State v. Boone1/30/2004
Kan. at 886-87; State v. Rayton, 268 Kan. 711, 723, 1 P.3d 854 (2000); State v. Jones, 257 Kan. 856, 872, 896 P.2d 1077 (1995); State v. Walker, 252 Kan. 279, 297, 845 P.2d 1 (1993).
The defendant did not object to the instructions given, nor did he request any lesser included offense instructions for the charge of premeditated first-degree murder. K.S.A. 2002 Supp. 22-3414(3) provides:
"No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous."
The failure to give an instruction "'"is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict."'" State v. Sims, 262 Kan. 165, 172, 936 P.2d 779 (1997) (quoting State v. Valentine, 260 Kan. 431, 433, 921 P.2d 770 ).
Second-degree murder is: "The killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 2002 Supp. 21-3402.
Involuntary manslaughter is "the unintentional killing of a human being committed:
(a) Recklessly; (b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. 21-3436 . . .; or (c) during the commission of a lawful act in an unlawful manner." K.S.A. 2002 Supp. 21-3404.
The district court has an affirmative duty to instruct the jury regarding all lesser included crimes that are established by the evidence regardless of whether the evidence is weak or inconclusive. State v. Davis, 268 Kan. 661, 681, 998 P.2d 1127, cert. denied 531 U.S. 855 (2000). An instruction on a lesser included crime , however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented. Douglas, 274 Kan. at 103; Davis, 268 Kan. at 681.
The defendant contends that Steward's statement that he wanted to "kick the fag's ass" provides evidence that would support these lesser included instructions, reasoning as follows:
"If a person goes to a residence with intent to commit aggravated battery, but ends up causing such severe injuries that the victim dies, because the killing is not premeditated, a reasonable juror can find second-degree murder, and because the killing is not intentional, a reasonable juror can find involuntary manslaughter."
While the evidence in this case supports the jury verdict on premeditated murder, it provides no basis for a jury verdict on second-degree murder or voluntary manslaughter. "Premeditation does not have to be present before a fight, quarrel, or struggle begins. Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand." State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) the 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, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v. Decker, 275 Kan. 502, Syl. 5, 66 P.3d 915 (2003).
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