By JOHN HANNA
TOPEKA, Kan. (AP) — Kansas' top court on Friday upheld the death sentence for a man convicted of fatally shooting three adults and a toddler, ruling that he did not clearly invoke his right to remain silent before making statements crucial to his conviction.
The state Supreme Court's lone dissenter in the case of Kyle Trevor Flack argued that the 6-1 majority was requiring a “proper incantation” and forcing suspects wanting to remain silent to apply “arcane philosophies” of law. Even though she called for a new trial for Flack, she called the evidence against him “overwhelming.”
Flack was sentenced to die for the April 2013 deaths of Kaylie Bailey, 21, from the Kansas City area; her 18-month-old daughter, Lana; Andrew Stout, 30, of Ottawa, about 50 miles (80 kilometers) southwest of Kansas City, and Steven White, 31, also from Ottawa. The adults’ bodies were found on a farm, while the toddler’s body was found in a suitcase in a rural creek.
The state-appointed attorney for Flack's appeal argued that prosecutors in Franklin County built their case against him on incriminating statements he made during police interviews. Prosecutors argued they also had strong circumstantial evidence against Flack.
The attorney argued that the trial judge should have refused to allow prosecutors to use the statements as evidence. During his interrogation, Flack repeatedly made statements suggesting he wanted to end the questioning, including, “Take me to jail! Take me to jail! Take me to jail!”
But in its unsigned opinion, the court's majority said his statements could have been interpreted by police in a variety of ways: an insistence he didn't know about what they were asking, a recognition that he was in a difficult circumstance, an effort to negotiate with officers or an attempt to bolster his credibility. The court also upheld his convictions for capital murder and other crimes.
“Isolated or combined, his statements did not unambiguously and unequivocally assert his right to silence,” the majority wrote.
Dissenting Justice Evelyn Wilson, a former district judge, said the videos of Flack's interviews — and not just the transcripts — were the best evidence for whether Flack was invoking his right to remain silent. She said the videos showed that Flack wanted to end the police interrogation and return to jail, so clearly that no officer could have misinterpreted them.
In many cases, police, prosecutors and courts have resorted to using a “mastery of speculative mental gymnastics” to justify a conclusion that a suspect is not invoking their right to remain silent, she wrote.
A ‘right’ to silence which cannot be exercised in practice — even by actual silence — is no right at all," Wilson wrote.
Flack’s attorney raised numerous other issues, which all of the justices, including Wilson, rejected. When the court heard from attorneys in Flack's case in January 2022, those arguments focused heavily on whether prosecutors should have been allowed to use his incriminating statements as evidence.
Flack is one of nine men on death row in Kansas, and the last one to be sentenced to lethal injection. The state has not executed anyone since 1965.
Even after Flack’s trial, it wasn’t clear what led to the shootings, which detectives believe happened over separate days. The defense argued that Flack, who was 28 at the time of the crimes and is now 38, suffered from a severe mental illness that caused him to hear voices throughout adulthood.