Failure to give self-defense instruction requires new trial

Carol Longenecker Schmidt and Kasper C. Schirer won in State v. Qualls, No. 115,648 (Kan. April 19, 2019), obtaining a new trial in a Shawnee County first-degree murder prosecution stemming from a dispute over a pool game. This was Mr. Qualls' second appeal, his first conviction having been reversed and remanded for new trial for failure to give a lesser-included offense instruction (blogged about here). At the retrial, Mr. Qualls requested a self-defense instruction, citing testimony from Mr. Qualls that he thought he saw the decedent reaching for a weapon, but the district court refused. The KSC reviewed the record and, viewing the light in a most favorable light to Mr. Qualls, held that sufficient evidence would have supported subjective and objectively reasonable belief that use of deadly force was necessary:

This testimony describes a situation in which actions taken in self-defense could be justified: Beier hit Qualls twice; Qualls had been taken down in a choke-hold by someone else; Beier was shouting expletives at Qualls and was warning him to get out or something bad could happen; and Qualls saw Beier reach into his pants in a gesture suggesting he was reaching for a gun. Qualls found himself in a chaotic, threatening situation. Similar testimony in the first trial led this court to hold that the record, when viewed in the light most favorable to Qualls, was sufficient to let the jury “decide if Qualls had an unreasonable but honest belief that the use of deadly force was necessary to protect against Beier's alleged imminent use of unlawful force.”

The question in the present issue is whether the jury should have been allowed to consider whether he had a reasonable belief that deadly force was necessary. If Qualls reasonably believed Beier was threatening his life, self-defense would have been appropriate; if Qualls was responding to some other cue, then self-defense would not have been a legitimate defense.

Qualls' testimony sufficed to make the self-defense instruction factually appropriate. 

The KSC held that the failure to give the requested instruction was not harmless and therefore reversed for another new trial.

Just as an aside, I think it is difficult to imagine a case where an appellate court, applying the correct standard of review, could find that failure to give a requested affirmative defense instruction was error but harmless error.  Assuming that such an error is a constitutional error, the state would have to show there is no reasonable possibility that a jury could have formed a reasonable doubt regarding the affirmative defense. If there is evidence upon which a jury could make that determination (the standard of review for getting the instruction), in what situation could an appellate court hold that erroneous failure to give that instruction was harmless?

[Update: here is a WIBW article noting that after this appeal, Mr. Qualls entered into a plea agreement to intentional second-degree murder and a resultant 176-month prison sentence.]