Insufficient evidence of "sudden quarrel" for voluntary manslaughter as lesser

Adam D. Stolte won in State v. Gooding, No. 110,352 (Kan. App. Oct. 3, 2014), obtaining reversal of a Sedgwick County voluntary manslaughter conviction.  The state charged Ms. Gooding  with premeditated first-degree murder, but a jury convicted of voluntary manslaughter as a lesser-included offense.  The appeal turned on whether there was sufficient evidence of a "sudden quarrel," which is an element of voluntary manslaughter.  The state did not argue that there was sufficient evidence, but did argue that Ms. Gooding had invited the error by requesting a lesser-included offense instruction or in the alternative, that the conviction should be upheld because evidence supported a greater offense.

The COA noted that Ms. Gooding had not requested "sudden quarrel" voluntary manslaughter, but had only requested "heat of passion" voluntary manslaughter, which was not given. The COA went on to review KSC precedent defining sufficient provocation and noting that mere words and gestures cannot suffice, but must constitute "severe" provocation.  Reviewing the record, the COA held that the state had not introduced evidence of such provocation:

Gooding's argument with Mills, by all accounts, consisted of angry words, cursing, and gestures stemming from Mills' belief that Gooding wrongfully left him behind. Through it all, Gooding maintained that she stayed calm and tried to get away from the situation. Our Supreme Court has repeatedly held that mere words or gestures, however insulting, do not constitute adequate provocation to support a conviction of voluntary manslaughter. Even when considered in a light most favorable to the State, the evidence presented concerning Gooding's argument with Mills failed to establish provocation sufficient to cause an ordinary person to lose control of his or her actions and reasons.

Finally, the COA considered the state's argument that the conviction should be upheld because evidence supported a conviction of a greater offense.  The COA either rejected or distinguished previous cases that had upheld convictions for voluntary manslaughter:

The decision in Harris did not address the language in Kansas Supreme Court decisions stating that the rule applies only when all the elements in the lesser offense are included in the greater offense.

Even if Harris was correctly decided at the time, subsequent legislative changes have negated the court's holding. When Harris was decided, there was no distinction under the criminal code between an intentional act and a knowing act. As Gooding points out, the terms "intentionally" and "knowingly" now are separated and ranked by degree, with "intentionally" being ranked as a higher degree of culpability than "knowingly." Second-degree murder is still defined as the killing of a human being committed intentionally. Voluntary manslaughter is now defined as the knowing killing of a human being committed upon a sudden quarrel or in the heat of passion.

When Harris was decided, the sole distinction between intentional second-degree murder and voluntary manslaughter was the presence of mitigating circumstances, i.e., sudden quarrel or heat of passion. So when Harris was decided, if the defendant was found guilty of voluntary manslaughter but it was later determined that there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, an appellate court could still conclude, without engaging in any judicial fact-finding, that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. Any error in instructing the jury on voluntary manslaughter was harmless and worked in the defendant's favor. 

Now if a defendant is found guilty of voluntary manslaughter but there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, it does not necessarily follow that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. The premise of the Harris rule is that a voluntary manslaughter conviction will stand absent evidence of sudden quarrel or heat of passion, "as long as evidence was sufficient to convict the defendant of second-degree intentional murder."

Because insufficient evidence supported the voluntary manslaughter conviction, the COA reversed and remanded with directions to discharge.

[Update: the state filed a PR on October 24, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on January 16, 2015.]