State v. Bartell

1

NOT DESIGNATED FOR PUBLICATION

No. 117,870

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANDREW BARTELL,
Appellant.

MEMORANDUM OPINION


Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed February 22,
2019. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: A jury convicted Andrew Bartell of arson. Bartell appeals his
conviction, raising five claims: (1) The district court violated his right to counsel by
allowing him to make closing argument; (2) the district court violated his First
Amendment rights by not allowing him to wear a "Black Lives Matter" t-shirt during
trial; (3) the district court erred when it instructed the jury Bartell could be found guilty if
he committed arson recklessly; (4) the prosecutor shifted the burden of proof during
closing argument; and (5) cumulative error denied him a fair trial. While the challenged
jury instruction and the prosecutor's comments both appear to be error, the errors are
harmless and we affirm.
2


Bartell, a 26-year-old student at the University of Kansas, was visiting his
grandparents in Holton in early July 2016. On July 3, Bartell's grandparents' neighbor,
Steven Battles, had parked his truck on the street near Bartell's grandparents' home.
Battles' truck had a Confederate flag painted on the hood and a Confederate flag flying
from the bed. Bartell found this very disrespectful because he felt the Confederate flag
was "a symbol of hatred, slavery and the KKK."

Bartell went to Battles' house and told Battles to move the truck. According to
Battles' understanding, Bartell did not want the truck near his grandparents' property. But
Battles refused to move his truck because he had not parked it directly in front of Bartell's
grandparents' house. Bartell then went to the police station to complain, but the police did
not make a report.

The next day, Jeffrey Cannon and his mother were sitting on their deck when they
saw Bartell walk from his grandparents' house and down the sidewalk to Battles' truck.
According to Cannon, Bartell was wearing a black t-shirt with a tuxedo graphic on the
front. Bartell stopped and appeared to take pictures of the truck with his phone. He then
walked back to his grandparents' house.

Shortly afterwards, Bartell returned to the truck carrying a red gas can. Cannon
called the police as Bartell poured gas all over the truck and the flag. Bartell then lit the
truck on fire with a match and slowly walked back to his grandparents' home.

Officer Brian Barber of the Holton Police Department was only three or four
blocks away when he received a call that someone was pouring gasoline on a parked car.
When he reached the scene, he saw Bartell in a black shirt walking away from the truck
while carrying a red gas can. Barber ran up to Bartell and ordered him to stop. Bartell
3

dropped the gas can and a box of matches on the ground. Barber later found photographs
of Battles' truck on Bartell's phone.

The State charged Bartell with arson. He wore a "Black Lives Matter" t-shirt to
every pretrial hearing. The district court allowed Bartell to wear the shirt at those
hearings but advised him that he should not wear it at trial. In response, Bartell filed a
motion asking the court to allow him to wear the shirt during trial, arguing he had a right
to free speech and wearing the shirt during the trial would not unduly prejudice the jury.
After a hearing, the court denied Bartell's request. Before trial, Bartell renewed his
motion, and the court again denied it.

After the State rested its case-in-chief, Bartell requested to give his own closing
statement. After a discussion, the district court allowed Bartell to give his closing
statement but emphasized that he would be subject to the same rules as an attorney.
Defense counsel requested a chance to speak with Bartell to verify he still wanted to give
closing argument.

In his closing, Bartell did not deny that he had set Battles' truck on fire. Instead, he
emphasized he believed the Confederate flag was a symbol of racism and displaying it
was essentially a hate crime. He felt that if he failed to do anything about it, he would be
complicit in that crime. He also believed the flag was a gang symbol and displaying it
near his grandparents' home put them in danger of a violent attack from a rival gang. He
tried to have the Confederate flags removed by legal means, but to no avail. As a result,
he felt compelled to take action himself.

The jury convicted Bartell of arson. The district court sentenced him to 24 months'
probation with an underlying sentence of 13 months' imprisonment. The court also
ordered Bartell to pay Battles $500 in restitution. Bartell appeals.

4

Right to Counsel

Bartell argues the district court violated his right to counsel by allowing him to
give his own closing argument. He asserts the court should have obtained a knowing and
intelligent waiver of his right to counsel but did not do so. The State responds that Bartell
did not unequivocally assert his right to self-representation. Instead, the court used its
discretion to allow Bartell to have hybrid representation, and no waiver was necessary.

Bartell concedes he did not object when the district court allowed him to give
closing argument without first requiring him to waive his right to counsel. But he
contends we should still hear his argument because it involves only a question of law and
would prevent the denial of a fundamental right.

An appellant generally cannot raise constitutional issues for the first time on
appeal. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). One exception to this
general rule is when consideration of a new legal theory is necessary to serve the ends of
justice or prevent the denial of fundamental rights. State v. Phillips, 299 Kan. 479, 493,
325 P.3d 1095 (2014). Because the right to counsel is a fundamental right, we may
address Bartell's argument for the first time on appeal. See State v. Loggins, 40 Kan. App.
2d 585, 595, 194 P.3d 31 (2008) (reviewing denial of fundamental right to counsel for the
first time on appeal).

Additional facts are necessary to evaluate this issue. The district court appointed
Andrew Delaney to represent Bartell. Delaney represented Bartell at his pretrial hearings,
filed motions on his behalf, and provided proposed jury instructions. At trial, Delaney
conducted voir dire, gave an opening statement, and cross-examined the State's
witnesses.

5

After the State rested, Delaney asked the district court if Bartell could give his
own closing statement. In response, the court told Delaney and Bartell:

"Well, I don't know if there is a lot to say about it. He's entitled to an attorney but
also he's entitled to present his own defense if he desires to do so. Obviously, that is more
of a concern where the person is trying to go through the trial but you've been doing that,
Mr. Delaney, and he hasn't asked you not to. I guess my only comments would possibly
be, Mr. Bartell, just because you're not a lawyer, when you give closing, if you give the
closing statement, the standards would still apply to you. There may be objections to
things you say. And if the State objects, you would need to stop and allow the Court to
rule on the objection and then give directions on whether you should continue or whether
you need to modify what you're saying. You may—sometimes when that happens, you
may view that simply as a tactic by the State to throw you off your game. But if they
think there is something objectionable, they're entitled to do that. Mr. Delaney, being
more familiar with the rules of evidence and having certain ethical duties, knows that.
And in his closing, obviously, he would conform to the rules of evidence and to the
ethical duties. So I'm just reminding you, if you choose to do this, that doesn't entitle you
to necessarily just say anything you darn well want to. Although, it's pretty broad when it
comes to closing arguments even for Defense counsel. Keep in mind, though, that the
Court will also provide the jury with an instruction in which they are told that—on this
case we may have to modify. Typically, they're told remarks of counsel are not evidence.
They can be considered in terms of persuasiveness but they are not evidence. And I don't
want you to somehow misunderstand that if you decide not to testify on your own behalf,
because I think you’re going to essentially do the same thing in closing. You may be able
to say similar things but it would not be evidence and the jury would be instructed to and
are instructed in all cases to essentially disregard any part of an opening or closing that
does not conform to the evidence presented. So in that sense, anything you say is not
evidence. And if there were things that you thought were important to say that would
affect the jury's verdict and there is an appeal, you wouldn't be in a position to tell the
appellate court, well what about this evidence, I said this. Again, anything you say not
under oath is not evidence. And so I want to caution you that—not suggesting you're
trying to get around that—but I want you to make a decision like this knowing full well
the repercussions of that. Because, if you decide not to testify, that's your chance to
6

testify. Once . . . the Defense rests, you're done in terms of presentation of evidence,
barring some extremely unusual rebuttal from the State. Do you understand what I've
been telling you, Mr. Bartell?"

Bartell confirmed he understood, and Delaney asked to speak with Bartell again to verify
he wanted to give his own closing.

Delaney continued to represent Bartell during presentation of the defense's case
and the State's rebuttal. Bartell then gave closing argument. After the jury returned the
verdict, Delaney asked to have the jury polled and to schedule the sentencing hearing.
Delaney filed posttrial motions on Bartell's behalf, represented him at his sentencing and
restitution hearings, and filed his appeal.

The main issue here is whether Bartell asserted his right to self-representation and
waived his right to counsel by requesting to give his closing argument. "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." State v. Bunyard, 307 Kan. 463,
470, 410 P.3d 902 (2018).

Under the Sixth Amendment to the United States Constitution, criminal
defendants have a right to counsel at every critical stage of their trial. In Kansas, they
have a similar state constitutional right as well as a broader statutory right to counsel at
every stage of their trial. Kan. Const. Bill of Rights, § 10; K.S.A. 22-4503(a). That said,
Bartell asserts closing argument is a critical stage of trial.

The Sixth Amendment also provides criminal defendants with the right to self-
representation. Defendants who clearly and unequivocally express a wish to exercise this
right may do so after a knowing and intelligent waiver of their right to counsel. "A
knowing and intelligent waiver requires that the defendant be informed of 'the dangers
7

and disadvantages of self-representation, so that the record will establish that 'he knows
what he is doing and his choice is made with eyes open.'" State v. Jones, 290 Kan. 373,
376, 228 P.3d 394 (2010).

Kansas courts have a three-step process to determine if defendants have
knowingly and intelligently waived their right to counsel. First, defendants should be
advised of their right to counsel and their right to appointment of counsel if they are
indigent. Second, defendants must have the intelligence and ability to appreciate the
waiver's consequences. Third, defendants must understand the charges and proceedings,
the range of punishments, and all facts necessary to a broad understanding of the case.
State v. McCormick, 37 Kan. App. 2d 828, 839, 159 P.3d 194 (2007).

While defendants have the right to counsel and the right to self-representation,
they do not have a right to hybrid representation. Even so, a district court may allow
hybrid representation. See State v. Holmes, 278 Kan. 603, 620-21, 102 P.3d 406 (2006).
Bartell acknowledges that he was granted hybrid representation here because Delaney
represented him at every stage of the proceeding except closing argument. But he argues
that hybrid representation is essentially a decision to proceed pro se and therefore
requires a knowing and intelligent waiver of the right to counsel.

The State argues Bartell's decision to give his own closing statement was not an
election to proceed pro se and did not require a waiver. In support, the State cites State v.
Martin, 241 Kan. 732, 738, 740 P.2d 577 (1987), in which the Kansas Supreme Court
held that a district court does not need to obtain a knowing waiver before allowing a
defendant to act as co-counsel. There, the defendant moved to act as co-counsel after the
district court appointed an attorney for him, and the court granted his motion. His only
act as co-counsel was to cross-examine one witness. On appeal, the defendant argued the
district court erred in allowing him to act as co-counsel without first obtaining a knowing
and intelligent waiver of his right to counsel. The Martin court rejected this argument,
8

noting: "[T]his is not a case of pro se representation. Martin merely requested he be
permitted to be co-counsel." 241 Kan. at 738. As a result, the district court did not need to
warn him of the dangers of proceeding pro se or obtain a waiver of his right to counsel.
241 Kan. at 738.

The State also finds support for its position from other jurisdictions. The Tenth
Circuit Court of Appeals has held that a defendant did not unequivocally invoke his right
to self-representation when he gave an opening statement and thus no waiver of the right
to counsel was needed. See United States v. Treff, 924 F.2d 975, 978-79 & n.6 (10th Cir.
1991). Other jurisdictions have reached similar conclusions. See, e.g., United States v.
Robinson, 783 F.2d 64, 67 (7th Cir. 1986) (holding defendant need not make a knowing
waiver of counsel before giving closing statement with counsel's guidance); State v.
Leady, 679 S.W.2d 292, 294 (Mo. App. 1984) (holding hybrid representation is exercise
of right to counsel not waiver of it).

In Phillips v. State, 604 S.W.2d 904, 907-08 (Tex. Crim. App. 1979), the Texas
Court of Criminal Appeals held that when defendants opt for hybrid representation, they
are not entitled to warnings on the dangers of self-representation. The court explained:

"These admonishments are to be given to a pro se defendant to insure that he is informed
of the dangers involved when he waives counsel. Although appellant partially represented
himself in this case, he was also fully represented by counsel. Thus, no question of
waiver of counsel is involved. Absent such issue arising, we cannot conclude that the trial
court erred in failing to admonish appellant as to the dangers, if any, of this form of
hybrid representation." 604 S.W.2d at 908.

See State v. Layton, 189 W. Va. 470, 479, 432 S.E.2d 740 (1993); State v. Barker, 35
Wash. App. 388, 395-96, 667 P.2d 108 (1983).

9

Conversely, Bartell cites two other jurisdictions that have held some hybrid
representations are an election to proceed pro se and thus require a waiver of the right to
counsel. In Com. v. Palmer, 315 Pa. Super. 601, 608-09, 462 A.2d 755 (1983), the
Pennsylvania Superior Court held the defendant partially waived his right to counsel by
giving opening statement and examining witnesses, and the district court had to give a
partial waiver colloquy under state law. In State v. Frye, 224 Conn. 253, 256-57, 617
A.2d 1382 (1992), the Connecticut Supreme Court held the defendant partially waived
his right to counsel by cross-examining witnesses and giving closing argument, and the
district court had to give a full waiver colloquy. See also Brooks v. State, 703 So. 2d 504,
506-07 (Fla. App. 1997) (holding district court erred in not giving full waiver colloquy
when defendant conducted pretrial activities and gave opening statement after asking to
serve as co-counsel).

Bartell cites Com. v. Brazil, 549 Pa. 321, 326, 701 A.2d 216 (1997). There, the
Pennsylvania Supreme Court held the district court has to give a full waiver colloquy
when a defendant proceeds pro se with standby counsel. 549 Pa. at 326. As Bartell
admits, Brazil appears to undermine the holding in Palmer but did not directly overrule it.
In both cases, defendants had standby counsel, but in Palmer, standby counsel appears to
have played a more significant role. Brazil, 549 Pa. at 324; Palmer, 315 Pa. Super. at
608-09. It is not clear if this was the basis for different decisions or if Brazil is a
departure from Palmer.

The State argues these cases are distinguishable because the defendants played a
more significant role at trial than Bartell did. In addition to giving opening statement or
closing argument, both defendants also examined witnesses. The State also adds that
these cases are not binding on this court.

The State also asserts that Bartell essentially benefitted from being able to give his
own closing argument. He presented many facts not in evidence, telling the jury about his
10

educational pursuits, his community service, and his motivations in taking action to
prevent a hate crime. He also stated that the Confederate flag was a recognized gang
symbol according to Police Magazine. The State only interrupted him to object once. By
giving his own closing argument, Bartell was effectively allowed to make an unsworn
statement to the jury without being subject to cross-examination. See Robinson, 783 F.2d
at 66-67.

Following Martin, Treff, and Layton, we find Bartell did not waive his right to
counsel when he chose to give his closing argument. While he partially represented
himself, he was also fully represented by counsel. He did not unequivocally invoke his
right to proceed pro se by asking to give closing argument. Based on the facts of this
case, we find that the district court did not err in failing to have Bartell waive the right to
counsel.

We could find that Bartell's partial waiver of his right to counsel only required a
partial waiver colloquy. As Bartell admits, the district court told him he would be held to
the same standards as an attorney, and Delaney would be better prepared. The court also
explained the rules of closing argument and confirmed that Bartell understood them. See
Palmer, 315 Pa. Super. at 610-11 (holding that when defendant partially waives right to
counsel "[i]t is sufficient if the court instructs the accused on those aspects of the trial for
which he seeks to represent himself"). The court's colloquy meets this standard.

First Amendment Rights

Next, Bartell argues the district court violated his First Amendment rights when it
denied his request to wear a Black Lives Matter t-shirt during his trial. He argues a
courtroom is a designated public forum for First Amendment purposes and any restriction
on his speech must be narrowly drawn to achieve a compelling State interest. He
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contends the court's restriction did not serve a compelling State interest and the court
could have adopted other less restrictive measures.

The State counters we should find a courtroom is a nonpublic forum. In nonpublic
forums, restrictions on speech need only be reasonable and viewpoint neutral. The State
asserts the district court's order met both these requirements.

While the district court allowed Bartell to wear a Black Lives Matter t-shirt during
pretrial hearings, the court denied his request to wear the same t-shirt during trial. In its
journal entry, the court explained:

"The Court finds here that the Defendant's shirt is an attempt to communicate a
message that is neither under oath nor an exhibit at trial. The message is intended to
either appeal to the sympathy of the jurors, inflame the jury or both. The message in this
case cannot help but be seen as political. The shirt both makes a statement and has the
name of a political movement on it. The Court believes the shirt will unfairly distract
from this trial by attempting to turn a case involving destruction of property by fire into a
political trial questioning the proper use and display of the [C]onfederate battle flag
and/or the use of fire as a political necessity. The Defendant is free to make his political
views known outside the confines of the courtroom. Further, the Court understands that
the Defendant intends to exercise his right to testify in his own defense. Certainly, within
the bounds of relevance the Defendant may testify why he did or did not do the crime he
is accused of committing. But to confront the jury throughout the trial with an overt
message that a jury cannot help but believe has some significance to the proceedings is
not appropriate and likely to cause prejudice."

At the motion hearing, the court stated it would also likely require any spectators at the
trial to change if anyone was wearing a Confederate flag or a Black Lives Matter t-shirt.

Ordinarily, appellate courts review a district court's order on courtroom decorum
for an abuse of discretion. See State v. McNaught, 238 Kan. 567, 577-78, 713 P.2d 457
12

(1986). "In the administration of justice, the trial judge is charged with the preservation
of order in his or her court with the duty to see that justice is not obstructed by any person
or persons whatsoever. A large measure of discretion resides in the trial court in this
respect, and its exercise will not be disturbed on appeal unless it appears that prejudice
resulted from the denial of a legal right." State v. Speed, 265 Kan. 26, Syl. ¶ 10, 961 P.2d
13 (1998). A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it
is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Here, the parties disagree that this is the correct standard of review. While the
State says the standard of review for the district court's decision is abuse of discretion,
Bartell asserts it is de novo because it involves a question of law. But a district court
necessarily abuses its discretion when it makes an error of law. In such cases, the
standard may more accurately be described as a question of law requiring de novo
review. See State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006); City of Arkansas City
v. Sybrant, 44 Kan. App. 2d 891, 901, 241 P.3d 581 (2010) (holding abuse of discretion
standard more accurately characterized as de novo when reviewing whether district court
erred in not allowing defendant to represent himself).

The State also argues we should decline to reach this issue. It states Bartell is
unable to show how the district court's order affected any fundamental right guaranteed in
criminal trials. But just because Bartell's argument may ultimately fail does not mean we
cannot address it. If Bartell is able to show the district court's order prejudiced him, then
we can provide relief.

Bartell claims the district court's order violated his rights to free speech under the
First Amendment to the United States Constitution and § 11 of the Kansas Constitution
Bill of Rights. Analyzing Bartell's claim involves a three-step analysis. First, we must
determine whether Bartell's t-shirt qualifies as speech. If so, we must then determine what
13

type of forum a courtroom is for First Amendment purposes. Finally, we must determine
if the district court's restriction of Bartell's speech meets the requisite standard for the
type of forum. See Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 797,
105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985).

As the State notes, the United States Supreme Court has characterized wearing
political t-shirts as speech. Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 576,
107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987). As a result, the State acknowledges that
Bartell's "Black Lives Matter" t-shirt is protected speech because it makes a political
statement.

Next, we must determine what type of forum a courtroom is, as this will determine
the level of protection the First Amendment gives to speech on that property. The United
States Supreme Court has identified three types of forums: traditional public forums,
designated public forums, and nonpublic forums. Perry Ed. Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 45-46, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983).
Traditional public forums are places traditionally devoted to public assembly and debate,
such as parks and public streets. Cornelius, 473 U.S. at 802. Designated public forums
are public places the State has opened for expressive activity by the public at large, for
certain speakers, or for certain subjects. 473 U.S. at 802. And nonpublic forums are
places "which [are] not by tradition or by designation a forum for public
communication." Perry, 460 U.S. at 46.

While the United States Supreme Court has held that the public sidewalks
surrounding the Court are public forums, it has not ruled on whether courtrooms are
public or nonpublic forums. See United States v. Grace, 461 U.S. 171, 178-79, 103 S. Ct.
1702, 75 L. Ed. 2d 736 (1983). That said, many other jurisdictions have held that
courtrooms or courthouses are nonpublic forums. See, e.g., Mezibov v. Allen, 411 F.3d
712, 718 (6th Cir. 2005) (holding that courtrooms are nonpublic forums); Huminski v.
14

Corsones, 396 F.3d 53, 90-91 (2d Cir. 2005) (holding courthouses and courtrooms are
nonpublic forums); Sammartano v. First Judicial District Court, 303 F.3d 959, 966 (9th
Cir. 2002) (holding courthouses are nonpublic forums); Sefick v. Gardner, 164 F.3d 370,
372 (7th Cir. 1998) (holding lobby of courthouse is nonpublic forum); Berner v.
Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding courthouses, particularly courtrooms,
are nonpublic forums); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991)
(holding courthouses are nonpublic forums). As the First Circuit Court of Appeals
explains:

"A courtroom's very function is to provide a locus in which civil and criminal disputes
can be adjudicated. Within this staid environment, the presiding judge is charged with the
responsibility of maintaining proper order and decorum. In carrying out this
responsibility, the judge must ensure 'that [the] courthouse is a place in which rational
reflection and disinterested judgment will not be disrupted.' We think it is beyond serious
question that the proper discharge of these responsibilities includes the right (and, indeed,
the duty) to limit, to the extent practicable, the appearance of favoritism in judicial
proceedings, and particularly, the appearance of political partiality. [Citations omitted.]"
Berner, 129 F.3d at 26.

On the other hand, Bartell argues we should find that a courtroom is a designated
public forum. He notes that courtrooms are open to the public. But just because a place is
open to the public does not make it a public forum. See Grace, 461 U.S. at 177.
("Publicly owned or operated property does not become a 'public forum' simply because
members of the public are permitted to come and go at will."). What matters is the
primary purpose of the forum and whether that purpose is conducive to expressive
activities. See Cornelius, 473 U.S. at 803 (holding the Court would not "infer that the
government intended to create a public forum when the nature of the property is
inconsistent with expressive activity"). In the case of courtrooms, the primary purpose is
adjudication, not communication, and thus they are less conducive to expressive
15

activities. See Huminski, 396 F.3d at 90-91; Sammartano, 303 F.3d at 966; Berner, 129
F.3d at 26.

Bartell adds that Kansas courts have sometimes allowed spectators to wear
expressive buttons and shirts. He cites Speed, which held the defendant had failed to
show he was prejudiced when the district court allowed spectators to wear buttons and
shirts with the victim's picture on them, and McNaught, which held the defendant in a
DUI trial failed to prove he was prejudiced when the district court allowed spectators to
wear Mothers Against Drunk Driving and Students Against Drunk Driving buttons.
Speed, 265 Kan. at 29-30; McNaught, 238 at 576-81. Even so, "the government does not
create a public forum by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse." Cornelius, 473 U.S. at
802. Thus, use of a nonpublic forum for communicative purposes does not necessarily
make it a designated public forum. People v. Aleem, 149 P.3d 765, 776 (Colo. 2007).

We find courtrooms are nonpublic forums. A courtroom provides a place to decide
civil and criminal disputes. Berner, 129 F.3d at 26. To fulfill this purpose, judges must be
able to maintain an orderly and staid environment. 129 F.3d at 26. And this kind of
environment is less compatible with expressive activity. Huminski, 396 F.3d at 90-91.

We must next consider whether the district court's restriction on Bartell's speech
was permissible given the courtroom's status as a nonpublic forum. Bartell argues that the
court's restriction was improper because it was content based but not narrowly drawn to
achieve a compelling state interest. But this is the standard for speech restrictions in
traditional and designated public forums. Perry, 460 U.S. at 45-46. As the State points
out, speech in a nonpublic forum is subject to greater restriction. The State may restrict
speech in a nonpublic forum as long as: (1) the restriction is reasonable; and (2) the
restriction is viewpoint neutral, i.e., the State is not suppressing speech merely because of
16

opposition to the speaker's viewpoint. 460 U.S. at 46; Lower v. Board of Dir. of Haskell
County Cemetery Dist., 274 Kan. 735, 746, 56 P.3d 235 (2002).

The district court's restriction on Bartell's speech was reasonable. Whether a
restriction is reasonable depends on the purpose of the forum and the restriction's
circumstances. Cornelius, 473 U.S. at 809. As long as the restriction is reasonable, "it
need not be the most reasonable or the only reasonable limitation." 473 U.S. at 808.

As noted, a courthouse is a space dedicated to the adjudication of criminal and
civil disputes. Berner, 129 F.3d at 26. "Courtrooms must be neutral, politically impartial
environments dedicated to fairness and equal treatment of litigants." Aleem, 149 P.3d at
776. Courts thus have an obligation to maintain courtroom order and are granted broad
discretion to fulfill this obligation. Speed, 265 Kan. 26, Syl. ¶ 10.

In addition, a defendant's appearance may affect the right to a fair trial. For
example, the State cannot compel a defendant to stand for a jury trial in prison garb
because of possible prejudice. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691,
48 L. Ed. 2d 126 (1976); State v. Hall, 220 Kan. 712, 714-15, 556 P.2d 413 (1976). But
"the fact that a defendant, by his own conduct, jeopardizes his right to a fair trial is of
little consequence." Aleem, 149 P.3d at 778 (citing United States v. Tijerina, 412 F.2d
661, 666 [10th Cir. 1969]).

Bartell acknowledges that the district court's interest in restricting his speech to
ensure a fair trial is reasonable. The court only prevented Bartell from wearing a Black
Lives Matter t-shirt during trial to prevent jury prejudice or distract from the trial. The
court allowed him to wear it during pretrial hearings. It did not restrict him from
expressing his views outside court or from telling the jury why he did what he did in
testimony. Given the courtroom's purpose and the circumstances, the restriction was
reasonable.
17


Next, we must determine whether the district court's restriction was viewpoint
neutral. In determining whether a restriction is viewpoint neutral, we look to whether the
district court intended to suppress a particular point of view. See Cornelius, 473 U.S. at
812. Bartell does not argue that the district court intended to suppress his point of view.
Nor does the record suggest it did. The court forbid Bartell from wearing any apparel
bearing political slogans, and it also forbid anyone else from doing likewise. The
restriction was not based on the viewpoint of the speaker, but rather political speech in
general.

In reaching its decision, the district court relied on Aleem. There, the Colorado
Supreme Court held a district court did not violate a defendant's First Amendment rights
when it ordered the defendant to remove a shirt with a political message. 149 P.3d at 770.
The Aleem court explained:

"Although the T-shirt containing political expression is protected speech, we hold
that this type of speech is not protected inside a courtroom. As the trial court stated, the
courtroom is a place for the presentation of evidence and not for political expression. It is
a non-public forum for First Amendment purposes. A court has the authority to restrict
political speech within the courtroom to preserve its purpose as a forum for adjudication
of civil and criminal disputes and to protect the parties' rights to a fair trial, and here, we
conclude that the trial court's restriction on Aleem's speech was both reasonable and
viewpoint neutral. Hence, the trial court's order to Aleem to remove his [political] T-shirt
did not violate his First Amendment rights." 149 P.3d at 770.

The Colorado Supreme Court's reasoning is persuasive. A courtroom is a
nonpublic forum because its primary purpose is adjudication of criminal and civil cases.
Courts must be able to restrict some expressive activities to maintain order and
impartiality. The district court's restriction here was both reasonable and viewpoint
neutral. The restriction did not violate Bartell's First Amendment rights.
18


Jury Instructions

Bartell argues the district court also erred in failing to properly instruct the jury on
arson. He acknowledges he did not object to the instructions at trial, so we will not
reverse his conviction unless he can show the instruction was clearly erroneous. K.S.A.
2017 Supp. 22-3414(3); State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2015). In
reviewing for clear error, we first consider whether the instruction was legally and
factually appropriate, using an unlimited review of the entire record. State v. Louis, 305
Kan. 453, 457-58, 384 P.3d 1 (2016). If we determine the instruction was erroneous, it
requires reversal only if we are firmly convinced the jury would have reached a different
verdict without it. State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016). We conduct
an unlimited review of the entire record to determine whether an instruction rises to the
level of clear error. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).

The challenged instruction, Instruction No. 6, states:

"The State must prove that the defendant committed the crime of arson.
 Intentionally
or
 Knowingly
or
 Recklessly.
"A defendant acts intentionally when it is the defendant's desire or conscious
objective to do the act complained of by the State.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about; or of the circumstances in which he was acting,
or that his conduct was reasonably certain to cause the result complained about by the
State.
19

"A defendant acts recklessly when the defendant consciously disregards a substantial
and unjustifiable risk that certain circumstances exist; or a result of the defendant's
actions will follow.
"This act by the defendant disregarding the risk must be a gross deviation from the
standard of care a reasonable person would use in the same situation."

This instruction told the jury it could convict Bartell if the State proved he
committed arson recklessly. But the State charged Bartell with arson under K.S.A. 2017
Supp. 21-5812(a)(1)(C), which requires a culpable mental state of "knowingly." And a
crime with a culpable mental state of "knowingly" requires a higher degree of culpability
than one with a culpable mental state of "recklessly." K.S.A. 2017 Supp. 21-5202(b). The
State concedes Instruction No. 6 was not legally appropriate because it stated the wrong
culpable mental state for arson.

Bartell argues we should apply the constitutional harmless error test because the
erroneous instruction violated his constitutional rights to a fair trial and due process. But
when a party does not object to a challenged instruction below, that party cannot advance
its procedural posture by characterizing the issue as a constitutional claim. See State v.
Williams, 295 Kan. 506, 517, 286 P.3d 195 (2012). We must still determine whether
Instruction No. 6 amounted to clear error.

In evaluating whether an instruction rises to the level of clear error, the issue of
"[r]eversibility is subject to unlimited review and is based on the entire record. It is the
defendant's burden to establish clear error under K.S.A. 22-3414(3) [Citation omitted.]."
Betancourt, 299 Kan. at 135. When determining clear error, this court must review the
erroneous instruction's effect in light of the entire record including the other instructions,
counsel's arguments, and whether the evidence is overwhelming. In re Care & Treatment
of Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2015).

20

Looking at the entire record, Instruction No. 6 is not clear error. While Instruction
No. 6 erroneously suggested Bartell could be found guilty of arson committed recklessly,
Instruction No. 8, listing the elements of arson, stated the correct culpable mental state.
That instruction told the jury:

"The defendant is charged with arson. The defendant pleads not guilty. To establish this
charge each of the following claims must be proved:
"1. The defendant knowingly, by means of fire, damaged property in which Steven A.L.
Battles had an interest without the consent of Steven A.L. Battles.
"2. This act occurred on or about the 4th day of July, 2016, in Jackson County, Kansas."
(Emphasis added.)

During closing, the State also went through the elements as listed in Instruction
No. 8, saying it must prove Bartell knowingly lit Battles' truck on fire, even arguing "the
real meat of the issue is, did the Defendant knowingly by means of fire damage
property." Also, the evidence of Bartell's guilt is overwhelming. Two witnesses saw
Bartell walk up to Battles' truck, pour gasoline on it, light it on fire, and then slowly walk
away. Officer Barber found Bartell walking away from the truck carrying a gas can and
matches. Battles testified that Bartell had confronted him about moving the truck. What is
more, Bartell did not deny doing it—he merely argued he was compelled to take action
for justifiable reasons. For these reasons, Instruction No. 6 did not amount to clear error.

Burden of Proof

Bartell argues the State shifted the burden of proof during closing argument when
it made these comments:

"So the real meat of the issue is, did the Defendant knowingly by means of fire damage
property. You've heard no testimony that suggests that he didn't set a truck on fire on July
4th of last year. Rather than light fireworks, like he told his grandparents he was going to
21

do, he maliciously and premeditatedly took a gas can to a neighbor's truck and lit it on fire
because he didn't agree with the message that the Confederate flag might stand for. . . .
I think the evidence, upon review—please take your time to carefully consider all of the
evidence that's been admitted. Upon review of that evidence, the State would assert it's
met its burden and beyond. There has been no evidence by the Defense that Mr. Bartell
didn't light this fire. There has been no evidence that he isn't the one that did it. There has
been no evidence that he was acting in any way other than trying to get retribution on
Mr. Battles for having this flag displayed on his pickup truck. And upon careful review of
all the evidence, the State would assert that beyond a reasonable doubt you can find Mr.
Bartell guilty of arson." (Emphases added.)

Bartell argues the emphasized language improperly shifted the burden of proof
from the State to Bartell by requiring him to produce evidence of his innocence. He
contends the error was not harmless because he did not dispute the facts. Instead, he
argued the facts did not compel conviction. The State counters that the comments simply
pointed out weaknesses in Bartell's defense, so there was no error. The State asserts that
even if there were error, it was harmless.

Bartell did not object to the State's comments. But this does not preclude appellate
review. We will review a claim of prosecutorial error made during closing even in the
absence of a contemporaneous objection. State v. Roeder, 300 Kan. 901, 932, 336 P.3d
831 (2014).

When evaluating the propriety of a prosecutor's comments during closing
argument, Kansas appellate courts use a two-step process to identify prosecutorial error.
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). First, the appellate court must
determine "whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial." 305 Kan.
at 109. If so, then the court must determine whether the error prejudiced the defendant's
22

due process right to a fair trial using the constitutional harmlessness test identified in
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Under this
standard, "[p]rosecutorial error is harmless if the State proves 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. 88, Syl. ¶ 8.

A prosecutor may not try to shift the burden of proof to the defendant or misstate
the legal standard of the burden of proof. State v. Williams, 299 Kan. 911, 939, 329 P.3d
400 (2014). But courts also grant prosecutors considerable latitude in discussing the
defense's weaknesses. State v. Peppers, 294 Kan. 377, 397, 276 P.3d 148 (2012). When
analyzing a prosecutor's comments, courts must evaluate the comments in context. And
jury instructions on the burden of proof can also mitigate any error. See State v. Crosby,
293 Kan. 121, 136-37, 262 P.3d 285 (2011).

Bartell relies on State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), overruled on
other grounds by Sherman, 305 Kan. 88, to support his argument. The Tosh court held
that the prosecutor improperly attempted to shift the burden of proof by asking the
following questions during closing: "'[I]s there any evidence that [the crime] didn't
happen? Is there any evidence that the things [the victim] told you didn't happen?'" 278
Kan. at 92. The court held that these comments were error given the prosecutor had also
made several other improper comments. 278 Kan. at 92.

On the other hand, the State relies on Crosby, in which the court held that the
prosecutor did not impermissibly shift the burden of proof on the element of
premeditation when he said: "'But ask yourself this: Have you heard any evidence that
suggests that [the defendant] did not walk up to [the victim] with some purpose in mind
and execute that purpose?'" 293 Kan. at 135. The court noted that the district court had
properly instructed the jury on the State's burden of proof, and the prosecutor reinforced
23

these instructions during his rebuttal. The court reasoned that, in context, the prosecutor's
comment was "only a general question about the absence of evidence to rebut the State's
witnesses" and fell within the wide latitude granted to the State in discussing the
defense's weaknesses. 293 Kan. at 137.

Here, the prosecutor stated four times that Bartell had failed to produce any
evidence showing he was not guilty. None of the comments were made in rebuttal to
Bartell's closing argument, as he had not given it yet. None of the comments appear to be
a general question on Bartell's failure to rebut the State's witnesses. Even in context, these
comments seem improper. But while the State may have committed error, it need not
result in reversal as any error appears harmless.

Bartell must still show the error prejudiced him under the constitutional
harmlessness standard to succeed on this claim, but he is unable to do so for several
reasons. First, the district court properly instructed the jury that the State had the burden
to prove Bartell guilty and that Bartell did not have to prove he was not guilty. Second,
while the State may have made several comments shifting the burden of proof, it also
mentioned several times that the State had the burden to prove Bartell's guilt beyond a
reasonable doubt. Finally, the evidence of Bartell's guilt was overwhelming. See
Sherman, 305 Kan. at 111 (holding strength of evidence may secondarily affect
harmlessness analysis). For these reasons, we find the State's error was harmless.

Cumulative Error

Finally, Bartell argues these alleged errors amounted to cumulative error. The
cumulative error test is whether the totality of the circumstances establish that the
defendant was substantially prejudiced by cumulative errors and was denied a fair trial. In
assessing the cumulative effect of errors during the trial, we examine the errors in the
context of the entire record, considering how the trial judge dealt with the errors as they
24

arose; the nature and number of errors and their interrelationship, if any; and the overall
strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). If any
of the errors being aggregated are constitutional in nature, their cumulative effect must be
harmless beyond a reasonable doubt. State v. Santos-Vega, 299 Kan. 11, 27-28, 321 P.3d
1 (2014).

Two errors occurred at trial. First, Instruction No. 6 erroneously instructed the jury
on the culpable mental state for arson. Second, the State made comments shifting the
burden of proof to Bartell. These errors are somewhat interrelated, as they pertain to the
State's burden of proof and what it had to prove at trial. And since diluting the State's
burden of proof is an error constitutional in nature, we must apply the constitutional
harmlessness test. See State v. Womelsdorf, 47 Kan. App. 2d 307, 330, 274 P.3d 307
(2012).

Looking at the entire record, though, any error was harmless beyond a reasonable
doubt. The district court properly instructed the jury on the culpable mental state for
arson in Instruction No. 8. The State repeated this point in closing. And while the State
made comments suggesting Bartell had to provide evidence of his innocence, it also
stated it had the burden of proof. Lastly, the evidence of Bartell's guilt was strong. We
find cumulative error did not deny Bartell a fair trial.

Affirmed.