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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,372

STATE OF KANSAS,

Appellee,

v.

DANE C. DEWEESE,

Appellant.

SYLLABUS BY THE COURT

1.

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), 

prosecutors have a positive duty to disclose evidence favorable to the accused when the 

evidence is material either to guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution.

2.

A trial court's determination regarding the existence of a Brady violation is 

reviewed de novo with deference to the trial court's findings of fact. The trial court's 

denial of a defendant's motion for new trial is reviewed under an abuse of discretion 

standard.

3.

A court requires three essential elements to establish a Brady violation: (1) The 

evidence at issue must be favorable to the accused, either because it is exculpatory or 

because it is impeaching; (2) that evidence must have been suppressed by the State, either 
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willfully or inadvertently; and (3) that the evidence must be material so as to establish 

prejudice.

4.

Under the Brady test for materiality, evidence is material only if there is a 

reasonable probability that, had the evidence been disclosed to the defense, the result of 

the proceeding would have been different. A "reasonable probability" is a probability 

sufficient to undermine confidence in the outcome.

5.

When the evidence undisclosed by the prosecution merely reinforces evidence 

already presented to the jury, the new evidence is considered cumulative and the 

prosecution's withholding it does not qualify as a Brady violation.

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed January 20, 2017. 

Affirmed.

Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, argued the cause and was on 

the brief for appellant.

Ellen H. Mitchell, county attorney, argued the cause, and Christina Trocheck, assistant county 

attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: A jury convicted Dane DeWeese of first-degree murder and 

conspiracy to commit first-degree murder. He appeals the district court's denial of his 

motion for new trial in which he argued the State failed to disclose a police report to the 
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defense before trial in violation of its obligation under Brady v. Maryland, 373 U.S. 83, 

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

We affirm the district court because we cannot conclude a reasonable probability 

exists that the trial result would have been different had the State timely disclosed the 

report for the defense's possible use at trial.

FACTUAL AND PROCEDURAL BACKGROUND

The State prosecuted DeWeese under the theory he and Joel Heil caused Kristen 

Tyler's death. The State essentially contended DeWeese initiated the events because he 

believed Tyler stole his money and drugs whereas Heil physically performed the lethal 

acts in DeWeese's presence. Heil extensively testified against DeWeese as part of a plea 

bargain with the State.

Tyler's murder

The State's witnesses and physical evidence showed that one night Tyler visited 

her friend Fancy Barboza at Barboza's house in Salina. Tyler brought along Chuck 

Rowson, Barboza's step-father. Tyler asked if either Rowson or Barboza wanted 

methamphetamine, and Barboza answered yes. Tyler then allowed Barboza to come with 

her to get the drugs so long as Barboza promised to stay down in the back seat of the car. 

Barboza agreed, and the two left her house around 10:30 p.m.

En route, Barboza climbed into the back seat per Tyler's instructions. A short time 

later, Barboza felt Tyler stop the car. Tyler got out while Barboza remained hidden. Tyler 

returned 10 to 15 minutes later, put the keys in the ignition, and left again with her cell 

phone.
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Barboza waited almost 2 hours, but Tyler never came back. When Barboza finally 

got out of the car, she saw it was parked by a bank close to DeWeese's house. The bank's 

video surveillance shows Barboza walking by around 1 a.m.

At around 11 that same night, DeWeese had driven to Heil's house. He was upset 

and told Heil that money and drugs were missing from his garage and that he believed 

Tyler was responsible. DeWeese also told Heil that Tyler was currently at DeWeese's 

house to buy drugs. He wanted Heil's help in retrieving his money and drugs from Tyler, 

and Heil agreed.

Heil changed clothes while DeWeese called Tyler. DeWeese told Tyler to give her 

phone to his fiancée, Megan Wells, who was also there. According to Heil, Tyler was not 

supposed to have a phone in DeWeese's house because "funny stuff" was going on there.

Before Heil left his house, he grabbed a log chain he kept in his kitchen and put it 

in a drawstring bag. While DeWeese drove them to his house, he told Heil his plan was to

pick up Tyler and take her to the country.

Once the two men arrived at DeWeese's house, they asked Tyler if she still wanted 

drugs. When Tyler said yes, they told her that she would have to go with them to another 

location to purchase the methamphetamine. Heil's intent was not to go buy drugs but to 

go beat up Tyler and retrieve DeWeese's money and drugs.

DeWeese, Heil, and Tyler then left DeWeese's house. Heil noted Tyler's car across 

the street but was not aware Barboza was inside. As DeWeese drove, he slipped Tyler's 

cell phone—which he had retrieved from Wells—to Heil and told him that Tyler would

not be coming back.
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DeWeese stopped at a gas station—not for gas but for the purpose of getting Tyler 

on surveillance cameras away from his house. The station's video surveillance showed 

Tyler entered the store at 11:39 p.m. and left a couple of minutes later.

After they left the station, DeWeese drove into the country. When Tyler asked 

where they were headed, DeWeese explained they were making the deal in the country so 

if someone informed the police, they would know that one of the three of them was the

informant.

DeWeese stopped the car in a tunnel of an interstate overpass outside of Salina and 

popped the trunk. He walked to the back of the car, moved to the passenger side, and 

asked Heil if he was getting out. Heil exited the car, grabbing his chain from the trunk. 

DeWeese told Tyler to get out, and, when she complied, he asked about his drugs and 

money. Tyler replied she did not know what he was talking about.

In response to Tyler's repeated denials, Heil swung his log chain and struck her in 

the head, causing her to fall down and start shaking. DeWeese then kicked Tyler, and 

Heil attempted to strangle her with the string of his hooded sweatshirt. They continued to 

beat and drag Tyler around the tunnel for 15 or 20 minutes. When she still made sounds, 

they dragged her near a fence and pushed her face into the muddy ground with their feet. 

Heil attempted to cover Tyler with grass while DeWeese picked up several dropped items 

and drove back and forth to cover any tracks.

Afterward, DeWeese drove Heil back to Heil's house. During the drive, they

discussed cleaning DeWeese's car and moving Tyler's car away from DeWeese's house. 

At this time Heil still had Tyler's cell phone but when it continued to receive calls, 

DeWeese took it from him. Records showed the phone was last powered on at 1:42 a.m.
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After arriving at Heil's house, Heil entered without DeWeese. Two neighbors were 

in the house along with Kimberly French, a juvenile runaway who was his housemate and 

the girlfriend of his cousin. Heil told the neighbors to leave and walked into his bedroom. 

After the neighbors left, French followed Heil into his bedroom where he told French that 

"they had went and killed Kristin" and he was sorry for any involvement he had gotten 

her in.

Ten minutes after Heil returned, DeWeese entered the house wearing different 

clothes than he had worn during Tyler's murder. DeWeese carried wet and muddy 

clothes, and he ordered French to get bags. French complied and grabbed a trash bag 

from the kitchen.

DeWeese told French to put his wet and muddy clothes, Tyler's sweatshirt, and a 

tennis shoe in a trash bag. He mentioned checking the clothing for money. When Heil 

searched the sweatshirt he found money, which DeWeese pocketed. French then received 

their approval to pour bleach and cleaner in the trash bag. Heil and DeWeese later spent 

10 to 15 minutes cleaning DeWeese's car.

Heil and DeWeese then went back into Heil's bedroom and talked about whether 

French knew too much and if they should move Tyler's car. DeWeese told Heil that 

French needed to be taken care of, and Heil said that wasn't going to happen. After this 

discussion, Heil pulled French into the room and told her that he and DeWeese had talked 

about "tak[ing] care" of her. French testified that DeWeese told her not to say anything, 

which made her feel scared for her life.
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After the men decided to move Tyler's car, DeWeese gave the keys to Heil. Heil

eventually drove it to an area across town with DeWeese following. While driving back 

from leaving Tyler's car, Heil threw the keys individually out of the window.

They returned to DeWeese's house to pick up Wells and the couple's 2-month-old 

son to take them to the hospital emergency room. After dropping off mother and son, 

DeWeese took Heil back to Heil's house. Heil testified DeWeese reiterated to him that 

leaving French alive was a mistake.

Later that day, Heil and French picked up the trash bags containing Heil's and 

DeWeese's clothes, the log chain, Tyler's sweatshirt, and the tennis shoe, and put them in 

a dumpster at his grandmother's house. During the next few days, Heil told four other 

individuals—Angela Helko, Joshua Tucker, Liz Garcia, and his mother—either that Tyler 

was dead or that he or "we" had killed someone.

Heil was arrested 2 weeks later. That same day Tyler's beaten body was found face 

down in 6-10 inches of water in a muddy ditch near a tunnel by the interstate.

Impeachment evidence against Heil

Heil testified extensively for the State. He admitted that per a plea bargain, he 

agreed to plead guilty to premeditated first-degree murder in exchange for the State 

agreeing to later drop murder conspiracy charges and to not seek a hard 50 sentence. Heil 

also agreed to plead guilty to conspiracy to commit robbery in a separate case—in 

exchange for dismissal of yet another case involving possession of methamphetamine. 

According to Heil, the sentences for conspiracy to commit robbery and for homicide 

would run concurrently. He also stated he would first serve a sentence for a probation 

violation.
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The 25-year-old Heil admitted to starting to use methamphetamine when he was 

15 years old. He also admitted to selling drugs. He further testified that meth made him 

paranoid and violent—"a monster" when using—and that he was high on meth when 

Tyler was killed.

Heil testified he first met DeWeese approximately 2 months before Tyler's death 

and admitted their association centered around drugs—primarily meth. He saved 

DeWeese's name as "Ol' Boy" in his phone contacts. He also testified he had known 

Tyler since 2010. He admitted that several days before her death he had cut her car tires 

in retaliation for a friend. When Tyler asked Heil if he had anything to do with that event, 

he denied it. He also admitted he once had used equipment to check Tyler's car for 

electronic bugs and expressed his suspicions to other individuals that she was a police 

informant. Heil also testified that he and DeWeese were paranoid about confidential 

informants.

According to Heil, 2 days before Tyler's death, they had an altercation about a trip 

he took to Wichita. Tyler agreed to lend her car so he could pick up drugs and his cousin. 

In exchange, Heil agreed to give Tyler 1.7 grams of meth worth $170. Before leaving 

Salina, Heil asked Tyler if she had fixed her car's tag lights. He was worried faulty lights 

would lead to a police stop—a concern when he also had no driver's license and would be 

carrying drugs. Tyler confirmed the tag lights were working. After this assurance, Heil 

left for Wichita with French.

Heil testified that while driving to Wichita, he got a call from Tyler advising him 

that her tag lights were probably not working. After Heil stopped and discovered this was 

true, he was "pissed." He suspected that by not having fixed the lights, Tyler might have 

been setting him up to get pulled over by law enforcement.
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Heil further testified that when he got to Wichita, he eventually called his sister to 

pick him up because he refused to drive Tyler's car anymore. He was upset, and he and 

Tyler yelled at each other on the phone. He told her she would have to pick up her car in 

Wichita. Heil parked it between two buildings, left $20 in gas money in the front seat, 

and threw the keys on the floorboard. His sister then drove Heil, French, and a few other 

individuals back to Salina. They arrived early the morning of the murder.

According to Heil, Tyler came to his house a few hours later—around 6 a.m.—

cussing him and asking about the location of her car. He told her it was in Wichita but

refused to give the exact location. Tyler left and returned 10 minutes later with Rowson.

Heil and Tyler were both mad and cussed at each other. Tyler and Rowson repeatedly

asked Heil about her car's location, and Heil repeatedly refused to give a specific Wichita 

location.

Heil and Tyler continued to argue, and Rowson threatened to put Heil in a vehicle 

and take him to Wichita. Heil responded by grabbing the log chain from the kitchen and 

hitting it on his living room couch. Heil told Rowson if Rowson was big enough to put 

him in the car, he would go with them. Heil testified he would have used the chain at that 

moment if necessary. He eventually provided the location of Tyler's car.

In addition to Heil's testimony, his neighbor, Jayme Cartlich, testified that she was 

at his house the day of Tyler's death and the following day. She stated that early on the 

second day, Heil came in wet and dirty—and went straight to his bedroom without 

acknowledging her. Several weeks later Heil came to her house looking for "Ol' boy or 

Ol' buddy"—which she said referred to her boyfriend and roommate, Max Hahn.
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The State also presented testimony from Leha Vaught, a friend of Heil's, who 

testified that a week after Tyler's death, Heil told her about the tag light episode. Heil said 

Tyler had called him to say the tag lights were out, that she was calling the cops, and he 

needed to be careful otherwise he would get caught. Heil also told her that he and "Ol' 

Boy" had killed Tyler by taking her out to a dirt road on the premise of buying drugs, he 

had beaten her with a log chain and strangled her, and they both held her head under 

water until she quit moving. According to Vaught, Heil said "he had to stop her before

. . . she had called the cops because he could not get caught."

Vaught also testified that Heil had said he was upset with Tyler because on a 

couple of occasions she had "stolen things from his house, stolen drugs from him."

The defense presented testimony from Stephanie Hewitt, an inmate in a temporary 

cellblock next to Heil after he was arrested. Hewitt testified that Heil admitted he had 

killed Tyler and someone else was with him. She also testified he told her that during his 

communications with Tyler about the tag light incident, Tyler threatened to call the cops 

because he didn't return her car and pay her like he had said. Per Hewitt, "[Heil] said, 

'Nobody fucks with me or my family,' and that's why he killed her."

Also testifying for the defense was Heil's friend, Angela Helko. Heil told her that 

he and somebody else had killed someone. According to Helko, Heil identified that other 

person as Chuck or Charles—not Dane DeWeese.

DeWeese testified in his own defense. He admitted that he resumed his meth use 2

months before Tyler's death, and his usage got heavier the second month. According to 

DeWeese, around 11:30 on the night of Tyler's death, he got a call from Heil saying he 

needed a ride to get some dope. He then picked up Heil and Tyler. He admitted going to 

the gas station with them, traveling on the interstate, and obtaining drugs. But he testified 
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he later dropped off Tyler and Heil at Heil's house and went home where he changed 

clothes and smoked some drugs Heil had given him. DeWeese expressly denied being 

with Heil at the scene of Tyler's death.

DeWeese also testified to taking Wells and their baby to the hospital. But after

they returned home, he received an early morning call from Heil, who asked for a ride to 

Heil's car. He picked up Heil and drove him to a car—not belonging to Heil—which 

turned out to be in front of DeWeese's house. Heil drove off, and DeWeese turned home.

After a 12-day trial, the jury convicted DeWeese of Tyler's premeditated firstdegree murder and conspiracy to commit first-degree murder.

Investigator Melissa Short's rejected report and DeWeese's motion for new trial

Nine days after the jury's guilty verdict, DeWeese filed a motion for new trial. In 

it, he stated that on April 11, 2014—3 days after the verdict—the State provided the 

defense a copy of a report written by Investigator Melissa Short of the Salina Police 

Department, dated May 31, 2013. DeWeese argued the report contained "material facts 

and information directly relevant to the facts and issues presented to the jury." At the 

close of the eventual hearing on DeWeese's motion, the district court denied it.

The court found that Investigator Short prepared her report on her last day of 

work, and it detailed her involvement with Tyler's murder case. Because it was Short's 

last day, she did not know her report was later rejected by the electronic reporting system. 

An administrator for the police department discovered Short's rejected report 

approximately a year later, and it was immediately turned over to the County Attorney's 

office. On April 11, 2014, that office turned the report over to defense counsel. The court 
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concluded the failure to turn over the report was not the result of intentional or negligent 

omission by the County Attorney's office.

The court found that most of the report's information had been disclosed to 

defense counsel by other means. The only information not previously shared was a 

statement by Brandi Rader, Heil's roommate for 4 days earlier in the month of Tyler's 

death. Rader had told Short that (1) Heil was looking for an opportunity to rob Tyler and 

her mom of a large quantity of drugs, (2) Heil used a gun to threaten Rader and her 

husband, and (3) the Raders fled to Texas 1 week before the murder out of fear for their 

lives.

The court observed that the question to be answered was whether Rader's 

statement was "sufficiently material to undermine the confidence and the verdict of this 

jury." It then analyzed the Rader information under Brady v. Maryland, 373 U.S. 83, 83 

S. Ct. 1194, 10 L. Ed. 2d 215 (1963). At the outset it found that several Brady 

requirements had been met: The information was favorable to DeWeese and was not 

disclosed to the defense before trial.

The court also found the State's case relied heavily on Heil's account of the events 

and his assertion that DeWeese initiated the events and conspired to kill Tyler because he 

believed she stole from him, "but that Joel Heil actually physically carried out those 

acts." It further found that the defense and the State's own witnesses established that Heil 

and Tyler had a contentious, drug-fueled relationship, that he suspected her of being an 

informant, and that he was angry with her regarding the trip to Wichita. The court also 

found that the evidence established Heil was in the midst of a confrontational, paranoid 

and downward spiral fueled by methamphetamine.
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The court additionally found that the Rader information was impeachment 

evidence the defense would have used at trial to support the theory that Heil murdered 

Tyler as part of his plan to rob her. But it further found that the defense already had 

thoroughly impeached Heil regarding his prior inconsistent statements, his motivations 

for testifying—including the existence of a prior robbery case—and the benefits he 

received from his plea bargain with the State for testifying. The court also found the jury 

was well aware that Heil was a "gun-toting," violent drug dealer and meth user who had 

previously committed various nefarious deeds. And the issue with the Raders was remote 

in time, when compared to the more recent events surrounding Heil's trip to Wichita and 

his volatile relationship with Tyler—which defense counsel thoroughly covered at trial.

Ultimately, the court ruled:

"The jury was well aware of Mr. Heil's criminal propensities and his motive for 

testifying. Given the quality and quantity of impeaching cross-examination at trial, no 

reasonable jury would have reached a different result if this suppressed evidence was 

presented. . . . For the purposes of the third Brady factor, the information from Ms. Rader 

is not material, the defendant received a fair trial in its absence and it does not undermine 

the confidence of the trial's outcome. That motion is denied."

The court later imposed a life sentence with a mandatory 25 years for 

premeditated first-degree murder and a consecutive sentence of 131 months for 

conspiracy to commit first-degree murder. DeWeese timely appeals.

Jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b)(3), (4) (maximum 

sentence of life imprisonment imposed for an off-grid crime [first-degree murder]).

More facts will be added as necessary to the analysis.
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ANALYSIS

Issue: The district court did not abuse its discretion when it denied DeWeese's motion for 

new trial based on a Brady violation.

DeWeese argues the district court erred in denying his motion for new trial in 

which he asserted the State's failure to timely disclose the Short report violated its 

obligation under Brady, 373 U.S. 83. In contending the report contained valuable 

evidence he could have used for impeaching Heil at trial, he frames the specific issue as:

"Whether the evidence of a desire to harm the victim [Tyler], which contradicted the 

actual killer's testimony [Heil] that he lacked motive and that the killing was done at the 

defendant's [DeWeese] behest, created a reasonable probability that had the evidence 

been disclosed to the defense, the result of the trial would have been different, thus 

requiring a new trial."

The State essentially responds that the court did not err because the report does not 

put the whole case in such a different light as to undermine confidence in the jury's 

verdict. Among other things, it contends the evidence from the report is simply 

cumulative to evidence admitted at trial. See State v. Warrior, 294 Kan. 484, 511-12, 277 

P.3d 1111 (2012).

Standard of review

We review de novo a trial court's determination regarding the existence of a Brady

violation but with deference to that court's findings of fact. Warrior, 294 Kan. at 510. 

And the court's denial of the defendant's motion for new trial is reviewed under an abuse 

of discretion standard. 294 Kan. at 510. This court's abuse of discretion standard is well 

known:
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"'"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, 

i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is 

based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; 

or (3) is based on an error of fact, i.e., if substantial competent evidence does not support 

a factual finding on which a prerequisite conclusion of law or the exercise of discretion is 

based. [Citation omitted.]" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. 

denied ____ U.S. ____, 132 S. Ct. 1594 (2012).'" State v. Shank, 304 Kan. 89, 92, 369 

P.3d 322 (2016) (quoting State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).

The party asserting an abuse of discretion bears the burden of establishing such 

abuse. State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008). Here, that burden is 

DeWeese's, and he claims the court incorrectly determined the report was immaterial—

i.e., that the court made an error of law.

Discussion

In Brady v. Maryland, the United States Supreme Court held: "[T]he suppression 

by the prosecution of evidence favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution." 373 U.S. at 87. So prosecutors have a positive duty 

to disclose evidence favorable to the accused—which encompasses both exculpatory and 

impeachment evidence. Warrior, 294 Kan. at 505-06 (citing Strickler v. Greene, 527 U.S. 

263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 [1999]).

This court requires three essential elements to establish a Brady violation: "'(1) 

The evidence at issue must be favorable to the accused, either because it is exculpatory, 

or because it is impeaching; (2) that evidence must have been suppressed by the State, 

either willfully or inadvertently; and (3) the evidence must be material so as to establish 
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prejudice.'" State v. Moore, 302 Kan. 685, 700, 357 P.3d 275 (2015); see also Strickler,

527 U.S. at 290 (prejudice encompasses the materiality requirement of Brady).

Here, as in Warrior, the first two Brady elements are not at issue. The State 

concedes that Short's report contained impeachment evidence and that it was 

inadvertently suppressed by the State. Accordingly, we need only focus on the third 

element—i.e., whether the evidence is material. See Warrior, 294 Kan. at 507.

When we consider this Brady element of materiality, we employ a "reasonable 

probability" test:

"'"The evidence is material only if there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different. A 

'reasonable probability' is a probability sufficient to undermine confidence in the 

outcome."'" State v. Williams, 303 Kan. 585, 597, 363 P.3d 1101 (2016) (quoting 

Warrior, 294 Kan. at 507).

In short, "'Does the [newly disclosed] evidence put the whole case in such a 

different light as to undermine confidence in the verdict?'" Moore, 302 Kan. at 701 

(quoting Warrior, 294 Kan. at 511).

Some of the evidence in Short's undisclosed report was previously disclosed to the 

defense via other means and is not at issue. See Wilkins v. State, 286 Kan. 971, 990, 190 

P.3d 957 (2008) (holding newly disclosed evidence did not support a Brady claim where 

the defense was aware of it prior to trial). So this court must determine if the remaining 

evidence from the report creates a reasonable probability that the result of the trial would 

have been different had the State timely disclosed that evidence.
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DeWeese particularly argues the importance of the Short report's remaining 

information in his brief:

"The obvious motivation for Joel [Heil] to kill Kristin [Tyler] was the trip to Wichita the 

day before. Playing down what had happened with Kristin in Wichita the day before she 

died, Joel claimed he was over that and held no grudge against Kristin. For it to be 

believable that someone else was involved and that he was only the henchman, Joel had 

to present an alternative theory. Indeed credibility was critical if Joel was to take 

advantage of the bargain the State was offering . . . . To accomplish that, Joel offered a 

motive for Dane [defendant] to have Kristin killed, while diffusing any suggestion that he 

might have wanted her dead." (Emphasis added.)

While conceding Heil's "obvious motivation" to kill Tyler was the Wichita trip, 

DeWeese specifically argues that Rader's information provided yet another Heil motive 

which would have impeached his testimony that claimed DeWeese had the primary 

motive to kill Tyler. As DeWeese further contends in his brief, evidence

"as to why Joel [Heil] really killed her would have cast doubt on Joel's claims that Dane 

[defendant] was the mastermind or that Dane even had a role in her death. The Raders 

would have provided that motive. . . . 

". . . The ability of the defense to impeach Joel with the attempted robbery 

[claimed by Rader] was material to destroying not just his credibility but placing the 

motive for her death squarely on Joel's shoulders where it belonged. Because the 

evidence of Dane's involvement was by no means overwhelming, there was a reasonable 

probability that the result of the trial would have been different." (Emphasis added.)

The State generally responds that both parties presented evidence that Heil had a 

contentious relationship with Tyler and that he was upset with her prior to her murder. 

The State also argues that the undisclosed evidence of Heil's plan to rob Tyler and her 
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mother was cumulative to the Wichita trip or merely reinforced other impeachment 

evidence. As for evidence that Heil threatened the Raders who later fled as a result, the 

State contends that this incident is remote in time and unconnected to Tyler's death. We 

basically agree with the State.

We begin with the issue of cumulative evidence. The materiality calculus includes 

acknowledging that when the undisclosed evidence merely reinforces evidence already 

presented to the jury—or as the State argues here, if the witness was already significantly 

impeached with other evidence—the new evidence is considered cumulative and the 

prosecution's withholding it does not qualify as a Brady violation. See Warrior, 294 Kan. 

at 511-12; Wilkins v. State, 286 Kan. 971, 991, 190 P.3d 957 (2008). As a result, we need 

to specifically compare the impeachment evidence already presented to the jury to the 

impeachment evidence in the Short report not previously disclosed by other means.

Accordingly, our focus is on yet another motive for Heil to kill Tyler that was in 

the evidence presented to the jury. Specifically, Leha Vaught testified that Heil had told 

her he was upset with Tyler because on a couple of occasions she had "stolen things from 

his house, stolen drugs from him." The State's allegation that DeWeese wanted Tyler 

dead because she stole money and drugs from his garage was a sufficient motive for 

DeWeese's murder charges. So any evidence indicating that Tyler stole things and drugs 

from Heil could impeach his testimony "that he lacked motive and that the killing was 

done at the defendant's behest." Accordingly, Rader's information about Heil's plan to rob 

Tyler of drugs as a motive to kill her—and thus impeach Heil—would clearly be 

cumulative to Vaught's testimony.

The record also contains evidence of an additional motive for Heil to kill Tyler 

suggested by the district court yet overlooked by DeWeese's argument: his concern she 

would inform the police about his illegal activities. Heil admitted he once had checked
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Tyler's car for electronic bugs, had expressed his suspicions to other individuals that she 

was a police informant, and that he was paranoid about confidential informants.

Others testified Heil told them that Tyler had threatened to call the cops because 

he had not returned her car and paid her in meth for its use. "[H]e had to stop her before 

she . . . had called the cops because he could not get caught." And "'Nobody fucks with 

me [Heil] or my family,' and that's why he killed her." The latter comments may have 

been based on his anger and desire for revenge concerning the Wichita tag light 

incident—the incident which DeWeese claims is Heil's obvious motivation to kill her. 

But as DeWeese points out, Heil testified the incident had nothing to do with her 

homicide the next day. So in the absence of a grudge from that incident, the comments 

may simply have been based on Heil's cool instinct for survival once he got over his 

anger, i.e., yet another motive to kill.

Rader's information about Heil's plan to rob Tyler of drugs as a motive to kill 

her—and thus impeach Heil—would clearly be cumulative to this other evidence of 

motive. Additionally, Rader's information would clearly be cumulative to evidence of 

still another Heil motive established in his testimony. Specifically, right after he testified 

the tag light incident had nothing to do with Tyler's homicide, he admitted he owed her 

money. Given their drug-based relationship, this was a debt likely extinguished upon her 

death. See State v. Boldridge, 274 Kan. 795, 809, 57 P.3d 8 (2002) (holding evidence of 

financial gain motive for murder).

We agree with the State that Heil's credibility also was impeached by other 

evidence at trial. Among these are his inconsistent statements about the identity of his 

coparticipant in the murder. Heil told Leha Vaught that "Ol' Boy" helped with the killing. 

While his cell phone directory identified this person as DeWeese, Jayme Cartlich said 

Heil was referring to her roommate Max Hahn when he was looking for "Ol' boy."
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Additionally, Heil told Angela Helko that the coparticipant was named "Chuck or 

Charles"—not Dane DeWeese. Indeed, Heil later admitted during his testimony that he 

was referring to Chuck Rowson to implicate him because he did not like the man and 

wanted to draw attention from DeWeese. He thus not only gave yet another name for his 

coparticipant but also demonstrated his willingness to lie. And of course at trial Heil 

implicated DeWeese. See Warrior, 294 Kan. at 511 (impeachment included witness 

initially identifying person other than coparticipant as the shooter and "'making up 

stuff'").

The defense further impeached Heil's credibility when it cross-examined him 

about his criminal behavior, including his drug use and dealing. Heil testified that his 

meth use caused sleeplessness and paranoia, i.e., leading him to use a bug detector on 

Tyler's car. Heil said he was a monster while using meth. He described this behavior as 

lacking self-respect and respect for others and that he would have no feelings for people 

while using.

Heil admitted threatening Tyler and Rowson with his log chain the same day of 

her murder. He also admitted that he had taken meth just 1 or 2 hours before that incident 

in his house and that he was high on meth during Tyler's murder—where his efforts to 

kill her included beating her head with his log chain, strangling her with a cord from his 

hooded sweatshirt, and forcing her face into the mud with his feet. Moreover, he testified 

that part of his plea agreement—in exchange for his testimony against DeWeese—

included pleading guilty to conspiracy to commit robbery in a separate case, as well as 

receiving less than a hard 50 sentencing recommendation for his part in Tyler's prolonged 

and brutal killing.

Accordingly, Rader's statements that Heil threatened her and her husband with a 

gun and they later fled the state because of him only reinforces evidence already 
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presented to the jury on Heil's credibility—i.e., that he had criminal tendencies, 

sometimes violent.

In short, the prosecution and defense presented evidence of several different Heil 

motives to kill Tyler, as well as ample evidence of other impeachment matters such as his 

inconsistent statements and violent tendencies. When compared with this evidence, the 

new evidence relied upon by DeWeese from Short's undisclosed report is cumulative and, 

therefore, not material under Brady. See Warrior, 294 Kan. at 511-12 (citing cases for the 

principle that undisclosed impeachment evidence is not material, e.g., it is cumulative, 

where the witness already has been impeached through other means); Wilkins, 286 Kan. 

at 991 (reports' "principal value was mere reinforcement of evidence already before the 

jury"; thus, immaterial).

The decision by the Tenth Circuit Court of Appeals cited in Warrior—and by the 

district court in the instant case—is instructive. In United States v. Trujillo, 136 F.3d 

1388 (10th Cir. 1998), the court held that the "failure to disclose impeachment evidence 

does not require automatic reversal, even where, as here, the prosecution's case depends 

largely on the credibility of a particular witness." (Emphasis added.) 136 F. 3d at 1393. 

There, the undisclosed evidence pertained to prior inconsistent statements the witness, 

Ladd, had made to the FBI. In those statements, Ladd claimed he had no involvement 

with any robberies in Oklahoma. But when Ladd realized he would not avoid charges, he 

implicated himself and the defendant.

At trial, Ladd admitted that he had three prior felony convictions and that he was 

testifying as part of a plea agreement. The court determined that the undisclosed 

inconsistent statements were cumulative to Ladd's testimony on direct and crossexamination and would have provided only marginal additional support for the defense. 

Ultimately, the court concluded the information was unlikely to have changed the jury's 
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decision because the jury was well aware of Ladd's criminal propensities and motive for 

testifying. 136 F.3d at 1394; see also State v. Armstrong, 240 Kan. at 452 (murder 

prosecution's "key witness" was impeached with his prior inconsistent statements and 

alleged concessions made by dismissal of criminal charges against son; "We do not 

believe a different result would have occurred by confronting [witness] with the alleged 

'concessions' made to his daughter Tammy" which had not been disclosed by State).

Given the facts of this case, it cannot be concluded there was a reasonable 

probability that, had the Short report been timely disclosed to the defense, the result of 

the proceeding would have been different—i.e., this evidence does not put the whole case 

in such a different light as to undermine confidence in the verdict. See Warrior, 294 Kan. 

at 511-12. The district court essentially concluded the same. Accordingly, it did not abuse 

its discretion in denying DeWeese's motion for new trial.

Affirmed.