Liles contends a misstatement occurred because the prosecutor violated a " ‘constitutional limit on a court's ability to comment on a defendant's credibility in a jury instruction,’ " which she argues must be done in a "neutral or balanced" manner without " ‘singl[ing] out the defendant as not to be believed.’ " She relies on State v. Land , 14 Kan. App. 2d 515, 794 P.2d 668 (1990). There, the Court of Appeals held it was error for the trial court to give an accomplice testimony instruction, like the one given in Liles' case, when the defendant was the only crime participant testifying.
It bases its argument on the Notes on Use for PIK Crim.3d 52.18, which state: “This instruction should not be given when the accomplice is also a co-defendant.” The trial court discussed this PIK Committee notation with counsel during the instructions conference and also pointed out the Court of Appeals' decision on which it is based, State v. Land, 14 Kan.App.2d 515, 794 P.2d 668 (1990). Dominguez' counsel responded by saying, “[S]ince [Jurado] wasn't a codefendant charged in this particular case, he's not a codefendant, but I think it's very disingenuous of me to say that.”
In Kansas, a trial court does not err as a matter of law by giving a neutral instruction on a defendant's credibility. State v. Land, 14 Kan. App. 2d 515, 519, 794 P.2d 668 (1990). The question this court faces is whether Instruction No. 10, read together with limiting Instruction No. 9 and PIK Crim. 3d 52.09 (Instruction No. 15) could have caused the jury to arbitrarily single out the defendant's testimony and scrutinize it differently from the testimony of other witnesses.
Faced with similar facts, at least five other states have reached this same conclusion. People v Sawyer, 256 Cal.App.2d 66; 63 Cal.Rptr. 749 (1967), McGowen v State, 221 Tenn. 442; 427 S.W.2d 555 (1968), Taylor v State, 403 So.2d 585 (Fla App, 1981), State v Land, 14 Kan. App. 2d 515; 794 P.2d 668 (1990), and Selman v State, 807 S.W.2d 310 (Tex Crim App, 1991). III
The failure to give the jury instruction is clearly erroneous only if the appellate court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility the jury would have returned [19 Kan.App.2d 222] a different verdict. State v. Land, 14 Kan.App.2d 515, Syl. pp 2, 3, 794 P.2d 668 (1990). Important here is that Stella never claimed to identify Manzanares except to indicate that a Hispanic male was the driver of the van.
In order to find that failure to give such an instruction was clearly erroneous, we must reach a "firm conviction that, if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict." State v. Land, 14 Kan. App. 2d 515, Syl. ¶ 3, 794 P.2d 668 (1990); accord State v. Perkins, 248 Kan. 760, Syl. ¶ 8, 811 P.2d 1142 (1991). The trial court's instruction did not expressly define "sexually explicit conduct.
The accomplice instruction violated Abboud's right to testify in his own behalf because it unfairly told the jury that all of Abboud's testimony was suspect, even his testimony going to charges that did not involve Katia. See People v. Reed (1996), 453 Mich. 685, 556 N.W.2d 858; Cruz v. People (1962), 149 Colo. 187, 368 P.2d 774; State v. Land (1990), 14 Kan. App.2d 515, 794 P.2d 668; State v. Taylor (Fl.App. 1981), 402 So.2d 585. {¶ 30} In fact, unlike the instruction pertaining to Katia, the court's use of the word "accomplice" in its instructions relating to Abboud made any fact-finding something of a fait accompli for the jury.
' [Citation omitted.]" State v. Land, 14 Kan.App.2d 515, 517, 794 P.2d 668 (1990). In the present case, although there were circumstances that might lead a juror to question the victims' identification of Lowe, including consumption of alcohol by the victims, both victims confidently identified Lowe as one of the assailants.
]" State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989). See State v. Perkins, 248 Kan. 760, 770, 811 P.2d 1142 (1991); State v. Harper, 246 Kan. 14, 25, 785 P.2d 1341 (1990); State v. Land, 14 Kan.App.2d 515, 517, 794 P.2d 668 (1990). The committee on PIK instructions has recognized that an alibi defense is not a true affirmative defense.