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
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
The trial court gave the following jury instruction without
"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
Land maintains that this instruction prejudiced her and was
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
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
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
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 ...