Dewayne Edward Kemp v The State Of Oklahoma

F-2012-622

Filed: Oct. 15, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dewayne Edward Kemp appealed his conviction for First Degree Felony Murder and First Degree Burglary. His conviction and sentence resulted in life imprisonment for the murder and ten years for burglary, served at the same time. Judge Truong presided over the case. In the case, Kemp and two accomplices broke into a home. During the burglary, the homeowner shot and killed one of the accomplices and injured Kemp. While in jail, Kemp made incriminating statements that were recorded and shown to the jury. Kemp argued several points on appeal, including that the prosecutor asked unfair questions to jurors, a key statement from a co-defendant was not allowed as evidence, and the selection of jurors was biased based on gender. The court found no issues with how the jury was selected or the questions asked during the trial. Although Kemp’s convictions were mostly upheld, the court agreed he should not have been convicted of both felony murder and burglary, as they were related. For this reason, his burglary conviction was vacated (canceled). In the end, the ruling affirmed Kemp’s murder conviction but removed the burglary conviction. Justice Lewis and Justice Lumpkin concurred with the decision, while Justice Smith joined in the conclusion.

Decision

As to Count 1, First Degree Felony Murder, the Judgment and Sentence of the district court is AFFIRMED. Count 2, First Degree Burglary, is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper use of hypothetical questions during voir dire that denied Appellant his rights to due process and an impartial jury?
• Did the trial court deny Appellant his right to present a defense by excluding a codefendant's statements as hearsay?
• Did the State impermissibly exercise peremptory challenges on the basis of gender?
• Do Appellant's convictions for both felony murder and first degree burglary constitute double jeopardy?
• Does the cumulative effect of all trial errors warrant a new trial?

Findings

• The court did not err regarding the State's use of hypothetical questions during voir dire.
• The trial court did not abuse its discretion by excluding the codefendant's statements as hearsay.
• The prosecutor's peremptory strikes were not impermissibly based on gender.
• The court found that Appellant's convictions for felony murder and burglary constituted double jeopardy, and Count 2 was vacated.

F-2012-622

Oct. 15, 2013

Dewayne Edward Kemp

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Dewayne Edward Kemp, was convicted by a jury in Oklahoma County District Court, Case No. CF-2010-7089, of Count 1, First Degree Felony Murder (21 O.S.Supp.2009, § 701.7(B)) and Count 2, First Degree Burglary (21 O.S.2011, § 1431). On July 11, 2012, the Honorable Cindy H. Truong, District Judge, sentenced him in accordance with the jury’s recommendation to life imprisonment on Count 1 and ten years imprisonment on Count 2, and ordered the sentences to be served concurrently. This appeal followed.

Appellant raises the following propositions of error:
1. The State’s improper use of hypothetical questions during voir dire denied Appellant his rights to due process and an impartial jury.
2. The trial court denied Appellant his right to present a defense by excluding a codefendant’s statements as hearsay.
3. The State impermissibly exercised peremptory challenges on the basis of gender.1
4. Appellant’s convictions for both felony murder and first degree burglary constitute double jeopardy.
5. The cumulative effect of all trial errors warrants a new trial.

After thorough consideration of the propositions and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm in part and vacate in part.

Appellant and two accomplices burglarized a dwelling. During the burglary, the homeowner fatally shot one of the accomplices and injured Appellant. While in jail awaiting trial, Appellant made incriminating statements in phone conversations, which were recorded and played for the jury.

As to Proposition 1, during voir dire the prosecutor offered hypothetical situations to explain how the felony murder rule and the law on accomplice liability expanded culpability for homicides that occurred without premeditation. The record shows several panelists had qualms about these rules. The hypotheticals illuminated legal concepts that were central to the case and helped the parties and the court determine whether the prospective jurors could follow the law. Defense counsel’s objections to the hypotheticals were properly overruled. Proposition 1 is denied.

As to Proposition 2, the trial court denied defense counsel’s request to introduce an unsworn statement, purportedly made by the surviving accomplice, that it was he who had planned the burglary. Appellant offered no specifics about the statement from which the trial court (or this Court) could properly determine its trustworthiness. More fundamentally, Appellant has failed to show the relevance of this information. It did not tend to exculpate him under any recognized legal theory, and exculpatory value is a prerequisite for admissibility. The trial court did not abuse its discretion by excluding this evidence. Proposition 2 is denied.

In Proposition 3, Appellant claims two of the prosecutor’s peremptory strikes violated J.E.B. v. Alabama, 511 U.S. 127, 131, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89 (1994), which bars peremptory removal of prospective jurors based solely on gender. Appellant’s only gender-based challenge came with State’s Strike No. 8. The prosecutor gave the same explanations for both panelists; the explanations made reference to gender but did not rely exclusively on that fact. Absent a showing of pretextual motive, the explanation for a peremptory strike is not objectionable even if it is based on characteristics that are disproportionately associated with one gender. Furthermore, as to each panelist, the prosecutor offered a second reason, completely gender-neutral, that was relevant to the case, which defense counsel did not further challenge. We afford considerable deference to the trial court’s assessment of whether purposeful discrimination was shown and cannot say that the court’s acceptance of the prosecutor’s explanations was clearly erroneous. Proposition 3 is denied.

As to Proposition 4, Appellant was convicted separately of First Degree Felony Murder in the commission of a First Degree Burglary (Count 1), as well as the burglary itself (Count 2). The elements of Count 2 are entirely subsumed within Count 1. The State concedes that this violates constitutional protections against double jeopardy. Contrary to the State’s position, a double-jeopardy error is not rendered harmless by concurrent sentencing. Accordingly, Appellant’s conviction in Count 2, First Degree Burglary, is VACATED on Double Jeopardy grounds.

As to Proposition 5, because we have remedied the only identifiable error (Proposition 4), there can be no error by accumulation. Proposition 5 is denied.

DECISION

As to Count 1, First Degree Felony Murder, the Judgment and Sentence of the district court is AFFIRMED. Count 2, First Degree Burglary, is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

**APPEARANCES AT TRIAL**
DAVID BEDFORD
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR DEFENDANT

**APPEARANCES ON APPEAL**
PAUL M. CLARK
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

ADAM KALLSNICK
E. SCOTT PRUITT
JUSTIN KEMP
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT DISTRICT ATTORNEYS
LORI S. CARTER
313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, J.
LEWIS, P.J.: CONCUR IN RESULTS
SMITH, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
A. JOHNSON, J.: CONCUR

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Footnotes:

1. 21 O.S.Supp.2009, § 701.7(B)
2. 21 O.S.2011, § 1431
3. 21 O.S. § 13.1(1), (12)
4. 12 O.S.2011, § 2804(B)(3)
5. 21 O.S.2011, § 172
6. J.E.B. v. Alabama, 511 U.S. 127, 131, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89 (1994)
7. Cruse v. State, 2003 OK CR 8, I 7, 67 P.3d 920, 922-23
8. Snyder U. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207-08 (2008)
9. Kinchion v. State, 2003 OK CR 28, "I 11, 81 P.3d 681, 684
10. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed. 2d 715 (1980)
11. Blockburger U. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932)
12. Perry U. State, 1993 OK CR 5, I 7, 853 P.2d 198, 200-01
13. Ball V. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985)
14. Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(B) (2009) - First Degree Felony Murder
• Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary
• Okla. Stat. tit. 21 § 13.1(1), (12) - Parole Eligibility
• Okla. Stat. tit. 12 § 2804(B)(3) (2011) - Hearsay Exceptions
• Okla. Stat. tit. 21 § 172 (2011) - Culpability in Commission of Crimes
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Thompson v. State, 2007 OK CR 38, I 33, 169 P.3d 1198, 1208-09.
• Cooper v. State, 1983 OK CR 154, I 9, 671 P.2d 1168, 1173.
• J.E.B. v. Alabama, 511 U.S. 127, 131, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89 (1994).
• Cruse v. State, 2003 OK CR 8, I 7, 67 P.3d 920, 922-23.
• Kinchion v. State, 2003 OK CR 28, I 11, 81 P.3d 681, 684.
• Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980).
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932).
• Perry v. State, 1993 OK CR 5, I 7, 853 P.2d 198, 200-01.
• Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985).
• Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627.