State v. Boothby

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,505

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER BOOTHBY,
Appellant.

SYLLABUS BY THE COURT

1.
An erroneous judicial comment made in front of the jury that is not a jury
instruction or legal ruling will, from now on, be reviewed as "judicial comment error"
under the constitutional harmlessness test from Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967). Thus, the State, as the party benefitting from judicial
comment error, has the burden to prove beyond a reasonable doubt that the error did not
affect the outcome of the trial in light of the entire record, i.e., prove "there is no
reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541,
569, 256 P.3d 801 (2011).

2.
Judicial comment error is reviewable on appeal despite the lack of a
contemporaneous objection at trial.

3.
The jury instruction, "Your verdict must be founded entirely upon the evidence
admitted and the law as given in these instructions," is legally correct and does not
prevent a jury from exercising its power of nullification.

1
4.
A district court does not err when it tells a jury to follow the law.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 9,
2018. Appeal from Stevens District Court; CLINT B. PETERSON, judge. Opinion filed September 6, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Paul F. Kitzke, county
attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: A Stevens County jury convicted Christopher Boothby of
aggravated assault and criminal threat for pointing a gun at his cousin, Jason Burnett, and
threatening to come back when Jason was alone. On appeal, Boothby argues the district
court judge committed judicial misconduct when he commented during voir dire about a
former case in which Boothby was charged with aggravated battery.

Today, we hold that an erroneous judicial comment made in front of the jury that
is not a jury instruction or legal ruling will be reviewed as "judicial comment error" under
the Chapman constitutional harmlessness test. See Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). That means the State, as the party benefitting
from judicial comment error, has the burden to "prove[] beyond a reasonable doubt that
the error complained of will not or did not affect the outcome of the trial in light of the

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entire record, i.e., prove[] there is no reasonable possibility that the error affected the
verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). We hold the State met
this burden and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2014, Eugena (Gena) Burnett and her husband, Jason Burnett, lived
with their three children in Hugoton. One day when Gena was home alone with the
children, Boothby entered the house and started screaming for Jason. Boothby had let
himself in through the front door, which was unlocked. Startled, Gena and the children
ran to the living room to see what was happening. Boothby hollered, "Where's Jason at?"
Gena said that Jason was at work. Then Boothby walked out and slammed the door.

Gena and Jason had known Boothby since childhood. But, as Gena later testified,
the couple's relationship with Boothby had recently "deteriorated." Gena recalled that
when Boothby entered her house that day, "He didn't seem like himself. He was just
really angry and screaming as loud as he could. It startled my kids. Just kind of had a
wild look about him." Boothby's behavior scared Gena, and she immediately called Jason
to warn him that Boothby was headed toward his work.

Jason owned a diesel mechanic shop a mile east of Hugoton. When Gena called,
Jason was driving back to Hugoton, and an employee was riding with him. They passed
Boothby on the highway and decided to wait in town, hoping Boothby would leave the
shop. After about 15 minutes, they returned to the shop and found Boothby's truck parked
outside. Boothby was alone.

Jason pulled his truck up next to Boothby's, so the driver side windows faced each
other. Jason rolled down his window and asked, "What's going on?" Boothby said
nothing, pulled his truck forward, and stopped again. Then Jason left his employee in the

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truck and walked up to Boothby's driver side window. Jason saw a silver revolver in
Boothby's lap and said, "What the fuck are you doing with a gun out here, Chris?"
Boothby replied that Jason "knew what this is all about." Jason tried to grab the gun
twice, but Boothby pulled it away. During this scuffle, Boothby pointed the gun at Jason.

The key dispute at trial was whether Boothby knowingly or accidentally pointed
the gun at Jason. Jason testified that he reached into Boothby's truck to grab the gun, but
Boothby pulled it away. At that point, Boothby pointed the gun at Jason. As Jason
explained, Boothby "never picked [the gun] up and pointed it out the window." Instead,
Boothby kept the gun in his lap and tilted it toward Jason's face. Jason was scared and
tried to grab the gun again, to no avail.

The scuffle ended when Boothby said, "I'll be back when you are alone," and
drove away. After this, Jason was afraid to be alone with Boothby. On cross-examination,
Jason admitted that it was normal to see Boothby with a gun—they had even shot guns
with their sons at Jason's shop before. But this was the first time that Boothby had
pointed a gun at Jason.

The State charged Boothby with aggravated burglary, aggravated assault, and
criminal threat. The case went to trial. At the beginning of voir dire—when the district
judge was orienting one venire panel to the case—the judge suggested that Boothby was
charged with "aggravated battery" in a "former case." The exchange went this way:

"[THE COURT:] Ladies and gentlemen, this is the part of the trial where we are
selecting a jury from all the prospective jurors in the courthouse. And what's going to
happen is I have a few questions to ask you generally about the case and then the lawyers
will each have an opportunity to question you individually as well.

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 "So, with that the—this is a criminal case. The defendant, his name is Chris
Boothby and he is charged with three crimes, those are aggravated battery, aggravated
assault, and criminal threat. The alleged victim's name is Eugenia [sic] Burnett.

"[DEFENSE COUNSEL]: Your Honor, we have a correction there.

"[PROSECUTOR]: The first charge is aggravated burglary. I think you said
aggravated battery.

"THE COURT: Ag burglary. I think I may have his former case.

"[PROSECUTOR]: 76 is his case.

"THE COURT: All right. I need to find the correct . . . I believe I saw a
Complaint filed in September—

"[PROSECUTOR]: That's from July. That's the information that we have.

"THE COURT: I've got that. . . . All right. Ladies and gentlemen, let me start
over. The defendant is charged with aggravated burglary, aggravated assault, and
criminal threat. The acts that allegedly occurred that led to these charges occurred on
October 16 of 2014 here in Stevens County, Kansas and the alleged victims are Eugenia
[sic] Burnett and Jason Burnett." (Emphases added.)

Six of the venire members seated in the courtroom during this exchange ended up
on the final jury panel.

The jury trial lasted one afternoon, and the State called three witnesses: Gena,
Jason, and a detective. After the State rested, the district court granted a judgment of
acquittal on the aggravated burglary charge. The defense presented no evidence.
Ultimately, the jury convicted Boothby of aggravated assault and criminal threat, and the
district court sentenced him to 27 months' imprisonment. Boothby appealed.

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 Boothby made two arguments in the Court of Appeals. First, Boothby argued the
district court judge committed reversible misconduct by informing half of the jurors that
he had a former case involving aggravated battery. He argued this error denied him the
right to a fair trial because the judge effectively admitted K.S.A. 60-455 evidence of
another crime, suggesting he had a violent character. He also claimed the State failed to
prove harmlessness beyond a reasonable doubt.

The State did not contest that judicial misconduct occurred. Instead, the State
argued Boothby bore the burden to prove the error prejudiced his substantial rights.
Further, no prejudice occurred because the judge's remark was attenuated by voir dire, the
trial, and the jury instructions, which admonished the jury to decide the case based only
on the evidence admitted and to disregard evidence not admitted. Thus, the parties only
disputed harmlessness and who bore the burden to prove the error was harmless or not.

The Court of Appeals agreed with the State that "[t]he party alleging judicial
misconduct bears the burden of showing prejudice," and Boothby failed to meet this
burden. State v. Boothby, No. 116,505, 2018 WL 793342, at *2, 4 (Kan. App. 2018)
(unpublished opinion). As the panel explained, the judge's misstatement "was one of the
earliest remarks the eventual jurors heard, and only six of them were in the courtroom
when the district court judge said it." 2018 WL 793342, at *4. Plus, "[a]ny effect the
comment might have had was clearly attenuated by the jury selection process, the trial,
and the instructions informing jurors of their responsibility to consider only the evidence
produced at trial in arriving at their decision." 2018 WL 793342, at *4.

Second, Boothby argued the district court erred when it instructed the jury: "Your
verdict must be founded entirely upon the evidence admitted and the law as given in
these instructions." He claimed this instruction effectively told the jury that it did not
have a right to nullify. The State countered that Boothby misconstrued the instruction's

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message, but regardless, any error was harmless because "[i]f the jury was going to
disregard the court's instructions, it is highly unlikely that the court's instructions
prevented it from doing so."

The Court of Appeals held the jury instruction was legally correct and, in the
alternative, the instruction was not clearly erroneous. 2018 WL 793342, at *5. The panel
emphasized that "[e]ven though jurors can decide to nullify a verdict, jurors are supposed
to accept the rules of law given to it in the instructions and apply those rules in
determining what verdict to return." 2018 WL 793342, at *5. But also, the panel
explained, "Boothby has not convinced us that a jury would have reached a different
result if a different instruction had been given. Either way, the jury would have had to
disregard the instructions in order to render a nullifying verdict." 2018 WL 793342, at *5.

We granted Boothby's petition to review the Court of Appeals' holdings.

ANALYSIS

The judge's improper comments during voir dire were harmless because the State proved
beyond a reasonable doubt that the error did not affect the trial's outcome.

The parties do not dispute that the district court judge erred when he said Boothby
was charged with "aggravated battery" in a "former case" in front of six of the final jurors
or that this error implicates Boothby's constitutional right to a fair trial. So we assume
without deciding that error—what the parties call "judicial misconduct"—occurred and
move to harmlessness. On that front, Boothby asks us to revisit precedent holding the
party alleging judicial misconduct bears the burden to show his or her substantial rights
were prejudiced. E.g., State v. Hudgins, 301 Kan. 629, 637-38, 346 P.3d 1062 (2015). He
argues the State, as the party benefitting from judicial misconduct, should bear the burden
to prove harmlessness beyond a reasonable doubt, and it failed to do so here.

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 More precisely, Boothby asks us to apply recent caselaw that placed the burden to
prove constitutional harmlessness on the party benefitting from the error. See Ward, 292
Kan. 541, Syl. ¶ 6 (holding that the party benefitting from constitutional error has the
burden to "prove[] beyond a reasonable doubt that the error complained of will not or did
not affect the outcome of the trial in light of the entire record"); State v. Sherman, 305
Kan. 88, 109, 378 P.3d 1060 (2016) (quoting Ward to hold that "prosecutorial error is
harmless if the State can demonstrate 'beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record'"). He analogizes the judge's improper comments with prosecutorial error, as in
Sherman.

"We exercise unlimited review over judicial misconduct claims, and review them
in light of the particular facts and circumstances surrounding the allegation." State v.
Walker, 308 Kan. 409, 419, 421 P.3d 700 (2018). Which party bears the burden to prove
harmlessness is a question of law also subject to unlimited review. See State v.
Carapezza, 293 Kan. 1071, 1075, 272 P.3d 10 (2012) ("[A] determination of the
applicable burden of proof is a question of law.").

For decades, we have held: "The party alleging judicial misconduct bears the
burden of establishing that misconduct occurred and that the misconduct prejudiced the
party's substantial rights." State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 (2018); see,
e.g., State v. Chism, 243 Kan. 484, 494, 759 P.2d 105 (1988) ("Reversal [on judicial
misconduct grounds] is required only when the appellant has shown the conduct
prejudiced his substantial rights."). And we have reviewed judicial comments that are not
jury instructions under this generic judicial misconduct standard. See State v. Cheever,
306 Kan. 760, 793, 402 P.3d 1126, cert. denied 138 S. Ct. 560 (2017). But today, we
clarify that an erroneous judicial comment made in front of the jury that is not a jury
instruction or legal ruling will, from now on, be reviewed as "judicial comment error"

8
under the Chapman constitutional harmlessness test. See Chapman, 386 U.S. at 24. That
means the party benefitting from judicial comment error has the burden to "prove[]
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., prove[] there is no reasonable
possibility that the error affected the verdict," as with prosecutorial error. Ward, 292 Kan.
at 569; see Sherman, 305 Kan. at 109 (styling the same test as whether the error
"contributed to the verdict"). Importantly, our holding today is limited to judicial
comment error; we do not disturb our existing precedent concerning structural error or
other kinds of error traditionally labeled "judicial misconduct." And applying the
Chapman test, we hold the judicial comment error here was harmless beyond a
reasonable doubt.

Boothby claims the judge's improper comments denied him the right to a fair trial,
as guaranteed by the Fourteenth Amendment to the United States Constitution. See State
v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002) ("A defendant's right to a fair trial is
guaranteed by the Fourteenth Amendment to the United States Constitution."). He labels
this error "judicial misconduct."

This case highlights the tension between the "judicial misconduct" standard—
which puts the burden on the party alleging error to show prejudice—and the
Chapman/Ward standard—which puts the burden on the party benefitting from the error
to show lack of prejudice. After all, the constitutional right to a fair trial cuts to the heart
of a judicial misconduct claim. So, Boothby argues, the Chapman/Ward test should apply
to his claim that judicial misconduct denied him the right to a fair trial.

We begin by clarifying the type of error presented here. Until now, we have used
the term "judicial misconduct" to loosely describe any judicial error that implicates the
right to a fair trial and does not concern a jury instruction or legal ruling. See Walker,
308 Kan. at 420 (shredding notes found in the jury room); State v. Kemble, 291 Kan. 109,

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120-21, 238 P.3d 251 (2010) (commenting during a witness' testimony); State v. Tyler,
286 Kan. 1087, 1092, 191 P.3d 306 (2008) (communicating ex parte with lay persons);
State v. Gaither, 283 Kan. 671, 683-84, 156 P.3d 602 (2007) (losing control of temper
during voir dire); State v. Scales, 261 Kan. 734, 735-36, 933 P.2d 737 (1997)
(communicating ex parte with homicide victim's family). But today, we hold that
erroneous judicial comments made in front of a jury (that are not jury instructions or legal
rulings) will be called "judicial comment error," and we remove this type of error from
under the "judicial misconduct" umbrella. Going forward, we will analyze Boothby's
claim as "judicial comment error," and to determine the proper harmlessness test, we look
to Sherman for guidance.

In Sherman, we adopted the Chapman/Ward test to determine whether
prosecutorial error that infringes on the constitutional right to a fair trial is harmless. First
we boiled the prosecutorial error test down to two steps: error and prejudice. 305 Kan. at
109. Then, we explained, if error is found we must "determine whether the error
prejudiced the defendant's due process rights to a fair trial." 305 Kan. at 109. To evaluate
prejudice, we followed Ward and adopted the Chapman constitutional harmlessness test:
"prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict.'" Sherman, 305 Kan. at 109 (quoting Ward, 292 Kan. 541, Syl. ¶ 6).

We find the logic behind Sherman's "error and prejudice" rubric for prosecutorial
error applies with equal force to judicial comment error. Both the prosecutorial error in
Sherman and the judicial comment error here are rooted in the same constitutional right
to a fair trial and can inflict the same damage to the defendant. An erroneous remark can
prejudice the defendant's right to a fair trial whether the prosecutor makes it during
closing argument or the judge makes it during voir dire. Indeed, the harm to the
defendant is the same, if not worse, when a prejudicial remark is delivered with a judge's

10
authority. See In re Care & Treatment of Foster, 280 Kan. 845, 858-59, 127 P.3d 277
(2006) (noting that "Kansas case law is replete with references to the position of trust
occupied by a judge in a jury trial" and collecting examples).

Thus we hold that, from now on, appellate courts will employ the familiar "error
and prejudice" rubric to claims of judicial comment error. As in Sherman, the error
inquiry must be conducted on a case-by-case basis, always informed by existing caselaw
concerning when judicial comments fall outside a permissible latitude. As for the
prejudice prong, judicial comment error will be reviewed under the Chapman/Ward test.
That means judicial comment error is reversible unless the party benefitting from the
error—the State—proves beyond a reasonable doubt that the error did not affect the
outcome of trial in light of the entire record. See Sherman, 305 Kan. at 109; see also
Chapman, 386 U.S. at 24.

That said, we acknowledge that calling the State a "benefitting" party may seem
incongruous or unfair. The State does not have control over a judge's comments; judicial
comment error may thwart the State's noble efforts to conduct a fair trial; and laudably,
the State may act swiftly to correct the error, as it did here. Even so, the balance of
interests weighs in favor of protecting the defendant's fundamental right to a fair trial. See
Sherman, 305 Kan. at 97-98 ("'The right to a fair trial is a fundamental liberty secured by
the Fourteenth Amendment.'"); see also Chapman, 386 U.S. at 24 ("Certainly error,
constitutional error, in illegally admitting highly prejudicial evidence or comments, casts
on someone other than the person prejudiced by it a burden to show that it was
harmless.").

As a final matter, Boothby admits that he did not object to the judicial comment
error at trial. This does not bar review because "[w]hen a defendant's right to a fair trial is
alleged to have been violated, the judicial comments are reviewable on appeal despite the
lack of a contemporaneous objection." State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273

11
(2005); see State v. Kahler, 307 Kan. 374, 383, 410 P.3d 105, cert. granted 139 S. Ct.
1318 (2018). Moreover, we recognize the potential hazard of objecting to a judge's
comment error during trial. Indeed, an attorney seeking to rectify judicial comment error
may be "faced with the dilemma of whether to object at all" because "[a] judge who is
interfering or intemperate may be further antagonized by counsel's objection." See
1 Griffin, Federal Criminal Appeals § 4:41. We likewise permit defendants to raise
prosecutorial error made during voir dire, opening statement, or closing argument for the
first time on appeal. See State v. Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017).

The State does not contest that Boothby's claim is reviewable on appeal, but it asks
us to apply the federal "plain error" standard. Fed. R. Crim. P. 52(b) ("A plain error that
affects substantial rights may be considered even though it was not brought to the court's
attention."); see United States v. Olano, 507 U.S. 725, 733-34, 113 S. Ct. 1770, 123 L.
Ed. 2d 508 (1993); United States v. Mendoza, 543 F.3d 1186, 1190 (10th Cir. 2008)
("When the party alleging error has not objected in the court below . . . [federal courts]
review only for plain error: '[1] error, [2] that is plain, [3] which affects . . . substantial
rights and [4] which seriously affects the fairness, integrity, or public reputation of
judicial proceedings.'"). We have not applied a plain error standard when reviewing
claims of prosecutorial error and, in keeping with Sherman, we decline the State's
invitation to adopt the federal plain error standard here.

In sum, erroneous judicial comments made in front of the jury that are not jury
instructions or legal rulings will now be reviewed as "judicial comment error." Following
Sherman's example, judicial comment error will be analyzed in two steps: error and
prejudice. The prejudice step will be reviewed under the Chapman/Ward constitutional
harmlessness test. Thus, judicial comment error is reversible unless the State proves
beyond a reasonable doubt that the error did not affect the outcome of trial in light of the
entire record. Judicial comment error is reviewable on appeal despite the lack of a
contemporaneous objection at trial.

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 Applying these principles, we hold the State proved beyond a reasonable doubt
that the judge's comments about Boothby's "aggravated battery" in a "former case" did
not affect the outcome of trial in light of the entire record. In context, the judge's
misstatements during voir dire were brief; made in passing; and quickly remedied by the
diligent efforts of defense counsel and the State. The judge corrected his mistake and
informed the venire panel that he was "start[ing] over." Moreover, the comments were
attenuated by the rest of voir dire, the evidence at trial, and the jury instructions, which
told the jury to "decide this case only on the evidence admitted"; to "disregard any
testimony or exhibit which I did not admit into evidence"; and to base the verdict
"entirely upon the evidence admitted and the law as given in these instructions." See
Cheever, 306 Kan. at 794 (holding judge's jury orientation remarks did not prejudice the
defendant because "[t]he statements were among the earliest remarks the eventual jurors
heard, and any effect they might have had was surely attenuated by the voir dire process,
the trial, and the instructions informing jurors of their responsibilities"); see also State v.
Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012) (generally "we presume the jury
follows the instructions given"). As a result, we conclude the State met its burden to
prove the judicial comment error was harmless.

The jury instruction stating the "verdict must be founded entirely upon the evidence
admitted and the law as given in these instructions" is legally correct.

Lastly, Boothby argues the district court erred when it instructed the jury: "Your
verdict must be founded entirely upon the evidence admitted and the law as given in
these instructions." See PIK Crim. 4th 68.010 (2012) (containing identical instruction).
Boothby claims this instruction—particularly the word "must"—was legally incorrect
because it told the jury that it did not have a right to nullify. Of course, Boothby's
argument assumes there is a "right" to jury nullification in the first place. The State

13
challenges this assumption, arguing a right to jury nullification does not exist and, even if
it did, the instruction did not say the jury had no right to nullify or interfere with its
ability to nullify.

"Generally, an appellate court reviewing a jury instruction challenge must
determine whether the issue was preserved; whether the instruction was legally and
factually appropriate; and whether any error was harmless." State v. Barrett, 309 Kan.
1029, 1036-37, 442 P.3d 492, 498 (2019). Preservation and reversibility are interrelated.
When a party fails to object to a jury instruction at trial, we only reverse if the instruction
is clearly erroneous, meaning, we must be "'"firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred."'" State v. McLinn, 307
Kan. 307, 317-18, 409 P.3d 1 (2018). Boothby admits the clear error standard applies
because he did not object to the instruction at trial. See 307 Kan. at 317-18; K.S.A. 2018
Supp. 22-3414(3).

To be sure, juries have "the raw physical power" to nullify, or disregard, the law.
State v. McClanahan, 212 Kan. 208, 217, 510 P.2d 153 (1973). But, as Boothby
recognizes, we have long held that an instruction telling the jury that it may nullify is
legally erroneous. See 212 Kan. at 215-17. This is because "it is the proper function and
duty of a jury to accept the rules of law given to it in the instructions by the court, apply
those rules of law in determining what facts are proven and render a verdict based
thereon." 212 Kan. at 217; see State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011) ("It is
not the role of the jury to rewrite clearly intended legislation, nor is it the role of the
courts to instruct the jury that it may ignore the rule of law, no matter how draconian it
might be.").

Boothby does not quarrel with this precedent. Instead, he claims there is a right to
jury nullification—though he does not say where this right comes from or to whom it
belongs—and the challenged instruction wrongly told the jury that it could not nullify. In

14
support, he points to State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014),
which held an instruction was legally erroneous that said: "'If you do not have a
reasonable doubt from all the evidence that the State has proven murder in the first
degree on either or both theories, then you will enter a verdict of guilty.'" We reasoned
this instruction was erroneous because "[i]t essentially forbade the jury from exercising
its power of nullification" and "the wording at issue here—'will'—fl[ies] too close to the
sun of directing a verdict for the State." 301 Kan. at 164.

Based on Smith-Parker, Boothby argues the challenged instruction likewise
forbade the jury from exercising the right of nullification. We disagree for three main
reasons: (1) we have not recognized a "right" to jury nullification, and we decline to do
so now; (2) the reasonable doubt instruction in Smith-Parker is distinguishable from
Boothby's instruction; and (3) in the end, Boothby's instruction was legally correct.

First, Smith-Parker did not establish a "right" to jury nullification, as Boothby
suggests. On the contrary, Smith-Parker called jury nullification a "power"—not a
"right"—as did past precedent. See 301 Kan. at 164; see also Naputi, 293 Kan. at 65 ("the
jury's power of nullification"); McClanahan, 212 Kan. at 213 ("the jury's raw physical
power to disregard the law"); State v. Osburn, 211 Kan. 248, 255, 505 P.2d 742 (1973)
("'the jury has the power to bring in a verdict in the teeth of both law and facts'"). Though
Smith-Parker voiced concern about language directing a verdict for the State, it did not
recognize a right to jury nullification. And we decline to recognize such a right today.

Second, the reasonable doubt instruction in Smith-Parker is distinguishable from
the instruction Boothby challenges. In Smith-Parker, we held the reasonable doubt
instruction's wording—"you will enter a verdict of guilty"—too closely resembled a
directed verdict. 301 Kan. at 163-64. But that concern is not presented here, where the
challenged instruction does not, even arguably, direct the jury to choose a certain verdict.

15
The State asks us to overrule Smith-Parker, but we decline to do so because it is
distinguishable from the case before us.

Third, the challenged instruction was legally correct. Again, the instruction stated:
"Your verdict must be founded entirely upon the evidence admitted and the law as given
in these instructions." This is an accurate—and bedrock—statement of law that mirrors
the juror's oath; upholds the role of judge and jury; and most importantly, protects the
accused. See K.S.A 2018 Supp. 60-247(d) (requiring jurors to "swear or affirm to . . .
return a verdict according to the law and the evidence"); K.S.A. 22-3403(3) ("When the
trial is to a jury, questions of law shall be decided by the court and issues of fact shall be
determined by the jury."); see also State v. Cash, No. 111,876, 2015 WL 5009649, at *4
(Kan. App. 2015) (unpublished opinion). For example, this instruction helps protect the
accused from verdicts based on inadmissible evidence, personal bias, or even a coin flip.
Indeed, "[o]ur whole system of criminal law is based upon rules of law for the protection
of the accused." McClanahan, 212 Kan. at 212. Thus, a district court does not err when it
tells a jury to follow the law.

No doubt, Boothby advocates for jury nullification because he speculates that the
jury would have acquitted him here. But we caution that inviting nullification is playing
with fire: "Without restraints being placed upon a jury by our system of jurisprudence
the conscience of a jury in a case which causes public outrage might well reflect a lack of
rationality rather than a proper display of community conscience." 212 Kan. at 212. In
other words, removing the instruction Boothby challenges could do more harm than
good.

Finally, we note that telling a jury to follow the law does not prevent the jury from
exercising its raw power to nullify. Jury nullification is the "knowing and deliberate
rejection of the evidence or refusal to apply the law." Black's Law Dictionary 1026
(11th ed. 2019). Telling a jury to follow the law does not hamper the jury's ability to

16
deliberately disregard that same instruction. After all, "the possibility of jury nullification
logically requires, as a necessary precondition, the existence of a mandatory charge from
the court." State v. Robinson, 303 Kan. 11, 334, 363 P.3d 875 (2015). Thus, we reject the
argument that a legally correct jury instruction interferes with the jury's power to nullify.

Affirmed.

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