2 missing hot dogs, 1 felony charge
BY RON SYLVESTER
The Wichita Eagle
Video: The Hot Dog Caper
BY THE NUMBERS
Hear about the guy who spent 71 days in jail for stealing two hot dogs from a Wichita QuikTrip?
Wait. He didn't steal the hot dogs, he just forgot to pay for them. Twelve people took two days off to serve jury duty last week, heard the evidence, and found the guy not guilty.
"It was stupid," said presiding juror Krysti Mason, 21.
This is no joke. The case of Thomas M. Wimberly, a 74-year-old veteran living on Social Security, highlights both inconsistencies in the law and the experiences of poor people in the criminal justice system.
Wimberly sat in jail unable to make bond, $100,000 at one point, charged with a crime that -- even if he'd been convicted -- brings no time behind bars, only probation.
The hot dogs cost $2.11, "with tax," assistant store manager Jeff Dalke testified.
A bill tied up in the state Legislature would clear up a law that leads to cases like Wimberly's and frustrates prosecutors.
Kansas law requires felony prosecution for crimes such as petty theft if the suspect has had two prior convictions.
When Wimberly walked out of the QuikTrip at Broadway and Murdock without paying for the hot dogs last July, he had two previous misdemeanor thefts on his record -- one more than a decade old.
With thousands of felony cases filed each year in Sedgwick County District Court, it's easy for someone such as Thomas Wimberly to get lost in a crowd of dockets that strain the schedules of judges, prosecutors and public defenders.
But cases such as this one are closer to what fill the daily routines in Kansas' busiest criminal court district than the sensational murders and sex crimes that draw public attention.
"Property crimes, drug crimes, forgery, theft, burglary, making a false writing... those are the majority of the cases we see," said Sedgwick County District Judge David Kaufman, who presided over Wimberly's trial.
And the smaller cases are growing.
Following a recent Supreme Court decision, city municipal courts, which usually deal with misdemeanors, now hand those cases over to district attorneys to prosecute in state courts once they reach felony level.
"It's highly frustrating," said Kim Parker, deputy district attorney for Sedgwick County. "Nevertheless, we're trying to make sure no one walks through without some sort of consequence."
Parker said that the district attorney's office, because it takes prior criminal records into account, has handled cases such as alcoholics stealing mouthwash.
"Obviously, businesses get hard hit all the time with repeat shoplifters," Parker said. "And the cost of shoplifting is passed on to all of us, anyway. Then they take their disappointment to the Legislature" and push for get-tough bills.
But for the poor, it can lead to a revolving jail cell door.
A past that haunts him
In some ways, Wimberly is still paying for his most serious crime, which occurred more than 20 years ago.
Wimberly, then 52, drove a car off the road, hitting and killing 10-year-old Michele Jessogne in the summer of 1984.
The Army veteran now remembers the car brakes failing. Police said his blood alcohol level was 0.122 -- over the legal limit of 0.1 at the time.
Wimberly didn't fight the charge; he pleaded guilty to involuntary manslaughter and drunken driving.
"I took responsibility," Wimberly said in a December telephone interview from the Sedgwick County Jail. "It was the only thing to do. I wanted to set an example for my kids."
Wimberly served the rest of the 1980s in prison. He ended up divorced from his wife of 38 years and estranged from his two grown children.
While bouncing between homes and odd jobs, Wimberly was convicted of petty theft in 1994 and again in 2000.
These days, Wimberly is hard of hearing, walks with a stooped gait and shapes his words around missing teeth. His eccentricity extends to telling funny stories to a dog and testifying that the dog laughed. He tells people his age is 174 --"A hundred of that is mileage."
At the time of his latest arrest, Wimberly lived on a $448 monthly Social Security check.
The QuikTrip case
July 8, 2006.
Wimberly put his dog, Smokey Bear, into a shopping cart and went downtown to a car show.
On the way home, Wimberly said, he stopped at the QuikTrip on the corner of Broadway and Murdock.
Officer John Ryan of the Wichita Police Department was moonlighting as part-time security that day. Ryan would testify that he saw Wimberly pick up two hot dogs, put them into a bag and walk out of the store without paying for them.
Wimberly said he meant to pay for the hot dogs. He did buy a candy bar. He had $11 left, more than enough to pay for the franks he was getting to feed Smokey Bear.
As he was standing at the counter, Wimberly said, he saw Smokey Bear starting to jump out of the shopping cart, so he went out to stop him.
By the time Ryan caught up with Wimberly, Smokey Bear was gobbling down the evidence.
Behind bars
Wimberly was booked on theft, then went about his business. At City Hall he learned that his case had been dismissed. That didn't surprise Wimberly, who said he didn't understand all the fuss over a couple of hot dogs.
Wimberly said he thought it was over. It wasn't.
The city sent Wimberly's case to the district attorney's office. But a summons to attend a hearing at the Sedgwick County District Court was returned as undelivered.
When Wimberly failed to show up for a hearing that he said he didn't know about, he got what everyone else who misses court gets -- a bench warrant.
That's a warrant judges routinely issue for the arrest of no-shows for court. Wimberly's landed him in the Sedgwick County Jail on Nov. 20 with a $5,000 bond.
"I heard that, and I thought the price of hot dogs had really gone up," Wimberly said with a straight face.
Such a bond is standard, said Judge Greg Waller, who presides over the District Court's criminal division. Waller writes out several such warrants each week, with bonds appropriate to the crime. A murder case might draw a $1 million bond, a theft less than $10,000.
A bail-bond service will usually post bond for 10 percent cash down to get people out of jail.
But in Wimberly's case, the $500 cash was more than his monthly income.
The public defender
Poor people often are the ones who stay in jail, awaiting their case to proceed through a crowded court system.
"For someone like Thomas, even $100 is more than half what he pays for his monthly rent," said Lacy Gilmour, the lawyer with the Sedgwick County public defender's office assigned to the case.
Public defenders are appointed to people who can't afford a lawyer.
Each public defender in Wichita juggles dozens of cases at once. Their time to visit with their clients is limited by heavy caseloads, and sometimes they don't get to talk with their clients until just before a hearing.
"It depends on the client," Gilmour said. "Some are very involved. They show up for their appointments, and they're very concerned. Some don't even care enough to show up for their court dates."
After waiving his right to a preliminary hearing and being bound over for trial, Wimberly stayed locked up until Gilmour persuaded Waller to release him on a no-cash bond two days after Christmas.
Waller said Wimberly could get out of jail on the condition he check in with the Day Reporting Center at 21st and Amidon. Gilmour had asked that Wimberly be allowed to report to Pre-Trial Services at the county's Community Corrections Office, which is only two blocks from his apartment.
Waller later said the two programs offer different services; the Day Reporting Center is able to help connect clients with social services and other agencies.
"I remember Mr. Wimberly as being older and he was poor and stole food," said the judge, "so I took those needs into account."
With no transportation and no home phone, Wimberly shuffled across town, or rode the bus, to make his reports.
Wimberly met his court obligation and stayed free for two months. Then he fell ill.
When Wimberly missed reporting, he was sent back to jail.
Waller issued a new bond: $100,000.
"We've got people who have drug problems, or are repeated thieves, and when they violate the conditions of their bond, I want to make sure that they have a high enough bond that they don't get out, until I can determine what the problem is," Waller said.
Waller lowered Wimberly's bond to $5,000 the Friday before last week's trial. That would have required $500 cash to get out.
There was no plea offer from the district attorney's office, Gilmour said, and she's not sure she would have advised Wimberly to accept one if it were available.
"This was just a silly case," Gilmour said. "Even if he pleaded, he would have gotten 12 months probation, and if anything happened, he would have his probation revoked and gone to prison for about 11 months. There's no way this guy needs to be on probation or facing prison."
Wimberly's trial lasted all day Monday and Tuesday morning, then the jury decided his oversight in paying for the hot dogs didn't rise to the level of felony theft.
"Everyone makes mistakes," said Mason, the presiding juror.
Still, Thomas M. Wimberly remained in jail two more days.
Epilogue
Wimberly faced other city charges:
There was a trespassing case filed when Wimberly tried to go back to QuikTrip to pay for the hot dogs.
And that shopping cart he used to push his dog around in? It belonged to the Walgreens at 13th and Waco. Wimberly's story was that the manager let him borrow the shopping cart, because he used to go and round up the stray carts in the parking lot. When Wimberly tried to talk to the store's newly hired manager, he racked up another trespassing charge.
Thursday, the city agreed to drop the charges if Wimberly entered a county program for adult offenders. He agreed.
"I talked to him in the holding cell at the city building," Gilmour said. "I said 'Thomas, when you get out, do not go back to that QuikTrip and do not go to the Walgreens.' He said he wouldn't."
Wimberly got out of jail late Thursday afternoon. He turns 75 today.
