STATE v. COLSTON

Colston next claims that the trial court committed reversible error when it gave an Allen-type instruction to the jury before deliberations began. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Colston did not object to the instruction when it was given to the jury; therefore, this court reviews the instruction under a clearly erroneous standard. K.S.A. 22-3414(3). As previously stated, instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Carter, 284 Kan. at 324.

The trial court provided Instruction No. 13 to the jury:

"Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different jury at a later time. Another trial would be a burden on both sides.

"This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.

"This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.

"You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary." (Emphasis added.)

The language from Instruction No. 13 came from a prior version of PIK Crim. 3d 68.12, commonly known as the "deadlocked jury" instruction. In the current pattern instruction, the language "another trial would be a burden on both sides" has been removed. Otherwise, the trial court's Instruction No. 13 tracks almost identically with the current pattern instruction.

This court has specifically addressed the language at issue in two recent cases. In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), this court held that the language "[a]nother trial would be a burden on both sides" is error because it is misleading and inaccurate; however, it was not reversible error. In Salts, the instruction was given before the jury deliberated and was included with all the other jury instructions. The defendant did not object to the instruction. The Salts court found that, under the clearly erroneous standard, there was no real possibility that the jury would have returned a different verdict if the error had not occurred. 288 Kan. at 267; see also State v. Ellmaker, 289 Kan. 1132, 1146-47, 221 P.3d 1105 (2009) (same challenged language in jury instruction was erroneous, but not clearly erroneous).

Colston argues that the language "another trial would be a burden on both sides" is reversible error in his case because there is a real possibility the jury would have rendered a different verdict without that language. First, he argues that the jury did not believe all of B.N.'s testimony because it acquitted Colston on Count II. Second, he argues that the jury was having a difficult time with Count IV because it sent a question to the trial court about the meaning of "on or about" with regard to the date the act was committed. Colston asserts that these two facts indicate that the jury may have decided to resolve its differences and reach a verdict to avoid creating an additional burden upon retrial.

As the State points out, the fact that the jury acquitted Colston of Count II does not, by itself, indicate that the jury did not believe B.N.'s testimony. Rather, it indicates that the State failed to prove Count II beyond a reasonable doubt. While the trial court did receive a question from the jury about Count IV, the question did not clearly indicate that the jury was deadlocked. There is no reason to believe that the jury compromised its verdict on any of the counts as a result of the language in Instruction No. 13.

Instruction No. 13 was given before the jury deliberated and was included with all the other jury instructions. Colston did not object to the instruction. The jury reached its verdicts on the same afternoon that deliberations began, so the jury deliberations were not more than a few hours. After the verdicts were read, the trial court polled the jury and each juror stated he or she agreed with the verdicts. The evidence against Colston was substantial. This case is similar to Salts and Ellmaker regarding the effect of the Allen-type instruction, and the result should be the same. We are not firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Accordingly, we conclude the trial court did not commit reversible error by giving Instruction No. 13.

Finally, Colston claims that the cumulative impact of the errors in his case deprived him of his right to a fair trial.

"`"Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied [the defendant] a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant." [Citations omitted.]'" Ellmaker, 289 Kan. at 1156 (quoting State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 [2007]).

As we have concluded, some of the trial court's jury instructions were erroneous, but not clearly erroneous. However, none of the errors involved the admission of questionable evidence, and the evidence of Colston's guilt was substantial if not overwhelming. B.N.'s statements of what happened remained consistent. Although she switched the dates of two of the offenses at trial, the details about the acts remained consistent, as did the number of times each act occurred. Michael corroborated B.N.'s testimony about the incident on August 11, testifying that he saw B.N. and Colston naked in the basement. The State also presented forensic evidence of Colston's DNA on the crotch of B.N.'s swimsuit. Given the evidence, we are firmly convinced that the cumulative effect of any errors committed by the trial court did not deprive Colston of his right to a fair trial.

Affirmed.

DAVIS, C.J., not participating.

MALONE, J., assigned.