State v. Bunyard

• Citation: 410 P.3d 902
• Decision Date: 16 February 2018
• Docket Number: No. 112,645,112,645
• Parties: STATE of Kansas, Appellee, v. Josiah R. BUNYARD, Appellant.
• Court: United States State Supreme Court of Kansas

410 P.3d 902

STATE of Kansas, Appellee,

v.Josiah R. BUNYARD, Appellant.

No. 112,645

Supreme Court of Kansas.

Opinion filed February 16, 2018.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant.

Matt 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.

The opinion of the court was delivered by Beier, J.:

Defendant Josiah R. Bunyard appeals his convictions for battery, aggravated battery, attempted violation of a protective order, and intimidation of a witness.

During 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.

Before 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).

Bunyard 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.

FACTUAL AND PROCEDURAL BACKGROUND

To 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.

At the 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.

Multiple 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 Confrontation Clause.

During 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 been located?

"[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."

When 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, either.

"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."

The 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 unequivocally.

"THE COURT: Mr. Bunyard, for the time being, I'm not going to take up an oral motion made at this time. I'm going to give you an opportunity to speak further with Mr. Sevart. I'm also going to give you an opportunity, if you decide to pursue that route, to file a proper motion to the Court. But we're not going to address that at this time.

"THE DEFENDANT: How will I get that to—

"THE COURT: Mr. Bunyard, that's all there is to say on that issue.

"THE DEFENDANT: How will I get it to the Court? How do I tell them that?

"THE COURT: Mr. Bunyard, you seem quite familiar with the procedures in filing pro se motions, so I'm not going to dictate to you how to represent yourself or proceed in that fashion if you want to.

"THE DEFENDANT: The Court is—there's no mail going out for the weekend. There's no way I can get it there.

"THE COURT: Mr. Bunyard, we're not addressing this matter further.

"SHERIFF'S DEPUTY: Do you want him removed, sir?

"THE COURT: We'll—we'll proceed."

The judge then ruled that Wood was unavailable and that the transcript of her preliminary hearing testimony could be introduced by the State at trial. He then concluded the motions hearing.

When Bunyard's trial began on Monday, before jury selection began, the district judge and parties addressed several outstanding issues.

"THE COURT: Thank you. We're here this morning on the day of trial. We have spent the morning in some conversations in chambers and with defense counsel and the prosecuting attorney dealing with several outstanding issues trying to reach a resolution on some of them, addressing some last-minute matters. At this point, we're going to place on the record several things and address several outstanding matters.

"To recap, on Friday, February 21st, we appeared and, to clarify and confirm with counsel, at that time as to the [S]tate's motion to determine witness availability I did find that as to witness Jennifer Wood that reasonable diligence had been shown by the [S]tate and, therefore, the preliminary hearing transcript of Ms. Wood could be used at trial.

"I ruled as to the consolidation of these two cases that resulting from two or more acts or transactions connected together, or constituting parts of a common scheme or plan, that these cases would be consolidated.

"The Motion to Suppress ... filed by Mr. Sevart was withdrawn as the [S]tate indicated they did not intend to use any evidence taken from the defendant's home at trial.

"There were three

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