State v. Finley

• Decision Date: 25 February 2000
• Docket Number: No. 81,953.,81,953.
• Citation: 998 P.2d 95,268 Kan. 557
• Parties: STATE OF KANSAS, Appellee, v. THOMAS FINLEY, Appellant.
• Court: Kansas Supreme Court

268 Kan. 557

998 P.2d 95

STATE OF KANSAS, Appellee, v. THOMAS FINLEY, Appellant.

No. 81,953.

Supreme Court of Kansas.

Opinion filed February 25, 2000.

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by

DAVIS, J.:

Thomas Finley appeals his convictions of felony murder and the manufacture of methamphetamine. The charges and convictions stem from a fire at his residence occurring during the manufacture of methamphetamine and resulting in the death of LaDonna Jones. George LaMae was also charged with the same offenses, tried separately, and convicted. We have affirmed his convictions on this date. See State v. LaMae, No. 81,771, filed February 25, 2000.

The defendant raises six points, the following two of which require us to reverse his convictions: (1) prosecutorial misconduct resulting in the loss of testimony fundamental to his defense in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution; and (2) prosecutorial misconduct during closing argument which implied that law enforcement was the duty of the jurors and appealed to their interest as members of the community. We find substance in both contentions and reverse and remand for further proceedings. We do not address the defendant's additional arguments except to say that they provide no basis for the relief requested.

On October 1, 1997, the body of LaDonna Jones was found in the attic of defendant's residence in Kansas City, Kansas, following a fire which extensively damaged the residence. An autopsy revealed that she had died as a result of the fire, and that she had methamphetamine in her bloodstream. Evidence collected at the scene suggested that production of methamphetamine was the cause of the fire.

Agent L.D. Matthews of the Drug Enforcement Agency (DEA) testified at the defendant's trial regarding the method used in this case for manufacturing methamphetamine. The drug, which is a habit-forming stimulant proscribed by Kansas and federal law, is produced from the breakdown of ephedrine or pseudoephedrine, common ingredients in over-the-counter medications such as cold tablets. The ingredients are separated from the binder material in the tablets by adding a liquid cleaning solvent such as Naptha or methanol such as that found in Heet antifreeze. The mixture is allowed to sit for a period of time during which the ephedrine is absorbed by the liquid and the binding material settles to the bottom. The liquid is then removed for further processing.

The liquid is evaporated, usually through the application of a heat source, leaving behind the ephedrine in a powder form. Red phosphorous and iodine crystals are then added to the ephedrine powder. The combination of these three powders will create heat but most manufacturers also apply heat to the powders to speed up the process. A small amount of water is added to make a syrupy mixture and the mixture is cooked for several hours until the powders have liquified.

The liquified mixture is removed from the heat and left to cool. It separates into a dark maroon liquid and a red phosphorus sludge. The mixture is filtered through a common coffee filter, and the liquid is saved. The liquid now contains methamphetamine, but not in a usable form. The liquid must be neutralized through the application of a base, such as that found in Red Devil lye. A solution of lye and water is added to the liquid. Coleman stove fuel is then added. The methamphetamine is drawn into the stove fuel and other contaminants sink to the bottom. The contaminants are discarded and either hydrochloric, muriatic, or sulfuric acid is added to the solution to make it crystallize. The result is methamphetamine in a powder form. The methamphetamine powder is white, but it can be other colors depending upon how much of the contaminants still remain. The powder is then dried out over slow heat.

If the powder contains too many contaminants, acetone is applied to clean it out. The powder is then ready to be used.

The process is very dangerous. Not only are the chemicals used at each stage very flammable in and of themselves, but their fumes can also be flammable. The acids used can eat through clothing and skin, and the lye can also cause burns. The red phosphorus used is a flammable solid which is commonly used in explosives, fireworks, and road flares. Iodine crystals, if exposed to air higher than 60 degrees in temperature, will emit poisonous fumes. If the solution is allowed to dry out too much during the cooking process, deadly phosgene gas is created. In the attic of the defendant's house, the police found four gallon cans of Coleman fuel, hydrochloric acid, acetone, glass beakers, and an electric skillet, as well as a melted plastic container with remnants of a two-layer liquid. A search of the main floor of the house revealed one empty and one full can of Coleman fuel, a plastic pitcher containing coffee filters and red phosphorous residue, and a black billfold with two spoons containing white residue. In the basement, police discovered a 32 oz. bottle of muriatic acid, a 32 oz. bottle of hydrochloric acid, a 12 oz. can of Red Devil lye and two cans of Coleman fuel. A trash bag found outside the residence contained two 32 oz. bottles of VMP Naptha, four 12 oz. bottles of Heet antifreeze, three gallon cans of Coleman fuel, one 12 oz. can of Red Devil lye, 3 funnels, coffee filters, 19 empty bottles of pseudoephedrine, as well as plastic tubing and a can of duplicating fluid. Police also searched the victim's automobile parked outside the residence, and found a 32 oz. bottle of hydrochloric acid, 2 flasks, a spoon with white residue, a hand scale, a 500 ml. glass bottle of acetic acid, a bottle of methanol, and a 32 oz. bottle of glass cleaner.

The sample from the two-layer substance found in the attic was tested by the DEA laboratory. In the top liquid layer, phenacetin, a by-product of the manufacture of methamphetamine, was detected. According to DEA chemist Gerald Skorowski, phenacetin could be present at any time after the combination of iodine and phosphorous with the ephedrine powder until the final finished product. A small amount of methamphetamine was present in the solid part of the substance. Skorowski opined that due to the presence of the methamphetamine, the substance was getting ready to be "powdered out." He also testified that the relatively small amount of methamphetamine discovered could be accounted for by dilution from impurities or contamination from the fire.

The primary question at trial for both the State and the defendant was the defendant's presence at his residence when the fire started. While the State, through its evidence, placed the defendant at his residence manufacturing methamphetamine and causing the fire at his residence, the defendant testified that he left the residence well before the fire started and returned several hours later to find his residence on fire.

The State's witness Elizabeth Scarlett testified that because of problems with her roommate, she spent the night at the defendant's house the night of the fire. She testified that Lonnie Joe Pugh and Mike Quinn were also living there. On the night of the fire, she arrived at the defendant's residence after midnight. The defendant, his girlfriend Denise Sklar, and Pugh were outside. Scarlett went to bed and was awakened later to the sound of breaking glass; she heard someone yell to get out of the house. At sometime during the fire, she saw the defendant outside the house attempting to get his pants off. She then ran to a neighbor's house to call for help. She did not see either Jones or LaMae on the night in question, although she had seen them at the house earlier that day.

The State's witness Pugh testified that he had been living in the house with the defendant and had been helping to clean up the house in lieu of rent. He had previously had the electric service provided for the house in his name but had the electricity turned off a few weeks before the incident because other persons were staying in the house and using the electricity but not contributing money to pay for it. Thus, any electricity to the residence was provided by means of a cord run from a neighbor's house.

Pugh testified that he went to bed sometime after midnight on the night of the fire. At that time, Scarlett, Quinn, the defendant, Sklar, and another person, Shawn Rader, were there. Pugh woke up at approximately 4 a.m. because he heard the defendant and Sklar yelling that there was a fire. He jumped out the window in his bedroom and then went over to move his truck away from the house. According to Pugh, he then decided to drive to the defendant's mother's house nearby and call the fire department. However, LaMae suddenly jumped into the defendant's truck. LaMae told Pugh that he needed to get out of the area because he had warrants. Pugh took LaMae to LaMae's brother's house and then went to the defendant's mother's house. Pugh, with the defendant's mother, returned to the scene of the fire. The defendant was not there. Pugh was arrested in connection with the incident. He testified that while he and the defendant were in the county jail, the defendant told him that the he and LaMae were attempting to make methamphetamine and some liquid spilled out and ignited, causing the fire.

The State's witness Rader, also known as "Slinky," testified that he was staying at the defendant's house that night because the defendant was going to help him fix his car. According to Rader, after Pugh went to bed, he saw the defendant, Sklar, LaMae, and Jones using methamphetamine. The four...