State v. Looney ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,004
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAMION K. LOONEY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed January 15, 2021.
Affirmed in part and dismissed in part.
Mark Sevart, of Derby, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: Following remand for resentencing from this court's decision in
State v. Looney, No. 117,398, 2018 WL 3485727, at *1 (Kan. App. 2018) (unpublished
opinion) (Looney I), the trial court denied Looney's renewed request for a downward
durational departure and refused to consider Looney's new trial motion under a belief that
its consideration violated the Looney I mandate. Looney now appeals those decisions.
As to the denial of his downward durational departure motion, Looney argues that
certain mitigating factors established that the trial court should have granted his
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downward durational departure motion at resentencing. Yet, for each of his convictions,
the trial court imposed presumptive sentences under the Kansas Sentencing Guidelines
Act (KSGA). Because this court lacks jurisdiction to consider the denial of a departure
motion when the trial court imposes KSGA presumptive sentences, this issue is not
properly before this court. State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011).
Thus, we dismiss this argument for a lack of jurisdiction.
As to the trial court refusing to consider his new trial motion upon remand,
Looney's new trial motion hinged on our Supreme Court's holding in State v. Hardy, 305
Kan. 1001, 390 P.3d 30 (2017), that trial courts should not view the evidence in the light
most favorable to the State when reviewing a defendant's immunity motion. Our Supreme
Court issued this holding while Looney's case was pending before this court in Looney I.
And it is undisputed that in denying Looney's pretrial immunity motion, the trial court
viewed the evidence in the light most favorable to the State. Thus, in moving for a new
trial upon remand, Looney asked the trial court to reconsider the denial of his immunity
motion under this intervening change of law. As he did below, Looney asserts that the
Looney I mandate did not prevent him from making a new trial motion upon remand.
Nevertheless, for reasons stated below, Looney's argument about the trial court's
refusal to consider his new trial motion upon remand is unpersuasive. So we affirm
because the trial court did not err by refusing to consider Looney's new trial motion or, if
it was error, the error was harmless. Thus, we affirm in part and dismiss in part.
Looney's Jury Trial
On July 28, 2015, the State charged Looney with the following: (1) the
aggravated battery of Breanna Connell; (2) the aggravated battery of Quinten Edwards;
(3) the aggravated battery of Davis McCoy; (4) the aggravated assault of Sean O'Neil; (5)
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the aggravated assault of Christian Wells; (6) animal cruelty; and (7) criminal possession
of a firearm. Later, the State also charged Looney with criminal discharge of a firearm.
The State's charges against Looney stemmed from his violent altercation with his
then-fianceé Connell and her friends—Edwards, McCoy, O'Neil, and Wells—late in the
evening of July 23, 2015, and early in the morning of July 24, 2015. It is undisputed that
during the evening of July 23, 2015, while at a bar with Connell and her friends, Looney
sprayed mace in Connell's face, which resulted in his removal from the bar. Afterwards,
Looney returned to his and Connell's shared home while Connell remained at the bar with
her friends. Upon arriving home, Looney threw his and Connell's cat Nola against a wall
so hard that he broke Nola's back, resulting in Nola's death. Looney ultimately pleaded
guilty to animal cruelty for killing Nola; thus, this fact is undisputed.
Notwithstanding the preceding, sometime after killing Nola, in the early morning
hours of July 24, 2015, Connell's friends dropped her off at her and Looney's shared
home. At the jury trial on Looney's remaining charges, Connell and her friends testified
that Looney started a fight by threatening Connell with his gun. Looney, on the other
hand, testified that he never threatened Connell with his gun. Instead, Looney alleged that
he had his gun with him because he had been contemplating suicide following his clash
with Connell at the bar. Also, he alleged that he acted in self-defense and in defense-of-
others, that is, defense-of-Connell, during the dispute that ensued between him and
Connell's friends.
In Looney's initial appeal to this court, this court summarized Connell's and
Looney's different versions of events as follows:
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"Connell's version of events
"When Connell got back to the house, she went inside and grabbed a container of
cottage cheese from the refrigerator. As she walked into the living room, she heard a
gunshot. As Connell went to ask Looney why he was using guns and mace, Looney
backed her onto the couch, holding the gun between her eyes. Connell slammed the
container of cottage cheese into Looney's face, grabbed her phone, and ran outside to call
her friends to come back and pick her up. Looney followed her outside and tackled her to
the ground. While they were outside, Connell's friends showed up. Edwards and McCoy
approached Connell and Looney, walking calmly with their hands in the air. Connell was
screaming and warned them that Looney was dangerous and had a gun. Eventually, they
helped Connell get into their car.
"Connell and Edwards decided to return to the house to retrieve Connell's dog.
When they were walking up to the house, Edwards saw Looney walking around to the
front of the house, still brandishing his gun. Once they were inside, Edwards locked the
door so that Looney could not come in and took Connell to the basement for her safety.
Looney was yelling and unsuccessfully tried to kick in the door. Looney turned to
McCoy, who was also outside the front door, pointed the gun at him, and told him that he
would shoot him if he did not get the door open. When McCoy was unsuccessful at
opening the front door, Looney hit him in the forehead with the nose of the gun.
"After realizing that neither the front nor the side door would open, Looney
noticed Wells and O'Neil waiting in the vehicle parked on the street. Looney approached
the vehicle and pointed the gun at Wells. O'Neil was on the phone with law enforcement.
Looney told them that if anyone called the police, he would shoot everyone. He turned to
O'Neil and told him that he better not be contacting the police, still threatening to shoot.
Looney then ran back toward the house. A bleeding McCoy ran to the vehicle, told them
to leave the area, and then ran back toward the house. O'Neil and Wells heard a gunshot
as they were pulling away. O'Neil remained on the phone with 911 dispatch, narrating
what he saw and heard.
"Looney made it to the side of the house right when Edwards was at the top of
the stairs. Looney yelled for Connell to get out of the house and then fired shots into the
house. A shot hit Edwards in the back of the head, and he fell backwards down the stairs.
Connell heard someone at the door, ran upstairs, and saw McCoy, who called the police.
Edwards survived but has significant long-term effects of his injuries.
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"Looney's version of events
"According to Looney, about an hour after he almost attempted suicide, he saw a
car pull up outside his house, and Connell got out. When Connell entered the house, she
and Looney began arguing. Looney told Connell how upset he had been and that he had
shot the couch instead of himself, but Connell did not believe him. Looney pointed out
that Connell had come home without her engagement ring on. Connell asked for her
phone and went outside, and Looney went into the bathroom and cried.
"When Connell came back in the house, the door opened behind her and Edwards
ran into the house and grabbed her, picking her up and carrying her out the front door.
Looney grabbed his gun and ran after them. Looney saw Edwards trying to put Connell in
his car, heard Edwards yell for her to get in the car, and heard Connell yell that she was
not going. Looney testified that he was terrified. He screamed and ran toward Connell as
she broke loose of Edwards. Connell then ran into the house, with Edwards and McCoy
running behind her. Looney pulled out his gun, pointed it at Edwards and McCoy, and
told them to leave.
"Connell was also yelling at the men to leave, but Edwards came through the
front door and entered the house. Looney pointed the gun at Edwards and told him to get
out, but McCoy grabbed Looney from behind, pinning Looney's arms to his side. Looney
fired two shots into the floor to scare McCoy, hoping McCoy would let him go. Instead,
Edwards and McCoy dragged Looney out of the house and locked the front door. Looney
could hear Connell screaming from inside and could see that she was on the floor. He
tried to kick in the door.
"McCoy ended up outside the house with Looney. The two got into a fight, and
Looney put the gun to McCoy's head and threatened to shoot him. Instead of shooting
him, Looney hit McCoy on the head with the gun. After the scuffle, Looney ran to the
side of the house, looked through the door, and saw Connell being dragged down the
stairs. When he saw someone coming up the stairs, Looney shot through the side door.
Not aiming at anyone or anything in particular, he shot as an instinctive reaction to
having seen Connell being dragged down the stairs without making a sound. After
shooting, Looney saw Edwards with a bloody face, bleeding from the head.
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"Looney ran away, put the gun in a tree, spent the night in an alley, and was
found the next day by police." Looney I, 2018 WL 3485727, at *1-2.
Because Looney alleged that he acted in self-defense, at his jury instruction
conference, Looney requested that the trial court instruct the jury on self-defense. He also
asked the trial court to instruct the jury on defense-of-others as to the aggravated battery
of Edwards. The trial court granted Looney's request in part. It instructed the jury on self-
defense as to the aggravated battery of McCoy and defense-of-Connell as to the
aggravated battery of Edwards. Yet, the trial court refused to instruct the jury on self-
defense as to Looney's other charges because it determined that a self-defense instruction
was factually inappropriate.
In the end, the jury convicted Looney of the aggravated assault of O'Neil, the
aggravated assault of Wells, criminal discharge of a firearm, and criminal possession of a
firearm. The jury also convicted Looney of the reckless aggravated battery of Edwards;
this was a lesser included offense of Looney's knowing aggravated battery of Edwards
charge. But the jury acquitted Looney of the aggravated batteries of Connell and McCoy.
The trial court then sentenced Looney to a controlling term of 239 months' imprisonment
followed by 12 months' jail-time, followed by 36 months' postrelease supervision.
Looney's Initial Appeal
After his sentencing, Looney appealed his convictions and sentence to this court.
Looney argued that this court should reverse his convictions and vacate his sentence for
the following reasons: (1) because the trial court wrongly treated his deferred
adjudication from Texas as a felony conviction in Kansas for the purpose of satisfying the
"felon" element of his felon in possession of a firearm conviction; (2) because the trial
court wrongly treated his deferred adjudication from Texas as a felony conviction in
Kansas for purposes of calculating his criminal history score; (3) because the State
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presented insufficient evidence to support his aggravated assault of Wells conviction; (4)
because the trial court erred by not instructing the jury on self-defense as to his
aggravated assault convictions; and (5) because the trial court erred by not instructing the
jury on defense-of-others as to his criminal discharge of a firearm conviction. Looney I,
2018 WL 3485727, at *3-7.
Ultimately, this court agreed with Looney's first, second, and third arguments.
Relying on our Supreme Court precedent in State v. Hankins, 304 Kan. 226, 372 P.3d
1124 (2016), because no judgment of guilt had ever been entered against Looney in his
Texas deferred adjudication case, this court held that the trial court could not consider
Looney's Texas deferred adjudication as a conviction in Kansas for any purpose. Looney
I, 2018 WL 3485727, at *3. In turn, this court did two things: First, it reversed Looney's
felon in possession of a firearm conviction because Looney's Texas deferred adjudication
could not satisfy the "felon" element of that offense. Second, it remanded to the trial court
for resentencing without consideration of Looney's Texas deferred adjudication for
criminal history purposes. 2018 WL 3485727, at *4.
Also, this court reversed Looney's aggravated assault of Wells conviction. This
court agreed that the State presented insufficient evidence to support this conviction
because nothing indicated that Looney's threat placed Wells in "reasonable apprehension
of immediate bodily harm," which is an element of aggravated assault. 2018 WL
3485727, at *4.
Nevertheless, this court rejected Looney's remaining arguments. This court held
that the trial court properly denied Looney's request to instruct the jury on self-defense as
to his aggravated assault charges because, in his case, the self-defense instruction was
factually inappropriate. Looney I, 2018 WL 3485727, at *6. Then this court held that
Looney could not establish that the trial court clearly erred by failing to instruct the jury
on defense-of-others as to his criminal discharge of a firearm conviction because the jury
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had rejected Looney's defense-of-others claim as to his aggravated battery of Edwards
charge; both Looney's aggravated battery of Edwards charge and his criminal discharge
of a firearm charge arose from the same act. 2018 WL 3485727, at *7.
Next, after this court issued Looney I, Looney petitioned our Supreme Court for
review. Yet, our Supreme Court ultimately denied Looney's petition for review. Then, on
May 6, 2019, this court issued its mandate to the trial court. The mandate provided that
the judgment of the trial court was "affirmed in part, reversed in part, sentence vacated,
and remanded with directions upon the denial." Of note, the last paragraph of Looney I
included the following orders: "We reverse Looney's convictions for criminal possession
of a firearm and for aggravated assault of Wells. We remand for resentencing without
consideration of Looney's Texas deferred adjudication for aggravated assault with a
deadly weapon. We affirm in all other respects." 2018 WL 3485727, at *7.
Looney's New Trial Motion Upon Remand
Upon remand, the trial court held Looney's resentencing hearing. But at the outset
of his resentencing hearing, Looney moved for a new trial.
Looney's new trial motion hinged on the trial court's previous denial of his self-
defense immunity from prosecution motion. In June 2016, several months before his jury
trial, Looney had moved for immunity from prosecution under a theory of self-defense.
In August 2016, the trial court held an evidentiary hearing on Looney's self-defense
immunity motion. But at the conclusion of that hearing, the trial court denied the motion
from the bench.
The trial judge who denied Looney's immunity motion explained that it was doing
so based on this court's holding in State v. Hardy, 51 Kan. App. 2d 296, 347 P.3d 222(2015), rev'd 305 Kan. 1001, 390 P.3d 30 (2017). There, this court held that when
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considering a defendant's immunity motion, "[t]he district court must view the evidence
in a light favoring the State, meaning conflicts in the evidence must be resolved to the
State's benefit and against a finding of immunity." 51 Kan. App. 2d 296, Syl. Thus, in
denying Looney's immunity motion based on this court's Hardy decision, the trial judge
"resolve[d] all [evidentiary] conflicts in a light favoring the State."
Yet, in March 2017, after Looney had filed his notice of appeal in Looney I but
before he submitted his appellant's brief, our Supreme Court reversed this court's Hardy
decision, holding as follows:
"[U]pon a motion for immunity pursuant to K.S.A. 2016 Supp. 21-5231, the district court
must consider the totality of the circumstances, weigh the evidence before it without
deference to the State, and determine whether the State has carried its burden to establish
probable cause that the defendant's use of force was not statutorily justified." 305 Kan. at
1011.
In his initial appeal, Looney did not challenge the trial court's denial of his self-
defense immunity motion. Nevertheless, at his resentencing hearing upon remand,
Looney asserted that the trial court should grant his new trial motion because when it
denied his self-defense immunity motion, it considered the evidence in the light most
favorable to the State contrary to our Supreme Court's decision in Hardy. In other words,
Looney argued that he was entitled to the application of our Supreme Court's holding in
Hardy because it had occurred while his case was pending on direct appeal.
Yet, the State countered that Looney's new trial motion was "not properly before
the Court" because it was "not the subject of the remand." In the end, the trial court
agreed with the State. It explained that it would not consider Looney's new trial motion
because it could not do so under this court's appellate mandate: "The remand [was] very
specific. It was to correct a criminal history issue as well as the Court of Appeals finding
that there was insufficient evidence on one of the counts."
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Afterwards, the trial court denied Looney's downward durational departure motion
and sentenced Looney to a controlling term of 111 months' imprisonment followed by 12
months' jail-time, followed by 36 months' postrelease supervision.
Looney timely appeals.
Did the Trial Court Err by Not Considering Looney's Motion for a New Trial on
Remand?
Although Looney's appellate brief is sometimes vague, it is readily apparent that
he continues to make the same argument that he made before the trial court upon remand:
Our Supreme Court's Hardy holding applies to him because our Supreme Court issued its
Hardy decision while his direct appeal before this court was still pending. Thus, upon
remand from the Looney I court, the trial court here had to consider this change of law as
raised in his new trial motion.
Significantly, under our Supreme Court precedent, "'a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or federal, pending
on direct review or not yet final.' [Citation omitted.]" Gaudina v. State, 278 Kan. 103,
106, 92 P.3d 574 (2004); see also State v. Broxton, 311 Kan. 357, Syl. ¶ 3, 461 P.3d 54(2020) (holding that "[a] defendant may claim the benefit of developments in the law
occurring while his or her case is pending on direct appeal."). Thus, our Supreme Court
precedent suggests that Looney is entitled to reconsideration of his self-defense immunity
motion based on the change of law described by our Supreme Court in Hardy.
In its brief, however, the State contends that the trial court had the authority only
to resentence Looney upon remand because this court's mandate from Looney I was
"precisely limited to the matter of resentencing." Also, the State argues that upon remand,
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Looney could not relitigate the trial court's denial of his self-defense immunity motion
because Looney abandoned his ability to do so by not challenging the denial of his self-
defense immunity motion in Looney I. For this reason, the State argues that the immunity
issue has been finally decided against Looney.
The State's arguments, however, do not directly address Looney's underlying
assertion that our Supreme Court's decision in Hardy constituted a change of law that he
was entitled to claim the benefit of upon remand. Instead, the State's arguments hinge on
its belief that the Looney I court's mandate barred the trial court from reconsidering the
earlier denial of Looney's self-defense immunity motion upon remand.
In arguing that the mandate rule precluded the trial court's review of Looney's new
trial motion, the State relies on K.S.A. 60-2106(c), K.S.A. 20-108, State v. Collier, 263
Kan. 629, 952 P.2d 1326 (1998), and State v. Soto, 310 Kan. 242, 445 P.3d 1161 (2019).
The State recognizes that in Soto, our Supreme Court held that the mandate rule does not
preclude a defendant from raising new or outstanding issues upon remand. Even so, the
State asserts that Looney's case is distinguishable from Soto because Looney is not
raising a new or outstanding issue on remand. Instead, according to the State, Looney's
new trial motion upon remand simply sought to relitigate the trial court's original denial
of his self-defense immunity motion, which he abandoned by not challenging it in Looney
I.
Appellate Mandate Law
To fully address the parties' arguments, this court must first review the relevant
law on appellate mandates.
K.S.A. 60-2106(c) describes the appellate court process of issuing mandates and
discusses the effect of an appellate mandate on the trial court. It provides:
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"The supreme court may by rule provide for post decision motions for rehearing
or other relief. When under such rule a decision of an appellate court becomes final, such
court shall promptly cause to be transmitted to the clerk of the district court its mandate
containing such directions as are appropriate under the decision. A copy of the opinion of
the court shall accompany and be a part of the mandate. The clerk of the district court
shall make a notation thereof on the appearance docket. Such mandate and opinion,
without further order of the judge, shall thereupon be a part of the judgment of the court
if it is determinative of the action, or shall be controlling in the conduct of any further
proceedings necessary in the district court."
Meanwhile, K.S.A. 20-108 states that Kansas appellate courts have the authority
to issue mandates to Kansas trial courts:
"An appellate court of this state may require the district court of the county
where any action or proceeding shall have originated to carry the judgment or decree of
the appellate court into execution; and the same shall be carried into execution by proper
proceedings, by such district court, according to the command of the appellate court
made therein."
In Collier, our Supreme Court considered the preceding statutes while determining
whether the trial court violated its mandate upon its initial remand for resentencing.
Following his initial appeal, our Supreme Court vacated Collier's hard 40 sentence and
remanded for resentencing because the State had not timely filed its notice requesting the
imposition of Collier's hard 40 sentence. Upon remand, however, the trial court allowed
the State to present evidence that it had properly filed its notice requesting the imposition
of Collier's hard 40 sentence. Because it agreed that the State's notice was properly filed,
the trial court ultimately reimposed Collier's hard 40 sentence.
Collier appealed from his resentencing, and our Supreme Court reversed the trial
court because it had violated the law of the case doctrine and the mandate rule by
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reconsidering the adequacy of the State's notice to impose a hard 40 sentence upon
remand. Collier, 263 Kan. at 637. Concerning the law of the case doctrine, our Supreme
Court explained that the doctrine "applied to avoid indefinite relitigation of the same
issue, to obtain consistent results in the same litigation, to afford one opportunity for
argument and decision of the matter at issue, and to assure the obedience of lower courts
to the decisions of appellate courts." Collier, 263 Kan. 629, Syl. ¶ 2. As for the mandate
rule, our Supreme Court determined that the plain language of K.S.A. 60-2106(c) and
K.S.A. 20-108 existed to ensure that an appellate court's mandate from a previous appeal
becomes a controlling judgment in any further proceedings. Collier, 263 Kan. at 635-36.
Our Supreme Court then concluded that it was "axiomatic" that upon remand from an
appellate mandate that the trial court "proceed in accordance with the mandate and the
law of the case as established on appeal." Collier, 263 Kan. 629, Syl. ¶ 4.
Thus, in Collier, our Supreme Court held that trial courts must follow appellate
mandates upon remand. And in doing so, "the trial court must implement both the letter
and spirit of the mandate." 263 Kan. 629, Syl. ¶ 4.
Yet, in Soto, our Supreme Court clarified that the mandate rule did not bar the trial
court from considering new or undecided issues upon remand. In Soto's initial appeal, our
Supreme Court determined that Soto's hard 50 sentence violated the United States
Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 111-16, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013). Thus, our Supreme Court vacated Soto's hard 50
sentence and remanded for resentencing. Upon remand, Soto moved for a new trial based
on newly discovered evidence indicating that the State had violated Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But the trial court refused to
consider Soto's new trial motion because it determined that consideration of the motion
fell outside the scope of the Supreme Court's mandate. Soto, 310 Kan. at 248.
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Soto appealed this ruling to our Supreme Court, arguing that its mandate did not
bar the trial court from considering his new trial motion upon remand. The State
countered that the trial court properly ignored Soto's new trial motion because the
mandate merely discussed resentencing Soto, which meant the trial court had "no
jurisdiction to do anything else after remand, period." Soto, 310 Kan. at 250. Also, the
State cited to K.S.A. 60-2106(c), K.S.A. 20-108, and Collier to support its argument. 310
Kan. at 250, 253.
In disagreeing with the State's arguments, our Supreme Court first explained that
the State's reliance on K.S.A. 60-2106(c) and K.S.A. 20-108 was misplaced:
"The language of neither K.S.A. 60-2106(c) nor K.S.A. 20-108 explicitly or even
implicitly deprives a district court of its jurisdiction to address an entirely new issue that
surfaces in a case as a result of events that occur after a mandate issues. And it is not this
court's task to add to the plain language of a longstanding legislative formulation to
effectuate a party's desire.
"In addition, the historical record of the enactments tends to show that these
statutes were merely designed to enforce the hierarchy of Kansas courts, ensuring that
appellate orders would not be ignored by lower courts. They were not designed to set up
broad limits on subject matter jurisdiction once a case was remanded. [Citation omitted.]"
Soto, 310 Kan. at 252.
Our Supreme Court then explained that despite the State's arguments to the
contrary, the Collier court never held that trial courts may consider only issues addressed
in the appellate mandate upon remand:
"We have no quarrel today with Collier's recitation of the origins of the mandate
rule or its application of the rule and the doctrine of law of the case generally to prevent
the State and the district court from revisiting an issue already settled by the appellate
court. It is exactly such relitigation that the mandate rule should eliminate. But Collier
simply cannot do the heavy lift the State assigns to it. It did not call the mandate rule
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jurisdictional, and it did not eliminate the district court's ability to address any matter left
undecided by the issuance of the appellate mandate." Soto, 310 Kan. at 253-54.
Then, based on this analysis, as well as other Kansas precedent, our Supreme
Court defined the mandate rule as follows:
"The [mandate] rule applies to prevent district court action on remand only when an issue
has already been finally settled by earlier proceedings in a case, including issuance of the
appellate mandate. If a final settlement of an issue has occurred, the district judge is not
free to expand upon or revise that history. The mandate rule does not, however, prevent a
district judge from doing whatever else is necessary to dispose of a case. This means the
district judge must not only do as the mandate directs; he or she must also do what is
needed to settle other outstanding issues that must be decided to complete district court
work on the case. Such issues may have been allocated for decision in the district court in
the first place and then untouched by appellate proceedings. They may [also] include
issues arising from late-breaking facts. [Citations omitted.]" 310 Kan. at 256.
Finally, our Supreme Court held that under the preceding mandate rule, the trial
court erred by not considering Soto's new trial motion upon remand because "Soto [had]
not [sought] to relitigate anything that predated the mandate." Soto, 310 Kan. at 256. He
instead "sought the court's action on a legal issue arising from facts unknown to him until
the morning his resentencing trial was set to begin." 310 Kan. at 256. Thus, our Supreme
Court then reversed and remanded to the trial court for a hearing on Soto's newly
discovered evidence-Brady violation claim. 310 Kan. at 262.
This case, however, is distinguishable from Soto. Unlike Soto, there was no newly
discovered evidence in this case. For example, Looney's initial motion for a new trial was
based, in part, on trial counsel's belief that the jury should have been allowed to fully
consider Looney's theory of self-defense. The trial court here denied the motion for new
trial and that issue was not raised by appellate counsel as part of Looney's direct appeal.
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Thus, this issue would have been deemed abandoned because of Looney's failure to raise
it in his direct appeal.
Under the Soto mandate rule, an appellate mandate controls all issues decided by
the earlier proceedings in the case. So the appellate mandate would bar relitigating any
issue that had been decided before the mandate. The appellate mandate here would have
prevented Looney from relitigating the applicability of his self-defense theory at his
resentencing hearing. Thus, the trial court here correctly ruled Looney’s motion for a new
trial was beyond the scope of the appellate mandate.
Indeed, this court's appellate mandate was clear, and it was precisely limited to the
matter of resentencing Looney in accordance with the appropriate criminal history score.
Thus, the trial court properly declined to engage in an analysis of Looney's motion about
a new trial.
Harmless Error
Finally, Looney's underlying argument in his new trial motion about the Hardy
change of law requiring reversal of his conviction is unpersuasive.
In State v. Ultreras, 296 Kan. 828, Syl. ¶ 3, 295 P.3d 1020 (2013), our Supreme
Court held that if a trial court uses the wrong standard of proof at an immunity hearing,
that error may be harmless if there is no reasonable probability that the error affected the
outcome of the trial. Also, in State v. Younger, No. 116,441, 2018 WL 911414, at *3
(Kan. App. 2018) (unpublished opinion), this court applied the harmless error test from
Ultreras in affirming Younger's convictions despite the trial court's consideration of the
evidence in the light most favorable to the State contrary to our Supreme Court's Hardy
decision when denying Younger's immunity motion.
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To review, in this case, the jury acquitted Looney of the aggravated batteries of
Connell and McCoy. The jury convicted Looney of the reckless aggravated battery of
Edwards, the aggravated assault of O'Neil, the aggravated assault of Wells, criminal
discharge of a firearm, and criminal possession of a firearm. But in Looney I, this court
reversed Looney's aggravated assault of Wells and criminal possession of a firearm
convictions for insufficient evidence. 2018 WL 3485727, at *3-4. Thus, only Looney's
convictions for the reckless aggravated battery of Edwards, the aggravated assault of
O'Neil, and the criminal discharge of a firearm remain in place.
Yet, the jury convicted Looney of the reckless aggravated battery of Edwards, a
lesser included offense of his knowing aggravated battery of Edwards charge, despite
being given an instruction that they could acquit him of this charge if they believed that
he acted in defense of Connell. And in Looney I, this court relied on this fact to hold that
the trial court did not clearly err by failing to instruct the jury on defense of others as to
Looney's criminal discharge of a firearm conviction:
"Although the jury was not instructed on the defense of others as to the criminal
discharge of a firearm charge, it was instructed on the defense of others as to the
aggravated battery charge involving Edwards, which occurred when Looney shot
Edwards, upon discharging his firearm. The jury was not persuaded by that defense.
Instead, the jury found Looney guilty of reckless aggravated battery even though it was
specifically instructed to consider Looney's defense of others claim as to that charge. We
thus have no reason to believe that the jury would have acquitted Looney of reckless
discharge of a firearm based on Looney's defense of others claim, had it been permitted
to do so. Such a result would have been inconsistent with the jury's rejection of that
defense on the charge of aggravated battery of Edwards." (Emphasis added.) 2018 WL
3485727, at *7.
Also, the Looney I court held that the trial court properly denied Looney's request
for a self-defense instruction as to his aggravated assault of O'Neil conviction because
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such an instruction was factually inappropriate. In particular, this court explained that
Looney had failed to establish that a reasonable person in his circumstances would have
threatened O'Neil with a gun. 2018 WL 3485727, at *6.
As a result, as to the crimes Looney still remains convicted of, the jury either
rejected his defense-of-others argument or this court held that the trial court's failure to
instruct the jury on self-defense and defense-of-others was not error. In turn, the jury's
verdicts and this court's previous holdings in Looney I establish that any error stemming
from the trial court's viewing of the evidence in the light most favorable to the State when
denying Looney's immunity motion was harmless.
Simply put, it is unclear whether Looney ever intended to argue self-defense as to
his aggravated battery of Edwards and criminal discharge of a firearm charges since
Looney specifically requested a defense-of-others instruction on his aggravated battery of
Edwards charge. Regardless, because the jury rejected his defense-of-others argument as
to his aggravated battery charge and this court held that the failure to give a defense-of-
others instruction as to his criminal discharge of a firearm charge was not clear error,
nothing indicates that Looney was entitled to self-defense immunity as to those charges.
Also, nothing indicates that the jury would have accepted Looney's self-defense argument
as to those charges had Looney been allowed to make such an argument. A finding that
Looney acted in self-defense would be inconsistent with the jury's finding that Looney
was not acting in defense of Connell.
More importantly, at his trial, Looney testified that he was alone outside of his
house when he fired his gun through his closed front door and shot Edwards. Looney
explained that he never intended to shoot Edwards but was instead responding
instinctively to Connell's screaming from inside the house. Yet, regardless of Looney's
intentions, the fact Looney was alone outside his front door when he fired the shot that
was the basis for both his aggravated battery of Edwards and criminal discharge of a
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firearm charges establishes that there is no reasonable possibility (1) that he was entitled
to self-defense immunity as to those charges or (2) that the jury would have acquitted him
of those charges if given a self-defense instruction.
Lastly, it is readily apparent that the trial court's use of the wrong standard of proof
at Looney's self-defense immunity hearing as to his aggravated assault of O'Neil charge is
harmless. Because the Looney I court already determined that the trial court's failure to
instruct the jury on self-defense as to Looney's aggravated assault of O'Neil charge was
harmless, it necessarily follows that the trial court's denial of Looney's self-defense
immunity motion while using the wrong standard of proof was harmless.
Also, as the Looney I court noted when rejecting Looney's argument that he was
entitled to a self-defense instruction as to his aggravated assault of O'Neil charge, O'Neil
was not involved in the physical dispute that occurred between Looney, Connell,
Edwards, and McCoy. Outside of yelling at Looney that he was calling the police, O'Neil
had no interactions with Looney before Looney walked up to him, pointed his gun at him,
and then threatened him about calling the police. Looney I, 2018 WL 3485727, at *6. So
there is no reasonable possibility that Looney was entitled to self-defense immunity as to
his aggravated assault of O'Neil charge.
Affirmed in part and dismissed in part.
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