Jury instruction No. 11 is erroneous and the additional instructions cited above are not enough to bring the instructions into legal compliance. The [State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001)] court stated that these types of additional instructions did not cure the error "because it still made any consideration of attempted voluntary manslaughter contingent on the jury's prior inability to convict on attempted second-degree murder." The same can be said here. We are not confident in concluding that no real possibility exists that the jury would have rendered a different verdict had the trial court given the proper instruction from PIK Crim 3d 546.05(B).In a very similar vein, Lydia Krebs won in Vontress v. State, No. 101,434 (Kan. App. June 11, 2010)(unpublished), obtaining a new trial in a Saline County attempted second-degree murder prosecution. The procedural posture was somewhat different because Mr. Vontress was raising the claim as an ineffective assistance of appellate counsel claim; his attorney had failed to raise the improper attempted voluntary manslaughter instruction claim in his direct appeal. The COA again applied Cribbs and Graham, and again held that an improper instruction regarding voluntary manslaughter given as a lesser was clear error and would have resulted in a new trial had appellate counsel raised it in the direct appeal. Therefore, Mr. Vontress is granted a new trial.
"A jury is presumed to follow the instructions." The State assumes the jury's question about whether Miller had something in his hand was solely for the purpose of determining if there was a claim of valid or invalid self-defense and whether to convict on voluntary manslaughter. We are not as confident as the State as to why the jury asked the question. We simply do not know. For that reason, we must reverse Bates' conviction based on the clearly erronous nature of the voluntary manslaughter instrtuction as set out in [State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003)].
I thought one part of the Vontress decision particularly noteworthy. The COA made a point of noting that the state conceded the application of Graham and Cribbs in the case:
Significantly, the State readily agrees with Vontress' claim that the trial court clearly erred in providing PIK Crim. 3d 56.05-A instead of PIK Crim. 3d 56.05-B. More specifically, the State acknowledges (1) the instruction given deprived Vontress of the opportunity to have the jury simultaneously consider mitigating circumstances that might have reduced attempted second-degree murder to attempted voluntary manslaugter; and (2) there was a real possibility the jury would have rendered a different verdict had the jury been properly instructed. We believe the State's position here accurately reflects applicable Kansas law and find the State's decision to readily concede clear error both laudable and entirelyconsisted with a proseuctor's duty to remain faithful to the State's overriding interest that justice be done.So keep an eye out for these cases where manslaughter is given as a lesser.
[Update: Mr. Bates filed a PR from that part of the decision he lost on July 6, 2010. The state did not file a PR or a cross-PR.]
[Further update: the KSC denied Mr. Bates' PR and the mandate issue on September 9, 2010.]
[Update: the state did not file a PR in Vontress and the mandate issued on July 15, 2010.]