Jourdan Hunt, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

A criminal trial ordinarily marks the end of a trial, but not always the end of the questions it leaves behind. Here, Jourdan Hunt contends his convictions cannot stand. First, he claims his trial counsel failed to request a mandatory jury instruction expressly placing the burden to disprove self-defense on the State. And second, he asserts that his conviction must be reversed because a trial witness later recanted material portions of his testimony. We must decide whether counsel's omission prejudiced Hunt and whether the district court abused its discretion by rejecting the recantation as not credible. For the reasons that follow, neither of Hunt's claims warrant a new trial. Accordingly, we affirm the district court's decision.

Factual and Procedural History

In the late afternoon of May 31, 2014, Hunt drove his red SUV past Freedom Valley Park in Topeka and total chaos erupted—a massive shoot out. Hunt shot toward some people in the park, and they returned fire. When the gunfire ended, Germaul Rayton was dead, and two others, Ahmad Rayton and Anthony Marshall, were wounded. The facts and procedural history underlying Hunt's convictions were fully set out in his direct appeal and need not be repeated here, except as necessary to understand the issues raised. State v. Hunt, No. 117,413, 2018 WL 4655959, at *1-3 (Kan. App. 2018) (unpublished opinion).

Only two witnesses who were in the park during the shooting testified at trial, one for the prosecution and one for the defense.

The State relied on the testimony of Ahmad. He testified that he was playing basketball in the park with Germaul, Marshall, and several others. He remembered being close to the parking lot and talking when he suddenly heard gunshots. He started running toward the park, away from the parking lot entrance, and was hit by a bullet in the upper left leg near his buttocks. He then ran to a tree and took cover. After the gunshots ended, Ahmad saw Germaul bleeding in the parking lot. Gionni Slaughter and another person who was playing basketball with them put Germaul in a car and drove away. Ahmad then ran to his aunt's house, and someone there drove him to the hospital. Ahmad denied seeing anyone in his group firing back at Hunt's vehicle.

The defense relied on the testimony of Cesar Vega, who came forward eight months after the incident identifying himself as a witness to the shooting. He testified that he met Germaul at the park that day and about a half an hour before the shooting the two smoked marijuana in Vega's car. Vega saw an unknown man hand Germaul a gun, and then “[a]t least six” other people pulled out guns as well. As gunshots started ringing out, Vega crawled out of the passenger seat of his car and took cover. Vega claimed the first shot was fired by the man who gave Germaul a gun, then shots continued “back to back.” When the gunshots stopped, Vega saw a red SUV being quickly driven away by an unknown person, Germaul limping around and bleeding, and multiple people collecting shell casings in the parking lot.

Within hours of the shooting, the Topeka Police Department identified Hunt as the suspected shooter. Detectives interviewed him the morning after the shooting. Hunt initially denied any knowledge of the shooting, claiming instead that he was in Lawrence most of the day. But his story kept changing.

Hunt next said that he had inadvertently driven near the park entrance and noticed two men who had shot him during a robbery about a month earlier. The group began shooting at him, so he fired back. Hunt later stated that he was unsure who shot first and he only began shooting when he saw the group reaching for their guns. Hunt then changed his statement yet again, saying he did not realize the individuals in the park were shooting until after he had already started shooting. He believed that if he did not shoot first, they would have shot him. Hunt did not testify at trial, but the video of his interview with detectives was admitted.

After a six-day jury trial, the jury convicted Hunt of second-degree intentional murder and two counts of aggravated battery.

In June 2020, Hunt filed a timely pro se motion under K.S.A. 60-1507, alleging (1) his direct appeal counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim based on an omitted burden of proof instruction; (2) his direct appeal and trial counsel were both ineffective for failing to assert structural error based on the omitted instruction; and (3) that newly discovered evidence in the form of a recanting trial witness warranted a new trial.

The district court issued a written decision in May 2021 summarily denying Hunt's ineffective assistance claims, essentially concluding that even assuming trial counsel was ineffective for not requesting the omitted instruction, Hunt had not established prejudice. The court explained that this court had concluded that the instructional error was harmless under the clear error standard on direct appeal. As for the newly discovered evidence claim, the court found it raised a potentially substantial basis for relief and warranted an evidentiary hearing to assess the credibility of the recanting witness. After the evidentiary hearing, the district court issued a written decision denying Hunt's newly discovered evidence claim, concluding that Ahmad's testimony was not credible.

Hunt timely appealed. Additional facts will be provided as necessary to address each claim.

Analysis

The district court did not err in summarily denying Hunt's K.S.A. 60-1507 claim based on ineffective assistance of counsel.

On appeal, Hunt abandons any claims related to appellate counsel or any claim that trial counsel was ineffective for not pursuing a claim of “structural error.” So we are left with his sole claim against the effectiveness of trial counsel for not objecting to the self-defense instructions as given.

Once the defendant satisfies the burden of producing evidence supporting a claim of self-defense, the State has the burden of disproving that defense beyond a reasonable doubt. See K.S.A. 21-5108(c). At the conclusion of Hunt's trial, the court gave the jury a general burden of proof instruction.

“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

It then provided the jury a specific instruction related to self-defense found at PIK Crim. 4th 52.200.

“Defendant claims his use of force was permitted as self defense.

“Defendant is permitted to use physical force against another person, including using a weapon, when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against the other person's imminent use of unlawful force. Reasonable belief requires both a belief by the defendant and the existence of facts that would persuade a reasonable person to that belief.

“Defendant is permitted to use against another person physical force that is likely to cause death or great bodily harm only when and to the extent that it appears to him and he reasonably believes such force is necessary to prevent death or great bodily harm for himself from the other person's imminent use of unlawful force. Reasonable belief requires both the belief from the defendant and the existence of facts that would persuade a reasonable person to that belief.

“When use of force is permitted as self defense there is no requirement to retreat.”

However, PIK Crim. 4th recommends providing PIK Crim. 4th 51.050 when the court provides PIK Crim. 4th 52.200. That instruction provides:

“The defendant raises describe the defense claimed as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.” PIK Crim. 4th 51.050 (2013 Supp.).

Hunt did not propose this instruction and did not object to its omission.

Hunt raised the district court's instructional error in his direct appeal. Although this court agreed with Hunt and concluded that omitting the instruction was error, the panel found that the error did not require reversal. Hunt, 2018 WL 4655959, at *12-13.

In his brief, Hunt argues the district court erred in summarily denying his ineffective assistance of counsel claims related to counsel's failure to submit an appropriate self-defense instruction or object to the omission of a proper instruction. Because the district court found that the motion, files, and case records conclusively showed that Hunt was not entitled to relief on his ineffective assistance of counsel claims, it summarily denied that portion of the motion. On appeal, we review the denial de novo using the same standard. State v. Roberts, 310 Kan. 5, 12, 444 P.3d 982 (2019).

To establish ineffective assistance of counsel, Hunt must meet the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which was adopted by our Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, Hunt must show that his trial attorney's performance fell below an objective standard of reasonableness. See State v. James, 319 Kan. 178, 184, 553 P.3d 308 (2024).

In considering the first prong, we must make clear that we do not revisit the finding by this court in Hunt's direct appeal—that it was error not to give an instruction consistent with PIK Crim. 4th 51.050. Hunt, 2018 WL 4655959, at *12-13. That decision is final.

But because the court found that omitting the instruction was error, the instruction is recommended in the patterned instructions, and we would assume that trial counsel in a murder case in which self-defense is central to the defense case would be aware of this instruction and the language of K.S.A. 21-5108(c), we agree with Hunt and find the first prong of Strickland has been met—his attorney's performance fell below an objective standard of reasonableness.

That takes us to the second prong of the Strickland test. As the United States Supreme Court noted, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691.

“Under the second prong, the defendant must show that defense counsel's deficient performance was prejudicial. To establish prejudice, the defendant must show with reasonable probability that the deficient performance affected the outcome of the proceedings, based on the totality of the evidence. A court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence before the judge or jury. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations omitted.]” James, 319 Kan. at 184-85.

Hunt does not dispute that this is the current framework under which we must examine his claim. Instead, he contends that when counsel has been found ineffective for failing to request the proper instruction or failing to object to its omission, we should apply the constitutional harmless error standard. Under the constitutional harmless error standard, the burden shifts to the State to establish beyond a reasonable doubt that the error did not affect the outcome. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011). As noted, the standard used in evaluating prejudice related to an ineffective assistance of counsel claim is “reasonable probability that the deficient performance affected the outcome of the proceedings, based on the totality of the evidence.” James, 319 Kan. at 184. And the movant (Hunt) bears the burden of proof. See Fuller v. State, 303 Kan. 478, 486, 363 P.3d 373 (2015).

In other words, it is Hunt's position that had his counsel not been ineffective, and had counsel instead requested the instruction or objected to its omission, the standard would not have been clear error, to wit: the court must be firmly convinced the jury would have reached a different verdict, and Hunt has the burden of proving the error. See State v. Martinez, 317 Kan. 151, 162, 527 P.3d 531 (2023). Instead, the standard applied would be either under the nonconstitutional harmless error standard—the State has the burden to show there is no reasonable probability the error affected the trial's outcome in light of the entire record—or the constitutional harmless error standard—the State must show that the error was harmless beyond a reasonable doubt. State v. Carter, 316 Kan. 427, 430, 516 P.3d 608 (2022) (nonconstitutional harmless error); Ward, 292 Kan. 541, Syl. ¶ 6 (constitutional harmless error).

Although Hunt argues that the constitutional harmless error standard should apply, and the burden should shift to the State, he makes no attempt to align the counsel's actions with the denial of any specific constitutional right. His only specific claim is that “[t]he prejudice here is the jury was not given the legal tools it required to make a reasoned decision on Hunt's assertion of self-defense.” In addition, he alludes to the fact that this denied him his right to appeal. But he refers to no specific constitutional right that was implicated. See State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020) (a point raised incidentally in a brief and not argued therein is deemed waived or abandoned).

But more importantly, Hunt concedes that no Kansas appellate court has taken this position, nor does he suggest that the Supreme Court is departing from use of the Strickland prejudice standard when evaluating claims of ineffective assistance of counsel. See State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022) (The Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position.).

Considering the totality of the evidence before the jury, we have no hesitation finding that there is no reasonable probability counsel's deficient performance affected the outcome of the trial.

As the State notes, appellate courts reviewing claims of instructional error will not view any instruction in isolation. Rather, the instructions must be considered as a whole to determine whether they properly and fairly state the applicable law or if it is reasonable to conclude that they could have misled the jury. State v. Hollins, 320 Kan. 240, 244, 564 P.3d 778 (2025).

Here, the district court correctly instructed the jury on the State's burden of proof in instruction No. 6 in accordance with PIK Crim. 4th 51.010, as follows:

“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

Moreover, the district court repeatedly admonished the jury during trial that the reason the State “goes first” when presenting evidence or during closing arguments was because the State had the burden of proof and it never shifted to the defense. Defense counsel further reiterated this legal concept by emphasizing during closing argument that “Instruction Number 6, the burden is with the State. The burden never shifts to Jourdan.”

In addition, there was ample evidence in the record to refute Hunt's self-defense theory, primarily Hunt's own statements to police. Although he initially claimed not to have any knowledge of the shooting, he later admitted that he began firing upon the individuals in the park because he believed they would have shot him eventually. The jury also heard Vega's conflicting testimony stating that Germaul and other unidentified individuals in the park fired first, yet the jury convicted Hunt anyway. Given that the jury was properly instructed as to the State's burden of proof, there is no reasonable possibility that the omitted instruction would have resulted in a different outcome. Thus, the district court properly found that Hunt failed to establish prejudice.

Accordingly, we affirm the summary denial of Hunt's K.S.A. 60-1507 motion based on ineffective assistance of trial counsel.

The district court did not abuse its discretion in denying Hunt's motion for new trial based on newly discovered evidence.

Hunt next claimed in his K.S.A. 60-1507 motion that newly discovered evidence in the form of a recanting trial witness warranted a new trial. As support, Hunt provided a signed affidavit from Ahmad, who now asserted that he witnessed two unknown individuals arguing about Hunt in the park, draw their guns, and run towards Hunt's vehicle while firing shots. Ahmad did not see Hunt return fire as he was running in the other direction. Ahmad said he was “not fully forthcoming with all of the information because of my past run ins with law enforcement and the way I have been treated by them in the past.”

The court held an evidentiary hearing to evaluate the new claims. The district court heard testimony from Ahmad and Detective Victor Riggin of the Topeka Police Department. Ahmad expanded on the statements included in his affidavit by testifying that he submitted the affidavit because he “[w]anted to clear the air, make things right. Tell the truth.” According to Ahmad, there were two individuals with guns present in the park before Hunt arrived. They drew their weapons after they saw Hunt's vehicle, then ran towards it as Hunt was about to turn into the parking lot and began shooting in Hunt's direction. Because Ahmad began running, he did not see Hunt firing back but heard gunshots. Ahmad hid behind a tree and was shot in the left leg at some point, although he did not see who fired the shot.

Ahmad denied that Hunt had attempted to persuade him to change his testimony yet acknowledged they were imprisoned at the same institution at one point in time and had “[n]o hard feelings.” When asked about the reason he was not fully forthcoming at trial or in his previous statements during the investigation, Ahmad said, “I was angry and I didn't like the treatment I was getting from the police.”

Detective Riggin testified about a jail call between Ahmad and someone identified as Travis Scott that occurred a few days before the hearing, during which they discussed Ahmad's written statement. According to Riggin, the two men discussed how Ahmad and Hunt were “making peace” and had “come to an understanding.” Scott informed Ahmad that Hunt had “ ‘sent’ ” Ahmad's written statement “ ‘out here,’ ” to which Ahmad responded, “ ‘I don't care.’ ” Scott said, “ ‘just letting you know,’ ” and Ahmad responded, “ ‘That's what I'm about to say.’ ” Scott then said, “ ‘Guess he tried to get Mayhem [referring to Marshall] to try to say that shit too.’ ” During his testimony, Ahmad denied having had any conversation with Scott about Hunt asking witnesses to change their testimony.

At the conclusion of the hearing, the district court granted a request from Hunt's counsel to submit arguments in writing and took the matter under advisement.

In March 2023, the district court issued a written decision denying Hunt's newly discovered evidence claim, concluding that Ahmad's testimony was not credible. Alternatively, the court explained that Hunt was not entitled to a new trial because there was no reasonable probability that Ahmad's new testimony would have produced a different result at trial given that it conflicted with Hunt's own statements to police that he fired the first shots. The court also discussed other conflicting trial testimony about who shot first. This “conflicting testimony” will be addressed later.

Although Hunt raised his request for a new trial based on newly discovered evidence in the context of a K.S.A. 60-1507 motion, the district court treated it as if he asserted it via a motion for new trial. See K.S.A. 22-3501(1) (“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.”). The parties seem to agree with this framing because they both articulate an abuse of discretion standard of review when discussing this issue. See James, 319 Kan. at 182; see also Moncla v. State, 285 Kan. 826, 839-40, 176 P.3d 954 (2008) (reviewing summary denial of claim of newly discovered evidence for an abuse of discretion, despite being raised in the context of a K.S.A. 60-1507 proceeding). Hunt bears the burden of showing the district court abused its discretion by showing the decision was arbitrary, fanciful, or unreasonable; was based on an error of law; or was based on an error of fact. See James, 319 Kan. at 182.

“ ‘[N]ew trials on the ground of newly discovered evidence ․ are not favored by the courts and are viewed with great caution.’ ” State v. Thomas, 257 Kan. 228, 233, 891 P.2d 417 (1995) (quoting 3 Wright, Federal Practice and Procedure: Criminal 2d § 557 [1982]). A defendant seeking a new trial based on newly discovered evidence must establish: “(1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial.” State v. Lyman, 311 Kan. 1, 17, 455 P.3d 393 (2020). In determining whether new evidence is material, the district court must assess the credibility of the newly proffered evidence, a determination which this court will not reassess on appeal. 311 Kan. at 17.

Hunt first argues the district court committed a factual error by mistakenly asserting in its ruling that three of the witnesses present in the park during the shooting testified at trial:

“The jury also heard the testimony of Marshall, another victim, who testified to seeing a red SUV (Hunt's car) and that its driver shot at the group in the park. Another witness (Gionni Slaughter) testified that he saw a red SUV drive by the parking lot slowly before the shooting began. Another witness (Victor Retana) testified that somebody in a red SUV was responsible for the shooting.”

The State concedes that the district court erred in making these assertions, since it is clear from the record that the three individuals did not testify at trial. Rather, the trial evidence showed they offered statements to the police confirming that they were present and explaining what they saw but were otherwise unwilling to cooperate with the investigation. Hunt claims that the district court's factual mistake potentially bolstered the weight of the State's case, but that claim is unpersuasive.

As the State correctly notes, the district court concluded that Ahmad's new testimony lacked credibility—and was thus not of such materiality to warrant a new trial—but did not base that determination on its mistaken factual assertions. Instead, the court based its conclusion on the strength of Hunt's own statements to police and his theory of defense.

“Considering all the evidence before the jury, the Court finds Rayton's ‘new’ testimony is not material. Hunt defended himself on a theory of self-defense. He admitted to police that he fired shots first. Rayton's present testimony does not support Hunt's own admission to police, rather, it refutes it. Rayton claims two unknown men shot at Hunt and that he did not see Hunt return fire. The problem is that Hunt admitted to police that he fired the first shots.”

As the panel noted in Hunt's direct appeal, the issue of who shot first was fully determined at trial.

“Although the issue of who shot first is material to the case, that issue had already been resolved. Because Hunt admitted to shooting first, the issue was whether he reasonably believed such force was necessary to defend himself against the men's imminent use of unlawful force. He told detectives his fear stemmed from previously being shot by two of the men and the fact that the men were armed.” Hunt, 2018 WL 4655959, at *6.

So beyond identifying the factual mistakes and explaining what the trial evidence actually showed, Hunt fails to sufficiently connect those mistakes to the court's ultimate materiality ruling. Hunt does point out that the district court believed “there was some evidence that Hunt may have attempted to persuade another victim (Marshall) to recant his testimony.” But that solicitation nonetheless shows potential witness-tampering or collusion, regardless of whether Marshall had testified at trial, driving home the court's credibility determination about Ahmad's recantation. In short, Hunt fails to establish that the district court's factual mistake resulted in an abuse of discretion in its decision to deny the motion for new trial based on newly discovered evidence.

Affirmed.

Per Curiam: