Friday, March 18, 2016

Post-trial Stand Your Ground decision is an acquittal

 Patrick H. Dunn won in State v. Barlow, No. 108,830 (Kan. Feb. 19, 2016), affirming Judge Peterson's post-trial order dismissing attempted second-degree murder charges based on Kansas' Stand Your Ground law. The KSC first had to consider whether the post-trial order qualified as an acquittal, which would not be appealable by the state:

In this case, the Court of Appeals panel focused on what it believed to be the tardiness of the district judge's consideration of Stand-Your-Ground immunity. This focus on timing obscured the more basic question of whether the order underlying the appeal qualified as a judgment of acquittal. Again, the path taken by a district judge to arrive at such an acquittal order may be flawed, but, regardless, it is not subject to reversal on appeal. Reinstatement of a defendant's conviction is forbidden. In this case, there is no question that the second element necessary for an acquittal order is present: jeopardy had attached. Barlow's jury had been impaneled and sworn, had received evidence, had heard arguments, had deliberated, and had returned a verdict. This moves us to address the first element, whether the district judge's order resolved some or all of the factual elements of the offense charged. 

The district judge wrote that he found J.M.-M. to be "an extremely unreliable witness" who "committed perjury throughout his entire testimony." In contrast, the judge regarded Barlow as credible and wrote that "various points of his testimony were corroborated by other evidence." The district judge found that J.M.-M. was "at a minimum committing a sexual assault against [T.S.]" while she was unconscious due to intoxication, "but most likely was committing rape against her with his fingers . . . ." The district judge further determined that Barlow possessed a reasonable belief that J.M.-M. was raping T.S. Noting that Barlow had made multiple attempts to intervene physically before resorting to the retrieval and use of the revolver, the judge concluded that Barlow's use of force to stop the rape was reasonable. Ultimately, "by a preponderance of the evidence," the judge ruled that Barlow's version of events was true and that he was entitled to Stand-Your-Ground immunity.

Generally, a reference to "preponderance of the evidence" means "'evidence which shows a fact is more probably true than not true.'" And the district judge's finding that Barlow's version of events was more probably true than not true eliminated the possibility that the State could prove beyond a reasonable doubt that Barlow's use of force was not reasonable. See K.S.A. 2014 Supp. 21-5108(c) (defendant entitled to instruction on every affirmative defense supported by evidence; once defendant produces such evidence, "state has the burden of disproving the defense beyond a reasonable doubt"). This necessarily means the district judge found that the State could not meet its burden to prove Barlow's criminal culpability; the State's evidence was insufficient to support a conviction for attempted second-degree murder. This determination qualifies as a resolution of factual elements of the charged offense.

Given this resolution, and the unquestionable attachment of jeopardy, we have no hesitation in holding that the district judge's order qualified as a judgment of acquittal.

Because the district court's order was an acquittal, the KSC held that the COA did not have jurisdiction to reinstate a verdict. The KSC went on to hold (on a question reserved) that the district court could enter a post-trial acquittal based on Stand Your Ground:

May a district judge sua sponte grant Stand-Your-Ground immunity to a criminal defendant after a jury has returned a guilty verdict but before sentence on the conviction has been pronounced? The answer to this question is: Yes. A district judge may consider Stand-Your-Ground immunity sua sponte at any time before pronouncement of sentence.

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