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State v. Pulliam

Supreme Court of Kansas

November 21, 2018

State of Kansas, Appellee,
Lorenzo Pulliam, Appellant.


         1. 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 unintentional killing.

         2. On 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed November 10, 2016.

          Appeal 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 appellee.


          BEIER, J.

         This is 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.

         Before 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 App. 2016) (unpublished opinion).

         Pulliam 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 rationale.

          Factual and Procedural Background

         In its 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.

         As a 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.

         It was 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.

         Eisdorfer 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.

         At some 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.

         During 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.

         A 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.

         The second version of events came into evidence through an audio recording of Pulliam's post-arrest statement to Detective Willie Jenkins.

         Pulliam 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.

         Pulliam 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 shooting.

         Pulliam 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.

         After 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 killed.

         Pulliam 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.

         In 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.

         Pulliam's trial testimony outlined the third version of events.

         Pulliam 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, ...

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