State v. Deiterman

• Citation: 271 Kan. 975,29 P.3d 411
• Decision Date: 20 July 2001
• Docket Number: No. 84,449.,84,449.
• Parties: STATE OF KANSAS, Appellee, v. FRANK DIETERMAN, Appellant.
• Court: United States State Supreme Court of Kansas

271 Kan. 975

29 P.3d 411

STATE OF KANSAS, Appellee, v. FRANK DIETERMAN, Appellant.

No. 84,449.

Supreme Court of Kansas.

Opinion filed July 20, 2001.

William K. Rork, of Rork Law Firm, of Topeka, argued the cause, and Michael Gayoso, Jr., and John A. Fakhoury, legal intern, of the same firm, was with him on the brief for appellant.

Kristafer Ailslieger, assistant attorney general, argued the cause, and John Bork, assistant attorney general, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

Frank Deiterman was convicted by jury of capital murder, K.S.A. 21-3439(a)(2), conspiracy to commit capital murder, K.S.A. 21-3302 and K.S.A. 21-3401, and aggravated robbery, K.S.A. 21-3427. He was sentenced to life with the possibility of parole in 40 years on the first count, pursuant to K.S.A. 21-4638, 154 months on the second, and 51 months on the third, with each sentence to run consecutively. Deiterman raises 10 issues relating to venue, evidentiary matters at trial, and sentencing. He appeals directly to our court pursuant to K.S.A. 22-3601(b)(1).

Factual background

On January 29, 1998, James Patrick Livingston was found dead outside his rural home in Cherokee County, Kansas. He died as a result of two shotgun blasts; one shot was more distant with pellets hitting the head and face, and the second and certainly fatal shot was at close range and to the back of the head.

The State's evidence showed Livingston's death was the result of a murder-for-hire scheme, initiated by his wife, Pamela Livingston. The State's key witnesses were two of the four alleged coconspirators, Alton Richard Sheffield, Mrs. Livingston's brotherin-law, and Darrell Wilkerson, the fiancé of Sheffield's daughter.

Sheffield testified Mrs. Livingston asked him to kill her husband. He agreed but demanded money, and she gave him approximately $2,500.

On January 26, 1998, Sheffield was traveling with Deiterman and Wilkerson to retrieve his broken-down vehicle in Texas. While they smoked crack cocaine, the topic of monetary debts arose. Sheffield explained that he knew of a woman who would pay money for her husband to be killed. Once the others agreed to participate, he explained that the woman was Mrs. Livingston. Deiterman volunteered to be the shooter.

The next day they went to Deiterman's father's house to pick up guns. They drove from Victoria, Texas, to Joplin, Missouri, stopping overnight in Oklahoma. Drugs were purchased and used during the trip.

Upon arriving in Joplin, Sheffield met Mrs. Livingston alone in a hotel where he was given $300 cash and a $25,000 check. After Wilkerson and Deiterman returned, they bought several items in preparation for the murder and purchased and used more crack cocaine. Sheffield agreed to pay Wilkerson and Deiterman $7,000-$7,500 for their roles in the crime. He also gave them $100 apiece from the $300 he received earlier.

Mrs. Livingston called the hotel room around midnight and asked Sheffield to meet her at the hospital. Her son and nephews were taken there after being injured in an automobile accident. Mrs. Livingston explained that the killing would need to happen that night. She gave him a map to her home and told Sheffield the best location to hide. She explained that she would call Mr. Livingston in the early morning to relieve her at the hospital, and when he came out of their house he could be ambushed.

Sheffield picked up Deiterman and Wilkerson, and Sheffield dropped them off at the victim's house. He heard two shots and then came back to pick them up. Deiterman and Wilkerson had a billfold when they entered the vehicle. In the car, Deiterman stated that it was a "rush" to kill the victim and that he would have done it for free. Deiterman asked Sheffield if he knew the last thing that went through the victim's mind. Deiterman then stated, "lead." The three put the guns in a culvert and threw the remaining evidence such as clothing and ammunition out the car window on their drive back.

Although not privy to any of the conversations with Mrs. Livingston, Wilkerson's testimony confirmed all the above facts and supplemented the version of events as given by Sheffield. Wilkerson testified that Deiterman was the shooter. Deiterman first shot the victim once from a distance of about 10 feet, and after the victim fell face down, Deiterman stood over him and shot him in the head. Deiterman then grabbed the victim's wallet. The money was taken from the wallet, and the empty wallet was thrown out the car window.

Three other witnesses confirmed that Deiterman, Sheffield, and Wilkerson were gone for several days some time during the end of January 1998. Those witnesses were Meghan Deiterman (the girlfriend and now the wife of Frank Deiterman), Ricki Wilkerson, and Jamie Sheffield (Alton Sheffield's daughters).

Deiterman testified in his own defense. He admitted to traveling with Sheffield and Wilkerson to pick up and fix Sheffield's car and that he stayed one evening with the two. He also admitted to smoking crack cocaine with them, although he stated it was his first time using the drug. He claims to have spent the other evenings in question with friends and sleeping at his father's house.

Other facts will be discussed as they relate to the specific issue raised.

Change of venue

Initially, Deiterman argues that his motion for change of venue was improperly denied by the trial court. He alleged newspaper articles and television reports had presented to the public incompetent and prejudicial evidence, especially two articles which used the phrases "a blood thirsty killer" and "the alleged trigger-man." He contends prospective jurors have been biased and prejudiced to a point where he could not receive a fair trial.

We have recently stated our standard of review for motions to change venue:

"The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. [Citation omitted.] The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial. [Citation omitted.]" State v. Anthony, 257 Kan. 1003, 1013, 898 P.2d 1109 (1995).

The trial court denied the motion for a change of venue, finding that the defense had failed to meet its burden to show that Deiterman's rights would be substantially prejudiced by not changing the venue.

The defense pointed to articles from newspapers in Joplin, Missouri, and Pittsburg, Kansas, but none were from the local Columbus, Baxter Springs, or Galena newspapers. The articles reflected facts that were shown in the charging documents and during trial proceedings of all the codefendants. Two articles used language that was inflammatory but was qualified as comments made by prosecutorial witnesses and not represented as pure fact in stating: "Prosecutors presented testimony that Deiterman was the bloodthirsty trigger-man in the killing .... Deiterman's lawyers counter that he has been set up by his co-conspirators."

The defense failed to produce affirmative evidence that public opinion had actually been swayed in Cherokee County by these reports. As is well established in Kansas law, "[m]edia publicity alone has never established prejudice per se." State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999). The trial court did not abuse its discretion in denying Deiterman's initial motion.

Second, Deiterman argues that the trial court erred by not ordering a change of venue sua sponte after the jury selection process had begun. As authority for his position, he cites In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 564, 781 P.2d 731 (1989) cert. denied 494 U.S. 1070 (1990), and State v. Alston, 256 Kan. 571, 574-75, 887 P.2d 681 (1994).

Neither case is supportive of Deiterman's argument. Alston was an appeal by a newspaper and its publisher of their convictions of indirect contempt for violating a gag order. In discussing the facts of the underlying criminal case, we noted that the trial court changed the venue of the case sua sponte due to publication of information about the defendant by the local paper. The statement is merely a recitation of facts without any accompanying comment as to whether the lower court's actions were proper. The decision has no application to Deiterman's contention.

In Hoang, a judge declared a mistrial sua sponte after discovering a preexisting attorney-client relationship between defense counsel and a key prosecution witness. In affirming the court's proactive conduct, our court opined that a "judge has a duty to maintain the integrity of the administration of the justice system." 245 Kan. at 562. Hoang was merely a review by this court of the sua sponte actions of a trial court and has no application to the present facts.

While the issue could have been revisited during voir dire, defense counsel passed the jury for cause and cannot now claim that Deiterman is entitled to a new trial based on invited error and issues not raised below. See State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999).

Deiterman finally argues, without citing any supporting authority, that a more stringent standard should be applied when considering motions to change venue in capital murder cases. We see no reason to apply a stricter standard in the present case.

Improper comments during voir dire

Deiterman next argues, without clearly specifying to the record, that the trial court erred by not instructing the venire sua sponte to disregard prejudicial statements made by other venirepersons during voir dire. Deiterman discusses only two members of the venire who made comments that might in some...