State v. Lackey
| Decision Date | 30 September 2005 |
| Docket Number | No. 90,532.,90,532. |
| Parties | STATE of Kansas, Appellee, v. Robert Henry LACKEY II, Appellant. |
| Court | Kansas Supreme Court |
Patrick H. Dunn, assistant appellate defender, argued the cause and was on the brief for appellant.
John K. Bork, assistant attorney general, argued the cause, and Kristafer R. Ailslieger, assistant attorney general, and Phill Kline, attorney general, were with him on the brief for appellee.
Robert Henry Lackey, II, was convicted by a jury of one count of premeditated first-degree murder in violation of K.S.A. 21-3401(a) (Ensley 1981) and one count of rape in violation of K.S.A. 21-3502 (Ensley 1981), for crimes committed in December 1982. Pursuant to K.S.A.1982 Supp. 21-4504 of the Habitual Criminal Act (HCA), his sentence was enhanced to two consecutive terms of life imprisonment and 45 years to life. He appeals directly to this court pursuant to K.S.A. 22-3601(b)(1).
In 1982, the victim, S.B., was a 22-year-old college student who met the defendant while she was doing volunteer work at the Gospel Mission (Mission) in Salina. The defendant was a transient who was staying at the Mission and working as a cook, and he was known as Bob Moore. S.B. and the defendant developed a friendship which involved socializing outside of the Mission with friends Mark and Dora Foster. In November 1982, the defendant indicated to Mark that he wanted to date the victim, but she had rebuffed his sexual advances indicating that she only wanted to be friends. This upset the defendant and made him angry.
In December 1982, S.B. was living in a trailer park in Salina. She had been dating Jay Czarnowski exclusively for about a year, and he had a key to her residence. They had been having problems and had an understanding that they could date outside of their relationship; however, Czarnowski did not know that S.B. had done so. On Thursday, December 9, 1982, Czarnowski and S.B. got into an argument at her residence about his plans to go home for the weekend. They made up that evening and had unprotected vaginal or anal intercourse. Czarnowski went home to Lincolnville on Friday, December 10, 1982.
On that day, S.B. spoke with her mother and sister on the telephone regarding their plans to visit S.B. for Christmas. S.B.'s mother then tried to call S.B. several times throughout the next week, but S.B. did not answer. At S.B.'s parents' request, the trailer park landlord checked S.B.'s mobile home the following Thursday but did not find her.
On December 11, 1982, Pamela Chavez (now Bishop) went to work around 4 p.m. at a local tavern as a bartender. The defendant was drinking and playing pool, and he introduced himself to Chavez. She served him two pitchers of beer before he asked her to call him a cab between 6 and 7 p.m. He told Chavez that he was drunk, and he left a note for his friend Dora Foster who worked at the tavern saying that he was "messed up."
Wenda Huehl (now Plunkett) arrived at the tavern between 5:30 and 6:30 p.m. to visit Chavez. Huehl saw Chavez playing pool with the defendant and remembered that the defendant later asked Chavez to call him a cab to the trailer park where S.B. lived. Huehl specifically recalled the name of the trailer park because she lived across the street from it and had considered offering the defendant a ride, but the cab had already been called.
Yellow Cab radio logs indicated that cab driver Harvey McIntyre picked up a fare at 6:17 p.m. on December 11, 1982, from the tavern and took the fair to a convenience store about a block and a half from S.B.'s residence. McIntyre described the fare at trial as a white, slender male, in his twenties with dark hair, a little taller than himself, wearing a ball cap. The logs also indicated that a fare was picked up by cab driver William Letterman from the convenience store at 10:50 p.m. and the fare was taken to the Mission. At the time of the November 2002 trial, Letterman was deceased and his statements were admitted over objection through the testimony of a retired Salina police officer.
Although also deceased at the time of trial, Reverend George Knight told investigating officers in 1982 that he recalled that the defendant had returned to the Mission around 10 or 11 p.m. on December 11, 1982. Knight smelled alcohol on his breath but did not say anything. Knight went home and assumed the defendant was going to bed. When Knight arrived the next morning at 7:30, he was surprised to discover the defendant and his personal belongings were gone. A pair of men's underwear was subsequently found underneath the defendant's bed at the Mission.
Czarnowski returned to Salina either on the following Sunday or Monday, December 12 or 13, 1982. He recalled stopping by S.B.'s residence to see her, but she was not home. He could not recall if he went inside. Czarnowski returned to the residence the next several days looking for S.B., spoke with her neighbors, and looked for her at the Mission and several taverns. He spoke with Mark Foster indicating he was worried that she might have gone somewhere with the defendant because he would be able to take her out of the state. Czarnowski spent several nights at the trailer during the week, but he did not remember doing any housekeeping or picking up or opening of S.B.'s mail during this time. He did not go into the back bedroom that was used for storage.
By Friday, December 17, 1982, Czarnowski concluded that S.B. had left, and he decided that he was going to move his belongings out of her mobile home. He spent that night in the front bedroom and his friend Duane Newirth slept in the living room. While moving his belongings the next morning, Czarnowski discovered S.B.'s body in the closet of the back bedroom when he was looking for a stereo speaker. Czarnowski and his friend called the police.
At 12:55 p.m. on December 18, 1982, Salina police officers responded to the scene and discovered S.B.'s body in the closet of the back bedroom. S.B. was wearing socks and underwear and her jeans were pulled down around her ankles. She had noticeable bruising around her neck. Several items were blocking the closet doors where she was found.
Dr. Erik Mitchell and Officer Joseph Garman testified that the higher the temperature, the faster the decaying of a body process occurs. Although the thermostat was set at 80 degrees in the mobile home, Officer Garman did not smell the odor of a decaying body. However, there was a cold air return vent in the floor of the closet where the body was found. Officer Garman turned the thermostat down to 68 degrees to prevent the body from decaying.
Saline County Coroner Dr. David Clark arrived at the scene and made arrangements for an autopsy. Based on his observations at the scene, Dr. Clark opined that S.B. had died of strangulation and had been dead 6 to 8 days. Dr. William Eckert, who was deceased at the time of trial, performed the autopsy on December 20, 1982, and prepared a report. The State's expert, Dr. Mitchell, reviewed Dr. Eckert's report in conjunction with other evidence from the scene and over a hearsay objection testified that the cause of death was strangulation and that the death had occurred at least 1 or 2 days prior to the body's discovery, but the maximum time could have been considerably longer.
Officers found two pieces of paper on the kitchen wall which contained the names Bob Walston and Jim Hemmy (her landlord) and the telephone numbers for the tavern and a cab company. Several other papers and letters were collected from the scene, including an empty envelope addressed to S.B. and postmarked December 13, 1982, from Lincolnville. A small unopened envelope was also found in the residence which was postmarked "Fort Scott, Kansas, December 16, p.m., 1982." Salina Deputy Police Chief Barry Plunkett testified that letters found at the scene would routinely be opened during an investigation, but he could not recall whether the mail was opened in this case.
Officer Garman spoke with Czarnowski at the scene. During that conversation, Czarnowski indicated that S.B. had worked with someone named "Bob" at the Mission, who had made it known that he had "the hots" for her. Although an investigation was pursued, the case eventually went inactive until Kansas Bureau of Investigation (KBI) Special Agent Ron Hagen and Salina Police Detective Paul Forrester resumed the investigation in November 1996. They received information from Canadian authorities that a Robert Moore was involved in a 1982 homicide in Salina. Through the use of two social security numbers provided by the Canadian authorities, investigators learned the name Robert Lackey. Czarnowski and Mark Foster later identified a 1979 photograph of Lackey as the person they knew as Robert Moore. DNA testing of the body fluids on the underwear found under the defendant's bed was consistent with the fluids found in the victim's rape kit.
Armed with an arrest warrant, Hagen and Forrester tracked the defendant to Alabama where they interviewed him at the Sumpter County, Alabama, Sheriff's Department. Prior to his Miranda warnings being given, the defendant said that he had never been to Kansas when he was advised that someone named Robert Moore was using his social security number in Kansas. He subsequently said that he did not know S.B. or Robert Moore, but he may have been in Kansas in 1969 or 1970. The defendant's pretrial motion to suppress his statements made before Miranda warnings was denied. In March 2002, the defendant was extradited to Kansas and his blood was drawn for DNA testing purposes.
DNA testing was performed on vaginal, anal, and oral swabs taken from S.B., scrapings from under her fingernails, and a cutting from the underwear...
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