Jury Rules That Killer Must Serve Life Term

An Orange County Superior Court jury found Wednesday that Dwayne McKinney of Ontario deliberately killed a Santa Ana Burger King manager during a robbery five years ago, which means he must complete a sentence of life in prison without parole.

McKinney’s 1982 first-degree murder conviction for the death of Walter H. Bell Jr. during a robbery Dec. 11, 1980, was upheld two years ago by the 4th District Court of Appeal. But the appellate court ordered a new trial for sentencing purposes, ruling that the trial judge should have instructed the jury to determine whether McKinney intended for his victim to die.

Without that finding, the appellate court ruled, McKinney could not be sentenced to life without parole. The jury that returned a verdict Wednesday had only two issues to decide: Whether the murder took place during a robbery and, if so, whether the killing was intentional.

McKinney returned to court with the same argument he had used at his first trial--that he was nowhere near Santa Ana the night of the killing. But even if the jurors at this second trial had believed him, McKinney still would have been returned to prison on his first-degree murder conviction, which carries a sentence of 25 years to life.

McKinney brought in alibi witnesses and medical evidence to show that on the night of the robbery he was still suffering from a gunshot wound to his right leg and could not have vaulted the counter, as eyewitnesses testified the robber had done.

But jurors told Deputy Dist. Atty. Jeoff Robinson later that they thought the alibi witnesses lacked credibility, and that they had been influenced by testimony from the doctor who had closed McKinney’s gunshot wound, Carmen Diorio. Diorio testified that McKinney’s wound should have healed sufficiently before the robbery for him to have committed the alleged act.

The victim’s parents drove four days from their home in Alabama to attend McKinney’s second trial. When the verdict was read, Walter Bell gasped and said, “It’s about time.”