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Donte Westmoreland

Other Kansas Exonerations
On March 8, 2016, Officer Nicholas Blake with the Junction City, Kansas police department was traveling east along Interstate 70 when he became suspicious of two vehicles on the highway.

The Hyundai and the Lexus appeared to be traveling together. The Lexus had no rear plate, and the Hyundai had a Nevada plate. Blake ran a check and learned that the Hyundai had been seen in California two days earlier. In addition, both cars had a lot of road grime, which Blake believed meant they had passed through Colorado or a similar snowy area.

Blake would later testify that his training and experience led him to suspect that the two vehicles were operating in tandem for the purpose of drug trafficking, with one car the decoy vehicle and the other the load vehicle.

The cars kept traveling east, and Blake relayed the information to Lieutenant Justin Stopper with the Geary County Sheriff’s Department, who stopped the Hyundai for having an obstructed plate. DaShaun Perkins was driving the vehicle. The passenger was 23-year-old Donte Westmoreland.

Stopper said he noticed that one of the phones in the car had a navigation application that indicated the men were heading to Manhattan, Kansas, about 20 miles away. Stopper said he smelled marijuana and saw trace amounts of marijuana on the console. He asked to search the vehicle and then found a small amount of marijuana in the trunk.

Stopper believed that the Hyundai was the decoy vehicle, so he released Perkins and Westmoreland and then notified Lieutenant Daryl Ascher with the Riley County Police Department. Working in plain clothes and driving an unmarked car, Ascher followed the Hyundai to an apartment complex in Manhattan.

Ascher would later testify that he saw Perkins and Westmoreland meet Jacob Gadwood, who lived at the complex. About 20 minutes later, the Lexus showed up. Three other men got out, and they all went into Gadwood’s apartment.

Ascher said a few minutes passed, and then he saw Perkins and Westmoreland leave the apartment. Perkins placed a plastic bag in the Hyundai’s trunk and drove slowly away. Shortly thereafter, Perkins apparently spotted Ascher. He got out of the car, met with Westmoreland, and the two men were detained while they were walking away from the apartment. The other three men – Victor Lara, Enrique Hinojosa, and Jose Jimenez – jumped out of Gadwood’s apartment window and escaped, but were later arrested 60 miles away in Topeka, Kansas.

Officers searched the Lexus and found methamphetamine and approximately 6.7 pounds of marijuana in several sealed packages inside the car. Ascher did not see Westmoreland inside the Lexus. After Westmoreland was arrested, an officer searched him and found an inexpensive flip phone. The officer would testify that these types of phones were often used for drug trafficking, but there was no evidence of drug activity on the device.

Lieutenant Ascher interviewed Gadwood, who said that he had bought a pound of marijuana from Westmoreland. Gadwood agreed to become an informant and testify at trial as a witness for the state.

Police charged Westmoreland with: conspiracy to distribute at least 450 grams but less than 30 kilograms of marijuana; possession of at least 450 grams but less than 30 kilograms of marijuana with intent to distribute; conspiracy to distribute methamphetamine; and possession of methamphetamine with intent to distribute.

The other four men were also charged with similar drug crimes. Each pled guilty to one or more counts in the summer of 2016. Lara received the longest sentence: six years in prison.

Westmoreland’s trial began on February 15, 2017 in Riley County District Court. He was represented by Thomas Addair. Gadwood was the state’s main witness, and he testified that he had met Westmoreland a week earlier and paid him $1,800 for a pound of marijuana. He said that after he had given Westmoreland and Perkins a butter knife to pry open the door panel of the Lexus, the two men returned to the apartment with some pills that Gadwood believed were ecstasy. Gadwood said that he told Westmoreland and Perkins that he didn’t want the pills, so they returned to get the marijuana. That was when Perkins noticed Ascher.

Police testified that they found packaging material in Gadwood’s apartment that matched packaging material in the Lexus.

Although Gadwood testified that he had arranged to buy drugs from Westmoreland, he was never charged with a crime. At the trial, several of the officers testified that they had made no deal with Gadwood in exchange for his testimony.

The jury convicted Westmoreland of the two marijuana-related charges and acquitted him of the methamphetamine-related charges on February 17, 2017. He was later sentenced to seven years and eight months in prison.

Westmoreland’s first appeal argued there was insufficient evidence to support his conviction. He noted that there was no direct evidence that he was in possession or control of the drugs found in the Lexus. The Kansas Court of Appeals affirmed his conviction on June 29, 2018, writing that Gadwood’s testimony supported the state’s theory that Westmoreland had constructive possession of the drugs.

Westmoreland, now represented by Chris Biggs, filed a petition for a writ of habeas corpus in Riley County District Court on September 25, 2019. In the petition, Westmoreland claimed that Addair had been ineffective as his trial attorney, failing to secure testimony from the other four men that Westmoreland did not know about the drugs in the Lexus.

Lara said in an affidavit: “Donte at no point had knowledge of the marijuana that was in my car, nobody else knew what was hidden in my vehicle. Donte and I were on separate trips in the same direction. The only reason I stopped at Gadwood’s house was to take a shower before I went to my final destination.”

In the motion, Biggs wrote that Westmoreland had paid Addair a flat fee to represent him. “Theoretically, under such an arrangement, counsel is personally better served if he puts less time into the case, and there is an incentive to put off time for trial preparation until the last minute because the time spent is adding nothing to the fee. It would appear, based upon the record, that that is just what happened here.”

Separately, the petition said the state had failed to disclose its arrangement with Gadwood, despite the testimony of the officers that none existed. “He was never prosecuted despite his claimed involvement and the numerous illegal drugs found in his apartment. This all suggests the existence of, at a minimum, a non-disclosed gentlemen’s agreement not to prosecute if he testified for the State.”

On October 13, 2020, Judge John Bosch of Riley County District Court, ordered that Westmoreland’s convictions be vacated. He said the state’s failure to disclose evidence about Gadwood was “inadvertent” but went directly to the issue of his credibility as a witness. He did not address Westmoreland’s claim on ineffective assistance of counsel.

Westmoreland was released from prison on October 15, 2020. At the time, Riley County District Attorney Barry Wilkerson said he planned to retry Westmoreland.

He told the Kansas City Star that the prosecutor who originally tried the case might have misunderstood the arrangement between the state and Gadwood. “I’m just going to err on the side of caution and say you know what, ‘I’d just rather retry the case and make sure that there are no issues with the integrity of a prosecution than for there to be any questions,’” he said.

Five months later, on March 3, 2021, Wilkerson filed a motion to dismiss the case. Bosch approved the dismissal that day.

– Ken Otterbourg

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Posting Date: 5/4/2021
Last Updated: 5/4/2021
Most Serious Crime:Drug Possession or Sale
Additional Convictions:
Reported Crime Date:2016
Sentence:7 years and 8 months.
Age at the date of reported crime:23
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No