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State v. Harris

Court of Appeals of Kansas

May 11, 2018

State of Kansas, Appellee,
v.
Bryan Richard Harris, Appellant.

          SYLLABUS

         1. Issues not raised before the district court cannot be raised on appeal.

         2. Several Kansas cases have found the issue of a defendant's waiver of jury trial may constitute an exception to the general rule requiring preservation of the issue for appeal through contemporaneous objection.

         3. When the facts of the district court's determination to accept the waiver of jury trial are not disputed, the question is whether the defendant voluntarily and knowingly waived the right to a jury trial, which is a legal question subject to unlimited appellate review.

         4. The Sixth Amendment to the United States Constitution and Sections 5 and 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury trial.

          5. Under K.S.A. 22-3403(1), with the consent of the court, a defendant and prosecuting attorney may submit a felony trial to the court rather than a jury.

         6. For a district court to accept a jury trial waiver, the defendant must be advised of his or her right to a jury trial and personally waive the right in writing or in open court on the record. A waiver must be voluntary and the defendant must understand what he or she is doing.

         7. Analysis of the voluntariness of a waiver depends on the particular facts and circumstances of the case.

         8. Kansas caselaw has upheld jury trial waivers even when the district court failed to explain all the particulars surrounding the right to a jury trial. Under the facts of this case, the defendant was appropriately advised of his right to a jury trial, and his waiver of his right to a jury trial was knowingly and voluntarily made.

         9. When the sufficiency of the evidence is challenged in a criminal case, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court must be convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.

         10. A criminal defendant has a statutory and constitutional right to be present with counsel at all critical stages of the prosecution of the case. Whether a defendant's right to be present at a critical stage of the proceedings has been violated is a question of law subject to de novo review.

         11. Whether an error is structural or harmless is a question of law.

         12. The statutory right to be present at all critical stages of trial is codified in K.S.A. 2017 Supp. 22-3405(a), which states the defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.

         13. The statutory right that a criminal defendant be present at any critical stage of the proceedings against him or her is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the United States Constitution.

         14. Critical stages of the proceedings include 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.

         15. The defendant has the right to be present only if his or her presence would contribute to the fairness of the procedure. A defendant does not have the right to be present if his or her presence would be useless or the benefit but a shadow.

          16. Under K.S.A. 22-3421, parties may poll the jury to ensure that the verdict is the jury's verdict. However, the same procedures are not necessary for a district court's findings because there are no jury members who may need an opportunity to express disagreement with or dissent from the verdict in open court.

          Appeal from Atchison District Court; Robert J. Bednar, judge.

          Rick Kittel, of Kansas Appellate Defender Office, for appellant.

          Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Bruns, P.J., Pierron and Powell, JJ.

          Pierron, J.

         The district court found Bryan Richard Harris guilty of possession of marijuana, second offense, after taking the matter under advisement following the bench trial. The court sentenced Harris to 24 months in the Kansas Department of Corrections. Harris timely appeals his conviction. We affirm.

         On November 7, 2015, Atchison police officers arrested Harris based on a failure to appear warrant. Prior to arriving at the jail, officers requested that the corrections officers (COs) have the restraint chair ready. When officers drove into the jail's sally port, Harris was noticeably agitated. Although he was not violent toward the officers, he kicked a window in the police cruiser and had to be forcibly removed from the backseat. Two COs ushered Harris into intake. Although he walked on his own. Harris continued to be uncooperative and demanded to be placed in ...


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