Korey A. Kaul won in State v. Nunez, No. 121,284 (Kan. May 14, 2021), obtaining a new trial in a Sedgwick County first-degree murder prosecution. Although the KSC held that the district court had sufficient evidence to overcome Mr. Nunez' immunity claim, it went on to hold that the district court improperly refused to give a requested instruction for involuntary manslaughter as a lesser included offense. The district court gave instructions on lessers for second-degree intentional murder and voluntary manslaughter and on self-defense. But the district court refused to give Mr. Nunez' requested instruction for involuntary manslaughter-excessive force, holding that, because . The KSC applied its recent cases to hold that a defendant need not concede that a killing was reckless or unintentional to get an instruction on involuntary manslaughter-excessive force. The KSC went on to hold that the requested instruction was factually appropriate in this case:
Here, the evidence that Nunez possessed a reasonable and honest belief in the necessity of physical force to defend himself or his property, at least initially, was substantial. One testifying witness from the scene stated that Guzman had taken Nunez by the neck and was holding a blade to him, a blade that may have left the mark on Nunez' neck that was noted by law enforcement. Nunez repeatedly told law enforcement officers that Guzman had attacked him with a knife. Although it was not a kitchen knife, as described by Nunez, a boxcutter was found close to Guzman's body. And Nunez told the 911 dispatcher that it was a situation of either Nunez or Guzman surviving the attack.
Finally, the KSC addressed whether the error in this case was harmless:
If the jury accepted parts of Nunez' theory of his defense that were supported by the evidence, it could conclude that Nunez was afraid for his life after being attacked by a knife-wielding assailant. Although a third party pulled Guzman off of Nunez, causing Guzman to fall down, in the short time that followed, Nunez might well have been afraid for his life, fearing that Guzman would stand back up and renew his attack, possibly using the nearby boxcutter. Nunez repeatedly told police that he saw Guzman reaching for a knife even while he was wounded and on the ground. The excessive force would consist of fatally shooting an assailant three times while the assailant was falling down or lying on the floor, but such a scenario is what imperfect self-defense is intended to address.
As a result, the KSC reversed and remanded for a new murder trial.