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Improper instruction on great bodily harm [NOT FINAL]

Ryan Eddinger and Meryl Carver-Allmon won in State v. Delacruz, No. 100,654 (Kan. App. Jan. 22, 2010), obtaining a new trial in a Seward County aggravated battery prosecution. There were two instructional errors that resulted in reversal. First, while the district court instructed the jury on misdemeanor battery as a lesser, it used the "rude, insulting or angry manner" version, instead of "bodily harm." Second, the COA considered it likely that a district court should normally inform a jury about the distinction between "great bodily harm" and "bodily harm," but did not have to reach that issue head on because it actually instructed the jury that there was no definition of "great bodily harm":

Instruction No. 4 advised the jury that "[t]here are no definitions that this Court can give to you to define 'great bodily harm' or 'bodily harm.'" Delacruz argues this misstatement implied to the jury that there was no meaningful distinction between the two terms and essentially encouraged the jury to react impulsively to the evidence of physical harm.

We agree. The district court affirmatively and erroneously misadvised the jury that the two terms could not be defined, contrary to well-established case law. Moreover, in considering whether a real possibility exists that the jury would have rendered a different verdict if the trial error had not occurred, we are swayed by the district court's own characterization of the evidence of "great bodily harm" as "thin." Finally, the effect of this error may have been compounded by the district court's failure to properly instruct the jury on misdemeanor battery. As discussed above, the district court should have instructed the jury that simple battery consisted of "intentionally or recklessly causing bodily harm" instead of "intentionally caus[ing] physical contact with another person when done in a rude, insulting or angry manner."

By reversing on these grounds, the COA avoided what I am told are pretty significant issues of judicial misconduct and prosecutorial misconduct.

Full post as published by Kansas Defenders on January 28, 2010 (boomark / email).