State v. Thomas

• Decision Date: 24 April 2020
• Docket Number: No. 116,111,116,111
• Citation: 462 P.3d 149,311 Kan. 403
• Parties: STATE of Kansas, Appellant, v. Freddie Alec THOMAS, Appellee.
• Court: Kansas Supreme Court

311 Kan. 403

462 P.3d 149

STATE of Kansas, Appellant,

v.Freddie Alec THOMAS, Appellee.

No. 116,111

Supreme Court of Kansas.

Opinion filed April 24, 2020.

Douglas A. Matthews, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellant.

Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

Freddie Alec Thomas shot and killed an unarmed man during an incident outside that man's residence. The State charged Thomas with first-degree murder. The district court granted Thomas' pretrial motion to dismiss based on self-defense immunity. A Court of Appeals panel reversed and remanded the case for another evidentiary hearing after concluding the district court failed to make sufficient findings of fact and conclusions of law. State v. Thomas , No. 116111, 2017 WL 6064660, at *13-14 (Kan. App. 2017) (unpublished opinion). Thomas challenges the panel's judgment. We affirm the panel.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas and his girlfriend, Sherry Muro, visited Muro's daughter, Marissa Reynolds, at Reynolds' home. At one time Muro lived at the house with her previous boyfriend, Jeremy Saldana, but she had since moved out. Muro did not know Saldana continued to live there.

Saldana did not care to see Muro or Thomas, so he left before they arrived. Later that evening, Saldana texted Reynolds to see if she could ask the couple to leave so he could come home. Reynolds asked her mother and Thomas to leave. Muro was shocked to learn Saldana was still living with her daughter. Muro testified her daughter "told me that she was texting [Saldana], that he was over in the park and that he was going to come and start some shit with Mr. Thomas." Thomas had heard about Saldana from Muro but had never met him. Reynolds said Thomas was "a little upset."

Thomas worked at the Ellsworth Correctional Facility and always carried a nine-millimeter handgun on his person, including that night. After learning Saldana was returning, Thomas went to his truck and put on the ballistic vest he wore at work. It is undisputed Thomas and Saldana confronted each other shortly after that. Thomas killed Saldana by shooting him three times. Witness accounts conflicted about what happened.

The State charged Thomas with first-degree premeditated murder under K.S.A. 2019 Supp. 21-5402(a)(1). After the preliminary hearing, Thomas moved to dismiss based on self-defense immunity under K.S.A. 2019 Supp. 21-5231. In response, the State argued Thomas did not qualify for statutory immunity because his use of deadly force was not justified under K.S.A. 2019 Supp. 21-5222 and because Thomas was the initial aggressor under K.S.A. 2019 Supp. 21-5226.

At an evidentiary hearing on the immunity claim, Detective Sergeant David Paden from the Barton County Sheriff's Office testified about his two interviews with Thomas. Reynolds and Muro also testified. The district court admitted the autopsy report into evidence. Thomas did not testify.

According to Paden, Thomas said he believed from conversations with Muro that Saldana was a violent man who typically carried weapons. Thomas said he was standing by his truck when Saldana walked up. Someone said, "[H]ere he is, look at him, look at him," and when Thomas turned, Saldana was in front of him.

Thomas asked Saldana, "What's the problem?" Saldana gave an unintelligible response but "kept coming at" Thomas.

Thomas told Paden he performed what he described as a "clearing maneuver," which is taught in law enforcement training as a self-defense technique to separate an officer from an assailant. He said there was no scuffle or fight aside from that. Thomas said he fired the first shot by accident. He explained the second and third shots by claiming he felt threatened because Saldana "kept coming at him." He suggested he was concerned about his safety and the safety of others. He said he did not know if Saldana would go inside the house or do anything to anyone else. Thomas acknowledged he never saw Saldana with a weapon.

On cross-examination, defense counsel asked Paden if it would "be objectively unreasonable at that point if somebody was coming at you to pull your weapon and fire it?" Paden responded, "Depending on the circumstances. There's a lot of things you have to take into consideration. The size of the person, their demeanor. It just kind of depends. I couldn't say one way or another for sure what one officer might find life threatening and another one might not."

In redirect, the following exchange occurred with the prosecutor:

"Q. [Prosecutor:] ... [T]aking into consideration what you have already spoken about regarding training and experience, what does your training tell you about the employment of deadly force against somebody who is perhaps just using force?

"A. [Paden:] Like I said, you have to take the whole situation at hand. I don't know that drawing his weapon was a wrong act. The information that he had had before with the fact that Saldana was a violent man, always carried a weapon, you have to take that into consideration. I don't know that him drawing the weapon was a wrong act.

"Q. [Prosecutor:] What about firing the weapon?

"A. [Paden:] That I said that was kind of have to be—I would have to be there in that situation to determine whether I would fire or not."

Reynolds described the incident at her home differently. She testified Thomas "was asking what [Saldana] looked like" before Thomas and Muro got into Thomas' truck to leave. And when Saldana appeared, Thomas turned the truck engine off. He then left the vehicle to walk over and "cut [Saldana] off" as Saldana walked through the yard. Their conversation, according to Reynolds, was Thomas asking Saldana, "Do you have a beef with me?" before grabbing Saldana by the throat. She testified Saldana "tried to get away but could not do so. ... He was trying to shove Mr. Thomas away so that he could get away." Saldana violently swung Thomas around before Thomas stepped back and shot Saldana three times.

Muro testified she had harsh words with Saldana at some point before the incident. She said, "Mr. Saldana had threatened me that I was nothing but a dirty nigger lover, and that's all I said to [Thomas]." Muro told Thomas about threats Saldana made about Thomas: "[Saldana] said he was going to kick [Thomas'] black ass."

As for the shooting, Muro said she and Thomas were never both in the vehicle with the key in the ignition and never drove away. In her version, Thomas stood by the house's porch—not by his truck—when Saldana confronted him. She said Saldana pushed Thomas before asking, "[Y]ou got a fucking problem with me?" Thomas replied, "I don't even know you." Muro testified she stepped between them to try to stop a fight. But Saldana "kept coming," at which point Thomas drew his gun and fired. Muro said the gunshots caused her ears to ring because she was "almost beside" Thomas when he fired. Muro's perception was that Saldana continued moving toward Thomas aggressively after the first shot and Thomas continued firing.

Dr. Lyle Noordhoek performed the autopsy. His report showed Saldana suffered two gunshot wounds

to the chest and another near the left ear. And based on the wounds' locations and paths through Saldana's body, he concluded Saldana appeared to have been moving forward at the time of the second shot and was leaned forward at the time of the third.

When the hearing ended, the district court made no distinct factual findings. It simply held the State did not meet its burden to show probable cause that self-defense immunity did not apply and dismissed the complaint. The court reasoned,

"I think this is a pretty hard burden for the State in any case to do probable cause, but I think in this case, it was especially hard, because contrary to the State's argument that putting on a vest is somehow an affirmative action for going after somebody, in this case particularly, it showed that the defendant was—sincerely and honestly believed the use of deadly force was necessary because he had a gun on from the time he went to visit his wife's—or his girlfriend's family. He wore it all the time. The only thing he goes to the car for is the bulletproof vest, which is not an affirmative action to go do something to somebody else. It's an action to defend yourself. Now so the subjective test I don't think the State could overcome.

"Frankly, as I was listening to the evidence, I thought, well, the State's going to be able to prove the second issue or at least on probable cause the second part of the test is objective and requires a showing that a reasonable person in the defendant's circumstances would have perceived the use of deadly force was necessary to defend himself, and I was—all along, until the last State's witness, I was getting ready—I hadn't heard anything that would indicate that they hadn't met that, but then Officer David Paden's testimony on direct examination by the State's attorney said he was of the opinion that, at the time, the defendant was justified in drawing his weapon. That was his direct testimony. If you're justified in drawing your weapon, that's an objective test. That's what the officer—that's what a police officer thought, the police officer that investigated the case. Well, if he's justified in drawing his weapon, an objective person would think that he's justified in firing it, because if you're justified in drawing it, you're justified in using it. That's the reason I'm granting it. I might get overturned. I probably will. I don't know. This is a strange statute."

The State timely appealed. A Court of Appeals panel reversed and remanded for a rehearing, noting the judge who presided over the first hearing had retired. Thomas , 2017 WL 6064660, at *13-14 ("Under these unique circumstances, and given the fact-intensive inquiry of self-defense immunity...