State v. Johnson

453 P.3d 281

STATE of Kansas, Appellee,

v.Daquantrius S. JOHNSON, Appellant.

No. 113,228

Supreme Court of Kansas.

Opinion filed November 27, 2019.

Samuel Schirer, of Kansas Appellate Defender Office, 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 briefs for appellee.

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

Daquantrius Johnson was charged with criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm in Sedgwick County District Court. A jury convicted Johnson of all three counts, and the court imposed a 43-month sentence, 12 months' postrelease supervision, and lifetime registration under K.S.A. 2013 Supp. 22-4905(b)(2). The Court of Appeals reversed Johnson's convictions and remanded for a new trial, holding that the trial judge "nodding off" on the first day of trial was structural error. The lower court also held that the district court did not have to obtain a limited jury trial waiver before accepting Johnson's stipulation to an element of the possession charge. We reverse both of the Court of Appeals' holdings and remand to that court for further consideration of all issues raised by Johnson's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Voir dire lasted most of the first day of Johnson's trial. The jury was seated at 3:15 in the afternoon, at which point the court took a recess to discuss preliminary instructions with counsel. During that recess, the parties and the court agreed that Johnson wanted to make an evidentiary stipulation and the court would inform the jury that Johnson had been adjudicated as a juvenile offender for an act that, if done by an adult, would constitute a felony. The court did not take a jury trial waiver from Johnson.

The court reconvened the jury at 3:30 and gave the jury its preliminary instructions. Included was the following:

"[THE COURT:] As to element two, ladies and gentlemen, the parties have prepared a stipulation. A stipulation is simply an agreement among the parties that a certain fact is true and no other evidence needs to be given to prove it. The stipulation reads as follows: Comes now on this 27th day of October, 2014, the Defendant, Daquantrius S. Johnson, personally and by and through his attorney, Terry Beall, stipulate for the purposes of admission into evidence at the jury trial in the above-captioned case as follows: That the Defendant, Daquantrius Johnson, was adjudicated a juvenile offender for an act which, if done by an adult, would constitute the commission of a felony in Sedgwick County District Court on July 2, 2012. He was not found to have been in possession of a firearm at the time of the prior crime and has not had the prior adjudication expunged or been pardoned for such crime. This adjudication prohibited him from owning and possessing a firearm on October 14, 2013. It's signed by the defendant, Mr. Johnson, by his attorney, Mr. Beall, and by Mr. Roush on behalf of the State."

Following this, both parties presented brief opening statements and the State began its case-in-chief by calling the victim, Randall Gifford, as its first witness. While examining Gifford, the State offered five exhibits into evidence—the trial judge admitted all the exhibits into evidence. Next, defense counsel cross-examined Gifford, drawing one relevance objection from the State. The court promptly sustained the State's objection. After this, the court recessed for the day.

The trial resumed the next day, and began with this announcement from the court:

"THE COURT: Good morning.

"THE JURY: Good morning.

"THE COURT: Ladies and gentlemen, I believe we're ready to get underway on this matter. Before we do that, though, there's something that I want to bring out and discuss, and that is earlier this morning one of the jury members pulled Christine aside and made the observation that during the course of the proceeding in the trial yesterday afternoon I may have been sleeping or nodding off, and the question was raised whether or not Mr. Johnson then could have a fair trial. Christine, I think, explained to the juror that raised that issue that you are the trier of facts and at the conclusion of the case you are the ones that decide all the factual issues and reach a determination as to whether or not Mr. Johnson is guilty or not guilty and whether or not the case has been proven, and that is a correct assessment of the matter.

"As I mentioned to you yesterday in my very preliminary instructions, the role of the judge and the jury are different. 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. I acknowledge myself, ladies and gentlemen, that I did nod off some. I doubt that I'm the first judge in America that's ever done that.

"And I want to also just observe the fact that I think I mentioned to you actually I graduated from law school in December of 1971, almost 43 years ago. I've probably been involved in as many as 300 jury trials, and over the course of my career I've learned and have gained a great deal of respect for our jury system. I recognize fully that many people—as I indicated in our informal discussions yesterday morning, many people when they get a jury summons the first reaction is, golly, why do I have to do this, and yet at the same time in my 43 years of experience most jurors I find are very conscientious about their role and their responsibility. They take their job seriously. And, quite honestly, I'm glad that this matter was brought out in the open so that it can be dealt with.

"In that regard, the defendant, of course, is the one who's affected and is the one who is entitled to have a fair trial. Obviously the State is entitled to have a fair trial also. It is a constitutional right for the defendant to be given a fair trial. So the question is whether or not the defendant now wants to make a motion for a mistrial based on this conduct. So, Mr. Beall, is it your wish to request a mistrial?

"MR. BEALL: Not at this time. We're ready to proceed.

"THE COURT: Very well. With that then we'll proceed on. Mr. Roush, you may call your next witness.

"MS. HART: Your Honor, the State calls Kayla Wilson.

"THE COURT: And I'll try to do better."

The trial continued and the jury ultimately found Johnson guilty of all three crimes as charged. The court imposed a 43-month sentence, 12 months' postrelease supervision, and lifetime registration under K.S.A. 2013 Supp. 22-4905(b)(2). On appeal, Johnson raised many issues, most of which are not before us. Because the panel reversed Johnson's conviction after holding that the trial judge had committed structural error, it did not address all of Johnson's remaining claims on appeal. The panel did, however, address whether a valid jury trial waiver must accompany Johnson's stipulation to an element of one of the charged crimes, holding that such a waiver was unnecessary. See State v. Johnson , 53 Kan. App. 2d 734, 735-37, 742-45, 391 P.3d 711 (2017). These are the only two issues before us and we take them up in turn.

ANALYSIS

Structural Error

It is unclear whether Johnson or his counsel observed the trial judge nodding off during the afternoon of the first day of trial. But when the trial judge addressed the matter the next day, Johnson did not object to continuing with the trial or move for a mistrial when given the opportunity. Ordinarily, this lack of an objection could preclude our review of the issue. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014) (an argument ordinarily cannot be raised for the first time on appeal). The State has not made a preservation argument, however, and the Court of Appeals decided to consider the issue for the first time on appeal. Given that we review intermediate appellate court decisions to consider issues for the first time on appeal for an abuse of discretion, and given the State does not claim the Court of Appeals abused its discretion by reaching this issue, we will not disturb the lower court's implicit preservation holding. See State v. Parry , 305 Kan. 1189, 1192, 390 P.3d 879 (2017) (explaining that "preservation is a prudential rule, rather than a jurisdiction bar" and thus reviewing a Court of Appeals decision to reach or not reach an unpreserved issue for abuse of discretion).

When considering the merits, the Court of Appeals found no caselaw directly on point. In lieu of such precedent, a majority of the panel drew an analogy between the "nodding off" judge in Johnson's trial and a judge who is physically absent from the trial for some period of time. See Johnson , 53 Kan. App. 2d at 736-42, 391 P.3d 711. Because many instances of a physically absent judge have resulted in a finding of structural error, the majority ruled that "a sleeping judge does not and cannot preside over a trial" and cannot "supervise anything other than his or her dreams." 53 Kan. App. 2d at 738-39, 391 P.3d 711. Thus, the court ruled that "[o]bviously, this issue defies harmless error analysis." 53 Kan. App. 2d at 738, 391 P.3d 711. Judge Buser disagreed, however, stating that "[a] new structural error standard applied in these situations would be without precedent, unnecessary, and prone to abuse by defense counsel." 53 Kan. App. 2d at 757, 391 P.3d 711 (Buser, J., dissenting).

Before us, Johnson reprises these arguments and maintains that the district court judge was not consciously present while nodding off. Therefore the absent judge rubric ought to apply—justifying a finding of structural error here. The State has never contested the finding of error or judicial misconduct. But at the Court of Appeals, the State argued that before judicial misconduct merits...