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July 31, 2013

Defense files for dismissal in Blanchard murder, burglary case

BLANCHARD — Dustin Stewart's murder trial has been pushed back once again after the defense filed a motion for dismissal.

The new trial date is Oct. 21.

"We are going to spend this time looking at the motion and prepare to argue it," District Attorney Jason Hicks said.

Stewart is accused of  participating in a burglary that resulted in his accomplice's death.

Stewart's attorney, Chase O'brien said he has no comment on the case or the motion for dismissal.

Stewart is being tried for murder in the first degree after he and accomplice Justin Martin, allegedly broke into then 18-year-old Sarah McKinley's house in 2011. Martin was reportedly holding a knife during the incident, when McKinley shooting and killing Martin.

Stewart allegedly ran after hearing the shot, but admitted to Blanchard police officers that he was with Martin when the crime was committed.

Under Oklahoma law 707.7b, Stewart can be charged with murder in the first degree due to Martin's death, according to the district attorney's office.

"Oklahoma law provides that if you are committing certain crimes, burglary in the first degree being among them, that any coconspirator can be charged with murder one, if anyone is killed during the perpetration of that crime," former Assistant District Attorney James Walters said.  

Although Walters could have charged Martin with burglary, he said he does not see any need to file that motion, given it is a lesser charge. In order to make the murder one charge stick, though, Walters said the prosecution will have to prove that the burglary offense did take place.

Blanchard officer Dan Huff testified for almost three hours in May of 2012 during a preliminary hearing that ended when Judge Timothy A. Brauer bound Stewart over for trial.

Assistant District Attorney Leah Edwards will now try the case for the prosecution.

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