IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,420
STATE OF KANSAS,
Appellee,
v.
MELVIN W. HOLMES ,
Appellant.
SYLLABUS BY THE COURT
1. The existence and voluntariness of a consent to search is a question of fact for the trier of fact based upon the totality of the circumstances; the trial court's decision will not be overturned on appeal unless clearly erroneous. The State must prove voluntariness by a preponderance of the evidence. In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced and whether the defendant was informed of his or her rights. The individual's mental state is also a factor in determining the voluntariness of his or her consent to search. Knowledge of the right to refuse consent is not required for a finding of voluntariness.
2. A determination that a statement was freely, voluntarily, and intelligently given will be upheld if there is substantial competent evidence to support such a conclusion. In making the factual review, the appellate courts will not reweigh the evidence and will give deference to the factual findings of the trial court. The legal conclusion drawn from those facts is subject to de novo review.
3. To determine whether a defendant's confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and the manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was the product of the free and independent will of the accused.
4. Under Miranda, a suspect must unambiguously request counsel so that a reasonable police officer in those circumstances would understand the statement to be a request for an attorney. The same rule applies to the right to remain silent. When a suspect makes a statement which is ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may but is not required to ask clarifying questions and may continue the questioning.
5. The trial court may reentertain an earlier motion to suppress which has been denied. The decision to rehear an earlier motion is a matter which lies within the sound discretion of the trial court. Discretion is abused when no reasonable person would agree with the trial court.
6. While a party has the right to represent himself or herself or be represented by counsel, he or she does not have the right to a hybrid representation.
7. Normally, a motion to suppress evidence, when made before trial, will be heard once and disposed of; however, if at trial new or additional evidence is produced bearing on the issue or substantially affecting the credibility of evidence adduced at pretrial hearing, K.S.A. 22-3216 authorizes reentertainment of the motion in the court's discretion.
8. An issue which is not adequately briefed is deemed abandoned.
9. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.
10. The admission of evidence lies within the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.
11. When reviewing a constitutional challenge to the admission of evidence, the appellate court applies the federal constitutional rule. Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
12. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court.
13. Motions for new trials, like many K.S.A. 2003 Supp. 60-1507 motions, may be meritless and thus, not entitled to evidentiary hearings. However, the district court must set forth its findings and conclusions regarding such a motion in order that meaningful appellate review may be conducted.
14. When faced with a motion alleging ineffective assistance of counsel, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised; if the findings are in the negative, the court may summarily deny the motion. The trial court's actions in summarily denying a motion for a new trial based on ineffective assistance of counsel are reviewed for an abuse of discretion.
15. When acting on a motion for a new trial, the procedure is comparable to the procedure for a K.S.A. 2003 Supp. 60-1507 motion. When acting on a 60-1507 motion, the court may determine that potential issues of fact are raised in the motion supported by files and record and hold a preliminary hearing to determine if the issues in the motion are substantial. Where the 60-1507 motion alleges facts which do not appear in the original record, which if true would entitle the movant to relief, and it identifies readily available witnesses or other sources of evidence which support such relief, a hearing must be held for a determination of whether the movant is entitled to relief.
16. To support a claim of inadequate representation, the defendant bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy. The failure to present expert testimony resulting from reasonable trial strategy does not necessarily constitute deficient assistance for purposes of a claim of ineffective assistance of counsel. The trial court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court and should be the first to make a determination on such an issue.
17. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
18. Premeditation is a state of mind and may be inferred from the established circumstances of the case, provided the inference is a reasonable one. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. Premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.
19. In a criminal action, a trial court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.
20. Where the sufficiency of the evidence for establishing an aggravating circumstance under K.S.A. 2003 Supp. 21-4636 is challenged, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance.
21. All murders are heinous, atrocious, and cruel; however, exceptional circumstances must exist before a murder can be classified as such under K.S.A. 2003 Supp. 21-4636(f). The hard 40 sentence should be reserved for special cases; otherwise, the legislature would have mandated the hard 40 sentence in all first-degree murder cases. Standing alone, the fact that the cause of death was a shooting is not enough to rise to the level of an especially heinous, atrocious, or cruel manner for hard 40 sentencing purposes.
22. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases.
23. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
Appeal from Sedgwick district court, JAMES FLEETWOOD, judge. Opinion filed December 17, 2004. Convictions affirmed, sentence vacated, and case remanded with directions.
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 informed of his rights. [Citation omitted.]" Ruden, 245 Kan. at 105. The individual's mental state is also a factor in determining the voluntariness of his or her consent to search. See United States v. Watson, 423 U.S. 411, 424-25, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976).
The evidence admitted during Holmes' motion to suppress, the testimony of Officer Easter regarding Holmes' signing the consent to search, and the absence of any evidence indicating that Holmes' consent to search was anything but his free and voluntary choice support the determination that Holmes' consent was voluntary. Knowledge of the right to refuse consent is not required for a finding of voluntariness. See Watson, 423 U.S. at 424-25; Schneckloth v. Bustamonte, 412 U.S. 218, 234, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Based upon the totality of all the circumstances, including the testimony elicited at the hearing on Holmes' motion to suppress in his first trial as set forth below, we conclude that the trial court was correct in its determination that the consent was voluntary and the evidence seized was properly admitted into evidence. See State v. Wimberly, 246 Kan. 200, 210-11, 787 P.2d 729 (1990). Thus, the search of the residence was correctly based upon Holmes' voluntary consent to search. We therefore reject Holmes' argument that his confession be suppressed under the fruit of the poisonous tree doctrine.
(b) In the alternative, Holmes' statements to the police were involuntary.
Holmes contends that his confession must be suppressed as involuntary for the following reasons: (1) He was still under the influence of the drugs; (2) he was suffering from sleep deprivation at the time he was read his Miranda rights; (3) officers failed to honor his Miranda rights after he expressed a desire to stop talking; (4) he was held in the interrogation room alone; and (5) he was emotionally grieving over the death of the victim.
In regard to our scope of review as to whether Holmes' confession was voluntary, the determination that a statement was freely, voluntarily, and intelligently given will be upheld if there is substantial competent evidence to support such a conclusion. In making the factual review, the appellate courts will not reweigh the evidence and will give deference to the factual findings of the trial court. The legal conclusion drawn from those facts is subject to de novo review. State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003).
"To determine whether a defendant's confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and the manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was the product of the free and independent will of the accused." White, 275 Kan. 580, Syl. ¶ 8.
The question of whether Holmes' confession was the product of his free and independent will is primarily dependent upon the facts surrounding the statements given. The statements given by Holmes were videotaped. A redacted version of the videotape was played to the jury, and the jury was given a transcript. However, Holmes failed to include these exhibits in the record on appeal. The burden is on Holmes to furnish a record which affirmatively shows that prejudicial error occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003).
The available evidence regarding Holmes' confession supports the conclusion that his confession was voluntary. Officers Schroeder and Mumma entered the interrogation room 1 hour after Holmes was placed there by Officer Easter and over 2 hours after Holmes' last possible drug use based upon Holmes' call to 911. Schroeder testified that Holmes did not display any signs that he was incapacitated. Holmes was coherent, able to answer questions and speak with the detectives logically, and demonstrated the ability to recall past events. However, Holmes did appear tired and answered slowly during the personal history interview, and Schroeder did not explain to Holmes the consequences of waiving his Miranda rights.
In addition, Mumma testified that Holmes did not indicate that he was sick but did inform the detectives that he had used a large amount of drugs within the last 24 hours. Mumma did not explain to Holmes the importance of the rights he was giving up believing that they were self-explanatory. However, Mumma noted that Holmes stated that he had previously been Mirandized during other investigations.
Holmes argues that his mental condition rendered his confession involuntary. See State v. McCorkendale, 267 Kan. 263, Syl. ¶ 3, 979 P.2d 1239 (1999) (Mental condition is a factor to be considered in determining the voluntariness of a confession.) Holmes points to evidence of substantial drug use over the prior 24-hour period, sleep deprivation, emotional grief over his girlfriend's death, and her blood being on him, which added to the circumstances showing that he lacked the mental capacity to waive his rights. He contends that these circumstances produced an environment where a free, voluntary, and intelligently considered waiver was impossible.
(1) Drug use
Holmes contends that his drug use impaired his ability to voluntarily give his confession. In response, the State cites two cases in arguing that Holmes' drug use did not render his confession involuntary. In State v. Jacques, 270 Kan. 173, 189, 14 P.3d 409 (2000), the court determined that Jacques' confession given after he had used cocaine was voluntary because he was "able to answer questions in a coherent manner, follow the conversation, understand what was being asked of him, had experience with the Miranda form, and had been questioned by the police on a previous occasion." As such, Jacques' use of cocaine prior to being questioned did not automatically require the trial court to suppress statements made during investigation. 270 Kan. at 188.
In State v. Harden, 206 Kan. 365, 480 P.2d 53 (1971), Harden was under the influence of alcohol during the confession. The detectives could not detect that the drinking interfered with his responses or understanding of questions because his answers were very precise and normal. The Harden court concluded that the defendant's mental condition had not been impaired to the extent that the statement was involuntary. 206 Kan. at 370-72.
We believe that this case is most analogous to White, 275 Kan. 580, a case not cited by either party. White testified that he was high on "wet" (cigarette or marijuana dipped in chemicals such as PCP or formaldehyde) at the time of his interrogation by the detectives. One detective testified that White was coherent, wide awake, and showed no signs of being under the influence of "wet" (typically having a strong chemical smell, being very violent, and exhibiting extremely bizarre and rude behavior). The court declined to reweigh the evidence and found substantial evidence supported the district court's finding that the statement was voluntarily made. 275 Kan. at 597-98.
In this case, the detectives testified that Holmes appeared coherent, answered questions rationally, and recalled events leading up to the shooting. In addition, he was cooperative with the detectives and showed no signs of being under the influence of drugs except for appearing tired. Holmes further argues that his drug use limited his ability to give consent and analogizes his drug impairment to cases where a person was raped, where a person blacked out, or where a person was intoxicated and unable to move or speak. In light of the more relevant authority just discussed, the court need not draw these comparisons to the cases Holmes cites. Substantial evidence supports the trial court's findings that Holmes' statements were not involuntary based on his drug use and were knowingly given.
(2) Sleep deprivation
Holmes argues that "sleep deprivation plays tricks on the mind [and] can only be seen as a period of great instability for any man making him a ready victim for an inquisition." The State responds that Holmes had approximately 4 to 5 hours of sleep the night before. Neither party cites any authority regarding what role sleep deprivation plays on the voluntariness of a confession.
In State v. Crawford, 253 Kan. 629, 643-44, 861 P.2d 791 (1993), Crawford argued that his "will was overborne" due to lack of sleep and use of cocaine. The officers would not allow him to sleep and threatened to "whop" him if he did not answer questions. One officer testified he never saw Crawford sleeping but "'saw him put his head down, look down at the desk, but . . . the interview continued and he continued to respond to questions.'" 253 Kan. at 644. The Crawford court found under the totality of the circumstances that despite claims of being under the influence of cocaine, sleep deprivation, and coercion, Crawford's statements were voluntary. 253 Kan. at 643-45. See also State v. William, 248 Kan. 389, 410, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (confession was voluntary where the defendant did not ask for sleep and the evidence did not indicate that the officers promised the defendant he could go to sleep as soon as he confessed).
In this case, the detectives testified that during the interrogation Holmes stated that he habitually slept for 4-to 5-hour intervals. However, the detectives observed that even though Holmes continued to answer questions during the interrogation, he appeared tired and rested his head on his hands at times. Without evidence that Holmes asked to sleep or that he was not allowed to sleep, we cannot conclude that sleep deprivation rendered his statement involuntary.
(3) Isolated in police custody
Holmes was isolated in police custody for 1 hour and 9 minutes before the detectives entered the interview room at 7:15 a.m. Miranda rights were given approximately 15 minutes afterwards. The interrogation lasted until 10 a.m., and Holmes was secured to the table and floor in isolation until 11:45 a.m. Between 11:45 a.m. and 12:50 p.m., Holmes signed the consent to search his person and was processed for those items. The second interview, which began at 1 p.m. and ended 15 minutes later, involved questions regarding how to contact Smith's daughter. At 1:22 p.m., Holmes was taken to a jail cell.
Holmes argues that the fact he was isolated in police custody when he was asked to confess was "inherently coercive," even though he admits there was no evidence of overt coercion on the detectives' part. The State responds that since the inte