State v. Hollis

• Decision Date: 16 January 1987
• Docket Number: No. 58909,58909
• Citation: 731 P.2d 260,240 Kan. 521
• Parties: STATE of Kansas, Appellee, v. Deanna D. HOLLIS, Appellant.
• Court: Kansas Supreme Court

Page 260

731 P.2d 260

240 Kan. 521

STATE of Kansas, Appellee, v. Deanna D. HOLLIS, Appellant.

No. 58909.

Supreme Court of Kansas.

Jan. 16, 1987.

Syllabus by the Court

1. Where one who is in custody expresses a desire to deal with the police only through counsel or when counsel is present, further interrogation must cease until counsel is present. However, an accused may waive the right to have counsel present and, where the accused voluntarily initiates further communication, the officers are not precluded from responding.

2. An accused may effectively waive the right to have counsel present during any police interrogation. The fact that the accused has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the accused in his counsel's absence.

3. There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case.

4. The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant's sanity at the time the offense was committed. This evidence may come from either the defendant or the State.

5. The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person's sanity. At that point the question of sanity becomes a question for the jury assisted by proper instructions.

6. It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal.

7. Where a person at the time of a commission of an alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is generally responsible if he commits such act or acts.

8. Under the "right and wrong" test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right.

9. Photographs offered to prove the elements of the crime, the fact and manner of death, the violent nature of the death, and to corroborate the testimony of other witnesses are relevant and admissible.

10. The declaration of a mistrial is a matter which lies within the trial court's sound discretion.

11. Improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.

Melissa Sheridan, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief, for appellee.

MILLER, Justice:

A jury convicted Deanna D. Hollis of first-degree premeditated murder, in violation of K.S.A. 21-3401, and she was sentenced in Sedgwick County District Court to life imprisonment. She appeals, and raises four issues. She contends that the trial court erred in failing to suppress certain statements which were secured in violation of her Miranda rights, and which were received as rebuttal evidence offered by the State. She claims that the evidence presented at trial was insufficient to sustain the conviction in that the State did not sustain its burden of proving beyond a reasonable doubt that she was sane at the time the offense was committed. She claims the trial court erred in admitting gruesome photographs of the deceased's remains, and the remains themselves, into evidence. Finally, she contends that the trial court erred in not granting a mistrial (a) when the prejudicial nature of Sabrenne Fullman's testimony became apparent; (b) following prejudicial news headlines, because the trial court did not fully explore the jury's exposure to such publicity; and (c) upon the occurrence of prosecutorial misconduct during closing argument.

We turn to the evidence, which we will summarize in the light most favorable to sustain the verdict. State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986); State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983). Deanna Hollis first met the victim, Noel Barber, in late May 1985. Hollis accepted a job as live-in housekeeper and general caretaker for Barber in exchange for room, board, and use of his car. Hollis; her 15-year-old daughter, Angela Grill; her boyfriend, Michael Skipper; and two friends, Jeff and Wanda Davis, lived with Barber during June 1985. Skipper was an over-the-road truck driver, and he stayed at the Barber home when he was in town, receiving room and board in exchange for some work. The Davises and Grill left in late June after an argument between Grill and her mother. On June 25, 1985, Hollis Skipper, and Barber were together at the residence. Skipper went to bed around 11:00 p.m., leaving Hollis and Barber "scrapping back and forth" in the living room. Skipper described Barber as very drunk, and Hollis "on her way to getting drunk." The next morning, Skipper arose about 4:45 a.m. to leave on a truck run. He saw Hollis pull a blanket over Barber, who was apparently sleeping on the couch in the living room. He never saw Barber again. Skipper and Hollis went to the Hen House Cafe for coffee and breakfast.

At the Hen House, Hollis told Skipper she had killed Barber but Skipper did not believe her. She later told him she was just kidding. Skipper left on the run and did not return until June 30. When he returned, Barber was gone and Hollis told Skipper that Barber was in a hospital "drying out." He called two hospitals and could not locate Barber, and when he confronted Hollis with this information, she told him that Barber was in a private sanitarium. Skipper went on other truck runs, and returned to Wichita on July 11, 1985.

On July 12, Skipper and Hollis had dinner with Angela Grill. Hollis wanted Grill to go on Skipper's next run because Hollis had some business to take care of. When Grill inquired as to Barber's whereabouts, Hollis repeated her story that he was in a hospital sobering up. Grill left the next day with Skipper. While on this run, Skipper told Grill that her mother said she'd killed Barber because Barber discovered some money was missing and threatened to press charges. Skipper again said that he did not believe the story. Skipper called Hollis from Tennessee to find out if she had taken care of the business she needed to tend to. Hollis told him that she had chopped up Barber's body and burned it.

Skipper and Grill returned to Wichita on July 18. When Grill arrived at the residence, she noticed two black buckets by the door; they smelled bad. Hollis told her that the buckets contained fertilizer. When Skipper arrived later and inquired about the buckets, Hollis told him the same story.

Grill relayed Skipper's story and the information about the buckets to her friend Wanda Davis, and they decided to tell the police. They flagged down a patrol car and did so.

Officers went to the Barber residence. Officer Ingram advised Hollis of the purpose of their call, and she granted him permission to enter the residence. He went through it room by room and did not find a body. When Ingram asked Hollis where Barber was, she replied that he was in a V.A. hospital. Later, she said he was at the Topeka V.A. hospital. The officer checked with the Wichita and Topeka V.A. hospitals and found that Barber was not there. He then advised Hollis of her Miranda rights and asked if she understood; she indicated that she did. Sgt. Fleury noticed flies buzzing around two buckets in the living room. He asked Hollis what was in the buckets and she said that it was fertilizer. She granted Ingram permission to look in the buckets. Using surgical gloves, he reached in and pulled out what appeared to be human bones.

Detective Gilmore then read the Miranda rights to Hollis and secured a written waiver. He asked her where Barber was, and she responded that on July 6 or 7, she had hit him on the head with a whiskey bottle during an argument, gone to bed, and hadn't seen him since. Gilmore then took her to the county courthouse for in-depth questioning. En route, they engaged in general conversation. Hollis blurted out that there was no need to lie anymore and that she had killed Barber because she was upset with her family situation, that Barber had been making unwelcome sexual advances, and she had been wanting to kill someone for a long time.

At the courthouse, Hollis gave a detailed confession, during which Gilmore took notes. This interview was later repeated and recorded on audio tape. In the interview, Hollis stated that she and Barber had been drinking and arguing about her relationship with Skipper. After Skipper went to bed, the argument intensified and she smothered Barber with a pillow. She verified the conversation with Skipper the next morning at the Hen House, and said that she returned home and wrapped the body in a blanket and put it in a bedroom while trying to decide what to do with it. A few hours later she wrapped the body in a pink plastic garment bag, put it in the car, and drove to a stream near Geary County State Lake, where she left it. She returned about a week later because she was concerned that she might get caught because her fingerprints were on the bag. She then tried unsuccessfully to burn the body. When this attempt failed, she put the body back in the car and drove it to a spot near Whitewater, where she hoped it would dry out so she could burn it. About a week later, she again retrieved the body and brought it back to the victim's house. She left the body in the car overnight and the next morning burned the body on the...