423 P.3d 506
Kan.2018Background
- Fleming was charged with aggravated robbery (alleging theft of a cell phone and wallet from Carrington Dean), theft (other items), and aggravated burglary; jury convicted on aggravated robbery and burglary and acquitted on theft.
- At the instructions conference both parties proposed instructions using the generic term "property" rather than listing the cell phone and wallet; Fleming’s proposed instruction also used "presence" rather than "person or presence." The district court instructed the jury with "property" and "person or presence."
- Fleming did not object to the final instruction at trial; on appeal he argued the aggravated-robbery instruction was broader than the charging document because it did not specify the cell phone and wallet.
- The Court of Appeals held Fleming invited the error by proposing the instruction; one judge concurred but questioned whether invited-error should be applied when K.S.A. 22-3414(3) allows clear-error review.
- The Kansas Supreme Court granted review limited to the instruction issue and analyzed whether the invited-error doctrine bars appellate review, whether K.S.A. 22-3414(3) precludes the doctrine, timing of the request, and whether constitutional concerns or a fairness balancing test alter the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether K.S.A. 22-3414(3) precludes the invited-error doctrine for jury instructions | K.S.A. 22-3414(3) requires clear-error review of unobjected-to instructions, so invited error should not block review | Invited-error doctrine remains applicable; statute silence does not negate long-standing doctrine | Invited-error doctrine may apply; K.S.A. 22-3414(3) does not preclude it |
| Whether proposing an instruction pretrial prevents application of invited-error | Pretrial submission occurred before evidence, so counsel couldn’t know the instruction would be overbroad | Where the instruction broadened the charge that was obvious from the complaint, pretrial proposal can constitute invitation | Pretrial proposal can invite error here; Fleming’s situation analogous to State v. Brown, not Sasser |
| Whether raising constitutional due process/jury-trial claims prevents invited-error application | Constitutional rights are paramount; invited error should not bar review of constitutional defects | Only structural constitutional errors automatically avoid invited-error; nonstructural constitutional claims can be barred if invited | Raising constitutional issues does not automatically preclude invited error; no structural error alleged |
| Whether a balancing "individual vs institutional fairness" test (Hargrove / Judge Leben) should override invited error | A balancing test should allow review when interests of individual fairness outweigh institutional concerns | Invited-error doctrine should be applied after careful factual review; silent record may permit estoppel | No balancing test rescue here; careful fact review shows Fleming invited the error; invited error precludes review |
Key Cases Cited
- State v. Sasser, 305 Kan. 1231 (Kan. 2017) (invited-error doctrine requires searching contextual review; bright-line exceptions exist)
- State v. Stewart, 306 Kan. 237 (Kan. 2017) (K.S.A. 22-3414(3) does not eliminate invited-error doctrine)
- State v. Jones, 295 Kan. 804 (Kan. 2012) (invited error when party requests or agrees to wording later challenged)
- State v. Brown, 306 Kan. 1145 (Kan. 2017) (invited error applied where defendant proposed the exact instruction later given)
- State v. Graham, 172 Kan. 627 (Kan. 1952) (party cannot complain on appeal about action to which it agreed at trial)
- State v. Verser, 299 Kan. 776 (Kan. 2014) (invited-error can apply to nonstructural constitutional claims when error was strategic)
- State v. Hargrove, 48 Kan. App. 2d 522 (Kan. Ct. App. 2013) (suggested balancing "individual vs institutional fairness" and evidentiary hearing where record is silent)