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Barr v. State (3/14/2014) ap-2412

Barr v. State (3/14/2014) ap-2412

                                                        NOTICE  

          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 Courts.  

                                                                 



                                      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  



RONALD K. BARR JR.,                                     )  

                                                        )            Court of Appeals No. A-10946 

                                      Appellant,        )            Trial Court No. 2KB-10-124CR  

                                                        ) 

                  v.	                                   )  

                                                        )                        O P I N I O N  

STATE OF ALASKA,                                        )  

                                                        )  

                                      Appellee.	        )            No. 2412 - March 14, 2014  

                                                        )  



                   Appeal  from  the  Superior  Court,  Second  Judicial  District,  

                   Kotzebue, Paul A. Roetman, Judge.  



                   Appearances:         Hanley      Robinson       Smith,      Assistant      Public  

                   Defender, and Quinlan Steiner, Public Defender, Anchorage, for  

                   the Appellant.  Nancy  Simel,  Assistant Attorney General, Office  

                   of Special  Prosecutions  and Appeals, Anchorage, and Michael  

                   C. Geraghty, Attorney General, Juneau, for the Appellee.  



                   Before:   Mannheimer,  Chief Judge, Allard, Judge, and Hanley,  

                   District Court Judge.*  



                   Judge ALLARD.  



     *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                    Ronald K. Barr Jr. was convicted of physically and sexually assaulting  



M.B.  Barr appeals his convictions, arguing that the superior court erred when it asked  

                  



one of the State's expert witnesses a question submitted by a juror:  whether the injuries  



to M.B. constituted the "worst beating" the expert had seen in Northwest Alaska.  Barr  

                                                                           



also argues that the superior court committed plain error when it permitted the prosecutor  

                                                                                             



to make statements during closing argument that Barr's claims were an indirect comment  

                                                                                 



on his failure to take the stand.  



                    For the reasons explained below, we conclude that the juror's question was  

                                                                                                              



improper  and  should not have been allowed, but that the error was harmless in this  

                       



particular instance.  We further conclude that Barr has failed to show plain error with  

                                                



respect to the prosecutor's comments.  We therefore affirm Barr's convictions.   



          Background facts  



                    Ronald Barr and M.B. are residents of a village near Kotzebue who have  

                                                                                                                  



engaged in a consensual sexual relationship in the past.  On two separate occasions in  



March 2010, M.B. reported being physically and sexually assaulted by Barr.  



                    She  reported  that  the  first  incident  occurred  on  March  14,  2010.    Barr  

                                                                                                        



invited M.B. to his house to drink.  She drank heavily and became intoxicated.  Barr  



indicated to M.B. that he wanted to have sexual intercourse; she did not want to.  He  



engaged in vaginal penetration with her and she tried to fight him off, but he choked her  

                                                            



until she nearly passed out.  When Barr stopped choking her, M.B. pushed him off and  

                                                                                            



went to another room.  Barr then dragged her by her shirt or hair back into the bedroom  

                                                                                                



and had sexual intercourse with her again.  



                    After Barr fell asleep, M.B. ran next door wearing only pants because she  

                                                                                  



was scared that if she retrieved more of her clothing Barr would wake up.  The next  



                                                               2                                                         2412
  


----------------------- Page 3-----------------------

morning, M.B. found a mark on her arm that looked like a bite mark, her throat hurt (it  

                                                                                                             



was a few days before she was able to swallow properly), and her eyes and neck were  

                                   



very red.  M.B. went to Barr's house and showed him her injuries.  He told her that the  

                                                                                                    



mark on her arm occurred when she fell on a water pipe.  When M.B. told Barr that he  

                                                                                                        



had almost killed her, he hugged her, apologized, and promised that he would not do it  

                                      



again.  



                    A week later, on March 24, Barr held a small social gathering at his house.  

                                                                    



The group, which included M.B., spent the evening drinking, smoking marijuana, and  



playing and recording music.  



                    M.B. became very intoxicated as the night progressed.  She later testified  

                                                                                    



that she recalled Barr dragging her into the bedroom and slapping her head several times  

                                               



with his hands.  He took her clothes off and engaged in vaginal penetration with her after  



she  told  him  she  did  not  want  to  have  sexual  intercourse.    The  next  thing  M.B.  



remembered was waking up on the floor with Barr sleeping on the bed nearby.  She was  

                                               



in a lot of pain.   



                    M.B.  was  later  examined  by  the  local  health  aide,  Kathleen  Tebbits.  

                                                                                            



Tebbits observed that M.B. had bumps on her head, a deviated nose, a black eye that had  

                                                                             



swollen shut, blood crusted on her mouth, injuries to her throat and back, and bruising  

                                                                



on her face, arms, and legs.  M.B. had difficulty speaking, but she was able to tell Tebbits  

                                                                                                                



that Barr had beaten her up and raped her.  



                    Tebbits called the troopers, who arranged for M.B. to be medevaced to  



Kotzebue and then to Anchorage, where she remained for two weeks.   



                    At the Alaska Native Medical Center in Anchorage, Dr. Frances Wilson  



treated M.B.  Dr. Wilson testified that M.B. had a broken nose and broken bones in the  



area around her left eye.  M.B. required surgery to re-establish the symmetry of her face.  



                                                               3                                                         2412
  


----------------------- Page 4-----------------------

Dr. Wilson testified that M.B. reported being beaten, and that her injuries were consistent  



with that claim.  



                   While at the hospital, M.B. was also examined by Krista Croy, who testified  



at Barr's trial as an expert in forensic nursing.  Over the course of her examination, Croy  

                        



observed bruising on M.B.'s shoulders, chest, back, and lower extremities.  M.B. also  



had injuries and reported pain on her head and neck.  While some of the bruises on  

                                                                        



M.B.'s body appeared older, the bruises to her face were red and purple, indicating that  

                                           



they were caused more recently.  In Croy's opinion, M.B.'s injuries were consistent with  

                                  



her report that she had been beaten by someone's hands.   



                   On March 29, Trooper Nieves went to Barr's home and interviewed him.  

                                                                                               



The interview was recorded and played for the jury at trial.  Although Barr initially  

                                                                                   



denied having sex with M.B., Barr later stated that they had consensual sex and that M.B.  

                                                                                                      



had initiated it.  Barr denied hitting M.B.   He claimed she had injured herself falling  

                                                                



down while inside the bathroom or on her way out of the bathroom.  



          Trial court  proceedings  



                                                                                                        1 

                   Barr was indicted on one count of first-degree sexual assault  and one count 

of second-degree assault2 based on his conduct on March 14, and one count of first- 



                                                                                      3  

degree sexual assault and one count of first-degree assault   based on his conduct on  



March 25.  



     1    AS 11.41.410(a)(1).  



     2    AS 11.41.210(a)(1).  



     3    AS 11.41.200(a)(1).  



                                                              4                                                          2412  


----------------------- Page 5-----------------------

                        Prior to trial, Superior Court Judge Paul A. Roetman informed the parties       



that he would allow the jurors to submit written questions at the close of each witness's                  



testimony, and that the parties would have the opportunity to object to these questions.   



During trial, Barr objected to a question proposed by a juror at the end of testimony from  



Krista  Croy,  the  forensic  nurse  from  the  Alaska  Native  Medical  Center.    Croy  had  



testified regarding her observations of M.B.'s injuries. The juror's question was:  "Is this  

                                                                                                                                   



one of the worst beatings you've seen from Northwest Alaska?"  



                        Barr  objected to the form and the substance of the question. He argued that  

                                                                                                                                



the question was leading (i.e., it assumed that M.B.'s injuries were the result of a beating  

                                                                                                                                         



and not accidental) and that the question was irrelevant.   



                        The court overruled Barr's objections.  The court found that the question  

                                                                                                      



was relevant because "it goes to [Croy's] experience."  The court proceeded to ask the  

                                       



question.  Croy replied that she had only been involved in a few cases from Northwest  

                                                                                                                  



Alaska, but that this was "a pretty bad case."  



                        The jury subsequently acquitted Barr of the charges relating to the March  

                                                                                                                                  



 14 incident, but convicted Barr of the charges stemming from the March 25 incident.  



                        This appeal followed.  



            The trial court erred by submitting the juror question to the State's expert  

                                                                          

            witness, but the error was harmless beyond a reasonable doubt  

                                                                                                                             



                                                     4 

                                                                

                        In Landt v. State ,  this Court held that trial judges have discretion to allow 



                                                                                               5  

                                              

jurors to ask questions of witnesses in a criminal trial.    We emphasized, however, that  



      4     87 P.3d 73 (Alaska App. 2004).  



      5     Id . at 80; see also Commonwealth v. Britto , 744 N.E.2d 1089, 1103 (Mass. 2001)
  



                                                                                                                                 (continued...)
  



                                                                           5                                                                    2412
  


----------------------- Page 6-----------------------

procedural safeguards are necessary to ensure that the juror questions do not violate a  



                                                                                                                           6  

 defendant's rights to a fair trial and an impartial jury.   We provided a detailed list of the                                                                                                 



types   of procedural                             safeguards  that  the  trial  court  should  consider  if  it  allows  juror  



 questioning.  Those safeguards include:                                                       (1) instructing the jurors that they must remain           



neutral and impartial and should not assume the role of an investigator or advocate; (2)   



requiring the jurors to write out their proposed questions and providing an opportunity                                                                                   



 outside the presence of the jury for the parties to review the proposed questions and                                                              



make objections and/or suggest alterations; (3) informing the jurors in advance that the                        



judge might decide not to ask a proposed question or might alter the question to comply                                                                                              



with the rules of evidence.  In this context, we advised trial judges to tell the jurors not                                                                                 



to speculate as to why a particular question was altered or not asked, and to not be  

 offended or hold this against either party.7  

                                                                                                      



                                                                                                               

                                At Barr's trial, the superior court employed procedures similar to the ones  



                                                                                                                                                                    

we approved in Landt :  the judge had the jurors submit individually written questions  



                                              

that the court then reviewed, with counsel, out of the presence of the jury.  The judge  



                                                                                                                                                                     

 also informed the jurors that their questions would have to conform to the applicable  



                                                               

rules of evidence and that a particular question might therefore be altered or not given  



 at all.  



        5       (...continued)  



 (affirming  judge's  decision  to  permit  juror  questioning,  and  collecting  cases  from  the  

majority of jurisdictions similarly upholding the practice); Jonathan M. Purver, Annotation,  

Propriety of Jurors Asking Questions in Open Court During Course of Trial                                                                                                     , 31 A.L.R.3d  

 872,  3 (1970) (collecting cases holding that the trial judge has discretion to allow juror  

 questioning of witnesses).  



        6       Landt , 87 P.3d at 78-79.  



        7       Id .  



                                                                                                     6                                                                                            2412
  


----------------------- Page 7-----------------------

                     We  nevertheless  conclude  that  the  trial  judge  abused  his  discretion  by  

                                                                                                            



asking Croy the question at issue here:  "Is this one of the worst beatings you've seen  



from Northwest Alaska?"  The relevance of this question is not clear.  The trial judge  



speculated that the juror was asking about Croy's "experience" and "how many people  

                                                         



she's actually seen."  But the juror's question did not ask about Croy's experience or  



credentials; it asked only about the severity of M.B.'s "beating" in comparison to other  

                                                                                     



"beatings" Croy had seen. 



                      The State suggests that the severity of M.B.'s injuries was relevant to prove  

                                                                                           



that the injuries were caused by intentional conduct rather than by accident.  But again,  

                                                                    



that is not how the question was framed.  Croy was not asked for her opinion on whether  

                                                                                     



M.B.'s injuries were consistent with an assault (an opinion Croy had already offered  

                          



during direct examination); the juror's question assumed an assault had occurred, and  

             



asked only whether it was a particularly bad one.  The comparative severity of M.B.'s  

                                                                



injuries to those inflicted in other cases was not probative of any material issue in Barr's  

                                                                                              



trial.  



                     An even more fundamental problem with the question is that it assumed the  

                                                                



truth of a primary element of the State's case.  The crux of Barr's defense was that M.B.  



hit her face when she fell in the bathroom in a state of extreme intoxication.  By asking  

                                                                                                  



whether the "beating" M.B. received was especially severe, the question signaled that the  

                                                                                                 



juror had rejected Barr's version of events and already formed the opinion that Barr was  

                                                                                                                   



guilty of assault. When the trial judge read the juror's question in open court, the juror's  

                             



                                                                   7                                                           2412
  


----------------------- Page 8-----------------------

opinion of the evidence was broadcast to the rest of the jury well in advance of the jury's                        



                                                   8  

deliberations.  This was improper.   



                                                                                                                      

                    We therefore turn to the question of whether Barr was prejudiced by this  



error.  Barr urges us to adopt the reasoning of the Minnesota Supreme Court, which held  



that harmless error analysis is inappropriate in this type of case because an improper  

                                                                                                              



juror question could "affect the outcome of a criminal case in subtle ways that go directly  

                                                                                         



to the neutrality and impartiality of a juror" and "it is impossible to quantify the effects  

                                                        

of  the  error."9                                                                                                

                          For  those  reasons,  the  Minnesota  Supreme  Court  held  that  juror  



                                                   

questioning during criminal trials was impermissible and required automatic reversal on  



           10                                                                                                  11 

                                                                                     

appeal.        But we previously rejected this per se  reversal standard in Landt .                                We note  



that Minnesota remains among the few jurisdictions that do not allow juror-initiated  



                                                               12  

questioning of witnesses in criminal trials.                         



                    In Landt , we did not directly determine what standard of harmless error  



review  should  apply  when  a  court  commits  error  in  the  procedural  aspects  of  juror  



                                                                                      

questioning because we concluded that, even if the court erred in Landt , the error was  



     8    Id. at 78 (noting the risk that broadcasting improper questions will undermine jury  



impartiality).  



     9    State v. Costello, 646 N.W.2d 204, 215 (Minn. 2002).  



     10   Id .  



     11   Landt , 87 P.3d at 80.  



     12   Costello,  646  N.W.2d  at  214;  see  also  Landt,  87  P.3d  at  77  &  n.7  (listing  



jurisdictions  where  this  practice  is  prohibited);  Jonathan  M.  Purver,  Annotation,  

Propriety  of  Jurors  Asking  Questions  in  Open  Court  During  Course  of  Trial ,  31  

A.L.R.3d 872,  3.5 (1970) (same).  



                                                               8                                                         2412
  


----------------------- Page 9-----------------------

                                                                  13  

harmless beyond a reasonable doubt.     A different question is presented here because   



the trial court followed all the proper procedures but nevertheless allowed an improper         



juror question over defense objection.  In this situation, a case-by-case analysis will  



normally be required to determine whether the juror's question (or the answer to the  

                                                                                                                                



question)  implicated  the   defendant's  right  to  an  impartial  jury,  or  some  other  



constitutional  right,  and  whether  the  court  took  action  to  cure  any  prejudice  to  the  



defendant's case.  Some cases may require a determination that the error was harmless  

                                                                



beyond a reasonable doubt, while other cases may require some other, lower standard of  

                                                                      



harmlessness.  



                        We do not decide in this case what harmless error standard should apply  



to  our  review  of  the  superior  court's  error  in  allowing  the  improper  juror  question  

                                                                                                      



because the parties have not briefed the issue, and because we conclude that the error  

                                                                                           



was harmless beyond a reasonable doubt.  



                        When the trial judge asked Croy whether Barr's assault on M.B. was one  

                                                   



of the "worst beatings" she had seen in Northwest Alaska, the jury had already heard  



testimony from three medical witnesses who had personally examined M.B.:  Public  



Health  Aide  Tebbits,  Dr.  Wilson,  and  Nurse  Croy.    All  three  witnesses  described  

                                         



extensive injuries to M.B.'s head, face, neck, arms, and lower extremities.  M.B. told  



these individuals that she had been beaten, and Dr. Wilson and Croy testified that M.B.'s  

                                                                                                                       



injuries were consistent with her report of an assault.  Although Barr's counsel cross- 



examined the witnesses on whether they had been asked by anyone to determine if the  



injuries were also consistent with an accidental fall, the attorney never actually asked the  

                                                                                                                          



witnesses to offer an opinion on this question. Nor did Barr present any expert testimony  

                                                                                                                     



      13    Landt , 87 P.3d at 80.  



                                                                           9                                                                        2412  


----------------------- Page 10-----------------------

of his own suggesting that M.B.'s extensive injuries could be consistent with his claim   



of accident.   



                    Furthermore, Croy's only response to the juror's question was to say that  

                                                                                                                  



this was "a pretty bad case."  This testimony merely reiterated what the evidence had  



already  shown:    that  M.B.  sustained  serious  injuries.    Croy  said  she  had  only  been  



involved in a few cases in Northwest Alaska, so she could not offer an opinion on how  

                                                                     



M.B.'s case compared with other cases in the region.  Given this record, we conclude  

                                           



that there is no reasonable possibility that the evidence elicited by the juror question -  

the evidence that this was a "pretty bad case" - affected the jury's verdict.14  

                                                                                                                    



                    Quantifying the potential prejudice of asking the juror question - and by  



doing so, broadcasting the juror's premature assessment of the merits of the State's case  



- is more difficult.  As we have previously stated, "we have no doubt that there are  



many  trials  in  which  one  or  more  members  of  a  jury  prematurely  remark  on  the  

                                                                                                          



credibility  of  the  testimony  they  have  heard  or  express  some  opinion  about  the  



                                                  15  

anticipated outcome of the case."                    Although such remarks are improper, "they do not  

                                                                                               



suggest that the ensuing deliberations are tainted or that the resulting verdict should be  

                         

distrusted."16  

                     We think there is no reasonable possibility that one juror's premature  



characterization of the evidence as a "beating" during the presentation of the State's case  



led the jury in its later deliberations to disregard the evidence, the State's burden of  

             



proof, or the court's instructions.  



     14   See Smithart v. State, 988 P.2d 583, 589 (Alaska 1999).
  



     15   Larson v. State , 79 P.3d 650, 656 (Alaska App. 2003).
  



     16   Id .;  see  generally  United  States  v.  Resko ,  3  F.3d  684,  688-89  (3d  Cir.  1993)
  



(discussing the reasons for the prohibition on premature deliberations in a criminal case).  



                                                               10                                                         2412
  


----------------------- Page 11-----------------------

                    We therefore conclude that the court erred by asking the juror question over  

                                                                                                   



defense counsel's objection, but that the error was harmless beyond a reasonable doubt.  

                             



           The prosecutor's rebuttal argument was not an impermissible comment on  

          Barr's right to remain silent  



                    During the prosecutor's rebuttal argument, the prosecutor argued that Barr  

                                                                                      



had provided "no explanation" for M.B.'s injuries.  Although Barr's attorney did not  



object to this argument at trial, Barr now claims the remark was an adverse comment on  



his decision not to testify, and that the superior court committed plain error when it failed  

                                                                               



to take corrective action sua sponte .  



                    We  note  first  that  the  prosecutor's  statements  directly  responded  to  

                                                          



statements made by Barr's defense attorney.  During opening statements, Barr's defense  



counsel told the jury it would hear directly from Barr and that Barr would testify that  



M.B.'s injuries were from falling down.  In closing argument, Barr's counsel referred to  

                                                                  



this earlier promise and argued that the jury had heard directly from Barr - because his  

                                                                                                                  



recorded interview with the troopers was played to the jury almost in its entirety.  Barr's  



counsel explained that Barr had originally intended to take the stand and testify, but that  

                                                                                                             



after the prosecutor played Barr's interview, Barr and his counsel had decided that Barr's  

                                                                           



testimony was no longer necessary and would simply further delay getting the case to the  

                                      



jury.  Barr's counsel also asserted that Barr's contemporaneous statements to the trooper  

                                                                    



were "much more reliable" than any trial testimony, and that there was therefore no  

                                                                  



reason to put Barr on the stand "to repeat exactly what the jury [had] already heard."   



                    In rebuttal, the prosecutor stated the following:    



                    Now, one interesting thing about what we've just heard in the  

                                                                                        

                    defense        is   what      really      didn't      say     [sic].    There's        no  

                                                                                 

                    explanation.  Certainly, one would wait to hear something  



                                                                11                                                          2412
  


----------------------- Page 12-----------------------

                   like that.  How would a pattern of injuries apparently inflicted  

                                                                                     

                   over time occur? You're about to go back  and look at all  

                   those pictures. How else would that  occur if they weren't  

                                                                                    

                   imposed intentionally by someone who had the opportunity  

                   to do so?  

                             . . . .  

                   Now,       there's      simply       no     explanation          -     alternative  

                   explanation that's been offered at this point. When the idea  

                                                           

                   that [M.B.] came in her[e] and told you about these episodes  

                   and  what  happened  to  her  at  great  emotional  expense  to  

                                                                 

                   herself  because  she'd  fallen   down  one  time  is  frankly  

                   ridiculous.  



                                                       

                   Barr's  counsel  did  not  object  to  any  of  these  statements.    On  appeal,  



                                                                                                        

however, Barr argues that these statements constituted an impermissible comment on his  



constitutional right not to testify.  We disagree.   



                                                                          

                   Viewed in context, the prosecutor's statements appear to be (1) a direct  



response to the defense attorney's contention that Barr fully explained M.B.'s injuries  



when he was interviewed by the troopers; and (2) fair comment on the inadequacy of  



Barr's explanation to the troopers, rather than an attack on Barr's decision not to testify,  

                                                            

or an invitation to the jury to shift the burden of proof to Barr.17  



                                     

                   Even if the prosecutor had commented more directly on Barr's failure to  



                                                                           

testify, we would not necessarily find error, given that Barr expressly told the jury he  



decided not to take the stand because his testimony would add nothing to the statement  

he gave the police.  In Hilburn v. State ,18 we held that this defense argument opened the  



     17   See, e.g., Hill v. State , 902 P.2d 343, 346-47 (Alaska App. 1995); Hilburn v. State ,  



765 P.2d 1382, 1390 (Alaska App. 1988).  



     18   765 P.2d 1382.   



                                                             12                                                          2412  


----------------------- Page 13-----------------------

door to considerably more direct comment by the prosecutor on the defendant's failure  

to testify.19  

                     



                                                  

                       As in Hilburn , the jury in this case was instructed on Barr's constitutional  



                                                                                                                                 

right not to testify, and the jury was told not to draw any inferences of guilt from the fact  



                                      20  

                                                                                                   

that he did not testify.                  While we acknowledge that the line between fair comment on  



                                                                                           

the evidence and adverse comment on a defendant's constitutional right to remain silent  



                                                                                        

can be imprecise, we do not view the prosecutor's comments in this case as error, much  



                                                                                                             

less obvious error requiring the trial court to act sua sponte in the absence of a defense  

objection.21  



            Conclusion  



                       The superior court's judgment is AFFIRMED.  



      19   Id. at 1389-90.  



      20    See  id. at 1390.  



      21    See  Khan v. State , 278 P.3d 893, 900 (Alaska 2012) ("[I]n order for a court to find     



plain error, (1) the error must not be the result of an intelligent waiver or a strategic decision                     

not to object; (2) the error must affect substantial rights; (3) the error must be obvious; and     

(4)  the error must be prejudicial.") (quoting Adams  v.  State , 261 P.3d 758, 771 (Alaska  

2011)).  



                                                                         13                                                                       2412  

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