Duncan v. State

PETERSON, Judge.

Marcus Duncan appeals his conviction for second degree murder alleging he is entitled to a new trial because the trial court’s manslaughter instruction to the jury was fundamentally flawed.

We agree with Duncan that the trial court erred by merging the instructions for voluntary and involuntary manslaughter. The instruction for voluntary manslaughter should not have been given because Duncan was only charged with second degree murder. It is only when manslaughter is being defined as a lesser included offense of first degree premeditated murder that the instruction for voluntary…