State v. Galloway

• Decision Date: 13 March 2020
• Docket Number: No. 117,941,117,941
• Citation: 459 P.3d 195
• Parties: STATE of Kansas, Appellee, v. Crystal Dawn GALLOWAY, Appellant.
• Court: Kansas Supreme Court

459 P.3d 195

STATE of Kansas, Appellee,

v.Crystal Dawn GALLOWAY, Appellant.

No. 117,941

Supreme Court of Kansas.

Opinion filed March 13, 2020.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by Rosen, J.:

Crystal Dawn Galloway appeals from her conviction of one count of premeditated first-degree murder, one count of arson, and one count of interference with law enforcement, in addition to the imposition of a controlling hard 50 life sentence.

FACTS

As of May 2015, the State of Kansas had assumed custody of five of Galloway's children. Although Galloway was not permitted to have unsupervised visits with her oldest daughter, A.B., and Galloway was to have no contact with Galloway's boyfriend, Dakota Cunningham, she nevertheless maintained contact with both A.B. and Cunningham. Cunningham's employer, Robin Fought, learned about the improper contact and discussed his concerns with Galloway's caseworker on May 8 and May 12, 2015. Fought told the caseworker that he was worried Galloway was planning on kidnapping her children and removing them from the state.

On May 15, 2015, a water worker in rural Cherokee County came across a burning pickup truck in a field. Emergency responders extinguished the fire and discovered a man lying face down on the ground near the back of the truck. The man—identified later as Fought—had blood under his body. Sitting on his back was a gas can with torn telephone book pages stuffed into the spout. His body was partially burned and he had suffered multiple stab wounds. Near the truck and Fought's body were a knife and a sledgehammer with blood stains on them.

That evening, Galloway called a friend, Glenda Stevens, and told her that a lender was seeking to repossess her van. She asked Stevens to follow her and Cunningham to help her hide the van. They abandoned the van in Oklahoma, and Stevens gave Galloway and Cunningham a ride to a barn, where the two set up a camp site inside. Along the way, they told Stevens that Cunningham had stabbed Fought because Fought pulled a knife on him.

After dropping the two off at the barn, Stevens called the police and told them about the conversation. She gave the police Galloway's cell phone, which Galloway had left in Stevens' car for recharging. The phone contained photographs and messages relating to the crime scene and indicated that Galloway anticipated killing someone.

On May 17, the Cherokee District Court issued a warrant for Galloway's arrest for second-degree murder. Police officers found Galloway and Cunningham camping in the barn and arrested them on the morning of May 17. They took them back to Cherokee County and interrogated them simultaneously but separately. Through a gradually changing narration of the events, Galloway denied having anything to do with committing a murder and told the investigators that Cunningham said he killed Fought in self-defense and that her participation was limited to providing the means for him to escape. Galloway later told a niece that Fought was killed because he turned in A.B. for visiting Galloway and because he was not paying Galloway for work she was doing for him.

Police examined both Galloway's and daughter A.B.'s phones. At approximately 8:40 a.m. on May 15, Galloway had sent A.B. a text reading: "hey going to get me a snitch yay." A.B. replied: "be careful clean your tracks and phone." On both phones was a photograph of a list of items: "different tags and car, food, water, clothes, blankets, coats, weapons, scanner for police, no phones, money, diapers and wipes, cigarettes, masks, gloves, boots, lock pick, learn schedules, learn entrances and exits to houses, tents, matches, flashlights, batteries, extra gas, maps, survival books." The list was created on Galloway's phone on May 12.

Investigators also found pictures on Galloway's phone of the field where Fought's body was found and a nearby house. The picture of the house was taken about an hour before the fire was discovered. Another picture showed Fought's body with stab wounds but not yet in the position where it was found and not yet burned. On A.B.'s phone was a picture of a note from Galloway's niece addressed to "my favorite Aunt"; the note contained a poem that ended: "Don't forget to murder rob ? YEA."

Police recovered DNA evidence showing that Galloway's blood was on the handle of the knife used to kill Fought. Her blood also was on the gas can and on the partially burned paper in the gas can.

The State charged Galloway with one count of premeditated first-degree murder, one count of aggravated arson, and one count of felony interference with law enforcement. Before trial, Galloway moved for a change of trial venue away from Cherokee County, arguing that extensive pretrial publicity and the relatively small pool of jurors would make it unlikely that she could receive a fair trial. The district court denied the motion. Galloway also moved to suppress statements she made during her interrogations, and the district court denied that motion as well.

A jury found Galloway guilty on all three charges. She was sentenced to a hard 50 life term for the murder conviction and concurrent terms of 13 months for the arson and 9 months for the interference with law enforcement convictions. She took a timely appeal to this court.

ANALYSIS

Change of Venue

Galloway initially challenges the district court's decision denying her motion to change venue. She argues this was error and she is entitled to a new trial in a different venue.

This court reviews the district court's decision on a motion to change venue pursuant to K.S.A. 22-2616(1) for an abuse of discretion. An abuse of discretion occurs "when the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision." State v. Longoria , 301 Kan. 489, 509, 343 P.3d 1128 (2015).

Galloway moved to change venue based solely on statutory grounds, specifically referring to K.S.A. 22-2616. K.S.A. 22-2616(1) directs a trial court to grant a defendant's motion to change venue if it "is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county." Media publicity alone is never sufficient to establish prejudice. State v. Verge , 272 Kan. 501, 508, 34 P.3d 449 (2001). The burden is on the defendant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality. State v. Higgenbotham , 271 Kan. 582, 591, 23 P.3d 874 (2001).

In determining whether these circumstances exist so as to create prejudice under the statutory scheme, the trial court is to consider the following nine factors:

" ‘(1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.’ " Longoria , 301 Kan. at 510, 343 P.3d 1128 (quoting State v. Carr , 300 Kan. 1, Syl. ¶ 1, 331 P.3d 544 [2014], rev'd and remanded on other grounds 577 U.S. ––––, 136 S. Ct. 633, 193 L. Ed. 2d 535 [2016] ).

In the district court, Galloway alleged that extensive media coverage of the murder and widespread discussion of the topic in the community, combined with the "high esteem" enjoyed by the victim, tainted any jury pool in the county. She attached articles in the press and online accounts of the investigation and charges. The State filed a response, arguing that the publicity was not excessive and Galloway had failed to demonstrate presumed prejudice.

Denying the motion, the district court judge said:

"Well, I have looked through the motion and the supporting documents and I have read the State's response, and while there was some publicity here I don't believe that it was untoward. In fact in my experience this is less publicity than some other cases that I've seen. I certainly don't think it reaches any kind of prima facie showing of any kind of prejudice. And there isn't any showing of actual prejudice here. I think what I would prefer to do is to go ahead and deny the motion so that we can go ahead and go on with this without it hanging over. But if during voir dire or some other information comes up Mr. Myers [defense counsel] would have the opportunity to refile with that additional information."

The district court did not address the majority of the nine factors used to assess prejudice, but Galloway did not specifically argue those factors and did not request findings on them. Although Galloway argues on appeal that the district court failed to apply the factors to the specifics of her motion, she did not make that argument in district court.

For this reason, it is difficult or impossible to review the district court judge's findings for error. "Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the trial court the opportunity to correct such inadequacies, and, when there is no objection, omissions in findings are not considered on appeal." McIntyre...