STATE OF MINNESOTA

                                    IN SUPREME COURT

                                          A22-1372

Washington County                                                              McKeig, J.
                                   Concurring, Chutich, McKeig, Moore, III, Procaccini, JJ.
                                                                Took no part, Hennesy, J.
McKinley Juner Phillips,

                      Appellant,

vs.                                                                  Filed: June 12, 2024
                                                                Office of Appellate Courts
State of Minnesota,

                      Respondent.

                              ________________________


Cathryn Middlebrook, Chief Appellate Public Defender, Susanne M. Senecal-Hill,
Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Kevin Magnuson, Washington County Attorney, Andrew T. Jackola, Assistant
Washington County Attorney, Stillwater, Minnesota, for respondent.

                              ________________________

SYLLABUS

      The appellant was not prejudiced by the district court’s refusal to instruct the jury

on first-degree heat-of-passion manslaughter because the jury was presented with

instructions for first-degree premeditated murder and second-degree intentional murder

and found the appellant guilty of first-degree premeditated murder.

      Affirmed.


                                              1

OPINION

MCKEIG, Justice.

       A jury found appellant McKinley Juner Phillips guilty of first-degree premeditated

murder and second-degree intentional murder for the stabbing death of his wife, Shavon

Phillips. The district court convicted Phillips of first-degree premeditated murder and

imposed a sentence of life imprisonment without the possibility of release. Phillips had

conceded at trial that he caused the death of Shavon, 1 but had requested that the jury be

given instructions for first-degree heat-of-passion manslaughter in addition to the

instructions for first-degree premeditated murder and second-degree intentional murder.

The district court denied the requested instruction, reasoning that even when the evidence

was viewed in a light most favorable to Phillips, it did not support a heat-of-passion

instruction. On appeal, Phillips argues that the district court committed reversable error by

denying the requested instruction. We have no need to reach the issue of whether the

district court’s denial was proper or erroneous. Instead, because we conclude that Phillips

was not prejudiced by the district court’s denial of the requested first-degree heat-of-

passion manslaughter jury instruction, we affirm.

                                          FACTS

       In June 2021, Phillips got into an argument with his wife, Shavon, punched her in

the face, and then stabbed her 27 times, which resulted in her death. In the week leading

up to the killing, Phillips performed numerous internet searches on his phone on topics


1
        Because Phillips shares a last name with Shavon, the victim’s first name is used for
clarity.

                                             2
which included: the cost of divorce in Minnesota, what to do if only one spouse wants a

divorce, signs that a spouse is cheating, and “how do you know if your wife is talking to

another man in prison.” He also visited an online newspaper article titled “Man gets 51

Years in Beating Death of Mother and Son in Ottertail County” on the day immediately

preceding the killing.

         At around 7 a.m. on the day of the murder, Shavon picked up Phillips from work

and drove him home, where he checked on the children 2 and poured himself an alcoholic

drink. Sometime between 8 and 9 that morning, Phillips discovered an envelope in

Shavon’s purse containing a visitation form that had been sent to Shavon by A.J., an inmate

at a Michigan prison. Phillips admitted that when he found the envelope, he “was getting

kind of [angry].” At 10:25 a.m., Phillips searched the internet for A.J.’s mug shots, and

the results showed that A.J. had been sentenced in 2005 and was serving a life sentence.

Sometime after this, Phillips “got up a nerve to say something” to Shavon about the

visitation form. In response, she told him, “I do what the f-ck I want to do,” and that she

could have raised the children herself without Phillips’ help. Phillips then asked Shavon

to take him to the liquor store, but she refused and went downstairs. Phillips replied, “I’m

sick of this sh-t” and followed her down to the basement.

         At 12:37 p.m., Phillips told the children who were in their basement bedrooms to

go upstairs to watch TV—first the girls, and then the boys—and Phillips followed the boys

to make sure all the children were upstairs. At that point, Phillips told the boys, “You


2
         Phillips shared one biological son with Shavon; five other children also lived in the
house.

                                               3
better spend time with your brother while you can.” The TV the children were watching

was attached to large speakers which were “always” turned up to very loud volumes.

Shortly after Phillips sent the children upstairs, Shavon went into the laundry room, which

is connected to a basement TV room.

       At 12:50 p.m., Phillips entered the laundry room and began “talking” with Shavon,

which “ended up being an argument.” Phillips “didn’t go in there to argue,” but he knew

that by following his wife into the laundry room, an argument would occur. They began

arguing, and during the argument, Phillips again went upstairs to check on the children and

to make sure they could not hear any noise from the basement. When he returned, both he

and Shavon were in the basement TV room, sitting on a couch and an armchair,

respectively, and the argument continued. Phillips asked Shavon how she could do this to

him because he thought they were a team, and she told him that she had cheated on him.

After hearing this, Phillips inquired into the reason behind his son’s middle name—which

was the same as inmate A.J.’s middle name—and Shavon replied that she had been

“thinking about [A.J.] the whole time.” Shavon told Phillips that he “ain’t f-cking right”

and that she wanted to go back to Detroit so A.J. could “bounce [her] ass like he used to.”

Phillips took this as a challenge to his manhood.

       Phillips then began pacing around the basement TV room. He told Shavon that he

hated her; she replied that she hated him too, adding “if you hate me, then you can get




                                             4
the—.” 3 Before Shavon could finish her last sentence, Phillips “punched her like two or

three times.” When Phillips punched Shavon—who was sitting down at the time—he

struck her in the eye and jaw area, which an autopsy showed had caused a brain injury. He

then grabbed a folding knife, either from his pocket or a nearby table. He stabbed Shavon,

first in her arms, then in her hands as she tried to block the attack, and then in her chest

until she fell facedown from the chair onto the floor. As Shavon lay on the ground, Phillips

continued to stab her until the blade of the knife he was using folded, cutting his hand.

Phillips then grabbed a different knife and continued stabbing Shavon in the back as she

lay prone on the ground.

       After stabbing Shavon a total of 27 times, Phillips fell back into the doorway crying

and said, “what the f-ck did I just not [sic] do.” He then brought the two knives used in the

attack to the laundry room and rinsed and taped his hand to stop the bleeding. Phillips

went upstairs and told the children that Shavon had gone to play bingo and told his

biological son that he would probably never see him again. At the time of the killing,

Phillips had $379 in cash on his person, as well as his social security card, birth certificate,

and insurance card, Shavon’s ID card and debit card, and some prepaid debit cards. Phillips

then left the home, texted his mother that he was going to turn himself in, and searched the

internet for information on homicide charges. Rather than turning himself in, Phillips went

to a bar and then eventually boarded a Greyhound bus going to Chicago, “to start over”



3
       At different points in his testimony, Phillips states that Shavon would have finished
the sentence with “ . . . get the f-ck out,” or “ . . . get your sh-t.” Either way, Phillips was
under the impression that Shavon was telling him he was free to leave if he so wished.

                                               5
with “a trouble free life” in Chicago or New York City. Phillips was arrested on the bus

before it reached Chicago.

       A grand jury indicted Phillips with first-degree premeditated murder and second-

degree intentional murder for killing Shavon. Prior to the presentation of cases and as part

of his trial strategy, Phillips conceded that he caused the death of Shavon. Phillips then

requested a first-degree heat-of-passion manslaughter instruction be given to the jury. The

district court denied the request and instructed the jury on only first-degree premeditated

murder and second-degree intentional murder. The jury subsequently found Phillips guilty

of first-degree premeditated murder and of second-degree intentional murder.

                                       ANALYSIS

       Phillips argues that the district court committed reversible error by refusing to

instruct the jury on first-degree heat-of-passion manslaughter. See 

(1)

(2022). The denial of a lesser-included offense instruction is reviewed for abuse of

discretion, but when a lesser-included offense instruction is warranted by the evidence,

“the trial court must give it.” State v. Dahlin, 

 (Minn. 2005). When

considering a requested lesser-included offense instruction, the district court must view the

evidence in the light most favorable to the requesting party and must not make its own

credibility or strength-of-evidence determinations. Cooper v. State, 

, 193-

94 (Minn. 2008).     However, a district court’s denial of a requested lesser-included

instruction is reversable error only when the instruction is warranted and a defendant is

actually prejudiced by the error. State v. Chavez-Nelson, 

 (Minn.

2016) (citing Dahlin, 

). In other words, even if the trial court erred by


                                             6
denying a requested lesser-included offense instruction, reversal is appropriate only if the

defendant was prejudiced by the error.

       When deciding whether a defendant was prejudiced by the court’s failure to give a

requested lesser-included offense instruction, we consider “the [jury] instructions actually

given and the verdict rendered by the jury.” Dahlin, 

. Moreover, we

have consistently held that a defendant is not prejudiced by a district court’s failure to give

a heat-of-passion manslaughter instruction if the jury was presented with both first-degree

premeditated murder and second-degree intentional murder, and subsequently finds the

defendant guilty of first-degree premeditated murder. See, e.g., State v. Galvan, 

 (Minn. 2018); Chavez-Nelson, 

; Cooper, 

. This is due to our determination that “the mental states of premeditation and heat

of passion cannot coexist” because of the dissimilar mental states required to commit either

type of crime. Galvan, 

. Premeditation requires a finding of a cool

mind and some reflection before the killing, whereas heat-of-passion requires a finding of

rage or wild desperation before the killing. 

 (citation omitted).

       Phillips claims that he is not arguing that Galvan was wrongly decided, nor that

premeditation and heat of passion may exist simultaneously. Rather, he argues that it

cannot be true in every case that a defendant is not prejudiced by a district court’s refusal

to instruct on heat-of-passion manslaughter if the jury finds the defendant guilty of first-




                                              7
degree premeditated murder. 4      But this argument misses the point of our previous

decisions. Our decision in Chavez-Nelson presented the same situation as this case: “[t]he

jury was presented with charges of first-degree premeditated murder and second-degree

intentional murder,” the district court “declin[ed] to instruct the jury on the lesser-included

offense of first-degree heat-of-passion manslaughter,” and the defendant “was found guilty

of all counts.” Chavez-Nelson, 

. We determined that these

circumstances were “analogous to Cooper,” where we reasoned:

       Because the jury had the choice of finding [the defendant] guilty of
       intentional murder without premeditation (i.e., second-degree murder), but
       instead found [the defendant] guilty of intentional murder with
       premeditation, this verdict indicates that the jury would not have found [the
       defendant] guilty of first-degree manslaughter, which requires an intent
       triggered by the heat of passion but no premeditation.

Chavez-Nelson, 

 (quoting Cooper, 

). The lack of

prejudice does not spring merely from a jury’s finding of premeditation, but from a finding

of premeditation coupled with an opportunity to find guilt only of a killing without

premeditation. This jury had such an opportunity and returned a guilty verdict on both

counts. As we explained in Chavez-Nelson, “[t]he jury's decision to find [the defendant]

guilty of first-degree premeditated murder demonstrates that the jury would not have




4
       Phillips bases this claim on the theory that “in the jurors’ minds, there is [likely]
very little distinction between first-degree premeditated murder and second-degree
intentional murder.” Phillips seems to implicitly challenge the adequacy of the jury
instructions given at his trial regarding the elements of first- and second-degree murder.
The adequacy of those instructions is not at issue in the case before us and we decline to
address it.

                                              8
acquitted [the defendant] of first-and second-degree murder and instead found him guilty

of first-degree manslaughter.” 

 The same conclusion is compelled here.

       We hold that Phillips was not prejudiced by the district court’s decision not to

instruct the jury on first-degree heat-of-passion manslaughter because the court gave

instructions on both first-degree premeditated murder and second-degree intentional

murder and the jury found Phillips guilty of first-degree premeditated murder. Because the

district court’s denial of the requested instruction was not prejudicial, we need not consider

whether the evidence—viewed in the light most favorable to Phillips—supported a first-

degree heat-of-passion manslaughter instruction.

                                      CONCLUSION

       For the foregoing reasons, we affirm the decision of the district court.

       Affirmed.



       HENNESY, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                              9
                                 C O N C U R R E NC E

CHUTICH, Justice (concurring).

       I agree with the court that, consistent with our established precedent, McKinley

Juner Phillips was not prejudiced by a denial of heat-of-passion manslaughter jury

instructions because the jury found premeditation after being instructed on counts of

premeditated murder and murder without premeditation. Accordingly, I join the majority

opinion. I write separately, however, to note that, if the court did need to reach the issue,

I believe that a strong argument exists that the district court correctly denied the request

for a heat-of-passion jury instruction. I also believe that it is time for the Minnesota

Legislature to update the anachronistic heat-of-passion defense to preclude its use when

words alone are the alleged provocation to an intentional killing.

                                             A.

       First, although the court need not decide whether the district court erred when it

denied the requested heat-of-passion jury instruction, I observe that it is not readily

apparent that any such error was made. First-degree heat-of-passion manslaughter is a

lesser-included offense of intentional murder. Compare 

(a)(1), (3),

(4) (2022), 609.19, subd. 1(1) (2022) (causing the death of a human being with intent to

cause death), with 

(1) (2022) (causing the death of a human being

with intent to cause death after adequate provocation). A district court’s denial of a

lesser-included offense instruction is reviewed for abuse of discretion. See Troxel v. State,

 (Minn. 2016).




                                            C-1
       When a district court considers whether to instruct the jury on heat-of-passion

manslaughter, it must look at the evidence in the light most favorable to the requesting

party and ask whether a rational basis exists to acquit of the offense charged and convict

on the lesser-included offense. State v. Dahlin, 

 (Minn. 2005). When

making this determination, the court “may not weigh the evidence or make credibility

determinations.” 

 To mitigate an intentional killing to heat-of-passion manslaughter,

the defendant’s “passion” must have been “provoked by such words or acts of another as

would provoke a person of ordinary self-control under like circumstances,” which is an

objective standard. State v. Johnson, 

 (Minn. 2006) (quoting State v.

Brocks, 

 (Minn. 1998) (internal quotation marks omitted).

       Here, the district court said that “the alleged heat of passion . . . was not provoked

by any sort of word or act that would provoke a person of ordinary self-control under

similar circumstances.”     The evidence—taken in the light most favorable to the

defendant—shows that Phillips had suspected spousal infidelity for some time and had

already contemplated divorce, and further, that he was the one to engage and reengage in

the argument that led to Shavon’s death. Of course, the argument was emotionally charged

as so many arguments are when a spouse ponders divorce or infidelity. Ultimately, Phillips

told Shavon that he hated her, and she responded in kind, attempting to add that if he hated

her, he was free to leave. But she was never allowed to finish that thought, because after

hearing that his hate was reciprocated, Phillips punched his wife so hard that it caused a

brain injury, and then he stabbed her to death. Shavon had never even risen from her




                                            C-2
armchair, yet Phillips claims that Shavon’s words were enough to provoke a person of

ordinary self-control into a murderous rage.

       Without deciding the issue, I observe that a compelling argument exists that rather

than abusing its discretion, the district court wisely refused to give the heat-of-passion

instruction. It reasoned that if it did give one in this case, it would have to find that someone

saying to their husband to get his things and leave during an argument “is enough to weaken

someone’s willpower and cloud their reason to the point where a Manslaughter instruction

would be required.”

                                               B.

       In my view, it should go without saying that a husband being verbally kicked out of

the house by his wife is insufficient provocation for her to be beaten and stabbed to death,

however spiteful her words. That this argument is even made today is reflective of too

slowly changing societal norms and of our court’s outdated case law.

       Phillips cites a nearly 50-year-old decision by this court for the proposition that a

bitter domestic argument coupled with the imminent end of a marriage should be enough

to allow a jury to decide whether heat-of-passion existed.           See State v. Leinweber,

 (Minn. 1975). In Leinweber, this court found that the defendant

was prejudiced by a trial court’s failure to instruct the jury on heat-of-passion

manslaughter—an instruction that the defendant’s own testimony repudiated.                

. There, the court found that the district court should have included the instructions

because it was the jury’s job to reconstruct “the facts of the tragedy,” and the jury could

have inferred from the evidence that the defendant shot his wife in the heat of passion. 

                                              C-3
at 123-24. The evidence included testimony about heated arguments that followed the

defendant’s frequenting of bars, the victim loudly berating the defendant in public for

taking her 11-year-old son to a bar, the victim visiting a divorce lawyer, and the victim’s

dying curses toward the defendant after he shot her. 

. Tellingly, the court

highlighted evidence that the “decedent had a loud and vulgar tongue and frequently

castigated [the] defendant in vile terms.” 

       It seems outlandish today to suggest that a “loud and vulgar” wife—using just her

words—could provoke a husband of ordinary self-control to kill her. After all, Leinweber

was decided at a time when some states still denied women the right to serve as jurors or

to dispose of community property. See Taylor v. Louisiana, 

 (1975)

(juries); Kirchberg v. Feenstra, 

 (1981) (property). But Leinweber is still

good law, 1 and its subtext is chilling. Explicitly, if a wife is too verbally cruel to her

husband as their marriage ends, a husband may be excused if his “reason is clouded and

his willpower weakened” enough to kill her. State v. Hannon, 

(Minn. 2005). Loud, vulgar wives everywhere: beware.

                                             C.

       Importantly, heat-of-passion may be provoked under Minnesota Statutes section

609.20(1) by sufficient “words or acts.” (Emphasis added.) In the absence of ambiguity,


1
       “We are ‘extremely reluctant to overrule our precedent under principles of stare
decisis and require a compelling reason’ before we will do so.” Kenneh v. Homeward
Bound, Inc., 

, 230 (Minn. 2020) (quoting Daniel v. City of Minneapolis,

 (Minn. 2019). Here, the resolution of this appeal on the ground that
Phillips was not actually prejudiced makes it unnecessary for the court to conclusively
decide whether to overrule or revisit our decision in Leinweber.

                                            C-4
if the Legislature uses the word “or,” the term is read to only require one of the possible

factual situations. State v. Abdus-Salam, 

, 878 (Minn. 2024). Accordingly,

words alone are legally sufficient to provoke a heat of passion to kill in Minnesota. It

seems atavistic that words alone, absent some physical act of violence or peril, can be

enough to provoke a person of ordinary self-control to take the life of another human being

in a blind rage. 2 Phillips argues that because words alone are sufficient under Minnesota

law to provoke a homicidal heat-of-passion, his emotionally fraught argument with his wife

was enough for the court to instruct the jury on heat-of-passion manslaughter. Although it

was not necessary for the court today to decide whether the district court properly declined

to give a heat-of-passion instruction under the circumstances presented here, under the

statutory language including “words or acts,” Phillips raises a colorable argument. Because

giving a heat-of-passion defense for angry, but entirely verbal domestic disputes like this

one is unwarranted in 2024, it is time for the law to change. 3

       If Phillips had been allowed his requested heat-of-passion jury instruction and was

convicted on that count alone, he could have been sentenced to as few as 6 years in prison

for killing his wife—a very different sentence than the minimum sentence for a


2
        Perhaps sensing this unreasonable proposition, this court has recently said of the
requirements for heat-of-passion that “the passion [must be] provoked by words and acts
of another such as would provoke a person of ordinary self-control under like
circumstances.” Eason v. State, 

, 264 (Minn. 2020) (emphasis added).
Note, however, that in Eason, the victim was killed after reaching for a weapon, so the
situation clearly did not involve words alone. 

.
3
       Note that Phillips committed intimate partner violence the moment that he punched
his wife. Had he stopped his attack after punching her, no heat-of-passion defense exists
for assault, and her words would be irrelevant.

                                            C-5
conviction of intentional second-degree murder. Compare Minn. Sent. Guidelines 4.A,

5.A, Severity Level 9 (showing a 74-month presumptive minimum sentence for first-degree

manslaughter with a criminal history score of 0), with 

 Severity Level 11 (showing a

261-month presumptive minimum sentence for second-degree intentional murder with a

criminal history score of 0). Moreover, if an abusive husband injures his wife badly

enough, he might actually be spared additional prison time if—instead of merely stopping

after serious injury—he simply carries on, kills her, and cries heat-of-passion. 4 These

possible sentences raise the important question of what this disparity means for domestic

abusers across the state and whether, if an abuser crosses the ultimate line and kills his

partner, he should be granted a heat-of-passion jury instruction simply because cruel words

hurt his feelings and pushed him to anger. Under current law, an abuser could seemingly

escape a murder conviction if a jury were to find sufficiently “vile” castigation from the

victim. Leinweber, 

. Minnesota’s heat-of-passion manslaughter statute

not only does nothing to curb intimate partner violence, it also implicitly tells victims of

abuse not to protest too loudly or crudely, else they cloud an abuser’s reason and weaken

his judgment enough to excuse their intentional killing.

       This critical issue is one of policy, and “those issues are best directed to the

Legislature.” Shefa v. Ellison, 

, 822 n.4 (Minn. 2022). I therefore speak

now directly to the Legislature. Numerous other states do not allow words alone to mitigate



4
       First-degree assault with great bodily harm, 

, subd. 1 (2022),
carries a statutory maximum sentence of 20 years. Heat-of-passion manslaughter,

(1) (2022), carries a statutory maximum sentence of only 15 years.

                                            C-6
murder to manslaughter, and I urge Minnesota to join them. See, e.g., State v. Stafford,

 (Kan. 2020) (“Mere words or gestures, however offensive, do not

constitute legally sufficient provocation for a finding of voluntary manslaughter.” (citation

omitted) (internal quotation marks omitted)); State v. Runningeagle, 

(Ariz. 1993) (“Words alone are not adequate provocation to justify a manslaughter

instruction.”); Baker v. State, 

, 712 (Miss. Ct. App. 2020) (“Mere words, no

matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide

from murder to manslaughter.” (citation omitted) (internal quotation marks omitted));

Smith v. Commonwealth, 

 (Va. Ct. App. 2018), aff’d, 

(Va. 2018) (“The Commonwealth also continues to follow the common law principle that

words alone are not sufficient to engender a reasonable provocation that incites passion

and negates the presence of malice.”); Massey v. State, 

 (Ind. Ct. App.

2011) (“Words alone, however, do not constitute sufficient provocation, especially words

that are not intentionally designed to provoke.”).

       Numerous challenges remain in the fight against domestic abuse and intimate

partner violence. The ability for a domestic abuser to claim a heat-of-passion defense

because he did not like the way his partner spoke to him should not be one of them.



MCKEIG, Justice (concurring)

       I join in the concurrence of Justice Chutich.




                                            C-7
MOORE, III, Justice (concurring)

       I join the majority opinion and join in the concurrence of Justice Chutich.



PROCACCINI, Justice (concurring)

       I join the majority opinion and join in the concurrence of Justice Chutich as to Parts

B and C, but not as to Part A.




                                            C-8