Issues not raised before the district court cannot be raised
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.
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.
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.
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.
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.
Analysis of the voluntariness of a waiver depends on the
particular facts and circumstances of the case.
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.
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.
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.
Whether an error is structural or harmless is a question of
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
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.
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.
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.
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.
from Atchison District Court; Robert J. Bednar, judge.
Kittel, of Kansas Appellate Defender Office, for appellant.
R. Kuckelman, county attorney, and Derek Schmidt, attorney
general, for appellee.
Bruns, P.J., Pierron and Powell, JJ.
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.
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 ...