Defendant must be present when jury question answered

Lydia Krebs won in State v. Sanchez, No. 105,547 (Kan. App. Aug. 10, 2012), reversing convictions of one count of aggravated robbery, two counts of aggravated assault, and one count of theft.  The court reversed the convictions and remanded for a new trial because the district court answered a question from the jury when the defendant was not present for the discussion of the answer or the answer itself.  The court explained that this violated Sanchez's statutory and constitutional rights.

The case involved a robbery of a check-cashing window at National Beef in Seward County.  The suspect was seen getting into a Jeep Liberty after the robbery, a vehicle which was allegedly linked to to Mr. Sanchez at a later time.  According to the panel, the following procedural facts arose at trial:

After the case was given to the jury for deliberations, the jury submitted a question to the district court, asking, “How was the VIN of the Jeep Liberty obtained?” Though defense counsel was present during the discussion with the court and the State to form a response to the question, the defendant was not present, nor was he present when the court gave its answer to the jury. The court asked defense counsel if he was “comfortable having this portion of the hearing without [the defendant] present,” to which he responded, “Yes.”

The court ultimately answered the jury's question by stating, “Ladies and gentlemen, I am unable to answer your question. Please use the collective memory and recollection of the entire jury as to the testimony and evidence admitted.” The record does not tell us whether this answer was read aloud in court or simply submitted in writing, only that “[a] response was given to the jury and deliberations continued.” The court asked defense counsel if there were any objections to the proposed answer and defense counsel said there were none. No objection was made thereafter to the court's response or to the defendant's absence.

The appellate panel explained that a defendant has a right to be present at every stage of their trial under Confrontation Clause of the Sixth Amendment, the Due Process Clause of the Fourteenth Amendment, and K.S.A. 22-3405. The court also explained that a defendant has the explicit statutory right to be present for a jury question/answer during deliberations under K.S.A. 22-3420(3).  The court held that the answering of the jury's question without the input or presence of Sanchez violated his constitutional and statutory rights to be present.

The COA also held that the district court failed to give a meaningful response to the jury.  It stated that the district court should have directed the jury to the testimony of the applicable witnesses or offered a read-back of their testimony.  In fact, the court had a statutory duty to offer a meaningful response under K.S.A. 22-3420(3).

Lastly, the court held that the error was not invited and that the State did not prove that the error was harmless.  On the issue of "invited error," the court stated that there is a distinction when the answer to the jury is fact-related instead of a technical legal question.  The court noted that Sanchez could have helped to answer the factual question from the jury, and nothing showed that he had any input whatsoever.  Thus, the error was not invited by the defense.  In addition, the court explained that the State had not met its burden to prove the error harmless, given the "cursory" argument regarding harmlessness in the State's brief and the fact that the testimony regarding the VIN did not directly link Sanchez to the robbery.