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State v. Chandler

Supreme Court of Kansas

April 6, 2018

State of Kansas, Appellee,
v.
Dana L. Chandler, Appellant.

         SYLLABUS BY THE COURT

         1. When reversal is appropriate in a criminal case, an appellate court must also address a defendant's challenge to the sufficiency of the evidence because another trial on the same charges would violate the right to be free from double jeopardy if the evidence in the first trial could not support a conviction.

         2. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt after reviewing all the evidence in a light most favorable to the prosecution. The appellate court does not reweigh evidence, resolve evidentiary conflicts, or reassess witness credibility when reviewing the evidence's sufficiency.

         3. The State must prove each element of a criminal offense. Circumstantial evidence and the logical inferences properly drawn from that evidence can be sufficient to support a conviction even for the most serious crime.

         4. Presumptions and inferences may be drawn from established facts, but presumption may not rest on presumption or inference on inference. This rule means an inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility.

         5. Appellate courts employ a two-step analysis when evaluating claims of reversible prosecutorial error. These two steps are simply described as error and prejudice.

         6. To determine prosecutorial error, an appellate court decides whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial. If it finds error, the appellate court determines if that error prejudiced the defendant's right to a fair trial.

         7. In evaluating the prejudice step for reversible prosecutorial error, an appellate court applies the traditional constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error during a trial is harmless if the State shows beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire record, i.e., there is no reasonable possibility the error contributed to the verdict.

         8. Every prosecutorial error will be fact specific, and any judicial review for prejudice must allow the parties the greatest possible leeway to argue the particulars of each case. An appellate court considers all alleged indicators of prejudice, as argued by the parties, and then determines if the State has met its burden, i.e., shown there is no reasonable possibility the error contributed to the trial's outcome.

         9. When a prosecutor argues facts outside the evidence, the first prong of the prosecutorial error test is met.

         10. It is error for a prosecutor to argue the State's case or some aspect of it has judicial approval.

         11. Prosecutorial acts properly categorized as prosecutorial misconduct are erroneous acts done with a level of culpability exceeding mere negligence.

          Appeal from Shawnee District Court; Nancy E. Parrish, judge.

          Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause in the original argument and was on the original briefs for appellant; Stacey L. Schlimmer, of Schlimmer Law, LLC, of Overland Park, argued the cause on reargument, and Adam D. Stolte, of Stolte Law, LLC, of Overland Park, was with her on the supplemental brief for appellant; Dana L. Chandler, appellant, was on the pro se supplemental brief.

          Jacqueline Spradling, chief deputy district attorney, argued the cause in the original argument, and Jodi Litfin, assistant district attorney, Chadwick J. Taylor, former district attorney, and Derek Schmidt, attorney general, were with her on the original brief for appellee; Jodi Litfin, assistant solicitor general, argued the cause on reargument, and Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were with her on the supplemental briefs for appellee.

          OPINION

          Biles, J.

         In a criminal prosecution, the State's obligation is to ensure its case is vigorously, but properly, championed to bring about a just conviction-not merely a win. Prosecutors are the State's instrument in fulfilling this duty. When they fail, our system fails, and the safeguards protecting the constitutional right to a fair trial strain to the breaking point. That is what happened in this case. To its credit, the State belatedly concedes one serious prosecutorial error, although there were more. We reverse Dana L. Chandler's premediated first-degree murder convictions. We remand this case to the district court for further proceedings.

         Factual and Procedural Background

         Mike Sisco and Karen Harkness were found dead in Karen's Topeka home about 2 p.m. on July 7, 2002. Both were shot at least five times. They were in bed as the shooting began.

         There was no evidence anything was missing. When the bodies were discovered, Karen was wearing jewelry, including a diamond bracelet, a Rolex watch, and a gold ring. Mike's wallet was in his shorts. It contained two uncashed checks and $951.83 in cash. Karen's purse was on the kitchen counter. It had a billfold and $352.85 in cash. Mike's checkbook was on the dining room table. A sliding glass door leading into the house from the back was ajar. The gun was never recovered, and no fingerprints were found on the empty shell casings.

         The pair had been to a casino about 45 minutes from Karen's home until about 1:30 a.m. on July 7. Several neighbors testified about their observations those early morning hours. One said she heard a car idling around 2 a.m. for 15 to 20 minutes. Around 3 a.m., she heard a loud pop she thought was a gun shot or car crashing into something. Another neighbor got home at 1 a.m. and saw no vehicles near Karen's home. At 3 a.m., he heard a car door, saw the taillights of Mike's SUV, and then heard another car door. One neighbor testified she noticed Karen's garage door open at 5 a.m., which was unusual.

         Several family members suspected Chandler, Mike's ex-wife. Mike initiated the divorce in 1997 and obtained custody of their children. At the time of the murders, Chandler lived in Denver, Colorado.

         Topeka Police Department Sergeant Richard Volle called Chandler on July 7 to give the death notification. Her failure to ask certain questions, such as where Mike was when killed and if anybody else was murdered, struck Volle as suspicious. He obtained her phone and financial records. A nine-year investigation ensued.

         Timeline, arrest, and trial

         On July 11, 2002, Volle interviewed Chandler at her attorney's office while she was in Topeka for Mike's funeral. During that meeting Chandler gave the first explanation for her whereabouts on July 6 and 7. A police officer went to Denver on July 11 and 12 to search her apartment and investigate her alibi.

         On July 15, 2002, Chandler was arrested in Topeka on a child support warrant. Her black Mitsubishi Eclipse was seized. The car had an Arizona license plate. No evidence linking Chandler to the murders was found in the car.

         In August 2002, a $30 check forged on Mike's bank account was presented at a Kwik Shop. The investigation uncovered that Walt Rogers passed the check, and Terry Tignor had given it to Rogers. Both had extensive prior criminal records. At trial, a defense theory was that Mike and Karen were killed during a burglary and the police failed to investigate similar burglaries in Karen's neighborhood. The check was drawn on a different bank account than the ones found in Karen's home.

         Volle testified the investigation went cold around the end of 2002, although some efforts continued.

         In May 2003, Chandler's hair was collected and compared with hair and fiber samples from the crime scene. The samples were not hers. Chandler eventually moved to Oklahoma.

         In July 2011, the Topeka Police Department coordinated a two-week "surveillance gathering" in Oklahoma so that a "safe interview could be conducted and at a point after that a safe arrest could be made, " as it was described by Topeka police detective Douglas Searcy. Police searched Chandler's home and her sister's home in Oklahoma. No evidence linking Chandler to the crimes was discovered. She was charged with two counts of premeditated first-degree murder. See K.S.A. 21-3401(a).

         The State recorded Chandler's post-arrest jailhouse phone calls. And on the eve of trial, the State sent a limb hair discovered on a shell casing for comparison to known samples from Chandler and the victims. The test excluded all three as possible matches for the hair.

         The trial was held in March 2012. There were 10 days of testimony during which the State called over 80 witnesses and had nearly 900 exhibits admitted into evidence. Yet despite this testimonial and documentary bulk, the State's case relied on limited circumstantial evidence: (1) Chandler's inconsistent statements concerning her whereabouts on July 6 and 7, 2002; (2) her gas purchases on those days; (3) her obsessive behavior toward Mike and Karen; and (4) two arguably incriminating post-arrest jailhouse phone calls.

         The jury convicted her of both premeditated first-degree murders. At the sentencing hearing, the district court found Chandler knowingly and purposely killed more than one person and that the crimes were committed in a heinous, atrocious, and cruel manner. Those findings permitted the court at the time to sentence Chandler to two consecutive life sentences, each carrying a mandatory minimum 50-year prison term. See K.S.A. 21-4635.

         We detail the State's evidence next because its strengths and weaknesses impact the outcome.

         Inconsistent statements concerning Chandler's whereabouts

         Receipts and credit card statements confirm Chandler was in Denver at 2 p.m. on July 6. Receipts also confirm she was in Loveland, Colorado, north of Denver, around 5 p.m. on July 7. She provided at least three explanations about where she was the 27 hours in between.

         During her July 11, 2002, interview with Volle, Chandler said she left her house around 10 a.m., July 7, and drove through the mountains on I-70, travelling west towards Dillon, Colorado. She said she hiked near Granby and took Highway 34 to Estes Park. The State presented evidence Chandler did not know there was a lake near Dillon visible from the road. The State also presented evidence her car was not seen on video taken from the guard gates at Rocky Mountain National Park, through which she would have had to pass.

         In July 2002, Chandler called an acquaintance and asked him for a referral for an attorney. During that conversation, she told him she was in Denver all weekend on July 6-7.

         In August 2002, Chandler met in Denver with another acquaintance, Jeff Bailey, to ask for money for her defense. She told him she had lied to police about where she was because she did not think they would believe her. She gave Bailey a third account, telling him she bought gas in Denver and drove to Glenwood Springs, Craig, Steamboat, towards Fort Collins, and then back to Denver. He asked if she had seen smoke from forest fires he recalled from television reports. Chandler said no. The State presented evidence she would have seen smoke along this route.

         The State produced evidence Chandler planned as recently as July 2 to come to Topeka on July 6 to pick up her son.

         Chandler's gas purchases

         On July 6, Chandler bought $21.28 in gasoline in Denver. She also purchased a cigarette lighter and two 5-gallon gas cans at a Denver AutoZone. Her next known gas purchase was at 5 p.m., July 7, for $24.10 in Loveland.

         During the July 11, 2002 interview with Volle, Chandler mentioned buying the lighter, but not the gas cans. Police found a 5-gallon gas can with a "small amount of gas [in it], less than a cup" in her apartment during the July 11-12 search. The State produced evidence Chandler could not have driven from Denver to Topeka and back to Loveland without stopping for more fuel, even if she had both 5-gallon gas cans and her vehicle's full fuel tank.

         But this was also too much gas to cover the shorter route through Colorado Chandler claimed to have taken. And there is testimony the gas purchases are inconsistent with the longer route she also said she took through Colorado, although it is unclear whether there was too much or too little gas for that. In her pro se supplemental brief, Chandler contends the longer route was 487 miles and within her vehicle's fuel capacity without using the 5-gallon cans.

         Since Chandler's known gas purchases could not have fueled a trip to Topeka and back, police investigated whether she stopped along I-70 between Oakley and Topeka. In July 2002, Detective Michael Barron and another detective spoke to Patti Williams and Margaret Linden, who were WaKeeney Amoco station employees. Williams died before the preliminary hearing and trial. The State was not permitted to prompt Williams' hearsay testimony from other witnesses about what she may have said-a point repeatedly emphasized by the State at trial.

         Linden was asked about a black Mitsubishi she said stopped at the station. She testified: "I saw, I believe it was-I thought it had been Colorado, but it wasn't. If my cashier was alive today she would tell you it was West Virginia or Virginia, one or the other." Linden continued that she went out and checked to make sure the driver hung up the pump because her cashier was worried about the driver "not paying the bill yet and buying certain different titled books of some sort." She again testified she thought the car had a Colorado tag, but that "was wrong." And she described the Mitsubishi Eclipse as "[s]mall, kind of small-medium sized, I would say, maybe." Detective Barron testified that when he interviewed Linden, she did not identify Chandler. He said Linden told him she thought the black Mitsubishi had a Virginia tag, but also told him the car had a Colorado tag.

         The State called Marla Pfannenstiel, who worked with Williams and Linden. The court permitted the State to ask Pfannenstiel about how Williams behaved while talking to Detective Barron. Pfannenstiel testified Williams "was very meticulous in her job . . . [and] an observant cashier. . . . [S]he studied people." Pfannenstiel said Williams took officers over to a self-help book display and pulled some off a shelf. During this testimony the prosecutor prompted five times to the effect: "Now I want to be sure in my questions I'm not asking you what Patti said."

         The prohibition on discussing Williams' statements came up again during Volle's testimony. The prosecutor asked if he talked to Amoco employees but instructed him not to "tell us what they said." He testified he talked to Williams and showed her a photo array.

         The defense recalled Detective Barron to question him about Linden's car tag identification. On cross-examination, the prosecutor segued into testimony about Williams without drawing an objection. The prosecutor asked whether Barron spoke with Williams and admonished him, "You cannot tell us what . . . Williams said to you because she's since passed away. None of my questions-I'm not asking what Patti said to you. Okay?" Barron was then asked to describe what happened, and he said he showed Williams a photo array and she took him to a stack of books. The prosecutor reiterated to the officer "without telling us what Patti said" to describe the books. He said Williams handed him titles such as Overcoming Hurts and Anger, Have You Felt Like Giving Up Lately, and The Weapons of Prayer.

         The State never presented documentation, like a receipt or credit card statement, to show Chandler purchased gas or anything else in WaKeeney.

         Chandler's obsessive behavior toward the victims

         The State admitted considerable evidence Chandler engaged in obsessive behavior toward Mike and Karen: (1) making numerous telephone calls to them; (2) verbally accosting them; (3) spying on them at their homes and in public places; (4) entering Mike's home without permission; and (5) trying to reconcile with Mike up to several weeks before the murders.

         Chandler told police she only talked to Mike every few months, but contrary evidence showed that to be false. Alice Casey, an FBI crime analyst, testified Chandler placed 645 calls to Mike's home phone, Mike's cell phone, and Karen's home phone between January and July 2002. Some were episodes of "rapid calling." For example, on February 27, Chandler made 22 calls in 31 minutes to Mike's home. On April 19, she made 12 calls in 13 minutes to Mike's home. And on June 3, she made 17 calls in 18 minutes to Mike's home, his cell phone, and Karen's home. Casey testified that out of 269 days of subpoenaed records, only 12 days showed no phone activity, including July 6. Chandler had two calls on July 7.

         Volle testified that on July 5, Chandler called Mike seven times, and the second call lasted five minutes. After that, Chandler called back five times.

         Several witnesses testified about Chandler's other behavior toward Mike and Karen. For example, Chandler's daughter said Chandler would often show up at places she was not expected. The daughter described one instance when Chandler pulled up to their car after a theater performance to scream obscenities. She said Chandler would sometimes sit with the children in her car outside Mike's house during visitations.

         Chandler's son testified he found her snooping through Mike's paperwork in the kitchen when she came to pick him up even though he expected her to wait outside. He said Chandler made the kids spy on their dad in 1999 or 2000 by sitting in the car outside Mike's home. And once after Mike and Karen started dating, Chandler drove from Lawrence to Karen's home in Topeka during a visitation, parked outside, and waited for an hour or two. Chandler and Mike got into an argument outside the home.

         One of Karen's neighbors testified she saw a black Mitsubishi parked along the road sometime in the year before the murders. Another testified she observed a confrontation between Mike and Chandler two or three years before the murders. Chandler's car had been idling outside for a while; two kids were in the car. Chandler approached Mike and Karen when they arrived.

         Mike's sister and brother testified Mike told them he returned home in May 2002 to find Chandler sitting inside the breezeway, and Chandler told Mike they should live together as a family.

         About a month before the murders, Chandler told a friend she entered Mike's home through a window. She said Mike's house was filthy and asked if she should call child protective services. Chandler said she sat outside Karen's home, but drove back to Denver when Mike and Karen did not return.

         Chandler's post-arrest jailhouse phone calls

         About 12 hours of audio collected from Chandler's jailhouse phone calls were admitted into evidence, although nothing was played in the State's case-in-chief. In closing, the State used two calls between Chandler and her sister, Shirley Riegel, to argue for conviction. The first was recorded after a day when the State presented evidence at the preliminary hearing. Chandler and her sister were happy with how things went. Chandler said her attorney said "they should cut me loose but they probably won't." Later, they discussed learning that Williams, the Amoco worker, had died and could not testify:

"[Chandler]: [The prosecutor] hasn't said anything, but it kind of came up today. You know they keep wanting to talk about that Patti Williams?
"[Riegel]: I don't know who that is.
"[Chandler]: She is ah. Remember how we told you about that book in WaKeeney that they said I bought, in WaKeeney, Kansas; and I said I didn't.
"[Riegel]: Oh, yeah, yeah that girl.
"[Chandler]: At the Amoco station.
"[Riegel]: Oh yeah, that girl.
"[Chandler]: Well, anyway, she is dead.
"[Riegel]: I know. That is huge for you. Yes, that is huge for you.
"[Chandler]: And [the prosecutor] keeps trying to sneak in what she said because that you know little piece of information could potentially put me in Kansas. But that is the only thing.
"[Riegel]: Well Dana, that witness that she tried to get to speak for her-
"[Chandler]: Linden.
"[Riegel]: Totally flubbed that up.
"[Chandler]: I know.
"[Riegel]: Tell me what. She didn't even work there at the time. I mean that totally screwed that testimony up. So if that is what they are leaning on-
"[Chandler]: Uh, huh.
"[Riegel]: I mean-
"[Chandler]: Because they got to at least put me in Kansas. ...

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