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State v. Boothby

Supreme Court of Kansas

September 6, 2019

State of Kansas, Appellee,
v.
Christopher Boothby, Appellant.

         SYLLABUS BY THE COURT

         1. An erroneous judicial comment made in front of the jury that is not a jury instruction or legal ruling will, from now on, be reviewed as "judicial comment error" under the constitutional harmlessness test from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Thus, the State, as the party benefitting from judicial comment error, has the burden to prove beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., prove "there is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011).

         2. Judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial.

         3. The jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," is legally correct and does not prevent a jury from exercising its power of nullification.

         4. A district court does not err when it tells a jury to follow the law.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 9, 2018.

          Appeal from Stevens District Court; Clint B. Peterson, judge.

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

          Natalie A. Chalmers, assistant solicitor general, argued the cause, and Paul F. Kitzke, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

          OPINION

          Stegall, J.

         A Stevens County jury convicted Christopher Boothby of aggravated assault and criminal threat for pointing a gun at his cousin, Jason Burnett, and threatening to come back when Jason was alone. On appeal, Boothby argues the district court judge committed judicial misconduct when he commented during voir dire about a former case in which Boothby was charged with aggravated battery.

         Today, we hold that an erroneous judicial comment made in front of the jury that is not a jury instruction or legal ruling will be reviewed as "judicial comment error" under the Chapman constitutional harmlessness test. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). That means the State, as the party benefitting from judicial comment error, has the burden to "prove[] beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., prove[] there is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). We hold the State met this burden and affirm.

         Factual and Procedural Background

         In October 2014, Eugena (Gena) Burnett and her husband, Jason Burnett, lived with their three children in Hugoton. One day when Gena was home alone with the children, Boothby entered the house and started screaming for Jason. Boothby had let himself in through the front door, which was unlocked. Startled, Gena and the children ran to the living room to see what was happening. Boothby hollered, "Where's Jason at?" Gena said that Jason was at work. Then Boothby walked out and slammed the door.

         Gena and Jason had known Boothby since childhood. But, as Gena later testified, the couple's relationship with Boothby had recently "deteriorated." Gena recalled that when Boothby entered her house that day, "He didn't seem like himself. He was just really angry and screaming as loud as he could. It startled my kids. Just kind of had a wild look about him." Boothby's behavior scared Gena, and she immediately called Jason to warn him that Boothby was headed toward his work.

         Jason owned a diesel mechanic shop a mile east of Hugoton. When Gena called, Jason was driving back to Hugoton, and an employee was riding with him. They passed Boothby on the highway and decided to wait in town, hoping Boothby would leave the shop. After about 15 minutes, they returned to the shop and found Boothby's truck parked outside. Boothby was alone.

         Jason pulled his truck up next to Boothby's, so the driver side windows faced each other. Jason rolled down his window and asked, "What's going on?" Boothby said nothing, pulled his truck forward, and stopped again. Then Jason left his employee in the truck and walked up to Boothby's driver side window. Jason saw a silver revolver in Boothby's lap and said, "What the fuck are you doing with a gun out here, Chris?" Boothby replied that Jason "knew what this is all about." Jason tried to grab the gun twice, but Boothby pulled it away. During this scuffle, Boothby pointed the gun at Jason.

         The key dispute at trial was whether Boothby knowingly or accidentally pointed the gun at Jason. Jason testified that he reached into Boothby's truck to grab the gun, but Boothby pulled it away. At that point, Boothby pointed the gun at Jason. As Jason explained, Boothby "never picked [the gun] up and pointed it out the window." Instead, Boothby kept the gun in his lap and tilted it toward Jason's face. Jason was scared and tried to grab the gun again, to no avail.

         The scuffle ended when Boothby said, "I'll be back when you are alone," and drove away. After this, Jason was afraid to be alone with Boothby. On cross-examination, Jason admitted that it was normal to see Boothby with a gun-they had even shot guns with their sons at Jason's shop ...


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