Tully v. State, F-82-671

• Decision Date: 30 December 1986
• Docket Number: No. F-82-671,F-82-671
• Citation: 1986 OK CR 185,730 P.2d 1206
• Parties: Grant Leport TULLY, and, Molly Rose Kjelden, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1206

730 P.2d 1206

Grant Leport TULLY, and, Molly Rose Kjelden, Appellant, v. STATE of Oklahoma, Appellee.

No. F-82-671.

Court of Criminal Appeals of Oklahoma.

Dec. 30, 1986.

Christopher C. Szlichta, Szlichta & Morgan, Stillwater, for appellant, Grant Leport Tully.

Robert M. Murphy, Jr., Murphy & Murphy, P.C., Stillwater, for appellant, Molly Rose Kjelden.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

The appellant, Grant Leport Tully, was convicted for the offenses of Murder in the First Degree and Burglary in the Second Degree, in the District Court of Payne County, Case Nos. CRF-81-244 and CRF-81-247. The jury returned a verdict of guilty and set punishment at life imprisonment for the murder conviction and seven (7) years' imprisonment for the burglary. In the same trial, appellant, Molly Rose Kjelden was convicted as an Accessory After the Fact to Murder, and also was convicted of Burglary in the Second Degree. She was convicted to five (5) and seven (7) years' imprisonment respectively. These cases have been consolidated for appeal. We reverse each conviction, and remand for a new trial.

The essential facts of this case are undisputed by the litigants. On the evening of July 10, 1981, Jackie Frick was accosted by James Douglas Davis outside the Blue Room Bar in Stillwater, Oklahoma. Davis beat Frick senseless with an aluminum baseball bat and, along with Tully, took his money. ¹ Tully and Davis escaped in a car driven by appellant Kjelden. After leaving the bar, the trio drove to Frick's trailer home. Davis and Tully broke into the home and stole numerous items. The three were arrested early the next morning at the home of Thomas Graham and Mike Kjelden. The evidence also revealed that Frick died around midnight the evening of the assault.

The State's theory was that Davis, Tully and Kjelden conspired to rob Mr. Frick, and that Frick's death arose from the commission of the planned robbery. It also was maintained, primarily through Davis' testimony, that Tully and Kjelden voluntarily entered into the robbery scheme.

The defense disputed this theory, and raised a claim of duress. Tully and Kjelden both asserted they knew nothing about any planned robbery, and were forced by Davis to enter into their criminal activities that evening.

During defense testimony, Tully and Kjelden admitted accompanying Davis to the Blue Room that evening. Kjelden testified they remained there for a time, but that Davis asked her to leave with him, in order that he might pick up some money at his employer's residence. Following this errand, Davis and Kjelden returned to the Blue Room, where Kjelden saw Frick, whom she had known for some time, pulling into the parking lot behind them. Kjelden waved at Frick and approached him. Davis went into the bar. Davis summoned Tully from the bar, and Tully followed him out the backdoor. As he came outside, Tully saw Davis approach Frick, and strike Frick in the head with a baseball bat. As Davis continued to hit Frick, Kjelden jumped in the car and began honking the horn and flashing the headlights in an effort to make Davis stop the assault. However, Davis went to the car and told Kjelden to stop flashing the lights, or he would "ring her chimes." Davis returned to Frick, and struck him several more times with the bat. He then poked the bat into Tully's face, and ordered him to search Frick's pockets for money. Tully testified Davis threatened to kill him if he did not cooperate. Tully retrieved $14.00 from Frick's wallet. As the men fled the scene with Kjelden, Davis made threatening comments to a bystander.

Once in the car and away from the scene, Davis ordered Kjelden to drive to Frick's mobile home. When they arrived, Davis, with baseball bat still in hand, ordered Tully to "get your ass out of the car," and to assist in the burglary of Frick's residence.

Witnesses who saw Tully at the time of the assault, and those defense witnesses who saw him that evening at the Graham apartment, testified that he appeared to be nervous and terrified. Witnesses familiar with Davis confirmed Davis' propensity for violence. They also reported that Davis surrounded himself with weapons, normally the baseball bat, and had assaulted various people, including a pregnant woman and a teenage boy. Kjelden's psychological profile revealed her to be easily dominated by Davis. In fact, a psychologist testified that their relationship was "scary." Both Tully and Kjelden claimed they participated in the crime out of fear for their lives. The first degree murder charge against Tully was based on a felony-murder theory, with the predicate felony being robbery with a dangerous weapon. See 21 O.S. 1981, § 701.7(B).

Reversal in this case is necessitated by the trial court's refusal to deliver the appellants' joint requested instructions on the defense of duress. The State has raised three theories in support of its claim that the requested instructions were properly disallowed. First, regarding the charge of first degree murder against appellant Tully, the State claims that the duress defense is always unavailable for that degree of homicide. Second, again concerning the murder charge, the State claims the underlying robbery was completed by the time Tully joined in the fray and, therefore, the defense was unavailable. Third, insufficient evidence was presented to support the defense as it applied to this case, according to the State's argument.

Turning to the State's first claim, we observe that our Oklahoma statutes do not foreclose the availability of this defense to the crime of first degree murder, as do the statutes of various other jurisdictions. ² Furthermore, we have never removed first degree murder as a class of crime in which this defense is exclusively prohibited, ³ as the Attorney General suggests. Accordingly, our interpretation of the duress statutes, as they apply to this issue, is one of first impression. In considering the application of the duress statutes in this context, we are guided by the common law at the time the statute was passed; for the common law, although not defining crime in Oklahoma, ⁴ furnishes "one of the most reliable backgrounds upon which analysis of the objects and purposes of a statute can be determined." 2A C. Sands, Sutherland's Statutory Construction, 50.01, p. 268 (3d ed. 1973). See also Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815, 829 (1952).

The defense of duress is defined by three of our Oklahoma statutes:

All persons are capable of committing crimes, except those belonging to the following classes:

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7. Persons who committed the act, or made the omission charged, while under involuntary subjection to the power of superiors.

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The involuntary subjection to the power of a superior which exonerates a person charged with a criminal act or omission from punishment therefore, arises from duress.

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The duress which excuses a person from punishment who has committed a prohibited act or omission must be an actual compulsion by use of force or fear.

21 O.S.1981, § 152(7), 155, 156. This series of statutes has been amended just once since its original passage in 1910, and that was to remove "coverture" as a defense under section 155.

The common law policy underlying duress as a defense to crime was based on society's realization that a person, when faced with the choice of two evils, should not be punished for accomplishing the lesser evil, and thereby avoiding the crime of greater magnitude. LaFave and Scott have explained that

One who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question.... The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided harm of greater magnitude.

LaFave & Scott, Criminal Law, 374 (1973).

This "choice of evils" approach has been well described by a prominent authority on the English Common Law as an approach which one must "in order to escape that he dislikes most ... do something he dislikes less, though he may dislike extremely what he determines to do." 2 J. Stephens, A History of the Criminal Law of England at 102 (1883). Accord Williams, Criminal Law: The General Part, ch. 18 (2d Ed.1972). A noted American scholar agrees, noting the general principle that, "where one of the harms is unavoidable, it is right to choose the lesser one" furnishes the basis for the American common law rule. J. Hall, General Principles of Criminal Law at 422 (2d Ed.1947).

Accordingly, common law recognized early on that duress should have no application to the intentional taking of an innocent life by the threatened person. See Arp v. State, 97 Ala. 5, 12 So. 301 (1893). See also State v. Nargashian, 26 R.I. 299, 58 A. 953 (1904). The rationale for denial of this defense to intentional killing is premised on the theory that one should risk or sacrifice one's own life rather than take the life of an innocent person. State v. Dissicini, 126 N.J.Super. 565, 571, 316 A.2d 12, 16 (App.Div.1974) aff'd 66 N.J. 411, 336 A.2d 618 (1975) (en banc). The rationale also is in full accord with the "choice of evils" theory, for when the harm contemplated by the defendant is greater than, or equal to, the threatened harm, "he ought rather to die himself than escape by the murder of an innocent." 4 Blackstone's Commentaries 30, See also 1 Hale P.C. 51....