Pure Self-Defense Only Negates Criminal-Discharge Predicate Felony Murder; “Light Most Favorable” Applies Even to Unrequested Instructions

Introduction

State v. Banks is a direct appeal from Sedgwick District Court arising from a May 20, 2023 shooting in Old Town Wichita after multiple physical altercations among several young women outside the City Nightz nightclub area. The defendant, La'Niha S. Banks, fired multiple shots at two vehicles—one driven by LaTionna Johnson (who died from a neck gunshot wound) and another associated with Amunique Cavitt. Banks asserted self-defense.

A jury convicted Banks of felony murder (predicated on criminal discharge of a firearm), attempted first-degree murder, multiple counts of aggravated assault, and criminal discharge of a firearm. On appeal, Banks challenged (1) admission of a hearsay statement, (2) exclusion of a defense exhibit comparing her conduct to a police shooting justification report, (3) refusal to instruct on imperfect self-defense manslaughter theories for felony murder, (4) failure to instruct on attempted involuntary manslaughter as a lesser of attempted first-degree murder, and (5) cumulative error.

Summary of the Opinion

The Kansas Supreme Court affirmed all convictions. It held:

  • Factual findings supporting admission of hearsay under an exception are reviewed for substantial evidence, and the district court did not abuse its discretion admitting the statement as an excited utterance.
  • Excluding the proposed defense exhibit (a district attorney report finding a police shooting reasonable) was proper because it was not factually relevant and was essentially an improper legal opinion likely to confuse the jury.
  • For felony murder predicated on criminal discharge of a firearm, only pure self-defense may negate an element of the predicate felony; imperfect self-defense is unavailable and related lesser-homicide instructions are legally inappropriate.
  • Although an attempted involuntary manslaughter instruction (imperfect self-defense theory) was legally and factually appropriate on the attempted murder charge, the omission was not clear error under K.S.A. 22-3414(3).
  • For factual appropriateness of instructions, appellate courts view evidence in the light most favorable to the requesting party even if the party did not request the instruction at trial.

Analysis

Precedents Cited

1) Hearsay / Excited Utterance / Review Standards

  • State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007): Cited for the general standard that hearsay-admissibility rulings under statutory exceptions are reviewed for abuse of discretion. Banks applies that umbrella standard while separately emphasizing the deference owed to the trial court’s supporting fact-findings.
  • State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025): Used to define abuse of discretion as actions that are arbitrary/unreasonable or based on an error of law or fact, reinforcing that appellate review is not a do-over of the trial court’s weighing process.
  • State v. Smith, 312 Kan. 876, 887, 482 P.3d 586 (2021): Cited for the definition of “substantial competent evidence.” Banks elevates this concept into a clear syllabus point: the factual predicates for hearsay exceptions are reviewed for substantial evidence.
  • Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023) and State v. Dooley, 313 Kan. 815, 819, 491 P.3d 1250 (2021): Reinforce that appellate courts do not reweigh conflicting evidence or credibility; conflicting inferences are disregarded when assessing substantial evidence.
  • State v. Mattox, 305 Kan. 1015, 1033-34, 390 P.3d 514 (2017): Supplies the four-part excited-utterance test. Banks applies Mattox to hold that yelling about being confronted by a gun amid a rapidly escalating confrontation can qualify as a startling event producing nervous excitement.
  • State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007), abrogated on other grounds by State v. Williams, 306 Kan. 175, 392 P.3d 1267 (2017): Cited for the principle that the excited utterance exception is driven less by clock time and more by whether stress “vitiates” reflective fabrication. Banks uses Brown as an analogy supporting admission where the statement appears spontaneous amid stress.
  • State v. Rowe, 252 Kan. 243, 843 P.2d 714 (1992): A contrasting example where the State failed to show that events were startling enough to cause nervous excitement. Banks uses Rowe to illustrate what was missing there (no evidence of nervous excitement) but present here (yelling in response to being confronted with a gun).

2) Relevance and the Right to Present a Defense

  • State v. Hogan, 321 Kan. 27, 38, 573 P.3d 207 (2025) and State v. Knox, 301 Kan. 671, 688, 347 P.3d 656 (2015): Provide Kansas’ two-part relevance framework (materiality and probative value) and associated standards of review.
  • State v. Seacat, 303 Kan. 622, 638, 366 P.3d 208 (2016): Cited for de novo review when exclusion of evidence is framed as interference with the constitutional right to present a defense. Banks recognizes the lens but concludes the excluded report was not relevant evidence of facts; it was a legal conclusion about a different event.

3) Self-Defense, Felony Murder, and Imperfect Self-Defense

  • State v. Thille, 320 Kan. 435, 437, 570 P.3d 18 (2025): Supplies the modern, multi-step jury-instruction analysis (preservation; legal/factual appropriateness; reversibility).
  • State v. Milo, 315 Kan. 434, Syl. ¶ 1, 510 P.3d 1 (2022): Central to the court’s felony-murder/self-defense framework: self-defense is not a defense to felony murder as such; it is available only insofar as it negates an element of the predicate felony (and only where that felony includes a use-of-force component that can be legally justified). Banks applies Milo to criminal discharge of a firearm.
  • State v. Kirkpatrick, 286 Kan. 329, 339-40, 184 P.3d 247 (2008), abrogated on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013), and abrogated on other grounds by State v. Barlett, 308 Kan. 78, 418 P.3d 1253 (2018): Banks relies on Kirkpatrick’s still-useful distinction that imperfect self-defense “exists only as a lesser degree of the crime of homicide” and does not operate as a partial defense to non-homicide crimes like criminal discharge of a firearm. Banks harmonizes Kirkpatrick with Milo: pure self-defense may negate the “use of force” element, but imperfect self-defense cannot generate a mitigated “version” of the predicate felony.
  • State v. Holley, 315 Kan. 512, 520, 509 P.3d 542 (2022): Reinforces Milo’s logic by illustrating that for predicate crimes without a justifiable-force element (e.g., aggravated robbery, as discussed there), self-defense is a non sequitur and legally inappropriate.

4) Invited Error, Unrequested Instructions, and “Light Most Favorable”

  • State v. Slusser, 317 Kan. 174, 179, 527 P.3d 565 (2023) and State v. Peters, 319 Kan. 492, 516, 555 P.3d 1134 (2024): Frame invited error as turning on whether the defense affirmatively induced the trial court’s action. Banks applies Peters to hold that counsel’s brief misstatement and subsequent correction did not induce omission of the instruction.
  • State v. Barnes, 320 Kan. 147, 175-76, 563 P.3d 1255 (2025): Supports the notion that mere failure to request lessers does not automatically constitute invited error when the court independently decides what instructions fit.
  • State v. Hollins, 320 Kan. 240, 242, 564 P.3d 778 (2025) and State v. Mendez, 319 Kan. 718, 727, 559 P.3d 792 (2024): Provide the “entire record” approach to legal/factual appropriateness and the “light most favorable to the requesting party” formulation for factual appropriateness.
  • State v. Moore, 319 Kan. 557, 570, 556 P.3d 466 (2024): Defines the clear-error reversibility inquiry under K.S.A. 22-3414(3): reversal only if the court is firmly convinced the outcome would have been different.
  • State v. McCullough, 293 Kan. 970, 270 P.3d 1142 (2012) and State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012): Banks uses Williams to clarify that “clearly erroneous” is not the standard of review; it is the standard for reversal after identifying a mistake. Banks also reads Williams as cautioning against requiring trial judges to invent creative defense theories not presented below.
  • State v. Pulliam, 308 Kan. 1354, 1361-62, 1369, 430 P.3d 39 (2018): Cited for two points: (1) imperfect self-defense involuntary manslaughter no longer explicitly requires an “unintentional” killing; and (2) factual appropriateness requires evidence the defendant had a reasonable and honest belief force was required. Banks also rejects the State’s attempt to read Pulliam as limiting “light most favorable” only to instructions requested at trial.
  • State v. Turner, 318 Kan. 162, 168, 542 P.3d 304 (2024): Noted as acknowledging a line of cases applying the “light most favorable” approach without distinguishing requested from unrequested instructions.
  • State v. Chavez, 310 Kan. 421, 447 P.3d 364 (2019) (quoting State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 [2012]): Banks leans on Chavez/Plummer as affirmative authority that factual appropriateness is assessed in the light most favorable to the defendant/requesting party even where the instruction was not requested, with reversibility then addressed under Ward’s harmlessness framework (as referenced in Chavez).
  • State v. Waldschmidt, 318 Kan. 633, 661-62, 662, 546 P.3d 716 (2024): Supplies two important limiting principles: (1) for unpreserved instruction issues, a court must first find a “mistake” before asking whether it meets the clear-error threshold; and (2) an unpreserved instructional issue that is not clearly erroneous does not count as “error” for cumulative-error analysis.

5) Attempt, Lesser Included Offenses, and Homicide Hierarchy

  • State v. Gonzalez, 311 Kan. 281, 287, 460 P.3d 348 (2020): Provides the three attempt elements (overt act, intent, failure to complete).
  • State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019): Cited for the proposition that second-degree murder, voluntary manslaughter, and involuntary manslaughter are lesser included offenses of first-degree premeditated murder—supporting the legal appropriateness of lesser options in an attempted premeditated murder prosecution.

Legal Reasoning

1) Excited Utterance and Substantial-Evidence Deference

The court treated the hearsay question as a mixed law-and-fact inquiry: the statutory exception is legal, but whether the declarant was under “stress of nervous excitement” is factual. It then announced a clarifying appellate principle (also reflected in the syllabus): factual findings supporting admission of hearsay are reviewed for substantial evidence. Applying that standard—without reweighing disputes—the court held the record permitted the finding that Cavitt’s shouted statement occurred during an escalating confrontation and was prompted by a perceived threat involving a gun, satisfying K.S.A. 60-460(d)(2).

2) Excluding “Exhibit K” as Irrelevant Legal Opinion

Banks sought to use an unrelated prosecutorial report deeming police use of force reasonable to bolster the “objective reasonableness” component of self-defense under K.S.A. 21-5222(a). The court rejected the analogy on two grounds: (1) factual dissimilarity made it not probative of any material fact in Banks’ encounter, and (2) the report effectively invited the jury to adopt a legal conclusion from another case. The court emphasized the division of labor in K.S.A. 22-3403(3): judges decide questions of law; juries decide facts. On this view, Exhibit K was less “evidence” and more an improper attempt to import another actor’s legal justification determination into the jury’s factfinding.

3) New Clarification: No Imperfect Self-Defense Instruction Path Around Felony Murder Predicated on Criminal Discharge

The opinion’s most consequential doctrinal clarification is the tight coupling it draws between Milo and Kirkpatrick:

  • Under State v. Milo, self-defense does not “defeat” felony murder as a homicide label; it can only negate an element of the predicate felony when that felony includes force that can be legally justified (here, the act of shooting).
  • Under State v. Kirkpatrick, imperfect self-defense is a homicide mitigation concept and does not create a partial-defense variant of non-homicide crimes; there is no “imperfect self-defense” version of criminal discharge of a firearm.

Putting these together, the court announced a crisp rule: when felony murder is predicated on criminal discharge of a firearm, only pure self-defense is available (and must be instructed on when supported); imperfect self-defense is not available and an instruction on it is legally inappropriate. This forecloses attempts to use imperfect self-defense to (a) negate the predicate felony or (b) generate manslaughter instructions as “lessers” to felony murder—also consistent with the statutory statement that felony murder has no lesser included offenses. See K.S.A. 21-5402(d).

4) Unrequested Lesser Instruction: “Light Most Favorable” Still Applies, But Reversal Requires Clear Error

Banks also clarifies an appellate-method point that matters across criminal cases: in assessing whether an instruction was factually appropriate, the court views evidence in the light most favorable to the party seeking the instruction on appeal even if the party did not request it at trial. The court rejected the State’s attempt to tie the “light most favorable” lens to preservation, explaining that preservation affects reversibility (clear error), not the antecedent factual-appropriateness inquiry.

Applying that lens, the court held an attempted involuntary manslaughter instruction (imperfect self-defense theory under K.S.A. 21-5405(a)(4)) was supported by Banks’ testimony (initial perceived threat; later shots arguably excessive), satisfying the factual-appropriateness threshold. But the court affirmed because K.S.A. 22-3414(3)’s clear error standard is demanding, and the record—such as evidence of shots striking the rear of a vehicle—made it unlikely the jury would have returned a different verdict.

Impact

  • Felony murder + criminal discharge cases: Trial courts and litigants now have a direct Kansas Supreme Court statement that imperfect self-defense instructions are categorically unavailable where the predicate felony is criminal discharge of a firearm. Defendants must focus on pure self-defense to negate the predicate felony’s “use of force” component; prosecutors can resist imperfect-self-defense “mitigation” strategies as legally improper.
  • Instruction litigation on appeal: Banks strengthens a defendant’s ability to argue factual support for an unrequested instruction because the court will still view evidence favorably at the factual-appropriateness step. But Banks simultaneously underscores that the lack of a request pushes the defendant into the steep hill of clear error, limiting practical incentives to “sandbag.”
  • Evidence of “other justification decisions”: The Exhibit K holding signals skepticism toward importing external prosecutorial or administrative “reasonableness” determinations as proof of objective reasonableness in a defendant’s case—especially when it resembles a legal conclusion rather than comparable-acts evidence.
  • Cumulative error: By relying on State v. Waldschmidt, the court reiterates that unpreserved instructional “mistakes” that do not meet clear error do not accumulate as “errors” for cumulative-error reversal—raising the bar for multi-issue appeals premised on minor or non-reversible instructional problems.

Complex Concepts Simplified

  • Hearsay and “excited utterance” (K.S.A. 60-460[d][2]): Hearsay is an out-of-court statement offered to prove what it says. An “excited utterance” can be admitted because stress and immediacy can make fabrication less likely—so long as the court finds a startling event and a statement made while still under that stress.
  • Pure vs. imperfect self-defense:
    • Pure self-defense means the defendant reasonably and honestly believed force was necessary, and used proportionate force—leading to justification (no crime for that force).
    • Imperfect self-defense generally means the defendant believed force was necessary but was unreasonable or used excessive force—so the law may reduce culpability for certain homicides, but it does not create a “partial defense” to non-homicide crimes like criminal discharge of a firearm.
  • Felony murder and predicate felonies: Felony murder treats a killing during an inherently dangerous felony as first-degree murder. In Kansas, self-defense does not “excuse felony murder” directly; it only matters if it negates an element of the underlying felony that supplies the felony-murder theory.
  • Standards of review vs. standards for reversal: “Substantial evidence” and “abuse of discretion” describe how appellate courts evaluate what the trial court did. “Clear error” describes when an unpreserved instruction mistake is serious enough to justify reversing a conviction.
  • Invited error: A defendant cannot complain on appeal about an error the defense affirmatively caused the trial court to make. Mere silence or failure to request an instruction is usually not enough; the record must show the defense induced the result.

Conclusion

State v. Banks affirms serious convictions while delivering two practical clarifications for Kansas criminal practice: (1) in felony murder predicated on criminal discharge of a firearm, defendants may rely only on pure self-defense to negate the predicate felony—imperfect self-defense is unavailable as a matter of law; and (2) appellate courts assess the factual support for an instruction by viewing the record in the light most favorable to the party seeking it even when the instruction was not requested at trial, though reversal remains constrained by the demanding clear error test. Combined with its treatment of hearsay deference and the exclusion of quasi-legal “comparison” evidence, Banks tightens the doctrinal boundaries between factual proof, legal argument, and the limited pathways by which justification doctrines can shape felony-murder litigation.