The trial of a man accused of murder when his accomplice was killed during a home invasion was scheduled to begin last week, but it has once again been delayed. The trial of Dustin Louis Stewart, 31, has been delayed four times already, and the newest trial date is scheduled for January--more than three years after the incident which led to his murder charge.
Home Invader Shot and Killed
Stewart was an accomplice to an attempted break-in on New Year's Eve 2011 at the Blanchard home of then 18-year-old Sarah McKinley and her 3-month old son. Stewart admits that he and his friend Justin Martin, 24 at the time, were trying to break in to the home to find drugs, knowing that McKinley's husband had died of lung cancer only a week before, and assuming there were prescription narcotics in the home. However, Stewart says he waited outside while Martin tried to force his way into the home.
McKinley called 9-1-1 as Martin, who was armed with a 12-inch knife, tried to push through the barricaded front door. The young mother grabbed a pistol and a 12-gauge shotgun and asked the dispatcher, "I've got two guns in my hand -- is it okay to shoot him if he comes in this door?"
The dispatcher responded, "I can't tell you that you can do that but you do what you have to do to protect your baby."
As Martin kicked in the door to McKinley's home, she fired, killing the intruder.
During McKinley's 9-1-1 call, Martin's accomplice, Dustin Stewart, also called police. He said,"My name is Dusty Stewart and I think it was my friend that got shot. I don't know what he was trying to do. I stood at the fence and told him to come on and I don't know what he did."
McKinley's shooting of the intruder was deemed justifiable homicide, and she faced no criminal charges under Oklahoma self defense laws. Stewart, however, is not so lucky.
Murder Charges for Accomplice
Even though he was not the shooter, and by his accounts, he was not even helping Martin to break into McKinley's home, Stewart has been charged with first degree murder under an Oklahoma law that says an accomplice can be charged thus if a death occurs during the commission of certain violent felonies.
Title 21 Section 701.7 states:
"A person also 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 murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances or synthetic controlled substances, trafficking in illegal drugs, or manufacturing or attempting to manufacture a controlled dangerous substance."
A home invasion is first degree burglary, and if it is determined that Stewart was, in fact, an accomplice to the burglary rather than a bystander trying to convince his friend to leave, he will likely be convicted of murder in the first degree and face a maximum sentence of life in prison.