January 30th. The Kansas Supreme Court has issued its opinion in State v. Overstreet (No. 95,682). In a unanimous opinion, written by Justice Davis the Court vacated Jason Overstreet’s convictions for aggravated assault and attempted first-degree murder. Overstreet’s case is remanded for a new trial. Note: Robert Davis, the author of the opinion is now the Chief Justice of the Court following the retirement of previous Chief Justice Kay McFarland. At the time this case was argued, McFarland was still on the Court.
On Pearl Harbor Day, 2004 Damian McCall was followed home from a Wichita drive thru by a Chevy Tahoe containing at least two men. When he got home and parked, one of the men emerged from the Tahoe and fired several shots at his vehicle with a handgun. McCall was unharmed since he ducked down when he saw the weapon and rammed the Tahoe with his SUV, causing it to flip over and its occupants fled.
Police subsequently apprehended several men, not including Jason Overstreet, however some evidence tied Overstreet to the scene and the owner of the vehicle claimed she had lent it to a man named “Jason”. Overstreet was therefore tried as an accomplice since the State argued that he had been the driver. Two of the men who had been arrested on the night of the shooting had told police that the driver was someone else.
At trial, when the State did not call either of these two men as witnesses Overstreet’s defense counsel applied for and gained a one-day continuance to find them, since he had not arranged for them to be called as witnesses. He located one, but when he testified he erroneously stated that he had identified Overstreet as the driver (this error was corrected by another witness). During deliberations the jury asked for subsequent instructions on one occasion. Later, the jury announced that it had reached a unanimous verdict on the assault charge but had not reached one on the attempted murder charge. The court instructed the jury to continue deliberating and an hour later they returned a guilty verdict on both counts.
Overstreet appealed on multiple grounds which included 1) a claim that the jury instructions misstated the law on aiding and abetting, 2) a claim of prosecutorial misconduct over the prosecutor’s summing up of the same, 3) a claim that the additional instructions issued by the court to the jury should not have been permitted and 4) a claim of ineffective assistance of counsel. After some back and forth, he lost his appeal in an unpublished opinion issued last year. In his appeal to the Kansas Supreme Court he prevailed on three of these.
The Court held that the instructions to the jury did indeed misstate the law. The key issue at play here is that Overstreet was charged with attempted first-degree murder. The key component in first degree murder is intent. In the jury instructions that were issued the trial court included two separate statements, one which emphasised this point and one which noted that aiding and abetting can be applied to a case where the defendent could reasonably forsee that a certain outcome would stem from their actions. The Court held that this language could lead the jury to believe that they did not have to find intent beyond a reasonable doubt, when in fact they did to be able to convict, thus Overstreet’s attempted murder conviction was reversed.
The claim of prosecutorial misconduct stemmed from the same issue, except that the argument was that the prosecutor made the same misstatement of the law. The Court rejected this argument since the prosecutor’s summary was in line with the jury instructions and could not therefore be called misconduct.
The Court held that the trial court erred when it instructed the jury to continue deliberating after it had reported that it had reached a verdict on one charge but not the other. While the language of the opinion still preserves some latitude for Courts in this sort of situation it holds that based on the facts of this case, it went too far and seemed to be pushing the jury in the direction of a verdict.
Finally the Court ruled for Overstreet on his claim of ineffective assistance of counsel, thus vacating his assault conviction also. Overstreet’s theory of defense had been that he was not the driver and was not present. His attorney nonetheless had not arranged for the sub-poena of two witnesses who would have testified to this effect, and spent minimal time in preparing the witness who was found. As a result, this witness mistakenly claimed he had seen Overstreet driving the vehicle, something which caused the jury confusion. This was enough to remand the case for a new trial.