Failure to give lesser requires new trial

Charles S. Scott, Jr. won in State v. Qualls, No. 104,504 (Kan. April 12, 2013), obtaining a new trial in a Shawnee County first-degree (premeditated) murder prosecution.  Although the KSC rejected Mr. Qualls' claim that evidence of premeditation was insufficient, it agreed that evidence supported giving a voluntary manslaughter instruction as a lesser-included offense:

But the error in the district court's reasoning is not that it refused to believe Beier had his hand at his waist; it is in its application of an objective standard when deciding whether to give the instruction. And the district court stated twice that it was applying an objective standard to resolve that question. 

Under K.S.A. 21-3403(b), voluntary manslaughter requires an intentional killing that is committed with an unreasonable but honest belief that the circumstances justify deadly force to defend against an aggressor's imminent use of unlawful force under K.S.A. 21-3211. And under the voluntary manslaughter theory known as imperfect self-defense recited in K.S.A. 21-3403(b), there is no objective requirement. Therefore, what the district court needed to resolve was whether there was evidence of Qualls' subjective belief that unlawful force was imminent when that evidence is viewed in the light most favorable to Qualls. And as to that, there is no doubt based upon Qualls' testimony that he had a clear view of Beier, saw Beier's hand go to his waist, and "saw an object. I saw something, but I couldn't make it out." Qualls unequivocally testified he believed Beier had a gun, so he shot him.

The majority rebutted the dissent's claims regarding the state of the evidence:

Qualls was entitled to instructions on the law applicable to his defense theory if there was evidence to support that theory, as long as the evidence when viewed in the light most favorable to him was sufficient to justify a rational factfinder finding in accordance with that theory. And this is true even if Qualls' defense theory was only supported by his own testimony.  Patrick's testimony supports Qualls' claim that McDonald was not restraining Beier when the shooting started. And there is no other evidence contradicting Qualls' claim that Beier was coming towards him. The dissent simply does not find Qualls' testimony credible, but there is nothing in the record allowing us to conclude that a rational factfinder could not find in accordance with Qualls' theory. 

Because evidence supported giving the requested lesser-included offense instruction, the KSC reversed and remanded for a new trial.

Here is coverage of the case in the Topeka Capital-Journal.