DeWeese v. State

• Decision Date: 06 August 2021
• Docket Number: 121,922
• Court: Kansas Court of Appeals
• Parties: Dane Cory DeWeese, Appellant, v. State of Kansas, Appellee.

Dane Cory DeWeese, Appellant, v. State of Kansas, Appellee.

No. 121, 922

Court of Appeals of Kansas

August 6, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Saline District Court; Jared B. Johnson, judge.

Elizabeth Seale Cateforis, of Paul E. Wilson Project for Innocence and Post-Conviction Remedies, University of Kansas School of Law, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Schroeder, J., and Walker, S.J.

MEMORANDUM OPINION

PER CURIAM

In April 2014, a jury convicted Dane Cory DeWeese of the first-degree murder of Kristen Tyler as well as conspiracy to commit the first-degree murder of Tyler. DeWeese appealed his convictions to our Supreme Court, arguing that the State had failed to disclose certain evidence that he could have used to discredit the testimony of Joel Heil-his accomplice who also testified on behalf of the State at his jury trial-in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But in January 2017, our Supreme Court affirmed DeWeese's convictions, rejecting his Brady violation argument because there was no reasonable probability that the jury would have reached a different verdict had the State timely disclosed the evidence in question. State v. DeWeese, 305 Kan. 699, 700 387 P.3d 809 (2017).

A little less than a year after our Supreme Court issued its mandate, however, DeWeese moved under K.S.A. 60-1507 in the Saline County District Court, alleging that he was in custody unlawfully because Heil had recently recanted his incriminating testimony against him involving Tyler's murder. According to Heil's written and oral statements to DeWeese's private investigator, he had lied about DeWeese's involvement in Tyler's murder because he was coerced to do so by the district attorney who prosecuted his case and by Tyler's ex-husband. Nevertheless, before the trial court considered the merits of DeWeese's K.S.A 60-1507 motion, Heil committed suicide.

Because of Heil's sudden unavailability, the State challenged the admissibility of Heil's recantation statements at any future evidentiary hearing in DeWeese's K.S.A. 60-1507 motion. The trial court agreed with the State's argument ruling that Heil's recantation statements constituted inadmissible hearsay. Yet, after the trial court made this inadmissibility ruling, DeWeese moved to voluntarily dismiss his K.S.A. 60-1507 motion without prejudice. Although not entirely clear, it seems that DeWeese moved to voluntarily dismiss his K.S.A. 60-1507 motion without prejudice because he believed that doing so would allow him to immediately appeal the trial court's inadmissibility ruling to this court. In any case, once the trial court granted his motion to voluntarily dismiss his K.S.A. 60-1507 motion without prejudice, DeWeese filed an appeal with this court.

Now, on appeal, DeWeese argues that the trial court erred by ruling that Heil's recantation statements were inadmissible hearsay. DeWeese specifically contends that Heil's recantation statements are admissible for two reasons: (1) because Heil's recantation statements comply with K.S.A. 60-460(j)'s declaration against interest hearsay exception and (2) because Heil's recantation statements are admissible under the limited hearsay exception addressed in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In its brief, the State argues that we lack jurisdiction over DeWeese's appeal because plaintiffs cannot appeal orders granting their motions to voluntarily dismiss their civil actions without prejudice under the Kansas statutes governing appellate jurisdiction. Notwithstanding this jurisdictional argument, the State also argues that the trial court's inadmissibility ruling was proper because Heil's recantation statements lack substantial assurances of trustworthiness, preventing their admission under K.S.A. 60-460(j)'s declaration against interest hearsay exception or under Chambers' limited hearsay exception.

Although DeWeese responds in his reply brief that we have jurisdiction over his appeal based on three distinct reasons, we reject his jurisdiction arguments. Simply put, a review and application of the law on voluntary dismissals without prejudice as well as the law on jurisdiction shows that Kansas has no statutory right allowing plaintiffs to appeal orders granting their motions to voluntarily dismiss their civil actions without prejudice. As a result, we dismiss DeWeese's appeal for lack of jurisdiction.

FACTS

In his direct appeal, our Supreme Court summarized the factual and procedural background of DeWeese's criminal case as follows:

"The State prosecuted DeWeese under the theory he and Joel Heil caused Kristen Tyler's death. The State essentially contended DeWeese initiated the events because he believed Tyler stole his money and drugs whereas Heil physically performed the lethal acts in DeWeese's presence. Heil extensively testified against DeWeese as part of a plea bargain with the State.

"Tyler's murder

"The State's witnesses and physical evidence showed that one night Tyler visited her friend Fancy Barboza at Barboza's house in Salina. Tyler brought along Chuck

Rowson, Barboza's step-father. Tyler asked if either Rowson or Barboza wanted methamphetamine, and Barboza answered yes. Tyler then allowed Barboza to come with her to get the drugs so long as Barboza promised to stay down in the back seat of the car. Barboza agreed, and the two left her house around 10:30 p.m.

"En route, Barboza climbed into the back seat per Tyler's instructions. A short time later, Barboza felt Tyler stop the car. Tyler got out while Barboza remained hidden. Tyler returned 10 to 15 minutes later, put the keys in the ignition, and left again with her cell phone.

"Barboza waited almost 2 hours, but Tyler never came back. When Barboza finally got out of the car, she saw it was parked by a bank close to DeWeese's house. The bank's video surveillance shows Barboza walking by around 1 a.m.

"At around 11 that same night, DeWeese had driven to Heil's house. He was upset and told Heil that money and drugs were missing from his garage and that he believed Tyler was responsible. DeWeese also told Heil that Tyler was currently at DeWeese's house to buy drugs. He wanted Heil's help in retrieving his money and drugs from Tyler and Heil agreed.

"Heil changed clothes while DeWeese called Tyler. DeWeese told Tyler to give her phone to his fiancée Megan Wells, who was also there. According to Heil, Tyler was not supposed to have a phone in DeWeese's house because 'funny stuff' was going on there.

"Before Heil left his house, he grabbed a log chain he kept in his kitchen and put it in a drawstring bag. While DeWeese drove them to his house, he told Heil his plan was to pick up Tyler and take her to the country.

"Once the two men arrived at DeWeese's house, they asked Tyler if she still wanted drugs. When Tyler said yes, they told her that she would have to go with them to another location to purchase the methamphetamine. Heil's intent was not to go buy drugs but to go beat up Tyler and retrieve DeWeese's money and drugs.

"DeWeese, Heil, and Tyler then left DeWeese's house. Heil noted Tyler's car across the street but was not aware Barboza was inside. As DeWeese drove, he slipped Tyler's cell phone-which he had retrieved from Wells-to Heil and told him that Tyler would not be coming back.

"DeWeese stopped at a gas station-not for gas but for the purpose of getting Tyler on surveillance cameras away from his house. The station's video surveillance showed Tyler entered the store at 11:39 p.m. and left a couple of minutes later.

"After they left the station, DeWeese drove into the country. When Tyler asked where they were headed, DeWeese explained they were making the deal in the country so if someone informed the police, they would know that one of the three of them was the informant.

"DeWeese stopped the car in a tunnel of an interstate overpass outside of Salina and popped the trunk. He walked to the back of the car, moved to the passenger side, and asked Heil if he was getting out. Heil exited the car, grabbing his chain from the trunk. DeWeese told Tyler to get out, and, when she complied, he asked about his drugs and money. Tyler replied she did not know what he was talking about.

"In response to Tyler's repeated denials, Heil swung his log chain and struck her in the head, causing her to fall down and start shaking. DeWeese then kicked Tyler, and Heil attempted to strangle her with the string of his hooded sweatshirt. They continued to beat and drag Tyler around the tunnel for 15 or 20 minutes. When she still made sounds, they dragged her near a fence and pushed her face into the muddy ground with their feet. Heil attempted to cover Tyler with grass while DeWeese picked up several dropped items and drove back and forth to cover any tracks.

"Afterward, DeWeese drove Heil back to Heil's house. During the drive, they discussed cleaning DeWeese's car and moving Tyler's car away from DeWeese's house. At this time Heil still had Tyler's cell phone but when it continued to receive calls, DeWeese took it from him. Records showed the phone was last powered on at 1:42 a.m.

"After arriving at Heil's house, Heil entered without DeWeese. Two neighbors were in the house along with Kimberly French, a juvenile runaway who was his housemate and the girlfriend of his cousin. Heil told the neighbors to leave and walked into his bedroom. After the neighbors left, French followed Heil into his bedroom where he told French that 'they had went and killed Kristin' and he was sorry for any involvement he had gotten her in.

"Ten minutes after Heil returned, DeWeese entered the house wearing

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