Dickens v. State

OPINION

LILE, Judge.

1 Appellant, Christopher Michael Dickens, was convicted after jury trial of, count one, Robbery with a Firearm in violation of 21 0.8.2001, § 801, and count two, First Degree (felony) Murder in violation of 21 0.8. 2001, $ 701.7(B), in Tulsa County District Court Case No. CF-2002-4981 before the Honorable Thomas C. Gillert, District Judge. The jury set punishment at fifteen (15) years imprisonment on count one and life imprisonment on count two. The trial court dismissed the robbery count and sentenced Appellant to life imprisonment on count two. Appellant has perfected his appeal to this Court.

12 On the evening of September 25, 2002, Appellant and two others robbed a McDonald's restaurant in Tulsa, Oklahoma. One accomplice, Charles Turner, used a firearm during the robbery. The police were alerted as the robbery was in progress. An officer arrived and waited for the robbers to exit. -

1 3 Turner and Appellant left the store and ran to an open field. One of the officers released his K-9 and ordered the two to stop, but they continued to run. As the K-9 closed in on the pair, Turner fired shots from his weapon. Officers returned fire, striking and killing Turner. As the shooting began, Appellant dropped to the ground, and he was apprehended after the shooting.

T4 Appellant raises the following propositions of error in support of his appeal:

1. Since Appellant had surrendered prior to the shooting death of his accomplice, there was insufficient evidence with which to convict Appellant of First Degree Murder.
2. Prosecuting Appellant for First Degree Murder serves no legitimate government interest. 21 0.8.2001, § 701.7(B) should be interpreted to exclude the lawful death of an accomplice at 'the hands of a third party as a factual support for the felony-murder prosecution of a co-defendant.
3. It is a violation of the Eighth and Fourteenth Amendments to the United States Constitution to hold Appellant strictly Hable for First Degree Murder.
4. The jury instruction presented to the jury which defined the elements of First Degree Felony Murder do not accurately state Oklahoma law, requiring reversal of Appellant's conviction.
5. It was reversible error for the trial court to deny Appellant's requested instructions.
6. The prosecutor's improper use of hbypotheticals during voir dire served to deprive Appellant of his constitutional right to an impartial jury and due process of law.

T5 After thorough consideration of the entire record before us on appeal, we have determined that Appellant's conviction should be AFFIRMED.

T6 Concerning proposition one, we find that the facts support the conviction. Title 21 0.98.2001, § 701.7(B) provides that:

"A person ... 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 ... robbery with a dangerous weapon...."

T7 This proposition challenges whether under the facts, Appellant was still sufficient ly involved in the armed robbery at the time of the death to be punishable under the language of the statute. He was escaping, and escape is part of the robbery. That he fell to the ground when the shooting started does not constitute withdrawal. Clark v. State, 1977 OK CR 4, 558 P.2d 674; Spuehler v. State, 1985 OK CR 132, 709 P.2d 202.

*601T8 Concerning propositions two and three, we note the statute set forth above provides that first degree murder occurs "when that person or any other person takes the life of a human being" in the commission of enumerated felonies. 21 0.8.2001, § 701.7(B). This clear, unambiguous language subjects Appellant to prosecution and conviction under our felony murder statute. That a police officer killed a codefendant does not relieve Appellant of responsibility for the death. Id.

19 We find, regarding proposition four, that Appellant failed to object to the instructions of the trial court; therefore, we review for plain error only. Smith v. State, 1996 OK CR 50, 982 P.2d 521, 582. There was no plain error here. The instruction properly followed 21 0.8.2001, § 701.7(B). In proposition five, we find that instructions regarding an intervening cause were not warranted by the facts of this case. Kinchion v. State, 2003 OK CR 28, 81 P.3d 681, 684.

110 Regarding proposition six, we find that Appellant failed to make a contemporaneous objection to many of the questions during voir dire; therefore, we review for plain error only. Where objections were made, the trial court sustained the objection, but no admonition was requested; therefore, again, we review for plain error only. Patton v. State, 1998 OK CR 66, 973 P.2d 270, 302. There was no plain error here.

DECISION

T11 The Judgment and Sentence of the trial court is AFFIRMED.

LUMPKIN, V.P.J.: specially concurs. JOHNSON, J.; concurs in results. CHAPEL, P.J.: dissents.