A Kansas appellate court ordered a new trial for a Stafford woman convicted in the 2016 shooting death of her husband.

A jury in July 2017 convicted Misty R. Salem of second-degree intentional murder for the March 10, 2016, death of Samuel Salem, whom she shot once with a .45-caliber handgun during a domestic dispute in the couple’s home.

Salem, now 38, is serving a 21-year sentence for the conviction.

The justices found Stafford County District Court Judge John Sanders erred in not including an instruction allowing jurors to consider a lesser-included charge of “imperfect self-defense involuntary manslaughter.”

Trial testimony indicated the couple had been drinking, “likely heavily,” during the evening leading up to the shooting and when they returned home from a cookout, Sam physically assaulted Misty. She testified he slapped her at least once in the kitchen, and another witness testified he attacked her in the bedroom, putting her in a headlock.

The couple had a history of domestic violence, including the woman receiving a black eye at least once and other injuries that she described at trial.

Salem’s testimony, which the appellate court described as “disjointed,” was that she confronted her husband with the pistol to scare him and when he laughed and then lunged at her from his bed, she fired with her eyes closed.

A teenager was in the home when the shooting occurred, though another younger child and the child’s grandmother had fled across the street to ask for help before the shooting occurred. Testimony from the 9-year-old was that Salem told her mother to take him out of the house “because she was going to kill Sam,” though the grandmother did not corroborate the child’s recollection.

The forensic evidence, the opinion stated, “was consistent with Sam sitting on the bed or beginning to rise from a seated position when he was shot. The evidence indicated he was within 2 feet of the muzzle of the gun when he was shot. Those circumstances are consistent with Salem deliberately shooting the pistol at Sam rather than recklessly firing a shot or accidentally discharging the pistol.”

Under state law, a person is justified in using force to defend themselves against an attack, but it must be “a commensurate degree of force.” If excessive force is used and results in the death of the attacker, the person is guilty of involuntary manslaughter.

However, permissible force to threats of force may include the “display of a weapon” or other “means of force… less than deadly force.” So, if a jury found Salem was acting in self-defense but that she used excessive force, it could find her guilty of imperfect self-defense involuntary manslaughter.

While noting it was offering “no suggestion or opinion on what result a jury should reach in this case,” the court found the jury should have been allowed to consider the lesser charge.

“For that reason, Misty Salem must be given a new trial.”