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Kevin
Christopher KINCY
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
March 26,
1993
Date
of arrest:
April 6,
1993
Date of birth: January 31,
1968
Victim profile: Jerome
Samuel Harville (male, 31)
Method of murder:
Shooting (.25-caliber revolver)
Location: Harris County, Texas, USA
Status: Executed
by lethal injection in Texas on March 29,
2006
Summary:
Police discovered the body of Jerome Harville in the bedroom of his
home. Harville had been fatally shot in the head with a .25 caliber
gun and stabbed several times.
His home had been ransacked and a large amount of
property had been taken, including his Honda Accord, pagers, stereo
equipment, a television, a microwave oven, furniture, and a Ruger 9
mm pistol.
A witness testified that Kincy called her after
the murder and told her he had shot Harville him in the head and put
a pillow over his head and that Kincy’s cousin, Charlotte Kincy,
also laughed and said she had stabbed Harville.
Police later recovered the stolen 9mm weapon at a
pawn shop, pawned by a friend of Kincy's.
Eleven days later, an FBI agent spotted Kevin
Kincy speeding in Harville’s Honda Accord on Interstate 10 and Kincy
was arrested after a high speed chase.
Charlotte Kinsey gave a complete confession, pled
guilty and was sentenced to 40 years imprisonment.
"I love my children. I love my family. That's it."
ClarkProsecutor.org
Texas Department of Criminal
Justice
Inmate: Kevin Christopher Kincy
Date of Birth: 01/31/68
TDCJ#: 999179
Date Received: 01/19/96
Education: 12 years
Occupation: Roughneck
Date of Offense: 03/26/93
County of Conviction: Harris County
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5 ft 10 in
Weight: 140
Texas Attorney General
Media Advisory
Monday, March 27, 2006
Kevin Kincy Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Kevin Christopher Kincy, who
is scheduled to be executed after 6 p.m. Wednesday, March 29, 2006.
Kincy was sentenced to death for the capital
murder of Jerome Harville in his Houston home. The evidence
presented at trial showed the following:
FACTS OF THE CRIME
On March 26, 1993, co-workers of Jerome Harville
became concerned when he did not show up at work and could not be
reached at home or by pager.
They drove by his Houston house in the late
afternoon and when there was no answer at the door, they peered into
the house through a window.
They observed that the furniture was in disarray
and contacted the sheriff’s department. A deputy entered the house
through the unlatched front door and discovered Harville’s body in
the bedroom.
Harville had been fatally shot in the head with a
.25 caliber gun and stabbed several times. His home had been
ransacked and a large amount of property had been taken, including
his Honda Accord, pagers, stereo equipment, a television, a
microwave oven, furniture, and a Ruger 9 mm pistol.
Police found two .25-caliber shell casings near
the body. Although no suspect fingerprints were found, police
discovered small dots or impressions on some of the furniture in the
house in a pattern similar to the rubber or plastic bumps found on
the bottom of some types of gloves. There appeared to be no forced
entry.
A witness testified that Kincy called her after
the murder and told her he had “won a lot of money,” a 9mm gun and a
car at Harville’s house. The witness said Kincy laughed and said he
had come in, surprised the victim, shot him in the head and put a
pillow over his head and that Kincy’s cousin, Charlotte Kincy, also
laughed and said she had stabbed Harville.
Police later recovered the stolen 9mm weapon at a
pawn shop. They traced the weapon back to John Byrom, a friend of
Kincy. Byrom testified Kincy asked him to hold the 9mm for him.
Kincy told Byrom that he had taken the 9mm from a
house where he had killed a man. Byrom agreed to hold the gun, but
instead pawned the gun. The police also recovered the murder weapon,
a .25-caliber pistol.
Further, when police officers executed a search
warrant at Kincy’s apartment, they found a magazine for a .25-caliber
pistol and three white gloves with orange raised dots which appeared
to match the dot-like impressions found on furniture at the murder
scene.
On April 6, 1993, an FBI agent spotted Kevin
Kincy speeding in Harville’s Honda Accord on Interstate 10 near the
Louisiana border. Police arrested Kincy after a high-speed chase
into Louisiana.
PROCEDURAL HISTORY
On July 26, 1993, Kincy was indicted by a Harris
County grand jury for the capital murder of Jerome Harville.
A jury found him guilty of capital murder, and on
Nov. 2, 1995, after a separate punishment hearing, the court
assessed Kincy’s punishment at death.
Kincy appealed his conviction and sentence to the
Texas Court of Criminal Appeals, which affirmed the conviction and
sentence on January 21, 1998.
Kincy filed a state application for writ of
habeas corpus in the trial court on July 20, 1998. The trial court
then entered findings of fact and conclusions of law recommending
that Kincy be denied relief.
The Texas Court of Criminal Appeals adopted the
trial court’s findings and conclusions and denied relief on November
21, 2001.
Thereafter, Kincy filed a federal habeas corpus
petition in a Houston federal district court on August 29, 2002.
On June 19, 2003, the district court denied
Kincy’s federal writ petition. Kincy then requested permission to
appeal from the 5th U.S. Circuit Court of Appeals.
On February 25, 2004, the 5th Circuit Court
denied Kincy permission to appeal. Subsequently, Kincy filed a
petition for writ of certiorari in the U.S. Supreme Court, but the
Court denied certiorari review on October 4, 2004.
PRIOR CRIMINAL HISTORY AND EVIDENCE OF FUTURE
DANGEROUSNESS
The State showed that Kincy had a criminal past
that included convictions for possession of marijuana, theft,
delivery of cocaine, burglary of a motor vehicle, attempted murder,
and a federal charge of unlawful transportation in interstate
commerce of a stolen motor vehicle.
The federal unlawful transportation charge is
Kincy’s conviction for stealing Harville’s car and leading police on
the high speed chase between Texas and Louisiana.
The State also showed that Kincy had an extremely
poor prison disciplinary history. Specifically, Kincy had committed
assaults on officers and other inmates and engaged in sexual
misconduct. Kincy had been disciplined over thirty times for
violating institution rules.
Jeff Miller, an officer with the Houston Police
Department, testified that on March 14, 1993, he clocked Kincy on
his radar gun speeding and pulled him over.
When he walked up to the car, Kincy reached under
the seats. Miller told Kincy to stop doing that and asked Kincy what
he was looking for. Kincy said that he was looking for his driver’s
license. Kincy then stepped out of the car and started to reach
under the seat again.
Miller prevented Kincy from doing so and placed
Kincy in his police car. Miller then looked under the front seat of
Kincy’s car and found a loaded .25 caliber pistol and three small
envelopes of marijuana. Kincy was charged with felony possession of
a firearm for this offense.
Terskisha Dawson testified that when Kincy took
her and Christie Durham to a Chinese restaurant after Harville’s
murder, Kincy was in possession of the 9mm Ruger.
As they were leaving the restaurant, some men
outside made flirtatious comments and sounds toward Dawson and
Durham. Kincy became angry, turned around, lifted up his shirt to
show the men the gun, and stated that they better not say or do
anything or he would shoot them.
Dawson further testified that she later saw Kincy
at Westwood Mall in possession of the gun. Kincy, who was in his car
in the parking lot, pointed the gun out the window and up into the
air, shot 3-5 times, and drove off at high speed. Several people
were in the parking lot at the time.
Finally, John Byrom testified that Kincy gave him
the 9mm Ruger to have it fitted for a silencer. Kincy gave Byrom
$100 up front for the silencer and said that if the job was
successful, “there’d be plenty more guns and a lot of money to be
made.”
Kincy also told Byrom that he was going to rob
some dope houses, one in Louisiana and one in Houston, and needed a
getaway driver. Kincy asked Byrom to be the driver, but Byrom
declined.
Houstonian caught in slaying victim's car
executed
By Michael Graczyk -
Houston Chronicle
Associated Press - March 29, 2006
HUNTSVILLE — A former pizza delivery man with an
extensive criminal record was executed today for the robbery and
slaying of a Houston-area man 13 years ago. In a brief statement,
Kevin Kincy thanked his friends, supporters and family and mentioned
several of them by name. "I love my children. I love my family," he
said. "That's it."
In the seconds before the drugs took effect,
Kincy pursed his lips into a kiss and smiled and nodded to a Swiss
woman who married him by proxy last year. The woman and a female
companion from Germany wept. Kincy had met his wife on a death
penalty Web site that seeks pen pals.
Five relatives of his murder victim watched
through an adjacent window. Kincy made only a brief glance at them
before the drugs were administered. He was pronounced dead at 6:26
p.m., eight minutes after the lethal drugs began to flow.
Kincy, 38, was on parole for delivery of cocaine
when he was arrested in Louisiana following a police chase for the
stabbing and shooting of Jerome Harville at his home outside Jacinto
City.
Kincy, from Houston, was the seventh convicted
killer executed this year in Texas, the nation's busiest capital
punishment state. At least a dozen more inmates have death dates in
the coming months, including three in April and five in May.
Kincy's lawyers, hoping to block the lethal
injection, went to the U.S. Supreme Court with an appeal challenging
the drugs used in the execution as unconstitutionally cruel.
Like similar appeals in recent Texas death
penalty cases, however, the high court rejected the argument in a
ruling about 1 1/2 hours before Kincy's scheduled punishment. "It's
not very good," attorney Alex Calhoun had said of his prospects. "The
whole point of appeals is maybe there's that one case that catches
the Supreme Court's attention."
Kincy had the attention of Texas Department of
Criminal Justice officials, who scrapped media interviews with him
last week after they said he threatened prison staff at the Polunsky
Unit near Livingston, which includes death row.
Early today, Kincy spent time with his mother,
Dorothy Robertson, before his transfer to the Huntsville Unit where
executions are carried out.
Texas Department of Public Safety troopers were
added to the normal security from the prison system to beef up the
law enforcement presence for Kincy's trip to Huntsville. There were
no unusual incidents and Kincy was reported as very quiet in a
holding cell adjacent to the death chamber in the hours before
scheduled punishment.
The visit with his mother marked the first time
he had seen her since she was arrested last summer. Polk County
authorities pulled her over after she left the prison and found
about a pound of marijuana in her van. She contended she was duped
by someone who disguised the package as a gift and the arrest was a
continuation of harassment against her and her son.
Harville, the 31-year-old slaying victim, had
worked for three years as an industrial hygienist at an Exxon
refinery in Baytown and was the former boyfriend of Charlotte Kincy,
the prisoner's cousin.
According to a witness at Kincy's trial, the
cousins hatched a plan where Harville would be seduced and
distracted by his old girlfriend, allowing Kevin Kincy to sneak into
the home and shoot him. Evidence showed that after Harville was shot,
Charlotte Kincy stabbed him several times.
The pair then ransacked his place and stole
numerous items, including furniture and his car. Colleagues at Exxon
became worried when Harville didn't show up for work and went to his
house. When they saw it had been trashed, they called police, who
found his body.
About two weeks later, an FBI agent ran the
plates on a Honda Accord traveling about 100 mph on Interstate 10
east of Beaumont and determined it was Harville's stolen vehicle.
The ensuing chase covered some 30 miles and ended in Westlake, La.,
with a flat tire after Kincy crashed through a police roadblock as
officers fired at him.
Kincy denied any knowledge of the Harville
killing, but items he threw out the window of the speeding car led
police to his cousin, Charlotte. She pleaded to a 40-year prison
term.
At the time of his arrest, Kincy was free on bond
on a weapons charge. He also was on parole after a cocaine delivery
conviction and had other convictions beginning at age 18 for
marijuana possession, theft and burglary.
During his time in prison, records showed he had
more than 30 disciplinary violations. "They can hang him," Hosea
Harville, 83, of St. Louis, the murder victim's father, told the
Houston Chronicle. "He killed a good man."
Next on the execution schedule is Pedro Sosa, set
to die April 25 for the 1983 fatal shooting of a Wilson County
sheriff's deputy.
Chase led to death row
Killer thought he got
away with murder, but then he was caught in the victim's car
By Allan Turner -
Houston Chronicle
March 27, 2006
Hours after the killing, Kevin Kincy gloated as
he watched a TV report of his crime. Buoyed by the news that police
were hunting a white suspect — Kincy is black — the young career
criminal brashly ticked off a list of what he had done right during
the bloody robbery-murder of his cousin's boyfriend.
He failed to consider, though, what he was about
to do wrong: catch the attention of an East Texas FBI agent by
speeding through Vidor at 90 mph in the dead man's car.
The April 6, 1993, traffic offense on Interstate
10 quickly grew into a 25-mile chase with speeds reaching 130 mph.
By the time it ended at a police roadblock near Sulphur, La., Kincy
irrevocably had detoured onto a legal road that would take him to
Texas' death row.
Kincy, 38, is scheduled to be executed Wednesday
for the March 26, 1993, murder of Jerome Harville, a 32-year-old
Exxon industrial hygienist. Kincy's attorney, Alexander Calhoun of
Austin, last week filed federal appeals seeking to save his client
by arguing that chemicals used in executions constitute cruel and
unusual punishment.
His is the second of two executions scheduled on
consecutive nights this week. Raymond DeLeon Martinez is set to die
Tuesday for a 1983 murder in Houston. "They can hang him,"
Harville's father, Hosea Harville, 83, of St. Louis said of his
son's killer in a telephone interview. "They need to drag him right
now. He killed a good man. I put my son through school. He went to
church. He was just starting out. That man took advantage of him."
Kincy's mother, Dorothy Robertson, 49, insists
that her son is not the killer. "Absolutely not. My son truly would
never do something like that unless he was forced or dragged. It
would take something terrible to make him do something like that,"
she said. "Kevin is too compassionate."
Meant as payback
According to trial testimony, Kincy and his
cousin, Charlotte Kincy, 46, plotted the burglary and murder to "pay
back" Harville, who was described as the woman's former boyfriend.
Charlotte Kincy is serving a 40-year sentence for aggravated robbery
in the case.
Testimony showed that Charlotte Kincy intended to
distract Harville while her cousin slipped into the victim's house
to rob and shoot him.
When Harville failed to appear at work the next
day, co-workers went to his home to investigate. When no one
responded to knocks on the door, Harville's colleagues borrowed a
ladder, peeped through a window and found that the house had been
ransacked. Sheriff's officers called to the scene found Harville's
body on the floor. He had been shot in the head.
A witness testified that Kincy later boasted of
the killing and flaunted a 9 mm pistol stolen from the victim.
Charlotte Kincy bragged of stabbing the man. Stolen from the home
were stereo gear, a television, furniture, a microwave oven and a
late-model Honda sedan.
Early, unsuccessful appeals for Kincy argued that
Charlotte Kincy was prepared to testify that her cousin killed
Harville in self-defense, but she never was called to the stand.
When called to testify during the punishment phase, she sought Fifth
Amendment protection against self-incrimination.
State prison officials last week canceled a
scheduled media interview with Kincy, contending that he had
threatened the safety of prison personnel. Attorney Calhoun said
Kincy is under heavy guard in solitary confinement. "I have not had
the opportunity to get to the bottom of it," Calhoun wrote in an
e-mail. "My understanding is that there have been no hearings on any
of the alleged threats, and therefore it is virtually impossible to
determine whether TDCJ's allegations — if there even are allegations
— have any actual factual basis." Robertson said her son continually
has been harassed by prison employees while on death row.
"They call this a criminal justice system," she
said. "There is no justice. This system fails everyone so severely."
Robertson said she has not been allowed to visit her son since
August, when she was arrested on a charge that she possessed
marijuana on state prison property.
Court documents in Polk County, home of the
Polunsky Unit where Kincy is incarcerated, note the woman was
arrested during a U.S. 59 traffic stop after she left the prison
property. A search of her van turned up about a pound of the drug,
authorities contend.
Was married by proxy
Robertson has been indicted in the felony case.
If convicted, she could be sentenced to as many as 10 years in
prison and/or fined $10,000. Robertson said her son, who at one
point aspired to be a youth counselor, has corresponded with, and
mentored, hundreds of people since he was imprisoned for Harville's
murder.
In a late-1990s Web posting soliciting pen pals,
Kincy offered a brief biography to potential supporters. "I enjoy
all types of music, writing and traveling," he wrote. "In fact, my
sister and I went to school in London some 14 years ago. The
experience was wonderful. Sometimes I wish that I never came back.
... I love all people."
Among his correspondents was Barbara Raval, now
41, a divorced mother of three daughters who began writing Kincy in
1997 and married him by proxy in January 2005. "He's an adorable
person," she said last week. "You just have to love him. He's so
much fun. He's just a good man."
Raval, a Swiss citizen, charged that Kinsy
received inadequate counsel and, like some other Texas inmates, is "being
fast-tracked to the gurney by having attorneys that may not be
competent to handle a death penalty case."
Robertson argued that Kincy's contentions that he
was at work when the murder was committed and that prosecutors
coerced a key witness to perjure himself never received a hearing by
jurors or appeals judges.
History of crime
Prison records indicate Kincy was imprisoned in
July 1986 on a 10-year Harris County sentence for attempted murder.
He was released on shock probation four months later. (Under shock
probation, a defendant who is considered unlikely to repeat the
crime is released after doing a short stint behind bars.)
In February 1987, he was returned to prison on a
six-year Harris County sentence for burglary of a motor vehicle. He
was released on mandatory supervision in December 1988.
In October 1989, he began serving a 15-year
Harris County sentence for delivery of a controlled substance. He
was paroled in December 1991. Kincy was convicted of murdering
Harville in October 1995.
In the earlier cases, Robertson contended, Kincy
had been an unwilling participant in crimes perpetrated by a group
of friends. "He got entangled with a group of boys, and they were
all charged with the crime," she said." ... He hung with the wrong
gang and he couldn't change their minds." The Rev. John Lasseigne,
pastor of St. John the Baptist Catholic Church in the Rio Grande
Valley community of San Juan, said he paid Kincy death-row visits
seven or eight times between 1999 and 2002.
"He was very courteous and well-spoken, even
upbeat when I visited him," Lasseigne said. "It was a very
unexpected attitude from a death row inmate. He recently e-mailed me
and said he expected to beat this death sentence. He showed a
positive outlook. I can't say that I share his optimism." Lasseigne
said Kincy was "always a little vague" about the extent of his
involvement in Harville's murder. "He was involved to some extent,"
Lasseigne said, "but he clearly does not believe his involvement
rose to the capital punishment level."
Houston man set to be executed for refinery
worker's death
By Juan Lozano -
Fort Worth Star-Telegram
Associated Press - Tue, Mar. 28, 2006
HOUSTON - The robbery plan was simple but brutal.
Jerome Harville would be distracted by his girlfriend while her
cousin sneaked into the Exxon employee's home. Once inside, the
cousins would kill Harville and ransack the place.
His girlfriend, Charlotte Kincy, stabbed him
several times after her cousin, Kevin Kincy, fatally shot him in the
head. They stole everything from a microwave to Harville's car.
But it was the car that led authorities to Kevin
Kincy after the March 1993 slaying. He was spotted driving it near
Beaumont by an FBI agent about two weeks later. He was arrested
after leading authorities on a high-speed chase into Louisiana.
Kevin Kincy, 38, was convicted of capital murder
and is set to be executed Wednesday night in Huntsville. He would be
the seventh prisoner put to death this year in Texas and the third
this month in the nation's busiest capital punishment state. Another
inmate's execution, which had been set for Tuesday, was delayed last
week.
Julian Ramirez, who prosecuted Kevin Kincy, said
the condemned inmate had no regard for Harville's life. "He had
bragged about killing the victim to a number of people," said
Ramirez, a Harris County prosecutor. "The thing that will always
stand out in my mind is what he said before he shot the victim in
the head. He said, 'You got to go, Jerome.' There was no hesitation,
no second thoughts about it."
Kevin Kincy had a long criminal history,
including convictions for attempted murder and delivering cocaine.
Harville, 31, had worked for three years as an industrial hygienist
at an Exxon refinery in nearby Baytown. Officials said he was well-liked
by co-workers, who called authorities after the punctual employee
failed to show up at the refinery.
After his death, Exxon offered a $5,000 reward
for information on his killer. Kevin Kincy, who a pizza delivery
driver at the time of the crime, was not allowed to grant media
interviews last week after state prison officials said he was a
threat to guards and other personnel.
On Monday, the 5th U.S. Circuit Court of Appeals
denied a request from his attorney, Alexander Calhoun, to delay the
execution by lethal injection because the combination of drugs
constitutes cruel and unusual punishment.
Calhoun has appealed to the U.S. Supreme Court.
Similar appeals this year by four other condemned Texas inmates have
been unsuccessful. "I think there is some merit here," Calhoun said.
"It's not just a frivolous point."
Calhoun said his client has claimed he was
innocent of capital murder in the case. "Mr. Kincy disputes the fact
he planned to even burglarize the home. There was no prior plan to
kill," Calhoun said. In prior appeals, Kincy suggested he acted in
self-defense and that prosecutors coerced two witnesses to lie when
they testified against him at trial. Appeals courts denied these
claims.
Calhoun said Charlotte Kincy was equally
responsible. "Maybe she's more culpable. She suckered the victim
into her web," he said. "That just doesn't look good. If (Kevin
Kincy) has to die, why does she escape that?" Charlotte Kincy
pleaded guilty to aggravated robbery with a deadly weapon and was
sentenced to 40 years in prison.
Ramirez said Kevin Kincy was more culpable
because he fired the fatal shot. "We had a mountain of evidence
against the guy and frankly didn't need her to testify in order to
convict Kevin Kincy," Ramirez said. "She had given a statement
implicating him and her as well in the crime."
Next on the execution schedule is Pedro Sosa,
condemned for the 1983 shooting death of a Wilson County Sheriff's
Department deputy. He is set to be executed April 25.
ProDeathPenalty.com
Kevin Kincy, a former pizza delivery man, was
sentenced to die for the 1993 murder of a Houston area man during a
scheme to rob his home. Kincy had an extensive criminal record when
he was arrested for the robbery and slaying of a Houston-area man 13
years ago.
Kincy was on parole for delivery of cocaine when
he was arrested in Louisiana following a police chase for the
stabbing and shooting of Jerome Harville at his home outside Jacinto
City.
Jerome had worked for three years as an
industrial hygienist at an Exxon refinery in Baytown and was the
former boyfriend of Kevin Kincy's cousin Charlotte Kincy. The
cousins hatched a plan where Jerome Harville would be seduced and
distracted by his old girlfriend, allowing Kevin Kincy to sneak into
the home and shoot him.
Evidence showed that after Harville was shot,
Charlotte Kincy stabbed him several times. The pair then ransacked
his home and stole numerous items, including furniture and his car.
Co-workers at Exxon became worried about Harville
when he failed to show up for work. They went to his house and when
they found it is disarray, they called police, who then found
Jerome's body.
About two weeks after the murder, an FBI agent
ran the plates on a Honda Accord he observed traveling about 100 mph
on Interstate 10 east of Beaumont and discovered that it was Jerome
Harville's stolen car.
A 30 mile police chase ensued, ending in Westlake,
La., when Kincy crashed through a police roadblock as officers fired
at him. Kincy denied any knowledge of the Harville killing, but
items he threw out the window of the speeding car led police to his
cousin, Charlotte. She pleaded to a 40-year prison term.
At the time of his arrest, Kincy was free on bond
pending trial on a weapons charge. He also was on parole from a
conviction on charges of delivering cocaine and had a lengthy prior
record of convictions.
During his time in prison, records showed he had
more than 30 disciplinary violations. "They can hang him," Hosea
Harville, 83, of St. Louis, the murder victim's father, said. "He
killed a good man."
Texas Execution Information
Center by David Carson
Txexecutions.org
Kevin Christopher Kincy, 38, was executed by
lethal injection on 29 March 2006 in Huntsville, Texas for the
robbery and murder of man in his home.
On 26 March 1993, Kincy, then 25, and his cousin,
Charlotte Kincy, 33, went to the Houston home of Jerome Harville, a
former boyfriend of Charlotte's. Harville let the two inside his
home. Kevin then drew a .25-caliber semiautomatic pistol and shot
Harville in the head.
After stabbing the victim several times, he and
Charlotte then loaded some of Harville's possessions - including
stereo equipment, appliances, furniture, and a Ruger 9mm pistol -
into Harville's car, and fled. Harville's body was discovered that
day after concerned co-workers called the sheriff's department.
Homicide investigators found two .25-caliber
shell casing near the body. On some furniture, they observed
patterns of small dot marks, which appeared to have been made by
someone wearing rubber gloves.
The stolen 9mm pistol was recovered at a pawn
shop and traced to John Byrom. Byrom later testified that Kincy told
Byrom that he had taken the gun from a house where he had killed a
man.
Byrom said that Kincy asked him to hold the gun
for him, and he agreed, but then he decided to pawn it instead.
Investigators also recovered the .25-caliber pistol used to shoot
Harville.
When investigators searched Kincy's apartment,
they found a .25-caliber magazine and three gloves with raised dots
on the fingertips, which matched the dot pattern left on Harville's
furniture.
Nine days after the murder, an FBI agent spotted
Kincy driving the victim's Honda Accord on Interstate 10. After a
high-speed chase, Kincy was apprehended in Louisiana.
At Kevin Kincy's trial, Terkisha Dawson testified
that prior to the murder, Kevin and Charlotte spoke of their plan to
rob a and kill a man in his home. She testified that their intended
victim was a man who Charlotte had been romantically involved with.
Their plan was for Charlotte to distract the
victim, while Kevin would enter the home and kill him. Dawson
further testified that Kevin phoned her after the murder, laughing
as he described how he surprised Harville, shot him, and stabbed him
several times.
Keenan Mosley, another cousin of Kevin Kincy's,
testified that Kincy displayed the gun he had stolen from Harville
and made a list of pros and cons concerning his chances of getting
caught.
Mosley also testified that Kincy mentioned having
worn gloves during the crime. Mosley further testified that she
observed Kincy in possession of a Honda Accord and a large amount of
home appliances and equipment.
Kincy's co-worker, Byron Brown, testified that on
the day of the murder, he accompanied Kevin and Charlotte Kincy to a
house. He entered a bedroom and saw a man lying on the floor. Upon
realizing that the man was dead, Brown testified, he became
frightened and left the house.
Kincy was convicted of attempted murder in 1986
and sentenced to 10 years in prison. He served 4 months of that
sentence before being released on "shock probation."
In less than four months, he was back on prison
on 6-year conviction for burglary of a motor vehicle. He stayed
behind bars for three months before being released again.
In October 1989, he was convicted of delivery of
cocaine and sentenced to another 15 years in prison. He was paroled
in December 1991. (At the time, early release was common in Texas
due to strict prison population caps imposed by U.S. District Judge
William Wayne Justice.)
Twelve days before the murder, Kincy was pulled
over by Houston police officer Jeff Miller for speeding. Miller
testified that when he walked up to the car, Kincy was reaching
under the seats.
Miller looked under the seat and found a .25-caliber
pistol and several bags of marijuana. Kincy was charged with felony
possession of a firearm.
At Kincy's punishment hearing, Terkisha Dawson
testified that after the murder, Kincy took another woman and her to
dinner. As they were leaving the restaurant, some men outside made
flirtatious remarks toward the women.
Dawson testified that Kincy turned around and
lifted his shirt to show the 9mm Ruger to the men, and threatened to
shoot them. Dawson also testified that on a different occasion, she
saw Kincy shoot the gun into the air from his car while at a mall
parking lot, then he drove away at high speed.
John Byrom testified that Kincy asked for his
help in fitting the 9mm pistol with a silencer and to be his getaway
driver in future home robberies.
A jury convicted Kincy of capital murder in
October or November 1993 and sentenced him to death. The Texas Court
of Criminal Appeals affirmed the conviction and sentence in January
1998. All of his subsequent appeals in state and federal court were
denied. Kincy was also convicted on a federal charge of transporting
a stolen vehicle across state lines.
Charlotte Marie Kincy was also charged with
capital murder, but the charges were reduced to aggravated robbery
in exchange for her guilty plea and promise to testify against her
cousin. She was sentenced to 40 years in prison.
She was not called to testify in the guilt/innocence
phase of Kevin's trial. When she was called to testify in the
punishment phase, she refused to testify, invoking her Fifth
Amendment right against self-incrimination.
Kincy had a reputation for being a difficult,
violent prisoner. He was not available for media interviews prior to
his execution. State officials said that Kincy had threatened to
harm the prison staff.
For his transport to from death row in Livingston
to Huntsville, where all Texas executions are carried out, state
troopers were added to the usual prison guard escort. Officials said
that there were no incidents during the transport, and Kincy was
quiet in his holding cell.
On the day of his execution, Kincy was visited by
his mother. It was the first time he had seen her since last summer,
when, on her way out of the prison, she was arrested for having a
pound of marijuana in her van.
In his last statement at his execution, Kincy
thanked his friends and supporters and expressed love to his family.
He then glanced briefly at Harville's relatives.
The lethal injection was then started. Kincy
pursed his lips into a kiss for his wife, Barbara, a Swiss woman who
married him by proxy after they became pen pals via an anti-death-penalty
web site. Kincy was pronounced dead at 6:26 p.m.
National Coalition to Abolish
the Death Penalty
Kevin Kincy, TX - March 29
"TEXAS----impending execution of Kevin Kincy,"
Houston Chronicle, March 27, 2006:
Do Not Execute Kevin Kincy!
Kevin Christopher Kincy, a black man, was
convicted of capital murder and sentenced to death for the murder of
Jerome Harville in Houston, Texas. Prosecutors alleged that Kincy
and his cousin and co-defendant Charlotte Marie Kincy went to
Harville’s home with the intent to rob him.
Harville, who was romantically involved with
Charlotte, allowed the two inside. It is purported that upon gaining
entrance Kincy shot Harville in the head and proceeded to load up
Harville’s car with stereo equipment, furniture, a pistol and then
fled.
Kincy’s central concern with regard to how his
trial was conducted involves Charlotte. Both Kincy and Charlotte
were charged with capital murder, but after agreeing to testify
against Kincy at trial Charlotte’s charge was reduced to first
degree aggravated robbery. If she did not plead guilty to the
reduced charge and testify against Kincy, the State retained the
right to charge her with capital murder.
The prosecution did not call Charlotte as a
witness in the conviction phase of the trial. But when called to the
stand by Kincy during the sentencing phase, Charlotte refused to
testify, invoking her Fifth Amendment privilege against self-incrimination.
Kincy maintains that had Charlotte testified she would have stated
that Kincy was acting in self-defense when he shot Harville.
Similarly, it is Kincy’s contention that the
reason the State never called Charlotte to testify was to avoid the
jury from hearing the possibility that Kincy was defending himself.
In a 1995 letter written by Charlotte, as well as in a written and
signed statement, she claims Kincy was acting in self defense.
In a recent decision, the U.S. Fifth Circuit
Court of Appeals denied Kincy’s petition for a certificate of
appealability (COA) upholding Charlotte’s invocation of the Fifth
Amendment.
It is the Court’s opinion that because
Charlotte’s plea agreement did not guarantee a specific sentence and,
therefore, she had not been sentenced at the time of Kincy’s trial,
she retained her Fifth Amendment rights.
Kincy’s case also exemplifies the way in which
the AntiTerrorism and Effective Death Penalty Act (AEDPA), a federal
law enacted in 1996, has created an inordinate amount of obstacles
that inmates must maneuver just to exercise their right to petition
for habeas relief.
In short, the AEDPA placed strict limitations on
habeas corpus appeals in federal court. One such obstacle is that in
order to appeal on the federal level inmates must exhaust the state
remedies available to them first. Moreover, because inmates are
limited to one federal appeal, in order to submit a second or
successive petition an inmate must ask for a COA from an appellate
court.
Thus when Kincy sought a COA to prove his
innocence based on impeachment evidence pertaining to two witnesses
that testified against him, the Court refused to grant him a COA
because he had not presented this particular claim in a state court.
As a result of Kincy’s failure to “exhaust” his
claims in the state courts before presenting it to the Fifth Circuit
Court of Appeals, a procedural default occurred thereby making his
claims procedurally barred. In other words, because Kincy failed to
jump through the appropriate hoops as dictated by the AEDPA he will
no longer be able to present the new evidence he has regarding his
innocence.
Kincy’s case is one of many that have been
burdened by procedural complications. Recognizing that ineffective
assistance cannot serve as cause to excuse procedural default, Kincy
took the opportunity in his appeal to discuss the uphill battle
inmates face with both incompetent state habeas counsel and the lack
of guiding standards in the State’s habeas proceedings. In the end,
Kincy’s petition for habeas relief was denied.
Please write to Gov. Rick Perry on behalf of
Kevin Kincy!
Coalition to Abolish the Death
Penalty
Kevin Kincy -ALIVE e.V. - Voices From Inside
Hello there,
my name is Kevin Kincy. I am from Houston, Texas
and I have a beautiful 8 year old daughter. I love all types of
music, I love to cook (and to eat of course), to travel, to swim and
love animals.
I have been to a few countries in Europe: Italy,
Austria, Switzerland, Germany, GB, France, Belgium and Luxembourg. I
play the trumpet and I went to school in London for a while. I
cannot speak German, but I can write and read German with the
assistance of my German/English dictionary.
I am very interested in writing to males or
females, any age is fine. I will reply all letters. I am sure there
may be questions as to how and why I am in prison. For anyone who
wants to know, I will answer all questions.
As of April 6th 2001, it will be 8 years since my
last day of freedom. I hope to hear from you soon.
Kevin Kincy # 999179
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 77351 USA
Citizens United for
Alternatives to the Death Penalty
Prisoner Profile
Kevin Kincy #999179
Polunsky Unit 3872 FM
350 South Livingston TX 77351 USA
State of Incarcertaion: Texas
Kevin Christopher Kincy was convicted in Houston,
Texas for the murder of Jerome Harville, on April the 6th 1993. His
State appeal has been denied, because his State appointed lawyer
failed to attach evidence to the habeus corpus writ, wich had proven
that Kevin had been listed to work at the time the crime happend.
His lawyer has failed to pick important Statements from two
witnesses, who say Kevin Kincy did not commit the murder. We are
raising money, to hire Gary Taylor (Austin) as his attorney and get
a proper investigation.
Attorney: Gary Taylor, Austin, Texas (phone: 512
301 5100)
Contact address: Barbara Raval, Neuhofweg 38,
3400 Burgdorf (Switzerland)
e-mail: strawberry@freesurf.ch
Websites:
http://www.ecadp.org (Silent screams) where the whole story can be
seen...
http://www.lifespark.org (Letter of the month...June)
Kincy v. Dretke,
92 Fed.Appx. 87 (5th Cir. 2004) (Habeas)
Background: State inmate convicted of capital
murder and sentenced to death filed petition for writ of habeas
corpus. The United States District Court for the Southern District
of Texas dismissed petition. Petitioner filed motion for certificate
of appealability (COA). Holdings: The Court of Appeals, Edith H.
Jones, Circuit Judge, held that: (1) petitioner's codefendant
retained her Fifth Amendment privilege against self-incrimination;
(2) petitioner's actual innocence claim was not cognizable under
federal habeas corpus; and (3) petitioner's claims that state
suppressed impeachment evidence and offered materially false
evidence were procedurally defaulted. COA denied.
Kevin Christopher Kincy was convicted of capital
murder and sentenced to death for murdering Jerome Harville during
the course of a robbery. After exhausting state remedies, Kincy
filed a § 2254 petition for a writ of habeas corpus in federal
district court raising eight grounds for relief.
The district court granted the state's motion for
summary judgment on all eight issues, dismissed Kincy's petition,
and refused to grant a certificate of appealability (“COA”) on any
issue raised.
Kincy now seeks a COA from this court on five
issues: (1) whether he was denied due process and a fair trial
because the trial court upheld a witness's invocation of the
privilege against self-incrimination; (2) whether he was denied due
process because he has evidence of actual innocence; (3) whether he
was denied due process because of the State's suppression of
impeachment evidence pertaining to witness John Byrom; (4) whether
he was denied due process because the State presented materially
false evidence through two witnesses; and (5) whether his appellate
counsel provided constitutionally ineffective assistance by failing
to raise as error a witness's invocation of her privilege against
self-incrimination. We deny a COA on each claim.
BACKGROUND
Terkisha Dawson testified at Kincy's trial that
prior to the murder, Kincy and his cousin, Charlotte Kincy, spoke of
their plan to rob a man and steal his car and possessions.
Dawson further testified that the plan was for
Charlotte, who was romantically involved with the man and had been
accepting money from him, to seduce the man in his home to prevent
him from setting his alarm. Kincy would then enter the home and,
according to Dawson's testimony, kill the man.
In March 1993, Byron Brown, Kincy's co-worker,
accompanied Kincy and Charlotte to a house. Brown testified that
upon entering a bedroom, he observed a man lying on the floor who he
later realized was dead. Brown further testified that he became
frightened and left the house.
On March 26, 1993, co-workers of Jerome Harville
became concerned because of his absence from work. They eventually
notified the sheriff's department and Harville was discovered in his
home, having been fatally shot in the head and stabbed several
times.
In addition, Harville's home had been ransacked
and his Honda Accord, among other items, had been stolen. The police
uncovered prints in the home consistent with a person wearing gloves.
Dawson further testified that Kincy explained to
her how he surprised Harville in his home and shot him in the head.
Dawson also testified that Charlotte admitted to stabbing Harville
several times.
Keenan Mosley, another of Kincy's cousins, also
testified that Kincy displayed a gun he had stolen from Harville,
made a list of pros and cons concerning his chances of getting
caught, and mentioned having worn gloves. In addition, Mosley
testified that she observed Kincy with a Honda Accord and a large
amount of home appliances and equipment.
Police linked Kincy to the crime after locating
both the murder weapon and Harville's stolen gun. On April 6, 1993,
an FBI agent spotted Kincy driving Harville's Honda Accord on
Interstate 10 in Texas near the Louisiana border. Police apprehended
Kincy in Louisiana after a lengthy high-speed chase. Both Kincy and
Charlotte were charged with capital murder.
However, the State agreed to reduce Charlotte's
charge to first degree aggravated robbery in exchange for
Charlotte's guilty plea and her promise to testify against Kincy at
trial. The plea bargain further stated that, should Charlotte choose
not to testify or fail to testify truthfully, the agreement would be
void and the State would be free to reinstate the capital murder
charges.
The plea bargain did not purport to guarantee
Charlotte a specific sentence. However, Charlotte was not called as
a witness in the guilt/innocence phase of Kincy's trial.
Nevertheless, the jury convicted Kincy of capital murder.
During the punishment phase of the trial, Kincy
indicated that he wished to call Charlotte as a witness. Charlotte
was sworn in and, on the advice of counsel, indicated her desire to
invoke her Fifth Amendment privilege against self-incrimination.
Kincy's attorney objected, arguing that by pleading guilty Charlotte
had waived her Fifth Amendment privilege.
The trial court disagreed and allowed Charlotte
to invoke her privilege. Kincy's attorney then stated that, if she
had testified, Charlotte would have verified that she was “the
organizer, the planner, the schemer” behind the crime.
The jury sentenced Kincy to death, and he
unsuccessfully appealed to the Texas Court of Criminal Appeals.
Kincy v. State, No. 72,246 (Tex.Crim.App.1998) (unpublished). Once
his conviction and sentence had been affirmed, Kincy filed a state
habeas application in the trial court.
Based on the trial court's findings of fact and
conclusions of law and its own review, the Court of Criminal Appeals
denied habeas relief. Ex parte Kincy, No. 50,266-01 (Tex.Crim.App.
Nov. 21, 2001) (unpublished). On August 29, 2002, Kincy filed a
petition for writ of habeas corpus in federal district court.
* * *
In this case, Charlotte entered into a plea
agreement whereby she agreed to testify against Kincy. But because
she had not yet been sentenced at the time of Kincy's trial and the
plea agreement in no way guaranteed her a specific sentence, she
retained her Fifth Amendment rights.FN2 See Mitchell, 526 U.S. at
326. Neither the state, however, nor Kincy could require Charlotte
to testify as a result of the contractual plea agreement alone.
Reasonable jurists could not debate the district
court's conclusion that Charlotte retained her Fifth Amendment
privilege against self-incrimination. Further, the state courts'
similar decisions cannot have been contrary to or an unreasonable
application of federal law. We deny Kincy's application for COA on
this claim.
FN2. Kincy's trial counsel proffered that
Charlotte would testify to being the “organizer” of the crime. If
this representation were true, Charlotte certainly possessed a
legitimate fear that any testimony she might give concerning
culpability could conceivably affect her yet-to-be-determined
sentence.
* * *
Kincy next seeks a COA based on the district
court's rejection of his actual innocence claim. Kincy argues that
Charlotte's 1995 letter and subsequent written statement prove that
he acted in self-defense and is innocent of the crime of capital
murder.FN3
However, it has long been the rule in this
circuit that claims of actual innocence based on newly discovered
evidence alone are not cognizable under federal habeas corpus. FN4
Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992), aff'd, 506
U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Bryant v. Scott, 28
F.3d 1411, 1420 n. 14 (5th Cir.1994); Lucas v. Johnson, 132 F.3d
1069, 1074 (5th Cir.1998).
Because reasonable jurists could not disagree or
find wrong the conclusion that Kincy's actual innocence claim is not
cognizable, we deny his application for COA on this claim.FN5
FN3. Charlotte alleges that she and Kincy went to
Harville's home because Harville owed Kincy money. She further
alleges that after telling Kincy he would give him the money,
Harville pulled a gun and the two struggled.
Finally, Charlotte states that it was only after
Harville said to Kincy “I'm going to kill you,” that Kincy shot
Harville. Charlotte's written statements do not, among other things,
explain why Charlotte subsequently stabbed the victim numerous
times.
FN4. It should also be noted that the Supreme
Court has expressed its reluctance to rely on affidavit testimony in
this regard because of the absence of cross-examination. Herrera,
506 U.S. at 417. In addition, the affidavits in the instant case,
like those presented in Herrera, were issued years after the crime
and resulting trials occurred. Id.
Finally, no explanation has been given why Kincy,
who was presumably aware of his self-defense justification, did not
present that theory to the jury at his trial.
FN5. While the district court noted that Kincy's
actual innocence claim was not cognizable under federal habeas
corpus, the court also believed the claim to be procedurally
defaulted and therefore not deserving of further attention.
We do not address the district court's
alternative ground for denying Kincy's petition for writ of habeas
corpus because, as discussed supra, the actual innocence claim,
standing alone, is not a cognizable claim in this circuit. Thus,
Kincy's substantive actual innocence claim is not an issue that
“deserve[s] encouragement to proceed further.” Miller-El, 537 U.S.
at 336.
* * *
Because we DENY Kincy's application for COA on
each of the issues raised, we lack jurisdiction to review the
district court's denial of habeas relief. COA DENIED.
Plaintiff-Appellant Kevin Kincy (“Kincy”) is
scheduled to be executed on March 29, 2006. Kincy appeals the
district court's dismissal of his suit for injunctive relief
pursuant to 42 U.S.C. § 1983.
He alleges that the method of execution used by
Texas, lethal injection, may cause excruciating pain in violation of
the Eighth and Fourteenth Amendments.
The district court, citing Fifth Circuit
precedent, dismissed Kincy's complaint with prejudice, concluding
that Kincy unnecessarily delayed in challenging the method of
execution.
The district court did not determine whether
Kincy's Eighth or Fourteenth Amendment claims are cognizable under §
1983 because circuit precedent holds that Kincy is not entitled to
equitable relief due to his dilatory filing. Before this court,
Kincy requests a stay of execution. Because we agree with the
analysis of the district court, we AFFIRM its dismissal of Kincy's
complaint and DENY his request for a stay.
Kincy has been on death row for over ten years.
His sentence and conviction became final on April 21, 1998, nearly
eight years ago. Still, Kincy did not bring the instant challenge to
the method of his execution until twenty-seven days prior to his
scheduled execution.
The district court correctly applied our
precedent. This court has held on numerous occasions that “[a]
challenge to a method of execution may be filed at any time after
the plaintiff's conviction has become final on direct review.”
Neville v. Johnson, --- F.3d ----, 2006 U.S.App. LEXIS 3096 (5th
Cir. Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572, 574 (5th
Cir.2005)), cert. denied, Neville v. Livingston,2006 U.S. LEXIS 1008
(Feb. 8, 2006); Smith v. Johnson, --- F.3d ----, 2006 U.S.App. LEXIS
3527 (5th Cir. Feb. 14, 2006) (quoting Neville ). We have also made
clear that waiting to file such a challenge shortly before a
scheduled execution constitutes unnecessary delay. Harris v. Johnson,
376 F.3d 414, 417-19 (5th Cir.2004), cert. denied, Harris v. Dretke,
542 U.S. 953 (2004). Kincy had nearly eight years in which he could
have litigated his claim for relief under § 1983; he therefore
“cannot excuse his delaying until the eleventh hour on the ground
that he was unaware of the state's intention to execute him by
injecting the three chemicals he now challenges.” Harris, 376 F.3d
at 417.
Regardless whether he now states a claim under §
1983, Kincy is not entitled to the relief he seeks due to his
dilatory filing. He has been on death row for over ten years but
waited to challenge a procedure for lethal injection that has been
used by Appellees during his entire stay on death row. See Smith,2006
U.S.App. LEXIS 3527 at (reaching the same conclusion when petitioner
filed after nine years); White, 429 F.3d at 574 (reaching the same
conclusion when petitioner filed after six years); see also Harris,
376 F.3d at 417. Kincy's contentions that imminence of execution is
a prerequisite for standing, a requirement for ripeness, and a
prerequisite for entitlement to prospective injunctive relief are
contradicted by the holdings of Neville and White, discussed supra.
Further, in Harris, this court explicitly stated
that a challenge should not be brought when the execution is “an
imminent or impending danger.” Harris, 376 F.3d at 418; see also
White, 429 F.3d at 574 (A “last-minute challenge to the method of
execution is improper.”).
Kincy's decision to delay his filing until twenty-seven
days before his scheduled execution constitutes unnecessary delay.
See Harris, 376 F.3d at 416. Harris and Neville control and require
us to affirm the district court's dismissal of this claim.
The district court properly considered Kincy's
attempts to distinguish his case from prior cases, such as Smith,
Neville, White, and Harris, and found them unavailing.FN1 We agree,
noting, as did the district court, that the instant case falls
squarely within the holdings of the aforementioned cases and compels
denial of a stay.
FN1. The fact that Kincy challenges the state of
Texas's “cut down” procedure in addition to objecting to the
chemicals used in the lethal injection process does not meaningfully
distinguish his case from the above cited cases.
A prisoner delays unreasonably in waiting until
the last minute to bring any method of execution challenge that
could have been brought after his conviction and sentence became
final.
To the extent that Kincy contends his execution
should be stayed pending the Supreme Court's decision in Hill v.
Crosby, --- U.S. ----, 126 S.Ct. 1189 (2006)(granting certiorari),
we decline to do so. In Neville, we explained that Fifth Circuit
precedent “remains binding until the Supreme Court provides contrary
guidance .” --- F.3d at ----, 2006 U.S.App. LEXIS 3096 at *3.
Moreover, the Supreme Court has denied certiorari in recent
challenges, filed after the Hill certiorari grant, to Texas's lethal
injection protocol. See, e.g., Smith,2006 U.S. LEXIS 1090 (Feb. 15,
2006). For the foregoing reasons, we AFFIRM the district court's
dismissal of Kincy's complaint and DENY Kincy's motion for a stay of
execution.
