# Kinchion v. State

> Court of Criminal Appeals of Oklahoma · December 12, 2003 · 74 O.B.A.J. 3537

URL: https://www.frixlaw.com/law-library/cases/9795600

## Case

- **Full name:** Kenneth Ray KINCHION, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** December 12, 2003
- **Citations:** 74 O.B.A.J. 3537; 81 P.3d 681; 2003 OK CR 28; 2003 Okla. Crim. App. LEXIS 25; 2003 WL 22930618
- **Precedential status:** Published
- **Opinion:** Dissent by Chapel
- **Judges:** Lumpkin, Johnson, Lile, Chapel, Strubhar
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795600

## How later opinions describe it (automated extraction)

- holding district court did not abuse its discretion in refusing to give jury instruction on exculpatory statements because defendant's statement to police was disproved by other evidence
- affirming felony murder conviction of defendant who did not personally carry a loaded weapon, but participated in robbery where his armed accomplice was killed by the intended victim

## Opinion text

CHAPEL, J.,
dissenting:
T1 I disagree with the majority's resolution of Proposition I. I believe our felony murder statute does not apply where a co-defendant is shot and killed by a victim during the course of the crime. Felony murder holds a defendant accountable for murders which are foreseeable as a result of his actions or those of an accomplice. The Legislature enacted the felony murder statute in order "to deter, with the death penalty, those crimes of a particularly heinous and brutal nature as well as those felonies necessarily involving great risk of death or serious bodily injury to the victim." 1 Felony murder is intended to punish those defendants who, with lethal force, commit a felony inherently dangerous to human life. 2 The doctrine's primary function is to remove the State's burden of proving malice by imputing the intent involved in the commission of the felony to the commission of the homicide; however, "there must be a nexus between the underlying felony and the death of the victim." 3
T2 As the majority notes, "one who, by his willful criminal conduct, sets in motion a chain of events so perilous to the sanctity of *687 human life that death results therefrom; must bear the ultimate responsibility for kis actions." 4 Felony murder has an intent element: a felon is liable for the consequences resulting from his intent to commit a particular felony. 5
13 Oklahoma's felony murder statute applies where a defendant or any other person takes the life of another, or if the death of a human being results, during the commission or attempt to commit one of several enumerated felonies, including robbery with a dangerous weapon. 6 The majority states this language shows the Legislature's intent to impute criminal responsibility to a defendant for any death which may occur as a crime is committed. I do not interpret the statute so broadly, nor do I agree that the language unambiguously reflects that intent. On its face, the statute makes a defendant Hable for any homicide occurring during the commission of an enumerated crime. The language itself does not automatically include lability for lawful acts committed by third persons. Self-defense is a form of justifiable homicide, i.e. a taking of life as a matter of right. 7 In other words, self-defense, like the defense of property, is not a crime. The majority extends the law of felony murder to include deaths legally caused by third persons.
T 4 Kinchion and his accomplice threatened the store clerk with a gun during the course of an armed robbery. In self-defense, the clerk killed the accomplice. In holding Kin-chion liable for the accomplice's death, the majority essentially chooses to interpret felony murder as a law of strict liability holding a criminal defendant responsible for any death that happens at the time the defendant attempts to commit a felony, whether or not the death occurs as a result of the felony, and whether or not the act which caused the death was itself lawful. This Court has not previously adopted this interpretation, before or after the 1996 statutory amendment on which the majority relies. The "proximate cause" theory is directly borrowed from civil law, and disregards the actual cause of any death which happens while the defendant is committing a crime.
15 I believe this misinterprets the language of the felony murder statute for two reasons. First, criminal law does not impose strict liability. The criminal justice system focuses on each particular defendant and his personal culpability in a particular crime, taking into account the cireumstances of each crime in order to determine appropriate charges and a just punishment. 8 Second, the majority disregards the fact that the accomplice's death was the result of a lawful act. When he shot Kinchion's accomplice, the victim was acting lawfully in self-defense. He could not be charged with murder or any other form of homicide. A person died when Kinchion participated in an armed robbery. *688 However, under the law, there was no actionable homicide. On its face, the felony murder statute restricts lability for murder to a death resulting from, or occurring during the commission of, an offense. I do not believe the Legislature intended to extend lability for murder to a death that did not result from a crime at all. 9
1 6 The majority's interpretation yields potentially absurd results. For example, if an innocent bystander sees a robbery, is frightened, and dies of a heart attack, the robber should be guilty of felony murder. Since according to the majority opinion, the death need not be a homicide, a defendant should foresee that bystanders might be frightened and, if they have health problems, might die. During oral argument, the State suggested that if a co-defendant kills himself during the commission of a crime, that would not be felony murder as the death would not be the result of the crime. At least one jurisdiction adopting the proximate cause theory has held that this situation does constitute felony murder, as no independent force intervened between the erime and the death. 10
17 Finally, I believe this broad extension of the felony murder doctrine poses constitutional problems. Due process requires that a defendant know what constitutes a crime. This Court has often stated, "It is fundamental that statutes creating criminal offenses must be drawn in language sufficient to apprise the public of exactly what conduct is forbidden." 11 I do not believe a felon can be expected to understand that he will be guilty of murder if, while he commits a crime, someone else's lawful act causes a death. I dissent.
T8 I am authorized to state that Judge Strubhar joins in this dissent.
. Williams v. State, 1975 OK CR 171 , 542 P.2d 554, 586 , overruled on other grounds by Riggs v. Branch, 1976 OK CR 216 , 554 P.2d 823 ; James v. State, 1981 OK CR 145 , 637 P.2d 862, 865 , overruled in part on other grounds, Brown v. State, 1987 OK CR 181 , 743 P.2d 133 (felony murder statute is intended to prevent certain felonies as well as homicide).
. Stiles v. State, 1992 OK CR 23 , 829 P.2d 984, 996 ; Brown v. State, 743 P.2d at 138 .
. Wade v. State, 1978 OK CR 77 , 581 P.2d 914, 915 . See also State v. Sophophone, 270 Kan. 703 , 19 P.3d 70, 73 (2001) (purpose of felony murder is to deter defendants from killing negligently or accidentally, and to relieve State of the burden of proving premeditation and malice when victim's death is caused by the killer while he is committing another felony).
. Hatch v. State, 1983 OK CR 47 , 662 P.2d 1377, 1384 (emphasis added).
. See, eg., Gilson v. State, 2000 OK CR 14 , 8 P.3d 883, 903 , cert. denied, 532 U.S. 962 , 121 S.Ct. 1496 , 149 L.Ed.2d 381 (2001); Fields v. State, 1996 OK CR 35 , 923 P.2d 624, 634 , cert. denied, 520 U.S. 1216 , 117 S.Ct. 1704 , 137 L.Ed.2d 829 (1997); Powell v. State, 1995 OK CR 37 , 906 P.2d 765, 773-74 , cert. denied, 517 U.S. 1144 , 116 S.Ct. 1438 , 134 L.Ed.2d 560 (1996); Hammon v. State, 1995 OK CR 33 , 898 P.2d 1287, 1308-09 ; Freeman v. State, 1994 OK CR 37 , 876 P.2d 283, 287 , cert. denied, 513 U.S. 1022 , 115 S.Ct. 590 , 130 L.Ed.2d 503 ; Hopkins v. Reeves, 524 U.S. 88, 99-100 , 118 S.Ct. 1895, 1902 , 141 L.Ed.2d 76 (1998) (to support a sentence of death, felony murder statute needs no other mens rea requirement than intent to commit the underlying felony).
. 21 0.9.2001, § 701.7(B).
. 21 0.S.2001, § 733.
. For example, a defendant convicted of felony murder who was liable for murder because he intended to commit the underlying felony is only eligible for the death penalty if he is also personally culpable for the murder, i.e. if he killed, tried to kill or intended to kill the victim, intended use deadly force, or was a major participant in a felony and acted with reckless disregard for bu-man life. Matthews v. State, 2002 OK CR 16 , 45 P.3d 907, 923-24 , cert. denied, 537 U.S. 1074 , 123 S.Ct. 665 , 154 L.Ed.2d 570 ; Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982)(death penalty may be imposed only where defendant intended life be taken or contemplated that lethal force would be used); Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), (requiring a finding that defendant had substantial personal involvement in the underlying felony and exhibited reckless disregard or indifference to the value of human life).
. Interpreting a similar felony murder statute, the Kansas Supreme Court has recently come to the same conclusion. State v. Sophophone, 270 Kan. 703 , 19 P.3d 70, 73 (2001); State v. Murphy, 270 Kan. 804 , 19 P.3d 80 (2001).
. Howard v. State, 545 So.2d 352 (Fla. 1st DCA 1989), review denied, 553 $o.2d 1165 (Fla.1989) (co-defendant died after swallowing cocaine during arrest). Other jurisdictions hold that a co-defendant's death while setting an arson fire creates liability for felony murder. In Re Leon, 122 RJL 548, 410 A2d 121 (1980); State v. Sotteriou, 132 N.J.Super. 403 , 334 A2d 47 (1975), cert. denied, 70 N.J. 144 , 358 A.2d 191 (1976); State v. Morran, 131 Mont. 17 , 306 P.2d 679 (1957); Commonwealth v. Bolish, 381 Pa. 500 , 113 A.2d 464 (1955), overruled on other grounds by Commonwealth ex rel. Shadd v. Myers, 223 A.2d 296 (Pa.1966).
. See, eg., Gilson, 8 P.3d at 913 ; Wilkins v. State, 1999 OK CR 27 , 985 P.2d 184, 186 , cert. denied, 528 U.S. 1086 , 120 S.Ct. 813 , 145 L.Ed.2d 685 (2000); Hayes v. Municipal Court of Oklahoma City, 1971 OK CR 274 , 487 P.2d 974, 976 . See also Malicoat v. State, 2000 OK CR 1 , 992 P.2d 383, 396 , cert. denied, 531 U.S. 888 , 121 S.Ct. 208 , 148 L.Ed.2d 146 (2000) (statute must be sufficiently clear and explicit for the understanding of ordinary persons).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795600. Public record. Not legal advice.