Accordingly, and after thoroughly reviewing the case law developed since Germany, we find lesser included offense instructions should follow the statutory mandate so that instructions are issued if there is some evidence that would reasonably justify the conviction of the lesser included crime. In short, we would apply K.S.A. 22-3414(3) as written to felony-murder cases. We disapprove any language to the contrary in our previous opinions.
In Berry's case, and using the statutory viewpoint directed by K.S.A. 22-3414(3), we find the evidence could reasonably justify a conviction for lesser included crimes. Indeed, the evidence is undisputed that Berry fled from the traffic stop and recklessly drove down city streets at an unconscionably high rate of speed. His flight caused an automobile accident that took someone's life. Such evidence could support a conviction for second-degree reckless murder. See K.S.A. 21-3402(b) (unintentionally killing a person recklessly under circumstances manifesting extreme indifference to the value of human life). Also, the evidence could justify a conviction for involuntary manslaughter. See K.S.A. 2004 Supp. 21-3404(a) (unintentionally killing a person recklessly). And the evidence could support a conviction of vehicular homicide. See K.S.A. 21-3405 (unintentionally killing a person while operating an automobile in a manner that created an unreasonable risk of injury to the person of another and constituted a material deviation from the standard of care a reasonable person would observe under the same circumstances.). As such, the failure to issue the lesser included offense instructions amounts to reversible error when following the statutory directive of K.S.A. 22-3414(3). We reverse Berry's felony-murder conviction based on the above analysis and order a new trial on that charge.
Finally, we hold that the decision announced in this case is to have application in all pending felony-murder cases. This court previously has noted that a new rule for the conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final.
This is a huge decsion in the area of felony murder procedure. I know of at least one more case that was argued the same week that may also be affected. And who knows how many more in the pipeline.
It may be part of the KSC's recent move to fully inform the jury regarding lesser included offenses and letting the jury do its job.
[Update: this case was selected as the 2011 ADO Case of the Year!)