The Heinous and the Cruel

The inventory of Vaughn Flournoy’s getaway car was as follows: a box of personal files, a jewelry case and a dresser drawer full of pennies, all his grandmother’s; one knife, a personal keepsake of his own; and one hysterical girlfriend, again his own.

The car itself, a burgundy 1990 Oldsmobile, also belonged to his grandmother, Lillian Thomas. But Thomas sat in her favorite blue chair in her Kansas City, Kansas, home, dead from gunshots to the head and body. Beside her was a bowl of melted ice cream that she had been eating when her grandson and housemate, thirty-year-old Vaughn Flournoy, walked into her living room, blocked the television and fired a .38-millimeter revolver in her direction.

The girlfriend, Cheryl Key, had been sitting next to Thomas in a matching chair when Flournoy stormed in. She jumped up to stop him, but Flournoy, a physically dominating presence with the thick build of a fullback, aimed the gun over her left shoulder and fired. Screaming for him to stop, Key ran into the kitchen and winced as Flournoy put two more bullets into Thomas’ head and chest.

“I have to put her out of her misery,” Flournoy yelled, and then he fired again.

When the shooting stopped, Key returned to the living room and saw Flournoy kneeling beside his grandmother, stroking her hair and talking to her as if she were still alive. He then turned his attention to Key and showed her a dagger.

“I’m going to take this with me, and when the police catch me, I’m going to shoot myself, and I want to be buried with my knife,” Flournoy told Key.

For the next several hours, into the early morning of November 25, 1997, Flournoy drove around Kansas City, Kansas, and Kansas City, Missouri, with Key beside him. Key would later say he looked puzzled, as if he didn’t fully understand what had happened. He rarely spoke, even when she screamed at him about the murder.

When morning came, Flournoy made four stops to exchange the pennies, but neither an acquaintance nor bank tellers would honor his request. After six or seven hours’ driving around, they checked into the Admiral Motel, a dingy inn east of downtown Kansas City, Missouri. There, Key finally persuaded Flournoy to surrender to police. That evening, almost 24 hours after the slaying, Flournoy walked Key to a bus stop and let her go.

The next morning, Flournoy walked into the Kansas City, Kansas, police department. A detective approached and asked how he could help. Vaughn Flournoy said, “I killed my grandmother.”

At his trial, Flournoy asked for leniency because his mother had introduced him to demonology and Satanism when he was nine years old, but the jury didn’t buy it after hearing contradictory testimony. Convicted of first-degree murder, Flournoy received the toughest prison sentence possible in Kansas: life without chance of parole for forty years — the “Hard Forty.”

But in December 2001, the Kansas Supreme Court disagreed. While affirming Flournoy’s conviction, the court took issue with the reasoning behind his sentence. As has been the case in the past, the phrase “heinous, atrocious and cruel,” the linchpin of a Hard Forty sentence, was turned on its side. A new hearing for Flournoy March 15 will determine his sentence. It might also dictate the future application of the sentencing law.

Vaughn Flournoy’s case was hardly the biggest news from the Kansas Supreme Court last December. Headlines instead went to State v. Kleypas, the high court’s first opinion declaring Kansas’ 1994 death penalty law constitutional.

But Kansas, even without a mandatory life sentence on its books, has never been big on capital punishment. Next to kill-happy Missouri, it’s downright skittish. In all, Kansas has conducted 24 executions — nine of which took place in the nineteenth century. The state’s last executions were in 1965, when Richard Hickock, Perry Smith, James Latham and George York were hanged at the state penitentiary in Lansing.

Meanwhile, Missouri has executed 94 prisoners since 1937, and 70 men now sit on the state’s death row.

Kansas’ relatively narrow definition of a capital crime — state law lists seven crimes eligible for the death penalty; Missouri lists fourteen — makes the Hard Forty sentence the toughest punishment for most first-degree murders.

So while Kleypas may have been the most prominent Kansas Supreme Court decision last December, Flournoy’s case is more relevant. Since the Hard Forty law took effect in 1990, the court has muddled through many Hard Forty appeals — gruesome cases involving child-killers, vengeful lovers and ax murderers — and returned varying opinions. At one point, the court issued a decision so controversial that the Kansas legislature changed the law.

In 1998, a family of four was driving down a road in Topeka, Kansas, when they heard gunshots and saw a nearby driver fall out of his car.

The driver, Carlos Martinez, had made the mistake of offering a ride to his girlfriend’s daughter and her boyfriend, Adrian “Angel” Lopez, after the young couple had spent a night arguing. When the fighting continued in the car, Lopez pulled a gun from his bag of clothes and began firing at Martinez, who fell out of the car’s broken driver’s-side door. The driverless car continued to move at about 35 miles an hour until it crossed into a parking lot and struck a building.

In court, Lopez learned that Kansas law allows a Hard Forty sentence for defendants who, for instance, hired a hit man, committed the crime in a “heinous, atrocious or cruel manner” — or endangered more than one person while committing the crime. Lopez’s trial court decided that the murder, coupled with the risk to Lopez’s girlfriend, justified the Hard Forty. Last April, the Kansas Supreme Court upheld the sentence.

A defendant can present mitigating factors, such as Vaughn Flournoy’s Satanist defense. But the Hard Forty decision is not as simple as a mathematical question — the number of aggravating factors minus the number of mitigating factors. The court has said again and again that one aggravating factor can defeat any and all mitigating factors.

Consider the long legal saga of David Spain, a wily and dangerous figure who shot a man while escaping from the Haskell County jail in 1995 and then drove a pickup truck to Colorado with two accomplices. There, one of the truck’s tires blew, and the trio stopped at a farmhouse. When Elmer Briles came outside to help, the escapees took him hostage and stole his car.

Back in Kansas after his capture, Spain heard the state argue that Briles’ abduction put more than one person at risk during his flight. The court agreed. But in his first appeal, Spain successfully persuaded the Kansas Supreme Court to throw out that argument and send the case back for resentencing. When the state again asked for a Hard Forty sentence, Spain said the jail was a “loose ship” that practically provoked escape attempts. Two years later, the case returned to the Kansas Supreme Court, which ruled that one aggravating factor (Spain committed the crime to avoid prosecution) outweighed one mitigating factor (his codefendant was the ringleader), and approved a Hard Forty sentence.

But the court’s ruling does not mean two people have to be present during a murder for the defendant to be charged with presenting risk to more than one person.

In 1990, Darrell Bailey broke into his great uncle’s Wichita, Kansas, home with four accomplices. “You’re going to die tonight,” they told the uncle, Sylvester Johnson, before stabbing him repeatedly. Then they forced Johnson and a female acquaintance into a car, demanded the woman perform oral sex, drove them both to a bank, beat Johnson, forced the woman to make ATM withdrawals, attacked two other people trying to use the cash machine, and later, after Johnson escaped, bludgeoned the woman to death and ditched her body in a park.

The court ruled that because the brutality was inflicted on both victims during the spree and because both suffered great risk of death, the crime was “heinous, cruel and atrocious.” In this case, the Kansas Supreme Court concurred.

But other high-court decisions demonstrate how the “heinous” clause — the most common, abstract and disputed slice of Kansas’ Hard Forty cases — is not always what it seems.

In February 1994, Rick Follin took his three- and four-year-old daughters for a ride in his pickup truck in El Dorado, Kansas.

Six months earlier, Follin had begun to believe his wife was cheating on him. After stewing over this for nearly six months, he bought a microcassette recorder to tape his wife’s phone calls. One morning, he discovered a conversation he thought proved his wife’s infidelities. Follin called his wife at work and demanded details, but the startled woman refused to come home and speak with him alone.

Follin loaded his daughters into the truck and set out for El Dorado Lake. He bought sodas and doughnuts for the unsuspecting girls and drove around for almost two hours. That evening, with his daughters beside him in the cab of the truck, Follin pulled a knife. He lifted both girls’ shirts over their left arms to expose their chests and abdomens. Then he stabbed each child three times.

The next day, a passerby noticed the truck and saw Follin slumped in the driver’s seat. Follin told him that he tried to kill himself. The man then opened the passenger door and saw the two little girls. He asked Follin why he killed his daughters. Follin told him it was his family, and he could do what he wanted to.

The trial court determined that Follin had presented great risk to two people and that the method (stabbing), number of wounds inflicted and the girls’ ages made his crime heinous, cruel and atrocious. He received a Hard Forty sentence.

But in its 1997 decision, the Kansas Supreme Court found that Follin had done nothing heinous, cruel or atrocious.

“The plain language of the statute does not support the state’s suggestion,” the court ruled, adding that “a rational factfinder could not find beyond a reasonable doubt that Follin killed his daughters in an especially heinous, atrocious or cruel manner as those statutory terms have been defined.”

Because Follin had committed a double homicide, the court upheld his Hard Forty sentence. But his case is one of several that raise the question: If that isn’t heinous, what is?

Well, shooting someone isn’t, according to the Kansas Supreme Court, which says that gunshot deaths are efficient, commonplace and usually quick. That’s why the high court threw out Kenneth Cook’s Hard Forty sentence. In 1992, Cook walked into Charles Duty’s bedroom and shot him twice, once in the chest and again in the back. Cook then removed all of Duty’s teeth and cut tattoos from Duty’s flesh to prevent his identification. Regardless, the high court found that Duty’s death, because it was caused quickly by gunshot, was not heinous enough to warrant a Hard Forty sentence.

But even that rule isn’t certain.

In 1993, Brent Alford stalked his ex-girlfriend at her workplace, a Burger King restaurant in Wichita, Kansas. When the girlfriend, Kim Jackson, tried to run out the front door, Alford shot her twice and pushed her back into the kitchen. Desperate and struggling, Jackson flung a basket of hot french fries at Alford, who slipped in the grease and fell against the restaurant’s bun warmer. As his wounded victim tried feebly to escape, Alford recovered and followed her, pulling the trigger again and again without success. Finally, after several clicks of the jammed gun, he fired two more shots and killed her.

In that case, the Kansas Supreme Court considered the murder heinous because of the mental anguish Jackson experienced as Alford tried to finish her off. At that point, the court reasoned, she knew she was going to die.

The court made a similar decision when reviewing the case of a Kansas City, Kansas, man named Joseph Brady. In 1995, a suicidal Brady showed up at his neighbor Bill Flynn’s apartment because he knew the man owned a gun. Once inside, Brady had a beer with Flynn and his girlfriend, Julia Wilcox, then walked to their bedroom and found a gun in a nightstand. Brady returned to the living room with the gun held to his head. Flynn and Wilcox tried to persuade him to put the gun away. Instead, Brady turned the pistol on them and told them to get on the floor. The couple lay facedown, head to toe, while Brady paced the room for fifteen minutes. Then he leaned over Wilcox and shot her in the head. Seconds later, he executed Flynn in the same fashion.

When Brady appealed his two consecutive Hard Forty sentences, the Kansas Supreme Court decided that he had indeed tortured his victims by pacing the room and making the last fifteen minutes of their lives excruciating.

In both Alford’s and Brady’s cases, the high court ruled that shooting deaths can be labeled heinous when the victim suffers mental torture. But what about harm done after a victim dies?

In 1992, Billy T. Reed took a drunken, passed-out sixteen-year-old girl to a secluded area near Wellington, Kansas, and attempted to rape her. When she resisted, Reed shot her in the back of the head, stabbed her in the neck, then decapitated her. The supreme court ruled that it was impossible to call the crime heinous because “there was no way to determine whether the stabbing and decapitation occurred before or after the victim was already dead.” Postmortem mutilation, the court decided, does not a heinous crime make. Reed still received his Hard Forty sentence for other aggravating factors.

Such wasn’t the case for George Spry, whose legal story eventually led to a Kansas Supreme Court opinion so appalling to Kansas legislators that a new law was written, passed by both chambers and signed by the governor just six months later.

George Spry’s relationship problems with Barbara Chaffee started long before the night in 1993 when he took an ax to her head.

The couple met in 1992 through a mutual friend. The following spring, they moved into a Wichita mobile home that belonged to Chaffee’s daughter. When that daughter wanted to move back in, Spry became enraged, destroying improvements he and Chaffee had made to the home. At one point, he even held a saw to Chaffee’s throat. It was at that moment, court documents say, that “Chaffee began to have misgivings about her plans to marry Spry.”

The couple moved into a friend’s duplex apartment, but it wasn’t long before Spry lost control again and tore out every phone line in the basement. In July 1993, the couple broke up, and Spry moved out.

Chaffee tried to move on, but Spry still showed up periodically against her wishes. His appearances so frightened Chaffee and her roommate, Janice Reed, that the two women sometimes planted a cardboard figure of Bill Cosby in various places around the apartment to give the illusion of a male presence.

On August 10, 1993, George Spry snuck up to the duplex and unscrewed a light bulb on the patio. Unfazed by the cardboard comedy legend, he managed to creep into the apartment and move toward Chaffee’s room, ax in hand. As Chaffee slept, Spry struck her in the head nine to twelve times with powerful blows. He left the bloodied tool under her bed and fled the scene.

Spry roamed free for three years before police finally caught him in San Francisco. At his trial, jurors heard gruesome testimony from a pathologist who suggested that all but one of the blows to Chaffee’s head were lethal. Based in part on that evidence, Spry was convicted of first-degree murder and handed a Hard Forty sentence.

But in its review, the Kansas Supreme Court used the test in Alford and Brady, the two shooting cases, to show that Spry’s ax-wielding homicide did not qualify as heinous under Kansas law: “Did Spry inflict serious mental anguish or serious physical abuse on Chaffee before her death? We think not,” wrote Justice Fred N. Six for the court in his opinion.

The justices found that Chaffee most likely died from the first ax blow, rendering all other wounds inconsequential to the murder and irrelevant with regard to Hard Forty criteria.

In Topeka, state representatives from all over Kansas reacted with similar astonishment. “I became aware of the weakness of the law at that point,” says Kent Glasscock, the Republican speaker of the house from Manhattan. With the help of Shawnee County District Judge Terry Bullock, Glasscock set out to write new legislation that would clarify the state’s “heinous, cruel and atrocious” clause so the state’s high court would better understand how legislators defined a Hard Forty crime.

“This change would allow the court to define a heinous crime by the nature of the crime and not have that ambiguity,” Glasscock says. “The courts did not have clear direction. In my mind, what it does is put in place a law that meets a common-sense standard.”

By July 1999, Governor Bill Graves’ signature had implemented a law that not only rewrote the “heinous” clause but upped the Hard Forty sentence to a Hard Fifty; murderers convicted from that point on could serve as many as fifty years without parole.

The new law, which might have ensured Hard Fifties for Adrian Lopez, Rick Follin and Spry, describes a “heinous” murder as one in which any of the following also takes place: prior stalking or criminal threats, preparation to make the crime especially cruel, infliction of mental anguish, physical torture, continuous acts of violence before or after the murder, desecration of the victim’s body before or after the murder, or, vaguely, “any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.”

But it’s questionable how much the changes have clarified the “heinous” clause for Kansas’ judicial system. Even after the new law took effect, state prosecutors and lower court judges have continued to make arguments and approve Hard Forty sentences for reasons the Kansas Supreme Court deems improper.

In December, the Wyandotte County case against Vaughn Flournoy became the most recent example.

Flournoy had shot his grandmother — the same grandmother who had supported him for years after his discharge from the Navy in 1988 — while she was eating a bowl of ice cream. He shot her even as his girlfriend stepped in front of him to stop the crime. Then he stole files containing his grandmother’s financial documents, a box of her jewelry, a drawer full of her pennies and her car.

For these reasons, Wyandotte County prosecutors asked District Judge John Bukaty to hand down a Hard Forty sentence. He obliged.

At Flournoy’s sentencing hearing, Bukaty scolded the defendant for murdering someone who had given him so much. “There were four shots into her body,” Bukaty said. “You intended to kill her; you did kill her. And she had provided a lot of love, care and affection for you over the term of your 32 years of life. That makes this a heinous, atrocious and cruel crime, and I believe that justifies the imposition of a forty-year sentence.”

But in December 2001, the Kansas Supreme Court stated that Thomas’ relation to Flournoy and the “love, care and affection” she gave him were not sufficient reasons to consider a murder particularly heinous. As with other shooting crimes, there was no evidence to suggest that Thomas suffered before her death.

“That was part of the problem with my case,” says Sheryl Lidtke, the Wyandotte County prosecutor who tried Flournoy. “We didn’t have anyone who could say that she suffered beforehand.”

The court disregarded a May 1996 incident in which a belligerent Flournoy had called his estranged mother, Vivian Shannon, and told her that he was going to stab his grandmother. Shannon picked up her son and drove him to KU Medical Center for mental evaluation. Flournoy admitted to staffers at KU that he intended to hurt his grandmother. He even wrote it in a journal: “May 29, same ole story about a family freaking out on each other and coming home and trying not to get cussed out and put out, this time the rage took over and I decided to get help or kill her.” KU doctors diagnosed Flournoy with manic depression, mood disorder, alcohol and marijuana abuse, cocaine abuse and antisocial personality disorder.

Lidtke plans to argue that the loot Flournoy took from his grandmother’s house — the files, jewelry and pennies — show that he committed the crime for monetary gain. The Kansas Supreme Court has already indicated that such an argument can support a Hard Forty sentence. Now it’s a question of whether that one aggravating circumstance will be enough to keep Flournoy in prison until 2039.

The high court’s decision calls for a new sentencing hearing, where Flournoy intends to call witnesses who will refute the charge that he killed his grandmother for personal gain. Flournoy’s court-appointed attorney, Robert DeCoursey, did not return phone calls from the Pitch.

As she prepares for the March 15 hearing, Lidtke again must sort through the Kansas courts’ ranking system for ax murderers, child slayers, decapitators and granny killers — a system that hangs on how a “rational fact-finder” defines cruelty.

“It’s hard to express,” she says. “But it’s the kind of thing that you know when you hear it and see it.”