State v. Dieterman

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Questions Presented

1. Whether the trial court erred in denying Deiterman's motions for a change of venue.
2. Whether the trial court should have sua sponte ordered a change of venue after jury selection began.
3. Whether the trial court erred by failing to instruct the venire sua sponte to disregard allegedly prejudicial comments during voir dire.
4. Whether the trial court improperly limited impeachment of Meghan Deiterman concerning bipolar disorder and probation.
5. Whether testimony recounting Meghan Deiterman's statement that Deiterman 'blew his damn head off' was inadmissible opinion testimony or otherwise reversible error.
6. Whether the State improperly shifted the burden of proof by cross-examining Deiterman about the lack of supporting evidence for his alibi.
7. Whether the prosecutor committed misconduct by referring during closing argument to discrepancies between the defense opening statement and the evidence and by asserting that testimony about a collect call was fabricated.
8. Whether the trial court improperly advised defense witness Harvey Deiterman about his privilege against self-incrimination before he testified.
9. Whether cumulative error required reversal.
10. Whether sufficient evidence supported the convictions for capital murder, conspiracy to commit capital murder, and aggravated robbery.
11. Whether the trial court abused its discretion in imposing the hard-40 sentence.

Holdings

1. The trial court did not abuse its discretion in denying the motion for a change of venue because Deiterman failed to demonstrate actual community prejudice making a fair trial reasonably certain to be unavailable.
2. Deiterman was not entitled to a new trial based on the trial court's failure to order a sua sponte change of venue after voir dire because he passed the jury for cause and did not preserve the issue below.
3. The court declined to consider Deiterman's claim that allegedly prejudicial venire comments required a sua sponte instruction because no objection or request for an instruction was made and the alleged error was invited or unpreserved.
4. The trial court did not abuse its discretion by restricting questioning of Meghan Deiterman concerning bipolar disorder and by refusing further questioning about probation after she admitted being on probation.
5. The trial court did not abuse its discretion by admitting John Barnes's testimony that Meghan Deiterman said Deiterman 'blew his damn head off.'
6. The prosecution properly cross-examined Deiterman about the lack of receipts and witnesses supporting his alibi; the questioning did not impermissibly shift the burden of proof.
7. The prosecutor did not commit reversible misconduct by referring to discrepancies between the defense opening statement and trial evidence or by arguing that the collect-call account was fabricated.
8. The trial court did not err by advising Harvey Deiterman of his privilege against self-incrimination before he testified for the defense.
9. Because the court found no individual error, Deiterman was not entitled to relief under a cumulative-error theory.
10. Sufficient evidence supported all three convictions, including the aggravated-robbery conviction and the capital-murder and conspiracy convictions based in part on accomplice testimony.
11. The trial court did not abuse its discretion by imposing the hard-40 sentence after weighing the aggravating and mitigating circumstances.

Key quotations

Factual background

James Patrick Livingston was killed outside his rural home in Cherokee County, Kansas, by two shotgun blasts, including a fatal close-range shot to the back of his head. The State presented evidence that Livingston's wife initiated a murder-for-hire scheme and paid co-conspirators, including Deiterman, who allegedly acted as the shooter. Evidence also showed that after the killing Deiterman took Livingston's wallet, discarded weapons and other evidence, and made statements about the killing. Deiterman denied participating in the Kansas murder and claimed an alibi involving time spent at his father's house and with friends.

Procedural history

A Cherokee County, Kansas, jury convicted Frank Deiterman of capital murder, conspiracy to commit capital murder, and aggravated robbery. The trial court denied motions concerning venue and evidentiary matters and imposed consecutive sentences, including life with parole eligibility after 40 years for capital murder. Deiterman appealed directly to the Kansas Supreme Court under K.S.A. 22-3601(b)(1).