State v. Frye
Decision Date | 04 May 2012 |
Docket Number | No. 101,292.,101,292. |
Citation | 294 Kan. 364,277 P.3d 1091 |
Parties | STATE of Kansas, Appellee, v. Anthony R. FRYE, Appellant. |
Court | Kansas Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1.Ordinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review.But the Kansas Supreme Court has recognized certain exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, one of which is where consideration of the new theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights.
2.An appellate court does not have discretion to create equitable exceptions to jurisdictional requirements.Accordingly, the general preservation rule, which prevents the assertion of a new legal theory for the first time on appeal, is a prudential rule, rather than a jurisdictional requirement.
3.In a felony prosecution, a jury trial waiver will not be valid unless the court advises the defendant of his or her right to a trial by jury and the defendant personally waives his or her right in writing or in open court for the record.The presiding judge is burdened with assuring that a defendant's rights have been adequately protected.
4.The severity level 7 version of aggravated battery, defined in K.S.A. 21–3414(a)(1)(C), makes it unlawful to intentionally cause physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted.The crime does not require that the defendant intend to inflict great bodily harm, disfigurement, or death, but rather the defendant need only intend to commit the act of physical conduct.Whether defendant used a deadly weapon or a method of contact that could cause great bodily harm, disfigurement, or death is a factual question that is separate and apart from the question of defendant's intent.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Bethany C. Fields, deputy county attorney, argued the cause, and Kevin W. Martin, legal intern, Barry R. Wilkerson, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.
Anthony Frye was convicted of aggravated battery at a bench trial.He appealed to the Court of Appeals, claiming that (1)the district court failed to insure a valid waiver of Frye's right to a trial by jury; and (2) the evidence was insufficient to support Frye's conviction for severity level 7 aggravated battery.The Court of Appeals reversed on the jury trial issue and declined to decide the sufficiency of the evidence challenge.State v. Frye, No. 101,292, 2010 WL 744799(Kan.App.2010)(unpublished opinion).The Statepetitions for review, arguing that the Court of Appeals decision was erroneous because the jury trial issue was not properly preserved for appeal and, in the alternative, because the handwritten waiver Frye signed at trial was sufficient to establish a knowing and voluntary waiver of the right to a jury trial.The State also asks us to find that the evidence was sufficient to support the district court's guilty verdict.Finding that the Court of Appeals had jurisdiction to consider the validity of Frye's jury trial waiver; that the district court did not advise Frye of his right to a jury trial or effectively accept a jury trial waiver; and that the evidence was sufficient to support the district court's verdict of guilty of severity level 7 aggravated battery, we affirm the Court of Appeals and remand the case to the district court for a new trial.
The incident giving rise to Frye's charges occurred in the early morning hours of August 8, 2007, at a party hosted by Frye's neighbor.After arriving home about 2 a.m., Frye crashed his neighbor's party and spent the next 30 minutes or so drinking and talkingwith Jared Lund, who would become the victim in this case.
Frye began walking home, after being asked to leave because the party was winding down.En route home, he heard some of the partygoers talking about his strange behavior and heard James Stewart say, “We should have whooped his ass.”That comment prompted Frye to return to the party in an agitated state, with clenched fists and breathing heavily, where he had a heated exchange with Stewart.
Believing that he had developed a rapport with Frye, Lund stepped in to try to diffuse the situation.Frye testified that he felt crowded by Lund and some of the others, and he repeatedly asked them to back away.One of Lund's friends encouraged him to step away because he feared that Frye was about to hit Lund.When Lund looked back from addressing the friend, Frye struck him in the face with an elbow.The blow knocked out two of Lund's teeth and severely damaged two others—injuries that required extensive orthodontic work to repair.
Frye was initially charged with misdemeanor battery and, at a scheduling conference, Frye's attorney informed the court that he would prefer a bench trial.But the complaint was subsequently amended to charge a felony, and after a preliminary hearing on March 4, 2008, Frye was bound over for trial on a count of level 4 aggravated battery.At the arraignment 6 days later, Frye requested a “jury trial setting,” and the court set a pretrial conference for May 19, 2008.
The record is silent as to what happened in the case thereafter, until the district court conducted a bench trial on May 30, 2008.The only explanation as to why the case was tried to the bench is the prosecutor's statement, at the beginning of the bench trial, that defense counsel“and her client have signed a waiver of jury trial that was originally scheduled at this time,” and the prosecutor's later statement that he“thought this was going to be a jury trial until late yesterday afternoon.”The transcript does not reflect that the trial court advised Frye of his right to a jury trial or made any further inquiry into the purported waiver.Likewise, the record contains no defense objection to the bench trial.
At the conclusion of the bench trial, the court found that the State had failed to prove beyond a reasonable doubt that Frye intended to cause Lund great bodily harm, as required for the charge of severity level 4 aggravated battery.Instead, the court found that the evidence established that Frye was guilty of the lesser included offense of severity level 7 aggravated battery for having intentionally caused physical contact in a rude, insulting, or angry manner and in a manner whereby great bodily harm, disfigurement, or death could have been inflicted.
Notwithstanding that the issue was raised for the first time on appeal, the Court of Appeals considered Frye's challenge to his jury trial waiver because a resolution of the issue was “necessary to serve the ends of justice or to prevent a denial of fundamental rights.”Frye,2010 WL 744799, at *1.The panel reversed Frye's conviction and remanded the case, finding that the trial court had erred in failing to specifically advise Frye on the record of his right to jury trial before proceeding with the bench trial.2010 WL 744799, at *2.Specifically, the panel concluded that the trial court had not complied with the waiver requirements set forth in State v. Irving,216 Kan. 588, 589, 533 P.2d 1225(1975).The panel also concluded that its reversal rendered unnecessary any consideration of the sufficiency of the evidence issue.Frye,2010 WL 744799, at *2.This court granted the State's petition for review, which raised both the issue of the jury trial waiver and the sufficiency of the evidence issue.
As part of its challenge to the Court of Appeals holding on the jury trial waiver issue, the State contends that the panel should not have considered the issue because appellate courts lack jurisdiction to determine the validity of a jury trial waiver when the argument was not raised before the district court.The State suggests that this court's decision in State v. Luna,271 Kan. 573, 577, 24 P.3d 125(2001), prohibited the Court of Appeals' review of Frye's jury trial waiver.We disagree.
The State does not favor us with a standard of review for the preservation portion of its jury trial waiver argument.It simply contends, erroneously as will be discussed later, that the question of whether a defendant effectively waived jury trial is a question of fact, which would be reviewed for substantial competent evidence.To the contrary, the question of whether appellate courts lack jurisdiction to determine the validity of a jury trial waiver when the issue is raised for the first time on appeal is a question of law subject to our unlimited review.SeeState v. Denney,283 Kan. 781, 787, 156 P.3d 1275(2007)( ).
The Court of Appeals acknowledged that Frye,2010 WL 744799, at *1.In turn, the State acknowledges that the Court of Appeals cited to State v. Hawkins,285 Kan. 842, 176 P.3d 174(2008), for the proposition that there are exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, one of which is where “consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights.”Frye,2010 WL 744799, at 1.
The State responds to the Hawkins citation with an apparent non sequitur.The State's petition for review asserts that Frye's attorney is presumed to be competent because he was a member in good standing of the bar and that...
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...and determin[e] whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). We “do not reweigh the evidence or evaluate the credibility of the witnesses,” as this function is best left to the jury......
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