John William Malaske v. State of Oklahoma

¶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.

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¶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 case 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 187, 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.

¶16 The judgment and sentence are hereby AFFIRMED.