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Appeals court hears arguments in Agee case



Published: Thu, October 24, 2013 @ 12:02 a.m.

By joe gorman

jgorman@vindy.com

YOUNGSTOWN

Kevin Agee’s name was barely mentioned Wednesday as his appeal was being argued before the 7th District Court of Appeals for a conviction on murder and other charges in the 2010 mistaken-identity shooting of an elderly South Side man.

Instead, Ken Spiert, the lawyer for Agee, 28, said his convictions for felonious assault and attempted murder for the shooting of Jacqueline Repchic, who was 74 when she was wounded in a shooting that killed her husband, Thomas, also 74, should be merged into one.

Spiert said Agee should be held accountable only for a single crime involving Jacqueline Repchic’s wounds because evidence showed that the man authorities say pulled the trigger, Aubrey Toney, had only one intent, and that was to kill the two people he saw in a car driving on Southern Boulevard near East Philadelphia Avenue on Sept. 25, 2010.

Police said Toney was looking for a man he had been feuding with and that person drove a car similar to the one the Repchics were in. Jacqueline was hit with two rounds in the feet.

Agee, who was in the SUV Toney borrowed from his cousin to commit the crime, was tried and sentenced to almost 40 years in prison in May 2012 for the counts of murder, attempted murder and two counts of felonious assault. Toney’s trial is set for Jan. 13.

The three-judge panel hearing the case is Judge Cheryl Waite, Judge Joseph Vukovich and Judge Gene Donofrio.

Spiert focused the majority of his argument on the charges other than murder, saying that Agee should have the attempted-murder and felonious-assault charges merged into one, because it was clear from Toney’s actions that he had one intent, and that was to kill the two people in the car.

He said the evidence in the case backs this up. He said seven rounds from a high- powered rifle were fired at the car in a 4.8-second burst, which showed clear intent on Toney’s part to kill both people inside the car.

“Our argument is every one of those shots was an attempt to murder,” Spiert said.

Assistant Prosecutor Ralph Rivera said case law infers that jurors can prove separate intent when more than one gunshot is fired.

Judge Waite, who asked more questions than her two colleagues, said she finds it hard to believe that someone who pulls a trigger and fires at a moving car seven times in a short time span had several separate intentions going through his mind.

“I’m struggling with the fact that just because he shoots multiple times, he has multiple intentions,” Judge Waite said.

By winning this part of his appeal and having the sentences merged, Agee would have several years shaved off his sentence but still would serve more than 30 years in prison.

The judges also will study the case record and issue a ruling at a later date.


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