Opinion
No. 110,550.
2015-01-15
STATE of Kansas, Appellee, v. Alexander Donald BELL, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge.Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellant.Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and JAMES L. BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Alexander Donald Bell's direct appeal of his conviction of one count of misdemeanor sexual battery following a bench trial. Bell was sentenced to 18 months' probation with a 12–month jail term underlying. We find that Bell was inadequately informed of his right to a jury trial, rendering both his waiver of that right and his later conviction improper. We, therefore, reverse and remand for further proceedings.
Factual and Procedural Background
Given the issue on which we resolve the appeal, the underlying facts of the offense are largely irrelevant. We highly summarize them for context. Seventeen year old A.F. was working at a retail store in Overland Park on February 8, 2011, with Bell, her assistant manager. Before that date A.F. had told management she was uncomfortable with some things Bell had said and done, and management had instructed Bell to keep his distance from her. On February 8, 2011, in a back room of the store at closing time, Bell touched A.F. on her shoulders and buttocks and asked A.F. if he could touch her. She turned around and asked him what he was doing. Bell said he wanted to kiss her, but the telephone rang and A.F. was able to escape from the back room. Bell sent A.F. a series of text messages that ranged from aggressively flirtatious (and inappropriate) to overtly harassing (and highly offensive). Bell engaged in other inappropriate behavior directed at A.F. In a statement to law enforcement officers and during his testimony at trial, Bell admitted some the conduct and disputed much of it.
On April 19, 2011, the State charged Bell with one count of sexual battery, a class A person misdemeanor. Bell pled not guilty to the charge.
At a scheduling conference held on May 9, 2013, Bell waived a jury trial in favor of trying his case to the court. The bench trial was conducted on July 1, 2013. While Bell's testimony as to the facts differs considerably from the facts outlined above, the district court found Bell guilty of sexual battery and sentenced him to 12 months in jail underlying with probation granted for a term of 18 months. Bell filed a timely notice of appeal.
Analysis
At the May 9, 2013, scheduling conference, the record reflects the following exchange:
“THE COURT: All right. And is your client waiving jury trial?
“MS. CONNER–WILSON [Bell's counsel]: He is, Your Honor. We've discussed that, and he's chosen to choose the Court trial date.
“THE COURT: And Mr. Bell, you do understand that if you waive your request for a jury trial and try this case to the Court, that if you don't like the outcome, you can't come back later and way, ‘Wait a minute. I've changed my mind. I want a jury trial.’ You understand?
“THE DEFENDANT: Yes.
“THE COURT: And is it your desire to waive request for jury trial?
“THE DEFENDANT: Yes.”
Bell asserts that this exchange did not adequately advise him of his constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution and § 5 of the Kansas Constitution. He asserts that his waiver of a statutory request for a jury trial under K.S.A. 22–3404 cannot be deemed to waive his constitutional rights to a jury trial where he was not informed of those rights. Bell contends that, because his purported wavier of a jury trial was fatally defective, this court must reverse his conviction and remand his case to the district court for further proceedings.
Bell did not raise this issue at the district court level. Ordinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly reviewable by this court. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). However, the Kansas Supreme Court has previously entertained appeals centered on the issue of whether the district court failed to advise a defendant of his or her right to a jury trial under the preservation exception, which allows consideration of the theory when necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Frye, 294 Kan. 364, 368, 277 P.3d 1091 (2012). “There is no more fundamental right in the United States than the right to a jury trial.” State v. Larraco, 32 Kan.App.2d 996, 999, 93 P.3d 725 (2004). Accordingly, this court can review this issue on appeal.
Where the facts of a district court's determination to accept a jury trial waiver are not disputed, as here, this court's review of whether a defendant knowingly and voluntarily waived his right to a jury trial is a legal inquiry subject to unlimited review. State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012).
K.S.A 22–3404(1) states that misdemeanor cases will be tried to the district court unless a jury trial is requested in writing by the defendant no later than 7 days after the defendant receives notice of the trial assignment. However, in addition to this statutory right to request a jury trial, a defendant's constitutional right to a jury trial is invoked whenever he or she is subjected to a possible penalty of more than 6 months' imprisonment. State v. Sykes, 35 Kan.App.2d 517, 523, 132 P.3d 485, rev. denied 282 Kan. 795 (2006); State v. Jones, 19 Kan.App.2d 982, 983–84, 879 P.2d 1141 (1994). Here, Bell was charged with sexual battery, a class A misdemeanor punishable by no more than 1 year in county jail. See K.S.A. 21–3517; K.S.A.2009 Supp. 21–4502(a). Bell not only had a statutory right to request a jury trial, he had an absolute constitutional right to a jury trial as a result of the charges filed against him.
The Kansas Supreme Court has held that for a criminal defendant to effectively waive his right to a jury trial, “the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). The right to a jury trial may be waived if it is done so voluntarily and knowingly. 216 Kan. at 589. Whether the voluntarily and knowingly test has been met in a given case will depend on the particular facts and circumstances presented therein, “but a waiver of the right to a jury trial will not be presumed from a silent record.” 216 Kan. at 589. These waivers should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury. Beaman, 295 Kan. at 858.
Of importance in this case is the district court's responsibility to inform the defendant of the nature and extent of his right to a jury trial, as was explained in Frye:
“If the district court fails to properly advise a defendant of the nature and extent of his or her constitutional right to a jury trial, how does that defendant know to object to the court's failure to inform, i.e., how does the defendant know what the defendant does not know? Granted, defense counsel should know, but the ability to waive the fundamental right to a trial by jury rests solely with the defendant and Irving informs us that the responsibility to inform a defendant of his or her jury trial right rests squarely with the presiding judge.” 294 Kan. at 370–71.
The State likens the facts of this case to those in Beaman. In that case, however, the district court conducted a rather thorough and thoughtful on-the-record inquiry into whether the defendant understood the repercussions of his decision to waive his jury trial, unlike the discussion held here. At issue in that case, in part, was the fact that the district court did not use the magic words “ ‘right to a jury trial’ “ in its waiver inquiry. Beaman, 295 Kan. at 860. The Beaman court cited State v. demons, 273 Kan. 328, 45 P.3d 384 (2002), wherein the Kansas Supreme Court accepted a jury trial waiver despite the lack of those magic words where the defendant's counsel had spoken with the defendant about his right. Clemons involved a fairly lengthy inquiry by the district court into the defendant's understanding of the rights he was giving up, unlike the case at bar. Given the thoughtful inquiry of the district court, the district court's use of the term “ ‘waiver,’ “ and the district court's advice to the defendant that he would be better off submitting to a jury trial, the court determined the defendant in Beaman had knowingly and voluntarily waived his right to a jury trial in that case. 295 Kan. at 860–61.
Bell's case is factually distinguishable from Beaman. Although the district court in this case did not use the magic words “right to a jury trial,” it did specifically ask about “waiving jury trial,” much like in Beaman. The similarities end there. The exchange between the district court and Bell made a minimal reference to his statutory right to request a jury trial. There is nothing in the record to indicate that Bell was informed of his constitutional right to a jury trial or what rights are encompassed within the right to a jury trial including a trial by a jury of his peers, and that all the jurors would have to be convinced beyond a reasonable doubt as to his guilt. The district court did not conduct any real inquiry into Bell's understanding of the consequences of his waiver. It was not explained that if he gave up his right to a jury trial that there would be no jury of his peers and that a judge would be the sole determiner of guilt or innocence. The trial court made an indirect reference that the case would be tried to the court if a waiver was entered. While those within the legal system would clearly understand that reference, it is doubtful that such a reference would mean the same to a person outside the legal system. In this case it is not known whether Bell understood the concept of a trial to the court because the necessary information detailing a trial to the court was not given and no inquiry was made as to Bell's understanding of a trial to the court.
The interaction between the district court and Bell did not inform Bell of critical information he would need to have to make a knowing waiver. The effect of the interaction between the district court and Bell was essentially a warning that Bell could not change his mind at a later date if he entered a waiver.
The record does indicate that Bell discussed waiving his request for a jury trial with his attorney. The record does not indicate whether that discussion pertained to Bell's statutory right to request a jury trial under K.S.A. 21–3404, Bell's constitutional right to a jury trial, or both, and the district court did not make any inquiry as to the content of that conversation between Bell and his counsel. Without any context for the conversation, this court cannot fill in the blanks of an otherwise silent record to hold that Bell somehow understood the consequences of his decision to waive his jury trial. In order for a defendant to effectively waive his or her right to a jury trial, the defendant must first be advised by the court of his or her right to a jury trial. Where no such advice appears on the record, a defendant's jury trial waiver is ineffective. State v. Johnson, 46 Kan.App.2d 387, 399, 264 P.3d 1018 (2011), rev. denied 293 Kan. 1111 (2012).
The district court's failure to advise Bell of his constitutional right to a jury trial means that Bell did not effectively waive that right. This constitutes reversible error. 46 Kan.App.2d at 400. We reverse and remand this case to the district court for further proceedings where Bell may either exercise or properly waive his right to a jury trial. While Bell raised other issues on appeal, those issues are rendered moot as result of the foregoing ruling.
Reversed and remanded with directions.