United States District Court, D. Kansas
KIMBERLY D. SHARP, Petitioner,
KAREN ROHLING, et al., Respondents.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This matter is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner at the Larned Mental Health Correctional Facility, Larned, Kansas, proceeds with counsel. This matter is ripe for review, and the court, for the reasons set forth, denies habeas corpus relief.
Petitioner was convicted by a jury in the District Court of Shawnee County, Kansas, of felony murder and one count of kidnaping. She was sentenced to concurrent terms of life without the possibility of parole for 20 years and 61 months.
Prior to trial, petitioner filed a motion to suppress her statements given to Detective Bryan Wheeles. After a hearing conducted on December 11, 2006, the trial court denied the motion. Petitioner proceeded to trial and was found guilty by a jury. On direct appeal, she presented four claims, namely: (1) did the trial court err in denying her motion to suppress; (2) did the trial court err in limiting cross-examination of a witness; (3) did the trial court err in admitting statements from two co-defendants; and (4) did cumulative error result in the denial of a fair trial. The Kansas Supreme Court rejected all of these claims and affirmed her conviction. State v. Sharp, 210 P.3d 590 (Kan. 2009). Petitioner timely filed this application for habeas corpus and seeks relief on the sole claim that the Kansas Supreme Court unreasonably applied clearly established law governing the admissibility of her confession.
During the summer of 2006, petitioner was newly-divorced, the mother of two young children, and homeless. She resided with her children at the Topeka Rescue Mission. She met her three co-defendants, also homeless, during this period.
The victim, David Owen, was unemployed but engaged in "homeless reconciliation, " a personal mission to help homeless persons reunite with their families. His approach was aggressive, and it frequently involved destroying homeless encampments, cutting up tents used by the homeless, throwing away their food, and then taking pictures of the destruction. Owen's picture was posted at the Mission, and new campers served by the Mission were warned about him.
Owen's family last had telephone contact with him on June 16, 2006, when he left a message, and they filed a missing person report on June 25, 2006. A cadaver dog located his remains in high grass near the Kansas River on July 2, 2006. The remains were approximately a quarter of a mile from the campsite of one of petitioner's co-defendants, Charles Hollingsworth.
On July 13, 2006, Detective Wheeles and Detective Mike Barron were investigating Owen's death. They found petitioner on North Kansas Avenue in the company of Hollingsworth. Because they believed she was afraid of Hollingsworth, Detective Wheeles moved petitioner away from him and eventually took her to the police station. There, he told her she was not free to leave because he believed she had an outstanding warrant from another city. Detective Wheeles moved petitioner to an interview room and gave her Miranda warnings.
During the interview, Detective Wheeles told petitioner "as long as you're straight with me, you're not going to have any problems." R. XIII, 1:34:37-1:34:40; Appendix p.2.) He also told her that he would be straightforward with her and would not lie to her during the investigation. (R. XIII; 1:35-25-1:35:35; Appendix, pp. 5-10.)
Petitioner told Detective Wheeles that she stayed in Hollingsworth's camp until June 14 when she checked back into the Mission. On the following day, she did her chores at the Mission and then went to the Hollingsworth camp until early evening. Petitioner reported to Wheeles that she, Hollingsworth, Carl Baker, and John Cornell were in the camp when Owen, the victim, came into the area.
According to petitioner, Owen told them they should not camp and that they should call their parents. He also said that if they had not been there, he would have destroyed the camp. Baker began to argue with Owen, and Owen said he was going to call the police and reached for his phone. Baker and Hollingsworth then knocked Owen to the ground, and Hollingsworth struck him. Owen begged to be let go and said he would not bother them anymore. Baker, though, said that he believed Owen would immediately report the encounter to police.
Petitioner reported to Wheeles that she told Hollingsworth and Baker, "I can't, I can't watch this." Hollingsworth then took Owen out of the camp. When petitioner went to check on them, she saw the victim kneeling on the ground and Hollingsworth standing over him with an ax.
Petitioner thought Hollingsworth was going to kill Owen and urged him not to, saying "... no, don't do that, don't do that.... I can't be an accessory.... I got two kids that are coming home, you know." Hollingsworth replied, "okay, okay. Go get me a rope." Cornell brought a rope, and Hollingsworth and Baker used it to bind Owen's hands and feet. Baker stuffed a cloth into Owen's mouth.
Baker and Hollingsworth then dragged Owen away, leaving petitioner and Cornell at the camp. Cornell burned the victim's personal property, including his phone, notebooks, wallet, shoes and socks.
About 20 minutes later, Baker and Hollingsworth returned to the camp and told the others that they had tied Owen to a tree. Petitioner asked about the victim's condition, and Hollingsworth told her not to worry about it. Petitioner asked, "You didn't kill him, did you?", and Baker replied, "We didn't kill him yet." Baker then told petitioner he was teasing, and Hollingsworth told her they would take Owen some food later. Petitioner declined to go with them and said she needed to return to the Mission.
At some later time, petitioner learned that Owen had been found dead. She asked Hollingsworth and Baker about it and was told they had untied Owen and let him go. Neither made any admission to petitioner concerning Owen's death.
Petitioner cried as she described these events to Detective Wheeles, and he told her, "you're doing a good thing here. You're telling me exactly what you need to tell me and I hate having to make you go through this." Detective Wheeles asked petitioner to again describe the events, and as before, petitioner described herself only as a witness to the encounter with Owen. She stated she had tried to dissuade Hollingsworth from harming Owen and said that Cornell had burned Owen's property at Baker's direction.
At that point, Detective Wheeles and petitioner had the following exchange:
Q. Okay, now, here's - here's an important part where you and I got to figure out. I know this is a scary deal for you. I appreciate everything that you've been honest with me about and I want you to answer this question for me honestly too, okay. Even - because I understand you're in a bad situation here where you just seen something like this happen and you're really probably very scared as to not go along could mean major problems for you.
A. Oh, yeah.
Q. Right? Like you could be in danger?
A. Oh, yeah.
Q. Did you help burn the stuff?
Q. Did you have his phone and his bag at any point?
A. No, I didn't.
A. I didn't.
(R. XIII; 1:56:90-1:56:47; Appendix, p. 22.)
The conversation continued:
Q. If you were scared and you were helping him burn things because you were afraid they were going to hurt you if you didn't go along, you need to tell me right now. Are - are you picking up on what I'm telling you?
Q. You cannot, cannot hold anything back in this thing at all Kim, you can't. This is as serious as it comes.
A. I know, I know, I know.
A. Yeah, I helped burn.
Q. Okay. Now-
A. Am I going to jail?
Q. No, no, no, no, no, no, no, no, no, no. You are - you - you you are a witness to this thing so long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared-
A. I was very.
Q. - when you did what you did. I understand the whole situation.
Q. Just don't tell me no if I ask you something.
(R. XIII, 1:59:10-2:00:07-2:00:56; Appendix, ...