McDonald v. Champion

Decision Date28 April 1992
Docket NumberNo. 90-5099,90-5099
Citation962 F.2d 1455
PartiesAlan James McDONALD, Plaintiff-Appellant, v. Ron CHAMPION, Warden; Attorney General of the State of Oklahoma, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Murray Weiner of Sherman & Howard, Colorado Springs, Colo., for plaintiff-appellant.

Diane L. Slayton, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen., with her on the briefs), Oklahoma City, Okl., for defendants-appellees.

Before ANDERSON and SETH, Circuit Judges, and SAFFELS, * Senior District Judge.


In this case, we are asked to decide whether an Oklahoma state court decision that interpreted Oklahoma's first-degree felony murder statute to include the underlying crime of attempted robbery with a dangerous weapon unforeseeably enhanced the punishment of an offense in violation of defendant's Fourteenth Amendment due process rights. We are also asked to determine whether the trial court violated defendant's due process rights by failing to instruct the jury on all the elements of first-degree felony murder.

Petitioner-Appellant, Alan J. McDonald ("petitioner") appeals from a district court order denying his Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Because we find that both of petitioner's asserted grounds for granting the petition lack merit, we affirm.


On June 7, 1982, petitioner was sentenced by the Tulsa County District Court to life imprisonment for the crime of first-degree murder and twenty years imprisonment for the crime of assault with intent to kill. The convictions arose from an attempted robbery occurring at a fast food restaurant in Tulsa, Oklahoma on November 2, 1981. During the course of the attempted robbery, two employees of the restaurant were injured, one of whom subsequently died. 1 Petitioner's wife, Shari McDonald, who accompanied him with a gun, was also convicted.

The first-degree murder charge was based on Oklahoma's first-degree felony-murder provision in effect on November 2, 1981 that stated:

A person commits the crime of murder in the first-degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first-degree burglary or first-degree arson.

21 Okla.Stat. § 701.7 (1976) (emphasis added). Oklahoma's second-degree murder statute in effect at that time applied to homicide "[w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in [the first-degree felony-murder provision]." 21 Okla.Stat. § 701.8 (1976) (emphasis added). Under Oklahoma law, a person who is convicted of first-degree murder must be punished by death or by imprisonment for life, while a person convicted of second-degree murder must receive a sentence for no less than ten years nor more than life. 21 Okla.Stat. § 701.9 (1976).

Both prior to trial and at trial, petitioner's counsel objected to the first-degree murder charge on the grounds that the state had alleged an underlying crime of attempted robbery with a firearm and that only the completed offense of robbery with a firearm could serve as a predicate to the offense. While conceding "some attempted judicial legislation by the Court of Criminal Appeals in this regard," counsel asserted that petitioner could only be convicted under the second-degree murder statute. Tr. of April 20, 1982 at 21-22; Tr. at 326-27.

The trial court rejected counsel's argument and in due course instructed the jury on the elements of attempted robbery as a basis for first-degree murder. The trial court relied on James v. State, 637 P.2d 862 (Okl.Crim.App.1981), decided on November 13, 1981, eleven days after petitioner's alleged offense, where the Oklahoma Court of Criminal Appeals held that the phrase "in the commission of ... robbery with a dangerous weapon" encompassed both armed robbery and attempted armed robbery. Id. at 864-65. The trial court's decision to instruct the jury on the first-degree offense was affirmed by the Court of Criminal Appeals in McDonald v. State, 674 P.2d 51 (Okl.Crim.App.1984).

A. Ex Post Facto Application

Petitioner asserts two grounds for habeas relief. First, he argues that the ex post facto application of the James decision was unforeseeable and therefore a violation of his Fourteenth Amendment due process rights.

The United States Constitution provides that neither Congress nor any State shall pass any "ex post facto Law." See U.S. Const., Art. I, § 9, cl. 3; U.S. Const., Art. I, § 10, cl. 1. An ex post facto law is one that among other things (1) makes conduct criminal that was legal when done, or (2) inflicts greater punishment for an offense than the law existing when the offense was committed. See Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). While the constitutional Ex Post Facto clauses apply by their own force only to laws passed by Congress or state legislatures, the principles upon which they are based are fundamental to our concept of constitutional liberty and therefore protected by the Due Process Clause of the Fifth and Fourteenth Amendments. See Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977). Consequently, "[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964); see also Marks, 430 U.S. at 192, 97 S.Ct. at 993.

" 'The purposes behind the prohibition on ex post facto laws are twofold: to restrain legislatures and courts from arbitrary and vindictive action and to prevent prosecution and punishment without fair warning.' " Devine v. New Mexico Dept. of Corrections, 866 F.2d 339, 344 (10th Cir.1989) (citation omitted); see also Miller, 482 U.S. at 429-30, 107 S.Ct. at 2450. The Supreme Court has held that an "unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law" and therefore violates due process. Bouie, 378 U.S. at 353, 84 S.Ct. at 1702; see also Marks, 430 U.S. at 192, 97 S.Ct. at 993. We have held that the dual underpinnings of the Ex Post Facto clauses compel the same result when a judicial interpretation has unforeseeably and retroactively enhanced the punishment of conduct that was already criminal when committed. See Devine, 866 F.2d at 344-45.

Here, therefore, we must determine whether Oklahoma's construction of the first-degree felony murder statute unforeseeably enhanced the punishment for an offense that, given the opposite interpretation, would be punishable only under the second-degree felony statute. 2

"The Supreme Court has not been overly helpful in indicating what constitutes an 'unforeseeable' judicial expansion of criminal liability." Devine, 866 F.2d at 345. Using Bouie as a guide, we have followed two complementary standards for determining when a judicial interpretation is unforeseeable. In Devine we determined that "if a criminal statute is 'narrow and precise' on its face, any judicial expansion of that statute beyond its own terms will be considered unforeseeable." Devine, 866 F.2d at 345 (citing Bouie, 378 U.S. at 352-53, 84 S.Ct. at 1701-02). More recently, we have also indicated that our determination turns on whether the construction is so " 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue' " as to prevent its application retroactively. Lopez v. McCotter, 875 F.2d 273, 276 (10th Cir.), cert. denied, 493 U.S. 996, 110 S.Ct. 549, 107 L.Ed.2d 546 (1989) (quoting Bouie, 378 U.S. at 354, 84 S.Ct. at 1702); see also id. at 277; accord United States v. Morehead, No. 91-7010, 959 F.2d 1489, 1512 slip op. at 46 (10th Cir. March 4, 1992). As discussed below, we find that neither of these standards supports petitioner's claim of a due process violation.

Petitioner offers two arguments in support of the opposite conclusion: first, he argues that on its face the statutory language is narrow and precise and that it does not encompass attempts; second, he argues that even if the language is not narrow and precise, "other factors," such as the language and history of the act, the state's rules of statutory construction, and the felony murder statutes in other states, made the court's interpretation unforeseeable.

1. Narrow and Precise

Petitioner correctly argues that if Oklahoma's construction was retroactively applied to conduct falling outside of the statute's "narrow and precise" language, then petitioner was deprived of his due process right of fair warning. In Bouie, the Supreme Court found that unlike a vague or overbroad statute that "at least gives a potential defendant some notice," a narrow and precise statute gives no notice when applied to conduct outside of its coverage. Bouie, 378 U.S. at 352, 84 S.Ct. at 1702. The Court explained: "When a statute on its face is narrow and precise ... it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction." Id. (emphasis added). 3

While a technical and rational argument can be made that the Oklahoma legislature did not intend to cover attempts, Oklahoma's first-degree felony murder statute is not "narrow and precise" in the sense described above. It simply cannot be said that a potential defendant would have "no reason even to suspect" that if he kills someone while attempting to commit armed robbery, even though he escapes without the money, he may still be...

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