State v. Thompkins

• Decision Date: 23 January 1998
• Docket Number: No. 75258,75258
• Citation: 952 P.2d 1332,263 Kan. 602
• Parties: STATE of Kansas, Appellee, v. Solly M. THOMPKINS, Appellant.
• Court: Kansas Supreme Court

Page 1332

952 P.2d 1332

263 Kan. 602

STATE of Kansas, Appellee, v. Solly M. THOMPKINS, Appellant.

No. 75258.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. The provisions of the Kansas Code of Criminal Procedure govern proceedings in all criminal cases in the courts of the state of Kansas. K.S.A. 22-2102. The Code is intended to provide for the just determination of every criminal proceeding. Its provisions are construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. K.S.A. 22-2103.

2. As related to criminal law and procedure, "substantive law" is that which declares what acts are crimes and prescribes punishment therefor, whereas "procedural law" is that which provides or regulates steps by which one who violates a criminal statute is punished.

3. Rules of practice and procedure contained in the Kansas Code of Criminal Procedure are devised to promote the ends of justice, not to defeat them, and orderly rules of procedure should not require sacrifice of the rules of fundamental justice.

4. One of the substantial rights of an individual charged with a crime is the right to due process. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.

5. Rebuttal evidence is that which is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. The use and extent of rebuttal evidence rests in the sound discretion of the trial court. The ruling of the trial court will not be ground for reversal unless it appears discretion has been abused to an appellant's prejudice.

Debra J. Wilson, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her 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.

[263 Kan. 603] LOCKETT, Justice:

Defendant Solly Thompkins appeals his convictions for first-degree premeditated murder and burglary. He contends that the trial court erred in instructing the jury on first-degree premeditated murder, failing to grant a mistrial, and admitting his probationary status into evidence.

Thompkins and his wife, Frances, had a turbulent relationship. Each had been physically aggressive with the other at various times. Frances had burned Thompkins with a curling iron and, at one point, had to be prevented from obtaining a knife to go after Thompkins. In 1991 and 1992, Frances was granted two petitions for restraining orders against Thompkins, but she later dismissed both petitions.

In August 1994, the couple separated and Frances and her daughter moved to her mother's home. Subsequently, Thompkins began removing items from the couple's home such as the television, air conditioner, and furniture. To vent her anger, Frances trashed the home. On August 29, 1994, Frances applied to the district court for a third "protection from abuse" temporary restraining order. A final restraining order, granted on October 14, 1994, ordered Thompkins to refrain from contact with Frances for 1 year. Frances then retained an attorney to represent her in a divorce.

Around 11:30 a.m. on October 22, 1994, Thompkins arrived at Donnelly College where Frances worked and was a student. When Frances' class ended, Thompkins approached her. After engaging in a heated discussion, the pair got into Frances' car and left the college. Shortly thereafter, Officer Rodney Green noticed Frances and Thompkins

sitting in a parked car. After Officer Green heard the car's horn honk, he slowed down and observed the couple struggling. Officer Green then saw Thompkins get out of the car and run. Next, Frances stepped out of the car, covered with blood

Officer Green pursued Thompkins. Thompkins ran to a private residence, kicked open the back door, and entered the home. When a backup officer knocked at the door, Thompkins appeared and stated that the home belonged to his parents. The home actually belonged to an acquaintance of Thompkins. The officers entered the house, followed Thompkins into the kitchen, and noticed [263 Kan. 604] Thompkins was wearing a woman's skirt. When the officers requested identification, Thompkins obtained identification from his trousers, which were in another room and were covered with blood. In the pocket, the officers found Frances' wedding and cocktail rings. The officers later found a bloody sweater and two black gloves belonging to Thompkins in the basement next to the washing machine.

When another police officer, Granger, arrived at the scene, he found Frances slumped over in the driver's seat of her car. Granger observed a 13-inch butcher knife lying on the ground. Attempts by paramedics to revive Frances failed, and she died at the scene. At trial, the pathologist testified that Frances had sustained a 3-inch stab wound to her right side, a 3-inch stab wound to her left chest, and a 7-inch wound that severed her pulmonary artery. She also sustained multiple abrasions and contusions to her face, blows to her head and lip, a bruise and contusion under her chin, and abrasions on her thighs. Several of her false fingernails were ripped and torn. The pathologist also noted defensive wounds on Frances' hands. When Thompkins was examined for wounds after his arrest, the only wound found was a small puncture wound on his hand. Thompkins' fingerprints were not found on the knife.

At trial, Thompkins was the sole witness for the defense. He testified that Frances was a violent individual who would resort to any weapon at hand when angry. He stated that, in the past, Frances had assaulted him with hot syrup, a skillet, several knives, and a hot curling iron.

Thompkins testified that on the fatal day, he walked to Donnelly College to tell Frances that he planned to leave town and to discuss with her the future of their daughter and the sale of their residence. Frances agreed to let him ride in her car so they could talk. After driving away from the college, Frances informed Thompkins she had filed for divorce. Thompkins stated he told Frances that as long as she was wearing his rings, she would be his wife. Frances then parked at a curb, threw her rings at him, and began a heated discussion.

During the discussion, Thompkins noticed a patrol car drive by. At that point, he testified that Frances was holding a knife. He [263 Kan. 605] stated he grabbed Frances' hand and the knife "poked her in the side." He claimed Frances threatened to kill him and, as they struggled over the knife, the knife "hit" Frances in the chest twice. Thompkins stated that he never intended to harm his wife, but only to respond to her actions. He testified that when he broke into his friend's residence, his intent was to hide from the police, not to steal.

Thompkins was charged with one count of first-degree murder under alternate theories of premeditation and felony murder, aggravated robbery (of Frances' two rings), assault and battery of Frances, burglary (of his friend's residence), and two misdemeanors. The premeditated murder charge was dismissed at the preliminary examination. After a jury trial, Thompson was convicted of first-degree premeditated murder and burglary. He appeals his convictions, claiming the trial court erred in (1) instructing the jury on first-degree premeditated murder after the judge discharged him on that charge at the preliminary hearing; (2) failing to grant a mistrial when a witness improperly referred to his post-arrest silence; and (3) admitting into evidence the fact that he was

on probation when the crime was committed. To determine the issues Thompkins raises in this appeal, it is necessary to review the proceedings prior to trial in detail

PROCEEDINGS

At the conclusion of the preliminary examination, the district judge found that since there was no evidence of premeditation, the evidence was insufficient to bind Thompkins over on the premeditated first-degree murder charge. Thompkins was bound over for trial on the other felony charges and immediately arraigned on first-degree felony murder, aggravated robbery, assault, battery, and burglary even though the State had not filed an information charging the crimes for which the defendant was bound over, as required by K.S.A. 22-2905.

After the judge dismissed the premeditated murder charge at the preliminary examination and arraigned the defendant on other charges, the State chose neither to follow the statutory procedure to appeal the dismissal of the premeditated murder charge nor to [263 Kan. 606] dismiss the complaint and file a new complaint charging premeditated murder. The State did not even file a motion requesting the judge to reconsider dismissal of the premeditated murder charge. Instead, on February 8, 1995, without having filed an information charging the crimes for which Thompkins had been bound over, the State elected to file an amended information charging Thompkins with premeditated first-degree murder as well as with the crimes for which he had been arraigned and to which he had pled not guilty at the arraignment.

On February 13, 1995, the State filed a motion to proceed under the amended information. At the subsequent hearing on the motion, the State contended that it was not asking the trial judge to reverse the other judge's ruling dismissing the premeditated murder charge at the preliminary examination, as "that matter [could] effectively be taken up on appeal by the State, if necessary." Instead, the State asked the trial judge to allow the case to proceed to trial under the amended information which charged both theories of first-degree murder, i.e., premeditated and felony murder.

In denying the State's request to proceed under the amended information, the trial judge found that...