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State v. Lackey9/30/2005
Convictions affirmed, sentence vacated, and case remanded with directions.
Robert Henry Lackey, II, was convicted by a jury of one count of premeditated first-degree murder in violation of K.S.A. 21-3401(a) (Ensley 1981) and one count of rape in violation of K.S.A. 21-3502 (Ensley 1981), for crimes committed in December 1982. Pursuant to K.S.A. 1982 Supp. 21-4504 of the Habitual Criminal Act (HCA), his sentence was enhanced to two consecutive terms of life imprisonment and 45 years to life. He appeals directly to this court pursuant to K.S.A. 22-3601(b)(1).
In 1982, the victim, S.B., was a 22-year-old college student who met the defendant while she was doing volunteer work at the Gospel Mission (Mission) in Salina. The defendant was a transient who was staying at the Mission and working as a cook, and he was known as Bob Moore. S.B. and the defendant developed a friendship which involved socializing outside of the Mission with friends Mark and Dora Foster. In November 1982, the defendant indicated to Mark that he wanted to date the victim, but she had rebuffed his sexual advances indicating that she only wanted to be friends. This upset the defendant and made him angry.
In December 1982, S.B. was living in a trailer park in Salina. She had been dating Jay Czarnowski exclusively for about a year, and he had a key to her residence. They had been having problems and had an understanding that they could date outside of their relationship; however, Czarnowski did not know that S.B. had done so. On Thursday, December 9, 1982, Czarnowski and S.B. got into an argument at her residence about his plans to go home for the weekend. They made up that evening and had unprotected vaginal or anal intercourse. Czarnowski went home to Lincolnville on Friday, December 10, 1982.
On that day, S.B. spoke with her mother and sister on the telephone regarding their plans to visit S.B. for Christmas. S.B.'s mother then tried to call S.B. several times throughout the next week, but S.B. did not answer. At S.B.'s parents' request, the trailer park landlord checked S.B.'s mobile home the following Thursday but did not find her.
On December 11, 1982, Pamela Chavez (now Bishop) went to work around 4 p.m. at a local tavern as a bartender. The defendant was drinking and playing pool, and he introduced himself to Chavez. She served him two pitchers of beer before he asked her to call him a cab between 6 and 7 p.m. He told Chavez that he was drunk, and he left a note for his friend Dora Foster who worked at the tavern saying that he was "messed up."
Wenda Huehl (now Plunkett) arrived at the tavern between 5:30 and 6:30 p.m. to visit Chavez. Huehl saw Chavez playing pool with the defendant and remembered that the defendant later asked Chavez to call him a cab to the trailer park where S.B. lived. Huehl specifically recalled the name of the trailer park because she lived across the street from it and had considered offering the defendant a ride, but the cab had already been called.
Yellow Cab radio logs indicated that cab driver Harvey McIntyre picked up a fare at 6:17 p.m. on December 11, 1982, from the tavern and took the fair to a convenience store about a block and a half from S.B.'s residence. McIntyre described the fare at trial as a white, slender male, in his twenties with dark hair, a little taller than himself, wearing a ball cap. The logs also indicated that a fare was picked up by cab driver William Letterman from the convenience store at 10:50 p.m. and the fare was taken to the Mission. At the time of the November 2002 trial, Letterman was deceased and his statements were admitted over objection through the testimony of a retired Salina police of
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