               IN THE SUPREME COURT OF THE STATE OF KANSAS


                                           No. 113,228

                                       STATE OF KANSAS,
                                           Appellee,

                                                 v.

                                  DAQUANTRIUS S. JOHNSON,
                                        Appellant.


                                SYLLABUS BY THE COURT

1.
       Structural error occurs when the error interferes with the court's basic function and
denies a defendant the basic protections afforded during criminal trial. Structural errors
are so pervasive they defy analysis by harmless-error standards and require automatic
reversal.


2.
       An isolated incident of a trial judge nodding off during a portion of testimony
where no objections were made does not create structural error requiring automatic
reversal.


3.
       When a defendant stipulates to an element of a crime, the defendant has
effectively waived his or her right to a jury determination of that element. Thus, a valid
jury trial waiver—limited to the stipulated element or elements—is required.


       Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 734, 391 P.3d 711 (2017).
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed November 27, 2019.



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Judgment of the Court of Appeals reversing the district court is reversed and the case is remanded to the
Court of Appeals with directions. Judgment of the district court is affirmed in part and reversed in part as
to the issues subject to review.


        Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.


        Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the briefs for appellee.


The opinion of the court was delivered by


        STEGALL, J.: Daquantrius Johnson was charged with criminal possession of a
firearm, aggravated assault, and felony criminal discharge of a firearm in Sedgwick
County District Court. A jury convicted Johnson of all three counts, and the court
imposed a 43-month sentence, 12 months' postrelease supervision, and lifetime
registration under K.S.A. 2013 Supp. 22-4905(b)(2). The Court of Appeals reversed
Johnson's convictions and remanded for a new trial, holding that the trial judge "nodding
off" on the first day of trial was structural error. The lower court also held that the district
court did not have to obtain a limited jury trial waiver before accepting Johnson's
stipulation to an element of the possession charge. We reverse both of the Court of
Appeals' holdings and remand to that court for further consideration of all issues raised
by Johnson's appeal.


                            FACTUAL AND PROCEDURAL BACKGROUND


        Voir dire lasted most of the first day of Johnson's trial. The jury was seated at 3:15
in the afternoon, at which point the court took a recess to discuss preliminary instructions
with counsel. During that recess, the parties and the court agreed that Johnson wanted to
make an evidentiary stipulation and the court would inform the jury that Johnson had


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been adjudicated as a juvenile offender for an act that, if done by an adult, would
constitute a felony. The court did not take a jury trial waiver from Johnson.


       The court reconvened the jury at 3:30 and gave the jury its preliminary
instructions. Included was the following:


               "[THE COURT:] As to element two, ladies and gentlemen, the parties have
       prepared a stipulation. A stipulation is simply an agreement among the parties that a
       certain fact is true and no other evidence needs to be given to prove it. The stipulation
       reads as follows: Comes now on this 27th day of October, 2014, the Defendant,
       Daquantrius S. Johnson, personally and by and through his attorney, Terry Beall,
       stipulate for the purposes of admission into evidence at the jury trial in the above-
       captioned case as follows: That the Defendant, Daquantrius Johnson, was adjudicated a
       juvenile offender for an act which, if done by an adult, would constitute the commission
       of a felony in Sedgwick County District Court on July 2, 2012. He was not found to have
       been in possession of a firearm at the time of the prior crime and has not had the prior
       adjudication expunged or been pardoned for such crime. This adjudication prohibited him
       from owning and possessing a firearm on October 14, 2013. It's signed by the defendant,
       Mr. Johnson, by his attorney, Mr. Beall, and by Mr. Roush on behalf of the State."


       Following this, both parties presented brief opening statements and the State began
its case-in-chief by calling the victim, Randall Gifford, as its first witness. While
examining Gifford, the State offered five exhibits into evidence—the trial judge admitted
all the exhibits into evidence. Next, defense counsel cross-examined Gifford, drawing
one relevance objection from the State. The court promptly sustained the State's
objection. After this, the court recessed for the day.


       The trial resumed the next day, and began with this announcement from the court:


               "THE COURT: Good morning.




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        "THE JURY: Good morning.


        "THE COURT: Ladies and gentlemen, I believe we're ready to get underway on
this matter. Before we do that, though, there's something that I want to bring out and
discuss, and that is earlier this morning one of the jury members pulled Christine aside
and made the observation that during the course of the proceeding in the trial yesterday
afternoon I may have been sleeping or nodding off, and the question was raised whether
or not Mr. Johnson then could have a fair trial. Christine, I think, explained to the juror
that raised that issue that you are the trier of facts and at the conclusion of the case you
are the ones that decide all the factual issues and reach a determination as to whether or
not Mr. Johnson is guilty or not guilty and whether or not the case has been proven, and
that is a correct assessment of the matter.


        "As I mentioned to you yesterday in my very preliminary instructions, the role of
the judge and the jury are different. You are the trier of facts. I decide what evidence you
will hear and what instructions you will receive. I don't believe during the course of this
trial yesterday afternoon there were any objections raised that I had to make rulings on
that would have been affected by my nodding off. I acknowledge myself, ladies and
gentlemen, that I did nod off some. I doubt that I'm the first judge in America that's ever
done that.


        "And I want to also just observe the fact that I think I mentioned to you actually I
graduated from law school in December of 1971, almost 43 years ago. I've probably been
involved in as many as 300 jury trials, and over the course of my career I've learned and
have gained a great deal of respect for our jury system. I recognize fully that many
people—as I indicated in our informal discussions yesterday morning, many people when
they get a jury summons the first reaction is, golly, why do I have to do this, and yet at
the same time in my 43 years of experience most jurors I find are very conscientious
about their role and their responsibility. They take their job seriously. And, quite
honestly, I'm glad that this matter was brought out in the open so that it can be dealt with.


        "In that regard, the defendant, of course, is the one who's affected and is the one
who is entitled to have a fair trial. Obviously the State is entitled to have a fair trial also.
It is a constitutional right for the defendant to be given a fair trial. So the question is



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       whether or not the defendant now wants to make a motion for a mistrial based on this
       conduct. So, Mr. Beall, is it your wish to request a mistrial?


               "MR. BEALL: Not at this time. We're ready to proceed.


               "THE COURT: Very well. With that then we'll proceed on. Mr. Roush, you may
       call your next witness.


               "MS. HART: Your Honor, the State calls Kayla Wilson.


               "THE COURT: And I'll try to do better."


       The trial continued and the jury ultimately found Johnson guilty of all three crimes
as charged. The court imposed a 43-month sentence, 12 months' postrelease supervision,
and lifetime registration under K.S.A. 2013 Supp. 22-4905(b)(2). On appeal, Johnson
raised many issues, most of which are not before us. Because the panel reversed
Johnson's conviction after holding that the trial judge had committed structural error, it
did not address all of Johnson's remaining claims on appeal. The panel did, however,
address whether a valid jury trial waiver must accompany Johnson's stipulation to an
element of one of the charged crimes, holding that such a waiver was unnecessary. See
State v. Johnson, 53 Kan. App. 2d 734, 735-37, 742-45, 391 P.3d 711 (2017). These are
the only two issues before us and we take them up in turn.


                                               ANALYSIS


Structural Error


       It is unclear whether Johnson or his counsel observed the trial judge nodding off
during the afternoon of the first day of trial. But when the trial judge addressed the matter
the next day, Johnson did not object to continuing with the trial or move for a mistrial



                                                     5
when given the opportunity. Ordinarily, this lack of an objection could preclude our
review of the issue. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (an
argument ordinarily cannot be raised for the first time on appeal). The State has not made
a preservation argument, however, and the Court of Appeals decided to consider the issue
for the first time on appeal. Given that we review intermediate appellate court decisions
to consider issues for the first time on appeal for an abuse of discretion, and given the
State does not claim the Court of Appeals abused its discretion by reaching this issue, we
will not disturb the lower court's implicit preservation holding. See State v. Parry, 305
Kan. 1189, 1192, 390 P.3d 879 (2017) (explaining that "preservation is a prudential rule,
rather than a jurisdiction bar" and thus reviewing a Court of Appeals decision to reach or
not reach an unpreserved issue for abuse of discretion).


       When considering the merits, the Court of Appeals found no caselaw directly on
point. In lieu of such precedent, a majority of the panel drew an analogy between the
"nodding off" judge in Johnson's trial and a judge who is physically absent from the trial
for some period of time. See Johnson, 53 Kan. App. 2d at 736-42. Because many
instances of a physically absent judge have resulted in a finding of structural error, the
majority ruled that "a sleeping judge does not and cannot preside over a trial" and cannot
"supervise anything other than his or her dreams." 53 Kan. App. 2d at 738-39. Thus, the
court ruled that "[o]bviously, this issue defies harmless error analysis." 53 Kan. App. 2d
at 738. Judge Buser disagreed, however, stating that "[a] new structural error standard
applied in these situations would be without precedent, unnecessary, and prone to abuse
by defense counsel." 53 Kan. App. 2d at 757 (Buser, J., dissenting).


       Before us, Johnson reprises these arguments and maintains that the district court
judge was not consciously present while nodding off. Therefore the absent judge rubric
ought to apply—justifying a finding of structural error here. The State has never
contested the finding of error or judicial misconduct. But at the Court of Appeals, the
State argued that before judicial misconduct merits reversal, a defendant must show


                                              6
actual prejudice. And before us, the State appears to have shifted its position slightly,
now arguing that the error is constitutionally harmless. Regardless of which reversibility
test applies, the threshold question—whether structural error infected Johnson's trial—is
a question of law over which we exercise plenary review. State v. Hill, 271 Kan. 929,
934, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles, 284 Kan. 239,
252-53, 160 P.3d 794 (2007).


       A structural error is one that is so pervasive it defies "analysis by 'harmless-error'
standards." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302
(1991). These errors are "structural defects in the constitution of the trial mechanism,"
which affect the "entire conduct of the trial from beginning to end." 499 U.S. at 309-10.
They prevent the trial court from serving its basic function of determining guilt or
innocence and deprive defendants of the "basic protections" of a criminal trial. Neder v.
United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Rose
v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]). Such errors
render the trial "'fundamentally unfair,'" requiring automatic reversal. Neder, 527 U.S.
at 8 (quoting Rose, 478 U.S. at 577). So far, the United States Supreme Court has
identified "a very limited class of cases" involving structural errors, including: (1) total
deprivation of counsel; (2) lack of an impartial trial judge; (3) denial of the right to self-
representation at trial; (4) violation of the right to a public trial; (5) erroneous reasonable-
doubt instruction; and (6) unlawful exclusion of members of the defendant's race from a
grand jury. Neder, 527 U.S. at 8; United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct.
2159, 176 L. Ed. 2d 1012 (2010); Fulminante, 499 U.S. at 310.


       Notably, the Supreme Court has not included a judge nodding off (or even a
physically absent judge) in its limited class of structural errors. And in Kansas, there is no
precedent finding structural error on facts like those before us here. Similarly, there is no
federal precedent finding structural error when a judge falls asleep during a criminal jury



                                               7
trial. See, e.g., United States v. White, 589 F.2d 1283, 1289 (5th Cir. 1979) (holding that
the judge's falling asleep during defense counsel's opening argument was not prejudicial
error).


          Even if we were to accept the panel's view that a physically absent judge is always
structural error, we reject the way the lower court equated what happened during
Johnson's trial with a physically absent judge. The record of the time-period in question
does not suggest an absent judge—quite the opposite. The court did not read its
preliminary jury instructions until 3:30 that afternoon. After the judge administered the
lengthy preliminary instructions—15 pages in the trial transcript—the court instructed the
parties to give their opening statements. Following opening statements, the court asked
the State to call its first witness.


          During the State's direct examination, the State offered five exhibits—all of which
the trial judge admitted into evidence. When the State finished its direct examination, the
judge called upon Johnson to cross-examine the witness. During that cross-examination,
the State lodged one objection. The court promptly sustained the objection. After the
judge sustained the objection, the defense ended its cross-examination and the judge
asked the State for any redirect. The State conducted a brief redirect, and the court
recessed for the day. So while the trial transcript contains no notation of when, precisely,
the judge was nodding off, it also does not show any lapses of judicial oversight during
the window of time in question.


          Given this, it is not reasonable to equate the trial judge's nodding off to the facts of
the cases relied on by the panel—all involving a judge who physically left the bench. See
Gomez v. United States, 490 U.S. 858, 876, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989)
(holding structural error occurred when a magistrate judge presided over jury selection);
Fiechter v. Fiechter, 97 Kan. 166, 167, 155 P. 42 (1916) (ruling "it ought not to require
very much of a showing of prejudice to authorize a new trial" in a civil jury trial where


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the judge had the clerk preside over arguments); State v. Beuerman, 59 Kan. 586, 591, 53
P. 874 (1898) (stating in dictum the trial judge leaving the bench during trial and going
into an adjoining room was improper because "there can be no court without a judge, and
he cannot even temporarily relinquish control of the court"); United States v. Mortimer,
161 F.3d 240, 241-42 (3d Cir. 1998) (holding structural error occurred where a
prosecutor tried to make an objection, but the judge had disappeared from the bench);
Peri v. State, 426 So. 2d 1021, 1027 (Fla. Dist. Ct. App. 1983) (holding it was
unworkable to require a showing of prejudice when a trial judge was absent during part
of the trial because it would not deter judges from that behavior); People v. Vargas, 174
Ill. 2d 355, 367, 370-71, 673 N.E.2d 1037 (1996) (holding it was per se reversible error
when a judge left the bench during cross-examination of a witness).


       Even in circumstances of actual judicial absence, some courts have refused to
apply structural error. See United States v. Love, 134 F.3d 595, 605 (4th Cir. 1998)
(holding that the trial judge's absence during portions of closing arguments was not
structural error that was reversible per se); Heflin v. United States, 125 F.2d 700, 700-01
(5th Cir. 1942) (holding no reversible error occurred when the trial judge left the bench
for two or three minutes during closing argument); People v. Garcia, 826 P.2d 1259,
1266 (Colo. 1992) (holding that the trial judge leaving the court room while videotaped
evidence was played to the jury was not reversible error); People v. Sheley, 90 N.E.3d
493, 497 (Ill. App. Ct. 2017) (holding a trial judge falling asleep does not constitute per
se reversible error); State v. Scott, 284 Neb. 703, 723, 824 N.W.2d 668 (2012)
(disapproving of the trial judge leaving the courtroom during testimony but holding the
defendant did not establish prejudice for reversal); Coddington v. State, 254 P.3d 684,
699-700 (Okla. Crim. App. 2011) (holding that a judge's absence during videotaped
testimony does not automatically create structural error); State v. Arguello, 873 N.W.2d
490, 493-94 (S.D. 2015) (holding that the trial judge leaving the courtroom while the jury
watched evidentiary videos did not rise to the level of structural error).



                                              9
       This case does not present us with facts indicating a judge who slipped into any of
the deeper phases of sleep. There is no suggestion the trial judge was actually engaged in
a full-blown nap on the bench. Certainly a dozing, heavy-lidded, or nodding judge who is
struggling to remain awake and alert is no more acceptable or proper than someone in the
same state attempting to operate an automobile. Indeed, the State has conceded error or
misconduct here, and we have no reason to question that concession. Just like a driver
who feels the overwhelming physical need for sleep should immediately get off the road,
a responsible judge charged with overseeing a criminal trial who feels the need for sleep,
and can no longer successfully put it off, has a responsibility to call a halt to the
proceedings. But just as not every dozing driver causes an accident, not every instance of
a dozing judge must lead to an automatic reversal.


       Unlike a judge who is physically absent from the courtroom, a judge who is
fighting to stay awake may still be able to control and respond to events happening in the
courtroom. Kryger et al., Principles and Practice of Sleep Medicine 19 (5th ed. 2011)
(supporting the view that "sensory processing at some level does continue after the onset
of sleep"). This situation is more akin to a judge who—like any human being—succumbs
to a distraction. Though less than ideal, distractions happen often on the bench—whether
it's conducting legal research on the matters before the court or fact checking the record
during a proceeding, they are almost inevitable. We decline to establish a bright-line rule
suggesting that anytime a judge misses some courtroom event or word the judge is
effectively absent. In the case before us, while the inattention appears significant and
serious, it was not so significant or serious to either show up in the transcript or generate
objections from the parties. We cannot say the district court judge so abdicated and
abandoned his judicial responsibilities that he was effectively absent from the courtroom.
As a result, Johnson's trial did not suffer from structural error.




                                              10
       Having determined that there was no structural error, we are left to consider the
proper framework for the remaining reversibility analysis that must follow conceded
error or misconduct. We have recently clarified that the party bearing the burden of
proving prejudice—or lack thereof—depends on whether the failure below is classified as
"judicial misconduct" or "judicial comment error." State v. Boothby, 310 Kan. 619, 626,
448 P.3d 416 (2019). In Boothby, the defendant complained of the trial judge's improper
comment during voir dire. There, we held that we will review allegedly inappropriate
comments by a trial judge as "judicial comment error" under our Chapman/Ward
constitutional harmlessness test. 310 Kan. at 628-29; see State v. Ward, 292 Kan. 541,
561, 569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.
824, 17 L. Ed. 2d 705 [1967]).


       We distinguished the reversibility analysis for "judicial comment error" from our
more traditional "judicial misconduct" reversibility standard, which puts the burden on
the party alleging error to show prejudice. We found that erroneous remarks in the form
of "judicial comment error" resemble prosecutorial error. Thus, the "logic behind
Sherman's 'error and prejudice' rubric for prosecutorial error applies with equal force to
judicial comment error." Boothby, 310 Kan. at 627.


       We expressly reserved, however, the category of "judicial misconduct" for "any
judicial error that implicates the right to a fair trial and does not concern a jury instruction
or legal ruling." Boothby, 310 Kan. at 626. Because Johnson does not complain of any
remarks made by the trial judge, this case fits into our generic "judicial misconduct"
category. So, Johnson must demonstrate that the misconduct prejudiced his substantial
rights. See Boothby, 310 Kan. at 625 (citing State v. Miller, 308 Kan. 1119, 1154, 427
P.3d 907 [2018]). But because the Court of Appeals has yet to consider whether Johnson
has met this burden, we remand this issue for the panel to examine and rule upon in the
first instances. See Miller, 308 Kan. at 1154. The analysis must include a consideration of
the overall strength of the evidence against Johnson and the impact of any curative steps


                                              11
taken by the trial judge to purge the taint of the misconduct. See State v. Gaither, 283
Kan. 671, 684, 156 P.3d 602 (2007) (finding judge's apology and offer to excuse
offended prospective jurors "purged the taint of the misconduct").


Jury Trial Waiver


       Next, Johnson argues the Court of Appeals erred in holding the district court was
not required to obtain a jury trial waiver before accepting his stipulation to an element of
one of the crimes charged. Whether Johnson's stipulation constituted a knowing and
voluntary waiver of his right to a jury trial on this element is a question of law subject to
unlimited appellate review. State v. Rizo, 304 Kan. 974, 979, 377 P.3d 419 (2016)
(quoting State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012) ("'But when the facts
of the district court's determination to accept a jury trial waiver are not disputed, the
question whether the defendant voluntarily and knowingly waived the jury trial right is a
legal inquiry subject to unlimited appellate review.'").


       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, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000) (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310,
132 L. Ed. 2d 444 [1995]). 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. United
States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006) (quoting United States v. Mason, 85
F.3d 471, 472 [10th Cir. 1996]).


       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."


                                              12
See, e.g., Beaman, 295 Kan. at 858. 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).


       In sum, the district court judge's admitted sleeping was misconduct but did not rise
to the level of structural error. But the district court did err when it accepted Johnson's
elemental stipulation without first obtaining a knowing and voluntary jury trial waiver on
the record. Therefore, we remand Johnson's appeal to the Court of Appeals for further
consideration of all issues Johnson raised on appeal in light of our decision today.


       Reversed and remanded with directions.


       JOHNSON, J., not participating.1




1
 REPORTER'S NOTE: Justice Johnson heard oral arguments but did not participate in
the final decision in case No. 113,228. Justice Johnson retired effective September 6,
2019.



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