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Raphael v. State (1/7/00) sp-5229

     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
                                 

WILFRED RAPHAEL,              )
                              )    Supreme Court No. S-8645
             Petitioner,      )    Court of Appeals No. A-6316
                              )
     v.                       )    Superior Court No.
                              )    4BE-S95-585 CR
STATE OF ALASKA,              )
                              )    O P I N I O N
             Respondent.      )
______________________________)    [No. 5229 - January 7, 2000]




          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Fourth
Judicial District, Bethel,
                      Dale O. Curda, Judge.


          Appearances: James T. LaVecchia, Kenai, for
Petitioner.  Kenneth M. Rosenstein, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Respondent.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          FABE, Justice.
          EASTAUGH, Justice, with whom CARPENETI,
Justice, joins, dissenting.


I.   INTRODUCTION
          The prosecutor in Wilfred Raphael's assault and
kidnapping trial told the trial judge at an ex parte hearing that
the complaining witness, I.W., was likely to recant, was
intoxicated, and should be incarcerated until she testified. 
Without first notifying Raphael or his attorney of the prosecutor's
claims, the trial judge granted the prosecutor's request, jailing
I.W. and placing her children in protective custody.  Raphael
claims that the trial court denied his right to due process because
of the potentially coercive effect of I.W.'s treatment on her
testimony and his right to be present at the hearing.  We agree and
thus reverse Raphael's conviction and remand for a new trial. 
II.  FACTS AND PROCEEDINGS
          Wilfred Raphael was indicted in November 1994 on charges
of kidnapping and assaulting the woman with whom he lived, I.W. 
His trial began on August 28, 1995 and proceeded through the
beginning of September.  I.W. had testified before the grand jury,
and the state subpoenaed her to testify at trial in Bethel.  The
prosecutor picked up I.W. from the Bethel airport and arranged for
her and her two children to stay at a local shelter, Pacifica
House, pending her testimony.  The prosecutor instructed I.W. to
remain sober and to restrict herself to Pacifica House during the
trial.
          On September 5, 1995, during a recess in trial due to the
defense attorney's illness, the prosecutor appeared before the
trial judge, Superior Court Judge Dale O. Curda, outside the
presence of Raphael and his attorney, to discuss I.W.'s testimony.
Arguing that I.W. was "a victim who teeters between recanting one
week and testifying about what happened the next"and apparently
concerned that I.W. might not be sober to testify over the next two
days, the prosecutor complained that he was unable to "control"
I.W.  The prosecutor claimed that he "got a call from Pacifica
House"stating that I.W. had been evicted for being intoxicated and
that I.W. was "out in the foyer and [] still intoxicated."  The
prosecutor did not call I.W. or any other witness to support these
factual claims.  He suggested several possible solutions to the
trial court, including incarceration of I.W.
          Without first notifying defense counsel of the problem,
the trial court decided to incarcerate I.W. and place her children
in protective custody until she testified.  The trial judge then
summoned I.W. into the courtroom, questioned her briefly about her
alleged drinking and her children, and informed her of its
decision.  I.W. insisted that she was not intoxicated and pleaded
with the court not to take her children away.  Notwithstanding her
pleas, the court jailed I.W. and told I.W. that it would revisit
the custody issue after her testimony:
          So I'm going to order that you be remanded
into custody on the case, no bail, and you're -- she's not to have
any contact with the defendant in this case.  And she's going to be
-- once the testimony is done, then we'll revisit it.  And she
gives testimony and we'll revisit the case, and presumably let her
-- she'll be able to be released.
          When the trial recommenced two days later, Raphael's
attorney, James Gould, asked the trial court about the "status of
the children and [I.W.]."  In its brief description of the content
of its conversation with I.W., the trial court did not inform Gould
of the hearing, the court's placement of I.W.'s children in
protective custody, the court's directive to I.W. not to have
contact with Raphael, or the court's statement to I.W. that it
would "revisit"the custody issue after her testimony.  Gould did
not make any objection at this point, nor did he object later to
I.W.'s testimony.  I.W. remained in jail for three days, awaiting
her turn to testify.  Moreover, the trial judge did not immediately
release I.W. after she testified.  Although the court permitted her
to sit in the courtroom, I.W. remained in custody until the defense
closed its case.  In her testimony, I.W. described Raphael's
conduct before, during, and after the alleged assault in a manner
that comported with her earlier inculpatory testimony before the
grand jury.
          Raphael appealed his conviction to the court of appeals,
arguing both that the ex parte hearing violated his right to be
present at all trial proceedings under Alaska Criminal Rule 38(a)
and that the treatment of I.W. violated his federal due process
right to a fair trial.  The court of appeals concluded that because
the trial court did not inquire into the substance of I.W.'s
intended testimony at the ex parte hearing, Raphael's presence at
that hearing was not critical and, thus, the hearing did not run
afoul of Rule 38(a).  The court of appeals also reasoned that the
trial court's and State's comments to I.W. could not have
impermissibly influenced her to testify in a certain way.  Finally,
the court of appeals decided that the trial court's actions did not
constitute plain error because Gould's failure to object could have
been a tactical decision based on a prediction that I.W. would be
angry with the State for suggesting her incarceration.
          Raphael petitioned for hearing of the court of appeals's
decision, and we granted his petition.
III. DISCUSSION
     A.   The Trial Court's and State's Treatment of I.W. Violated
Raphael's Right to Due Process. [Fn. 1]

          1.   The ex parte hearing's coercive effect on I.W.'s
testimony violated Raphael's right to due process.

          Raphael maintains that, by summarily incarcerating I.W.
and taking away her children, the trial court and the State coerced
I.W. into testifying against Raphael, thus violating Raphael's
right to due process.
          Statements that are "the product of coercion may be
unreliable and untrustworthy, and thus should be excluded as
evidence against one not coerced into making them."[Fn. 2] 
Although a trial court may use its subpoena power to force a
witness to testify, [Fn. 3] coercion and intimidation of witnesses
by the State is improper. [Fn. 4]  This rule applies to witnesses
for the State as well as the defense. [Fn. 5]
          The State labels Raphael's coercion argument "a desperate
effort to parlay the violation of [I.W.]'s due process rights into
a violation of his own."  But we believe that Raphael has properly
asserted that the State's treatment of I.W. violated his own right
to due process.  More specifically, both our case law and that of
other jurisdictions uniformly recognize a defendant's ability to
assert a due process violation based on the coercion of witnesses
whose statements are used against the defendant at trial. [Fn. 6] 
Thus, even if I.W.'s treatment at the hands of the trial court and
the prosecutor did not in and of itself affect Raphael's rights,
the subsequent use of her testimony against Raphael, if coerced,
would violate Raphael's due process. [Fn. 7]
          To determine whether I.W.'s testimony was coerced, we use
the same standard that we apply to confessions of the accused:
Statements or testimony are not voluntary if they are obtained by
threat or by a direct or implied promise that is sufficiently
compelling to overbear an individual's will in light of all
surrounding circumstances. [Fn. 8]  "[M]ethods offensive when used
against an accused do not magically become any less so when exerted
against a witness."[Fn. 9]  Both mental and physical coercion are
improper tools to elicit testimony; the "blood of the accused [or
witness] is not the only hallmark of an unconstitutional
inquisition."[Fn. 10]  In the end, we consider the totality of the
circumstances surrounding a witness's testimony to determine the
coercive effect of the trial court's and prosecutor's conduct. [Fn.
11]
          Based on a review of the circumstances surrounding I.W.'s
in-court testimony, we believe that the actions and statements of
the trial court were coercive.  We agree with Raphael that the
trial court's near-total denial of I.W.'s due process rights sent
the message that she "was at the mercy of the power of the State"
and that I.W. thus did not feel free to testify unfavorably to the
State.  
          The ex parte hearing in this case involved, in the words
of Judge Mannheimer, "a remarkable deprivation of due process":
[Fn. 12] 
          Without notifying [I.W.] that her liberty was
in jeopardy, and without giving [I.W.] an opportunity to be heard,
or even an opportunity to attend the discussion, the prosecutor and
the judge decided to imprison [I.W.] and temporarily hand her
children over to [DFYS]. . . .

          . . . .

               Except for the fact that the [hearing]
was . . . made a part of the public record[,] . . . it might rival
the infamous proceedings held in the English Court of the Star
Chamber.  "The essence of star chamber procedure is that the
litigants learn of the matter in issue and the judgment thereon
only after the judgment against them is rendered."That is what
happened to [I.W.][ [Fn. 13]]
The trial court denied I.W. nearly all of the basic fundamental
protections that a defendant in a civil contempt proceeding must
receive to comport with due process, including the right to counsel
and the potential right to a jury trial. [Fn. 14]  I.W. had no
friend or advisor present to tell her what the State could or could
not do to her.
          The State contends that the trial court did not discuss
the substance of I.W.'s testimony in her presence and, thus, that
she could not have believed that she had to testify in a certain
way to avoid further incarceration.  But after summoning I.W. into
the courtroom to inform her that she would be incarcerated, the
trial judge conveyed the strong impression that I.W.'s release from
imprisonment was conditioned not only on whether she testified, but
on how she testified as well:  
          The Court:     All right.  Well, I'm going to
find, based on the -- I'm going to find that Ms. [W.] is in
contempt here regarding this, and I'm going to have her remanded. 
She's going to be kept in custody.....

          I.W.:          No.  I don't.....

          The Court:     .....pending testimony in the
above case.  That's the only viable solution I see here for her
protection and for the kids' protection and to have her..... 

          I.W.:          I can take care of my kids.

          The Court:     .....provide testimony here.

          . . . .        

          The Court:     . . . As soon as we're done
with the case, I hope you'll be able to get home and get your kids
and..... 

          I.W.:          I can remain sober.

          The Court:     Well..... 

          I.W.:          Please don't take my kids away
from me.

          The Court:     .....you haven't shown you can.
I mean, the short time you were here, you knew you were supposed
to.....

          I.W.:          I had a babysitter.

          The Court:     .....remain sober.

          I.W.:          I was -- I didn't get
intoxicated, I had a babysitter.

          The Court:     Okay.  You were told you should
remain sober. . . . And I apologize, Ms. [W.], I don't like to do
this to anybody, especially someone with two kids that came into
town.  But you are under subpoena, you had notice of this, you knew
you were supposed to stay sober and you didn't.  So I'm going to
order that you be remanded into custody on the case, no bail, and
you're -- she's not to have any contact with the defendant in this
case.  And she's going to be -- once the testimony is done, then
we'll revisit it.  And she gives testimony and we'll revisit the
case, and presumably let her -- she'll be able to be released.

(Emphasis added.)  If the trial court conditioned I.W.'s
imprisonment solely on her agreement to testify, no need for the
trial court to "revisit"any issue would exist; I.W. would no
longer be in contempt and would be released following her
testimony.  I.W. could have interpreted the trial judge's statement
that he "hope[d]"[I.W.] would be "able to get home and get [her]
kids"after trial as a veiled threat to keep her in jail if her
testimony was not pleasing to the court or the State.
          Even where a witness has flatly refused to testify, a
trial court should condition imprisonment solely on the witness's
continued refusal to testify; once the witness testifies, the
witness is no longer in contempt of court and the justification for
incarceration disappears. [Fn. 15]  In this way, a defendant in a
civil contempt proceeding "carries the key to her freedom in her
own pocket."[Fn. 16]  Here, I.W. did not refuse to testify.  And
even though they were concerned that her intoxication could impede
her ability to testify, by threatening continued incarceration and
by flagrantly ignoring the requirements of due process, the trial
court and the State implied that they held the only key to I.W.'s
freedom and that her sobriety and ability to testify would be
insufficient to regain that freedom.
          Taken in the context of its other remarks to I.W., the
trial court's directive that I.W. was "not to have any contact with
the defendant in this case"also could have indicated to her that
it expected her to testify favorably for the State.  The trial
court did not explain its justification for imposing the no-contact
order on I.W.  Indeed, the source of the court's authority to enter
such an order is unclear.
          The psychological effect of taking away I.W.'s children
without a proper custody hearing was, most likely, even more
coercive than I.W.'s own incarceration. [Fn. 17]  In Lynumn v.
Illinois, [Fn. 18] the United States Supreme Court held that a
defendant's confession was involuntary where the police made
several threats to her as to the consequences of her refusal to
cooperate. [Fn. 19]  The Court took special note of the police's
threat to cut off "state financial aid for her infant children"and
take her children away. [Fn. 20]  Here, the trial court not only
removed I.W.'s children but also did not guarantee the children's
return upon the completion of I.W.'s testimony. [Fn. 21]  I.W.'s
testimony was thus involuntary on this basis as well.
          Our holding in this case does not mean that all testimony
by witnesses incarcerated in civil contempt proceedings is
involuntary.  Incarceration is a necessary remedial tool in a
judge's arsenal when attempting to secure a recalcitrant witness's
testimony.  But in this case I.W. voluntarily appeared in Bethel
and had not violated any court order.  And when a witness can
reasonably interpret a trial court's decision to imprison her as an
attempt to influence the substance of her testimony, as the record
indicates was the case here, the risk that the witness may not
testify freely and truthfully is too great.  As a criminal
defendant, Raphael has a constitutional right under the Due Process
Clause not to bear that risk.
          2.   The due process violation was not harmless beyond a
reasonable doubt.

          A constitutional error is a ground for reversal of
conviction unless the error is "harmless beyond a reasonable
doubt."[Fn. 22]  To determine whether coerced testimony was
harmless, we must "quantitatively assess[] [the testimony] in the
context of other evidence presented in order to determine [its
effect on the trial]."[Fn. 23]  The State claims briefly that
Raphael's attorney's ability to cross-examine I.W. concerning the
ex parte hearing cured any coercive effect on her testimony.  We
disagree.
          The State's argument assumes that Raphael's attorney had
access to all relevant information about the trial court's
treatment of I.W. for purposes of cross-examination.  In fact, when
Raphael's attorney asked the trial court about why I.W. had been
incarcerated, the court related an abbreviated account of what had
happened at the ex parte hearing:
          Mr. Gould:     What is the status of the
children and [I.W.], what's going on with that?

          The Court:     I talked to [I.W.] yesterday,
[and] she was intoxicated.  She had been here less than 24 hours. 
I had held her in contempt and had her remanded pending her
testimony in this case, because I couldn't -- there was no place
else she could go and stay sober.  And I told her I regretfully did
that, and I apologized to her, but I didn't feel like the court had
any choice on that.
          (Whispered conversation)
          The Court:     So as soon as she testifies,
she's going to get out of jail.

          Mr. Gould:     Thank you.
This cursory description did not inform Gould of the existence of
a hearing or a transcript, the no-contact order, or the trial
court's statement that it would "revisit"the child custody and
imprisonment issues after I.W. testified.  Gould could have
reasonably inferred from the trial court's comments that the
hearing had been merely a chance encounter between the trial court
and a witness.  Thus, his ability to cross-examine I.W. effectively
regarding bias was limited at best.
          Moreover, I.W.'s testimony was central to the State's
case against Raphael.  Although the State called several witnesses
other than I.W., their testimony consisted of after-the-fact
details such as descriptions of I.W.'s physical condition after the
alleged assault and I.W.'s location within Raphael's house when
troopers arrived.  Only I.W. testified about Raphael's behavior
before, during, and after the alleged assault.  Thus, this case is
not one in which coerced testimony is harmless because of its
cumulative nature. [Fn. 24]
          Because we conclude that the trial court's and
prosecutor's treatment of I.W. had a coercive effect on her
testimony that was not harmless beyond a reasonable doubt, we hold
that the trial court's violation of Raphael's due process was
reversible error.
     B.   The Trial Court Committed Reversible Error by Conducting
the Hearing Concerning I.W.'s Testimony Outside Raphael's Presence.
[Fn. 25]

          1.   The ex parte hearing violated Raphael's right to be
present under Criminal Rule 38(a).

          As we stated in State v. Hannagan, [Fn. 26] "[t]he right
of an accused to be present at stages of trial has long been
recognized in this country."[Fn. 27]  Generally, after indictment,
"nothing [should] be done in the absence of the prisoner."[Fn. 28] 
In Alaska, a defendant's right to be present stems from the
Confrontation Clause of the Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution, as well as analogous clauses in the Alaska state
constitution. [Fn. 29]
          We have implemented this constitutional right as a
procedural requirement through the adoption of Alaska Criminal Rule
38(a), which provides:
          Presence: Required.  The defendant shall be
          present at the arraignment, at the preliminary
hearing, at the time of plea, at the omnibus hearing, and at every
stage of the trial, including the impaneling of the jury and return
of the verdict, and at the imposition of sentence, except as
otherwise provided in this rule.

The Alaska Court of Appeals has recognized that the right to be
present under Alaska Criminal Rule 38(a) is broader than the right
arising from the federal constitutional guarantees of confrontation
and due process. [Fn. 30]
          We have interpreted the language of Rule 38(a) literally
to secure a defendant's right to be present even at stages of the
trial that are arguably not substantive in nature.  For example, in
State v. Hannagan, [Fn. 31] we held that Rule 38(a) guarantees a
defendant's right to be present when testimony is played back to
the jury, even though no evidence is taken and nothing is litigated
at jury play-backs. [Fn. 32]  Similarly, in Dolchok v. State, [Fn.
33] we held that the protections of Rule 38(a) extended to a pre-
trial conference at which the parties discussed only purely legal
and procedural matters. [Fn. 34]  This expansive scope of
protection reflects the fact that the defendant's presence at all
stages of the trial -- whether or not a particular proceeding has
a direct bearing on the defendant's guilt or innocence -- promotes
the perception and reality of fairness in the trial process. [Fn.
35] 
          Another of our right-of-presence cases, Brown v. State,
[Fn. 36] is particularly instructive because of its similarity to
this case.  In Brown, the defendant claimed that the trial court
violated Rule 38(a) by denying him the right to be present at a
hearing to determine whether his fianc‚ would invoke the spousal
privilege to avoid testifying on his behalf. [Fn. 37]  We held that
the trial court violated Brown's right to be present,
notwithstanding the fact that the hearing was a witness-related
proceeding that could have been held before trial:  
          The state argues that the hearing was not a
"stage of the trial"within the meaning of rule 38 -- that the
hearing could have occurred prior to trial.  This is possible, but
not likely in the usual course of proceedings where subpoenaed
witnesses report to the court.  However, all we are concerned with
here is that the hearing was in fact held during a stage of the
trial reserved for the presentation of evidence for the defense;
that the defendant himself did not waive his right to be present;
that he was in custody and not voluntarily absent; and that his
case may have been prejudiced, in that if he had been present his
wife might not have invoked her privilege.[ [Fn. 38]]
Here, although the ex parte hearing could have theoretically
occurred before trial, it occurred during the State's presentation
of its case and was thus a "stage of the trial."
          The State argues that Brown is inapposite because the
hearing in that case concerned the testimony of a defense witness
and the defendant clearly had an interest in attending the hearing. 
It posits that, in this case, "[t]he only interest Raphael could
have asserted at the hearing was his interest in enabling [I.W.] to
make herself unavailable for trial, either through intoxication or
through absconding."
          This argument ignores Raphael's legitimate interest in
making sure that I.W. was not pressured into testifying favorably
for the State.  Immediately after lamenting that he could not
"control"I.W., the prosecutor offered incarceration and placement
of her children with DFYS as a solution.  He then expressed his
concern about I.W. recanting: 
          [S]he's having a very difficult time summoning
up the courage to come in and testify against her husband. . . . 
I think everybody at this point is aware that a couple months ago,
she went to the Public Defender Agency and fed them a statement to
try to get Mr. Raphael out of jail.  So this is a victim who
teeters between recanting one week and testifying about what
happened the next.  And I know the court's familiar with that
situation.

If a defendant's right to be present is to hold any meaning
whatsoever, it must extend to proceedings in which the trial court
imprisons a witness who has not violated any court order, bars the
witness from contacting the defendant, and offers to "revisit"the
issue of the witness's release from imprisonment after she
testifies.  This is especially true where the testimony is of a
critical state witness who has previously expressed a desire to
recant.
          This result does not affect a trial court's authority to
conduct emergency ex parte hearings to secure the presence of a
witness.  The subpoena power would mean little if divorced from the
enforcement mechanism of emergency contempt proceedings. [Fn. 39] 
But this authority does not extend to shutting the defendant out of
a proceeding such as the one conducted in this case.
          2.   The trial court's violation of Raphael's right to
be present under Rule 38(a) was not harmless beyond a reasonable
doubt.     
          A violation of a defendant's right to be present is
reversible error unless it is harmless beyond a reasonable doubt.
[Fn. 40]  We have "found reversible error in situations where the
defendant's presence could have had an impact on the decisional
process."[Fn. 41]  The State argues that, regardless of whether
the ex parte hearing would have been different with the addition of
Raphael and his attorney, a change in the outcome of the proceeding
would not have affected the trial verdict or Raphael's ability to
mount a defense.  We disagree.
          The presence of Raphael and his attorney would
undoubtedly have profoundly changed the nature of the ex parte
hearing.  First, they could have demanded proof of I.W.'s
intoxication beyond mere assertions from the prosecution
unsupported by testimony or affidavit such as a breathalyzer or
other objective measure of intoxication.
          Second, Gould could have called I.W. as a witness and
asked her questions about the prosecutor's directives to her and
about what happened at Pacifica House.  Although the trial court
did ask I.W. several questions, it did so only briefly, dismissed
her answers, and did not allow her to explain fully the
circumstances surrounding her leaving Pacifica House.  In fact,
when the prosecutor asked the trial court during the hearing
whether he should bring I.W. into the courtroom, the judge replied,
"[y]eah[,] but I -- I've never found that . . . talking to someone,
especially when they're under the influence, is going to make any
difference . . . whatsoever on their behavior."
          Third, Gould might have questioned the propriety of
preemptively incarcerating I.W. for allegedly violating not a court
order but merely a prosecutor's admonition to stay sober.  As Judge
Mannheimer noted in his concurrence to the court of appeals's
decision, "a person [cannot] be held in contempt of court for
violating the directives of an attorney, even the directives of an
assistant district attorney.  There is no indication in the record
that [the trial judge] himself had ordered [I.W.] to remain sober
pending her appearance at Raphael's trial."[Fn. 42]
          Fourth, Raphael and Gould could have argued for
alternatives to incarceration.  The prosecutor suggested three
options at the hearing: incarceration of I.W. and placement of her
children with DFYS, sending I.W. home, or keeping I.W. in Bethel by
way of house arrest or by placing her in another shelter.  The
prosecutor then claimed that a shelter might not be viable because
I.W. probably would not be willing to stay there and might not be
able to commit to sobriety.  The court agreed and gave I.W. very
little chance to make the case for an alternative to incarceration:
          Mr. Wrona:     Ms. [W.], is there . . .
somewhere you can go somehow where you're going to stay sober and
take care of your kids until we can get your testimony at trial? .
. . 

          I.W.:          Oh, I -- I checked out of
Pacifica before check-out time.  And I -- well, I -- I went -- went
over there before -- before check-out time.  And I  -- I got a room
over at Kusko Inn.

          Mr. Wrona:     That's not going to..... 

          The Court:     No. That -- that's not..... 

          I.W.:          I have a room there.

          The Court:     Yeah, well, I believe you but
that's not going to work because the Kusko Inn is just not a good
place.

          I.W.:          Well, I could get a refund and
                         -- if I have to, and if you
want to, I can stay at TWC.

          Mr. Wrona:     Ms. [W.], to stay there -- and
you know, the rules.

          I.W.:          Yeah.

          Mr. Wrona:     And I know that's not your
favorite place.  But.....

          . . . .

          Mr. Wrona:     .....you've got to stay sober.
. . . [I]f you don't and there's even a glimmer of a problem,
you're going to get thrown in jail and your kids will get taken
away from you.  We're here today to try and explore ways to not do
that to you.

          . . . . 

          The Court:     Well, Ms. [W.], you've been
here less than 24 hours, you got the two kids with you and you
couldn't stay sober for those less than 24 hours.

          I.W.:          And I wasn't -- I wasn't
intoxicated.

          The Court:     Okay.  Well, even now, you're
slightly under the influence. . . .  I mean you're not staggering
drunk but you're slightly under the influence.  Not only am I
concerned about your testimony in this case, whenever we can get it
done, but I'm also concerned about the kids.

          . . . . 

          The Court:     All right.  Well, I'm going to
find, based on the -- I'm going to find that [I.W.] is in contempt
here regarding this, and I'm going to have her remanded.  She's
going to be kept in custody..... 

          . . . .

          The Court:     .....pending testimony in the
above case.  That's the only viable solution I see here for her
protection and for the kids' protection and to have her.....

          . . . .

          The Court:     .....provide testimony here.

          I.W.:          Just put us in TWC, okay?

          The Court:     Well, they're not going to take
anybody who's under the influence or is not going to follow their
rules.

Incarceration of I.W. was thus not the trial court's only option. 
Had Raphael and his attorney been present at the hearing, they
could have argued for the trial judge to explore other options more
fully or could have taken exception to the trial court's refusal to
do so.
          Fifth, Raphael could have argued that the trial court's
reasons for placing I.W.'s children in custody were improper.  When
the trial judge explained to I.W. why he was taking her children
away, he justified his decision in part on her alleged drinking
problem and not merely on the fact that she would be in temporary
custody: "[I.W.], it's not just about you being sober for this
case.  I mean you need to be sober for your kids to keep your kids
safe, whatever happens with the case, and also to keep yourself
safe."
          Finally, Raphael and Gould could have stopped the trial
court from barring I.W. from contacting Raphael and could have
objected to the trial judge's remark that the trial court and the
State would "revisit"the issues of the children and of I.W.'s own
imprisonment after she testified.
          Because the trial court's and State's remarks to I.W. at
the hearing had a potentially coercive effect on her testimony and
that testimony was critical to the State's case against Raphael,
the hearing was actually highly relevant to the outcome of the
trial.  By being present at the hearing, Raphael and his attorney
could have objected to the potentially coercive conduct and could
have requested that the trial judge emphasize to I.W. that her
release was not dependent on how she testified.  We therefore
cannot say that the Rule 38(a) violation was harmless beyond a
reasonable doubt.
     C.   Because the Trial Court Committed Plain Error, Raphael's
Failure to Object to the Ex Parte Hearing or to I.W.'s Testimony
Does Not Preclude His Appeal. [Fn. 43]
          The State argues that Raphael abandoned his right to
appeal his absence from the ex parte hearing and the hearing's
coercive effect on I.W.'s testimony because Raphael's attorney
failed to object to these errors during trial.  Although we agree
that Raphael's attorney did not make a timely objection to these
errors, we believe the trial court committed plain error and, thus,
we nevertheless recognize Raphael's constitutional claims.
          Alaska Criminal Rule 47(b) allows appellate courts to
notice "[p]lain errors or defects affecting substantial rights
. . . although they were not brought to the attention of the
[trial] court."  Because Raphael's attorney did not make an
objection at the time the trial court informed him of its contact
with I.W. and did not object to I.W.'s subsequent testimony, we
look to see whether the trial court committed plain error.
          We have interpreted the phrase "plain error"to mean an
error that is both obvious and substantially prejudicial. [Fn. 44] 
Plain error involves such egregious conduct as to "undermine the
fundamental fairness of the trial and contribute to a miscarriage
of justice."[Fn. 45]
          We believe this case does involve such egregious conduct
on the part of the trial court and the State.  As we stated in
Burford v. State, [Fn. 46] denial of a defendant's constitutional
rights, "in the normal case, would . . . give rise to plain error."
[Fn. 47]  In Burford, we linked the existence of plain error to the
question of whether the constitutional error was harmless beyond a
reasonable doubt. [Fn. 48]  Here, the trial court's violations of
Raphael's right to due process and right to be present at the ex
parte hearing were not harmless.  Moreover, to condone such an
"untrammeled exercise of coercive power"[Fn. 49] as occurred in
this case by allowing the use of I.W.'s testimony to convict
Raphael would "contribute to a miscarriage of justice"that is
unacceptable in a civilized modern court system. [Fn. 50]
          The State argues in the alternative that, even if the
trial court's errors were obvious and substantially prejudicial,
the fact that Raphael's failure to object could have been a
tactical decision precludes a finding of plain error. 
Specifically, the State contends that Raphael could have hoped that
I.W.'s incarceration would make her hostile toward the prosecution
and cause her to slant her testimony in his favor.
          But this argument assumes that Raphael's attorney had a
sufficiently accurate view of the scope of the error and
deliberately chose to waive any objection.  In Noffke v. State,
[Fn. 51] we held that, although defense counsel had failed to
object to an instruction given to the jury during its deliberations
and outside the defendant's presence, we would reach the issue on
appeal because there was "nothing in the record to show that [the
defendant's] trial counsel had any knowledge . . . of the fact that
the trial judge had given the jury this supplemental instruction."
[Fn. 52]  Here, although specifically invited to do so, [Fn. 53]
the State has presented no evidence from the record that Raphael's
attorney knew of the nature of the ex parte hearing and yet
deliberately chose not to object.  To the contrary, the record
shows that the trial court did not fully inform Raphael's attorney
of the nature or content of the hearing.
          Based on the trial court's abridged account to Raphael's
attorney of its contact with I.W., along with the lack of support
for the theory that Gould knew the full extent of the
constitutional errors and deliberately chose not to object, we
cannot say that Raphael's failure to object to the ex parte hearing
and to I.W.'s testimony was tactical.  Because the trial court
committed plain error, we recognize Raphael's constitutional claims
on appeal.
IV.  CONCLUSION
          Because we conclude that the trial court committed
reversible error by denying both Raphael's right to due process and
his right to be present under Criminal Rule 38(a), and because
these violations were plain errors allowing us to review them
despite Raphael's failure to object, we REVERSE Raphael's
conviction and REMAND for a new trial.
EASTAUGH, Justice, with whom CARPENETI, Justice, joins, dissenting.
          This court holds that the superior court erred.  As a
remedy, it reverses Raphael's conviction and remands for a new
trial.  I disagree with that result, and therefore dissent. 
Although the superior court's acts cannot be condoned, I would not
reverse outright, but remand to determine whether Raphael's
attorney's failure to object was a tactical decision.
          The proper result turns on our analysis of the plain
error doctrine.  Raphael's trial attorney did not object to the
procedure the superior court followed in jailing I.W.  The state
argues here, as it did before the court of appeals, that Raphael's
failure to object could have been a tactical decision precluding a
finding of plain error.  The state theorizes that Raphael could
have hoped that I.W.'s incarceration would make her hostile to the
prosecution and cause her to slant her testimony in Raphael's
favor.
          The court of appeals unanimously agreed that there was no
plain error.  That court wrote:
          One element of plain error is that the
defendant must show that there was no apparent tactical reason to
withhold an objection.  See Potts v. State, 712 P.2d 385, 394 n.11
(Alaska App. 1985).  Here, the record reveals a reasonable
possibility that Raphael's attorney withheld objection for tactical
reasons.  The defense attorney might reasonably have anticipated
that [I.W.], if she remained in jail until she testified, might be
feeling substantial antagonism toward the state by the time she
took the stand at Raphael's trial, and that consequently [I.W.]
would slant her testimony against the state to retaliate for her
perceived ill-treatment.  In other words, Raphael had a plausible
tactical reason for letting [I.W.] languish in jail for as long as
possible.  This being so, Raphael cannot claim plain error now.[[Fn. 1]] 

          This court rejects the state's argument because, the
court reasons, nothing in the record shows that Raphael's attorney
knew of the nature of the ex parte hearing. [Fn. 2]  The court
notes that the state did not demonstrate, although asked by us to
do so, that the record contained any evidence that the defense
attorney "knew of the nature of the ex parte hearing and yet
deliberately chose not to object.  To the contrary, the record
shows that the trial court did not fully inform Raphael's attorney
of the nature or content of the hearing."[Fn. 3] 
          Certainly the superior court did not fully reveal to
defense counsel what had occurred.  But what the superior court did
reveal should have set off alarms for experienced defense counsel,
inevitably triggering further inquiry.  Counsel could have asked
the court to elaborate, requested a brief recess, listened to the
tape recording of the ex parte proceeding, or asked the prosecutor
to explain what had happened.  That counsel made no inquiry on the
record permits a reasonable inference that defense counsel already
knew enough to think that I.W.'s incarceration might provide
Raphael a tactical advantage that would be lost if Raphael moved
for a mistrial or sought some other remedy. [Fn. 4]
          Of course, that is not the only permissible explanation
for counsel's silence.  Possibly counsel was just not alert to the
potential implications of the superior court's inadequate
explanation.  But I read the explanation, despite its patent
inadequacy, to be the sort that would provoke prompt inquiry from
experienced and capable defense counsel.  That there was none on
the record makes a tactical choice more probable.
          The record in this case does not resolve this question.
[Fn. 5]  Its silence is consistent with both possibilities.  If
counsel made a deliberate choice, it is unlikely he would have
memorialized the full extent of his knowledge on the record.  I
think substantial knowledge is most consistent with counsel's and
the record's silence.  If there was a deliberate tactical choice,
the failure to preserve a claim of error is fatal to Raphael's
appeal. [Fn. 6]  The court of appeals gives three policy reasons
for this rule: (1) a defendant should not be permitted to switch
his tactics after an unfavorable outcome, (2) a tactical decision
not to object by defense counsel is an indication that prejudice to
the defendant is unlikely, and (3) the lack of an objection
precludes the trial court from taking measures to correct the
error. [Fn. 7]
          Therefore, in my view the better course is to remand to
establish a record in this case about what defense counsel knew. 
That will permit a reasoned determination about whether there was
a deliberate choice, and therefore, whether there was plain error
which we may review.  The court's remedy, reversal of the
conviction and remand for new trial, is premature.
          My view regarding the appropriate relief on remand in
part reflects Raphael's efforts to set aside his conviction.  In
oral argument to this court, his appellate attorney revealed that
Raphael has applied for post-conviction relief, [Fn. 8] and that a
deposition had been or would be taken from Raphael's trial attorney
to support Raphael's claim of ineffective assistance of counsel. 
I am not suggesting that Raphael's only remedy for I.W.'s
incarceration lies in an ineffective assistance claim for post-
conviction relief.  But because the critical facts -- what defense
counsel knew and was told -- have been or will be revealed in the
record of another superior court proceeding, our reversal today is
premature and may be proved to have been wrong. Indeed, the
dispositive facts may already have been preserved.  And if they
have not, delay in determining facts can be avoided by requiring
that the remand and post-conviction relief proceedings be
consolidated and by imposing strict deadlines for taking counsel's
deposition.


                            FOOTNOTES


Footnote 1:

     Whether a trial court has violated a defendant's right to due
process is a legal question to which we apply our independent
judgment.  See Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska
1998).


Footnote 2:

     Dimmick v. State, 473 P.2d 616, 619-20 (Alaska 1970).


Footnote 3:

     See Alaska R. Crim. P. 17(a).


Footnote 4:

     See id.; Tucker v. State, 721 P.2d 639, 642 (Alaska App.
1986).


Footnote 5:

     See also Williams v. Calderon, 48 F. Supp. 2d 979, 1000-01
(C.D. Cal. 1998) (holding that the defendant had a cognizable
habeas claim based on physical abuse of a government witness);
Bradford v. Johnson, 354 F. Supp. 1331, 1336-38 (E.D. Mich. 1972)
(holding that the police's torturing of a witness until he provided
in-court testimony incriminating the defendant violated the
defendant's right to due process); cf. J & L Diversified Enters. v.
Municipality of Anchorage, 736 P.2d 349, 352 (Alaska 1987) (noting
that a prosecutor's coercion of a witness would violate a
defendant's rights but would not give rise to tort liability under
42 U.S.C.  1983).


Footnote 6:

     See, e.g., United States v. Gonzales, 164 F.3d 1285, 1289
(10th Cir. 1999); LaFrance v. Bohlinger, 499 F.2d 29, 34 (1st Cir.
1974) ("Due process does not permit one to be convicted upon his
own coerced confession.  It should not allow him to be convicted
upon a confession wrung from another by coercion.") (quoting
Malinski v. New York, 324 U.S. 401, 430-31 (Rutledge, J.,
dissenting)); McMillian v. Johnson, 878 F. Supp. 1473, 1512-14
(M.D. Ala. 1995), rev'd in part on other grounds, 88 F.3d 1554
(11th Cir. 1996); Tucker, 721 P.2d at 642. [Fn. 9] [Fn. 10] 


Footnote 7:

     See, e.g., Webb v. Texas, 409 U.S. 95, 98 (1972) (holding that
a trial judge's action in singling out a defense witness for a
lengthy admonition on the dangers of perjury "effectively drove
that witness off the stand, and thus deprived the defendant of due
process of law under the Fourteenth Amendment").


Footnote 8:

     See Hutto v. Ross, 429 U.S. 28, 30 (1976) (declaring that a
statement "obtained by any direct or implied promises, however
slight,"is not voluntary); United States v. Leon Guerrero, 847
F.2d 1363, 1366 (9th Cir. 1988) (same).


Footnote 9:

     Gonzales, 164 F.3d at 1289 n.1 (citation omitted). 


Footnote 10:

     Blackburn v. Alabama, 361 U.S. 199, 206 (1960).


Footnote 11:

     See Arizona v. Fulminante, 499 U.S. 279, 285-88 (1991);
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).


Footnote 12:

     Raphael v. State, Mem. Op. & J. No. 3799 at 18 (Alaska App.,
April 22, 1998) (Mannheimer, J., concurring).


Footnote 13:

     Id. at 18-20 (quoting Morris v. United States, 156 F.2d 525,
532 (9th Cir. 1946) (Denman, J., dissenting)).    


Footnote 14:

     See Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) (holding
that due process encompasses the right to counsel in a civil
contempt proceeding); Johansen v. State, 491 P.2d 759, 762-67
(Alaska 1971) (holding that a civil contempt defendant has a right
to a jury trial when the act of contempt was not committed in the
presence of the court and when the incarceration is in part
punitive).


Footnote 15:

     Cf. E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977) (noting
that the witness's continued imprisonment was "conditioned solely
on her refusal to testify").


Footnote 16:

     Id.


Footnote 17:

     See, e.g., United States v. Tingle, 658 F.2d 1332, 1336 (9th
Cir. 1991) (discussing the "improper influence"that law
enforcement officers exert when they "prey upon the maternal
instinct and inculcate fear in a mother that she will not see her
child in order to elicit 'cooperation'").


Footnote 18:

     372 U.S. 528 (1963).


Footnote 19:

     See id. at 530-34.


Footnote 20:

     Id. at 534.


Footnote 21:

     The Arizona case that the State attempts to analogize to this
one, State v. Jones, 937 P.2d 1182 (Ariz. App. 1996), is
inapposite.  The trial court jailed the witnesses in Jones only
after they failed to honor their subpoenas and released them after
they testified.  See id. at 1194.  Unlike Raphael, the defendant in
Jones presented no evidence that the violation of the witnesses'
due process rights affected their testimony.  See id. at 1194-95.


Footnote 22:

     Chapman v. California, 386 U.S. 18, 24 (1967), partially
overruled by Brecht v. Abrahamson, 507 U.S. 619, 622 (1993)
(holding that "harmless beyond a reasonable doubt"analysis not
applicable in habeas cases).


Footnote 23:

     Brecht v. Abrahamson, 507 U.S. at 629 (quoting Arizona v.
Fulminante, 499 U.S. 279, 307-08 (1991)).


Footnote 24:

     See, e.g., United States v. Shyllon, 10 F.3d 1, 4 (D.C. Cir.
1993); Tucker v. State, 721 P.2d 639, 642-43 (Alaska App. 1986).


Footnote 25:

     Whether a defendant has a right to be present during a
particular proceeding is a question of law to which we apply our
independent judgment.  See State v. Shewfelt, 948 P.2d 470, 471,
473 (Alaska 1997).  


Footnote 26:

     559 P.2d 1059 (Alaska 1977).


Footnote 27:

     Id. at 1063.


Footnote 28:

     Id. (quoting Lewis v. United States, 146 U.S. 370, 372
(1892)).


Footnote 29:

     See Alaska Const. art. I,  7, 11.


Footnote 30:

     See Henry v. State, 861 P.2d 582, 593 (Alaska App. 1993). 
Because we conclude that the ex parte hearing violated Raphael's
right to be present under Rule 38(a), we need not address whether
it also violated Raphael's federal constitutional right to be
present.  Thus, the State's discussion on State v. Hamons, 805 P.2d
6 (Kan. 1991), and State v. Douglas, 675 P.2d 358 (Kan. 1984), two
Kansas Supreme Court cases discussing the scope of the right of
presence under federal and Kansas law, is irrelevant to our Rule
38(a) analysis.


Footnote 31:

     559 P.2d 1059 (Alaska 1977).


Footnote 32:

     See id. at 1063-64.  Although we found constitutional error,
we ultimately affirmed the defendant's conviction because we
concluded that the error was harmless beyond a reasonable doubt. 
See id. at 1065-66.


Footnote 33:

     639 P.2d 277 (Alaska 1982).


Footnote 34:

     See id. at 283-85.  As in Hannagan, we ultimately found the
error in Dolchok to be harmless beyond a reasonable doubt.  See id.
at 285.


Footnote 35:

     See Lee v. Illinois, 476 U.S. 530, 540 (1986).


Footnote 36:

     372 P.2d 785 (Alaska 1962).


Footnote 37:

     See id. at 787-88.


Footnote 38:

     Id. at 790.


Footnote 39:

     See, e.g., International Union, United Mine Workers of America
v. Bagwell, 512 U.S. 821, 827 n.2 (1994) (holding that, when the
contempt is committed in the presence of the court, the court may
dispense with usual due process requirements and immediately and
summarily adjudge the case); United States v. Neal, 101 F.3d 993,
997 (4th Cir. 1996) (allowing trial courts to dispense with notice
and hearing requirements and other formalities in contempt cases
"where immediate punishment is essential to prevent demoralization
of the court's authority before the public") (citation omitted).


Footnote 40:

     See State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977). 
This standard, which we adopted in accord with the United States
Supreme Court's decision in Chapman v. California, 386 U.S. 18, 23-
24 (1967), supplanted the requirement we had set forth in Noffke v.
State, 422 P.2d 102 (Alaska 1967), that an error must affect a
substantial right of the defendant to be prejudicial.  See id. at
105.


Footnote 41:

     Hannagan, 559 P.2d at 1065-66 n.20.


Footnote 42:

     Raphael v. State, Mem. Op. & J. No. 3799 at 21 (Alaska App.,
April 22, 1998) (Mannheimer, J., concurring).


Footnote 43:

     Whether a defendant has abandoned or forfeited an appellate
claim by failing to make a timely objection in the trial court is
a question of law that we review de novo.  See Graybill v. State,
522 P.2d 539, 541 (Alaska 1974) (treating the matter of whether the
defendant forfeited an appealable issue as a question of law).


Footnote 44:

     See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989)
(defining plain error as one that is both obvious and substantially
prejudicial); Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968)
(defining plain error as error that is "obviously prejudicial")
(citation omitted).


Footnote 45:

     United States v. Young, 470 U.S. 1, 16 (1985), quoted with
approval in Potts v. State, 712 P.2d 385, 390 (Alaska App. 1986). 
The standard for "plain error"under Alaska Criminal Rule 47(b) is
in accord with the standard under its identical federal
counterpart, Federal Rule of Criminal Procedure 52(b).  The United
States Supreme Court in United States v. Olano, 507 U.S. 725
(1993), held that Rule 52(b) requires that the error be obvious and
affect substantial rights, which in most cases means that it must
be prejudicial.  See id. at 734.


Footnote 46:

     515 P.2d 382 (Alaska 1973).


Footnote 47:

     Id. at 383.


Footnote 48:

     See id.


Footnote 49:

     Raphael v. State, Mem. Op. & J. No. 3799 at 26-27 (Alaska
App., April 22, 1998) (Mannheimer, J., concurring). 


Footnote 50:

     Young, 470 U.S. at 16.


Footnote 51:

     422 P.2d 102 (Alaska 1967).


Footnote 52:

     Id. at 106-07 (emphasis added).


Footnote 53:

     On May 5, 1999, we requested that both parties submit
supplemental briefing as to whether the record contained any
evidence, aside from the trial court's abbreviated description of
the hearing discussed above, of Gould's knowledge of the ex parte
hearing and the surrounding circumstances.  Neither party found any
such references.


                     FOOTNOTES   (Dissent)

Footnote 1:

     Raphael v. State, Mem. Op. & J. No. 3799 at 11-12 (Alaska
App., April 22, 1998).


Footnote 2:

     See Slip Op. at 28.


Footnote 3:

     See id. 


Footnote 4:

     Even before the court told defense counsel that it had
incarcerated I.W., defense counsel asked the court the following
question: "What is the status of the children and [I.W.], what's
going on with that?"  The prosecutor had also told the court that
he had spoken with defense counsel about I.W.'s daughter's
placement with DFYS.  This suggests that defense counsel may have
already learned at least something about I.W.'s incarceration
before trial resumed that day.  The state did not call I.W. to
testify until the next day.  After defense counsel finished cross-
examining I.W., the prosecutor asked the court to "keep her under
ice until this afternoon"because she might be needed for rebuttal.
The superior court agreed.  Defense counsel again raised no
objection.  


Footnote 5:

     That does not mean the facts have not been preserved.  As I
note below, they may already have been preserved in Raphael's post-
conviction relief proceeding.


Footnote 6:

     See Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993)
(stating court would not find plain error when there appeared to be
tactical reason to withhold objection); Robison v. State, 763 P.2d
1357, 1358 (Alaska App. 1988) (noting that strategic reasons for
foregoing remedy precluded finding of plain error or ineffective
counsel); Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985)
(noting that finding of plain error is virtually equivalent to
finding of ineffective counsel: one will rarely exist absent the
other, and rarely will either be found if counsel's actions were
tactical); Barry v. State, 675 P.2d 1292, 1295 (Alaska App. 1984)
(stating that plain error is rarely found where counsel may have
had strategic reasons for conduct).


Footnote 7:

     See Clemens v. State, 680 P.2d 1179, 1186 (Alaska App. 1986).


Footnote 8:

     See Alaska R. Crim. P. 35.1.


Footnote 9:

     Because Raphael asserts a violation of his own due process
rights, we need not address whether he lacks standing to assert a
violation of I.W.'s due process rights.  See McMillian v. Johnson,
878 F. Supp. 1473, 1512 (M.D. Ala. 1995).


Footnote 10:

     Because Raphael asserts a violation of his own due process
rights, we need not address whether he lacks standing to assert a
violation of I.W.'s due process rights.  See McMillian v. Johnson,
878 F. Supp. 1473, 1512 (M.D. Ala. 1995).