1

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.
2

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
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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, 
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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,
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"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 
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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.
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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").
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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 crossexamination, 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.
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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).
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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).
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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.
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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.
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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 
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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.
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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."
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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 
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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.