State v. Briseno, 299 Kan. 877

Drive-by shooting in Kansas City, Kansas: a black SUV fired on four teens; 13-year-old Ricardo Zamora was killed; three others wounded or escaped.
Multiple witnesses later identified Patricio Briseno as the SUV driver; one witness (Fischer, a mail carrier) gave a crucial identification with expressed certainty; other identifications came from neighborhood witness Segura and gang-member witnesses Hernandez and Linares.
Police recovered an SUV matching the description from a garage near Briseno’s family home; Briseno was charged with first-degree premeditated murder and three counts of attempted first-degree murder; codefendant Juan Lopez was acquitted.
The State introduced evidence that Briseno belonged to the SPV gang; the court admitted gang evidence but did not give a limiting instruction and Briseno did not request one.
The trial court gave the PIK Crim. eyewitness identification instruction including subparagraph 6 (degree of certainty); defense did not object to that instruction at trial.
Jury convicted Briseno; he appealed arguing (1) failure to give a limiting instruction for gang evidence, (2) error in including degree-of-certainty in the eyewitness instruction, and (3) cumulative error denied a fair trial.

Issue	Briseno's Argument	State's Argument	Held
Whether court erred by not giving an unrequested limiting instruction on gang evidence	Gang evidence is inherently prejudicial and should trigger a limiting instruction absent a request	No clear error; defendant failed to request; Kansas precedent does not require sua sponte limiting instruction	No error — court not obligated to give limiting instruction absent request
Whether including "degree of certainty" factor in eyewitness instruction was reversible error	Inclusion improperly emphasized witness certainty and was disapproved in Mitchell; this likely affected the verdict because Fischer’s ID was crucial	Concedes legal error but argues reversal requires "clear error" showing, which Briseno has not met	Error acknowledged but not "clearly erroneous"; verdict stands because of safeguards and corroborating evidence
Whether procedural safeguards (cross-exam, jury instruction, burden of proof) and other evidence mitigate instruction error	N/A (related to second issue)	Procedural safeguards and other inculpatory evidence reduce risk that erroneous factor affected outcome	Safeguards and other evidence (Segura ID, gang witnesses, SUV possession) counterbalanced error
Whether cumulative errors deprived Briseno of a fair trial	Combined instructional errors required reversal	Only one nonreversible error occurred; single nonreversible error cannot support cumulative-error reversal	No — cumulative-error claim fails; judgment affirmed

State v. Williams, 295 Kan. 506 (framework for evaluating unpreserved instruction claims)
State v. Mitchell, 294 Kan. 469 (disapproved use of "degree of certainty" factor in PIK eyewitness instruction)
State v. Marshall, 294 Kan. 850 (erroneous degree-of-certainty factor not necessarily reversible; consider safeguards)
State v. Dobbs, 297 Kan. 1225 (evaluating whether degree-of-certainty error is clearly erroneous in light of procedural safeguards and other evidence)
State v. Conway, 284 Kan. 37 (trial court not required to give limiting instruction on gang evidence absent request)
Perry v. New Hampshire, 132 S. Ct. 716 (2012) (identifies procedural safeguards relevant to assessing eyewitness-identification reliability)