State v. Hollister

• Decision Date: 01 August 2014
• Docket Number: No. 106,317.,106,317.
• Citation: 329 P.3d 1220
• Parties: STATE of Kansas, Appellee, v. Roger William HOLLISTER, Appellant.
• Court: Kansas Supreme Court

329 P.3d 1220

STATE of Kansas, Appellee,

v.Roger William HOLLISTER, Appellant.

No. 106,317.

Supreme Court of Kansas.

Aug. 1, 2014.

Syllabus by the Court

1. The general rule that the death of a criminal defendant does not abate the defendant's direct appeal from his or her criminal convictions does not require an appellate court to consider the merits of each issue raised by the deceased defendant's appeal. Instead, an appellate court should consider whether an issue: (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that would exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition. Only issues meeting one of these criteria should be addressed.

2. After reviewing all the evidence in this case in the light most favorable to the prosecution, we are convinced the evidence is sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt.

Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Gerald R. Kuckelman, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

PER CURIAM:

Roger W. Hollister was convicted by a jury of capital murder under K.S.A. 21–3439(a)(2) for the intentional and premeditated killing of Patricia Kimmi, pursuant to a contract or agreement to kill her. Hollister filed this direct appeal, but he passed away before oral arguments were conducted. His death raises the question of whether his appeal is moot.

In Kansas, the death of a criminal defendant does not automatically abate a defendant's appeal. We hold, however, that this nonabatement rule does not require us to consider all issues in an appeal. Rather, an appellate court should consider whether an issue: (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that would exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition. Only issues meeting one of these criteria should be addressed.

In this case, the only issue that meets these criteria is an issue that might clear Hollister's name, specifically his claim that the evidence was insufficient to support his conviction. Finding no merit to that issue, we affirm Hollister's conviction. Further, because we conclude the remaining issues are moot, we dismiss the remainder of this appeal.

Facts and Procedural Background

Patricia and Eugene Kimmi had been married for 37 years when they divorced in March 2008. When the acrimonious divorce proceedings concluded, Eugene frequently complained to numerous individuals about the division of marital property and his ongoing maintenance obligations. Several people heard him say that he wanted Patricia dead. For example, Eugene's nephew, D.J. Kimmi, who had worked at the Kimmi sawmill with Eugene for 25 years, testified he heard Eugene make such a statement at least once a week after the divorce.

On Saturday, November 7, 2009, Patricia's best friend and her children became concerned because Patricia had not answered either her cell phone or house phone and had not returned their calls since the prior day. Because this was unusual, two of Patricia's and Eugene's four children went to their mother's house on 326th Road in Atchison County to check on her. When they arrived, they found her vehicle outside her house and her keys, cell phone, and purse inside. Several items were out of place or knocked over. When they could not locate their mother, they called law enforcement officers who begana search. The officers noticed carpet threads on the deadbolt lock and “drops of blood ... spattered about a two foot by two foot area” of the gravel driveway.

As the search expanded, several pieces of evidence were located along 326th Road in an area not far from Patricia's house. This area became known as the “second scene.” The items found at the second scene included a camouflage ball cap embroidered with Saylor Insurance Service, Inc.; a bloody money clip; a bloody cologne bottle and detached cap; a bloody velvet brown bag that had another bag inside it with eight .22 Magnum live rounds and some .22 Magnum shells; and a bloody latex glove. Law enforcement officers also observed an area of blood-stained grass. Months later, it was determined that a DNA profile from the ball cap was consistent with the profile of Hollister and the blood on the money clip, plastic cologne cap, cologne bottle, velvet bag, latex glove, and grass was consistent with the DNA of Patricia. Other evidence established that Hollister used the brand of cologne found at the second scene and that he often kept a bottle in his pickup truck. Eventually, after months of denying any involvement in Patricia's disappearance, Hollister admitted the money clip was his.

About a mile away from the second scene, searchers found a Walmart receipt dated November 6, 2009, which was the first day Patricia had not answered her friend's and family's telephone calls. Officers were able to track the customer through the receipt and question him. The customer told officers he and a friend had been drinking alongside 326th Road on that night. As they left, he drove down 326th Road and along the way saw a red Dodge dually pickup truck beside the road. He could see legs kicking in the air behind the truck in the grass. The legs appeared to have on green pants and cowboy boots.

Law enforcement issued a release to the public that included pictures of the Saylor Insurance ball cap, the money clip, and a description of the red dually pickup truck. This led to an anonymous tip that Hollister owned all of the items described in the release. Investigators then verified that Hollister was a customer of Saylor Insurance and had insured a pickup truck through the agency.

Slightly over 1 month after Patricia's disappearance, Atchison County Undersheriff Larry Myer interviewed Hollister at his farm. Hollister admitted he knew Eugene and did business at Kimmi's sawmill, but he denied ever meeting Patricia. Hollister also admitted that he had owned a red dually pickup truck, but he explained he had sold it to an individual for $2,000. When asked if he owned any Saylor Insurance ball caps, he told Myer he had several because he was friends with the owner.

Contrary to Hollister's statement about selling his pickup truck, law enforcement officers learned that he had sold his truck a few days after Patricia's disappearance to the Brinkman Brothers Chevy dealership in Tecumseh, Nebraska. The dealership accepted Hollister's 1998 red Dodge crew cab dually pickup truck, which was described as “extremely clean,” as a trade-in when Hollister purchased a 2000 Chevy truck. The day after the sale, Hollister called the dealership and asked if there was a money clip in his old pickup truck; there was not. A week later, Hollister called and asked if the dealership still had his old pickup truck because he wanted to purchase it back. The truck had not been sold, and Hollister purchased it.

Myer interviewed Hollister again several times. During one interview, Myer told Hollister that investigators knew he had sold his pickup truck to the Brinkman Brothers dealership. Hollister responded by saying that he bought the truck back from the dealership for $5,400 and then sold it for $6,500, and made $1,100 profit. When questioned again about the Saylor Insurance ball cap, Hollister said his dog got a hold of it and “ ‘it's laying [ sic ] in the yard, part of it's still there, the dog chewed it up.’ ” Hollister also showed officers a money clip that was similar to but not identical to the one found at the second scene.

In addition, investigating officers checked into Hollister's business at Kimmi's sawmill. D.J. remembered Hollister and specifically recalled one occasion in September 2009 when Hollister and Eugene sat in the office talking and drinking for about 45 minutes. Once Eugene started telling Hollister about the divorce, D.J. left the office. D.J. also recalled Hollister calling the sawmill about 2 months after Patricia disappeared. D.J. did not hear the conversation, however, because Eugene moved outside before talking to Hollister.

A week after the telephone call, Hollister was at the sawmill when D.J. arrived for work. After learning Eugene was not there, Hollister told D.J. he had been questioned by law enforcement and had given them a DNA sample. After D.J. told Hollister that law enforcement had taken Eugene's DNA as well, Hollister said, “I told Eugene to watch what he wished for, that I would take care of his problem for him.” D.J. asked Hollister what he meant and Hollister replied, “I know this hit man that comes through the country and he called me awhile back and told me that he was coming through and he would take care of this problem for me.” Hollister asked D.J. if Eugene was still paying Patricia alimony, and D.J. indicated he was. Hollister told D.J., she “will never be found.... [S]he's not here to take him back to court, so he doesn't need to keep paying her.”

Hollister then talked about the money Eugene owed him, saying, “When he came through, it cost me $70,000.00.... [I]t wiped me out, it took all my money.... I'm here to recoup my money.” Hollister also wanted “$10,000.00 to pay for his pickup that he had to have crushed because it matched the description of the pickup that they were looking for and he couldn't take any chances.” D.J. told Hollister that Eugene did not have that kind of money and his bank accounts were being monitored, but Hollister replied that Eugene had told him that he had some money stashed. Hollister told D.J. to tell Eugene that he was looking for him, he needed his money, and if anyone asked about his visit to the sawmill to tell them that he was there to get some oak lumber.

Later, when Myer asked Hollister about this conversation, Hollister indicated the “younger...