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22-3405. Presence of defendant. (a) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death or life without the possibility of parole, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes.

(b) The defendant must be present, either personally or by counsel, at every stage of the trial of traffic infraction, cigarette or tobacco infraction and misdemeanor cases.

History: L. 1970, ch. 129, § 22-3405; L. 1984, ch. 39, § 41; L. 1996, ch. 214, § 33; L. 2014, ch. 114, § 6; July 1.

Source or Prior Law:

62-1411, 62-1507, 62-1508.

Law Review and Bar Journal References:

Survey of Recent Cases, 43 K.L.R. 984 (1995).

Survey of Recent Cases, 43 K.L.R. 1003 (1995).

CASE ANNOTATIONS

1. Dismissal of appeal from misdemeanor conviction reversed; defendant's presence by counsel sufficient under subsection (2). State v. Cade, 210 Kan. 544, 545, 546, 502 P.2d 782.

2. Defendant sentenced in absentia did not waive right to be present at sentencing; subject to resentence. State v. Fennell, 218 Kan. 170, 176, 177, 542 P.2d 686.

3. In-chambers conference; not stage of trial under section. State v. Mantz, 222 Kan. 453, 462, 463, 565 P.2d 612.

4. Removing defendant from courtroom before jury discharged did not violate section. State v. Gilder, 223 Kan. 220, 226, 574 P.2d 196.

5. Alleged trial errors in granting continuance of one day during trial proceedings when defendant absent; no prejudice shown. State v. Nelson, 223 Kan. 251, 253, 573 P.2d 602.

6. Voluntary absence of defendant from in-chamber hearings not violative of constitutional or statutory rights. State v. Sandstrom, 225 Kan. 717, 720, 721, 595 P.2d 324.

7. Error to permit read-back of testimony to jury in absence of court, counsel and defendant. State v. Gammill, 2 Kan. App. 2d 627, 630, 585 P.2d 1074.

8. Presence of convicted defendant not required at hearing on post-verdict motion for new trial. State v. Bryant, 227 Kan. 385, 390, 607 P.2d 66.

9. Cited in holding appeal not timely filed. State v. Moses, 227 Kan. 400, 402, 403, 607 P.2d 477.

10. Robbery conviction reversed; trial court communication with jury concerning instructions and for review of evidence outside presence of defendants absent their waiver. State v. Antwine, 4 Kan. App. 2d 489, 401, 607 P.2d 519.

11. Defendant's presence not required at proceedings involving only matter of law. State v. Sanders, 227 Kan. 892, 894, 610 P.2d 633.

12. Defendant's presence at conference for announcing peremptory challenges not essential to fair trial. State v. Marks, 231 Kan. 645, 651, 647 P.2d 1292 (1982).

13. Court's communication and admonition to jury during absence of defendant held harmless error not prejudicial to defendant. State v. Garcia, 233 Kan. 589, 594, 595, 596, 664 P.2d 1343 (1983).

14. Trial court error in questioning juror outside presence of defendant not likely to change trial results. State v. Knapp, 234 Kan. 170, 179, 671 P.2d 520 (1983).

15. Defendant may not impede or prevent trial by voluntary absence nor by unruly and disruptive behavior requiring removal. State v. Hartfield, 9 Kan. App. 2d 156, 161, 676 P.2d 141 (1984).

16. Though sentencing "in absentia" improper, defendant who is fugitive abandoned appeal of conviction. State v. Scott, 9 Kan. App. 2d 322, 675 P.2d 942 (1984).

17. In-chambers conferences dealing with legal or procedural questions are not stages of a trial at which defendant's presence is required. State v. Fosnight, 235 Kan. 52, 59, 679 P.2d 174 (1984).

18. Defendant must be present in court for resentencing. State v. Turbeville, 235 Kan. 993, 1002, 686 P.2d 138 (1984).

19. Defendant's right to be present does not encompass proceedings with court on matters of law or request for desire of jury as to continued deliberation or recess. State v. Baker, 236 Kan. 132, 136, 689 P.2d 803 (1984).

20. Defendant's presence at postsentencing motion hearing discretionary; appeal time therefrom runs 10 days from journal entry. State v. Myers, 10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985).

21. Court-juror conference in defendant's absence (defense counsel present) was harmless error under totality of circumstances. State v. Lovely, 237 Kan. 838, 845, 703 P.2d 828 (1985).

22. No abuse in dismissing where defendant and counsel absent for trial on mistaken notion request for jury (K.S.A. 22-3609) timely. City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 587, 588, 705 P.2d 564 (1985).

23. Trial judge permitted to proceed with trial when defendant voluntarily waives right to be present at commencement. State v. Salton, 238 Kan. 835, 838, 715 P.2d 412 (1986).

24. Cited; waiver of allocution rights (K.S.A. 22-3422) when issue not raised on motion to modify sentence examined. State v. Webb, 242 Kan. 519, 528, 748 P.2d 875 (1988).

25. Defendant's presence not required at posttrial hearing on objections to prosecution's preemptory challenges during jury selection. State v. Hood, 245 Kan. 367, 376, 378, 780 P.2d 160 (1989).

26. Right to confrontation not violated by ex parte hearing to set appearance bond for reluctant material witness. State v. Hamons, 248 Kan. 51, 61, 805 P.2d 6 (1991).

27. Time period to satisfy speedy trial requirement examined; "brought to trial" defined (K.S.A. 22-3402). State v. Bierman, 248 Kan. 80, 89, 805 P.2d 25 (1991).

28. Fact that neither defendant nor counsel were aware that the state and judge were conferring about possible juror misconduct noted. State v. Cady, 248 Kan. 743, 759, 811 P.2d 1143 (1991).

29. Defendant's right to be present at impaneling of the jury not the same as assembling the jury panel. State v. Baker, 249 Kan. 431, 442, 819 P.2d 1173 (1991).

30. Period for timely filing notice of appeal from judgment of magistrate court (K.S.A. 22-3609a) examined. State v. Wilson, 15 Kan. App. 2d 308, 310, 808 P.2d 434 (1991).

31. Effect of proceedings in defendant's absence; voluntary absence; waiver; harmless error. State v. Galloway, 16 Kan. App. 2d 54, 57, 817 P.2d 1124 (1991).

32. Trial court's withholding impeachment evidence ascertained in camera in defendant's absence interfered with defendant's ability to cross-examine. State v. Humphrey, 252 Kan. 6, 18, 845 P.2d 592 (1992).

33. Ex parte communication between judge and juror held to be harmless error under facts presented. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1993).

34. Ex parte communication between judge and juror violated defendant's right of presence at all critical stages of trial. State v. Bowser, 252 Kan. 582, 586, 847 P.2d 1231 (1993).

35. Ex parte conversation between trial court and ill juror, excuse of juror and substitution of alternate not ground for mistrial. State v. Minski, 252 Kan. 806, 812, 850 P.2d 809 (1993).

36. Defendant cannot impede trial by choosing to be absent; voluntary absence waives right to be present. State v. Cromwell, 253 Kan. 495, 507, 856 P.2d 1299 (1993).

37. Defendant entitled to attend deposition of doctor testifying as witness against him. State v. Willis, 254 Kan. 119, 122, 864 P.2d 1198 (1993).

38. Whether defendant timely filed notice of appeal of judge's refusal to modify sentence examined. State v. Ji, 255 Kan. 101, 110, 872 P.2d 748 (1994).

39. Whether judge erred by holding in-chambers conference without defendant where counsel waives right to be present examined. State v. Rhoads, 20 Kan. App. 2d 790, 793, 892 P.2d 918 (1995).

40. No error in pronouncing sentence without defendant present when defendant removed because of disruptive behavior. State v. Williams, 259 Kan. 432, 445, 913 P.2d 587 (1996).

41. Readback conducted in defendant's absence without defendant's voluntary waiver of right constituted harmless error. State v. Acree, 22 Kan. App. 2d 350, 353, 916 P.2d 71 (1996).

42. Ex parte communication between trial judge and jury denied defendant right to fair trial constituting reversible error. State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998).

43. Trial court imposition of post release supervision without allowing defendant to be present constituted reversible error. State v. Simpson, 25 Kan. App. 2d 639, 969 P.2d 905 (1998).

44. Defendant required to be present at every critical stage of trial. State v. Bell, 266 Kan. 896, 919, 975 P.2d 239 (1999).

45. Violation of defendant's right to be present at every critical stage of trial held harmless error because of overwhelming evidence against defendant. State v. Rayton, 268 Kan. 711, 1 P.3d 854 (2000).

46. Error to disqualify and remove retained counsel. State v. Carver, 32 Kan. App. 2d 1070, 95 P.3d 104 (2004).

47. Jurors walk through crime scene accompanied only by bailiff not a critical stage of trial requiring defendant's presence. State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005).

48. Actual sentencing occurs when defendant appears in court and judge orally states the term of sentence. Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007).

49. Error as a result of trial court's ex parte juror contact was harmless. State v. Martinez, 288 Kan. 443, 204 P.3d 601 (2009).

50. Various fees discussed, no requirement that judge announce the order to pay fees in open court. State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009).

51. Defendant did not waive his right to be present at post-sentencing hearing where defendant was in custody at time of hearing and defense counsel was unsure if defendant had previously consented to a waiver. State v. Hall, 44 Kan. App. 2d 434, 238 P.3d 744 (2010).

52. Defendant's right to be present at criminal trial not waived by defendant sending note stating he is too weak. Trial court did not fulfill duty when accepting waiver. State v. Rucker, 49 Kan. App. 2d 414, 310 P.3d 422 (2013).

53. A defendant is not deprived of the right to be present at every stage of a trial when a court renders its findings in a memorandum decision. State v. Harris, 55 Kan. App. 2d 579, 588, 419 P.3d 69 (2018).

54. Delivery of response to the jury in jury room did not violate this section under facts presented. State v. Harrison, 311 Kan. 848, 467 P.3d 477 (2020).


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