Appeal from Shawnee District Court; JAN W. LEUENBERGER, judge.
SYLLABUS BY THE COURT 1. When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. 2. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. Premeditation and deliberation may be inferred from the established circumstances of a case if the inference is reasonable. 3. Factors to consider in determining whether the evidence gives rise to an inference of premeditation include: (a) the nature of the weapon used; (b) the lack of provocation; (c) the defendant's conduct before and after the killing; (d) the defendant's threats and declarations before and during the occurrence; and (e) the dealing of lethal blows after the deceased was felled and rendered helpless. But the determination is not driven simply by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. Use of a deadly weapon, however, is insufficient by itself to establish premeditation. 4. For jury instruction issues, the analytical progression and corresponding standards of review on appeal are: (a) First, the appellate court considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court should use an unlimited review to determine if the instruction was legally appropriate; (c) then, the court should determine if there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). 5. Voluntary manslaughter is a lesser included offense of first-degree murder under K.S.A. 21-3107(2)(a). 6. 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. 7. The defendant's subjective beliefs are considered when determining whether a lesser included offense of voluntary manslaughter as defined in K.S.A. 21-3403(b) is appropriate.
The opinion of the court was delivered by: Biles, J.:
The opinion of the court was delivered by
A jury convicted James Arthur Qualls of the premeditated first-degree murder of Joseph Beier in violation of K.S.A. 21-3401(a). Qualls admits shooting Beier during a bar fight but appeals his conviction, arguing: (1) there was insufficient evidence of premeditation for first-degree premeditated murder; (2) the district court erred by refusing to instruct the jury on voluntary manslaughter; and (3) he was entitled to an instruction on self-defense.
We reject his argument that the evidence of premeditation was insufficient to support the first-degree murder conviction. But we reverse the conviction and remand for a new trial because Qualls' testimony and his theory of defense supported the requested voluntary manslaughter instruction. The district court erred in not giving that instruction. We hold further that the failure to issue the voluntary manslaughter instruction was not harmless in this circumstance.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of July 16, 2008, Qualls was in a Topeka bar playing pool with the victim's fiancee, Amber Martindale. A disagreement ensued about whether Martindale was playing the game by the rules. Beier overheard the conversation and shouted at Qualls that he would bet $100 Martindale "kicks your ass" in a pool game.
At trial, there were minor discrepancies about how this escalated, but both Qualls and Martindale testified that Qualls approached Beier and tried to end the dispute. Martindale testified, "[I]t was not a heated situation at that moment," although she could not recall exactly what was said between the two. Both parties also agree the situation worsened after Qualls' wife approached and said something like, "If y'all believe [Martindale] can make that shot, I bet I can beat her ass," wagering either $100 or $1,000.
Qualls testified that his wife and Beier "started arguing back and forth, cussing and so forth." He said his wife was "basically in [Beier's] face." Qualls also testified that he tried to end the dispute by trying "to get my wife out of his face and I told family members to restrain her."
Beier eventually punched Qualls in the face, which started both men fighting. Qualls testified that he attempted to grab Beier and push him away so Beier could not hit him again. The bartender, Cliff Cormier, testified that he saw Beier punch Qualls in the chin and then stated, "[Beier was] swinging; [Qualls was] swinging down. And they're trying to get a hold of each other evidently." Once they "finally quit swinging," Cormier testified that he grabbed Qualls in a chokehold because Qualls was on top of Beier. Cormier then pulled Qualls away from the fight. Another bar patron, Mitchell McDonald, testified that he grabbed Beier and walked him over against a wall.
Cormier testified that Qualls asked to be let go and indicated he was going to leave the bar. Cormier described Qualls as "very calm. His voice wasn't quaking, very calm." Cormier released Qualls after checking that McDonald had Beier in a "bear hug" against the wall. Cormier testified:
"I turned and picked up a pool stick and [Qualls] is walking towards the door. His wife comes up yelling at me, wanting to know why they were being thrown out, and I told her that it was closing time, everybody was . . . leaving. Okay. At that point [Qualls' wife] walked up and said something to [Qualls] and I assumed she was giving him car keys or something so they could leave. And I said, 'Come on, Man, let's go.' And I went to grab him by the elbow and he walked, actually kind of quickly, stepped away from me and raised the gun and started firing."
Cormier testified that he could not see Beier when the shooting started because McDonald was between Cormier and Beier, blocking his view. He stated, "[McDonald] was holding [Beier] in front of me. All you could see was [McDonald's] back." Cormier described McDonald as 6' 8" tall and probably 400 pounds.
Consistent with the State's theory that Beier was restrained when the shooting started, McDonald testified that he was walking Beier further away from where Qualls was going to go, but he released Beier and pushed him when he heard a bang. McDonald testified that he thought the gun shots were coming from behind him "right across my shoulder."
Qualls testified that he did not see McDonald grab Beier to end the fight because "it was a blank spot from when I went down and being choked out to when I was standing up and asking to be released." This testimony referred to Cormier's statement that he pulled Qualls out of the fight by using a chokehold. Qualls also testified that after Cormier released him, Qualls remembered "trying to get to the door and I pretty much hearing my wife say something and I turned and looked at my party to make sure, you know, everyone was . . . pretty much with us; not nobody, you know . . . left behind . . . And I seen [Beier] come around the island and was in a position that looked like he was reaching for a gun." (Emphasis added.)
Qualls later described his wife as speaking in an "alerting tone" like screaming his name as if she was fearful.
Qualls further testified that he had a clear view of Beier after the fight broke up and that Beier was unrestrained and coming towards him at an angle. Qualls said he saw Beier's hand go to his waist and then "saw an object. I saw something, but I couldn't make it out." (Emphasis added.) Qualls testified that he believed what he saw was a gun, so he took a gun he was carrying and shot Beier. Qualls also testified that he did not think about shooting Beier before it happened. He said he did not recall whether he had to cock the gun before shooting it and did not recall how many times he shot Beier. It was not until he was outside the bar before he realized what had taken place.
Another bar patron, Mark Patrick, testified he saw McDonald help break up the fight and hold Beier against the wall. Like Qualls, Patrick testified McDonald was no longer holding Beier during the shooting. Patrick did not testify about what Beier was doing when the shooting started.
Several security cameras in the bar recorded portions of the events described in the testimony. Some video was played for the jury. What was shown depended on the camera's distance from the events. For example, the cameras clearly capture Qualls shooting the gun, but the video does not show Beier in the critical moments before the shooting, nor is there any reference in ...