(specially concurring).
In my concurring writing in Black I, 494 N.W.2d 377, 383 (S.D.1993), I expressed no opinion on the majority’s analysis of the legal test. Rather, I voted to affirm the trial court because the facts did not warrant the lesser included offense instruction noting “that both the prosecutor and defense counsel argued the factual basis of whether to include the lesser included offense instruction.” Black I at 384. Additionally, the trial judge, although posturing his decision upon the legal test, admitted, “Even if I were to find [that the legal test has been met], I would struggle with the factual basis.” Id. at 383. Once again, the Court affirms Black’s conviction, this time concurring with my view that the facts do not substantiate a first-degree manslaughter instruction.
I also concur with the majority’s discourse of the legal test. Wiping away the cobwebs from State v. Barber, 83 S.D. 289, 158 N.W.2d 870 (1968), a clearer path has been carved for the trial courts of this state. At the same time, our precedents remain intact, as does the “lesser included offense test” followed by State v. Wall, 481 N.W.2d 259 (S.D.1992).