State v. Barlow ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,830
STATE OF KANSAS,
Appellant,
v.
MICAL BARLOW,
Appellee.
SYLLABUS BY THE COURT
1.
An order of acquittal must resolve a factual element in the case after jeopardy has
attached. There is no question that jeopardy has attached when there has been a jury
verdict of guilt and the language of the district judge's order in this case demonstrates that
it resolved a factual element. The order therefore qualifies as an acquittal, and the Court
of Appeals lacked jurisdiction to reinstate the defendant's conviction for attempted
second-degree murder, despite error committed in the district court.
2.
In answer to the State's question reserved, this court holds that a district judge may
sua sponte grant Stand-Your-Ground immunity to a criminal defendant after a jury has
returned a guilty verdict but before sentence has been pronounced. Under the language of
the controlling statute, the judge has the power to do what a defendant no longer has the
right to ask the judge to do.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 20,
2013. Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed February 19, 2016.
1
Judgment of the Court of Appeals reversing and remanding to the district court is reversed. Judgment of
the district court is affirmed.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the briefs for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellee.
The opinion of the court was delivered by
BEIER, J.: This case concerns the Court of Appeals' reinstatement of defendant
Mical Barlow's jury conviction for attempted second-degree murder after the district
court's K.S.A. 2014 Supp. 21-5231's "Stand-Your-Ground" order dismissing that charge.
Barlow argues that the district judge's postconviction order was a judgment of
acquittal untouchable by the Court of Appeals. The State would not classify the order as a
judgment of acquittal, and it argues that, regardless, the Court of Appeals had appellate
jurisdiction to reach the State's question reserved.
FACTUAL AND PROCEDURAL BACKGROUND
Liberal police officers, responding to a disturbance call originating from an
apartment complex, found Barlow waving a gun outside the apartment of M.S., the
mother of J.M.-M. Both J.M.-M. and his mother were inside. Officers ordered Barlow to
drop the weapon and lie on the ground. Barlow complied, and officers handcuffed him.
2
The State charged Barlow with attempted second-degree murder of J.M.-M.,
aggravated assault of M.S., and aggravated assault of J.M.-M.'s uncle, who had been
outside of the apartment before police arrived.
Barlow did not assert Stand-Your-Ground immunity before trial.
At trial J.M.-M. testified about the circumstances leading to the confrontation at
his mother's apartment. J.M.-M. said he had been at Barlow's apartment a few doors
away, where he, Barlow, and Barlow's ex-girlfriend, T.S., had been drinking wine for
some time. J.M.-M. said that Barlow made a sexual advance toward him and tried to pull
down J.M-M.'s pants. When J.M.-M. pushed Barlow away, Barlow ran into his bedroom
and retrieved a gun. J.M.-M. heard several clicks and believed that Barlow had pulled the
gun's trigger. J.M.-M. then tussled with Barlow, trying unsuccessfully to grab the gun.
J.M.-M. then ran out of Barlow's apartment and to his mother's apartment.
At the close of the State's case-in-chief, Barlow sought a judgment of acquittal.
Viewing the evidence admitted in the light most favorable to the State, the district judge
denied the motion.
Barlow defended the case on the theory that his use of force was necessary to
protect another. He testified that he and J.M.-M. had been intimate in Barlow's apartment
in the weeks before the incident giving rise to the charges. According to him, it was
typical for the two to drink alcohol and then engage in oral sex. Barlow testified that T.S.
was also his sexual partner. On the day of the incident, the three became "highly
intoxicated" and discussed engaging in "sexual activities with each other." Barlow said
that he and J. M.-M. began "groping and fondling" each other while T.S., who was
wearing only a shirt and panties, was unconscious in a chair. At some point, J.M.-M.
pushed Barlow to the floor and climbed on top of T.S., who remained unconscious.
3
Barlow yelled at J.M.-M. to leave. Instead, J.M.-M. put one hand into T.S.'s panties and
began masturbating. Barlow again yelled at J.M.-M. to leave, which J.M.-M. did not do.
Barlow then jumped on J.M-M.'s back, trying to pull him away from T.S, but J.M.-M.
resisted, flinging Barlow to the floor. Barlow then retrieved a loaded revolver and placed
it against the back of J.M-M.'s head. When asked at trial if he pulled the trigger, Barlow
replied, "It's possible." Barlow also acknowledged that he had told police he did pull the
trigger but the gun did not fire because its safety was engaged. Barlow further testified
that he had wanted to scare J.M.-M. with the sound of the gun being cocked. Barlow said
he then chased J.M.-M. out of the apartment and into M.S.'s apartment.
Defense counsel did not renew the earlier motion seeking a judgment of acquittal
at the close of all of the trial evidence.
The district court judge instructed the jury on the use of force in defense of
another, i.e., the defense theory. But the jury convicted Barlow of attempted second-
degree murder of J.M.-M. and of aggravated assault of J.M-M.'s mother. The jury
acquitted Barlow on the aggravated assault count connected to J.M-M.'s uncle.
Barlow's presentence investigation report included a letter that Barlow had
apparently written 2 months before trial. The letter, opening with "To Whom This May
Concern," alleged that J.M.-M. had raped T.S. and that Barlow had brandished his gun to
stop the rape from continuing.
Before sentencing, the district judge issued a written order in which he ruled that
Barlow qualified for K.S.A. 2014 Supp. 21-5231 immunity from prosecution on the
attempted second-degree murder charge. Accordingly, the district judge wrote:
"[Barlow's] conviction of attempted second[-]degree murder is vacated and that count is
dismissed." The order further indicated that the district judge had considered immunity
4
sua sponte and that the immunity ruling meant the judge did not need to reach the merits
of Barlow's latest motion for judgment of acquittal.
At sentencing, the State informed the district judge of its intent to appeal the
immunity order. The district judge sentenced Barlow to 36 months' probation with an
underlying sentence of 13 months' imprisonment on the remaining conviction for
aggravated assault of M.S.
The State's notice of appeal cited K.S.A. 22-3602(b)(2), which permits appeal
from an arrest of judgment, and, in the alternative, K.S.A. 22-3602(b)(3), which permits
an appeal on a question reserved. The question reserved centered on the district judge's
employment of the Stand-Your-Ground immunity statute to override the jury's verdict,
vacate Barlow's attempted second-degree murder conviction, and dismiss that charge.
A panel of the Court of Appeals reversed the district court's immunity order,
reinstated Barlow's attempted second-degree murder conviction, and remanded the case
for further proceedings, presumably, resentencing. State v. Barlow, No. 108,830, 2013
WL 6799252, at *3 (Kan. App. 2013) (unpublished opinion). Relying on this court's
decision in State v. Jones, 298 Kan. 324, 311 P.3d 1125 (2013), which stated that a
criminal defendant must assert Stand-Your-Ground immunity before trial opens or a
dispositive plea is entered, the panel held that the district judge had no legal basis for his
unilateral decision. Rather than relying on either of the statutory subsections cited in the
State's notice of appeal, the panel determined that it had appellate jurisdiction under
K.S.A. 2012 Supp. 22-3602(b)(1), which allows the State to appeal "an order dismissing
a complaint, information or indictment."
We granted Barlow's petition for review.
5
DISCUSSION
Was the District Court's Order a Judgment of Acquittal?
Barlow argues that the district judge's written order was a judgment of acquittal,
which divested any state appellate court of jurisdiction to reinstate his conviction. The
State argues that the order qualifies for full appellate review and rejection because it
arrested judgment or dismissed a part of the State's case.
The determination of jurisdiction involves a question of law over which this
court's scope of review is unlimited. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002(2014). "Subject to certain exceptions, Kansas appellate courts have jurisdiction to
entertain an appeal only if the appeal is taken in the manner prescribed by statutes." State
v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011).
One of the types of district court decisions the State may appeal is "an order
dismissing a complaint, information or indictment." K.S.A. 2014 Supp. 22-3602(b)(1). It
is this description of the district judge's order upon which the Court of Appeals panel
relied. Barlow, 2013 WL 6799252, at *2. The State also may appeal an order arresting
judgment. K.S.A. 22-3502. The State does not have a right to appeal a judgment of
acquittal, because appellate review of a decision after acquittal constitutes double
jeopardy. Roberts, 293 Kan. at 34 (citing State v. Gustin, 212 Kan. 475, 480, 510 P.2d
1290 [1973]).
This court has long recognized that "[t]he distinction between a judgment of
acquittal [and] of dismissal is often not easily determined." State v. Beerbower, 262 Kan.
248, 252, 936 P.2d 248 (1997). And the "trial judge's characterization of his own action
does not control the classification of the action." State v. Whorton, 225 Kan. 251, 254,
6
589 P.2d 610 (1979); see Roberts, 293 Kan. at 35 ("It does not matter how a party or a
district court labels a motion or order; that characterization does not control.").
In Roberts, this court explained that in order for an order to be a nonappealable
acquittal, it must "(1) resolve[] a factual element (2) after jeopardy has attached." 293
Kan. at 35.
"The first aspect of this statement is the requirement that a judgment of acquittal
be '"a resolution, correct or not, of some or all of the factual elements of the offense
charged."' Whorton, 225 Kan. at 254 (quoting [United States v.] Scott, 437 U.S. [82,] 97[,
98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978)]); see Kansas Law Review Criminal Procedure
Survey, 58 Kan. L. Rev. 1311, 1412 (June 2010) ('Judgments of acquittal resolve some or
all of the factual elements of the case, and the law protects defendants from double
jeopardy by preventing the prosecution from appealing these judgments.'); 15B Wright,
Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3919.6, p. 690 (2d ed.
1992) ('[T]he fact that the order is characterized as an acquittal does not defeat appeal if it
does not rest on factual determination of an element of guilt or innocence.').
"This general statement is supported by the Kansas statute that authorizes
judgments of acquittal, K.S.A. 22-3419, which provides in pertinent part:
"'(1) The court on motion of a defendant or on its own motion shall order
the entry of judgment of acquittal of one or more crimes charged in the
complaint, indictment or information after the evidence on either side is
closed if the evidence is insufficient to sustain a conviction of such crime
or crimes. If a defendant's motion for judgment of acquittal at the close
of the evidence offered by the prosecution is not granted, the defendant
may offer evidence without having reserved the right.' (Emphasis
added.)" Roberts, 293 Kan. at 35-36.
7
Turning to the jeopardy requirement, the Roberts court recognized that "jeopardy
protections attach only 'when a jury is [i]mpaneled and sworn, or, in a bench trial, when
the judge begins to receive evidence.' [Citations omitted.]" 293 Kan. at 37; see State v.
Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989) ("In a jury trial, jeopardy attaches when a
jury is impaneled and sworn"; "[i]n a bench trial, jeopardy attaches when the first witness
is sworn.").
If both elements are present, "'"a judgment of acquittal, correctly or incorrectly
arrived at, terminates the prosecution, and the double jeopardy clause of the Fifth
Amendment bars further proceedings against the defendant." [Citations omitted.]'"
Roberts, 293 Kan. at 39.
In this case, the Court of Appeals panel focused on what it believed to be the
tardiness of the district judge's consideration of Stand-Your-Ground immunity. This
focus on timing obscured the more basic question of whether the order underlying the
appeal qualified as a judgment of acquittal. Again, the path taken by a district judge to
arrive at such an acquittal order may be flawed, but, regardless, it is not subject to
reversal on appeal. Reinstatement of a defendant's conviction is forbidden.
In this case, there is no question that the second element necessary for an acquittal
order is present: jeopardy had attached. Barlow's jury had been impaneled and sworn,
had received evidence, had heard arguments, had deliberated, and had returned a verdict.
This moves us to address the first element, whether the district judge's order resolved
some or all of the factual elements of the offense charged. See Roberts, 293 Kan. at 35.
The district judge wrote that he found J.M.-M. to be "an extremely unreliable
witness" who "committed perjury throughout his entire testimony." In contrast, the judge
regarded Barlow as credible and wrote that "various points of his testimony were
8
corroborated by other evidence." The district judge found that J.M.-M. was "at a
minimum committing a sexual assault against [T.S.]" while she was unconscious due to
intoxication, "but most likely was committing rape against her with his fingers . . . ." The
district judge further determined that Barlow possessed a reasonable belief that J.M.-M.
was raping T.S. Noting that Barlow had made multiple attempts to intervene physically
before resorting to the retrieval and use of the revolver, the judge concluded that Barlow's
use of force to stop the rape was reasonable. Ultimately, "by a preponderance of the
evidence," the judge ruled that Barlow's version of events was true and that he was
entitled to Stand-Your-Ground immunity.
Generally, a reference to "preponderance of the evidence" means "'evidence which
shows a fact is more probably true than not true.'" In re B.D.-Y, 286 Kan. 686, 691, 187
P.3d 594 (2008). And the district judge's finding that Barlow's version of events was
more probably true than not true eliminated the possibility that the State could prove
beyond a reasonable doubt that Barlow's use of force was not reasonable. See K.S.A.
2014 Supp. 21-5108(c) (defendant entitled to instruction on every affirmative defense
supported by evidence; once defendant produces such evidence, "state has the burden of
disproving the defense beyond a reasonable doubt"). This necessarily means the district
judge found that the State could not meet its burden to prove Barlow's criminal
culpability; the State's evidence was insufficient to support a conviction for attempted
second-degree murder. This determination qualifies as a resolution of factual elements of
the charged offense.
Given this resolution, and the unquestionable attachment of jeopardy, we have no
hesitation in holding that the district judge's order qualified as a judgment of acquittal.
In addition, the State's argument that the district court's order was a mere arrest of
judgment is unsupported by the language of the district judge's order. A court may arrest
9
judgment "if the complaint, information or indictment does not charge a crime or if the
court was without jurisdiction of the crime charged," K.S.A. 2014 Supp. 22-3502. The
order under scrutiny here did not address either of the permissible statutory bases.
Because the district judge's order qualified as a judgment of acquittal, the Court of
Appeals lacked jurisdiction to reinstate Barlow's conviction upon a successful State
appeal. We note that, incidentally, this outcome also is consistent with our decision in
State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012). In that case, we held: "When the
State is entitled to appeal, it must elect to proceed under a specific statute or statutory
subsection, and its election governs the remedy, if any, available." 294 Kan. 98, Syl. ¶ 4.
Here, after narrowly identifying its statutory bases for appeal as K.S.A. 2014 Supp. 22-
3602(b)(2) (appeal from order arresting judgment) and K.S.A. 2014 Supp. 22-3602(b)(3)
(question reserved), the State was bound by its selections. K.S.A. 2014 Supp. 22-
3602(b)(1) governing appeals from orders dismissing a complaint, information, or
indictment was not an available option to support appellate jurisdiction in this case.
Does the Question Reserved by the State Have Merit?
The State's alternative jurisdictional basis for its appeal is K.S.A. 2014 Supp. 22-
3602(b)(3), which allows the State to obtain an appellate ruling on a particular point of
law, i.e., a question reserved, without attacking or affecting the defendant's acquittal. See
Berreth, 294 Kan. at 125. ("An appellate court's answer to a question reserved by the
State has no effect on the criminal defendant in the underlying case."); State v. Finch, 291
Kan. 665, 674, 244 P.3d 673 (2011) (answer to question reserved determines judge
erroneously granted motion of acquittal; judgment of acquittal unaffected).
Kansas appellate courts will consider a question reserved by the prosecution if the
issue presented is of "statewide interest important to the correct and uniform
10
administration of criminal law." Berreth, 294 Kan. at 121 (citing cases). A question
reserved is not appropriate "merely to determine whether error has been committed by the
trial court." 294 Kan. at 121. Rather, resolution of the question reserved must provide
helpful precedent. 294 Kan. at 122.
The question reserved as set forth in the State's notice of appeal reads:
"[W]hether the [district] court correctly interpreted and applied K.S.A. [2014 Supp.] 21-
5231 post-prosecution to override a jury verdict that rejected the provided defense of
another jury instruction and defense of another claim?"
In its brief before the Court of Appeals, the State reframed the question reserved
as follows:
"1) Can self-defense immunity be granted to overturn a jury verdict? . . .
"2) Is immunity still viable after a probable cause determination has been made?"
During oral argument before this court, the State recast the question once again
and asked simply: "How does self-defense immunity work?" Counsel for the State
requested substantive and procedural guidance on K.S.A. 2014 Supp. 21-5231.
We understand the State's frustration and are sympathetic. As we previously
explicitly recognized, the Stand-Your-Ground immunity statute provides "little guidance
as to the procedural aspects of how to apply [it]." State v. Ultreras, 296 Kan. 828, 842,
295 P.3d 1020 (2013). But the proper forum in which to answer the State's ultimate
question—"How does self-defense immunity work?"—is before the authoring body, the
state legislature.
11
We may be able, however, to provide narrower guidance, based on the language of
the question reserved in the notice of appeal and the reformulation of that question in the
State's brief before the Court of Appeals. In essence, we interpret that limited question to
be: "May a district judge sua sponte grant Stand-Your-Ground immunity to a criminal
defendant after a jury has returned a guilty verdict but before sentence on the conviction
has been pronounced?"
The State argues that this is a question of statewide importance because self-
defense claims are common and because district courts need guidance on how to
uniformly apply K.S.A. 2014 Supp. 21-5231. It had asserted before the Court of Appeals
that there was "simply no precedent to aid the district courts." This assertion compels us
to note that, at the time the State's brief to the Court of Appeals was filed, our decision in
State v. Ultreras, 296 Kan. 828, 843, 295 P.3d 1020 (2013), was still 2 months from
publication. And our decision in State v. Jones, 298 Kan. 324, 311 P.3d 1125 (2013),
would not be filed until later in 2013. But we agree with the State's most basic point. The
question as we have now restated it is one of statewide importance on which district
courts need guidance to enable uniform application of the law. It is an appropriate
question reserved.
The question also is one of statutory interpretation or construction, which we
review de novo. The rubric governing our analysis of such a question is, by now, a
familiar one.
"Interpretation of a statute is a question of law over which appellate courts have
unlimited review. [Citations omitted.]
"The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223
P.3d 780 (2010). While criminal statutes are generally strictly construed against the State,
12
this principle is subordinate to the rule that judicial interpretation must be reasonable and
sensible to effectuate the legislative design and the true intent of the law. State v. Phillips,
299 Kan. 479, 495, 325 P.3d 1095 (2014). In State v. Urban, 291 Kan. 214, 216, 239 P.3d
837 (2010), we stated:
'An appellate court must first attempt to ascertain legislative intent
through the statutory language enacted, giving common words their
ordinary meanings. [Citation omitted.] When a statute is plain and
unambiguous, an appellate court does not speculate as to the legislative
intent behind it and will not read into the statute something not readily
found in it. Where there is no ambiguity, the court need not resort to
statutory construction. Only if the statute's language or text is unclear or
ambiguous does the court use canons of construction or legislative
history or other background considerations to construe the legislature's
intent. [Citation omitted.]' (Emphasis added.)" State v. Keel, 302 Kan.
560, 572, 357 P.3d 251 (2015).
Because Ultreras and Jones have previously explored this territory, we begin with
the legal principles we can reliably take from them.
In Ultreras, defendant Manuel Ultreras had filed a pretrial motion to dismiss in
which he claimed Stand-Your-Ground immunity under K.S.A. 21-3219, the designation
of the current statute before a 2011 recodification of our criminal procedure statutes. The
district judge determined that Ultreras, as the movant, had the burden to prove by a
preponderance of the evidence that his use of force was necessary and that Ultreras failed
to meet this burden.
On appeal, we disagreed with the district judge's determination of the standard of
proof and allocation of the burden of persuasion. We said:
13
"[T]he only standard of proof referenced in K.S.A. 21-3219 is to the standard of probable
cause. To impose a preponderance of the evidence standard, we would have to add words
to the statute." 296 Kan. at 843.
We then reviewed cases in several other jurisdictions that had addressed Stand-
Your-Ground immunity statutes. Although we found some similarity between the Kansas
and Florida statutes, we ultimately distinguished them.
"The Florida statute, like the Kansas statute, does refer to a probable cause standard, but
only in reference to an arrest; it does not include language like that found in K.S.A. 21-
3219(c) providing that a 'prosecutor may commence a criminal prosecution upon a
determination of probable cause.' With no mention of the standard for initiating a
prosecution, the Florida court felt the need to specify one and, in doing so, employed a
commonly recognized rule of statutory construction that legislation should not be
interpreted in a way that makes it meaningless. [Citations omitted.] In contrast to the
Florida statute, . . . K.S.A. 21-3219(c) attaches the probable cause standard to the
prosecution of a criminal case. Given that legislative direction, it is not necessary for us
to guess at what the legislature may have intended.
"In addition, contrary to the situation in Florida, applying a probable cause
standard in Kansas does not mean that K.S.A. 21-3219 is useless. Generally, a detached
Kansas magistrate considering whether to issue a warrant or summons merely determines
'that there is probable cause to believe both that a crime has been committed and that the
defendant has committed it.' K.S.A. 22-2302(1). Under K.S.A. 21-3219, . . . once a
defendant raises justified use-of-force immunity before a court, a probable cause
determination must also include a determination that the defendant's use of force was not
justified under K.S.A. 21-3211, K.S.A. 21-3212, or K.S.A. 21-3213. Hence, the statute as
written with a probable cause standard adds [a] requirement and is meaningful." Ultreras,
296 Kan. at 843-44.
This discussion led us to hold that the standard of proof in a hearing on whether a
defendant is entitled to Stand-Your-Ground immunity from criminal prosecution is
14
probable cause and that the State bears the burden of establishing that the defendant's use
of force was not justified as part of its burden. Based on the posture of the Ultreras
appeal, this court was not called upon to make further rulings on the "procedures by
which the immunity defense should be presented to or resolved by the district court." 296
Kan. at 845.
In Jones we addressed an additional procedural question.
In that case, after a jury convicted defendant Austin Jones on two counts of first-
degree murder, Jones raised Stand-Your-Ground immunity for the first time on appeal.
We held that a defendant could not wait that long to raise the Stand-Your-Ground
immunity issue, and this holding was succinctly captured in the opinion's first syllabus
paragraph, which reads: "Immunity under K.S.A. 21-3219 cannot be invoked for the first
time on appeal after conviction." 298 Kan. 324, Syl. ¶ 1. However, we stated our holding
and its supporting rationale more expansively in the body of the opinion:
"[The] additional protection [of the State's burden to establish a defendant's use of force
was not justified, which was recognized in Ultreras] can be realized only if immunity
under K.S.A. 21-3219 is asserted as early as possible prior to trial. In other words, to the
extent that Jones urges us to look at the purpose of the statute to construe the procedure to
be followed, his argument that immunity can be raised for the first time on appeal is self-
defeating. If the purpose of the statute is to protect individuals from the burdens of
prosecution and conviction, that purpose cannot be effected when immunity is raised for
the first time on appeal. By that time, prosecution and conviction have occurred. The
burdens they impose cannot be lifted.
"We also note that, although the question of whether K.S.A. 21-3219 immunity
may be invoked for the first time on appeal is one of law, the determination to be made
on the existence of probable cause . . . once the statute has been invoked necessitates a
factual inquiry and determination. District courts are the places to hold evidentiary
15
hearings. Appellate courts are not. Indeed, Jones' case, with its many alcohol-imbibing
witnesses and their conflicting stories, is an excellent example of a situation in which all
of the factual examination and credibility weighing abilities and expertise of district
courts would be well used.
"The State directs the court's attention to K.S.A. 22-3208(4), which provides that
'consent to trial upon a complaint, information or indictment shall constitute a waiver of
defenses and objections based upon the institution of the prosecution . . . .' The only
sensible reading of K.S.A. 21-3219 is that it creates an affirmative defense to which
K.S.A. 22-3208(4) applies.
"Thus, on the only question before us today, we hold: If a defendant believes he
or she is entitled to Stand-Your-Ground immunity under K.S.A. 21-3219, then the
defense must be asserted before trial opens or a dispositive plea is entered. Such an
assertion is a timely trigger of the State's probable cause burden. A defendant who waits
to invoke K.S.A. 21-3219 immunity until appeal after conviction simply waits too long.
By that time, the facts and the defendant's guilt beyond a reasonable doubt have been
established. In Jones' situation in particular, the jury rejected his claim of self-defense.
This means the State has already borne an evidentiary burden far higher than the probable
cause burden imposed upon it by the Stand-Your-Ground statute." Jones, 298 Kan. at
333-34.
It is our Jones language requiring a criminal defendant seeking Stand-Your-
Ground immunity to invoke the statute's protection before trial opens or a dispositive plea
is entered that the State relies upon in this case. And we note that a Court of Appeals
panel has done likewise in at least one recent case, where it stated that a district court
may require by order or local rule that Stand-Your-Ground immunity be invoked early
enough in the process that the issue can be decided in conjunction with other issues at a
preliminary hearing. See State v. Hardy, 51 Kan. App. 2d 296, 303, 347 P.3d 222 (2015).
16
In Jones, we noted that K.S.A. 21-3219(a) affords immunity from "criminal
prosecution," which explicitly includes "arrest, detention in custody[,] and charging or
prosecution of the defendant." Jones, 296 Kan. at 330 (quoting K.S.A. 21-3219[a]). We
also observed that defining "criminal prosecution" to include "prosecution" was not
helpful to our interpretation of the statute. Jones, 296 Kan. at 332 (statute's circular
definition "tells us nothing").
We then examined several of the defendant's arguments in favor of his tardy
attempt to embrace Stand-Your-Ground immunity. Jones, 298 Kan. at 332-33. In the
process, although we did not say so explicitly, our statutory analysis made the analytical
shift from interpretation to construction, ultimately relying on the evident legislative
purpose behind what was then K.S.A. 21-3219 to reject the defendant's claim.
Today's specific question requires that we draw a distinction between the situation
before us in Jones—that is, the defendant's first-time-on-appeal effort to invoke Stand-
Your-Ground immunity—and the situation before us now—that is, the district judge's
invocation of Stand-Your-Ground immunity to acquit the defendant after a jury verdict of
guilt but before sentence had been pronounced on the conviction. In essence, we must
decide whether a district judge is endowed with the power to do what we have said our
criminal procedure statutes would no longer permit a defendant to ask him or her to do.
We conclude that a district judge does have the power to do what the district judge
did in this case.
First, the immunity statute itself does not make what the judge did impermissible.
The State's "prosecution" of a defendant found guilty either by a judge or a jury generally
ends with pronouncement of sentence. See In re Beck, 63 Kan. 57, Syl. ¶ 2, 64 P. 971(1901) ("A judgment regularly rendered on one of the offenses included in the verdict,
17
which has been executed in part by the imprisonment of the defendant, is the end of the
prosecution, and exhausts the power of the court in the case."); see also State v. Arculeo,
29 Kan. App. 2d 962, 972, 36 P.3d 305 (2001) (sentencing phase of criminal proceeding
constitutes proceeding in the "'prosecution'" of a criminal case; pronouncement of
sentence culmination of prosecution); State v. Buchanan, 78 Wash. App. 648, 652-53,
898 P.2d 862 (1995) (prosecution ends when final judgment entered on the cause);
Nicholson v. State, 24 Wyo. 347, 157 P. 1013 (1916) (prosecution does not end until final
judgment pronounced). Even Jones recognized this general principle. Jones, 298 Kan. at
332 ("The State's 'prosecution' of Jones ended with his sentencing."). The statute's
language indicates that its protection potentially encompasses not only commencement of
prosecution but also its continuation to sentencing.
Second, a judge is not prevented from ordering acquittal by K.S.A. 2014 Supp. 22-
3208(4), which, as we recognized in Jones, does prevent a defendant from taking issue
with the "institution" of a prosecution after the defendant has consented to trial or entered
a dispositive plea. On the contrary, a judge may order an acquittal even after a guilty
verdict, if, in the judge's estimation, the evidence was insufficient to support that verdict.
See K.S.A. 22-3419(a); State v. Lloyd, 299 Kan. 620, 648, 325 P.3d 1122 (2014) (trial
judge ordering acquittal determines whether, upon evidence, giving "full play to the right
of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of
fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt
beyond a reasonable doubt"). If a judge is empowered to overturn a jury verdict sua
sponte because the State failed to meet its burden to prove guilt beyond a reasonable
doubt, certainly a judge can sua sponte overturn a jury verdict because the State failed to
meet even its substantially lesser burden to show probable cause that a crime was
committed, that the defendant committed it, and that any argument that the defendant
used lawful force is without merit.
18
Having established the answer to the question before us and the reason this case
differs from Jones, we hasten to add that we are not ruling that the district judge
committed no error in this case. The existence and the proper exercise of power are
discrete concepts. It appears from the record that the judge may have applied the wrong
standard of proof when he couched his decision in terms of preponderance of the
evidence rather than probable cause, and he may have allocated the burden of persuasion
to the defense rather than to the State. Ultreras, 296 Kan. 828, governs these elements of
Stand-Your-Ground immunity and must guide future proceedings. As discussed in
relation to the acquittal issue, however, any error by the district judge does not support
reinstatement of Barlow's attempted second-degree murder conviction by an appellate
court.
One further, final note bears mention: The district judge in this case arrived at his
decision to grant Barlow Stand-Your-Ground immunity without providing the State an
opportunity for an evidentiary hearing on the issue. The State may not have desired one
here, and, even if it did, the judge's choice not to provide one may have been
understandable in this case's post-conviction posture. But, certainly, when a Stand-Your-
Ground immunity issue arises pretrial, upon a defense motion or otherwise, the State
should be provided an opportunity to meet its enhanced probable cause burden via an
evidentiary hearing. As the Court of Appeals panel suggested in Hardy, it may be most
sensible and efficient to combine such an immunity hearing with the defendant's
preliminary hearing. Hardy, 51 Kan. App. 2d at 303. As we said in Jones, "[d]istrict
courts are the places to hold evidentiary hearings. Appellate courts are not." 298 Kan. at
334.
19
CONCLUSION
We reverse the Court of Appeals' decision reinstating Barlow's attempted second-
degree murder conviction. The Court of Appeals lacked jurisdiction to reinstate the
conviction because the district judge had entered a judgment of acquittal on the charge.
No remand to district court for resentencing or other further proceedings is necessary.
The clarified question reserved by the State is: May a district judge sua sponte
grant Stand-Your-Ground immunity to a criminal defendant after a jury has returned a
guilty verdict but before sentence on the conviction has been pronounced? The answer to
this question is: Yes. A district judge may consider Stand-Your-Ground immunity sua
sponte at any time before pronouncement of sentence.
20