IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,459
STATE OF KANSAS,
Appellee,
v.
KORA L. LILES,
Appellant.
SYLLABUS BY THE COURT
1.
A court follows a two-step analysis to address a prosecutorial error claim. First, it
decides whether an error occurred. For the first step, if the claim relates to something the
prosecutor said, the court looks at the statement complained about to decide if it falls
outside the wide latitude afforded the prosecutor in conducting the State's case and
attempting to obtain a conviction in a manner that does not offend a defendant's fair trial
rights under the Fourteenth Amendment. The defendant can establish the first prong by
demonstrating the prosecutor misstated the law or argued factual assertions with no
evidentiary foundation. If the court finds error, it takes the second step and considers
prejudice to determine whether that error was harmless.
2.
A court considers jury instructions as a whole to determine whether they properly
and fairly state the applicable law and whether it is reasonable to conclude they could
have misled the jury.
1
3.
A district court is not legally required to instruct a jury to view with caution the
testimony of a noninformant witness who is testifying in exchange for benefits from the
State.
Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed July 16, 2021.
Affirmed.
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the
brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.
The opinion of the court was delivered by
BILES, J.: Kora L. Liles appeals her convictions and sentences stemming from
three murders at her Topeka home. She argues: (1) the prosecutor misstated the law by
telling the jury to use the same caution in considering her testimony as her accomplices
who testified for the prosecution; (2) the district court erred by refusing to instruct the
jury to view the accomplices' testimony with caution because they were receiving
benefits from the State; (3) the cumulative effect of these two alleged errors on her fair
trial rights requires reversal; and (4) the State breached an unwritten, postconviction
agreement to make a favorable sentencing recommendation if she testified in the trial of
other participants in the crimes. We reject each challenge and affirm.
We hold the prosecutor's argument on Liles' credibility stayed within permissible
bounds, and that the court properly refused to modify the accomplice jury instruction.
These rulings make a cumulative error analysis inappropriate. As to sentencing, we hold
2
Liles failed to make an adequate record concerning the alleged agreement to allow
meaningful review.
FACTUAL AND PROCEDURAL BACKGROUND
Luke Davis, Nicole Fisher, and Matthew Leavitt were murdered the night of
March 11-12, 2017, at Liles' house. The controverted chain of events alleged and the trial
evidence establishing her crimes of conviction are largely irrelevant to the issues now
raised on appeal. It is enough to know the victims died following hours of confrontation
and violence. Davis eventually died after being strangled with an electric fan cord used as
a ligature. Fisher was suffocated to death with a plastic bag placed over her head. And
Leavitt died from strangulation when his neck was held between his killer's legs during a
struggle. There was evidence Liles had accused Leavitt of a sexual impropriety toward
her in the weeks preceding the murders.
The State charged Liles, her then-boyfriend Joseph Lowry, her ex-husband Brian
Flowers, and Joseph Krahn with the murders and related crimes. The State also charged
Shane Mays and Richard Folsom, who both reached cooperation agreements for their
testimony.
A grand jury indicted Liles on 11 charges: three counts of felony murder with two
alternative underlying felonies, i.e., aggravated kidnapping or aggravated assault; three
counts of aggravated assault with a deadly weapon; three counts of aggravated
kidnapping; one count of possessing methamphetamine with intent to distribute; and one
count of unlawful use of drug paraphernalia. A jury convicted her on all counts.
The district court imposed three hard 25 sentences for the felony-murder
convictions, a 226-month sentence for one of the aggravated kidnapping convictions,
3
165-month sentences for each of the remaining aggravated kidnapping convictions, three
13-month sentences for the aggravated assault convictions, and a 98-month sentence for
the possession conviction. The court ran all these sentences consecutive. The court also
imposed a concurrent one-year sentence for the paraphernalia conviction. This is Liles'
direct appeal. Jurisdiction is proper. K.S.A. 2020 Supp. 22-3601(b)(3), (4).
PROSECUTORIAL ERROR
Liles argues the prosecutor misstated the law during closing arguments by telling
the jury a cautionary instruction given with respect to accomplice testimony applied to
Liles' testimony as well. We reject this because the prosecutor did not make the legal
assertion Liles claims. The prosecutor made a permissible statement about credibility.
Additional facts
The district court gave the jury an instruction about accomplice testimony because
Mays and Folsom testified. Instruction 8 stated: "An accomplice witness is one who
testifies that he was involved in the commission of a crime with which the defendant is
charged. You should consider with caution the testimony of an accomplice." (Emphasis
added.)
During closing arguments, defense counsel argued the jurors "most importantly
. . . should consider with caution, the testimony of an accomplice." He explained an
accomplice might seek to obtain immunity or a lighter sentence by trying to shift blame
to someone else, or might simply wish to drag someone else down for malice. He pointed
out Mays negotiated a plea bargain for lesser charges in exchange for his testimony. On
rebuttal, the prosecutor addressed this, telling the jury,
4
"Now, I want to go on to Instruction Number 8, because this is where we talk about the
credibility of the witnesses. [Defense counsel] talked about this, and he says the law
requires you, or somewhat suggested the law requires you to disbelieve the testimony of
an accomplice. That's not what the instruction says. It says you should consider with
caution the testimony of an accomplice. And that makes sense, because somebody who's
perhaps getting a benefit for their testimony . . . you might want to consider with caution.
That's sensible."
The prosecutor then made the following comment Liles now challenges:
"That also applies to Ms. Liles, because she has a bias in her testimony. She has
a bias to mislead you, to make you think things are true that are not true, so that you will
think that there's a reasonable doubt as to her guilt, because in essence, in broad strokes,
what is it that Ms. Liles is saying here today? What is her account of what happened? I
was in this house, and all these other people started to do the things, and I had nothing to
do with it. . . .
"That testimony, if you look at all the other evidence in the case, is simply not
believable, and it is nowhere near believable and credible when [you] compare it to the
testimony of [sic] the prior statement of Shane Mays. This is true for a number of
reasons." (Emphasis added.)
The prosecutor argued Liles' testimony was internally inconsistent, giving
examples. He asserted there was no explanation for the night's events other than Liles
being upset with Leavitt. He argued Liles admitted her involvement but consistently
minimized her participation. He pointed out Liles claimed to be scared of Lowry, but he
was the one who told her to establish an alibi, which she tried to do by leaving and being
seen elsewhere. And the prosecutor pointed out that while Liles claimed the others
threatened her children, she never went to look for or take care of them. He argued the
most reasonable explanation for all this was that Liles was the "boss" and the others were
5
doing her "dirty work." He also argued Mays' testimony was more believable because he
was "putting his own neck in the noose" by admitting his intent to kill Fisher.
Standard of review
A court follows a two-step analysis to address a prosecutorial error claim. First, it
decides whether an error occurred. For this first step, if the claim relates to something the
prosecutor said, the court looks at the statement complained about to decide if it falls
outside the wide latitude afforded the prosecutor in conducting the State's case and
attempting to obtain a conviction in a manner that does not offend the defendant's fair
trial rights under the Fourteenth Amendment. A defendant can establish the first prong by
demonstrating the prosecutor misstated the law or argued factual assertions with no
evidentiary foundation. If the court finds error, it takes the second step and considers
prejudice to determine whether that error was harmless. State v. Vonachen, 312 Kan. 451,
467, 476 P.3d 774 (2020).
Discussion
Prosecutors may point out inconsistencies in a defendant's statements and argue
the evidence reflecting poorly on the defendant's credibility. But in doing so, they may
not accuse a defendant of lying. State v. Haygood, 308 Kan. 1387, 1402, 430 P.3d 11
(2018). Here, the prosecutor's argument was consistent with this limitation by pointing
out potential bias affecting Liles' testimony and making an evidence-based argument as
to why other testimony reflected poorly on her credibility. The prosecutor noted Liles
stood to benefit from skewed testimony because it increased her acquittal chances. And
he detailed why other evidence undermined Liles' testimony that she was merely an
innocent bystander.
6
Liles concedes prosecutors may argue witness bias. But she claims the prosecutor
in this instance linked the accomplice instruction directly to her testimony. This, she
argues, would be an error of law. The State contends Liles mischaracterizes the
prosecutor's comments. We agree with the State. Rather than tying the accomplice
instruction to Liles, the prosecutor simply argued the same underlying reasons for that
instruction about self-serving accomplices applied to Liles' testimony as the defendant.
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. See 14 Kan. App. 2d at 519
("The instruction in this case referred to accomplice testimony. But, Land was testifying
both as an accomplice and as a defendant."). That is not what happened in Liles' case.
Land is distinguishable mainly because Liles does not challenge an instruction
from the court. And even if the prosecutor's argument were construed as saying the
instruction legally applied to Liles, Land remains distinguishable because Mays and
Folsom also testified. In other words, if the instruction applied to Liles, it applied equally
to Mays and Folsom, so it was neutral and did not "single out the defendant as not to be
believed." 14 Kan. App. 2d at 518. The prosecutor only asserted Liles' testimony should
be considered on equal footing with the testimony from Mays and Folsom. See Louie v.
United States, 426 F.2d 1398, 1402 (9th Cir. 1970) (noting it was appropriate to instruct a
jury that it may consider any interest the defendant has in the case's outcome, including
the defendant's "hopes and his fears and what he has to gain or lose as a result of your
verdict").
7
Granted, a prosecutor commits error by misstating the law. State v. Watson, 313
Kan. 170, 179, 484 P.3d 877 (2021). But this prosecutor's comment was not error. It did
not suggest Liles' testimony was unbelievable just because she was the defendant
exercising her right to testify. And after pointing out Liles' interest in the outcome, the
prosecutor made an evidence-based argument as to why the jury should credit the
testimony from Mays and Folsom over hers.
THE CAUTIONARY INSTRUCTION CLAIM
Liles argues the district court erred by refusing to modify Instruction No. 8 to
make explicit reference about witnesses who testify for the State in exchange for benefits.
Again, we disagree. This issue is controlled by the court's decision in State v. Dean, 310
Kan. 848, 856, 450 P.3d 819 (2019), which Liles fails to demonstrate was wrongly
decided.
Additional facts
During his direct testimony, Mays acknowledged reaching an agreement with the
State and was providing testimony in exchange for consideration in his case. On cross-
examination, Mays agreed he faced a lesser sentence for his cooperation. He would plead
guilty to reduced charges: attempted second-degree murder in Fisher's death and
aggravated battery of Leavitt.
Folsom testified he did not have a formal agreement with prosecutors but assumed
he would not face murder charges. He said he was testifying because it was the right
thing to do. On cross-examination, Folsom agreed he was providing testimony in the
multiple cases related to the murders and negotiating with the State.
8
At the jury instruction conference, Liles requested the instruction about informant
testimony, which would have told the jury to consider with caution the testimony of an
informant who in exchange for benefits acted as an aid for the State in obtaining
evidence, if the testimony was not supported by other evidence. The State objected,
arguing there was no informant who acted on the State's behalf to obtain evidence and
noting other evidence supported Mays' and Folsom's testimony. Defense counsel
countered by observing they received benefits in exchange for their testimony. The court
refused to give the informant instruction.
Defense counsel then asked: "[C]an we add to the testimony, accomplice, [sic]
that in exchange for his testimony he is getting benefits[?]" The court rejected that too,
ruling: "I think that's something you get to argue on the credibility of any witness."
Standard of review
When analyzing instruction issues, an appellate court follows a three-step process:
"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.'
"Whether a party has preserved a jury instruction issue affects the reversibility
inquiry. At the second step, we consider whether the instruction was legally and factually
appropriate. Appellate courts use unlimited review to determine whether an instruction
was legally appropriate. To be factually appropriate, there must be sufficient evidence,
viewed in the light most favorable to the defendant or the requesting party, to support the
instruction. [Citations omitted.]" State v. Levy, 313 Kan. 232, 241, 485 P.3d 605 (2021).
9
A court considers jury instructions as a whole to determine whether they properly
and fairly state the applicable law and whether it is reasonable to conclude they could
have misled the jury. In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d
791 (2021).
Discussion
Liles properly preserved this issue for appellate review because she requested the
instruction modification during trial. See State v. Gallegos, 313 Kan. 262, 267, 485 P.3d
622 (2021) (defendant preserved challenge to omission of instruction on voluntary
manslaughter by requesting the instruction at trial). The next inquiry is whether her
requested modification was legally and factually appropriate. We previously have
addressed this specific issue. See Dean, 310 Kan. at 856 ("A district court is not legally
required to instruct the jury to view with caution the testimony of a noninformant witness
who is, nonetheless, testifying in exchange for benefits from the State."). Dean's holding
is equally applicable here.
In Dean, the defendant's gang associate testified in hopes of obtaining a reduced
sentence in another case. The defendant argued the district court should have given the
same instruction Liles requested here—the testimony of one who obtains evidence in
exchange for benefits should be considered with caution—but modified for a cooperating
witness. Dean, 310 Kan. at 855, upheld a long line of cases holding that a cautionary
instruction is appropriate only when prisoner-witnesses are acting as agents of the State
when they obtain the information about which they later testify. See State v. Ashley, 306
Kan. 642, 647-48, 396 P.3d 92 (2017).
10
The paid informant cautionary instruction "complies with the constitutional
prohibition against using the testimony of a witness who acts on behalf of the State in
eliciting evidence from the defendant in exchange for receiving benefits from the State."
State v. Saenz, 271 Kan. 339, 348, 22 P.3d 151 (2001). But the informant instruction only
applies when witnesses are acting as agents of the State when they obtain the information
about which they testify. Ashley, 306 Kan. at 647-48.
Liles appears to concede the district court properly declined to give the informant
cautionary instruction, but then argues Dean was wrongly decided. She contends that if
an instruction is factually appropriate and "fairly and accurately states the applicable
law," it simply must be given. In her view, this leaves no room for a distinction between
required and permissible instructions. This argument finds some support in State v.
Plummer, 295 Kan. 156, 162, 283 P.3d 202 (2012), that "[i]f an instruction is legally
appropriate and factually supported, a district court errs in refusing to grant a party's
request to give the instruction."
But Plummer is distinguishable because the instruction at issue was for a lesser
included offense of the charged crime. See 295 Kan. at 160. And lesser included offense
instructions are required by statute under certain circumstances. See K.S.A. 2020 Supp.
22-3414(3) ("In cases where there is some evidence which would reasonably justify a
conviction of some lesser included crime . . . the judge shall instruct the jury as to the
crime charged and any such lesser included crime."). So when a district court fails to give
an otherwise appropriate lesser included offense instruction, the instructions as a whole
necessarily would not accurately state the law because they would not comply with the
statutory command. See 295 Kan. at 161-62. There is no statutory directive regarding an
informant instruction.
11
Liles' focus on the requested modification in isolation also is inconsistent with
both the scope of this court's review and the law surrounding the instruction. A reviewing
court considers the instructions as a whole "'to determine whether they properly and fairly
state the applicable law or whether it is reasonable to conclude that they could have
misled the jury.'" Quillen, 313 Kan. at 849; see State v. Todd, 299 Kan. 263, 271, 323
P.3d 829 (2014). Context matters. For example, this court has said "'a failure to provide
the jury with the cautionary accomplice witness instruction . . . is not error when the
defendant's guilt is plain or when the jury is cautioned about the weight to be accorded
testimonial evidence in other instructions.'" (Emphasis added.) Todd, 299 Kan. at 271.
Similarly, in Dean, this court suggested the jury could not have been misled, even
though the instructions given did not include the testifying-for-a-benefit cautionary
language. The court reasoned,
"At trial, [the witness] admitted that he was testifying in hopes of getting a reduced
sentence in his federal case; defense counsel cross-examined [the witness] on this point;
and defense counsel hammered [the witness'] bias in closing argument. Thus, the jury
was well aware of [the witness'] benefit and well-equipped to weigh his credibility
without a specific cautionary instruction." Dean, 310 Kan. at 856.
Both Mays and Folsom admitted they anticipated reduced charges in exchange for
their testimony, and defense counsel addressed that potential bias in closing argument. As
in Dean, the jury in Liles' case knew about the witness' benefits and was capable of
weighing their credibility without a more explicit caution in the instructions addressing
that possibility.
We adhere to Dean and apply it here. We hold the district court did not err by
refusing the requested instruction modification under these facts.
12
NO CUMULATIVE ERROR
Anticipating success on both of the previous claims, Liles raises a cumulative
error argument based on their combined adverse impact on her right to a fair trial. But
since neither issue has merit, there can be no cumulative error. State v. Bodine, 313 Kan.
378, 412, 486 P.3d 551 (2021).
THE SENTENCING AGREEMENT CLAIM
Liles' final claim is that the State breached an unwritten, postconviction agreement
to exchange a favorable sentencing recommendation for her testimony in her
accomplices' cases. She asks us to vacate her sentences and remand the case "for a
resentencing hearing, in front of a different judge, at which the State must make a lesser
sentencing recommendation." The State argues Liles failed to raise this issue in the
district court; that it is impossible to determine if a breach occurred because there is no
record of an agreement; and that the record in any event demonstrates Liles did not fulfill
her part of any alleged bargain. We agree with the State that the record is inadequate to
permit meaningful appellate review. We also note Liles provides no authority to
demonstrate a viable basis for resentencing.
Additional facts
At a hearing after Liles' convictions, defense counsel requested sentencing be
continued because Liles had agreed to cooperate with the State and testify in two other
cases. He asked that sentencing wait until that testimony. The State agreed.
When the sentencing hearing occurred, the State acknowledged Liles had
expressed interest in cooperating after her convictions in exchange for some favorable
13
consideration or mitigation of her sentence. The State noted she testified in Lowry's trial
but characterized that testimony as self-serving and minimizing, comparing it to how she
testified at her own trial. The prosecutor said he talked to jurors after the Lowry trial and
they did not believe Liles. The prosecutor speculated Lowry's trial would have had the
same outcome without Liles' testimony. And because of that, he said, Liles did not
cooperate in a meaningful way, so he asked the court to impose the maximum sentences
for her convictions.
Defense counsel responded that it was
"a bit disappointing that the Defendant did cooperate with the State and she testified as to
what she testified in the trial, and the State had no inclination she was gonna testify any
differently. But be that as it may, she did cooperate, judge, and she testified that [sic] she
told the State that she would do.
"The—I have no idea what the jurors believed or didn't believe, and I have no
reason not to believe what [the Prosecutor] said, but her agreement with the State was to
cooperate and testify, and she did, and she was prepared to do that if needed be in Mr.
Flowers' case."
Defense counsel requested concurrent sentences for the murders and standard
sentences on the remaining crimes. He argued Liles' lifestyle and associations led to the
crimes and that Liles was paying for her poor choices. He said there was no plan to the
killings, but Liles understood her responsibility for her participation.
Neither the State nor Liles described with any particularity the terms of any
agreement between them.
14
Discussion
Liles refers us to the standard of review applicable for plea agreement breaches.
Under that standard,
"'[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.' If the State fails to fulfill a promise it made in a plea
agreement, the defendant is denied due process. This is true even if the record indicates
that the district court's sentencing decision was not influenced by the State's actions at
sentencing. [Citations omitted.]" State v. Urista, 296 Kan. 576, 583, 293 P.3d 738 (2013)
(quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427
[1971]).
If the State fails to perform its portion of a plea agreement and a defendant timely
objects, the "breach will constitute harmless error only if a court can say beyond a
reasonable doubt that the State's promise had little, if any, influence on the defendant's
decision to enter into the plea agreement." Urista, 296 Kan. at 594-95. And when the plea
is given in exchange for a favorable sentencing recommendation, the remedy for a breach
"is to vacate the sentence and remand for a new sentencing hearing before a different
district court judge with directions that the State comply with the provisions of plea
agreement at sentencing." 296 Kan. at 595.
But Liles did not enter into a plea agreement. Any understanding with prosecutors
occurred after the jury convicted her. And Liles simply asserts—without citation to any
authority or elaboration—that "[w]hile this issue is more correctly described as a 'breach
of sentencing agreement,' it is legally indistinguishable from a breach of plea agreement
for purposes of this Court's review."
15
Several problems present themselves, but the most obvious is the failure to make
an adequate record about the terms of this claimed postconviction agreement. See State v.
McCullough, 293 Kan. 970, 997-98, 270 P.3d 1142 (2012) (holding assertion of error not
preserved and record inadequate to address the issue, even if it could be reached). "It is
'the well-established rule that an appellant has the burden to designate a record sufficient
to establish the claimed error. Without an adequate record, an appellant's claim of alleged
error fails.'" Vonachen, 312 Kan. at 460. We further note that,
"A failure to support an argument with pertinent authority or to show why the argument
is sound despite a lack of supporting authority or in the face of contrary authority is akin
to failing to brief the issue. Therefore, an argument that is not supported with pertinent
authority is deemed waived and abandoned." State v. Tague, 296 Kan. 993, 1001, 298
P.3d 273 (2013).
See also Kansas Supreme Court Rule 6.02(a)(1)(5) (2021 Kan. S. Ct. R. 36) ("An
appellant's brief must contain . . . [t]he arguments and authorities relied on.").
Claims of a plea agreement breach differ significantly from what is alleged here.
Liles had already been convicted of the crimes when any agreement was reached. And
she had already waived her Fifth Amendment privilege against self-incrimination that
could have been bargained away under the agreement when she voluntarily testified in
her own defense. See State v. Belone, 51 Kan. App. 2d 179, 186, 343 P.3d 128 (2015)
(citing State v. Simmons, 78 Kan. 852, 853, 98 P. 277 [1908]).
The requirement for prosecutors to follow through on their plea agreement
commitments arises from the desirability of resolving cases by plea bargain and the
attendant requirement for "fairness in securing [such] agreement." Santobello, 404 U.S. at
261. We are aware of no appellate case addressing a claim that the State violated a
sentencing recommendation agreement reached postconviction in exchange for the
16
defendant's testimony, and Liles cites none. Worse yet, the terms of any such alleged
agreement do not appear in the record. Even in her appellate brief, she only vaguely
claims the State agreed to "make some sort of beneficial sentencing recommendation in
exchange for that testimony."
We hold the failure to develop the record makes this question inappropriate for
appellate review.
Affirmed.
17