second degree murder instruction in Kansas

2022This court ruled the defendant had not invited any error because "[d]efense counsel made no affirmative request to omit a second-degree murder instruction nor did defense counsel decline an offer by the court to give the instruction." Soto, 301 Kan. at 984 .

2016We noted: “[Djefense counsel made no affirmative request to omit a second-degree murder instruction nor did defense counsel decline an offer by the court to give the instruction.” 301 Kan. at 984 .

2015In support of its argument, the State relies on State v. Angelo, 287 Kan. 262 , 197 P.3d 337 (2008), where the district court determined that a second-degree murder instruction was factually appropriate but acceded to the defendant’s two requests that the instruction not be given.

2015In support of its argument, the State relies on State v. Angelo, 287 Kan. 262 , 197 P.3d 337 (2008), where the district court determined that a second-degree murder instruction was factually appropriate but acceded to the defendant’s two requests that the instruction not be given.

2016However, “[a] party must do more than simply fail to object to a district court’s proposed juiy instruction to risk application of the invited error doctrine as a bar to appellate review of that instruction.” State v. Dern, 303 Kan. 384 , Syl. ¶ 4, 362 P.3d 566 (2015). *445 At the instructions conference, the district court discussed with the parties its duty to instruct on lesser included crimes and opined that a second-degree murder instruction was inappropriate because the testimony on the length of time required to kill by strangulation showed premeditation.

2016However, “[a] party must do more than simply fail to object to a district court’s proposed juiy instruction to risk application of the invited error doctrine as a bar to appellate review of that instruction.” State v. Dern, 303 Kan. 384 , Syl. ¶ 4, 362 P.3d 566 (2015). *445 At the instructions conference, the district court discussed with the parties its duty to instruct on lesser included crimes and opined that a second-degree murder instruction was inappropriate because the testimony on the length of time required to kill by strangulation showed premeditation.

2013State v. Calvin, 279 Kan. 193, 202 , 105 P.3d 710 (2005); but see K.S.A. 2012 Supp. 21-5109(b)(l) (there are no lesser degrees to felony murder effective July 1, 2012).

2013State v. Calvin, 279 Kan. 193, 202 , 105 P.3d 710 (2005); but see K.S.A. 2012 Supp. 21-5109(b)(l) (there are no lesser degrees to felony murder effective July 1, 2012).

2009Although the Supreme Court acknowledged there was “substantial” evidence of premeditation, the court determined a jury “could also reasonably find that no premeditation existed” because of the “complete lack of evidence explaining exactly why [the victim] was killed.” 279 Kan. at 403-06 .

2009However, there may be reversible error for a district court to give a second-degree murder instruction over the defendant’s objection where there is no evidence to support the instruction. 228 Kan. at 123 ; see State v. Cordray, 277 Kan. 43, 53-55 , 82 P.3d 503 (2004).

2005“An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of *203 the lesser crime based on the evidence presented.” Boone, 277 Kan. at 220-21 .

2004The defendant acknowledges that this court has recently considered this issue in State v. Groschang, 272 Kan. 652 , 36 P.3d 231 (2001), but he contends this case is factually distinguishable because the evidence supported a second-degree murder instruction.

2004The defendant acknowledges that this court has recently considered this issue in State v. Groschang, 272 Kan. 652 , 36 P.3d 231 (2001), but he contends this case is factually distinguishable because the evidence supported a second-degree murder instruction.

2001We examine the merit of the district court’s ruling by observing, there is “[n]o duty to instruct the jury on a lesser included offense . . . where the evidence as a whole, viewed in the light most favorable to the defendant, could not reasonably support a jury verdict on the lesser included offense.” State v. Simkins, 269 Kan. 84, 90 , 3 P.3d 1274 (2000).

2001We examine the merit of the district court’s ruling by observing, there is “[n]o duty to instruct the jury on a lesser included offense . . . where the evidence as a whole, viewed in the light most favorable to the defendant, could not reasonably support a jury verdict on the lesser included offense.” State v. Simkins, 269 Kan. 84, 90 , 3 P.3d 1274 (2000).