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21-5402. Murder in the first degree. (a) Murder in the first degree is the killing of a human being committed:

(1) Intentionally, and with premeditation; or

(2) in the commission of, attempt to commit, or flight from any inherently dangerous felony.

(b) Murder in the first degree is an off-grid person felony.

(c) As used in this section, an "inherently dangerous felony" means:

(1) Any of the following felonies, whether such felony is so distinct from the homicide alleged to be a violation of subsection (a)(2) as not to be an ingredient of the homicide alleged to be a violation of subsection (a)(2):

(A) Kidnapping, as defined in K.S.A. 21-5408(a), and amendments thereto;

(B) aggravated kidnapping, as defined in K.S.A. 21-5408(b), and amendments thereto;

(C) robbery, as defined in K.S.A. 21-5420(a), and amendments thereto;

(D) aggravated robbery, as defined in K.S.A. 21-5420(b), and amendments thereto;

(E) rape, as defined in K.S.A. 21-5503, and amendments thereto;

(F) aggravated criminal sodomy, as defined in K.S.A. 21-5504(b), and amendments thereto;

(G) abuse of a child, as defined in K.S.A. 21-5602, and amendments thereto;

(H) felony theft of property, as defined in K.S.A. 21-5801(a)(1) or (a)(3), and amendments thereto;

(I) burglary, as defined in K.S.A. 21-5807(a), and amendments thereto;

(J) aggravated burglary, as defined in K.S.A. 21-5807(b), and amendments thereto;

(K) arson, as defined in K.S.A. 21-5812(a), and amendments thereto;

(L) aggravated arson, as defined in K.S.A. 21-5812(b), and amendments thereto;

(M) treason, as defined in K.S.A. 21-5901, and amendments thereto;

(N) any felony offense as provided in K.S.A. 21-5703, 21-5705 or 21-5706, and amendments thereto;

(O) any felony offense as provided in K.S.A. 21-6308(a) or (b), and amendments thereto;

(P) endangering the food supply, as defined in K.S.A. 21-6317(a), and amendments thereto;

(Q) aggravated endangering the food supply, as defined in K.S.A. 21-6317(b), and amendments thereto;

(R) fleeing or attempting to elude a police officer, as defined in K.S.A. 8-1568(b), and amendments thereto;

(S) aggravated endangering a child, as defined in K.S.A. 21-5601(b)(1), and amendments thereto;

(T) abandonment of a child, as defined in K.S.A. 21-5605(a), and amendments thereto;

(U) aggravated abandonment of a child, as defined in K.S.A. 21-5605(b), and amendments thereto; or

(V) mistreatment of a dependent adult or mistreatment of an elder person, as defined in K.S.A. 21-5417, and amendments thereto; and

(2) any of the following felonies, only when such felony is so distinct from the homicide alleged to be a violation of subsection (a)(2) as to not be an ingredient of the homicide alleged to be a violation of subsection (a)(2):

(A) Murder in the first degree, as defined in subsection (a)(1);

(B) murder in the second degree, as defined in K.S.A. 21-5403(a)(1), and amendments thereto;

(C) voluntary manslaughter, as defined in K.S.A. 21-5404(a)(1), and amendments thereto;

(D) aggravated assault, as defined in K.S.A. 21-5412(b), and amendments thereto;

(E) aggravated assault of a law enforcement officer, as defined in K.S.A. 21-5412(d), and amendments thereto;

(F) aggravated battery, as defined in K.S.A. 21-5413(b)(1), and amendments thereto; or

(G) aggravated battery against a law enforcement officer, as defined in K.S.A. 21-5413(d), and amendments thereto.

(d) Murder in the first degree as defined in subsection (a)(2) is an alternative method of proving murder in the first degree and is not a separate crime from murder in the first degree as defined in subsection (a)(1). The provisions of K.S.A. 21-5109, and amendments thereto, are not applicable to murder in the first degree as defined in subsection (a)(2). Murder in the first degree as defined in subsection (a)(2) is not a lesser included offense of murder in the first degree as defined in subsection (a)(1), and is not a lesser included offense of capital murder as defined in K.S.A. 21-5401, and amendments thereto. As set forth in subsection (b) of K.S.A. 21-5109, and amendments thereto, there are no lesser included offenses of murder in the first degree under subsection (a)(2).

(e) The amendments to this section by chapter 96 of the 2013 Session Laws of Kansas establish a procedural rule for the conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.

History: L. 2010, ch. 136, § 37; L. 2012, ch. 150, § 4; L. 2013, ch. 96, § 2; L. 2018, ch. 112, § 2; July 1.

Source or Prior Law:

21-3401, 21-3436.

Law Review and Bar Journal References:

"Between a Rock and a Hard 50: The Effect of the Alleyne Decision on Kansas' Sentencing Procedures," Ben Ashworth, 24 Kan. J. L. & Pub. Pol'y, No. 2, 273 (Spring 2015).

CASE ANNOTATIONS

1. Defendant not entitled to a second-degree murder instruction. State v. Todd, 299 Kan. 263, 323 P.3d 829 (2014).

2. Retroactive application of 2013 amendments to section did not violate ex post facto clause in federal constitution. State v. Waller, 299 Kan. 707, 718, 328 P.3d 1111 (2014).

3. Felony murder is not a lesser included offense of capital murder; retroactive application of amendments to section does not violate constitutional prohibition against ex post facto laws. State v. Gleason, 299 Kan. 1127, 1156, 329 P.3d 1102 (2014).

4. Felony murder is not a lesser included offense of capital murder. State v. Carr, 300 Kan. 1, 220, 331 P.3d 544 (2014).

5. Involuntary manslaughter is not a lesser included offense of felony first-degree murder. State v. Cameron, 300 Kan. 384, 388, 329 P.3d 1158 (2014).

6. Legislative amendment eliminated lesser included offenses of felony murder and provided for retroactive application to cases pending on appeal. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014).

7. Lesser included offenses of felony murder were eliminated and retroactive application to those cases pending on appeal. State v. De La Torre, 300 Kan. 591, 601, 331 P.3d 815 (2014).

8. Retroactive application of statute's amendments excluding felony murder as a lesser included offense of capital murder in a capital case does not violate the ex post facto clause of the U.S. constitution. State v. Longoria, 301 Kan. 489, 513, 343 P.3d 1128 (2015).

9. Lesser included offense instructions for felony murder are not legally appropriate; retroactive application of 2013 amendments to section does not violate the ex post facto clause in U.S. Constitution. State v. Tahah, 302 Kan. 783, 787, 558 P.3d 819 (2015).

10. Death caused during the res gestae of an attempted felony qualifies as felony murder; the phrase "in the commission of" includes a scope of time and actions by the defendant larger than those covered by attempt. State v. Brown, 303 Kan. 995, 1003-04, 368 P.3d 1101 (2016).

11. With respect to felony murder, the res gestae includes those acts done before, during or after the principal occurrence when those acts are so closely connected with the principal occurrence as to form a part of the occurrence. State v. Dupree, 304 Kan. 377, 388-404, 373 P.3d 811 (2016).

12. The transferred-intent doctrine does not offend first degree murder statute; doctrine clarifies evidence to prove intent. State v. Seba, 305 Kan. 185, 198, 380 P.3d 209 (2016).

13. The 2013 amendments to section eliminated lesser-included offenses of felony murder and expressly provided for retroactive application to cases pending on appeal on and after its effective date, but the amendment's retroactive application does not violate the ex post facto clause. State v. Brown, 305 Kan. 674, 387 P.3d 835 (2017); see also State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).

14. Evidence was sufficient to support direct causal connection between rape and victim's death where victim's injuries caused immobilizing pain leading to victim's fatal blood clots. State v. Nesbitt, 308 Kan. 45, 52, 53, 417 P.3d 1058 (2018).

15. The felony-murder rule does not create an unconstitutional, conclusive presumption of intent. State v. Patterson, 311 Kan. 59, 67, 455 P.3d 792 (2020).

16. The phrase "mere words cannot constitute sufficient provocation for a heat of passion voluntary manslaughter instruction, even if those words solicited murder" does not bear on the gravity of the words but on the fact that words alone are always insufficient to justify a lesser-included instruction for voluntary manslaughter. State v. Stafford, 312 Kan. 577, 586, 477 P.3d 1027 (2020).

17. When giving an instruction clarifying the temporal aspect of premeditation, the court should also instruct the jury with this language: "Premeditation requires more than mere impulse, aim, purpose, or objective. It requires a period, however brief, of thoughtful, conscious reflection and pondering—done before the final act of killing—that is sufficient to allow the actor to change his or her mind and abandon his or her previous impulsive intentions." State v. Stanley, 312 Kan. 557, 573, 478 P.3d 324 (2020).


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