Carnival Of Murder

The Kansas Supreme Court affirmed a conviction for one count of capital murder, one count of conspiracy to commit first-degree murder, one count of solicitation to commit first-degree murder, and one count of theft of a defendant who was not the killer but “her [four] co-conspirators [who pled guilty] all testified that she was the principal organizer and planner of the two murders.”

The facts in this case, as developed in the course of a nine-day jury trial, are complicated and, at times, read more like a fictional drama than a real-world criminal act.

The setting does sound like a Stephen King creation

Jason Wagner owned a carnival company that provided entertainment at fairs in the Midwest. In late July 2018, his company moved from a fair in Oklahoma and set up rides and concessions at the Barton County fair.

Frank Zaitshik owned a competing carnival company headquartered in Florida. Zaitshik is either a regular businessman whose company, like Wagner’s, earns a profit by providing entertainment, or he is a sinister crime boss who has close ties to the Sicilian mafia and who masterminded a pair of murders at the Barton County fair. The former is the theory of the State and almost all the witnesses at the trial; the latter is the description provided by the defendant in this case and is the persona the defendant convinced others to obey.

Victims

Alfred and Pauline Carpenter were an elderly couple from Wichita who traveled around the Midwest, setting up their camper and trailer at state fairs and selling inexpensive merchandise to fairgoers. They intended to close down and sell their business after the Barton County fair.

Defendant

Kimberley Younger, the defendant and appellant in this case, is a woman in her fifties who worked for Wagner for several years as a truck driver and ticket seller. Younger was known to her employers and coworkers by several different names, none of them Kimberley Younger. She had a Florida driver’s license under the name “Myrna Khan.” She was known to her friends as “Jenna Roberts.” And, at one point in the investigation, she identified herself as “Tiffany Jones.” She purported to have connections with Frank Zaitshik, who, she maintained, operated a criminal enterprise through his carnival company.

Younger was romantically involved with, and possibly married to, Michael Fowler, another carnival employee. The two shared a unit in the carnival’s mobile bunkhouse. Over time, Fowler became convinced that Zaitchik wanted to legally adopt him so that Fowler could become the heir to Zaitchik’s crime empire, even though Fowler had never met Zaitchik. Fowler was led to this belief because he started receiving Facebook messages from “Frank Zaitchik” indicating a desire to develop a close fatherson relationship and because Younger, known to Fowler as Jenna, passed along messages that she had supposedly received from Zaitchik. After a while, Younger showed Fowler adoption papers on her computer that Zaitchik supposedly had sent her. Zaitchik indicated through his Facebook messages that he had no children and wanted an heir, but Fowler would have to carry out certain activities to prove himself worthy of and loyal to Zaitchik’s syndicate. This included ferreting out rival Mexican crime families who were attempting to undercut Zaitchik’s business.

Instruction

After a time, Zaitchik communicated to Fowler that he would have to carry out a killing so that he would have blood on his hands and would not be able to walk away from his “family.”

Also caught up in this scheme were Rusty Frasier and his girlfriend, Christine Tenney. They worked at the carnival and shared a unit in the same bunkhouse as Fowler and Younger. They understood that Fowler was destined to inherit a fortune, and Younger gave them instructions, supposedly provided by Zaitchik, on how they were to assist Fowler. Younger told Tenney that it was Fowler who was supposed to complete the kills, and it was Frasier’s and Tenney’s job to help him. Younger mentioned another carnival worker, Zach Panacek, as a possible target. The final member of this group was Fowler’s nephew, Thomas Drake, who also worked for the carnival.

The Carpenters became the target and were stabbed and shot to death

Following Younger’s instructions (again supposedly provided by Zaitchik), the foursome then put Alfred’s body in the camper near Pauline’s and cleaned up around the site. Tenney and Drake participated in the cleanup, obtaining bleach and other cleaning supplies. With Younger driving, they took off with the trailer attached to the truck and camper in the early morning of July 14.

After several stops along the way, including a stop to replace a flat tire on the trailer, they arrived in Van Buren, Arkansas. Fowler’s daughter and son-in-law were living in an apartment complex there called Vista Hills, and the group stayed with them. From there they took the camper to an unpopulated area in Ozark National Forest, where Fowler’s son-in-law and the boyfriend of another daughter assisted them in putting the bodies in a shallow ravine and covering them with a mattress and some rocks and dirt. While they were away, Tenney secretly contacted her sister and told her she was with a group of individuals who had murdered two people and she needed help. The sister then contacted law enforcement.

The investigation led to the defendant

Younger initially denied that any murder had taken place, but she eventually told an elaborate version of what had happened, blaming the events on a crime syndicate directed by a man named Frank Zaitchik, whose hired hitman, a carnival employee named Fred Viney, carried out the killings and forced her and her friends to clean up the site and dispose of the vehicles and bodies.

On appeal, an issue involved zoom testimony

We have reviewed the trial court’s findings and determine they were legally sufficient and were supported by the record. Because the trial court chose between two permissible views of the evidence, we will not find clear error in that choice. See Hernandez, 500 U.S. at 369. We therefore find no violation of the federal Constitution’s Confrontation Clause and no error in allowing Zaitshik to testify remotely.

Statement

While it is true that Younger was in custody and was unaware that her statements in the car were being recorded and could be used against her, she was not constitutionally protected from incriminating herself by making spontaneous statements and there was no error in admitting her outbursts.

In custody statements

Considering the record as a whole and taking into account that the trial court suppressed a portion of her statements, we find no violation of Younger’s Miranda rights requiring suppression of her other statements. She wanted to talk, she wanted the local prosecutor to hear her story, and she expressed her willingness to talk without an attorney present on her behalf.

The court rejected a host of other claims.

STEGALL, J., concurring:

I join in the bulk of the majority’s opinion. I write separately to note one point of divergence. The majority declines to address Younger’s claim that her rights under section 10 of the Kansas Constitution Bill of Rights were violated when the court permitted Frank Zaitshik to testify via Zoom. Before us, Younger has argued that even if this remote testimony did not violate the Sixth Amendment to the United States Constitution, section 10 provides rights that are distinct from and broader than the Sixth Amendment and should have prevented the testimony. The majority finds Younger’s section 10 claim to be unpreserved and declines to address it. State v. Younger, 319 Kan. ___, slip op. at 21-22. I disagree.

Nonetheless

Despite my disagreement with the majority’s decision to decline to explore this paramount question, were we to conclude that admission of Zaitshik’s remote testimony did violate Younger’s section 10 right to a face-to-face confrontation, that error would still be subject to a constitutional harmless error analysis. See State v. Williams, 306 Kan. 175, 202, 392 P.3d 1267 (2017). And given the overwhelming evidence of Younger’s guilt in this case, and the fact that Zaitshik was not a key part of the State’s case, but merely a rebuttal witness, I am not convinced that there is a reasonable probability that his testimony had any effect on the verdict.

Section 10 of the Kansas Bill of Rights

[Defendant’s] written objection to the Zoom testimony quotes section 10 of the Kansas Constitution Bill of Rights, which provides that “[i]n all prosecutions, the accused shall be allowed . . . to meet the witness face to face.”

Oral argument linked here. (Mike Frisch)