Saturday, June 29, 2019

Skip rule isn't a rule

Michelle A. Davis won in State v. Barrett, No. 113,767 (Kan. June 7, 2019), obtaining a new trial in a Riley County reckless second-degree murder prosecution. The primary issue on appeal revolved around the district court's denial of a requested self-defense voluntary manslaughter lesser-included offense instruction. The state initially charged Mr. Barrett with intentional second-degree murder, but the jury found Mr. Barrett guilty of reckless second-degree murder. The COA majority held that the district court should have given the voluntary manslaughter instruction, but held that it was harmless under the "skip rule." The KSC clarified that the "skip rule" is not an automatic bar to reversal but just part of the regular harmless error test:

Originally, we described the skip rule this way: '"When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.''' But in recent years, we clarified that the skip rule is not, in fact, a hard and fast rule. Instead, it is "'simply a logical deduction that may be drawn from jury verdicts in certain cases.'"  Moreover, we cautioned courts to make this deduction only where it "reasonably (as opposed to mechanically) applies."

. . . .

But the skip rule is not a replacement for our longstanding harmlessness tests. And it is not an automatic harmlessness pass. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be 13 considered as part of the applicable harmlessness test. In her dissent, Judge Arnold-Burger traced the history of the skip rule and correctly noted that we have often discussed the rule along with finding the evidence was insufficient to support the disputed instruction. We clarify today that for a jury instruction challenge, the touchstone of reversibility is the applicable harmlessness test. To the extent prior decisions have suggested otherwise, we provide the necessary corrective today. 

Moreover, the skip rule is not amenable to mechanical (or mathematical) application because—as jury nullification and inconsistent verdicts suggest—juries can play a mitigating role in complex cases, such as this. As Judge Arnold-Burger astutely observed, an imperfect self-defense voluntary manslaughter instruction would have served as an alternative to the mental disease or defect defense, and the evidence could have reasonably supported either theory. In other words, on the spectrum from an intentional second-degree murder verdict to a mental disease or defect acquittal, an imperfect self-defense voluntary manslaughter verdict would have fallen somewhere in the middle. In that scenario, the jury could have reasonably concluded that Barrett's mental illness affected his intent but did not negate his culpable mental state entirely.

Applying the proper test, the KSC held that the state failed to prove the error was harmless and reversed for a new trial.

I especially note the note that "as jury nullification and inconsistent verdicts suggest--juries can play a mitigating role . . ."  It is interesting to think about whether an appellate court can discern whether a particular case would show circumstances that might lead to nullification and give effect that observation.

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