*1 99,961 No. Lloyd Kansas, Appellee, State v. Charles III, Appellant. Hollingsworth, (221 1122) *2 filed Opinion December Office, L.L.C., Wichita, and was Law of the cause argued Nancy Ogle, Ogle for the briefs on appellant. cause, Geier, district and Chadwick E. assistant attorney, argued J. Jason Six, with him on the and Steve were district attorney, attorney general, Taylor, brief for appellee. of the court was delivered by opinion Nuss, codefen- This case is the third in a series appeals by J.: Owen, of David an advocate dants involved in the killing June
for the For the contributions Charles homeless. Holling- Lloyd sworth, III, murder he was convicted of and felony kidnapping. 22-3601(b)(l), Our of his direct is under K.S.A. jurisdiction appeal conviction of an crime. off-grid are as
The issues and on our appeal, accompanying holdings, follows:
1. Did err Hol- the trial court concluding their lingsworth prоvided police during investigation This issue voluntarily given? preserved appeal. 2. Did trial court err in evidence of Holling- admitting mo- sworth’s warrant under K.S.A. 60-455 as outstanding proof tive or intent? No. we affirm.
Accordingly,
FACTS
and
was convicted in
2007 for
murder
felony
July
in association with the
of David Owen. Two
kidnapping
killing
incident,
codefendants involved in the same
Kimberly Sharp
Baker,
Carl
murder;
Lee
have also
convicted
been
of first-degree
their convictions have been
affirmed
See State v.
appeal.
Sharp,
(2009);
Baker,
P.3d 590
Owen was an advocate on homelessness issues and visited several homeless around the summer of 2006. Dur- camps Topeka during visits, these residents to ing attempted persuade camp call their families to reconcile differences and resume past possibly To these Owen permanent living arrangements. accomplish goals, carried a black satchel several cell containing phones prepaid cards. He would hand out the cards at phone phone camps the residents to call relatives. encourage *3 In Owen a visited homeless the Kansas by camp mid-June River in where Cor- Topeka Hollingsworth, Kimberly Sharp, John nell, and Carl Lee Baker were These four individuals be- living. came when Owen Baker and en- agitated noticeably approached him to call leave; home. Baker told Owen to Owen couraged threatened to call the and reached into his satchel for a cell police phone. satchel,
When Owen reached into his Hollingsworth grabbed Owen’s hand and it out of the then Owen was hold- pulled bag. By a cell Owen’s and arm knocked ing phone. Hollingsworth jerked the slammed Owen to the phone ground. Hollingswоrth him and slammed him onto a bench. ground, picked up, occurred, As these events looked Owen’s satchel Sharp through and found of homeless that Owen photographs camps apparently ransacked when the homeless individuals refused to fiveelsewhere. She started the and other satchel items a burning photographs firepit. Owen and walked him outside the
Hollingsworth grabbed camp. Owen threatened to cаll the and again police, Hollingsworth a hatchet that had stuck in been a tree. followed grabbed Sharp Owen Hollingsworth dragged away.
Once the outside asked for Baker camp, Hollingsworth rope. retrieved one from his tent and it to Cornell. When Cornell gave was to deliver the Owen rope, kneeling
approached Hollingsworth the stood behind Owen on the holding Hollingsworth ground. to tie Owen told Cornell hatchet. up they going Sharp him outside with the and make mosquitoes. sleep Owen to the main with back camp brought Hollingsworth tied was around hands bound behind his back. Owen’s rope hands. sat Owen and back down Owen’s neck Hollingsworth in Owen’s mouth. and down on bench put gag Baker and sat down this task With 'Hollingsworth accomplished, them, with and rolled they Taking cigarettes cigarettes. him over the the bound and Owen gagged dragged grabbed dike, field, into a area. tied across a wooded Hollingsworth a tree. and secured his head to over Owen’s head Holling- rope feet, him to sit tied which forced sworth then Owen’s against Owen to tree his feet lifted. This would cause with strangle rigging if his feet dropped. Baker When returned Sharp camp. that he was how Owen was
asked doing, Hollingsworth responded was blue” when dead because “he now” they by turning “probably left him. Owen four times over returned to chеck on checked, time Owen
next 2Vzhours. The fourth an- and took it to dead. and Baker untied body remain hidden from other where it would location hoped they authorities. found law enforcement
Owen’s July body *4 The near the Kansas River. prevented body’s decomposition The the cause of death. examiner from definitively determining however, that was a cause. examiner likely asphyxiation opined, Detective Michаel Barron After the of Owen’s body, discovery Green interviewed Ron of the Police July Topeka Department the homeless indicated that he had been at 2006. Green camp Baker, and of the Hollingsworth, part episode implicated during Baker, and death. and Cornell in Owen’s eventual Sharp, Sharp, law arrested that same and day brought Hollingsworth enforcement center for questioning.
Before would he wanted Hollingsworth speak police, that at also the law enforcement proof being questioned Sharp center. He therefore told Detective Barron that he would explain if what Owen Barron first asked what she happened only Sharp call would him in his “native After Bar- tongue.” consulting Sharp, ron told that said name was Sharp Hollingsworth Hollingsworth’s “Kusama.” information,
After this Detective receiving Hollingsworth gave a Barron detailed account of events that led to Owen’s death. Barron took to the homeless subsequently Hollingsworth camps, and reenacted crime and explained he made the initial interview. Both the interview and the during reenactment were of those videos were videotaped, portions later for the trial. at also played jury provided written statement. The entire interview process, including reenactment, 7 hours. spanned filed a se motion to his statements pro suppress video,
and reenactment that under stress due to arguing the events in and due to his at the time conditions question living of his arrest. The State v. Denno requested hearing Jackson determine the voluntariness his statements. v. See Jackson Denno, 378 U.S. 12 L. Ed. 2d 84 S. Ct.
After Barron, from trial Detective hearing testimony judge ruled that statements and reenactments on Hollingsworth’s July 13, 2006, were made” and “completely voluntary intelligently thus could be used trial.
The State later filed a notice of intent to evidence under produce K.S.A. 60-455. In the State to introduce evidence particular, sought had an warrant at the time outstanding Owen did not want Owen to episode explain why Hollingsworth call the At the issue, close of on the the trial court police. hearing ruled that the evidence of warrant was admissible Hollingsworth’s under K.S.A. 60-455 to motive intent for the kid- prove napping. found murder and kid- jury Hollingsworth guilty felony He was sentenced to consecutive sentences of life im-
napping.
1255 206 months’ conviction and the murder for imprison- prisonment conviction. ment for the kidnapping the as will be added More facts analysis. necessary
ANALYSIS the issue did not Issue 1: preserve appeal their in- to the he whether the statements police provided during were voluntarily given. vestigation erred when it ad- first that trial court claims handwritten and statements evidence his mitted into videotaped his well as video of his interrogation police given during death. Owen’s of the events reenactment According leading up these were not under voluntary Hollingsworth, 289 210 See State v. Kan. of the circumstances. Sharp, totality (voluntariness a must be determined (2009) of confession circumstances; of the this ultimate determination under the totality review). de novo is a conclusion requiring appellate legal were not claims that his statements specifically hours; (2) (1) the detec- the interview lasted because voluntary diabetic, a and tives that knew throughout forth; (3) made interview, rock and comments he would back life was worth the interview that living, indicating throughout old; mind; (4) he was 18 that he in a state of was not sane years (5) Barron what and he had asked Detective to ask Sharp Holling- in “native even sworth’s name was his though Holling- tongue” that he was sworth not thinking English, indicating only spoke “red that there several further clearly. Hollingsworth argues have interview that should indicated detectives flags” that he influenced “quiet[,] young[,] apparently older codefendants.” significantly a the issue was not
The State
preserved through
responds
thus
may
contеmporaneous evidentiary objection
specific
60-404;
not be
on
K.S.A.
see
raised
appeal.
Bryant,
rule,
(2008) (“As
Hollingsworth acknowledges objections. he nevertheless contends his should be “to addressed argument denial of fundamental as in v. State prevent rights” acknowlеdged 201, 206, 145 282 Kan. P.3d 1 In Hol Anthony, particular, that the of voluntariness lingsworth argues question implicates Fifth Amendment self-incrimination. right against Richmond,
We
addressed similar
in
v.
State
289 Kan.
argument
419, 428-30, 212
(2009). There,
P.3d 165
the defendant objected
to
admission of evidence at trial on the basis of K.S.A. 60-455.
60-455,
On
he not
but also the additional bases
appeal,
only argued
60-447
of
and 60-445. We refused to address the
asserted
newly
on the merits because
had not been
grounds
they
timely preserved
with
at trial. We further refused
corresponding, specific objections
to
rule, i.e.,
the asserted
to our
the need to serve
apply
exceptions
or,
here,
the ends of
as
to
denial of fundamental
justice
prevent
Richmond,
Hollingsworth Without review this issue on should timely specific appeal. has not been his statements the voluntariness of properly objection, this court’s review. preserved Hol- evidence did not err in 2: The trial court admitting Issue of 60-455 as warrant under K.S.A. proof outstanding
lingsworth’s of motive or intent. erred in that the trial court next admitting argues K.S.A. 60-455 as warrant under
evidence of his proof outstanding intent. of his or motive Barron, indi- Detective his interview by
During when in to Owen’s cated that he decided kidnapping participate the rea- asked whether Barron Owen mentioned calling police. not want Owen did son involving police that this indeed indicated “the warrants.” because of the reason. 2006 stated: in effect in of K.S.A. 60-455 The version June civil a crime or wrong that a committed 60-447 еvidence person to K.S.A. “Subject occasion, to commit his or her is inadmissible to disposition prove on specified committed an inference that the the basis for person or civil crime wrong but, K.S.A. occasion subject on another another crime or civil specified wrong some other when relevant is admissible prove and 60-448 such evidence 60-455 motive, intent, material fact including opportunity, preparation, plan, knowledge, absence of or or mistake accident.” identify We observe that the amended the statute effective legislature April however, 2009. Neither has filed letter of party, supplemental (2008 Court 6.09 Rule Kan. Ct. R. pursuant authority Supreme 47) Annot. the amendments’ relevance to the issues before arguing us. whether evidence was admitted
Determining
properly
pursuant
60-455
K.S.A.
several
State v.
282 Kan.
rеquires
steps.
Gunby,
(2006).
evidence is
fact,
relevant to
i.e.,
material
prove
disputed
whether it has
in reason to
K.S.A.
fact.
“any tendency
prove”
60-401(b); Reid,
The court must next determine whether the
value of
probative
the evidence
the
for
undue
outweighs
potential
producing
preju-
Reid,
dice.
Hollingsworth only argues step in erred that the value the of warrants evidence finding probative the for undue Accord- outweighed potential producing prejudice. for admit this evidence court’s decision to we review the ingly, Reid, 286 Kan. at of discretion. abuse the that issue of voluntariness concluded the We previously was not three statements police preserved Hollingsworth’s their admission into evidence review. Accordingly, appеllate His and written statements now oral cannot be given challenged. in him the the station kidnapping, clearly implicated police abuse, His handwritten statement and death of Owen. provides: the the about me out of woods came to calling “David talking getting camp started me alone. He and to leave persisted, I asked him not please [to] police. (his So him and for what I still do not know. I into the grabbed bag) reaching bag I took him down to the river his hands Then sat him down tied together. or the don’t slouch or suffocate could him to a tree. I told him you pull tied you’ll I on him out and self free. left I checked from behind set knot fingers your your I him a fourth time and he was checked on 3x’sand he still breathing. alright the KS river. I burned I moved into the brush along dead. So his body higher up his and his all belongings things.” personal at the home- reenactment of events Hollingswоrth’s videotaped elements him. Various further less incriminating camp implicated the reenactment were corroborated these statements and by Cornell, evi- well as certain of defendant testimony physical dence. warrant would be
Evidence of prej- Hollingsworth’s outstanding fact not nec- criminal case. This alone does udicial to him his conclusion, however, that the evidence should lead essаrily the State been all evidence have excluded. Virtually presented by to the de- is to be criminal prejudicial during prosecution going is whether the trial court fendant. before this court question the evidence was not un- its discretion in abused determining Reid, Evidence at 503. is unduly prej- duly prejudicial. “ result when or about the udicial it wrong ‘actually probably brings ” Garcia, at 18. the circumstances of case.’ under Hol- information from amount Given incriminating large alone, evidence of an outstanding lingsworth’s multiple Moreover, trial. did the result of his warrant only change that such warrant was as to evidence presented outstanding No information was warrant existed. spe- provided regarding *9 cific information it all contained. circum- these Considering stances, the trial we conclude that court did not abuse its discretion that the evidence of determining Hollingsworth’s outstanding Reid, warrant was not See unduly prejudicial.
Affirmed. the determi- with disagree dissenting: majority’s I
Johnson,
J.,
nation that
did not
the issue of
preserve
appeal
whether the
the
their in-
provided
police during
That determination is based
vestigation
voluntarily given.
the
view that
failed to
with
upon
majority’s
comply
and,
thus,
of K.S.A. 60-404
undermined the
provisions
purpose
behind the
rule.
to State v.
contemporaneous objеction
Citing
Richmond,
429,
419,
289 Kan.
(2009),
On
trial,
October
filed a
se
prior
pro
motion
reenactments,
his statements and
that
suppress
arguing
he was under stress
due to
events in
due
his
question
conditions at
time of
his
The
arrest.
State
living
responded by
v. Denno
to determine the voluntar-
requesting
hearing
Jackson
iness of
Denno,
statements.
v.
378 U.S.
Hollingsworth’s
Jackson
12 L. Ed. 2d
However, the statute does that. It say provides: aside, “A verdict or not be set shall nor shall the or finding decision judgment reversed, based thereon be reason of the erroneous admission of evidence *10 unless there of record to the evidence objection timely so appears interposed clear stated to make K.S.A. 60-404. specific objection.” ground
Here, there of record an to the evidence which appears objection well in advance trial that timely interposed clearly specifies for the The district court had ground objection. ample oppor- trial and, avoid with tainted evidence ac- tunity conducting to avoid the of reversal Indeed, or a new trial. cordingly, possibility the district court was not alerted to the оnly admissibility challenge, but it had the additional benefit of an after evidentiary hearing, which it could Then, consider and rule on the carefully objection. admissible, ruled confession was having Hollingsworth's case, court’s order would remain the law of this until such time as the court or amend its might modify prior ruling. effect,
In reads K.S.A. 60-404 as a de- majority requiring fendant, trial, a motion for modification of timely interpose the court’s adverse That previous admissibility ruling. interpreta- tion does with either the or the comport statutory language rationale I for the rule. find would that the issue preserved appeal.