Criminal Justice

Defendant doesn't automatically get new trial because judge nodded off, top state court rules

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A man convicted of assault and weapons charges isn’t automatically entitled to a new trial just because the judge nodded off during a portion of testimony, the Kansas Supreme Court has ruled.

The court ruled Nov. 27 in the appeal of Daquantrius Johnson, whose lawyers did not object and did not seek a mistrial when given the opportunity. An isolated instance of “nodding off” does not amount to structural error that affects the entire conduct of the trial and does not require automatic reversal, the court said.

The trial judge, Benjamin Burgess, admitted nodding off after the matter was raised by a juror. “I acknowledge myself, ladies and gentlemen, that I did nod off some,” he told jurors. “I doubt that I’m the first judge in America that’s ever done that.”

Burgess told jurors that they are the trier of facts, and judges decide what evidence jurors will hear and what instructions they will receive. Burgess said he didn’t think he missed ruling on any objections during the time in question.

Burgess then stated that it is the defendant who is entitled to a fair trial and asked whether his lawyer wished to move for a mistrial. The lawyer declined.

Johnson was sentenced to 43 months in prison after his conviction on charges of criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm.

But Johnson is better known for a second case in which he was accused of stealing a wedding ring from the finger of a woman who lay dying after having a brain aneurysm at a Taco Bell, according to the Topeka Capital-Journal and the Wichita Eagle, which covered last week’s Kansas Supreme Court opinion.

Burgess has since retired, according to the Wichita Eagle. The Kansas Supreme Court said the judge’s inattention could have been worse.

“This case does not present us with facts indicating a judge who slipped into any of the deeper phases of sleep,” the Kansas Supreme Court said. “There is no suggestion the trial judge was actually engaged in a full-blown nap on the bench. … “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.”

The Kansas Supreme Court said there is no indication that the judge’s inattention during his nodding off amounted to an abdication of his judicial responsibilities, which would have required a finding of structural error.

Because there was no structural error, the next step is to consider whether Burgess’ sleepiness prejudiced the defendant’s substantial rights, the Kansas Supreme Court said. That issue should be examined on remand by an intermediate appeals court, the court’s opinion said.

The opinion also said the trial court erred when it accepted a stipulation to an element of the crime without getting a knowing and voluntary trial waiver on the record. The opinion directed the appeals court to also consider that issue on remand.

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