Print edition: 
Despite a Kansas Court of Appeals decision in his favor, a Wichita man convicted of murdering his ex-girlfriend may not necessarily get a new trial.
In an opinion issued last week, the state Supreme Court overruled a decision by the Court of Appeals that would have overturned the first-degree murder conviction of Will A. Wimbley. Had the appeals court ruling stood, it would have meant Wimbley would be retried in Sedgwick County District Court.
Instead, the Supreme Court sent the case back to the Court of Appeals for consideration of some undecided issues, including a witness who recanted earlier testimony in the case.
Wimbley was originally convicted of premeditated murder in the February 1999 shooting death of Tina Cooper, who also went by the name Leola Christina Haskins.
Her body was found off a bike path at 12th and Mathewson along with a bloody comforter and a pillowcase that matched one found at Wimbley’s house. Wimbley’s car and the handgun used in the shooting were found abandoned near a home in the 1100 block of North Indiana, according to court records. Wimbley claimed that he had not seen his ex-girlfriend the day she died and that he had spent the day with a friend.
The appeals court issued its order for a retrial after several appeals filed by Wimbley.
The appellate court took issue with the way DNA evidence from the gun was handled in Wimbley’s original trial. That court also ruled that Wimbley’s lawyers had not effectively represented him because they didn’t properly handle allegations that a prosecutor gave the jury an incorrect definition of premeditated murder.
In Wimbley’s trial, then-Deputy District Attorney Kevin O’Connor told the jury in part: “Premeditation can occur in an instant. It can be a thought … I can decide to kill anybody in this room and that would be premeditation. That’s what the law is.”
In another case, the Supreme Court had ruled such a statement by a prosecutor was incorrect and ordered a new trial.
But in Wimbley’s case, the Supreme Court questioned why defense lawyers should have been arguing about premeditation – which speaks to the mindset of a defendant – when Wimbley’s defense was that he was not the shooter at all and had an alibi for when the murder occurred.
The DNA issue focuses on samples collected from the hammer of the gun used in the murder. Prosecutors cited the DNA testing in a preliminary hearing but then didn’t introduce the evidence at trial, court records said.
Wimbley alleged that additional testing might have helped exonerate him. The appeals court agreed, but the Supreme Court overruled.
“Wimbley has made no showing whatsoever that there is ‘a reasonable likelihood of more accurate and probative results’ of the murder weapon DNA profile if it were to be retested,” the Supreme Court opinion said. “His allegation that there are new testing procedures since his conviction are totally unsupported, conclusory, and insufficient” to meet the legal requirements for retesting.
The Supreme Court sent the case back to the appeals court for further proceedings on two issues: a witness who has recanted testimony against Wimbley and the effect on his case from a court decision that came after he was convicted.
The court decision in question, in State v. Gunby, changed the way that courts handle the introduction of evidence of previous bad acts by a defendant. That decision came down in 2006, about six years after Wimbley was convicted under the old rules.
Appellate judges didn’t consider the recanted testimony, or the impact of the Gunby decision, because they had already decided to order a retrial on the DNA and ineffective-counsel issues.
