Staff writer
Terry L. Bowen, Lora J. Gay, and Kenneth Frederick were in Marion County court Thursday. They sat clad in orange jumpsuits, their wrists bound in handcuffs and they passively listened as their attorneys pieced together some of the details of their defense before their rape trial which will commence June 20.
If the trial is not continued and runs for its scheduled seven days, it will coincide with the dates the alleged events occurred in 2010. Bowen, Gay, and Frederick were arrested July 22.
All three defendants are from Peabody. All are charged with two counts of rape, one count each of aggravated criminal sodomy, aggravated kidnapping, and battery.
Frederick, 22, and Gay, 38, are also charged with one count of criminal threat.
Bowen, 63, and Gay pleaded not guilty to all charges Sept. 27. Frederick pleaded not guilty to all charges Oct. 25.
Since the case was combined in February, this was the third motion hearing including all three defendants. As separate cases, Frederick and Gay each had one hearing before the start of the new year; Bowen had two hearings.
“In a case like this, you want to do as much work as possible before the trial,” 8th Judicial District Chief Judge Michael Powers said.
Most of what was discussed Thursday was previous motions to make sure that the defense and Assistant Attorney General Charles W. Klebe, the prosecuting attorney in the case, were in agreement.
The most contentious disagreement centered on a motion in limine filed by the state Feb. 9. Motions in limine ask the judge to rule that either party may not use certain statements or evidence. Klebe detailed in the motion that the defense would not be allowed to introduce statements or evidence about the victim’s previous sexual conduct.
Bowen’s attorney David Harger, of Wise and Reber L.C., presented a motion March 22 in response to the motion in limine requesting the court to allow evidence of prior sexual conduct under the Kansas Rules of Evidence, KSA 21-3525.
Harger argued to allow the evidence under an “in camera” examination by Powers with a letter of report by physician M.J. Hodges.
In camera means that Powers will look at the evidence compiled before anyone else and determine whether the evidence can even be argued for admission.
Powers was initially hesitant to allow the defense’s motion even under such strict circumstances because of rape shield laws in Kansas that protect the victim’s character from being tarnished with the use of evidence or statements detailing sexual conduct that does not relate to the current case. However, he will allow the motion.
Another motion that was agreed on previously was a Nov 5, motion by the state to admit evidence of “prior bad acts” by Bowen.
Bowen was convicted in Nov. 27, 2000, for sexual crimes against three Marion County juveniles in 1999. He was charged with two counts of rape, aggravated indecent liberties with a child, and three counts of indecent solicitation of a child. Bowen pleaded to two counts of aggravated indecent liberties with a child in exchange for the dismissal of the remaining counts, Marion County District Court records show.
Bowen was also convicted Aug. 18, 1995, of sexual battery. He served a year in Marion County jail for the crime.
Mostly, Klebe and the defense agreed to all motions of discovery and reciprocal discovery.
Harger’s first motion of discovery was filed Nov. 16.
Harger has filed three motions for discovery. The third motion was filed Dec. 8. It asked for:
- Diaries, journals, calendars, notes, and written reflections of the alleged victim in the case
- All medical, psychiatric, prescription and/or counseling records regarding the alleged victim in the case.
The first part of the third motion was denied because evidence of diaries, journals, or calendars of the victim were found to not exist. Powers said Thursday, in the event that such evidence is found, the motion for discovery applies.
The state filed a reciprocal motion of discovery March 10.
Harger did submit a new motion Thursday to expand the normal jury questionnaire. He said he wanted at least one more page of questions. Yet to be composed, the questions will be reviewed by Klebe and agreed upon at the next motion hearing at 9:30 a.m. May 26.
The thought of the jury selection process raised concern for Powers. While jurors are selected randomly by a computer, the pool of jurors that Powers, Klebe, and Harger will see will feature well over 100 potential jurors in two separate pools. The jurors will not necessarily be from Marion County.
The process of whittling down to 12 jurors is laborious. The defense and prosecution can strike any juror if they establish cause. For a high-level crime, such as this rape case, attorneys have up to 12 preemptive challenges — they can strike jurors for reasons not within normal law. Powers will discuss the jury selection process further with all the attorneys at the next motion hearing May 26.