Kansas Supreme Court - 101551 – State v. Peppers

4.
Relevant gang affiliation evidence that is not more prejudicial than probative is
admissible even if it concerns the events surrounding commission of a crime. This court's
decision in State v. Gunby, 282 Kan. 39, 59-63, 144 P.3d 647 (2006), did not forbid the
admission of such res gestae evidence, only the invocation of res gestae to avoid K.S.A.
60-455 or the prohibition on hearsay.
5.
The district judge in this case did not abuse her discretion in weighing the
probative value of the gang affiliation evidence admitted against its potential for undue
prejudice. Her limiting instruction to the jury emphasized two of the legitimate ways in
which the evidence could be considered.
6.
Absent a request for a limiting instruction concerning gang evidence and absent
any objection for the failure to give a limiting instruction on gang evidence, a district
judge is not obligated to give such an instruction. In this case, the limiting instruction
given by the judge properly and fairly stated the law as applied to the facts and could not
have reasonably misled the jury.
7.
Inclusion of the language "another trial would be a burden on both sides" in an
Allen-type instruction constitutes error, because the language is misleading, inaccurate,
and confusing. When that error is invited, however, it need not be addressed on appeal. In
this case, the error was invited.
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