The jury heard instructions and closing arguments this afternoon before they began considering the details of the case and deciding on a verdict.
The jury heard instructions and closing arguments this afternoon before they began considering the details of the case and deciding on a verdict.
County Attorney Darrin Devinney began the closing comments.
He began by making sure the jury had a clear understanding of what is not contested, including the date and location of the shooting, the identity of the defendant, that Kilbourne possessed a gun that was a ballistic match to the bullet in the deputy's vest and the previous felony of Kilbourne.
He also said there was no question as to whether Kilbourne shot Lawrence.
"Even the defendant admitted he did it," Devinney said.
He said the only thing in dispute was if Kilbourne came back toward the deputy when he got out of the car or if he took off.
"Those are your determinations to make," Devinney said.
Devinney went on to point out a path of glass shattered from the driver's side, then the car rolled slowly backward. He pointed out the hat was found near where the front of the car would have been when the gunfire began.
"What's called into question is the difference between Deputy Lawrence's version of what happened and Mr. Kilbourne's version of what happened," he said.
"What I believe the evidence shows is Mr. Kilbourne got out of that vehicle came around the front of that vehicle and moved slowly along with it."
Devinney went on to ask what this trial was about.
If he had the gun and interfered with duty of law enforcement officer, no question.
He said the only thing in dispute was count one, and there was only one factor - premeditation.
"Did Jan Tracy Kilbourne think about what he was doing beforehand? Did he premeditate that offense?" Devinney asked, asking if it was Kilbourne's objective to take the deputy's life that morning.
"That's the essential question to this trial," Devinney continued.
He said there was no time requirement for premeditation.
"Mr. Kilbourne loads up Graham Taylor in Hutchinson, Kan., in a borrowed car in what I would say is the middle of the night," Devinney told the jury. "After a conversation he has with Mr. Taylor, Graham and his buddy Kil discuss who should drive down to pick up Tasha Kane. Apparently there was a discussion about who has active warrants and who has a license. According to Graham Taylor that is common practice for a road trip."
He said they got to the area near Rock, picked up Tasha and headed back.
"With his first venture with his new gun he decides to conceal it in a backpack on the floor of the vehicle he will be driving," Devinney said. "He doesn't tell the other two occupants of the car he had a loaded gun in the car. He kept it concealed."
Devinney said they spot a patrol car and Kilbourne is concerned about his car not working. His concern was he has an active warrant and he is doing his best to avoid the cops.
Devinney went on to recount Kilbourne pulling into the asphalt plant parking lot.
"He knew he had the gun," he said. "He knew he had the warrant, and while they're sitting in that car after they pull off, he looks at his buddy Taylor and says 'I'm not going back to jail.
"I believe Mr. Kilbourne meant it. I believe he was willing and his preparations he had made up to that point he was not going back to jail. That's not where premeditation ends."
Devinney pointed out to the jury the deputy did not write Kilbourne a ticket at that point and asks him and Taylor to switch spots.
"As he's making that call and returns to his car, remember that testimony? That car parked over here by the BMW starts turning off and takes off," Devinney continued. "That's when Lawrence takes his flashlight if you recall and waves them down. Everybody agrees that that happened. He said I have to verify that warrant. Mr. Taylor said that's the point at which Mr. Kilbourne said 'I'm not going back to jail.'"
He said Kane and Taylor asked if they could smoke.
"What is Mr. Kilbourne doing while they are fishing for cigarettes, he is fishing for his gun," Devinney said. "For Mr. Kilbourne this was his way out of going to jail. He certainly wasn't going to go to jail at the hands of a 25-year-old sheriff's deputy out of Butler County. When Lawrence makes that final approach to the car, Kilbourne reaches across Mr. Taylor."
He pointed out Lawrence and Kilbourne said he got out of the passenger side.
"When officer Lawrence comes up to that car, Mr. Kilbourne reaches across Mr. Taylor sitting in the drivers seat, his buddy of several years, placing them in potential danger, he pointed that gun up toward the deputy across the back of his friend from the passenger seat. The deputy wasn't even looking. He's temporarily distracted by his radio. He waits for Mr. Lawrence to lean down to pull that shot."
He said that was the definition of premeditation, and it started when they pulled into that parking lot.
"That premeditated act came to culmination when he decided to pull that loaded weapon out and fire at Deputy Lawrence," Devinney continued. "He decided to kill Deputy Lawrence but by the grace of God he missed.
"Mr. Kilbourne said it was his intent to scare the deputy. You are able to evaluate the weight and credibility of the witnesses you heard in that story."
He said the evidence says he has a loaded gun and was ready to go.
"They discussed it before they left for Atlanta," he said. "He had to load that gun, he had to carry that gun."
He was confident after the jury looked at all of the instructions, the jury would return a verdict of guilty in all three counts as charged.
Defense Atttorney James Watts then offered his closing remarks.
"Ultimately it is not our decision as to what the evidence shows," he said. "It matters what you believe. You, and you alone, decide that. The prosecutor pointed out, and he was correct, there is a great deal about this case is not in dispute and that makes this trial rather unusual."
He reviewed the points not in dispute.
"So why are we here? What is in dispute?" Watts asked. "What is in dispute are two things and they are very much in dispute. In order to find Mr. Kilbourne guilty of a murder charge you must find two things that are very much in dispute."
Those were intent to kill and premeditation.
He pointed out they have heard three different accounts of the events.
Watts said they do matters a great deal.
"I will agree with the government, this begins when Tasha Kane calls her boyfriend and demands he come down and pick her up," Watts continued.
He said they decided to take the Monte Carlo and headed off to Rock near Atlanta.
"The government had you believe Mr. Kilbourne got in a car, headed off to rock and said 'oh, let's kill a deputy along the way,'" Watts said. "The problem is there is no evidence to prove the theory.
"Does he not want to get arrested? Absolutely. It's a far cry from wanting to kill a deputy."
He went on to say taking a gun was not evidence of intent to kill. Several officers in this room have guns.
"I'll ask a facetious question, gentleman do you have intent to kill?" Watts asked.
Watts said he has a conceal carry permit but he does not have intent to kill.
"The presence of the gun tells us nothing about intent and tells us nothing about premeditation," Watts said.
He said Kilbourne was understandably concerned the lights were dimming.
"For obvious reasons he does not want to draw the attention of law enforcement," he continued. "The state would have you believe that makes him have the leap (to intent to kill). Miles apart.
"The irony is Mr. Kilbourne gets off the road because he is going to get pulled over because his lights are dim, the deputy pulls over because the lights are off," Watts continued.
"He asked the officer for a break and the deputy gives it to him," Watts said, saying the deputy wanted to check for wants and warrants.
He said all of the testimony from Kilbourne, Taylor and Kane said they thought it was over.
"The officer, bless his heart, is going to go verify it, and wants to see if they are going to pick him up on it," Watts sad.
He said while the deputy was changing radio channels, Kilbourne told the passengers "I am going to run."
"The testimony is not 'I'm going to kill.' It is not even 'I'm not going to go back to jail.' It is 'I'm going to run,'" Watts said, pointing out how dark it is.
He said when the car made the circle the headlights are facing in the wrong direction from the patrol car and they are operating in the dark.
"The officer approaches a third time, he leans over, the shot is fired," Watts said. "Up to that point, frankly, is not in much dispute at all."
He said in the moments after the first shot, time gets short and it is difficult to remember what happens, which is not unusual.
"The deputy doesn't even know how many rounds he fired," Watts said. "Nobody thought he fired that many rounds, but it turns out he did."
He said of those rounds three struck the passenger area of the car.
"You heard testimony there is a bullet hole midway through the door, it goes through the door," Watts continued. "It goes through the door, through the inside and lodges in the door on the other side. At least two other rounds entered that car. The deputy doesn't remember that. He's under enormous stress. He's just been shot."
He said Lawrence said Kilbourne walked around the car and "squared up" and then goes down the side of the car.
"He hears the defendant say 'I'm hit, I'm hit,'" Watts said, showing a photo that does not show a bullet whole in the car where the deputy said he heard Kilbourne say he was hit.
"We also heard from the deputy that as he's struck, he drops the flashlight," he said.
Watts said the shooting did not happen where the flashlight was found because it was not where the glass was broken out.
"He did not drop the flashlight where he was hit, it was back there by where the car ends up," Watts said. "Not where the shooting occurs. Am I saying the deputy is a liar? Of course not. The stress was extremely high. The point is it could not have happened like the deputy described because the physical evidence is not there."
He asked the jury why that matters, going on to the second version, that was given by Taylor.
In that version Kilbourne shoots in front of Taylor and Kilbourne went out the window over his back.
"Did it happen that way?" Watts asked. "For sure, Mr. Taylor is under the same sort of stress as Deputy Lawrence. So what do we look to, physical evidence. Could it have happened that way? Yeah. How do we know that? Mr. Kilbourne has a bullet wound in his hip."
He pointed out the blood on the dash and on the driver's side seat, which he said could have been from Kilbourne's wound.
"In addition to that, Mr. Taylor testifies this glass in his back is dug in," Watts continued. "Weeks later it is coming out. That takes more than just glass falling on you, it has to be pushed in."
He said it could have been from Kilbourne crawling out the window when he lost his hat. He also said the hat may not have stayed put because of the wind.
Watts said the third version was Mr. Kilbourne's.
He said he could have adopted Taylor's version, but he did not.
"It might make more sense for him to adopt Mr. Taylor's version," he said. "But he did not. He said he went out the passenger door."
He went on to say Kilbourne said he did not go around the front of the car.
"The amazing thing is, and we saw the testimony of Mr. Taylor, not particularly a good witness, but his testimony fits the physical evidence the best," Watts said.
"What does this have to do with the issues before us. The issues are premeditation and intent. There was zero evidence of premeditation. There was no witness, none, who says anything about going to kill an officer. We know that having a firearm in and of itself tells us nothing about premeditation. This act has all of the hallmarks not of premeditation but of a panic impulse. Oh crap, I'm going to get taken back to jail. I don't want to go to jail. Panic impulse. It has all the hallmarks of a panic impulse. A panic impulse act is the very opposite of premeditation."
He told the jury they are to decide the case on evidence and not supposition.
"Where is the evidence of premeditation?" Watts asked. "There is none."
He went on to ask why it mattered about the different versions.
He said the deputy's testimony of squaring up fits premeditation but it does not match the physical evidence.
"The physical evidence says that's not what happened," he said. "He didn't drop the flashlight upon being shot. It's in the wrong place. He didn't impact Mr. Kilbourne as he's going down the driver's side of the car because there is no impact point there."
He asked if Kilbourne's idea was a dumb idea.
"Yes it's a dumb idea," Watts said. "It's a panic, it's an impulse. What it is not is premeditation."
Going on to intent, he said it was not sufficient to show the defendant fired a shot with intent to kill.
"Aside from the shot itself, where is the intent?" Watts said. "If Mr. Kilbourne had wanted to kill the deputy he had ample opportunity to do that."
He said the deputy approached him three times.
"What Mr. Kilbourne is bent on is escaping," Watts said.
He said impulse often ends up as a dumb idea.
"There is precious little evidence of intent to kill the officer," Watts said. "Zero evidence it was planned ahead of time."
As to the other two counts, he said count two was what it was.
On count three, he said the defendant had to interfere with verifying the warrant. The deputy had already verified the warrant. He was trying to figure out if they were willing to come get him.
He said by the time the shot was fired the warrant verification was already complete, which is what was charged.
"If Mr. Kilbourne fires a shot not with intent to kill, but with intent to get away, that is not an attempt to kill, that is aggravated battery, but he is not charged with aggravated battery," Watts said.
He asked the jury to hold the state to beyond a reasonable doubt.
Devinney then once again addressed the jurors.
"You just heard a lot of different arguments about this case," he said. "I don't know if it refutes anything you heard through closing arguments. I will do my best to reign this back in to the law you need to apply."
Devinney said Kilbourne was not accused of murder or aggravated battery, he was charged with attempted capital murder.
He said if it is premeditated it is attempted capital murder and if it is not premeditated it is attempted second degree murder.
He went on to ask if Kilbourne had a gun in his hand when he came around the front of the car. Devinney said he had it in the car and he had it in Wichita when he was found.
"Kilbourne had the gun," he said.
"Let's look at the fact. Let's look at the law. This comes from the court. That is what we are asking you to apply. Not supposition. Just the testimony and evidence you have heard in this trial."
He asked them to return verdicts of guilty.
"There is no reasonable doubt, folks," Devinney said.