district judge's denial of a criminal defendant's
right to forego counsel and represent himself or herself is
structural error requiring reversal of the defendant's
of the judgment of the Court of Appeals in an unpublished
opinion filed April 29, 2016.
Appeal from Sedgwick District Court; Christopher Magana,
Richard Ney, of Ney & Adams, of Wichita, argued the cause
and was on the briefs 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.
Josiah R. Bunyard appeals his convictions for battery,
aggravated battery, attempted violation of a protective
order, and intimidation of a witness.
the course of his case, Bunyard was very active in his
defense. At a motions hearing on the Friday before his trial
was to begin on Monday, Bunyard interjected during argument
before the court. The district judge told Bunyard that he
could either speak through his appointed lawyer or represent
himself. Given those options, Bunyard said he would represent
himself. After discussing the matter with counsel, Bunyard
temporarily dropped the issue. But, before the conclusion of
the hearing, Bunyard again interjected and stated that he
wanted it on the record that he was "unequivocally"
asserting his right to self-representation. The judge refused
to take up the matter of self-representation at that time,
instead telling Bunyard that he must file a written motion if
he wanted to represent himself. Bunyard did not file a
written motion or otherwise reassert the right to
self-representation when court reconvened the next week.
the Court of Appeals, Bunyard raised multiple issues.
Included among them was denial of his right to
self-representation. The Court of Appeals rejected this claim
and the other claims Bunyard raised and affirmed his
convictions and sentence. See State v. Bunyard, No.
112, 645, 2016 WL 1719607, at *17 (Kan. App. 2016).
filed a petition for review by this court, which was granted.
We hold that there was structural error in the handling of
Bunyard's invocation of his right to self-representation,
and we reverse the Court of Appeals decision and the judgment
of the district court. The case must be remanded to district
court for further proceedings.
and Procedural Background
resolve Bunyard's appeal, it is not necessary to recite
the facts leading to the charges against him in detail.
Highly summarized, the State alleged that Bunyard choked and
broke the jaw of his girlfriend, Jennifer Wood. After Bunyard
was arrested and ordered not to have any contact with Wood,
Bunyard sent a letter to a mutual friend that the State
alleged was intended to be passed to Wood. See 2016 WL
1719607, at *1.
Friday pretrial hearing referenced above, the district judge
took up two motions, including the State's motion to
introduce Wood's preliminary hearing testimony at trial.
The State had unsuccessfully attempted to find Wood to secure
her attendance and live testimony.
witnesses testified about the State's efforts to locate
Wood. After the testimony concluded, Mark Sevart,
Bunyard's appointed counsel, argued that the State was
not diligent enough to render Wood unavailable to testify. In
the alternative, Sevart argued, even if Wood qualified as
legally unavailable, it would be inappropriate to admit her
preliminary hearing testimony, because, according to him, the
cross-examination of Wood conducted by Bunyard's previous
counsel, Charles O'Hara, was insufficient to satisfy the
the State's response to Sevart's argument, the
prosecutor noted that he had new information on the
whereabouts of another witness, for which both the State and
defense had requested a material witness warrant. During a
colloquy between the judge and the State about that witness,
Bunyard interrupted. The transcript of the hearing includes
the following exchange:
"THE COURT: So you're not seeking to have her
declared unavailable since, apparently, she's recently
"[THE STATE]: That's correct.
. . . .
"THE DEFENDANT: Your Honor, could I please be heard?
"THE COURT: Mr. Bunyard, you have appointed counsel who
has filed this motion or is responding to this motion, so
you're either having Mr. Sevart argue this case-or are
you representing yourself? Which is it?
"THE DEFENDANT: "I'll represent myself, if
that's the choice. I will definitely-
"THE COURT: You're seeking to have Mr. Sevart taken
off this case?
"THE DEFENDANT: If those are my options, then, yes.
"THE COURT: What are you asking, Mr. Bunyard?
"THE DEFENDANT: I'm asking to be heard right now.
"THE COURT: About what?
"THE DEFENDANT: About what we're having the hearing
on. I have some information that-they've given you
information that's not correct.
"THE COURT: Mr. Sevart, why don't you take a moment
. . . and speak off the record with your client. Do you
expect this to be a lengthy conversation?
"MR. SEVART: Well, Your Honor, perhaps we should
reconvene Monday, as far as-or, I mean, later today, I guess,
too, but, I mean, I know you've got some other items-
"[THE STATE]: At the very minimum, I'd ask that you
authorize a material witness warrant for Ms. Wood. We need to
have the weekend to try to find her.
"THE COURT: Mr. Sevart, why don't you take a few
minutes and speak with him there at counsel table, and then
we'll see if we can resolve this.
"[THE STATE]: Do you want me to step out, Judge?
"THE COURT: No. You're fine."
the court came back on the record, the judge noted that the
prosecutor had left the courtroom briefly while Sevart and
Bunyard spoke. The judge then asked Sevart to inform the
court of Bunyard's decision.
"MR. SEVART: Your Honor, I think the points that my
client wanted to raise that may or may not make any
difference but should be presented to you are, apparently,
Mr. O'Hara was retained with respect to one of the
earlier cases. His status, whether he was appointed or just
showed up or whatever with respect to this case, I guess, is
not real clear. . . .
"THE COURT: Well, let me stop you right there, and
let's nail this down.
. . . .
"THE COURT: Mr. O'Hara generally doesn't take
appointments on criminal cases, so if he was present, whether
pro bono or in relation to another case, he was not- you
would agree he was not appointed by the Court to represent
Mr. Bunyard on this case at the preliminary hearing; correct?
On this case.
"THE DEFENDANT: He was not retained by Mr. Bunyard,
"THE COURT: That is not my question, Mr. Bunyard. I am
addressing my question to Mr. Sevart, not to you.
"My question, Mr. Sevart, is: Was he appointed by the
Court to represent Mr. Bunyard?
"MR. SEVART: No."
district judge and Sevart then continued to discuss
O'Hara and whether there had been any objection raised at
the preliminary hearing to his representation of Bunyard. As
the judge was about to rule on one of the motions, Bunyard
again interjected during the following exchange:
"MR. SEVART: What . . . I was getting to, Your Honor, is
I think we can get to the motion on the witness, as far as
the issuance of the warrant, and if the Court would reserve
ruling until Monday with respect to the preliminary
hearing-the usage of the preliminary hearing transcript, it
may be moot if they locate her. But perhaps we have time so
the Court can review that transcript, and then, also, I can
visit with my client a little further and we can reconvene
Monday morning on this motion.
"THE COURT: All right. I'm going to go ahead and
rule on the one motion.
"THE DEFENDANT: I want it on the record I wish to
represent myself ...