               IN THE SUPREME COURT OF THE STATE OF KANSAS


                                        No. 119,712

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                         SONY UK,
                                         Appellant.


                              SYLLABUS BY THE COURT

1.
       The mere existence of a "sudden quarrel" immediately preceding a homicide,
without evidence of legally sufficient provocation, is insufficient to make a jury
instruction on voluntary manslaughter factually appropriate.


2.
       When the evidence shows the existence of a "sudden quarrel" or "heat of passion,"
the trial court performs a limited gatekeeping function to determine whether the degree of
such quarrel or passion, when viewed in a light most favorable to the defense, is
objectively sufficient, such that an instruction for voluntary manslaughter is factually
appropriate.


3.
       The concepts of "sudden quarrel" and "heat of passion," as used in the statutory
definition of voluntary manslaughter, are not separate concepts.




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4.
        PIK Crim. 4th 54.150(d) (2018 Supp.) accurately defines premeditation and
adequately distinguishes premeditated intentional conduct from nonpremeditated
intentional conduct.


        Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed April 17, 2020.
Affirmed.


        Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.


        Amy L. Aranda, first assistant county attorney, argued the cause, and Marc Goodman, county
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


The opinion of the court was delivered by


        WILSON, J.: Sony Uk challenges his conviction for first-degree premeditated
murder in the killing of Mahogany Brooks. Finding no error, we affirm.


                                                 FACTS


        On the evening of March 9, 2017, a number of people saw Uk riding through the
streets of Emporia on a bicycle while carrying a shotgun. Uk parked his bike at an
apartment building and carried his shotgun inside. Residents of the apartment building
knew Uk to be associated with Mahogany Brooks, who lived in the building.


        Shortly before 9:51 p.m., the sound of shotgun fire echoed through the apartment
building. Several witnesses described hearing between four and eight shots, noting a



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pause between the first set of shots and the final two. During this pause, residents heard
the sound of someone running, the sound of someone hitting a door and falling to the
ground, and a woman's voice calling for help.


       The most dramatic accounts of the shooting came from residents Tyler Smith and
Chris Mosby, who at first heard "[s]ome hollering and what [they] thought was slamming
or loud bangs going on" in the apartment hallway. According to Smith, "[He and Mosby]
had a pretty good idea that it was [Uk] and [Brooks] arguing. [Brooks] would get drunk
and they would argue." This incident, however, "seemed like it was a little more out of
hand than usual." Smith heard two loud noises, slightly spaced apart, which he believed
to be the product of a door being slammed. Then, after they heard someone screaming in
the hallway, Mosby and Smith looked out into the hallway. Mosby thought he could hear
a female voice calling for help but wasn't certain. At that point, they heard another "loud
bang[,]" which Smith had now determined to be a gunshot.


       Mosby stepped into the hallway to see "someone holding a shotgun and someone
laying on the floor." Mosby recognized the man with the shotgun as Uk. Mosby quickly
retreated inside his apartment and called 911. Mosby had heard three shots before he
stepped out into the hall, then one more after he retreated back inside his apartment.


       Through the gun smoke that filled the hallway, Smith—who looked out after
Mosby stepped back inside the apartment—saw the silhouette of a shotgun-wielding man
standing over the body of a woman on the floor of the hallway. Smith heard another
gunshot and saw "the flash of the fire" coming out of the shotgun's barrel, which was
pointed at the body on the floor. As the man turned toward him, Smith also retreated into
his apartment and locked the door.


       Police responded to the apartment building within minutes. Shortly after arriving,
officers spotted Uk leaving Brooks' apartment. Uk retreated into the apartment when the

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officers commanded him to halt. After 45 minutes to an hour, the police finally convinced
Uk to come out of the apartment. Uk had blood on his shirt and his shoe, the latter of
which was later determined to be Brooks'.


       As they swept the building, officers spotted a deceased individual—Brooks—lying
in the second floor hallway. Brooks had suffered wounds from multiple close-range
shotgun blasts. A later autopsy revealed that Brooks was alive when she received all but
one of them. All but one of Brooks' distinctly identifiable wounds likely would have been
individually fatal.


       The hallway presented a grim picture. The walls were stained with blood and
"other human matter," and several spent shotgun shell casings littered the floor. The first
bloodstain appeared 17 feet beyond the threshold of Brooks' apartment, and the
bloodstains increased with size and frequency in the direction of Brooks' body. Brooks'
body lay in the hallway, approximately 60 feet away from her apartment. Two spent
shotgun shells were beside Brooks' body, along with two additional spent shells further
down the hallway in the direction of Brooks' apartment. All four shell casings were found
between the first blood spatter and the place where Brooks' body lay.


       Inside Brooks' apartment, officers recovered a total of seven unspent shotgun
shells that were the same size as the spent shells, along with a spent shell inside the
doorway to the bedroom. Other than the presence of a spent shotgun shell, there were no
obvious signs of a struggle. Officers also found a Mossberg Maverick shotgun hidden
beneath a mattress. A spent shell was still inside the shotgun, but otherwise the gun was
empty. The shotgun's serial number matched that of a weapon Uk had bought online
several weeks before, which had been transferred to Uk on January 19, 2017. Uk had also
purchased several shotgun shells of the same size and brand as those that were recovered




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from the apartment building. Thus, altogether, investigators found a total of six spent
shotgun shell casings: four in the hallway (including the two near Brooks' body), one in
the doorway to Brooks' bedroom, and one in the shotgun itself.


       The State charged Uk with first-degree premeditated murder. The case ultimately
went to a jury trial. At the jury instruction conference near the end of the trial, Uk's
counsel asked for a voluntary manslaughter instruction, asserting that a jury could
conclude that Uk and Brooks had gotten into an altercation prior to Brooks' death.


       The district court rejected Uk's requested voluntary manslaughter instruction over
the objection of Uk's counsel, finding no evidence of legally sufficient provocation. But
Uk's counsel did not object to Instruction No. 11, which contained the definition of
"premeditation" and mirrored PIK Crim. 4th 54.150(d) (2018 Supp.). The district court
then instructed the jury on first-degree premeditated murder and intentional second-
degree murder as a lesser included offense.


       The jury ultimately convicted Uk of premeditated first-degree murder. Uk timely
appeals.


                                          ANALYSIS


       Uk raises two issues. He first claims the district court erred in refusing to give the
jury a requested instruction on voluntary manslaughter as a lesser included offense of
first-degree murder. He also argues the district court committed clear error in issuing an
unmodified version of the PIK instruction on premeditation. Neither claim is persuasive.




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A voluntary manslaughter instruction was not factually appropriate.


       When presented with a claim that a district court has committed an error by
refusing to issue a jury instruction:


       "(1) First, the appellate court should consider the reviewability of the issue from both
       jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
       (2) next, the court should use an unlimited review to determine whether the instruction
       was legally appropriate; (3) then, the court should determine whether there was sufficient
       evidence, viewed in the light most favorable to the defendant or the requesting party, that
       would have supported the instruction; and (4) 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 Ward[, 292 Kan. at 565]." State v. Plummer, 295 Kan.
       156, 163, 283 P.3d 202 (2012).


       "The first element of this analysis ultimately affects the last one 'in that whether a
party has preserved an issue for review will have an impact on the standard by which we
determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726
(2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). Because Uk's
trial counsel objected to the district court's refusal to give a voluntary manslaughter
instruction, the harmlessness standard set forth in Ward—rather than clear error—applies.
See Barber, 302 Kan. at 377. And because a district court's refusal to give a requested
lesser included offense instruction does not violate a defendant's constitutional right, "the
error is reversible only if we determine that there is a 'reasonable probability that the error
will or did affect the outcome of the trial in light of the entire record.'" Plummer, 295
Kan. at 168 (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011]).




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       All parties agree that voluntary manslaughter under K.S.A. 2019 Supp. 21-5404 is
a lesser included offense of premeditated first-degree murder, as set forth in K.S.A. 2019
Supp. 21-5402(a)(1). Thus, the requested instruction was legally appropriate. See, e.g.,
State v. Brownlee, 302 Kan. 491, 512, 354 P.3d 525 (2015).


       The question, then, is whether the instruction would have been factually
appropriate. Generally, "'lesser included offense instructions must be given when there is
some evidence, [viewed in a light most favorable to the defendant,] emanating from
whatever source and proffered by whichever party, that would reasonably justify a
conviction of some lesser included crime.'" State v. Gentry, 310 Kan. 715, 722, 449 P.3d
429 (2019) (quoting State v. Haygood, 308 Kan. 1387, 1408, 430 P.3d 11 [2018]).
However, when evaluating the factual appropriateness of a voluntary manslaughter
instruction, courts consider whether there was "'an adequate provocation that deprives a
reasonable person of self-control and causes that person to act out of passion rather than
reason.'" Gentry, 310 Kan. at 722 (quoting State v. Bernhardt, 304 Kan. 460, 475-76, 372
P.3d 1161 [2016]). Under this framework, "'Mere words or gestures, however offensive,
do not constitute legally sufficient provocation for a finding of voluntary manslaughter.'"
310 Kan. at 722 (quoting Bernhardt, 304 Kan. at 475-76). Additionally, "Whether
provocation was legally sufficient is based on an objective standard." 310 Kan. at 723.


       Uk raises two alternative theories to support his claim of error in the court's refusal
to give a voluntary manslaughter instruction. First, he argues that it was improper for the
district court to evaluate the degree of the quarrel, as opposed to its existence. Uk
emphasizes the testimony of witnesses who heard the sounds of an argument immediately
before the shooting began, asserting that it was the jury's responsibility to determine
whether the argument was of sufficient intensity to warrant a voluntary manslaughter
conviction.




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       Uk's argument is not persuasive. Our analysis of the legal sufficiency of
provocation is nested within the overall question of factual appropriateness. See State v.
Hilt, 299 Kan. 176, 195, 322 P.3d 367 (2014) ("But, even when this evidence is viewed
in a light most favorable to Hilt, it simply does not support the development or existence
of a sudden quarrel . . . much less one that could have caused an ordinary man to lose
control of his actions and his reason."). In other words, while the district court employs a
gatekeeper function, it is limited to determining whether a purported incident—the
existence of which is evaluated in a light most favorable to the defendant—rises to the
objective legal threshold of sufficient provocation.


       Here, evidence of a quarrel was limited to the testimony that Uk and Brooks
sounded as though they were arguing immediately before the shooting. The testimony
implied that it was not unusual for Brooks and Uk to argue, and this court has considered
the recurring nature of an argument as tending to "negate the 'sudden' aspect of sudden
quarrel; the argument did not happen 'without warning' and was foreseeable." Bernhardt,
304 Kan. at 477.


       Based on the absence of any evidence as to the adequacy of provocation preceding
the shooting, the district court did not err in exercising its gatekeeping role. In order to
conclude that legally sufficient provocation existed, we would have to infer that the
unknown nature of the alleged argument was objectively sufficient to cause Uk to lose all
reason and shoot Brooks multiple times—including at least once, and perhaps twice,
when she was helpless on the ground—while following her for more than 60 feet down a
hallway, during which time she was crying out for help. Even viewing the evidence in a
light most favorable to Uk, this inference is not viable. See State v. Northcutt, 290 Kan.
224, 234, 224 P.3d 564 (2010) ("Because there is no evidence of provocation by [the
defendant], much less severe provocation, the trial court was not required to instruct the
jury on voluntary manslaughter."); see also Bernhardt, 304 Kan. at 477 (a slap did not


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constitute legally sufficient provocation for defendant's "later, coldly callous behavior");
State v. Gallegos, 286 Kan. 869, 874-75, 190 P.3d 226 (2008) (victim shot five times
after telling defendant to calm down). Thus the district court did not err in finding a
requested instruction on voluntary manslaughter to be factually inappropriate.


       Second, Uk argues that Kansas caselaw has erroneously conflated the separate
statutory elements of "sudden quarrel" with "heat of passion," claiming that the adequacy
of provocation is irrelevant when a "sudden quarrel" is at issue. Uk's argument essentially
asks the court to overturn more than four decades of precedent on this point. See State v.
Coop, 223 Kan. 302, 305-07, 573 P.2d 1017 (1978). In Coop, after examining the law of
several other jurisdictions, the court wrote:


               "Sudden quarrel is one form of provocation for 'heat of passion' and is not
       separate and apart from 'heat of passion.' The provocation whether it be 'sudden quarrel'
       or some other form of provocation must be sufficient to cause an ordinary man to lose
       control of his actions and his reason." Coop, 223 Kan. at 307.


       Although we are not inextricably bound by our own precedent, "[w]e do not
overrule precedent lightly and must give full consideration to the doctrine of stare
decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). Yet as Uk notes, one
previous opinion observed that the language of the voluntary manslaughter statute
"suggests that 'a sudden quarrel' and 'in the heat of passion' are two separate concepts,"
although that opinion ultimately went on to reiterate the reasoning set forth in Coop. State
v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). Subsequent cases have also relied on
Coop's reasoning for this point. See, e.g., State v. Story, 300 Kan. 702, 711, 334 P.3d 297
(2014).


       Notwithstanding the Wade court's observation, we decline to overrule Coop. If
accepted, Uk's position would essentially require a voluntary manslaughter instruction


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whenever an argument precedes a killing, regardless of the origin, nature, or degree of the
argument. Without the limiting principle of legally sufficient provocation, the crime of
voluntary manslaughter could be factually indistinguishable from the crime of second-
degree murder in cases involving a homicide during an argument. See, e.g., State v.
Stafford, 213 Kan. 152, 166, 515 P.2d 769 (1973) ("[A]n intentional homicide committed
upon a sudden quarrel or in the heat of passion engendered by adequate provocation, and
not the result of malice conceived before the provocation, is voluntary manslaughter.
Suffice it to say further, although there was some evidence of prior quarreling and even
of a blow being struck by the decedent, we believe insufficient provocation existed to
reduce to voluntary manslaughter the eventual strangulation of one flat on his back in a
disabled condition. [Citation omitted.]"), reh'g denied and opinion modified, 213 Kan.
585, 518 P.2d 136 (1974).


       Accordingly, as the evidence in this case did not establish legally sufficient
provocation, we find no error in the district court's decision not to instruct the jury on
voluntary manslaughter. Because we find no error, we need not address the harmlessness
of the district court's decision.


The district court did not err in defining premeditation for the jury.


       Uk next claims the district court's jury Instruction No. 11 did not sufficiently
define the concept of "premeditation."

       Our standard of review follows the same framework as in the preceding issue.
However, since Uk did not object to Instruction No. 11, our assessment of
harmlessness—should we reach it—instead involves


       "the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under that
       standard, an appellate court assesses whether it is 'firmly convinced that the jury would


                                                   10
       have reached a different verdict had the instruction error not occurred.' Williams has the
       burden to establish reversibility, and in examining whether he has met that burden we
       make a de novo determination based on the entire record. [Citations omitted.]" State v.
       Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).


       Uk's argument implicates the legal appropriateness of Instruction No. 11, which
mirrored the text set forth in PIK Crim. 4th 54.150(d); he raises no challenge to the
instruction's factual appropriateness. Instruction No. 11 stated:


               "Premeditation means to have thought the matter over beforehand, in other
       words, to have formed the design or intent to kill before the act. Although there is no
       specific time period required for premeditation, the concept of premeditation requires
       more than the instantaneous, intentional act of taking another's life."


       Uk claims Instruction No. 11 left the jury unable to distinguish between
premeditated (first-degree) murder and intentional (second-degree) murder. To support
his claim, Uk relies largely on an early Kansas case's definition of premeditation that
involved the phrase, "plan, contrive or scheme beforehand." Craft v. The State of Kansas,
3 Kan. 450, 483 (1866). He argues that, without this language, Instruction No. 11 could
not be distinguished from the statutory definition of intent, i.e., "when it is such person's
conscious objective or desire to engage in the conduct or cause the result." K.S.A. 2019
Supp. 21-5202(h).


       The court has previously expressed strong general support for the use of PIK
instructions by district courts. See, e.g., State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675
(2009). The ultimate goal of any jury instruction is effective communication. That goal is
achieved through words given and understood in context. Though the words "intent" and
"intentional" are both used within the two sentences comprising Instruction No. 11, the
meaning of those two words is communicated within the context of the other words that
are also used. Those other words leave no doubt that "premeditation"—as a thought

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process conducted some time before an act—is clearly different than the intentional
nature of the act itself. Thus, the instruction fairly and clearly sets forth the law, and no
reasonable jury would have trouble distinguishing the conduct described by Instruction
No. 11 from the statutory definition of intentional conduct set forth in K.S.A. 2019 Supp.
21-5202(h).


       We thus find Instruction No. 11 to be legally appropriate. Lacking a challenge to
its factual appropriateness, we find no error—let alone clear error—in the district court's
decision to issue an essentially unmodified PIK instruction on the definition of
premeditation. Accordingly, we need not address harmlessness.


                                        CONCLUSION


       Uk's conviction for first-degree premeditated murder is affirmed.


       PATRICK D. MCANANY, Senior Judge, assigned. 1




1
 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
119,712 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

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