Opinion
No. 107,919.
2013-07-19
Melvin W. HOLMES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is the sixth time Melvin W. Holmes' convictions of first-degree murder and criminal possession of a firearm have been before our appellate courts.
His hard 40 sentence and convictions were reversed by our Supreme Court based on prosecutorial misconduct and his case 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 a jury, sentenced to a hard 40 sentence, and appealed. In State v. Holmes, 278 Kan. 603, 102 P.3d 406 (2004) ( Holmes II ), his convictions were affirmed, his hard 40 sentence was vacated, and his case was remanded for resentencing.
On remand, the district court imposed a hard 25 sentence, which the Supreme Court affirmed in State v. Holmes, No. 95,085, 2006 WL 3056732 (Kan.App.2006) (unpublished opinion) ( Holmes III ).
In October 2007, Holmes filed a lengthy pro se K.S.A. 60–1507 motion seeking postconviction relief. The motion raised numerous issues which included prosecutorial misconduct; ineffective assistance of appellate counsel during his direct appeal in Holmes II, which challenged his convictions in 2004; judicial misconduct during trial; an issue concerning jury selection; and a claim of innocence.
The district court held a preliminary nonevidentiary hearing attended by counsel for Holmes and the State where the court denied Holmes any relief.
Holmes appealed but raised only the effectiveness of his counsel in Holmes II; he specifically contended that counsel had (1) failed to raise the issue of ineffective trial counsel, (2) failed to include a videotape and accompanying transcript in the appellate record, and (3) failed to file a reply brief or motion for reconsideration.
The Court of Appeals affirmed the district court's decision denying Holmes an evidentiary hearing. Holmes v. State, No. 100,666, 2009 WL 2501114 (unpublished opinion) ( Holmes IV ). Our Supreme Court granted Holmes' petition for review that requested only examination of points one and two presented to the Court of Appeals.
Our Supreme Court in Holmes v. State, 292 Kan. 271, 252 P.3d 573 (2011) ( Holmes V ), held that trial counsel's presentation of alternative theories of defense during the murder trial did not fall below an objective standard of reasonable performance, but Holmes was entitled to an evidentiary hearing on his postconviction relief motion that alleged appellate counsel was ineffective for failing to include in the record on appeal Holmes' statement to the police and the transcript of the redacted portion thereof presented to the jury.
The Holmes V opinion noted:
“[W]hen a client files additional pro se briefs with a court, the attorney must exercise reasonable professional judgment to eliminate close issues that do not merit review. For those pro se claims that have not been eliminated and are raised on appeal, counsel has the responsibility to provide a record on appeal sufficient to support them. [Citation omitted.]” 292 Kan. at 281.
In ordering the matter remanded for a hearing before the district court, the Holmes V opinion was specific in its instructions to the court below in stating as follows:
“In conclusion, we hold that the district court erred in dismissing, without an evidentiary hearing, Holmes' claim under K.S.A. 60–1507 that his appellate counsel was ineffective in failing to include the videotape and transcript in the record on appeal in Holmes II. Accordingly, this particular issue is remanded to the district court for an evidentiary hearing.
“The district court should first inquire whether appellate counsel intentionally chose not to pursue the issue—and thus chose to not provide it support in the record on appeal—as a matter of strategy or otherwise. See Moncla, 285 Kan. [at] 832 (appellate court gives wider deference to counsel in deciding what issues should be asserted on appeal). But see Rowland, 289 Kan. at 1086 (strategy cannot be automatically assumed; court must determine whether defense counsel made an informed choice or an ignorant mistake).
“If the hearing establishes deficient appellate counsel performance, the 60–1507 court should proceed to the prejudice prong. More specifically, the court should determine whether Holmes was prejudiced to the extent there is a reasonable probability that, but for counsel's failing to supply the videotape and transcript on appeal, Holmes' appeal would have been successful. See Baker, 243 Kan. 1, Syl. ¶ 2;Rowland, 289 Kan. at 1083.
“When making this prejudice determination, the 60–1507 court may examine whether the trial court had indeed erred in permitting the tape and transcript to be provided to the jury. If there was no trial error, or if it was harmless, then it follows that appellate counsel's failure to supply those materials in the record on appeal to support the claimed error cannot be prejudicial. While we ruled in Holmes II that the trial court did not so err, we have now explained that our ruling was based upon counsel's failure to provide the materials for our review. We have also explained that our ruling was additionally based upon facts as represented in the parties' briefs, not those actually contained in the record which our careful review has now revealed.” 292 Kan. at 283–84,
On January 9, 2012, the district court conducted an evidentiary hearing on Holmes' remanded case.
Holmes' appellate attorney in Holmes II testified he believed trial counsel had failed to preserve any evidentiary errors resulting from the allegedly inadequately redacted videotape by failing to timely object. In addition, appellate counsel thought that any possible error would be deemed invited error because trial counsel withdrew an earlier granted request for a K.S.A. 60–455 limiting instruction. Appellate counsel testified as follows:
“So my concern would be that the—that, first of all, it wasn't preserved by trial counsel and, secondly, the issue was actually waived by trial counsel in asking the court not to give the 60–455 instruction. So at that point it seemed that it would be simply inviting the court to make an analysis of invited error and it would be a distraction from the main issue that I thought was a winnable issue in the case, specifically the suppression issue and the sufficiency of the evidence based on premeditation.”
Appellate counsel was thoroughly and effectively cross-examined. It was admitted that based on the Supreme Court Holmes III decision, appellate counsel was the person responsible for providing the record on appeal even on behalf of the pro se client. But, appellate counsel stated he believed his job was to “present those issues that I believed to be most meritorious and to attempt to make sure that that record was complete for those issues.”
After the hearing, the court took the matter under advisement and in early February 2012 announced its ruling from the bench. The court stated it had “reviewed both the trial transcript as well as the original interview tape video as well as that transcript.” The court had “also reviewed the redacted versions of both the transcript and the video.” The judge then said:
“And I think after having done all that it's my considered opinion that we just need to cut to the chase here.
“... I'm going to skip over this whole notion of whether counsel was ineffective, did they make a mistake.... I firmly believe that after having reviewed all that, it would have made no difference so there's no prejudice that could be shown by the actions of counsel here, and I want to explain why I think that.
“When you look at the record in the case, the evidence is overwhelming and the key issue in this whole case principally is the defendant's confession. That's why when Mr. Maughan was testifying about what he was focused in upon he couldn't remember a lot of details but the thing he keyed in upon was the voluntariness of the defendant's confession, because that was the damning evidence in the case, probably over and above everything else. And that makes sense to me, because even if all the statements that he made about having been drug dealing, doing drugs, all that kind of stuff had all been excluded, you still have—you're still left with his damning confession about what happened.”
The district court judge said he realized that a lot of prejudicial stuff about some of the drug activity had not been redacted but deemed this to be “tangential.” The court noted that what it considered to be very damning evidence about a prior shooting that Holmes had been involved in had been redacted and was not on the video the jury heard. The judge concluded:
“So from my standpoint I can't make a finding of ineffective assistance of counsel in this case because I can't find the prejudice prong. I find that no matter what, no matter what the record is as it's stated, the result would not have been different and, therefore, I find that Mr. Holmes' allegations of ineffective assistance of counsel are without merit and that's going to be the order of the Court.”
From the ruling, Holmes has appealed.
Factual Background of the Case
Our Supreme Court in Holmes II set forth the basic facts in these numerous appeals in the following manner:
“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.” 278 Kan. at 607–09.
Additional facts will be set forth concerning testimony and comments at trial by counsel and the court.
Analysis of Appellate Issues
Did Holmes' appellate counsel in Holmes II render ineffective assistance in his direct appeal?
Our standard of review in this case is established by Bellamy v.. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007), where after a full evidentiary hearing on a K.S.A. 60–1507 motion, the Bellamy opinion stated:
“Under this option, the district court is required to make findings of fact and conclusions of law. Rule 183(j) (2006 Kan. Ct. R. Annot. 227). An appellate court must give deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the district court's findings. State v. Combs, 280 Kan. 45, 47, 118 P.3d 1259 (2005); Graham, 263 Kan. at 753–54. As a result, the appropriate standard of review is findings of fact and conclusions of law. Under this standard, an appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Graham, 263 Kan. at 753. Ultimately, the district court's conclusions of law and its decision to grant or deny the 60–1507 motion are reviewed using a de novo standard. Drach, 281 Kan. at 1063.”
To succeed on a claim of ineffective assistance of appellate counsel, Holmes must establish that
“(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the criminal defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.” Wright v. State, 48 Kan.App.2d 593, 601, 294 P.3d 1201 (2013).
See Mattox v. State, 293 Kan. 723, 725–26, 267 P.3d 745 (2011).
“As in the case of a claim of ineffective assistance of trial counsel, a claim of ineffective assistance of appellate counsel requires a party to establish both a performance prong and a prejudice prong in order to succeed on the claim.” Wright, 48 Kan.App.2d at 601. Additionally, on review for ineffective assistance of counsel, this court gives counsel's decisions a high measure of deference and presumes counsel's decisions were reasonable. See 48 Kan.App.2d 598–99 (quoting Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). The circumstances of this case complicate this otherwise standard inquiry.
It has been alleged that the State presented an inadequately redacted videotape to the jury in Holmes' second trial containing statements about Holmes' prior drug usage and crimes. Holmes argues here that his counsel in his direct appeal was ineffective in failing to support in the record or pursue this issue concerning whether those statements prejudiced Holmes' right to a fair trial.
Thus, we must determine first whether appellate counsel's failure to address or support the issue was objectively unreasonable. And if it was, we must determine whether, had counsel performed differently, there was a reasonable probability the claim would have succeeded on appeal. Although the question in this case is the effectiveness of appellate counsel, resolution of that question also turns on the potential merit of Holmes' underlying claim regarding the redacted videotape. See Mattox, 293 Kan. at 72;Wright, 48 Kan.App.2d at 601.
If Holmes' underlying claim lacks merit, was not properly objected to, was subject to invited error, or was harmless error, then appellate counsel's decision not to address it was not objectively unreasonable. See Holmes V, 292 Kan. at 283–84 (“If there was no trial error, or if it was harmless, then it follows that appellate counsel's failure to supply those materials in the record on appeal to support the claimed error cannot be prejudicial.”).
Appellate counsel's decision not to pursue or support within the record issues arising from the videotape played to the jury was not objectively unreasonable.
Holmes first argues that the district court disregarded the Kansas Supreme Court's mandate when it neglected to make a finding on the deficiency of counsel's performance. Although the Kansas Supreme Court ordered the district court to first inquire as to counsel's performance, it has previously noted that a claim of ineffective assistance can be disposed of solely on the basis that a defendant failed to establish prejudice. Compare Holmes V, 292 Kan. at 283 (suggesting the first inquiry is deficient performance), with Edgar v. State, 294 Kan. 828, 843, 283 P.3d 152 (2012) (noting ineffective assistance of counsel claims can be resolved solely on the basis of lack of prejudice). The district court was not disregarding the mandate when it stated: “[W]e just need to cut to the chase here. The question, in my view, is very simple and I guess I'm going to skip over this whole notion of whether counsel was ineffective.... [T]here's no prejudice that could be shown by the actions of counsel here.”
Holmes abandons this argument by pointing out that since the standard of review is de novo and the appellate court owes no deference to the district court's findings, or lack thereof, we can, on appeal, review this issue as if we were considering the question for the first time.
By going directly to the prejudice prong of ineffective assistance of appellate counsel, as the district court did, it might be argued that this assumes that counsel's performance fell below an objective standard of reasonableness.
Such is not the case here. While we do ultimately agree with the district court's decision that Holmes was not prejudiced by appellate counsel's actions, there is a serious question as to whether trial error was present when the redacted video of Holmes' interrogation/confession was played to the jury, whether it was subject to a timely objection or any other timely action, whether the error, if such existed, was harmless, and whether Holmes' trial strategy was consistent with what was heard on the videotape played to the jury and contained in the transcript which the jurors were furnished.
It is the rule of Holmes V, 292 Kan. at 281, that counsel has a responsibility to provide record support for issues raised concurrently by pro se clients of counsel has not strategically chosen to eliminate those issues. Holmes argues his appellate counsel had a duty to provide support and a proper record for his pro se contention that the videotape prejudiced his right to a fair trial.
But appellate counsel claimed to have strategically eliminated this issue. Counsel testified he believed the issue was not preserved, that it was waived by asking the court not to give the K.S.A. 60–455 limiting instruction, and that it would distract from the winnable issues that the interrogation should have been suppressed and there was not sufficient evidence to show premeditation.
Holmes argues on appeal that appellate counsel's reasons for not pursuing relief on the redacted videotape are not legitimate, that is, his performance was deficient in failing to support the issue. Holmes seems to assume the appellate counsel's actions were improper.
To preserve an evidentiary issue for appeal, the contemporaneous-objection rule requires a timely and specific objection. K.S.A. 60–404; State v. Duke, 290 Kan. 485, 487–88, 231 P.3d 558 (2010); State v. King, 288 Kan. 333, 348–49, 204 P.3d 585 (2009); State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (“If a motion in limine is granted to preclude the introduction of certain evidence at trial, and the party who obtained the favorable ruling fails to object to evidence introduced in violation of the order in limine, the failure to object results in the issue not being preserved on appeal.”).
To be sure, there were numerous discussions between counsel and the court regarding the redaction of the videotape. But, there were no objections during the 2–hour playback. Trial counsel did not raise any objections until after the jury viewed the entire redacted video. Trial counsel did not move to strike the video and instruct the jury that it was to be disregarded. Trial counsel did not ask for a mistrial or show any reason that the showing of the video justified such a ruling.
It is Holmes' burden to demonstrate the alleged deficiency of appellate counsel was not the result of a valid strategic decision. State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). Holmes suggests a plethora of inadmissible prior crime evidence throughout the video, but it is objectively reasonable to conclude that a timely objection was necessary in order to preserve the continued playing of the video as a trial error that could be raised on appeal. It is unreasonable to conclude, given the deference to which we owe to appellate counsel, that counsel was ineffective in deciding that this evidentiary issue was not preserved for appeal and that there were much better and more winnable issues to be pursued.
Holmes goes through the record in an attempt to note all the ways in which this evidentiary issue could be viewed as preserved, yet this court must make “every effort ... to eliminate the distorting effects of hindsight.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). While the Kansas Supreme Court later found the evidentiary issues Holmes raised pro se to have been preserved, it made that decision after the fact. And, that finding does not necessarily render appellate counsel's earlier decision not to pursue or support the evidentiary issues objectively unreasonable. The question here is whether counsel was objectively unreasonable in thinking at the time that the videotape issues Holmes raised were not preserved. The record contains no contemporaneous objection to any evidence presented on the videotape. The conclusion that trial counsel failed to preserve an evidentiary error stemming from the videotape is not objectively unreasonable.
Both parties concede the Kansas Supreme Court found the issues that Holmes raised in his direct appeal to be preserved. Holmes II, 278 Kan. at 623–24. In Holmes' direct appeal, the Kansas Supreme Court addressed a general complaint that the district court abused its discretion in admitting evidence and also an evidentiary issue related to due process. Holmes raised both these evidentiary issues pro se. The court found any error to be harmless. Holmes II, 278 Kan. at 625–26. In this appeal however, Holmes indicates appellate counsel should have raised “[t]he issue ... whether the violation of the in limine order prejudiced Mr. Holmes to the extent that it deprived him of a fair trial in violation of the Sixth Amendment to the United States Constitution.” But, Holmes never raised a Sixth Amendment issue related to the videotape in his direct appeal. It is not within the proper scope of this appeal. This court, upon mandate by the Kansas Supreme Court, must decide whether appellate counsel was ineffective for failing “to support the claimed error”—the claimed error was not a Sixth Amendment claim concerning the violation of the order in limine. Holmes V, 292 Kan. at 283–84.
Holmes justifiably takes issue with appellate counsel's testimony that he does not recall reviewing the videotape presented to the jury. This may be an oversight, but when you consider the decision had been reached that the record did not reveal a contemporaneous objection to the evidence on the videotape, a decision not to have listened to it or read the transcript does not fall outside the broad sphere of reasonable professional conduct.
There is a serious question about the invited error testimony of the appellate counsel. During the direct appeal in Holmes II both the State and appellate counsel represented to the court that the district court had actually given a K.S.A. 60–455 limiting instruction. Appellate counsel appears to now know that Holmes' trial counsel asked for the instruction not to be given, but he could not have based his decision not to raise or support the videotape issue on the withdrawal of the request for a limiting instruction when he believed a limited instruction had been given.
Ultimately, we resolve the performance prong in favor of appellate counsel based on the lack of a contemporaneous objection to the redacted videotape at trial, but not without difficulty. Nevertheless, even if counsel was deficient, the district court correctly held that Holmes fails to show prejudice.
Even if appellate counsel's performance was deficient, Holmes has failed to establish prejudice.
As our Supreme Court directed in Holmes V:
“If the hearing establishes deficient appellate counsel performance, the 60–1507 court should proceed to the prejudice prong. More specifically, the court should determine whether Holmes was prejudiced to the extent there is a reasonable probability that, but for counsel's failing to supply the videotape and transcript on appeal, Holmes' appeal would have been successful. [Citations omitted.]” 292 Kan. at 283.
The district court found in Holmes' remanded K.S.A. 60–1507 hearing that Holmes suffered no prejudice because his voluntary confession coupled with the physical evidence provided overwhelming evidence of his guilt.
As we earlier said with reference to our standard of review, we review the district court's factual findings for substantial competent evidence and its legal conclusions de novo. Bellamy, 285 Kan. at 354–55.
The district court found Holmes' confession to the murder particularly damning and that other evidence also overwhelmingly supported the verdict regardless of the allegedly inadmissible evidence, i.e., it found harmless error. Likewise, in Holmes' direct review, the Kansas Supreme Court had already found the evidence sufficient to support a conviction for first-degree murder. Holmes II, 278 Kan. at 631–34. In doing so, the Kansas Supreme Court looked at five factors that can show premeditation: “(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.” 278 Kan. at 632–33. Overwhelming evidence supported four out of five of these factors—and all of this evidence would have been admitted even if the video had been completely redacted.
Holmes used a gun which he testified he believed to be harmful. Holmes also admitted that he was tired of Glenda “talking shit” so he hit her in the head with a hammer, unprovoked. After Glenda got up to possibly defend herself from further hammer attacks, Holmes grabbed her, threw her on the ground, subdued her, and shot her point blank in the chest with her gun. Then, figuring he was going to jail for the rest of his life, Holmes consumed the rest of his drugs before calling 911 to turn himself in. Furthermore, he testified that after gaining control of Glenda and the gun, Holmes told Glenda he “would” or “could” kill her. He claimed at trial that he was warning her of the danger in an attempt to get her to stop struggling. But in his confession which the jury would have heard regardless of the redactions, Holmes said:
“I throwed her, I threw her down.... I, I had, I think by this time I had got control of [the gun]. I got, reached it.... And I just had it like this up against her. I just, like I said, I, I, you know, I'll just kill you if you, I don't know what you trippin' on, why you doin' me like this and ... doin' the stuff and I just clicked it and it, it just shot ... she didn't say nothing. She's just like ... blood and stuff comin' out of her mouth.... I just, oh, I just tripped.... I got up. I had some, I had probably about 40, 40, 40 dollars more dope and two pills of heroine and I just said oh God, I'm goin' to jail for the rest of my life. I might as well just, I basically, ah, tried to do enough where, the cocaine was good but it wasn't good enough to kill me evidently ‘cause I did probably about 40, 40 some dollars worth and two pills of heroine and just dialed 911.”
At trial, Holmes explained he did not think the gun would fire when he pulled the trigger because it had clicked without firing during the struggle. He claimed he never intended to threaten Glenda, he was just trying to calm the situation by letting her know he might accidently kill her while they fought.
He argues in this appeal that his entire defense was based on his credibility, which he alleges was destroyed by what he said on the redacted videotape.
But Holmes specifically testified at trial about his history of selling and using drugs, and he tried to use that testimony in his defense. As background to their relationship, Holmes testified he had known Glenda since the early 1980's when he was one of her customers. And when they first got together in 1996, he began providing her drugs because he had them and did not want her to have to obtain them from someone else. Prior to Glenda's death, he testified that he had sold all his things to support their drug habit. This upset Glenda and she complained that she “wanted the old Melvin back, the one that was ... had all the stuff; the cars, the money, the drugs, and all his stuff.... It was like she was trying to get me to get back into the money mode of things and get back to start hustling.” Moreover, he said he had recently gone to Las Vegas to try to get clean so he could “come back and start hustlin' and getting' back some of the stuff” he had lost. He also explained why Glenda had the gun that night; when he and Glenda used drugs she would often become paranoid and grab knives or her gun.
In light of this testimony, Holmes attempted to negate premeditation with intoxication, claiming he was “so stoned and so high that night that it [was] beyond belief that he could have formed the premeditation to kill Glenda. His history with drugs was relevant, and he attempted to use it to his advantage. Additionally, he attempted to mitigate the degree of murder by discussing his and Glenda's drug history which revealed why they ended up in an altercation and why he was worried about the gun. The evidence on the videotape about which Holmes now complains was not so contrary to his testimonial defense so that it would have destroyed his credibility.
There were statements on the videotaped confession that provided more detail than necessary about Holmes' illegal actions in supporting his drug habit. Nevertheless, we cannot say that substantial competent evidence did not support the district court's finding that Holmes' confession and all the physical facts overwhelmingly proved guilt beyond a reasonable doubt.
The district court correctly found that based on everything in the records which the court examined, Holmes was not prejudiced to the extent there is a reasonable probability that but for counsel's failure to supply the videotape and transcript on appeal, Holmes' appeal would have been successful.
Violation of the order in limine was not an issue before the district court and is not an issue properly before our court
In this appeal, Holmes attempts to raise a new issue and contends the prosecutor violated the order in limine which prejudiced his right to a fair trial.
Our Supreme Court in Holmes V, 292 Kan. at 283, remanded Holmes' K.S.A. 60–1507 motion for a hearing specific to the question of whether appellate counsel was ineffective for failing to include the redacted video and transcript in the record.
Holmes never complained about the violation of the motion in limine in his direct appeal, Holmes II, 278 Kan. 603, and it is not a proper issue to be considered in this appeal. It was not an issue which was reviewable by the district court in the remand hearing, and it is not an issue properly before our court.
For all the reasons above set forth, the district court is affirmed.