Tuesday, October 06, 2020

Short list for KSC

Here is a press release announcing that the Supreme Court Nominating Commission nominated the following three persons to fill the vacancy created by the retirement of Justice Beier: Judge Kim Cudney, Chief Judge of the Twelfth Judicial District, Judge Melissa Taylor Standridge of the Kansas Court of Appeals, and Kristen Wheeler, a Wichita lawyer. The Governor has 60 days to appoint one of these three persons.

[Update: here is a blog post reporting that the Governor selected Judge Melissa Taylor Standridge from this list.]

Friday, October 02, 2020

Contested evidence requires self-defense instruction

Randall L. Hodgkinson won in State v. Keyes, No. 118,894 (Kan. September 11, 2020), obtaining a new trial in a Grant County first-degree premeditated murder prosecution. The death involved a person who had been allowed to live in a trailer on Mr. Keyes' girlfriend's rural property. After several conflicts between the property owner and the decedent, Mr. Keyes testified that he went to the trailer to tell the decedent he was no longer welcome on the property and that, due to prior violent incidents, he took a gun for his protection. Mr. Keyes testified that when he approached the decedent in the trailer, the decedent attacked him with a knife and, as a result, Mr. Keyes shot and killed the decedent. The state introduced snitch evidence that Mr. Keyes went to the trailer with a plan to harm the decedent and carried out that plan.

At trial, Mr. Keyes requested a self-defense instruction. The district court denied the instruction. Viewing the evidence in a light most favorable to Mr. Keyes, the KSC held that the instruction should have been given:

We find that Keyes' testimony—in light of the entire record—sufficed to make a self-defense instruction factually appropriate. First, Keyes' testimony, if believed by the jury, could satisfy the subjective prong of the test by showing Keyes believed it was necessary to kill Martin in order to defend himself. According to Keyes' testimony, Keyes feared for his life when Martin came at him with a knife threatening to kill him. Although the State's evidence may have rebutted this narrative, a defendant's testimony that he or she believed deadly force was necessary is enough to satisfy the subjective prong if a reasonable fact-finder would reasonably conclude the defense applies.

Keyes' testimony, if believed, could also demonstrate that a reasonable person, in the circumstances described by Keyes, would have perceived the use of deadly force in self-defense as necessary. Based on [the snitch's] testimony, the State argues a self-defense instruction was unwarranted because Keyes had intended to start an altercation with Martin. According to the State, Keyes took a gun, set up Malone at the back entry of Martin's trailer, and entered Martin's trailer in the middle of the night to shoot Martin four times. But again, the jury heard countervailing evidence. For example, [the snitch] admitted that he did not witness the altercation between Keyes and Martin because he stayed outside the trailer and it was too dark to see inside. And while all other evidence—including Martin's autopsy—concluded that Keyes shot Martin four times, [the snitch] told detectives he only heard one shot.

Furthermore, Keyes claimed he was in the trailer at the property owner's request to ask Martin to leave. Keyes said [the snitch] was not there. According to Keyes, Martin was a violent individual who was dangerous and out of control. At trial, Keyes presented evidence through several witnesses to support this. Several acquaintances of Martin testified that on prior occasions, Martin had threatened their lives with a knife. This explained Keyes' belief he needed to bring a gun to talk to Martin. Indeed, these competing narratives highlight "why the existence of competent evidence makes the decision on the affirmative defense of self-defense a function for the jury." If the jury had believed Keyes' account of what happened, the evidence considered as a whole would have permitted a reasonable factfinder to conclude Keyes acted in self-defense.

The KSC went on to consider the state's claim that any instructional error was harmless because of the implausibility of the defense. The KSC concluded that the entire case depended on a credibility determination and that it could not be sure that the failure to instruct on self-defense did not affect the outcome of the case. As a result, it reversed and remanded for a new trial. 

One technical aspect of this case worth noting is which harmless error rule should apply. Without analysis, the KSC applied a nonconstitutional test requiring the state to show "no reasonable probability" that the outcome of the case would have been different. The other possibility would have been applying a constitutional harmless error test requiring the state to show "no reasonable possibility." Because the KSC reversed under the less demanding test, it doesn't matter in Mr. Keyes' case. But Judge Leben (sitting by assignment for this case) did note in his concurring opinion that it could matter in other cases and that the constitutional test seems more appropriate when the district court denies an affirmative defense instruction (as opposed to a cautionary instruction or a limiting instruction):

At least one state supreme court has applied the constitutional harmless-error test in cases like this one, in which the trial court had refused to give a jury instruction central to the defense case. See Alexander v. State, 749 So. 2d 1031, 1038 (Miss. 1999). And several federal courts have indicated that the failure to give a jury instruction central to the defense case violates the defendant's constitutional right to present a defense, although a different harmless-error standard applied in these federal cases since they arose under the federal Antiterrorism and Effective Death Penalty Act of 1996. See Lannert v. Jones, 321 F.3d 747, 754 (8th Cir. 2003); [Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002)]; Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001); Baker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999). I'm inclined to think that because the defendant's constitutional rights are at issue in a case like ours, the constitutional harmless-error test should apply.

So in a future case, this might be important.