Strickland process: the criminal trial tive" of (1984). 80 L.Ed.2d 674 104 S.Ct. adversary system very premise of our justice partisan advocacy of criminal is that Appellant's claim of cumulative promote a case best on both sides of will we find no error must be denied because guilty any Appellant's propositions. Al objective that the be error in of the ultimate go In a and the innocent free. convicted verson v. trial, basically in which is the end 498. criminal factfinding process, aspect of such a advocacy important than the could more be DECISION opportunity finally to marshal the evidence Ryan Long, Appellant, was the before submission of case for each side jury Degree First Malice at of convicted judgment.4 to of 21 Aforethought Murder in violation recognition 701.7(A), Herring its light In of in the District O0.S§.Supp.1998, importance of a defendant's County, No. of the critical Stephens of Case CF- Court closing arguments, I dissent right present George Lind- to The Honorable W. 2000-145. Judge, Appellant to ley, District today's holding that sentenced this constitutional from originally opinion issued in this case-before the S.Ct. 45 LEd.2d 593 1. 422 U.S. Herring significance on rehear- of was raised (1975). holding the Herring raise on was first granted rehearing a closing argu- and is the reason this Court ing. right present the to Whether rehearing the case. in is a exists under state law in a bench trial ment Herring point, purely at this since academic issue (holding S.Ct. 2550 that denial 2. Id. at right recognition compels of this under fed- our closing argument, request to make defendant's eral law. making presenta- upon based New York statute discretionary arguments in bench tion of such 2550. Id. at 95 S.Ct. Sixth Amendment trials, violated defendant's counsel). do not right I to the assistance Paragraph 7 in to- the inclusion of understand S.Ct. 2550. Id. at day's opinion, is a holdover from right presumed Today will be waived if a defendant to majority ig malice murder. the merely object spirit fails to when a trial court nores the letter and of the statutes and begins judgment immediately Spunaugle, announce overrules to its because it finds after right, the close of evidence. While this "repugnant other nearly result would be to decency." universal rights, certainly like most constitutional can standards This dis waived, plays contempt precedent for our only be should and the waiver be found legislative process agree. with which I cannot actually where a defendant or his counsel present closing announces decision not to Underlying majority's T 6 the decision is argument. only Waiver should be found belief that "duress is not a taking defense to affirmatively where the defendant waives his person." the life of an innocent This belief is closing argument, directly statutory contradicted lan- merely from silence or inaction.5 guage, exception which makes no for an "in- {4 statutory nocent" victim require- where the Furthermore, conclusory the Court's In ments are met. order to bolster finding, today's opinion, the conclusion of belief, majority relies on Tully dicta from preserve that "trial counsel's failure to v. State.9 in Spunaugle, As we noted was sound trial Tully solely discussion of duress in focused strategy" supported by is not record justification and did not take into account this case-from appear which it does not explicit language statutes, of Oklahoma's "strategy," the failure was even a let alone a legal theory which focus on the of excuse.10 finding sound one. Nor supported by this, Rather than acknowledge majority any argument legal authority. Tully binding precedent. treats as This is addition, 4 5 In agree while I that counsel simply not the case. failing not ineffective this case for majority's 7 The legal analysis appears to raise the defense of I strongly dis- by principles be driven not legal interpre- agree majority's with the decision with re- tation principles. short, but "moral" In spect to that defense. legisla- The Oklahoma *6 majority simply believes that it is inde- ture has set forth the defense of cent for a murderer to claim he acted under exonerating defendants who commit crimes true, duress. Whether not that is it is not involuntarily subject while power to the of a question Nothing before us. has superior.6 Legislature specifically changed Spunaugle since suggest that would provided that a is entitled to assert Legislature interpre- intended a different if prohibit duress as defense he commits a tation of the duress statutes. This Court ed act because he has reasonable belief ought repeal expression amend or a clear he, child, spouse, aor is in imminent Legislative intent because it does not danger great bodily of death or harm from agree with the outcome. State,8 another.7 In Spunaugle v. a case of impression, first this Court examined the language statute,

clear concluded that Legislature said, meant what it and reaf principle firmed the that duress is a defense majority opinion 0.$.2001, §§155, 152(7). 5. The cites Moore v. 6. 21 support OK CR of its waiver holding. capital Moore ais case in which the 0.9.2001,§156. 7. 21 defendant, the conclusion of the State's sec- ond-stage closing argument, affirmatively stated 0.5.2001,§ 8. 21 closing argument. that he wanted to waive trial court then warned the defendant that it still had discretion to allow the State a 9. 1997 second clos- OK CR Nevertheless, ing argument. again the defendant "stated that he wished to follow his counsel's Spunaugle, 946 P.2d at 250. The Oklahoma closing argument." advice and waive Id. at 166 statutes focus actor and individual charac- Hence the Moore case involved a defendant who actions, may teristics which excuse his rather explicitly twice waived his justification than on the moral for the actions closing argument. provides support It for the themselves. holding regarding Court's implied current waiv- er.