State v. Cooper, 303 Kan. 764

Timothy J. Cooper was convicted by a jury of severity level 4 aggravated battery for shooting Richard Fleig in the foot and sentenced to 162 months.
Facts: Cooper (with an accomplice) confronted Fleig; after a brief altercation Fleig retreated and the van occupants fired; Fleig sustained a through-the-toe gunshot with significant tissue loss, bleeding, pain, and photos admitted at trial.
During jury deliberations the jury sent three written questions; the court, after discussing the questions in chambers with counsel and Cooper, provided written answers to the jury outside the courtroom.
Cooper contended on appeal that the written response violated his statutory and constitutional rights (presence at critical stages, public trial, impartial judge).
Cooper also contended the court erred by not giving a lesser-included instruction for severity level 7 aggravated battery (i.e., bodily harm with a deadly weapon), an argument raised for the first time on appeal.
The Supreme Court assumed constitutional error as to Cooper’s right to be present but found the error harmless beyond a reasonable doubt; it also held the failure to give the lesser instruction was not clearly erroneous.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Cooper)	Held
Whether the court violated Cooper's rights by answering a jury question in writing outside the courtroom	Procedure was harmless; the written answers were innocuous and agreed upon in chambers	Written response violated K.S.A. 22-3420 and Cooper's constitutional rights to be present, a public trial, and an impartial judge	Assuming a constitutional error in Cooper's absence, the State proved harmless beyond a reasonable doubt; public trial/impartial judge claims not preserved (insufficiently briefed)
Whether the court erred by refusing to give a lesser-included instruction for severity level 7 aggravated battery	Lesser instruction not outcome-determinative; even if appropriate, no reasonable possibility it would have changed the verdict	District court erred in treating a through-and-through wound as great bodily harm as a matter of law and refusing the instruction	The court disapproved PIK comment that through-and-through shots are great bodily harm as a matter of law; but Cooper failed to show the absence of the instruction was clearly erroneous (no firm conviction it would have changed the verdict)

State v. Bolze-Sann, 302 Kan. 198 (harmless-error framework for jury-deliberation communication)
State v. Verser, 299 Kan. 776 (court must answer jury in open court with defendant present)
State v. Bowen, 299 Kan. 339 (review of similar jury-communication claims)
State v. King, 297 Kan. 955 (communication with jury outside defendant's presence violated rights)
State v. Williams, 295 Kan. 506 (lesser-included instruction analysis; factual sufficiency)
State v. Brice, 276 Kan. 758 (disapproved statements treating through-and-through wounds as great bodily harm as matter of law)
State v. Soto, 301 Kan. 969 (standards for reviewing failure to give lesser-included instruction)