OPINION
LILE, VICE PRESIDING JUDGE:
¶1 Appellant, Justin Ryan Long, was convicted after a non-jury trial of First Degree Malice Aforethought Murder in violation of 21 O.S.Supp.1998, § 701.7(A), in the District Court of Stephens County, Case No. CF-2000-145. The Honorable George W. Lindley, District Judge, sentenced Appellant to life imprisonment without the possibility of parole. Appellant has perfected his appeal to this Court.
¶2 On May 1, 2000, Appellant, then 15 years of age, stabbed his adoptive father, Hoyt Long, to death.
¶3 Appellant first challenges his waiver of jury trial on the grounds that the record is insufficient to show a competent, knowing and intelligent waiver by a minor of average intelligence who had suffered horrific physical and sexual abuse resulting in various mental illnesses and a history of immature thinking. Our case law establishes that "the right of trial by jury can be waived only if there is a clear showing that such waiver was competently, knowingly and intelligently given." Bench v. State, 1987 OK CR 191, 743 P.2d 140; Kerr v. State, 1987 OK CR 136, 738 P.2d 1370; Colbert v. State, 1982 OK CR 174, 654 P.2d 624; See also Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). Appellant relies for this argument on a sketchy court minute which memorializes the appearance, waiver and setting of non-jury trial date. However, an examination of the transcripts on appeal discloses an appearance by Appellant, with counsel, before the trial judge for the specific purpose of considering a waiver of jury trial. The trial court properly questioned both counsel and Appellant concerning the waiver, Appellant’s competency and understanding, and the voluntariness of the waiver. The trial court made a finding consistent with our law and the facts of record which we see no reason to disturb. This proposition is denied.
¶4 Appellant next complains, for the first time on appeal, that the trial judge improperly heard a taped confession, which he later suppressed. We do not review the admissibility of the taped confession but rather the non-jury trial procedure used here. This procedure is not unusual. The trial court heard the recording as part of the motion to suppress and then granted the motion. We presume, when a trial court operates as the trier of fact, that only competent and admissible evidence is considered in reaching a decision. Borden v. State, 1985 OK CR 151, 710 P.2d 116; Fox v. State, 1976 OK CR 307, 556 P.2d 1281. There is certainly nothing in the record nor raised by Appellant’s arguments to overcome that presumption. This was an experienced trial judge, Appellant confessed again at trial, and evidence independent of any confessions overwhelmingly supported the verdict. This proposition is denied.
¶5 Appellant asserts that there was insufficient evidence to establish he intended to kill his father. We review the evidence in the light most favorable to the State and determine if a rational fact-finder could have found the elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. Here, Appellant considered what to do as he sat by his sleeping father with weapons in hand. He admitted that he knew his father would probably die. He stabbed his father twice in the chest with a dagger and when his father awoke he stabbed him three times in the neck with a knife. As his mother approached, Appellant told her to let him die. This proposition is denied.
¶6 Appellant asserts that the sentence is excessive. We examine under the rule of Rea v. State, 2001 OK CR 28, 34 P.3d 148, and decades of similar precedent. If the sentence is within the range prescribed by the statute and if it does not shock the conscience of the Court, we will not modify the sentence. The State recommended a life sentence and Appellant asserts that the trial judge improperly gave a harsher sentence. The recommendation of the State is just that, a recommendation. Sentencing, in a non-jury trial, is the duty of the trial judge. The extreme hardship suffered by this Appellant was a strong mitigating influence. The fact that the possibility of rehabilitation was very slim and the utter brutality of this crime were strong aggravators. We are unable to say, under all of the facts of this case, that the sentence should be modified. This proposition is denied.
¶7 Appellant asserts that he was denied the right of closing argument and cites statutory authority that requires the court to allow closing argument in a jury trial. 12 O.S.1991, § 577, and 22 O.S.1991, § 83. These statutes, on their face, apply to jury trials and not trials by a judge. Appellant also cites Oklahoma Constitution, Art. II, § 20, which provides that an accused "shall have the right to be heard by himself and counsel . . . ." This constitutional provision has never been interpreted to require a trial judge to hear closing arguments in a non-jury trial.
¶8 The issue is whether a defendant (or the State, for that matter) has a right to present closing argument in a judge trial. The Supreme Court of Oklahoma faced the issue, albeit in civil cases, and concluded that "[W]here a case is tried to the court, and it is satisfied as to the evidence and the law applicable to the matter in issue, it is not compelled to listen to argument of counsel." Godfrey, Sheriff v. Wright, 8 Okla. 151, 56 P. 1051, see also Crescent Oil Co. v. Brumley, 169 Okla. 462, 37 P.2d 593; Missouri National Life Insurance Co. v. Mead, 1964 OK 126, 393 P.2d 521. In Crescent Oil, the Supreme Court reasoned,
"We must assume that the trial court was entirely satisfied with the evidence and the law applicable thereto, and although, as a general rule, a party has the right to be heard by his counsel, yet, where the case is tried to the court, the matter of permitting or limiting argument should rest in the sound discretion of the court."
Cresent Oil, 37 P.2d at 595. We adopt the sound reasoning of this case law and deny this proposition.
¶9 Appellant next complains that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and our cases applying the rule of Strickland. Appellant asserts that his trial counsel should have raised the defense of duress, because he "suffered from corporal punishment, and the reason he stabbed his adoptive father was to prevent further corporal punishment." This presents a claim in the nature of self-defense, not a claim of duress.
¶10 In the case of the battered woman syndrome, we treat the defense as one in the nature of self-defense. Bechtel v. State, 1992 OK CR 55, 840 P.2d 1. Likewise, where the victim is also the same person claimed to be exerting duress, the issue is self-defense. The duress defense envisions a third person compelling the defendant by the threat of immediate physical violence to commit a crime against another person or the property of another.
¶11 Additionally, duress is not a defense to the intentional taking of an innocent life by a threatened person. Tully v. State, 1986 OK CR 185, 730 P.2d 1206.
¶12 Clearly, the defense of duress has its origin in the common law and is "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." Tully, 730 P.2d at 1209.
¶13 Equally clear is the common law limitation of the defense as stated by Blackstone, that 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 W. Blackstone, Commentaries 30.
¶14 It is generally accepted that duress is not a defense to taking the life of an innocent person. Annot., 40 A.L.R. 2d 906-07. As stated at Wharton’s Criminal Law, 15th Edition, § 52: "At common law . . . a defendant is not allowed to take the life of an innocent third person even when he is ordered to do so under a threat of instant death."
¶15 Any other rule is simply repugnant to nearly universal standards of decency developed over many decades of human experience. Oklahoma has specifically delineated those legally acceptable justifications and excuses for homicide, which are set forth at 21 O.S.2001 §§ 731 & 733. Duress is neither an excuse for nor a justification of homicide under Oklahoma law.
¶16 The reasoning set forth in Tully was compelling then and remains compelling today. As we said in Tully, "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." Tully, 730 P.2d at 1210.
¶17 This long-standing rule of the common law, unmodified by statutory enactment, was improperly modified in Spunaugle v. State, 1997 OK CR 47, 946 P.2d 246, which we today overrule to the extent that it conflicts with this pronouncement.
¶18 Since the defense of duress was not appropriate under the facts of this case and since we find a valid waiver of the right to jury trial and find no abuse of discretion in the trial court’s decision not to hear closing argument in this judge trial, we can find no ineffective assistance of trial counsel by reason of counsel not pursuing these matters. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
¶19 Appellant’s claim of cumulative error must be denied because we find no error in any of Appellant’s propositions. Alverson v. State, 1999 OK CR 21, 983 P.2d 498.
DECISION
¶20 Appellant, Justin Ryan Long, was convicted at jury trial of First Degree Malice Aforethought Murder in violation of 21 O.S.Supp.1998, § 701.7(A), in the District Court of Stephens County, Case No. CF-2000-145. The Honorable George W. Lindley, District Judge, sentenced Appellant to life imprisonment without the possibility of parole. The Judgment and Sentence of the district court are AFFIRMED.
AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY
THE HONORABLE GEORGE W. LINDLEY, DISTRICT JUDGE
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ATTORNEYS AT TRIAL |
ATTORNEYS ON APPEAL |
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DON J. GUTTERIDGE, JR. |
LISBETH L. McCARTY |
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ROBERT EUGENE CHRISTIAN |
W. A. DREW EDMONDSON |
OPINION BY: LILE, V.P.J.
JOHNSON, P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS IN PART/DISSENTS IN PART
STRUBHAR, J.: CONCURS IN RESULTS
RA
CHAPEL, J., CONCURS IN PART/DISSENTS IN PART:
¶1 Although I agree that counsel was not ineffective in this case for failing to raise the defense of duress, I strongly disagree with the majority’s decision with respect to that defense. The Oklahoma legislature has set forth the defense of duress, exonerating defendants who commit crimes while involuntarily subject to the power of a superior.1 The Legislature has specifically provided that a person is entitled to assert duress as a defense if he commits a prohibited act because he has a reasonable belief that he, a spouse, or a child, is in imminent danger of death or great bodily harm from another.2 In Spunaugle v. State,3 a case of first impression, this Court examined the clear language of the statute, concluded that the Legislature meant what it said, and reaffirmed the principle that duress is a defense to malice murder. Today the majority ignores the letter and spirit of the statutes and overrules Spunaugle, because it finds any other result would be "repugnant to nearly universal standards of decency." This displays a contempt for our precedent and the legislative process with which I cannot agree.
¶2 Underlying the majority’s decision is a belief that "duress is not a defense to taking the life of an innocent person." This belief is directly contradicted by the statutory language, which makes no exceptions for an "innocent" victim where the statutory requirements are met. In order to bolster this belief, the majority relies on dicta in Tully v. State.4 As we noted in Spunaugle, the discussion of duress in Tully focused solely on justification and did not take into account the explicit language of Oklahoma’s statutes which focus on the legal theory of excuse.5 Rather than acknowledge this, the majority treats Tully as binding precedent. This is simply not the case.
¶3 The majority’s legal analysis appears to be driven not by principles of legal interpretation but by "moral" principles. In short, the majority simply believes that it is indecent for a murderer to claim he acted under duress. Whether or not that is true, it is not the question before us. Nothing has changed since Spunaugle which would suggest the Legislature intended a different interpretation of the duress statutes. This Court ought not amend or repeal a clear expression of Legislative intent because it does not agree with the outcome.
FOOTNOTES
1 21 O.S.2001, §§ 155, 152(7).
2 21 O.S.2001, § 156.
3 1997 OK CR 47, 946 P.2d 246.
4 1986 OK CR 185, 730 P.2d 1206.
5 Spunaugle, 946 P.2d at 250. The Oklahoma statutes focus on the actor and individual characteristics which may excuse his actions, rather than on the moral justification for the actions themselves.