Felony murder charges in a potentially precedent-setting case will now be mulled by District Judge Robert Fairchild.
Dustin Welch and Maurice Murphy may have been racing for the door when their friend Jimmy Lee Johnson was shot and killed by a resident of the home they allegedly robbed.
But Welch and Murphy, both 18, as well as James Hall, 32, should be held responsible for Johnson's death in accordance with felony murder rules -- a death that occurs during the commission of a felony, Assistant Dist. Atty. Mark Knight argued during a hearing Monday in Douglas County District Court.
Attorneys for the three suspects disagreed.
Over the next few weeks, District Judge Robert Fairchild will decide who's right. Fairchild will rule on separate motions to dismiss the first-degree murder charges before Jan. 25, when Murphy's trial is set to begin.
At issue is the interpretation of the part of the murder statute that allows for prosecution of co-conspirators when a fellow suspect is killed during a felony act such as robbery.
Knight said the law is designed to prevent felonies from occurring, and being a part of the crime should be enough to implicate them in Johnson's death. Defense attorneys argued the law requires the death to occur as a direct result of the felony, not after the felony and at the hands of another.
Johnson, 19, was part of a group that on May 27 allegedly broke into the house at 1637 Kenwood and robbed the residents. One of the residents, Trampas Hutchinson, 19, grabbed his .22-caliber pistol from his room and shot Johnson as they tried to leave.
By planning and executing the robbery, Knight said, the group set in motion a chain of events that caused Johnson's death.
"Mr. Hutchinson was protecting himself," Knight said. "He thought it was necessary. Whether anyone else thought it was necessary is really not the point."
Hall's attorney, Kris Savage of the Northeast Kansas Conflicts Office in Topeka, called the murder charge a "travesty." Hutchinson, she said, fired five times at someone who posed no threat.
"It was an act of revenge, not protection," Savage said.
Welch's attorney, John Frydman, urged Fairchild to consider the implications of his decision.
"We have to look at what Kansas is going to do with crimes like this," Frydman said. "The felony had ended. If Mr. Hutchinson had left his house and shot them in their car, I don't think the state would argue that's felony murder."
Citing an earlier case in the state in which co-conspirators were charged after a fire they started killed their accomplices, Murphy's attorney, Kathleen Downey, said the trio's alleged crimes by contrast did not lead to Johnson's death.
"One of the victims fought back," she said.
In addition to the murder charges, Welch and Murphy are facing five charges, including aggravated robbery and kidnapping. Hall is charged with aiding and abetting the crimes and conspiracy to commit aggravated robbery.
-- Matt Gowen's phone message number is 832-7222. His e-mail address is email@example.com.