CAN YOU RAISE AN ISSUE ON APPEAL THAT YOU DIDN’T RAISE AT TRIAL WITH REGARDS TO JURY POLLING?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Cheffen, 297 Kan. 689 (2013).

This case answers the following question:

Can a defendant appeal the jury polling procedure if they didn’t object to it at trial and did not make a posttrial motion?

The issue in this case involves whether a defendant may challenge the jury polling procedure for the first time on appeal when no objection was made at trial and no posttrial motion was filed. A criminal defendant has a statutory right to a unanimous jury verdict. Id. at 695. K.S.A. 22-3421 sets out two inquiries that the trial court must make in regards to the jury polling procedure. Id. The first is that the trial judge must ask if the verdict read in open court is the jury’s verdict after the verdict is read. Id. The second requirement is that the trial judge must poll the jurors individually – if either party requests it. Id. The rule that a party cannot raise an issue on appeal where no contemporaneous objection was made at trial and where the trial court did not have an opportunity to rule applies to jury polling requests under K.S.A. 22-3421. Id. at 696.

The defendant raises the following issues in this case: that the trial judge erred by asking if it was the jury’s verdict before it was read rather than after it was read, and that the district court should have sua sponte individually polled the jurors. Id. at 695. However, the defendant raised these issues for the first time on appeal. Id. The defendant argued that his challenges (1) involve the fundamental right to a unanimous jury verdict and (2) are questions of law and do not rely on disputed facts. Id. at 696. This Court disposed of the defendant’s first argument by noting that the right to a unanimous jury verdict and the right to request a jury poll of individual jurors is not constitutional – it is statutory. Id. at 697. Similarly, this Court also “reject[ed] an exception to the rule that an issue may not be considered for the first time on appeal on the basis that a challenge such as this presents only questions of law and does not rely on disputed facts. At the very least, the prejudice analysis requires factual review.” Id. at 698. The Court then held that the rule requires a party that wishes to challenge the jury polling procedures as set out in K.S.A. 22-3421 must have raised that issue first with the district court, either in the form of a contemporaneous objection or posttrial motion. Id. This Court then concluded that due to the fact that no objection was raised at the trial court and no posttrial motion was filed, the defendant failed to preserve his K.S.A. 22-3421 challenge for appellate court consideration. Id. at 699.