IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,645
STATE OF KANSAS,
Appellee,
v.
JOSIAH R. BUNYARD,
Appellant.
SYLLABUS BY THE COURT
A district judge's denial of a criminal defendant's right to forego counsel and
represent himself or herself is structural error requiring reversal of the defendant's
convictions.
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 29, 2016.
Appeal from Sedgwick District Court; CHRISTOPHER MAGANA, judge. Opinion filed February 16, 2018.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded.
Richard Ney, of Ney & Adams, of Wichita, 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 brief for appellee.
The opinion of the court was delivered by
BEIER, J.: Defendant Josiah R. Bunyard appeals his convictions for battery,
aggravated battery, attempted violation of a protective order, and intimidation of a
witness.
1
During the course of his case, Bunyard was very active in his defense. At a
motions hearing on the Friday before his trial was to begin on Monday, Bunyard
interjected during argument before the court. The district judge told Bunyard that he
could either speak through his appointed lawyer or represent himself. Given those
options, Bunyard said he would represent himself. After discussing the matter with
counsel, Bunyard temporarily dropped the issue. But, before the conclusion of the
hearing, Bunyard again interjected and stated that he wanted it on the record that he was
"unequivocally" asserting his right to self-representation. The judge refused to take up the
matter of self-representation at that time, instead telling Bunyard that he must file a
written motion if he wanted to represent himself. Bunyard did not file a written motion or
otherwise reassert the right to self-representation when court reconvened the next week.
Before the Court of Appeals, Bunyard raised multiple issues. Included among
them was denial of his right to self-representation. The Court of Appeals rejected this
claim and the other claims Bunyard raised and affirmed his convictions and sentence. See
State v. Bunyard, No. 112,645, 2016 WL 1719607, at *17 (Kan. App. 2016).
Bunyard filed a petition for review by this court, which was granted. We hold that
there was structural error in the handling of Bunyard's invocation of his right to self-
representation, and we reverse the Court of Appeals decision and the judgment of the
district court. The case must be remanded to district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
To resolve Bunyard's appeal, it is not necessary to recite the facts leading to the
charges against him in detail. Highly summarized, the State alleged that Bunyard choked
and broke the jaw of his girlfriend, Jennifer Wood. After Bunyard was arrested and
ordered not to have any contact with Wood, Bunyard sent a letter to a mutual friend that
the State alleged was intended to be passed to Wood. See 2016 WL 1719607, at *1.
2
At the Friday pretrial hearing referenced above, the district judge took up two
motions, including the State's motion to introduce Wood's preliminary hearing testimony
at trial. The State had unsuccessfully attempted to find Wood to secure her attendance
and live testimony.
Multiple witnesses testified about the State's efforts to locate Wood. After the
testimony concluded, Mark Sevart, Bunyard's appointed counsel, argued that the State
was not diligent enough to render Wood unavailable to testify. In the alternative, Sevart
argued, even if Wood qualified as legally unavailable, it would be inappropriate to admit
her preliminary hearing testimony, because, according to him, the cross-examination of
Wood conducted by Bunyard's previous counsel, Charles O'Hara, was insufficient to
satisfy the Confrontation Clause.
During the State's response to Sevart's argument, the prosecutor noted that he had
new information on the whereabouts of another witness, for which both the State and
defense had requested a material witness warrant. During a colloquy between the judge
and the State about that witness, Bunyard interrupted. The transcript of the hearing
includes the following exchange:
"THE COURT: So you're not seeking to have her declared unavailable since,
apparently, she's recently been located?
"[THE STATE]: That's correct.
....
"THE DEFENDANT: Your Honor, could I please be heard?
"THE COURT: Mr. Bunyard, you have appointed counsel who has filed this
motion or is responding to this motion, so you're either having Mr. Sevart argue this
case—or are you representing yourself? Which is it?
3
"THE DEFENDANT: "I'll represent myself, if that's the choice. I will
definitely—
"THE COURT: You're seeking to have Mr. Sevart taken off this case?
"THE DEFENDANT: If those are my options, then, yes.
"THE COURT: What are you asking, Mr. Bunyard?
"THE DEFENDANT: I'm asking to be heard right now.
"THE COURT: About what?
"THE DEFENDANT: About what we're having the hearing on. I have some
information that—they've given you information that's not correct.
"THE COURT: Mr. Sevart, why don't you take a moment . . . and speak off the
record with your client. Do you expect this to be a lengthy conversation?
"MR. SEVART: Well, Your Honor, perhaps we should reconvene Monday, as
far as—or, I mean, later today, I guess, too, but, I mean, I know you've got some other
items—
"[THE STATE]: At the very minimum, I'd ask that you authorize a material
witness warrant for Ms. Wood. We need to have the weekend to try to find her.
"THE COURT: Mr. Sevart, why don't you take a few minutes and speak with
him there at counsel table, and then we'll see if we can resolve this.
"[THE STATE]: Do you want me to step out, Judge?
"THE COURT: No. You're fine."
4
When the court came back on the record, the judge noted that the prosecutor had
left the courtroom briefly while Sevart and Bunyard spoke. The judge then asked Sevart
to inform the court of Bunyard's decision.
"MR. SEVART: Your Honor, I think the points that my client wanted to raise
that may or may not make any difference but should be presented to you are, apparently,
Mr. O'Hara was retained with respect to one of the earlier cases. His status, whether he
was appointed or just showed up or whatever with respect to this case, I guess, is not real
clear. . . .
"THE COURT: Well, let me stop you right there, and let's nail this down.
....
"THE COURT: Mr. O'Hara generally doesn't take appointments on criminal
cases, so if he was present, whether pro bono or in relation to another case, he was not—
you would agree he was not appointed by the Court to represent Mr. Bunyard on this case
at the preliminary hearing; correct? On this case.
"THE DEFENDANT: He was not retained by Mr. Bunyard, either.
"THE COURT: That is not my question, Mr. Bunyard. I am addressing my
question to Mr. Sevart, not to you.
"My question, Mr. Sevart, is: Was he appointed by the Court to represent Mr.
Bunyard?
"MR. SEVART: No."
The district judge and Sevart then continued to discuss O'Hara and whether there
had been any objection raised at the preliminary hearing to his representation of Bunyard.
As the judge was about to rule on one of the motions, Bunyard again interjected during
the following exchange:
5
"MR. SEVART: What . . . I was getting to, Your Honor, is I think we can get to
the motion on the witness, as far as the issuance of the warrant, and if the Court would
reserve ruling until Monday with respect to the preliminary hearing—the usage of the
preliminary hearing transcript, it may be moot if they locate her. But perhaps we have
time so the Court can review that transcript, and then, also, I can visit with my client a
little further and we can reconvene Monday morning on this motion.
"THE COURT: All right. I'm going to go ahead and rule on the one motion.
"THE DEFENDANT: I want it on the record I wish to represent myself
unequivocally.
"THE COURT: Mr. Bunyard, for the time being, I'm not going to take up an oral
motion made at this time. I'm going to give you an opportunity to speak further with Mr.
Sevart. I'm also going to give you an opportunity, if you decide to pursue that route, to
file a proper motion to the Court. But we're not going to address that at this time.
"THE DEFENDANT: How will I get that to—
"THE COURT: Mr. Bunyard, that's all there is to say on that issue.
"THE DEFENDANT: How will I get it to the Court? How do I tell them that?
"THE COURT: Mr. Bunyard, you seem quite familiar with the procedures in
filing pro se motions, so I'm not going to dictate to you how to represent yourself or
proceed in that fashion if you want to.
"THE DEFENDANT: The Court is—there's no mail going out for the weekend.
There's no way I can get it there.
"THE COURT: Mr. Bunyard, we're not addressing this matter further.
"SHERIFF'S DEPUTY: Do you want him removed, sir?
6
"THE COURT: We'll—we'll proceed."
The judge then ruled that Wood was unavailable and that the transcript of her
preliminary hearing testimony could be introduced by the State at trial. He then
concluded the motions hearing.
When Bunyard's trial began on Monday, before jury selection began, the district
judge and parties addressed several outstanding issues.
"THE COURT: Thank you. We're here this morning on the day of trial. We have
spent the morning in some conversations in chambers and with defense counsel and the
prosecuting attorney dealing with several outstanding issues trying to reach a resolution
on some of them, addressing some last-minute matters. At this point, we're going to place
on the record several things and address several outstanding matters.
"To recap, on Friday, February 21st, we appeared and, to clarify and confirm
with counsel, at that time as to the [S]tate's motion to determine witness availability I did
find that as to witness Jennifer Wood that reasonable diligence had been shown by the
[S]tate and, therefore, the preliminary hearing transcript of Ms. Wood could be used at
trial.
"I ruled as to the consolidation of these two cases that resulting from two or more
acts or transactions connected together, or constituting parts of a common scheme or
plan, that these cases would be consolidated.
"The Motion to Suppress . . . filed by Mr. Sevart was withdrawn as the [S]tate
indicated they did not intend to use any evidence taken from the defendant's home at trial.
"There were three separate motions to endorse; all of those were granted without
objection. And I believe those were all the motions that were filed by either the defense
or the [S]tate that were outstanding that needed to be dealt with Friday, correct?
7
....
"THE COURT: All right. Obviously, depending on the trial, the [S]tate could
reserve the right to bring something up in rebuttal. But, other than that, that is your
understanding, Mr. Sevart, of all of the motions?
"MR. SEVART: Your Honor, of the motions that—
"THE COURT: Filed by you.
"MR. SEVART: Yes, filed by me. We do have some issues with respect to some
pro se motions and if we could address that[,] I'd appreciate it.
"THE COURT: All right. Then at this time it looks like we need to address Mr.
Bunyard and Mr. Sevart on this. There have been a number of pro se motions filed by the
defendant, my understanding would be while he was represented by various attorneys in
this case, and we need to—without having a clear record on what remains at issue, we
need to address that. So, Mr. Sevart, how are you proposing we proceed?
"MR. SEVART: Your Honor, if the Court would allow, what I would propose
that we do is to—I guess, a formal method would be to withdraw all of those pretrial
motions and in lieu of that have me present to the Court by way of oral motion the issues,
I guess, that are—that are outstanding with respect to items raised in those pretrial
motions. In other words, to substitute, I guess, maybe, is a better word, an oral
presentation this morning that would dispose of all remaining issues and, therefore, I
guess, all those other pretrial motions can be withdrawn or resolved by way of a
substitution oral motion.
"THE COURT: All right. Mr. Bunyard, you are aware that you have filed a
number of motions purporting to represent yourself during the course of this case, and at
this time you've had an opportunity to speak with Mr. Sevart either on Friday, over the
weekend, or this morning about how you wish to proceed on those motions.
"THE DEFENDANT: I'm sorry, I didn't understand exactly what you said.
8
"THE COURT: Have you had an opportunity to speak with Mr. Sevart about all
of the pro se motions that you have filed?
"THE DEFENDANT: Yes. He's—he's got a list that—that is going to sum up
the ones that are still relevant and—yeah.
"THE COURT: All right. Mr. Bunyard, you have filed a lot of motions, and at
this point because it's unclear exactly what is still at issue from your perspective, or what
has or has not been ruled upon, what Mr. Sevart is proposing, and I'm prepared to do, is
you're going to withdraw, if you would like, all of your motions. So all of the motions
you have filed you're basically saying you no longer want them heard, and then what Mr.
Sevart is saying is he will now make an oral motion on the ones that, apparently, you two
have discussed and that you still believe are relevant; you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: And is that what you want to do? Do you want to, at this time,
withdraw all of the motions that you, yourself, have personally filed in this case?
"THE DEFENDANT: As long as he argues the ones still that we've discussed
that he's going to do, as long as that's still going to take place, then, yeah.
"THE COURT: That's my understanding. Mr. Sevart has spoken with you and he
says that he knows what you still want to be heard. He's going to make an oral motion on
those. But, as far as your written motions, you're fine with withdrawing all of those
motions and not having those motions heard where you would basically tell me what your
arguments were.
"THE DEFENDANT: Again, as long as he argues the ones that we've discussed,
yes.
"THE COURT: All right. Then, at this time, I'm going to show all of the pro se
motions that you have filed to date that haven't already been ruled upon in some fashion
9
by another judge as being withdrawn at this time. And you don't object to that, correct,
Mr. Bunyard?
"THE DEFENDANT: Again, as long as all this is argued that we're talking about
that I've discussed with him, I do not object.
"THE COURT: All right. In that case, Mr. Sevart, I'll allow you to proceed with
your first oral motion."
Sevart then argued the substance of several of the pro se motions, and the district
judge ruled upon them.
After the conclusion of evidence and closing arguments at trial, the jury returned
guilty verdicts on all four counts. The district judge sentenced Bunyard to 144 months on
the aggravated battery conviction. For each of the three other counts, he imposed a
sentence of six months in jail to run concurrent to the aggravated battery sentence.
When the Court of Appeals took up Bunyard's self-representation issue, the panel
noted that "a district court cannot effectively filibuster a criminal defendant's spontaneous
request for self-representation by refusing to rule on the request or by imposing
requirements that the defendant reassert that request in a detailed written form or in
successive hearings to secure a ruling." Bunyard, 2016 WL 1719607, at *4 (citing State v.
Vann, 280 Kan. 782, 794, 127 P.3d 307 [2006]). Likewise, the panel said, a district judge
cannot "act in a manner likely to foster the impression the request will necessarily be
denied or withhold a discussion of the implications of self-representation to stymie a
defendant's desire to represent himself or herself." 2016 WL 1719607, at *4.
Nevertheless, the panel ruled that there had been no "functional or deliberate"
undermining of Bunyard's right to represent himself. 2016 WL 1719607, at *4.
10
"Bunyard was exceptionally active personally in the defense of the charges both through
his extensive pro se filings and his comments during court appearances. Yet, he did not
make a request for self-representation until the district court mentioned it a couple of
days before trial. Bunyard did not then act on the district court's direction by preparing
even a nominal or bare-bones motion for self-representation—something that was within
his capacity." 2016 WL 1719607, at *4.
The panel also noted that Bunyard did not "resurrect" the issue on the morning of trial,
when, in its words, he "affirmatively assented" to counsel's argument on other
outstanding pro se motions. 2016 WL 1719607, at *4.
We granted Bunyard's petition for review of the Court of Appeals decision.
DISCUSSION
The extent of the right to assistance of counsel and the related right to self-
representation is a question of law over which this court exercises unlimited review. See
State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010).
The United States Supreme Court has held "that the Sixth Amendment, as made
applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a
state criminal trial has an independent constitutional right to self-representation." Vann,
280 Kan. at 793 (citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d
562 [1975]). "'The right to defend is given directly to the accused; for it is he who suffers
the consequences if the defense fails.'" Jones, 290 Kan. at 377 (quoting Faretta, 422 U.S.
at 819).
"A criminal defendant who before trial clearly and unequivocally expresses a wish to
proceed pro se has the right to self-representation after a knowing and intelligent waiver
of the right to counsel. A knowing and intelligent waiver requires that the defendant be
informed on the record of the dangers and disadvantages of self-representation. The
11
choice is to be made '"with eyes open."'" State v. Graham, 273 Kan. 844, 850, 46 P.3d
1177 (2002).
There is obvious potential tension between the right to counsel and the right, as a
layperson, to represent oneself.
"'Because the right to proceed pro se is at odds with the right to be represented by
counsel, "[t]he courts must indulge 'every reasonable presumption against waiver' of the
right to counsel, and will 'not presume acquiescence in the loss of fundamental rights
[i.e., the right to counsel].'" [Citation omitted.] "[U]nlike the right to counsel, the right to
self-representation can be waived by mere failure to assert it." [Citation omitted.]' State v.
Lowe, 18 Kan. App. 2d 72, 74-75, 847 P.2d 1334 (1993)." Vann, 280 Kan. at 793.
Still, "[a] trial court may not measure a defendant's competence to waive his or her
right to counsel by evaluating the defendant's 'technical legal knowledge.'" Jones, 290
Kan. at 377 (citing Godinez v. Moran, 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L.
Ed. 2d 321 [1993]). Whether a lawyer could better represent a defendant also is not the
question for the court to decide. See State v. Lowe, 18 Kan. App. 2d 72, 75, 847 P.2d
1334 (1993).
The Supreme Court of the United States has held that a failure to honor a criminal
defendant's properly asserted right to self-representation is structural error. "'Since the
right of self-representation is a right that when exercised usually increases the likelihood
of a trial outcome unfavorable to the defendant, its denial is not amenable to "harmless
error" analysis. The right is either respected or denied; its deprivation cannot be
harmless.'" Vann, 280 Kan. at 793 (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8,
104 S. Ct. 944, 79 L. Ed. 2d 122 [1984]).
Two previous cases—one from this court and one from the Court of Appeals are
instructive here.
12
In the first, State v. Vann, the State charged defendant Durayl Vann with attempted
first-degree murder, among other crimes. Two months after the district court appointed
counsel for Vann, he filed a pro se motion requesting different counsel and alleging a
conflict of interest between himself and counsel. Vann did not serve counsel with a copy
of the motion, and the motion was not addressed at Vann's preliminary hearing, which
was held a few days after the motion was filed. The day after the preliminary hearing,
Vann sent a letter to the clerk, asking about the motion for new counsel. A few days later,
Vann filed several more pro se motions, including a motion to proceed pro se and retain
stand-by counsel. The presiding district judge forwarded the letter Vann had written to
the clerk to Vann's counsel and advised that if counsel wanted a hearing on the matter, he
needed to contact the court and a hearing would be scheduled. Vann, 280 Kan. at 786-87.
Before trial, the State reminded the district judge that Vann had filed pretrial pro
se motions. The judge responded that he did not ordinarily hear pro se motions when a
defendant had representation. But, if the defendant wanted to discuss the motions with his
counsel and have counsel bring them before the court, the judge said, he would hear
them. Vann's counsel did not want to bring any other motions before the court, and Vann
did not say anything to the court about the motions at that time.
Vann did not raise any of his pro se motions again until the court heard a motion
for new trial after Vann's convictions. Vann then brought up his motion for new counsel.
The district judge told Vann that he should have called the court's attention to the motion
on the morning of trial. At sentencing, Vann again brought up his pro se motion for new
counsel, and the district judge again declined to address it.
On appeal, this court addressed whether the district court's refusal to address
Vann's motion to proceed pro se with stand-by counsel violated his right to self-
representation.
13
The court framed the dispositive issue as "whether the defendant clearly and
unequivocally asserted his right to self-representation prior to trial." 280 Kan. at 794. Cf.
State v. Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993) (right of self-representation
unqualified if asserted before trial; after trial starts, district judge has discretion to grant
request). The State argued that Vann's "failure to serve the motion on counsel, request a
hearing, or to raise the issue at the pretrial motions hearing was a waiver of the right to
self-representation." Vann, 280 Kan. at 794. This court disagreed.
"The defendant's motion 'to proceed pro se and retain the attorney as consultant
in an advis[o]ry capacity' was a clear and unequivocal assertion of the right to proceed
pro se prior to trial. While we acknowledge that the defendant had filed other motions
requesting the appointment of a new attorney, this did not change the fact that the
defendant expressed a desire to proceed pro se. In fact, the existence of these other
motions was a greater reason for the court to conduct a further inquiry into the
defendant's position.
"Once the defendant asserted his constitutional right to self-representation by
pretrial motion, his counsel was advised of the existence of the defendant's pro se
motions by letter from the district court, and the defendant was told by the court that it
would not consider motions raised by the defendant himself. The defendant subsequently
explained to the court that counsel had advised him against raising his pro se motions.
Based on these facts . . . a possibility certainly existed at the pretrial motions hearing that
the defendant allowed defense counsel to continue representing him because he felt that
he had no other choice." 280 Kan. at 794.
This court stated that a holding to the contrary would mean "a defendant would
bear the burden of continually reasserting his or her right to self-representation or it is
waived." 280 Kan. at 794-95. But "where the defendant allows defense counsel to
continue representing him without reasserting his right to self-representation, it does not
constitute a waiver of that right." 280 Kan. at 795. Because the district judge failed to
14
consider Vann's pretrial assertion of his right to self-representation, we reversed his
convictions and remanded the case for new trial. 280 Kan. at 795.
The second case, State v. Lowe, from the Court of Appeals lent support to our
court's decision in Vann. See Vann, 280 Kan. at 793-95 (citing Lowe, 18 Kan. App. 2d at
74-76, 79). In Lowe, counsel for defendant Michael Lowe informed the district judge that
her client wished to represent himself. The judge then spoke directly to Lowe:
"'[THE COURT:] She said you wanted to represent yourself, which I need to
bring you in here and tell you what the law is on that.
"'The only way I can do that is if I make a finding that it would not be of benefit
to you to have a lawyer in the case, is the only way that I can let you be your own lawyer.
"'I've never been a defendant in a case. I've been a lawyer in a case; I've been a
judge in a case. I tell you, you don't want to try and undertake that yourself, when you are
so close to it, when you are the defendant.
"'I've tried a number of defendants and you are better off letting the lawyer make
the legal decisions. Whether you enter a plea or not or that sort of matter, that's up to you;
your lawyer doesn't have nothing to say about that. But where to stand and, oh, legal
things I'm talking about, you know, how to make a legal argument on whether a piece of
evidence is permissible or not, you are better off with a lawyer, I'm telling you.
"'Another thing, you have a right to be in your proper clothes in your case. Your
lawyer told me you wouldn't say one way or the other. We have a suit of clothes. I'll get
those. We have those up here. We'll let you go to the library, jury room, put on your
proper clothes. You don't have to. That's up to you.
"'Another reason I moved up here from my courtroom is that holding cell is
wired for sound. If you participate—you don't have to—but you can hear everything
going on from back there.
15
"'It's your case. I'm not trying to tell you what to do about it. I want to make sure
that you know what's going on. If you want a trial, that's what we'll do right here this
afternoon. We want to do everything right and proper and participate in it, being it's your
case.
"'Do you understand where you are at?
"'What did you want to do?
"'THE DEFENDANT: I want a trial.
"'THE COURT: Did you want to be out here?
"'THE DEFENDANT: Yeah.
"'THE COURT: Do you want to put on your civilian clothes?
"'THE DEFENDANT: No.
"'THE COURT: Okay. Now, when the people see—there's been so much
publicity on the orange jumpsuits—they'll know where you are at. I'll tell the jury that
they may not consider that, that has nothing to do with anything. If they consider the fact
that you are in that orange jumpsuit, they are acting improperly. I'll tell them that but it's
whatever you want to do as far as dress.
"'THE DEFENDANT: I'm fine like this.
"'THE COURT: You want to wear your orange jumpsuit?
"'THE DEFENDANT: Yes.
"'THE COURT: I advise you again you don't have to. I advise you to please
listen to your lawyer. She has your best interests at heart, no matter what you think right
now. I understand this is a very tense moment. It's a rough case but your lawyer cares a
16
lot about helping people. I've seen her try other cases. She's a good lawyer. I wouldn't be
afraid to have her represent me if I was in your shoes.
"'Do you have any questions whatsoever about what's going on? Do you
understand what you are charged with?
"'THE DEFENDANT: (Indicating affirmatively.)
"'THE COURT: You are ready to go forward?
"'THE DEFENDANT: (Indicating affirmatively.)'" 18 Kan. App. 2d at 73-74.
The Court of Appeals panel rejected the State's assertion that counsel could not
invoke the right to self-representation on behalf of her client. "The [district] court
understood that Lowe was asserting his right to self-representation and acted accordingly
by proceeding to advise Lowe concerning the dangers inherent in self-representation." 18
Kan. App. 2d at 75. But then the district judge erred, telling Lowe that in order for him to
represent himself, the judge would have to find "that it would not be of benefit to [Lowe]
to have a lawyer in the case." 18 Kan. App. 2d at 75. In fact, no requirement for such a
finding existed. The counseling on the benefits of legal representation that followed the
judge's misstatement of the law was "consistent with the requirement that . . . a defendant
must make a knowing and intelligent waiver of the right to counsel." 18 Kan. App. 2d at
76 (citing Faretta, 422 U.S. at 835; State v. Cunningham, 222 Kan. 704, 706-07, 567
P.2d 879 [1977]).
"However, when all the court's statements are reviewed, we cannot conclude Lowe made
a knowing and intelligent decision regarding his right to represent himself. The court
specifically stated that Lowe would be better off with counsel and, after explaining the
pitfalls of self-representation, did not give Lowe the opportunity to state whether he
wanted to represent himself. When the court's statements and actions are viewed in toto,
there is the danger that Lowe understood not only that his request had been denied, but
17
also that there was no possibility the court would allow him to represent himself." Lowe,
18 Kan. App. 2d at 76.
The Lowe panel also quoted extensively from the Third Edition of the Kansas
Criminal Law Handbook, edited by Judge Michael Barbara, for the information a prudent
and careful judge should share with a defendant who asserts a right to represent himself
or herself:
"'The judge should inform the defendant:
"'1. That at any time he or she could change his or her mind and retain counsel to
represent him or her or petition the court for appointment of counsel to represent him or
her [to] assist with his or her defense.
"'2. That no postponement would be permitted at any time during the proceeding
for the reason that counsel was newly brought into the case.
"'3. That the court may and will terminate self-representation if the defendant
deliberately engages in serious and obstructionist misconduct before the court or in any
proceeding.
"'4. That the court [considers] it detrimental for the defendant not to accept or
employ counsel to represent him or her.
"'5. That if the defendant is allowed to represent himself or herself, he or she
must follow all legal rules applicable to the trial of any criminal action.
"'6. That there are numerous dangers and disadvantages to self-representation,
including the following:
(a) The law provides for numerous pretrial motions available to the
defendant, which are of a technical nature, the advantage of which the
defendant would lose if allowed to represent himself or herself;
18
(b) The defendant's vocabulary may impede clear communication with
the court and opposing counsel;
(c) Judges will not act on behalf of a defendant in asserting objections or
making appropriate motions where ordinarily it is the duty of counsel to
call such matters to the court's attention;
(d) The district attorney will not assist in the defense of the case;
(e) The rules of law are highly technical and will not be set aside in view
of his or her status;
(f) A defendant may waive constitutional, statutory, and common law
rights unknowingly;
(g) If the defendant is in custody, it is difficult for a defendant in custody
to locate witnesses, interview them, prepare subpoenas, and have them
served.
"'7. Of the maximum sentence for the offense . . . .
"'After receiving the defendant's responses, the court must make findings
that the defendant understood the nature of the questions and statements of the
court, and that he or she has made a knowing and intelligent waiver of counsel
and a knowing and intelligent decision to represent himself or herself. The court
should then allow the defendant to appear without counsel.
"'In some instances, the court may provide counsel for the defendant only
for purposes of giving advice to the defendant, if the defendant expressly
requests it. Counsel will sit with the defendant throughout the trial, but will not
participate without the express request of the defendant or by order of the court,
if the court first determines that the defendant is not competent nor qualified to
continue with his or her own defense.'" 18 Kan. App. 2d at 76-77.
19
The handbook's advice to district judges faced with a criminal defendant's
invocation of the right of self-representation is still sound today. See Cateforis, Kansas
Criminal Law 11-9 (5th ed. 2016). The Lowe panel then completed its examination of the
record before it:
"In the procedure described, the court is to make a finding that the defendant has
made a knowing and intelligent waiver of counsel and a knowing and intelligent decision
to proceed pro se. To make that finding, the court must at some point ask defendant, after
all dangers and disadvantages of self-representation have been explained, whether
defendant still wants to proceed pro se.
"In the present case, the court touched on areas relevant to informing Lowe of the
dangers and disadvantages of self-representation but, following that explanation and
before continuing with the trial, the court failed to ask Lowe if he still wanted to proceed
pro se. Defendant was not afforded the opportunity to make the choice described in
Faretta between proceeding with counsel or proceeding pro se.
"The State argues Lowe waived his right to represent himself by failing to
reassert his right to self-representation and by allowing counsel to continue to represent
him when the proceedings continued. In McKaskle, 465 U.S. at 183, the Supreme Court
noted that '[o]nce a pro se defendant invites or agrees to any substantial participation by
counsel, subsequent appearances by counsel must be presumed to be with the defendant's
acquiescence, at least until the defendant expressly and unambiguously renews his
request that standby counsel be silenced.' In McKaskle, the defendant asserted his right to
proceed pro se, but then requested counsel's help in questioning a witness. The defendant
also acquiesced in some of the motions made by counsel while objecting to others.
"We find no waiver of the right to self-representation in the present case. Here,
Lowe did not invite counsel's subsequent participation. At most, he allowed counsel to
continue without reasserting his request to represent himself. After the court had
explained some of the pitfalls of self-representation, Lowe was not given the opportunity
to state whether he wanted to represent himself before counsel continued her
20
representation of Lowe. In this context, Lowe could have believed the court had denied
his request and there was nothing more he could do. In Orazio v. Dugger, 876 F.2d 1508,
1512 (11th Cir. 1989), the court held that, once a request to proceed pro se has been
conclusively denied, a defendant is not required to continually reassert the right to self-
representation to avoid a waiver of the previously invoked right." 18 Kan. App. 2d at 77-
78.
Like Vann, Bunyard filed multiple pro se motions during the pendency of his
prosecution. Then—admittedly at the eleventh hour and only when prompted by what
may have been intended as a rhetorical question by an all-but-fully-exasperated trial
judge—Bunyard made more than one clear statement that he wished to proceed pro se.
Despite this expressly "unequivocal" invocation of his right to self-representation, the
district judge did not counsel Bunyard with a view toward ascertaining Bunyard's
informed wishes. Rather, the judge put off addressing Bunyard's request, saying that he
would not address it at all unless Bunyard filed a written motion. Bunyard had no
practical way to file a written motion over the weekend, and the judge's demand for such
a motion appeared to leave Bunyard, like Lowe, without recourse on the issue. In this
context, Bunyard's silence on Monday when other pro se motions were heard was
understandable. He had been left with a firm impression that he would not be permitted to
represent himself. His failure to reassert his right to do so in such circumstances and his
allowance of counsel's representation during the trial did not amount to an implicit
decision not to pursue self-representation.
Bunyard's pretrial requests to represent himself were not, as the State argues,
"simply based on his desire to ensure that certain arguments were advanced on his
behalf." The record certainly demonstrates that he believed he had information and
argument not being explained on Friday by his counsel, and that prompted his
interruption of the proceedings. But, at that point, the judge presented Bunyard with a
choice: Either allow counsel to proceed without interference or represent yourself.
Bunyard chose the latter. And his choice did not change after his consultation with
21
counsel. Instead, he "unequivocally" repeated his choice on the record. At that point the
law required that he be advised about the perils of proceeding pro se and then permitted
to do so if he made a knowing and intelligent waiver of his right to counsel. Instead, the
judge told Bunyard that the subject of self-representation would not be addressed on
Friday and erected a writing requirement barrier that was virtually guaranteed to thwart
Bunyard's express intention. The judge then ruled on the very motion on which Bunyard
had tried to be heard, and he never took up the subject of self-representation again. Using
the words of the Court of Appeals panel but reaching the opposite conclusion, we hold
that regardless of whether there was a "deliberate undermining" of Bunyard's right to
represent himself, there was certainly a "functional" undermining of that right. See 2016
WL 1719607, at *4.
The judge's error was structural, and it requires us to reverse all of Bunyard's
convictions.
CONCLUSION
Because we conclude that the violation of defendant Josiah R. Bunyard's right to
self-representation was structural error, we reverse the Court of Appeals decision and the
judgment of the district court. This case is remanded to district court for further
proceedings.
22