Wednesday, September 26, 2007

What was he thinking?

Mark Schoenhofer won in State v. Shears, No. 95,637 (Kan. App. Sept. 21, 2007)(unpublished), getting a new trial in a Sedgwick County attempted first-degree murder prosecution. The COA reversed based on failure to give a requested lesser-included offense instruction for attempted second-degree murder:
For purposes of first-degree murder, “premeditation” is the process of thinking about a proposed killing before engaging in the homicidal conduct. The mental state required is to be distinguished from general premeditation to stalk, to harass, or even to cause injury; for first-degree murder there must be premeditation to kill. Here we believe the district court may have confused these concepts; clearly there is evidence that the shooter “premeditated” some type of bad act, but it is unclear precisely what that bad act may have been. As argued by Shears' counsel, the following or stalking, the deliberate approach to the vehicle, and the number of shots fired are consistent with a premeditated intent to damage the vehicle, to invoke fear in the victim, to perform a gang ritual, or to cause injury to the victim. And when considered along with the facts that in a well-lit area that presumably permitted the shooter to see no person behind the windshield, a vast majority of the shots were fired “randomly” at points on the vehicle that had no relationship to the location of the victim. We concede that there may have been premeditation to kill, but viewing the evidence most favorably to Shears, the evidence also reasonably inferred that there was no such specific premeditation, but only a design or plan to damage the vehicle or to harass the victim. Under these circumstances, the jury should have been allowed to determine the mental state of the shooter, including the nature of any premeditation, and the instructions should have contemplated that the mental state may have been one of the several possibilities referred to in our analysis.

This sort of reminds me of other issues that we have raised dealing with attempt or aiding and abetting where a person commits some act, but there could be a question about what the defendant specifically intended to do. Don't be afraid to ask for very specific instruction in such cases.

[Update: the state filed a PR on October 10, 2007.]

[Further update: the KSC denied the state's PR on February 13, 2008.]

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