A career criminal who served three prison terms
for a variety of robberies and burglaries, Kinnamon was sentenced to
death for shooting bar customer Ronald Charles Longmire, 41, in the
back during a robbery on Dec. 11, 1984, at N.J.'s Club in the 3800
block of Mangum.
He denied being in the bar and, on the gurney,
talked for 30 minutes in an attempt to stall his death.
Raymond Carl KINNAMON
On the evening of Dec.
11, 1984, Raymond Carl Kinnamon was one of several customers at
N.J.’s Lounge located in the 3800 block of Mangum in Houston.
Witness accounts state that he sat at the bar alone, played a
video game on the bar, and had only one momentary conversation
with Jeannie Marriott, the bartender.
Before exiting the bar
after “last call” had been announced, Kinnamon excused himself
to the restroom only to return with a firearm. After demanding
money from employees and customers, Kinnamon attempted to lead
everyone at gunpoint toward the restrooms when he murdered
Ronald Charles Longmire, 41. Longmire was wounded fatally in
the back after he reportedly slapped Kinnamon’s hand away from
his pocket when asked what was in it.
Kinnamon fled the scene
and got away with more than $1,500, including $250 from Longmire.
Two weeks later he was arrested and was also charged with an
aggravated robbery committed in Houston only six days after this
A jury in State District
Judge Ted Poe’s court for capital murder sentenced Kinnamon to
death on July 30, 1985. The execution, as later set by Judge
Poe, would take place before dawn on Dec. 12, 1995, exactly ten
years after the murder. In interviews, Kinnamon jokingly
remarked that it was “Poe-etic justice.”
Prior to this incident,
Kinnamon had been convicted of 17 felonies, including eight
aggravated robberies, two robberies by assault, and three
burglaries. Altogether, he had been sentenced previously to a
total of 223 years in prison and had served three separate
Defense attorney Marcia
Rutenbar raised 15 issues in his appeal. Her arguments included
that Kinnamon did not receive effective legal help in his early
appeals, jury instructions were improper, and all witnesses were
not able to positively identify him as the gunman from N.J.’s
Lounge. Judge Poe rejected this appeal, sending it to the Texas
Court of Criminal Appeals, who also denied the request.
Defense attorney R.K.
Hansen asked for a life sentence on the basis that there was
evidence that Longmire tried to resist Kinnamon, but Prosecutor
Doug Durham kept pushing for the death penalty stating that
Kinnamon was an ongoing threat to society.
On the date of the
execution, at approximately 10:30 p.m., U.S. District Judge
Kenneth Hoyt granted a stay of execution only to have it
overturned by the 5th U.S. Circuit Court of Appeals
in New Orleans. The death warrant took effect shortly after
midnight and ordered that the execution be carried out before
During Texas’ busiest
week for executions since 1986, and it’s first Sunday execution
since the reinstatement of the death penalty, Kinnamon would be
brought to death on the ten-year anniversary of his crime.
Kinnamon made an apparent but unsuccessful attempt at a
30-minute filibuster to talk his way out of his own execution.
He expressed love and thanks to many people, also making it
clear that he was not ready to go. Eleven minutes after the
injection, Raymond Carl Kinnamon was pronounced dead.
Killer Executed at
The New York Times
December 12, 1994
A man with 18
felony convictions was executed this morning after giving a
rambling 30-minute final statement and trying to slip out of his
The man, Raymond Carl Kinnamon, 53, was
pronounced dead at 5:56 A.M., 11 minutes after receiving an
injection of lethal drugs. It was 10 years to the day since Mr.
Kinnamon had shot a man in the back during the robbery of a
"I can see no reason for my death," Mr.
Kinnamon said. He then lifted his head and shoulder off the
gurney on which he lay and tried to slide his arm from a leather
Prison officials immediately began pumping
the lethal drugs into Mr. Kinnamon's arms as three relatives
sobbed and complained that he had not been allowed to finish his
Mr. Kinnamon was put to death for the 1984
murder of Ronald Longmire, killed as he and other bar patrons
were ordered at gunpoint to walk into a restroom. He was the
second inmate put to death in Texas this week.
Although he was identified as the gunman by
three witnesses, Mr. Kinnamon had maintained his innocence. He
said he was convicted because of his previous felony convictions:
eight aggravated robberies, two robberies by assault, three
burglaries and four thefts. He had been sentenced to a total of
223 years in prison and had served three separate prison terms.
"My record looks like I'm John Dillinger or
Al Capone," Mr. Kinnamon said in a recent interview. "But I
never was in that bar."
33 F.3d 462
Raymond Carl KINNAMON, Petitioner-Appellant,
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Sept. 15, 1994.
PATRICK E. HIGGINBOTHAM,
This is a death penalty
case from Texas. Raymond Carl Kinnamon appeals dismissal of
his petition for writ of habeas corpus and denial of a
certificate of probable cause by the United States District
Court for the Southern District of Texas. This is Kinnamon's
first federal petition and he attacks his conviction for
capital murder and sentence of death on six grounds. We
refuse to issue a certificate of probable cause and dismiss
On July 25, 1985 a jury in
Harris County, Texas convicted Kinnamon of the murder of
Ronald Charles Longmire in the course of an armed robbery of
a bar and its patrons. The jury answered affirmatively the
three questions asked in the sentencing proceedings and on
July 30, 1985 the trial court sentenced Kinnamon to death.
The Texas Court of Criminal Appeals affirmed the conviction
on April 18, 1990. Kinnamon v. State, 791 S.W.2d 84 (Tex.Crim.App.1990).
Instead of filing a
petition for certiorari, Kinnamon filed an application for
writ of habeas corpus in the state trial court. Without a
hearing, the state trial court entered findings of fact and
conclusions of law, and the Texas Court of Criminal Appeals
thereafter denied relief.
The Texas Court of
Criminal Appeals set out the facts of the offense:
On Monday evening,
December 11, 1984, [Kinnamon] was one of several patrons
seated at the bar in N.J.'s Lounge in Houston. He had
entered the bar several hours earlier, and, according to
witnesses, sat alone, occasionally playing a video game
mounted atop the bar.
At one point he had a
brief conversation with the bartender, Jeannie Marriott.
After "last call" had been announced [Kinnamon] acted as if
he was leaving with the other customers. Before exiting, he
told Marriott that he had to use the restroom, turned and
walked back across the lounge. When [Kinnamon] came out of
the restroom a short time later, waitress Sharon Bryson, and
a patron, Kenny Simmons, were seated at the bar and Marriott
was cleaning up behind the counter.
At that point, [Kinnamon],
possessing a firearm, ordered the employees and remaining
patrons, including Ronald Longmire, the decedent, to put
their hands on the bar and refrain from looking at him. He
ordered Marriott to take the money out of the cash register
and place it in a bag. Since no bag was available, she used
After [Kinnamon] took the
money, he ordered everyone to proceed single file to the
men's restroom. Ronald Longmire, the decedent, was
apparently at the end of the line, with [Kinnamon] following.
As the people were proceeding to the rest room, [Kinnamon]
asked them for their jewelry. As they were trying to remove
their rings and watches, [Kinnamon] asked Longmire "what is
that in your pocket?" to which the decedent responded "nothing,
just my driver's license."
A shot was fired, then a
second almost immediately thereafter. The record indicates
that the second shot entered the decedent's back from the
left side at an angle. Longmire apparently fell to his knees.
At this point, Sharon Bryson, the waitress, escaped through
a rear exit, and in so doing activated a burglar alarm.
The bartender, Jeannie
Marriott, was pulled into the walk-in cooler by Kenny
Simmons. About that time, a third shot was fired. Simmons
later testified that while he and Marriott were in the
cooler, someone attempted to enter from the outside by
pulling on the door handle to the cooler. Meanwhile, Bryson
fled to a nearby convenience store and telephoned the police.
Approximately ten minutes
after the shooting, Marriott and Simmons came out of the
cooler and saw Longmire wandering aimlessly through the bar,
muttering incoherently and bleeding profusely from the
gunshot wound. When the police arrived, Marriott directed
them to Longmire, who by that time was dazed and seated on
the floor in a corner. Longmire was rushed to the hospital
and died a short time later.
[Kinnamon] was identified
in a photo array by the eyewitnesses to the offense. Some
two weeks later, he was apprehended at his Houston residence
and placed under arrest.
Kinnamon v. State, 791 S.W.2d
Kinnamon contends that his
counsel was ineffective in not requesting jury instructions
on the lesser included offenses of murder and involuntary
manslaughter. The Texas Court of Criminal Appeals held that
"the evidence did not authorize the submission of a murder
instruction on a lesser included offense." 791 S.W.2d at
96-97. This court examined similar contentions in Cordova v.
Lynaugh, 838 F.2d 764 (5th Cir.1988). This court
acknowledged that murder was a lesser included offense of
capital murder, explaining: "The specific issue is whether a
rational jury could have found that Cordova murdered
Hernandez but that it was not in the course of the robbery."
Id. at 769.
No rational jury could
have simultaneously voted to convict Kinnamon of murder and
acquit him of robbery. Indeed, that is not his argument, as
we understand it. Rather, he argues that a rational jury
could have concluded that he lacked the intent to kill and
was only guilty of felony murder.
The state replies that the
evidence would not permit a rational jury to acquit of
capital murder and convict of felony murder; thus, the trial
court would have denied a request for any such instruction.
As the state put it: "Given [that the fatal shot was a
second shot] and the close proximity of Kinnamon's gun to
the victim, the jury could only have found that Kinnamon had
the conscious objective or desire to ... cause the death of
Longmire," citing Tex.Penal Code 6.03(a) (Vernon 1974) (internal
quotation marks omitted).
The state habeas court
pointed to the "overwhelming evidence showing that [Kinnamon]
specifically intended to kill the deceased." It concluded
that Kinnamon could not in any event meet the second prong
of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984).
We also are not persuaded
that had counsel requested an instruction on the lesser
offense of felony murder, the outcome would have been
different. Kinnamon's lawyer, Guerinot, at the opening of
his summation told the jury: "There is probably but one
issue in this case, and there is only one, and you folks are
going to decide it, and that is the issue of identity."
Guerinot's co-counsel also told the jury: "Now, identity, as
I said, is the issue." In rebuttal, the prosecution pointed
out to the jury that the defense rested on identity, not an
absence of an intent to kill.
Kinnamon contends that the
jury charge allowed the jury to convict of capital murder
without finding a specific intent to kill. The jury, he
argues, could have concluded that he intended to shoot but
not to kill. His trial objection to the charge made the
point, but the Texas Court of Criminal Appeals rejected the
contention on direct appeal. That court agreed that capital
murder is a "result of conduct" offense, and "not only must
an accused be found to have intended to engage in the act
that caused the death, he also must have specifically
intended that death result from that conduct. The mere
intent to pull the trigger of a firearm will not satisfy the
statute". 791 S.W.2d at 88-89 (citation omitted).
The court found, however,
that read in the context of the full charge, the language "was
irrelevant with respect to [Kinnamon's] culpable mental
state." 791 S.W.2d at 89. The court later overruled this
holding, concluding that "it is error for a trial judge to
not limit the definitions of the culpable mental states as
they relate to the conduct elements involved in the
particular offense." Cook v. State, --- S.W.2d ----, ----,
1994 WL 122844 (Tex.Crim.App.1994) (en banc) (slip op. at
Kinnamon argues that he
should have the benefit of this change in Texas law and that
this court ought to certify to the Texas Court of Criminal
Appeals the "question" of whether he was harmed by the
error. He further argues that not according him the benefit
of the change deprives him of due process and is cruel and
unusual punishment. We are unpersuaded.
As a federal habeas court,
our question is " 'whether the ailing instruction by itself
so infected the entire trial that the resulting conviction
violates due process,' not merely whether 'the instruction
is undesirable, erroneous, or even "universally condemned."
' " Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730,
1737, 52 L.Ed.2d 203 (1977) (citation omitted). Looking at
the charge as a whole and in the context of trial, including
the arguments of counsel, there is no reasonable likelihood
that the jury applied the instruction in a constitutionally
impermissible way. The trial court instructed the jury (emphasis
Before you are warranted
in convicting the defendant, Raymond Carl Kinnamon, of
capital murder, you must find from the evidence beyond a
reasonable doubt not only that on the occasion in question
the defendant, Raymond Carl Kinnamon, was engaged in the
commission or attempted commission of the felony offense of
robbery, if any, of Ronald Charles Longmire, as defined in
this charge, but also that during the commission of the
robbery or attempted commission thereof, if any, the
defendant, Raymond Carl Kinnamon, shot Ronald Charles
Longmire with a gun with the intention of thereby causing
Unless you find from the
evidence beyond a reasonable doubt that the defendant,
Raymond Carl Kinnamon, on said occasion, (according to
Tex.Crim.App., 791 S.W.2d at 88) specifically intended to
cause the death of Ronald Charles Longmire when he shot him
with a gun, if he did shoot him with a gun, you cannot
convict him of the offense of capital murder.
Now, if you find from the
evidence beyond a reasonable doubt that on or about the 11th
day of December, 1984, in Harris County, Texas, the
defendant, Raymond Carl Kinnamon, did then and there
unlawfully while in the course of committing or attempting
to commit the robbery of Ronald Charles Longmire
intentionally cause the death of Ronald Charles Longmire by
shooting Ronald Charles Longmire with a gun, then you will
find the defendant guilty of capital murder.
The prosecutor did not
attempt to exploit any uncertainty in the charge.
Significantly, as we explained, Kinnamon's contention at the
guilt phase was that the state had arrested the wrong man--the
issue was identity. There was no error of constitutional
Kinnamon contended on
direct appeal that the prosecutor misstated the difference
between "intentional" and "deliberate" in its use of use of
hypotheticals in voir dire. The Texas Court of Criminal
Appeals held that Kinnamon had not preserved the error for
appeal because he had not used all his preemptory challenges
and had not requested an additional one. 791 S.W.2d at 103.
Kinnamon unsuccessfully argued to the district court that
the procedural bar was not applicable. He adds here the
alternative that counsel was ineffective in not preserving
We are asked to review the
state law question presented by the decision to apply the
bar to these facts--that the Texas courts erred in holding
that misleading statements were subject to the requirement
that preemptory challenges be exhausted. There are
substantial reasons why we should not do so, but we need not
The effort to show legal
cause to escape the procedural bar--counsel's
ineffectiveness--was not made in the federal trial court and
so we will not listen. Even if we were to do so, it is
apparent that the tactical choices behind a decision to
exhaust challenges are barren ground indeed for second-guessing
counsel. Finally, the second prong of Strickland, again, is
insurmountable, given the focus at trial upon identity.
Relatedly, we find nothing in the trial court's rulings at
voir dire or elsewhere that impeded Kinnamon's ability to
defend on the basis of an absence of intent to kill.
Kinnamon argues that
allowing the jury to consider in the sentencing phase
evidence of other robberies committed after the charged
offense denied him due process and equal protection. This
contention is contrary to settled law of this circuit, and
this panel lacks the authority to change it. Milton v.
Procunier, 744 F.2d 1091, 1097 (5th Cir.1984), cert. denied,
471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).
Kinnamon argues that under
the Texas sentencing procedures, the jury was unable to give
effect to his mitigating evidence. He argues that the jury
could have concluded that the victim resisted the robbery
and with the escalating events his shooting of Longmire was
born of panic, not malice. Such evidence, the argument
continues, was relevant to the jury's assessment of moral
culpability, but the jury was offered no means to reflect
its consideration in its verdict. We reject the contention.
The jury could have given
effect to such a view of the crime in its answer to the
first question of whether the killing was deliberate, or in
the second question of future dangerousness. Whether or not
we add its answer to the question of whether Kinnamon acted
in response to any provocation by the victim, this "mitigating"
evidence was within "the effective reach of the sentencer".
Graham v. Collins, --- U.S. ----, ----, 113 S.Ct. 892, 902,
122 L.Ed.2d 260 (1993).
We reject Kinnamon's last
point, attacking the admissibility of the in-court
identifications of Kinnamon. He concedes that the district
court applied the correct legal standard but urges that it
gave insufficient weight to the accuracy of the witnesses'
prior identifications of the accused, factor three of the
five-factor test announced in Neil v. Biggers, 409 U.S. 188,
199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).
Regardless of the weighing
by the district court, each of the witnesses testified that
the in-court identification rested on observations at the
crime scene and not on pre-trial displays. We find no error.
The application for a
certificate of probable cause is denied and this appeal is