Tonda Hendrick had just fallen asleep when she heard a knock at the door. When she opened it, a young boy she didn’t recognize told her she needed to go to a neighboring apartment complex.
Seeing police lights, she feared the worst. Her two oldest sons are in prison — one for murder and the other for possession of a firearm after a former felony conviction — but her remaining son, Payton, was more the gentle giant type. Just 14 years old, and with a far below-average IQ, Payton mostly stayed at home, ate, and played video games, Tonda said. Payton’s size, mental disability and mild temperament had led to bullying at school and she had struggled to keep him in class.
She walked from her apartment at Stonegate Village, just east of 71st Street and Memorial Drive, to the Woodland Oaks Apartments that sit just to the east, across a small wooden fence. An avid news watcher, she recognized Tulsa Police Department Sgt. Dave Walker. She knew that Walker, who runs TPD’s homicide unit, was a bad omen.
“I was panicking, and I saw an officer (not Walker) and I was trying to tell him who I was and that my son might be there and I didn’t know what was going on, but he wouldn’t tell me anything,” Tonda told The Frontier in a recent interview. “Finally another officer came over and said ‘I’m a parent too. Your son is alive.’ ”
That was the only good news Tonda got that night. He and at least two other boys had been involved in a burglary, the officer told her. A man and woman inside the apartment had woken up during the burglary and the woman had stabbed Payton and one of the other boys (16-year-old Demondray Porter,) who had died.
Payton’s stab wound wasn’t as severe, and though he’d survive, he had fled and was eventually tackled by the man from the apartment and beaten.
When Tonda finally saw her son, he was bruised, bloody and in police custody, she said. Payton asked the officer who was with them if he could take off the handcuffs “because he was ready to go home with his mom.”
“He doesn’t have the mental capacity to understand what’s going on or what was going on that night,” Tonda said.
She said Payton has received psychological therapy for years and has attended special education classes since he was a child. A recent evaluation she provided The Frontier showed that Payton has an IQ of 59 — so low that he falls below the lowest 1 percent of those tested.
Tonda also doesn’t believe her son was aware of what was happening the night of the burglary. Payton has no criminal history and is so nervous around other people that he once sat on her front porch in the rain in tears because he was afraid to get on a school bus, she said.
“I think all he knew was that his friend wanted him to come with him and hang out,” she said. “He left the house and he wasn’t even wearing shoes. He never does that.”
Police dispute that belief. Payton was arrested not only for the burglary, but in a bitter twist, for Porter’s death as well.
Under Oklahoma law, prosecutors can charge a defendant for a death “caused in the commission of a felony.” That means Payton, who just turned 15 years old and needs daily reminders to bathe, brush his teeth and clothe himself, is facing a possible life sentence for first-degree felony murder.
Assistant District Attorney Kevin Gray is one of three prosecutors who primarily handle Tulsa County’s homicide cases, of which “about 10 percent” of which are filed under the felony murder doctrine, he said.
In theory the doctrine is simple — if you’re committing a felony and someone dies, even if you didn’t personally kill that person, you’re responsible — but Gray said sometimes jurors struggle with the concept.
“What I do is give them the ‘Ocean’s 11’ example,” he said, referring the movie series of daring, high-stakes heists. “The question is, there’s all these people who are committing that crime in some capacity, so who is responsible for it? And the answer is that they all are.”
The most common example of a felony murder case occurs during a group robbery, Gray said.
On Thanksgiving night in 2011 in Muskogee County, six teenagers robbed a group of boys who were home alone watching a movie. During the holdup, one of the boys was shot and later died. Though only one of the robbers was armed, and he alone fired the fatal bullet, all six robbers were arrested, charged with murder, and ultimately received life sentences.
As the statute is written, it allows prosecutors wide latitude when making charging decisions.
In 2014, Marquita Littlebear was driving westbound on 51st Street just east of Yale Avenue when she struck and killed Susan Mamary, a beloved Tulsa teacher. Police determined Littlebear, who had previously been charged with misdemeanor DUI years before, was drunk at the time of the crash and charged her with second-degree felony murder.
Typically a case like that would not be eligible for felony murder, since a first DUI is often charged as a misdemeanor.
Under that scenario, Littlebear would have likely been charged with “DUI manslaughter,” which carries a minimum of four years in prison. However, since Littlbear had already been convicted of one DUI, her second one was upgraded to a felony and allowed prosecutors to charge her with second-degree felony murder.
That charge carried a stiffer minimum punishment of 10 years to life in prison. (Littlebear ultimately received a 40-year prison term.)
In Hendrick’s case, he was never armed with a weapon and it one of his alleged co-conspirators died, rather than one of the robbery victims. Still, the 15-year-old faces life in prison.
Chief Tulsa County public defender Rob Nigh, whose office is defending Hendrick, said the felony murder statute is “one of the most dangerous criminal statutes that exists.”
“There’s so much left to the discretion of prosecution and police that it has a tremendous potential for abuse,” Nigh said.
He said police often use the suspect’s lack of knowledge of how the felony murder statute is applied in order to get a suspect to incriminate themselves during an investigation.
“(Police) may be interviewing a suspect who had nothing to do with anyone’s death, and they will say to him, ‘Hey, look, we know you didn’t pull the trigger, so tell us how this happened,’ knowing full well that the minute that person says they were involved in that crime in any way, they have him on the hook for felony murder.
“It certainly works most effectively on people who are uneducated and don’t understand the fact that anyone involved in a crime can be considered a principal.”
Nigh said the law should be re-examined and limited “to cases in which it should really apply. For someone to be guilty of felony murder they should have the same type of culpability as person who commits the homicide.”
Hendrick, who celebrated his 15th birthday in jail, faces an uncertain future. A competency evaluation has been scheduled for later this year, which means the criminal case against him essentially hangs in the balance. If he’s ruled unfit for trial he could end up in a treatment facility for an undetermined length of time.
His mother’s future is also ambiguous. Tonda said she tries to see her son in jail at least once a week, but “he just cries the whole time, and then I just cry, and I feel like I’m not doing any good for him. I’m not a good support system for him.”
For now she tries to stay in contact with her son’s attorney, and she obsessively checks the state’s court records database for updates to the case.
“The whole thing scares the hell out of me,” she said. “It scares him, too. He tells me ‘Mom, I’m scared.’ I’m scared to death, he’s scared to death, he doesn’t understand what’s going on.”