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Coffin v. State (5/4/2018) ap-2598

Coffin v. State (5/4/2018) ap-2598

                                                    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  



JERRY L. COFFIN,  

                                                                   Court of Appeals No. A-11878  

                                   Appellant,                     Trial Court No. 2KB-13-379 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                          No. 2598 - May 4, 2018  



                  Ap                 

                      peal  from  the  Superior  Court,  Second  Judicial  District,  

                  Kotzebue, Paul A. Roetman, Judge.  



                  Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals  

                                      

                  and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                  Advocate, Anchorage, for the Appellant.  Eric A. Ringsmuth,  

                                                                         

                  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.  



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



Constitution and Administrative Rule 24(d).  


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

                         Jerry L. Coffin was charged with third-degree sexual assault and first-                                                        



                                    1  

 degree harassment.                                                                                                                                      

                                      When the jury retired to deliberate on these charges at Coffin's trial,  



                                                                                                                                                          

the trial court excused, but did not discharge, the one remaining alternate juror.  The  



                                                                                                                                                    

 court also instructed the alternate juror that he should not discuss the case with anyone  



                                                                                                                                                       

because he could still be recalled to serve on the jury if one of the regularly seated jurors  



                                                                                                                                                 

became sick or otherwise unavailable to serve. This procedure violated Alaska Criminal  



                                                                                                                                                      

Rule 24(b), which requires the trial court to discharge any remaining alternate jurors  



                                                                                  2  

                                                                                                                                                           

 once the jury retires to consider its verdict.                                        However, neither party objected to the  



                                                               

judge's retention of the alternate juror.  



                                                                                                                                                            

                         After  approximately  three  and  one-half  hours  on  the  first  day  of  



                                                                                                                                                              

 deliberations, the jury's deliberations were suspended because one of the jurors had to  



                                                                                                                                                  

 address child care issues.  By the time that first juror returned, a different juror required  



                                                                                                                                                              

 emergency medical care.  Deliberations were therefore suspended for the remainder of  



                                                                                                                                     

the day and the jury was sent home with instructions to return the next morning.  



                                                                                                                                    

                         Because the second juror's medical issues had not been resolved by the  



                                                                                                                                              

 following morning, the trial court summoned the alternate juror to court and confirmed  



                                                                                                                                         

that the alternate juror was still available to deliberate.   The trial court subsequently  



                                                                                                                                                          

 excused the juror who was ill, and replaced that juror with the alternate juror.  The trial  



                                                                                                                                       

 court  also  instructed  the  newly  reconstituted  jury  to  "reboot"  and  "restart  their  



                                                                                                                                                                   

 deliberations" because the alternate juror had not been part of its earlier deliberations.  



       1     AS 11.41.425(a)(1)(B) & (C) and AS 11.61.118(a)(2), respectively.  



       2     See   Alaska R. Crim. P. 24(b)(2)(A) ("An alternate juror who does not replace a   



regular juror shall  be discharged after the jury retires to consider its verdict.") (emphasis   

 added);  Alaska  R.  Crim.  P.  24(b)(2)(B)  ("The  jurors  selected  for  elimination   shall   be  

 discharged after the jury retires to consider its verdict.") (emphasis added).   



                                                                            - 2 -                                                                      2598
  


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

Again, neither party objected to this procedure or voiced any concerns with the court's                                                                                                                                                                                                                                            



instructions.  



                                                      After   the newly                                                    reconstituted   jury retired                                                                                  to   deliberate, the trial judge                                                              



commented to both attorneys (outside the presence of the jury) that he was sure that                                                                                                                                                                                                                                                           



neither of the attorneys "would like to redo [this trial] again, so ... ."                                                                                                                                                                                                                              The defense   



attorney responded, "Right." The judge also noted that this was the first time that he had                                                                                                                                                                                                                                                       



had to use this procedure, and he was glad that it had worked.                                                                                                                                                            



                                                      Later that day, after approximately five hours of deliberations, the jury                                                                                                                                                                                                               



returned a guilty verdict on the third-degree sexual assault charge.                                                                                                                                                                                                              However, the jury                                           



was not able to reach a verdict on the first-degree harassment charge, and that charge was                                                                                                                                                                                                                                                      



later dismissed by the State.                                                             



                                                      Coffin now appeals, claiming that the trial court committed plain error                                                                                                                                                                                                             



when it replaced a regularly seated juror with an alternate juror after deliberations in the                                                                                                                                                                                                                                                       



case had already begun.                                              



                                                      Coffin is correct that the procedures used in this case were improper under                                                                                                                                                                                                       



Alaska law. We addressed this very issue in                                                                                                                                      Plate v. State                                        , a case in which the trial judge                                                                 



substituted an alternate juror for a regularly seated juror who had died after the first day                                                                                                                                                                                                                                                     



                                                                    3  

of deliberations.                                                                                                                                                                                                                                                                                                                                

                                                                               In Plate,  we held  that "Alaska Criminal  Rule 24(b)(2)  does not  



                                                                                                                                                                                                                                                                                                                                         

authorize  a  trial  judge  to  substitute  an  alternate  juror  for  a  regular  juror  once  



                                                                                                             4 

                                                                                                                                                                                                                                                                                            

deliberations have begun."   We also concluded that the trial court in Plate committed  



                                                                                                                                                                                                                                                                                                                    

reversible  error  when  it  authorized  such  a  substitution  over  the  defense  attorney's  

objection.5  



              3            Plate v. State, 925 P.2d 1057, 1059 (Alaska App. 1996).  



              4            Id. at 1061.  



              5            Id. at 1061-62.  



                                                                                                                                                                      - 3 -                                                                                                                                                                2598
  


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

                           We also made clear in                         Plate, however, that we were not deciding whether                                       



all violations of Rule 24(b)(2) would necessarily result in a deprivation of due process                                                                          



                                                                                                                                                  6  

or infringement of the defendant's constitutional right to a jury trial.                                                                                                 

                                                                                                                                                       Instead, our  



                                                                                                                                                                    

decision to reverse Plate's conviction rested on the particular facts of that case, which  



                                                                                                                                                                             

included the defense attorney's objection to the procedure and the trial court's failure to  



                                                                     7  

                                               

use proper procedural safeguards. 



                                                                                                                                          

                           Thus, Plate did not answer the question presented by the present case -  



                                                                                                                                                                       

whether a violation of Rule 24(b)(2) that is not objected to by the defense attorney (and,  



                                                                                                                                                              

arguably, tacitly agreed to by the defense attorney) constitutes plain error requiring  



                                                        

reversal of the defendant's conviction.  



                                                                                                                                                                           

                           At the time we decided Plate, our analysis was informed by the fact that the  



                                                                                                                                               8  

                                                                                                                                                                     

                                                                                                                                                  We also noted,  

federal courts had a criminal rule similar to our Criminal Rule 24(b)(2). 



                                                                                                                                                         

however, that Colorado had recently amended their criminal rules to allow substitution  



                                                                                                                                                                       

of  an  alternate  juror  after   deliberations  had  started,  and  we  commented  that  



                                                                                                                                                 9  

                                                                                                                  

"[p]resumably Colorado believes that this procedure is constitutional." 



                                                                                                                                                             

                           Three years after we issued Plate, the Federal Rules of Criminal Procedure  



                                                                                                                                         10  

                                                                                                                                                                            

were also amended to allow such mid-deliberation substitutions.                                                                                Federal Rule of  



                                                                                                            

Criminal Procedure 24(c) now provides, in relevant part:  



       6     Id. at 1061-62.  



       7     Id.  



       8     Id. at 1060 (citing former Fed. R. Crim. P. 24(c)).  



       9     Id. at 1061-62 (citing Colo. R. Crim. P. 24(e)).  



       10     Fed. R. Crim. P. 24(c), advisory committee's notes to the 1999 amendment.  



                                                                                   - 4 -                                                                              2598
  


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

                    The court may retain alternate jurors after the jury retires to  

                                                                                                   

                    deliberate.  The court must ensure that a retained alternate  

                                                                                                   

                    does not discuss the case with anyone until that alternate  

                                                                                                               

                    replaces a juror or is discharged.  If an alternate replaces a  

                                                                                             

                    juror after deliberations have begun, the court must instruct  

                                                                         

                    the jury to begin its deliberations anew.  



                                                                                                                             

A growing number of states have likewise amended their criminal rules to allow mid- 



                                        11  

                    

deliberation substitutions. 



                    Indeed, according to LaFave, asignificant number of states now allow mid- 

                                                                                                                              



deliberation substitutions provided that (1) the alternate juror had not "been relieved of  

                                                                                                                                  



the obligations of a juror or otherwise become tainted [prior to the substitution]," and (2)  

                                                                                                                                



the reconstituted jury is "carefully instructed to begin its deliberations anew when its  

                                                                                                                                 

composition changed."12  

                     



                                                                                                                              

                    Here, the record shows that both of these procedural safeguards were met.  



                                                                                                                              

The superior court excused, but did not discharge, the alternate juror when the jury  



                                                                                                                                

retired to deliberate the first time.  The superior court also specifically instructed the  



                                                                                                                            

alternate juror that he was not to discuss the case, and that his service on the jury might  



                                                                                                                       

still be needed if one of the regular jurors became unavailable to serve.  In addition,  



                                                                                                                         

when the superior court later substituted the alternate juror for the juror who had become  



                                                                                                    

ill, the court directly instructed the newly reconstituted jury that they were required to  



                                                                                                                               

"reboot" and to restart their deliberations anew.  The record also indicates that the jury  



                                                                                                                           

did so - deliberating for a number of hours before it returned its verdict in this case.  



     11   See, e.g., Ark. R. Crim. P. 32.3; Conn. Gen. Stat. Ann.  54-82h (West 2018); N.H.  



                                                                                                                                

Rev. Stat. Ann.  500-A:13, V (2018); Ohio Crim. R. 24(G)(1); Pa. R. Crim. P. 645.  See  

                                                                                     

generally 6 Wayne R. LaFave et al., Criminal Procedure  22.3(e), at 178 & n.300 (4th ed.  

2015).  



     12   6 Wayne R. LaFave et al., Criminal Procedure  22.3(e), at 179 (4th ed. 2015).  



                                                              -  5 -                                                        2598
  


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

                              On appeal, Coffin argues that the trial court should have engaged in the                                                                                     



 additional inquiries mentioned in                                         Plate.   That is, the trial court could have conducted a                                                            



more lengthy inquiry of the alternate juror regarding his compliance with the court's                                                                                             



 instructions, and the trial court could have asked the other jurors if they believed that                                                                                               



they would be able to set aside any opinions that had been formed during the earlier                                                                                               

 deliberations.13  



                                                                                                                                                                                

                              Although it might have been better practice for the trial court to conduct  



                                                                                                                                                                              

these additional inquiries, we do not agree that the absence of such additional inquiries  



                                                                                                                                                                                            

 creates reversible error in this case.  We note that the defense attorney was given an  



                                                                                                                                                                                             

 opportunity to object to the trial court's instructions and to conduct his own inquiry of  



                                                                                                                                                                                            

the jurors.  His failure to request any further action from the trial court indicates that he  



                                                                                                                                                                            

 did not view the instructions as inadequate under the circumstances as they presented  



                                         

themselves at the time.  



                                                                                                                                                                                           

                              Nor do we find any reason to believe that the newly reconstituted jury did  



                                                                                                                                                                                           

not follow the instructions that they were given.  On appeal, Coffin points out that the  



                                                                                                                                                                                           

jury asked a question about the definition of "harassment" only a short time after the  



                                                                                                                                                                               

 alternate juror joined the jury.   From this, he speculates that the jury never actually  



                                                                                                                                                                         

 "rebooted" their deliberations on the third-degree sexual assault charge on which they  



                                                                                                                             

ultimately convicted Coffin.  But the jury continued to deliberate for many hours after  



                                                                                                                                                                                  

they asked their question about the harassment charge, and we see no reason to believe  



                                                                                                                                                                                      

that they confined their deliberations to only one of the two charges.  Nor do we agree  



                                                                                                                                                                                         

with Coffin that the reconstituted jury's deliberations were suspiciously brief. This was  



                                                                                                                                                                                        

 a relatively simple trial that took less than  two days to try and involved only four  



        13     Plate, 925 P.2d at 1061 (citing People v. Burnette, 775 P.2d 583, 590-591 (Colo.  



 1989)).  



                                                                                            -  6 -                                                                                    2598
  


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

prosecution   witnesses   and   no  defense   witnesses.     As   a   general   matter,   jurors   are  



presumed to follow the instructions that they are given, and we find no reason to question                                                     

that presumption here.                   14  



                                                                                                                                                     

                        In sum, given the procedural safeguards utilized by the judge in this case,  



                                                                                                                                                       

the  defense  attorney's  acquiescence  in  the  mid-deliberation  substitution,  and  the  



                                                                                                                                                        

widespread  acceptance  of  this  practice  in  other  jurisdictions,  we  conclude  that  the  



                                                                                                                                                   

substitution of the alternate juror for a regular juror after deliberations had already begun  



                                                                                                                                                    

- although improper under Alaska law - did not violate Coffin's constitutional rights  



                                                                                                                                        15  

                                                                                                                                             

and did not constitute plain error requiring reversal of Coffin's conviction. 



            Conclusion  



                                                                                              

                        The judgment of the superior court is AFFIRMED.  



      14     Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).  



      15    See  Adams  v.  State,  261  P.3d  758,  764  (Alaska  2011)  (describing  plain   error  as  



"involv[ing] such egregious conduct as to 'undermine the fundamental fairness of the trial  

and contribute to a miscarriage of justice.'") (internal citations omitted).  



                                                                           -  7 -                                                                    2598  

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