Monday, August 01, 2011

Improper answer to jury question requires new trial

Christina Waugh won in State v. Stieben, No. 99,446 (Kan. July 29, 2011), obtaining a new trial in a Ford County felony DUI prosecution. During deliberations, the jury asked "Did Defendant cross the fog line before the officer turned around?" Over the defendant's objection, the district court sent a written answer to the jury in the affirmative. In fact, the actual testimonty was "The vehicle had also drifted toward the fog line when it was coming at me." The officer also testified on cross-examination that he did not see any traffic violations. As a result, the KSC concluded that the district court's answer was factually incorrect and required reversal:

The response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22-3420(3). Second, the court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.
The KSC went on to address the real issue in this case: whether (as the COA had held) this error was harmless:

Harmless error analysis is inappropriate in the present case. Although it would require speculation to find reasons why the jury considered the early driving infraction important in its deliberation, the jury obviously considered it important enough to pose the question to the court. The evidence against Stieben was strong but not overwhelming. It consisted of a series of factors, any one of which standing alone might not have sufficed for conviction. She drifted toward the fog line once and crossed it three times, but she was not weaving all over the road. She committed no other traffic violations. She failed portions of the field sobriety tests, but she was not reeling and she was able to comprehend directions.

In State v. Myers, 255 Kan. 3, 9, 872 P.2d 236 (1994), this court found that the district court has a statutory duty to read back testimony when a jury requested it and that failure to comply with K.S.A. 22-3420(3) is not susceptible to harmless error analysis because the requested testimony "could have changed the way the jury evaluated the facts." In the present case, the requested testimony similarly could have changed the way the jury evaluated the facts.

In order to preserve a conviction on appeal where a constitutional trial error has been found, it is the State's burden, as the party favored by the error, to prove beyond a reasonable doubt that the error did not affect Stieben's substantial rights, meaning it did not contribute to the verdict obtained. The trial court's invasion of the jury's province as factfinder effectively denied Stieben her constitutional right to a jury trial. It is unknown why the jury considered the question important enough to submit it to the trial court, and it is unknown how the jury utilized the answer it received from the court. This court therefore cannot conclude that the State has shown beyond a reasonable doubt that the error did not affect Stieben's substantial rights. For the foregoing reasons, we find that the trial court committed reversible error in the way that it answered the jury's question about whether Stieben crossed the fog line when she first encountered Trooper Hemel.
As this decision recognizes, it should almost always be reversible error when a district court makes an error that invades the province of the jury.

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