You don't have to acquit to consider a lesser

Lydia Krebs won today in State v. Espinales, No. 98,193 (Kan. App. Dec. 5, 2008)(unpublished), getting a new trial in a Douglas County murder prosecution. Mr. Espinales was originally charged with first-degree murder and district court gave lesser-included offense instructions for second-degree murder and voluntary manslaughter. Jury convicted of second-degree murder. The problem stemmed from an instruction that read "If you find the defendant is not guilty of the crime of murder int he first degree or second degree, you should consider if he is guilty of the crime of voluntary manslaughter." The COA applied KSC precedent to note that the instruction, as given, would prevent a jury from really considering voluntary manslaughter:

"[The jury] may never have fully analyzed whether the shooting was the product of . . . a sudden quarrel." That is problematic because a sudden quarrel is one factor that distinguishes manslaughter from murder, and the jury should deliberate both murder and manslaughter simultaneously when the evidence could support either.

The COA went on to hold that the error in this case case clear error and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on January 8, 2009.]