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NOT DESIGNATED FOR PUBLICATION

No. 123,695

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DAVID AARON KELLY,

Appellant.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; ROBERT J. BEDNAR, judge. Opinion filed March 4, 

2022. Reversed and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant. 

Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: David Aaron Kelly stands convicted of aggravated intimidation of a 

witness after a bench trial. Because we find the district court failed to sufficiently advise 

Kelly of his right to a jury trial before accepting his jury trial waiver, we reverse Kelly's 

conviction and remand with directions. This reversal renders Kelly's remaining 

complaints moot.

Given the disposition of this appeal, the facts underlying Kelly's conviction are 

largely irrelevant. In summary, Kelly was charged with aggravated intimidation of a 

witness and aggravated assault related to an incident which occurred on July 24, 2018. 
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His jury trial was originally set to occur in October 2019. After several continuances and 

the recusal of the original trial judge, this date was pushed back to April 9, 2020. On 

March 18, 2020, however, all jury trials were suspended because of the COVID-19

pandemic. By July 17, 2020, Kelly had spent 529 days in custody, on this case and other 

charges. At one point Kelly moved to dismiss the charges on speedy trial grounds, but the 

district court found most of the delays were attributable to Kelly's changes in counsel and 

his request for recusal of his original trial judge. 

Ultimately, Kelly appeared for trial on September 16, 2020. The record does not 

reflect how the matter became scheduled for this date, nor whether the parties intended 

the matter to be set for a jury or bench trial. The district court began the proceedings by 

asserting the parties were appearing for a bench trial and then mistakenly stated Kelly had 

already waived his right to a jury trial. After Kelly's counsel responded by pointing out 

that Kelly had not yet waived his jury trial right, but intended to do so at that time, the 

district court conducted a short examination of Kelly:

"THE COURT: You are waiving your right to a jury trial, Mr. Kelly?

"MR. KELLY: (Inaudible) I wanna do a bench trial.

"THE COURT: All right. And—and no one has—has anyone threatened you or 

promised you anything to get you to waive your right?

"MR. KELLY: No. I'm just tired of being in jail.

"THE COURT: Has anyone threatened you with any type of repercussions if you 

would not waive your right?

"MR. KELLY: No, sir.

"THE COURT: So—and the main reason is that you would like to speed up the 

process, if I understand you; is that correct?

"MR. KELLY: Yes, Judge Bednar.

"THE COURT: All right."

The district court then moved on to dispose of several pretrial motions filed by 

Kelly. After both parties waived opening statements, the court heard witness testimony.
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The court found Kelly guilty of aggravated intimidation of a witness but not guilty of 

aggravated assault. The court sentenced Kelly to prison, relying on a presentence 

investigation report's summary of Kelly's criminal history which Kelly confirmed was 

accurate.

Kelly now challenges the sufficiency of the evidence supporting his conviction, as

well as the district court's use of his prior conviction for criminal threat in calculating his 

criminal history score. We need not address either of these challenges since we are 

persuaded by Kelly's other argument on appeal: We agree Kelly's waiver of his jury trial 

right was ineffective since the district court did not properly advise Kelly of this right.

Before we address the substance of Kelly's argument, we must discuss our ability 

to review it on appeal. Although Kelly brought up whether he knowingly and voluntarily 

waived his right to a jury trial before the district court in a supplemental motion for a new 

trial, he argued different grounds in his motion than he alleges on appeal. While we 

question whether Kelly properly preserved this issue for appeal, the State does not. See 

State v. Walle, No. 104,224, 2012 WL 139267, at *3 (Kan. App. 2012) (unpublished 

opinion) (finding a prosecutorial misconduct claim was not preserved for appeal since 

different grounds were alleged to the district court than on appeal). Yet we need not 

address whether Kelly properly preserved this issue since we are persuaded that, even if 

Kelly did not, we may reach it for the first time on appeal because it implicates Kelly's 

fundamental rights. 

Generally, appellate courts do not address issues raised for the first time on appeal 

but may do so when consideration of the issue is necessary to serve the ends of justice or 

to prevent the denial of fundamental rights. Not only is the right to a jury trial a 

fundamental right, but the Kansas Supreme Court has counseled that whether a court has 

advised a defendant of his or her right to a jury trial is one of the last issues that should be 

denied the opportunity for exceptional treatment. State v. Redick, 307 Kan. 797, 802, 414 
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P.3d 1207 (2018). We thus exercise our discretion to consider the sufficiency of Kelly's 

jury trial waiver on appeal. See State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017)

(since preservation is a prudential rule rather than a jurisdictional bar, an appellate court 

may apply exceptions to that general rule).

Standards governing jury trial waivers

Both the United States Constitution and the Kansas Constitution guarantee a 

criminal defendant a right to a jury trial. U.S. Const. amend. VI; Kan. Const. Bill of 

Rights §§ 5, 10. Whether a defendant has waived this right is a factual question, subject 

to analysis under a substantial competent evidence standard of review. But when the facts 

of the district court's determination to accept a jury trial waiver are not disputed, whether 

a defendant voluntarily and knowingly waived the jury trial right is a legal inquiry subject 

to unlimited appellate review. State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020). 

We must strictly construe jury trial waivers to ensure that defendants have every 

opportunity to receive a trial by jury. Redick, 307 Kan. at 803.

All felony cases must be tried to a jury unless the defendant and the State, with the 

district court's consent, submit the matter to a bench trial. K.S.A. 22-3403(1). Two things 

must occur before a trial to the bench can take place: (1) The judge must clearly and 

unequivocally advise the defendant that he or she has the right to have the case tried by a 

jury and (2) if the defendant wishes to waive the right to a jury trial, the judge must 

determine whether that waiver is made freely and voluntarily. Harris, 311 Kan. at 376 

(explaining the rule laid out in State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 [1975]).

Because there is a presumption that a criminal case will be tried to the jury, it is 

not enough for a judge to simply ask a defendant to make a choice between a trial to the 

judge or a trial to the jury. Harris, 311 Kan. at 376. The judge must follow the procedure 

laid out in Irving to guard against involuntary waiver and to "minimize the uncertainty 
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otherwise attendant to the determination of whether the defendant knowingly and 

intelligently waives a jury trial." 216 Kan. at 590.

The test for determining a waiver's validity is whether it was voluntarily made by a 

defendant who knew and understood what he or she was doing. Whether that test is 

satisfied depends on the particular facts and circumstances in each case. Irving, 216 Kan. 

at 589.

Sufficiency of Kelly's jury trial waiver

Kelly claims that his waiver was not made knowingly since the district court failed 

to expressly advise him of his right to a jury trial. The district court did not make a 

declarative statement advising Kelly of the right or explain to him the nature of the jury 

trial right and how a jury trial differs from a bench trial. Instead, the district court simply

asked him a few questions, which only touched on the reason Kelly was waiving (to 

"'speed up the process'") his right to a jury trial. Given Kelly's concerns about past delays 

in his case and the fact that Kelly waived his jury trial right at a time when jury trials 

were not being scheduled because of the COVID-19 pandemic, Kelly argues the district 

court should have done more to ensure that Kelly understood the right he was giving up 

and that he was not simply choosing the quicker option due to the exigent circumstance 

of the pandemic.

The State argues that Kelly's waiver of his jury trial right was valid, noting Kansas 

appellate courts have upheld jury trial waivers even when the district judge has not fully 

explained all the particulars of the right. In the State's view, the district court's inquiry 

here was minimally sufficient. The State argues it is enough that the district court 

referenced Kelly's right to a jury trial and ensured that his waiver was freely and 

voluntarily made, given that Kelly did not express any confusion about the nature of the 

right in his interactions with the judge.
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There is no checklist or magic phrase that appellate courts should look for in 

considering whether a district court has sufficiently advised a defendant of the nature and 

extent of his or her constitutional right to a trial by jury. Instead, we must consider the 

surrounding facts and circumstances to determine whether the purpose of the Irving

rule—that the district court satisfied itself that the defendant knows what rights he or she 

has and what he or she is giving up—is met. State v. Beaman, 295 Kan. 853, 860-61, 286 

P.3d 846 (2012). 

In support of its argument that a district court is not required to explain all the 

particulars of the jury trial right to a defendant before accepting the defendant's waiver of 

that right, the State relies on Redick, 307 Kan. 797. In Redick, the district court explained 

the jury trial right in basic terms to the defendant before accepting his waiver. Redick told 

the district court that he wanted to waive his jury trial right because he was afraid the 

media coverage of his case would make it difficult to find impartial jurors. Before 

accepting Redick's jury trial waiver, the district court informed Redick that he had "'a 

constitutional right to be tried by a jury of your peers in this community and the Court 

must provide that to you'" and asked him to confirm that he was waiving that right. 307 

Kan. at 799. 

On appeal, Redick claimed the district court had failed to sufficiently advise him 

of his rights before accepting his waiver, specifically arguing the district court should 

have advised him that a jury verdict must be unanimous. The Supreme Court rejected 

these arguments and held that the district court sufficiently advised Redick of his rights, 

noting that there was no requirement for district judges to articulate the jury-unanimity 

rule before accepting a defendant's jury trial waiver. Redick, 307 Kan. at 804-05. In 

explaining its ruling, the court found that while the district court's remarks "were not as 

expansive as they could be, they were minimally sufficient." 307 Kan. at 804. Although 

the Supreme Court would have preferred the district court to have explained the steps that 
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must be taken to ensure the seating of a fair and impartial jury, the omission did not 

render Redick's waiver invalid. 307 Kan. at 805. 

But Redick is distinguishable because the district court in Redick explicitly advised 

the defendant that he had a right to a jury trial and explained what that meant in basic 

terms. Here, the district court only referred to Kelly's right to a jury trial; it did not 

explain the nature or extent of that right. What is more, Redick evidently understood he 

had a right to a trial by his peers since he explained he did not want a trial by those peers, 

whom he felt would not judge him fairly, based on media coverage. See 307 Kan. at 799-

800. Kelly's waiver did not suggest he understood the nature of his jury trial right—it 

only reflected that he understood his trial would occur quicker if he chose a bench trial 

over a jury trial. While we do not judge the validity of a jury trial waiver on the grounds 

of expediency in general, we do find under these circumstances that the district court 

should have explained the nature of Kelly's jury trial right to ensure Kelly knew the 

substance of the right he was giving up simply to proceed to trial quicker. See Beaman,

295 Kan. at 860-61. 

In Beaman, the Supreme Court considered the validity of a jury trial waiver where 

the district court did not explicitly advise the defendant of his right to a jury trial but 

engaged in a thoughtful exchange with the defendant that accomplished the same 

purpose. Beaman told the district court that he wanted to waive his right to a jury trial 

against the advice of his counsel. The district court asked Beaman to confirm that it was 

his desire to "'waive a jury for this trial'" and explained that "'the defendant is almost 

always better off taking a case in front of a jury.'" Beaman, 295 Kan. at 854. The district 

court then described some of the disadvantages of a bench trial and asked Beaman to give 

his reasons for waiving his jury trial right. After Beaman stated that he did not want to 

force the victim to testify, the district court explained that the victim and her family 

would still have to testify at a bench trial but would be testifying to the court instead of a 

jury. Once the district court made sure that Beaman understood this and still wanted to 
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waive his right to a jury trial, it accepted his waiver. On appeal, Beaman argued that his 

waiver was invalid because the district court assumed that he fully understood his jury 

trial right without explaining it to him.

In analyzing the validity of his waiver, the Supreme Court noted that Beaman was 

not explicitly advised by the district court that he had a right to a jury trial. The court 

explained, however, that while there may have been a missing element in the preferred 

"checklist" for accepting a waiver, the purpose of the missing element—that the court 

satisfy itself that the defendant knows what rights he or she has and what he or she is 

giving up—was met. Beaman, 295 Kan. at 860-61. Because the district court used the 

word "waiver," told Beaman he would be better off with a jury, and engaged in a 

thoughtful exchange with Beaman, the Supreme Court held that Beaman's jury trial 

waiver was knowing and voluntary, even though it never explicitly advised him of his 

right to a jury trial. 295 Kan. at 861-62. The district court had no such exchange with 

Kelly.

We find this case more analogous to Harris, 311 Kan. 371, than Redick and 

Beaman. In Harris, the Kansas Supreme Court reversed a defendant's conviction after 

concluding the district court failed to ensure the defendant understood the nature of the 

right he was giving up. The district court's exchange with Harris was minimal. Harris'

counsel asked him whether he wanted a judge or a jury trial, to which Harris replied, "'Go 

with the judge. I want the bench.'" 311 Kan. at 373. After the district court asked Harris if 

he was requesting a jury trial, Harris responded, "'I'm asking for a bench trial.'" 311 Kan. 

at 373. Based on this exchange, the district court accepted Harris' waiver. 

As in Beaman, the district court in Harris failed to explicitly tell the defendant that 

he had a right to a jury trial. Unlike Beaman, however, the district court in Harris did not 

even use the word "waiver" and failed to engage in any thoughtful exchange with the 

defendant to make up for this deficit. As the Supreme Court explained, the district court's 
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framing of the right to a jury trial as a mere option failed to recognize that Harris was 

entitled to a jury trial by default, without making any affirmative election. And once 

Harris expressed his preference for a bench trial, the district court simply accepted his 

choice and moved on without taking any steps to ensure that Harris understood the right 

he was giving up. Based on these facts, the Supreme Court held the district court failed to 

properly inform Harris of his right to a jury trial and ensure that he understood the nature 

of the right he was giving up. 311 Kan. at 377. Similarly, the district court simply 

referenced Kelly's jury trial right, without explaining that right or the nature of what 

Kelly was giving up in the name of expediency.

Admittedly, this case is a close call. But given that jury trial waivers must be 

strictly construed to ensure defendants have every opportunity to receive a trial by jury,

we find that Kelly did not knowingly and voluntarily waive his right to a jury trial. We 

reverse Kelly's conviction, remand this case to the district court, and direct it to 

sufficiently advise Kelly of his right to a jury trial so he can either knowingly and 

voluntarily exercise that right or properly waive it.

Reversed and remanded with directions.