No evidence of provocation to support attempted manslaughter conviction

Peter Maharry won in State v. Boldridge, No. 121,942 (Kan. App. August 13, 2021)(unpublished), obtaining reversal in a Atchison County attempted voluntary manslaughter prosecution. The prosecution stemmed from an Atchison police officer's investigation of potential theft of services and the resultant exchange of gunfire between between Mr. Boldridge and the officer.  In particular, Mr. Boldridge argued that there was no evidence in the record to support a finding of provocation  required for the form of attempted voluntary manslaughter as the jury was instructed. Mr. Boldridge argued that he could not have been acting with legally sufficient provocation because he was reacting to an attempt to make an arrest, which cannot be lawfully resisted, even if the arrest itself is unlawful. The COA reluctantly agreed:

We find Boldridge's argument is correct even if the result it mandates feels wrong. Generally, the existence of legally sufficient provocation would make Boldridge's actions less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as opposed to attempted second-degree murder. But, the jury had the option to convict Boldridge of attempted second-degree murder and declined to do so. Its verdict, therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary manslaughter. Our role is to resolve issues of law, not questions of fact or matters of equity. Here, an essential element of the offense—legally sufficient provocation—is lacking.

The COA rejected the state's primary claim that Mr. Boldridge was barred from raising this issue because it was invited error. Recognizing that there is a difference between an instructional issue and a sufficiency issue, the COA reiterated that the state has to prove every element of the charged crime, regardless of the requested instructions. As a result, the COA reversed the attempted voluntary manslaughter conviction.

[Update: the state did not file a PR and the mandate issued on September 21, 2021.]