defendant is entitled to an instruction on every affirmative
defense that is supported by competent evidence. Once the
defendant satisfies the burden of producing such evidence,
the State has the burden of disproving the defense beyond a
defendant may meet his or her burden of showing that a
reasonable person in his or her circumstances would have
perceived the use of deadly force as necessary for
self-defense, even if the only evidence supporting the
defendant's theory consists of the defendant's own
testimony, which may be contradicted by all other witnesses
and by physical evidence.
Error in refusing to give a requested self-defense
instruction is subject to harmless error analysis.
from Shawnee District Court; Cheryl A. Rios, judge.
C. Schirer, of Kansas Appellate Defender Office, argued the
cause, and Carol Longenecker Schmidt, of the same office, was
on the brief for appellant.
L. Pickering, assistant solicitor general, argued the cause,
and Michael F. Kagay, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
2008, James Qualls shot a man to death following a dispute
over a pool game. He was convicted of premeditated
first-degree murder. This court reversed the conviction for
failure to give lesser included offenses instructions.
State v. Qualls, 297 Kan. 61, 298 P.3d 311 (2013).
On retrial in 2014, a jury again found him guilty of
premeditated first-degree murder. He takes this direct
second trial, evidence of the following facts was introduced
to the jury.
evening of July 16, 2008, Qualls and his wife, whom he had
married five days earlier, and their children attended the
Mexican Fiesta in Topeka. Qualls drank some beer there, and
then the family returned to their house, where he drank some
more. Qualls, his wife, and his sister then decided to go to
a bar and, shortly after midnight, ended up at the Whiplash
bar. Qualls was carrying a recently purchased 9 millimeter
semi-automatic pistol in his pocket.
dispute broke out over a pool game, when Qualls made a joking
comment to Amber Martindale that she had made a lucky shot.
As the dispute escalated, Qualls' wife bet Martindale
$1000 that she could beat her in a fight. Qualls attempted to
get between the women, and his wife went to the door and
encouraged Martindale to come outside to fight.
Martindale's fiancè, Joseph Beier, shouted at
Qualls, telling him he had to get his "bitch" under
control. The situation deteriorated, as Qualls' wife
started yelling in Beier's face, and Beier hit Qualls in
the face. Qualls grabbed hold of Beier and pushed him back
against a wall.
bartender, Cliff Cormier, attempted to break up the fight.
From behind he grabbed Qualls around the neck and pulled him
away from Beier. Beier hit him again, and then another bar
patron, Mitchell McDonald, grabbed Beier and moved him
against a wall.
happened next is subject to some dispute. Qualls went to the
ground as a result of Cormier's chokehold grip, and
McDonald may have released Beier from his grip. Qualls got up
and started to walk toward the door. Qualls testified that
Beier's arms were free and he reached into his pants as
if reaching for a gun. McDonald testified that he had a firm
grip on Beier. In either event, Qualls pulled his pistol from
his pocket and fired its contents, some 12 bullets, into
Beier. Beier died from his wounds.
security cameras recorded the activities in the bar, and the
recordings were introduced at trial. Unfortunately, the video
recordings, although taken from different angles, are too
choppy and indistinct to allow a clear understanding of what
happened, and they neither confirm nor disprove Qualls'
version of the events that prompted him to draw his gun and
and his wife then left the bar and drove off while someone
fired shots at them, shooting out a car window and a tire as
they left. Qualls dropped the gun somewhere in Topeka and
later drove to Kansas City. He turned himself in to police a
couple of weeks later. Following his conviction in the second
trial, he took a direct appeal to this court, raising
numerous claims of error. We ...