State v. Black

As the majority notes, Black took the stand in his own behalf to explain to the jury his version of what occurred on this dismal day. Therefore, Black has admitted the killing of Hymore. This admission by Black and his other testimony clearly left one substantive issue for the jury to decide, namely, his mental state at the time of the shooting.1

Applying the legal/factual test in deciding whether or not a lesser included instruction should be given seems first to only require that a trial court have the ability to count to 1, 2, 3, then to 1, 2, 3, 4 and hold that, since the elements of the…