State v. Hebert
| Citation | 82 P.3d 470,277 Kan. 61 |
| Decision Date | 16 January 2004 |
| Docket Number | No. 88,084,88,084 |
| Parties | STATE OF KANSAS, Appellee, v. JEFFERY FRANK HEBERT, Appellant. |
| Court | United States State Supreme Court of Kansas |
Debra J. Wilson, capital appellate defender, argued the cause and was on the briefs for appellant.
John K. Bork, assistant attorney general, argued the cause, and Elizabeth L. Reimer, assistant attorney general, Stephen D. Maxwell, assistant attorney general, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
Jeffery F. Hebert was convicted of capital murder in violation of K.S.A. 21-3439, aggravated battery against a law enforcement officer in violation of K.S.A. 21-3415, criminal use of weapons in violation of K.S.A. 1999 Supp. 21-4201, and inflicting death to a police dog in violation of K.S.A. 1999 Supp. 21-4318. The jury was unable to reach a unanimous decision on a death sentence, and the court sentenced the defendant to consecutive sentences of life in prison without the possibility of parole for 50 years for capital murder, 46 months for aggravated battery against a law enforcement officer, 7 months for criminal use of weapons, and 12 months for inflicting death to a police dog. He appeals, raising numerous issues. We conclude that no reversible error occurred and affirm.
Jeffery F. Hebert, while hiding from police in the attic of his residence, shot and killed Sheriff Deputy Jim Kenney, head of the Clay County K-9 unit, as Deputy Kenney climbed the attic stairs with his police dog named Copper, searching for the defendant. The defendant then shot the police dog two times with a .12-gauge shotgun, killing the dog. Deputy Kenney fell backwards down the stairs causing Sheriff Gary Caldwell to fall and injure his hand which required "three or four" stitches. In addition to the .12-gauge shotgun, the defendant possessed two other weapons, one of which was illegal to possess: a sawed-off .20-gauge shotgun. The defendant surrendered to the police after tear gas was shot into the attic.
The events leading to the death of Deputy Kenney began on November 12, 1999, when the defendant was arrested in Morganville on a probation violation from Cloud County. The defendant was transported from Morganville, in Clay County, to the Cloud County jail later that day. Three days later, on November 15, 1999, the defendant and two other inmates escaped from jail by subduing two deputy sheriff officers. Before trial, the defendant pled guilty to two counts of battery against a corrections officer and one count of aggravated escape from custody in connection with the escape. On the defendant's motion in limine, these convictions were excluded at trial based upon their prejudicial value outweighing the probative value of such convictions.
The defendant testified that after he escaped he originally intended to hide out and live in the woods. Soon after the escape, the defendant became separated from the other escapees and the plan began to fall apart. After many miles of walking and hitchhiking, the defendant returned to his house in Morganville during the early morning hours of November 16, 1999. He drank a couple of beers, packed a duffel bag full of clothes, and gathered his .12-gauge shotgun, his .22 caliber rifle, and his .20 gauge sawed-off shotgun. The defendant testified that he intended to use the guns to hunt animals in the woods for food. He explained that he always kept his guns loaded with the safeties off because he was the only one who handled them. Around 7 a.m. the defendant called a friend, Buddy Butler, intending to ask for a ride, but changed his mind because he did not want to get Butler involved. Soon after calling Butler, the defendant fell asleep on his couch.
While the defendant was sleeping, Detective Kelly Kemp of the Clay County Sheriff's Department was gathering information from people who knew the defendant. Detective Kemp discovered the defendant's location when speaking with Butler, and he relayed this information to Sheriff Caldwell. Sheriff Caldwell instructed Detective Kemp to obtain a search warrant for the defendant's residence. While waiting for the search warrant, Sheriff Caldwell called the defendant's home telephone number three times and knocked on the defendant's door, but heard no response. Sheriff Caldwell called Deputy Kenney and asked him to come to the defendant's house with his police dog. Deputy Kenney and Copper arrived at the house around 2:30 p.m.
Meanwhile, inside the house, the defendant had just woken up. He finished packing his duffel bag and, according to the defendant, he was about to head outside to go live in the woods when he looked out the window and saw Sheriff Caldwell's vehicle parked outside. For reasons he is not able to explain, the defendant decided to take a shower. After getting out of the shower, the defendant again looked out the window, hoping one of the officers would move from their position long enough for him to escape.
At approximately 3:45 p.m., Detective Kemp arrived with the search warrant and a copy of the arrest warrant from Cloud County. Sheriff Caldwell positioned his officers in preparation for entering the house. Sheriff Caldwell knocked on the door and announced his presence. After waiting a couple of minutes and receiving no response, Detective Kemp forced open the back door. Sheriff Caldwell, Undersheriff Chuck Dunn, Detective Kemp, Deputy Kenney, and Copper entered the house.
When the defendant heard Sheriff Caldwell knocking, he gathered his three guns and went upstairs to the attic. The defendant still hoped to escape but saw a highway patrol officer was stationed outside near the window he planned to use in his escape. The defendant sat in the corner of the darkened attic and laid his guns down on the floor.
When Sheriff Caldwell and his team finished conducting a sweep of the first floor, Deputy Kenney and Copper, followed by Sheriff Caldwell, headed up the stairs to the attic. Deputy Kenney stopped four or five steps from the top of the stairs and released Copper's leash, allowing him to search the attic.
The defendant saw Copper come into the attic and he grabbed his .12-gauge shotgun. Copper briefly walked around the attic but did not notice the defendant in the corner. Copper walked back to Deputy Kenney, who was hidden from the defendant's view. Deputy Kenney grabbed Copper and told him to lie down in a voice audible to the defendant. The defendant testified that he then saw one hand come into view to pet the top of the dog's head. When the defendant saw the bill of a cap and the end of what he thought was a gun come out from behind the corner, he raised his gun and fired. After the shot was fired, the dog began running toward the defendant. The defendant shot the dog once with his shotgun, but the dog continued to run toward him, so he shot him a second time and killed him.
The bullet fired at Deputy Kenney passed through a light switch and the plywood wall. The bullet and various smaller projectiles from the light switch and wall hit Deputy Kenney on the right side of his head, causing loss of consciousness immediately. The shot threw Deputy Kenney backwards into Sheriff Caldwell, causing both of them to fall down the stairs. The fall caused Sheriff Caldwell to suffer cuts to his nose and his hand, the latter requiring three to four stitches. Sheriff Caldwell dragged Deputy Kenney out to the back porch, where a first responder, Arnold Knoettgen, soon arrived and began treating him.
Sheriff Caldwell returned to the house and instructed Detective Kemp to shoot teargas rounds through the upstairs windows to force the defendant out. Four rounds of teargas were fired into the attic. Sheriff Caldwell and the other officers began yelling to the defendant, telling him that if he came down they would guarantee his safety. After a few minutes, the defendant walked down the steps and was arrested. Deputy Kenney was still alive at this point but had shallow breathing and a weak pulse. Pam Kemp, Director of Emergency Medical Services at the Clay Center Hospital, soon arrived on the scene. Deputy Kenney was rushed to the emergency room where unsuccessful attempts were made to save his life. Dr. Timothy Penner pronounced Deputy Kenney dead at 4:50 p.m. The official cause of death was a shotgun injury to the head which caused "interruption of the brain" and loss of blood.
(1) ADMISSION OF THE DEFENDANT'S STATEMENTS
On the evening of November 16, 1999, Special Agent Brad Cordts of the Kansas Bureau of Investigation (KBI) was sent to the Clay County Sheriff's Department in connection with the investigation of the murder of Officer Kenney. Agent Cordts arrived at the jail around 7:15 p.m. and his supervisor instructed him to transport the defendant to the Geary County Sheriff's Office to conduct an interview at the Junction City Police Department.
Agent Cordts met the defendant around 8:55 p.m. and the defendant declined to receive medical attention for his various scratches and abrasions. While driving to Junction City, the defendant asked if the officer had died and Agent Cordts replied that he was unsure. Around 9:45 p.m., the defendant was taken into an interview room with Agent Cordts and they sat down at a table. The interview was videotaped, and it began with the following relevant exchange:
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