State v. Hardy

• Citation: 305 Kan. 1001,390 P.3d 30
• Decision Date: 10 March 2017
• Docket Number: No. 110,982,110,982
• Parties: STATE of Kansas, Appellant, v. Marlon T. HARDY, Appellee.
• Court: United States State Supreme Court of Kansas

305 Kan. 1001

390 P.3d 30

STATE of Kansas, Appellant,

v.Marlon T. HARDY, Appellee.

No. 110,982

Supreme Court of Kansas.

Opinion filed March 10, 2017

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.

The opinion of the court was delivered by 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 current statute." The court further explained:

"My ruling at the preliminary hearing was simply that there was probable cause that a crime was committed ... and probable cause to believe the defendant committed it. That's the purpose of a preliminary hearing. I didn't go outside those parameters. It's inappropriate. I voiced no opinion on whether the defendant could use self-defense or whether it was justified.

"And I do not believe that a finding of probable cause at a preliminary hearing means implicitly the statute has been complied with."

Turning to the procedure for a self-defense immunity hearing, the court continued:

"So ultimately our Supreme Court says we like Rodgers . We like the Kentucky Supreme Court. ... [T]he Court directed in Rodgers that once a defendant raises the issue of immunity—and that's what's been raised here by statute—the State has the burden to establish probable cause. And it may do so by directing the Court's attention to the evidence in the record, including witness statements, investigative letters prepared by law enforcement officers, photographs, and other documents of record.

"Based on that language, and that language alone in the context of this opinion, I do not believe that the State's required to present evidence, per se, as far as sworn witness testimony, whether to lay foundation for me to review photographs or whether [to] lay foundation for any other documents they want me to look at."

The lower court thus ruled the parties could present whatever evidence they wanted in any form. In response, the parties submitted the matter to the court on the existing record, which included the sworn testimony from the preliminary hearing along with certain designated documentary evidence, including police interviews with Hardy and Y.M. along with law enforcement affidavits.

Ultimately, the district court weighed the evidence and granted Hardy's motion, holding he was immune from prosecution pursuant to K.S.A. 2016 Supp. 21–5231. The court concluded Hardy used "deadly force" as defined in K.S.A. 2016 Supp. 21–5221(a)(2), but the presumption of reasonableness set forth in K.S.A. 2016 Supp. 21–5224(a)(1)(A) applied because Flores entered an occupied vehicle to strike Hardy. Therefore, the court found the State had failed to carry its burden of probable cause:

"Based on the defendant, as I find it, having been struck while a passenger in the car, which was a convertible with its top down, and being struck in the face by the victim two or three times, this type of action by the victim can cause great bodily harm, thus causing the defendant having to prevent imminent great bodily harm."

In so ruling, the district court recognized that "a conflict in the evidence exists, and it's inherent," but "[i]f this is just an exercise in determining whether there are conflicts in [the] evidence or the information provided to a district court judge ... this statute is meaningless." The court expressly made the following findings of fact after considering the totality of the evidence: (1) Hardy could not escape; (2) Flores instigated the violence inside the vehicle; (3) Hardy told Flores to stop; and (4) at the time Hardy shot Flores, Flores was "very close to the defendant regardless, and the time between the punches and the shot fired is mere seconds."

On appeal, the Court of Appeals reversed and remanded, holding: (1) "[A] district court must conduct an evidentiary hearing on a motion for self-defense immunity"; and (2) "[t]he district court must view the evidence in a light favoring the State." State v. Hardy , 51 Kan.App.2d 296, 304, 347 P.3d 222 (2015). The Court of Appeals acknowledged that Ultreras declined to outline the procedures for presenting or resolving an immunity claim but explained, "This case requires us to fill that void." 51 Kan.App.2d at 296, 347 P.3d 222. In so doing, the panel held:

"[A] district court must conduct an evidentiary hearing on a motion for self-defense immunity, unless the parties otherwise stipulate to the factual record. The rules of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in

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