State v. Holmes

Decision Date17 December 2004
Docket NumberNo. 90,420.,90,420.
Citation278 Kan. 603,102 P.3d 406
PartiesSTATE OF KANSAS, Appellee, v. MELVIN W. HOLMES, Appellant.
CourtKansas Supreme Court

Carl F. A. Maughan, of Law Offices of Carl Fredrick Alexander Maughan, L.L.C., of Wichita, argued the cause and was on the brief for appellant, and Melvin W. Holmes, appellant, was on a supplemental brief pro se.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Melvin W. Holmes was convicted by jury of premeditated first-degree murder and criminal possession of a firearm. His hard 40 sentence and convictions were reversed by this court on the basis of prosecutorial misconduct, and his case was remanded for a new trial in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001) (Holmes I). He was tried again for the same charges, convicted by the jury, and sentenced by the court to a hard 40 sentence. He again appeals, raising those issues not addressed in his first appeal, see 272 Kan. at 491, as well as new issues. A statement of the basic facts appears in Holmes I, 272 Kan. at 492-93, supplemented by the following facts.

Holmes and Glenda Smith dated for over 2 years and lived together in Smith's home for 6 months prior to Smith's death. On March 6, 1999, Holmes and Smith spent the day at Smith's home using drugs. Both were habitual drug users. Holmes had taken heroin and cocaine approximately three times and smoked crack at least three times, while Smith had injected cocaine throughout the day. Around midnight, Smith showed signs of paranoia ("tweaking") because of the drug use and was seen looking out the window and holding a knife. Smith eventually left her residence for 25 to 30 minutes and upon return went into the bathroom. Because Smith's veins were poor, her usual stay in the bathroom was 35 to 40 minutes if she was injecting cocaine. Sometime later, Smith left the bathroom and went into the bedroom where she laid down next to Holmes on the bed.

Soon after, Smith began "nagging" Holmes. Their relationship was problematic because Holmes did not have a job and had sold all his belongings to obtain drugs to support their habits. Holmes grabbed a hammer located next to the bed and hit Smith on the back of her head. The hammer blow broke Smith's skin and would have required five stitches had she lived through the ensuing events. Smith jumped up from the bed and grabbed her gun. The fight moved from the bedroom to the hallway as the two struggled for control of the gun. The gun clicked several times but did not fire. In the hallway, Holmes pushed Smith to the floor and pinned her down with one knee. Although the gun was pointed at Smith's chest, she continued to fight and placed both hands on the gun while Holmes had one hand on the gun. Holmes threatened Smith that he "could" or "would" kill her, but Smith continued to fight when the gun went off.

Holmes and Smith both let go of the gun, and the gun dropped on Smith's chest. The bullet traveled through her heart. Believing she was dead, Holmes immediately went into the bathroom where he injected a combination of cocaine and heroin ("speedball") and had a drug-induced seizure. The time of shooting is disputed, but after Holmes recovered from his seizure, he called 911 and told them that "he had shot his girlfriend." The call was made at 5:19 a.m.

When police officers arrived and knocked on the door, Holmes opened the door and calmly walked toward the officers to be handcuffed. After the officers placed Holmes in their patrol car, they conducted a safety sweep of the house and found Smith. At 5:52 a.m., Officer Travis Easter asked Holmes who lived in the residence. Holmes responded that he lived in the residence, but it was Smith's house. Easter asked Holmes if he was willing to sign a consent to search the home form so that the lab personnel could examine the scene. Holmes agreed to sign. The officers took Holmes out of the patrol car, unhandcuffed him, and Holmes signed the consent to search. Easter then placed Holmes back into the patrol car and transported him to the police station for questioning. The only conversations between Easter and Holmes pertained to the heat temperature in the car, if Holmes' dog was loose, and a squeaking noise Holmes heard from a nearby car. The defendant initiated each conversation.

At 6:06 a.m., Easter placed Holmes in an interview room. At 7:15 a.m., Detectives Joseph Schroeder and Blake Mumma entered the room. Schroeder observed that Holmes was quiet, subdued, and had his hands around his face as if he was resting his head on them. In order to establish a rapport with Holmes, Schroeder obtained Holmes' personal history information using a standard form which included name, address, date of birth, social security number, employment history, family history, place of birth, prior arrests, height, weight, military background, and schooling. In addition, Schroeder questioned Holmes about his relationship with Smith.

After the 5-to 10-minute personal information interview, Schroeder advised Holmes of his Miranda rights, reading verbatim from a "Your Rights" form, and Holmes signed the Miranda waiver. When the detectives questioned Holmes about the shooting, Holmes shook his head and said, "I think I'll just quit talking, I don't know." Mumma redirected the interrogation, and Holmes continued to talk. The interrogation ended around 10 a.m. Before the detectives left, Mumma presented Holmes with a consent to search his person form in order to obtain scrapings and wipings from his body. Holmes signed the consent.

On March 9, 1999, Holmes was charged with one count each of first-degree murder and criminal possession of a firearm. On September 3, 1999, Holmes filed a motion to suppress the statements made during the interrogation and the evidence gathered from the consent to search his person. The court held an evidentiary hearing and overruled the motion, finding that the statements, waiver of rights, and consent to search were all given voluntarily and knowingly. On September 15, 1999, a jury convicted Holmes of both counts. Holmes appealed, and on November 9, 2001, this court reversed the jury convictions and remanded his case to the district court for a new trial based on prosecutorial misconduct.

Prior to the second trial, Holmes filed a pro se motion to suppress. The court overruled the motion without an evidentiary hearing, finding that the motion had been previously heard and overruled by the court. The second jury convicted Holmes of both counts, and a hard 40 sentence was imposed for the first-degree murder, followed by a consecutive sentence of 9 months for the criminal possession of a firearm. In this appeal, Holmes contends: (1) The trial court erred in denying his motion to suppress because (a) the search of the residence was unlawful thereby invalidating his statements to police; (b) in the alternative, his statements to the police were involuntary; and (c) he invoked but was denied his Miranda rights; (2) the court erred by failing to grant an evidentiary hearing on his second motion to suppress; (3) the trial court abused its discretion in various parts of the trial; (4) the trial court erred in denying Holmes' pro se motion for ineffective assistance of counsel; (5) insufficient evidence was presented to establish premeditation; (6) the trial court failed to instruct on the effect of sympathy and prejudice; (7) insufficient evidence supported the aggravating factors for the hard 40 sentence; (8) prosecutorial misconduct occurred during closing arguments; and (9) cumulative errors require the reversal of his convictions.

(1) Denial of Motion to Suppress

(a) The search of the residence was unlawful, thereby invalidating Holmes' statements to police.

Holmes claims he did not voluntarily give his consent to search the residence because he was under the influence of drugs, held in police custody for 45 minutes prior to signing the consent, and not advised that he had the right to refuse to sign the consent. He argues that his consent to search the home was involuntary and his confession must be suppressed as fruit of the poisonous tree infected by the unlawful search and seizure of evidence from the residence.

While the State contends the search and seizure issues are not properly before this court because they were not raised by Holmes during the first trial, our review of the record establishes that the issue of his consent was litigated during the suppression hearing in the first trial. The State further argues that Holmes did not object to the consent to search at trial and thus the issue was not preserved for appeal. When a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001). Holmes failed to object to Officer Easter's testimony regarding Holmes' consent. However, because consent was raised by Holmes during his suppression hearing and this issue is so integral to his argument regarding the admissibility of his confession, we elect to address the issue.

"`The existence and voluntariness of a consent to search and seizure is a question of fact that the trier of fact must decide in light of the totality of the circumstances; the trial court's decision will not be overturned on appeal unless clearly erroneous. State v. Buckner, 223 Kan. 138, 144, 574 P.2d 918 (1977). The State must prove voluntariness by a preponderance of the evidence. 223 Kan. at 143.'" State v. Rexroat, 266 Kan. 50, 55, 966 P.2d 666 (1998) (quoting State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 [1989]).

"In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced, and whether he was...

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