214 Part III Homicide and Related Issues

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1 214 Part III Homicide and Related Issues THE LAW Kansas Statutes Annotated (1) Chapter 21. Crimes and Punishments Section Murder in the First Degree Murder in the first degree is the killing of a human being committed: (a) Intentionally and with premeditation; or (b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A and amendments thereto. Murder in the first degree is an off-grid person felony. Section Murder in the Second Degree Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. Murder in the second degree as described in subsection (a) is an off-grid person felony. Murder in the second degree as described in subsection (b) is a severity level 2, person felony. Section Voluntary Manslaughter Voluntary manslaughter is the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion; or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A , or and amendments thereto. Voluntary manslaughter is a severity level 3, person felony. Section Involuntary Manslaughter Involuntary manslaughter is the unintentional killing of a human being committed: (a) Recklessly; (b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A.

2 Section 6 Homicide: Doctrines of Aggravation and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A and and amendments thereto but excluding the acts described in K.S.A and amendments or (c) during the commission of a lawful act in an unlawful manner. Involuntary manslaughter is a severity level 5, person felony. Section Inherently Dangerous Felony; Definition (a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A and amendments thereto as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A and amendments thereto: (1) Kidnapping, as defined in K.S.A and amendments (2) aggravated kidnapping, as defined in K.S.A and amendments (3) robbery, as defined in K.S.A and amendments (4) aggravated robbery, as defined in K.S.A and amendments (5) rape, as defined in K.S.A and amendments (6) aggravated criminal sodomy, as defined in K.S.A and amendments () abuse of a child, as defined in K.S.A and amendments (8) felony theft under subsection (a) or (c) of K.S.A and amendments () burglary, as defined in K.S.A and amendments () aggravated burglary, as defined in K.S.A and amendments () arson, as defined in K.S.A and amendments (12) aggravated arson, as defined in K.S.A and amendments (13) treason, as defined in K.S.A and amendments (14) any felony offense as provided in K.S.A a, b or or K.S.A. 15 Supp through and amendments and (15) any felony offense as provided in K.S.A and amendments thereto. (b) Any of the following felonies shall be deemed an inherently dangerous felony only when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A and amendments thereto as to not

3 216 Part III Homicide and Related Issues be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A and amendments thereto: (1) Murder in the first degree, as defined in subsection (a) of K.S.A and amendments (2) murder in the second degree, as defined in subsection (a) of K.S.A and amendments (3) voluntary manslaughter, as defined in subsection (a) of K.S.A and amendments (4) aggravated assault, as defined in K.S.A and amendments (5) aggravated assault of a law enforcement officer, as defined in K.S.A and amendments (6) aggravated battery, as defined in subsection (a)(1) of K.S.A and amendments and () aggravated battery against a law enforcement officer, as defined in K.S.A and amendments thereto. (c) This section shall be part of and supplemental to the Kansas criminal code. Section Endangering a Child (a) Endangering a child is intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child s life, body or health may be injured or endangered. (b) Nothing in this section shall be construed to mean a child is endangered for the sole reason the child s parent or guardian, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child. (c) Endangering a child is a class A person misdemeanor. Section Criminal Intent (a) Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner. (b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms knowing, willful, purposeful, and on purpose are included within the term intentional. (c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms gross negligence, culpable negligence, wanton negligence and wantonness are included within the term recklessness as used in this code.

4 Section 6 Homicide: Doctrines of Aggravation 21 Section Criminal Intent; Exclusions (1) Proof of criminal intent does not require proof of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute. (2) Proof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged. Section Guilt Without Criminal Intent, When A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. Section Multiple Prosecutions for Same Act (1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. (2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; (b) an attempt to commit the crime charged; (c) an attempt to commit a lesser degree of the crime charged; or (d) a crime necessarily proved if the crime charged were proved. (3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal. (4) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the included crime, but the conviction of the included crime shall be annulled upon the filing of such charges. Evidence of the person s plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person s conviction of the included crime shall not be admissible at the trial of the crime charged. If the person is convicted of

5 218 Part III Homicide and Related Issues the crime charged, or of an included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction. Section Definitions The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning. (1) Act includes a failure or omission to take action. (2) Another means a person or persons as defined in this code other than the person whose act is claimed to be criminal. (3) Conduct means an act or a series of acts, and the accompanying mental state. (4) Conviction includes a judgment of guilt entered upon a plea of guilty... (14) Person means an individual, public or private corporation, government, partnership, or unincorporated association... (1) Prosecution means all legal proceedings by which a person s liability for a crime is determined... (22) State or this state means the state of Kansas and all land and water in respect to which the state of Kansas has either exclusive or concurrent jurisdiction, and the air space above such land and water. Other state means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico. The Kansas Sentencing Commission Desk Reference Manual 24-25, (2003) Sentencing Guidelines The Kansas Sentencing Guidelines Act (KSGA) became effective July 1, 13. Two grids, which contain the sentencing range for drug crimes and nondrug crimes, were developed for use as a tool in sentencing. The sentencing guidelines grids provide practitioners in the criminal justice system with an overview of presumptive felony sentences. The determination of a felony sentence is based on two factors: the current crime of conviction and the offender s prior criminal history. The sentence contained in the grid box at the juncture of the severity level of the crime of conviction and the offender s criminal history category is the presumed sentence.... Grid Boxes Within each grid box are three numbers, representing months of imprisonment. The three numbers provide the sentencing court with a range for sentencing. The sentencing court has discretion to sentence at any place within

6 Section 6 Homicide: Doctrines of Aggravation 21 the range. The middle number in the grid box is the standard number and is intended to be the appropriate sentence for typical cases. The upper and lower numbers should be used for cases involving aggravating or mitigating factors insufficient to warrant a departure. The sentencing court may depart upward to increase the length of a sentence up to double the duration within the grid box. The court may also depart downward to lower the duration of a presumptive sentence to any extent. The court may also impose a dispositional departure when aggravating or mitigating circumstances exist that are substantial and compelling.... CHAPTER III: CRIME SEVERITY LEVELS General Rules for Determining Severity Levels The severity levels range from severity level 1 to severity level on the nondrug grid. Level 1 is used to categorize the most severe crimes, and level is used to categorize the least severe crimes. Crimes listed within each level are considered relatively equal in severity. The crime severity scale contained in the sentencing guidelines grid for drug crimes consist of 4 levels of crimes. Crimes listed within each level are also considered relatively equal in severity. Level 1 crimes are the most severe crimes and level 4 crimes are the least severe crimes The severity level designation of each felony crime is included in the statutory definition of the crime. Some crimes include a broad range of conduct. In such circumstances, there may be a different severity level designated for violations of different subsections of the statute. All of the KSGA felonies are listed in Appendix E of this Manual in three versions: alphabetically by description; numerically by statute number; and by severity levels and then by statute numbers... CHAPTER IV: CRIMINAL HISTORY Criminal History Rules The horizontal axis, or top of the grid represents the criminal history categories. There are nine categories used to designate prior criminal history. Category A is used to categorize offenders having three (3) or more prior felony convictions designated as person crimes. Category I is used to categorize offenders having either no criminal record or a single conviction or juvenile adjudication for a misdemeanor. The criminal history categories classify an offender s criminal history in a quantitative as well as a qualitative manner. The categories between A and I reflect cumulative criminal history with an emphasis on whether prior convictions were for person crimes or nonperson crimes. Generally, person crimes are weighted more heavily than nonperson crimes. Within limits prior convictions for person crimes will result in a harsher sentence for the current crime of conviction. The criminal history scale is represented in an abbreviated form on the horizontal axis of the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes. The relative severity of each Criminal History Category decreases from left to right on the grids, with Criminal History

7 220 Part III Homicide and Related Issues Category A being the most serious classification and Criminal History Category I being the least serious classification. Category A B C D E F G H I Descriptive Criminal History The offender s criminal history includes three or more adult convictions or juvenile adjudications, in any combination, for person felonies. The offender s criminal history includes two adult convictions or juvenile adjudications, in any combination, for person felonies. The offender s criminal history includes one adult conviction or juvenile adjudication for a person felony, and one or more adult convictions or juvenile adjudications for nonperson felonies. The offender s criminal history includes one adult conviction or juvenile adjudication for a person felony, but no adult conviction or juvenile adjudication for a nonperson felony. The offender s criminal history includes three or more adult convictions or juvenile adjudications for nonperson felonies, but no adult conviction or juvenile adjudication for a person felony. The offender s criminal history includes two adult convictions or juvenile adjudications for nonperson felonies, but no adult conviction or juvenile adjudication for a person felony. The offender s criminal history includes one adult conviction or juvenile adjudication for a nonperson felony, but no adult conviction or juvenile adjudication for a person felony. The offender s criminal history includes two or more adult convictions or juvenile adjudications for nonperson and/or select misdemeanors, and no more than two adult convictions or juvenile adjudications for person misdemeanors, but no adult conviction or juvenile adjudication for either a person or nonperson felony. The offender s criminal history includes no prior record, or one adult conviction or juvenile adjudication for a person, nonperson, or a select misdemeanor, but no adult conviction or juvenile adjudication for either a person or a nonperson felony. Table Sentencing Range Nondrug Offenses Category A B C D E F G H I Severity Level Person Person Person 1 Person Nonperson Nonperson Nonperson Nonperson 2+ Misdemeanor Felonies Felonies Felony Felonies Felonies Felonies Felony Misdemeanor No Record I II III IV V VI VII VIII IX X Recommended probation terms are: 36 months for felonies classified in Severity Levels months for felonies classified in Severity Levels 6- Postrelease terms are: For felonies committed on or after 4/20/5 36 months for felonies classified in Severity Levels months for felonies classified in Severity Level - For felonies committed before 4/20/5 24 months for felonies classified in Severity Levels months for felonies classified in Severity Levels - LEGEND Presumptive Probation Border Box Presumptive Imprisonment