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Alaska v. Shewfelt (11/21/97), 948 P 2d 470
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, ) Supreme Court No. S-7609
Petitioner, ) Court of Appeals No. A-6076
v. ) Superior Court No.
) 4FA-S91-1905 CR
PAUL SHEWFELT, )
) O P I N I O N
______________________________) [No. 4908 - November 21, 1997]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on appeal from the Superior Court of the
State of Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: W. H. Hawley, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. J. John Franich, Assistant Public Advocate,
Fairbanks, and Brant McGee, Public Advocate, Anchorage, for
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Fabe, Justices. [Bryner, Justice, not participating.]
Paul Shewfelt, a criminal defendant, was not notified
before the jury in his trial listened to a playback of certain
recorded testimony. The superior court granted Shewfelt's motion
for a new trial, and the court of appeals declined review. We
granted the State's petition for review and now reverse the
superior court's decision.
II. FACTS AND PROCEEDINGS
In November 1991 a Fort Yukon jury convicted Shewfelt of
first degree sexual assault. While the jury was deliberating, it
requested to rehear the entire testimony of the victim and
Shewfelt. Superior Court Judge Jay Hodges permitted the in-court
clerk to play for the jury those portions of the trial court's
tapes of the proceedings.
Following his conviction, Shewfelt filed an application
for post-conviction relief alleging ineffective assistance of
counsel. During the hearing relating to that motion, Shewfelt
testified that he did not know until after the trial that the jury
had listened to a playback of trial testimony while it was
deliberating. After reviewing tapes of the 1991 trial proceedings,
Judge Hodges concluded that he had not advised Shewfelt on the
record about the jury's request.
Based upon Judge Hodges's conclusion, Shewfelt filed a
motion for a new trial, and Judge Hodges conducted a hearing on
December 2, 1993. At that hearing, the parties stipulated that
if the in[-]court clerk were called to testify
concerning the replay of the testimony of Mr. Shewfelt, and the
victim in the case, she would testify that she recalls playing the
testimony for jurors in Fort Yukon in the courtroom, and played the
testimony of each witness all the way through once, and if there
were requests to hear certain portions over again, she would have
Judge Hodges found "no evidence to show that Mr. Shewfelt was
notified of the request for the replay, or that he knew of the
replay until after the verdict had been returned." Although he
concluded that the failure to notify Shewfelt was error, he
determined that because the in-court clerk followed "the normal
practice"in replaying testimony, the error was harmless beyond a
reasonable doubt. Therefore, Judge Hodges denied Shewfelt's motion
for a new trial.
The court of appeals reversed and remanded Judge Hodges's
decision. After noting that "Judge Hodges based his ruling on the
parties' stipulation as to what the in-court clerk's testimony
would be,"it concluded that "there was an insufficient record for
Judge Hodges's conclusion that Shewfelt was not prejudiced."
On remand, Judge Hodges conducted an evidentiary hearing.
At the end of this hearing, he determined that Shewfelt's attorney
and the prosecutor had been informed of the replay request. He
also found that there was nothing "improper with the replay of the
testimony"and that "there were no improper communications with the
jurors from the court, the in-court clerk or any other person
during the replay of the testimony"based upon the stipulated
testimony of the in-court clerk. Nevertheless, Judge Hodges
concluded that the State had not satisfied its burden of proving
any error was harmless beyond a reasonable doubt because "the mere
presence of Mr. Shewfelt present during the replay of testimony .
. . certainly may have had an effect on the outcome." Therefore,
the trial court granted Shewfelt's motion for a new trial.
A divided court of appeals declined to review Judge
Hodges's decision, and we granted the State's petition for review.
A. Standard of Review
We have never expressly stated the standard for reviewing
a trial court's decision that an error was harmless beyond a
reasonable doubt. However, in cases involving juries' playback
requests, we have reviewed such decisions without deference to the
trial court. See, e.g., State v. Hannagan, 559 P.2d 1059, 1065-66
(Alaska 1977). Based upon Hannagan, we will independently review
the record to determine whether the State has satisfied its burden
of proving that the alleged error was harmless beyond a reasonable
In examining this issue, we must determine whether the
superior court erred in reaching certain factual findings based
upon the stipulated testimony of the in-court clerk. We review a
trial court's factual findings under the clearly erroneous
standard. See Vokacek v. Vokacek, 933 P.2d 544, 547 (Alaska 1997).
We will find clear error only "when we are left with a definite and
firm conviction on the entire record that a mistake has been made."
Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979).
B. Judge Hodges's Failure to Notify Shewfelt of the Playback
Request and Shewfelt's Subsequent Absence from the Playback Were
Harmless beyond a Reasonable Doubt.
The primary issue in this case is whether any error
relating to Shewfelt's absence from the playback was harmless
beyond a reasonable doubt. We agree with the State that our
decision in State v. Hannagan, 559 P.2d 1059 (Alaska 1977)
Hannagan demanded a new trial because he had not been
notified of the jury's request for a playback of certain testimony.
[Fn. 1] Hannagan, 559 P.2d at 1066. He did not claim that any
improper conduct occurred during the playback proceedings or that
it was error for the trial court to have replayed the requested
testimony. Id. Therefore, the court examined only whether
Hannagan's absence alone reasonably might have had a prejudicial
psychological effect on the jury. Id.
In arguing that Hannagan controls, the State asserts that
no improper conduct occurred during the playback proceedings.
Because no record of these proceedings exists, the State apparently
bases its assertion on Shewfelt's stipulation that the in-court
clerk followed "the normal procedure."
The relevant portion of the December 2, 1993 hearing
THE COURT: I spoke to the in[-]court clerk,
and she confirmed that, in fact, testimony was played. So, do
counsel want to call her, to test -- have her testify about that,
we can have her testify. Otherwise, she confirmed with me that she
recalls playing the testimony, and she recalled -- her recollection
is that she would have played the testimony all the way through
once, and -- and then, if they wanted additional portions, would
have done that. So, that's what she -- I mean, I had a brief
conversation with her awhile ago.
MR. O'BRYANT: The State's willing to stipulate
to that as fact, Your Honor.
MR. HACKETT: So is the defense, Your Honor.
THE COURT: All right. It's stipulated, then,
that if the in[-]court clerk were called to testify concerning the
replay of the testimony of Mr. Shewfelt, and the victim in the
case, she would testify that she recalls playing the testimony for
the jurors in Fort Yukon in the courtroom, and played the testimony
of each witness all the way through once, and if there were
requests to hear certain portions over again, she would have done
that. And I -- I didn't specifically ask her about that portion of
it, so I -- she may or may not have done.
MR. HACKETT: Well, our understanding is that
it -- according to Mister. . . .
THE COURT: According -- according to the
affidavits that have been filed, or the -- whatever, that was done.
I did not specifically discuss that with the in[-]court clerk.
But, that wa -- the normal procedure would have been followed --
or, the procedure that's generally followed in Fairbanks would have
been followed in connection with a replay of the testimony. The
parties will stipulate to that.
MR. HACKETT: Yes.
At the conclusion of the hearing on remand, the superior court
relied on this stipulation in finding that there were no improper
communications during the playback proceedings:
With respect to the replay of testimony, based
on the stipulation of the in -- of the testimony of the in-court
clerk -- was called to testify, it was done at the previous
hearing, the nor -- the, quote, normal practice was followed in
. . . .
The court does not find and specifically finds
there were no improper communications with the jurors from the
court, the in-court clerk or any other person during the replay of
the testimony. Even though there was no record to that effect, the
stipulation of the testimony of the in-court clerk reflects and
lea[d]s the court to conclude this fact.
Upon reviewing the record, we are not left with a
"definite and firm conviction"that the superior court erred when,
based on the stipulated testimony that the in-court clerk followed
the "normal practice,"it concluded that no improper communications
occurred during the playback proceedings.
Having concluded that the superior court did not clearly
err when it made this finding, we turn, as we did in Hannagan, 559
P.2d at 1066, to whether Shewfelt's absence alone may have had a
prejudicial psychological effect on the jury. At the hearing on
remand, the superior court apparently analyzed this issue by
focusing on whether Shewfelt's presence might have had an effect
that would have benefitted him.
We conclude that this analytical framework is
inconsistent with our decision in Hannagan. In that case, we
concluded that there was no prejudicial psychological effect
because statements by the parties' attorneys and the judge in the
jury's presence made it "sufficiently clear . . . that Mr. Hannagan
had not absconded from the jurisdiction or defied an order of the
court, to be present so as to create an unfavorable impression to
the jury." Hannagan, 559 P.2d at 1066. Thus, we examined whether
Hannagan's absence created an unfavorable impression, not whether
Hannagan's presence might have produced a favorable effect. [Fn. 2]
With this understanding of Hannagan, we conclude that the
facts of this case pose even less risk of negative psychological
effects than the facts of Hannagan. In Hannagan the judge and both
counsel were present when the in-court clerk replayed the requested
testimony for the jury. 559 P.2d at 1061, 1066. In this case,
only the in-court clerk and the jurors attended the playback.
Nothing suggested that it was unusual for Shewfelt to be absent.
We therefore conclude that the trial court's failure to notify
Shewfelt of the playback request and Shewfelt's subsequent absence
from the playback were harmless beyond a reasonable doubt.
We conclude that the superior court did not clearly err
in finding that all communications during the playback proceedings
were proper. We also determine that error resulting from the
failure to notify Shewfelt personally of the jury's playback
request was harmless beyond a reasonable doubt. Therefore, we
REVERSE the superior court's decision granting Shewfelt a new trial
and REMAND this case with directions to reinstate Shewfelt's
His attorney, who was present during the playback, attempted
to waive Hannagan's right to be present. We concluded that the
waiver was not valid because Hannagan had not expressly authorized
his attorney to waive his right to attend the playback. Hannagan,
559 P.2d at 1065.
Moreover, focusing on whether a defendant's presence at a
playback might have benefitted the defendant would make it very
difficult, if not impossible, for the State to prove harmless
error. A defendant's presence arguably could have an advantageous
psychological effect in any case, not just in those such as
Shewfelt's where the defendant likely knows the jurors. Thus, even
if the State carefully conducted all playback proceedings on the
record, a party might still successfully obtain a new trial by
simply alleging that such beneficial effects would have occurred
had the party been present during the playback. Because jurors'
psychological states cannot be recorded, focusing on potential
benefits to the defendant might be tantamount to creating a rule
that a defendant's absence from a playback is a per se reversible
error. We consistently have declined to adopt such a rule. See
Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); Cox v. State, 575
P.2d 297, 300 (Alaska 1978).