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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
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CHARLES E. COLLINS, | ) |
| ) Court of Appeals No. A-9551 | |
| Appellant, | ) Trial Court No. 3AN-02-11527 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2170 May 16, 2008 |
| ) | |
Appeal from the Superior Court, Third
Judicial District, Anchorage, Larry D. Card,
Judge.
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
window.
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
report.
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.
Discussion
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.
Conclusion
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
information.
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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