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.