Conviction of involuntary manslaughter under an imperfect
self-defense theory pursuant to K.S.A. 2017 Supp.
21-5405(a)(4) does not require proof of a reckless or
the evidence presented in this case, it was error for the
district judge to omit a lesser included crime instruction on
involuntary manslaughter under K.S.A. 2017 Supp.
21-5405(a)(4), but the omission does not require reversal
under the clearly erroneous standard.
of the judgment of the Court of Appeals in an unpublished
opinion filed November 10, 2016.
from Wyandotte District Court; Michael A. Russell, judge.
Corrine E. Gunning, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
Jennifer S. Tatum, assistant district attorney, argued the
cause, and Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were with her on the brief for
defendant Lorenzo Pulliam's direct appeal of his
convictions for attempted voluntary manslaughter of Zachary
Eisdorfer, second-degree murder of Zachary Burton, and
criminal possession of a firearm.
the Court of Appeals, Pulliam raised several issues,
including a claim that the jury should have been instructed
on a theory of imperfect self-defense involuntary
manslaughter as a lesser included crime for the charge of
second-degree murder of Burton. The Court of Appeals held
that such an instruction was not factually appropriate and
rejected Pulliam's claim. The court also rejected
Pulliam's other claims of error and affirmed his
convictions and sentence. See State v. Pulliam, No.
113, 493, 2016 WL 6651243, at *11 (Kan. App. 2016)
filed a petition for review of five issues by this court. We
granted review of only one: Did the district judge err by
failing to instruct the jury on imperfect self-defense
involuntary manslaughter? We hold that the district court
erred but that the error does not require reversal under the
clear error standard. We affirm the Court of Appeals'
decision affirming the judgment of the district court,
although we differ from the Court of Appeals panel on
Factual and Procedural Background
opinion, the Court of Appeals panel succinctly laid out the
basic facts surrounding the shooting of Eisdorfer and Burton.
"Lorenzo Pulliam served in the U.S. Army and deployed
four times, including assignments to Kuwait and Iraq where he
was exposed to combat deaths. During his final deployment, he
learned his wife had died in an accident. He later was
transferred to Fort Leavenworth, where he was evaluated and
diagnosed with post-traumatic stress disorder (PTSD).
Following discharge from the Army, Pulliam returned to
Wyandotte County. He resumed his friendship with Zach
Eisdorfer, whom he had known since childhood.
"On August 22, 2012, Pulliam received a call from
Eisdorfer, asking him to come by Eisdorfer's house since
he hadn't seen him for a few days. When Pulliam arrived,
Kimberly Hetzler, also a childhood friend, was there with
Eisdorfer, and the three of them talked and watched
television. At some point Pulliam and Hetzler left Eisdorfer
in the house and went outside.
"In the early morning hours of August 23, a man unknown
to Pulliam and Hetzler walked up to Eisdorfer's house
carrying a gas can. The man was Zach Burton. According to
Hetzler, Pulliam and Burton exchanged a greeting, and Burton
went inside to Eisdorfer's room. Since she didn't
know the man, Hetzler said she went in to get her purse and
saw Burton buying drugs from Eisdorfer. After she went back
outside, Pulliam went in and, within 30 seconds to a minute
of that entry, Hetzler . . . heard five shots. Hetzler ran
into the home and saw Burton on the floor with Eisdorfer
standing over him, and Pulliam was not there.
"Officer Keith Faulkner testified at trial that he
responded to a call at Eisdorfer's house around 4 a.m. on
August 23, 2012, where he encountered Eisdorfer outside of
the home, bleeding from a wound and saying that Pulliam shot
him. When he entered the house, Faulkner found Burton,
deceased, lying face down on the floor. Officer Charles
Stanturf was also called to the scene and spoke with
Eisdorfer who told him his friend, Pulliam, showed up and
without warning pulled a revolver and started shooting at
him. Eisdorfer was wearing an empty holster and told Stanturf
there was a gun on the floor in the dining room.
"Pulliam had fled the scene and after several
intervening stops turned himself in to the police, admitting
that he had shot Eisdorfer and Burton."
Pulliam, 2016 WL 6651243, at *1-2.
result of the shootings, the State charged Pulliam with
attempted premeditated first-degree murder of Eisdorfer,
intentional second-degree murder of Burton, and criminal
possession of a firearm.
undisputed at trial that Pulliam had shot Eisdorfer and
Burton. But evidence of three different versions of events
was introduced, each version contradicting the two others.
testified that Pulliam came over to his house on the evening
of August 22 to hang out with him and Hetzler. After
Eisdorfer received a call, Pulliam and Hetzler went outside,
where they stayed for the next several hours.
point, Burton's girlfriend called Eisdorfer to tell him
Burton was on the way to pay Eisdorfer some money and
"[p]robably to get drugs." When Burton arrived, he
came in the back door of the house and started talking with
Eisdorfer. Pulliam was still outside with Hetzler at the
time. According to Eisdorfer, shortly after Burton arrived,
Pulliam kicked the door open and started shooting. Eisdorfer
believed he "heard three gunshots in a row." After
hearing the shots, Eisdorfer looked down and saw blood all
over his shirt.
the shooting, Eisdorfer picked up his own gun, which had been
"sitting kind of by [him]." Eisdorfer believed he
might have "squeeze[d] off one shot" at Pulliam
while Pulliam was still shooting from the doorway but thought
he probably had not because he "didn't have one in
the chamber." After Eisdorfer tried to fire, he turned
and ran to the other end of the house to get away from
Pulliam. Eisdorfer made it to a bathroom and saw that he was
bleeding from his chest. When he then went out to check on
Burton, he saw him lying face down on the floor. By that
time, Pulliam was gone.
panicked Eisdorfer told his mother, who was also at the
house, to call 911. Eisdorfer walked out to the street, where
he passed out while waiting for an ambulance to arrive.
second version of events came into evidence through an audio
recording of Pulliam's post-arrest statement to Detective
told Jenkins that he had heard Eisdorfer talking to
Burton's girlfriend on the phone and was
"skeptical" when Burton showed up instead of the
girlfriend because Eisdorfer had not mentioned it. According
to Pulliam, he was outside when Burton arrived, and he
remained outside for about 15 minutes. Pulliam briefly went
inside before going back outside.
eventually came back inside and sat next to Eisdorfer. When
he did, he asked whether Burton had walked to the house.
Burton responded, "Checkmate," which Pulliam
interpreted as "game over." Pulliam asked Burton
the question again, to which Burton again responded,
"Checkmate." Almost simultaneously, there was an
explosion depicted on the television. Then the shooting
started. According to Pulliam, he and Eisdorfer were both
admitted that he had shot Burton and that he had fired three
or four shots. He also thought he had probably hit Eisdorfer
but was not sure where he had hit him.
the initial shots, Pulliam tried to leave by running through
the kitchen of the house. He believed Eisdorfer was coming at
him and felt he had to get out of the house to avoid being
reiterated throughout the statement to Jenkins that he
thought he was going to die and that, when Burton said,
"Checkmate," he thought, "[T]hat was it."
He also said he felt like his life was in jeopardy each time
he went to Eisdorfer's house. The phone conversation he
overheard had made him feel like this particular visit
"was a setup" from the beginning.
response to Jenkins' question about whether Pulliam
intended to shoot Burton after Burton said,
"Checkmate," Pulliam responded: "I felt like,
as an intent . . . I ain't have no . . . I had no
[inaudible]. And . . . [h]e was going . . . he was going to
kill me." He then conceded that, to his knowledge,
Burton had no gun and had not made a move toward him.
trial testimony outlined the third version of events.
testified that he got a call from Eisdorfer on the night of
August 22, asking him to come over and hang out. It had been
a couple of weeks since Pulliam had seen Eisdorfer, because,
Pulliam said, ...