by Douglas Ankney

The Supreme Court of Kansas held that the complete and wrongful denial of criminal defendant John R. Cantu’s constitutional right to testify by removing him from the stand and striking his entire trial testimony constituted structural error and that the Court of Appeals erred in holding that the complete and wrongful denial to testify was subject to harmless-error review.

Cantu was tried by jury on two counts of felony stalking, two counts of violation of protection from stalking orders, criminal damage to property, criminal trespass, and felony criminal threat. He chose to exercise his right to testify in his defense. During cross-examination by the prosecutor, the following exchange occurred:

State: You would agree that there was a protection from stalking that was filed against you, correct?

Cantu: No.

State: You also agree?

Cantu: For the record, for the record—

Court: You need to wait for a question.

Cantu: I didn’t finish.

Court: You need to wait for a question.

Cantu: I didn’t finish answering the first one.

Court: I said it two times now. You need to wait for a question.

Cantu: She asked if I agreed.

Court: Sit back and wait for a question.

Cantu: May I be allowed to explain? Do I have to say yes or no?

Court: Mr. Cantu, if you don’t cooperate, I’m going to ask you to go back to the table.

Cantu: May I ask a question?

Court: You need to listen to the questions.

Cantu: Am I supposed to answer yes or no?

Court: Go sit at the table right now. Absolutely right now.

Cantu: I don’t understand. Can I object to this?

Court: Sit at your table.

Cantu: I mean, she asked me a question.

Court: Officers, would you remove Mr. Cantu from the courtroom?

Cantu: Is this going to be on the record?

Cantu was escorted to his seat at the defense table, and his counsel asked: “Is that sufficient, Your Honor?” The trial judge responded: “If Mr. Cantu will remain compliant it is. Otherwise, I will require his removal. He’s indicating by his posture and returning to his seat that he will remain compliant.”

Then, in response to the prosecutor’s motion and in front of the jury, the trial judge ordered Cantu’s entire testimony be stricken from the record on the grounds that “Mr. Cantu would not cooperate when I told him to only answer questions on cross-exam. I believe the State’s request is valid. His testimony is stricken.”

The jury acquitted Cantu of criminal trespass but convicted him of the remaining charges. He timely appealed. The Court of Appeals (“COA”) reversed the two stalking convictions and the two convictions for violation of a protection from stalking order due to insufficient evidence but affirmed the criminal damage to property and the criminal threat convictions. The COA also “concluded that the district court erred in ordering Cantu’s testimony stricken from the record and that this error denied Cantu the constitutional right to testify.” But the COA held that the denial was not structural error and analyzed it under the harmless error standard and concluded that the error was harmless.

Cantu petitioned for review, challenging, inter alia, that the COA’s “holding that the complete and improper denial of the constitutional right to testify is not structural error but an error that can be analyzed for harmlessness.”

The Kansas Supreme Court observed the “right to testify on one’s own behalf at a criminal trial is a fundamental right grounded in multiple provisions of the United States Constitution.” Rock v. Arkansas, 483 U.S. 44 (1987). Citing Rock, the Court observed that “this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, and necessarily implied by the Fifth Amendment privilege against self-incrimination.” Because the right permits a defendant to “present his own version of events in his own words,” the U.S. Supreme Court “has identified the right to testify as one in a bundle of minimum due process rights guaranteed by the Fourteenth Amendment that are essential to a fair trial.” Rock.

But the right to testify is not absolute and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock. The right “is necessarily limited by procedural and evidentiary rules [and] offsetting obligations to tell the truth and submit to cross-examination.” Nix v. Whiteside, 475 U.S. 157 (1986). But “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” Rock.

“A defendant voluntarily waives the right by choosing not to testify.” State v. McKinney, 561 P.2d 432 (Kan. 1977) (citing federal cases). The U.S. Supreme Court in Illinois v. Allen, 397 U.S. 337 (1970), held that the right to be present during trial may be forfeited due to serious misconduct at trial, and many courts have extended that holding and determined that a defendant may forfeit the right to testify due to serious misconduct at trial. (See opinion for supporting citations from federal circuit and state courts.)

In Allen, the defendant engaged in “threatening, abusive outbursts” and “threatened the judge would be made a ‘corpse.’” He also stated: “There’s not going to be no proceeding. I’m going to start talking and I’m going to keep on talking all through the trial.” Although the U.S. Supreme Court cautioned “that courts must indulge every reasonable presumption against the loss of constitutional rights, [it] made clear that ‘flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.’” Allen.

“[A] court may also infringe on the right to testify by striking the defendant’s testimony,” but “[s]triking the testimony of any witness is a drastic remedy not to be lightly invoked.” United States v. McKneely, 69 F.3d 1067 (10th Cir. 1995). When the witness is the defendant, “courts must proceed with extra caution when deciding whether to strike testimony due to the constitutional right at stake.” Allen. “This obligation is not lessened when the defendant’s behavior causes frustration” because “[a] contentious defendant has no fewer rights than a sympathetic one.” Ortega v. O’Leary, 843 F.2d 258 (7th Cir. 1988). However, striking testimony is an appropriate remedy when a witness testifies to irrelevant matters or refuses to answer questions on cross-examination. United States v. Evans, 908 F.3d 346 (8th Cir. 2018).

Turning to the present case, the Kansas Supreme Court accepted “as conclusive” the COA’s “determination that the district court denied Cantu’s constitutional right to testify by striking his direct testimony” because the State did not cross-petition for review on that question. See State v. Corey, 374 P.3d 654 (Kan. 2016). So, the question was: What type of error analysis applied?

“Most errors that occur during a criminal trial, even those affecting a defendant’s constitutional rights, can be reviewed to determine whether they are harmless.” State v. Herbel, 299 P.3d 292 (Kan. 2013). “A constitutional error is harmless only if the party benefitting from the error establishes beyond a reasonable doubt the error will not or did not affect the trial’s outcome in light of the entire record.” Id. “Constitutional errors determined to be harmless do not require reversal.” State v. Ward, 256 P.3d 801 (Kan. 2011).

The Court explained that the “United States Supreme Court has recognized a limited category of errors which violate constitutional rights ‘so basic to a fair trial that their infraction can never be treated as harmless.’” Chapman v. California, 386 U.S. 18 (1967). Included in this category are: (1) coerced confession (2) total deprivation of counsel, (3) having an impartial judge, (4) denial of counsel of one’s choice, (5) defective reasonable-doubt instruction, (6) racial discrimination in selection of grand jury, (7) denial of public trial, (8) and denial of self-representation at trial. (See opinion for supporting citations.) These errors are “‘structural’ and require a new trial regardless of whether prejudice has been shown because they constitute a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’” Arizona v. Fulminante, 499 U.S. 279 (1991). “[E]rrors of this kind compromise the fundamental fairness expected in a criminal trial.” McCoy v. Louisiana, 584 U.S. 414 (2018).

Also, “the consequences of structural errors are generally difficult to assess and therefore unamenable to the ‘outcome based’ analysis of harmless-error review. When the prejudicial effects of a constitutional violation are unquantifiable and indeterminate, any assessment of the effect on the outcome of the trial becomes purely speculative.” United States v.Gonzalez-Lopez, 548 U.S. 140 (2006). And harmless error analysis is “irrelevant” when “the constitutional right violated protects an interest other than an erroneous conviction.” Id.

The Court explained, “[a]dditionally, the extent of the deprivation can be a factor in our finding of structural error. Wrongful, wholesale deprivations of fundamental constitutional rights are more likely to be structural.” In State v. Calderon, 13 P.3d 871 (Kan. 2000), the Kansas Supreme Court held that denial of the right to be present at trial during closing arguments due to absence of a qualified interpreter was structural error, but in State v. Mann, 56 P.3d 212 (Kan. 2002), the Kansas Supreme Court held that denial of the right to be present at trial during ex parte communications between judge and jurors was subject to harmless-error review.

The Court concluded “[g]iven the importance of the right at stake and the extent of the deprivation here, the district court’s [absolute and unqualified] denial of Cantu’s right to testify constitutes a defect affecting the entire trial framework and is therefore structural error.”

Accordingly, the Court reversed the judgments of the COA and the district court. See: State v. Cantu, 547 P.3d 477 (Kan. 2024).   

Editor’s note: Anyone interested in the topic of structural error is encouraged to read the Court’s full opinion.

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