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State v. Hebert1/16/2004
Affirmed.
Jeffery F. Hebert was convicted of capital murder in violation of K.S.A. 21-3439, aggravated battery against a law enforcement officer in violation of K.S.A. 21-3415, criminal use of weapons in violation of K.S.A. 1999 Supp. 21-4201, and inflicting death to a police dog in violation of K.S.A. 1999 Supp. 21-4318. The jury was unable to reach a unanimous decision on a death sentence, and the court sentenced the defendant to consecutive sentences of life in prison without the possibility of parole for 50 years for capital murder, 46 months for aggravated battery against a law enforcement officer, 7 months for criminal use of weapons, and 12 months for inflicting death to a police dog. He appeals, raising numerous issues. We conclude that no reversible error occurred and affirm.
Facts
Jeffery F. Hebert, while hiding from police in the attic of his residence, shot and killed Sheriff Deputy Jim Kenney, head of the Clay County K-9 unit, as Deputy Kenney climbed the attic stairs with his police dog named Copper, searching for the defendant. The defendant then shot the police dog two times with a .12-gauge shotgun, killing the dog. Deputy Kenney fell backwards down the stairs causing Sheriff Gary Caldwell to fall and injure his hand which required "three or four" stitches. In addition to the .12-gauge shotgun, the defendant possessed two other weapons, one of which was illegal to possess: a sawed-off .20-gauge shotgun. The defendant surrendered to the police after tear gas was shot into the attic.
The events leading to the death of Deputy Kenney began on November 12, 1999, when the defendant was arrested in Morganville on a probation violation from Cloud County. The defendant was transported from Morganville, in Clay County, to the Cloud County jail later that day. Three days later, on November 15, 1999, the defendant and two other inmates escaped from jail by subduing two deputy sheriff officers. Before trial, the defendant pled guilty to two counts of battery against a corrections officer and one count of aggravated escape from custody in connection with the escape. On the defendant's motion in limine, these convictions were excluded at trial based upon their prejudicial value outweighing the probative value of such convictions.
The defendant testified that after he escaped he originally intended to hide out and live in the woods. Soon after the escape, the defendant became separated from the other escapees and the plan began to fall apart. After many miles of walking and hitchhiking, the defendant returned to his house in Morganville during the early morning hours of November 16, 1999. He drank a couple of beers, packed a duffel bag full of clothes, and gathered his .12-gauge shotgun, his .22 caliber rifle, and his .20 gauge sawed-off shotgun. The defendant testified that he intended to use the guns to hunt animals in the woods for food. He explained that he always kept his guns loaded with the safeties off because he was the only one who handled them.
Around 7 a.m. the defendant called a friend, Buddy Butler, intending to ask for a ride, but changed his mind because he did not want to get Butler involved. Soon after calling Butler, the defendant fell asleep on his couch.
While the defendant was sleeping, Detective Kelly Kemp of the Clay County Sheriff's Department was gathering information from people who knew the defendant. Detective Kemp discovered the defendant's location when speaking with Butler, and he relayed this information to Sheriff Caldwell. Sheriff Caldwell instructed Detective Kemp to obtain a search warrant for the defendant's residence. While waiting for the search warrant, Sheriff Caldwell called the d
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