State v. Francis, 92,087.
| Decision Date | 27 October 2006 |
| Docket Number | No. 92,087.,92,087. |
| Citation | 145 P.3d 48 |
| Parties | STATE of Kansas, Appellee, v. John F. FRANCIS, Appellant. |
| Court | Kansas Supreme Court |
Bob L. Thomas, Thomas & Associates, LLC, Olathe, argued the cause, and Megan L. Harrington, of the same firm, was with him on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
John F. Francis appeals his conviction by a jury of first-degree murder. He claims numerous errors occurred at trial. Several of the errors relate to the admission of evidence. He also raises questions as to jury instructions, closing argument, jury questions, and posttrial motions.
On February 18, 1998, Clem Hollingsworth IV died as the result of a gunshot wound which he sustained while a passenger in the back seat of a car driven by his mother. The shot was fired from another vehicle. The State's theory was that Hollingsworth was killed in revenge for the murder of Frederick Johnson.
About 8 months earlier, in June 1997, Clem Hollingsworth shot and killed Frederick Johnson and shot and wounded Jason Smith. Hollingsworth was arrested on June 20, 1997, and charged with Johnson's murder. On February 17, 1998, Hollingsworth's mother, Sharon Hollingsworth, paid the bond to secure her son's release from jail. Among the people who were notified pursuant to the Missouri victims' rights statute of Hollingsworth's release was Frederick Johnson's mother. Hollingsworth was shot and killed in the early morning hours of February 18.
Frederick Johnson was the brother of Richard Johnson and the cousin of the defendant, John Francis. Hollingsworth and Francis were friends. At the time of Frederick Johnson's death, Corey Shannon, another friend of Hollingsworth and Francis, was incarcerated in Missouri. A few weeks after Johnson's murder, Sharon Hollingsworth telephoned Shannon, then telephoned Francis as if the call were coming directly from Shannon, and listened to Shannon and Francis talk about the murder. Francis told Shannon that if he did not get Clem Hollingsworth, "he would get the next thing closest to him."
In early February 1998, before Hollingsworth's mother paid his bond, the defendant along with several other people had visited James "Tony" Gillihan at the KC Bail Bonding Company. They wanted to pay Hollingsworth's bond and get him released. They did not have enough money to pay the bond but urged Gillihan to let them pay less, saying, "You're not going to be on the bond very long." When Gillihan said he would not make the bond for the $5,000 they were offering, Francis said, "That's the mother-fucker who killed my cousin a couple weeks ago," and reiterated that Gillihan would only be on the bond a couple of days. Gillihan refused to be involved. Then someone with Francis offered another $2,500 and said, Later, after hearing that Hollingsworth had been killed, Gillihan called the TIPS Hotline.
Hollingsworth was released from jail at approximately 7:30 the evening of February 17. His mother picked him up, and they went to her house. After he showered, they went to visit relatives. At approximately midnight they picked up her friend Karen McCoy when she got off work. The three went to Harrah's in North Kansas City. As they were going into Harrah's, a young man recognized Clem Hollingsworth and greeted him.
At approximately 3 a.m., they left Harrah's with Sharon Hollingsworth driving, McCoy in the front passenger seat, and Clem Hollingsworth in the back seat. They drove south on I-35 and exited at the Shawnee Mission Parkway ramp. At the yield sign to get on Shawnee Mission Parkway westbound, a car with bright headlights came up behind them. As Sharon drove onto the parkway, the car with the bright lights drove quite close beside her — over the line into her lane. Sharon recognized the defendant in the front passenger seat of the other car.
Clem told Sharon to duck, and gunfire began. When the shooting died down, Sharon put the car in reverse and backed up. She sat up and made a U-turn, almost hitting a truck. Sharon saw two cars turn around to follow her as she drove eastbound. She could see arms outside the car that had been close on her driver's side, and more shots were fired from that car. Sharon pulled into a gas station, and McCoy ran inside to get help. Clem was lying on the back seat bleeding. He was taken by ambulance to the hospital, where he was pronounced dead.
Police recovered shell casings from the westbound lanes of Shawnee Mission Parkway near the ramp from I-35 and near the gas station Sharon had pulled into. A firearms examiner determined that they had been fired from at least 5 different firearms — three 9mm's, one .38 or .357 caliber, and one .40 Smith & Wesson or 10mm. A metal bullet jacket were retrieved from Hollingsworth's body during the autopsy and given to police.
A shoebox of ammunition was seized during the search of defendant's residence. Defendant's fingerprint was found on one of the boxes of ammunition in the shoebox. Four guns and a speed loader for a revolver also were seized from his residence. One of the guns, a .38 Special Taurus handgun, could have fired the bullet with the jacket retrieved from Hollingsworth's body during the autopsy.
On February 23, 1998, defendant's residence at 429 Topping, Kansas City, Missouri, was searched pursuant to a warrant. In a motion to suppress, defendant challenged the validity of the warrant and the underlying affidavit. The trial court denied Francis' motion. The trial court made the following findings of fact:
On appeal, defendant does not dispute the facts found material by the trial court to its decision. When the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).
Particularity of the warrant. The Fourth Amendment to the federal Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularity describing the place to be searched, and persons or things to be seized." The search warrant at issue stated that there is probable cause to believe that "[b]ullets, bullet fragments, weapons, shell casings, blood, bodily fluids, and other related trace and physical evidence related to a fatality shooting to victim, Clem Hollingsworth IV." Defendant contends that the term "weapons" lacks the necessary particularity. He suggests that the term "firearms" should have been used instead of weapons.
The requirement that warrants shall particularly describe the things to be seized prevents the seizure of one thing under a warrant describing another. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431, reh. denied 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 813 (1965) (citing Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). The constitutional standard for particularity of description in a search warrant is that the language be sufficiently definite to enable the searcher reasonably to ascertain and identify the things authorized to be seized. Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414, 69 L.Ed. 757 (1925). Hence, the specificity required hinges on the circumstances of each case. See United States v. Lowe, 50 F.3d 604, 607 (8th Cir.1995).
In this case, the context in which the term "weapons" appears — bullets, bullet fragments, weapons, and shell casings — effectively defines the weapons to be seized as firearms. The term "weapons" in its context was sufficiently definite to enable the officers who executed the warrant reasonably to ascertain and identify that the things authorized to be seized were firearms. The warrant did not fail to describe particularly the things to be seized because it did not create a danger of mistake or of unlimited discretion in the executing officers' determination of what was subject to seizure. See United States v. Savoca, 761 F.2d 292, 298-99 (6th Cir.1985) (...
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