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June 29, 1990.

SONJA L. LAND, Appellant.

This is a direct appeal by Sonja L. Land from her convictions for one count of burglary and one count of misdemeanor theft. Land contends that the trial court erred in giving a jury instruction on accomplice testimony and that the complaint was defective because it was signed by a legal intern.

Land was tried with two codefendants, Jennie Land and Julie Berg.

Land's truck was observed leaving the abandoned Fairview Nursing Home in Oskaloosa by the son of the owner of the building. The son testified he recognized some of the scrap aluminum in Land's truck as items from inside the nursing home. The owner also testified that some of the items were from inside the nursing home, although he admitted that break-ins were common and that the items may have been outside of the building. No one actually saw any of the defendants enter the building. When Land's truck was stopped by a sheriff's deputy, Land told the officer that Jennie and Julie had not been with her when she picked up the items.

  All three defendants were tried jointly. At trial, Land was the only defense witness. She testified that she and the two other defendants did drive up to the nursing home, but that they found some items lying in a large trash pile outside of the building. She testified that some items alleged to have come from the nursing home in fact came from other trash piles. She testified that neither she nor the other two defendants ever entered the building.

  The trial court gave the following jury instruction without objection:

  "An accomplice witness is one who testifies that she was involved in the commission of the crime with which she and the other defendants were charged. You should consider with caution the testimony of an accomplice."

[14 Kan. App. 2d 517]


 Land maintains that this instruction prejudiced her and was improper.

  Land's failure to object to the jury instruction at trial alters this court's standard of review:
"A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court's failure to give [or the giving of] the instruction was clearly erroneous. [Citations omitted.] The failure to give [or the giving of] an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict." State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
  The jury instruction given in this case was taken from PIK Crim.2d 52.18. Generally, this instruction is requested by a defendant when an accomplice has testified against him or her, often in hopes of favorable treatment by the State. The accomplice has motivation to provide testimony that the State wants. The Kansas Supreme Court has said, "When an accomplice testifies, and whether that testimony is corroborated or not, the better practice is for the trial court to give a cautionary instruction. If the instruction is requested and is not given, the result may be error." State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981).

  When the accomplice testimony is favorable to the defendants, the justification for such an instruction may seem to be less than when the testimony is unfavorable. However, in State v. Anthony, 242 Kan. 493, 749 P.2d 37 (1988), the court adopted the minority view that the instruction may still be given under such circumstances. In Anthony, though, the accomplice was not a co-defendant.

  A situation similar to Anthony was presented to the United States Supreme Court in Cool v. United States, 409 U.S. 100, 34 L.Ed.2d 335, 93 S.Ct. 354 (1972). In Cool, the trial court had instructed the jury that it must ignore the favorable testimony of the accomplice unless it believed the testimony to be true beyond a reasonable doubt. The United States Supreme Court held that this impermissibly shifted the burden to the defendant. 409 U.S. at 102-03. In Anthony, the Kansas court said that the United States Supreme Court had "indicated it would have been

[14 Kan. App. 2d 518]

      permissible for the trial court to have simply instructed the jury to view accomplice testimony with caution." Anthony, 242 Kan. at 500.

  Here, however, the testifying accomplice was also a defendant. Thus, as to Land, this instruction directly told the jury ...

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