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State v. Andrew

Supreme Court of Kansas

August 29, 2014

JAMES R. ANDREW, Appellant

Modified Opinion Filed December 9, 2014.

Review of the judgment of the Court of Appeals in an unpublished decision filed December 23, 2011.

Page 477

Appeal from Johnson District Court; JOHN P. BENNETT, judge.



1. A trial judge does not err by using PIK Crim. 4th 52.210 (Use of Force in Defense of a Dwelling, Place of Work, or Occupied Vehicle) as part of the jury instructions, even if an alleged victim rather than the defendant is the one who used force in defense of a dwelling. A statement to the contrary in State v. Alexander, 268 Kan. 610, 1 P.3d 875 (2000), is disapproved.

2. Even if lawful force is used to defend a dwelling, an individual responding to that force may act in self-defense if he or she reasonably believes the force is unlawful. Thus, the two defenses of self-defense and defense of a dwelling are not mutually exclusive, and a trial judge errs in instructing a jury that they are.

3. Under the facts of this case, the defendant's use of force was not objectively reasonable because he entered a dwelling without permission and was made aware that a resident of the dwelling objected to his presence and was defending the dwelling.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, Drew A. Cummings, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

LUCKERT, J. MORITZ, J., not participating.


Page 478


Luckert, J.

In State v. Alexander, 268 Kan. 610, 1 P.3d 875 (2000), this court held that a defense of dwelling jury instruction should not be given in a trial where the person defending a dwelling is the alleged victim rather than a defendant. We reexamine that [300 Kan. 617] holding in this appeal and conclude the defense of dwelling instruction should be given when necessary to fully inform the jury regarding the legal principles that govern the case, even if it is the alleged victim who defended his or her dwelling, rather than the defendant. In this case, the trial judge gave the pattern instructions regarding defense of a dwelling and defense of self, and we conclude this was not error under the facts of this case.

In addition to giving the pattern instructions, the trial judge inserted a sentence in the defense of dwelling instruction that told the jury self-defense is not available to someone who is being forced out of a dwelling by an individual who is lawfully defending the dwelling. This addition to the pattern instructions misstated the law because the two defenses are not mutually exclusive; self-defense is still available if a person reasonably believes another's use of force is unlawful. Nevertheless, we conclude this erroneous addition to the pattern instruction was harmless, and we affirm James R. Andrew's convictions.

Facts and Procedural Background

The parties agree that the Court of Appeals' decision fairly and adequately summarized the facts in this case, stating:

" On the evening of January 25, 2008, Andrew's son arrived home to find his father lying face down on the floor at the bottom of the stairs. Andrew was unconscious and bloody, and the house was in disarray. According to the son, it 'kind of looked like someone was going through, maybe to try and find something.' The son called 911, and the police spoke with both Andrew and his son.
" After the police left Andrew's house, the son went to a neighboring house where [Mitchell] Garlach and A.J. Brewer lived. Although Brewer was not home at the time, Garlach was there with some of his friends. Before leaving Andrew's house, the son told Andrew where he was going and told him not to follow. However, about 20 minutes later, Andrew entered Garlach['s] and Brewer's house without knocking.
" Garlach testified that he did not know Andrew and confronted him when he came into the house. According to Garlach, he asked Andrew who he was and told him to get out of his house. Andrew, who Garlach testified appeared to be extremely drunk, said that he was looking for his son or Brewer. Garlach testified that Andrew asked him if he wanted to 'get stuck' and pulled a kitchen knife out of his pocket. Garlach claimed that he did not have any type of weapon displayed prior to Andrew pulling out the knife.
[300 Kan. 618] " Andrew's son, however, recalled the events somewhat differently. He testified that Garlach got angry when Andrew came into the house, that Garlach pulled a billy club out of his pocket, and that he started 'talking smack.' According to the son, when Garlach and some of his friends started to close in, Andrew pulled the kitchen knife out of his pocket. The son, who was standing between Garlach and Andrew, called 911. It appears, however,

Page 479

that the son did not mention the billy club during the 911 call or in his written statement to the police.
" Andrew was subsequently charged with two counts of aggravated assault--one against his son and one against Garlach. The charge against Andrew for assaulting his son was dismissed at trial for insufficient evidence." State v. Andrew, 265 P.3d 598, 2011 WL 6942933, at *1 (Kan. App. 2011) (unpublished opinion).

Andrew did not testify at trial. Instead, he relied on evidence of the circumstances, as primarily established through his son's testimony, to assert that he acted in self-defense. The trial judge accepted Andrew's argument and, during the jury instruction conference, proposed using the pattern instruction regarding self-defense, PIK Crim. 4th 52.200 (Use of Force in Defense of a Person). The judge also ...

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