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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,600 STATE OF KANSAS, Appellee, v. GAYL NORTHCUTT Appellant.

SYLLABUS BY THE COURT 1. In reviewing the sufficiency of the evidence, an appellate court reviews all the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. To prove the existence of a conspiracy, there need not be direct proof of an agreement. It is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.

3. In cases where there is some evidence which would reasonably justify a conviction of some lesser included offense, the judge should instruct the jury as to the crime charged and any such lesser included offense.

4. To justify instructing the jury on the lesser included offense of voluntary manslaughter arising from a sudden quarrel or heat of passion, there must be severe provocation.

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5. Mere evidence of an altercation between parties does not alone support a finding of sufficient provocation to justify instructing the jury on voluntary manslaughter as a lesser included offense.

6. A provocation is adequate to justify the giving of a voluntary manslaughter instruction if the provocation is calculated to deprive a reasonable person of self-control and to cause him or her to act out of passion rather than reason.

7. In determining whether a voluntary manslaughter instruction should be given, the test of the sufficiency of provocation is objective, not subjective. The provocation, whether it be sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary person to lose control of his or her actions and reason.

Appeal from Wyandotte district court; ROBERT P. BURNS, judge. Opinion filed February 26, 2010. Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jerome A. Gorman, district attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Defendant Gayl Northcutt appeals his convictions for premeditated firstdegree murder, in violation of K.S.A. 21-3401, and conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302. The defendant questions the sufficiency of the evidence with respect to the conspiracy conviction and also alleges the trial court erred by not instructing the jury on voluntary manslaughter as a lesser included offense. Both issues are inherently factual,

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and the facts of this case do not support Northcutt's arguments on either issue. Consequently, Northcutt's convictions are affirmed.

PRELIMINARY PROCEDURAL ISSUE

After David Mason's family reported him missing, police began an investigation that led them to suspect Mason had been killed by Northcutt and his brother. Two custodial interviews of Northcutt confirmed he had fought with Mason and that Mason was dead. In fact, after the interviews, Northcutt showed officers where he and his brother had buried Mason.

At Northcutt's trial, audiotapes of the two custodial interviews were played to the jury. In both interviews, Northcutt admitted to beating Mason, and in the second interview he confessed that he and his brother had gone to Mason's apartment with the intent to kill Mason. Consequently, the audiotapes are important to the analysis of Northcutt's factually-based appellate arguments. Yet, when this court began its review of the case, the audiotapes of the interviews--trial exhibits 57 and 58--were not in the record on appeal.

During oral arguments, the court questioned counsel regarding the burden of creating an adequate record on appeal. At that point, both counsel were alerted to the absence of the tape recordings from the record. In response, both counsel advised the court the exhibits had been designated for inclusion in the record on appeal through a supplemental designation, which was also not in this court's record. It was later reported to the court that the original exhibits could not be located. Northcutt then filed a "Motion to Order Transmission of the Record on Appeal." In support of the motion, Northcutt's appellate counsel stated that she had received the tapes after the appeal had been docketed, relied on the tapes in preparing Northcutt's appellate brief, and then returned the tapes to the Wyandotte County District Court Clerk's office. Although the parties' statements of facts did not significantly differ, Northcutt argued his constitutional due process and equal protection rights would be violated if this court did not have the opportunity to review the tapes.

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After the motion was filed, the Clerk of the Appellate Courts, with the cooperation of counsel, located copies of the audiotapes and a police department transcript of the recorded interviews. Based on the availability of these substitutes, this court

"ordered [the parties] to notify this court within (10) days if there is any objection to the court's addition of the audio copies and transcripts to the record on appeal, as substitutes for the unavailable exhibits. If objection is made, the party should also address why this matter should not be remanded for a hearing regarding the unavailability of the exhibits and alternatives for preservation of a record on appeal. See Rule 3.02 (2009 Kan. Ct. R. Annot. 22); Rule 3.04 (2009 Kan. Ct. R. Annot. 26). "

The State responded, indicating it did not object to the addition to the record. Northcutt did not file an objection. Hence, the audiotapes and transcript were submitted to the court as part of the record on appeal. As a result of this procedure and Northcutt's waiver of any objection, the record is complete, Northcutt's motion is moot, and this appeal is ready for decision.

FACTS

The record reveals that Mason died the night of March 15, 2006, and that Mason had spent much of that day with Northcutt. Virtually all of the evidence regarding what occurred that day came from Northcutt's two custodial interviews and his trial testimony. Although there are common themes and details in his various statements, there are also variances.

In his first interview with police, Northcutt explained that after spending most of March 15 with Mason, he went home mid-afternoon. That evening he went to Mason's apartment, which Mason shared with Northcutt's younger brother, John. At the apartment, Mason and Northcutt "got into a kind of pushing, shoving argument." Northcutt explained he had confronted Mason about a dispute between Mason and his brother regarding rent money and because Mason owed Northcutt for some expensive camera equipment that Mason had borrowed and not returned, claiming the equipment had been stolen from him. Northcutt told Mason to "take care of business" and then shoved Mason. Mason fell and hit his head on a metal bed rail. Mason then stood up, slipped, fell down, and again hit his head on the bed rail. Later in the 4

interview, Northcutt admitted that he shoved Mason both times Mason fell. After Mason fell against the bed rail the second time, Northcutt left Mason where he had fallen and walked out of the room. Northcutt returned to Mason's apartment the next day and found Mason dead.

Police interviewed Northcutt a second time after they interviewed his brother, John. In the second interview, Northcutt implicated his brother as a participant in the fight and stated that both he and his brother went to Mason's apartment with the intent to kill Mason. In explaining the events, Northcutt told police he left his house with rope that had a "gear shifting knob" attached to it. He described the knob as about the size and weight of a pool ball. After entering the apartment, Northcutt pulled Mason out of a chair, pushed him against a wall, and "conked" him on the head. Mason started screaming, and John increased the volume on the television to cover the sound. The fight continued as Mason attempted to run away from Northcutt. Northcutt admitted to hitting Mason twice in the back of the head and to punching Mason in the chest.

Another version of events was offered by Northcutt during his trial, which was separate from his brother's trial. In testifying in his own defense, Northcutt told the jury that he and Mason spent the day of March 15 together, riding in Mason's car, going to a lake, and getting drunk. Sometime during their outing, Mason fell off a boat dock and cut his arm, and Northcutt helped him put a bandage on it. They returned to Mason's apartment around 3 p.m. so Mason could go to the bank and get $500 he owed to Northcutt. When they arrived at the apartment, Mason went inside, and Northcutt walked three blocks to his mother's house.

Defense counsel asked Northcutt about the problems between Mason and Northcutt and between Mason and John. Northcutt testified that there were issues between John and Mason concerning rent and utilities. As for Northcutt's situation, he testified that in addition to loaning money to Mason, he had loaned his expensive camera equipment to Mason around 1986 or 1987, and Mason had told him it had been stolen. Northcutt estimated the value of the equipment as around $30,000. On March 15, John called Northcutt and informed Northcutt that Mason was using Northcutt's supposedly-stolen camera. Northcutt testified that he told his brother that if Mason has "got my camera I wanted to get it back, and if he's taking pictures of me, I said I'm 5

going to kick his butt." The brothers also talked about the disagreement between Mason and John regarding rent and utility payments. Northcutt testified:

"I told John, I said well, I would confront [Mason] about it, but I said that's really none of my concern, that's between you and him. John wanted to move out and I said well, you can't move over here. . . . I'll let you park your bags over here if you want, but as far as that, I said I'll confront [Mason] about certain issues, you know, and

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