State v. Harrison

Decision Date17 July 2020
Docket NumberNo. 116,670,116,670
Citation467 P.3d 477
Parties STATE of Kansas, Appellee, v. John Christopher HARRISON, Appellant.
CourtKansas Supreme Court

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

John Christopher Harrison claims the district court committed reversible error when it responded to a jury question by having court staff deliver a written note to the jury room rather than convening in open court and answering the question in his presence. A Court of Appeals panel held the note passing was harmless constitutional error and upheld the convictions. State v. Harrison , No. 116,670, 2018 WL 911221, at *10-11 (Kan. App. 2018) (unpublished opinion). On review, we hold there was no error, although we acknowledge our caselaw deserves updating in light of statutory changes expressly authorizing this practice. See K.S.A. 2019 Supp. 22-3420(d) ("The court shall respond to all questions from a deliberating jury in open court or in writing ." [Emphasis added.] ). We affirm the panel's judgment as right for the wrong reason and affirm Harrison's convictions. See State v. Williams , 311 Kan. 88, 91, 456 P.3d 540 (2020) (affirming judgment as right for the wrong reason).


The State charged Harrison with various felony and misdemeanor crimes resulting from a traffic stop and physical encounter with police. He pled not guilty and went to trial. During its deliberations, the jury sent a written question to the court asking for definitions of the terms "battery" and "bodily harm." The record indicates the district court discussed the question with Harrison, his counsel, and the State all present. They agreed to respond: "The instructions you have been provided [are] the law you must apply in this case. No further instructions will be provided." That response was put in writing.

The State suggested the court ask if Harrison wanted to be present when the response was given. He indicated he did. But the court said it was too late for that because the written response had been delivered to the jury room. To be specific, the record reflects:

"THE COURT: ... [The] State is present through its counsel; Mr. Harrison is present with his counsel. We have received [a] question from the jury. The question is, quote, ‘May we have the definition of battery and bodily harm?’ We have had an off-the-record discussion. I think that we are in agreement that at this point we will not attempt to define those terms further.
"THE COURT: ... My answer is going to be the following, quote, ‘The instructions you have been provided is the law you must apply in this case. No further instructions will be provided.’
"[THE PROSECUTOR]: Judge, since we are here, and there has been a whole string of appellate defender cases where they wish the jury to be present with the Defendant while the answer is read back to them in open court, I think if we could ask defense counsel if they would like that, or if they would waive that, which would save us some time.
"(Counsel confers with the Defendant.)
"[COUNSEL]: Judge, after talking with Mr. Harrison, he would like to be present as the answer is read to the jury.
"THE COURT: Okay. Well, that will not happen, the answer has already been sent back, but I will do that for future responses. To me, it is a complete nonissue. All I would have done was read word-for-word what I wrote on the piece of paper. So if the Court of Appeals has said that, I think that is somewhat of a silly ruling, with all due respect to them. But if the Defendant will insist on that in the future, then I will do so."

Without additional inquiry, the jury convicted Harrison of two counts of battery against a law enforcement officer, interference with law enforcement, driving while suspended, transporting an open container, and failure to use a seat belt. He appealed, raising four claims of trial error, including this note-passing challenge. As to that, a Court of Appeals panel held the district court violated Harrison's constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing, rather than giving the answer in open court with Harrison present. Nevertheless, it found the error harmless. Harrison , 2018 WL 911221, at *10. It affirmed his convictions after rejecting the other issues. 2018 WL 911221, at *11.

Both sides asked us to review the panel's decision. Harrison claimed the panel erred by rejecting all four of his asserted trial errors. The State argued the panel was wrong in ruling the note passing violated Harrison's constitutional rights, even if it was harmless. We limited our review to the district court's failure to have Harrison present when the jury received the answer. Harrison does not challenge what the court said in its response.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).


We consider first the State's argument that the district court complied with both statutory and constitutional requirements—even though Harrison wanted the court to deliver its reply in open court in his presence. And since we agree with the State on that, it is unnecessary to review the panel's harmless error analysis.

Standard of review

Statutory interpretation of the two relevant statutes, K.S.A. 2019 Supp. 22-3420(d) and K.S.A. 2019 Supp. 22-3405(a), is reviewed de novo. See Breedlove v. State , 310 Kan. 56, 62, 445 P.3d 1101 (2019). The constitutional claims are questions of law subject to de novo review as well. State v. Bowen , 299 Kan. 339, 354, 323 P.3d 853 (2014) ; see also State v. Lowery , 308 Kan. 1183, 1212, 427 P.3d 865 (2018) (" ‘Appellate arguments on a defendant's right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review.’ ").

Harrison's statutory right claim

The State points out the Legislature changed the applicable statute in 2014, which was before Harrison committed his crimes in 2015 and was tried in 2016. See L. 2014, ch. 102, § 7. Since 2014 that revision allows judges to answer jury questions "in open court or in writing." (Emphasis added.) K.S.A. 2019 Supp. 22-3420(d). Inexplicably, Harrison structures his arguments almost entirely around the pre-2014 law. That statute provided, when it was in effect:

"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant , unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney." (Emphasis added.) K.S.A. 22-3420(3) (Torrence 2007).

But since 2014, the statute reads:

"The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating jury in open court or in writing . In its discretion, the court may grant a jury's request to rehear testimony. The defendant must be present during any response if given in open court, unless such presence is waived .
Written questions from the jury, the court's response and any objections thereto shall be made a part of the record." (Emphases added.) K.S.A. 2019 Supp. 22-3420(d).

See L. 2014, ch. 102, § 7.

A comparison of the two statutes illustrates the unavoidable conclusion for Harrison. Under the prior version, when the jury had a question about the law or evidence during its deliberations, the statute provided that it could request going into open court, "where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant ...." K.S.A. 22-3420(3) (Torrence 2007). Nothing was said about written responses delivered to the jury room.

Now, by adding "or in writing" and using the disjunctive, the 2014 statutory change expressly gives a district court the option to respond to jury questions "in open court or in writing." (Emphasis added.) L. 2014, ch. 102, § 7. And the command that defendant be present "during any response if given in open court," juxtaposed against the statutory silence for the written option, excludes any statutory requirement for defendant's presence when the court responds in writing if not done in open court. See Patterson v. Cowley County , 307 Kan. 616, 626, 413 P.3d 432 (2018) (citing statutory interpretation principle that "the inclusion of one thing implies the exclusion of another"). Since this revision occurred before Harrison's crimes and his trial, it is plainly applicable to his case. See K.S.A. 22-2102 (providing K.S.A. chapter 22 applies to all Kansas criminal prosecutions).

More relevant to Harrison's statutory claim is K.S.A. 2019 Supp. 22-3405(a), which provides: "The defendant in a felony case shall be present ... at every stage of the trial including the impaneling of the jury and the return of the verdict ... except as otherwise provided by law." (Emphasis added.) Harrison claims the note-passing moment in the jury room was a "stage of the trial" requiring his...

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