CORRECTED OPINION

NOT DESIGNATED FOR PUBLICATION

No. 113,468
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
LOREN MALIK WISEMAN,
Appellee.

MEMORANDUM OPINION

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed October 14, 2016.
Reversed and remanded with directions.

William C. Votypka, deputy county attorney, Nicholas C. Vrana, assistant county attorney, Susan
Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellant.

Janine Cox and Randall Hodgkinson, of Kansas Appellate Defender Office, for appellee.

Before LEBEN, P.J., PIERRON and MCANANY, JJ.

LEBEN, J.: Loren Wiseman and his girlfriend had just parked the car at a grocery
store when a man approached. He began tapping on Wiseman's window, pulling on the
locked door handle, using obscenities, and demanding that Wiseman get out of the car to
fight him. Neither Wiseman nor his girlfriend knew the man. According to Wiseman, the
man then threatened to kill him, his girlfriend, and her family.

At this point, Wiseman pulled out his gun from the glove box. Wiseman told the
man to leave them alone or he would shoot and gave the man to the count of five to leave.
When the man didn't leave, Wiseman gave him to the count of ten, and at the end of that
countdown, he fired his gun three times, killing the man. The State charged him with
first-degree premeditated murder, but Wiseman claimed he was immune from
prosecution because he had acted in self-defense and in the defense of his girlfriend.
Kansas has a "stand your ground" law, K.S.A. 2015 Supp. 21-5220 to -5230, that can
provide immunity when a person in a place where he or she has a right to be kills
someone in self-defense instead of retreating to another place that's safer. See K.S.A.
2015 Supp. 21-5231. After conducting a hearing, the district court agreed with Wiseman
and dismissed the charges.

Under the Kansas stand-your-ground law, a defendant who uses deadly force in
self-defense or in defense of another person is immune from prosecution if he or she had
a reasonable belief that deadly force was necessary to prevent imminent death or great
bodily harm. K.S.A. 2015 Supp. 21-5222(b); 21-5231. Once the defendant invokes
immunity from prosecution, our Supreme Court has determined that the State has the
burden to establish probable cause that the defendant was not justified in using deadly
force. State v. Ultreras, 296 Kan. 828, Syl. 1-2, 295 P.3d 1020 (2013).

What our Supreme Court did not tell us in Ultreras, however, is how the district
court judge is supposed to weigh the evidence in determining whether the State has
established probable cause. There are two potential answers to that question.

In the traditional preliminary hearing, at which the State must show that there's
probable cause to believe a crime has been committed and that the defendant committed
it, the district court must look at all evidence in the light most favorable to the State. State
v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012). The State urges that this applies
to determining stand-your-ground immunity too.
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But for some types of pretrial motions, the district court makes its own factual
findings, which we review only to be sure they are supported by substantial evidence
even if other evidence might support a different conclusion. State v. Keenan, 304 Kan.
986, 993, 377 P.3d 439 (2016) (providing that an appellate court reviews decision on
motion to suppress evidence by determining whether factual findings of district court are
supported by substantial evidence and then independently reviewing the district court's
legal conclusions). Under this approach, the district court determines what facts are more
probably true than not rather than viewing the evidence in the light most favorable to the
State. The defendant urges that this approach be used when determining stand-yourground immunity, and that's what the district court did in Wiseman's case. Resolving the
dispute over how district courts should view the evidence when determining immunity is
the main question now before us.

If we decide that the district court erred in dismissing the criminal charge against
Wiseman based on the immunity statute, then we must answer a second question. The
State charged Wiseman with first-degree murder, which requires premeditation. The
district court concluded that the State's evidence would be insufficient to show
premeditation. On appeal, the State also asks that we reverse the district court on that
issue.

With that overview of the issues before us, we next review what we know about
what happened and how these issues were handled in the district court.

FACTUAL AND PROCEDURAL BACKGROUND

We begin with the basic facts related by Wiseman and his girlfriend, Alexandra
Escarcega; for facts that might be disputed, we will indicate when the information comes
from someone else.
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Around 5 p.m. on December 6, 2014, Wiseman rode with Escarcega to a Dillon's

grocery store in Garden City. Wiseman and Escarcega lived in Wichita but had held a
birthday party for their daughter at the YMCA in Garden City, where Escarcega's family
lived. As they passed the Dillon's store entrance in their car, two men came out; one of
them gestured at Wiseman, making what Wiseman and Escarcega thought was a gang
symbol and then using his fingers to simulate shooting a gun. Wiseman told Escarcega to
park far away from the men, which she did.

At the time Escarcega parked the car, the doors were locked and the windows
rolled up. Before they could get out of the car, the man who had gestured at Wiseman,
Jeremy Pascascio, walked up to the passenger side door. Pascascio pulled on the door
handle, asked Wiseman to roll down the window, and began knocking on the window and
demanding repeatedly that Wiseman get out of the car.

Wiseman told Pascascio, "No. I don't know who you are," and told him to leave
them alone. According to a witness, Pascascio said to Wiseman, "I know your bitch" and
told him that he had the car's tag number. Wiseman testified that Pascascio had said,
"[M]e and my boys already have your tag number, so you better not fucking leave,
because we're going to fuck you up." According to witnesses, Pascascio also called
Wiseman a "pussy" and told him to "fight me like a man."

Wiseman yelled at Escarcega to get them out of there, but she mistakenly grabbed
her mother's car keys and couldn't find her own keys, which had fallen to the floor
underneath her seat. Wiseman and Escarcega testified that Pascascio had threatened to
kill them and Escarcega's family.

Wiseman testified that it was after that threat that he had taken his gun out from
the glove box and rested it on his lap. He removed it from the holster to show Pascascio
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but kept the gun pointed toward the ground with the safety on; at some point, Wiseman
took the safety off, cocked the gun, and put the safety back on.

Wiseman testified that he had told Pascascio, "You need to leave us alone or I will
shoot you." Pascascio allegedly responded, "Fuck you. You think I'm scared of you or
your gun? You're going to have to kill me." Wiseman told Pascascio that he would give
Pascascio 5 seconds to leave or he would shoot him; Wiseman counted down from 5 to 0
but did not shoot Pascascio. Wiseman told police that he had begun counting down
because he didn't want to just stay there and have a standoff.

According to Wiseman, Pascascio crouched down to look at Wiseman through the

window and called Wiseman a "bitch" and a "pussy." Wiseman testified that Pascascio
had kept threatening to kill him and taunting him. Escarcega testified that Pascascio had
told Wiseman to "[d]o it, do it," which echoed what another witness reported.

Wiseman then told Pascascio that he would give him 10 seconds to leave or he
would shoot. According to Wiseman, Pascascio responded by laughing, calling Wiseman
a "bitch," and telling Wiseman to "[g]et the fuck out of the car." Wiseman testified that
after he had reached 3 in his countdown from 10, Pascascio had said, "I've got something
for you, Bitch" and reached for his waistband. Wiseman stated that it was at this point
that he rolled down the window, clicked the safety off, and fired two to three times
without aiming. He testified that he had been ducking and leaning toward Escarcega
when he fired. Wiseman admitted that he never saw a gun on Pascascio but thought he
had one. Before the shooting, Wiseman testified that he said to Escarcega, "I really don't
want to shoot this dude, but I know he's not going to leave." He also testified that "[a]fter
[Pascascio] first called my bluff [after the first countdown], that's when I knew I was
going to have to shoot him."

By the time Wiseman fired the shots, Escarcega had found her keys; after the
shooting, the two drove back to the YMCA, where they called police and reported what
had happened. Wiseman said he did not know at the time whether his shots had struck
Pascascio. Responding to witnesses' 911 calls, police arrived at the Dillon's parking lot
and found that Pascascio had been shot in the head. He died at the hospital from his
injuries. No weapons were found on or near him.

Other officers came to the YMCA and arrested Wiseman and Escarcega. They
interviewed Wiseman on and off over a 12-hour period about the shooting.

Escarcega and Wiseman both denied knowing Pascascio, and detectives were
unable to establish any connection between the two and Pascascio. Wiseman told police
that when he had fired the shots, Pascascio had lifted up his shirt and had been standing 3
to 4 feet from the car. He said that he had "never pulled a gun and not shot it" and that
"[he had] sat there and thought about shooting [Pascascio].'' He also told police that he
had shot Pascascio because he felt threatened; when the interviewing officer asked him to
explain specifically why he felt threatened, he replied, "I just felt the whole vibe."
Wiseman did not initially tell police that Pascascio had pulled the door handle when he
first approached the car, as he later testified.

The State charged Wiseman with the premeditated first-degree murder of

Pascascio. Wiseman filed a motion claiming immunity from prosecution because he had
acted in self-defense. Under K.S.A. 2015 Supp. 21-5231, a person who lawfully uses
force to defend a person or property "is immune from criminal prosecution," which
"includes arrest, detention in custody and charging or prosecution."

On February 17, 2015, the district court held a preliminary hearing and also
considered whether to grant Wiseman's motion for immunity. A preliminary hearing is a
proceeding held after the defendant has been charged during which the State calls
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witnesses and presents evidence to a magistrate or district judge to establish that a crime
was committed and that there is probable cause to believe the defendant committed that
crime. K.S.A. 2015 Supp. 22-2902. Probable cause at a preliminary hearing means there
is sufficient evidence to cause "'a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused's guilt.'" State v. Washington,
293 Kan. 732, 733-34, 268 P.3d 475 (2012) (quoting State v. Berg, 270 Kan. 237, 238, 13
P.3d 914 [2000]). If the court determines there is probable cause, the case may proceed to
trial; otherwise, the court will dismiss the charges and release the defendant. K.S.A. 2015
Supp. 22-2902; see State v. Jones, 233 Kan. 170, 172-73, 660 P.2d 965 (1983). Since the
purpose of the preliminary hearing is simply to determine whether there's enough
evidence to go to trial (where the jury would decide the facts), the judge must view the
evidence in the light most favorable to the State. Washington, 293 Kan. at 734.

In addition to Wiseman, Escarcega, and police officers, several others who had
seen at least some of the events testified at the preliminary hearing.

Shaylee Meyers said that she had heard and seen Pascascio arguing with Wiseman
while walking to her car. She heard Pascascio repeatedly tell Wiseman to "[g]et out of the
fucking car"' and heard him say, "Put the gun down. Fight me like a man." She decided
that she needed to get away from the scene and even warned passersby as she left; as she
was leaving, she heard three gunshots. She then saw police heading toward the scene and
returned to talk with officers about what she had seen.

Jeffrey Southern testified that he had first thought Pascascio was "a kid messing
around in the parking lot" but had then seen "a gentleman inside the vehicle . . .
brandishing a firearm." According to Southern, Pascascio backed away and then
approached Escarcega's car a few times "in a crouched position or what appeared to be a
crouched position, somewhat in a defensive manner." Southern testified that Pascascio
had "appeared to hug the vehicle" and had his hands up in front of his body at shoulder
7

height as he approached and backed away. Southern was leaving the scene when the
shooting occurred and saw the second and third shots. He said it had appeared that
Pascascio had been backing away from the car when he was shot. After the shooting,
Southern followed Escarcega and Wiseman to the YMCA and reported their location to
police.

Taylor Robinson and his wife, Michelle, were parked near Escarcega's car, and
both testified about what they saw. Taylor testified that he had just exited the store when
a young woman driving by warned him that something was happening in the parking lot.
Michelle, who had stayed in the car while he was shopping, was calling 911 when he
reached the car. He testified that from his car, he had been able to see Pascascio standing
"pretty far away from [Escarcega's] car." According to Taylor, as he was backing the car
out to leave the scene, he saw Wiseman roll down his window, holding the gun at
shoulder height with his wrist extended out, and fire three shots.

Michelle testified that she had seen Pascascio approach Escarcega's car as if he
"was coming up to say hi to someone," knock on the passenger window, and ask the
passenger to roll down the window, but she said it soon escalated to "[g]et out of the car."
She heard Pascascio tell Wiseman that he had the car's tag number and knew "[his] bitch''
and then heard him say, "Do it, do it, do it." Michelle testified that Pascascio had pulled
up his shirt with both hands and said, "I don't have anything." According to Michelle, her
husband then returned to the car, and she called 911; she was on the phone when she
heard three shots. Michelle acknowledged that she had only remembered Pascascio
raising up his shirt later, after her initial interviews with police; she told the police about
it at a follow-up interview. On cross-examination, she agreed that Pascascio had raised
his shirt in the middle of the encounter. She testified that she never saw Pascascio back
away from and then re-approach the car.

In a written ruling, the district court concluded that Wiseman was immune from
prosecution, dismissed the charge against him, and ordered Wiseman released from
pretrial custody. The court also announced the rulings it would have made in
determininghad there been no immunitywhether the State had shown probable cause
for the first-degree-murder charge. The court found there was probable cause that
Pascascio died after being shot and that Wiseman had intentionally fired the gun. But the
court found that the State had failed to present sufficient evidence of premeditation to
support charging Wiseman with first-degree murder. Accordingly, the court determined
that second-degree murder was the most serious crime that Wiseman could be charged
with if its ruling on immunity were to be reversed. See State v. Killings, 301 Kan. 214,
Syl. 1, 340 P.3d 1186 (2015) (noting that the only difference between first-degree
murder and second-degree murder is the element of premeditation).

The district court set out several specific factual findings. Among other things, the
court noted that six eyewitnesses had provided statements but that none of them testified
that Pascascio had been moving away from the confrontation when he was killed. The
district court refers to Escarcega as Wiseman's fiance; Wisemane testified that he
sometimes referred to her as his fiance or as his wife, while she testified that Wiseman
was her boyfriend:

"6. Loren Wiseman and his fianc[e] were lawfully driving into the parking lot of
Dillon's East in Garden City, Kansas.

"7. Throughout the entire event, Loren Wiseman and his fianc[e], [Alexandra
Escarcega,] were inside an 'occupied vehicle' and lawfully in the parking lot.

"8. That neither Loren Wiseman nor his fianc[e] had any duty to retreat from the
situation they found themselves in on December 6, 2014.

....

"10. Mr. Pascascio apparently followed Mr. Wiseman and his fianc[e] to the far
east end of the Dillon's parking lot which the Court calculates to be about of a city
block from where he is reported to have parked his car.

"11. Mr. Wiseman was in the front passenger seat and his fianc[e] was driving
the car. The passenger window was all the way up and the doors were locked.

"12. Mr. Pascascio approached the Defendant's car and knocked on the window
demanding that [the] window be lowered.

....

"14. The scene at the Dillon's Parking Lot escalated in mere minutes into a scary
and dangerous situation. . . . Witness [Shaylee Meyers] testified that she stopped several
Dillon's patrons and urged them to take cover. The fear and danger level was escalating
rapidly during the incident that took only about 5 minutes.

"15. Mr. Wiseman and his fianc[e] finally pulled out in her car just seconds after
the gun shots were fired and went around the block to the YMCA where they called the
Police to report the shooting. The two persons from the car were quickly taken into
custody and have been unable to visit with each other from December 6 to the date of this
hearing.

"16. The fianc[e] reported on December 6 that Mr. Pascascio attempted several
times to force entry into the car grabbing the door handle and yanking on it. Mr.
Wiseman made a similar claim at a later date and testified at the hearing that [Pascascio]
was trying to force entry.

"17. During the confusing 5 minute confrontation, one or more witness[es]

testified to hearing Mr. Pascascio make the following threats or statements in English and
more in Spanish that were either not understood or indistinguishable:
a. 'Fuck you pussy' 'You're a bitch . . . you and your girl'

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b. Him and his la familia are going to get us and they and his homies already
have his tag # and threat[en] they are going to follow them and you better
watch your back
c. Fuck you bitch if you think I'm scared of your gun you are going to have to
kill me
d. 'Do it, do it, do it' [Michelle Robinson]
e. 'Put the gun down and get out of the car and fight me like a man. You're a
pussy, get out of the car. Put the fucking gun down!' [Shaylee Meyer]
f.

'You that nigga that fucked with my homie' . . . his homie right there and he
has my tags . . . he's gon[n]a 'kill you, your bitch and her family' [Escarcega]

"18. The above statements were primarily drawn from written statements of the 6
eye witnesses of the event that testified in Court. None of them testified that the deceased
was drawing [a]way from the confrontation that he initiated."

The district court ruled that the State had failed to prove by probable cause that no
immunity applies:

"Mr. Wiseman was in an occupied vehicle in a location where he had a right to

be. Inside the locked vehicle was his fianc[e] and himself. Mr. Pascascio initiated the
confrontation and put himself in harm's way. [Pascascio] uttered threats of impending
death or great bodily harm to the two occupants of the car and physically attempted
several times to breach the locked door. Under the fear and threat caused by [Pascascio],
the keys to the car were temporarily misplaced and escape from the apparent danger was
not readily possible. Kansas law clearly sets out the fact that attempted escape is not a
prerequisite duty of the occupants of the car."

The court concluded that "[Pascascio's death] is not a criminal act in light of the
immunity granted by statute in the State of Kansas" as "the State . . . failed to
show by [] probable cause that said immunity did not apply."

The State has appealed that ruling to this court.

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ANALYSIS

I.

The District Court Wrongly Determined That Wiseman Was Immune from
Prosecution.
The Kansas Legislature has enacted a series of statutes addressing the use of force,

including deadly force, in defense of a person or property. See K.S.A. 2015 Supp. 215220 et seq. By statute, the "use of deadly force" means the use of physical force that is
likely to cause death or great bodily harm. K.S.A. 2015 Supp. 21-5221(a)(2). A person is
justified in using deadly force to protect oneself or another person or to prevent or stop an
unlawful entry into the person's dwelling, workplace, or occupied vehicle if the person
reasonably believes that using deadly force is necessary to prevent imminent death or
great bodily harm. K.S.A. 2015 Supp. 21-5222(b); K.S.A. 2015 Supp. 21-5223(b). Under
these statutes, the person using force is not required to retreat or attempt to escape.
K.S.A. 2015 Supp. 21-5222(c); K.S.A. 2015 Supp. 21-5223(c); K.S.A. 2015 Supp. 215230. Because there is no duty to retreat, these statutes are commonly referred to as
Kansas' "stand-your-ground" law. State v. Barlow, 303 Kan. 804, 814, 368 P.3d 331
(2016); see K.S.A. 2015 Supp. 21-5230 ("A person who is not engaged in an unlawful
activity and who is attacked in a place where such person has a right to be has no duty to
retreat and has the right to stand such person's ground . . . .").

Under K.S.A. 2015 Supp. 21-5231, a person who is justified in using force in
defense of a person or property is generally immune from prosecution:
"(a) A person who uses force which, subject to the provisions of K.S.A. 2015
Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2015 Supp. 215222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal
prosecution and civil action for the use of such force, unless the person against whom
force was used is a law enforcement officer who was acting in the performance of such

12

officer's official duties and the officer identified the officer's self in accordance with any
applicable law or the person using force knew or reasonably should have known that the
person was a law enforcement officer. As used in this subsection, 'criminal prosecution'
includes arrest, detention in custody and charging or prosecution of the defendant.

"(b) A law enforcement agency may use standard procedures for investigating the
use of force as described in subsection (a), but the agency shall not arrest the person for
using force unless it determines that there is probable cause for the arrest.

"(c) A prosecutor may commence a criminal prosecution upon a determination of

probable cause."

In summary, a person is immune from prosecution for using deadly force only if
that use of force was justified, and using deadly force is justified only if the person
reasonably believed it was necessary to prevent imminent death or great bodily harm.
K.S.A. 2015 Supp. 21-5231; K.S.A. 2015 Supp. 21-5222(b). In McCracken v. Kohl, 286
Kan. 1114, Syl. 3, 191 P.3d 313 (2008), the Kansas Supreme Court held that invoking
immunity from prosecution under K.S.A. 21-3219 (now K.S.A. 2015 Supp. 21-5231)
involves both a subjective and an objective element: (1) the person must have sincerely
believed that using deadly force was necessary to defend himself or herself; and (2) a
reasonable person in the same circumstances would have perceived that deadly force was
necessary. See also State v. Jones, 298 Kan. 324, 332, 311 P.3d 1125 (2013) (noting
McCracken described the prerequisites for claiming immunity under K.S.A. 21-3219);
State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012) (discussing K.S.A. 213211 [now K.S.A. 2015 Supp. 21-5222] in the context of self-defense theory at trial).

The State contends that the district court erred when it found that Wiseman was
immune from prosecution under K.S.A. 2015 Supp. 21-5231 primarily because it applied
the wrong standards in evaluating the evidence. The State contends that the district court
was required to look at the facts in the light most favorable to the State, as it would in a
traditional preliminary hearing. Wiseman argues the district court properly determined
13

that he was immune from prosecution. Wiseman contends that the district court is free to
make factual findingsdetermining what is more probably true than notwhen deciding
the immunity issue.

The questions before us require that we interpret and apply K.S.A. 2015 Supp. 215231 and related statutes; so, as with other statutory-interpretation questions, we review
the matter independently, with no required deference to the district court's conclusion.
State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

The starting point for our analysis is the leading decision of our Supreme Court
interpreting this statute, State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013). In
Ultreras, the court held that the State has the burden to establish probable cause to
believe that a person's use of force was not justified and that, therefore, the person was
not immune from prosecution. 295 Kan. 828, Syl. 1-2. The court explained that
probable cause was the appropriate standard because it was the only one mentioned in the
statute and that placing the burden of proof on the defendant would undermine the
statute's language and purpose. 296 Kan. at 842-45. The court reasoned that it would be
inappropriate to read words into the statute to impose a higher burden than probable
cause and that reading the statute to require the State show probable cause ensured the
words in the statute would not be rendered meaningless. 296 Kan. at 843-44. The court
emphasized that this would introduce an additional requirement for the State beyond
merely proving probable cause to believe the defendant had committed the crime
charged:

"Generally, a detached Kansas magistrate considering whether to issue a warrant or

summons merely determines 'that there is probable cause to believe that a crime has been
committed and that the defendant has committed it.' K.S.A. 22-2302(1). Under K.S.A.
21-3219 [now K.S.A. 2015 Supp. 21-5231], however, once a defendant raises justified
use-of-force immunity before a court, a probable cause determination must also include a
determination that the defendant's use of force was not justified under K.S.A. 21-3211,

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K.S.A. 21-3212, or K.S.A. 21-3213 [now K.S.A. 2015 Supp. 21-5222, K.S.A. 2015
Supp. 21-5223, and K.S.A. 2015 Supp. 21-5225, respectively]. Hence, the statute as
written with a probable cause standard adds an additional requirement and is
meaningful." 296 Kan. at 844.

Under Ultreras, the State had to prove there was probable cause to believe that
Wiseman used deadly force without legal justification. At a preliminary hearing,
establishing probable cause requires providing sufficient evidence to cause "'a person of
ordinary prudence and caution to conscientiously entertain a reasonable belief of the
accused's guilt.'" State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012); State v.
Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). In the context of immunity under the
stand-your-ground law, the State would have to show that the defendant was not justified
in using deadly force. In other words, the State had the burden to prove that a person of
ordinary prudence and caution could reasonably believe that when Wiseman shot
Pascascio, Wiseman did not have a reasonable belief that deadly force was necessary to
prevent imminent death or great bodily harm to himself or Escarcega.

On appeal, the parties dispute what specific procedures the district court should
use in evaluating immunity claims. The Ultreras court noted that the immunity statutes
"provide little guidance as to the procedural aspects of how to apply them" but did not
provide further guidance because it didn't have to do so to resolve the case. 296 Kan. at
842, 845. Kansas Supreme Court cases on stand-your-ground immunity since Ultreras
also haven't clarified the procedures district courts should use. Jones, 298 Kan. at 333-34
(holding that the defendant must assert immunity before trial or before entering a guilty
or no-contest plea and cannot raise immunity for the first time on appeal); Barlow, 303
Kan. at 818-19 (holding that the district court may grant immunity on its own accord after
the jury has found the defendant guilty but before sentencing).

15

Our court has attempted to fill in the procedural gaps in two cases: State v. Hardy,
51 Kan. App. 2d 296, 299-300, 347 P.3d 222 (2015), rev. granted 304 Kan. 1019 (2016);
and State v. Evans, 51 Kan. App. 2d 1043, 1050, 360 P.3d 1086 (2015), petition for rev.
filed November 23, 2015.

In Hardy, a panel of our court concluded that by adopting the probable-cause

standard and placing the burden to satisfy that standard on the State, "the Ultreras
decision effectively adopts the requirements imposed at a preliminary examination or
hearing." 51 Kan. App. 2d at 299. The court essentially reasoned that because preliminary
hearings require the State to establish probable cause and invoking immunity from
prosecution also requires the State to establish probable cause, the Ultreras court must
have intended for all the procedural rules of preliminary hearings to apply to immunity
hearings. 51 Kan. App. 2d at 300. Therefore, when a district court evaluates an immunity
claim, it must hold an evidentiary hearing (at which the rules of evidence apply) and
should not resolve conflicts in the evidence but rather should construe the evidence in the
light most favorable to the State, just as it would do in a preliminary hearing. 51 Kan.
App. 2d at 300-01; see also Washington, 293 Kan. at 734; State v. Bell, 268 Kan. 764,
764-65, 1 P.3d 325 (2000). The Hardy court reasoned that applying the preliminaryhearing requirements would be "consistent with the strong preference for jurors making
fact determinations in criminal cases" because cases that have conflicting evidence
regarding whether the person was justified in using force would survive the district
court's probable-cause determination (as the district court would view the evidence in the
light most favorable to the State) and would proceed to trial. 51 Kan. App. 2d at 300-01.

The Hardy court also considered the argument made by the defendant herethat
the procedural rules for other pretrial motions, such as motions to suppress evidence,
should be applied in immunity hearings. 51 Kan. App. 2d at 301. In motion-to-suppress
hearings, the State has the burden to prove that a search and seizure was lawful by a
preponderance of the evidence, which is evidence that shows a fact is more probably true
16

than not true. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016); Barlow, 303
Kan. at 810 (citing In re B.D.-Y, 286 Kan. 686, 691, 187 P.3d 594 [2008]). The district
court reviews the evidence, making factual findings and credibility determinations. On
appellate review, the appellate court does not reweigh the evidence and reviews the
district court's factual findings only to ensure they are supported by substantial evidence;
we then review its legal conclusions independently, with no required deference to the
district court. State v. Estrada-Vital, 302 Kan. 549, 555, 356 P.3d 1058 (2015); State v.
Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). The Hardy court found those
requirements would be inappropriate for immunity hearings because "[those motions]
deal with issues only indirectly bearing on guilt or innocence, and jurors will not be
called upon to decide those issues at trial." Hardy, 51 Kan. App. 2d at 301.

In Evans, another panel of our court adopted the Hardy court's holding and
rationale that preliminary-hearing requirements were appropriate for evaluating immunity
claims. 51 Kan. App. 2d at 1054. The Evans court additionally reasoned that a motion for
immunity is a dispositive motion, which means that if the motion is granted, the case is
dismissed. In evaluating other dispositive motions, such as motions for summary
judgment in civil cases, the district court must weigh the evidence in the light most
favorable to the nonmoving party. 51 Kan. App. 2d at 1052-53. The court concluded that
in immunity hearings, as in preliminary hearings, the district court must consider the
defendant's defense and assess the credibility of the State's and defendant's witnesses but
should resolve any conflicting witness testimony in favor of the State because that
conflict is a question of fact for the jury to determine. 51 Kan. App. 2d at 1053 (citing
State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 [1996]). The court concluded that the
district court wrongly granted the defendant's motion for immunity because it had failed
to view the conflicting evidence in the light most favorable to the State. 51 Kan. App. 2d
at 1052-54.

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We recognize that not all of the members of our court who have considered the
matter have agreed that the procedural rules for preliminary hearings are appropriate for
evaluating immunity claims. In Evans, Judge Arnold-Burger dissented, essentially
adopting the position Wiseman takes, arguing that the procedural rules for immunity
claims should be based on the procedural rules used in hearings on motions to suppress
evidence. 51 Kan. App. 2d at 1064-65. Her dissent rejected the conclusion of the Evans
majority and the Hardy court that allowing the district court to weigh the credibility of
the witnesses would violate the traditional role of the jury, contending that the point of
the immunity statute is to avoid the burden of a trial altogether if possible. 51 Kan. App.
2d at 1064. She argued that if a case is wrongly permitted to go to trial, the defendant
essentially loses his or her statutory right to immunity. 51 Kan. App. 2d at 1065.
According to the dissent, to protect the defendant's right to immunity, the district court
must be able to consider and weigh the evidence as a whole, without giving deference to
the prosecution, which is more in line with the requirements in motion-to-suppress
hearings. 51 Kan. App. 2d at 1065.

We also recognize that the Kansas Supreme Court has granted review in Hardy,
which means the opinion has no precedential force or effect. See Supreme Court Rule
8.03(j) (2015 Kan. Ct. R. Annot. 78). In addition, a petition for review is pending in
Evans, and we are not bound to follow past rulings of another panel, anyway. See State v.
Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010).

In his argument in this case, Wiseman notes our Supreme Court's statement that
the probable-cause standard in the immunity statute adds an additional requirement. From
this, Wiseman asserts that the "[S]tate must meet something more than the ordinary
probable cause test that a crime has been committed and that the defendant committed the
crime." He argues that an immunity hearing "cannot be interpreted as a mini-preliminary
hearing, it must be different or it does not provide any real immunity from prosecution
and would be rendered meaningless." Wiseman contends that the district court must be
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able to assess the credibility of witnesses and weigh conflicting evidence in immunity
cases to determine whether the State has satisfied its probable-cause burden, citing cases
addressing motions to suppress evidence. Thus, Wiseman asserts that because the district
court's factual findings were supported by substantial evidence and its legal conclusions
were correct, this court should affirm the district court's judgment.

But the most central feature of the Ultreras ruling was that the State had to meet a
probable-cause standard. We agree with Hardy and Evans that this strongly suggests that
we apply the same standards applicable in preliminary hearings to immunity hearings
under K.S.A. 2015 Supp. 21-5231. As Hardy noted, in both preliminary hearings and
determinations of immunity, the State has the burden to establish probable cause. Hardy,
51 Kan. App. 2d at 299-300. And because the court should determine early in the
proceedings whether immunity applies, it is logical and reasonable to combine the
preliminary and immunity hearings. 51 Kan. App. 2d at 302; see also Barlow, 303 Kan. at
818 (noting the State must be afforded an evidentiary hearing to meet its burden and
combining preliminary hearing and immunity hearing, as Hardy suggested, would be
sensible). But in suppression hearings, the State has the burden to show that the search
and seizure was justified by a preponderance of the evidence. Patterson, 304 Kan. at 274.
And as Hardy and Evans discuss, immunity is bound up with questions of guilt and
innocence. Ultimately, we would expect that the jury would make determinations of guilt
and innocence and resolve immunity questions based on its understanding of disputed
facts. Adopting the preliminary-hearing standards for immunity hearings ensures that the
jury makes the final decision in cases with conflicting information about whether the
defendant was justified in using force. Hardy, 51 Kan. App. 2d at 300-01; Evans, 51 Kan.
App. 2d at 1052-53.

We next must consider whether the district court viewed the evidence in the light
most favorable to the State. The State argues that the district court disregarded evidence
favorable to the State that would suggest Wiseman's use of deadly force was not justified
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because he did not have a sincere or reasonable belief that deadly force was necessary to
prevent imminent death or great bodily harm. In particular, the State asserts that the
district court failed to address the evidence and testimony that Pascascio never entered
the vehicle, that one witness saw Pascascio backing away from the vehicle, that Pascascio
didn't have a weapon, that one witness reported seeing Pascascio lift his shirt up to show
that he didn't have a weapon, that Wiseman counted down twice before rolling down his
window and shooting Pascascio, and that Wiseman specifically stated, "I really don't
want to shoot this dude, but I know he's not going to leave."

After reviewing the evidence, we conclude that if the evidence is viewed in the
light most favorable to the State, a person of ordinary prudence and caution could
reasonably believe that Wiseman was not justified in using deadly force because he did
not honestly and sincerely believe that deadly force was necessary and because a
reasonable person wouldn't either. As the State argues, the time Wiseman took to give
two countdowns for Pascascio to get away from the vehicle and manually roll down the
window to shoot at Pascascio suggest that Wiseman was not actually in fear of imminent
death or great bodily harm. A reasonable person could conclude that someone in genuine
fear of imminent death or substantial harm would not be as deliberate as to count down
twice before shooting or as concerned about property damage as to manually roll down
the window rather than shooting through it. Wiseman's statement that he didn't want to
shoot Pascascio but knew that Pascascio would not leave, along with eyewitness
testimony that Pascascio had raised up his shirt and told Wiseman that he had no
weapons and was backing away from the car when he was shot, also support the idea that
Wiseman didn't fear imminent harm. Even Wiseman acknowledges that Pascascio had
been standing 3 to 4 feet away from the vehicle and had raised up his shirt when
Wiseman fired his gun (though one witness thought Pascascio had raised up his shirt in
the middle of the confrontation). The State also presented evidence that the car doors had
been locked at all times and the windows rolled up until Wiseman fired the gun; even if
Pascascio did attempt to open the doors, he never actually entered the car. So Pascascio
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had remained outside the car, and there was evidence that he had shown he had no
weapon. Because a reasonable person could conclude that Wiseman wasn't justified in
using deadly force, the district court erred when it granted Wiseman immunity and
dismissed the charge against him.

II. The District Court Wrongly Concluded That the State Had Failed to Establish
Probable Cause to Support a Charge of First-Degree Murder.
Since we have decided that the district court could not dismiss the murder charge
based on immunity, we must move on to a second issue: Was the district court correct in
concluding that the State had failed to present sufficient evidence of premeditation to
support charging Wiseman with first-degree murder?

An appellate court reviews a district court's order dismissing a charge for lack of
probable cause independently, with no required deference to the district court's judgment.
State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011) (citing State v. Anderson, 270
Kan. 68, 71, 12 P.3d 883 [2000]). We must apply the same rules the magistrate or district
judge would apply at the preliminary hearing. 292 Kan. at 171.

To proceed to trial, the State had to establish probable cause that Wiseman had
committed first-degree murderthat is, that he (1) intentionally killed Pascascio and (2)
did so with premeditation. See K.S.A. 2015 Supp. 21-5402(a)(1). The district court held
that the State had not established that Wiseman acted with premeditation and that,
therefore, the State could not charge him with first-degree murder.

Premeditation means the defendant "thought the matter over beforehand and does
not necessarily mean an act is planned, contrived, or schemed beforehand; rather,
premeditation indicates a time of reflection or deliberation." State v. Kettler, 299 Kan.
448, 466, 325 P.3d 1075 (2014). In other words, the person must have formed the design
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or intent to kill before the act. Jones, 298 Kan. at 336. Premeditation does not require a
specific time period, but it requires more than the instantaneous, intentional act of taking
someone's life. State v. Brownlee, 302 Kan. 491, 515, 354 P.3d 525 (2015). Additionally,
the State does not need to provide direct evidence of premeditation, which may be
inferred from the circumstances of the case, if those inferences are reasonable. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). Our Supreme Court has listed
several circumstances that can support inferring premeditation:

"'"'(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct
before and after the killing; (4) threats and declarations of the defendant before and
during the occurrence; and (5) the dealing of lethal blows after the deceased was felled
and rendered helpless. [Citations omitted.]'"'" State v. Walker, 304 Kan. 441, 446, 372
P.3d 1147 (2016).

There is no requirement that a certain number of factors be present to show

premeditation; in some cases, one factor alone may be sufficient. But the use of a deadly
weapon by itself is not sufficient to establish premeditation. State v. Phillips, 299 Kan.
479, 498, 325 P.3d 1095 (2014).

The State argues that premeditation can be inferred from Wiseman's actions. In
particular, the State notes Wiseman's use of a deadly weapon (the gun) and the time it
took him to remove his gun from the glove box and holster, cock it, and manually roll
down the window before shooting. The State also points to Wiseman's threats that he
would shoot if Pascascio didn't leave them alone as a factor suggesting premeditation. In
addition, of course, Wiseman gave Pascascio two countdowns. The State theorizes that
Wiseman had the opportunity to think the matter over while counting down or while
rolling down the window before shooting. In fact, Wiseman testified that he knew he
would have to shoot Pascascio after Pascascio had called his bluff on the first countdown
and that he had thought about shooting him before doing so. On the other hand, Pascascio
initiated the confrontation and provoked Wiseman when he wouldn't leave. And there's
22

no evidence that Wiseman continued firing his gun after Pascascio was rendered helpless.
Wiseman was also cooperative with police after the killing and did not deny shooting
Pascascio.

At the preliminary hearing, the State only had to show that a person of ordinary
caution and prudence could reasonably believe that Wiseman committed premeditated
first-degree murder. Just as the district court is required to do at a preliminary hearing, we
must view the evidence and resolve any conflicts in the light most favorable to the State.
See Fredrick, 292 Kan. at 171; Bell, 268 Kan. at 764-65, 767-68. The evidence showed
that Wiseman not only had the opportunity to think about shooting Pascascio before
doing so, but he actually did think about it. He also warned Pascascio that he was going
to shoot him. One can reasonably infer that Wiseman formed the intent to kill before
shooting. The State established probable cause to believe that Wiseman acted with
premeditation. The district court erred in finding that the State had failed to establish
probable cause to believe that Wiseman committed premeditated first-degree murder.

We of course express no opinion about how this case should ultimately be

resolved. It will be up to a jury to consider the facts and render a verdict. But the district
court erred by finding that Wiseman had immunity from prosecution and by failing to
bind Wiseman over for trial on the charge of premeditated first-degree murder.

We reverse the district court's judgment and remand for further proceedings
consistent with this opinion.

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