KANSAS OFFICE of
  REVISOR of STATUTES

  

Home >> Statutes >> Back


Click to open printable format in new window.Printable Format
 | Next

22-3414. Order of trial. (1) The prosecuting attorney shall state the case and offer evidence in support of the prosecution. The defendant may make an opening statement prior to the prosecution's offer of evidence, or may make such statement and offer evidence in support of such statement after the prosecution rests.

(2) The parties may then respectively offer rebutting testimony only, unless the court, for good cause, permits them to offer evidence upon their original case.

(3) At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The judge shall instruct the jury at the close of the evidence before argument and the judge, in the judge's discretion, after the opening statements, may instruct the jury on such matters as in the judge's opinion will assist the jury in considering the evidence as it is presented. In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.

The court shall pass upon the objections to the instructions and shall either give each instruction as requested or proposed or refuse to do so, or give the requested instruction with modification. All instructions given or requested must be filed as a part of the record of the case.

The court reporter shall record all objections to the instructions given or refused by the court, together with modifications made, and the rulings of the court.

No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.

(4) When the jury has been instructed, unless the case is submitted to the jury on either side or on both sides without argument, the prosecuting attorney may commence and may conclude the argument. If there is more than one defendant, the court shall determine their relative order in presentation of evidence and argument. In arguing the case, comment may be made upon the law of the case as given in the instructions, as well as upon the evidence.

History: L. 1970, ch. 129, § 22-3414; L. 1971, ch. 114, § 7; L. 1998, ch. 185, § 3; L. 2011, ch. 30, § 127; July 1.

Source or Prior Law:

62-1438, 62-1447.

Law Review and Bar Journal References:

Use of evidence of prior convictions, Wendell F. Cowan, Jr., 12 W.L.J. 111, 112 (1972).

"Prosecutorial Misconduct in Closing Argument," Alan V. Johnson and Jeffrey S. Southard, 49 J.B.A.K. 205, 244 (1980).

"The Timing of Jury Instructions," Laurence Rose, 2 J.K.T.L.A. No. 5, 12 (1979).

"Simplifying the Issue?: State v. Fike and the Doctrine of Lesser Included Offenses in Kansas," Jason King, 45 K.L.R. 1463 (1997).

"Lesser included offenses: An end to the second prong of the Fike test," Christy Molzen, 67 J.K.B.A. No. 9, 30 (1998).

"Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas," Carol A. Beier, 44 W.L.J. 275 (2005).

"Elect or Instruct: Presenting Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials," Scott R. Ediger, 74 J.K.B.A. No. 5, 28 (2005).

CASE ANNOTATIONS

1. No error to refuse separate alibi or circumstantial evidence instructions where no request filed in record. State v. Skinner, 210 Kan. 354, 358, 362, 503 P.2d 168.

2. Subsection (3); no error in failure to give alibi instruction not requested unless "clearly erroneous." State v. Suing, 210 Kan. 363, 364, 502 P.2d 718.

3. No timely objection to instructions given and none found "clearly erroneous" on review; conviction upheld. State v. Scott, 210 Kan. 426, 434, 502 P.2d 753.

4. Objection requirement of subsection (3) not controlling over trial court's duty to instruct on lesser included crimes [21-3107 (3)]. State v. Warbritton, 211 Kan. 506, 508, 506 P.2d 1152.

5. Cited; aiding and assisting instruction requested by state in indecent liberties with a child prosecution improperly refused (dissenting opinion). State v. Ingram, 211 Kan. 587, 591, 506 P.2d 1148.

6. Subsection (3) cited in appeal on question reserved; patterned jury instruction disapproved. State v. McClanahan, 212 Kan. 208, 211, 510 P.2d 153.

7. Subsection (3) mentioned; not reversible error to refuse defense's oral request for specific instruction even though such instruction would clarify defense theory. State v. Reed, 213 Kan. 557, 562, 516 P.2d 913.

8. Instruction to which the record disclosed no objection upheld. State v. Craven, 215 Kan. 546, 550, 527 P.2d 1003.

9. Absence of timely objection of lesser offense in murder prosecution; no reversible error. State v. Carpenter, 215 Kan. 573, 578, 527 P.2d 1333. Modified: State v. Arney, 218 Kan. 369, 375, 544 P.2d 334.

10. Instruction regarding failure of defendant to testify not reversible error. State v. Myers, 215 Kan. 600, 603, 527 P.2d 1053.

11. Applied; murder prosecution; verbatim quoting of K.S.A. 22-3428 in instructing jury not required. State v. Hamilton, 216 Kan. 559, 534 P.2d 226.

12. Mentioned; conviction of aggravated assault and possession of firearm; no prejudicial error in instructions to jury. State v. Rasler, 216 Kan. 582, 586, 533 P.2d 1262.

13. Applied; entrapment instructions; objection without stating specific grounds not assignable as error. State v. Worth, 217 Kan. 393, 395, 537 P.2d 191.

14. Failure to mention words "knowingly" or "intentionally" in instructions on aggravated robbery did not warrant new trial; considered as whole. State v. Irving, 217 Kan. 735, 738, 538 P.2d 670.

15. Applied; rule on instructions on lesser included offenses stated; K.S.A. 21-3107 (3) applied. State v. Arney, 218 Kan. 369, 374, 544 P.2d 334.

16. Paragraph (3) applied; failure to object to instruction precluded assignment as error on appeal. State v. Ponds and Garrett, 218 Kan. 416, 419, 543 P.2d 967.

17. Referred to in holding instruction in prosecution for first degree murder not clearly erroneous. State v. Wright, 219 Kan. 808, 813, 814, 549 P.2d 958.

18. Applied; failure to request instructions concerning value of stolen property; felony theft conviction. State v. Nesmith, 220 Kan. 146, 150, 551 P.2d 896.

19. Error could not be predicated on refusal to give specific instructions where instructions given included those refused. State v. Harwick, 220 Kan. 572, 577, 552 P.2d 987.

20. Oral request for instruction on expungement of convictions properly denied. State v. Boone, 220 Kan. 758, 759, 770, 556 P.2d 864.

21. Failure to request special instruction on identification; appellate review precluded. State v. Wilson, 221 Kan. 92, 96, 558 P.2d 141.

22. Applied; instruction on firearms charge not clearly erroneous. State v. Birch, 221 Kan. 122, 558 P.2d 119.

23. Amendment of instructions in open court as to previous conviction did not constitute error under facts; prosecution for heroin possession. State v. Loudermilk, 221 Kan. 157, 162, 557 P.2d 1229.

24. Failure to make request as provided for in subsection (3); court did not err in failing to instruct on limited purpose of rebuttal evidence. State v. Blue, 221 Kan. 185, 189, 558 P.2d 136.

25. No instruction requested; failure not "clearly erroneous." State v. Humbolt, 1 Kan. App. 2d 137, 139, 562 P.2d 123.

26. Applied; no abuse of discretion in giving additional instructions in prosecution under K.S.A. 65-4127b. State v. Bullocks, 2 Kan. App. 2d 48, 55, 574 P.2d 243.

27. Instructions given not clearly erroneous. State v. Hoskins, 222 Kan. 436, 437, 565 P.2d 608.

28. Instruction proper; no error. State v. Miller, 222 Kan. 405, 415, 565 P.2d 228.

29. Applied; no objection to instructions at trial; theft conviction affirmed. State v. Gasser, 223 Kan. 24, 30, 574 P.2d 146.

30. Instructions not clearly erroneous; conviction under K.S.A. 21-3402 upheld. State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970.

31. Applied; instruction on defendant's failure to testify not prejudicial. State v. Perry, 223 Kan. 230, 236, 573 P.2d 989.

32. Court instruction to jury after prosecution concluded opening argument did not constitute prejudicial error. State v. Singleton, 223 Kan. 559, 562, 575 P.2d 540.

33. Failure to give limiting instructions; no timely objection; convictions affirmed. State v. Bell, 224 Kan. 105, 108, 577 P.2d 1182.

34. Appellant cannot predicate reversible error on question not raised at trial. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027.

35. No evidence to support presumption arising under K.S.A. 21-3708; instruction concerning presumption erroneous; new trial ordered. State v. Fisher, 2 Kan. App. 2d 546, 549, 583 P.2d 1038.

36. Forgery conviction upheld; lack of definition of intent to defraud was not error to be raised for the first time on appeal. State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110.

37. Applied; failure to raise objection at trial; court's failure to give limiting instruction must be found clearly erroneous on appeal. State v. Hagan, 3 Kan. App. 2d 558, 564, 598 P.2d 550.

38. Erroneous admission of evidence and failure to give jury cautionary instruction not reversible error absent objection to evidence and request for instruction. State v. Antwine, 4 Kan. App. 2d 389, 395, 399, 607 P.2d 519.

39. Where defendant charged with possession with intent to sell heroin, trial court authorized to give instruction on included offense of simple possession pursuant to request by state. State v. Brown, 5 Kan. App. 2d 149, 150, 151, 613 P.2d 387.

40. Trial court's instructions not clearly erroneous; conviction of felony murder affirmed. State v. Hearron, 228 Kan. 693, 697, 619 P.2d 812.

41. Attempt to object and submission of proposed instruction satisfies requirements of subsection (3). State v. Brown, 6 Kan. App. 2d 556, 559, 630 P.2d 731 (1981).

42. Cited in reversing convictions under K.S.A. 17-1253; trial court erred in instructing jury; standard of review discussed. State v. Puckett, 6 Kan. App. 2d 688, 693, 702, 634 P.2d 144 (1981).

43. Failure to give requested cautionary instruction on eyewitness identification not error. State v. Brown, 230 Kan. 499, 638 P.2d 912 (1982).

44. No prejudice in erroneous instruction on lesser offense if conviction of higher offense is based upon satisfactory evidence under proper instructions relating thereto. City of Overland Park v. Estell, 8 Kan. App. 2d 182, 186, 653 P.2d 819 (1982).

45. Failure to object at trial constitutes waiver of error. State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982).

46. Failure to give instruction not error unless properly requested and presented to trial court. State v. Diaz & Altemay, 232 Kan. 307, 316, 654 P.2d 425 (1982).

47. Subsection (3) cited; party must object to instructions before jury retires to consider verdict. State v. Price, 233 Kan. 706, 711, 664 P.2d 869 (1983).

48. Orally requested instruction reviewed when objection acknowledged and issue warrants full review. State v. Mitchell, 234 Kan. 185, 188, 672 P.2d 1 (1983).

49. Cited in finding no prejudicial or reversable error in closing argument of prosecutor. State v. Hanks, 236 Kan. 524, 531, 532, 694 P.2d 407 (1985).

50. Where no instructions requested on lesser included offenses and no evidence to support them, none necessary. State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985).

51. While instructing at close of arguments may not be prejudicial, oral instruction vital to fulfillment of court's duty. State v. Norris, 10 Kan. App. 2d 397, 399, 401, 699 P.2d 585 (1985).

52. Cited; factors relevant to imposition of insanity defense sua sponte; instruction on self-defense discussed. State v. Rambo, 10 Kan. App. 2d 418, 424, 699 P.2d 542 (1985).

53. No reversible error where instruction not clearly erroneous and no objection lodged during trial. State v. Mason, 238 Kan. 129, 139, 708 P.2d 963 (1985).

54. Court has no duty to give cautionary instruction when receiving accomplice testimony unless requested. State v. Bird, 238 Kan. 160, 181, 708 P.2d 946 (1985).

55. When use of PIK Crim.2d 54.17 excludes from consideration history of violence against defendant, use clearly erroneous. State v. Osbey, 238 Kan. 280, 284, 285, 710 P.2d 676 (1985).

56. Cited; where failure to define "material" (K.S.A. 21-3711) not error, omission cannot be clearly erroneous defect. State v. Roberts-Reid, 238 Kan. 788, 789, 790, 714 P.2d 971 (1986).

57. Cited; instructions read as a whole not clearly erroneous on phrase "or someone acting in concert with him." State v. Hicks, 11 Kan. App. 2d 76, 85, 714 P.2d 105 (1986).

58. Cited; battered woman syndrome use of "immediate" vs. "imminent" expert witness testimony examined. State v. Hodges, 239 Kan. 63, 74, 716 P.2d 563 (1986).

59. Defendant neither requested additional instructions nor objected to those given; failure to instruct on matter not supported by evidence. State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985).

60. Cited; absence of objection to supplemental instruction followed by reading of requested testimony examined. State v. Ruebke, 240 Kan. 493, 511, 731 P.2d 842 (1987).

61. Cited; instruction on credibility of witnesses examined where no trial objection made. State v. Willis, 240 Kan. 580, 586, 731 P.2d 287 (1987).

62. Rule pertaining to unobjected-to jury instructions reviewed. State v. Clements, 241 Kan. 77, 81, 734 P.2d 1096 (1987).

63. Cited; necessity for objections on instructions examined. State v. Cummings, 242 Kan. 84, 89, 744 P.2d 858 (1987).

64. Cited; failure to give instruction on unconsciousness induced by seizure as error examined. State v. Massey, 242 Kan. 252, 261, 747 P.2d 802 (1987).

65. Cited; omission of one circumstance of rape (K.S.A. 21-3502) as not constituting reversible error in light of evidence examined. State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988).

66. Cited; propriety of jury instructions on insanity and diminished capacity examined. State v. Morris, 244 Kan. 22, 24, 765 P.2d 1120 (1988).

67. Definitions of dangerous weapon and deadly weapon examined. State v. Colbert, 244 Kan. 422, 425, 769 P.2d 1168 (1989).

68. Instructions on self-defense, defense against an aggressor, emphasizing particular portions of evidence and conclusive presumption examined. State v. Green, 245 Kan. 398, 408, 781 P.2d 678 (1989).

69. Jury instruction not requiring unanimous decision nor theory on first degree murder (K.S.A. 21-3401) examined. State v. Hartfield, 245 Kan. 431, 446, 781 P.2d 1050 (1989).

70. Limitation of time for arguments of counsel as within sound discretion of trial judge noted. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989).

71. Instruction on intent in burglary (K.S.A. 21-3715) trial examined where accused had authority to enter premises. State v. Harper, 246 Kan. 14, 25, 785 P.2d 1341 (1990).

72. Limitation on appellate review of unobjected-to instruction examined. State v. Wilson, 247 Kan. 87, 94, 795 P.2d 336 (1990).

73. Court's failure to give instruction on affirmative defense found not clearly erroneous when instructions examined as a whole. State v. Crabtree, 248 Kan. 33, 39, 805 P.2d 1 (1991).

74. No review of instructions objected to in general; review limited to whether instruction clearly erroneous. State v. Owens, 248 Kan. 273, 283, 807 P.2d 101 (1991).

75. Denial of request for instruction on diminished capacity absent objection not erroneous; defendant's conduct leading to crime precluded instruction. State v. Cady, 248 Kan. 743, 749, 811 P.2d 1143 (1991).

76. Instruction on one charge as raising implication that a more serious charge involved examined. State v. DeHerrera, 251 Kan. 143, 148, 834 P.2d 918 (1992).

77. Instructions considered as a whole when properly and fairly stated do not constitute reversible error although erroneous in some small way. Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 355, 837 P.2d 330 (1992).

78. Failure to request instructions on lesser offense and diminished capacity examined; instructing on diminished capacity as matter of discretion noted. State v. Perez, 251 Kan. 736, 744, 840 P.2d 1118 (1992).

79. Appellate court's review of instruction or absence thereof noted as limited to whether instruction clearly erroneous. State v. Deavers, 252 Kan. 149, 165, 843 P.2d 695 (1992).

80. Failure to give cautionary instruction on testimony of paid informant as reversible error examined. State v. Novotny, 17 Kan. App. 2d 363, 367, 837 P.2d 1327 (1992).

81. Timely objection to erroneous jury instruction required. State v. Thomas, 252 Kan. 564, 576, 847 P.2d 1219 (1993).

82. Nature of instruction regarding evidence admitted and testimony excluded examined. State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).

83. Whether trial judge's departure from PIK jury instructions denied defendant fair trial and unanimous verdict rights examined. State v. Whitaker, 255 Kan. 118, 125, 872 P.2d 278 (1994).

84. Whether clearly erroneous exception should replace contemporaneous objection rule for preserving issues on appeal examined. State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994).

85. Whether cumulative erroneous jury instructions regarding essential elements of the crime charged is reversible error examined. State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994).

86. Standard of review where objection at trial does not set forth specific grounds advanced on appeal examined. State v. Robinson, 256 Kan. 133, 134, 883 P.2d 764 (1994).

87. Whether unobjected jury instruction regarding defendant's credibility was clearly erroneous examined. State v. Sexton, 256 Kan. 344, 359, 886 P.2d 811 (1994).

88. Whether jury instructions regarding alternative theories of first-degree murder were clearly erroneous examined. State v. Duke, 256 Kan. 703, 709, 887 P.2d 110 (1994).

89. Failure to give definition of bodily harm instruction not clearly erroneous in attempted aggravated robbery case. State v. Bryant, 22 Kan. App. 2d 732, 736, 737, 922 P.2d 1118 (1996).

90. Aiding and abetting instruction given by trial court did not relieve state of burden of proof. State v. Holt, 260 Kan. 33, 43, 917 P.2d 1332 (1996).

91. Trial court's failure to give cautionary instructions regarding accomplice and paid informant testimony not erroneous. State v. Abel, 261 Kan. 331, 336, 932 P.2d 952 (1997).

92. Aiding and abetting instruction that failed to separately set out elements of offense not erroneous. State v. Nash, 261 Kan. 340, 341, 932 P.2d 442 (1997).

93. First degree murder instruction contained nonstatutory "malice" element; not clearly erroneous. State v. Jackson, 262 Kan. 119, 125, 936 P.2d 761 (1997).

94. Failure to instruct on general criminal intent in aggravated indecent liberties (K.S.A. 21-3504) case not clearly erroneous. State v. Isley, 262 Kan. 281, 291, 936 P.2d 275 (1997).

95. General intent instruction not clearly erroneous where jury also instructed on specific intent necessary for conviction. State v. Mitchell, 262 Kan. 434, 442, 939 P.2d 879 (1997).

96. Trial court failure to give informant cautionary instruction was not clearly erroneous. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).

97. Failure of trial judge to give paid informant cautionary jury instruction not clearly erroneous. State v. Kuykendall, 264 Kan. 647, 653, 957 P.2d 1112 (1998).

98. Trial court failure to give cautionary jury instruction concerning eyewitness identification testimony affirmed. State v. Harris, 266 Kan. 270, 277, 970 P.2d 519 (1998).

99. No error in failing to instruct on element of charged offense where matter admitted in instruction approved by defendant's attorney. State v. Stuber, 25 Kan. App. 2d 254, 261, 962 P.2d 1104 (1998).

100. Case remanded based on possibility that jury failed to render unanimous verdict based on same underlying act of possession. State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999).

101. To assign error on appeal, counsel must object to instruction before jury retires for deliberation. State v. Struzik, 269 Kan. 95, 5 P.3d 355 (2000).

102. Counsel must object to giving or failing to give instruction to claim error on appeal. State v. Saiz, 269 Kan. 657, 7 P.3d 1214 (2000).

103. Must object to giving of or failing to give instruction to claim error on appeal; 1988 amendment is procedural in nature, no ex post facto violation. State v. Brooker, 27 Kan. App. 2d 396, 4 P.3d 1180 (2000).

104. Failure to give unanimity instruction, although defendant failed to object, requires reversal as such becomes structural error. Crutcher v. State, 27 Kan. App. 2d 674, 8 P.3d 1 (2000).

105. No party may claim error on appeal unless objection is made at trial (failure to give instruction). State v. Evans, 270 Kan. 589, 17 P.3d 340 (2001).

106. No error in court's failure to instruct on theft as lesser included offense of aggravated robbery. State v. Sandifer, 270 Kan. 591, 17 P.3d 921 (2001).

107. Killing another in the heat of passion is not an affirmative defense requiring an instruction thereon. State v. Saenz, 271 Kan. 339, 22 P.3d 151 (2001).

108. Section is procedural and can be applied retroactively. State v. Scott, 28 Kan. App. 2d 418, 17 P.3d 966 (2001).

109. Error not to instruct on definition of possession. State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001).

110. No requirement for trial court to provide jury instructions in writing; oral reading with appropriate emphasis safeguards defendant's rights better than distributing a copy of instructions to jury. State v. Wren, 29 Kan. App. 2d 882, 32 P.3d 717 (2001).

111. No party may claim error on appeal regarding court's instructions unless objection is made during trial. State v. Parker, 273 Kan. 56, 41 P.3d 789 (2002).

112. Must object at trial as to instruction given in order to claim error on appeal. State v. Beard, 273 Kan. 789, 46 P.3d 1185 (2002).

113. Failure to instruct on voluntary manslaughter as lessor included offense is error requiring reversal of conviction even though no objection was made at trial. State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003).

114. Jury instruction regarding attempted manufacture of methamphetamine which does not contain elements of attempt is erroneous. State v. Capps, 33 Kan. App. 2d 37, 99 P.3d 138 (2004).

115. Clear error to fail to give unanimity instruction regarding possession of methamphetamine. State v. Letourneau, 33 Kan. App. 2d 585, 106 P.3d 505 (2005).

116. No error in jury instructions to consider first-degree murder before considering imperfect self-defense. State v. Lawrence, 281 Kan. 1081, 1093, 135 P.3d 1211 (2006).

117. Court's Allen-type instruction that "[l]ike all cases, [this case] must be decided sometime" did not constitute error. State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006).

118. Trial court's refusal to instruct jury on reckless second-degree murder not in error. State v. Jones, 283 Kan. 186, 210, 151 P.3d 22 (2007).

119. Failure to instruct jury in multiple acts case, standard of review discussed. State v. Voyles, 284 Kan. 239, 249, 250, 160 P.3d 794 (2007).

120. Jury instruction on venue and where victim killed upheld. State v. Hunt. 285 Kan. 855, 862, 176 P.3d 183 (2008).

121. Mentioned in case involving alleged improper jury instructions regarding aiding and abetting; no error found. State v. Bryant, 285 Kan. 970, 983, 179 P.3d 1122 (2008).

122. Court reviews for clear error when K.S.A. 60-455 evidence introduced and no limiting instruction given; conviction upheld. State v. Reid, 286 Kan. 494, 513, 514, 522, 186 P.3d 713 (2008).

123. Cited in discussion of premeditation; new trial ordered for failure to instruct on lesser included offense of second-degree murder. State v. Scaife, 286 Kan. 614, 619, 186 P.3d 755 (2008).

124. Cited; no error in not giving instruction on lesser included offense. State v. Gallegos, 286 Kan. 869, 872, 873, 876, 190 P.3d 226 (2008).

125. Cited; no jury instruction given on self-defense and defendant requested none; no error. State v. Herron, 286 Kan. 959, 969, 189 P.3d 1173 (2008).

126. Cited; defendant's failure to request certain jury instructions; court finds against defendant. State v. Cook, 286 Kan. 1098, 1100, 1104, 1106, 191 P.3d 294 (2008).

127. Cited; defendant did not request proximate cause instruction and no clear error found. State v. McCarley, 287 Kan. 167, 179, 195 P.3d 230 (2008).

128. Cited; defendant held to have invited error in judge failing to instruct on lessor included crime. State v. Angelo, 287 Kan. 262, 278, 279, 197 P.3d 337 (2008).

129. Cited; no error in premeditated first degree murder case in denying jury instructions on lesser included offenses. State v. Henson, 287 Kan. 574, 581, 197 P.3d 456 (2008).

130. No 6 th Amendment violation on jury instruction relating to jury deliberations; defendant did not object. State v. Smith, 39 Kan. App. 2d 204, 216, 178 P.3d 672 (2008).

131. Cited in involuntary manslaughter while driving under the influence of alcohol; instruction on intervening cause discussed. State v. Bale, 39 Kan. App. 2d 655, 659, 182 P.3d 1280 (2008).

132. Cited in discussion of alleged jury instruction error; no error found. State v. Watson, 39 Kan. App. 2d 923, 929, 186 P.3d 812 (2008).

133. Instruction on aiding and abetting not objected to but court finds it erroneous; new trial ordered. State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009).

134. Alleged erroneous instruction upheld relating to "intent"; no error on failure to instruct on K.S.A. 21-3402. State v. Martinez, 288 Kan. 443, 204 P.3d 601 (2009).

135. Mentioned in discussion of K.S.A. 60-404 and the requirement for timely and specific objection. State v. Richmond, 289 Kan. 419, 212 P.3d 165 (2009).

136. Party may not assign as error the failure to give an instruction unless party objects; exception. State v. Trussell, 289 Kan. 499, 213 P.3d 1052 (2009).

137. Jury instruction on elements of a crime which is broader than the complaint charging crime is erroneous. State v. Trautloff, 289 Kan. 793, 217 P.3d 15 (2009).

138. Party failed to object at trial on jury instructions given. State v. Wilson, 41 Kan. App. 2d 37, 200 P.3d 1283 (2009).

139. Conviction under K.S.A. 21-3402 affirmed; jury instruction thereon held no error. State v. Krider, 41 Kan. App. 2d 368, 202 P.3d 722 (2009).

140. No constitutional violation for failure to instruct on lesser included offense of battery. State v. Hunter, 41 Kan. App. 2d 507, 203 P.3d 23 (2009).

141. Instruction on definition of criminal intent relating to premeditated first-degree murder held proper. State v. Ellmaker, 289 Kan. 1132, 221 P.3d 1105 (2009).

142. Pattern jury instruction on eyewitness identifications was not clearly erroneous at trial for attempted first-degree murder where defendant argued instructions were outdated. State v. Hernandez, 44 Kan. App. 2d 524, 239 P.3d 103 (2010).

143. Voluntary manslaughter not lesser included offense under the facts of case. State v. Northcutt, 290 Kan. 224, 224 P.3d 564 (2010).

144. No evidence found to support giving the jury a voluntary manslaughter instruction as lesser included offense. State v. Foster, 290 Kan. 696, 233 P.3d 265 (2010).

145. Failure to give a unanimity instruction on the rape charge not reversible error. State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010).

146. Harmless error analysis used for erroneous admission of evidence under K.S.A. 60-455. State v. Brown, 44 Kan. App. 2d 344, 236 P.3d 551 (2010).

147. Defendant not entitled to a jury instruction on mistake of fact as the defense of mistake did not negate crime's required mental state. State v. Diaz, 44 Kan. App. 2d 870, 241 P.3d 1018 (2010).

148. Inclusion of the witness certainty factor as an indicator of eyewitness identification reliability in jury instructions was not clear error. State v. Galyardt, 44 Kan. App. 2d 729, 240 P.3d 619 (2010).

149. Felony murder instruction rule abandoned in deference to statute requiring merely some evidence of lesser-included offense to warrant instruction. State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011).

150. Appellate court reviews the district court's failure to give an instruction under the clearly erroneous standard where defendant neither requests nor objects to the instruction. State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011).

151. Defendant's failure to object to jury instruction rendered issue subject to review for clear error on appeal. State v. Miller, 293 Kan. 46, 259 P.3d 701 (2011).

152. Defendant entitled to jury instruction on second degree unintentional murder and involuntary manslaughter as lesser-included offenses of felony murder, as trial evidence could reasonably support conviction for lesser included offenses. State v. Tahah, 293 Kan. 267, 262 P.3d 1045 (2011).

153. Instruction on unintentional but reckless second-degree murder as a lesser included offense of felony murder not required. State v. Perez, 294 Kan. 38, 261 P.3d 532 (2012).

154. Failure to give jury instruction for a lesser crime not preserved on appeal unless objected before jury retires to consider verdict or failure is clearly erroneous. State v. Phillips, 295 Kan. 929, 287 P.3d 245 (2012).

155. The district court did not abuse its discretion in allowing the state to reopen its case under the facts of the case. State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012).

156. Jury instruction for lesser included offense not necessary where all evidence together show the offense was clearly of the higher degree. State v. Rodriguez, 295 Kan. 1146, 289 P.3d 85 (2012).

157. Clearly erroneous standard applied when trial objection to jury instruction differs from argument on appeal. State v. Friday, 297 Kan. 1023, 306 P.3d 265 (2013).

158. Appellate court reviews alleged instructional error under the clear-error rule when defendant fails to object. Defendant bears the burden to establish clear error. State v. Dobbs, 297 Kan. 1225, 308 P.3d 1258 (2013).

159. The district court was held to have abused its discretion in handling the defendant's motion for mistrial. State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014).

160. Filing a pretrial request for different jury instructions does not satisfy the statutory requirement for a party to object on the record to a jury instruction and distinctly state the matter and grounds of the objection. State v. Brammer, 301 Kan. 333, 334, 343 P.3d 75 (2015).

161. A party cannot claim instructional error unless the party objects to the error or the error is determined to be clearly erroneous. State v. Allen, 52 Kan. App. 2d 729, 733, 372 P.3d 432 (2016).

162. The lesser-included reckless aggravated battery instruction improperly increased breadth of actus reus when compared with that specified in the charged offense of intentional aggravated battery; the overbroad but unpreserved instruction was not clearly erroneous, and thus not reversible error. State v. Charles, 304 Kan. 158, 169-71, 372 P.3d 1109 (2016).

163. Application of invited-error doctrine not precluded by statute; no bright-line rule for its application. State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018).

164. Court is required to provide jury with lesser included offense instructions, and the court's decision to provide instructions for voluntary manslaughter did not indicate the court believed evidence of intent for murder was lacking. State v. Roberts, 314 Kan. 835, 852, 503 P.3d 227 (2022).


 | Next

LEGISLATIVE COORDINATING COUNCIL
  6/03/2024 Meeting Notice Agenda
  LCC Policies

REVISOR OF STATUTES
  2023 New, Amended and Repealed by KSA
  2023 New, Amended and Repealed by Bill
  2024 Valid Section Numbers
  Chapter 72 Statute Transfer List
  Kansas School Equity & Enhancement Act
  Gannon v. State
  Information for Special Session 2021
  General Info., Legal Analysis & Research
  2022 Amended & Repealed Statutes
  2021 Amended & Repealed Statutes
  2020 Amended & repealed Statutes
  2019 Amended & Repealed Statutes

USEFUL LINKS
Session Laws

OTHER LEGISLATIVE SITES
Kansas Legislature
Administrative Services
Division of Post Audit
Research Department