BY THE COURT
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).
Judicial comment error is reviewable on appeal despite the
lack of a contemporaneous objection at trial.
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.
district court does not err when it tells a jury to follow
of the judgment of the Court of Appeals in an unpublished
opinion filed February 9, 2018.
from Stevens District Court; Clint B. Peterson, judge.
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
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.
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
and Procedural Background
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.
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.
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
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.
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.
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