State v. Thompkins, 83,872.
| Decision Date | 27 April 2001 |
| Docket Number | No. 83,872.,83,872. |
| Citation | 21 P.3d 997,271 Kan. 324 |
| Parties | STATE OF KANSAS, Appellee, v. SOLLY M. THOMPKINS, Appellant. |
| Court | Kansas Supreme Court |
Craig H. Durham, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
Defendant appealed his convictions of premeditated first-degree murder and burglary. This court affirmed the burglary conviction and reversed the murder conviction. State v. Thompkins, 263 Kan. 602, 952 P.2d 1332 (1998) (Thompkins I).
The case was remanded for new trial on the murder charge. Defendant was again convicted of premeditated first-degree murder. Defendant appeals, claiming the trial court erred by admitting (1) evidence that he was incarcerated immediately preceding the murder; (2) testimony of his post-arrest silence; and (3) evidence of marital discord. Defendant also claims the second trial violated his double jeopardy protection.
The facts of the murder of Frances Thompkins are set out in detail in Thompkins I. The facts are essentially the same facts as those in the first trial and are summarized for this opinion.
Thompkins and Frances had a tumultuous and mutually physically aggressive marriage. On two occasions, Frances had obtained restraining orders against Thompkins. Both orders were subsequently dismissed at Frances' request.
In August 1994, the couple again separated. Frances and her daughter moved into Frances' mother's home. After a violent confrontation with Thompkins on August 29, 1994, Frances applied to the district court for a third temporary protection from abuse order. Thompkins was served with a copy of the order while in the Johnson County Jail on an unrelated charge. The final restraining order, granted on October 14, 1994, ordered Thompkins not to contact Frances for 1 year.
On October 20, 1994, Frances contacted an attorney to begin divorce proceedings. There is no evidence that Thompkins was aware that Frances had filed for divorce. Some letters Thompkins wrote from jail were admitted into evidence which indicated that Thompkins was aware that Frances did not want anything to do with Thompkins again. Thompkins was released from the county jail on October 21, 1994.
On October 22, 1994, around 11:30 a.m., Frances was at Donnelly College when Thompkins arrived at the school. Thompkins approached Frances and told her that he wanted to talk with her. They went outside to a parking lot. The discussion became an argument when Frances told Thompkins she did not want anything to do with him, and she asked him to leave her alone. The two drove away from the school in Frances' car.
A short time later, Officer Rodney Green observed Frances' car parked on the side of the road. Green drove by the car. He did not notice anything unusual. When Officer Green was about 30 to 40 feet past the parked car, the car horn honked. Green put his car into reverse and returned to Frances' car. Thompkins exited the car from the passenger's side and Frances got out on the driver's side. Green noticed that Frances was injured, which probably resulted from a beating. Green pursued Thompkins.
Frances had been stabbed three times—two nonfatal wounds and one wound that cut her pulmonary artery. She had also sustained cut injuries on the palm of her right hand, some facial and head injuries, abrasions to her thighs, and some false fingernails were torn off. Frances died at the scene from blood loss.
To escape the pursuing officer, Thompkins broke into the home of an acquaintance. Officer Green and backup officers arrested him in the home. Thompkins was taken to the police station where the officers read him his Miranda rights. After initially refusing to provide biographical information to the officers, Thompkins made a number of statements, including that Frances was a "hypocrite of God" and that he did what he had to do to keep Frances. Thompkins stated that he had time to repent but that Frances did not and he had no reason to live because Frances was dead. Thompkins concluded he was the victim and Frances was not "all such a great person."
Thompkins was charged with one count of premeditated first-degree murder or, in the alternative, felony murder, as well as aggravated robbery, burglary, misdemeanor assault, and misdemeanor battery. The assault and battery charges were later dismissed.
At the conclusion of the preliminary examination, the district judge refused to bind over Thompkins on the premeditated first-degree murder count. Rather than appeal the dismissal of the premeditated first-degree murder charge, pursuant to K.S.A. 22-3602(b)(1), the State filed an amended information charging premeditated murder or in the alternative felony murder, aggravated robbery, and burglary. Prior to trial in a hearing before a judge who had not presided at the preliminary hearing, the State moved to proceed under the amended information. Although the judge denied the State's motion based on res judicata, he stated that he would allow "[a]ny evidence, as long as it's relevant, probative, and part of the res gestae, whether it deals with premeditation or felony murder," and, if at the end of trial there was sufficient evidence of premeditation, he would instruct the jury on premeditated first-degree murder. We note that there is no statutory authority for a judge to proceed in this manner.
After the State and the defendant rested, the judge determined the evidence was sufficient to instruct on both premeditated first-degree murder and felony murder. The jury convicted Thompkins of premeditated first-degree murder and burglary and acquitted him of aggravated robbery, the underlying felony of the felony-murder charge.
On appeal, this court reversed Thompkins' premeditated first-degree murder conviction because the jury convicted him of an offense the judge conducting the preliminary examination had dismissed for insufficient evidence, and on which he had not been arraigned. This court concluded, under the circumstances, Thompkins' right to procedural due process had been violated. 263 Kan. at 621. The matter was remanded for a new trial on premeditated first-degree murder. 263 Kan. at 625.
A preliminary examination was held. Thompkins was bound over for trial for premeditated first-degree murder, arraigned, retried, convicted, and sentenced to life imprisonment with parole eligibility after 25 years. This appeal follows. Our jurisdiction is pursuant to K.S.A. 22-3601(b).
Prior to trial, the prosecution filed a memorandum in support of its introduction into evidence the fact that Thompkins was incarcerated. In a pretrial conference, the prosecutor stated that she intended to introduce the evidence of Thompkins' state of mind— his "obsession" with his wife, not K.S.A. 60-455 evidence of the other crime.
The prosecutor explained that the State's theory of the case was that Thompkins killed Frances because she obtained a protection order and filed for divorce. It was at this point Thompkins realized Frances was leaving him and he could not tolerate her withdrawal from the marriage. The State contended that Thompkins' letters from jail were probative as to why he killed Frances and the fact he was incarcerated was the reason he had to wait until the day after his release to kill her. The prosecutor stated that she would not introduce evidence of why Thompkins was incarcerated and suggested that the court give a limiting instruction. The court agreed to admit the evidence to show motive and premeditation.
At trial, over defense counsel's objection, the State was permitted to introduce evidence that Thompkins was held in Johnson County and Wyandotte County jails immediately preceding the murder of Frances. The evidence was introduced by Frances' mother, who testified that she received two phone calls from Thompkins while he was in the county jails, and through letters that Thompkins sent to Frances, in which he indicated that he was in jail.
Thompkins argues this evidence denied him the right to a fair trial because its prejudicial nature outweighed its probative value. He asserts that the K.S.A. 60-455 evidence allowed the jury to speculate about the nature of his prior crimes and the fact he was in jail did not relate to the only issue before the jury—premeditation. Thompkins' argument regarding the applicability of res gestae and K.S.A. 60-455 as the basis for admitting the incarceration evidence fails to acknowledge that the trial court admitted the evidence relative to motive and opportunity, not as K.S.A. 60-455 evidence. The question is, did the prejudicial nature of the evidence outweigh its probative value?
K.S.A. 60-455 provides:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, [sic] is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
Three requirements must be satisfied to admit evidence under K.S.A. 60-455. First, the evidence is relevant to prove one of the facts specified in the statute. Second, the fact is a disputed, material fact. Third, the probative value of the evidence outweighs its potential prejudice. For examples of prior crimes evidence admitted independent of K.S.A. 60-455, see State v. Prosper, 260 Kan. 743, 750-51, 926 P.2d 231 (1996) (...
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