concurring in part and dissenting in part: I agree with tire majority’s well-reasoned conclusion finding sufficient evidence of premeditation. However, I respectfully dissent from that part of the majority opinion which finds reversible error by concluding that the record demonstrates a duty to instruct the jury on voluntary manslaughter. I will not belabor the point; I would simply find on this record and, consistent with my dissenting opinions in State v. Haberlein, 296 Kan. 195, 213, 290 P.3d 640 (2012), State v. Tahah, 293 Kan. 267, 280, 262 P.3d 1045 (2011), and State v. Scaife, 286 Kan. 614, 627, 186 P.3d 755 (2008), the trial judge did not err when it denied Qualls’ request to instruct the jury on voluntary manslaughter.
Even viewing the evidence in the light most favorable to Qualls, I simply cannot agree that we are required to adopt Qualls’ unsupported, imagined, and mistaken subjective belief that his use of deadly force was necessary to protect against Beier’s alleged imminent use of unlawful force. The evidence in this case shows that while Beier was being restrained by a man described as being “6 feet 8 inches and probably 400 pounds” and moving away from Qualls, or within seconds thereafter, Qualls opened fire while moving towards the unarmed Beier and shooting him 11 times, the final shots fired at close range with Qualls leaning over a small table where Beier lay defenseless on the floor. Qualls’ testimony that he shot Beier multiple times because he saw Beier’s hand at his waist and feared he had a gun approaches new levels of implausibility. Here, he fired 11 bullets into his restrained, unarmed victim—surely giving ironic new meaning to the term “overkill.” *74K.S.A. 22-3414(3) provides that “where there is some evidence which would reasonably justify a conviction of some lesser included crime . . ., the judge shall instruct the jury as to the crime charged and any such lesser included crime.” As the trial judge determined, tire evidence produced at trial does not warrant the giving of a voluntary manslaughter jury instruction and is insufficient to permit a rational factfinder to find Qualls guilty beyond a reasonable doubt of that crime.
Furthermore, even if I were to agree that the failure to include a voluntary manslaughter jury instruction was error, the majority’s finding that the error is not harmless is even more perplexing. If rushing towards and shooting a defenseless person 11 times, with the final shots fired while the shooter is leaning over a table while the victim lies helplessly wounded on the floor, coupled with the perpetrator then “calmly” leaving the scene and dropping his weapon “somewhere in Topeka” where it is never found—evidence indicating that his actual fear was accountability for his unconscionably violent actions—is not strong enough or “abundant” enough to render the instructional error harmless, I do not understand what evidence would suffice to make it so.
It bears repeating that the test set forth in K.S.A. 22-3414(3) is not a theoretical one. Instead, it requires the trial judge, who has heard, seen, and evaluated all of the evidence in the case, to determine whether there is “some evidence which would reasonably justify a conviction ‘ of the lesser included crime. (Emphasis added.) We have now completely abrogated the trial judge’s role in making that determination. The standard now appears to require the trial judge or reviewing court to unconditionally accept ephemeral evidence—or nonevidence—and to apply it to any speculative scenario that the facts of the case may provide (Haberlein and Scaife); or to whatever is proclaimed by the defendant in the investigatory phase of a crime, whether corroborated or not or even later recanted at trial (Tahah); or now, to whatever imagined subjective belief that is put forth by the defendant that is not supported by the evidence in determining whether a lesser included offense jury instruction is required in premeditated first-degree murder trials. By employing such a standard in these cases, the trial judge *75in reality has no option but to instruct on all lesser included offense jury instructions, regardless of whether they are requested and in spite of the actual evidence. As I have opined in my previous dissents on this issue, that has never been the law and should not become the law of this state.
Moritz, J., joins in the foregoing concurring and dissenting opinion.