eyewitness instruction in Kansas

1994He notes that the giving of an eyewitness instruction, where the identification by the eyewitness is a critical part of the State’s case, has been recommended by this court in State v. Warren, 230 Kan. 385, 397 , 635 P.2d 1236 (1981), but he contends that in this case the eyewitness identification was not critical to the State’s case.

1994He notes that the giving of an eyewitness instruction, where the identification by the eyewitness is a critical part of the State’s case, has been recommended by this court in State v. Warren, 230 Kan. 385, 397 , 635 P.2d 1236 (1981), but he contends that in this case the eyewitness identification was not critical to the State’s case.

2012In State v. Reid, 286 Kan. 494, 514-18 , 186 P.3d 713 (2008), we had noted the tension between State v. Trammell, 278 Kan. 265 , 92 P.3d 1101 (2004), which the Reid prosecutor argued approved using certainty as a factor, and Hunt, 275 Kan. 811 , which Reid argued disapproved using certainty as a factor.

2012In State v. Reid, 286 Kan. 494, 514-18 , 186 P.3d 713 (2008), we had noted the tension between State v. Trammell, 278 Kan. 265 , 92 P.3d 1101 (2004), which the Reid prosecutor argued approved using certainty as a factor, and Hunt, 275 Kan. 811 , which Reid argued disapproved using certainty as a factor.

2026And finally, in State v. Kirtdoll, 281 Kan. 1138, 1150-51 , 136 P.3d 417 (2006), the court found invited error when Kirtdoll not only failed to object to the giving of an eyewitness instruction, but he also championed the use of the instruction over the State's objection.

2026And finally, in State v. Kirtdoll, 281 Kan. 1138, 1150-51 , 136 P.3d 417 (2006), the court found invited error when Kirtdoll not only failed to object to the giving of an eyewitness instruction, but he also championed the use of the instruction over the State's objection.

2020Even more, the panel determined that because Taylor was apprehended near the victim's residence with the nickels and dimes stolen from the victim, the evidence "dispel[led] any possibility that the additional eyewitness instruction would have resulted in a different verdict." 2010 WL 2245599, at *5 .

2012In State v. Reid, 286 Kan. 494, 514-18 , 186 P.3d 713 (2008), we had noted the tension between State v. Trammell, 278 Kan. 265 , 92 P.3d 1101 (2004), which the Reid prosecutor argued approved using certainty as a factor, and Hunt, 275 Kan. 811 , which Reid argued disapproved using certainty as a factor.

2011We also considered additional evidence against the defendant significant, concluding that there was no real possibility the jury would have rendered a different verdict if the court had given the eyewitness instruction. 258 Kan. at 457 .

2009Trotter contends the court should have first appointed counsel and conducted an evidentiary hearing. “[A] movant has tbe burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear *132 in the record.” Swenson v. State, 284 Kan. 931, 938 , 169 P.3d 298 (2007).

2009Trotter contends the court should have first appointed counsel and conducted an evidentiary hearing. “[A] movant has tbe burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear *132 in the record.” Swenson v. State, 284 Kan. 931, 938 , 169 P.3d 298 (2007).

2009Factual Background Although the facts are fully discussed in State v. Trotter, 280 Kan. 800 , 127 P.3d 972 (2006) (Trotter I), a brief discussion is necessary to explain the issues in this appeal, particularly regarding those facts that relate to the issues of the eyewitness instruction and recanted testimony of two of Trotter’s codefendants, Kevin Eddington and Virdal Nash.

2009Factual Background Although the facts are fully discussed in State v. Trotter, 280 Kan. 800 , 127 P.3d 972 (2006) (Trotter I), a brief discussion is necessary to explain the issues in this appeal, particularly regarding those facts that relate to the issues of the eyewitness instruction and recanted testimony of two of Trotter’s codefendants, Kevin Eddington and Virdal Nash.

1985State v. Trujillo, 225 Kan. 320, 324 , 590 P.2d 1027 (1979), held that it was not error to fail to give an instruction on lesser offenses when no objection was made at trial.

1985State v. Trujillo, 225 Kan. 320, 324 , 590 P.2d 1027 (1979), held that it was not error to fail to give an instruction on lesser offenses when no objection was made at trial.

1985State v. Diaz & Altemay, 232 Kan. 307, 316 , 654 P.2d 425 (1982), held that failure to give an eyewitness instruction was not error when the instruction was not requested.

1985State v. Diaz & Altemay, 232 Kan. 307, 316 , 654 P.2d 425 (1982), held that failure to give an eyewitness instruction was not error when the instruction was not requested.

1982Recently, in State v. Moore, 230 Kan. 495, 497-98 , 639 P.2d 458 (1982), decided after Warren , we held the trial court’s failure to give an eyewitness instruction, after denying the defendant’s request to obtain expert testimony on eyewitness identification, was not error where such an instruction was not requested.

1982Recently, in State v. Moore, 230 Kan. 495, 497-98 , 639 P.2d 458 (1982), decided after Warren , we held the trial court’s failure to give an eyewitness instruction, after denying the defendant’s request to obtain expert testimony on eyewitness identification, was not error where such an instruction was not requested.