State v. Williams, No. 102,615.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: The opinion of the court was delivered by JOHNSON
• Citation: 295 Kan. 506,286 P.3d 195
• Docket Number: No. 102,615.
• Decision Date: 21 September 2012
• Parties: STATE of Kansas, Appellee, v. Keshia Denise WILLIAMS, Appellant.

295 Kan. 506
286 P.3d 195

STATE of Kansas, Appellee,
v.
Keshia Denise WILLIAMS, Appellant.

No. 102,615.

Supreme Court of Kansas.

Sept. 21, 2012.

[286 P.3d 197]

[295 Kan. 506]Syllabus by the Court

1. A typical appeal follows a three-step process: (1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.

2. An appellate standard of review focuses on the deference to be afforded the lower tribunal and establishes the framework by which a reviewing court determines whether the lower tribunal erred.

3. K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.

4. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.

5. If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a [295 Kan. 507]clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.

6. Although a defendant has a fundamental right to present his or her theory of defense, a defendant does not have a right to have the trial judge develop the defense theory.

7. Ordinarily, whether a victim has suffered great bodily harm is a question of fact for the jury to decide.

8. Where a defendant is charged with severity level 4 aggravated battery for having caused great bodily harm to the victim, but there is evidence that would reasonably justify a jury in convicting the defendant of severity level 7 aggravated battery for having caused bodily harm in a manner whereby great bodily harm, disfigurement, or death can be inflicted, the district court errs in failing to give a lesser included crime instruction on the severity level 7 offense. But the failure to give a lesser included crime instruction is clearly erroneous only if the reviewing court is firmly convinced that the jury would have convicted the defendant of the lesser included offense, if given the choice.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Stephen P. Jones, assistant county attorney, argued the cause, and Hillary McKinney, county attorney, Lucas J. Nodine, assistant county attorney, Derek Schmidt, attorney general, and Steve Six, former attorney general, were on the briefs for appellee.

[286 P.3d 198]

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

Keshia Denise Williams was convicted of aggravated battery for stabbing her long-time friend, Sandra Kelly, multiple times in the head with a steak knife during an altercation inside of Williams' home. On appeal, Williams claimed, inter alia, that the trial court should have given certain instructions even though Williams did not request them. We granted review of the instruction issues, in which Williams claims the district court [295 Kan. 508]should have, sua sponte, given the following instructions: PIK Crim.3d 54.17–A on no duty to retreat; PIK Crim.3d 54.18 on use of force in defense of a dwelling; and a lesser included offense instruction on severity level 7 aggravated battery. We find that the failure to give the instructions was not clearly erroneous and therefore the defendant is not entitled to obtain relief on appeal. We affirm the Court of Appeals' affirmance of the district court.

Factual and Procedural overview

On April 26, 2008, Kelly and her boyfriend, Steve Jones, had been staying with Williams for 3 days. That night, Cynthia Edwards and Donald Ray McWilliams were also present in Williams' house. The conflict between Williams and Kelly began when Williams, while seated at the kitchen table, told Jones that he and Kelly, who was then in the bedroom, would have to leave her house. Jones relayed comments between the two women to and from the kitchen and bedroom until Kelly entered the kitchen to directly engage in a verbal altercation with Williams.

Kelly repeatedly challenged Williams to “take it outside.” Initially, Williams tried to defuse the situation, but eventually she agreed to go outside. When Kelly went to the bedroom to put on her tennis shoes, Williams feared that Kelly had obtained a weapon. Accordingly, at some point after Williams got up from the kitchen table to follow Kelly outside, she picked up a knife. The two only made it to the door before the physical fighting began. According to Edwards, Kelly started that altercation by “throwing blows” and pulling two braids out of Williams' hair. Williams responded by stabbing Kelly in the head.

The fight stopped when Kelly realized blood was coming down her face. McWilliams then took the knife from Williams, and Edwards threw it into some trees. Police subsequently recovered a knife north of Williams' house, near some trees. But evidence was not produced at trial that definitively established that the found knife was the one used to stab Kelly.

Williams grabbed a towel and wrapped it around Kelly's head. She then called 911 and reported that she had stabbed Kelly, albeit [295 Kan. 509]she would later tell police that she believed that she had acted in self-defense.

Jones and another person took Kelly to the hospital, where she received “about a hundred stitches.” Kelly would later say that she had not felt much, if any, pain; that the only subsequent medical attention she required was to have the stitches removed; and that her wounds healed in a couple of months.

The police interviewed Kelly at the hospital. She initially told them that she had fallen and cut her head on a piece of glass. After the officers threatened to “get [her] for making a false statement,” Kelly related that she had been cut while fighting with Williams.

Eventually, Williams was charged with and tried on one count of severity level 4 aggravated battery, K.S.A. 21–3414(a)(1)(A). Williams moved for a judgment of acquittal at the close of the State's evidence. The trial court denied the motion, finding that, although there was no evidence connecting the knife the police had found with Kelly's stabbing injuries, there was evidence from which a jury could find that Kelly suffered great bodily harm. In the process of explaining that ruling, the court opined that “a hundred stitches is more than slight, trivial, minor or moderate harm.”

During trial, the prosecutor cross-examined Williams about the fact that she did not try to run from Kelly and hide or “do anything to get away from her.” In closing argument, the prosecutor returned briefly to

[286 P.3d 199]

the theme that Williams did not try to get away from Kelly.

The trial judge gave the jury a general self-defense instruction, but Williams was nevertheless found guilty of the level 4 aggravated battery charge. Upon appeal to the Court of Appeals, a split panel affirmed the conviction. The dissent opined that the trial court should have given a no duty to retreat instruction and a lesser included offense instruction on severity level 7 aggravated battery, notwithstanding the absence of any request for those instructions. See State v. Williams, No. 102,615, ––– Kan.App.2d ––––, 2010 WL 4156759, at *9–13 (Kan.App.2010) (unpublished opinion) (Leben, J., dissenting). The majority accepted the State's explanation that it proffered Williams' failure to run and hide as proof that she was not afraid of [295 Kan. 510]Kelly and, therefore, resorting to a deadly weapon was unjustified under the subjective prong of self-defense.

As noted, we granted review on the three issues involving unrequested instructions.

Standard of Review and the Clearly Erroneous Standard

Currently, when an instruction issue is being raised for the first time on appeal or has not been properly preserved with an appropriate objection in the trial court, we generally refer to K.S.A. 22–3414(3) and recite simply that “the standard of review is whether the instruction is clearly erroneous.” State v. Adams, 294 Kan. 171, 183, 273 P.3d 718 (2012); see State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011); State v. Magallanez, 290 Kan. 906, 925, 235 P.3d 460 (2010); State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 (2009), cert. denied––– U.S. ––––, 130 S.Ct. 3410, 177 L.Ed.2d 326 (2010). Often then, while still discussing the standard of review, we will explain that “ ‘[j]ury instructions are clearly erroneous only if the reviewing court is firmly convinced that the jury would have reached a different verdict had the error not occurred.’ State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).” Adams, 294 Kan. at 183, 273 P.3d 718.

That shorthand has tended to blur the distinction between what is to be decided on appeal and how the appellate decision is to be made. The “what” that must be decided on appeal typically follows a...