State v. Holley

• Decision Date: 20 May 2022
• Docket Number: 121,181
• Parties: STATE of Kansas, Appellee, v. Mark HOLLEY III, Appellant.
• Court: Kansas Supreme Court

509 P.3d 542

STATE of Kansas, Appellee,

v.Mark HOLLEY III, Appellant.

No. 121,181

Supreme Court of Kansas.

Opinion filed May 20, 2022

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Mark Holley III was convicted of first-degree felony murder, two counts of aggravated robbery, two counts of child endangerment, theft, and possession of marijuana in connection with four separate events within a month of each other in 2017. Holley challenged his first-degree felony murder and child endangerment convictions on direct appeal, as well as the district court's order of lifetime postrelease supervision and Holley's restitution order. In April 2021 we reversed Holley's first-degree murder conviction, affirmed his child endangerment conviction, and vacated his sentence. Upon a motion for rehearing by the State, we asked the parties to brief several issues related to the use of self-defense. Today we hold that a self-defense instruction may only be given in felony-murder cases to the extent it may negate an element of the underlying inherently dangerous felony. Because Holley's alleged self-defense in this case cannot legally justify any of the elements of the underlying inherently dangerous felony of aggravated robbery, Holley was not entitled to a self-defense instruction. We therefore find no error and affirm Holley's felony-murder conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Although Holley's convictions stem from four separate events, for today's purposes we need only discuss the facts surrounding the robbery of Timothy Albin and the murder of D'Shaun Smith. Albin contacted Holley on Facebook asking about a cell phone Holley posted for sale. Holley agreed to sell the cell phone to Albin for $80, and the two arranged to meet at Holley's house. When Albin arrived, Holley was sitting on the porch. Holley then got up, walked toward Albin's car, and sat in the front passenger seat. Albin's children—then ages one and two—sat in car seats behind Holley and Albin.

Holley gave Albin the cell phone, but Albin soon gave the phone back to Holley complaining that it was not the right model and had not been charged. As Albin tried to hand the phone back, Holley pulled out a firearm, told Albin he "knew what was going on," and demanded Albin's wallet, phone, and money. Albin requested he be able to keep his driver's license, but the man told Albin he had "five seconds to get out of here before I gas your shit." Albin handed over his belongings and drove off quickly to call the police at a nearby gas station.

About a month later, Holley shot and killed D'Shaun Smith. That day, Holley contacted Smith through Facebook Messenger to buy marijuana. Holley and Smith agreed to meet up, and Holley told Smith to not bring guns because the two were meeting at Holley's mother's daycare facility.

Emari Reed, Smith's girlfriend, drove Smith to meet Holley. As Reed and Smith pulled up to Holley's mother's daycare, Holley got into the back-passenger seat behind Smith. Smith gave Holley the marijuana, but Holley gave it back to Smith and said he was waiting on his girlfriend to come out from the duplex. A couple of minutes later, Reed claims Holley said, "This is a robbery."

At trial, Reed testified that Holley fired a shot at Smith after this statement. Smith fell back onto Reed and she could see blood coming from his chest and mouth. Reed tried to drive away but could not get her car moving. Unsuccessful, she stepped out of the car, screaming, and saw Smith reach for a gun under the passenger seat and stand up out of the car. Reed testified she believed Smith fired a shot back at Holley but admitted she did not see him fire or hear a gunshot. Reed stated her ears were still ringing and her vision was blurry. Smith collapsed back into the car seconds after standing and was unresponsive. By the time Reed managed to call for help, Smith had died.

At trial, Holley's version of events was quite different. He admitted to shooting Smith but claimed it was "[i]n complete self-defense." Holley claimed that while Smith and Reed initially came to Holley's to sell Holley marijuana, Holley informed them he no longer wished to buy marijuana when he got into the car. Instead, Holley offered to pay them $20 for a ride to Holley's girlfriend's house. Smith and Reed agreed to give him a ride. The car never left Holley's house, however, because when Holley pulled out the $200-$300 cash he was carrying then to pay $20 for the ride, Smith tried to grab the wad of cash from Holley's hands. Smith only managed to grab Holley's phone.

As Holley opened the door to get out of the back seat, Holley saw Smith start to reach under his seat. And when Holley closed the car door, Holley saw Smith crack open the passenger car door and point a gun out of the open passenger window. Holley, unable to run due to an old ankle injury

, tried to smack the gun out of Smith's hand. Holley claimed that as he hit Smith's hand, the gun fired. Holley then recalled Smith trying to squeeze the trigger again, but nothing happened because the gun appeared to be jammed. When Smith tried to rack the slide back, Holley pulled his gun out of his pocket and fired a shot aiming at Smith's right arm to slow him down so he could run away.

Investigators recovered Smith's Jimenez .380 pistol, two cell phones, a shell casing from a Smith & Wesson .380 Bodyguard semi-automatic pistol, 4 grams of raw marijuana, and a digital scale from the scene around Reed's car. The Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. The cartridge's primer was punched, but the round did not fire. The magazine contained four rounds of Hornady .380 auto ammunition. Investigators also lifted six fingerprints from Reed's vehicle. Two fingerprints found on the exterior rear passenger door matched Holley's left index and middle fingerprints. Later, investigators determined one of the cell phones recovered belonged to Holley.

Using media accounts linked to Holley's cell phone and tracking dogs, investigators tracked Holley to his sister's residence. After surveilling the residence for some time, police arrested Holley as he tried to drive away in a black Lexus. Holley had a stolen Smith & Wesson pistol in his possession when he was arrested.

After interviewing witnesses, investigators learned that Smith may have successfully fired a shot. Investigators searched the scene and found a bullet strike on a home north of where Reed's car was parked. While the bullet strike was visible in the painted brick of the home, there was no debris around the home to suggest it was a fresh hit. Investigators were also unable to locate a shell casing associated with this bullet.

An autopsy revealed Smith's cause of death was a gunshot wound to the trunk. The autopsy also showed this fatal round was fired at "near contact" range. Testing showed the Smith & Wesson pistol recovered during Holley's arrest matched the projectile recovered from Smith's autopsy.

At trial, Holley requested a self-defense instruction. The district court declined to give the instruction, concluding that it was not legally appropriate under K.S.A. 2020 Supp. 21-5226(a) because Holley was charged with a forcible felony.

The jury convicted Holley guilty as charged. The district court sentenced Holley to prison sentences for each of the 7 counts, including a hard 25 life sentence for the felony-murder conviction, and also ordered a postrelease supervision period. The district court also imposed $9,184.75 in restitution.

Holley directly appealed, and in April 2021 we held that the district court erred in refusing to give a self-defense instruction because the instruction was legally and factually appropriate. We held that the error was not harmless and reversed and remanded for a new trial. State v. Holley , 313 Kan. 249, 257, 485 P.3d 614 (2021). The State subsequently filed a motion for rehearing, and we granted the State's motion and directed the parties to brief responses to several questions relating to the appropriate use of self-defense instructions.

ANALYSIS

First, Holley argues the district court committed reversible error in refusing a self-defense instruction. We disagree. As announced in State v. Milo , 315 Kan. ––––, –––– – ––––, ––– P.3d ––––, 2022 WL 1592483 (2022) (No. 120,726, this day decided), slip op. at 9-10, self-defense is never a defense to felony murder. A self-defense instruction may only be given in felony-murder cases to the extent it may negate an element of the underlying inherently dangerous felony. But there is no legal self-defense justification for aggravated robbery.

Second, we affirm Holley's child endangerment convictions. Viewing the evidence in the light most favorable to the State, the evidence is sufficient to support Holley's convictions. We find that a rational fact-finder could have found beyond a reasonable doubt that Holley knowingly placed Albin's children in danger. The State was not required to prove a probability or likelihood of harm. Probability or likelihood of harm is one of multiple factors a jury may consider.

Third, we vacate Holley's lifetime postrelease supervision sentence, because a sentencing court lacks authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence.

Finally, we decline to vacate the district court's restitution order, as Holley has not preserved this argument for appeal.

The district court did not err in refusing to give a self-defense instruction.

The starting point for any alleged jury instruction error is our familiar four-part Plummer test:

"[F]or instruction issues, the

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