State v. Herbel
296 Kan. 1101
| Kan. | 2013Background
- Randy Herbel was convicted of rape and aggravated indecent liberties with a child under Jessica’s Law based on August 1–2, 2006, incidents involving a 5-year-old S.C.
- Forensic interviews and statements by S.C. were admitted, including a recorded interview and a written statement by Herbel.
- During deliberations, the jury asked to replay a portion of the interview; a portion was replayed in the courtroom without clear proof of defendant or counsel presence.
- The playback implicated the defendant’s presence at a critical stage and raised constitutional and statutory rights concerns about being present at trial.
- Herbel did not object at trial to the comfort person presence or request a mitigation instruction; he raised issues on appeal.
- The court ultimately affirmed the convictions, holding the playback harmless, the comfort-person issue unpreserved, and the reasonable-doubt instruction legally appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was playback of the recorded interview a reversible error? | Herbel; violation of presence rights under Sixth Amendment and K.S.A. 22-3405(1). | State; error harmless beyond a reasonable doubt under Chapman standard. | Harmless constitutional error. |
| Did the comfort person presence preserve error for review? | Herbel; comfort person without findings violated confrontation rights. | State; issue not properly preserved; trial court findings unnecessary. | Not preserved for review. |
| Was the reasonable doubt instruction legally appropriate? | Herbel; old instruction misstates burden due to word choice; structural error possible. | State; instruction legally acceptable; Beck/Womelsdorf support. | Instruction legally appropriate; not reversible. |
Key Cases Cited
- State v. Betts, 272 Kan. 369 (2001) (presumption of absence violations when defendant not present)
- Bolton, 274 Kan. 1 (2002) (second viewing of videotape not governed by 22-3420(3))
- McGinnes, 266 Kan. 121 (1998) (four-factor test for ex parte jury communications harm)
- Ward, 292 Kan. 541 (2011) (constitutional vs nonconstitutional harmless error standards)
- Beck, 32 Kan. App. 2d 784 (2004) (wording of reasonable doubt instruction not per se reversible error)
- Womelsdorf, 47 Kan. App. 2d 307 (2012) (affirmed Beck rationale on reasonable doubt guidance)
- Ortega-Cadelan, 287 Kan. 157 (2008) (Pierce exceptions for constitutional sentencing challenges)
- Plotner, 290 Kan. 774 (2010) (avoid review when issues not properly preserved)
- Seward, 289 Kan. 715 (2009) (necessity of Rule 165 findings for contested matters)
- Davis, 281 Kan. 169 (2006) (Rule 165 findings requirement when contested)