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Keen A. Umbehr, Esq. 1433 SW Arbor Valley Drive Topeka, KS 66615 785.230.8093 keen @keenjustice.com August 18, 2016 Sent Via USPS Mail and Electronic Mail Ron W. Paschal Deputy District Attorney Sedgwick County Courthouse 535.N. Main Wichita, Kansas 67203 Re: In the Matter of Jacqueline J. Spradling, Docket No. DA12,581 Dear Mr. Paschal My purpose in writing is to acknowledge receipt of your letter dated August 5, 2016, informing me that you have been assigned to investigate the complaint which I filed against Assistant District Attomey Jacqueline Spradling on July 27, 2016. Since receiving your letter, I have been compiling additional documentation pertaining to Counts 11 and Il of my original complaint. Enclosed please find a nine-page document containing this supplemental information. 1 would also like to offer to provide documentation on other allegations of prosecutorial misconduct which I have uncovered during my research into Jacgie Spradling’s handling of the Dana Chandler case. For example, during closing arguments, Ms. Spradling made the following statement to the jury: “You know why, the lack of forensic evidence is proof of premeditation. She planned it in advance.” | have compiled a list of approximately fifteen examples which I believe constitute prosecutorial misconduct and/or a violation of one or more of the KRPC. Lastly, I need to inform you that I will be out of state for approximately 45 days beginning Sunday, August 21, 2016. Should you need to speak with me directly before my departure, please call the phone number listed above. After August 21, my wife Eileen will be answering all my calls, Sincerely yours, Kes bee Keen A. Umbehr SC #22047 Enclosures Supplemental Information for Counts I and III Regarding Jacqie Spradling’s Claim That Michael Sisco Obtained a Protection from Abuse (PFA) Order Against Dana Chandler Please Note: All italicized notes below represent personal commentary from Keen Umbehr. Synopsis: It is an established fact that Michael Sisco never applied for, or obtained, a Protection from Abuse Order against Dana Chandler. Therefore, | allege that Shawnee County Chief Deputy Jacqie Spradling knowingly and intentionally: 1) Deceived Judge Nancy Parrish in the 60-455 Motion #59, which Jacgie Spradling filed under seal on January 23, 2012, resulting in a ruling from Judge Parrish allowing the State to enter evidence, including “.. . the October 15, 1998 PFA Order” ~an order which did not exist and consequently, was not a part of the Record on Appeal. See Judge Parrish's Order; Exhibit D, page 7. 2) Blicited false testimony from lead detective Sgt. Richard Volle during the trial of Dana Chandler in March of 2012, when asking Sgt. Volle to confirm that the victim, Michael Sisco, had obtained a Protection From Abuse Order (PFA) against the defendant, Dana Chandler. When she asked Sgt. Volle this question, Jacgie Spradling knew that there was no document in evidence which indicated that a Protection From Abuse Order had ever been granted. 3) Deceived the members of the jury in the Dana Chandler trial by stating unequivocally in closing arguments that Michael Sisco had obtained “a protection from abuse —a court order” against Dana Chandler, when she knew for a fact that no such order had ever been entered into evidence 4) Deceived the justices of the Kansas Supreme Court in the written brief submitted by the State on July 14, 2015, which included the following statements: “Sisco was granted a protection from abuse order in 1998, precluding the defendant from contacting him.” (Exhibit E, page 3.) “Contrary to Defendant's assertions on appeal, Sisco was granted a protection from abuse order in 1998... Therefore, Defendant's claim of prosecutorial misconduct fails.” (Exhibit E, page 49.) 5) Deceived the justices of the Kansas Supreme Court during oral arguments held on January 27, 2016, regarding the existence of a Protection from Abuse Order (PFA) by stating that there were “two orders in this case”. (Exhibit F, page 9) After additional questioning by the justices, Jacqie Spradling stated: “/ can ‘ell you if Iam limited to the Record on Appeal, I can't — I cannot point it.” (Exhibit F, page 9) Later, Jacqie Spradling admitted that there were no documents in evidence indicating that Michael Sisco had obtained either a Protection from Abuse or a Protective Order. (Exhibit F, page 12) Thereby submit the following supplemental documentation supporting the allegations set forth above and in Counts II and II of the original complaint filed against Jacgie Spradling with the Clerk of the Appellate Courts on July 27, 2002: On October 15, 1998, Michael Sisco’s attorney, Gordon M. Rock, Jr., filed a Motion for Immediate Restraining Order in the District Court of Douglas County, Kansas, (Case No. 97 D 163) See Exhibit A Also on October 15, 1998, Michael Sisco’s attorney, Gordon M. Rock, Jr., filed a Motion for Appointment of a Case Manager. (Case No. 97 D 163) See Exhibit B. On March 11, 1999, Michael Sisco’s attorney, Gordon M. Rock, Jr. filed Petitioner’s Response to Respondent's Motion for Reconsideration. (Case No. 97 D 163) In paragraph 5 of this document, Mr. Rock states: “On October 15, 1998, petitioner filed a Motion for Immediate Restraining Order and a Motion for Appointment of a Case Manager.” See Exhibit C. Note: These documents make it exceedingly clear that on October 15, 1998, Michael Sisco requested an immediate restraining order and a case manager; he did not request a protection Jrom abuse order. It is also worth noting that the District Court of Douglas County did not grant Michael Sisco his aforementioned request, nor was he requested a Protection From Abuse Order. Additionally, the Michael Sisco/Dana Chandler-Sisco divorce file contained copies of the above- listed Exhibits A, B and C. The divorce file was identified as State's Exhibit 969 in the Dana Chandler trial, On January 23, 2012, approximately six weeks before the Dana Chandler trial commenced, Jacgie Spradling filed and entered a Motion to Admit Evidence Pursuant to K.S.A. 60-455. This document was identified as Motion #59 and was filed under seal. See ROA in State v. Chandler below: 01/23/2012 #59 MOTION FILED AND ENTERED BY JACQIE SPRADLING, (MOTION FILED UNDER SEAL-FILED IN VAULT) MINUTE SHEET SENT TO DIY. 14. On February 6, 2012, Dana Chandler's attomey, Mark Bennett, filed a response to Jacqie Spradling’s Motion #59. On February 27, 2012, Judge Nancy Parrish issued a Memorandum Decision and Order pertaining to State’s Motion to Admit Evidence Pursuant to K.S.A. 60-455. See Exhibit D. On page 7 of Judge Parrish’s order, she stated the following: ‘The court finds the remainder of the prior crime and civil wrongs evidence is more probative than prejudicial. Therefore, the court allow the State to present evidence ‘regarding; 1) the following and harassing of Mike Sisco including the October 15, 1998 PFA Order, 2) the entering of Mike Sisco’s home, 3) arguing with victims Sisco and Harkness, 4) peeking inside Sisco’s home, and 5) frequently phoning both victims at various times during the day and night. Note: Although I do not have access to a copy of Jacqie Spradling's Motion #59 pertaining to 60-455 evidence, based upon Judge Parrish's decision to allow the State to present evidence regarding “the October 15, 1998 PFA Order”, I suspect that Jacgie Spradling may have made a false statement of material fact to a tribunal in her Motion #59, which was filed under seal, alleging that Michael Sisco had obtained a PFA Order on October 15, 1998. However, the information contained in Exhibits A, B and C included herein, prove that Michael Sisco only requested an immediate restraining order and case manager on October 15, 1998. He was not granted a Protection From Abuse Order on October 15, 1998. In addition, the Douglas County District Court judge did not grant Michael Sisco’s request for an immediate restraining order or case manager: In Jacgie Spradling’s opening statement delivered on March 8, 2012, in State of Kansas v. Chandler, she told the jury that Michael Sisco had requested the Court to appoint a case manager ‘on October 15, 1998. Here is an excerpt from page 23 of the trial transcript: Only four months after this motion the defendant (sic), on 7 October 15th, 1998, asked the Court to 8 appoint a case manager. Mike had gotten to 9 the point where he realized things were not 10 moving along and no agreements were being 11 honored. He asked for a case manager to 12 oversee the parties' post-divorce conduct 13 because Mike said the defendant did not 14 comply with the Court's orders regarding 15 visitation and child care Also in her opening statement on March 8, 2012, Jaeqie Spradling told the jury that Michael Sisco had requested an immediate restraining on October 15, 1998. Here is an excerpt from page 28 of the trial transcript: Mike asked for the immediate 3 restraining order we've talked about on 4 October 15th, 1998. And in his request, the report said that the defendant continued to follow and harass him and she 5 6 7 engaged in continual harassment by using 8 the pretense of wanting to talk to the kids 9 but would call him over and over. Note: The aforementioned excerpts from Jacgie Spradling’s opening statement establish the fact that she possessed a clear understanding of exactly what transpired on October 15, 1998: 1) Michael Sisco requested a case manager, and 2) Michael Sisco requested an immediate restraining order. He did not request or obtain a Protection from Abuse (PFA) Order on October 15, 1998. Furthermore, Douglas County District Court did not grant the request for a case manager or immediate restraining order, much less a Protection From Abuse Order. These facts raise serious questions about the language Jacqie Spradling used in the sealed 60-455 Motion #59 which ultimately lead Judge Parrish to allow the State to present evidence which included “the October 15, 1998 PFA Order”. See Exhibit D, page 7. Here is an excerpt from Jacqie Spradling’s redirect examination of lead detective, Sgt. Richard Volle, on March 20, 2012 ~ pages 26 and 27 of the trial transcript: 22 Q. Will you tell the jury what a production from 23 abuse or PFA is. 24 A. It's a document signed by the Court that says you 25 are not able to have contact with another person 27 1 you're not supposed to call them, write them 2 contact them in any manner. 3 Q. A court order precluding one person from 4 contacting another? 5 A. Yes. 6 Q. Did Mike get a protection from abuse? 7 A. Yes, he did. 8 Q. Against who? 9 A. Against the defendant. 10 Q. In 19982 11 A. That's correct. 12 Q. Did Mike get a PFA or protection from abuse 13 against anybody other than the defendant? 14 A. No one else. Note: During this redirect examination of Sgt. Volle, Jacqie Spradling asked him whether a PFA ‘had been granted when she already knew that Michael Sisco had only requested an immediate restraining order and a case manager — and that the District Court had never granted either request. Jacqie Spradling also knew that there was no evidence in the record proving that Michael Sisco had ever made application for — or obtained ~ a Protection From Abuse (PFA) Order. Therefore, Jacgie Spradling elicited testimony from Richard Volle which she knew to be false. Here is an excerpt from Mark Bennett's recross-examination of lead detective, Sgt. Richard Volle, on March 20, 2012 — page 45 of the trial transcript: RECROSS-EXAMINATION 5 6 BY MR. BENNETT: 7 Q. Detective Volle, you testified that Mr. Sisco had 8 obtained a protection from abuse order; is that 9 correct? 10 A. Yes. 11 Q. Do you have that? 12 A, It's in the divorce file. I don't have a copy of 13 it. 14 Q. Was it actually signed by a judge and filed or 15 was it a motion or a request for one that 16 wasn't -- 17 A. I don't recall. 18 Q. We'll come back to that in a minute, then. Note: When asked to provide specific details about the Protection From Abuse order which Michael Sisco allegedly obtained against the defendant, Dana Chandler, Sgt. Volle stated that he didn't have a copy of it and did not recall whether it had been signed by a judge. In effect, the lead detective investigating the case against Dana Chandler, recanted his previous claim that Michael Sisco had indeed obtained a Protection From Abuse Order against Dana Chandler. Here is an excerpt from Jacqie Spradling’s closing argument on the final day of the trial, March 22, 2012, page 24 of the trial transeript: 7 How else do we know the defendant is @ guilty? Mike got a protection from abuse, 9 a court order. He applied and said, hey, 10 Judge, please order this woman to stay away 11 from me and the Judge agreed. And in 1998, 12 meaning one year after he filed for the 13 divorce, he was continuing to have problems 14 with the defendant not leaving him alone. 15 So he got a court order saying she has to 16 stay away. The protection from abuse order 17 did not stop the defendant, though. Note: In Jacqie Spradling's opening statement on March 8, 2012, she accurately conveyed to the Jury that Michael Sisco had requested both a case manager and an immediate restraining order on October 15, 1998. She did not assert that Michael Sisco had requested or obtained a Protection From Abuse Order. There is no document in evidence showing that Michael Sisco ever even filled out an application for a Protection From Abuse Order ~ much less obtained one in a Final Order from a District judge. Therefore, Jacqie Spradling’s statements in her own closing argument on March 22, 2012, claiming that Mike “got a protection from abuse, a court order”, and that “the protection from abuse order did not stop the defendant, though”, was a flagrant attempt to mislead the jury by providing prejudicial and false information for their consideration when deliberating about the guilt or innocence of Dana L. Chandler. In sum, Jacqie Spradling, knowingly, intentionally and with reckless disregard for the truth, communicated information to the jury that was categorically false ‘Three years after Dana Chandler was convicted of the double homicide of Michael Sisco and Karen Harkness, her court-appointed attorney, Nancy Ogle, appealed the conviction to the Kansas Supreme Court. The Brief of the Appellant was submitted to the Court on April 16, 2015. On July 14, 2015, the State submitted their Brief of the Appellee to the Kansas Supreme Court. Signatories on the brief for the State included Chadwick Taylor, Jacqie Spradlin, and Jodi Litfin. Enclosed please find excerpts from pages 3 and 49 of the State's brief. See Exhibit E. On page three of the Brief of the Appellee, the State made the following claim: “Sisco was granted a protection from abuse order in 1998, precluding Defendant from contacting him. (R. XXV,26-27).” On page 49 of the Brief of the Appellee, the State makes the following claim: “While Defendant proclaims that there was no protection from abuse order, the record shows otherwise. . . on October 15, 1998, Sisco filed a Motion for Immediate Restraining Order. (State’s Exhibit 969, R. XCVI, 380-381). Contrary to Defendant's assertions on appeal, Sisco was granted a protection from abuse order in 1998. (R. XXV, 26-27). ‘Therefore, Defendant’s claim of prosecutorial misconduct fails.” Note: As cited above, the State claims that the “record” shows that Michael Sisco did obtain a protection from abuse order. The State then makes an unequivocal declaration that ‘Sisco was granted a protection from abuse order in 1998." However, there is no evidence in the Record on Appeal that: 4) Michael Sisco ever made an application for a protection from abuse order (PFA), b) Dana Chandler ever received a service of process notifying her of Michael Sisco’s petition for a PFA, c) a judge ever held a hearing for Michael Sisco's petition for a PFA, d) a Judge ever granted a Final Order granting Michael Sisco's a PFA against Dana Chandler. In the final supplemental segment below, I submit excerpts from an unofficial transcript of the oral arguments held in State of Kansas v. Chandler on January 27, 2016. Due to the fact that an official transcript is not available through the Kansas Supreme Court, I personally hired a transcriptionist to transcribe the oral arguments. Therefore, please note that I am not representing the following excerpts and transcript as being an original product of the Kansas Supreme Court, but to the best of my knowledge and belief it accurately reflects the statements made by the parties during oral arguments. See Exhibit F. Al statements can be verified by viewing the video of the actual hearing, which is posted on the Kansas Supreme Court website under January 27 - State v. Chandler. http://www.kscourts.org/kansas-courts/supreme-court/archive/archived-arguments-January-2016.asp The video can also be viewed on YouTube. httos://m,youtube.com/watch?feature=youtu be&v=Wii9ekrT2 Additional excerpts pertaining to Jacqie Spradling’s claim that Michael Sisco had obtained a PFA against Dana Chandler were included in Exhibit E of the original ethics complaint filed against Jacqie Spradling on June 27, 2016. (Pages 8-12 of the unofficial transcript.) The following excerpts were taken from page 4 of the unofficial transcript of the January 27, 2016, oral argument hearing and cover some questions Justice Biles had for Dana Chandler's court-appointed attorney, Nancy Ogle: Justice Dan Biles: Well, my premise is that it’s pretty obvious to me that there was No Protection from Abuse Order, as the state said there was during closing argument. Nancy Ogle: Right Justice Dan Biles: So, let’s just say, Step 1 is complete, outside the wide latitude, because the state can’t talk about things that don’t exist. Take me through the reversibility analysis. Take me through how that's ill will, gross and flagrant, and then how it tips the balance that the defendant didn’t get a fair trial, given that misconduct. The following excerpts were taken from pages 11 and 12 of the unofficial transcript of the January 27, 2016, oral argument hearing: Justice Johnson: Now, are we talking about the October ‘98, uh, request? Spradling: Yes, sir. Justice Johnson: Well, I'm —I’m confused. A month before trial the state filed a [60-455] motion asking to enter this — this evidence, um, and it only referred to a request for an immediate restraining order in October ‘98. I’m curious why the state wouldn’t have asked that the court consider the Order if there was one in fact in place. Spradling: | don’t want to mislead this court. There is no document that | found in state’s Exhibit 969 which was the divorce file. There’s no document in that file that is either a Protection from Abuse or a Protective Order. So if | indicated that there was a document, | don’t want to mislead you. | do know, speaking with the victim’s family members, that the order existed. Um, and, that that was discovered by Detective Volle as the lead detective in this case. In summary, Jacgie Spradling misrepresented the facts to trial judge Nancy Parrish in her 60-455 Motion #59, elicited false testimony from Sgt. Richard Volle during the trial claiming that Michael Sisco had obtained a PFA, lied to the jury in closing arguments by telling them that Michael Sisco had requested and obtained a PFA Order from a judge, lied in the written brief to the Kansas Supreme Court by stating that Michael Sisco had obtained a PFA in 1998, and lied to the justices of the Supreme Court during oral arguments, when she knew that Michael Sisco had only requested a restraining order and case manager on October 15, 1998, and that he had never been granted a restraining order, case manager or a Protection From Abuse Order. Finally, I would like to provide you with a link to a 4-minute video which depicts the discussion about the PFA between the justices of the Kansas Supreme Court and Jacqie Spradling during oral arguments held on January 27, 2016. https://youtu.be, ISF3VYS|8 Respectfully submitted Law Shel. Keen A. Umbehr s v INTHE wale TEQURT BOY COUNTY, KANSAS ‘MENT In the Matter of the Marriage of Case No. 97D 163 MICHAEL SISCO and Division No. 3 DANASISCO KSA. Chapter 60 MOTION FOR IMMEDIATE RESTRAINING ORDER COMES NOW petitioner, by and through his attorney, Gordon M. Rock, Jr. and moves this Court for an immediate restraining order. In support of this motion, petitioner alleges and states as follows: 1. The final hearing of this matter was held on March 5, 1998. A Journal Entry was entered by this Court on September 23, 1998. 2. Page 15, paragraph 38. of the Journal Entry states The parties may at all times afterwards live and continue to live ‘separate and apart. Each ary shall be free from interference, authority and control, direct or indirect, by the other. 3. During the pendency of this action, after the final hearing, and after the filing of the Journal Entry entered by Judge Jean F. Shepherd on September 23, 1998, respondent Dana (Sisco) Chandler has engaged in the following conduct: (a) intentionally, maliciously and repeatedly following and harassing the petitioner, Michael Sisco; (b) destroying personal property of petitioner's acquaintances, including on two different occasions slashing automobile tires and ripping the convertible top of an automobile; (c) harassing petitioner on the telephone under the pretense of talking to the parties’ children; (d) verbally abusing petitioner in the presence of the children and parents at sporting activities; and (©) verbally abusing petitioner in the presence of friends and neighbors. 4, Good cause exists for this Court to enter an immediate restraining order prohibiting respondent from contacting, bothering, harassing or molesting petitioner in any manner whatsoever, wheresoever he may be. 5. Respondent should further be restrained from bothering or interfering with petitioner through word of mouth, threatening language, physical action or the like. WHEREFORE, as a consequence of the actions of respondent, petitioner respectfully requests the Court to issue an immediate restraining order against respondent; and for such other and further relief as the Court deems just and equitable y M. Rock, Jr. Kansas Supreme Court No. 10767 105 South Kansas Avenue P.O. Box 367 Olathe, Kansas 66051-0367 913.782.7474 913.782.1910 (telecopy) ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing document was deposited in the United States mail, postage prepaid, on October 13, 1998, addressed to Dana L. (Sisco) Chandler 1 Stouffer Place, #2 Lawrence, Kansas 66044 Gordén M. Rock, Jr Bae 4 IN THE DISTRICT COURT OF DOUGLAS GOUNTY.SGANSAS CIVIL COURT ee) In the Matter of the Marriage of Case No. 97 D 163 MICHAEL SISCO and Division No.3 DANA SISCO KS.A. Chapter 60 MOTION FOR APPOINTMENT OF A CASE MANAGER COMES NOW petitioner, by and through his attorney, Gordon M. Rock, Jr., and moves this Court for an order appointing a case manager. In support of this motion, petitioner alleges and states as follows: 1. The final hearing of this matter was held on March 5, 1998, A Journal Entry was entered by this Court on September 23, 1998. 2. Respondent has refused to comply with this Court order concerning, visitation and residential care of the parties’ minor children. 3. Respondent has caused and inflicted psychological harm to the parties’ minor children which has resulted in the need for psychological care and counseling, 4. Respondent has caused mental and emotional abuse to the parties’ minor children, 5. Respondent lacks the necessary emotional stability to meet the children’s mental and emotional needs. 6. Respondent has exhibited diminished capacity to parent the children 7. Respondent has caused repetitive conflict to occur in the family concerning custody and visitation of the minor children. 8. Pursuant to KS.A. 23-1001, et seq. petitioner request this Court to EXHIBIT ee appoint John V. Spiridigliozzi, Ph.D., 123 West 8" Street, Suite 311, Lawrence, Kansas 66044, as case manager given his knowledge of the case. See attached report of John V. Spiridigliozzi, Ph.D. 9. Respondent should be required to pay the costs associated with the case manager. 10. Good cause exists for this Court to enter an order appointing John V. Spiridigliozzi, Ph.D. as case manager in this action. WHEREFORE, as a consequence of the actions of respondent, petitioner respectfully requests the Court to appoint John V. Spiridigliozzi, Ph.D. as case manager of this action; that respondent be required to pay the costs associated with the case manager; and for such other and further relief as the Court deems just and equitable. Gordon M. Rock, Jr Kansas Supreme Court No. 10767 105 South Kansas Avenue P.O. Box 367 Olathe, Kansas 66051-0367 913.782.7474 913.782.1910 (telecopy) ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing document ‘was deposited in the United States mail, postage prepaid, on October 14, 1998, addressed to: Dana L. (Sisco) Chandler 1 Stouffer Place, #2 Lawrence, Kansas 66044 Gordon M. Rock, Jr. IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS CIVIL COURT DEPARTMENT. In the Matter of the Marriage of MICHAEL SISCO and DANA SISCO so 3 Case No. 9% 'D 1635 Wwe Division No.3 KS.A. Chapter 60 0 2 a S PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR RECONSIDERATION COMES NOW petitioner and responds to respondent's Motion for Reconsideration as follows: 1. The final hearing of this matter was held on March 5, 1998. After several ‘unsuccessful efforts by petitioner to require respondent to sign the final decree, Entry was entered by this Court on September 23, 1998 a Journal 2. On September 18, 1998, respondent filed a pro se Motion for an Order to Allow Respondent to Have Access to Parties’ Personal Financial Files, Motion to Modify Journal Entry and Divorce Decree Regarding Child Support, and Motion to Modify Journal Entry and Divorce Decree Regarding Child Custody. 3. On September 22, 1998, respondent also Reconsideration to Hear and Revi filed a Motion for ew Additional Evidence and Testimony Regarding Spousal Maintenance and Real Property Division, 4. On October 30, 1998, petitioner received a Request for Documents and Written Discovery with a filed-stamped date of September 22, to Compel filed by respondent pro se. 1998, along with a Motion 5. On October 15, 1998, petitioner filed a Motion for Immediate Restraining Order and a Motion for Appointment of a Case Manager. EXHIBIT [ iF 6. On November 12, 1998, Petitioner's Response to Motion to Compel was filed. 7. On November 13, 1999, Brian Farley, District Court Trustee, filed a Motion for Nunc Pro Tunc Supplemental Orders Pursuant to Administrative Order 96-02. 8. An Order Nunc Pro Tune was entered by this Court on December 7, 1998, 9. An Income Withholding Order was entered by this Court on December ‘11, 1998. 10. A Notice of Hearing was scheduled to be heard on February 25, 1999, pertaining to respondent's Motion to Modify Journal Entry and Divorce Decree Regarding Child Custody, Motion to Modify Journal Entry and Divorce Decree Regarding Child Support, Motion for an Order to Allow Respondent to Have Access to Parties Personal Files, and Motion for Reconsideration to Hear and Review Additional Evidence and Testimony Regarding Spousal Maintenance and Real Property Division. 11. On February 24, 1999, respondent filed a Motion 10 Continue the February 25, 1999, hearing, and Motion for Court to Enforce Order to Produce Discovery, 12, On February 25, 1999, this Court ordered respondent to submit a memorandum by March 4, 1999, with additional information she wants the Court to consider. Petitioner was to respond seven days from the date of receipt of respondent's memorandum, Argument and Authority This divorce action was heard on March 5, 1998. Present at the hearing were petitioner, respondent and their respective counsel. At the hearing, it was clearly announced that an agreement had been reached on all but the following issues: (@) the specific visitation schedule on a weekly basis; (©) the appropriateness of any abatement of child support payments from the respondent to the petitioner; and (c) whether the respondent should be entitled to share in the proceeds of the sale of the family residence should such sale occur within six (6) months. The parties presented evidence by proffer from counsel and rested on these three issues. On the remaining matters which were not contested, the parties had entered into and announced a binding stipulation and agreement in open court which was confirmed and approved as fair, just and equitable. Respondent has now filed several motions for reconsideration, including those involving spousal maintenance and real property division. These motions are factually unfounded and are unwarranted under existing law. As it relates to the parties’ marital residence, it should be noted that an appraisal was performed by Joler & Associates on February 12, 1998. Given the value assigned to the residence by the professional appraiser and considering the sales commissions, other costs of sale and the outstanding mortgage balance, it was apparent to both Court and counsel that the marital residence had litle or not equity to be divided by the parties. The Court properly found that the real estate should be transferred and set aside to petitioner as his sole, exclusive and separate property The issue concerning the transfer of the marital residence was properly addressed by the Court in considering a professional appraisal and statements of counsel. Respondent has demonstrated no need to take additional testimony and modify the judgment in this respect. Respondent's letter of March 3, 1999, is an effort to introduce hearsay and create a disputed issue which has already been resolved by the Court, The letter is brimming with hearsay, speculation and unfounded claims. If respondent asserts that there was error in the exclusion of evidence or that there was newly discovered evidence which needed to be brought to the Court's attention, such evidence must be produced in affidavit form by deposition or oral testimony. K.S.A. 60-259(g). Respondent has apparently withdrawn any request for spousal maintenance, and therefore this issue is moot. No additional argument will be made by petitioner on this claim, Petitioner finds it difficult to respond to respondent's requests concerning child custody. No allegation is made that there has been a material change of circumstances since the final hearing or the entry of the Decree of Divorce. Petitioner should note that respondent suddenly moved to Mesa, Arizona, and the children have been residing, with petitioner as the Court has ordered since the entry of temporary orders which preceded the final hearing, Petitioner and the children have been undergoing, regular counseling with Diane Lee Bythell, Ph.D. Dr. Bythell has apparently submitted a report containing her recommendations to the Court It should not be forgotten that Dr. John Spiridigliozzi prepared an evaluation for child custody which reflected that respondent had some serious psychological problems. See attached Exhibit A. ‘There has been no showing by way pleading or evidence that there should be some change in the custody arrangement pertaining to the children. Respondent rarely, if ever, exercises visitation with the children. A change at this stage would be truly inimical to the best interests of the children, There simply is no valid basis for any claim that there should be a change in the custodial arrangements with the minor children, who have been with the petitioner since well before the final hearing. The Court's decision granting petitioner sole custody of the minor children was sound and based, in part, upon grave concerns about respondent's psychological instability. With respect to respondent's request for “ personal financial files,” petitioner would state that there has been discovery in this case. The parties have exchanged a voluminous number of documents prior to the time of the final hearing, To request that discovery be re-opened in a case that has been tried and in which a journal entry has been filed is entirely inappropriate. This case has ended from a financial perspective except as it relates to child support when the Decree of Divorce was filed on September 23, 1998. Respondent's attempts to obtain petitioner's “financial files” in an effort to have the Court modify a final decision concerning the division of property should not be countenanced. It is merely an attempt on the part of the respondent to harass petitioner, as has been her course of conduct throughout this litigation. Finally, respondent's motion requesting that petitioner pay child support is frivolous. Respondent has been ordered to pay child support for months in this case, yet she has not paid a single dime in child support to benefit these minor children. To now ask that the child support obligation be shifted to the petitioner, who has already shouldered the entirety of this duty, is incomprehensible. Respondent should continue to be required to pay child support on a monthly basis for the benefit of the minor children. Conclusion Respondent has asserted no proper ground for the Court to modify or set aside any of its orders. This case was tried on three very narrow issues, and it has not even been alleged there was an abuse of discretion, misconduct of any party or any surprise on the part of respondent or her counsel. The parties were afforded every opportunity to present evidence and be heard on the merits of the case. The decision that was entered by the Court was factually and legally sound and in large part based upon an express agreement of the parties, The few contested issues were adequately and fairly presented to the Court for consideration. There is no need to take additional testimony and modify the judgment in any respect. WHEREFORE, petitioner respectfully requests that respondent's Motion to Modify Journal Entry and Divorce Decree Regarding Child Custody, Motion to Modify Journal Entry and Divorce Decree Regarding Child Support, Motion for an Order to Allow Respondent to Have Access to Parties Personal Files, and Motion for Reconsideration to Hear and Review Additional Evidence and Testimony Regarding Spousal Maintenance and Real Property Division be overruled. Gordon M. Rock, Jr Kansas Supreme Court No. 10767 1105 South Kansas Avenue P.O. Box 367 Olathe, Kansas 66051-0367 913.782.7474 913.782.1910 (telecopy) ATTORNEY FOR PETITIONER 6 CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing document was deposited in the United States mail, postage prepaid, on March 11, 1999, addressed to: Dana L. (Sisco) Chandler 844 West Natal Avenue Mesa, AZ 85210 Gordon M. Rock MX WKO_ Gans AS RT SoS Sse ~ Sa \ SEAS DIVISION FOURTEEN STATE OF KANSAS, ) Plaintiff, ) vs. ; Case No. 11CR 1329 DANA L. CHANDLER, MEM IDUM DECISION AND ORDER State’s Motion to Admit Evidence Pursuant to K.S.A. 60-455 ‘The State filed a Motion to Admit Evidence Pursuant to K.S.A. 60-455 on January 23, 2012. The defendant filed her response on February 6, 2012. The court held a hearing on this motion and other motions on February 10, 2012. The court took the motion regarding K.S.A. 60-455 evidence under advisement. Pursuant to K.S.A. 60-455, “evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” However, “such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” In State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006) the Kansas Supreme Court held that the list of material facts was “exemplary rather than exclusive.” In other words, 1 } EXHIBIT oo there could be other crimes or civil wrongs evidence which is relevant and admissible to prove a material fact other than the eight specifically listed in the statute. In addition, Appellate Courts have required certain safeguards which were reiterated in Gunby. “Before K.S.A. 60-455 evidence can be admitted, the district judge must determine that it is relevant to prove one of the eight material facts listed in statute, that the material fact is disputed, and that the probative value of the evidence outweighs its potential for producing undue prejudice. See, e.g., State v. Drennan, 278 Kan, 704, 716-18, 101 P.3d 1218 (2004). In addition, we have required trial judges to give a limiting instruction informing the jury of the specific purpose for admission whenever K.S.A. 60-455 evidence comes in, See e.g., State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 (2004). These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime.” State v. Gunby, 282 Kan, at 48, The State in this case seeks permission to admit evidence of stalking type behavior in order to establish that the defendant had the motive to kill both victims. The State set out a number of specific instances of conduct relating to crimes or civil wrongs the defendant allegedly committed. The State contends that these alleged crimes or civil ‘wrongs are relevant to prove motive. Prior to Gunby evidence of a discordant relationship was admitted independent of K.S.A. 60-455. Since Gunby, such evidence must be subjected to the 60-455 requirements. The general categories of specific instances that the State is seeking to admit are allegations that the defendant committed the following acts: 1) following and harassing Mike Sisco, which caused him to obtain a Protection From Abuse Order on October 15, 2 1998, 2) entering Mike Sisco’s home without Mr. Sisco’s knowledge or permission, 3) arguing with victim Mike Sisco and victim Karen Harkness, 4) pecking inside Mike Sisco’s home, 5) confronting a former neighbor of Mike Sisco, 6) excessive contact with daughter, Hailey Sisco, which caused her to obtain a Protection From Abuse Order (PFA) on September 18, 2009, 7) frequently phoning both victims at various times during the night and day, and 8) damaging Karen Harkness’s vehicle. MOTIVE, Relevance With the exception of one civil wrong, all of the evidence that the State seeks to admit arguably has relevance to the issue of motive, the motive of preventing Mike Sisco from becoming involved in a relationship with another woman. The only exception is the PFA that Hailey Sisco obtained against her mother on September 18, 2009. The behavior that precipitated the filing of a PFA could not have any relevance to defendant's alleged motive to kill Sisco and Harkness since the PFA was requested some seven years afier the murders occurred. In addition, excess contact with Hailey Sisco does not appear to this court to be relevant to any motive to kill Mike Sisco or Karen Harkness. Therefore, the court declines to allow the alleged crimes or civil wrongs against Hailey Sisco which caused her to file for a PFA. Material Fact in Issue The State alleges that all of these alleged crimes or civil wrongs are evidence of defendant's motive to kill one or the other of the victims. The issue in the present case is really whether defendant Chandler committed the murders of Mike Sisco and Karen 3 Harkness or whether someone else committed them. It is the classic “who done it?” Certainly motive of defendant is at issue. As the Court stated in State v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008), “[a]lthough motive is not an element of premeditated first- degree murder, evidence of its existence can be highly persuasive circumstantial evidence of guilt.” As the State noted in its brief, “motive is the moving power that impels one to action for a definite result.” State v. Reid, 286 Kan. 494, 504, 186 P.3d 713 (2008). (citing State v. Jordon, 250 Kan 180, 190 (1992)). “Motive supplies the jury with some degree of explanation, responding to a juror’s natural tendency to wonder why a defendant behaved in a manner described by the State.” Reid, 286 Kan. at 504 (citing State v. Engelhardt, 280 Kan. 113, 128 (2005). Motive certainly is a material issue in this case. The State contends that the defendant had not accepted that her relationship with Mike Sisco was over. The State profiers that two days before the murders, Mike Sisco told defendant that he and Karen Harkness were engaged and that knowledge of the engagement triggered the murders. This court finds that the alleged crimes and civil wrongs are relevant to the disputed issue of whether defendant had a motive to kill the two victims. Certainly all of the incidents the State is requesting permission to offer into evidence are not only probative but also are prejudicial to the defendant. The test is whether these alleged crimes and civil wrongs have more probative value than prejudicial effect. Based on that balancing test, the court must exclude evidence related to the damage to Karen Harkness’s car on October 11, 1998. While Mr. Sisco stated to law 4 enforcement officers that Ms. Chandler was a suspect, Ms. Chandler was never charged with criminal damage to the vehicle. Apparently there was no evidence other than Sisco’s and Harkness’s beliefs that Chandler damaged the vehicle. Furthermore, the automobile had been parked at a local sports bar the evening prior to when Sisco and Harkness noticed the damage. This court finds that this evidence, if admitted, has little probative value and would be more prejudicial than probative. The court denies the State's request to admit the evidence of damage to the Harkness vehicle. The State also requests permission to introduce evidence regarding defendant's alleged phone harassment of and confrontations with Sarah Henry which occurred from August, 1997, through November, 1998. This evidence is problematic for two reasons: 1) the remoteness in time from the murders and 2) the victim of the harassment was not either of the two murder victims. With regard to remoteness, appellate courts have ruled in the past that remoteness in time of a prior convietion affects the weight rather than the admissibility. See State v. Cross, 216 Kan. 511, 520, 533 P.2d 1357 (1975); State v. Carter, 220 Kan. 16, 20, 551 P.2d 851 (1976). However, the relevancy of a prior crime diminishes as the time interval between the prior act and the current charge lengthens. Cross, 216 Kan. at 522. In State v. Vasquez, the Court considered whether a domestic battery against one of the victims which occurred five months prior to the murders was too remote to be probative. The Court ultimately allowed the admission of the domestic battery incident finding that the remoteness was ameliorated by the defendant's absence from the country for several weeks and by the Court's recognition that “anger and Jealousy in troubled romantic relationships are not necessarily logical or linear.” The 5 Supreme Court found that the trial judge’s decision to permit the State to demonstrate the existence of discord between the defendant and the victim several months prior to the murders was not an abuse of discretion. State v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008). However, in this case, the remoteness far exceeds 5 months. The incidents occurred 4 to 5 years before the murders, and the incidents (while related to defendant's belief that Ms. Henry was having an affair with her ex-husband, Mike Sisco) were not directed at victim, Mike Sisco ot at victim, Karen Harkness. Therefore, this court finds that the probative value of these incidents is weak and when compared with the prejudicial effect, is outweighed by prejudice to the defendant. ‘Therefore, this court denies the State’s request for admission of the incidents with neighbor Sarah Henry. This court will allow the remainder of the prior crimes and civil wrongs that the State is requesting to admit. While some of the specific instances of conduct were remote because they occurred in 1997 and 1998, such as following Mike Sisco, peeking into his home, and confronting him, the instances directly involved Mike Sisco and at times Karen Harkness. As the Supreme Court stated in Vasquez, the remoteness is ameliorated by the Court’s recognition that anger and jealousy in troubled relationships are not logical, linear, nor strictly time bound. “Rather, these volatile emotions may wax and wane; they may build up over time or be tamped down by sudden or slow reconciliation.” Vasquez, 287 Kan. at 53. Also, some of the incidents, however, occurred in 2002 just weeks before the murders such as the defendant allegedly entering Sisco’s home without his knowledge or permission and the defendant’s phone calls to both Sisco and Harkness at all hours of the day and night. The court finds the remainder of the prior crime and civil wrongs evidence is more probative than prejudicial. Therefore, the court will allow the State to present evidence regarding: 1) the following and harassing of Mike Sisco including the October 15, 1998 PFA Order, 2) the entering of Mike Sisco’s home, 3) arguing with victims Sisco and Harkness, 4) peeking inside Sisco's home, and 5) frequently phoning both victims at various times during the day and night. IDENTITY While all of the above referenced alleged incidents are offered to prove motive, at least one (the defendant allegedly entering Sisco’s home without his permission or knowledge a few weeks prior to the murders) is also relevant to the disputed issue as to the identity of the perpetrator of the murders. The identity of the perpetrator is a material fact. The act of entering into another's home without the other’s permission or knowledge has some similarity to the criminal act of trespass which undoubtedly preceded the acts of murder in this case. ‘The court finds that the alleged act of defendant entering Mike Sisco's home a few weeks prior to the murders is more probative than prejudicial. The State argues that prior statements of the victims that they were fearful of the defendant and that if they were killed, the defendant was the person who committed the act should be allowed into evidence to show the identity of the killer. KSA. 60-455 deals with evidence that a person committed a prior crime or civil wrong on a specified occasion. The victims’ fear of the defendant is not in and of itself evidence of a prior crime or civil wrong and, therefore, K.S.A. 60-455 is not applicable to the victims’ statements, Previously this court ruled on whether the victims’ previous statements regarding their fear that defendant might kill them was an exception to hearsay. K.S.A. 60- 460(4)(3) provides that there is an exception to hearsay for a statement made by a declarant who is unavailable as a witness if the judge finds that the statement was made by the declarant “at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.” This court ruled that statements made by the victims that they feared being murdered by defendant were not based on anything that they had recently perceived but instead were concems about something which might happen in the future. The victims’ statements were not ones in which they were describing something they had recently become aware of or experienced, but instead, their statements were ones in which they expressed fear of some future occurrence. Therefore, this court affirms the court’s prior ruling that such statements are hearsay and would not be admissible. Certainly, a witness could relay incidents (pursuant to K.S.A. 60-460(4)(3)) if those incidents were recently perceived by the victim(s) and were allowed by this Order Pursuant to K.S.A. 60-455. In addition, the witness could testify about his or her personal observation of the victim’s demeanor while relating the incident. 8 The above constitutes this court’s ruling on the State’s Motion to Admit Evidence Pursuant to K.S.A. 60-455. No further journal entry is required. ITIS SO ORDERED. Dated this day of February, 2012. fey Pafish, District Judge Third Judicial District Division 14 TIFIC. iF I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed, hand delivered, or placed in pick-up bin this 27" day of February, 2012, to the following: District Attorney Chad Taylor Shawnee County Courthouse 200 SE 7" Street Topeka, KS 66603 Chief Deputy Jacqgie Spradling Shawnee County District Attorney's Office Shawnee County Courthouse 200 SE 7" Street Topeka, KS 66603 Mark L. Bennett, Jr. 5605 SW Barrington Court South Suite 201 Topeka, KS 66614-2489 jorma Dunndway ministrative Assistant COURT No. 12-108625-S PREME COURT ‘ a OF THE STATE OF KANSAS STATE OF KANSAS Plaintiff-Appellee v DANA L. CHANDLER Defendant-Appellant BRIEF OF APPELLEE APPEAL FROM THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS HONORABLE NANCY PARRISH, JUDGE DISTRICT COURT CASE NO, 11-CR-1329 Chadwick J. Taylor, #19591 District Attorney Third Judicial District Shawnee County Courthouse 200 S.E. 7” Street, Suite 214 Topeka, Kansas 66603 Approved (785) 233-8200, Ext. 4330 . (785) 291-4909 FAX JUL 14 2015 sneoda@sneous Attorney General of Kansas Lead Attorney for Plaintiff Appellee BY _N-“S. Ct. Rule 6.10 EXHIBIT oe entered by the court on September 23, 1998; and that Defendant's recent motions were unfounded and unwarranted. (State's Exhibit 969, R. XCVI, 420-25), Defendant's motions were heard and denied by the court. (State's Exhi 969, R. XCVI, 464-65), (On October 15, 1998, Sisco then filed a Motion For Immediate Restraining Order (State's Exhi 969, R. XCVI, 380-81). Defendant received Sisco’s Motion For Restraining Order. (State's Exhibit 969, R. XCVI, 408, 441). In Sisco’s request for an immediate restraining order, he outlined Defendant's conduct stating that after the filing of the journal entry memorializing the final hearing, De! lant “intentionally, ‘maliciously and repeatedly had been following and harassing the petitioner, Michael Sisco; destroying personal property of petitioner's acquaintances, including on two different occasions slashing tutomobile tires and ripping the convertible top of an automobile; harassing petitioner on the telephone under the pretense of talking to the Parties’ children; verbally abusing petitioner in the presence of the children and parents at Sporting events; and verbally abusing petitioner in the presence of friends and neighbors.” (State's Exhibit 969, R. NCV1, 680-1). With his motion for immediate restraining order Sisco also requested an appointment of case manager. (State's Exhibit 969, R. XCVI, 438), Sisco was granted a protection from abuse order in 1998. precluding Defendant from contacting him. (R. XXV, 26-27). Hailey reported “There were actually quite a few times that [Defendant] would be Places we didn’t expect her to be at.” (R. XXIII, 120). Though no one in the family (Sisco, Hailey, or Dustin) had told Defendant where they would be, nor invite her, she would appear. (R. XXIII, 80). When Haitey was in the seventh or eighth grade, she was OQ wide latitude that a prosecutor is allowed in discussing the evidence; second, if misconduct is found, an appellate court must determine whether the improper comments Prejudiced the jury against the defendant and denied the defendant a fair trial.” State v Marshall, 294 Kan, 850, Headnote No. 1, 281 P.3d 1112 (2012). Furthermore, should misconduct (error) be found, this Court then looks to see: 1) whether the misconduct was gross and flagrant; 2) whether it was motivated by Prosecutorial ill will; and 3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. Our courts have found that no single factor is controlling. See State ». Tosh, 278 Kan. 83, 91 P.3d 1204 (2004); State ». Bridges, 297 Kan, 989, 306 P.3d 244 (2013). B. _ Defendant’s convictions do not rest on prosecutorial error. While Defendant proclaims that there was no protection from abuse order, the record shows otherwise. On March 5, 1997, Si 0 was granted Fx Parte orders which included that the “Respondent shall be restrained and enjoined from coming around or about the premises of 4909 Colonial Way, Lawrene: Kansas, pending the final hearing of this matter.” (State's Exhibit 969, R. XCV, 48). The Colonial Way address where Defendant was restrained and enjoined trom coming around was Sisco’s home. (State’s Exhibit 969, R. XCV, 10). More than a year later, on October 15, 1998, Sisco filed a Motion for Immediate Restraining Order. (State's Exhibit 969, R. XCVI, 380-381). Contrary to Defendant's assertions on appeal, Sisco was granted a prote n trom abuse order in 1998, (R. XXV, 26-27). Therefore, Defendant's claim of prosecutorial misconduct ff 49 STATE OF KANSAS STANTON A. HAZLETT Disciplinary Administrator KIMBERLY L. KNOLL 701 Jackson St. I" Floor Topeka, Kansas 66603-3729 KATE F. BAIRD Telephone: (785) 296-2486 DEBORAH L. HUGHES Fax: (785) 296-6049 MICHAEL R. SERRA PENNY R. MOYLAN GAYLE B. LARKIN Deputy Disciplinary Administrators OFFICE OF Admissions Attorney ‘THE DISCIPLINARY ADMINISTRATOR August 1, 2016 Keen A. Umbehr 1433 SW Arbor Valley Drive Topeka, KS 66615 In the Matter of Case No. DA12,581 Jacqueline J. Spradiing (Respondent) Dear Mr. Umbehr: Your letter of complaint of July 28, 2016, has been docketed as Docket No DA12,581. The allegations contained in your letter will be investigated. During the course of the investigation you will be contacted by an investigator. Please be prepared to furnish the investigator with copies of supporting documents. Your input is necessary to properly conclude the investigation Thank you for your cooperation in this matter. Sincerely, (ea S| Michael R. Serra Deputy Disciplinary Administrator MRS:JH cc: Jacqueline Spradiing Ron Paschal OFFICE OF THE DISTRICT ATTORNEY EIGHTEENTH JUDICIAL DISTRICT MARC BENNETT RON PASCHAL, District Attorney August 5, 2015 Deputy District Auorney Keen A. Umbehr Attorney At Law 1433 SW Arbor Valley Drive ‘Topeka, KS 66615 RE: Dkt. No. DAI2,581 Dear Mr. Umbehr: Thave been assigned to investigate the complaint you have filed against Assistant District Attomey Jacqueline Spradiing referenced above. Once I have received her written response to the complaint | will be in contact with you to schedule an interview. Ifyou have any questions about the process, do not hesitate to call, My direct phone number is 316- 660-9726. Ron W. Paschal Deputy District Attorney/Ethics Coordinator 316/660-9700 ron.paschal@sedgwick.gov Sedgwick County Courthouse, 535 N. Main, Wichita, K: Telephone: 316-660-3600; Toll Free: 1-800-432-6878; as 67203 ix: 316-383-7266 Juvenile Division ~ 1900 E. Morris, Wichita, Kansas 67211 Telephone: 316-660-9700; Fax: 316-660-1860 Case No. 12-108,625-S IN THE SUPREME COURT OF THE STATE OF KANSAS STATE OF KANSAS Plaintiff - Appellee, DANA L. CHANDLER Defendant - Appellant ORAL ARGUMENT: JANUARY 27, 2016 "Uno ffi 1 Transcript*** Chief Justice Nuss: | call the second case on this morning's docket, State of Kansas v. Chandler. Nancy Ogle: If it please the court, I'm Nancy Ogle here on behalf of Dana L. Chandler. And I'd like to reserve three minutes for rebuttal. Chief Justice Nuss: Three minutes is granted. Nancy Ogle: Thank you. In this appeal, Chandler has raised four issues and one of them | don’t feel the need to address at all. The parties are in agreement that, based on this court's prior decisions, that Ms. Chandler is required to be re-sentenced because the district court imposed two hard-50’s, and this court has said the procedure for imposing that sentence - those sentences - was incorrect. So | won't go into any detail on that. | think the parties are in agreement. Uh, as to the fourth issue, so much of that which that issue happens to be whether there was prosecutorial misconduct, it overlapped so much with other issues in the brief that unless you have questions I won't be delving into that in any detail. Justice Johnson: I have a question on that. Nancy Ogle: Sure. Chief Justice Nuss: Before we proceed with that question, Justice Johnson, as we asked counsel in the first case, would you mind taking about 60 seconds to give our audience a factual basis for why we're here today? EXHIBIT 1 oe Nancy Ogle: Certainly. Um, Dana Chandler is - has been convicted of two murders, murders in the first degree that occurred in July of 2002. She was convicted of, of murdering her ex-husband and his girlfriend/fiancée, Karen Harkness, and the ex-husband’s name is Sisco. She was not arrested until July of 2011, nine years later. Um, so from Ms. Chandler's standpoint, of course, one of the issue- one of the questions - it’s not exactly an issue raised in the brief, but what evidence had come to light, close to the time she was arrested? Anyway, she was arrested and then convicted of these murders that took place here in Topeka. Do you need ..? Chief Justice Nuss: | think that's sufficient background. Now, Justice Johnson, you had a question? Justice Johnson: With regard to the prosecutorial misconduct, you specifically pointed to three issues, or three instances that you claim was misconduct. What, um, what can we do with the fact, if we read the whole argument and perceive that, or discern that there may be other, um, erroneous statements, or improper statements, what can we do with that? Are we limited to the instances of misconduct that you have submitted? Nancy Ogle: | don't believe so. | believe that courts (?) can, if they, you know within an issue raised sees more than what I included in the brief, I believe the court can base their ~ base its decision on anything it finds. Justice Johnson: What do we do with the law that says an argument not made is deemed abandoned? Nancy Ogle: Well, the - I mean - the issue was raised. The individual facts that the court might base its decision on within that issue I believe is - can go beyond the issue - the facts - the specific three instances that I cited. Chief Justice Nuss: And would you have some authority to cite to us to support that conclusion? Nancy Ogle: | don't off the top of my head, I’m sorry. Chief Justice Nuss: Thank you. Justice Dan Biles: ll tell you the other problem - I’m jumping you ahead a little bit - but the other problem that I’m having is, on your Issue 3, the 60-455 Bad Acts evidence. Nancy Ogle: Right. Justice Dan Biles: Where in there have you pinpointed for us where in the record the issue was preserved by an objection and ruled on, so that we can move forward to analyze them? I’m having trouble seeing in your brief where those points are. Nancy Ogle: Well, | do know, uh, the trial counsel, you know, filed a response, an objection to the state’s motion to include some of that, the evidence that the state was seeking to add, uh, the court, you know, granted some of those to Ms. Chandler and, but still allowed some that we are now continuing to object to. So there is the response filed to the state's motion as well as, I believe, hearing test- you know, hearing where... Justice Dan Biles: I'm trying to find the contemporaneous - on the points you lost on. Nancy Ogle: Right. Justice Dan Biles: You still have to make a contemporaneous objection in trial when that evidence starts to come in, and that’s where I'm having trouble matching up your issues with the obligation to show us that it was preserved. What do I do with that? Nancy Ogle: Well, if the court would allow, I could supplement. But, uh, I agree that there has to be a contemporaneous objection. Chief Justice Nuss: We've interrupted your presentation. Please proceed. Nancy Ogle: That's okay. | want to talk about what you're interested in. Justice Dan Biles: Let me jump into where | think this is where you were headed, but let me give you a spring board, and then you can move back if you don’t like it. It seems pretty obvious to me that there was no Protection from Abuse Order in this case, as the state said in closing arguments. Um, given that, take me through the analysis on reversibility. I'll give you outside the wide latitude just for purposes of the question. And now get me into reversibility. Nancy Ogle: I'm sorry. Would you mind repeating that? I understand the reversibility, the premise. Justice Dan Biles: Well, my premise is that it's pretty obvious to me that there was no Protection from Abuse Order, as the state said there was during closing argument. Nancy Ogle: Right. Justice Dan Biles: So, let's just say, Step 1 is complete, outside the wide latitude, because the state can’t talk about things that don’t exist. Take me through the reversibility analysis. Take me through how that's ill will, gross and flagrant, and then how it tips the balance that the defendant didn’t get a fair trial, given that misconduct. Nancy Ogle: Right. Well, Ms. Chandler was, as I discussed and I’m sure you're aware of, was, uh, convicted on circumstantial evidence which, | mean, can be used to reach a conviction. But in this particular case where, uh, with the admission - well, the statement that there was a Protection from Abuse or Stalking case, when in fact there wasn’t, every bit of evidence on such a circumstantial case would be a significant fact. As far as, um, ill will, I think, uh, it's more of a cumulative rather than picking out the one thing, the Protection from Abuse or Stalking Order, but also the state's pursuing a theory that really was based on inference upon inference. So I would say it’s more of a cumulative affect with the Protection from Stalking not existing, and the rest of the whole theory of Ms. Chandler learned of Sisco and Harkness’s engagement two days before the crimes occurred, when there's really no... Justice Carol Beier: So, counsel, if I can just understand your inference on inference argument. So the first inference is that during the five-minute phone call they ~ she learned that he was engaged to be married. That's inference number one. Nancy Ogle: Right. Justice Carol Beier: And then inference number two is that based on that knowledge she decided to drive from Colorado to Kansas and murder these two people. Nancy Ogle: Correct. Justice Carol Beier: That's the heart of your inference on inference argument? Nancy Ogle: Correct, that, you know they'd been divorced for years. I mean, granted, she called Sisco many times - they had children together that he had custody of. Justice Carol Beier: ‘There was lots of other evidence that supported that she was still very much entangled and kind of obsessed with her ex-husband. That's other evidence. But the inference stacking is focused on this idea that there was an original inference to be drawn about what was discussed during the five minutes, on which there was no direct evidence. Nancy Ogle: Correct. Justice Carol Beier: And then the inference stacked on that is that that moved her to immediately act upon the information she gained in that phone call. Nancy Ogle: Right. Justice Carol Beier: So it all went to motive. Nancy Ogle: Correct. Justice Carol Beier: Okay. Obviously, cases can be based on proof of motive and opportunity alone. We have cases that are affirmed on that basis, I would say fairly regularly. Some of them have additional evidence, but not all of them have additional actual physical evidence that ties the defendant to the crime. So how do we get to insufficiency? Nancy Ogle: Well, | mean, all that the state has offered is, uh, three different instances where witnesses said, in fact, that they thought Mike Sisco had told Ms. Chandler, um, that, um, they - they knew that Ms. Chandler knew that, um, Sisco was getting married. But when pressed on cross examination they couldn't - | mean, then they were just like, “Well, | think that’s the way it is.” And, with the motive being such a crux of this entire case of, you know, that would move someone, that would move Ms. Chandler to drive from Denver to Topeka to commit these murders, I mean, that’s a very significant assumption for, uh, to be making on a five-minute phone call that nobody knows what was said, Justice Carol Beier: Okay. Nancy Ogle: Uh, | have just a few seconds if, uh, you have some questions, otherwise I'll turn it over to the state. Chief Justice Nuss: Do we have any more questions? Thank you, counsel. Jacqie Spradling: May it please the court, Jacqie Spradling on behalf of the Appellee, and Justice Johnson, may I address you first and ask you if there are other instances of prosecutorial misconduct that you believe should have been or could have been cited, I'd happily address anything that you wanted to. As a beginning | will tell you that sentencing is not an issue in this case, and so we do understand that the Hard 50 sentences need to be reversed. For this court's information, I was one of the trial lawyers below, and so, um, would add that as well. As to the defendant... Justice Johnson: Ms. Spradling. Jacqie Spradling: Yes. Justice Johnson: Before you get started here I'd address something that Justice Biles raised. I was just going through your brief. I don’t see where you made a preservation argument on the 60-455 evidence. Jacqie Spradling: For the no contemporaneous objection? Justice Johnson: Right. Jacqie Spradling: You're correct. Justice Johnson: And the preservation of evidence is a prudential rule, is it not? It’s not jurisdictional. Jacqie Spradling: Yes, sir. Yes, sir. Justice Johnson: And so, we've said if you fail to make an argument or raise an issue then that’s deemed abandoned. Jacqie Spradling: You're right. Justice Johnson: So why wouldn't the preservation be deemed abandoned in this case with regard to the defendant's 60-455 issue? Jacqie Spradling: I'm not sure, your Honor, whether the preservation is required to address or prohibit a contemporaneous objection argument. | don’t know the answer to that. I will tell you that it’s my understanding that the law is solid and longstanding on the requirement for a contemporaneous objection. Justice Rosen: Well, !'ll, uh, I'll jump in with what | think is, uh, misconduct, and that’s right off the bat you were warned not to refer, or to have anybody in the gallery, stand up. But apparently this is something that has occurred at some other time with this particular judge and you, because there was some reference to - I know you know what I'm talking about and you said yes. Jacqie Spradling: Yes, sir. Justice Rosen: And then there was - “I don’t want you to do that in this case. I don’t want references to folks here at all.” And then during your closing argument you do exactly what the trial court emphatically told you what not to do. And the only reason I mention that is because the extremes to which the trial court judge went to inform you not to do that, and you did it anyway. Why isn’t that misconduct, and why isn’t that something we should look at? And what is your answer to that? Jacqie Spradling: | can give you the history to that if you'd like, your Honor. Justice Rosen: | don’t want to hear history. You were warned not do to that, and you did it anyway. Jacqie Spradling: And actually, let me disagree with you, please. In the case that Judge Parrish was talking to me about there was a closing argument in a case, | think it was Dimmick (sp?), although I can’t promise you that that's true. And at some point during my closing argument | looked at the galley, and I said something about the - the jury's verdict being important to everyone. And almost all of the people behind the state stood up. That is not what happened in the Chandler case. There was no one who stood up in the Chandler case. I didn’t request anyone to stand up in the Chandler case. Justice Rosen: Any reference to it, you said, “I'm getting a look. I'm getting a look from what I'm talking about.” And you were referring to the defendant's sister, I believe. Jacqie Spradling: Yes. Shirley Riegel, that's right. Justice Rosen: And so you were referring to someone in the gallery and the court told you not to do that. Jacqie Spradling: And let me disagree with the analogy if | could, please. | do not believe that saying that the defendant's sister who was mean-mugging the state is akin to asking half of the galley to stand up during closing argument. So I respectfully disagree that I did the same thing that the court asked me not ‘to. Justice Dan Biles: Let me jump on the point that I started with, with defense counsel. You'll agree that there was no Protection from Abuse Order. Jacqie Spradiing: 1'll agree that there was no Protection from Abuse Order. There was a... Justice Biles: Even though you said there was. Jacqie Spradling: Yes, sir. Justice Dan Biles: And, in the - I was reading the closing argument again last night, and when that comes up it seems like you hit it hard, fast. Number one, you said something that wasn’t true, that there was a Protection from Abuse Order. Number two, you said that that means that the judge agreed that the defendant was, um, a danger, because that would be the foundation for entering an order for protection from abuse. And number three you said that the defendant ignored the order. Jacqie Spradling: Yes, sir. Justice Dan Biles: And, none of that's true. Jacqie Spradling: Itis true. Justice Dan Biles: How is it true if there was no Protection From Abuse Order? Jacqie Spradling: Because what I should have said, your Honor, was that there was a Protective Order. A Protective Order, as this court knows is an umbrella... . Justice Dan Biles: Entered at the beginning of the divorce proceeding against both parties, and concerning, | think in her case, the residence. That's a whole lot different than a Protection from Abuse Order, isn’t it? Jacqie Spradling: Yes, but there were two orders in this case, your Honor. Justice Dan Biles: Okay, what do I need to look at? Jacqie Spradling: There was a Protective Order in October of 1998 that is different from the Protective Order that was originally given in 1997 which fits the definition that you described. However, after the divorce was over in September of 1998, the defendant had still not signed the divorce journal entry, and she had filed the day after the last hearing multiple motions to reopen the entire case. It was after this, in October of 1998 that Mike Sisco requested a Protective Order and a case manager. Justice Dan Biles: And the court didn’t - the District Court didn’t give that Protective Order that was requested in 1998. Jacqie Spradling: | can tell you if I'm limited to the Record on Appeal, I can't - I cannot point to it. Justice Dan Biles: You entered into evidence the entire divorce file. Jacqie Spradling: No, sir. | did not. Justice Dan Biles: Or, a ton of it anyway. Jacqie Spradling: Yes, sir. Justice Dan Biles: I mean, we've got a huge exhibit that’s the divorce file and there's no order in it. Jacqie Spradling: There is no order in it; you're exactly right. There's no 19... Justice Dan Biles: So you're, | mean, you can't say that there was an order entered because there's nowhere in evidence that an order was entered. Jacqie Spradling: | believe that testimony that an order was entered, is also direct evidence that allows the... Justice Dan Biles: So that'd be the detective’s statement. Jacqie Spradling: Yes, sir. Justice Dan Biles: But the detective took it back in cross examination and said, “Oh, I really don’t recall whether there was an order. You'll have to look in the file that’s in evidence.” Jacqie Spradling: Yes, your Honor. Justice Dan Biles: And there's no order in evidence. So how do you stand up in front of a jury and tell them that a Protective - Protection from Abuse Order was entered? And then say that that means that the judge validated the claim, and that the defendant ignored it? Jacqie Spradling: Because a Protective Order, Protection from Abuse and also a Protective Order is signed off by a judge who must agree... Justice Dan Biles: But there was no Protective - I mean, all I can do is go by what you said. 10 Jacqie Spradling: Sure. Justice Dan Biles: So what you said was there was a Protection from Abuse Order, and that’s not true. Jacqie Spradling: That is not true. It was a Protective Order, not a Protection from Abuse. And the difference is the Protective Order was issued in the divorce proceeding. A Protection from Abuse Order is an order that a person applies for and is granted outside of a divorce proceeding. However, they are both protective of one person against the other. They both require, by judicial order, one person to stay away from the other. And, uh, having been involved in pretrial meetings and preparation in this case, I can tell you that there was a Protective Order. I said Protection from Abuse, when I should have said Protective. Justice Johnson: And this is... Justice Dan Biles: So is it your claim -just - is it your claim that in that statement you are within the wide latitude given to prosecutors? Because that's really our step. Jacqie Spradling: Yes, sir. | can tell you without certain that there is no ill will in saying Protection from Abuse rather than Protective Order. Justice Dan Biles: That's the second - but that gets us into the second step - I'm sorry. Go ahead. Justice Johnson: Now, are we talking about the October ‘98, uh, request? Jacqie Spradling: Yes, sir. Justice Johnson: Well, I'm - I'm confused. A month before trial the state filed a 60-455 motion asking to enter this - this evidence, um, and it only referred to a request for an immediate restraining order in October ‘98. I'm curious why the state wouldn’t have asked that the court consider the order if there was one in fact, uh, in place. ul Jacqie Spradling: | don’t want to mislead this court. There is no document that I found in state’s Exhibit 969, which was the divorce file. There’s no document in that file that is either a Protection from Abuse or a Protective Order. So if | indicated that there was a document, | don’t want to mislead you. I do know, speaking with the victim's family members, that the order existed. Um, and, that that was discovered by Detective Volle as the lead detective in this case. Justice Dan Biles: And do you also agree that on the five-minute phone call on July 5%, I don’t see how you say that during that phone call the victim told the defendant that they were getting engaged. We don't know anything about what happened in that phone call, do we? Jacqie Spradling: Yes, sir, we do know exactly what happened during that phone call. Justice Dan Biles: Okay, how do we know that? Jacqie Spradling: Part of that evidence was admissible, and part of that evidence was not. We know exactly what happened during that phone call because Mike told his brother, Tim. And Mike told his brother Tim, “I'm going to get married to Karen, and I'm afraid of what that news will do when | tell Dana because I'm afraid of what she will do to me.” Because of the obvious hearsay exceptions, and not all of that falling into it, all of that evidence was not presented to the jury. But I stand before you knowing that that phone call took place. Justice Dan Biles: How do you get to say stuff that's not in evidence, though? Jacqie Spradling: | didn't say all of that. Rather, the... Justice Dan Biles: What you said was, “They talked for five minutes and Mike told Dana that he was getting married.” Jacqie Spradling: Yes, sir. And if you look at the testimony of Tim Sisco, I disagree with my colleague's interpretation of the testimony. What she says is that Tim Sisco’s testimony was that he, Mike, thought, “Are you kidding, I’m marrying Karen.” I disagree with that. If you look at the statements just prior to that testimony, Tim Sisco said that Mike had told him that he had told Dana 12 they were getting married. And the thought, the word ‘thought’ comes with Mike's reaction. Justice Dan Biles: And does any of that relate to the - how does that relate to the July 5 phone call? Jacqie Spradling: That's the phone call I'm talking about, your Honor. Justice Dan Biles: Okay. Jacqie Spradling: And in addition... Justice Carol Beier: That's not about her showing up in the breezeway and him reacting to her saying, “I want to move back in”? I'm confused. I want to know exactly what the testimony of the brother was. What was the testimony of the brother? Did he say, “Mike told me that during the phone call he told Dana that he was getting married”? Jacqie Spradling: No. Mike's ~ uh, yes. Um, Mike's... Justice Carol Beier: During the phone call. Not at some point - during the phone call. Jacqie Spradling: Yes, your Honor. Um.... Justice Carol Beier: And that’s in evidence. That's just not in your brain. Jacqie Spradling: Um, | hope it's not just in my brain. That's... Justice Carol Beier: The reason I’m asking that is not to be disrespectful in any way... Jacqie Spradling: Yes Justice Carol Beier: But a few moments ago your answer to - in response to my colleague's question was - “I knew it; therefore, I could talk about it.” And that’s not an answer. Jacqie Spradling: Yes, | understand. Justice Carol Beier: The answer has to be, “It’s in evidence.” You understand that, of course. Jacqie Spradling: Yes, your Honor. Justice Carol Beier: Okay. Jacqie Spradling: And |, and I hope I’m not, uh, confusing the two. Let's say that I am - worst case scenario - and we look only at Tim Sisco’s testimony. Let's, um, uh, let’s look at it that way. Tim Sisco testified that Mike had told the defendant he was getting married to Karen. Justice Biles: When? Jacqie Spradling: And, | want to limit myself to make sure that I’m not confusing. If limit myself only to that, then Justice Beier is correct. That was. Justice Biles: That's the breezeway conversation? Jacqie Spradling: Yes, sir. Justice Biles: Okay. We're trying to get you into that phone call. Jacqie Spradling: Back to the... Justice Biles: Because I don’t care about the breezeway; that happened six weeks before the death, and that has its own relevance to this discussion. Jacqie Spradling: Yes, sir. [Pause] | can point the court to Shirley Riegel and Mark Malick’s testimony. I do not believe that they are exclusively to that five- minute phone call. I guess I'm supplementing the prior answer by saying that both of them testified that the defendant knew Mike was getting married to Karen. That does not specifically say the five-minute phone call. Justice Carol Beier: That's the problem. That's the problem you're faced with because that’s the first inference that your opposing counsel is attempting to rely upon for her inference stacking argument. Your case, um, 14 basically was a motive and opportunity case. Would you agree with me on that? Jacqie Spradling: Um, and identity, yes, your Honor. Justice Carol Beier: Right. But mean, you got to identity Jacqie Spradling: Yes. Justice Carol Beier: _ ... because you said the defendant had motive and opportunity. Jacqie Spradling: Yes, correct. Justice Carol Beier: It wasn’t entirely an identity case, and the way you got to identity was motive and opportunity. Jacqie Spradling: You're right. Justice Carol Beier: You had no physical evidence. Jacqie Spradling: | had no physical evidence, but it’s not an entirely circumstantial case. Justice Carol Beier: Okay, what's your direct evidence in this case? Jacqie Spradling: The defendant's statements in two telephone calls from the jail. Justice Carol Beier: That the state had her hair to compare with the hair that was found on the casing, right? Jacqie Spradling: Um, yes, in part. But not only that the state had her DNA to compare to the hair that was found on a shell casing collected from the scene. But also the defendant's worry that we had her hair, her DNA, to make that comparison. Justice Carol Beier: Right. Right. Which could be interpreted at least one - at least two ways, which is that she’s guilty and she’s worried your gonna find her out, which was your interpretation. Jacqie Spradling: Yes. Justice Carol Beier: Or it could be, the state has my hair and they could fake it. It could be interpreted that way. So, but that's that evidence. The other thing is her phone call with her sister in which she expresses relief that a witness has died. Jacqie Spradling: She has celebrated .... Justice Carol Beier: Because that witness is the only witness who can place her in Kansas during the relevant time period, correct? Jacqie Spradling: Yes, your Honor. Justice Carol Beier: Okay. So you have those two phone calls. Those are circumstantial. That's not direct evidence. That's not an admission on her part. Jacqie Spradling: It is not an admission. Justice Carol Beier: Okay. Jacqie Spradling: \t is a statement against interest as | interpret those phone calls... Justice Carol Beier: As you interpret it, but it’s open to interpretation. Jacqie Spradling: Yes, your Honor. Justice Carol Beier: You don’t have a confession from the defendant. Jacqie Spradling: No. 16 Justice Carol Beier: We don’t have physical evidence. We don't have a direct evidence case. We have a circumstantial evidence case. It's all about the identity of the perpetrator. Jacqie Spradling: Yes. Justice Carol Beier: And the way that you're proving identity is those two phone calls, your interpretation of them, which is circumstantial evidence, and motive and opportunity. And you have beaucoup evidence of motive, because you obviously have an ongoing, fractured romantic relationship that's led the defendant to engage in behaviors that some would consider bizarre and obsessive. Jacqie Spradling: Right. Justice Carol Beier: Okay. And then your opportunity is, she can’t account for her whereabouts in a cogent way at the time of the murders. Jacqie Spradling: Correct. Justice Carol Beier: inference matters. That's your case. And that's why this inference on Jacqie Spradling: Okay. Justice Carol Beier: And the first inference is what happened in that phone call. So I'm asking you, today, what's your evidence on what happened in the phone call? Jacqie Spradling: The phone call, and the timing of the murders immediately after that Justice Carol Beier: That's not about the content of it. That's just reasoning backward from what happened later. The content of the phone call. Do you have any direct evidence, or any kind of evidence that's stronger than what you've already talked about on what happened during the five-minute phone call? Jacqie Spradling: Not that | can promise you is in the record rather than just in my mind. Justice Carol Beier: Okay, thank you. Chief Justice Nuss: If another phone call had been made a full year earlier, that would be a substantially different case for you to argue, would it not? Jacqie Spradling: Yes, sir. Chief Justice Nuss: So, I guess to cut through this, what led you to think that it was that five-minute phone call in which this - in which the defendant learned of this impending marriage, as opposed to something else? Jacqie Spradling: Anything else? Because that's what we were told from the beginning in the investigation and the preparation in this case, your Honor. Chief Justice Nuss: But that’s not evidence, is it? Jacqie Spradling: Yes, but let me ~ might | cite to something that is evidence? Chief Justice Nuss: Certainly. Jacqie Spradling: Let's say that I'm wrong, and that there was no discussion on impending marriage in the five-minute phone call. We at a minimum have, a month before, uh, this breezeway conversation where the defendant asked to get back together. And that's significant because there were two times when the defendant was off-grid, if you will. Once was a month before the killing, and the other was during the killing, during the time of the killing. And so you can surmise that a month before, six weeks before the killing, this conversation in the breezeway then necessarily led to what I would suggest to the court was a dry run. There was evidence presented at the trial that a month before the murders she did not use her phone. She did not use her computer. She did not have any credit card purchases. She was not seen by anybody. And she admitted a month before - she admitted to her friend Ann Carender, that a month before she had gone to Mike Sisco’s home. He was gone. She crawled into his window and looked around. So, let's say that in everything I'm wrong, and I can’t prove that five-minute phone call. It would be the same affect, the same filing, the same trial, with the month before her having that information. Chief Justice Nuss: So you would eliminate from that calculus the fact that they had this five-minute phone call whatsoever. Jacqie Spradling: | can't - | can't eliminate it, your Honor, because I believe that that’s what happened. But I’m giving this court the worst case scenario. Let's say that I'm wrong on everything. Chief Justice Nuss: And that is that there was no five-minute phone call, It was just that she decided a month earlier to have a dry run to see if she could “get away with this”? Jacqie Spradling: Yes, sir. Chief Justice Nuss: Determined yeah, yes, that works, and so a month later she comes back and performs these murders. Is that your theory - Jacqie Spradling: It is. Chief Justice Nuss: . .. that you're giving us today, per our questions? Jacqie Spradling: Yes, sir, itis. Justice Carol Beier: Can | ask about a couple of other statements made during closing argument? Jacqie Spradling: \'m sorry, I'm out of time, but I will certainly .... Justice Carol Beier: Can she answer my questions? Chief Justice Nuss: Certainly. Justice Carol Beier: Okay, great. Um, I just want to ask about a couple of particular things. There was a statement about, or there was some discussion of some evidence about how she did not ask a question at the time of her arrest about why she was being arrested. 19 Jacqie Spradling: Yes. Justice Carol Beier: And then during, um, closing - let me just make sure I'm correct about that, hold on one second, counsel. Yeah, I think this is all during closing argument by you. Jacqie Spradling: Okay. Justice Carol Beier: Um, “you know why she never asked why she was under arrest because she already knew.” That was the statement, and it was kind of suggesting she already knew because she did the crime, so she wasn’t surprised to be arrested. Um, do you know, at the time that she was not asking, had she been Mirandized? Jacqie Spradling: No, your Honor, she had not. It was a pre-Miranda silence. Justice Carol Beier: Okay. That wasn’t clear from the record, so | wanted to give you an opportunity to tell me that. Jacqie Spradling: Okay. Justice Carol Beier: The other thing I wanted to inquire about had to do with this statement from closing. “What these two gas cans,” - this is a little, you know, transcripts are not always perfect grammar, so we'll overlook that. Jacqie Spradling: Sure. | probably messed it up .... Justice Carol Beier: “What these two gas cans does match up with is it gives her enough fuel to get from Denver to Topeka, to do the killing and get out of the state. That's the significance of the gas cans, otherwise her 27 mile per gallon can’t be done.” So, there was evidence introduced of gas purchases, including the two gas cans full of gas, right? Jacqie Spradling: Yes. Justice Carol Beier: Um, was there - but wasn’t the evidence that that would have been insufficient to get her from Denver to Topeka and back to Loveland, rather than sufficient to get her into Kansas and back across the Colorado border? 20 Jacqie Spradling: Yes. That's the reason why the statement was made. The two gas cans and the gas that was in them got her to Kansas, to Topeka, and out of state, directly north. Justice Carol Beier: Okay. And your recollection of the evidence is that that was - that that would have been enough to get her car those places. But that was north to Nebraska, rather than all the way back to Colorado. Jacqie Spradling: Right. Justice Carol Beier: Okay. Thank you for explaining that to me. Justice Johnson: Didn't the trial court prohibit that argument that you couldn’t argue that she exited through Nebraska because that was speculation? Jacqie Spradling: | don't believe so, your Honor. Justice Johnson: All right. But the trial court did rule that - or denied the admission of all victim statements, did it not? Jacqie Spradling: All victim statements. ... Justice Johnson: Victim statements saying they were inadmissible hearsay. Jacqie Spradling: No, your Honor. You're partly correct, however. The trial court ruled. Justice Johnson: Well, I'm just relying on the state’s brief that says the District Court denied the admission of all victim statements finding they were inadmissible hearsay. The court, however, did go through the three-step analysis on whether identity would be a separate basis for the admission of evidence. Jacqie Spradling: And as to the statements that were being addressed at that point in the brief, that’s correct. However, the court did allow some statements under 455 finding that if there were statements made by the victims that were close in time to - did you want to say something? 2 Justice Johnson: Yeah, where I'm going is, uh, that would raise the issue of whether you can have 60-455 admissibility if it’s hearsay. Jacqie Spradling: Yes, sir. You're right. Justice Johnson: Okay. Justice Rosen: Justa clarification. The theory on the gas cans, giving her enough fuel to travel to Denver, to Topeka, and then north to get out of the state - I thought the state's theory was that she traveled back through on I-70 and stopped in Wakeeney. Jacqie Spradling: She stopped in Wakeeney on the way here. Justice Rosen: On the way here... Jacqie Spradling: Yes, sir. Chief Justice Nuss: Counsel, we've taken a lot of your time with our questions. Would you like 60 seconds to wrap up, or do you think you've established your points? Jacqie Spradling: No thank you, I'm good. Chief Justice Nuss: All right, any more questions? Thank you, Counsel. Jacqie Spradling: Thank you. Chief Justice Nuss: You reserved three minutes for rebuttal. Nancy Ogle: Just in response to opposing counsel discussing the two phone calls with - between Dana Chandler and her sister, um, speaking about the fact that she - the state had collected her hair for a DNA, uh, sample. And I realize since this is - you all seem to be aware that this is a circumstantial evidence case - that her hair did not match any of the DNA collected at the crime scene, including some hair that was ruled out as being either of the victims. Um, opposing counsel also discussed the fact that, uh, at least in theory that Ms. Chandler came to Topeka to do a dry run about a month before, uh, the crimes 2 occurred. And she mentions that Mr. Sisco wasn’t home when she arrived and so, uh, Dana, the evidence is that, uh, Ms. Chandler crawled into his house. I just want to point out that, um, the crimes occurred not at Mike Sisco’s home, but at the home of Karen Harkness. And as to not asking why she’s being arrested when she was arrested, um, I mean, if she’s watched Law and Order enough times, she knows not to say anything. Plus, this whole matter had hung over her for nine years before that arrest, and she'd been interviewed, and you know, relatives have talked to her through, through that time. And so I don’t - I don’t know why that - I would argue that that is not any kind of admission of guilt, or has any relevance to the conviction. Justice Carol Beier: That - so that arrest that was being referenced was the arrest that led to her ultimate conviction, the later, after the case had gone cold. That's not the arrest that happened within a few - a month or two of the murders ~ on the child support stuff? Nancy Ogle: As far as | know, | thought it was . Justice Carol Beier: All right. Okay. Thank you. Nancy Ogle: [Looking towards Jacqie Spradling] Am I right, or? Okay, yes. We, we agree. Um, and I would just ask that, obviously to reverse and remand as to resentencing, and to reverse and remand either to be dismissed because of the inference stacking, or retrial based on proven fact rather than the inferences. If you don’t have any questions? Chief Justice Nuss: Any further questions? Thank you counsel. Thank you both for your arguments this morning. Court will take 23