The district court did note that if the sole charge in the complaint had been premeditated first-degree murder, a lesser included instruction on second-degree murder would have been appropriate. We need not discuss whether lesser included instructions were appropriate on the alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the evidence introduced against the defendant is wholly circumstantial and open to an inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that lesser degree of homicide.
So the majority says Mr. Scaife gets a new trial on premeditated first-degree murder. This is good language for lesser-included offense instruction in other contexts as well.The State suggests that Ross' eyewitness testimony provided direct evidence of premeditation. However, nothing that Ross saw or heard directly proves the fact which is in issue, i.e., premeditation. One must take the additional step of drawing inferences from the eyewitness' description of what Scaife did and said (or did not say) to speculate as to what Scaife must have been thinking and how long he had been thinking it before pulling the trigger. Although admittedly infrequent, direct evidence of premeditation does exist in some cases. An associate might testify that the defendant shared his or her plans to kill the victim or a cellmate might relate how the defendant bragged about his or her daring deed. Sometimes, a defendant will have previously threatened to kill the particular victim. A shooter might declare, immediately prior to pulling the trigger, "This is for cheating me out of my money (or drugs)." However, we need not quibble about whether direct evidence of premeditation can ever exist. Suffice it to say that in this case, there was no direct evidence of premeditation.
Nevertheless, premeditation may be, and is most often, proved by circumstantial evidence. As we determined above, the circumstances of this case could be sufficient to prove premeditation. On the other hand, Scaife's sudden, unprovoked, and inexplicable shooting of Thompson, performed without uttering a word, could indicate to a rational jury that the killing was nothing more than an instantaneous, intentional act.
As an aside, the majority also made an interesting note in response to the state's argument that the instructions would just be too confusing:
The State makes a practical argument that the giving of lesser included offense instructions where first-degree murder is charged and instructed on the alternative theories of premeditation and felony murder would be too confusing for the jury. One might perceive that any confusion in that circumstance emanates from the curious rule that permits a jury to convict on a combination of the premeditated and felony-murder theories. Nevertheless, while drafting an appropriate jury instruction may require some careful consideration, that fact cannot dictate against giving a criminal defendant the benefit of lesser included offense instructions, i.e., to allow the jury to convict a defendant of the crime actually committed.We have been arguing for a while that the "combined theory" is antiquated and certainly doesn't fit the strict elements type analysis that we have gotten in other lesser-included offense and multiplicity cases. Keep objecting to this type of prosecution. There is no reason these offenses can't be charged and prosecuted in the alternative, eliminating any possible confusion.
[Update: the state filed a motion for rehearing on July 23, 2008.]
[Further update: the KSC denied the state's motion for reheaing on September 24, 2008.]
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