State v. Johnson

• Decision Date: 10 March 2017
• Docket Number: No. 113,228,113,228
• Citation: 53 Kan.App.2d 734,391 P.3d 711
• Parties: STATE of Kansas, Appellee, v. Daquantrius S. JOHNSON, Appellant.
• Court: Kansas Court of Appeals

53 Kan.App.2d 734

391 P.3d 711

STATE of Kansas, Appellee,

v.Daquantrius S. JOHNSON, Appellant.

No. 113,228

Court of Appeals of Kansas.

March 10, 2017

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Buser and Leben, JJ.

Hill, J.:

We reverse Daquantrius S. Johnson's firearm convictions because the trial judge fell asleep during his trial. We see no option other than granting Johnson a new trial for such an error.

The State charged Johnson with criminal possession of a firearm by a convicted felon, aggravated assault, and criminal discharge of a firearm. After his conviction, the court imposed a 43–month sentence, 12 months' postrelease supervision, and lifetime registration. In this direct appeal, Johnson raises 10 issues, but we focus on the first. Basically, we must answer the question: What are the legal consequences of a judge falling asleep on the bench during a criminal trial? After that, we will address two other issues that may have an impact on a new trial.

On the morning of the second day of the trial, one of the jurors pulled the bailiff aside because the juror had observed the trial judge sleeping during the trial the day before. The juror asked the bailiff whether Johnson could have a fair trial. This remark was passed on to the judge. The trial judge acknowledged on the record that he "did nod off some." Addressing this issue, the judge told the jury:

"You are the trier of facts. I decide what evidence you will hear and what instructions you will receive. I don't believe during the course of this trial yesterday afternoon there were any objections raised that I had to make rulings on that would have been affected by my nodding off."

The judge asked whether Johnson wanted to make a motion for a mistrial based on the conduct. Defense counsel stated, "Not at this time. We're ready to proceed." The afternoon session included opening statements and part of the victim's testimony.

Johnson contends on appeal that a sleeping judge is an absent judge, and structural error occurs when a judge fails to preside over a jury trial. Johnson does acknowledge that he did not object to the trial judge's "nodding off" but now contends that he may raise the issue for the first time on appeal to prevent the denial of his fundamental right to a jury trial.

For its part, the State argues that we should not consider this issue for the first time on appeal. If we do address the issue, the State contends it is invited error; and if we cannot agree that it is invited error, then we must reject the argument because Johnson has failed to show any prejudice to his case.

We address this issue because Johnson's newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. See State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). But, more importantly, there is no more fundamental right in the United States than the right to a jury trial. State v. Bowers , 42 Kan.App.2d 739, 740, 216 P.3d 715 (2009). This is an issue that cannot be ignored. We now look to the question of invited error.

After the judge admitted to sleeping during the trial, Johnson's counsel declined the court's invitation to move for a mistrial. On appeal, Johnson contends the invited error doctrine is inapplicable because the error was structural in nature. The State argues to the contrary.

It is fundamental that a litigant may not invite error and then complain of that error on appeal. State v. Verser , 299 Kan. 776, 784, 326 P.3d 1046 (2014). This long-standing rule supports the common-sense notion that parties cannot complain about their own conduct at trial or about rulings they asked a trial judge to make. State v. Hargrove , 48 Kan.App.2d 522, 531, 293 P.3d 787 (2013).

This doctrine also binds trial counsel to strategic decisions and deters parties from asking a judge to act in a certain way just to litter the record with error in order to provide grounds for appeal of an adverse judgment. Hargrove , 48 Kan.App.2d at 532, 293 P.3d 787. Indeed, the Hargrove court held that an invited jury instruction error cannot be asserted as error on appeal when the instruction was proposed for a tactical advantage. 48 Kan.App.2d at 547, 293 P.3d 787. In Verser , our Supreme Court applied the invited error doctrine when a judge gave the defendant the option of having a mistrial declared, and instead the defendant chose to proceed with the trial. 299 Kan. at 784, 326 P.3d 1046.

But there are limits to the doctrine's application. The invited error doctrine is inapplicable when a constitutional error is structural. Structural errors are so intrinsically harmful that automatic reversal is required without regard to existence of effect on outcome. State v. Hill , 271 Kan. 929, 934, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles , 284 Kan. 239, 252–53, 160 P.3d 794 (2007).

Interestingly, few constitutional errors are structural errors. The short list of structural errors includes:

• total deprivation of counsel;

• lack of an impartial trial judge;

• denial of right to self-representation at trial;

• violation of a right to a public trial; and

• erroneous reasonable doubt instruction. See United States v. Marcus , 560 U.S. 258, 263, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010).

We note that these errors cannot be cured by anything other than a new trial.

Simply put, the issue at the heart of this case is whether the fact that the judge slept during a portion of a criminal trial constitutes structural error. If so, Johnson's convictions must be reversed. We hold that the judge sleeping during a criminal trial is a structural error.

Errors are structural when they defy harmless-error analysis because they affect the framework within which the trial proceeds. Two recent Kansas cases come to mind. In State v. Jones , 290 Kan. 373, Syl. ¶ 7, 228 P.3d 394 (2010), the court held a violation of the Sixth Amendment right to counsel was subject to structural error analysis. Then in State v. Womelsdorf , 47 Kan.App.2d 307, 323, 274 P.3d 662 (2012), the court ruled that the lack of an impartial judge is a structural error. If we cast our research net outside the state, more illumination is produced.

In Arizona v. Fulminante , 499 U.S. 279, 309–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Court distinguished mere trial errors—e.g. , the admission of an involuntary confession—from structural errors—e.g. , the total deprivation of the right to counsel at trial and an impartial judge. Trial errors are errors which occur when evidence is presented and may be assessed in the context of other evidence presented to determine whether the error prejudiced the defendant. 499 U.S. at 307–08, 111 S.Ct. 1246. Structural errors differ because they are

"structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial." 499 U.S. at 309–10, 111 S.Ct. 1246.

The Court listed other structural errors:

• unlawful exclusion of members of the defendant's race from a grand jury;

• the right to self-representation at trial; and

• the right to a public trial. 499 U.S. at 310, 111 S.Ct. 1246.

"Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ " 499 U.S. at 310, 111 S.Ct. 1246.

In Gomez v. United States , 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the United States Supreme Court held that it was structural error for a magistrate, rather than a statutorily authorized judge, to conduct jury selection.

"Among those basic fair trial rights that ‘ "can never be treated as harmless" ’ is a defendant's ‘right to an impartial adjudicator, be it judge or jury.’ [Citations omitted.] Equally basic is a defendant's right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside." 490 U.S. at 876, 109 S.Ct. 2237.

As early as 1899, the United States Supreme Court, explaining the unique role of the trial judge, held that a trial by jury is a trial

"in the presence and under the superintendence of a judge empowered to instruct [the jury] on the law and to advise them on the facts, and ... to set aside their verdict, if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion." (Emphasis added.) Capital Traction Co. v. Hof , 174 U.S. 1, 13–14, 19 S.Ct. 580, 43 L.Ed. 873 (1899).

How can a sleeping judge supervise anything other than his or her dreams? Is the trial really "in the presence" of a sleeping judge? Obviously, this issue defies harmless error analysis.

Some Kansas cases are relevant. In an early Kansas Supreme Court case, State v. Beuerman , 59 Kan. 586, 53 P. 874 (1898), during argument, the presiding judge of a jury trial left the bench, went into an adjoining room, closed the door behind him, and remained there for about 10 minutes. The Supreme Court admonished that a judge cannot relinquish control of the trial:

"[T]here can be no court without a judge, and he cannot even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in order that he may intelligently review the proceedings upon the motion for a new trial. It is especially

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