State v. Bolze-Sann ( 2015 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 105,297
STATE OF KANSAS,
Appellee,
v.
MICHELLE BOLZE-SANN,
Appellant.
SYLLABUS BY THE COURT
1.
Failure to comply with the time limitation for filing a motion to dismiss as
specified in K.S.A. 22-3208(4) constitutes a waiver of the issues and precludes review on
appeal.
2.
To act recklessly, a defendant must know that he or she is putting others in
imminent danger but need not foresee the particular injury that results from his or her
conduct.
3.
If a defendant exposes an infant to a known risk that injury could result if the
infant naps on an adult bed, the risk exists throughout the period the child naps and is
imminent.
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4.
Where a single offense may be committed in more than one way, there must be
jury unanimity as to guilt for the single crime charged. Unanimity is not required,
however, as to the means by which the crime was committed so long as substantial
evidence supports each alternative means.
5.
While the district court has a duty to instruct the jury on the law that applies in a
particular case, a district court does not have to provide the jury a definition for widely
used words or those readily comprehensible by individuals of common intelligence. In
general, jurors are expected to decipher many difficult phrases without receiving specific
definitions. A district court should only define additional terms if the instructions as a
whole would otherwise mislead the jury or cause it to speculate.
6.
Under the facts of this case, the district judge did not err in refusing to instruct the
jury that K.A.R. 28-4-116(b)(2)(A) (2009) is not intended to protect infants from
suffocation.
7.
Under K.S.A. 22-3420 before it was amended in 2014, it was error for a district
court to discuss and answer outside the defendant's presence a question received from the
jury during its deliberations. The error may be harmless, however.
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8.
If a district court discusses or answers a question asked by a jury during its
deliberations without the defendant being present, several factors help determine whether
any error is harmless: (1) the overall strength of the case against the defendant; (2)
whether either party objected to the manner in which the judge handled the
communication; (3) whether the judge's communication with the jury concerned a critical
aspect of the trial or rather involved an innocuous and insignificant matter, and also how
the communication was conveyed to the jury; and (4) the ability of any posttrial remedy
to mitigate the error.
9.
Pressing a point without pertinent authority is akin to failing to brief an issue,
which results in a party waiving or abandoning the argument.
10.
Failing to raise a jury polling issue before the district court, either
contemporaneously or in a posttrial motion, precludes appellate review.
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 27, 2012.
Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed June 19, 2015. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.
Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
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The opinion of the court was delivered by
LUCKERT, J.: In this tragic case, an infant died from respiratory failure after
becoming trapped between the mattress and footboard of an adult bed at his daycare
provider's home. The State filed criminal charges, and a jury convicted daycare provider
Michelle Bolze-Sann of involuntary manslaughter and aggravated endangering a child.
Bolze-Sann appealed and before us raises seven issues. Three of her issues relate to the
sufficiency of the evidence relevant to proving whether she acted recklessly, which is an
element inherent in both crimes as charged. Two other issues relate to alleged errors in
instructing the jury: One of these issues relates to the meaning of recklessness and the
other to the impact of a daycare licensing regulation on Bolze-Sann's guilt or innocence.
Her other two issues raise procedural errors in the conduct of the trial, specifically in the
manner of answering a question from the jury and of accepting the jury's verdict.
A panel of the Court of Appeals first considered these issues. The panel affirmed
Bolze-Sann's convictions, finding some issues had not been preserved, others lacked
merit, and one constituted error—i.e., the district court failed to assure that Bolze-Sann
was present when the court and counsel prepared a response to a question asked by the
jury during deliberations. The panel held that error was harmless. State v. Bolze-Sann,
No. 105,297, 2012 WL 3135701 (Kan. App. 2012) (unpublished opinion). Bolze-Sann
requested this court's review on some, but not all, of the issues the Court of Appeals
considered. We granted her petition for review and now affirm Bolze-Sann's convictions.
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FACTS AND PROCEDURAL BACKGROUND
Bolze-Sann operated a licensed daycare facility in her home. Zachary Typer, the
victim in this case, began attending her facility in February 2007. At the time of Typer's
death on July 2, 2007, he was almost 6 months old. That day, Bolze-Sann placed Typer
on an adult bed to nap even though her licensed daycare was subject to regulations
promulgated by the Kansas Department of Health and Environment, including K.A.R.
28-4-116(b)(2)(A) (2009). At the time of Typer's death, that regulation provided:
"Napping facilities . . . shall be provided as follows: A crib or playpen with slats not
more than 2 3/8 inches apart or equipped with bumpers shall be used for each child under
18 months."
Typer's parents testified at trial that they had instructed Bolze-Sann to put Typer in
a crib or playpen for his naps and that Bolze-Sann had confirmed she would. Typer's
parents also testified that on several occasions they discovered Typer in an adult bed, but
Bolze-Sann had always assured them Typer was on the bed for a reason other than
napping (such as diaper changing). Typer's mother testified that in June 2007 she
specifically reiterated to Bolze-Sann that Typer was to nap in a crib or playpen, and she
further testified that she told Bolze-Sann about Typer's rapidly increasing mobility, which
would make it particularly unsafe for him to be on an adult bed even for a short period of
time. Typer's mother testified that Bolze-Sann had again assured her she would never
place an infant in an adult bed for naps.
But some time during the morning on July 2, 2007—according to trial testimony,
between 10:30 and 11:30 a.m.—Bolze-Sann placed Typer down for a nap on a queen-
sized bed in the bedroom of her teenage daughter. She arranged a ring of pillows and
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blankets around Typer. She checked on Typer around 12:30 p.m. and noticed he had
moved within the ring of pillows; she moved Typer back to the center of the ring. Trial
testimony from police officers indicated that Bolze-Sann at some point claimed to have
checked on Typer at least one more time. Bolze-Sann later experienced a migraine
headache, and she took a muscle relaxer and rested on the couch. Her daughter came
home and heard Typer crying, but Bolze-Sann said not to get him because she had just
laid him down for a nap.
Bolze-Sann's daughter eventually went to her bedroom to take a nap, but she never
saw Typer and assumed he was sleeping in a different room. About an hour later, Bolze-
Sann discovered Typer wedged between the mattress and footboard of the queen-sized
bed. He was unresponsive. Bolze-Sann directed her daughter to call 911 and began
performing CPR. Emergency responders could not detect any cardiac activity or signs of
blood circulation on their arrival. Typer was pronounced dead a short time later. An
autopsy revealed respiratory failure, secondary to positional asphyxia (i.e., his respiratory
passages were obstructed), which resulted in suffocation and caused his death.
ANALYSIS
Three of Bolze-Sann's appellate issues allege that the State failed to present
sufficient evidence. In each, she focuses on an alleged failure of the State to prove that
her conduct was reckless. She essentially makes the same factual argument regarding the
meaning of recklessness in each of the three issues, but she recasts the basis for her
arguments by phrasing them in terms of the State's failure to present sufficient evidence
of: (1) probable cause at her preliminary hearing; (2) the elements at trial; and (3) each
of the alternative means of involuntary manslaughter presented to the jury—i.e., an
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unintentional killing done recklessly or an unintentional killing done in the commission
of aggravated endangering a child. See K.S.A. 21-3404(b) (defining involuntary
manslaughter); K.S.A. 21-3608a(a)(2) (defining aggravated endangering a child). Under
any theory, Bolze-Sann's arguments fail.
ISSUE 1: The district court properly denied Bolze-Sann's pretrial motion to dismiss.
We first address her argument that the district court erred in denying her pretrial
motion to dismiss. In the motion, she argued the evidence at her preliminary examination
was insufficient, as a matter of law, to establish probable cause that she had committed
the crimes of aggravated endangering a child or involuntary manslaughter. See K.S.A.
22-2902 (defining State's burden of establishing probable cause during preliminary
examination). The district court denied the motion. On appeal, the State asserts Bolze-
Sann filed her motion to dismiss outside the statutory time limit for such motions. The
State's argument determines this issue.
K.S.A. 22-3208(4) defines the time limits for filing a motion to dismiss. At the
time of Bolze-Sann's motion, the statute required a defendant to seek dismissal no later
than "20 days after the plea is entered." See L. 2010, ch. 135, sec. 18 (extending the time
period from 20 days to 21). The failure to comply with this time limitation "constitutes a
waiver and precludes review on appeal." State v. McClain, 258 Kan. 176, 185, 899 P.2d
993 (1995); see also State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980); State v.
Smith, 215 Kan. 34, 37, 523 P.2d 691 (1974).
Here, Bolze-Sann filed her motion to dismiss more than 100 days after she entered
her plea. Accordingly, under the plain language of K.S.A. 22-3208(4), her motion was
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untimely, and she has waived her argument regarding the district court's handling of her
motion. See McClain, 258 Kan. at 185.
ISSUE 2: Sufficient evidence supported Bolze-Sann's convictions.
We next address Bolze-Sann's argument that there was insufficient evidence at
trial to sustain her convictions of involuntary manslaughter and aggravated endangering a
child.
"'When examining the sufficiency of the evidence in a criminal case, the standard
of review is whether, after reviewing all the evidence in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found
the defendant guilty beyond a reasonable doubt.'" State v. Ortega, 300 Kan. 761, 769, 335
P.3d 93 (2014) (quoting State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 [2012]). In
reviewing all the evidence in the light most favorable to the prosecution, we will not
"reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting
evidence." Raskie, 293 Kan. at 920. Rather, we examine all the evidence favorable to the
prosecution against "the essential elements of a charge" to see if sufficient evidence
supported all necessary elements. State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390(1994); see State v. Murray, 285 Kan. 503, 537-38, 174 P.3d 407 (2008), abrogated on
other grounds by State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012).
Here, the district court instructed the jury that to establish the essential elements of
involuntary manslaughter the State had to prove that Bolze-Sann unintentionally killed
Typer and that the killing was done either recklessly or while in the commission of a
felony. In this case, the underlying felony was charged as aggravated endangering a child.
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See K.S.A. 21-3404(b). To find Bolze-Sann guilty of aggravated endangering a child, the
jury had to be unanimously convinced beyond a reasonable doubt that she recklessly
caused or permitted Typer to be placed in a situation in which his life, body, or health
was injured or endangered. See K.S.A. 21-3608a(a)(2).
In focusing on the insufficiency of the evidence of recklessness, an element of
both involuntary manslaughter and aggravated endangering a child, Bolze-Sann argues
her conduct was not "reckless" for two reasons. First, she contends the State did not show
that she realized or should have realized the particular danger of positional asphyxiation.
Second, Bolze-Sann disputes whether any danger was "imminent." Neither argument has
merit.
2.1. The State need not prove realization of a specific danger.
Kansas' criminal intent statute defines reckless conduct as "conduct done under
circumstances that show a realization of the imminence of danger to the person of another
and a conscious and unjustifiable disregard of that danger." K.S.A. 21-3201(c). We have
held that "[t]o act recklessly, a defendant must know that he or she is putting others in
imminent danger." State v. Gatlin, 292 Kan. 372, 377, 253 P.3d 357 (2011). Importantly,
one can act recklessly even without foreseeing "the particular injury that results from his
or her conduct. [Citations omitted.]" 292 Kan. at 377; see State v. Deal, 293 Kan. 872,
884, 269 P.3d 1282 (2012) (looking for an act "performed with knowledge the victim is
in imminent danger," even if the ultimate injury—death—was not foreseen).
Applying these principles to this case, we hold there is sufficient evidence from
which a reasonable jury could conclude that Bolze-Sann (1) realized the danger to Typer
9
in allowing him to nap on an adult bed and (2) consciously and unjustifiably disregarded
that danger. For example, a childcare licensing surveyor testified at trial that she
personally inspected Bolze-Sann's daycare in February 2007. At that visit, Bolze-Sann
confirmed she had appropriate napping facilities for infants and was aware of and
understood state regulations requiring that infants nap in a playpen or crib. Also, the
repeated conversations between Bolze-Sann and Typer's parents provided an additional
warning that she should not put Typer on an adult bed. Her response and repeated
assurance that she would not do so suggests she understood a potential danger existed.
Trial testimony regarding Bolze-Sann's actions the day of Typer's death further
supported this conclusion: She placed a "barrier ring" of pillows and blankets around
Typer on the bed, suggesting she knew there was a danger that he might fall off the bed.
At one point, she found that he had moved within the ring; she responded by picking him
up and moving him back to the center of the ring, again suggesting she understood the
risk of him falling off the bed's surface. Still, she did not move him to a playpen or crib.
Further, we are not persuaded by Bolze-Sann's argument regarding K.A.R. 28-4-
116(b). This regulation requires a daycare facility to provide, for each child under 18
months old, a crib or playpen for napping. Bolze-Sann contends the regulation was only
meant to prevent children from falling off beds and being trampled. Her argument finds
some support from an unpublished Court of Appeals memorandum opinion. See State v.
Stahlhut, No. 73,866, unpublished opinion filed November 22, 1996 (Kan. App.).
In Stahlhut, the State charged a daycare provider with endangering a child after
she placed an infant on a waterbed for a nap and the infant suffocated when he became
lodged between the mattress and the bed frame. K.A.R. 28-4-116(b)(2)(A) was in place at
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that time, and the State introduced evidence that Stahlhut's actions violated the
regulation. During the trial, a witness testified the regulation was designed to prevent a
child from falling from the bed and being trampled. Other testimony established that most
asphyxiation dangers were not unique to beds, sofas, or waterbeds and that the danger
also existed in cribs and playpens. The jury convicted Stahlhut, but on appeal the Court
of Appeals concluded that the district court had abused its discretion by admitting
evidence of the regulation because—in light of this trial testimony—K.A.R. 28-4-
116(b)(2)(A) was "not relevant to prove suffocation is a foreseeable danger of placing a
child to nap outside of a crib or playpen." Stahlhut, No. 73,866, slip op. at 10; but see slip
op. at D-5 (Marquardt, J., dissenting) (contending that "[t]he purpose of [K.A.R. 28-4-
116] was to protect the health and welfare of children," and concluding that the regulation
was "very relevant" to the infant's death by suffocation).
There are several problems with Bolze-Sann's argument. First, the district court
was not bound by Stahlhut. See Supreme Court Rule 7.04(g)(2) (2014 Kan. Ct. R. Annot.
63) (stating that an unpublished memorandum opinion is not binding precedent [subject
to exceptions not relevant here] and is not favored for citation). Second, the evidence in
this case regarding the purpose of the regulation differed from the evidence in Stahlhut.
Here, a childcare licensing surveyor testified that preventing trampling was "part" of the
reason and "one" of the purposes of K.A.R. 28-4-116(b). The primary danger
contemplated by the regulation is a fall from the bed. Here, a reasonable jury could
conclude that falling off the bed was the proximate cause of Typer's death and that Bolze-
Sann knew of this danger and disregarded it. See State v. Anderson, 270 Kan. 68, 73-74,
12 P.3d 883 (2000) (explaining that the State sufficiently proves its case by showing that
the defendant could have reasonably foreseen harm as a result of what she did or failed to
do). Finally and perhaps most significantly, the State did not need to prove Bolze-Sann
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foresaw the precise danger of suffocation so long as imminent danger from her conduct
was foreseeable. See, e.g., Gatlin, 292 Kan. at 377; cf. State v. Fisher, 230 Kan. 192, 199,
631 P.2d 239 (1981) (explaining, with respect to the endangering a child statute, that it
was meant "to protect children, and to prevent their being placed where it is reasonably
certain that injury will result").
We note that a reasonable jury could have concluded that Bolze-Sann's conduct
was not reckless. A jury might, for example, have found that Bolze-Sann's actions in
creating a barrier ring of pillows showed that she did not consciously and unjustifiably
disregard imminent danger. But the State's point at oral argument is well taken: At this
stage we must view all the evidence in the light most favorable to the prosecution, and,
viewed in this light, Bolze-Sann's actions demonstrate she was well aware that it was
dangerous to allow an infant to nap on an adult bed and, especially given the warnings by
Typer's parents, that she consciously disregarded the danger. See Ortega, 300 Kan. at
769.
2.2. Evidence established that the danger was imminent.
As for Bolze-Sann's second attack on the evidence regarding recklessness, we
conclude there was sufficient evidence from which a reasonable jury could conclude the
danger was imminent. See K.S.A. 21-3201(c) (requiring conduct showing a "realization
of the imminence of danger"). We have explained that the term "imminent" refers to a
broader time frame than the term "immediate," although the term "'is not without limit'"
and refers to a danger "'near at hand.''' State v. White, 284 Kan. 333, 351, 161 P.3d 208(2007) (quoting State v. Hernandez, 253 Kan. 705, 713, 861 P.2d 814 [1993]); cf. State v.
Cummings, 297 Kan. 716, 722, 305 P.3d 556 (2013) (discussing "may be injured or
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endangered" element in K.S.A. 21-3608[a], which contrasts with the element in K.S.A.
21-3608a[a] criminalizing aggravated endangering a child, meaning, as relevant here,
recklessly causing a child to be placed in a situation where his or her life, body, or health
is injured or endangered).
Certainly, Typer apparently napped without incident for a period of time and did
not immediately die from positional asphyxia after Bolze-Sann placed him on the bed.
Still, she put Typer in a continuous state of danger. The risk of injury existed the entire
time Typer was on the bed because his fall from the bed could have come at any time.
The constant risk of injury while Typer napped made the danger imminent. See State v.
Jenkins, 272 Kan. 1366, 1369-75, 39 P.3d 47 (2002) (determining there was sufficient
evidence for a jury to conclude that a motorist who had seven prior accidents in 9 years
due to seizures knew of the imminent danger he created by driving, even though the
defendant may have driven many times without incident).
Even if we were to nominally credit Bolze-Sann's argument that Typer was not in
imminent danger when placed on the bed, there is still sufficient evidence of Bolze-
Sann's recklessness. The State introduced uncontroverted testimony that Bolze-Sann
heard Typer crying before his death but, instead of responding to his cries, remained on
the couch and even instructed her daughter not to go check on him. Bolze-Sann ignored
Typer's crying for at least 15 to 20 minutes according to Bolze-Sann's daughter, and there
was testimony from an investigator that during a first interview Bolze-Sann stated Typer
had cried for 30 minutes and then she did not check on him for 40 more minutes after the
crying had stopped. A reasonable jury could conclude from this testimony that danger
was indeed imminent and near at hand. This seems especially true given the evidence that
Typer was increasingly mobile and the related logical inference that he might have
13
attempted to move himself during his agitation. Yet, Bolze-Sann ignored him. See White,
284 Kan. at 351.
Accordingly, a reasonable jury could conclude from the evidence that Bolze-Sann
anticipated danger and yet pursued a course of action contrary to the regulations, contrary
to what she knew to be proper procedure, and contrary to the parents' express warnings.
She then failed to check on Typer even after he had cried for at least 15 to 20 minutes.
We are satisfied that a rational jury could have found the essential element of reckless
conduct and could have found Bolze-Sann guilty beyond a reasonable doubt. See Ortega,
300 Kan. at 769; Pratt, 255 Kan. at 768.
Accordingly, we affirm the Court of Appeals' conclusion on this issue.
ISSUE 3: The alternative means jury instruction did not violate Bolze-Sann's right to a
unanimous jury verdict.
In a related challenge, Bolze-Sann notes that the district court instructed on two
means of committing involuntary manslaughter—the unintentional killing of Typer
(1) "recklessly" or (2) "while in the commission of aggravated endangering of a child."
Once again focusing on the element of recklessness, Bolze-Sann contends she was
deprived of her right to a unanimous jury verdict because the State failed to present
substantial evidence on each of the alternative means.
"'"[W]here a single offense may be committed in more than one way, there must
be jury unanimity as to guilt for the single crime charged. Unanimity is not required,
however, as to the means by which the crime was committed so long as substantial
evidence supports each alternative means."'" State v. Brown, 295 Kan. 181, 188, 284 P.3d
14977 (2012) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]; State v.
Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
The State does not dispute that the instructions presented the jury with two
alternate ways to commit the crime of involuntary manslaughter. See Brown, 295 Kan. at
188; see also 295 Kan. at 194-200 (describing the difference between alternative means
and options within a means). We, too, find it unnecessary to analyze whether the court
instructed the jury on alternative means because, even if it did, there was substantial
evidence as to each means.
Bolze-Sann's focus here is again on the recklessness element that is essential to
both charges. And, as we explained above, the State presented sufficient evidence that
Bolze-Sann's conduct was reckless. In fact, Bolze-Sann somewhat concedes that our
determination of her sufficiency of the evidence challenge controls our resolution of this
issue. Accordingly, in light of our conclusion that there was sufficient evidence from
which a reasonable jury could conclude she acted recklessly, we affirm the Court of
Appeals' conclusion that Bolze-Sann was not deprived of her right to a unanimous jury
verdict.
ISSUE 4: The district court did not clearly err by declining to define "imminence" for the
jury.
Bolze-Sann's next argument involves the jury instruction defining "reckless
conduct" as "conduct done under circumstances that show a realization of the imminence
of danger to the person of another and a conscious and unjustifiable disregard of that
danger." Bolze-Sann contends the district court clearly erred by failing to give a jury
instruction defining the term "imminence," as this term is not a matter of common
15
knowledge and there is a real possibility the jury would have reached a different verdict
had it been instructed that "imminence" does not refer to a time period without limit and
refers to a danger near at hand. See White, 284 Kan. at 351.
When analyzing jury instruction issues, we follow a three-step process:
"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless. " State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
Our first and third step are interrelated in that whether a party has preserved a jury
instruction issue will affect our reversibility inquiry at the third step. See, e.g., State v.
Briseno, 299 Kan. 877, 882, 326 P.3d 1074 (2014) (describing a "higher hill for a party
that fails to request an instruction"); Williams, 295 Kan. at 515-16; see also K.S.A. 22-
3414(3) ("No party may assign as error the giving or failure to give an instruction
. . . unless the party objects thereto before the jury retires to consider its verdict . . . unless
the instruction or the failure to give an instruction is clearly erroneous."). Here, Bolze-
Sann did not object to the lack of a specific definition for "imminence," nor did she
propose such a definition. Hence, Bolze-Sann must establish clear error.
At the second step of determining whether there was any error at all, we "'consider
whether the subject instruction was legally and factually appropriate, employing an
unlimited review of the entire record.'" State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d
292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4); see also State v. Plummer, 295
Kan. 156, 160-63, 283 P.3d 202 (2012) (utilizing a four-step review of jury instructions,
16
in which the second and third step ask whether any error occurred, first from a legal
standpoint and then from a factual one).
While the district court has a duty to instruct the jury on the law that applies in a
particular case, a district court does not have to provide the jury a definition for widely
used words or those readily comprehensible by individuals of common intelligence. State
v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014); State v. Roberts-Reid, 238 Kan.
788, 789, 714 P.2d 971 (1986). In general, jurors are "expected to decipher many difficult
phrases without receiving specific definitions." State v. Robinson, 261 Kan. 865, 877, 934
P.2d 38 (1997). A district court should only define additional terms if the instructions as a
whole would otherwise mislead the jury or cause it to speculate. Armstrong, 299 Kan. at
440.
Applying these concepts to Bolze-Sann's arguments, we conclude the district court
did not err by failing to define the word "imminence." Bolze-Sann does not cite any
Kansas appellate law suggesting that a district court must define "imminence" for the
jury. The term is widely used and readily comprehensible. Armstrong, 299 Kan. at 440;
see also People v. Lopez, 199 Cal. App. 4th 1297, 1306-07, 132 Cal. Rptr. 3d 248 (2011)
("There is no reasonable likelihood jurors would fail to understand the difference
between imminent danger and future harm . . . ."); Com. v. Thomas, 2005 Pa. Super. 245,
879 A.2d 246, 265-66 & n.11 (Pa. Super. 2005) (reaching a similar conclusion after
considering the jury charges as a whole). If anything, our lack of caselaw affirmatively
directing that a definition be given supports the idea that the term does not need to be
defined in most circumstances.
17
As cited by Bolze-Sann, in other cases parties have disputed the extent to which
"imminent" differed from "immediate" with regard to the availability of self-defense or
defense of others. See White, 284 Kan. at 351; Hernandez, 253 Kan. at 711-13; State v.
Osbey, 238 Kan. 280, 282-83, 710 P.2d 676 (1985). "Immediate" refers to a danger even
nearer at hand than an "imminent" danger. So even if Bolze-Sann's jury had confused the
terms, any mistake could only have helped her because the jury would have looked for an
even closer danger than the law required. See White, 284 Kan. at 351.
Furthermore, Bolze-Sann does not actually contend the lack of an explicit
definition for the term "imminence" would mislead the jury or cause it to speculate,
which are our two recognized exceptions to the general rule that jurors can decipher the
meaning of commonly understood words without the benefit of a court-supplied
definition. See Armstrong, 299 Kan. at 440; Robinson, 261 Kan. at 877. Instead, she
asserts that an instruction defining "imminence"—and, more specifically, defining the
term as it was defined in White—would have "helped" and "better focused" the jury.
Regardless, the fact that a definition would have been generally beneficial is not, under
our precedent, sufficient to transform the omission of such a definition into a legal error.
See Armstrong, 299 Kan. at 440; Robinson, 261 Kan. at 877.
Because there was no error, we need not reach the final step of our analysis, i.e.,
the determination of whether an error in the jury instructions constituted clear error. See
Williams, 295 Kan. at 510; Roberts-Reid, 238 Kan. at 790.
Accordingly, we hold that no error—let alone clear error—occurred with respect
to the omission of a definition of "imminence" from the jury instructions.
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ISSUE 5: The district court did not err in refusing to issue Bolze-Sann's limiting
instruction regarding the evidentiary value of a state regulation.
Bolze-Sann's next jury instruction argument is that the district court committed
reversible error by declining to instruct the jury as to how it could consider evidence
related to K.A.R. 28-4-116.
At the instruction conference, the district court proposed the following instruction:
"During trial you heard testimony regarding [K.A.R.] 28-4-116, which provides:
'(b) Napping and sleeping.
(2) Napping facilities or sleeping facilities for evening and overnight care shall
be provided as follows:
(A) A crib or playpen with slats not more than 2-3/8 inches apart or equipped
with bumpers shall be used for each child under 18 months.'
"This regulation applies to licensed daycare providers and exists to promote the
safety of young children. It governs napping during the day, and sleeping during evening
and overnight hours. Accordingly, the regulation applied to Ms. Bolze-Sann when she put
Zachary Typer down for a nap during the daylight hours of July 2, 2007."
Bolze-Sann objected to the instruction on the grounds that K.A.R. 28-4-116 was
not meant to prevent the harm suffered by Typer (positional asphyxiation) and thus it was
not relevant to show whether the harm was foreseeable to her. Additionally and in the
alternative, she argued that the district court should add the following language:
19
"You are further instructed that K.A.R. 28-4-116(b) is not intended to protect infants
from suffocation and should not be considered by you in determining whether or not the
defendant should have considered that the placing of the child in this manner down for a
nap outside of a crib was a foreseeable danger and then taken steps to prevent or address
that danger."
The district court overruled Bolze-Sann's objection and also declined to add her
proposed language. On appeal, Bolze-Sann only challenges the district court's refusal to
add her requested language.
As outlined above, we review jury instruction issues pursuant to a stair-step
analysis. See Williams, 295 Kan. at 510. Because Bolze-Sann unambiguously opposed
the proposed instruction and in the alternative requested additional language, she fully
preserved her argument. Consequently, we will reverse if we find an error and conclude
that there is a "reasonable probability" that the error affected the outcome of the trial in
light of the entire record. State v. Ward, 292 Kan. 541, 565, 569, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012); see State v. Andrew, 301 Kan. 36, 40, 340 P.3d 476(2014) (finding that a party preserved an instructional issue for appellate review by
articulating specific reasons for an objection).
Once again, Bolze-Sann's primary support for her argument is the unpublished
Court of Appeals memorandum opinion in Stahlhut, which we previously discussed in
the context of Bolze-Sann's sufficiency-of-the-evidence challenge. See State v. Stahlhut,
No. 73,866, unpublished opinion filed November 22, 1996 (Kan. App.). As we noted in
that discussion, there are several factual distinctions between Stahlhut and this case.
These factual distinctions cause us to examine whether Bolze-Sann's proposed instruction
was factually appropriate.
20
To reiterate some salient points from our prior discussion, even if we were to
accept Bolze-Sann's very limited view of the regulation's purpose, the regulation was
designed, at least in part, to prevent a child's fall from a bed. And Bolze-Sann overlooks
the fact that Typer did in fact fall off the bed in this case. Typer was caught by the
footboard, but the proximate cause of Typer's injury was falling off the bed. Stahlhut is
further distinguishable because, in contrast to the evidence admitted in Stahlhut, here
there was no trial testimony about how Typer was at risk of suffocation in a crib or
playpen. Also, the childcare licensing surveyor did not conclusively suggest that the only
purpose of K.A.R. 28-4-116(b) was to prevent children from rolling off the bed and being
trampled—instead, she testified that this was "part" of the reason and "one" of the
purposes. Thus, the evidence in Bolze-Sann's trial did not support the language she
requested in her proposed instruction.
Accordingly, Bolze-Sann's proposed limiting instruction regarding the use of
K.A.R. 28-4-116(b) was not factually appropriate, and her suggestion that the jury could
not consider the regulation in determining whether there was any foreseeable danger
associated with her conduct must fail.
ISSUE 6: The district court's response to the deliberating jury's question was harmless
error.
During its deliberations, the jury sent a note to the district court regarding the
instruction for involuntary manslaughter, which read: "Is there any other alternate
definition meaning to the verb, killed?" The district court conferred with the State and
Bolze-Sann's counsel regarding the appropriate response, but the record does not indicate
whether Bolze-Sann herself was present. With the assent of both attorneys, the district
21
court responded to the jury's question in writing, stating: "There's nothing additional for
the Court to add. Please refer to instructions already given."
Bolze-Sann contends the district court's handling of the jury's question presents
two related but distinct errors: First, the district court erred by discussing the question
outside her presence; second, the district court erred by sending a written response
instead of reading the response to the jury in open court. The record is, as point of fact,
not clear as to whether Bolze-Sann was present during these proceedings, and thus we
must presume that she was not. See Herbel, 296 Kan. at 1107-08.
In asserting her claims of error, Bolze-Sann argues the district court failed to
comply with K.S.A. 2014 Supp. 22-3405(a) and K.S.A. 22-3420(3). K.S.A. 2014 Supp.
22-3405(a) provides that a "defendant in a felony case shall be present . . . at every stage
of the trial . . . , except as otherwise provided by law." K.S.A. 22-3420(3), at the time of
Bolze-Sann's trial, in relevant part, provided:
"After the jury has retired for deliberations, 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 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 after notice to the prosecuting attorney."
After Bolze-Sann's trial, the legislature amended K.S.A. 22-3420, effective July 1,
2014, with the intent that any amendments would apply retroactively. K.S.A. 2014 Supp.
22-3420(f). The State has not asked us to apply this statute, and the parties have not
briefed whether retroactive application is appropriate. We, therefore, will not consider the
potential impact of these amendments.
22
Bolze-Sann further asserts that the district court's failure to discuss the answer in
her presence or to convey the answer to the jury in open court gives rise to three
constitutional claims involving her rights to be present at every critical stage of her trial,
to have a public trial, and to have the benefit of an impartial judge. See State v. Bowen,
299 Kan. 339, 354, 323 P.3d 853 (2014) (reviewing same arguments de novo); see also
State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014) (reviewing de novo an
appellate argument regarding "a defendant's right to be present at every critical stage of
his or her criminal trial").
6.1 Right to be present at every critical stage of trial
Both the United States Constitution and Kansas statutory law guarantee a criminal
defendant the right to be present at every critical stage of the proceeding. See U.S. Const.,
amend. 6; K.S.A. 22-3405(1); K.S.A. 2014 Supp. 22-3405(a); see also United States v.
Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (explaining that the
Due Process Clause extends the Confrontation Clause of the Sixth Amendment "in some
situations where the defendant is not actually confronting witnesses or evidence against
him").
In past cases, this court has explained the statutory and constitutional right to be
present extends to any period in which the court is conferring with the parties about an
appropriate response to a jury question and when the response is communicated to the
jury. See Herbel, 296 Kan. at 1109; see also Bowen, 299 Kan. at 353-54 (district court
violated defendant's statutory and constitutional rights by answering a jury inquiry during
deliberations with a written note delivered by court personnel instead of the trial judge
23
replying in open court); Verser, 299 Kan. at 787-88 (questions from the jury must be
answered in open court in the defendant's presence unless the defendant is voluntarily
absent); State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013) (defendant's rights
violated when not present when court conferred with counsel about answer or when court
communicated with jury); State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998)
(same, and listing additional precedential cases).
Application of K.S.A. 2014 Supp. 22-3420 may require us to examine the
continued viability of the rationale of these cases. But, as we have noted, the State has not
asked us to do that in this appeal. In fact, the State does not even argue against a finding
of error. It, thus, essentially concedes a violation of K.S.A. 22-3420 occurred and that
there was a corresponding violation of the constitutional right to be present during a trial.
The State focuses solely on harmless error. Because we agree with the State that the error
was harmless, we will also move directly to a harmless error review and, assuming a
constitutional error, will apply the constitutional harmless error statute. See Rushen v.
Spain, 464 U.S. 114, 117 n.2, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) ("Because we find
that no actual prejudice was shown, we assume, without deciding, that respondent's
constitutional right[] to presence . . . [was] implicated in the circumstances of this case.");
see also Verser, 299 Kan. at 789-90 (applying constitutional harmless error standard);
Herbel, 296 Kan. at 1109-10 (same).
Under the constitutional harmless error standard, we may declare an error
harmless only if "'the party benefitting from the error proves beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict.'" Verser, 299 Kan. at 789 (quoting Ward, 292 Kan. 541, Syl. ¶ 6); see
24
Chapman v. California, 386 U.S. 18, 22-23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)
(declining to reverse for constitutional errors that do not affect the substantial rights of a
party).
Several factors help determine whether a violation of this right is harmless beyond
a reasonable doubt: (1) the overall strength of the case against the defendant; (2) whether
either party objected to the manner in which the judge handled the communication; (3)
whether the judge's communication with the jury "concerned a critical aspect of the trial
or rather involved an innocuous and insignificant matter," and also how the
communication was conveyed to the jury; and (4) the ability of any posttrial remedy to
"mitigate the constitutional error." McGinnes, 266 Kan. at 132-37; see Herbel, 296 Kan.
at 1111.
Again, given the evidence, a reasonable jury could have—and did—convict Bolze-
Sann; but the evidence was not so strong as to foreclose a reasonable jury from
concluding she was not reckless. Hence, the first factor weighs against the State's
argument. But all other factors weigh in favor of finding the error harmless. Bolze-Sann's
counsel did not object to the district court's procedure. As to the effect of the error, the
present dispute, like in Bowen, focuses on the procedure used to answer the jury's
question rather than the answer's "substantive content." See Bowen, 299 Kan. at 358. And
the district court did not provide the jury with additional information or information of
any import. Instead, the district court merely instructed the jury to refer to the previously
provided instructions. Bolze-Sann makes no argument that the content of the district
court's response was in any way prejudicial or inaccurate; in fact, the content of the
response was entirely innocuous and insignificant. See Herbel, 296 Kan. at 1111 (looking
to whether the ex parte communication concerned a "critical aspect of the trial").
25
Additionally, Bolze-Sann's counsel did not seek any posttrial remedy on these grounds.
See State v. Herbel, 296 Kan. 1101, 1111, 1114-15, 299 P.3d 292 (2013).
We conclude that the State has carried its burden to show that any error was
harmless beyond a reasonable doubt—there is no reasonable possibility that Bolze-Sann's
presence during the discussion of the jury's question or her presence during the
communication of the response to the jury would have had any effect on the outcome of
her trial. See Verser, 299 Kan. at 789; McGinnes, 266 Kan. at 132-33. Indeed, Bolze-
Sann does not actually argue to the contrary: She focuses her entire argument on the fact
that a violation occurred, but she has given us no reason to conclude that her presence
would have made any difference. Cf. Gagnon, 470 U.S. at 526 (explaining that "a
defendant has a due process right to be present at a proceeding 'whenever his presence
has a relation, reasonably substantial, to the fullness of his opportunity to defend against
the charge'" [quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L.
Ed. 674 (1934)]).
Accordingly, we decline to reverse Bolze-Sann's conviction on this ground.
6.2 Rights to a public trial and an impartial judge
Although a violation of a defendant's right to be present may be harmless—and,
indeed, "'most constitutional errors can be harmless'"—a "'very limited class of cases'"
involve structural errors subject to automatic reversal. Neder v. United States, 527 U.S. 1,
8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S.
279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991], and Johnson v. United States, 520
U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 [1997]); see also Fulminante, 499 U.S.
26at 309-310 (describing why certain structural errors affect the framework of the trial and
thus "defy analysis by 'harmless-error' standards"). Both the denial of the right to a public
trial and the right to an impartial judge have been categorized as structural errors by the
United States Supreme Court, with the Court holding that the right to a public trial and
the right to an impartial judge are so central to the trial framework that the denial of these
rights would "'infect the entire trial process'" and no prejudice need be shown. Neder, 527
U.S. at 8 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed.
2d 353 [1993]); see Fulminante, 499 U.S. at 310; see also Waller v. Georgia, 467 U.S.
39, 49, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) ("[T]he defendant should not be required
to prove specific prejudice in order to obtain relief for a violation of the public-trial
guarantee."); Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927) ("No
matter what the evidence was against [the defendant], he had the right to have an
impartial judge.").
Nevertheless, Bolze-Sann has not met an all-important initial threshold—she has
not shown that such structural error actually occurred. We have never characterized a
district court's failure to comply with the deliberating jury procedures provided in K.S.A.
22-3420(3) or later statutes as a violation of the constitutional rights to a public trial or an
impartial judge. And Bolze-Sann presents no authority supporting her argument in favor
of such an extension of our law. Faced with virtually identical arguments in Verser, 299
Kan. at 791, and Bowen, 299 Kan. at 355-56, we declined to address these arguments; we
noted that pressing a point without pertinent authority is akin to failing to brief an issue,
which results in a party waiving or abandoning the argument. See State v. Torres, 280
Kan. 309, 331, 121 P.3d 429 (2005). We reach the same conclusion in this case.
27
ISSUE 7: Bolze-Sann failed to preserve her jury polling argument.
Bolze-Sann's final argument is that the district court committed reversible error
during its postverdict jury poll by failing to inquire whether the verdict was the jury's.
She acknowledges she did not object to this failure at the time but nonetheless urges us to
consider the issue on appeal because it involves a question of law based on undisputed
facts and because it implicates her fundamental right to a unanimous jury verdict. See
State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (reiterating three recognized
exceptions to the general rule that constitutional issues cannot be raised for first time on
appeal, specifically: "[1] The newly asserted claim involves only a question of law
arising on proved or admitted facts and is determinative of the case; [2] consideration of
the claim is necessary to serve the ends of justice or to prevent the denial of fundamental
rights; and [3] the district court is right for the wrong reason.").
The State, on the other hand, insists that Bolze-Sann's failure to object means she
has not adequately preserved the issue for appeal. We agree. Our past cases have made
clear that failing to raise a jury polling issue before the district court, either
contemporaneously or in a posttrial motion, precludes appellate review. See State v.
Brown, 298 Kan. 1040, 1055-56, 318 P.3d 1005 (2014) (asserted exceptions to the
preservation rule do not apply because right to unanimous jury verdict is not a
fundamental right and any consideration of jury unanimity necessarily involves factual
review); State v. Cheffen, 297 Kan. 689, 698-99, 303 P.3d 1261, cert. denied 134 S. Ct.
627 (2013) ("[T]he better rule is to require a party wishing to challenge the trial court's
compliance with the procedures set out in K.S.A. 22-3421 for inquiring about a jury's
verdict to have raised that issue first with the district court either in the form of a
contemporaneous objection or a posttrial motion.").
28
Accordingly, we decline to review Bolze-Sann's argument.
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
***
STEGALL, J., concurring: I concur fully with the result and reasoning of the
majority opinion. But I write separately to address our confused caselaw on the limited
question of whether a judge answering a jury question with a written note, as distinct
from giving an oral answer in open court, violates the Sixth Amendment's requirement
that a defendant be present at every critical stage of the proceeding. Our majority opinion
today acknowledges, in passing, the uneven history I discuss below. But the State
conceded error, thus obviating any need or opportunity to revisit the question and bring
needed clarity to this unsettled area of criminal procedure.
The time-tested and well-worn trial procedure at issue here—whereby after a
deliberating jury has sent a written question to the trial judge, the judge first holds a
hearing with counsel in the presence of the defendant concerning the proper answer, and
second delivers a written answer to the jury—has been so common in our history as to
have become rote and unremarkable. See Shields v. United States, 273 U.S. 583, 588, 47
S. Ct. 478, 71 L. Ed. 787 (1927) (permitting a written answer to a jury question after
proper hearing and opportunity to object). Since 2012, however, the issue has spawned
significant litigation and at least five different and contradictory opinions from this court.
See State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012); State v. Wells, 296 Kan. 65, 290
29
P.3d 590 (2012); State v. King, 297 Kan. 955, 305 P.3d 641 (2013); State v. Bowen, 299
Kan. 339, 323 P.3d 853 (2014); and State v. Verser, 299 Kan. 776, 326 P.3d 1046 (2014).
And the cases continue to arrive on our steps, as evidenced by today's decision.
In addition to deciding whether this procedure violates the Sixth Amendment, we
have simultaneously considered whether it comports with K.S.A. 22-3420 which, prior to
its amendment, provided in part:
"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." K.S.A. 22-3420(3).
The legislature, perhaps in response to some of our decisions discussed below, amended
this statute, effective July 1, 2014, to read:
"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. . . . The
defendant must be present during any response if given in open court, unless such
presence is waived." K.S.A. 2014 Supp. 22-3420(d).
The 2014 amendments to K.S.A. 22-3420 were intended to apply retroactively. See
K.S.A. 2014 Supp. 22-3420(f). As we note today, however, the application of K.S.A.
30
2014 Supp. 22-3420(d) to Bolze-Sann was not advocated by the State and is not properly
before us. As such, a determination of that statute's retroactivity and constitutionality
must wait for another day.
The source of our recent confusion over the permissibility of this procedure may
stem from the long established and unquestioned rule that a judge may not engage in ex
parte communications with a deliberating jury—i.e., the judge cannot orally
communicate to a jury without the defendant's presence. For example, in Crease v. State,
252 Kan. 326, 845 P.2d 27 (1993), the district court conducted an ex parte
communication with at least one juror in chambers, absent the presence of any attorneys
or the defendant, to discuss the application of the felony-murder rule to the case. The
Crease court had no difficulty finding that "'a conference between a trial judge and a
juror is a critical stage of the proceeding'" and the Sixth Amendment right to be present
attaches. 252 Kan. at 333 (quoting State v. Lovely, 237 Kan. 838, Syl. ¶ 3, 703 P.2d 828[1985]). The court went on then to say that "a defendant's constitutional and statutory
right to be present includes the right to be present 'whenever the court communicates with
the jury'" and that "K.S.A. 22-3420(3) requires that once the jury has begun deliberations,
any questions from the jury concerning the law or evidence pertaining to the case must be
answered in open court in the defendant's presence, unless the defendant is absent
voluntarily." 252 Kan. at 333.
Similarly, in State v. McGinnes, 266 Kan. 121, 967 P.2d 763 (1998), after the trial
judge overheard a juror wonder aloud during deliberations why the chief of police had
not testified at trial, the judge orally explained to the jury that the chief was away at
training and unavailable. We found constitutional error because "the Sixth Amendment's
31
Confrontation Clause . . . require[s] the defendant's presence at every critical stage of a
trial, including a conference between a trial judge and a juror." 266 Kan. at 127.
We did not contemplate or even mention in Crease or McGinnes the distinction
between, on the one hand, an oral ex parte conference between a judge and jury and, on
the other hand, utilizing a written note to deliver to the jury a communication settled on
after consultation with both attorneys in the presence of the defendant. Our conflation of
the narrow category of constitutional violations that occurs when a judge engages in an
ex parte oral conference with a jury with the significantly broader statement that a
defendant has a constitutional right to be present whenever a judge communicates with a
jury—along with our incomplete summary of and reliance on K.S.A. 22-3420(3) for the
proposition that anytime a jury asks a question it must be answered in open court—has
proved a fertile seed bed for the flowering of litigation around this issue.
The distinction between an oral conference and "communication" writ large was
first probed, though not definitively answered, in State v. Coyote, 268 Kan. 726, 1 P.3d
836 (2000). There, the jury sent two questions in writing to the trial judge. The judge
answered both questions in writing, however, the judge only consulted the attorneys in
the presence of the defendant when formulating his answer to the second question. The
Coyote court first noted that "a conference between a trial judge and juror is . . . a critical
stage and requires the presence of the defendant." 268 Kan. at 731 (citing both Crease
and McGinnes). But the court was not dealing with oral conferences in Coyote, as it had
been in Crease and McGinnes, only with written notes being passed between jury and
judge.
32
Nonetheless, Coyote expanded the rulings of Crease and McGinnes to written
communications in a manner that was, at best, confusing. With respect to the second jury
question, the Coyote court said:
"[T]he trial court followed Kansas statutory and case law in dealing with the jury
question. The court advised counsel and the defendant of the question, provided all with
an opportunity off the record for input, and after the hearing, resolved the question
submitted. Then the court, in writing, answered the jury question." 268 Kan. at 731.
As to the first question, however, the court found constitutional error in the procedure
followed by the trial court, stating:
"A trial court, when confronted with a question submitted to it by a jury during
deliberations is required to advise counsel, provide the parties with the question, and give
them an opportunity for input in the presence of the defendant. Thereafter, the court is
required to respond in writing to the jury in the presence of the defendant. . . .
"K.S.A. 22-3420(3) explicitly requires that any questions from the jury
concerning the law or evidence pertaining to the case must be answered in open court in
the defendant's presence unless the defendant is absent voluntarily." 268 Kan. at 732.
Describing these two rulings as merely confusing may be generous as they appear
to be contradictory. Certainly the Coyote court is consistent in holding that before a judge
may answer a written question from the jury, the judge must consult with the attorneys in
the presence of the defendant. But must the judge call the jury into open court in the
presence of the defendant to "communicate" the answer to the jury? Here the Coyote
court sows confusion.
33
This brings us to our recent spate of decisions on this question. Resolved by a
unanimous court a mere 2 months apart, the first two decisions—State v. Burns, 295 Kan.
951, 287 P.3d 261 (2012); and State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012)—
appeared to settle the question. In Burns, the jury had submitted a written question which
was answered in writing by the trial judge after consultation with the attorneys in the
presence of the defendant, just as the Coyote court had described. But the defendant,
relying on and citing the admonition in Coyote that such communication must occur in
open court, argued "that sending an answer back to the jury rather than reading the
answer in the presence of the defendant violate[d] his constitutional right to be present at
all critical stages of the trial." Burns, 295 Kan. at 956. We disagreed, found no error, and
in the process we clarified the holding of Coyote—"the trial court followed the procedure
outlined by this court in Coyote. Burns and his counsel were present and informed of the
jury's question" before the answer was submitted to the jury in writing. Burns, 295 Kan.
at 956.
In reaching its conclusion, the Burns court did not discuss K.S.A. 22-3420(3), an
oversight quickly remedied in Wells. There, confronted with substantially identical facts
as we had been in Burns, and substantially identical arguments, we expanded our
rationale for why neither Coyote nor K.S.A. 22-3420(3) required that a jury question be
answered in open court with the defendant present. First, we held:
"The plain language of K.S.A. 22-3420(3) does not support Wells' contention because the
statute only requires the presence of the defendant if the jury, after making a request, is
taken into the courtroom so it can receive information from the district court on a point of
law. . . . Because the jury never asked to be returned to the courtroom so it could be
informed on the legal definition of abets, the district court did not violate K.S.A. 22-
34
3420(3) by answering the jury's written question via a written note." Wells, 296 Kan. at
90-91.
Then we added, citing Burns:
"Our holding in Coyote was not based on the fact that the district court failed to
answer the jury's question orally in open court while the defendant was present. Instead,
our holding was based on the fact that the defendant was not present during the court's
discussion with the attorneys on how to respond (in writing) to the jury's question. . . .
....
"In other words, to ensure that a defendant's constitutional and statutory right to
be present at critical stages of his or her trial is protected, a defendant must be present
during the court's discussion with the attorneys and ultimate decision on how to respond
to a written jury question. But there is no need that the court read the written answer it
decided out loud to the jury in open court while the defendant is present. Simply
delivering the answer the court decided upon to the jury via written note is sufficient to
satisfy the defendant's right to be present." Wells, 296 Kan. at 91-92.
The Burns and Wells decisions should have ended both this court's discussion of
this procedure and subsequent litigation over its use. Unfortunately, they did not. Eight
months after Wells, in another unanimous decision, this court issued its opinion in State v.
King, 297 Kan. 955, 305 P.3d 641 (2013). Again confronting substantially similar
procedures and arguments as were dealt with in both Burns and Wells, the King court
reached the opposite result. Specifically, the King court took issue with Burns and its
reading of Coyote:
"The implication of the Burns decision, if not its clear message, is that it is not
necessary to open court when delivering a written answer to a jury question, even if the
defendant has not formally waived that procedure. However, the Burns decision did not
35
cite K.S.A. 22-3420(3), and it did not mention the rest of the Coyote court's analysis,
which is contrary to the implication of the Burns decision." King, 297 Kan. at 966.
Finding support in "the rest" of the Coyote court's confusing and contradictory
analysis, along with our earlier truncated summary statements concerning the
requirements of K.S.A. 22-3420(3), King overruled Burns and held:
"[A]ny question from the jury concerning the law or evidence pertaining to the case must
be answered in open court in the defendant's presence unless the defendant is voluntarily
absent. . . . [A]cts or omissions violating K.S.A. 22-3420(3) also violate . . . the guarantee
of the Sixth Amendment to the United States Constitution that a criminal defendant may
be present at every critical stage of his or her trial." King, 297 Kan. at 967-68.
This holding has subsequently been applied in two additional cases to reach this court.
See State v. Bowen, 299 Kan. 339, 323 P.3d 853 (2014); State v. Verser, 299 Kan. 776,
326 P.3d 1046 (2014).
Curiously, whether decided rightly or wrongly, King did not tie up all the loose
ends because King never considered the sound reasoning and contradictory holding in
Wells. This is unfortunate because Wells is the better decision, as a matter of both
caselaw and statutory interpretation and as a matter of constitutional law. Wells correctly
interprets the holding of the Coyote decision rather than getting bogged down in the
opinion's semantic difficulties. Wells is correct that K.S.A. 22-3420(3) only requires a
judge to answer a jury question in open court with the defendant present if the jury first
"request[s] the officer to conduct them to the court." See 296 Kan. at 90-91. When a jury
chooses instead to simply send a written question to the court, the strictures of 22-
3420(3), by its plain language, are not triggered. And finally, Wells sensibly finds that the
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physical act of delivering a note is not the kind of "communication" contemplated by our
earlier decisions finding a constitutional prohibition against ex parte conferences between
a judge and jury. Indeed, it would be surprising if this innocuous procedure (which,
unsurprisingly, has been deemed harmless at every turn even after we found it to be a
constitutional violation) used so regularly as a convenient method of fairly
communicating with a jury after deliberations have begun was suddenly discovered to run
afoul of the Sixth Amendment to the Constitution.
Finally, it is true, as we have held today, that the State (unwisely perhaps)
conceded the process used here was error pursuant to King and failed to even raise the
possibility of revisiting the question based on the possible continuing viability of Wells. It
is likewise true this case does not squarely present us with the question of whether to
apply the new statutory procedure of K.S.A. 2014 Supp. 22-3420(d) that explicitly
permits what King has declared unconstitutional. If it did, we would be required to
answer the much more important question of whether that statute must be struck down as
constitutionally infirm. But that case is surely coming.
ROSEN, J., joins in the foregoing concurring opinion.
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