Malaske v. State

2004 OK CR 18, 89 P.3d 1116, 75 O.B.A.J. 1498, 2004 Okla. Crim. App. LEXIS 21, 2004 WL 842436

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 21, 2004
• Docket: F-2002-1085
• Status: Published

Opinions

OPINION

LUMPKIN, Judge.

¶ 1 Appellant, John William Malaske, was tried by jury in the District Court of Kay County, Case Number CF-2001-221, and convicted of Second Degree (Felony) Murder, in violation of 21 O.S.1991, § 701.8(2). The jury set punishment at ten (10) years imprisonment, and the trial judge sentenced Appellant accordingly. Appellant now appeals his conviction and sentence.

¶ 2 Appellant raises the following propositions of error in this appeal:

I. The trial court erred in overruling Appellant’s motion to quash the information because the facts alleged did not constitute the crime of second-degree felony murder. Additionally, the evidence presented was insufficient to support a conviction for second-degree felony murder;

II. Instruction number 2, the homicide causation instruction, was extremely misleading, especially in light of the prosecutor’s argument. A reasonable jury could have interpreted the instruction as allowing conviction of second degree felony murder under a proximate cause theory, contrary to Oklahoma statutory and case law;

III. The prosecutor’s closing argument improperly misled the jury about the law, shifted the burden of proof to the defendants, and commented on Appellant’s failure to testify;

IV. Detective Marshall’s improper comment on Appellant’s post-arrest invocation of his rights to counsel and to remain silent violated Appellant’s constitutional rights and requires a new trial;

V. Appellant was denied a fair trial by the introduction of irrelevant evidence and evidence of prior crimes, which the prosecutor repeatedly emphasized throughout closing argument;

VI. The trial court committed fundamental error in failing to give Oklahoma uniform jury instruction CR-10-27, as recently revised; and

VII. The trial errors cumulatively deprived Appellant of a fair trial and reliable verdict.

¶ 3 After thoroughly considering these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal or modification is not required.

¶4 With respect to propositions one and two, we find the crime of furnishing alcohol to a minor is a felony that is “potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.” Wade v. State, 1978 OK CR 77, 581 P.2d 914, 916; 37 O.S.2001, § 538(F). In so finding, we observe that our state legislature, by making the furnishing of alcoholic beverages to persons under the age of twenty-one a felony punishable by up to five years in prison, has made “alcoholic beverage” a controlled substance and persons under twenty-one years of age a protected class. Thus, it can be fairly said that in Oklahoma, the proscribed felony is “inherently dangerous as determined by the elements of the offense.” Wade, 581 P.2d at 916. Therefore, under the facts of this case,¹ Appellant can be said to have perpetrated the homicide of Dena Emery, while he was engaged in the commission of a continuing felony.² 21 O.S.2001, § 691; 21 O.S.2001, § 701.8(2).

¶ 5 While our cases have, perhaps, used proximate cause terminology a bit loosely over the years,³ our overall ease law requires a nexus between the underlying felony and the victim’s death in order for the felony murder doctrine to be applicable. Wade specifically warned “there must be a nexus between the underlying felony and the death of the victim. The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.” 581 P.2d at 916.

¶ 6 Moreover, Franks, supra, cited to Wade’s nexus language with approval. 636 P.2d at 364-65. See also Lampkin v. State, 1991 OK CR 33, 808 P.2d 694, 695 (“It is true that there must be a nexus between the underlying felony and the death of the victim in order for the felony-murder doctrine to apply.”); Diaz v. State, 1986 OK CR 167, 728 P.2d 503, 509 (finding a nexus between the death and the underlying felony); Irvin v. State, 1980 OK CR 70, 617 P.2d 588, 597 (nexus recognized). This is the approach taken by OUJI-CR 2d 4-60, which requires the defendant’s conduct to be a “substantial factor in bringing about the death and the conduct is dangerous and threatens or destroys life.” We find this instruction was appropriately given in this case, an accurate description of Oklahoma law as it currently stands, and not confusing, given Appellant’s defense. Accordingly, we deny relief with respect to propositions one and two.

¶ 7 With respect to proposition three, we find the prosecutor made a series of improper and potentially prejudicial arguments during his closing.⁴ In addition to misstating the applicable law on several occasions, the prosecutor challenged defense counsel to answer a series of questions regarding the trial evidence. For example, the prosecutor told defense counsel to “address these questions, yes or no; not any kind of sidestepping answers, but direct answers, just like the witnesses give on the stand. Yes or no.” The prosecutor then asked defense counsel; did Appellant give vodka to 8th graders; did Appellant commit a felony by doing so; did Dena Emery chug the vodka; did Dena die of alcohol poisoning.⁵

¶ 8 The clear implication here was that defense counsel, at all times Appellant’s representative, had a duty to answer these questions, and if he did not Appellant was sandbagging, not taking responsibility, hiding the ball. To some extent, the prosecutor was taking a hard look at the evidence, but such a confrontational bullying approach arguably begins to shift the burden of proof. Also, as Appellant further claims, such argument is at least an indirect comment on Appellant’s constitutional right to remain silent. See United States v. Skandier, 758 F.2d 43, 44-45 (1st Cir.l985)(addressing how such questioning can result in burden shifting and comment improperly on the right to remain silent).

¶ 9 In this case, defense counsel did not initially object to the questions, as he could have done, and thereby denied the trial court the opportunity to cure the error. However, there is no indication the trial court would have ruled in his favor, for counsel did ultimately object, and the trial court ruled this was not improper argument.⁶ We disagree.

¶ 10 Regarding the portions of this argument to which defense counsel did not object, we find no plain error occurred; although this is, at least arguably, a close question. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693. We find, however, that the trial court erred by overruling defense counsel’s objection once it was made and by allowing the prosecutor to continue this line of improper argument. Moreover, we find the error was harmless beyond a reasonable doubt. Simpson, 876 P.2d at 705. Defense counsel explained to jurors that he had no duty to answer the prosecutor’s questions, that the State had the burden of proof. Later, the trial judge told jurors that argument was not evidence. Also, jurors received proper instructions on the burden of proof, the presumption of innocence, Appellant’s right not to testify, and that their decision had to be based upon evidence. Jurors were also instructed that “[n]o statement or argument of the attorneys is .evidence.” And finally, the improper questions posed by the prosecutor really were, for the most part, obvious from the evidence presented at trial.

¶ 11 With respect to proposition four, we find the trial judge did not abuse his' discretion by overruling defense counsel’s motion for mistrial concerning Detective Marshall’s comments. Knighton v. State, 1996 OK CR 2, 912 P.2d 878, 894. Although the comments were improper, they sprang forth from somewhat careless questioning, primarily by counsel for the co-defendant. However, both counsel had the opportunity to approach the bench when the first comment (to which Appellant does not raise error) occurred and have Detective Marshall warned against such comments. They chose not to. The jury was properly instructed that the defendants had no duty to testify and the fact that they did not testify could not be used against them in the “slightest degree,” nor could it even enter into their deliberations. Thus, we find no plain error occurred.

¶ 12 With respect to proposition five, we find the trial judge did not abuse his discretion in allowing evidence to be admitted at trial concerning Appellant writing on Dena Emery while she was passed out.⁷ See Powell v. State, 2000 OK CR 5, 995 P.2d 510, 527 (Court will not disturb a trial court’s decision to admit evidence absent a clear abuse of discretion accompanied by prejudice). We further find no plain error occurred in the admission of testimony regarding the fact that Appellant had previously provided .alcohol to his sister and her friend. Furthermore, this testimony came about as a result of questioning by defense counsel for both defendants.

¶ 13 We do, however, find the prosecutor made improper arguments concerning the fact that Appellant had written on Dena Emery, essentially asking the jury to consider that fact as an aggravating circumstance worthy of stricter punishment. This argument was improper and a violation of the trial court’s ruling with respect to Appellant’s pretrial motion in limine. Standing alone, it is not entitled to any relief, however, especially when counsel failed to make a contemporaneous objection. We will, however, consider it as part of proposition seven, relating to cumulative error.

¶ 14 In proposition six, Appellant claims the trial court committed fundamental error by failing to give the revised version of OUJI-CR 2d 10-27, as it was revised in Graham v. State, 2001 OK CR 18, 27 P.3d 1026, 1028, n. 5. The previous version of the instruction was given, however, and this case is clearly distinguishable from Graham. Moreover, Graham was handed down on June .21, 2001, the very same day that jury instructions were given in this case. It appears doubtful that Graham was available to the parties at the time jury instructions were crafted, and there is no indication the new instruction was brought to the trial judge’s attention. We find relief is not warranted.

¶ 15 Concerning proposition seven, we find the prosecutor made several improper closing arguments, as shown in propositions three and five above. (Most, however, were not objected to.) Also, the lead investigator commented on the right to remain silent, as a result of questioning by the co-defendant’s counsel. In considering the effect, if any, these errors may have had on the jury’s decision to choose between second-degree felony murder, second-degree manslaughter, and the underlying felony in the felony murder, we find the issue is a close call. However, after considering the jury instructions, the sentence imposed, and our decision with respect to propositions one and two, we find no relief is required.

DECISION

¶ 16 The judgment and sentence are hereby AFFIRMED.

JOHNSON, P.J., and LILE, V.P.J., concur. CHAPEL and STRUBHAR, JJ., dissent.

1 . While Appellant was not actually present when the alcohol was consumed, he and his co-defendant purchased a bottle of vodka and provided it to his underage sister, knowing her intention to share it with her overnight guests, both of whom were also underage. For purposes of the felony murder statutes, these actions are sufficient for a conviction when one of the girls drank excessive amounts of that alcohol and died of blood alcohol poisoning.

2 . The danger the legislature obviously intended to protect against was the consumption of that alcohol by persons who are not old enough to make good decisions regarding it, not just the receiving of it. In other words, the legislature has decided to protect anyone under the age of twenty-one from the dangers associated with consuming alcohol. Thus, the act of delivering alcohol to one in the protected class can fairly be considered a continuing illegal act, for alcohol is dangerous when it is consumed to excess. That this is a continuing act is especially true here since Appellant knew his sister and her underage friends intended to consume the vodka and immediately left to do so upon receiving the bottle. It would simply be too strict an interpretation to say that the felony was completed upon delivery and that felony murder was therefore not possible. Indeed, the act of distributing or dispensing CDS or trafficking in illegal drugs may serve as predicate crimes for first-degree felony murder. Similar to the facts of this case, the act of distributing CDS is also complete when the drugs are delivered, but that does not avoid criminal responsibility for felony murder.

3 .See State v. Jones, 1993 OK CR 36, 859 P.2d 514, 515 (recognizing proximate cause theory but refusing to adopt it, instead following the "explicit" language of second-degree murder statute and first degree murder statute at that time); Franks v. State, 1981 OK CR 138, 636 P.2d 361, 365, cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982) (finding the primary issue was whether the commission of the predicate crime was the proximate cause of the homicide); State v. McCoy, 1979 OK CR 125, 602 P.2d 1044, 1045 (recognizing proximate cause is applicable to felony murder cases); Wade, 581 P.2d at 915-16 (finding the State is not required to prove that the felony perpetrated by the defendant is the proximate cause of the victim's death in order to establish the crime of Murder); State v. McCann, 1995 OK CR 70, 907 P.2d 239, 241 (describing that second degree felony murder occurs when a person engages in the commission of any felony other than the enumerated first-degree- felonies "which results in death.”) See also Palmer v. State, 1994 OK CR 16, 871 P.2d 429, overruled on other grounds in Willingham v. State, 1997 OK CR 62, 947 P.2d 1074.

4 . See also, proposition five.

5 . These were only a few of the questions posed to defense counsel. The prosecutor also asked; "Mr. Burlie, are you telling us that if a drug dealer gives someone heroin, if they don't die instantly, they have no responsibility for her death?”; "Mr. Burlie, can you tell us why you can even ask us to consider that, when the Instructions say we have to base our decision on evidence....”; "Can you please tell us why you didn't send your investigator out there to bring those witnesses in and what conclusions we should draw from that?” The prosecutor asked for straight answers to his questions and said he would give the list to defense counsel so he could refer to them. He indicated the answers would be a series of "yeah, buts” that “don't mean a thing.” He told Mr. Burlie "if you're going to call (her) a liar, be a man, stand up and say it.”

6 . The prosecutor then continued to challenge defense counsel to address his questions during his closing. Instead, defense counsel argued as follows in his own closing: "I'm not on trial in this case. Mr. Surber has tried to present questions to me, but, please understand, the burden is not on us; the burden is on the State in this case. They must prove guilt beyond a reasonable doubt.... I don't have to answer Mr. Surber's questions.”

7 . Photographs of the deceased showed the writings. Moreover, the evidence was somewhat relevant to the issue of culpable negligence in the lesser included manslaughter theory.