State v. Andrew, 333 P.3d 140

On Jan. 25, 2008 James R. Andrew entered Mitchell Garlach’s home uninvited; a confrontation followed in which Andrew produced a knife and was later convicted of aggravated assault. Andrew did not testify; his son’s testimony supported a self-defense theory.
At trial the judge gave both PIK Crim. 4th 52.200 (self-defense) and PIK Crim. 4th 52.210 (defense of a dwelling) but added the sentence: “When acting within this permitted use of force, self-defense is not available to the person being forced out.”
Andrew objected that the dwelling instruction was factually inappropriate and the added sentence misstated the law; the jury convicted him and he appealed.
The Court of Appeals affirmed in a split decision; one judge dissented, arguing Alexander controlled and that the added sentence wrongly made the defenses mutually exclusive.
The Kansas Supreme Court granted review limited to the dwelling-instruction issue, examined whether Alexander’s statement barring the dwelling instruction when the alleged victim defends the home should control, and whether the trial judge’s added sentence misstated the law.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Andrew)	Held
Whether a defense-of-dwelling instruction may be given when the alleged victim (not the defendant) defended the dwelling	Instruction relevant to jury’s determination of lawfulness of the alleged victim’s force; jury needed guidance	Alexander said such an instruction should not be given when it justifies the victim’s actions	Court: May give the dwelling instruction when necessary to inform jury; disapproved Alexander’s blanket prohibition
Whether the trial court’s added sentence (that self-defense is unavailable to the person being forced out) misstated law and whether the error was harmless	Addition correctly prevented a defendant from using self-defense against lawful force	Addition misstates law because self-defense can be available if defendant reasonably believes the other’s force is unlawful; therefore the sentence was erroneous	Court: The added sentence was erroneous, but the error was harmless beyond a reasonable doubt given facts that Andrew acted objectively unreasonably in resisting removal from the home

State v. Alexander, 268 Kan. 610 (2000) (Kansas case previously suggesting dwelling instruction should not be given when it justifies alleged victim’s actions)
State v. Tyler, 251 Kan. 616 (1992) (self-defense may be available where the actor reasonably believes one repelling entry is an unlawful aggressor)
State v. Ward, 292 Kan. 541 (2011) (harmless-error standard and degree of certainty guidance)
State v. Plummer, 295 Kan. 156 (2012) (four-step instructional-error review framework)
Chapman v. California, 386 U.S. 18 (1967) (federal constitutional harmless-error standard: conviction must be reversed unless error was harmless beyond a reasonable doubt)