Failure to give requested involuntary manslaughter instruction requires new murder trial

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. 

Double rule applies when separate complaints are consolidated for trial

Reid T. Nelson and Debra J. Wilson won in State v. Dixon, No. 120,587 (Kan. App. May 14, 2021), obtaining a new sentencing hearing in a Sedgwick County prosecution for aggravated kidnapping, rape, and other charges stemming from two consolidated cases. The COA affirmed Mr. Dixon's convictions, but took issue with the sentencing procedure. In this case, two separate cases, each involving multiple charges, were consolidated for trial. At sentencing, the district court set a base sentence of 653 months in the first complaint and additional consecutive sentences from that charging document for a total of 1,157 months. The district court also set a base sentence of 653 months in the second complaint and additional consecutive sentences from that charging document for a total of 888 months. The district court ran the sentences from the two cases consecutively for a total controlling sentence of 2,045 months.

Under K.S.A. 21-6819(b)(4), the "total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence." This is sometimes know as the "double rule." By its terms, it only applies to multiple convictions arising from a single complaint. Even where cases are consolidated for trial, the statute would purport to result in two base sentences and two applications of the double rule.

Mr. Dixon challenged this construction of the statute as unconstitutional under the Equal Protection Clause and the COA agreed:

Dixon's argument that the double rule distinguishes between "arguably indistinguishable" classes has merit. Essentially, both classes of defendants Dixon identifies proceed to one trial on multiple charges that "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." But only defendants who have all the crimes brought in one charging document can benefit from applying the double rule to all the convictions together. Defendants who have crimes filed in separate charging documents consolidated for trial cannot benefit from applying the double rule to all the convictions together. The only difference between these two classes of defendants is whether there is one case number or two. 

We find that the double rule treats arguably indistinguishable classes of defendants differently. 

The COA next considered whether such disparity could stand in light of the low "rational basis" test for Equal Protection challenges. The COA noted that, if Mr. Dixon could benefit from the double rule on his entire sentence, his maximum sentence would have been 1,306 months. Instead, because he was charged in two complaints instead of one, he received a sentence of 2,045 months. 

We are mindful that the rational basis test is a very lenient standard and a statute must be enforced as written "if any state of facts reasonably may be conceived to justify it." But we are unable to find that the strict application of K.S.A. 2020 Supp. 21-6819(b)(4) to Dixon's cases implicates any legitimate sentencing goal. As a result, we find that the statute, as applied to Dixon's cases, does not pass rational basis scrutiny. Thus, we conclude that the double rule found in K.S.A. 2020 Supp. 21- 6819(b)(4), as applied to Dixon's cases, violates his equal protection rights under the Fourteenth Amendment.

The COA went on to hold that the proper remedy was to extend the protection of the double rule to all of Mr. Dixon's sentences.

[Update: Mr. Dixon filed a petition for review from the affirmance of his convictions on June 4, 2021.]

[Further update: the state filed a cross-petition for review on July 1, 2021.]

[Further update: the KSC denied both the state and Mr. Dixon's PRs on September 27, 2021.]

Appellate court should not make criminal history findings

Michelle A. Davis won in State v. Rankin, No. 122,818 (Kan. App. April 30, 2021), obtaining a remand for determination of whether a prior crime was a person felony. On appeal, Mr. Rankin sought to challenge a prior juvenile adjudication used in his criminal history calculation score under Boettger. In response, the state sought to prove that the prior adjudication was for intentional criminal threat asking the appellate court to take judicial notice of the complaint from the juvenile case. The COA acknowledged that it could take judicial notice of the district court document, but still held that it should not make a criminal history finding on appeal:

Here, the State is asking this court to make factual findings beyond what is necessary to resolve a mootness issue. Although this court can take judicial notice of the original complaint . . .  we observe that this evidence alone does not necessarily resolve whether Rankin's juvenile adjudication for terroristic threat was based on the intentional or reckless version of the statute; the original complaint may have been amended later in the proceedings. Rankin should receive a full hearing in district court to resolve the issue. At such a hearing the district court should consider all available records in [the juvenile case] including the original and any amended charging documents, any plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and the journal entry of adjudication.