*1 rеad, part, “after verdict jury’s count the felony of-
having twice convicted been
fenses, imprison- assess penitentiary for a term of
ment in the state years.” assignment
Appellant’s seventh imposed
of error that the sentences asserts count, is, twenty years, should
on each Insofar the conscience of Court.
shock for each is the minimum sentence each count, shock
respective they do not However, it is this
Court’s conscience. running opinion that
writer’s pun consecutively is excessive
sentences my colleague’s
ishment. But because of majority
positions, the Court opinion provision that the for the con excessive, sentences is not due to
secutive appellant. convictions of There former
fore, the decision of this Court it must be shall be made to
that the four sentences consecutively.
run of this Court
It is therefore order judgments sentences in
that the CRF-
84-36, provide the sentences on which consecutively
four to run shall counts
affirmed. BUSSEY, JJ.,
PARKS and concur. TULLY, and, Leport Molly
Grant Rose
Kjelden, Appellant, Oklahoma, Appellee.
STATE
No. F-82-671. Appeals
Court of Criminal of Oklahoma.
Dec. *2 Burglary Degree.
victed of in the Second (5) (7) was convicted to She five and seven imprisonment years’ respectively. These cases have been appeal. consolidated for conviction, We reverse each and remand for a new trial.
The essential facts of this case are undis- puted by litigants. the evening On July Jackie Frick was accosted Douglas James Davis outside thе Blue in Stillwater, Room Bar Oklahoma. Davis beat Frick senseless with an aluminum and, along baseball bat Tully, took his money.1 Tully escaped and Davis in a car by appellant Kjelden. driven leaving After bar, the trio drove to Frick’s trailer home. Davis and Tully broke into the home and stole numerous items. The three early were arrested the next morning at the home of Thomas Graham and Mike Kjelden. The evidence also revealed that midnight evening Frick died around the assault. Tully
The State’s
was that
conspired
Frick,
Kjelden
and
to rob Mr.
and
Szlichta,
Szlichta &
Christopher C.
Frick’s
that
death arose from the commis-
Stillwater,
Morgan,
for appellant, Grant
planned
robbery.
sion of
It also was
Leport Tully.
maintained, primarily through Davis’ testi-
Jr.,
Murphy, Murphy
Robеrt M.
& Mur- mony,
Tully
Kjelden
and
voluntarily
P.C., Stillwater,
phy,
appellant, Molly
for
robbery
entered into the
scheme.
Kjelden.
Rose
disputed
The defense
and
Turpén,
Gen.,
Atty.
Michael C.
William
Tully
Kjel-
raised
claim of
a
and
Luker,
Gen.,
H.
Atty.
City,
Asst.
Oklahoma
they
nothing
den both asserted
knew
about
appellee.
for
any planned robbery,
and
forced
Davh
enter into
their criminal activities
OPINION
evening.
PARKS, Presiding Judge:
During
testimony, Tully
and
Tully,
appellant,
Leport
Kjelden
accompanying
Grant
admitted
Davis to
evening. Kjelden
convicted for
Room that
the offenses Murder
the Blue
testi-
Degree
time,
First
Burglary
and
in the Second fied
remained
for a
there
but
Degree,
Payne
him,
in the District Court of
that Davis asked her to leave with
County,
might pick
CRF-
some
up
money
Case Nos. CRF-81-244 and
order that
at
Following
81-247.
employer’s
returned a verdict
residence.
errand,
guilty
imprison-
Kjelden
and
and
set
life
returned to the
Room,
Frick,
ment for
seven
Kjelden
the murder conviction and
Blue
where
saw
(7) years’
time,
imprisonment
burglary.
pull-
had known
whom she
for some
trial,
In
appellant, Molly
ing
parking
Kjel-
Rose
same
into the
lot behind them.
Kjelden
Accessory
approached
as an
Af-
at Frick
was convicted
den waved
and
him.
Murder,
ter the
con-
into the
Fact to
and also was
Davis went
bar. Davis summoned
separate
proceeding.
1. Davis was
and convicted in
tried
bar,
profile
her
and
followed
cal
revealed
to be
domi-
Tully from the
outside,
fact,
As he came
psychologist
nated
Davis.
out
backdoor.
Frick,
approach
and strike
Tully saw Davis
relationship
testified
their
bat. As
with a baseball
Frick
the head
“scary.”
Both
claimed
Frick, Kjelden
to hit
Davis continued
they participated
the crime out of fear
honking
began
jumped in the car
degree
for their lives. The first
murder
*3
headlights in an ef-
flashing the
horn and
charge against Tully was based on a felo-
stop the assault. How-
fort to mаke Davis
predicate
ny-murder
with the
felo-
ever,
Kjel-
the car and told
Davis went to
being robbery
dangerous
ny
weap-
with a
he
stop flashing
lights,
the
or would
den to
1981, 701.7(B).
on.
O.S.
See
§
“ring
returned to
her chimes.” Davis
in
Reversal
this case is necessitated
Frick,
more times
and struck him several
appel-
the trial court’s refusal to deliver the
poked
He then
the bat into
with the bat.
rеquested
joint
lants’
instructions on the
face,
Tully’s
and ordered
to search
defense of duress. The
has raised
State
pockets
money. Tully testified
Frick’s
for
support
three
in
theories
of its claim that
to kill him if he did not
Davis threatened
requested
properly
the
instructions were
cooperate. Tully retrieved
from
$14.00
First, regarding
charge
the
disallowed.
As the men fled the scene
Frick’s wallet.
degree
against appellant
murder
first
Tul-
threatening
Kjelden,
with
Davis made
com-
ly, the State claims that the duress defense
bystander.
ments to a
degree
always
unavailable for that
scene,
in
Once
the car and
Second, again concerning
homicide.
the
Davis ordered
to drive
Frick’s
charge,
murder
the State claims the under-
arrivеd, Davis,
mobile home. When
lying robbery
completed by
the time
hand,
in
ordered Tul-
with baseball bat still
and, therefore,
Tully joined
fray
the
car,”
ly
“get your
ass out of the
and to
Third,
defense was unavailable.
insuffi-
burglary
assist in the
of Frick’s residence.
presented
cient evidence was
Witnesses who saw
at the time of
applied
according
as it
to this
assault,
and those defensе witnesses
argument.
to the State’s
evening
who saw him that
at the Graham
Turning
claim,
to the State’s first
apartment,
appeared
testified that
be
we observe that our Oklahoma statutes do
terrified.
familiar
nervous and
Witnesses
availability
not
foreclose
of this defense
propensity for
with Davis confirmed Davis’
murder,
degree
to the crime of first
do
as
They
also
viоlence.
jurisdictions.2
the statutes of various other
weapons,
surrounded himself with
normal-
we have never removed first
and had assaulted vari-
baseball
degree murder as a class of crime in
people, including
pregnant
ous
woman
which
teenage boy. Kjelden’s psychologi-
exclusively prohibited,3
and a
this defense is
as
any
2. For those that
statute excludе duress as a
Some states disallow the defense to
crime
offenses,
26(7)
punishable
§
defense to certain serious
See Ariz.Rev.
death. See Cal.Pen.Code
(1978) (homicide
(West
18-201(4)
Supp.1980);
Stat.Ann.
13-412
or serious
§
Idaho Code §
physical
injury);
(Smith-Hurd
(1979);
Colo.Rev.Stat.
18-1-708
§
Ill.Ann.Stat. ch.
7-11
§
(murder
(1978)
degree);
(1977);
1972);
in the first
Ga.Code
Mont.Crim.Code
94-3-110
§
(West 1984) (murder);
194.010(8) (1979).
Ann.
16-3-26
Ind.Code
§
Nev.Rev.Stat.Stat. §
(West 1978);
Ann. § 35-41-3-8
Iowa Code Ann.
(West 1979) (intentional
The
relies
our decision in Methvin
State
704.10
or reckless act
§
60 Okl.Cr.
would tо shoot Id. murder was mere dicta. Methvin claimed his actions the crime after Barrow, prompted by testimony fear of O.S.1981, 4. See 21 § 2. concerning the crime itself did not show duress. recognized case,
Accordingly, common law
ear
Tully’s theory
of de
applica
have no
on that duress should
fense asserted he was called out of the bar
taking of an inno
Davis,
tiоn to the intentional
knowledge
without
person.
cent life
the threatened
See
planning
to rob someone. After Davis
5,
(1893).
Arp
Ala.
evils” for when the harm contem plated by greater than, the defendant is Attorney General next seeks to to, harm, equal ought the threatened “he ruling by argu the trial court’s escape by rather to die himself than the ment the already crime of murder was com murder of an innocent.” 4 Blackstone’s plete Tully joined fray at the time Commentaries also 1 See Hale P.C. 51. and, therefore, the duress defense was un *5 possibility since the remains argument available. patently This friv constituting that the threat duress will not Appellant olous. was with first out, be carried and the contemplated when degree felony-murder pursuant 21 to O.S. severe, and threatened harm equally 1981, 701.7, predicate felony the as one must the take risk and refuse kill to robbery dangerous weapon. with a 21 O.S. party. innocent third 1981, 791, Robbery danger with a §§ weapon requires ous wrongful taking and
We believe this limitation to the duress
carrying away
personal
the
property
of
defense is restricted to crimes of intention-
another,
person,
by force or fear
killing,
al
аnd
felony-murder.
not to
It is
compatible
involving
dangerous
with the
the use of a
weapon.
common
policy
law
State,
(Okl.Cr
Id. Roulston v.
justified
aiding
in
robbery
if he is forced
present
because insufficient evidence was
life;
threats to do so to save his
support
ed to
the defense. This Court
should not lose the defense
because
recently
most
wrote in Broaddrick
v.
threateners unexpectedly kill
in
someone
State,
(Okl.Cr.1985)
true that the fact convictions BRETT, J., specially concurring. for crime sо weakened defendant’s evi- credibility as to dence it could BUSSEY, J., dissents. jury composed be said that no persons adhering BRETT, oath Judge specially concurring: compelled jurors, a fu- take on decision, I concur in this notwithstanding ture trial could on the basis of the prosecution attempted the fact that the record, present evidence fail to dоwnplay the intimidating coercive and ca- again convict the defendant of the pability of codefendant Jim Davis. The Still, jury charge here involved. trial, judicial record of his notice of which must be advised of defendant’s to rely upon, Court entitled reflected where there is evidence to of defense person.1 must have been a vicious it, though even such evidence being trial, When Davis prepared is discredited. Deputy inquired, Sheriff shall “What Id. at 536 (Emphasis added). This writer we do with the defendant?” The Sheriff is “[a]ny noted that heavier standard would replied, to have “Shackle the son- usurp obligation the sacred *6 through- was be of-a-bitch.” So he shackled Id. at the exclusive trier of fact.” P.J., (Parks, specially concurring). least, out his trial. At is what the argued record reflected and as was at the In appellants this both testified that person motion for new trial at the conclusion of Davis was a his well known for explosive temper propensity vio- Davis Consequently, ap- trial. there lence. Other witnesses that Davis pears to be little doubt that Davis but weapons, himself surrounded with and had strоngly impressed or those intimidated struck persons, including out various a capabili- They around him. felt he had the pregnant day woman. The before inci- ty carry not to out his threats. It is entire- dent, had attempted Davis to start an alter- in the of this clear record trial whether cation Tully using with the baseball during was shackled testi- according testimony. to defense Defensе mony against At these defendants. least testimony showed Davis told Murphy counsel a made such state- would kill unless assisted during closing argument, ment while crimes, jabbed freshly blood- referring testimony psycholo- ied point, bat at make gist stated, Murphy. referring Dr. He “ring further [Kjelden’s] threatened to Davis, “They people said like this [Davis] psychological chimes.” a crazy things. will freak оut and do That’s profile of Ms. was entered into why Murphy Dr. said he wears [Davis] evidence, she and revealed that into to testi- shackles when he comes court manipulated of, by, and Davis. terrified allegations fy.” Whether or not these raised a (Okl.Cr.1985).
1. Davis v. 709 P.2d Nonetheless, a felony-murder charge, the defense based defense to as de- picted by of duress. the reсord of the defense this trial. O.S.1981, provides: Therefore, § I concur in this decision. committing capable persons are All
crimes, except belonging those
following classes.
[*] [*] [*] [*] [*] [*] act, Persons who committed
7. charged, the omission while under
make power
involuntary subjection to the superiors. Philip BAILEY, Petitioner, O.S.1981, 155, provides: § involuntary subjection Oklahoma, Appellee. superior person a STATE of a which exonerates charged with a criminal or omission act No. C-85-301. therefor, punishment arisеs from from Appeals Court of Criminal of Oklahoma. O.S.1981, 156, provides: Jan. duress person which excuses a prohib- who a has committed act or ited omission must actual
compulsion by use fear. of force or
Throughout this trial both these de-
fendants testified that fearful of Davis, who
Jim committed the violent act beating the victim to death with a base- Whether or testimony
ball bat. not their question be believed was fact jury to the jury decide. Without
instruction was taken jury. defend- addition to the testimony, replete
ant’s the record is
testimony that Jim strong, Davis was threatening person.
violent and The de-
gree intelligence as asserted *7 prosecution, really irrelevant to capabilities prosecution of force. The
argued that he intelligent enough was not plan Again, formulate out. carried enough
whether not he intelligent force exercise and fear defend- over the jury
ants was a of fact for the
determine. The was denied
to determine that fact. only unique aspect of this decision impression
lies in first of duress effect defense to felony-murder charge. considering
But after the facts of this case record, carefully
and after reviewing the I
am convinced that duress is an available