State v. Peppers, 276 P.3d 148

Peppers was convicted by jury of first-degree premeditated murder of Cunningham and attempted first-degree murder of Hayes-Osby, arising from a July 2006 shooting outside Terry’s Bar in Topeka.
District court admitted gang-affiliation evidence to explain motive and events surrounding the crime, despite defense objections.
Defense sought limiting instruction and exclusion of gang evidence; court granted some protections but allowed gang evidence with limiting instruction.
During closing, prosecutor argued about witness credibility, conspiracy to convict, and urged verdicts of guilt; defense objected to alleged misconduct.
Peppers challenged (i) admissibility of gang evidence, (ii) limiting instruction content, (iii) Allen-burden instruction as improper, (iv) prosecutorial misconduct in closing, and (v) sentencing based on unproven criminal history; Supreme Court affirmed convictions and rejected sentencing challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of gang evidence	Peppers argues gang evidence is improper under 60-455/ ress gatae, prejudicial	State contends gang evidence is relevant to motive and events surrounding the crime	Gang evidence admissible if material and probative; limiting instruction adequate to cure prejudice
Content of limiting instruction on gang evidence	Limiting language too broad and akin to res gestae misleads jurors	Instruction, read with context, correctly limited use of gang evidence	No reversible error; instruction properly framed the admissible purpose and was not misleading in context
Allen-burden instruction	Allen instruction stating burden on defense misleads jury	On-record agreement to wording invited error; not reversible	Error avoided due to invited error; court need not further analyze
Prosecutorial misconduct in closing	Two remarks impermissibly commented on facts not in evidence and expressed personal opinion	Comments, viewed in context, either inferential or not personal opinion; no reversible error	Two instances of expressed personal opinion deemed plain error but not enough to reverse given the strength of evidence; no reasonable possibility of affecting verdict
Constitutionality of consecutive sentences based on unproved criminal history			Court has repeatedly rejected challenges to sentencing based on criminal history; no reexamination here

State v. Brown, 285 Kan. 261 (2007) (gang evidence admissible if relevant; authority for materiality/probative balance)
State v. Conway, 284 Kan. 37 (2007) (gang evidence admissible; limitations under 60-455; limiting instruction permissible)
State v. Ross, 280 Kan. 878 (2006) (gang evidence may be material for motive; limiting prejudice; 60-455 framework)
State v. Goodson, 281 Kan. 913 (2006) (gang evidence may be material to motive or witness bias)
State v. Tatum, 281 Kan. 1098 (2006) (recognizes admissibility of gang-related evidence as part of surrounding events)
State v. Gunby, 282 Kan. 39 (2006) (dead as independent basis; res gestae not standalone; evidence governed by standard rules)