State v. Hollister

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 106,317
STATE OF KANSAS,
Appellee,
v.
ROGER WILLIAM HOLLISTER,
Appellant.
SYLLABUS BY THE COURT
1.
The general rule that the death of a criminal defendant does not abate the
defendant's direct appeal from his or her criminal convictions does not require an
appellate court to consider the merits of each issue raised by the deceased defendant's
appeal. Instead, an appellate court should consider whether an issue: (1) is of statewide
interest and of the nature that public policy demands a decision, such as those issues that
would exonerate the defendant; (2) remains a real controversy; or (3) is capable of
repetition. Only issues meeting one of these criteria should be addressed.
2.
After reviewing all the evidence in this case in the light most favorable to the
prosecution, we are convinced the evidence is sufficient for a rational factfinder to find
the defendant guilty beyond a reasonable doubt.
Appeal from Atchison District Court; MARTIN J. ASHER, judge. Opinion filed August 1, 2014.
Affirmed in part and dismissed in part.
1
Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief
for appellant.
Gerald R. Kuckelman, county attorney, argued the cause, and Derek Schmidt, attorney general,
was with him on the brief for appellee.
The opinion of the court was delivered by
Per Curiam: Roger W. Hollister was convicted by a jury of capital murder under
K.S.A. 21-3439(a)(2) for the intentional and premeditated killing of Patricia Kimmi,
pursuant to a contract or agreement to kill her. Hollister filed this direct appeal, but he
passed away before oral arguments were conducted. His death raises the question of
whether his appeal is moot.
In Kansas, the death of a criminal defendant does not automatically abate a
defendant's appeal. We hold, however, that this nonabatement rule does not require us to
consider all issues in an appeal. Rather, an appellate court should consider whether an
issue: (1) is of statewide interest and of the nature that public policy demands a decision,
such as those issues that would exonerate the defendant; (2) remains a real controversy;
or (3) is capable of repetition. Only issues meeting one of these criteria should be
addressed.
In this case, the only issue that meets these criteria is an issue that might clear
Hollister's name, specifically his claim that the evidence was insufficient to support his
conviction. Finding no merit to that issue, we affirm Hollister's conviction. Further,
because we conclude the remaining issues are moot, we dismiss the remainder of this
appeal.
2
FACTS AND PROCEDURAL BACKGROUND
Patricia and Eugene Kimmi had been married for 37 years when they divorced in
March 2008. When the acrimonious divorce proceedings concluded, Eugene frequently
complained to numerous individuals about the division of marital property and his
ongoing maintenance obligations. Several people heard him say that he wanted Patricia
dead. For example, Eugene's nephew, D.J. Kimmi, who had worked at the Kimmi
sawmill with Eugene for 25 years, testified he heard Eugene make such a statement at
least once a week after the divorce.
On Saturday, November 7, 2009, Patricia's best friend and her children became
concerned because Patricia had not answered either her cell phone or house phone and
had not returned their calls since the prior day. Because this was unusual, two of
Patricia's and Eugene's four children went to their mother's house on 326th Road in
Atchison County to check on her. When they arrived, they found her vehicle outside her
house and her keys, cell phone, and purse inside. Several items were out of place or
knocked over. When they could not locate their mother, they called law enforcement
officers who began a search. The officers noticed carpet threads on the deadbolt lock and
"drops of blood . . . spattered about a two foot by two foot area" of the gravel driveway.
As the search expanded, several pieces of evidence were located along 326th Road
in an area not far from Patricia's house. This area became known as the "second scene."
The items found at the second scene included a camouflage ball cap embroidered with
Saylor Insurance Service, Inc.; a bloody money clip; a bloody cologne bottle and
detached cap; a bloody velvet brown bag that had another bag inside it with eight .22
Magnum live rounds and some .22 Magnum shells; and a bloody latex glove. Law
enforcement officers also observed an area of blood-stained grass. Months later, it was
determined that a DNA profile from the ball cap was consistent with the profile of
3
Hollister and the blood on the money clip, plastic cologne cap, cologne bottle, velvet bag,
latex glove, and grass was consistent with the DNA of Patricia. Other evidence
established that Hollister used the brand of cologne found at the second scene and that he
often kept a bottle in his pickup truck. Eventually, after months of denying any
involvement in Patricia's disappearance, Hollister admitted the money clip was his.
About a mile away from the second scene, searchers found a Walmart receipt
dated November 6, 2009, which was the first day Patricia had not answered her friend's
and family's telephone calls. Officers were able to track the customer through the receipt
and question him. The customer told officers he and a friend had been drinking alongside
326th Road on that night. As they left, he drove down 326th Road and along the way saw
a red Dodge dually pickup truck beside the road. He could see legs kicking in the air
behind the truck in the grass. The legs appeared to have on green pants and cowboy
boots.
Law enforcement issued a release to the public that included pictures of the Saylor
Insurance ball cap, the money clip, and a description of the red dually pickup truck. This
led to an anonymous tip that Hollister owned all of the items described in the release.
Investigators then verified that Hollister was a customer of Saylor Insurance and had
insured a pickup truck through the agency.
Slightly over 1 month after Patricia's disappearance, Atchison County
Undersheriff Larry Myer interviewed Hollister at his farm. Hollister admitted he knew
Eugene and did business at Kimmi's sawmill, but he denied ever meeting Patricia.
Hollister also admitted that he had owned a red dually pickup truck, but he explained he
had sold it to an individual for $2,000. When asked if he owned any Saylor Insurance ball
caps, he told Myer he had several because he was friends with the owner.
4
Contrary to Hollister's statement about selling his pickup truck, law enforcement
officers learned that he had sold his truck a few days after Patricia's disappearance to the
Brinkman Brothers Chevy dealership in Tecumseh, Nebraska. The dealership accepted
Hollister's 1998 red Dodge crew cab dually pickup truck, which was described as
"extremely clean," as a trade-in when Hollister purchased a 2000 Chevy truck. The day
after the sale, Hollister called the dealership and asked if there was a money clip in his
old pickup truck; there was not. A week later, Hollister called and asked if the dealership
still had his old pickup truck because he wanted to purchase it back. The truck had not
been sold, and Hollister purchased it.
Myer interviewed Hollister again several times. During one interview, Myer told
Hollister that investigators knew he had sold his pickup truck to the Brinkman Brothers
dealership. Hollister responded by saying that he bought the truck back from the
dealership for $5,400 and then sold it for $6,500, and made $1,100 profit. When
questioned again about the Saylor Insurance ball cap, Hollister said his dog got a hold of
it and "'it's laying [sic] in the yard, part of it's still there, the dog chewed it up.'" Hollister
also showed officers a money clip that was similar to but not identical to the one found at
the second scene.
In addition, investigating officers checked into Hollister's business at Kimmi's
sawmill. D.J. remembered Hollister and specifically recalled one occasion in September
2009 when Hollister and Eugene sat in the office talking and drinking for about 45
minutes. Once Eugene started telling Hollister about the divorce, D.J. left the office. D.J.
also recalled Hollister calling the sawmill about 2 months after Patricia disappeared. D.J.
did not hear the conversation, however, because Eugene moved outside before talking to
Hollister.
A week after the telephone call, Hollister was at the sawmill when D.J. arrived for
work. After learning Eugene was not there, Hollister told D.J. he had been questioned by
5
law enforcement and had given them a DNA sample. After D.J. told Hollister that law
enforcement had taken Eugene's DNA as well, Hollister said, "I told Eugene to watch
what he wished for, that I would take care of his problem for him." D.J. asked Hollister
what he meant and Hollister replied, "I know this hit man that comes through the country
and he called me awhile back and told me that he was coming through and he would take
care of this problem for me." Hollister asked D.J. if Eugene was still paying Patricia
alimony, and D.J. indicated he was. Hollister told D.J., she "will never be
found. . . . [S]he's not here to take him back to court, so he doesn't need to keep paying
her."
Hollister then talked about the money Eugene owed him, saying, "When he came
through, it cost me $70,000.00. . . . [I]t wiped me out, it took all my money. . . . I'm here
to recoup my money." Hollister also wanted "$10,000.00 to pay for his pickup that he had
to have crushed because it matched the description of the pickup that they were looking
for and he couldn't take any chances." D.J. told Hollister that Eugene did not have that
kind of money and his bank accounts were being monitored, but Hollister replied that
Eugene had told him that he had some money stashed. Hollister told D.J. to tell Eugene
that he was looking for him, he needed his money, and if anyone asked about his visit to
the sawmill to tell them that he was there to get some oak lumber.
Later, when Myer asked Hollister about this conversation, Hollister indicated the
"younger man" at the sawmill brought up the investigation and a $70,000 payment.
Hollister denied talking about a hit man.
Law enforcement officers looking for Hollister's red dually pickup truck learned
that Hollister had recently done business with Smitty's Salvage Yard in Axtell. An officer
explained to the salvage yard's owner that investigators were looking for a red pickup
truck. The owner showed the officer a crushed and burnt cab of a four-door pickup truck
that had been anonymously left on what appeared to be a homemade grain cart; red paint
6
could still be seen around the edges of the cab. Investigators were able to identify the
vehicle identification number on one portion and a derivative number on another portion.
These numbers matched the vehicle identification number on the title of a Dodge pickup
truck belonging to Hollister.
Based on the information gathered through the investigation, law enforcement
officers obtained and executed a search warrant at Hollister's property. The executing
officers found a burn pit in which they located a muffler and other vehicle parts. Nearby,
they found backhoe tracks in the snow, leading them to dig in a ditch where they found a
buried partial bed of a pickup truck that had been burnt and smashed.
After the search, Hollister and his attorney contacted Myer and offered to make
yet another statement. Hollister began the recorded interview by saying he had previously
tried to hide what had happened because he was scared for his life and his daughter's life.
He then told officers that on the Friday night Patricia disappeared, Eugene knocked on
Hollister's door and asked to borrow Hollister's dually pickup truck. Although Hollister
did not know Eugene very well, they had done business together and Hollister trusted
him; consequently, he allowed Eugene to take the pickup truck. When Hollister woke up
Saturday morning, the pickup truck had been returned; it was extremely clean and had a
full tank of gas. A few days later, Hollister traded in the pickup truck for another at the
dealership in Nebraska.
A few days after he traded in the pickup truck, Hollister and his wife were parked
outside the John Deere dealership in Hiawatha when Eugene pulled up beside him.
Eugene asked where Hollister's red dually pickup truck was. When Hollister told him,
Eugene became very angry and told Hollister that if he cared for his life and his family's
lives he would get the pickup truck back. Eugene said he would pay $10,000 for the truck
and another $70,000 to keep Hollister's mouth shut. Hollister told Eugene he did not want
the money.
7
Nevertheless, Hollister got the pickup truck back, destroyed it, and took it out to
Smitty's Salvage Yard. Repeatedly during the interview, Hollister indicated he was afraid
and adamantly denied going with Eugene or having anything to do with Patricia's
disappearance.
Hollister was taken into custody on other charges on March 4, 2010. The next day,
Hollister and his attorney contacted Myer and offered to give another statement. In this
recorded statement, Hollister admitted to going to Patricia's house with Eugene. Hollister
indicated that in the September 2009, conversation at the sawmill, Eugene had said, "If I
could just find someone to take care of my wife for $70,000." Hollister denied saying
anything in reply.
Then, on Friday, November 6, 2009, Eugene knocked on Hollister's door asking to
borrow his dually pickup truck. Because Hollister would not let anyone borrow his truck,
he told Eugene he would drive. Eugene directed him to a house and told him to wait in
the pickup truck. Hollister saw Eugene drag a rolled-up carpet out of the house and put it
in the back of the truck. Eugene then instructed Hollister to drive west. A short distance
down the road, it sounded like something fell out of the back of the truck. Eugene told
Hollister to stop and to keep watch. While Hollister stood by the truck, another vehicle
drove by.
Eugene then pushed the roll of carpet back into the pickup truck and asked
Hollister for some pliers because he wanted to secure the load with some wire. In the
process, Eugene knocked over a box on the floorboard that contained Hollister's money
clip. Once the truck was reloaded, Eugene instructed Hollister to drive to Hollister's
house. When they arrived, Eugene slid the cargo out of Hollister's truck and into Eugene's
truck. Hollister then went inside.
8
Approximately 2 months later, Rebecca Hollister and her attorney contacted law
enforcement and reported that Rebecca had discovered potential evidence. The next day,
Rebecca directed law enforcement officers to a location near the creek on adjoining
property that belonged to Hollister's brother but was managed by Hollister. Rebecca
showed the officers a piece of green fabric and some human remains. A forensic
pathologist examined the vertebral body and the few ribs that were still attached and
noticed a line of destruction where the ribs appeared to have been cut in a straight line.
There was no way to determine whether the destruction to the bones was antemortem or
postmortem. Nor could the pathologist determine the cause of death from the remains,
but he did determine the death was a homicide. A reverse maternity test determined there
was a "99.99 percent" chance the bones were from Patricia Kimmi, mother of the Kimmi
children.
A jury hearing this evidence convicted Hollister of capital murder under K.S.A.
21-3439(a)(2) for the intentional and premeditated killing of Patricia, pursuant to a
contract or agreement to kill. The sentencing court imposed a life sentence without the
possibility of parole. Hollister timely appealed his convictions.
EFFECT OF HOLLISTER'S DEATH
At oral argument in this appeal, both counsel acknowledged that Hollister had
passed away after this appeal had been filed. This led to questioning by the court about
the status of the appeal and a subsequent motion by Hollister's appellate counsel in which
she argued that a criminal defendant's direct appeal is not abated by death. See, e.g., State
v. Salts, 288 Kan. 263, 265, 200 P.3d 464 (2009) (defendant's death 12 days after his
notice of appeal was filed did not render his direct appeal moot); State v. Burnison, 247
Kan. 19, 32, 795 P.2d 32 (1990) ("[I]n Kansas the death of a defendant does not abate his
direct appeal as it is in the interest of the public that the issues raised on appeal be
adjudicated upon the merits."); State v. Jones, 220 Kan. 136, Syl. ¶ 1, 551 P.2d 801
9
(1976) ("Death of an appellant during the pendency of his direct appeal from the
conviction of a criminal offense does not abate the appeal."); State v. Ellvin, 51 Kan. 784,
Syl. ¶ 1, 33 P. 547 (1893) (court reviewed judgment for costs related to late defendant's
conviction for selling intoxicating liquors); State v. Fisher, 37 Kan. 404, 405, 15 P. 606
(1887) (considered merits of case after defendant's death to resolve issue of costs).
By not abating an appeal on a criminal defendant's death, Kansas stands apart from
many other jurisdictions. The most common approach—one that has been adopted by the
federal courts and more state appellate courts than any other approach—is to apply the
doctrine of abatement ab initio. Under this doctrine, a criminal defendant's death abates
the appeal and all proceedings from the beginning of the criminal case. Courts adopting
this approach often reason that the purpose of a criminal proceeding is punishment, and
the death divests a court of jurisdiction to either enforce a judgment or, if a conviction is
reversed, to conduct a new trial. In another approach, several state courts have held that
the death renders the appeal moot; in these cases, the appeal is dismissed, and the
conviction stands. See State v. Burrell, 837 N.W.2d 459, 462-67 (Minn. 2013)
(discussing various approaches and listing cases using each approach).
Kansas and a few other states follow a third approach that allows an appellate
court to consider the merits of the appeal. In Jones, this court explained the reasons it was
adopting this approach. First, the court noted the "state and the defendant (not to mention
his family) have endured the strain, the tribulation and the expense of trial and appeal"
and have an interest in the final determination of a criminal case. 220 Kan. at 137.
Additionally, a "right to inherit, or to take by will or otherwise, may be affected." 220
Kan. at 137. Given these considerations, the court concluded that "under the
circumstances of this appeal," the "proceeding should be adjudicated upon the merits."
220 Kan. at 137; see Burnison, 247 Kan. at 32 (stating, "it is in the interest of the public
that the issues raised on appeal be adjudicated upon the merits").
10
More recently, this court subtly indicated not all issues will be reviewed, stating:
"The issues may be fully reviewed and adjudicated when doing so is in the public interest
or when it is in the interest of the appellant's family and estate." (Emphasis added.) State
v. Karson, 297 Kan. 634, Syl. ¶ 1, 304 P.3d 317 (2013). In Karson, the court held the
defendant's death did not abate his appeal "in light of the public interest considerations
attendant to the case." 297 Kan. at 638. Specifically, the court noted the issue touched on
the constitutionality of a statute, raised an issue common in several other appeals but
under "somewhat different" facts, and involved the review of a published Court of
Appeals decision. 297 Kan. at 637-38; see State v. Hand, 297 Kan. 734, 736, 304 P.3d
1234 (2013) (despite defendant's death, court considered merits of petition for review
concerning the sentencing judge's reliance on fair market value of property stolen because
it was in public interest).
Both Karson and Hand reached this court on petitions for review, which means
this court's review was entirely discretionary. See K.S.A. 20-3018(b); K.S.A. 60-2101(b);
Supreme Court Rule 8.03 (2013 Kan. Ct. R. Annot. 74). While this discretion might
explain the use of "may" in Karson, the context clarifies that the statement applies to any
criminal defendant's direct appeal where the defendant has died. Karson instructs us that
the general nonabatement rule—i.e., that the death of a criminal defendant does not abate
the defendant's direct appeal from his or her criminal convictions—does not require an
appellate court to consider the merits of every issue raised in the deceased defendant's
appeal.
The approach taken in these cases is consistent with this court's broader approach
to addressing moot issues in other contexts. We have explained that the "'mootness
doctrine is one of court policy.'" Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28
(2005) (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912
P.2d 716 [1996]). In exercising this policy, "'[a]n appellate court may sometimes elect to
entertain issues which, although moot, are subjects of real controversy and include issues
11
of statewide interest and importance' or 'is one capable of repetition.'" Martens, 279 Kan.
at 244 (quoting Duffy, 259 Kan. 500, Syl. ¶ 2).
In light of this caselaw, we hold that an appellate court should consider whether an
issue: (1) is of statewide interest and of the nature that public policy demands a decision,
such as those issues that would exonerate the defendant; (2) remains a real controversy;
or (3) is capable of repetition. Only issues meeting one of these criteria should be
addressed.
In this case, as the factors discussed in our past cases were explored during oral
arguments, the parties seemed to agree that the only issue that would clear Hollister's
name is an insufficiency of evidence issue; all other issues would require a remand for a
new trial if error was found, but a new trial would be impossible given Hollister's death.
Further, the State advised it did not believe there were any issues of statewide interest
alleged in the case. We agree.
Hollister's counsel attacks Hollister's convictions, raising four issues in addition to
the sufficiency of the evidence: (1) The trial court committed reversible error in failing
to instruct the jury on the lesser included offense of second-degree intentional murder; (2)
the trial court committed reversible error in modifying the element instruction on capital
murder to include aiding and abetting liability which eliminated an element of the
offense; (3) the prosecutor committed reversible misconduct by telling the jury the State
did not have to prove where the victim died; and (4) the cumulative effect of the errors
deprived Hollister of a fair trial.
These four issues are unique to this case and are heavily fact dependent. As the
State suggested, none of them would settle an issue of public policy given their case-
specific nature. Accordingly, the issue that might exonerate Hollister—whether there was
12
sufficient evidence to sustain Hollister's conviction for capital murder—is the only issue
we will consider.
EVIDENCE WAS SUFFICIENT
An appellate court's standard of review on a sufficiency issue is well known:
"When examining the sufficiency of the evidence in a criminal case, the standard of
review is whether, after reviewing all the evidence 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." State v. Ward, 292 Kan. 541, 581, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). An appellate court does not
reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting
evidence. 292 Kan. at 581.
In this case, we must apply this standard to determine whether there was sufficient
evidence of each of the elements of capital murder. As that offense was charged against
Hollister, the State had to prove beyond a reasonable doubt that Hollister intentionally
and with premeditation killed Patricia pursuant to a contract or agreement to kill her or
that Hollister was a party to a contract or agreement pursuant to which Patricia was
killed. See K.S.A. 21-3439(a)(2).
Hollister's counsel contends that so little is known about the circumstances
surrounding Patricia's disappearance and death that no rational factfinder could find each
of these elements had been proven beyond a reasonable doubt. Specifically, counsel
attacks the evidence of a contract and of premeditation. In making the argument that there
is insufficient evidence of a contract, counsel points out that it was well known that
Eugene wanted Patricia dead but there was no evidence that Hollister agreed to help
Eugene. In addition, Hollister's counsel argues there is no evidence of any payments. As
to premeditation, counsel argues there is no evidence as to the weapon involved, no
13
evidence as to whether any blows were inflicted, and no evidence of statements or threats
made by Hollister to Patricia.
Contract for Hire
The focus of Hollister's argument is on the lack of direct evidence of payments or,
more generally, of an agreement. But evidence of a contract, like other elements, can be
proven by circumstantial evidence. See State v. Lowrance, 298 Kan. 274, 297, 312 P.3d
328 (2013) ("[I]t is well established that a conviction for even the gravest offense may be
sustained by circumstantial evidence."). The question, therefore, is whether there is
evidence, including circumstantial evidence, to answer the determinative question of
whether a binding contract was entered into, which "'depends upon the intention of the
parties.'" Price v. Grimes, 234 Kan. 898, 904, 677 P.2d 969 (1984). We hold that there
was sufficient circumstantial evidence of a contract to support the jury's verdict.
Specifically, Hollister admitted that Eugene had made an offer when Eugene said,
"If I could just find someone to take care of my wife for $70,000." Other evidence
indicates Hollister took Eugene up on this offer. D.J. testified that Eugene and Hollister
had at least a 45-minute conversation in September and that Eugene talked about his
divorce during the conversation. Then, after Patricia's disappearance, Hollister told D.J.,
"[W]ell I told Eugene to watch what he wished for, that I would take care of his problem
for him." D.J. also reported that Hollister indicated he knew "this hit man that comes
through the country and he called me awhile back and told me he was coming through
and he would take care of this problem for me." The conversation moved from
possibilities to action when Hollister told D.J. that when the man came through "it cost
me $70,000. . . . [I]t wiped me out, it took all my money. . . . I'm here to recoup my
money." Hollister then made a statement that indicated he had fulfilled his part of the
contract by saying, "[T]he subject will never be found. . . . [S]he's not here to take him
back to court, so he doesn't need to keep paying her." Finally, in demanding his payment,
14
Hollister would not accept D.J.'s statement that law enforcement had control of all of
Eugene's money as an excuse for Eugene's failure to pay; according to Hollister, Eugene
had said that he had some money stashed.
Hollister's counsel also argues that the State's case is insufficient because there is
no evidence that money was ever exchanged. He suggests that the lack of consideration
implies there was no agreement. But Hollister's actions speak loudly and communicate
that he understood there to be an agreement. At most, therefore, the lack of payment
indicates that Eugene breached his portion of the contract, not that there was no
agreement. See Cornett v. Roth, 233 Kan. 936, 944, 666 P.2d 1182 (1983) ("'bilateral
contract that has either been wholly performed on one side, or in which the promises are
independent, a breach as to one or any number less than the whole of the promised acts is
generally partial'") (quoting 5 Williston on Contracts, § 1290, p. 3676 [rev. ed 1937]).
This evidence, when viewed in the light most favorable to the State, was sufficient
for a rational factfinder to determine Hollister had contracted with Eugene for the murder
of Patricia.
Premeditation
Hollister similarly focuses on the lack of direct evidence of premeditation. As he
argues, there is no direct evidence of this element, but premeditation, like other elements,
can be proven by circumstantial evidence. To assist in the evaluation of the circumstances
for proof of premeditation, this court has utilized several considerations: (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;
and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.
See State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011); State v. Scaife, 286 Kan.
614, 617-18, 186 P.3d 755 (2008); State v. Scott, 271 Kan. 103, 109, 21 P.3d 516, cert.
15
denied 534 U.S. 1047 (2001). "Not all factors must be present before premeditation can
be inferred." State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013); State v. Morton,
277 Kan. 575, 581-83, 86 P.3d 535 (2004). "In some cases, one factor, standing alone,
may be compelling evidence of premeditation." State v. Cook, 286 Kan. 1098, 1102-03,
191 P.3d 294 (2008) (stating, "This is from Tami in Wichita" before the shots were fired
obviously manifested a premeditated intent to kill); Morton, 277 Kan. at 581-83
(evidence supporting second and third factors sufficient in finding premeditation).
Hollister correctly identifies those factors for which there is no evidence in this
case: There is no evidence of the nature of the weapon used, any provocation, or any
threats or even prior contact between Hollister and Patricia. Nevertheless, Hollister's
conduct both before and after the killing and the evidence that lethal acts continued after
Patricia had been rendered helpless are factors that weigh toward a finding of
premeditation.
Most significant is the evidence we have already discussed that supports the
conclusion Hollister entered into an oral contract with Eugene to either help arrange or
participate in the killing of Patricia. In addition, Hollister admitted he was present when
Patricia was kidnapped from her home. Physical evidence substantiates his presence,
linking him to evidence found at the second scene through his DNA, his admission that
some of the articles belonged to him, and the eyewitness' description of his red dually
pickup truck. D.J.'s testimony provides evidence that Hollister knew Eugene wanted
Patricia dead. Also, even if a juror believed that Eugene had just showed up on Hollister's
doorstep and there had not been a prearranged plan, the State presented evidence
describing the route Hollister would have driven from his house to Patricia's, a route that
was described as at least a 10-minute drive. This evidence establishes that Hollister had
an opportunity to consider his actions after Eugene allegedly showed up on Hollister's
doorstep. The State also introduced evidence through D.J. establishing that Eugene was
not a strong man; rather, D.J. performed the physical labor of operating the sawmill. This
16
testimony casts doubt on Hollister's statement that he just sat in his pickup truck while
Eugene carried a rolled-up carpet out of Patricia's house, a task that common sense
suggests could not be performed by someone who had difficulty performing heavy labor.
And it was a reasonable inference that Patricia was in the carpet.
Furthermore, Hollister admits he went to great lengths to destroy his red dually
pickup truck. And circumstantial evidence, such as the location where Patricia's vertebral
bones were found, suggests he had a role in either dismembering Patricia's body or, at
least, in burying her body parts in an attempt to hide the crime.
Summary
Hence, there is evidence that Hollister premeditated his involvement with the
killing of Patricia and that he had agreed to help kill Patricia or to arrange for her murder
in exchange for money. Accordingly, viewing the evidence in the light most favorable to
the State, we hold that a rational factfinder could have found beyond a reasonable doubt
that Hollister was guilty of the offense of capital murder pursuant to an agreement or
contract to kill Patricia Kimmi.
Obviously, our conclusion does not exonerate Hollister. Thus, even if there was a
trial error on any of the issues raised by Hollister, we would remand for a retrial. Those
remaining issues are fact- and case-specific and do not raise matters of public interest.
Therefore, we do not address those issues and instead dismiss those issues as moot. See
State v. Benn, 364 Mont. 153, 274 P.3d 47 (2012).
Affirmed in part and dismissed in part.
17
***
LUCKERT, J., dissenting: Given the majority's sua sponte consideration of whether
a criminal defendant's death abates issues in the defendant's direct appeal rather than
following the past practice of freely considering all issues raised by a defendant before
his or her death, I write to express my disagreement with past decisions and the course
adopted by the majority in this case.
As the majority has explained, this court has ruled that "the death of a defendant
does not abate his direct appeal as it is in the interest of the public that the issues raised
on appeal be adjudicated upon the merits." State v. Burnison, 247 Kan. 19, 32, 795 P.2d
32 (1990). These cases ignore the reality that without the defendant there is no one to
pursue the appeal.
In other states that consider the merits of an appeal even after the defendant's
death, a substituted party carries the burden of establishing the defendant's conviction
should be reversed. See, e.g., Surland v. State, 392 Md. 17, 36, 895 A.2d 1034 (2006)
(Allowing the appeal to proceed "preserves both the presumptive validity of the judgment
and the ability of the defendant, through a substituted party appointed for his or her
benefit, to maintain the defendant's challenge to it."); Bevel v. Commonwealth, 282 Va.
468, 479, 717 S.E.2d 789 (2011) (At common law, "an attainder of felony would not be
affected by the death of the defendant" and "his executor or heirs could pursue a writ of
error in his stead."); State v. Webb, 167 Wash. 2d 470, 478, 219 P.3d 695 (2009) ("If the
substituted party appellant is successful . . . then, because remand for a retrial is
impossible, the conviction and all associated financial obligations must be abated.").
Likewise, early Kansas cases involved a substituted party. State v. Ellvin, 51 Kan.
784, 790, 33 P. 547 (1893) ("[C]osts, although incidental to the punishment inflicted,
constitute a separate civil liability in favor of the parties to whom they are due, and from
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which the estate of the defendant cannot be relieved except by a reversal of the judgment.
A review proceeds here at the instance of the administratrix, and for the benefit of the
estate. In case of a reversal, of course no new trial can be had, and necessarily no further
liability for costs can arise."); State v. Fisher, 37 Kan. 404, 405, 15 P. 606 (1887) (estate
administrator substituted for criminal defendant).
More recent Kansas cases have not discussed the need for a substituted party and
ignore the reality that Kansas statutes do not provide a criminal procedure for substituting
a party in a criminal defendant's appeal. The Burnison court, by reasoning that the public
has an interest in the appeal, essentially treated the State as the appellant and the party
with the ability to ensure the continuation of an appeal. Obviously, however, Hollister is
the appellant and, if alive, the one who would control whether an appeal proceeded.
Hollister's death leaves no one as the appellant and his attorney without a client. His
death does not transform the State—as a representative of the public—into an appellant.
The lack of a criminal procedure to facilitate the continuation of an appeal is a
procedural obstacle to the path pursued by the majority. Thus, while I agree the appeal
must be dismissed, I would dismiss the entire appeal because of this procedural defect.
In addition, rather than let the conviction stand without full appellate review, I
would follow the lead of the federal courts and most other courts and apply the doctrine
of abatement ab initio. The right to appeal is an integral part of the judicial process, and
only with the completion of an appeal is there a final adjudication of guilt or innocence.
"[A] defendant who dies pending appeal should not be deprived of the safeguards that an
appeal provides." State v. McDonald, 144 Wis. 2d 531, 536, 424 N.W.2d 411 (1988).
This case illustrates the validity of this approach. The evidence against Hollister is not
strong, which raises a strong possibility that any error would necessitate a remand.
Despite this, the majority's position leaves Hollister's conviction in place and deprives
everyone, including the public, of the safeguards of the appellate process.
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MORITZ, J., not participating.
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