                                         No. 110,673

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                    CHRISTOPHER CRABB,
                                         Appellant.


                               SYLLABUS BY THE COURT

1.
         Interpretation of a statute is a question of law over which appellate courts have
unlimited review.


2.
         The Kansas Legislature has mandated that in all felony trials, upon the request of
either the prosecution or the defendant, the court shall cause enough jurors to be called,
examined, and passed for cause before any peremptory challenges are required.


3.
         Our Kansas Supreme Court has ruled that a district court errs if it does not comply
with the statutory method of selecting a jury in felony trials upon the request of either
party.


4.
         In order to find an error harmless under K.S.A. 2014 Supp. 60-261, a Kansas court
must be able to declare that the error did not affect a party's substantial rights, meaning it



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will not or did not affect the trial's outcome. The party benefitting from the error always
bears the burden of proving it harmless under this standard.


5.
        Based on the record herein, where the district court used what is commonly known
as the hot-box method of jury selection over the defendant's objection, the State has failed
to meet its burden of proving the error was harmless.


        Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed February 6, 2015.
Reversed and remanded.


        Lydia Krebs and Peter Maharry, of Kansas Appellate Defender Office, for appellant.


        Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.


        MALONE, C.J.: Christopher Crabb appeals his conviction of one count of
interference with law enforcement. Crabb claims the district court committed reversible
error by using what is commonly known as the "hot-box" method of jury selection over
Crabb's objection instead of using the statutory method of jury selection set forth in
K.S.A. 22-3411a. He also argues that the district court erred in instructing the jury and
that he was denied a fair trial based on prosecutorial misconduct and cumulative error.
We hold the district court erred by using the hot-box method of jury selection over
Crabb's objection, and the State has failed to establish the error was harmless. Thus, we
reverse Crabb's conviction and remand for a new trial.




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Crabb ran from law enforcement officers


       On July 25, 2012, Special Agent Joe Cox of the Topeka Parole Office spoke with
Crabb in Topeka and learned that Crabb was on parole, or postrelease supervision, and he
was being supervised out of Junction City. Cox spoke to Crabb's parole officer in
Junction City and learned that Crabb did not have permission to be in Topeka. Cox told
Crabb to report to his parole officer in person the next morning and warned that if he
failed to do so, the Kansas Department of Corrections (KDOC) might issue a warrant for
his arrest.


       The next day, Crabb called his parole officer and told her that he could not find a
ride back to Junction City. She told him to visit her office by 4 p.m. that day. Cox failed
to show up or call the parole office, and the KDOC issued a warrant for his arrest.


       On August 22, 2012, Cox was driving an unmarked Chevy Tahoe in Topeka and
saw a man about two blocks away that he believed to be Crabb. Cox drove by the man
and confirmed that it was Crabb. Cox made eye contact with Crabb as he exited his
vehicle. Crabb immediately started running, and Cox yelled, "Police, Chris, stop
running." Cox believed that Crabb saw his police uniform—which he wore as a parole
officer and had the word "police" printed in block letters across the chest—before he
started running. Cox radioed Deputy United States Marshals Travis Edwards and Jeff
Andrew, who were nearby in an unmarked car, and told them that Crabb was running.


       Crabb ran down the street until he came upon Edwards and Andrew. He then ran
in between some houses, and Edwards and Andrew pursued him on foot. Cox later
testified that while Edwards was chasing Crabb, he yelled, "Police. Get on the ground."
Andrew ultimately stopped Crabb, and the law enforcement officers placed him in
handcuffs. Cox later testified that about 30 seconds had elapsed between the time he
exited his vehicle and the time Andrew stopped Crabb. Cox testified that while he was

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transporting Crabb to the jail, he had asked him, "If all you had was a parole warrant why
did you take off running?" Crabb responded that he did not know the parole violation was
the only reason for his arrest and that he ran "as just a habit." Cox testified that Crabb had
indicated that he knew Cox was a law enforcement officer when he ran from him.


The trial judge insisted on using the "hot-box" method of jury selection


       On August 23, 2012, the State charged Crabb with one count of interference with
law enforcement, a nonperson felony. The case proceeded to a jury trial in April 2013.
The trial resulted in a deadlocked jury, so the district court declared a mistrial.


       Crabb's second trial commenced on July 8, 2013. At the start of the trial, outside
the presence of the pool of jurors, the district judge described to counsel how the jury
would be selected for the trial. Specifically, the judge stated:


       "I decided that this morning we are going to have jury selection by what has commonly
       been referred to as hot box. That means we are going to call 12 people into the jury box
       who will be examined by the Court and by counsel. All other people will remain in the
       gallery and be able to listen to court proceedings. At the time that 12 people have been
       passed for cause, then each party will have the opportunity to exercise a peremptory
       challenge and the State will go first, if you wish to exercise one or you may pass. Then
       the defendant will have the opportunity to exercise a peremptory challenge or may pass,
       until such time as both parties have either passed, leaving 12 people in the jury box, or
       each party has exercised six peremptory challenges, then we will have our jury."


       In response, defense counsel asked what statutory provision the judge was
proceeding under, and the judge replied, "Same statute. This is allowed." Counsel did not
seem to be familiar with the hot-box method of selecting the jury, and both counsel asked
the judge several questions about how the method worked. After the questioning, defense



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counsel objected to the procedure outlined by the judge because it would "limit—or
narrow[] down the jury pool," but the court proceeded with the method anyway.


       After a recess, the parties proceeded with jury selection in the manner outlined by
the district court. Crabb and the State were each allowed six peremptory challenges. The
State ultimately used five of its peremptory challenges, and Crabb used all six.


       During the trial, Crabb testified on his own behalf. He told the jury that on the day
in question, he had gone to visit a female friend and saw a group of men standing near
her apartment. He said that his friend told him he should "probably go" because her ex-
boyfriend, who was one of the men in the group, "didn't like the idea of [Crabb] hanging
out down there." As Crabb was leaving the apartment building, he saw that the men were
"looking at [him] a little bit." Crabb said this made him "a little bit nervous."


       Crabb testified that as he was walking down the street, a black vehicle drove past
him and slammed on the brakes. Thinking it was the men from the apartment and
concerned that they might be armed, he started running. Crabb testified that the first time
he had realized that the police were chasing him was when he ran into Andrew and
complied with his order to get on the ground. Crabb said he had not heard anyone yelling
at him before he saw Andrew. After hearing the evidence, the jury found Crabb guilty as
charged of one count of interference with law enforcement. The district court sentenced
Crabb to 16 months in prison. Crabb timely appealed the district court's judgment.


       On appeal, Crabb claims the district court erred by using the hot-box method of
selecting the jury. He argues that the jury selection procedure used by the district court
violated K.S.A. 22-3411a, which provides that the court shall cause enough jurors to be
called, examined, and passed for cause before any peremptory challenges are required.
Crabb asserts that he preserved the issue for appeal by objecting to the jury selection


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method used by the district court. Finally, Crabb argues that because the State cannot
prove the district court's error was harmless, this court must reverse his conviction.


       The State argues that Crabb did not preserve this issue for appeal because the
requirements of K.S.A. 22-3411a apply only "upon the request of either the prosecution
or the defendant" and Crabb did not specifically ask the district court to follow the
statutory procedure at trial. The State also contends that any error in the district court's
method of jury selection was harmless because there is no reasonable possibility that it
could have affected the outcome of the trial.


       The parties agree that resolution of this issue requires statutory interpretation.
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).


The district court erred by failing to comply with K.S.A. 22-3411a


       K.S.A. 22-3411a, which was enacted by the legislature in its current form in 1981,
provides as follows:


               "In all felony trials, upon the request of either the prosecution or the defendant,
       the court shall cause enough jurors to be called, examined, and passed for cause before
       any peremptory challenges are required, so that there will remain sufficient jurors, after
       the number of peremptory challenges allowed by law for the case on trial shall have been
       exhausted, to enable the court to cause 12 jurors to be sworn to try the case."


       We will first address the State's argument that Crabb did not preserve this issue for
appeal. The State notes that K.S.A. 22-3411a applies only "upon the request of either the
prosecution or the defendant." The State argues there was no error because Crabb did not
specifically ask the court to follow the requirements of K.S.A. 22-3411a at trial.


                                                    6
       But as Crabb points out, his counsel specifically asked what statutory provision
the district court was proceeding under when the judge explained the jury selection
method that was going to be used at trial. After asking the judge several questions about
the proposed method, defense counsel expressly objected to the procedure outlined by the
district court. Although defense counsel never specifically requested the district court to
follow the procedure set forth in K.S.A. 22-3411a, we find this shortcoming to be a
distinction without a difference. Here, defense counsel expressly objected to the jury
selection method used at trial, stating that it would limit or narrow the jury pool. We find
no merit in the State's argument that Crabb did not preserve this issue for appeal.


       Crabb cites State v. Mitchell, 234 Kan. 185, 192-96, 672 P.2d 1 (1983), to support
his argument that the district court erred by failing to use the jury selection procedure set
forth in K.S.A. 22-3411a. In Mitchell, the district court used a jury selection method
identical to the hot-box method used by the district court at Crabb's trial. In finding that
the district court erred in the manner that it selected the jury, our Supreme Court stated:


       "The trial court did not follow the mandate of K.S.A. 22-3411a in providing for
       peremptory challenges to the jury. The appellant was entitled to eight such challenges. He
       received eight challenges but he had to exercise them piecemeal rather than in
       comparison to the entire panel. It is readily apparent the statute provides a defendant a
       more favorable method of challenging." 234 Kan. at 195-96.


       However, the Mitchell court found the error to be harmless in that case because
there was "no affirmative showing of prejudice to the appellant or that the result of the
trial would have been different had the statute been followed." 234 Kan. at 196. Our
Supreme Court warned that it would be less forgiving of such errors in the future by
concluding its opinion with the admonition that "K.S.A. 22-3411a must henceforth be
followed, if requested." 234 Kan. at 196. Since 1983, no reported case in Kansas has
revisited the jury selection issue addressed by the court in Mitchell.


                                                    7
       Based on Mitchell, it is clear that the district court erred by using the hot-box
method of jury selection over Crabb's objection, as opposed to using the statutory method
of jury selection. Both jury selection methods allow the parties to exercise all the
peremptory challenges allowed by statute. See K.S.A. 2014 Supp. 22-3412. However, the
statutory method of jury selection is superior to the hot-box method for at least two
reasons. First, as the Mitchell court noted, the hot-box method requires counsel to
exercise their peremptory challenges piecemeal rather than in comparison to the entire
panel. How can a party properly exercise a peremptory challenge to strike a juror when
the next juror seated by the court may be even worse, from that party's perspective, than
the juror who was initially challenged? The statutory method of jury selection allows
counsel to examine all prospective jurors before any peremptory challenges are required,
thereby allowing counsel to compare all prospective jurors before deciding how the
peremptory challenges should be exercised.


       Second, under the hot-box jury selection method, after the parties have exercised
all peremptory challenges and the final juror is seated in the jury box, that final juror may
only be removed for cause. There is no remaining peremptory challenge for the final
juror seated by the court. Thus, unless a party is successful in striking the final juror for
cause, the final juror will remain on the jury. And a party may not want to run the risk of
offending the final juror by challenging that juror for cause, in case the trial judge should
overrule the challenge.


The State has failed to prove the error was harmless


       Having found that the district court erred in using the hot-box method of jury
selection over Crabb's objection, we now turn to whether the error requires Crabb to
receive a new trial. A district court's error may be harmless if the error did not affect any
party's substantial rights. See K.S.A. 2014 Supp. 60-261. In Mitchell, 234 Kan. at 196,
the court found that the jury selection error was harmless because there was "no

                                               8
affirmative showing of prejudice" to the defendant. In other words, the Mitchell court
placed the burden on the defendant to make an affirmative showing that the result of the
trial would have been different had the error not occurred. However, harmless error
analysis has changed significantly in Kansas since Mitchell was decided.


       In State v. Ward, 292 Kan. 541, 564-65, 256 P.3d 801 (2011), cert denied 132 S.
Ct. 1594 (2012), the Kansas Supreme Court held that to find an error harmless under
K.S.A. 60-261, a Kansas court must be able to declare the error "did not affect a party's
substantial rights, meaning it will not or did not affect the trial's outcome." The party
benefitting from the error always bears the burden of proving it harmless under this
standard. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). The level of
certainty by which a court must be convinced depends upon whether the error implicates
a federal constitutional right. Ward, 292 Kan. at 565-66. Where an error implicates a
statutory right but not a federal constitutional right, the party benefitting from the error
must persuade the court that there is no reasonable probability that the error affected the
trial's outcome in light of the entire record for it to be deemed harmless. State v.
McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012).


       Here, the jury selection error implicates a statutory right but not a federal
constitutional right. The State, as the party benefitting from the error, bears the burden of
proving there is no reasonable probability that the error affected the trial's outcome. In
asserting that the error was harmless, the State argues in its brief that "Crabb makes no
argument that he was prejudiced in any way due to the district court's procedure in jury
selection. Crabb makes no assertion or suggestion that any of the jurors were biased,
impartial, or prejudiced against him." But this argument fails to recognize that the burden
is on the State, rather than Crabb, to show that the error was harmless.


       The State also notes that Crabb was not forced to waive any of his peremptory
challenges. But as Crabb points out, if he had received the opportunity to compare all

                                               9
potential jurors before making his peremptory challenges, he might have used his
challenges on different jurors. The evidence of Crabb's guilt was not overwhelming, his
motives for causing the brief chase by law enforcement were subject to more than one
reasonable interpretation, and his first trial resulted in a deadlocked jury. The State has
made no affirmative showing that the jury selection error did not affect Crabb's
substantial rights. We stop short of finding that the use of the hot-box procedure
constituted structural error. There may be cases in which the State could meet its burden
of proving that the error did not affect the trial's outcome. But based on the record herein,
we find that the State has failed to persuade this court that the error was harmless.


       We note that the hot-box method, sometimes called the "jury-box" method, is
permitted in some federal courts. See, e.g., United States v. Severino, 800 F.2d 42, 47 (2d
Cir. 1986). The Second Circuit Court of Appeals has found that federal trial courts have
broad discretion in determining how peremptory challenges will be exercised and that the
hot-box method is not an abuse of that discretion so long as the defendant is not
prevented from using all of his or her peremptory challenges. See United States v.
Thompson, 76 F.3d 442, 451-52 (2d Cir. 1996). But the fact that some federal courts
permit the use of the hot-box jury selection method does not mean that Kansas courts are
free to ignore the mandate of K.S.A. 22-3411a for selecting juries in felony trials.
Likewise, the fact that some federal courts allow the hot-box method of jury selection
does not mean that a Kansas court's failure to comply with K.S.A. 22-3411a is always
harmless error.


       In sum, the Kansas Legislature has mandated one method of jury selection in all
felony trials upon the request of either party. Our Supreme Court has stated that a district
court errs if it does not comply with the requirements of K.S.A. 22-3411a—and for good
reason—the statutory method provides the fairest and most effective way of selecting a
jury in felony trials. Based on the record herein, we conclude the State has failed to meet
its burden of proving the error harmless. Therefore, we reverse Crabb's conviction of

                                             10
interference with law enforcement and remand for a new trial. Because our ruling on this
issue is dispositive, we need not address the other issues Crabb has raised in this appeal.


       Reversed and remanded.




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