PROVO — In his 24 years on the bench, Judge Lynn Davis had never seen a Russian roulette death case. Not only that, but he'd never heard of one — anywhere.
This was the predicament facing the 4th District judge Wednesday. How to sentence one man for suggesting the game and retrieving the gun, while also acknowledging that the victim was the one who pulled the trigger.
"In a word, it is a tragedy," Davis said. "An absolute tragedy in our community and it was all fueled by alcohol."
So he deferred to the wishes of the victim's family and prosecutors, sentencing Merrill Chet McKell, 41, of Spanish Fork, to one year in jail for one count of negligent homicide, a class A misdemeanor. McKell was first charged with manslaughter, a second-degree felony, in the death of his friend, 27-year-old Cody Hales, but pleaded no contest to the reduced charge as part of a plea agreement.
Police say the two men were at a house party near 500 North and 920 East in Spanish Fork on April 21, 2010, when they separated from the group, went into a bedroom and began listening to a CD that contained a song about suicide.
McKell then suggested a game of Russian roulette, retrieved a gun, loaded a bullet and spun the chamber. Hales put the gun to his head and pulled the trigger, firing the bullet. McKell called 911, but Hales died later at an area hospital.
Hales' sister, Shelly, spoke in court and told McKell that her only comfort is in knowing there's a "special kind of hell" for McKell. She said McKell was never her brother's friend and that trusting him was her brother's "fatal mistake."
"Cody Hales was my baby brother," she said. "And because he was taken too soon my heart and my family will never be whole. I watched my brother die with tears in his eyes because of (McKell)."
Christina Hales, the man's mother, said her son had a "big, giant, soft heart" and loved hunting and fishing.
"We can never touch him or see him again," she said. "I'd give my own life if I could just touch him again. We've been given a life sentence. The only way I can visit (Hales) is at the cemetery."
McKell said he was "deeply sorry" and that he never meant for anything to happen to Hales.
"I just want to say I'm very sorry to the Hales family. Cody was a dear friend to me."
McKell's attorney, Michael Petro, reiterated that McKell never thought Hales would actually pick up the gun and pull the trigger. He asked the judge to give McKell probation, so he could continue working to help pay the family's medical bills and funeral expenses.
But prosecutor Randy Kennard said not only did McKell have numerous alcohol-related convictions that warranted jail time, but the family wanted to see McKell spend time behind bars.
The judge reasoned that McKell could be ordered to participate in alcohol treatment and would be better equipped to pay for any restitution. He said he wasn't certain he would order restitution, though, because the victim did make the choice to pick up the gun and pull the trigger.
"There's an election on the part of the victim," Davis said.
Kennard pointed out that the only version of events out there is McKell's. He said the judge's other contention, that both Hales and McKell were heavily intoxicated, didn't change the result.
"This is not a situation where this is an accident," Kennard said. "You have the defendant suggesting that someone take a one-in-six chance with their life."
Hales' family declined to respond to the sentence that was handed down.
McKell is to turn himself in for jail commitment Monday. In the meantime, Davis has left the issue of restitution open until he can read any relevant case law.
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