Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
Convictions affirmed, hard 50 sentence vacated, and remanded with directions.
BY THE COURT
1. Intentional second-degree murder is a lesser included offense of first-degree murder. Voluntary manslaughter is a lesser included offense of first-degree murder and second-degree murder.
2. The key elements of voluntary manslaughter under K.S.A. 21-3403 are an intentional killing and legally sufficient provocation. When reviewing whether provocation was legally sufficient, an objective test is used.
3. " Heat of passion" is any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror, based on impulse without reflection.
4. In order to reduce a homicide from murder to voluntary manslaughter, there must be an adequate provocation that deprives a reasonable person of self-control and causes that person to act out of passion rather than reason. Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter.
5. The Sixth Amendment to the United States Constitution provides a defendant with the right to have a jury find beyond a reasonable doubt that aggravating factors exist justifying an enhanced sentence of a minimum prison term of 50 years under a statutory sentencing scheme.
Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
[299 Kan. 862] ROSEN, J.
Terry Ray Hayes appeals from his convictions and sentences for premeditated first-degree murder and aggravated assault. He challenges the denial of his request for a voluntary manslaughter instruction and the district court's imposition of a hard 50 life sentence.
Hayes was married to Tiffani Hayes for a little over a year. In April 2010, Tiffani moved back home with her mother. Shortly afterwards, Hayes filed for a divorce. He experienced depression and suicidal ideations following the breakup. At one time, in the course of speaking with Tiffani, he pulled out a gun, pointed it at her head, pulled the trigger, and then pointed it at his own head and pulled the trigger. The gun did not fire.
Hayes and Tiffani engaged in a lengthy series of text and e-mail exchanges. A common topic was the custody of her pets, which were in Hayes' possession. Hayes pleaded with Tiffani to love him and to return to him. He also accused her of infidelity and expressed his hope that she would suffer for what she had done. Tiffani asked Hayes to stop initiating electronic contact with her at her place of work.
On August 4, 2010, Tiffani accompanied her mother and her aunt to dinner. Hayes sent Tiffani ...