[Copyrighted Material Omitted]
Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge.
Judgment of the district court is affirmed.
BY THE COURT
1. K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.
2. When presented with a claim that the failure to give an unrequested jury instruction was clearly erroneous, the appellate court first determines whether the failure to give the instruction was erroneous.
3. If the district court has committed error in its jury instructions, that failure will be clearly erroneous, and thus reversible, if the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.
4. Determining whether a jury instruction or failure to give an instruction is clearly erroneous requires an appellate court to review de novo the entire record.
5. Absent a request for a limiting instruction concerning gang evidence and absent any objection for the failure to give such a limiting instruction, a trial court is not obligated to give such an instruction.
6. Under the facts of this case, the district court did not err by failing to give an unrequested limiting instruction regarding evidence of the defendant's gang affiliation.
7. District courts should not instruct jurors that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony.
8. If an eyewitness jury instruction erroneously informs the jury it can consider the degree of certainty with which a witness identifies a suspect, a court determining if the certainty factor affected a jury's verdict should begin with two inquiries: (1) Was the identification crucial to the State's case? and (2) Was there an opinion of certainty stated? If the answer to both questions is " yes," an appellate court must consider the impact of the instruction in light of the entire record.
9. In analyzing the impact of including an erroneous degree-of-certainty factor in an eyewitness identification jury instruction, an appellate court must consider whether other procedural safeguards mitigated the error. These safeguards include, but are not limited to, the defendant's constitutional right to confront the witnesses against him or her, the defendant's constitutional right to effective assistance of counsel who can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments, eyewitness-specific jury instructions that warn the jury to use care in appraising eyewitness identification evidence, and the constitutional requirement that the State prove every element of the crime beyond a reasonable doubt.
10. In light of the entire record in this case, the jury's verdict would not have been different if the erroneous degree-of-certainty factor in the eyewitness identification instruction had not been used.
11. One error cannot support the application of the cumulative error doctrine. Under the facts of this case, the district court's single error does not constitute reversible cumulative error.
Matthew J. Edge, of Kansas Appellate Defender Office, was on the brief for appellant.
Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
[299 Kan. 879] NUSS, C.J.
Patricio Briseno appeals his convictions on one count of first-degree premeditated murder and three counts of attempted first-degree murder arising out of a drive-by shooting. The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court commit reversible error by failing to give an unrequested limiting jury instruction regarding evidence of Briseno's gang membership? No.
2. Did the district court commit reversible error by instructing the jury it could consider the degree of certainty with which eyewitnesses identified Briseno? No.
3. Did the district court commit sufficient errors to deprive Briseno of a fair trial? No.
Accordingly, we affirm Briseno's convictions.
Facts and Procedural Background
Four teenage boys, Ricardo Zamora, Edgar Gracia, Francisco Hernandez, and David
Linares, were gathered in front of Hernandez' house in Kansas City, Kansas. At approximately 3:10 p.m., a black SUV approached the house, and one of its occupants started shooting. The boys tried to run, but several bullets struck 13-year-old Zamora, mortally wounding him. A bullet also hit Gracia, but he ...