Flack to face jury trial for homicides
By DOUG CARDER, Herald Senior Writer | 3/12/2014
The victims of a quadruple homicide last spring in rural Ottawa all died as the result of shotgun wounds. All four were killed on the property at 3197 Georgia Road.
And Kyle T. Flack will stand trial for the deaths of Steven White, 31, Kaylie Bailey, 21, her 18-month-old daughter Lana Bailey, and Andrew Stout, 30.
District Judge Thomas H. Sachse determined prosecutors had provided sufficient evidence — which included testimony from law enforcement officers, forensics investigators and other key witnesses — to bind Flack over for trial on four of the five counts listed in the criminal complaint against the 28-year-old Ottawa defendant. At the conclusion of the two-day preliminary hearing noon Wednesday, Sachse set Flack’s arraignment for 9 a.m. April 22 in Franklin County District Court, 301 S. Main St., Ottawa.
At the arraignment, Flack will enter a plea on the charges of capital murder in the deaths of Kaylie Bailey and Lana Bailey, first degree murder in the death of Stout, first degree murder in the death of White and criminal possession of a firearm. Judge Sachse dismissed a charge of attempted rape. If Flack pleads not guilty, the case will move forward to a jury trial. If Flack pleads guilty or no contest — as part of a plea agreement — at the arraignment, a date for his sentencing hearing would be set.
When asked at a press conference after the preliminary hearing if the state would consider a plea bargain, Stephen Hunting, Franklin County attorney, said the prosecution team was proceeding as if it were preparing for a jury trial. Flack’s defense attorneys Ronald Evans, Topeka, and Tim Frieden, Wichita, offered a “no comment” after the hearing wrapped up Wednesday.
Family members of the victims also declined comment as they filed out of the courtroom. One family member was overheard saying she felt like she “was going to throw up” after hearing the gruesome details of the four deaths unfold in the courtroom during the previous day and a half of testimony.
Dr. Erik Mitchell, a Kansas City, Kan., forensics pathologist who performed autopsies on the four victims, testified Wednesday that White — whose body was discovered in a detached out-building that served as a garage — died as the result of two shotgun wounds to the chest and head, either of which would have been fatal.
Mitchell said the destructive chest wound was an “absolutely non-survivable injury” and that death from the head wound would have been immediate. He categorized White’s death as a homicide.
When cross-examined by defense attorney Evans, Mitchell said he could not tell which wound had been inflicted first.
“So it’s conceivable that Mr. White was already dead when he was shot [a second time],” Evans said.
“Yes, it’s possible,” Mitchell said.
On Tuesday, Det. Jeremi Thompson, with the Franklin County Sheriff’s Office, testified that Flack said during an interview on the day he was arrested May 8 that Stout and White had been feuding because White had not been paying rent to stay at Stout’s farm at 3197 Georgia Road. After White left Stout’s residence on that day in late April, Stout grabbed a shotgun and followed White out of the home to the detached garage. Flack said Stout shot White in the chest and handed the shotgun to him, Thompson testified. White was not dead, Flack said, so he shot and killed him, Thompson testified.
“Mr. Flack said, ‘I shot him. He dies,’” Thompson told Vic Braden, deputy attorney general for the State of Kansas, who is leading the prosecution team in the case. Thompson then testified that Flack said after the shooting he and Stout went back inside the house and smoked “weed.”
Mitchell went on to describe how the other three victims had died in late April or early May. The doctor testified that Stout died as the result of multiple shotgun wounds. Stout was shot at least five times with a shotgun — in the head, neck, shoulder, back and lower back areas, Mitchell testified. He ruled Stout’s death as a homicide.
Before being shot, Stout’s skull contained injuries that would have been consistent with being struck by the barrel of a shotgun, Mitchell said. The doctor said the wounds had to have been inflicted before the shots were fired, because such a defect in the skull would not have been possible after it had been fractured by a shotgun blast.
Crime scene investigators testified Tuesday that Stout’s body was found between the bed and a dresser in the home’s master bedroom. Kaylie Bailey’s body also was found near Stout’s on the bedroom floor. Both bodies had been covered with a pile of clothing and bedding.
Mitchell, who said he has performed more than 11,000 autopsies in his career, said Bailey died as the result of a single shotgun wound to the back of the neck that exited through the temple of her skull. Bailey’s wound would have resulted in “immediate death,” Mitchell testified.
Bailey had been gagged with a bandana and her wrists had been bound behind her back with a black plastic Zip Tie.
Because Bailey was naked from the waist down and was the only victim who had been gagged and bound and had had clothing removed, prosecutors tried to argue that Flack had intended to rape her, accounting for the attempted rape charge.
DNA collected from semen stains on a towel discovered in the next room matched Flack’s DNA, Bethany Stone, a forensics scientist with the Johnson County Sheriff’s Office crime lab, testified. Flack’s DNA also was linked to the bandana used to gag Bailey. But his DNA was not found in the underwear that had been removed from her body or on her person, Stone testified.
Defense attorney Frieden argued that because Flack had been living at the residence, it would not be unusual to find his DNA throughout the home. He said a semen-stained towel found in the living room was not sufficient evidence to connect him with an attempted rape charge.
After listening to testimony and prosecution and defense arguments, at the conclusion of the preliminary hearing Judge Sachse dismissed the attempted rape charge because of a lack of sufficient evidence.
CAPITAL MURDER CRIME
In perhaps the most disturbing testimony Tuesday afternoon, Andrea Reed, crime scene investigator with the Johnson County crime lab, described how the body of 18-month-old Lana Bailey was discovered about dusk May 11, 2013, hidden in a suitcase found in Tequa Creek near Stubbs Road in Osage County, close to the Franklin and Osage county line. Reed supervised the recovery of the suitcase from the creek by a dive team from the Pottawatomie Fire Department, she testified.
Blake Reker, Osage County Sheriff’s deputy, was patrolling county roads that connected with neighboring Franklin County as it approached dusk May 11, paying special attention to culverts, ditches and bridges — likely places where a small body could be hidden, according to Herald archives.
The newly minted deputy spotted some items that caused him to pause and investigate further — leading to the discovery of a body thought to be that of Lana Bailey, Franklin County Sheriff Jeff Richards announced during a 1 a.m. press conference May 12 in front of his office, 305 S. Main St., Ottawa.
But baby Lana had died before her body was thrown into the creek, those in the courtroom learned Wednesday.
Though the 18-month-old’s body had been discovered in the fetal position inside a suitcase that had been tossed into Tequa Creek, near Williamsburg on I-35, a direct route to where Flack was apprehended in Emporia, Mitchell’s testimony was able to show that Lana Bailey, in fact, had been killed in the same bedroom with her mother at about the same time.
Mitchell testified that Lana Bailey had been killed by a single shotgun wound that entered through her back and exited through her chest. A few members of the courtroom audience looked near tears as the doctor grimly noted that although the wound was not survivable, the baby’s death would not have been instantaneous and that she would have lived “at least a few seconds” and known that something wrong had happened to her.
Because the blood stains found on socks and other clothing piled on top of her mother’s body were identified through DNA as coming from Lana — along with Lana’s DNA being found on a spent shotgun shell under the bed’s headboard — Mitchell testified Wednesday morning that Lana Bailey would have been shot after her mother already was dead but probably only a short time later.
The doctor classified Kaylie and Lana Bailey’s deaths as homicides.
Later, at the press conference, Hunting said because Kaylie Bailey and Lana Bailey had been killed at about the same time, and as part of the same criminal act, their murders qualified for a capital murder charge under Kansas law. If convicted, the capital murder charge is punishable by the death penalty, Hunting told reporters.
The prosecution has until one week after the arraignment proceeding April 22 to determine if it will seek the death penalty in the case. Because evidence shows the deaths of White and Stout were committed as separate actions, Hunting said, their deaths did not qualify for capital murder, which is why those two homicides each carry a first degree murder charge. The Franklin County attorney told reporters the prosecution would seek a Hard 50 sentence against Flack if he were convicted of those crimes. If convicted and sentenced to Hard 50, Flack would not be eligible for parole for 50 years. Hard 50 was the maximum sentence the state could seek on a first degree murder charge, Hunting said.
Evidence related to a 12-gauge shotgun recovered at a waste transfer station in Emporia continued to pile up Wednesday morning.
Jason Butell, a firearms expert with the Johnson County crime lab, testified that he was able to determine that a shell discovered in the garage where White was killed was fired from the shotgun recovered in Emporia. Flack’s DNA was found on the shotgun and one of the spent shells recovered from the crime scene, forensics scientist Stone later testified. Butell said he was able to determine that other recovered shells had been cycled through that shotgun’s magazine, but he was unable to determine if they had been fired from that particular weapon. The one shell, however, provided conclusive evidence that it had been fired from that shotgun, he said, linking the discarded weapon to the crime scene.
The Winchester 12-gauge shotgun had the capacity to hold five shells, and each shell would have required the operator to pump the slide action to discard a shell while loading another one into the firing chamber, Butell said.
Andrew Stout was shot five times with a shotgun, Mitchell had testified earlier.
In testimony heard Tuesday, Hunting attempted to connect the dots between the shotgun shells and the partial shotgun recovered from the City of Emporia’s waste transfer station when backhoe operator Marciel Hernandez testified he spied the weapon among some refuse he was pushing at the station May 8, 2013.
“It was covered with mashed potatoes and spaghetti,” Hernandez said.
The shotgun, which was loaded with four shells, was turned over to the Emporia Police Department by Timothy DelCamp, Hernandez’s supervisor.
Stone testified that a mixture of DNA was found on the shotgun, with the major profile matching Flack’s DNA and other minor profiles matching the DNA of workers who handled the shotgun at the transfer station in Emporia.
The bodies of Kaylie Bailey, Stout and White were discovered May 6 and May 7 at 3197 Georgia Road, west of Ottawa. Lana Bailey’s body remained missing, as law enforcement agents and other search parties combed the area for the baby. Her body was discovered May 11 in the creek.
Ashley Vogelaar, a crime scene investigator with the Johnson County crime lab, testified Tuesday afternoon that a duffel bag, which investigators believed belonged to Flack, was recovered from the apartment where Flack was taken into custody May 8 in Emporia. The bag contained numerous items, including black Zip Ties similar to the one used to bind Kaylie Bailey’s wrists, Vogelaar said.
Vogelaar said she was sent to Emporia to process a black Toyota Corolla that belonged to Kaylie Bailey for evidence. The vehicle had been abandoned in Emporia. While there, she also confiscated the duffel bag from the apartment where Flack’s friend lived to process the bag’s contents for evidence, she said. The preliminary hearing began late Tuesday morning with witnesses establishing the last time the four victims had been seen alive, which ranged from late April for White and Stout to Kaylie Bailey and her daughter being spotted in the drive-thru lane of the Burger King in Ottawa during the noon hour on May 1. Mitchell testified Tuesday that because of the decomposition of the bodies, it would be impossible to pinpoint the exact time of death of the victims.
After the two-day hearing concluded Wednesday, deputy attorney general Braden addressed reporters huddled in front of the county courthouse for the prosecution team’s press conference. The team includes Braden, Hunting and James Ward, assistant Franklin County attorney.
“Criminal litigation is a marathon, not a sprint,” Braden said. “Today, we took a step forward.”