Harmless Error Analysis Applies to Failure to Obtain Personal Waiver of Offense Elements.

State v. Fluker, Minn.Ct.App., 4/27/2010.  The state charged Mr. Fluker with failure to register as a predatory offender.  At the start of trial, the state and defense counsel stipulated that Mr. Fluker was required to register and that the period of registration had not expired.  A jury duly convicted him.

The trial court did not obtain Mr. Fluker’s personal waiver of his right to a jury trial on the two stipulated elements of the offense.  Cf., Minn. R. Crim. P. 26.01, subd. 1(2)(a) (2008) (“The defendant, with the approval of the court may waive jury trial on the issue of guilt provided the defendant does so personally in writing or orally on the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”)

This was error but was it an error subject to harmless error analysis?  Just last year, the Court of Appeals held that when a defendant agrees to a trial on stipulated facts the defendant must personally waive specified rights and that the failure to do so was error that automatically required a new trial.  State v. Antrim, 764 N.W.2d 67 (Minn.Ct.App. 2009).  Other recent opinions under Rule 26.01 have also declined to apply harmless error to failure to obtain personal waivers:  State v. Knoll, 739 N.W.2d 919 (Minn. App. 2007); State v. Ehmke, 752 N.W.2d 117 (Minn.Ct.App. 2008); State v. Halseth, 653 N.W.2d 782 (Minn. App. 2002).

Well, not so fast.  After all, Mr. Fluker isn’t waiving the entire trial, just stipulating to elements of the offense, damaging elements at that.  While a defendant can’t give away the entire farm without a personal waiver, he can give away the tractor and hay baler without that waiver.  Harmless error applies; this error was harmless.