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Cunningham v. State (12/15/2017) ap-2578

Cunningham v. State (12/15/2017) ap-2578

                                                                      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 @ akcourts.us
  



                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JACE H. CUNNINGHAM,  

                                                                                          Court of Appeals No. A-11731  

                                                Appellant,                               Trial Court No. 1PE-12-133 CR  



                                    v.  

                                                                                                         O P I N I O N  

STATE OF ALASKA,  



                                                Appellee.                                No. 2578 - December 15, 2017  



                        Appeal   f                        

                                        rom   the   Superior   Court,   First   Judicial   District,  

                        Petersburg, William B. Carey, Judge.  



                        Appearances:               Susan          Orlansky,            Reeves          Amodio             LLC,  

                        Anchorage, for the Appellant.   Donald Soderstrom, Assistant  

                                                                                                                    

                        Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                         

                        Craig W. Richards, Attorney General, Juneau, for the Appellee.  

                                                                          



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

                                                                         

                        Superior Court Judge. *  

                                                                 



                        Judge ALLARD.  



                        Jace H. Cunningham was convicted of two counts of third-degree assault,                                               



four counts of fourth-degree assault, and other misdemeanor offenses based on a series                                                           



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



Constitution and Administrative Rule 24(d).  


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

of   altercations   with   multiple   police   officers  who  had   responded   to   reports   that  



Cunningham was suicidal and in possession of a firearm.                                        On appeal, Cunningham     

challenges his two third-degree assault convictions,                            1                      

                                                                                  arguing that the judge committed  



                                                                                                      

reversible error when he communicated with the jury about their deliberations outside  



                                      

the presence of defense counsel.  



                                                                                                                           

                     For  the  reasons  explained  here,  we  conclude  that  the  trial  court's  



                                                                                                                                   

communications with the jury constituted ex parte communications with the jury in  



                                                                                                                               

violation of Cunningham's constitutional rights. We also conclude that the court's error  



                                                                                                                     

was harmless beyond a reasonable doubt as to one of the third-degree assault convictions  



                                                                                                                      

(Count VI) but that reversal is required on the other third-degree assault conviction  



             

(Count V).  



                                                       

          Background facts and prior proceedings  



                                                                                                                              

                     On October 4, 2012, Jace Cunningham contacted his friends to say good- 



                                                                                                                           

bye and to tell them that he planned to kill himself.  Cunningham then drove several  



                                                                                                                                        

miles down Frederick Point Road outside of Petersburg with beer and a loaded rifle.  



                                                                                                                                

Cunningham's friends went to talk to Cunningham, but were unable to dissuade him  



                                                                                                                                  

from his suicide plan.  After leaving Cunningham at his request, the friends called the  



                                                                                                                    

Petersburg Police Department to report Cunningham's suicide plan and his approximate  



                                                                                                                                 

location.  The police department also received two other calls about Cunningham that  



                                                                                                                

evening - one from a Petersburg resident who heard a gunshot near Cunningham's  



                                                                                                                                  

parked car along Frederick Point Road, and one from Cunningham himself, asking for  



help.  



     1    Cunningham does not challenge any of his misdemeanor convictions.   



                                                               - 2 -                                                          2578
  


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

                    In response to these calls, five Petersburg police officers and two mental  

                                                                                                                          



health  workers  set  out  to  make  contact  with  Cunningham.                                  The  officers  created  a  

                                                                                                                                  



roadblock several hundred yards from where they believed Cunningham was located.  

                                                                                                                                      



The mental health workers and three of the police officers positioned themselves around  

                                                                                                                          



and behind the roadblock, while the other two police officers positioned themselves on  

                                                                                                                                 



the side of the road in front of the roadblock.  By the time the roadblock was set, it was  

                                                                                                                               



dark.  



                    In the meantime, Cunningham had decided to abandon his suicide plan and  

                                                                                                                                



return to Petersburg.   Cunningham began driving back along Frederick Point Road,  

                                                                                                                           



unaware of the officers and the roadblock. After rounding a curve, Cunningham saw the  

                                                                                                                                



roadblock, and he had to brake suddenly and swerve to avoid hitting a police vehicle.  

                                                                                                                                      



Cunningham's car landed in the roadside ditch near the police roadblock.  Cunningham  

                                                                                                                 



was able to reverse the car out of the ditch, but in his attempt to turn around, he drove  

        



the car into the ditch on the opposite side of the road.  

                                                                          



                    The officers later reported that, while Cunningham's car was in the first  

                                                                                                                               



ditch or while he was backing up, Cunningham fired two shots from his rifle.  Officer  

                                                                                                                          



Pitta-Rosse, the officer in the trees closest to the ditch, reported seeing what he believed  

                                                                                                                        



was a muzzle flash.  Four other officers reported hearing noises that they believed were  

                                                                                                                             



gun shots.   Because of the darkness, the officers did not know where the rifle was  

                                                                                                                              



pointed when it was fired.  Cunningham later testified at trial that he could not see any  

                                                                                                                               



of the officers and did not know how many were there.  Cunningham also denied firing  

                                                                                                                            



his gun.  

      



                    At some point after his truck got stuck in the second ditch, Cunningham got  

                                                                                                                                



out of his vehicle and walked toward the roadblock holding his rifle.  Sergeant Heidi  

                                                                                                                            



Agner called out to Cunningham and tried to persuade him to put his gun down and  

                                                                                                                               



submit to being taken into custody.  Cunningham refused to put his gun down.  During  

                                                                                                                          



                                                              -  3 -                                                        2578
  


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

the resulting standoff, Cunningham twice approached Sergeant Agner with his rifle                                                                                                                   



pointed   in   her   direction.     Cunningham   also   made   various   threatening   statements,  



including telling Sergeant Agner that he had her "in his scope" and that he could "kill all                                                                                                              



 [of the officers]" before they could hurt him.                                                             After about an hour, Cunningham put his                                                     



rifle down and allowed himself to be taken into custody.                                                           



                                Cunningham   was   indicted   on   six   counts   of   third-degree   assault   for  



recklessly placing the officers in fear of imminent serious physical injury by means of   



                                                                                         2  

a dangerous instrument (the firearm).                                                                                                                                                               

                                                                                             Counts I-V were based on the five officers who  



                                                                                                                                                                                                      

were put in fear by the two shots fired from Cunningham's car; Officer Pitta-Rosse was  



                                                                                                                                                                                                     

the victim identified in Count V.  Count VI was based on Cunningham pointing his rifle  



                                                                                                                                                                                              

at Sergeant Agner during the stand-off. In addition to the six third-degree assault counts,  



                                                                                                                                                                                        

Cunninghamwas also charged with five misdemeanors, including misconduct involving  



                                                                                                                                                                             

a weapon, driving while intoxicated, refusing a breath test, and criminal mischief.  



                                                                                                                                                                                                      

                                Cunningham  was  tried  before  a  jury  in  Petersburg.                                                                                 The  judge,  the  



                                                                                                                                                                                                        

prosecutor, and the defense attorney were not from Petersburg and all three had to fly  



                                                        

into Petersburg for the trial.  



                                                                                                                                                                                    

                                At trial, Cunningham requested and was granted conditional co-counsel  



                                                                                                                                                                                           

status for the limited purpose of asking his own questions of witnesses after his attorney  



                                                                                                                                                                                        

completed his cross-examination.  The court explained to the jury that it was "granting  



                                                                                                                                                                                       

a very limited request on Mr. Cunningham's part to be able to ask some questions  



                                                                                                                                                                                                     

himself of the witnesses." Cunningham availed himself of this privilege only once. The  



                                                                                                                                                                                            

court also allowed Cunningham to give his own closing statement after his defense  



                                                              

counsel gave the primary argument.  



        2       AS 11.41.220(a)(1).  



                                                                                                 - 4 -                                                                                            2578
  


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

                     Cunningham testified in his own defense at trial.  Cunningham's defense  

                                                                                     



was mostly focused on the third-degree assault charges.  Cunningham testified that he  

                                                                                                             



was upset and scared that night and that he never intended to harm anyone but himself.  

                                                                                                                                      



Cunningham also testified that he did not know how many officers were at the scene or  

                                                                                                                                  



where they were located.  Cunningham denied firing any shots at the scene.  

                                                                                                           



          Jury deliberations  

                   



                     Cunningham's trial ended on a Friday and the jury began deliberations that  

                                                                                                                               



same  day.          The  jury  was  very  active  during  their  deliberations,  making  numerous  

                                                                                                                     



requests for playbacks and sending notes asking for clarification of various legal issues.  

                                                                                                                           



                     Ontheafternoon ofthesecondday ofdeliberations(Saturday), thejury sent  

                                                                                                                               



a written note asking what would happen if it reached a unanimous verdict on some  

                                                                                                                             



counts, but not on others.  The trial judge notified the parties and convened a hearing to  

                                                                                                                                  



discuss the note.  Cunningham and the defense attorney were both present.  The trial  

                                                                                                                               



prosecutor was not present because he was en route back to Juneau, but an attorney from  

                                                                                                                              



his office participated telephonically.  

                                   



                     The jury was brought into the courtroom and asked about the status of its  

                                                                                                                                 



deliberations. The foreperson indicated that they had reached verdicts on "about half the  

                                                                                                                                



counts, and we're hung up on one count significantly."  The trial judge encouraged the  

                                                                                                                                



jurors to keep working and to reach verdicts on all counts, but the judge told the jurors  

                                                                                                                            



that "it doesn't go on forever," and that they should let the judge know if they ultimately  

                                                                                                                      



could not reach a unanimous verdict on any particular count, and they would then "come  

                                                                                                                           



in and talk about it."  The defense attorney and the prosecutor were in agreement with  

                                                                                                 



this approach, and the jurors were excused to continue their deliberations.  

                                                                                             



                     After the jury resumed its deliberations, the defense attorney left to fly  

                                                                                                                                



home to Ketchikan.   The judge asked the defense attorney to call in when his plane  

                                                                                                                            



                                                               -  5 -                                                       2578
  


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

                                                                                                         3  

 landed in Ketchikan.                                                                                          The defense attorney agreed to do so.                                                                                                                                                           The defense attorney was                                                                                      



  scheduled to land in Ketchikan sometime after 5:00 p.m.                                                                                                                                                                                                             



                                                                    At some point before the defense attorney's plane reached Ketchikan, the                                                                                                                                                                                                                                                                                      



jury   informed   the   bailiff   that   it   had   reached   verdicts   on   all   but   one   count.     (This  



 communication was apparently made orally and was not properly memorialized in the                                                                                                                                                                                                                                                                                                                                               



 record.)  



                                                                    Rather than waiting for the defense attorney's plane to land, the trial judge                                                                                                                                                                                                                                                                    



 convened a hearing without the defense attorney present to discuss how to respond to the                                                                                                                                                                                                                                                                                                                                         



jury's announcement that it had reached final verdicts on all counts but one and that it   



 was hung on that count.                                                                                                   This hearing was held at 4:48 p.m. - approximately twenty                                                                                                                                                                                                                          



 minutes before the defense attorney's plane was scheduled to land.                                                                                                                                                                                                                                                   



                                                                    The judge and Cunningham were present in the Petersburg courtroom for                                                                                                                                                                                                                                                                                         



 the hearing.                                                 The prosecutor participated in the hearing telephonically from Juneau.                                                                                                                                                                                                                                                        



                                                                    At the hearing, the judge                                                                                                acknowledged the defense attorney's absence and                                                                                                                                                                                    



  stated that he was proceeding without the defense attorney because Cunningham had                                                                                                                                                                                                                                                                                                                                           



 "co-counsel status" and "this is kind of an administrative type of hearing, really."                                                                                                                                                                                                                                                                                                                                     The  



judge then informed Cunningham and the prosecutor that his plan was to follow Alaska                                                                                                                                                                                                                                                                                                                          



 Criminal Rule 31(f), which would allow the jury's verdicts to be sealed and the jury to                                                                                                                                                                                                                                                                                                                                               



 return the next day to formally announce the verdicts once the defense attorney was                                                                                                                                                                                                                                                                                                                                        



 available.  



                                                                    The judge noted that he might "perhaps briefly discuss" the jury's status on                                                                                                                                                                                                                                                                                     



 the count on which it was hung.                                                                                                                                       He also noted that "there's a slight possibility that I                                                                                                                                                                                                              



                  3                The   judge   also  asked  the  defense  attorney to                                                                                                                                                                                   call  in  when  the  plane  stopped  in  



 Wrangell on the way to Ketchikan.                                                                                                                                           The parties appear to agree that this call happened but  

 that the call came before the jury had announced that it had reached final verdicts on all                                                                                                                                                                                                                                                      

 counts but one count, on which they were hung.  



                                                                                                                                                                                                              -  6 -                                                                                                                                                                                                    2578
  


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

might send [the jury] back to do some more deliberations, but I'm getting the feeling  

                                                                                                                         



that's not going to be the case, given that the jury has had this case for well over 24 hours  

                                                                                                                            



now and have not been able to reach a verdict."  

                                                            



                     The prosecutor noted that the next day was Sunday and that some of the  

                                                                                                                               



jurors might want to go to church.  He therefore suggested that the jurors be brought  

                                                                                                                        



back Monday.   The judge indicated that his preference was for the jury to return on  

                                                                                                                                



 Sunday because the judge planned to fly home to  Ketchikan on Sunday afternoon.  

                                                                                                                                     



Nothing more was said about how the count on which the jury was hung should be  

                                                                                                                                



handled.  



                    At the end of the discussion, the judge asked Cunninghamif he was "good"  

                                                                                                                         



with proceeding without his defense attorney "for this limited purpose."   The judge  

                                                                                                                           



explained to Cunningham that the verdicts would not be announced until the defense  

                                                                                                                        



attorney was available.  Cunningham agreed that the judge could proceed without his  

                                                                                                                               



attorney "[j]ust for this limited purpose."  

                                                 



                     The jury was then brought into the courtroom.  The judge's initial action  

                                                                                                     



was to ask the foreperson if the jury was "hopelessly deadlocked" on the remaining  

                                                                                                                    



count.  The foreperson responded "I'm thinking that we're pretty deadlocked."  The  

                                                                                                                              



judge then advised the jury that he could not take the verdicts on the other counts without  

                                                                                                                         



the defense attorney being present, but that he could seal the verdicts the jury had  

                                                                                                                              



reached, place them in an envelope, discharge the jurors for the day, and then have them  

                                                                                                                            



return briefly on the next day when the defense attorney could participate.  

                                                                                                



                    After informing the jury of this procedure (which was consistent with what  

                                                                                                                             



he told the prosecutor and Cunningham he was going to do), the judge then mentioned  

                                                                                                                    



some additional options for the jury.  The judge told the jury that it could continue to  

                                                                                                                                 



deliberate that night to try to resolve the case, rather than have to come back the next  

                                                                                                                             



day.  The judge noted that the next day was Sunday, and that people might have church  

                                                                                                                         



                                                              -  7 -                                                        2578
  


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

or other responsibilities.  The judge indicated that his own preference was for the jury  

                                                



to come back on Sunday, but that if "any of you can't make it tomorrow for some reason,  

                                                                                                                           



we can talk about it [a]nd then make a determination whether further deliberations would  

                                                                                                                             



be  fruitful."        The  judge  again  noted  that  the  jury  had  the  option  of  continuing  to  

                                                                                                                                  



deliberate longer that night, stating:  

                                             



                     Or, you know, the other thing is that we could keep going  

                                                                                                        

                     tonight, wait for [Cunningham's] attorney ... So does anyone  

                                                                                                      

                     have a problemwith coming back brieflytomorrow,or would  

                                                                                                        

                     you prefer to keep deliberating and wait until later tonight to  

                                                                                                              

                     do it?  

                           



                     The jurors retired at 5:00 p.m. to discuss their options.  At 5:05 p.m., the  

                                                                                                                                 



jury sent a note asking if the verdicts on Counts I-V "all need to be consistent."  (Counts  

                                                                                                                          



I-V were the third-degree assault charges that involved the five officers who had been  

                                                                                                    



placed in fear by the two gunshots from Cunningham's vehicle.)  

                                                                                       



                     At 5:10 p.m., the trial judge (apparently on his own initiative) sent a written  

                                                                                                                           



note to the jury that instructed the jury "to reach verdicts on those counts that they are  

                                                                                                                                 



able to do so."  It is not clear from the record why this communication was sent.  The  

                                                                                                                                



judge's note was written in a response to a question the jury had asked earlier that  

                                                                                                                                



morning about what would happen if they were not unanimous as to all counts.  But this  

                                                                                                                                



question had already been answered orally by the judge (with input from both counsel)  

                                                                                                                         



at an earlier hearing in which both attorneys were present. There is nothing in the record  

                                                                                                                            



to suggest that the judge notified the parties that he was supplementing the earlier oral  

                                                                                                                                



advisement with a written response. Nor is there any indication that the judge ever made  

                                                                                                                              



the parties aware that this additional communication was sent.  

                                                                                         



                     At 5:13 p.m., the judge reconvened court to address the 5:05 p.m. jury note  

                                                                                                                               



asking whether the verdicts on Counts I-V needed to be consistent.  By this time, the  

                                                                                                                                 



defense attorney's plane had landed at the Ketchikan airport and the defense attorney  

                                                                                                                         



                                                               -  8 -                                                        2578
  


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

was able to participate in the hearing telephonically.  There is nothing in the record to  

                                    



suggest that the defense attorney was ever told about the earlier hearing that occurred in  

                                                                                                                                  



his absence, or about the substance of the judge's communications with the jury at that  

                                                                                                                               



hearing. There is likewise nothing in the record to suggest that the defense attorney was  

                                                                                                                               



notified of the judge's recent sua sponte written communication with the jury.  

                                                                                                                 



                     At the 5:13 p.m. hearing, the defense attorney and the prosecutor both  

                                                                                                                              



agreed that the court should direct the jury's attention to Instruction No. 39, which stated:  

                                                                                                                                      



"[a]  separate offense is charged in each count.  You must decide each count separately.  

                                                                                                                                      



Your verdict on one count should not control your verdict on any other count."  The  

                                                                                                                              



judge then sent a written communication to the jury to that effect.  

                                                                                            



                     Shortly after receiving the judge's response, the jury advised the court that  

                                                                                                                               



it had reached verdicts on all counts.  

                                              



                     At 5:40 p.m., court was reconvened and the jurors delivered their verdicts.  

                                                                                                                                      



The jury found Cunningham guilty of two counts of third-degree assault - Count V (the  

                                                                                                                               



count related to Officer Pitta-Rosse) and Count VI (the count related to Sergeant Agner).  

                                                                                                                                      



The jury acquitted Cunningham of the other four counts of third-degree assault, but  

                                                                                                                                



convicted him of the lesser-included charge of fourth-degree assault in each instance.  

                                                                                                                                      



The jury also convicted Cunningham of the five charged misdemeanors.  

                                                                                        



                     This appeal followed.  

                                        



           Cunningham's arguments on appeal  

                                                         



                     On appeal, Cunningham argues that the court committed reversible error  

                                                                                   



when it held a hearing without the defense attorney present in response to the jury's  

                                                                                                                            



announcement  that  it  had  reached  verdicts  on  all  but  one  count.                                       Cunningham  

                                                                                                                



acknowledges that this ex parte communication with the jury might potentially require  

                                                                                                                          



reversal of all of his convictions, but he makes clear that he is only seeking reversal of  

                                                                                                                                  



                                                              -  9 -                                                        2578
  


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

 the two third-degree assault convictions (Counts V & VI).                                                                                                                                                                  Cunningham further argues                                                       



 that the court committed reversible error by (1) sending a written response to the jury at                                                                                                                                                                                                                                   



 5:10  p.m. without notifying the parties that this response had been sent; (2) failing to                                                                                                                                                                                                                                   



 notify the parties of the jury's playback requests without securing a waiver of the parties'                                                                                                                                                                                                            



 right to be present on the record; and (3) permitting the jury to communicate informally                                                                                                                                                                                                    



 with the court through the bailiff.                                                                



                                                   The State implicitly acknowledges that there were irregularities in the trial                                                                                                                                                                                      



judge's   communications   with   the   jury,   but   the   State   argues  that   none   of   these  



 irregularities require reversal of Cunningham's third-degree assault convictions.                                                                                                                                                                                                                                 The  



 Statealsoargues                                               thatCunninghampersonallywaived his                                                                                                                attorney's presencefor the4:48                                                                      



 p.m.  hearing and that, in any case, the communication with the jury that occurred outside                                                                                                                                                                                                               



 the defense attorney's presence was harmless beyond a reasonable doubt, at least with                                                                                                                            



 regard to Count VI.                                          



                         Did Cunningham knowingly waive his right to counsel at the 4:48 p.m.                                                                                                                                                                                              

                          hearing?  



                                                   A criminal defendant has both a federal and state constitutional right to be                                                                                                                                                                                             



                                                                                                                                                        4  

                                                                                                                                                                                                                                                                                                                             

 present at every stage of his or her trial.                                                                                                                     The right to be present includes the right to  



                                                                                  5  

                                                                                                                                                                                                                                                                                    

 have counsel present.                                                                   A defendant is entitled to have the "guiding hand of counsel at  



                                                                                                                                                                   6  

                                                                                                                                               

 every step in the proceedings against him"                                                                                                                                                                                                                                                                      

                                                                                                                                                                        and "[d]ue process requires that the court  



             4            See Wamser v. State, 652 P.2d 98, 101 (Alaska 1982); Jones v. State , 719 P.2d 265,  



 266 (Alaska App. 1986); see also Alaska Const. art. I,  1, 7; Alaska R. Crim. P. 38(a); U.S.  

 Const. amends. VI, XIV,  1; Illinois v. Allen , 397 U.S. 337, 338 (1970).  



             5            See Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971) (quoting Powell  



 v. Alabama, 287 U.S. 45, 68-69 (1932)).  



             6           Powell v. Alabama, 287 U.S. 45, 69 (1932).  



                                                                                                                                                        -  10 -                                                                                                                                                  2578
  


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

allow the defendant, with the assistance of counsel, input into                                                  the information and           

instructions given by the trial judge to the jury during its deliberations."                                                7  



                                                                                                                                                  

                       The State argues that these constitutional principles were not violated in  



                                                                                                                                         

Cunningham's casebecauseCunninghamknowinglywaived his right tohavehis defense  



                                                                                      

counsel participate in the 4:48 p.m. hearing.  We disagree.  



                                                                                                                          

                       In order to validly waive his or her right to counsel, a defendant must  



                                                                                                                                8  

                                                                                                                                                

"understand[] the benefits of counsel and knowingly waive[] the same."                                                              Here, the  



                                                                                                                                               

record shows that Cunningham was not given enough information to knowingly and  



                                                                                                                            

intelligently waive his right to have his attorney present when the judge communicated  



with the jury about its inability to reach a unanimous verdict on one count.  The judge  



                                                                                                                                                

inaccurately referred to the 4:48 p.m. hearing as "an administrative type of hearing" and  



                                                                                                                                         

the  judge  only  asked  Cunningham  to  waive  his  right  to  counsel  for  "this  limited  



                                                                                                                             

purpose." But the ensuing communications with the jury were not merely administrative  



                                                                                                                      

in nature.  The judge directly questioned the jury about its status on the one remaining  



                                                                                                            

charge and the judge responded to the jury's announcement that it was "hopelessly  



                                                                                                                                                 

deadlocked" on the one count by giving the jurors various options of how to proceed -  



                                                                                                                                      

options  that  included  continuing  to  deliberate  on  that  count  despite  their  apparent  



deadlock.  



                                                                                                      

                       Given these circumstances, we conclude that the record does not support  



                                                                                                                                                  

the State's claim that Cunningham knowingly  and  intelligently  waived  his right to  



                                                                                                                                               

counsel at the 4:48 p.m. hearing. Accordingly, the judge's decision to proceed with that  



                                                                                                                                                 

hearing, rather than to wait the twenty or so minutes until defense counsel would be  



      7    Newman v. State, 655 P.2d 1302, 1307 (Alaska App. 1982); see also Dixon v. State,  



605 P.2d 882, 887 (Alaska 1980).  



      8    McCracken v. State , 518 P.2d 85, 91-92 (Alaska 1974).  



                                                                     -  11 -                                                                2578
  


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

available, was constitutional error that requires reversal of the challenged convictions                       

unless the error is shown to have been harmless beyond a reasonable doubt.                                                           9  



                                                                                                                                               

                       The fact that Cunningham had been granted conditional co-counsel status  



                                                                                                                                                  

earlier in the case does not change this analysis.  Cunningham's co-counsel status was  



                                                                                                                                        

limited to cross-examiningtheState'switnessesanddelivering his ownclosing argument  



                                                                                                                                               

after his defense counsel had delivered the main closing argument.  Cunningham never  



                                                                                                                                                  

sought, nor was he ever granted, the right to represent himself, and the record is clear that  



                                                                    10  

                                                                                                                                                

his attorney remained the lead counsel.                                 Because Cunningham did not give up his right  



                                                                                                                                                  

to  be  represented  by  counsel,  his  limited  co-counsel  status  did  not  affect  his  



                                                                                                                                            

constitutional right to have his attorney present at the hearing where substantive matters  



                                                                                

about the jury's deadlock on one count were discussed.  



                                                                                                                                                

                       TheStatealsoargues thatCunningham's counsel "invited"thecourt's error  



                                                                                                                                                          

by choosing to fly from Petersburg back home to Ketchikan during jury deliberations.  



                                                                                                                                                     

According to the State, Cunningham's attorney put the court in a difficult position, in  



                                                                                                                                                   

that error would likely ensue whatever option the court chose - whether waiting for  



                                                                                                                                           

defense counsel to become available or proceeding, as the court did, without defense  



               

counsel present.  



                                                                                                                                                     

                       We find no merit to this contention. Here, defense counsel's decision to be  



                                                                                                                                                    

out of contact for less than an hour, with the court's tacit approval, cannot be seen as an  



                                                                                                                                                 

invitation to the court to hold proceedings without the attorney. In Blair v. State, we held  



      9     Wamser, 652 P.2d at 103.  



      10    See Alaska Pub. Def. Agency v. Superior Court, Third Judicial Dist., Anchorage, 343  



P.3d 914, 915 (Alaska App. 2015) (explaining difference between co-counsel status where  

                                                                   

the  defendant  remains  represented  by counsel  and  situations  where  defendant  has  fully  

                                                                                                                                

waived his right of representation and is representing himself, either with or without the  

assistance of stand-by counsel).  



                                                                       -  12 -                                                                 2578
  


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

that it was reversible error for the court to conduct a playback without defense counsel                                                                    



 in a forty-five minute period of time during which defense counsel had previously                                                                    



                                                                                              11  

notified the court that he would be unavailable.                                                                                                                       

                                                                                                    We declined to find invited error in  



                                                                    

Blair, and we similarly find none here.  



                                                                                                                                                        

              Was the ex parte communication with the jury outside the presence of the  

                                                                                                             

              defense attorney harmless beyond a reasonable doubt?  



                                                                                                                                                              

                           When a trial court engages in ex parte communications with a jury during  



                                                                                                                                             

jury deliberations, the State bears the burden of showing that the ex parte communication  



                                                                                        12  

                                                                                                                                                                        

was  harmless  beyond  a  reasonable  doubt.                                                   Whether  error  is  harmless  beyond  a  



                                                                                                                                                     

reasonable doubt in this context requires a determination of whether there is a reasonable  



                                                                                                                                                               

possibility that defense counsel's presence could have had an impact on the jury's  



                                         13  

                                                                                                                                                           

 deliberative process.                       As prior case law explains, the focus of the inquiry is on whether  



                                                                                                                                                            

the  defense  counsel  might  have  influenced  the  nature  and  content  of  the  court's  



                                                                                                                                             

 communication with the jury, rather than on whether the content of the communication  



                                                                                                                                                            14  

                                                                                                                                         

that was made without the defense attorney's participation was itself improper. 



                                                                                                                                                                    

                           We  have  previously  found  harmless  error  in  circumstances  where  the  



                                                                                                                                                                    

judge's ex parte communications to the jury contained no substantiveinformation -that  



                                                                                                                                                                

 is, where the judge's communication could not have had any possible effect on the jury's  



       11    Blair v. State, 42 P.3d 1152, 1153-54 (Alaska App. 2002).  



       12     See Wamser, 652 P.2d at 103; Dixon, 605 P.2d at 884; State v. Hannagan, 559 P.2d  



 1059, 1065 (Alaska 1977); Chapman v. California, 386 U.S. 18, 23-24 (1967).  



       13     Wamser, 652 P.2d at 103; Dixon, 605 P.2d at 884.  



       14     See Jones, 719 P.2d at 267; see also Raphael v. State, 994 P.2d 1004, 1013 (Alaska  



2000).  



                                                                                -  13 -                                                                          2578
  


----------------------- Page 14-----------------------

                                    15  

deliberations.                           The State argues that this was the situation here, particularly with regard                                                                                            



to Count VI - the third-degree assault conviction based on Cunningham pointing his  



rifle at Sergeant Agner.                   



                                   We agree with the State that the ex parte communication with the jury at     



the 4:48 p.m. hearing was harmless beyond a reasonable doubt with regard to the jury's                                                                                                                           



guilty verdict on this count.                                           The State's evidence on this count was particularly strong.                                                                                                



More importantly, the record clearly indicates that the jury reached its guilty verdict on                                                                                                                                



Count VI during the first day of its deliberations.                                                                               When the trial court took the jury's                                           



verdicts on the second day of deliberations, the court noted that some of the verdicts                                                                                                                     



                                                                                                                                                                                                             16  

(including   the guilty verdict on Count VI)                                                                         had   been   signed   the day                                        before.                    The  



                                                                                                                                                                                                   

foreperson confirmed that the jury had reached those verdicts the previous day.  



                                                                                                                                                                                                                 

                                   The other jury communications in the case further confirm that the jury's  



                                                                                                                                                                                                                          

struggles were not over Count VI. As already explained, the jury informed the court on  



                                                                                                                                                                                                                       

the second day of deliberations that it had reached verdicts on some of the counts but that  



                                                                                                                                                                                                                             

it was struggling with one count in particular.  Later that day, the jury announced that it  



                                                                                                                                                                                                                      

had reached a final verdict on all counts but the one on which it was hung. After the jury  



                                                                                                                                                                                                           

was returned to the courtroom to discuss the options presented at the 4:48 p.m. hearing,  



                                                                                                                                                       

the jury sent another note asking if its verdicts on Counts I-V (the third-degree assault  



         15      See, e.g., Crouse v. Anchorage, 79 P.3d 660, 664-65 (Alaska App. 2003) (harmless  



error when defendant was not notified of jury's note requesting an additional verdict form);  

                                                                                                      

see also Hoffman v. State, 950 P.2d 141, 145-46 (Alaska 1997) (harmless error when judge  

responded to a playback request with logistical considerations and defendant had previously  

waived presence for playbacks).  



         16      The verdict forms for Counts VI (third-degree assault against Sergeant Agner), VIII  



(refusal to submit to a chemical test), X (fifth-degree criminal mischief), and XI (fifth-degree  

criminal mischief) were signed on the first day.  



                                                                                                         -  14 -                                                                                                   2578
  


----------------------- Page 15-----------------------

charges  involving  the  other  officers  and  the  gunshots  from the  vehicle)  had  to  be  

                                                                                                                                 



consistent, indicating that the hung count was one of those charges.  

                                                                                           



                    Given this record, we agree that the State has met its burden of showing that  

                                                                                                                                



there is no reasonable possibility that the ex parte communications that occurred at the  

                                                                                                                                



4:48  p.m. hearing and in the 5:10 p.m. written note could have affected the jury's  

                                                                                                                           



deliberations  on  Count  VI,  a  count  on  which  it  was  clearly  no  longer  actively  

                                                                                                                        



deliberating.  



                    We reach the opposite conclusion, however, with regard to the jury's guilty  

                                                                                                                            



verdict on Count V.  As already noted, the jury's 5:05 p.m. note indicates that the jury  

                                                                                                    



was hung on one of the first five counts (Counts I-V).   The jury broke through its  

                                                                                                                                 



deadlock on the last remaining count only after the 4:48 p.m. ex parte hearing and only  

                                                                                                                              



after the jury was instructed that its verdicts on Counts I-V did not need to be consistent.  

                                                                                                                                      



When the verdicts were finally announced, the jury's verdict on Count V (the count  

                                                                                                                            



involving Officer Pitta-Rosse) was not consistent with the verdicts on Counts I-IV.  

                                                                                                                        



                    The record is also clear that the jury had been struggling with this same  

                                                                                                                                      



count for some time and that the court was already prepared for the fact that it might not  

                                                                                                                                



be able to reach a verdict on that count.   Indeed, the court specifically noted to the  

                                                                                                                                



prosecutor  at  the  4:48  p.m.  hearing  that  it  was  "getting  the  feeling"  that  further  

                                                                                                                          



deliberation would not be helpful - a feeling that was seemingly confirmed by the  

                                                                                                         



foreperson's later announcement that the jury was "hopelessly deadlocked" on that final  

                                                                                                                              



count.  



                    Given this record, we conclude that there is a reasonable possibility that the  

                                                                                                                                



defense attorney's participation in the 4:48 p.m. hearing might have had an impact on the  

                                                                                                                                



nature  of  the  court's  communication  with  the  jury  and  the  outcome  of  the  jury's  

                                                                                                                           



deliberative process.  Among other things, the defense attorney could have convinced  

                                                                                                             



the court to accept at face value the jury's declaration that it was now "hopelessly  

                                                                                                                  



                                                              -  15 -                                                       2578
  


----------------------- Page 16-----------------------

 deadlocked," and to declare a mistrial on that count and allow the other ten verdicts to                                                                                                                                      



 be taken.   



                                    Instead,   because   the   4:48   p.m.   hearing   was   held  without   the   defense  



 attorney's input, the judge responded to the jury's announcement that it was "hopelessly                                                                                                             



 deadlocked" by directly encouraging the jurors to continue to deliberate on that count                                                                                                                              



 despite their apparent deadlock, and by telling the jury that if they could not reach a                                                                                                                                         



 verdict that day, the judge preferred to make them return on Sunday - because that fit                                                                                                                                        



 his   schedule   better.     The   judge's   response   may   have   put   pressure   on   the jurors                                                                                                                        to  



 compromise their individual viewpoints and to agree to a verdict on that last count, rather                                                                                                                          



                                                                                                                                                                17  

 than face the burden of having to return to court on a Sunday.                                                                                                                                                         

                                                                                                                                                                       This pressure may have  



                                                                                                                                                                                            

 alsobeen further compounded by thejudge'ssubsequentexpartewritten communication  



                                                                                                                                                                                                                            

 with the jury, which sua sponte instructed the jury (without notice to the parties) that the  



                                                                                                                                                                                          

jury should try "to reach verdicts on those counts that they are able to so."  



                                                                                                                                                                                                                          

                                    Thus, becausethereis areasonablepossibility that thedefenseattorney may  



                                                                                                                                                                                                                    

 have  been  able  to  influence  the  outcome  of  the  4:48  p.m.  hearing  and  the  jury's  



                                                                                                                                                                                                                  

 deliberations on Count V, we conclude that the court's decision not to wait the twenty  



                                                                                                                                                                                                                        

 minutes  that  it  would  have  taken  to  secure  the  defense  attorney's  presence  was  



                                                                                                                                                                                                                                       

 constitutional error that was not harmless beyond a reasonable doubt as to that count.  



                                                                                                         

 Reversal of that conviction is therefore required.  



                                                                                                                                                                                                                       

                                    We take this opportunity to remind trial judges of the risks of any ex parte  



                                                                                                                                                                                                                            

 communications with the jury.  We also remind judges that communications from the  



          17      See Fields v. State, 487 P.2d 831, 838-43 (Alaska 1971) (prohibiting courts from   



 instructing juries that have declared themselves to be hung with coercive language that might  

 "place the holders of a minority viewpoint in a vulnerable position" or that might pressure   

 the jurors to reach a conclusion on something other than the "evidence and argument in open  

 court") (internal citations omitted).  



                                                                                                           -  16 -                                                                                                     2578
  


----------------------- Page 17-----------------------

jury should, in most instances, be handled formally and should be properly memorialized                                                                                                                                                                                 



 in the record.  Lastly, trial judges should be mindful that the parties should be notified                                                                                                                                  



 of any requests for playbacks unless they waive their right to notice, and that any waiver                                                                                                                                                                                                      

 of that right should take place on the record.                                                                                                                      18  



                         Conclusion  



                                                                                                                                                                                                                                                                             

                                                 Cunningham's conviction on Count V is REVERSED.  The judgment of  



                                                                                                                 

 the superior court is otherwise AFFIRMED.  



             18          Dixon, 605 P.2d at 884-89; Hoffman, 950 P.2d at 145-46.  



                                                                                                                                                   -  17 -                                                                                                                                            2578  

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