DOES THE FACT THAT THE VICTIM WAS AN AGGRESSOR JUSTIFY A LESSER SENTENCE?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Grady, 258 Kan. 72 (1995).
This case addresses the following issue:
Does the fact that the victim was an armed aggressor justify a downward dispositional departure sentence?
The issue in this case includes whether or not the trial court erred by granting the motion for a dispositional downward departure sentence when the victim acted as an aggressor. Id. at 78. In an appeal for the imposition of a departure sentence, the reviewing court is limited to whether the trial court’s finings of fact and reasons justifying a departure: (1) is supported by the evidence in the record, and (2) constitute substantial and compelling reasons for departure. Id. The presiding rule is that of K.S.A. 1994 Supp. 21-4716 which provides that that sentencing judge is to impose the presumptive sentence unless the judge finds substantial and compelling reasons to impose a departure. Id. at 81. Further, the section provides a nonexclusive list of mitigating factors that may be considered, including (A) the victim was an aggressor or participant in the criminal conduct associated with the crime of conviction … (D) the defendant or defendant’s children suffered a continuing patter of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse. Id. at 81-82. In order to determine if the trial court’s findings constituted substantial and compelling reasons for a departure, there is a two prong analysis: (1) was a particular reason given by the sentencing court for the departure, and is it a valid departure factor; and (2) are the reasons substantial and compelling to justify the departure in a given case? Id. at 83.
In this case, the defendant was convicted of voluntary manslaughter. Id. at 76. The events leading up to the death of the victim included that the victim was a known abuser of his ex-wife, as well as their children. Id. at 74. The defendant and the ex-wife had engaged in a romantic relationship, which the victim was aware of. Id. On the day of the incident, the victim was intoxicated and the ex-wife went to go pick up the children from the victim’s house. Id. at 75. The victim, then irate, attempted to force the ex-wife and the children to move back in with him, which she subsequently refused. Id. The victim then began punching, kicking and choking the ex-wife, and ultimately pushed her through the wall. Id. The defendant heard all of this over the telephone and rushed over to the house. Id. Shortly after the defendant arrived at the house, the victim ran out of the house with a butcher knife in hand and charged at the defendant. Id. The defendant then retrieved his gun and shot numerous times, hitting and killing the victim. Id. The defendant then filed a motion for a downward departure sentence. Id. at 76. His presumptive sentence was a term of incarceration of 46-51 months. Id. The court subsequently “approved” the motion for departure by imposing a 49 months sentence and imposed a $ 100,000 fine, however, the sentence was to be served locally as follows: “1. 30 days in jail; 2. 180 days in residential Community Corrections; 3. 1 year on electronic surveillance; 4. 1,000 hours of public restitution, 4 hours per week after release from jail, $ 10 credit per hour; 5. supervision by Community Corrections for the duration of the 49 months; 6. No contact with the Croslin children until a review hearing by the Court; 7. payment for a psychological evaluation of the Croslin children.” Id. at 77. The court furthered that this counted as a departure as to disposition by its desire to impose the most severe “local” or nonimprisonment sentence possible. Id. The State then appealed the departure sentence. Id. at 78.
The court first looked at the reasoning provided by the court for imposing the departure sentence, which included: (1) the defendant was being advanced upon by a man with a knife, though he made the wrong decision in handling the situation, (2) the objective evidence does not indicate an execution or cold blooded killing of the victim, (3) the victim does not pose a threat to the safety of society, and (4) the defendant was motivated by concern for a third party. Id. at 84. Of relevant concern is that of the first reason stated that the victim was an armed aggressor. The State attempted to argue that due to the fact that the “victim was an armed aggressor was an element of voluntary manslaughter dealing with the defendant’s unreasonable belief that deadly force was justified; therefore, that factor cannot be used as a departure reason.” Id. at 84-85. However, the court points out that there are alternative means by which voluntary manslaughter can be committed and the jury verdict fails to indicate by what means it found the defendant guilty. Id. at 85. The court ultimately held on this point that K.S.A. 1994 Supp. 21-4716(b)(3) does not prohibit the “finding that the victim was an armed aggressor as a mitigating factor in this case because the State has not established on what basis the defendant was convicted of voluntary manslaughter; thus, the fact the deceased was armed with a deadly weapon and may have been the aggressor involves exceptional circumstances that can justify a downward departure.” Id. at 86.