Using this instruction in a case involving both theories of first-degree murder is obviously confusing. Moreover, as argued by Dominguez on appeal, the placement of felony murder after second-degree murder in the italicized portion of the jury instruction did not (1) explain when to consider felony murder or (2) clarify that premeditated murder and felony murder are simply alternative theories of first-degree murder. If anything, the instruction implied that the three charges—premeditated murder, second-degree murder, and felony murder—were to be considered sequentially, with felony murder being the last in the sequence.
In particular, because of the likelihood of improper sequential consideration of the charges, the KSC held the error was clear:
We, therefore, find ourselves with the same concern that arose in Miller, Cribbs, and Young—the jury was either misdirected or lacked direction regarding the order of its deliberations. In the circumstances of this case, that meant the jury was not told it had to simultaneously consider the alternative theories of first-degree murder. Such a situation does not always lead to reversal, however. In Young, this court concluded "there was no reasonable possibility that the jury would have rendered a different verdict if the district court had not made the mistake of calling felony murder a 'lesser offense' of premeditated murder."
We do not reach the same conclusion under the facts of this case for several reasons, however. First, we note that, although not discussed by Dominguez, the trial court also instructed the jury in Instruction No. 21 that "[e]ach crime charged against the defendant is a separate and distinct offense." Instruction No. 21 was based on PIK Crim. 3d 68.07 (Multiple Counts-Verdict Instruction)—an instruction that is not to be given when a defendant is charged under alternative theories of first-degree murder. See PIK Crim. 3d 68.15, Notes on Use. This clearly is a misstatement of the law, since premeditated murder and felony murder are theories relating to the same offense, first-degree murder. Second, there was substantial evidence of the underlying felony, criminal discharge of a firearm at an occupied building. Hence, under the facts of this case, we are firmly convinced the jury would have reached a different verdict. This conclusion is buttressed by the fact the jury empanelled in Dominguez' first trial was unable to unanimously agree on whether Dominguez was guilty of premeditated murder or felony murder.
I think the relationship between first-degree premeditated murder and felony murder will be an recurring issue given the fact that the legislature has extended the distinction in punishment (hard 50 for premeditated and hard 25 for felony murder) and substantively changed the law regarding proof of the two crimes (no lesser included offenses for felony murder). So, how this law develops in the future is something less than clear.