State v. Flack

541 P.3d 717

STATE of Kansas, Appellee,

v.Kyle Trevor FLACK, Appellant.

No. 115,964

Supreme Court of Kansas.

Opinion Filed January 19, 2024.

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause, and Meryl Carver-Allmond, of the same office, and Debra J. Wilson and Reid T. Nelson, of Capital Appeals and Conflicts Office, were with him on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Natalie Chalmers, assistant solicitor general, argued the cause, and Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, were with them on the briefs for appellee.

Alice Craig, of Lawrence, was on the brief for amici curiae Midwest Innocence Project, joined by Witness to Innocence and Floyd Bledsoe.

Per Curiam:

A jury convicted Kyle Flack of capital murder, first-degree murder, second-degree murder, and criminal possession of a firearm. In a separate proceeding, it sentenced him to death after finding two aggravating factors that were not outweighed by mitigating circumstances. On direct appeal, Flack raises numerous issues. We affirm his convictions and the sentence.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Andrew Stout and two friends, including Steven White, lived at Stout's house in rural Franklin County. Flack, another friend of Stout's, occasionally spent time there. Flack brought a shotgun with him everywhere, usually keeping it in a black duffel bag, and even slept with it nearby. Stout was dating K.B. and intended for the friends to move out by May 1, so she and her 18-month-old daughter, L.B., could move in.

After not hearing from Stout, on May 6, some concerned friends went to his home to look for him. While checking an outbuilding near the house, they discovered a body under a tarp, later identified as White. They called 911. Investigators found two more bodies in the house, later identified as Stout and K.B. The investigators suspected Flack, who they located in Emporia at a friend's apartment. Officers arrested him shortly after midnight on May 8, and read him his Miranda rights. They searched the Emporia apartment, finding a black duffel bag. It contained a shotgun cleaning kit, a roll of duct tape, and zip ties.

Flack provided his versions of events to detectives twice after his arrest. His story evolved during those interviews. The first started around 3:30 a.m. on May 8 in Emporia. By that time, officers had identified White's body in the outbuilding but not the two in the master bedroom. They considered L.B., the child, to be missing.

First interview

In what the State depicts as Flack's first of eight versions of events, he claimed to last see Stout, K.B., and L.B. on April 27 at Stout's house. He said Stout and K.B. planned to go bowling after Flack and Stout bought cigarettes. Flack claimed they separated in Pomona, where his friend, Kenneth Douglas, picked him up and drove him to Emporia.

As details emerged, so did inconsistencies. Flack said he and Stout went to Ottawa before Pomona. Stout dropped him off at the Pomona Dollar General, and Flack then went to a nearby cemetery with two women, who later took him to Ottawa. From there, his stepbrother picked him up, and he slept on the stepbrother's couch that night. He did nothing the next day, April 28, other than walk around Pomona.

Then, Flack said he went to Emporia on April 29. But before going, his stepfather dropped him off at Stout's house, where he played video games for a half hour. At that time, some people stopped by looking for Stout. The stepfather returned and took him to the Pomona Dollar General, where Douglas picked him up to go to Emporia. Flack said he stayed with Douglas while there, and he bought a new cellphone after Douglas' kids broke his old one. He later changed that story, saying he broke the phone himself. He acknowledged speaking to Stout's mother by both phone and text during this time.

Without prompting, Flack mentioned his shotgun, claiming Stout kept Flack's 1300 Remington in his bedroom closet. He also mentioned buying "PDX Defender" shotgun shells from Wal-Mart a few months earlier.

Flack also claimed Stout sold marijuana, and every resident at Stout's house used drugs. When describing White, he said White brought "tweakers" (methamphetamine users) to Stout's and that made Stout nervous. The last time Flack saw him, White "was fuckin' out of his mind, like been up too long, like you could see his eyes all fucking black and sunk in." Flack got along with White, but he would not call him his "best friend."

Flack's second version began after Detective Tammy Alexander confronted him with other witness statements. She told Flack that Douglas denied his kids broke the phone and said he picked up Flack in Emporia, not Pomona. Alexander told Flack the victims were shot with a shotgun, and that "Defender" shotgun shells were at the scene; she noted K.B.'s car was found in Emporia, where Flack had been.

Flack eventually said he was in Emporia to sell drugs. He sold "dope" (methamphetamine) to a group of Mexicans known as the South Side Lobos. He also claimed to work for "Omar," a bald-headed Mexican with a 13 tattooed on his chest, whom he had met in prison. Omar, in turn, introduced Stout to "Chewie," so Chewie could supply Stout with marijuana for dealing. Omar drove him to Emporia, and from there Douglas picked him up. Flack appeared to be explaining why he lied about the place where he met Douglas and attempting to align his story with Douglas'.

Flack then mentioned going to Stout's on April 29 or 30. Finding the door locked and no one home, he walked to the outbuilding, where he noticed something unnatural because the dog's bowl was outside and windows left open. In the outbuilding, he saw a foot hanging out from a tarp. Not knowing what to do, he left the residence.

The conversation returned to Omar, Chewie, and Flack's Emporia business. He described delivering drugs for Omar right after being dropped off in Emporia. He said Omar gave him a car, telling him he could use it if needed. Seeing the car's license plate, Flack told Alexander that in "[t]hat moment I knew it was my ass," because he realized it was K.B.'s car. Even though he did not think it could be proven and did not know why Omar would want to kill Stout, he said, "I guess they did it, but I don't know."

During questioning, Alexander showed Flack a mugshot and asked if he knew the person. His answer was unclear. Alexander later testified the photo was of a long-deceased person named Omar who had been arrested in Emporia but had never been in the Hutchison prison while Flack was there. At the end of the Emporia interview, Alexander asked what happened to L.B. Flack told her "they ... took the kid," and "the dude could be a child molester." Officers then transported Flack to Ottawa, where he rested and ate.

Second interview

The next day in Ottawa, Flack's interview began his third version. In this iteration, he claimed Omar and Chewie killed Stout and K.B. while Flack was at the house. He did not see L.B. that day. The murders happened a day or two before the people stopped by Stout's and found Flack at the house alone.

On the day of the murders, Flack went to Stout's with Omar and Chewie, who went in, while he stayed outside. Upon hearing a gunshot, he became frightened and fled. Flack saw Omar and Chewie carry duffel bags from the house. Flack contacted his stepfather for transportation. Flack spent time in Ottawa and Pomona before going back to Stout's, getting K.B.'s car, and driving it to Emporia.

Later in the interview, Flack's fourth version emerged, placing himself inside the house during the murders. According to this account, Omar, Chewie, and Flack were at Stout's because Stout owed Omar money. All three went into the house, and, once inside, Omar and Chewie entered Stout's bedroom with Stout and shut the door. Flack heard two gunshots and ran out. Outside, he heard additional gunfire. Seeking cover under the front porch, he witnessed Omar leaving with drugs and a shotgun. After Omar and Chewie left, Flack discovered Stout's lifeless body in the bedroom under a pile of clothes. He then took K.B.'s keys from her purse, walked to the outbuilding, and noticed another body under a tarp. He took K.B.'s car to Ottawa, called Douglas to plan to visit Emporia, and drove K.B.'s car to Emporia a day or two later.

Up to this point, Flack had not described White's death. That changed with his fifth version, in which he claimed a "skinny Mexican" killed White. Based on this version, the day White died, he met with Omar, Chewie, and the Mexican in Ottawa and they all drove to Stout's. Omar and the Mexican went inside where Stout, K.B., and White were. Flack and Chewie stayed outside. When Omar and the other man came back outside, everything seemed fine. Flack thought they would leave, but Omar asked about guns. Flack brought his shotgun outside, and the group took turns shooting it. White came out and joined in.

After White fired the gun, he handed it to the Mexican. While the others chatted, White and the Mexican went to the outbuilding. Flack heard a gunshot. The Mexican came out and went into the house with Chewie. Three more gunshots were fired. The two men came back out with a duffel bag, keys, and a wallet. They then drove back to Ottawa, leaving Flack with K.B.'s car. Omar told him to get rid of the car.

In his sixth version, Flack told detectives he and Stout shot White in mid-April. He claimed Stout and White argued one day about White living there rent-free. Later that evening, Stout told Flack he did not know what to do about White. Flack told him, "[J]ust shoot him." Stout replied, "[I]f I do that[,] I'll have to bury him." Flack told Detective Jeremi Thompson, "[T]hat's when the joking stopped." The next day, Flack and Stout discussed the situation again. Responding to Stout's worry, Flack told him to "just do whatever you need to do" and that he had Stout's "back."

Not long after that, Stout asked...