12 P.3d 20 (Okla.Crim.App. 2000), F-98-703, Young v. State

Docket NºF-98-703.
Citation12 P.3d 20
Party NameKevin YOUNG, Appellant, v. STATE of Oklahoma, Appellee.
Case DateSeptember 06, 2000
CourtUnited States State Court of Criminal Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

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12 P.3d 20 (Okla.Crim.App. 2000)

Kevin YOUNG, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-98-703.

Court of Criminal Appeals of Oklahoma.

September 6, 2000

As Corrected on Denial of Rehearing Oct. 26, 2000.

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Barry Albert, Vince Antonioli, Asst. Public Defenders, Oklahoma City, for Defendant at trial.

Fern Smith, Philip Anderson, Assistant District Attorneys, Oklahoma City, for the State at trial.

Carolyn L. Merritt, Asst. Public Defender, Oklahoma City, For Appellant on appeal.

W.A. Drew Edmondson, Attorney General, William L. Humes, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

JOHNSON, Judge:

¶ 1 Kevin Young was tried by a jury in the District Court of Oklahoma County, Case No. CF 96-2963, before the Honorable Nancy L. Coats, District Judge.1 Young was found guilty of (Count I) Murder in the First Degree (malice aforethought), in violation of 21 O.S.1991, § 701.7(A); (Count II) Attempted Robbery with Firearms, in violation of 21 O.S.1991, § 801; and (Count III) Shooting with Intent to Kill, in violation of 21 O.S.1991, § 652. The jury fixed punishment at twenty (20) years imprisonment on Count II and thirty (30) years imprisonment on Count III. After finding the existence of three aggravating circumstances, the jury set punishment at death on Count I.2 The trial court sentenced accordingly and ordered the sentences imposed on Counts II and III be served concurrently with each other and consecutively to the death sentence. Appellant thereafter filed his appeal.3

¶ 2 This case arose from a shooting during an attempted robbery at the Charles Steak House in Oklahoma City in the early morning hours of May 14, 1996, where Joseph Sutton ran a gambling operation in a back room. Sometime after midnight on May 14, 1996, two African-American men, armed with guns, entered the Charles Steak House, and walked into the gaming room.

¶ 3 Karl Robinson testified the taller man said "[a]ll you SOBs are going to die." George Edwards heard the same man say he was going to kill everyone. When Edwards saw the taller man pull a gun, Edwards grabbed the gun and held it in the air while the taller man fired it repeatedly until the gun was emptied. At this same time, the shorter of the two men pulled his gun, pointed it in the air and said "[w]e come for the money." Joseph Sutton threw something on the floor, pulled his own gun, pointed it at the shorter man and tried to fire it, but a bullet was not chambered and the gun did not fire. The shorter man then fired on Sutton.

¶ 4 Sutton was shot four times and died as a result of a gunshot wound to his abdomen. Quintin Battle, who was in between Sutton and the shorter gunman, was shot twice during the gunfire. Battle testified he dropped to the floor when the shooting began, because he feared he would be shot and killed. George Edwards suffered powder burns on his arms and face while struggling with the taller gunman.

¶ 5 Both gunmen ran from the Charles Steak House after the shooting. One ran down North Lottie, away from the restaurant, holding his arm.

¶ 6 Within minutes of the shooting, Appellant arrived at Presbyterian Hospital emergency

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room with three gunshot wounds.4 He told emergency personnel his name was "Roy Brown." He had a bullet in his left chest, another bullet wound to his right thigh, and a third grazing wound to his right shoulder. Hospital personnel reported the gunshot victim to the police.

¶ 7 Officer Cook, who was responding to the Charles Steak House shooting, heard dispatch report a gunshot victim at Presbyterian Hospital. He went to the hospital and asked "Roy Brown" if he was at the Charles Steak House. Appellant told officer Cook he had not been there and said he was shot near a 7-11 convenience store and an Autozone store. Appellant told officer Cook he rode a bus to the hospital and did not know where he was shot because he was from out of state. Officer Cook testified he knew Metro Transit buses did not operate after midnight and he suspected "Roy Brown" had in fact been involved in the Charles Steak House shooting. He contacted officers at the shooting scene and asked if any witnesses there could identify the shooter.

¶ 8 Appellant also spoke with Officer Smith at the hospital and gave him a different date of birth than he gave officer Cook. He told officer Smith he was shot near a 7-11 convenience store and an Autozone store, but said he did not know how he got to the hospital.

¶ 9 Within thirty (30) minutes of the shooting, Karl Robinson and Ben Griffin were brought separately to the hospital to see if they could identify the person in the emergency room. Karl Robinson saw Appellant lying on a gurney. Robinson was unsure whether Appellant was one of the gunmen until he saw Appellant's shirt on the floor. He told the officers the shirt looked the same. Robinson was unable to identify Appellant at the preliminary hearing, but positively identified Appellant at trial.

¶ 10 Ben Griffin thought Appellant was one of the shooters and asked to see the shirt he was wearing. After he saw the shirt, he too affirmatively identified Appellant as one of the shooters.5 Griffin could not identify Appellant at preliminary hearing and did not try to identify him at trial.

¶ 11 No weapons were recovered at the scene of the shooting. However, a .38 caliber Smith and Wesson revolver6 containing six spent shell casings was found in a trash can about two blocks from Presbyterian Hospital. The woman who found the gun heard someone drop it in her curbside garbage can around 12:30 a.m. on May 14, 1996. The deceased's Sphinx .380 semiautomatic pistol7 was given to police officers by the owner of the restaurant a couple of days after the shooting. The owner obtained the gun from the restaurant manager who had hidden the gun and taken the deceased's wallet and money from his pockets immediately after the shooting. Police officers also recovered a .9mm handgun and $500.00 from a van belonging to Ben Griffin.

¶ 12 Ballistics and firearms testing were done on the recovered weapons, projectiles and casings found at the scene and recovered from the deceased. Four full metal jacket bullets recovered from the shooting scene were .380 caliber and were determined to have been fired from the deceased's gun. Eight .380 caliber auto fired casings were found to be consistent with having been fired from the deceased's gun. Two lead projectiles found at the scene had insufficient markings for ballistics comparison. Two copper jacket projectiles could not have been fired from any gun recovered. One projectile found at the scene was consistent with having been fired from the .38 caliber Smith and Wesson revolver that was found in the trash can.8 Two bullets recovered from the deceased were consistent with having been fired from the .38 caliber Smith and Wesson revolver. All six casings found in the .38 caliber Smith and Wesson were positively identified as having been fired from that gun.

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¶ 13 Blood samples were collected from the shooting scene and were also taken from the deceased Joseph Sutton, Quintin Battle, the codefendant Antwuan Jackson, and from Appellant. Of three blood swabbings collected from the scene, one positively matched the deceased's blood sample, another did not match any known sample, and the third positively matched Appellant's blood sample. DNA testing confirmed a positive match of the blood sample collected from the shooting scene with Appellant's blood sample. Two DNA forensic chemists testified to the positive match, and one estimated the combined probability results of a match would occur in the African-American population only one in one hundred thirty-two million times (1:132,000,000).

¶ 14 Around 6:30 a.m. on May 14th, Appellant was released to Oklahoma City police custody. A bullet remained in his back left side, below his shoulder blades. Over a year later, Appellant saw the county jail doctor9 complaining of pain and drainage from where the bullet was embedded. The doctor prescribed antibiotics, but Appellant never returned to have the bullet removed. Dr. Jett, a surgeon, saw Appellant about four weeks later for the purpose of removing the bullet,10 and determined the bullet was no longer there. Dr. Jett testified a fresh wound was present where the bullet should have been.

¶ 15 During second stage proceedings, the State introduced a certified copy of a Judgment and Sentence from California, reflecting Appellant's previous felony convictions from January 22, 1991, for shooting into an occupied vehicle, second degree robbery and assault with a firearm. Appellant stipulated he was the defendant shown on the Judgment and Sentence, and the convictions were final, felony convictions.

¶ 16 Tashella Sutton-Dickerson, the deceased's daughter, gave a victim impact statement. Further, an employee of the Oklahoma County Detention Center testified Appellant had a clean behavior record at the county jail. Phillip Murphy, Ph.D., a licensed clinical psychologist, conducted psychological tests on Appellant and concluded Appellant was "clearly competent to stand trial," was "at least normal if not somewhat above average intellect," and showed no sign of brain damage or psychiatric disorders. He described Appellant as a fairly easygoing, well-dispositioned individual and said he did not think Appellant was antisocial despite his criminal history. In Dr. Murphy's opinion, Appellant would not be a continuing threat to society or a danger to society in a structured prison environment. Appellant's sister testified about...

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62 practice notes
  • 93 P.3d 41 (Okla.Crim.App. 2004), D-2002-834, Johnson v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 15, 2004
    ...to determine whether the prosecutor had a race-neutral reason for excusing a black juror and in Young v. State, 2000 OK CR 17,¶ ¶ 104-05, 12 P.3d 20, 47, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001), this Court remanded the case to the district court for an evidentia......
  • Rethinking the timing of capital clemency.
    • United States
    • Michigan Law Review Vol. 113 Nbr. 1, October - October 2014
    • October 1, 2014
    ...(discussing juror statements during clemency hearing); see also McNutt & Bisbee, supra note 122 (noting that the clemency appeal "hinged on jury"). (124.) Bisbee, supra note 123 (quoting the attorney general as stating that "the [clemency] hearing was the first time that information was prese......
  • 126 P.3d 646 (Okla.Crim.App. 2005), PCD-2002-974, Lambert v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • December 7, 2005
    ...to turn himself in but was arrested first, and described his arrest. [39] Murphy v. State, 2003 OK CR 6, 66 P.3d 456, 458; Young¸ 12 P.3d at 48. [1] Appellate jurisdiction is that power and jurisdiction to review and correct those proceedings of inferior courts brought for determination in ......
  • 467 P.3d 693 (Okla.Crim.App. 2020), F-2018-870, Bever v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 25, 2020
    ...objections. In those instances where the objections were sustained, any error was cured. Young v. State, 2000 OK CR 17, ¶50, 12 P.3d 20, 37-38. Other objections were overruled by the trial court, and our review is therefore for an abuse of discretion. Certain other ......
  • Request a trial to view additional results
61 cases
  • 93 P.3d 41 (Okla.Crim.App. 2004), D-2002-834, Johnson v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 15, 2004
    ...to determine whether the prosecutor had a race-neutral reason for excusing a black juror and in Young v. State, 2000 OK CR 17,¶ ¶ 104-05, 12 P.3d 20, 47, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001), this Court remanded the case to the district court for an evidentia......
  • 126 P.3d 646 (Okla.Crim.App. 2005), PCD-2002-974, Lambert v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • December 7, 2005
    ...to turn himself in but was arrested first, and described his arrest. [39] Murphy v. State, 2003 OK CR 6, 66 P.3d 456, 458; Young¸ 12 P.3d at 48. [1] Appellate jurisdiction is that power and jurisdiction to review and correct those proceedings of inferior courts brought for determination in ......
  • 467 P.3d 693 (Okla.Crim.App. 2020), F-2018-870, Bever v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 25, 2020
    ...objections. In those instances where the objections were sustained, any error was cured. Young v. State, 2000 OK CR 17, ¶50, 12 P.3d 20, 37-38. Other objections were overruled by the trial court, and our review is therefore for an abuse of discretion. Certain other ......
  • 400 P.3d 875 (Okla.App. 2017), F-2015-939, Baird v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 1, 2017
    ...CR 29, ¶ 74, 268 P.3d at 111. This analysis requires examination of the entire record. Young v. State, 2000 OK CR 17, ¶ 35, 12 P.3d 20, 35. " This Court will accept all reasonable inferences and credibility choices that tend to support the verdict." Davis,......
  • Request a trial to view additional results
1 books & journal articles
  • Rethinking the timing of capital clemency.
    • United States
    • Michigan Law Review Vol. 113 Nbr. 1, October - October 2014
    • October 1, 2014
    ...(discussing juror statements during clemency hearing); see also McNutt & Bisbee, supra note 122 (noting that the clemency appeal "hinged on jury"). (124.) Bisbee, supra note 123 (quoting the attorney general as stating that "the [clemency] hearing was the first time that information was prese......