State of Oklahoma v. Kenneth Ray Kinchion

Oklahoma City, Oklahoma, criminal defense lawyer represented the Defendant charged with Conspiracy to Commit a Felony, Robbery with a Dangerous Weapon and ; First Degree Murder; Robbery with a Dangerous Weapon and Felonious Possession of a Firearm.

¶1 Appellant Kenneth Ray Kinchion was tried by jury and found guilty of Conspiracy to Commit a Felony, Robbery with a Dangerous Weapon (Counts 1 and 3) (21 O.S. 1991, §§ 421 & 801); First Degree Murder (Count 2) (21 O.S. 1991, § 701.7); Robbery with a Dangerous Weapon (Count 4) (21 O.S.Supp.1997, § 801); and Felonious Possession of a Firearm (Counts 5 and 7), Case No. CF-2000-6468, in the District Court of Oklahoma County . The jury recommended as punishment twenty five (25) years imprisonment in each of Counts 1 and 3, life imprisonment in Count 2, fifty (50) years imprisonment in Count 4, and ten (10) years imprisonment in each of Counts 5 and 7. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

¶2 On November 8, 2000 , Appellant also known as Peanut, DeWayne Shirley also known as Pudgy, and Teron Armstrong, also known as T-Noc, members of the Oak Grove Posse, robbed two convenience stores in Oklahoma City . The first armed robbery was committed at Coker’s Corner, on South Kentucky Street , at approximately 10:00 a.m. The second armed robbery was attempted shortly after 8:00 p.m. at Tran’s Food Mart on South May. Appellant carried the gun in the first robbery. However, in the second robbery, Armstrong carried the gun. After Armstrong threatened the owner of the store, Han Vo, with the gun, Han Vo shot and killed Armstrong with a .38 caliber revolver he kept under the counter.

¶3 Appellant raises the following propositions of error in support of his appeal:

I. The statutory offense of Felony Murder does not arise from the shooting death of a co-felon by a robbery victim during a convenience store robbery.

II. The evidence was insufficient to prove the conspiracy allegations beyond a reasonable doubt.

III. Two counts of conspiracy violate the constitutional prohibition against double jeopardy.

IV. There was no evidence that Appellant possessed a firearm at the robbery at Tran’s Food Mart.

V. The trial court erred in refusing defense counsel’s request for a jury instruction on the exculpatory statement doctrine.

VI. Appellant’s sentences on the conspiracy and robbery convictions were improperly enhanced under the Habitual Criminal Statute.

VII. When considered cumulatively, the multiple errors addressed herein denied Appellant due process and fundamental fairness.

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¶6 This Court held that the express language of the felony-murder statute precluded prosecutions where the victim was killed by someone other than the defendant or an accomplice. In 1996, section 701.7(B) was amended and the language broadened to include deaths, which occur at the hands of the intended victim of the underlying felony, police officers, or innocent bystanders. The 1996 amendment provided:

B. A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during,or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs.

¶7 The amended language is consistent with our long-standing interpretation of the felony-murder doctrine. In Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986) this Court stated:

The legislature's definition of murder in 701.7(B) is a reflection of the policy that one who, by his willful criminal conduct, sets in motion a chain of events so perilous to the sanctity of human life that death results therefrom; must bear the ultimate responsibility for his actions. We agree with the legislature that murders effected in such a manner are as abhorrent as those, which are premeditated. Proscribing such actions under our first-degree murder statutes performs the rational function of deterring the commission of felonies so inherently dangerous as to create foreseeable risks of death.

662 P.2d at 1384.

The Judgment and Sentence in Count 5, Felonious Possession of a Firearm is REVERSED WITH INSTRUCTIONS TO DISMISS. The Judgments and Sentences on all remaining counts are AFFIRMED. Appellant’s Motion to Supplement is DENIED.