Failure to give lesser requires reversal

Rick Kittel and KU Defender Project intern Kimberly Atchinson won in State v. Taylor, No. 101,224 (Kan. App. June 3, 2011)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution. A jury convicted Mr. Taylor of severity level 4 agg battery after the district court refused his requests for all lesser severe forms of aggravated battery and self-defense. The COA upheld the denial of self-defense, but agreed that the district court should have given a lesser included offense instruction for causing something less than great bodily harm:

Generally, wherther the bodily harm was great is a question of fact for the jury. There are some limited exceptions to this rule. For example, certain physical invasions of the body--such as rape, sodomy, and "through and through" gunshot wounds--are instances of great bodily harm that don't require aggravated battery's lesser-included instruction.

Kansas courts have also been persuaded to instruct only on great bodily harm where lasting effects from the injury exist.

This case involves physical invasion--a knife penetrated David's skin twice-and some lasting effects--David's scar wounds. But David's injuries were not as severe as other victim's penetration injuries that this court has found to be great bodily harm that required no lesser-included instruction. [Long list of cases involving various levels of bodily harm.]

As these cases show, a broad spectrum of possible injuries exists. Because of this broad spectrum, usually the jury, not the judge, should analyze the factual nuances in the severity of the victim's injury and determine whether the bodily harm is great or not.

In this case, a jury could have reasonably concluded that David's injuries were less than great bodily harm. Although David was stabbed in two potentially life-threatening areas, tests showed no serious harm, and the doctor testified that David would most likely fully recover.

The COA also held that the district court improperly admitted testimony from the arresting officer regarding his opinion that whether Mr. Taylor was justified in using the knife in self-defense:

Here, the district court made a legal error when it admitted [the officer's] opinions because the opinions didn't conform to K.S.A. 60-456(a)'s requirements for allowing non-expert witness opinion testimony. Non-expert witnesses may only give opinions that are based on their perceptions and that are helpful to understanding their testimony.

The COA agreed that the officer wasn't testifying about things he had perceived nor were they helpful in clarifying his direct-examination testimony.

[Update: the state did not file a PR and the mandate issued on July 7, 2011.]