by Douglas Ankney

The Supreme Court of Kansas held that a district court “failed to properly apprise [Bryan Richard] Harris of his right to a jury trial and failed to ensure that Harris understood the nature of the right he was giving up.”

Harris was transported to the Atchison County Jail after being arrested on an outstanding misdemeanor warrant. At the jail’s intake, someone removed Harris’ jacket and placed it on the intake bench. After Harris was patted down and placed in a holding cell, someone moved the jacket to a filing cabinet behind the intake desk. About 20 minutes later, an officer searched the jacket and found cigarellos that contained marijuana. Harris was charged with a felony in connection with the marijuana.

At arraignment on the felony, Harris pleaded not guilty. His attorney first asked the court to set the case for trial and then asked Harris if he wanted “a judge or a jury?” Harris answered, “Go with the judge. I want the bench.” The district judge then asked, “Are you asking for a jury trial, Mr. Harris?” Harris answered, “I’m asking for a bench trial.... I don’t want to waive no liabilities, right?” Harris’ attorney then interjected, “It’s up to you. If you want the Court to make a decision — or a jury — it’s up to you.” Harris responded, “I want the judge to make a decision.... I want the judge to. I don’t want the Court to. I want the judge to.”

At the ensuing bench trial two months later, Harris was represented by a different attorney. Harris expressed he was dissatisfied with the attorney’s failure to file some suggested motions. The district court told Harris that the decisions of whether to plead guilty or not guilty; whether to testify or to not testify; and whether to have a jury trial or a bench trial were up to Harris — but matters of trial strategy were decisions to be made by his attorney.

Harris then stated he “chose a bench trial because it ain’t going to be mostly deciding what the law is, laws and facts, something the jury don’t get to do, as you’re well aware of.... What I know and what I would like to believe is that I have a fair judge and someone who can decide the law fairly and that isn’t going to allow the prosecutor to subvert the law in order to obtain a defense –  a criminal – a criminal conviction against somebody who he claims broke the law.”

The bench trial then proceeded, and Harris was found guilty of marijuana possession. Harris raised for the first time in his appeal to the Court of Appeals that he did not properly waive his right to a jury trial. The Court of Appeals affirmed Harris’ conviction, and the Supreme Court of Kansas granted his petition for further review.

The Court observed that even though it generally does not address even constitutional issues that are raised for the first time on appeal, there are recognized exceptions. State v. Hirsh, 446 P.3d 472 (Kan. 2019). One exception is if consideration of the issue would prevent the denial of fundamental rights. Id. The Court had previously emphasized “the fundamental nature of the right to jury trial.” State v. Redick, 414 P.3d 1207 (Kan. 2018). “[J]ury trial waivers should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury.” Id.

“The test for determining a waiver’s validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing.” State v. Lewis, 344 P.3d 928 (Kan. 2015). “[I]n order for a criminal defendant to effectively waive his right to a trial by jury, 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, 533 P.2d 1225 (Kan. 1975). The district court must engage in a “thoughtful exchange” with the defendant about the nature of the right to jury trial and ensure that the defendant understands he is entitled to jury trial by default. State v. Beaman, 286 P.3d 876 (Kan. 2012).

The Kansas Supreme Court concluded that the district court did not properly inform Harris of his right to a jury trial or the nature of that right. At most, the district court had presented the right as an option to a bench trial. And from Harris’ responses, it wasn’t clear that he understood the nature of the right that he was giving up.

Accordingly, the Court reversed the decisions of the district court and the Court of Appeals and remanded to the district court so that Harris could be informed of his right to a jury trial to allow him to either exercise that right or properly waive it. See: State v. Harris, 461 P.3d 48 (Kan. 2020).

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