BY THE COURT
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 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.
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.
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.
Appellate courts employ a two-step analysis when evaluating
claims of reversible prosecutorial error. These two steps are
simply described as error and prejudice.
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.
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.
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
a prosecutor argues facts outside the evidence, the first
prong of the prosecutorial error test is met.
is error for a prosecutor to argue the State's case or
some aspect of it has judicial approval.
Prosecutorial acts properly categorized as prosecutorial
misconduct are erroneous acts done with a level of
culpability exceeding mere negligence.
from Shawnee District Court; Nancy E. Parrish, judge.
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
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.
and Procedural Background
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.
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
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.
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
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
arrest, and trial
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
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.
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
testified the investigation went cold around the end of 2002,
although some efforts continued.
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.
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).
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.
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.
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.
detail the State's evidence next because its strengths
and weaknesses impact the outcome.
statements concerning Chandler's whereabouts
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.
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.
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.
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.
State produced evidence Chandler planned as recently as July
2 to come to Topeka on July 6 to pick up her son.
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.
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.
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.
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
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.
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."
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.
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.
State never presented documentation, like a receipt or credit
card statement, to show Chandler purchased gas or anything
else in WaKeeney.
obsessive behavior toward the victims
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
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.
testified that on July 5, Chandler called Mike seven times,
and the second call lasted five minutes. After that, Chandler
called back five times.
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
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.
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.
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.
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.
post-arrest jailhouse phone calls
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-
"[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