whether the district court clearly erred when it appropriately instructed the jury that it should simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter, but then erroneously gave a contradictory instruction directing the jury to consider the offense of voluntary manslaughter only if it could not agree on the offense of second-degree murder.This is another case in a fairly long and consistent line of cases dealing with voluntary manslaughter as a lesser-included offense of second-degree murder. It's sort of an odd duck because voluntary manslaughter is second-degree murder PLUS some mitigating circumstances. KSC precedent makes it clear that the jury should consider the offenses together, but the instructions in this case were contradictory, indicating in one place that the jury should consider them at the same time, but also instructing the jury to consider voluntary manslaughter only after consderation of the greater offense. The KSC held this to be clear error:
We conclude under the facts of this case, that when the jury was given contradictory instructions to consider the lesser included offenses of second-degree murder and voluntary manslaughter both sequentially under a modified form of PIK Crim. 3d 56.05, Alternative A, and simultaneously under PIK Crim. 3d 56.05, Alternative B, and the remaining instructions, closing argument, and verdict form also led the jury to consider the lesser offenses sequentially rather than simultaneously, a real possibility exists that the jury would have rendered a different verdict had it been properly instructed.This is an important result because many COA cases (like the COA in this case in fact) have held that improper instructions regarding ordering of jury consideration are cured if there is at least one correct instruction. But this case stands for the proposition that contradictory instruction on a fundamental point is clear error.