Spunaugle v. State

OPINION

LANE, Judge.

Delpha Jo Spunaugle was tried by jury and found guilty of Murder in the First Degree, Conspiracy to Commit First Degree Murder, and Solicitation to Commit First Degree Murder (21 O.S.1991, §§ 701.7, 421, 701.16) in Oklahoma County District Court Case No. CRF-93-5206. The jury recommended a sentence of death for the murder, life imprisonment for the solicitation, and ten years imprisonment for the conspiracy to commit murder. The trial judge imposed the recommended sentences. We reverse judgment and sentence, and remand for a new trial.

FACTS

Delpha Jo Spunaugle tried for at least two years to find someone to kill her husband, Dennis. On the evening of August 14, 1993 she asked her friend David Woodward to come over and be with her when Dennis came home from a night of drinking. Spu-naugle believed Dennis would not abuse her verbally if Woodward were present, and had invited him over on other occasions for this reason. Dennis Spunaugle came home and after some verbal exchange with his wife, went to bed. Some time later Woodward climbed into the Spunaugle’s motor home which was parked on the driveway and went to sleep. Delpha Jo Spunaugle awakened him in the early morning hours of August 15th, announcing, “It’s time.”

She led Woodward into the bedroom. Dennis was sleeping with his head at the foot of the bed. Woodward hit him with a baseball bat¹, partially severing his ear and knocking him off the bed. A struggle ensued and Woodward stabbed Dennis repeatedly. When Dennis appeared to get the upper hand, Delpha Jo hit him with the bat. As dawn neared and Dennis still was not dead, Delpha Jo got a rope and Woodward coiled it around Dennis’ neck. Woodward and Delpha Jo each pulled one end of the rope until Dennis died.

Five days later the maggot infested and partially skeletonized body of Dennis Spu-naugle was found by a passing truck driver in a dry creek bed near the intersection of 164th Street and County Line Road in Oklahoma County where Delpha Jo and Woodward had left it. Woodward confessed to the crime and asserted he would not have committed it, but for Delpha Jo’s manipulation and his intoxication. Delpha Jo also confessed to her participation in the murder, but asserted she did so under duress. She told the police Woodward was “possessed” during the attack and threatened to harm her or her children if she did not help kill Dennis. She also told them he was a devil worshipper who licked Dennis’ blood from his knife, and threatened her by saying his followers would hurt her if she reported the crime. Spunau-gle and Woodward were tried jointly and convicted.²

AVAILABILITY OF DURESS AS A DEFENSE TO MALICE MURDER

Spunaugle attempted to raise a duress defense to the charge of first degree malice murder. Duress has never been recognized in Oklahoma as a defense to that crime; in fact, this Court suggested in dicta the defense is barred by common law. Tully v. State, 730 P.2d 1206, 1209-10 (Okl.Cr.1986). Interestingly, the validity of the defense was not challenged by the prosecutor or the Attorney General. We raise the question sua sponte, for if duress is not a valid defense to malice murder, Spunaugle’s arguments concerning inconsistent defenses would become moot.

The defense of duress in Oklahoma is a creature of statute. Title 21 O.S.1991, § 152(7), the first of three defining statutes, provides a person who commits a crime under duress is deemed incapable of committing the crime:

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

[[Image here]]

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

Title 21 O.S.1991, § 155 reinforces the legal basis for the defense, and deems a person who commits a crime under duress fully exonerated of the crime:

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

Title 21 O.S. Supp.1992, § 156, expanded to recognize people can be put under duress by threats to their spouse or child, completes the definition:

A person is entitled to assert duress as a defense if that person committed a prohibited act or omission because of a reasonable belief that there was imminent danger of death or great bodily harm from another upon oneself, ones (sic) spouse or ones (sic) child.

To determine the extent and limit of this statutory defense, we begin with the language of the statute itself. If the language is self-explanatory, we need go no further. In this case we are greatly aided in this effort by clear and consistent statutory language.

First, as Tully recognized, the Oklahoma legislature did not limit the crimes to which the defense of duress can be asserted. 730 P.2d at 1208. We believe this is a policy choice and not an omission because it is supported by the rest of the defining language and the recent expansion of the defense.

The Oklahoma approach to duress contrasts sharply with the common law which has been hostile to the defense. One nineteenth century writer, J. Stephen, noted, “Compulsion by threats ought in no ease whatever be admitted as an excuse for crime.” A History of the Criminal Law in England 108 (1883). While the common law does recognize the defense, it limits application of the duress defense considerably by grounding it in the so-called “choice of evils” moral philosophy of justification. Under this philosophy, one is not morally justified to commit a greater harm to avoid a lesser one. Thus, where harm is unavoidable, one may not choose to commit an equal or greater harm to avoid harm himself. J. Hall, General Principles of Criminal Law 422 (2d Ed.1947).

When this theory is applied to malice murder, the defense of duress is precluded, for when threatened by harm, a person “ought rather die himself than escape by the murder of an innocent.” U W. Blackstone’s Commentaries 30. This theory is carried forward in the Model Penal ■ Code. See Model Penal Code and Commentary § 3.02 and commentary at 9-22. States which follow this rationale limit the application of the duress defense to certain crimes. See, e.g. Ky. Rev. Stat. § 508.080; Mo. Rev.Stat. § 563.026.

Justification is but one of two legal theories supporting the defense of duress. The other foundation, wholly separate and distinct from the theory of justification, is the doctrine of excuse. This doctrine is at 367-387; Finkelstein, Duress: A Philosophical Account of the Defense in Law, 37 Ariz. L.Rev. 251-283 (1995).

Under this legal doctrine, a person may be excused for committing a crime, even murder, if “men of ordinary firmness” would have acted in the same way to save their own lives. Model Penal Code § 2.09. The legal theory of excuse focuses on the actor and “represents the legal conclusion that the conduct is wrong, ... but that criminal liability is inappropriate because some characteristics of the actor vitiates society’s desire to punish him.” Robinson, Criminal Law Defenses: A Systematic Analysis, 83 Colum. L.Rev. 199, 229 (1982). La Fave and Scott acknowledge a majority of the modern codes take this approach, and that a significant number of the modern statutory schemes make the duress defense available “whatever the charge against the defendant.” W. LaFave & A. Scott, Criminal Law 437 (2d ed. 1986).

Simply put, if the defense of duress is based on the legal theory of excuse in Oklahoma, it is available to answer a charge of first degree malice murder; if it is based on the legal theory of justification, it is not. To determine which theoretical underpinning supports the defense of duress in Oklahoma, we look once again to the plain language of the defining statutes.

Section 152(7) focuses on the actor, defining the person under duress as not capable of committing a crime. Section 155 focuses on the actor, and exonerates him if he acts under duress. Section 156, amended in 1992, entitles a person to the defense if that person acted as a result of a reasonable belief “there was imminent danger of death or great bodily harm” to himself, his spouse, or his child. All of the defining statutory language focuses on the actor, while none of it focuses on the act, or justification of the act.

In light of this clear and consistent statutory language, we conclude Oklahoma did not adopt the “choice of evils” theory of justification. Rather our defense of duress is based on the legal theory of excuse. Therefore, the Tully discussion of “choice of evils” and justification, while accurate for those states which use justification to support the defense of duress, has no application to the defense in Oklahoma. We find the defense of duress is available in Oklahoma to a defendant charged with the crime of first degree malice murder.³

Duress is an affirmative defense. The defendant bears the burden to present or elicit sufficient evidence to raise the defense, and if the defendant meets this burden, the burden then shifts to the State to disprove it beyond a reasonable doubt. The defense is exceptionally well defined by statute, and inherently includes important limits.

The threatened danger of death or great bodily harm must be imminent. 21 O.S. Supp.1992, § 156. The defendant’s belief that death or great bodily harm is imminent must be reasonable. Id. Because duress is a valid defense only to a person under involuntary subjection to the power of a superior, the defense may be defeated by a showing that the defendant voluntarily or negligently placed himself in a position to be subjected to the power of a superior. See 21 O.S.1991, §§ 152(7); 155. Likewise, a showing that a defendant failed to avail himself of an opportunity to escape from the situation subjecting him to duress would negate the involuntary subjection element and defeat the defense.

Having found duress is available to a defendant charged with first degree malice murder, we now examine Spunaugle’s substantive claims.

TRIAL COURT DENIAL OF MOTION TO SEVER

Spunaugle filed a motion to sever her trial from that of co-defendant David Woodward. Woodward opposed the motion vigorously while the State remained neutral. The trial court denied the motion to sever, and Spu-naugle claims in her first and third propositions this was error.

The decision to sever the trial of co-defendants is left to the sound discretion of the trial court subject to statutory guidance: severance shall be granted if it appears the defendant or the State is prejudiced by join-der. 22 O.S.1991, § 439. The statute does not define or limit the circumstances under which prejudice might arise, and the circumstances of this case present a novel facet of the problem.

Perhaps the best known example of prejudice requiring severance is that which arises when co-defendants assert mutually antagonistic defenses. See e.g., Lafevers v. State, 819 P.2d 1362, 1364-65 (Otl.Cr.1991); Neill v. State, 827 P.2d 884, 887-88 (Okl.Cr.1992). Mutually antagonistic defenses occur when each defendant attempts to exculpate himself and inculpate the co-defendant. Hammon v. State, 898 P.2d 1287, 1292 (Okl.Cr.1995). This Court has defined defenses to be antagonistic when “to believe one is to disbelieve the other.” Neill, 827 P.2d at 888. The defenses of Spunaugle and Woodward fit this definition, and as such could be considered mutually antagonistic. However, this Court has not found defenses to be mutually antagonistic unless each is a complete defense to guilt. Lafevers, 819 P.2d at 1366.

Duress, raised by Spunaugle, is a complete defense to guilt. Voluntary intoxication⁴ and influence, raised by Woodward, are not. These asymmetric defenses are not mutually antagonistic and do not mandate severance.

Severance is also required when the State introduces the confession of a non-testifying co-defendant which inculpates another co-defendant. Plantz v. State, 876 P.2d 268, 273 (Okl.Cr.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995). Woodward testified; Spunaugle didn’t. The State was allowed to introduce those portions of Spunaugle’s confession which inculpated her, but Spunaugle was not allowed to introduce those portions of her confession which exculpated herself, but inculpated Woodward. While this procedure squares with the Plantz rule, prejudice resulted nevertheless.

■ Woodward filed a motion in limine to bar all of Spunaugle’s confessional statements regarding Woodward’s alleged devil worship and his threats to kill her or her children if she did not help kill Dennis Spunaugle. This was the evidence Spunaugle had to support her defense of duress. By granting Woodward’s motion, the trial court gutted Spunau-gle’s right to present a defense.⁵ This result satisfies the prejudice standard, of 22 O.S. 1991, § 436.

This prejudice was compounded by the fact the trial court allowed the State to introduce all of the inculpating statements Spunaugle made in her confession, while prohibiting Spunaugle from introducing any of the exculpating statements she made during the same confession. This glaring error prompted the prosecutor to argue vigorously that all of Spunaugle’s confession should be admitted at trial. We agree. Where the State introduces inculpatory confessional statements, the confessor shall be allowed to introduce exculpating statements made in the same confession. See Williams v. State, 915 P.2d 371, 380 (Okl.Cr.1996); Brewer v. State, 414 P.2d 559, 560 (Okl.Cr.1966). Once the trial court realized Spunaugle’s confession contained evidence which it believed should not be before the jury which was determining Woodward’s guilt, severance should have been granted. These evidentiary . circumstances require reversal.

Our ruling today should not be interpreted as a comment on the credibility of the defense. Spunaugle had the right to present a defense. After a defense is presented the trial court has the duty to determine whether it is adequately raised to warrant instruction, and if so, the finder of fact then must determine whether the defense is worthy of belief.⁶

PEREMPTORY CHALLENGES

Spunaugle’s defense at trial, though wrongly hampered by the trial court, was that she participated in the murder of her husband under duress of threat of death to herself or her children. Duress is a complete defense to guilt. Woodward’s defense of voluntary intoxication and undue influence by Delpha Jo Spunaugle is not a complete defense to guilt and would only lessen the degree of the crime, and mitigate punishment. Because Spunaugle tried to completely exonerate herself of guilt at Woodward’s expense, the defenses of the co-defendants were inconsistent. See Plantz, 876 P.2d at 276; Bryson v. State, 876 P.2d 240, 250 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 5.Ct. 752, 130 L.Ed.2d 651 (1995).

Title 22 O.S.1991, § 655 provides that co-defendants who assert inconsistent defenses are each entitled to nine peremptory challenges. Spunaugle and Woodward requested nine peremptory challenges each under this statutory authority, and the trial court correctly granted the motion. See Bryson, 876 P.2d at 250. However, after sharp challenge by the prosecutor, the trial court reversed itself in part and ruled the defendants would not each receive nine challenges as provided by statute, but would each receive six. Woodward’s counsel accepted this unauthorized compromise when the State threatened to sever the trial. Spunau-gle’s counsel objected, and further perfected the issue for appeal by stating on the record he would remove two additional veniremen if he had been given the proper number of peremptory challenges. In her second proposition of error Spunaugle argues this error requires reversal.

A criminal defendant has a due process right to the number of peremptory challenges allowed by state law, and that right is denied or impaired when the criminal defendant does not receive that which state law provides. Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988). Because state law granted Spunaugle nine separate peremptory challenges, but the trial withheld three of these, Spunaugle’s due process right to peremptory challenges was impaired. This constitutional error may be found harmless if it is a trial error, that is, an error which occurred during the presentation of the case to the jury, but it may not be found harmless if it is a structural defect in the trial mechanism. Bartell v. State, 881 P.2d 92, 98 (Okl.Cr.1994).

The denial of three peremptory challenges is an error in the jury selection process which pervaded the entire trial. This error was not waived, and facts sufficient to prove prejudice are contained in the record, for counsel made a record of those venireman he would remove if he had the correct number of peremptory challenges. Salazar v. State, 919 P.2d 1120,1128-29 (Okl.Cr.1996). One of these was the sleeping juror who, as discussed below, erroneously was not replaced when her slumber was brought to the attention of the trial court. Under the analysis set forth in Bartell, the denial of three peremptory challenges is error which is not subject to harmless error analysis. This error warrants reversal.

FAILURE TO REMOVE A SLEEPING JUROR

Before first-stage closing argument defense counsel joined in a motion to replace a juror who slept during parts of the trial. This motion was timely made, and thus the objection is fully perfected. Randleman v. State, 552 P.2d 90, 93 (Okl.Cr.1976). Juror misconduct must be proven by clear and convincing evidence, and in this case was. See Wofford v. State, 494 P.2d 672, 675 (Okl.Cr.1972). The trial judge stated on the record the juror had “dozed during parts of the trial”, and had paid attention “for the most part.” The trial judge then denied the motion to replace the dozing juror with the available alternate.

In a capital murder case in which the jury found guilt and set punishment at death, the participation of a juror who “dosed during parts of the trial” is an unacceptable degradation of due process which requires reversal.⁷

GRUESOME PHOTOGRAPH

State’s Exhibit No. 5 is a close-up color photo of the maggot infested remains of Dennis Spunaugle. The photo vividly displays a repulsive, grainy blanket of maggots efficiently consuming the remains. Spunau-gle’s counsel objected to the admission of this photograph on the grounds it was cumulative and its probative value was greatly outweighed by its prejudicial effect. 12 O.S. 1991, § 2404. The State argued the photograph corroborated the medical examiner’s testimony that the body was in a stage of decay which effaced soft tissue wounds, it corroborated Woodward’s testimony that Dennis Spunaugle died in his underwear, and it showed the location of Dennis Spunaugle’s tennis shoes.

The outcome of the weighing of probative value against prejudicial effect depends to a great extent on the degree of probative value. In Robedeaux v. State, 866 P.2d 417, 424-25 (Okl.Cr.1993), cert. denied, 513 U.S. 833, 115 S.Ct. 110, 130 L.Ed.2d 57 (1994) the probative value of the photograph of dismembered body parts was great, and so the undeniable gruesome nature of the photograph did not outweigh its probative value. Where probative value is minimal, and the photograph most vividly shows the handiwork of nature and not the defendant, admission should be denied. Mann v. State, 749 P.2d 1151, 1156 (Okl.Cr.), cert. denied, 488 U.S. 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988).

State’s Exhibit No. 5 was cumulative of State’s Exhibit No. 8. Both photos showed the decomposition, but the relative distance from which Exhibit No. 8 was taken removes much of the prejudicial value of that photograph. The corroborative value of Exhibit No. 5 is weakened by the fact it corroborates irrelevant, or barely relevant facts. The position of Spunaugle’s tennis shoes has no relevance whatsoever in this trial. The corroboration of Woodward’s confession is most vividly realized by. the fact the body was found where he said it would be found. The fact Spunaugle is in his underpants is not well corroborated by Exhibit No. 5 due to the thick layer of maggots obscuring this detail. Given the very weak probative value and the great prejudicial value of this photograph, the trial court should have denied admission of State’s Exhibit No. 5. We need not, and do not reach the question whether the admission of this photograph would warrant reversal, had it been the only trial error.

DECISION

Judgment and sentence on each count is REVERSED and REMANDED for new trial.

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

1 . Woodward testified he did not remember whether Delpha Jo gave him the bat, or whether he picked it up.

2 . David Woodward was sentenced to life without parole for the murder, and has perfected a separate appeal to this Court.

3 . Judge Lumpkin’s dissent might pass as a sermon. He decries the existence of any defense to first degree murder. He cites inapplicable statutory "authority”, and he imposes his own finding of fact without the proper assertion or testing of those facts at trial. The opinions stated are not grounded in the law of this case, and so I must respond.

That portion of the dissent which condemns the duress defense as an invidious incursion of situational ethics, that is, an erosion of moral values, is equally suited to any of the defenses to first degree murder, including self-defense. J. Lumpkin’s theory of statutory construction seems to be that because Oklahoma has the defenses of justifiable homicide and excusable homicide, it must not have the defense of duress to homicide. See 21 O.S.1991, §§ 731 and 733. This makes about as much sense to me as arguing that as a result of sections 731 and 733, Oklahoma does not recognize the defense of self-defense. There is no implicit or explicit limitation of the defense of duress, or self-defense for that matter, in the sections cited in the dissent.

4 . Woodward argues in his appeal that the trial court erred by denying an instruction on involuntary intoxication, a complete defense to guilt. We address this issue in the Woodward appeal.

6 . Imposing his own findings of fact, J. Lumpkin makes clear he does not believe the appellant when she argues she killed under duress. These facts were not fully asserted at trial to the trier of fact, and as a result they were not fully tested at trial. Consequently, the dissent's speculation about the facts is irrelevant. The question to this Court on appeal is whether the accused was denied the constitutional right to present a defense.

Lumpkin attempts to prove his finding of fact is correct by making much of the fact the appellant attempted for years to hire someone to murder her husband. This argument proves up the wisdom of our judicial system which removes appellate judges from the role of trier of fact. Our role, when the record is properly developed, is to determine if the decision of the trier of fact is supported by the record. But here the defendant was prohibited from fully developing her defense. If the defense is asserted upon retrial, the trier of fact will determine whether it is to be believed.

5 . Spunaugle’s counsel was able to elicit testimony that Spunaugle stated she participated in the murder under duress. This bland summation does not take the place of being able to present the details of the defense for the jury to consider.

7 . I am most puzzled by the fact the dissent cannot accept the facts of record. One wonders what evidence could be more clear and convincing than the trial judge stating the juror in question had paid attention, "for the most part.” No amount of appellate gloss or wishful thinking can change the fact that by so ruling,, the trial judge also ruled, by definition, that this juror did not pay attention to all of the trial. To suggest otherwise is to let one’s belief in the guilt of the accused outweigh the constitutional standards of trial by jury.