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Collins v. State (5/16/2008) ap-2170

Collins v. State (5/16/2008) ap-2170

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9551
Appellant, ) Trial Court No. 3AN-02-11527 Cr
v. )
) O P I N I O N
Appellee. ) No. 2170 May 16, 2008
          Appeal   from   the  Superior  Court,   Third
          Judicial District, Anchorage, Larry D.  Card,

          Appearances:   Dan S. Bair, Assistant  Public
          Advocate,  and Joshua Fink, Public  Advocate,
          Anchorage,  for  the Appellant.   Timothy  W.
          Terrell,  Assistant Attorney General,  Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.

          Charles E. Collins was convicted of murder in the first
degree  and tampering with physical evidence.1  Collins  appeals,
arguing  that the superior court twice violated his right  to  be
present  at  all  stages of his trial.  The  State  concedes  for
purposes of this appeal that Collins should have been present  at
          both stages, but argues that the errors were harmless beyond a
reasonable doubt.  Because we agree with the State that  Collinss
absence  from  each proceeding was harmless beyond  a  reasonable
doubt, we affirm the superior court.

          Background facts and proceedings
          In   early   October  2002,  Cynthia  Barnes,  Collinss
girlfriend,  was  the victim of a homicide.   The  State  charged
Collins  with  alternative  counts of  first-  and  second-degree
murder for the homicide and tampering with physical evidence  for
manipulating the crime scene (Barness Mountain View apartment) in
an attempt to conceal the homicide.
           At the time of the homicide, Collins lived with Barnes
at  her  apartment.   At trial, Collinss theory of the  case  was
that Barnes was killed by a previous boyfriend, Devon Spencer, or
by an unknown intruder from the criminal milieu of Mountain View,
and  that  the  intruder, whether Spencer or an  unknown  person,
likely  entered  through  Barness unlocked  bedroom  window.   To
support   this   theory,  the  defense  relied  heavily   on   an
unidentified  footprint  found outside Barness  unlocked  bedroom
          Several days into trial, Superior Court Judge Larry  D.
Card  informed  the parties that he had excused a member  of  the
jury.   Judge  Card  reported that  the  juror  was  too  ill  to
continue,  but  because there were thirteen jurors remaining,  he
decided  to  excuse  the  juror without consulting  the  parties.
Collins  objected  to the courts decision to  release  the  juror
without consulting the defense.
          The  next  incident  took place after  the  jury  began
deliberations.  After final arguments, Judge Card  discussed  the
procedure if the jury had questions for the court or if the  jury
requested a playback of testimony.  Judge Card noted that Collins
would  be  in  the courthouse holding area every day during  jury
deliberations.  He asked Collinss attorney if Collins  wished  to
be  present for playbacks, and his attorney replied that he  did.
Judge  Card  asked  if  Collins wished to  be  present  for  jury
questions.  The attorney replied that she and Collins had  agreed
that he need not be present for any administrative decisions, but
that  he wished to be present for substantive decisions.    Judge
Card  concluded  that  Collins wished to be  present  unless  his
attorney told the court otherwise.  Collinss attorney agreed.
          The  next  morning,  September 29,  2005,  the  parties
appeared  in  court to discuss a request from  the  jury.   After
resolving that request, Collinss attorney told the court that the
previous  nights six oclock television news on Channel  2  had  a
story  about  Collinss trial.  The attorney  explained  that  she
checked  the  content  of  the story by  accessing  the  stations
internet  news  library after her paralegal told  her  about  the
          According  to the defense attorney, the report  on  the
six  oclock news included a synopsis of her theory of  the  case:
open window, a high crime area, and a footprint right in front of
the  window.   The story also included a statement  from  Francis
Thiele, Barness best friend and one of the States main witnesses,
asserting that it was her footprint  and not the footprint of  an
intruder  that was found outside of Barness bedroom window.  This
information  was  not  presented at Collinss  trial.   At  trial,
Thiele  testified that she knocked on Barness apartment door  and
living  room  window  before calling the police,  but  she  never
mentioned that it was her footprint by Barness bedroom window.
          The  defense attorney asked Judge Card to poll the jury
to  find  out whether anyone saw this directly, someone mentioned
it  to  them, anything like that.  Judge Card agreed  to  send  a
written inquiry to each juror explaining that there was a Channel
2  television  news broadcast about the case on  the  evening  of
closing arguments.  Collinss attorney did not know if the station
also  broadcast the story on the ten oclock news, so the  inquiry
did  not  indicate the specific time of the broadcast.  The  note
inquired  whether any jurors had been exposed to  the  broadcast,
and  each juror was to respond by putting a check on a line  next
to  the  statement Was exposed, or next to the statement Was  not
exposed.  Collins was present for this stage of the proceedings.
          Thirty minutes later, Collins was not present in  court
when  Judge  Card  informed the attorneys that he  was  about  to
summon  one  of the jurors into the courtroom because it  appears
[she] heard something on the radio.
          Judge  Card asked the defense attorney if she  wish[ed]
to waive [Collinss] presence[.]
          The attorney replied:
          I  have   I do, Judge. I  weve discussed   he
          and  I  have  discussed  for  this  kind   of
          [ministerial]   kind  of   thing,   which   I
          hopefully  is  what this is  that  he  doesnt
          need to be here, and I think he  I dont think
          he would have a problem with it.

Judge Card assured the defense attorney that he would not take up
anything substantive ... about the law.
          Judge Card told both counsel that he would question the
juror  about her answer to the inquiry, and then excuse the juror
from  the courtroom.  Then he would discuss with counsel what  to
do after the juror left.
          The juror was brought into the courtroom and Judge Card
questioned her as follows:
     The Court:       I  got your comment, and your comment  says
               heard  on radio ...  [then it] looks like it  says
               turned down.
     The juror:     Yeah, I turned the channel.
     The Court:     Turned channel.  Oh, turned channel.
     The juror:       Whenever  I  left  here  yesterday,  I  was
               listening to Dan Fagin and it turned into the news
               and then
     The Court:     Oh, it went to the news at 5 oclock?
     The juror:     Yes.  And I turned it off
     The Court:     You didnt hear anything?
     The juror:     [O]r turned the channel.
     The Court:     And you followed the Courts instructions?
     The juror:      I heard that  I heard that  yes, that it was
               coming on, and I turned it.
     The Court:      Okay. So you followed the Courts instruction
               Id given about not to listen to any news programs?
     The juror:     Yes. Yes.
          Judge Card thanked the juror and dismissed her from the
courtroom.  He found that
            [s]he  was listening to the radio, and  the
          Dan Fagin show comes on 750 on the radio, and
          then  theres  a joint broadcast of  news  and
          television, I think, at Channel  2  on  [the]
          5:00  oclock news.  But in any case, she said
          she  heard  what it was about, she turned  it
          she said channel so I assume its station.  So
          she  heard  nothing, and  she  indicated  she
          followed the Courts instructions.

          Judge  Card  asked the attorneys whether they  had  any
questions  they  wanted  to  ask to the  juror.   Both  attorneys
indicated they had no additional questions.
          The   jury   returned  guilty  verdicts  the  following
afternoon, September 30, 2005.  At sentencing, Judge Card  merged
the first- and second-degree murder convictions and imposed a 99-
year  term.   He  imposed a concurrent 3-year term for  tampering
with evidence.  Collins appeals.

          Collins  argues  that  his  right  to  be  present  was
violated twice in the course of his trial.  First, he argues that
Judge Cards communication with the ill juror, and his decision to
release  the  juror  without notice, violated  his  right  to  be
present.  Second, Collins argues that his right to be present was
violated  when  Judge Card did not ensure  that  he  was  in  the
courtroom for the questioning of the juror who indicated exposure
to the Channel 2 news story.
          The  State  does  not  dispute that  in  each  instance
Collinss  right to be present was violated.  However,  the  State
contends that each error was harmless beyond a reasonable doubt.
          Under  both  the  United States  Constitution  and  the
Alaska  Constitution, a defendant has the right to be present  at
every  stage of the trial.  In addition, the right to be  present
at  trial is implemented by Alaska Criminal Rule 38(a).  Criminal
Rule 38(a) provides as follows:
               The  defendant shall be present  at  the
          arraignment, at the preliminary  hearing,  at
          the  time  of plea, and the omnibus  hearing,
          and  at  every stage of the trial,  including
          the  impaneling of the jury and return of the
          verdict,  and at the imposition of  sentence,
          except as otherwise provided in this rule.
          The  right  defined in Rule 38(a) is broader  than  the
right to be present arising from the constitutional guarantees of
the  right to confrontation and to due process.2  An accused  may
waive  his right to be present, but the defendant must personally
waive  his right to be present or expressly consent to allow  the
          proceeding to occur outside his presence.3

          The decision to release the juror who was ill
          In  Huff v. State,4 the superior court excused a  juror
when the juror informed the court that the jurors husband was  in
the  intensive care unit of the hospital and the juror needed  to
be  with him.5  Huff claimed that the superior court violated his
right  to be present when the court discharged the juror  outside
his  presence.6  The supreme court rejected Huffs  claim,  noting
that  [s]ituations  may sometimes arise when a  respect  for  the
rights  of jurors will require the judge to take immediate action
without  consulting  counsel.7  The court  ruled  that  in  these
instances, the superior court has the sound discretion to replace
the  juror, and the court concluded that the superior  court  did
not abuse its discretion.8
          Collins  points  to Coney v. State,9  where  the  trial
court  excused a juror after determining that it would amount  to
extreme  hardship  if  the juror was not released  to  pursue  an
employment  opportunity.10 On appeal, this court distinguished  a
jurors  economic  concern from the medical emergency  present  in
Huff  and concluded that, under those circumstances, it was error
for  the  judge  to  excuse  the juror  in  the  absence  of  the
defendant.11   Even  so,  Huffs conviction  was  upheld  for  the
following reasons: the superior court had a legitimate reason  to
dismiss  the juror; the superior court concluded that  the  juror
would have had trouble giving his full attention to the case;  it
was highly unlikely that the superior court would have reached  a
different  decision if the defendant had been present; and  there
was  no reason to believe that the result of the trial would have
been different if the juror who was excused had been present  for
deliberation instead of the alternate.12
          Collins  does not argue any specific prejudice  arising
from  the  superior courts decision.  Even if the juror  had  not
been  excused, there was no certainty that the juror  would  have
deliberated  on  the case because Judge Card did not  select  the
twelve  jurors who did deliberate from the remaining  members  of
the  panel  until after the close of evidence.  Furthermore,  the
jurors  illness was a legitimate reason for dismissing  a  juror,
and  there  is  nothing  in the record  that  suggests  that  the
presence  of Collins and his attorney would have convinced  Judge
Card to reach a different decision.  Therefore, we agree with the
State  that the failure to have Collins present for the  decision
to release the ill juror was harmless beyond a reasonable doubt.

          The inquiry of the juror about media exposure
          We  now  turn  to Collinss claim regarding Judge  Cards
inquiry, outside Collinss presence, of the juror who responded to
the  question about media exposure.  Collins argues that this was
an  important and substantive stage of the trial, that he did not
waive  his presence, that it was error for the superior court  to
proceed  in  his absence, and that his absence was  not  harmless
beyond a reasonable doubt.  Collins submits that he may have been
able to convince his attorney to have Judge Card ask the juror an
additional  explicit question: whether the juror  heard  anything
          substantive from the news story before turning the station.
Collins also maintains that the transcript of Judge Cards inquiry
shows  that Judge Card repeatedly interrupted the juror and  that
Judge Cards questioning carried a coercive element.
          As  reflected  in the transcript set out above,  it  is
true that the superior court did not ask the juror explicitly  if
she  had  heard  anything  of substance before  she  changed  the
station.   It  is also possible to read the transcript  of  Judge
Cards  inquiry  of  the  juror in a way  that  supports  Collinss
argument.  Collins contends that the superior court obtained  the
jurors agreement that she obeyed the courts admonishment to avoid
media  about the case, while overlooking the central question  of
whether  the  juror  actually heard any of  the  story.   But  in
addition  to  examining  the transcript,  we  have  reviewed  the
electronic recording of the proceeding.  The tone, the pace,  and
the  tenor  of the interchange between Judge Card and  the  juror
lead  us  to  conclude that the questioning was not coercive  and
that  Judge  Card reasonably found that the juror  had  not  been
exposed to any extra-judicial information.
          In  context, the jurors clear response seems to be that
she  heard the news was about to come on, but changed the station
before  it  did.  This conclusion is bolstered by the  fact  that
Collinss attorney did not wish to put any additional questions to
the  juror when asked by Judge Card if she had any questions  for
the  juror.  Therefore, it appears that the defense attorney also
concluded  that the juror testified that she changed the  station
before the news story came on.
          Against  this backdrop, we are satisfied that  Collinss
absence  from the questioning of the juror was harmless beyond  a
reasonable doubt.

          The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring

          I  write  separately to address an issue that does  not
receive  substantive  discussion in the  majority  opinion:   the
question of whether it was error for Judge Card to voir dire  the
juror  about her potential exposure to extra-judicial information
about Collinss case without Collins being personally present.
          As  explained in the majority opinion, Collins and  his
attorney  discussed whether Collins wanted to be present  at  any
court  proceedings that might be held during jury  deliberations.
The  defense attorney informed Judge Card that Collins had agreed
that   the  attorney  could  respond  to  administerial   matters
apparently,  administrative and/or ministerial  matters   without
Collins  being present, but that Collins wished to be  personally
present for all other proceedings.
          As  explained  in  the  majority  opinion,  Judge  Card
notified the parties that one of the jurors had potentially  been
exposed to prejudicial extra-judicial information about the case,
and  the judge told the parties that he intended to question  the
juror  on this subject.  Surprisingly, Collinss attorney declared
that  Collins  did not need to attend this voir dire  because  it
would  be  an administerial kind of thing.  Equally surprisingly,
Judge Card concurred in this assessment.
          The  Alaska Supreme Courts decision in Huff  v.  State,
598  P.2d  928, 931-32 (Alaska 1979), indicates that  a  criminal
defendant does not need to be present when the trial judge  hears
from  a  juror,  or  questions a juror, about  certain  emergency
matters that affect the jurors ability to continue serving.   But
this  Courts later decision in Coney v. State, 699 P.2d 899,  903
(Alaska  App. 1985), clarifies that Huff is an exception  to  the
normal  rule   the  rule that a defendant has  the  right  to  be
personally  present when the trial judge hears from a  juror,  or
questions  a  juror,  regarding their desire  and/or  ability  to
continue serving.
          It follows that a defendant must also have the right to
be present when a trial judge hears from a juror, or questions  a
juror, regarding matters that would affect the jurors ability  to
render a fair and legally proper verdict.
          This, in itself, does not provide a complete answer  to
Collinss case, because we have the additional complicating factor
that  Collins declared that he was willing to waive his right  to
be  present for administerial matters.  Thus, the remaining issue
is  whether  Judge  Card  and  Collinss  defense  attorney  might
reasonably conclude that the matter they were about to engage  in
to  wit,  questioning a juror to see if the  juror  heard  extra-
judicial  information in a news broadcast that could  potentially
affect   the   jurors   consideration  of   the   evidence    was
administrative or ministerial.
          I  conclude that this inquiry was substantive, and that
it  was  error  for the defense attorney and the trial  judge  to
categorize this inquiry as merely administrative or ministerial.
          In  Rushen  v. Spain, 464 U.S. 114, 104 S.Ct.  453,  78
L.Ed.2d  267  (1983),  the United States  Supreme  Court  assumed
without deciding (based on the State of Californias concession of
error1) that a defendant has a constitutional right to be present
whenever  a  trial  judge  and a juror communicate  concerning  a
potential ground for challenging the jurors impartiality.2  Since
then,  several  courts  have  explicitly  adopted  this  implicit
premise   of   Spain:   that  a  judge-juror   communication   is
administrative or ministerial only when it is wholly unrelated to
the  substantive legal or factual issues of the trial, People  v.
Harris,  559  N.E.2d  660,  662 (N.Y.  1990)   and  that  such  a
communication  is substantive if the trial courts response  could
influence the jury, Hernandez v. State, 761 N.E.2d 845, 850 (Ind.
2002),  or if the discussion involves any fact in controversy  or
any  law applicable to the case, Randolph v. State, 36 P.3d  424,
437 (Nev. 2001).
          Using  these  definitions, the trial judges examination
of the juror in Collinss case was substantive, not administrative
or   ministerial.   Accordingly,  Collinss  conviction  must   be
reversed  unless  this  Court is convinced  that  the  error  was
harmless beyond a reasonable doubt.
          Collins argues that Judge Card examined the juror in  a
peremptory manner, and that the judge employed leading  questions
in  such  a  way as to encourage the juror to deny receiving  any
extra-judicial  information.  I concede that,  when  I  read  the
transcript  of the voir dire, I believed that it could reasonably
be interpreted to support Collinss argument.
          However,  to better resolve the issue, we directed  the
Clerks Office to provide us with a copy of the audio recording of
the voir dire.  After listening to this audio recording, I concur
in  the description of the voir dire offered by Judge Stewart  in
the majority opinion:  [t]he tone, ... pace, and ... tenor of the
interchange between Judge Card and the juror demonstrate that the
questioning  was  not  coercive and that [the  judge]  reasonably
found  that  the juror had not been exposed to any extra-judicial
          For  these reasons, I concur in the decision to  affirm
the judgement of the superior court.

  1 AS 11.41.100(a)(1)(A), and AS 11.56.610(a)(1), respectively.

2  See  Raphael  v.  State,  994 P.2d 1004,  1011  (Alaska  2000)
(citing Henry v. State, 861 P.2d 582, 593 (Alaska App. 1993)).

3  Pease  v.  State,  54  P.3d  316, 324-25  (Alaska  App.  2002)
(citing Dixon v. State, 605 P.2d 882, 885 n.8 (Alaska 1980)).

  4 598 P.2d 928 (Alaska 1979).

  5 Id. at 931.

  6 Id.

  7 Id. at 932.

  8 Id.

  9 699 P.2d 899 (Alaska App. 1985).

  10Id. at 902.

  11Id. at 903.

  12Id. at 904.

  1 464 U.S. at 117 n. 2, 104 S.Ct. at 455 n. 2.

  2 464 U.S. at 120-22, 104 S.Ct. at 456-57.

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