State v. Bernhardt, 304 Kan. 460

Background

Defendant Anson R. Bernhardt was convicted of premeditated first‑degree murder for the beating and abandonment of his girlfriend, Amber Kostner; he confessed in a recorded interview and autopsy showed multiple blunt‑force head injuries.
Trial evidence relied heavily on Bernhardt’s recorded interrogation and the medical examiner’s opinion that immediate medical attention might have saved the victim.
At charging/instruction conference the court modified the Pattern Instructions for Kansas (PIK) on premeditation by adding several paragraphs requested by the State and a short paragraph proposed by defense counsel.
The court instructed the jury on first‑degree premeditated murder, then gave a general lesser‑included instruction and two separate second‑degree murder instructions (intentional then reckless); the jury convicted of first‑degree murder.
After Alleyne and a 2013 statutory amendment changing hard‑50 procedure, the court applied the amended statute retroactively, Bernhardt waived a jury on aggravators, and the judge found two aggravators (avoid arrest/prosecution and heinous/cruel conduct) and imposed hard 50.

Issues

Issue	Plaintiff's Argument (Bernhardt)	Defendant's Argument (State)	Held
Premeditation instruction modification	Additions to PIK misstated law, contradicted PIK, and could mislead jury about timing of premeditation	Additions accurately stated law and clarified that premeditation can form during a violent episode	Court: No error — modified instruction correctly and fairly stated law as applied to facts; no reversible error found
Separate instructions for intentional and reckless 2nd‑degree murder	Giving separate sequential instructions treated reckless as lesser of intentional and could mislead jury	Separate instructions in severity order are appropriate; PIK format contemplates separate consideration	Court: No error — legally appropriate to instruct on both theories and to present reckless second as the lesser in sequence
Failure to give voluntary manslaughter (heat‑of‑passion) instruction	Evidence (slap during argument, immediate reaction, furious kicking) justified a manslaughter instruction	Evidence showed ongoing quarrel, foreseeable argument, and later cold, deliberative conduct — provocation insufficient	Court: No error — manslaughter instruction not factually supported under objective provocation test
Retroactive application of amended hard‑50 statute and aggravator findings	Applying amended statute retroactively increased punishment/change in legal consequence; violates Ex Post Facto	Amendments were procedural to comply with Alleyne, legislature declared retroactive application, defendant had fair warning of potential harsh penalty	Court: No Ex Post Facto violation; applying amended procedural statute retroactively permitted; aggravator findings supported sentence

Key Cases Cited

State v. Brownlee, 302 Kan. 491 (Kan. 2015) (framework for review of instruction issues)
State v. Gunby, 282 Kan. 39 (Kan. 2006) (courts cautioned about suggesting premeditation can be instantaneous)
State v. Scott, 271 Kan. 103 (Kan. 2001) (premeditation can arise during continued application of lethal force)
State v. Jones, 279 Kan. 395 (Kan. 2005) (state of mind may change to premeditation during violent episode)
State v. Moncla, 262 Kan. 58 (Kan. 1997) (instruction that premeditation may arise in an instant is improper)
Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts that increase mandatory minimum are elements requiring jury finding)
State v. Soto, 299 Kan. 102 (Kan. 2014) (Kansas court applying Alleyne to sentencing procedure)
Dobbert v. Florida, 432 U.S. 282 (U.S. 1977) (retroactive procedural sentencing changes do not necessarily violate Ex Post Facto Clause)