State v. Holmes, 84,360.

Decision Date09 November 2001
Docket NumberNo. 84,360.,84,360.
Citation33 P.3d 856,272 Kan. 491
PartiesSTATE OF KANSAS, Appellee, v. MELVIN W. HOLMES, Appellant.
CourtKansas Supreme Court

Craig H. Durham, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant Melvin W. Holmes was convicted of premeditated first-degree murder and criminal possession of a firearm. The trial judge sentenced defendant to a hard 40 sentence. Defendant appeals his convictions and sentences claiming (1) the prosecutor's comments during closing argument denied defendant his right to a fair trial; (2) the premeditation instruction was unconstitutionally vague; (3) the trial court failed to suppress defendant's statements to police officers; (4) evidence was insufficient to sustain the imposition of the hard 40 sentence; and (5) aggravating circumstances must be proved to the jury beyond a reasonable doubt. Because we are setting aside the jury verdict of guilty of premeditated first-degree murder, we will not discuss the remaining issues. On March 7, 1999, at 5:19 a.m., police received a 911 call from Holmes, who calmly stated that he had shot his girlfriend during an argument. When law enforcement officers arrived at Holmes' house, they found Glenda Smith's body in the hallway and a gun laying on her shoulder. Smith had been shot in the chest. There was a semicircular cut, consistent with the shape of a hammer, on the top of her head. It was later determined that the hammer blow did not fracture Smith's skull or cause brain injury. The gunshot wound was a contact wound, indicating the gun was held next to Smith's skin when fired. Smith's fingers were stiff, and the blood in her mouth dry. Drug paraphernalia was found throughout the house. Holmes was arrested.

At the police station, Holmes was advised of his Miranda rights. After initialing the advice of rights form, Holmes stated that he and Smith had used heroin and cocaine and argued about drugs. While they were in bed, Holmes said, Smith began talking "shit." Smith was "tweaking," i.e., paranoid because of drug use. At such times, Smith would obtain knives and a gun from the armoire.

Fearing what Smith would do, Holmes stated that he grabbed a hammer that was laying next to the bed and hit Smith in the head. The blow did not faze Smith. Smith jumped up in the bed screaming. Holmes noted that Smith had the gun in her hand. Holmes grabbed for the gun. A struggle ensued on the bed, in the room, and finally into the hallway outside the bedroom. During the struggle, the gun clicked several times but did not fire. Holmes did not know who was pulling the trigger because they both had hold of the gun. It was later determined that the ammunition was too long for the gun and that the revolver's cylinder would not always rotate correctly.

Holmes told the police that in the hallway he overpowered Smith, took control of the gun, and threw Smith to the floor and straddled her. He then placed the gun to Smith's chest. When Smith put her hands on the gun, Holmes threatened that he "could" or "would" kill Smith. During the struggle over the gun, Smith was shot in the chest. Shocked by what had happened, Holmes dropped the gun on Smith's chest, stepped over Smith's body, went to the bathroom, and finished using his stash of drugs. Holmes stated to the officers that after Smith was shot, he should have called an ambulance to assist Smith, but since he was going to jail, "he figured, what the hell, he would go ahead and finish up the drugs." After finishing the drugs, Holmes called 911. The 911 call was received at 5:19 a.m.

Holmes was charged with premeditated first-degree murder and criminal possession of a firearm. Prior to trial, Holmes moved to suppress his statements to law enforcement officials. Holmes asserted that he had not been informed of his Miranda rights, and if informed of the rights he did not knowingly and intelligently waive those rights. At the suppression hearing, Holmes argued he did not knowingly and intelligently waive his Miranda rights. The judge found Holmes' statements were voluntarily and knowingly made.

Prior to trial, the State filed its notice of intent to request mandatory 40-year imprisonment. The notice identified two aggravating circumstances: (1) The crime was committed for the defendant's self or another for the purpose of receiving money or other thing of monetary value, and (2) the crime was committed in an especially heinous, atrocious, or cruel manner.

At trial, Holmes' defense was that the shooting was accidental. The time between the shooting and Holmes' 911 call was disputed at trial. Holmes testified that he called law enforcement 6 minutes after the shooting. Neighbors testified that they heard shots fired at around 3:30 a.m. or 4 a.m., i.e., 60 to 90 minutes before Holmes' 5:19 a.m. 911 call. The jury convicted Holmes of first-degree premeditated murder and criminal possession of a firearm. The court found aggravating factors and imposed the hard 40 sentence. Holmes appeals. This court's jurisdiction is pursuant to K.S.A. 22-3601(b)(1).

Prosecutor's Comments

Holmes had been arraigned on first-degree premeditated murder, K.S.A. 21-3401(a). After hearing the evidence, the trial court determined it was required to instruct the jury on first-degree (premeditated) murder and the lesser included offenses of second-degree (intentional) murder, K.S.A. 2000 Supp. 21-3402(a), and voluntary (intentional) manslaughter, K.S.A. 21-3403.

At the jury instructions conference prior to closing arguments, the following discussion occurred as to the instruction on first-degree premeditated murder and the definition of premeditation:

"THE COURT:....
"Now, an instruction based on case law has been offered by the State. Is this the language that you want—how you want it to read? [The prosecutor's proposed instruction is not in the record.]
"[PROSECUTOR]: Yes, that's how I want it to read. And it might be appropriate to put it with the definitions.
"THE COURT: There is no particular time period for premeditation.
"[PROSECUTOR]: Right. And I think that it's appropriate to go ahead and state that. And I have reviewed State v. Moncla, [262 Kan. 58, 936 P.2d 727 (1997)] .... And in that particular case the court actually gave a further definition of premeditation. It had said, premeditation means to have thought over the matter beforehand. There is no particular time period for premeditation and it may arise in an instant. And the jury—or the judge—the Supreme Court said that it was a proper statement of the law, and that the use of it can arise in an instant. They didn't like that particular language so that's why I'm asking that that be eliminated. But it was not reversible error, even with that particular language that it could arise in an instant. But I do think that it is necessary in these circumstances to have a further definition of premeditation, that there is no time period required for premeditation. And so I'd ask the Court to allow that to go with the definition instruction.
"[DEFENSE ATTORNEY]: Urn, your Honor, I'm not going to object to the language as [the prosecutor] has offered it for this instruction. I would ask the Court to place it under the premeditation definition that's currently in the instructions.
"THE COURT: Under what?
"[DEFENSE ATTORNEY]: Under the premeditation definition that's already in the instructions.
"THE COURT: You mean the elements instruction?
"[DEFENSE ATTORNEY]: No, Premeditation is defined in 56.04. At the top of the page it says, means to have thought over the matter beforehand. And if we could put in the language at that point that there's no particular time period, I would have no objection.
"THE COURT: So taking the State's [proposed] instruction on premeditation
....
"[PROSECUTOR]: Correct.
"[DEFENSE ATTORNEY]: Yes, your Honor.
"THE COURT: Okay. Boy, you know, and I've read that case before. I'm not satisfied with the language from that. I think they should have said something more along the line, there is no—to me, it can be interpreted two different ways, that the premeditation could have occurred at some time a week before, you know, the time period, rather than there's no particular length of time required for premeditation to take place. Do you understand?
"[PROSECUTOR]: Yeah. The language adding no particular length of time.
"THE COURT: Rather than no particular time period. There is no particular length of time—
"[PROSECUTOR]: That would be better.
"THE COURT: There is no particular length of time required for premeditation to occur.
"[PROSECUTOR]: I like that. I would ask to change it to that.
"[DEFENSE ATTORNEY]: Your Honor, if it's that technical, perhaps we should just not instruct on it. It would confuse the jury. I guess I'm going to go ahead and object for the record.
"THE COURT: Okay. What I'm going to do on the instructions is instruct them as follows: Premeditation means to have thought over the matter beforehand. There is no particular length of time required for premeditation to occur. My concerns are with the language that has been approved or has been found not to be appealable error. I think it still is—creates at least some confusion that could occur.
"[DEFENSE ATTORNEY]: Your Honor,—
"THE COURT: And I think that my language addresses the issue more specifically.
"[DEFENSE ATTORNEY]: I'm afraid that no particular length of time could imply to the jury that no time is necessary to show deliberation.
"[PROSECUTOR]: Well, it can happen in an instant, you know, so that would not be misleading the jury as far as the law in the State of Kansas.
"[DEFENSE ATTORNEY]: If no time is given to make a
...

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33 cases
  • State v. Anthony
    • United States
    • Kansas Supreme Court
    • October 27, 2006
    ...of a trigger is all it takes"; implication premeditation can be instantaneous was reversible misconduct); State v. Holmes, 272 Kan. 491, 497, 499-500, 33 P.3d 856 (2001) (reversible error for prosecutor to say "premeditation can occur in an instant. That's the law in the State of Kansas"). ......
  • State v. Kettler
    • United States
    • Kansas Supreme Court
    • May 23, 2014
    ...of premeditation is analogous to stating premeditation can be instantaneous—language this court disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Kettler makes a persuasive point. In Holmes, the victim was shot and killed in a struggle over a gun. The defendant was convicted......
  • State v. Jones
    • United States
    • Kansas Supreme Court
    • November 8, 2013
    ...reversible misconduct when she pantomimed firing of gun, said: “One squeeze of a trigger is all it takes.”); State v. Holmes, 272 Kan. 491, 497–500, 33 P.3d 856 (2001) (prosecutor committed reversible misconduct: “Ladies and gentlemen, premeditation can occur in an instant. That's the law i......
  • State v. Williams
    • United States
    • Kansas Supreme Court
    • May 23, 2014
    ...of premeditation is analogous to stating premeditation can be instantaneous—language this court disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Williams makes a persuasive point. In Holmes, the victim was shot and killed in a struggle over a gun. The defendant was convicte......
  • Request a trial to view additional results
2 books & journal articles
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 80-7, August 2011
    • Invalid date
    ...on first-degree murder conviction that was reversed and remanded for a new trial because of prosecutorial misconduct. State v. Holmes, 272 Kan. 491 (2001) (Holmes I). Second jury convicted him of same offense. Supreme Court affirmed the conviction but vacated hard 40 sentence and remanded f......
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 80-9, October 2011
    • Invalid date
    ...statement that premeditation can occur in an instant and cited intervening change in law by Supreme Court's decision in State v. Holmes, 272 Kan. 491 (2001, decided four months after Wimb-ley II. Wimbley also speculated DNA on murder weapon might be exculpatory. District court denied the mo......

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