State v. Kesselring

Decision Date03 June 2005
Docket NumberNo. 91,051.,91,051.
Citation279 Kan. 671,112 P.3d 175
PartiesSTATE OF KANSAS, Appellee, v. MICHAEL W. KESSELRING, Appellant.
CourtKansas Supreme Court

B. Joyce Yeager, of Yeager Law Firm, L.L.C., of Overland Park, argued the cause and was on the briefs for appellant.

Trent M. Krug, assistant district attorney, argued the cause, and Trevor D. Riddle, legal intern, Charles Branson, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion was delivered by

LUCKERT, J.:

A jury convicted Michael Kesselring of aggravated kidnapping, conspiracy to commit aggravated kidnapping, and first-degree murder under a combined theory of premeditated murder and felony murder. The trial court sentenced Kesselring to a controlling term of life imprisonment with parole eligibility after 20 years, plus 234 months' imprisonment.

Kesselring appeals his convictions and sentences, arguing: (1) The jury failed to make unanimous findings of guilt on the first-degree murder charge and the aggravated kidnapping charge; (2) the first-degree murder sentence was erroneous because it was unclear which alternative means was found by the jury; (3) his right to a fair trial was violated by references to polygraph examinations taken by two witnesses; (4) the trial court erred in admitting the hearsay statements of a deceased witness; and (5) the trial court erred in admitting the defendant's mail into evidence. We affirm.

Facts

On October 3, 2000, Dale E. Miller reported to the Topeka Police Department that his son, Dale Alan Miller (Miller), was missing and that he had last spoken with his son on September 13, 2000. An investigation began which eventually raised questions about Miller's connection to a drug ring in which his cousin, Michael Reece, was involved. The investigation also discovered information that a large quantity of drugs had been stolen from the drug ring and Miller was accused of taking it.

The drug ring involved several people who testified at trial: Heather Reece, who was Reece's common-law wife; Gary Holmes, who was Heather's father; Curtis Callarman; and Scott Clift. Kesselring was a customer and friend of Reece. Reece did not testify because he died of cancer a few weeks before trial.

When Reece was indicted on federal drug trafficking charges, he came forward with information about Miller's disappearance. In April 2001, Reece led Kansas Bureau of Investigation (KBI) agents to a site where he claimed Miller had been killed and where he said agents might find some evidence, such as a shoe. The agents did recover a shoe and also a T-shirt with two bullet holes in it. Reece then led the agents to a second site where Miller's shirtless body was eventually recovered. Three .22 caliber bullets fired from the same gun were recovered from the body.

In the course of investigating Miller's death, KBI Agent Jeff Hupp interviewed many of the State's witnesses including Clift, Donna Welty, Heather, Holmes, and Callarman. Hupp testified about those interviews at trial, and where applicable, the audio or videotape of each witness' statement was played for the jury. The only eyewitness to the murder was Holmes, an admitted alcoholic and drug addict who occasionally sold drugs for Reece's organization. Holmes testified that Reece had contacted him and told him drugs were missing from the storage unit. Holmes and Reece went to the storage unit together to investigate, and Reece concluded Miller had stolen the drugs. At Reece's request, Holmes agreed to help get the drugs back.

Holmes testified that Reece picked him up that evening and they went to a motel in Topeka to pick up Kesselring. The three men returned to the Reeces' house and discussed how to get the drugs back from Miller. After Callarman arrived, the four men went outside and Reece got two guns out of a car, giving one of them, a.22, to Kesselring. Reece told Kesselring, "[T]hat's a throw-away gun . . . you can use it." Holmes and Kesselring got into a blue car, which they had borrowed from Clift so that the car would not be traceable to them, and followed Reece and Callarman to the house where Miller was staying.

Callarman testified that when they got to the house, Kesselring and Holmes hid beside the house and behind a bush while he knocked on the door. When Miller answered, according to Callarman, Kesselring and Holmes ran up with their guns and told Miller that Reece wanted to talk to him. As they walked Miller out to Reece's car, Reece told Miller to ride with Kesselring and Holmes. Holmes testified that he could not remember for sure whether he had a gun in his hand but thought he probably did. According to Holmes, Miller got in the front seat of the car Kesselring was driving, and Holmes got in the back seat. Holmes remembered having a Tek 9 gun at that time.

The plan was to meet Reece and Callarman back at the Reeces' house. As Kesselring slowed down for a yield sign, Miller jumped out of the car and ran down the street. Both Holmes and Kesselring jumped out of the car to look for him. Holmes found Miller hiding underneath a car, grabbed him by his T-shirt, and brought him back to the car at gunpoint. Holmes testified Miller was "pretty terrified."

Holmes, who was drunk, passed out in the back seat of the car. The next thing Holmes remembered was waking up because dust was rolling in the windows of the car, which was out in the country on a dirt road. Kesselring was yelling at Miller about the drugs. Miller was still denying that he had stolen the drugs and was claiming some black men had put the drugs in a different storage unit. Holmes asked, "Where the hell are we?" and Kesselring responded they were going to meet Reece.

Holmes testified that Kesselring pulled up to a bridge and shut off the car, telling Miller to get out. Holmes, who walked around the back of the car, saw Kesselring and Miller in front of the car. Kesselring was telling Miller they wanted the drugs back and that he was going to kill him. Miller pleaded for his life, and then Holmes saw Kesselring shoot Miller several times. Holmes and Kesselring threw Miller's body over the side of the bridge.

A few days later, Holmes and Kesselring returned to the scene and pulled Miller's body underneath the bridge, and a few days after that, they moved the body to an entirely different location, poured a bag of lime over it, and buried it. At first Holmes refused to assist in moving the body, but Reece offered to give him $1,000. Reece asked Holmes not to tell Kesselring about the money because Reece had given Kesselring less than that to kill Miller.

There were some inconsistencies between Holmes' testimony and the version of events he told Agent Hupp. For instance, Holmes told Agent Hupp that he was awake and threatening Miller as Kesselring drove the vehicle onto the gravel road. Holmes also did not initially admit to Agent Hupp that he helped move and bury Miller's body. Holmes told Agent Hupp he might have helped, but he was not totally sure. At trial, Holmes testified he had been drunk during the interview and, as a result, had difficulty remembering certain things. Pursuant to a plea bargain, Holmes pled guilty to reduced charges of attempted kidnapping and conspiracy to commit kidnapping and agreed to cooperate and testify truthfully in any prosecution regarding Miller's murder.

Several witnesses testified they heard Kesselring admit to the shooting. Clift testified he could not remember whether Kesselring or Reece told him about the shooting of Miller. However, in his interview with Agent Hupp, Clift first accused Reece of having murdered Miller. At trial, Clift explained he had lied about Reece being responsible because he was angry at him, believing Reece was responsible for Clift's federal indictment. Clift eventually told Agent Hupp what he knew about Holmes' and Kesselring's involvement in the murder and stated that Kesselring told him he had shot Miller in the back of the head.

Heather Reece testified she had overheard Kesselring tell Reece that Miller "wouldn't tell me where everything was at so I blew his fucking head off." The next morning, Heather went to see her father, Holmes, who told her Kesselring had shot Miller. Heather also testified that after the murder, Reece bought Kesselring a truck and told Heather to give Kesselring and his mother anything they needed. Heather gave Kesselring free drugs, paid the rent and utilities for Kesselring's mother, and took her shopping. Kesselring's mother, Deloris Walker, contradicted this testimony, stating that Heather never paid any of her bills or ran errands for her.

Callarman, who testified regarding his role in the kidnapping, also testified he heard Kesselring tell Reece that Miller was dead and also heard them discuss how to dispose of the body and evidence. Callarman testified that, while he and Kesselring were both in the Douglas County jail, Kesselring sent him several "kites" or letters asking him to say that Kesselring was not involved in Miller's murder. Two of the letters were introduced into evidence. The State also introduced several other letters and handwriting exemplars from Kesselring in an attempt to demonstrate the letters to Callarman were in fact written by Kesselring. Like Holmes, Callarman was offered a favorable plea agreement. He pled guilty to a single count of conspiracy to commit kidnapping and agreed to cooperate and testify truthfully in the prosecution of Miller's murder. The State agreed to recommend that Callarman's sentence run concurrent with his federal sentence.

In his own defense, Kesselring testified that on the night in question, he was out running an errand for his mother and stopped by the Reeces' house to buy a joint. When he got there he saw Reece, Heather, Callarman, and Holmes coming out of the house. Holmes was getting into a car with a gun. Reece told Kesselring that Miller had stolen $75,000 worth of drugs and they were...

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