lesser included crime instruction in Kansas

2021At the second step, we must consider whether the "'instruction was legally and factually appropriate, employing an unlimited review of the entire record.'" State v. McLinn, 307 Kan. 307 , 318, 409 P.3d 1 (2018) (quoting State v. Williams, 295 Kan. 506 , Syl. ¶ 4, 286 P.3d 195 [2012]).

2021At the second step, we must consider whether the "'instruction was legally and factually appropriate, employing an unlimited review of the entire record.'" State v. McLinn, 307 Kan. 307 , 318, 409 P.3d 1 (2018) (quoting State v. Williams, 295 Kan. 506 , Syl. ¶ 4, 286 P.3d 195 [2012]).

2009Instructions are clearly erroneous “only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citation omitted.]” State v. Bell, 280 Kan. 358, 365 , 121 P.3d 972 (2005).

2009Instructions are clearly erroneous “only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citation omitted.]” State v. Bell, 280 Kan. 358, 365 , 121 P.3d 972 (2005).

2003K.S.A. 2002 Supp. 22-3414 (3) states in part: “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.” “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the tri

2003K.S.A. 2002 Supp. 22-3414 (3) states in part: “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.” “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the tri

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "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." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: “No party may assign as error tire giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before die jury retires to consider its verdict stating distinctly die matter to which die party objects and the grounds of die objection unless die instruction or die failure to give an instruction is clearly erroneous.” (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Bro

2026Finally, we acknowledge that Holliman has advocated that "Berkstresser’s articulation of the clear error standard ought to be abandoned." Holliman argues that instead, the standard articulated in State v. Stafford, 223 Kan. 62 , 573 P.2d 970 (1977), should be adopted.

2026Finally, we acknowledge that Holliman has advocated that "Berkstresser’s articulation of the clear error standard ought to be abandoned." Holliman argues that instead, the standard articulated in State v. Stafford, 223 Kan. 62 , 573 P.2d 970 (1977), should be adopted.

2026See K.S.A. 22-3414(3) ("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[.]"); State v. Gallegos, 313 Kan. 262 , 267, 485 P.3d 622 (2021) (defendant's denied request for instruction on voluntary manslaughter properly preserved issue for appellate review).

2021K.S.A. 2020 Supp. 22-3414(3) says: "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 . . . unless the instruction or the failure to give an instruction is clearly erroneous." And in State v. Pattillo, 311 Kan. 995 , 1013, 469 P.3d 1250 (2020), the Kansas Supreme Court said that "if the defendant did not make a contemporaneous objection to a jury instruction, appellate courts will review the claim of error for clear error." Our review of the record reveals a request

2021K.S.A. 2020 Supp. 22-3414(3) states, in part, that "[n]o party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, 11 unless the party objects thereto before the jury retires to consider its verdict . . . unless the instruction or the failure to give an instruction is clearly erroneous." Thus, McFadden is correct that this court can review the issue, but under K.S.A. 2020 Supp. 22-3414(3), his failure to request the instruction at trial "limits appellate review to a determination of whether the instruction was clearly erroneous." Sta

2018See K.S.A. 2017 Supp. 22-3414(3) ("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 ... unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Pfannestiel , 302 Kan. 747 , 752, 357 P.3d 877 (2015).

2018See K.S.A. 2017 Supp. 22-3414(3) ("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 ... unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Pfannestiel , 302 Kan. 747 , 752, 357 P.3d 877 (2015).

2016In other words, "[u]nder K.S.A. 22-3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted." State v. Waggoner, 297 Kan. 94, 97 , 298 P.3d 333 (2013); see State v. Cheever, 304 Kan. 866, 884 , 375 P.3d 979 (2016) (Cheever II) (recognizing application of K.S.A. 22-3414[3] in death penalty appeal regarding state- law claim relating to penalty-phase instructions).

2016In other words, "[u]nder K.S.A. 22-3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted." State v. Waggoner, 297 Kan. 94, 97 , 298 P.3d 333 (2013); see State v. Cheever, 304 Kan. 866, 884 , 375 P.3d 979 (2016) (Cheever II) (recognizing application of K.S.A. 22-3414[3] in death penalty appeal regarding state- law claim relating to penalty-phase instructions).

2012“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” (Emphasis added.) State v. Washington, 293 Kan. 732, 740 , 268 P.3d 475 (2012).

2012“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” (Emphasis added.) State v. Washington, 293 Kan. 732, 740 , 268 P.3d 475 (2012).

2011There is, however, no duty to instruct on a lesser included offense if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. [Citations omitted.] When reviewing a district judge’s refusal *784 to give a requested instruction, this court must view the evidence in the light most favorable to the requesting party/ [Citation omitted.]” State v. Henson, 287 Kan. 574, 582 , 197 P.3d 456 (2008).

2011There is, however, no duty to instruct on a lesser included offense if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. [Citations omitted.] When reviewing a district judge’s refusal *784 to give a requested instruction, this court must view the evidence in the light most favorable to the requesting party/ [Citation omitted.]” State v. Henson, 287 Kan. 574, 582 , 197 P.3d 456 (2008).

2006The statute dealing with this, K.S.A. 2005 Supp. 22-3414(3), requires us to then apply a clearly erroneous standard of review: “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 die 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.” (Emphasis added.) “ ‘Instructions are clearly erroneous only if the reviewing court is firmly c

2006The statute dealing with this, K.S.A. 2005 Supp. 22-3414(3), requires us to then apply a clearly erroneous standard of review: “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 die 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.” (Emphasis added.) “ ‘Instructions are clearly erroneous only if the reviewing court is firmly c

2005The failure to give a lesser included offense instruction is clearly erroneous “ 'only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Drennan, 278 Kan. 704, 712 , 101 P.3d 1218 (2004).

2005The failure to give a lesser included offense instruction is clearly erroneous “ 'only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Drennan, 278 Kan. 704, 712 , 101 P.3d 1218 (2004).

2004K.S.A. 2002 Supp. 22-3414(3) provides: “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.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004K.S.A. 2002 Supp. 22-3414(3) provides: “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.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004The 1998 amendment to 21-3107 has been said to relieve trial courts of the obligation to sua sponte instruct on lesser included offenses, see Gould, 271 Kan. at 402 , but the amendment did not reheve trial courts of the obligation to instruct on lesser offenses.

2004K.S.A. 2002 Supp. 22-3414(3) provides: “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.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004K.S.A. 2002 Supp. 22-3414(3) provides: “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.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2003Opportunity shall be given to make the objections out of the hearing of the jury.” See State v. Crabtree, 248 Kan. 33, 39 , 805 P.2d 1 (1991).

2003Opportunity shall be given to make the objections out of the hearing of the jury.” See State v. Crabtree, 248 Kan. 33, 39 , 805 P.2d 1 (1991).

2003Saenz, 271 Kan. at 352 .

2001If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, tire instructions do not constitute reversible error even if they are in some way erroneous.” State v. Mitchell, 269 Kan. 349 , Syl. ¶ 3, 7 P.3d 1135 (2000). “ ‘No party may assign as error die giving or failure to give an instruction, including a lesser included crime instruction, unless die party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which die party objects and the grounds of die objecti

2001If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, tire instructions do not constitute reversible error even if they are in some way erroneous.” State v. Mitchell, 269 Kan. 349 , Syl. ¶ 3, 7 P.3d 1135 (2000). “ ‘No party may assign as error die giving or failure to give an instruction, including a lesser included crime instruction, unless die party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which die party objects and the grounds of die objecti

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "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." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "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." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2001In State v. Bell, 266 Kan. 896, 915 , 975 P.2d 239 (1999), this court discussed whether a trial court should instruct the jury on a lesser included offense and stated: *597 "It is not the function of an appellate court to determine whether the factual possibilities mentioned at trial should prevail.

2001In State v. Bell, 266 Kan. 896, 915 , 975 P.2d 239 (1999), this court discussed whether a trial court should instruct the jury on a lesser included offense and stated: *597 "It is not the function of an appellate court to determine whether the factual possibilities mentioned at trial should prevail.