State v. Holley
| Decision Date | 23 April 2021 |
| Docket Number | No. 121,181,121,181 |
| Citation | 485 P.3d 614 |
| Parties | STATE of Kansas, Appellee, v. Mark HOLLEY III, Appellant. |
| Court | Kansas Supreme Court |
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 Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
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 challenges his first-degree felony murder and child endangerment convictions on direct appeal. Holley also challenges the district court's order of lifetime postrelease supervision and Holley's restitution order. But because we reverse Holley's first-degree murder conviction and vacate his sentence, we need not address Holley's lifetime postrelease supervision and restitution issues.
Although Holley's convictions stem from four separate events, for today's purposes we need only discuss 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.
The jury convicted Holley guilty as charged.
Holley challenges his first-degree murder and child endangerment convictions. First, Holley argues the district court committed reversible error in refusing a self-defense instruction. We agree. A self-defense instruction was both legally and factually appropriate in this case. And because whether Holley used self-defense boils down to a credibility question, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial.
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.
The district court erred in refusing to give a self-defense instruction.
At trial, Holley requested a self-defense instruction. The district court agreed the facts supported a self-defense instruction but held that the instruction was not legally appropriate because Holley was charged with a forcible felony. The State admits that a self-defense theory was both factually and legally appropriate but argues the error is harmless. Thus, the main issue comes down to whether the district court's error is reversible.
We agree with Holley and the State that the district court erred in refusing to give a self-defense instruction because the instruction was both legally and factually appropriate. We find the district court's error reversible because whether a rational factfinder would find that Holley used self-defense boils down to a credibility determination between witnesses. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial.
We review jury instruction issues in multiple steps:
It is uncontested that Holley requested a self-defense instruction and orally argued for this instruction. Thus, Holley properly preserved the issue for appeal. Whether a party preserves a jury instruction issue affects this court's reversibility inquiry at the third step. McLinn , 307 Kan. at 317, 409 P.3d 1. Because Holley properly preserved these issues for appeal, any error is reversible only if this court determines that the error was not harmless. See, e.g., State v. Barrett , 309 Kan. 1029, 1037, 442 P.3d 492 (2019).
As noted, the state has conceded error and simply argues harmlessness. But before moving to a harmlessness analysis, we take a...
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...failure to preserve the issue or a lack of appellate jurisdiction precludes us from reviewing the challenge at all. State v. Holley , 313 Kan. 249, 253, 485 P.3d 614 (2021). Parties generally cannot raise issues for the first time on appeal, and Shields concedes he did not ask for a caution......
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...Having determined the jury was instructed in error, we must now decide whether the error requires reversal. State v. Holley , 313 Kan. 249, 253, 485 P.3d 614 (2021). Because Crudo preserved the claimed instructional error, we apply the constitutional harmless error standard. See 313 Kan. at......
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