State v. Todd, 299 Kan. 263

Background

Defendant Loviss Todd convicted by jury of felony murder, aggravated robbery, aggravated battery, and aggravated assault for a December 8, 2008 killing and related offenses at Vincent Green’s home; co-defendant Ayreone Alexander testified for the State after a plea deal.
Eyewitnesses Warren Jones and Keith McFarlane and cooperating witness Alexander implicated Todd; Todd asserted an alibi supported by three relatives.
At trial the district judge gave standard witness-credibility and eyewitness-identification instructions but did not give a cautionary accomplice-witness instruction; defense did not request these omitted instructions or object at charge conference.
Prosecutor’s closing argued impeachment of alibi witness Tylise Horton and critiqued her credibility; defendant claims some remarks were improper.
On appeal Todd raised seven claims (accomplice-instruction omission; reasonable-doubt instruction; failure to instruct on second-degree murder as lesser-included to felony murder; eyewitness-identification instruction; prosecutorial misconduct; cumulative error; lifetime postrelease supervision). Court affirmed convictions but vacated lifetime postrelease supervision portion of sentence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Todd)	Held
Failure to give accomplice-witness cautionary instruction	Instruction not required sua sponte if not requested; any error harmless because other evidence corroborated accomplice testimony	District court erred by not giving PIK 52.18 for Alexander (accomplice); omission was reversible	Omission was error but not "clearly erroneous"; no reversal (testimony corroborated; credibility instruction and overwhelming evidence mitigated error)
Reasonable-doubt instruction (older PIK 52.02 language)	Older wording permissible under precedent	Instruction structurally defective and requires reversal	Rejected; court follows controlling precedent—no relief
Lesser included instruction: second-degree murder to felony murder	No lesser-included needed under statute/amendments	Failure to instruct sua sponte violated Berry (predecessor rule) and warranted reversal	No reversal: later legislative amendments and controlling cases (Wells + 2013 amendment applied) mean second-degree instruction not legally appropriate; no Ex Post Facto violation in applying amendment here
Eyewitness-identification instruction (degree-of-certainty factor)	Inclusion acceptable; overall instruction proper	Instruction employed outdated/unsound "degree of certainty" factor and was reversible	Inclusion of degree-of-certainty was error, but not clearly erroneous here (identifications not shown to express certainty; identifications corroborative; harmless)
Prosecutorial misconduct in closing	Prosecutor offered permissible inferences about credibility and demeanor; no burden shift	Prosecutor vouched for credibility, inflamed jury, and shifted burden by criticizing delayed corroboration	Rejected: comments were permissible argument based on record and impeachment; no misconduct requiring reversal
Cumulative error	N/A	Multiple non-reversible errors together deprived fair trial	Rejected: only two non-reversible errors; evidence overwhelmed any cumulative prejudice
Lifetime postrelease supervision included in life sentence	State concedes court cannot impose PRS for off-grid indeterminate life term	PRS valid as part of life sentence	Vacated: lifetime postrelease supervision portion reversed (sentencing court lacked authority)

Key Cases Cited

State v. Williams, 295 Kan. 506 (discusses preservation and clear-error standard for omitted instructions)
State v. Tapia, 295 Kan. 978 (advises giving accomplice instruction; factors for when omission harmless)
State v. Llamas, 298 Kan. 246 (accomplice-instruction legal/factual appropriateness analysis)
State v. Berry, 292 Kan. 493 (abandoned court-made felony-murder exception to lesser-included rules)
State v. Wells, 297 Kan. 741 (interprets 2012 amendment; retroactivity analysis for felony-murder lesser-included offenses)
State v. Mitchell, 294 Kan. 469 (eyewitness-identification instruction should omit degree-of-certainty factor)
State v. Cruz, 297 Kan. 1048 (standard for harmlessness of erroneous jury instructions)
State v. Akins, 298 Kan. 592 (prosecutorial vouching and impermissible credibility opinion)
State v. Cash, 293 Kan. 326 (sentencing court lacks authority to impose postrelease supervision with off-grid life sentence)
Collins v. Youngblood, 497 U.S. 37 (Ex Post Facto Clause principles referenced in retroactivity analysis)