BY THE COURT
criminal defendant's right to be present at every
critical stage of the proceedings is guaranteed by both the
United States Constitution and Kansas statute.
right to be present at any critical stage of the proceedings
encompasses any stage of the trial when the jury is in the
courtroom or when the defendant's presence is essential
to a fair and just determination of a substantial issue.
articulating dissatisfaction with court-appointed counsel, a
criminal defendant triggers a district court's duty to
inquire about that dissatisfaction. A district court abuses
its discretion if it becomes aware of such dissatisfaction
but fails to conduct an inquiry.
party must do more than simply fail to object to a district
court's proposed jury instruction to risk application of
the invited error doctrine as a bar to appellate review of
jury instruction must always fairly and accurately state the
applicable law. An instruction that does not do so is legally
from Sedgwick District Court; Benjamin L. Burgess, Terry L.
Pullman, and William S. Woolley, judges.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause and was on the brief for appellant.
J. Maloney, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
Matthew McDaniel's direct appeal of his felony-murder and
aggravated robbery convictions. The focus is on the district
court's handling of McDaniel's multiple pretrial
requests for substitute counsel, one of which was ultimately
granted. We agree the district court erred when it refused
McDaniel's initial request for a new attorney without any
inquiry. We also agree it was an error for the presiding
judge to make on-the-record observations about McDaniel's
interactions with his attorney at a time when McDaniel was
not present. We discuss these missteps and the caselaw
concerning them, although we hold these errors were harmless.
Accordingly, we affirm.
and Procedural Background
Wilson died from two gunshot wounds to the head. Wichita
police investigated the death and questioned McDaniel. After
initially denying involvement, McDaniel eventually confessed
that he, Kendall Gentry, and Christopher Brown had planned to
rob Wilson two days before the crime. He speculated the
robbery's purpose was to assist in covering a drug debt
Brown owed because one of Wilson's relatives stole drugs
said the group went to Wilson's apartment and played
video games until Brown signaled and Gentry shot Wilson.
McDaniel admitted going through Wilson's pockets and
finding a wad of cash and a cell phone. Gentry later counted
about $1, 000 in cash. When McDaniel was arrested the morning
after the crimes, he was carrying about $350 in cash.
State charged McDaniel with felony murder and aggravated
robbery. At trial, McDaniel's confession to police was
the State's primary evidence. McDaniel testified and
denied the robbery was planned and said he lied in his
earlier police statements because Brown and Gentry told him
to and he was afraid of them. McDaniel called Gentry as a
defense witness, but Gentry testified it was McDaniel who
told him about a plan to rob Wilson and identified McDaniel
as the shooter. Gentry admitted being present when the
killing occurred but denied participating in it. The jury
convicted McDaniel, and he was sentenced to consecutive terms
of a hard 20 life imprisonment for the felony murder and 102
months' imprisonment for the aggravated robbery.
timely appeals, raising three challenges to his convictions.
First, he argues the district court deprived him of his right
to be present at a critical stage of the trial when, after
McDaniel's preliminary hearing, the court made
on-the-record observations about his interactions with his
preliminary hearing counsel. Second, he claims the court
failed to inquire into that attorney's potential conflict
of interest. Third, McDaniel contends the felony-murder jury
instruction prevented the jury from considering whether
McDaniel should have been acquitted because the killing was
completed before the underlying felony commenced.
is proper. See K.S.A. 2016 Supp. 22-3601(b)(3)-(4) (Supreme
Court's jurisdiction over a criminal case in which life
sentence has been imposed and defendant has been convicted of
an off-grid felony).
to be Present and Failure to Inquire Into Potential Conflict
McDaniel's appeal focuses on his efforts to discharge his
first appointed attorney, Pamela Parker, who represented him
at his preliminary hearing and for the following three
months. The district court then appointed new counsel. We
discuss those efforts and the district court's handling
of McDaniel's requests first.
to his preliminary hearing, McDaniel filed a pro se motion to
dismiss the case. In that motion, he made generalized
complaints that his prosecution and detention violated his
rights under the federal and state constitutions. In early
August 2012, Judge Benjamin L. Burgess presided at
McDaniel's preliminary hearing. When Parker entered her
appearance, she said McDaniel had just told her he wanted to
move pro se for replacement counsel and he objected to any
further proceedings. She also informed the court about
McDaniel's pro se motion to dismiss the charges against
him, "which I told him I will not argue. So I don't
know if the court wants to take up those matters before we
begin but I thought I would put the court on notice."
Burgess asked if a written motion had been filed. Parker
explained again that McDaniel had filed a pro se motion to
dismiss, which was not yet set for hearing. She repeated that
she had informed McDaniel she would not argue his pro se
motion to dismiss but had said McDaniel could. Judge Burgess
"Well, if at this juncture Mr. McDaniel has appointed
counsel, there is no motion, and I have the matter on my
screen right now, there is no filed motion that I've seen
with regard to the other at issue-
"MS. PARKER: Oh, no, he just informed me about the
motion to dismiss right now.
"THE COURT: And Mr. McDaniel is not allowed to act as
co-counsel. Ms. Parker is a qualified, experienced attorney,
so we will proceed."
started to speak, but the judge cut him off, saying:
"Mr. McDaniel, I don't need to hear from you. You
have counsel, counsel speaks on your behalf. I don't
allow defendants to act as co-counsel. It's that
hearing resumed. When Parker's turn came again to enter
her appearance, she stated:
"Your honor, again, Mr. McDaniel would like to make an
oral motion to have me removed from the case. I've
explained that the Court has ordered him to file a written
motion. He has a list of reasons he would like to address
with the Court."
Burgess asked the State to respond. The prosecutor conceded
it probably would be more expedient to take up the oral
motion for new counsel "because I don't want to have
to do the hearing a second time, so that's fine."
The following exchange then occurred:
"THE COURT: Well, this is a preliminary hearing.
It's not the trial. I don't know that there's any
need to delay the case. I'm well familiar with Ms.
Parker. I know that she's a very capable lawyer. And I
see no reason to delay the proceedings for the purpose of
preliminary hearing at this point.
"So, Mr. McDaniel, if you wish to file a written motion-
"MR. MCDANIEL: Sir-
"THE COURT: -to-to have Ms. Parker removed from the case
for ineffective assistance of counsel, for whatever reason
you might have any legal basis for, you can do that but not
today. It's too late.
"MR. MCDANIEL: I understand. Can I please explain a
little of what I have here?
"THE COURT: Mr. McDaniel, the answer to that is no.
I'm not going to allow that."
proceedings resumed, the State presented its evidence, and
Judge Burgess ordered McDaniel bound over for trial. At that
point, the judge directed that the record be closed and the
court went into recess. The hearing transcript reflects
McDaniel was no longer present, but then Judge Burgess said,
"I want to reopen the record as it pertains to Mr.
McDaniel just for a moment." The judge commented,
"I just wanted to have the record reflect that during
the course of the preliminary hearing I noted during the
examination of [the witness] that there were conversations
occurring between Mr. McDaniel and Ms. Parker. They were
communicating, one to the other and back again. At one point
I noted Mr. McDaniel had a smile on his face. And obviously
I'm not aware of what the conversations were, but I think
it becomes clear to me, at least, at this point that there is
not a complete breakdown of communication."
judge invited Parker to respond and she said,
"Your Honor, I guess I would just clarify, when I began
my questioning with [the witness], I informed him that I had
problems hearing him and it was through no fault of his own.
It was, in fact, because, as the Court pointed out, my client
was continuing to talk to me, although I had provided him a
pen to write notes on. So it-that's the ...