Credibility determinations require giving self-defense instruction

Michelle A. Davis won in State v. Holley, No. 121,181 (Kan. April 23, 2021), obtaining a new trial in a Sedgwick County first-degree murder and child endangerment prosecution. At trial, Mr. Holley requested a self-defense instruction, but the district court refused because it found that Mr. Holley was committing a forcible felony. The state had conceded that the instruction should have been given, but asserted that the failure to do so was harmless. The KSC agreed that the instruction was legally appropriate under its more recent case law and that it was factually appropriate. But it disagreed that with the state that the error was harmless:

The jury was provided with competing narratives. According to Reed, Holley tried to rob Smith at gunpoint and fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his $200-$300 cash and fired the initial shot, followed by an attempted shot that was only prevented by Smith's gun jamming. 

The physical evidence supported Holley's claim that both Smith and Holley fired or tried to fire shots. Smith's Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. Holley admits to shooting Smith and ballistic testing showed the Smith & Wesson Bodyguard Holley possessed at the time of his arrest matched the projectile recovered from Smith's autopsy. 

The physical evidence, however, does not establish who fired or tried to fire their gun first. The sequence of events hinges on testimony from Reed and Holley. Thus, whether Holley used self-defense boils down to a credibility question. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial. 

As a result, the KSC reversed the murder conviction and remanded for new trial. The KSC also affirmed the child endangerment conviction, holding that the state did not have to prove probability or likelihood of harm to prove child endangerment.

Misstatement of law and fact require new trial

Jennifer C. Roth won in State v. Watson, No. 118,710 (Kan. April 23, 2021), obtaining a new trial in a Wyandotte County Medicaid fraud prosecution. The charges stemmed from allegations that Mr. Watson submitted inaccurate time sheets as part of his employment with a home health-care agency. Mr. Watson admitted that the time sheets did not accurately reflect exact times of day worked, but asserted that the total time was accurate. After a jury convicted Mr. Watson, the district court ordered over $13,000 in restitution.

The COA had found one harmless prosecutorial error, but vacated the restitution order. The KSC found an additional prosecutorial error and held that the errors required reversal:

The prosecutor misstated the evidence by arguing Watson failed to provide any proof that he had worked the total hours recorded on his time sheets, an argument that disregarded Watson's own testimony. The prosecutor also misstated the law by arguing Watson was guilty of Medicaid fraud based solely on his submission of inaccurate timesheets, without regard to whether Watson had acted with intent to defraud. These errors substantially diminished, or effectively eliminated, an essential element of the crime of conviction—the defendant's intent to defraud Medicaid. Simultaneously, the errors undermined Watson's central defense to this charge—that he acted without intent to defraud.

The KSC clarified that proof of inaccurate time sheets only satisfied one element of the offense of Medicaid fraud, but not the culpable mental state requirement:

Under the plain language of this statute, proof that a defendant made false statements or misrepresentations to Medicaid satisfies only one element of Medicaid fraud. To secure a conviction, the State must also prove the defendant made such false statements or misrepresentations with the "intent to defraud." An "[i]ntent to defraud" means "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." K.S.A. 2019 Supp. 21-5111(o). As used in this definition, "deception" means "knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind." K.S.A. 2019 Supp. 21-5111(e).

The KSC concluded that the prosecutor's misstatement of fact and law went to the heart of Mr. Watson's defense (that he did not have intent to defraud), and therefore required a new trial.