State v. Bunyard
Decision Date | 16 February 2018 |
Docket Number | No. 112,645,112,645 |
Citation | 410 P.3d 902 |
Parties | STATE of Kansas, Appellee, v. Josiah R. BUNYARD, Appellant. |
Court | Kansas Supreme Court |
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.
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.
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:
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.
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:
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.
To continue reading
Request your trial-
State v. Allen
...must make a knowing and intelligent waiver of the right to counsel. 422 U.S. at 835, 95 S.Ct. 2525 ; see also State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018) ; State v. Jones , 290 Kan. 373, 376, 228 P.3d 394 (2010) ; State v. Vann , 280 Kan. 782, 793, 127 P.3d 307 (2006). We exer......
-
State v. Burden
...States Constitution. Faretta v. California , 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ; see State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018). Because the right to represent oneself is "at odds with the right to be represented by counsel, the courts must indulge ev......
-
State v. Gonzalez
...(1969) (waiver of constitutional right must be intelligently and understandingly made and will not be inferred); State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018) (court will not presume defendant's acquiescence in loss of fundamental right). We, therefore, may consider the issue.Th......
-
State v. Couch
...relies on a defendant's lack of technical legal skill as its basis for prohibiting that individual from defending themselves. See Bunyard, 307 Kan. at 470-71; State Burden, 311 Kan. 859, 865, 467 P.3d 495 (2020). But as the State points out, the right to self-representation is not absolute.......