State v. Johnson – Hill, 391 P.3d 711

Background

Defendant Daquantrius S. Johnson was convicted of firearms offenses and sentenced; he appealed raising 10 issues, centering on the judge having fallen asleep during trial.
On day two a juror told the bailiff they had seen the judge "nodding off" the prior afternoon; the judge acknowledged on the record that he "did nod off some."
The judge told the jury he did not think any rulings were affected, asked defense whether it wished to move for a mistrial, and defense counsel declined.
The judge’s sleep occurred during the first afternoon after jurors were seated: preliminary instructions, opening statements, and the prosecutor’s first witness.
The panel majority held a sleeping judge is structural error requiring automatic reversal and ordered a new trial; it also found the trial court erred by refusing a lesser-included misdemeanor discharge instruction but rejected a jury-waiver claim about a stipulation.
A dissent argued (1) Kansas precedent and other jurisdictions require prejudice for reversal, (2) the record showed no prejudice and the judge mitigated any harm, (3) K.S.A. 22-3423 provided an adequate remedy (mistrial procedure) that defense counsel waived, and (4) defense counsel’s waiver invited the error.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (State)	Held
Whether a judge falling asleep during a criminal jury trial is structural constitutional error	A sleeping judge is effectively an absent judge and thus deprives defendant of the structural right to a trial "in the presence" of a presiding judge; error is structural and not subject to harmless-error review	Issue not preserved and, if considered, was invited error or harmless because no prejudice shown	Majority: Sleeping judge is structural error; convictions reversed and new trial ordered
Whether defense counsel’s failure to move for mistrial constituted invited error that bars appellate review	Johnson contends invited-error doctrine inapplicable because error is structural	State argues waiver/invited-error prevents relief if error is not structural	Majority: Invited-error doctrine inapplicable because error is structural; Dissent: would apply invited-error doctrine and affirm
Whether court had to obtain a jury-trial waiver before accepting defendant’s stipulation to a prior adjudication for firearm-possession element	Johnson argues his right to a jury trial required personal waiver before stipulation used	State relies on White/Lee precedent that counsel-signed stipulations are valid and no personal advisement is required	Held: No relief — White controls; no violation of jury-trial right on stipulation point
Whether the trial court erred by refusing to instruct on misdemeanor discharge (lesser-included offense)	Johnson argued misdemeanor discharge was a legally and factually appropriate lesser-included offense and should have been instructed	State opposed and trial court found the misdemeanor factually inapplicable	Held: Failure to instruct was error and reversible because a rational factfinder could have convicted of misdemeanor; on remand misdemeanor alternative must be given if charged

Key Cases Cited

Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991) (distinguishes trial errors from structural errors and explains structural defects defy harmless-error analysis)
Gomez v. United States, 490 U.S. 858 (U.S. 1989) (right to an impartial and properly authorized adjudicator is among rights that can be structural)
Mortimer v. United States, 161 F.3d 240 (3d Cir. 1998) (absence of a judge at a critical stage deemed to destroy the trial forum; verdict nullity on those facts)
People v. Vargas, 174 Ill. 2d 355 (Ill. 1996) (per se reversible error when judge left bench during cross-examination)
Ettus v. Orkin Exterminating Co., Inc., 233 Kan. 555 (Kan. 1983) (civil case holding judicial somnolence requires prejudice shown; mere possibility insufficient)
State v. Jones, 290 Kan. 373 (Kan. 2010) (discusses structural-error analysis for Sixth Amendment violations)
State v. White, 222 Kan. 709 (Kan. 1977) (trial court need not interrogate a represented defendant before accepting counsel-signed stipulations)
State v. Lee, 266 Kan. 804 (Kan. 1999) (procedure for stipulations to prior convictions in firearm-possession status cases)