Judge says Hard 50 sentence warranted in 2012 murder case

03/03/2014 1:30 PM

08/08/2014 10:22 AM

A Sedgwick County judge ruled Monday that a Wichita man should serve a Hard 50 prison sentence for the Sept. 30, 2012, murder of Amber Kostner.

At the close of a half-day bench trial that involved the testimony of two witnesses – the defendant and his mother – District Judge William Woolley ruled that prosecutors had proved beyond a reasonable doubt that there were two aggravating factors in Kostner’s murder.

The crime was committed in an “especially cruel, heinous or atrocious” manner, Woolley ruled. And he said there was evidence that the defendant, Anson Bernhardt, killed Kostner to avoid arrest or prosecution after kicking her into a state of unconsciousness with steel-toed boots.

Woolley ruled that those two aggravating factors were not outweighed by any mitigating factors in the case. That means Bernhardt, 43, will face a sentence of life without parole for 50 years when he is formally sentenced by Woolley on Friday.

During the hearing, prosecutors were required to prove beyond a reasonable doubt that there was at least one aggravating factor in the case. They argued that the major aggravating factor was the nature of the crime, which they said was committed in an especially heinous and atrocious manner. Defense lawyer Steve Osburn disagreed.

“All murders are heinous and atrocious,” he said. “The question is whether this one is especially heinous and atrocious, and I don’t believe the state has met that burden.”

Assistant District Attorney Matthew Dwyer argued that kicking Kostner 20 to 30 times with steel-toed boots was especially cruel.

“I would submit to this court that a bullet would have been more kind, more gentle and more merciful,” he said.

Dwyer argued that Bernhardt killed Kostner to avoid arrest or prosecution. Osburn argued that there was no evidence to suggest that was the case.

Osburn also argued that there were three mitigating factors in the case: that Bernhardt did not have a significant criminal history, that he was under emotional duress at the time of the murder and that alcohol diminished his capacity to appreciate the criminality of the act. Woolley did not address those factors specifically but said they did not outweigh the aggravating factors.

During the first phase of Bernhardt’s trial in July, a Sedgwick County sheriff’s detective said Bernhardt admitted that he kicked Kostner 20 to 30 times with his boots after the two had quarreled in a bar. Bernhardt told the detective that Kostner was still breathing when he left her at the side of the road across from Campus High School. A jury deliberated 1 1/2 hours before convicting him of first-degree murder.

Bernhardt’s sentencing was delayed by a U.S. Supreme Court ruling that threw into question the validity of the state’s Hard 50 law. The sentencing phase of Bernhardt’s trial was held under a revised Hard 50 law that was passed in a special session of the Kansas Legislature last fall.

The revised law allows for new juries to be empaneled to determine whether the Hard 50 should be applied in cases that were in the pipeline when the Supreme Court ruling was issued. Bernhardt waived his right to have the Hard 50 issue settled by a jury, so the evidence was presented at a bench trial before Woolley.

Bernhardt, who did not testify at his first trial, took the stand Monday and was asked by Osburn to explain his relationship with Kostner. He said the two were alcoholics who often fought when they were drinking,

“We never argued when we weren’t drinking,” he said. “We were regular people.”

On the night of Sept. 30, 2012, Bernhardt testified, the 38-year-old Kostner began hitting him as he drove to their home on West Central from a bar. He said he snapped when she slapped him in the face.

“Her finger actually hit my eyeball, and I freaked out,” he said. “I don’t remember a whole lot after that.”

During the trial, prosecutors said Bernhardt dragged Kostner out of the car, kicked her until she was unconscious, then loaded her back into the car and drove south toward a pond where he often went fishing. He stopped during the trip, prosecutors said, and moved Kostner to the trunk of the car because he didn’t want to hear the gurgling sound she was making.

When he woke up the next day, Bernhardt said, it took about two hours before he realized what he had done.

Bernhardt’s mother, Cherie Lincoln, testified that her son rented space in her basement, and she said she often had to go downstairs to break up fights between Bernhardt and Kostner.

Prosecutors called no witnesses but asked Woolley to consider the testimony from Bernhardt’s trial and the more than 100 exhibits that were admitted. Among the exhibits were pictures of Kostner’s face, which was bloodied and swollen by the kicks from Bernhardt’s boots.

Bernhardt also will be sentenced Friday on an unrelated aggravated battery case that was filed before Kostner was killed.

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