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MODIFIED OPINION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,682

STATE OF KANSAS,
Appellee,

v.

DANIEL PEREZ, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.  

2.
An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.  

3.
Under the facts of this case, an instruction informing the jury that another trial would be a burden on both sides was not clearly erroneous.

4.
K.S.A. 22-3414(3) is applicable to felony murder. Under this statute, instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt.

5.
Under the facts of this case, the district court did not err by failing to instruct the jury at trial on unintentional but reckless second-degree murder as a lesser included offense of felony murder.  

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Original opinion filed August 12, 2011. Modified opinion filed March 23, 2012. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.  

Michael A. Russell, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

MALONE, J.:  Daniel Perez, Jr., appeals his convictions of first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling. Perez claims:  (1) the district court violated his constitutional rights by deciding the State's motion for adult prosecution without using a jury to determine the facts; (2) the district court erred by instructing the jury at trial that "another trial would be a burden on both sides;" and (3) the district court erred by failing to instruct the jury at trial on unintentional but reckless
second-degree murder as a lesser included offense of felony murder. This court has jurisdiction under K.S.A. 22-3601(b) based on Perez' conviction of an off-grid crime.

FACTUAL AND PROCEDURAL BACKGROUND

In the spring of 2007, rival street gangs Florencia and Familia Loca (FL) were engaged in a series of violent confrontations in Kansas City. Carlos "Papa" Moreno was a leader of the Florencia gang. Valentino Hernandez, known as Listo, and Jos

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