Appeals court says Kimberly Sharp, serving life for her role in David Owen’s murder, was unconstitutionally convicted

Longtime Pitch readers will recall a series of stories from 2006 and 2007 about an unusual Topeka lobbyist named David Owen.

Owen was decidedly unlike others who seek to influence Kansas lawmakers. Owen was unkempt, brash, annoyingly persistent and abrasive. He had cerebral palsy and had one chief cause: Reuniting the homeless with their families.

When Owen wasn’t passing through the halls of the Kansas Statehouse, he combed Topeka for homeless camps, offering to help those on the streets get back with their families. He would offer to let them use his cellphone to place calls to family members. Failing that, Owen would sometimes destroy their homeless camps to induce them to get off the streets.

One of those excursions cost him his life. On June 14, 2006, Owen happened upon a homeless camp where four drifters were hanging out by the Kansas River. Owen, as he often would, implored them to get in contact with their families. The drifters, which included a woman named Kimberly Sharp, were not receptive to his advice or his presence. Owen was beaten, strung up to a tree and left to die by his assailants.

A detailed account of his death was published by The Pitch in 2007. In it, Sharp suggests that while she was put off by Owen, she didn’t want the others in her company to kill the 38-year-old man. 

A jury convicted four people — Sharp, Carl Lee Booker, John Ray Cornell and Charles Hollingsworth — for Owen’s murder.

Since going to jail, Sharp has attempted to overturn her conviction on the basis that police detective Bryan Wheeles extracted a confession from her with the promise that she would receive no jail time and that authorities would help her and her children find shelter — thus, an involuntary and inadmissible confession. 

That argument was based on this exchange between Wheeles and Sharp during her interrogation:

Wheeles: If you were scared and you were helping [Cornell] burn things because you were afraid they were going to hurt you if you didn’t go along, you need to tell me that right now. Are you picking up on what I’m telling you?
Sharp: Uh-huh.
Wheeles: You cannot, cannot hold anything back in this thing at all, Kim, you can’t. This is as serious as it comes.
Ms. Sharp: I know, I know, I know.
Wheeles: Okay.
Sharp: Yeah, I helped burn.
Wheeles: Okay, now —
Sharp: Am I going to jail?
Wheeles: No, no, no, no, no, no, no, no, [no, no]. You are a witness to this thing so long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared—
Sharp: I was very.
Wheeles: —when you did what you did. I understand the whole situation.
Sharp: Okay.
Wheeles: Just don’t tell me no if I ask you something.
Sharp: Okay. 

Sharp’s argument failed to sway all but one Kansas Supreme Court justice, and a federal judge later found it unpersuasive. But three judges on the 10th Circuit Court of Appeals in Denver, which handles appeals from several states, including Kansas, found that previous rulings incorrectly thought that the detective hadn’t made the promise of leniency to Sharp.

Court precedent says a promise of leniency is a relevant factor in determining whether a confession was improperly coerced.

While lower courts believed Wheeles merely instructed her to be truthful and held out no promises, the 10th Circuit found that a reasonable reading of the exchange shows Wheeles clearly telling Sharp “no” several times when she asked if she was going to jail and that she was only a witness so long as she didn’t do anything dumb to “jam [her]self.”

The ruling doesn’t let Sharp out of prison just yet. The Shawnee County district attorney and Kansas Attorney General’s Office have time to decide whether to retry her case.

Jennifer Rapp, a spokeswoman for Kansas Attorney General Derek Schmidt, says the office is still reviewing the decision and consulting with the Shawnee County district attorney to determine any next steps.