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State v. Hardy

Supreme Court of Kansas

March 10, 2017

State of Kansas, Appellant,
Marlon T. Hardy, Appellee.


         1. Upon a motion for immunity pursuant to K.S.A. 2016 Supp. 21-5231, the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified.

         2. The court's determination of probable cause must be premised on stipulated facts or evidence, on evidence received at a hearing pursuant to the rules of evidence, or both.

         3. The timing of such a hearing-including whether it should occur before, after, or contemporaneous with the preliminary hearing-is left to the sound discretion of the district court. When exercising such discretion, district courts must remain sensitive to the fact that the matter being resolved is a question of immunity that ought to be settled as early in the process as possible to fully vindicate the statutory guarantee.

          4. When rendering probable cause determinations pursuant to K.S.A. 2016 Supp. 21-5231, district courts must consider the statutory presumptions set forth in K.S.A. 2016 Supp. 21-5224 when they are factually implicated.

         5. An appellate court will apply a bifurcated standard of review to a district court's determination of probable cause pursuant to K.S.A. 2016 Supp. 21-5231. When a district court's ruling entails factual findings arising out of disputed evidence, a reviewing court will not reweigh the evidence and will review those factual findings for supporting substantial competent evidence only. The ultimate legal conclusion drawn from those facts is reviewed de novo. When there are no disputed material facts, a pure question of law is presented over which an appellate court exercises unlimited review.

         Review of the judgment of the Court of Appeals in 51 Kan.App.2d 296, 347 P.3d 222 (2015).

         Appeal from Sedgwick District Court; David J. Kaufman, judge.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

          Richard Ney, of Ney and Adams, of Wichita, argued the cause and was on the brief for appellee.


          Stegall, J.

         On the night of March 16, 2013, Marlon Hardy rode as a passenger in Jaylyn Bradley's red Mustang convertible to pick up two young women, including Y.M., at a house party on Fairview Street in Wichita, Kansas. At the time, Javier Flores-a partygoer already at the house-was severely intoxicated. He had consumed about 20 beers and 4 shots of liquor. When Bradley and Hardy attempted to leave with Y.M., a dispute of some kind arose. Flores, along with a group of five to nine partygoers, surrounded the open convertible, preventing it from moving. Flores yelled racial slurs at Bradley and Hardy, but they did not respond. Several bystanders tried to calm Flores down and hold him back from the convertible, to no avail. Violence ensued.

         The parties do not dispute that Flores instigated the violence. Unprovoked, Flores approached the passenger side of the convertible, reached in, and struck Hardy two to three times in the face. Hardy picked up Bradley's gun from the console and shot Flores once. Hardy put the gun down and Bradley picked it up, shooting Flores again. Flores suffered gunshot wounds in the right arm and left leg.

         Given these undisputed facts, the State charged Hardy with aggravated battery. Hardy eventually claimed self-defense, and the case turned on the factual intricacies of that defense-principally, was the shooting contemporaneous with the violence initiated by Flores or had Flores disengaged before being shot? Indeed, preliminary hearing testimony supported both possibilities. Y.M. testified she was in the convertible and saw Hardy fire the shot after Flores had "backed up a little bit." She explained someone was pulling Flores away from the car but Flores was still "trying to get" Hardy. About a second later, Hardy shot Flores. Y.M. also recalled that when Hardy fired the shot, the convertible's path was clear enough to drive away. Flores' story flip-flopped throughout his testimony. Multiple times Flores testified he heard the shots right before he stopped punching. Yet, he also testified he heard the gunshot after he stopped punching or walked away.

         Following the preliminary hearing, the district court found sufficient probable cause to bind Hardy over for trial. The court recognized the issue of self-defense but concluded, "It would be inappropriate for me to say at this juncture as a matter of law that self-defense is appropriate." Subsequently, Hardy moved for a grant of immunity pursuant to K.S.A. 2016 Supp. 21-5231(a)-Kansas' self-defense immunity statute-and asked for a probable cause hearing. Citing State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013), Hardy claimed he was immune from prosecution unless the State could establish probable cause that he was not justified in his use of force. He argued the evidence taken at the preliminary hearing showed Flores' attack was unprovoked and Hardy's use of force was justified to protect himself or another pursuant to K.S.A. 2016 Supp. 21-5222(a).

         The district court conducted the requested hearing, first observing that pursuant to Ultreras, the State had the burden to show probable cause that force was not justified. The court recognized Ultreras "reach[ed] no holding regarding the procedures by which the immunity defense should be presented to or resolved by the District Court."

         Hardy advocated for an evidentiary presentation in the presence of the defendant with a right to confrontation. Hardy acknowledged "it's still an open question" whether an evidentiary hearing is required pursuant to K.S.A. 2016 Supp. 21-5231 but argued the hearing "must be something more than the Court looking at an affidavit of probable cause, if you will, that can make that determination because, obviously, that can be structured in any way charging authorities wish to structure it."

         The State conceded that Ultreras gave no explicit procedural guidance but pointed out that while reaching our decision in Ultreras, we looked to a decision by the Kentucky Supreme Court in Rodgers v. Com., 285 S.W.3d 740 (Ky. 2009). There, interpreting a similar self-defense immunity statute, the Kentucky Supreme Court refused to require an evidentiary hearing because one had not been expressly required in the plain language of the immunity statute. 285 S.W.3d at 755. Following Rodgers, the State argued an evidentiary hearing was not required and the district court could review witness statements and police affidavits to make its finding. Finally, and most important, the State argued the court must resolve conflicting evidence in the light most favorable to the State.

         In turn, Hardy responded that K.S.A. 2016 Supp. 21-5231 provides more protection than the usual probable cause determination-a "true immunity"-otherwise the statute is "wasted verbiage." Hardy asked for an independent finding "based on what Ultreras talked about and Rodgers talks about . . . the totality of the circumstances is what the Court should look at. There's no talk about that all evidence should be interpreted in favor of the prosecution."

         The district court acknowledged that "reasonable minds can certainly disagree"; however, "it is wholly inappropriate, in my opinion, for a judge at a preliminary hearing to make findings under . . . 21-5231, the ...

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