Failure to give Bunyard instruction

Heather Cessna and Carol Longenecker Schmidt won in State v. Flynn, No. 103,566 (Kan. June 24, 2011), obtaining a new trial in a Sumner County rape prosecution. The state charged Mr. Flynn with several major felony counts stemming from an encounter with A.S. The jury acquitted Mr. Flynn of all charges, except one count of rape. On appeal the COA agreed that the district court should have given a Bunyard instruction, informing the jury regarding the law of post-penetration rape in Kansas:

Flynn testified that at the time he and A.S. ended up on the ground, the sexual encounter was consensual. A.S. told Flynn to stop after they were on the ground by saying, "No. Not on the ground." Flynn did not stop immediately and testified that it took him anywhere from 30 seconds to 2 minutes to stop. This was consistent with what he told investigators at the time. A.S. testified that at no point during the encounter was there ever consent. This was consistent with what she told investigators at the time. At the conclusion of the State's case, before Flynn even testified, the trial judge indicated some concern that, based on the evidence, the jury might send out a question regarding withdrawal of consent. Although he indicated he was not familiar with Bunyard, he indicated he would wait and deal with the issue if a jury question arose. Based on the defendant's subsequent testimony, as well as his statement to investigators at the time, and the judge's concern that the jury might be confused, we find that when viewed in the light most favorable to Flynn, a rational fact finder would be justified in finding in accordance with Flynn's theory of defense; therefore, a Bunyard instruction should have been given in this case.

Applying a clearly erroneous standard, the majority held that, particularly given the fact that the jury acquitted Mr. Flynn on five serious felony counts, there was a real possibility that a proper Bunyard instruction may have led to a different result the case. As a result, the COA reversed and remanded for a new trial.

[Update: the state filed a PR on July 25, 2011.]

[Further update: the KSC granted the PR on January 20, 2012.]

[Further update: on July 11, 2014, as blogged about here, the KSC ordered a new trial.]