State v. Gentry, 449 P.3d 429

Background:

Late-evening May 6, 2015 shooting killed passenger A.S.; defendant Stephen Gentry was charged as an aider/abettor after codefendant Macio Palacio fired the .45-caliber gun.
Conflicting testimony: eyewitness/co-defendant Daniel Sims testified Gentry commanded Palacio to shoot; Gentry told detectives Palacio shot on his own and that the plan was only for a fistfight with Palacio standing guard with a gun.
Jury convicted Gentry of first-degree murder (couldn't unanimously pick premeditated vs. felony murder), attempted first-degree murder, criminal discharge at an occupied vehicle, and conspiracy to commit aggravated battery.
District court refused requested lesser-included instructions on reckless/unintentional homicide and voluntary manslaughter for the murder count and refused several attempted lesser-offense instructions for attempted murder; denied Gentry a continuance to secure a firearms expert; ordered restitution that included $3,642.05 for State trial/exhibit/witness expenses.
Kansas Supreme Court affirmed convictions, held some refused reckless-homicide instructions were factually appropriate but their absence was harmless, held attempted reckless/unintentional homicide offenses are not recognized, affirmed denial of continuance, and vacated $3,642.05 of restitution as improperly labeled.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by refusing lesser-included instructions (unintentional-but-reckless 2d-degree murder, reckless involuntary manslaughter, voluntary manslaughter) on first-degree murder	State: no reversible error; any error harmless because jury convicted of 1st-degree murder (skip-rule logic)	Gentry: requested instructions were legally and factually appropriate given evidence that Palacio may have shot without intent to kill and Gentry lacked intent to kill	Court: voluntary manslaughter instruction not appropriate (no heat-of-passion); reckless-homicide instructions were factually appropriate but omission was harmless given mixed jury verdict and skip-rule reasoning; convictions affirmed
Whether attempted unintentional-but-reckless 2d-degree murder and attempted reckless involuntary manslaughter are legally cognizable lesser offenses of attempted 1st-degree murder	State: no such recognized offenses; instruction not appropriate	Gentry: K.S.A. 21-5202(c) allows proof of recklessness by proof of higher culpability (knowledge/intent) so attempted reckless lesser should be allowed	Court: attempted reckless/unintentional homicide offenses are logically impossible and not recognized; statute does not create logically impossible offenses; instructions not required
Whether attempted voluntary manslaughter instruction should have been given for attempted 1st-degree murder	State: facts did not support heat-of-passion theory	Gentry: same facts that would support voluntary manslaughter for murder should support attempted voluntary manslaughter	Court: attempted voluntary manslaughter is a recognized lesser offense but facts did not support a heat-of-passion finding for Palacio or Gentry; no error in refusing instruction
Whether district court abused discretion by denying continuance to obtain Palacio's firearms expert; and whether restitution order including State trial/exhibit/witness expenses was proper	State: denial reasonable given timing; contested costs could be taxed as court costs	Gentry: denial prevented presentation of a vital defense expert; restitution improperly included State's trial preparation expenses	Court: denial of continuance not abuse of discretion; expert motion speculative and untimely; restitution order erred in labeling/taxing $3,642.05 of State witness/exhibit expenses as restitution — that portion vacated

Key Cases Cited

State v. Williams, 308 Kan. 1439 (Kan. 2018) (standards for reviewing instruction errors)
State v. Barrett, 309 Kan. 1029 (Kan. 2019) (harmlessness and skip-rule discussion)
State v. Pulliam, 308 Kan. 1354 (Kan. 2018) (lesser-included-offense principles)
State v. Haygood, 308 Kan. 1387 (Kan. 2018) (when lesser-included instructions must be given)
State v. Wade, 295 Kan. 916 (Kan. 2012) (heat-of-passion analysis and deliberate planning)
State v. Henson, 287 Kan. 574 (Kan. 2008) (no heat-of-passion where defendant planned and cooled off)
State v. Deal, 293 Kan. 872 (Kan. 2012) (distinguishing intentionality from deliberate act for unintentional-but-reckless killing)
State v. McCullough, 293 Kan. 970 (Kan. 2012) (reckless killing standard and intent evidence)
State v. Louis, 305 Kan. 453 (Kan. 2016) (attempted reckless/unintentional homicide is a logical impossibility)
State v. Shannon, 258 Kan. 425 (Kan. 1995) (attempted unintentional/reckless homicide not recognized)