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Carpenter v. State (12/8/2017) ap-2577

Carpenter v. State (12/8/2017) ap-2577

                                                                   NOTICE
  

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            errors to the attention of the Clerk of the Appellate Courts:  



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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



SEAN ALLEN CARPENTER,  

                                                                                       Court of Appeals No. A-12045  

                                              Appellant,                            Trial Court No. 3PA-14-1297 CR  



                                  v.  

                                                                                                     O P I N I O N  

STATE OF ALASKA,  



                                              Appellee.                               No. 2577  - December 8, 2017  



                       Appeal f               

                                     rom the District Court, Third Judicial District, Palmer,  

                       David L. Zwink, Judge.  



                       Appearances:  Josie  Garton,  Assistant  Public  Defender,  and  

                                                                                                     

                       Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                              

                       Raymond  E.  Beard,  Assistant  District  Attorney,  Palmer,  and  

                                              

                       Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                      



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

                                                                      

                       Superior Court Judge. *  

                                                               



                       Judge ALLARD.  



                       Sean Allen Carpenter was charged with fourth-degree assault for allegedly                                      



hitting his elderly mother.                   Five hours into the jury deliberations on this charge, the jury                                  



      *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

sent a note to the judge indicating that they were hung. The trial judge did not notify the  

                                                                                                                                



parties of this note.  Instead, on his own initiative, the trial judge engaged in a series of  

                                                                                                                                  



ex parte communications with the jury, ultimately informing them that they could return  

                                                                                                                            



after the weekend to continue their deliberations, or they could continue to deliberate that  

                                                                                                                               



night if they believed that they would be able to come to a final verdict within the next  

                                                                                                                              



twenty-five minutes.  The jury indicated that they wished to continue to deliberate that  

                                                                                                                               



night.  Less than five minutes before the deadline, the jury returned a guilty verdict on  

                                                                                                                                 



the fourth-degree assault charge.  

                                        



                    On appeal, Carpenter argues that the judge's ex parte communications with  

                                                                                                                              



the jury violated his constitutional rights and may have had a coercive effect on the jury.  

                                                                                                                                      



The State concedes that the judge's ex parte communications constituted constitutional  

                                                                                                                



error, but the State argues that the error was harmless beyond a reasonable doubt.  

                                                                                                                   



                    For the reasons explained here, we conclude that the judge's ex parte  

                                                                                                                             



communications with the jury, after the jury had declared itself hung, were not harmless  

                                                                                                                       



beyond a reasonable doubt, and that reversal of Carpenter's conviction is therefore  

                                                                                                                      



required.  



          Background facts and procedural history  

                                                                



                     Sean  Carpenter  was  charged  with  fourth-degree  assault  for  allegedly  

                                                                                                                



striking his seventy-year-old mother in the face.  At trial, Carpenter testified that he did  

                                                                                                                                



not hit his mother and that his mother was injured by accident when he leaned on a table,  

                                                                                                                            



causing one end to fly up and strike her in the cheek.  Carpenter also testified that his  

                                                                                                                                



mother  was  confused  about  what  happened  and  that  her  mental  health  had  been  

                                                                                                                             



deteriorating in recent years.  

                                    



                    Carpenter's  trial  began  on  a  Thursday  morning  and  the  jury  began  

                                                                                                                           



deliberating on the case around 11:00 a.m. the following day (Friday).  At 4:15 p.m.,  

                                                                                                                             



                                                              - 2 -                                                         2577
  


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

approximately five hours into its deliberations, the jury sent a note to the judge stating,  

                                                                                                                                      



"We are hung."  

               



                     The trial judge did not notify the parties of the jury's note or of their  

                                                                                                                             



reported  status.             Instead,   the   judge  engaged  in  a  series  of  ex  parte  written  

                                                                                                                         



communications with the jury.  The exact timing of these communications is slightly  

                                                                                                                         



unclear because the communications were written on the same sheet of paper and only  

                                                                                                                              



some of the communications were properly time-stamped.   Here is the sequence of  

                                                                                                                                 



communications, as best we can tell.  

                                                   



                     At 4:15 p.m., the jury sent its note stating, "We are hung."  At 4:19 p.m.,  

                                                                                                                     



the judge returned the note with a handwritten response stating "[d]o you think taking  

                                                                                                   



the weekend off [and] coming back fresh on Monday may help your progress?" The jury  

                                                                                                                               



appears to have responded to the judge's question with the statement "We will stay."  

                                                                                                                                     



                     (Because the jury did not time-stamp this response, and because the record  

                                                                                                                           



does not otherwise indicate when it occurred, it is possible that the jury's statement "We  

                                                                                                                              



will stay" was sent at the same time as its  response to  the judge's  later  4:34  p.m.  

                                                                                                                              



communication.               In  either  case,  however,  our  analysis  of  the  judge's  ex  parte  

                                                                                                                            



communications remains the same. We nevertheless take this opportunity to remind trial  

                                                                                                                               



judges that all substantive communications with a jury must be properly memorialized  

                                                                                                                



in the record.)  

           



                     At 4:34 p.m., the judge, seemingly on his own initiative, sent a second ex  

                                                                                                                                 



parte communication to the jury.  This communication informed the jury that:  

                                                                                                                 



                     We can let you deliberate only until 5 p.m. tonight.  I do not  

                                                                                                            

                     want  you  to  feel  rushed  into  reaching  a  verdict.                        If  you  

                                                                                                          

                     believe that you can [reach a verdict] by 5 p.m., then you may  

                                                                                                          

                     continue now. If you feel that is not enough time, then please  

                                                                                                       

                     let me know [and] we will reconvene on Monday morning.  

                                                                                                                  

                     Thank you.  

                                



                                                               -  3 -                                                        2577
  


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

The jury then responded "We think we will make one by 5 p.m."                                                                                                                 



                                        At 4:55 p.m., five minutes before the deadline set by the court, the jury sent                                                                                                                               



a new note indicating that it had reached a verdict.                                                                                                 The court contacted the parties, who                                                           



returned to court to hear the verdict. The jury then announced that it had reached a guilty                                                                                                                                                  



verdict on the fourth-degree assault charge.                                                               



                                        This appeal followed.               



                    The trial judge committed constitutional error by engaging in ex parte                                                                                                                                   

                    communications with the jury                                                



                                        Under both the United States Constitution and the Alaska Constitution, the                                                                                                                                      



                                                                                                                                                                                        1  

defendant has the right to be present at every stage of the trial.                                                                                                                                                                         

                                                                                                                                                                                              The right to be present  



                                                                                                                                                                                                                2  

                                                                                                                                                                                                                                            

includes the right to be notified of any communication with the jury.                                                                                                                                                 A trial court's  



                                                                                                                                                                                                                                                     

"[f]ailure to notify the defendant of a jury communication is constitutional error that  



                                                                                                                                                                                                                                

requires reversal on appeal unless the error is found harmless beyond a reasonable  



                      3 

doubt."                                                                                                                                                      

                          The State bears the burden of proving that any ex parte communication with  



                                                                                                                                                    4  

                                                                                                                                                         

                                                                                                                                 

the jury was harmless beyond a reasonable doubt. 



          1         See Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); see also Raphael v. State, 994   



P.2d 1004, 1013 (Alaska 2000);  Wamser v. State, 652 P.2d 98, 101-02 (Alaska 1982);  Cox  

v. State, 575 P.2d 297, 300-01 (Alaska 1978); Jones v. State , 719 P.2d 265, 266 (Alaska App.  

 1986);  Newman v. State, 655 P.2d 1302, 1307 (Alaska App. 1982); see also Alaska R. Crim.  

P. 38(a).  



          2        Jones , 719 P.2d at 266 (internal citations omitted).  



          3         Id. at 266-67 (internal citations omitted).  



          4         Id. at 267.  



                                                                                                                         - 4 -                                                                                                                   2577
  


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

                       Here, theStateconcedes                   that thetrial       judge'sex partecommunications                           with  



                                                                                                                                5  

the jury constituted constitutional error.                            This concession is well-founded.                                      

                                                                                                                                   The only  



                                                                                                                                                  

remaining question, therefore, is whether the judge's actions were harmless beyond a  



                    

reasonable doubt.  



                                                                                                                                      

            The ex parte communications with the jury were not harmless beyond a  

                                

           reasonable doubt  



                       To determine whether a judge's ex parte communication with a jury was  



                                                                                                                                              

harmless beyond a reasonable doubt, we must consider the type of action taken by the  



                                                                                                                                              

court,  and  the  effect  of  the  defendant's  absence  on  that  action,  rather  than  on  the  



                                               6  

                                                                                                                                            

propriety of the action itself.                   A trial court's failure to notify the defendant of a jury note  



                                                                                                                              

is not harmless beyond a reasonable doubt in cases where the defendant's participation  



                                                                                            7 

                                                                                                                                          

"could have had an impact on the decisional process"  and where the defendant could  



                                                                                                                                            

have "offer[ed] comments, suggestions, and objections [that might have] guid[ed] both  



                                                                                                           8  

                                                                                                              

the substance and phrasing of the court's response to the jury." 



                                                                                                                                               

                       Here,  the  judge's  ex  parte  communication  with  the  jury  occurred  in  



                                                                                                                                          

response to the jury's declaration that it was hung.  This was critical information about  



                                                                                                                                       

the jury's deliberations that should have been immediately communicated to the defense  



                                                                                                                                              

attorney  so  that  the  defense  attorney  could  take  appropriate  action  to  protect  the  



      5    See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



                                                                                

independently assess any concession of error by the State in a criminal case).  



      6  

                   

           See Jones, 719 P.2d at 267.  



      7  

                                                                                                                                            

           Raphael, 994 P.2d at 1013 (citing State v. Hannagan, 559 P.2d 1059, 1065 n.20  

(Alaska 1977)).  



      8    Jones , 719 P.2d at 267 (quoting  Wamser, 652 P.2d at 101-02); see also Dixon, 605  



P.2d at 888.  



                                                                     -  5 -                                                               2577
  


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

defendant's rights - such as moving for a mistrial or objecting to the court's proposed                                             



                                                                9  

response to the jury's announcement.                               



                                                                                                                                                 

                       As  Alaska  caselaw  makes  clear,  communicating  appropriately  with  a  



                                                               10 

                                                                                                               

                                                                   Among other things, the judge must be careful  

potentially hung jury is no easy task. 



                                                                                                                                          

to avoid instructions that could be viewed as coercive or that might disadvantage jurors  



                                          11  

                                                                                                                                         

in the minority position.                       The judge must also avoid any suggestion that the jurors  



                                                                                                                                                     

 should reach a verdict based on anything other than the evidence and the arguments  



                                                      12  

                                                                                                                                     

presented to them in open court.                          The input of the parties is therefore not only required  



                                                                                                                                          

by  law,  but  also  likely  to  be  distinctly  helpful  to  the  trial  judge  in  avoiding  these  

pitfalls.13  



                                                                                                                                               

                       The danger of ex parte communication with a hung jury is evidenced by  



                                                                                                                                   

what occurred in this case.  Although it is clear that the judge did not intend for his ex  



                                                                                                                                 

parte  communications  with  the  jury  to  be  coercive,  there  is  certainly  a  reasonable  



                                                                                                                                                     

possibility that they were viewed that way by individual jurors. The judge told the jurors  



                                                                                                                                             

that he did not want them to feel "rushed into reaching a verdict," but the judge also  



                                                                                                                                       

presented the jurors with only two options: (1) they could stop deliberating and commit  



      9     See Wamser, 652 P.2d at 101-02; see also Dixon, 605 P.2d at 887 (holding that even  



a  jury's  request  to  review  evidence  "raises  questions  of  great  importance  to  a  criminal  

                                                                                                                                      

defendant's rights, as it generally reflects doubt or disagreement on the part of at least some  

                                                                                                                               

jurors as to the nature of evidence presented at trial.").  



      10    See, e.g., Fields v. State , 487 P.2d 831, 842 (Alaska 1971); Stapleton v. State, 696  

                                                      

P.2d 180 (Alaska App. 1985); see also 6 Wayne R. LaFave, Criminal Procedure  24.9(d),  

                                                                                                                                       

at 674-78 (4th ed. 2015).  



      11    See Fields, 487 P.2d at 841-42.  

                   



      12    See id. at 838 n.12.  



      13  

                                                                                                                                    

            See Dixon, 605 P.2d at 888 (emphasizing that "adversarial scrutiny" of a judge's  

proposed response to a jury note is both useful to the judge and necessary under the law).  



                                                                      -  6 -                                                              2577
  


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

to returning the following week (thereby inconveniencing themselves and their fellow  



jurors); or (2) they could continue to deliberate - but only if they believed that they  

                                                                                                                             



could reach a verdict within the next twenty-five minutes.  The jury chose the second  

                                                                                                                         



option and, true to its word, returned a verdict twenty-one minutes later (just before the  

                                                                                                                               



deadline imposed by the judge).  Had Carpenter and his attorney been present when the  

                                                                                                                               



court's response to the jury note was being formulated, there is a significant chance that  

                                                                                                                              



a more appropriate and less coercive communication would have been sent to the jury.  

                                                                                                                             



                    Because it was constitutional error for the court to engage in communica- 

                                                                                                                 



tions with the jury without Carpenter's knowledge or participation, and because it cannot  

                                                                                                                          



be said that the error was harmless beyond a reasonable doubt given the nature of the ex  

                                                                                                                                



parte communication and the circumstances under which it occurred, we conclude that  

                                                                                                                              



reversal of Carpenter's conviction is required.  

                                                         



           Conclusion  



                    We REVERSE the judgment of the district court.  

                                                                                       



                                                              -  7 -                                                        2577
  

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