In State v. Berry, Mr. Berry appealed his conviction for first-degree felony murder to the Kansas Supreme Court. No. 100,512, slip. op. at 3 (Kan. 2011). At his trial, the prosecution presented evidence that Mr. Berry was pulled over for what the police officer thought was an improper tag on the vehicle. When the officer approached the vehicle, Mr. Berry proceeded to drive away. The officer returned to his vehicle and gave chase. Eventually, the officer turned off his emergency lights and slowed down. Shortly after, Mr. Berry collided with another vehicle and the driver of the other vehicle died as a result of injuries sustained in the accident. After the accident, Mr. Berry was arrested and found with cocaine. Due to the death of driver in the accident, he was charged with first-degree felony murder based on the underlying felonies of possession of cocaine with the intent to sell, or in the alternative, possession of cocaine. The jury convicted him of felony murder based on his possession of cocaine.
On appeal, Mr. Berry make various arguments. The Court focuses on two claims: 1) whether the felony murder charge should have been dismissed before trial because there “was insufficient evidence of a causal connection between the traffic fatality and the underlying felony (possession of cocaine);” and 2) whether the jury should have been instructed on lesser included offenses. Id. at 7.
First, the court finds there was sufficient evidence of a causal connection between the traffic fatality and the possession of cocaine. In Kansas, the felony murder statute defines murder as ““the killing of a human being committed . . . in the commission of, attempt to commit, or flight from an inherently dangerous felony, as defined in K.S.A. 21-3436.” Id. at 7. Possession of cocaine is an inherently dangerous felony in Kansas. The felony and death are causally connected if 1) the death happens as a result of acts completed before, during, or after the happening of the felony and the acts are so closely connected with the felony as to form a part of the felony, and 2) there is no extraordinary event that intervene and is the sole legal cause of death. Id. at 7. Here, the court finds Berry had the cocaine in this pocket when the accident happened, the accident and possession occurred at the same place, and that it is reasonable to assume a person possessing cocaine would flee from an officer. Therefore, the death and felony are sufficiently related. Lastly, there was no intervening factor–Mr. Berry’s collision was the sole cause of the death of the driver.
However, the court agrees that Mr. Berry was entitled to instructions on the lesser included offenses of second-degree reckless murder, involuntary manslaughter, and vehicular homicide. Under Kansas statute, trial courts are required to instruct juries that they may find the defendant guilty of a lesser offense “where there is some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A. 22-3414(3). However, previously, felony-murder cases have not followed the statute. Instead, courts created a judicial felony-murder instruction rule. This rule stated that a judge must only instruct the jury on lesser offenses when the evidence of the underlying felony is “weak, inconclusive, or conflicting.” Id. at 13. Under this rule, few defendants were entitled to instructions on lesser included offenses. Here, in State v. Berry, the court overrules this judicially-created law and instructs the courts to use the Kansas statute for felony murder cases. The court analyzes the history and problems with the judicially-created rule and finds the statute to be more appropriate.
As a result of its ruling, the court reverses Mr. Berry’s conviction and orders a new trial. In the new trial, using the Kansas statute on jury instructions, it is more likely the jury in Mr. Berry’s trial will be instructed on lesser offenses. The Kansas Supreme Court admits that the evidence as presented could justify a conviction for second-degree reckless murder or involuntary manslaughter instead of first-degree felony murder.
Our firm has a great deal of experience arguing that jury instructions equal bad results. We’ve made this argument with success at both the district court and in the court of appeals. To speak with an experienced attorney today, contact Bell Folsom, P.A.