Stipulation to element requires proper jury trial waiver

Samuel Schirer won in State v. Johnson, No. 113,228 (Kan. November 27, 2019), obtaining a new trial in a Sedgwick County criminal possession of a firearm, aggravated assault, and criminal discharge of a firearm prosecution. The COA had found that the trial judge had fallen asleep at one point during the trial and reversed for structural error. The KSC reversed the holding that such an error was structural and remanded to the COA for a prejudice analysis. But the KSC also reversed the COA's holding that the district court was not required to obtain a proper jury trial waiver when accepting Mr. Johnson's stipulation to an element of the criminal possession charge. As is common in a criminal possession of a firearm prosecution, Mr. Johnson indicated an interest in stipulating to a predicate offense, which is an element of that offense. The KSC held that, even a stipulation to a single element, implicates the Jury Trial Clause and would require a proper waiver colloquy:

The State suggests the stipulation by itself was not tantamount to a guilty plea and did not require a jury trial waiver at all. We disagree. The Fifth and Sixth Amendments to the United States Constitution "entitle [] criminal defendant[s] to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000). And when a defendant stipulates to an element of a crime, the defendant has effectively given up his or her right to a jury trial on that element.

We have consistently held that jury trial waivers "should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury." And because every defendant has the fundamental right to a jury trial, courts cannot accept a jury trial waiver "'unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.'" State v. Irving, 216 Kan. 588, 589-90, 533 P.2d 1225 (1975) (noting that a waiver will not be presumed from a silent record). 

So the KSC remanded this issue to the COA as well for a determination of whether Mr. Johnson validly waived his right to jury trial.

[Update: on remand, the COA held that any judicial misconduct error was invited and/or Mr. Johnson did not show that it was prejudicial. But it also held that the criminal possession of a firearm had to be reversed for lack of a jury trial waiver. And it had already reversed the criminal discharge of a firearm conviction based on failure to give a lesser-included offense. State v. Johnson, No. 113,228 (Kan. App. May 1, 2020)(unpublished). So it affirmed the aggravated assault conviction and reversed and remanded the remaining convictions for new trial.]

[Further update: the KSC denied Mr. Johnson's second PR and the mandate issued on October 14, 2020.]