Correcting Clear Error: Kansas Supreme Court Says That Unpreserved Jury-Instruction Issues Can No Longer Dodge the Plain Text of K.S.A. § 22-3414(3)

State v. Waldschmidt, No. 123,631 (Kan. Apr. 12, 2024).

Author: Naomi Franklin, Staff Editor

Issue: Can an unpreserved jury-instruction issue that is not clearly erroneous dodge Kan. Stat. Ann. § 22-3414(3) and become part of cumulative-error analysis?

Answer: No. An unpreserved jury-instruction issue not clearly erroneous cannot be aggregated for cumulative-error analysis because Kan. Stat. Ann. § 22-3414(3) proscribes exactly that.

Facts: A jury found Kylie Waldschmidt guilty of (1) aiding and abetting felony murder and (2) interfering with law enforcement by giving false information. At trial, Waldschmidt did not ask the court to instruct the jury on justifiable use of force in self-defense. After trial, Waldschmidt appealed on the basis of cumulative error. The cumulative-error doctrine applies when “trial errors, considered collectively, [are] so great as to require reversal of a defendant’s conviction.”[1] These errors “would individually be considered harmless,” but in the aggregate, they negatively affect the outcome of the trial for the defendant.[2] Waldschmidt claimed several alleged errors, including the trial court’s failure to sua sponte instruct the jury on justifiable use of force in self-defense.

Discussion: Relying on the plain text of Kan. Stat. Ann. § 22-3414(3), the Kansas Supreme Court held that the instructional issue could not count toward cumulative error. The text of the statute reads:

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.[3]

The Court’s analysis was straightforward. At trial, Waldschmidt did not object to the failure to give the instruction. Thus, the instructional issue could not be assigned as error on appeal, unless it was clearly erroneous. The Court concluded that the failure to give the instruction was not clearly erroneous because the jury would have reached the same verdict with or without the instruction. Because the instructional issue was not erroneous, it could not count toward cumulative error. In the Court’s words, “when no clear error occurs with an unpreserved instructional issue, there is no error to aggregate.”[4]

So, if the analysis was so straightforward, why did the Kansas Supreme Court devote five pages to explaining it? Because prior cases committed clear error by dodging the statute. Previous Kansas Supreme Court cases “lumped unpreserved instructional issues into [the] cumulative error pot.”[5] In past cases, unpreserved instructional issues counted for cumulative error if the appellate court found merely that there was a mistake in the instructions.[6] These cases ignored Kan. Stat. Ann. § 22-3414(3), which made clear that the instructional issue must be clear error. A mistake is not enough for the instructional issue to count for cumulative error.

In Waldschmidt, thecourt announced that it was time to get back inside the bounds of the statute: “unreasoned judicial repetition does not create law when it directly conflicts with a statute.”[7] For Waldschmidt, this meant that she could not aggregate the jury-instruction issue as part of cumulative error. For Kansas legal practitioners, this means that unpreserved jury-instruction issues may no longer dodge the requirements of Kan. Stat. Ann. § 22-3414(3).

Key Authorities: Kan. Stat. Ann. § 22-3414(3) (Supp. 2022); State v. Magallanez, 235 P.3d 460, 475 (Kan. 2010); State v. Tully, 262 P.3d 314, 334 (Kan. 2011); State v. Williams, 286 P.3d 195 (Kan. 2012).

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[1] State v. Magallanez, 235 P.3d 460, 475 (Kan. 2010).

[2] State v. Tully, 262 P.3d 314, 334 (Kan. 2011).

[3] Kan. Stat. Ann. § 22-3414(3) (emphasis added).

[4] State v. Waldschmidt, No. 123,631 at *37 (Kan. Apr. 12, 2024).

[5] Id. at *36.

[6] See State v. Williams, 286 P.3d 195, 202 (Kan. 2012).

[7] Waldschmidt, No. 123,631, at *36.