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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD K. BARR JR., )
) Court of Appeals No. A-10946
Appellant, ) Trial Court No. 2KB-10-124CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2412 - March 14, 2014
)
Appeal from the Superior Court, Second Judicial District,
Kotzebue, Paul A. Roetman, Judge.
Appearances: Hanley Robinson Smith, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage, for
the Appellant. Nancy Simel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Michael
C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge.*
Judge ALLARD.
* Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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Ronald K. Barr Jr. was convicted of physically and sexually assaulting
M.B. Barr appeals his convictions, arguing that the superior court erred when it asked
one of the State's expert witnesses a question submitted by a juror: whether the injuries
to M.B. constituted the "worst beating" the expert had seen in Northwest Alaska. Barr
also argues that the superior court committed plain error when it permitted the prosecutor
to make statements during closing argument that Barr's claims were an indirect comment
on his failure to take the stand.
For the reasons explained below, we conclude that the juror's question was
improper and should not have been allowed, but that the error was harmless in this
particular instance. We further conclude that Barr has failed to show plain error with
respect to the prosecutor's comments. We therefore affirm Barr's convictions.
Background facts
Ronald Barr and M.B. are residents of a village near Kotzebue who have
engaged in a consensual sexual relationship in the past. On two separate occasions in
March 2010, M.B. reported being physically and sexually assaulted by Barr.
She reported that the first incident occurred on March 14, 2010. Barr
invited M.B. to his house to drink. She drank heavily and became intoxicated. Barr
indicated to M.B. that he wanted to have sexual intercourse; she did not want to. He
engaged in vaginal penetration with her and she tried to fight him off, but he choked her
until she nearly passed out. When Barr stopped choking her, M.B. pushed him off and
went to another room. Barr then dragged her by her shirt or hair back into the bedroom
and had sexual intercourse with her again.
After Barr fell asleep, M.B. ran next door wearing only pants because she
was scared that if she retrieved more of her clothing Barr would wake up. The next
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morning, M.B. found a mark on her arm that looked like a bite mark, her throat hurt (it
was a few days before she was able to swallow properly), and her eyes and neck were
very red. M.B. went to Barr's house and showed him her injuries. He told her that the
mark on her arm occurred when she fell on a water pipe. When M.B. told Barr that he
had almost killed her, he hugged her, apologized, and promised that he would not do it
again.
A week later, on March 24, Barr held a small social gathering at his house.
The group, which included M.B., spent the evening drinking, smoking marijuana, and
playing and recording music.
M.B. became very intoxicated as the night progressed. She later testified
that she recalled Barr dragging her into the bedroom and slapping her head several times
with his hands. He took her clothes off and engaged in vaginal penetration with her after
she told him she did not want to have sexual intercourse. The next thing M.B.
remembered was waking up on the floor with Barr sleeping on the bed nearby. She was
in a lot of pain.
M.B. was later examined by the local health aide, Kathleen Tebbits.
Tebbits observed that M.B. had bumps on her head, a deviated nose, a black eye that had
swollen shut, blood crusted on her mouth, injuries to her throat and back, and bruising
on her face, arms, and legs. M.B. had difficulty speaking, but she was able to tell Tebbits
that Barr had beaten her up and raped her.
Tebbits called the troopers, who arranged for M.B. to be medevaced to
Kotzebue and then to Anchorage, where she remained for two weeks.
At the Alaska Native Medical Center in Anchorage, Dr. Frances Wilson
treated M.B. Dr. Wilson testified that M.B. had a broken nose and broken bones in the
area around her left eye. M.B. required surgery to re-establish the symmetry of her face.
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Dr. Wilson testified that M.B. reported being beaten, and that her injuries were consistent
with that claim.
While at the hospital, M.B. was also examined by Krista Croy, who testified
at Barr's trial as an expert in forensic nursing. Over the course of her examination, Croy
observed bruising on M.B.'s shoulders, chest, back, and lower extremities. M.B. also
had injuries and reported pain on her head and neck. While some of the bruises on
M.B.'s body appeared older, the bruises to her face were red and purple, indicating that
they were caused more recently. In Croy's opinion, M.B.'s injuries were consistent with
her report that she had been beaten by someone's hands.
On March 29, Trooper Nieves went to Barr's home and interviewed him.
The interview was recorded and played for the jury at trial. Although Barr initially
denied having sex with M.B., Barr later stated that they had consensual sex and that M.B.
had initiated it. Barr denied hitting M.B. He claimed she had injured herself falling
down while inside the bathroom or on her way out of the bathroom.
Trial court proceedings
1
Barr was indicted on one count of first-degree sexual assault and one count
of second-degree assault2 based on his conduct on March 14, and one count of first-
3
degree sexual assault and one count of first-degree assault based on his conduct on
March 25.
1 AS 11.41.410(a)(1).
2 AS 11.41.210(a)(1).
3 AS 11.41.200(a)(1).
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Prior to trial, Superior Court Judge Paul A. Roetman informed the parties
that he would allow the jurors to submit written questions at the close of each witness's
testimony, and that the parties would have the opportunity to object to these questions.
During trial, Barr objected to a question proposed by a juror at the end of testimony from
Krista Croy, the forensic nurse from the Alaska Native Medical Center. Croy had
testified regarding her observations of M.B.'s injuries. The juror's question was: "Is this
one of the worst beatings you've seen from Northwest Alaska?"
Barr objected to the form and the substance of the question. He argued that
the question was leading (i.e., it assumed that M.B.'s injuries were the result of a beating
and not accidental) and that the question was irrelevant.
The court overruled Barr's objections. The court found that the question
was relevant because "it goes to [Croy's] experience." The court proceeded to ask the
question. Croy replied that she had only been involved in a few cases from Northwest
Alaska, but that this was "a pretty bad case."
The jury subsequently acquitted Barr of the charges relating to the March
14 incident, but convicted Barr of the charges stemming from the March 25 incident.
This appeal followed.
The trial court erred by submitting the juror question to the State's expert
witness, but the error was harmless beyond a reasonable doubt
4
In Landt v. State , this Court held that trial judges have discretion to allow
5
jurors to ask questions of witnesses in a criminal trial. We emphasized, however, that
4 87 P.3d 73 (Alaska App. 2004).
5 Id . at 80; see also Commonwealth v. Britto , 744 N.E.2d 1089, 1103 (Mass. 2001)
(continued...)
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procedural safeguards are necessary to ensure that the juror questions do not violate a
6
defendant's rights to a fair trial and an impartial jury. We provided a detailed list of the
types of procedural safeguards that the trial court should consider if it allows juror
questioning. Those safeguards include: (1) instructing the jurors that they must remain
neutral and impartial and should not assume the role of an investigator or advocate; (2)
requiring the jurors to write out their proposed questions and providing an opportunity
outside the presence of the jury for the parties to review the proposed questions and
make objections and/or suggest alterations; (3) informing the jurors in advance that the
judge might decide not to ask a proposed question or might alter the question to comply
with the rules of evidence. In this context, we advised trial judges to tell the jurors not
to speculate as to why a particular question was altered or not asked, and to not be
offended or hold this against either party.7
At Barr's trial, the superior court employed procedures similar to the ones
we approved in Landt : the judge had the jurors submit individually written questions
that the court then reviewed, with counsel, out of the presence of the jury. The judge
also informed the jurors that their questions would have to conform to the applicable
rules of evidence and that a particular question might therefore be altered or not given
at all.
5 (...continued)
(affirming judge's decision to permit juror questioning, and collecting cases from the
majority of jurisdictions similarly upholding the practice); Jonathan M. Purver, Annotation,
Propriety of Jurors Asking Questions in Open Court During Course of Trial , 31 A.L.R.3d
872, § 3 (1970) (collecting cases holding that the trial judge has discretion to allow juror
questioning of witnesses).
6 Landt , 87 P.3d at 78-79.
7 Id .
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We nevertheless conclude that the trial judge abused his discretion by
asking Croy the question at issue here: "Is this one of the worst beatings you've seen
from Northwest Alaska?" The relevance of this question is not clear. The trial judge
speculated that the juror was asking about Croy's "experience" and "how many people
she's actually seen." But the juror's question did not ask about Croy's experience or
credentials; it asked only about the severity of M.B.'s "beating" in comparison to other
"beatings" Croy had seen.
The State suggests that the severity of M.B.'s injuries was relevant to prove
that the injuries were caused by intentional conduct rather than by accident. But again,
that is not how the question was framed. Croy was not asked for her opinion on whether
M.B.'s injuries were consistent with an assault (an opinion Croy had already offered
during direct examination); the juror's question assumed an assault had occurred, and
asked only whether it was a particularly bad one. The comparative severity of M.B.'s
injuries to those inflicted in other cases was not probative of any material issue in Barr's
trial.
An even more fundamental problem with the question is that it assumed the
truth of a primary element of the State's case. The crux of Barr's defense was that M.B.
hit her face when she fell in the bathroom in a state of extreme intoxication. By asking
whether the "beating" M.B. received was especially severe, the question signaled that the
juror had rejected Barr's version of events and already formed the opinion that Barr was
guilty of assault. When the trial judge read the juror's question in open court, the juror's
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opinion of the evidence was broadcast to the rest of the jury well in advance of the jury's
8
deliberations. This was improper.
We therefore turn to the question of whether Barr was prejudiced by this
error. Barr urges us to adopt the reasoning of the Minnesota Supreme Court, which held
that harmless error analysis is inappropriate in this type of case because an improper
juror question could "affect the outcome of a criminal case in subtle ways that go directly
to the neutrality and impartiality of a juror" and "it is impossible to quantify the effects
of the error."9
For those reasons, the Minnesota Supreme Court held that juror
questioning during criminal trials was impermissible and required automatic reversal on
10 11
appeal. But we previously rejected this per se reversal standard in Landt . We note
that Minnesota remains among the few jurisdictions that do not allow juror-initiated
12
questioning of witnesses in criminal trials.
In Landt , we did not directly determine what standard of harmless error
review should apply when a court commits error in the procedural aspects of juror
questioning because we concluded that, even if the court erred in Landt , the error was
8 Id. at 78 (noting the risk that broadcasting improper questions will undermine jury
impartiality).
9 State v. Costello, 646 N.W.2d 204, 215 (Minn. 2002).
10 Id .
11 Landt , 87 P.3d at 80.
12 Costello, 646 N.W.2d at 214; see also Landt, 87 P.3d at 77 & n.7 (listing
jurisdictions where this practice is prohibited); Jonathan M. Purver, Annotation,
Propriety of Jurors Asking Questions in Open Court During Course of Trial , 31
A.L.R.3d 872, § 3.5 (1970) (same).
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13
harmless beyond a reasonable doubt. A different question is presented here because
the trial court followed all the proper procedures but nevertheless allowed an improper
juror question over defense objection. In this situation, a case-by-case analysis will
normally be required to determine whether the juror's question (or the answer to the
question) implicated the defendant's right to an impartial jury, or some other
constitutional right, and whether the court took action to cure any prejudice to the
defendant's case. Some cases may require a determination that the error was harmless
beyond a reasonable doubt, while other cases may require some other, lower standard of
harmlessness.
We do not decide in this case what harmless error standard should apply
to our review of the superior court's error in allowing the improper juror question
because the parties have not briefed the issue, and because we conclude that the error
was harmless beyond a reasonable doubt.
When the trial judge asked Croy whether Barr's assault on M.B. was one
of the "worst beatings" she had seen in Northwest Alaska, the jury had already heard
testimony from three medical witnesses who had personally examined M.B.: Public
Health Aide Tebbits, Dr. Wilson, and Nurse Croy. All three witnesses described
extensive injuries to M.B.'s head, face, neck, arms, and lower extremities. M.B. told
these individuals that she had been beaten, and Dr. Wilson and Croy testified that M.B.'s
injuries were consistent with her report of an assault. Although Barr's counsel cross-
examined the witnesses on whether they had been asked by anyone to determine if the
injuries were also consistent with an accidental fall, the attorney never actually asked the
witnesses to offer an opinion on this question. Nor did Barr present any expert testimony
13 Landt , 87 P.3d at 80.
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of his own suggesting that M.B.'s extensive injuries could be consistent with his claim
of accident.
Furthermore, Croy's only response to the juror's question was to say that
this was "a pretty bad case." This testimony merely reiterated what the evidence had
already shown: that M.B. sustained serious injuries. Croy said she had only been
involved in a few cases in Northwest Alaska, so she could not offer an opinion on how
M.B.'s case compared with other cases in the region. Given this record, we conclude
that there is no reasonable possibility that the evidence elicited by the juror question -
the evidence that this was a "pretty bad case" - affected the jury's verdict.14
Quantifying the potential prejudice of asking the juror question - and by
doing so, broadcasting the juror's premature assessment of the merits of the State's case
- is more difficult. As we have previously stated, "we have no doubt that there are
many trials in which one or more members of a jury prematurely remark on the
credibility of the testimony they have heard or express some opinion about the
15
anticipated outcome of the case." Although such remarks are improper, "they do not
suggest that the ensuing deliberations are tainted or that the resulting verdict should be
distrusted."16
We think there is no reasonable possibility that one juror's premature
characterization of the evidence as a "beating" during the presentation of the State's case
led the jury in its later deliberations to disregard the evidence, the State's burden of
proof, or the court's instructions.
14 See Smithart v. State, 988 P.2d 583, 589 (Alaska 1999).
15 Larson v. State , 79 P.3d 650, 656 (Alaska App. 2003).
16 Id .; see generally United States v. Resko , 3 F.3d 684, 688-89 (3d Cir. 1993)
(discussing the reasons for the prohibition on premature deliberations in a criminal case).
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We therefore conclude that the court erred by asking the juror question over
defense counsel's objection, but that the error was harmless beyond a reasonable doubt.
The prosecutor's rebuttal argument was not an impermissible comment on
Barr's right to remain silent
During the prosecutor's rebuttal argument, the prosecutor argued that Barr
had provided "no explanation" for M.B.'s injuries. Although Barr's attorney did not
object to this argument at trial, Barr now claims the remark was an adverse comment on
his decision not to testify, and that the superior court committed plain error when it failed
to take corrective action sua sponte .
We note first that the prosecutor's statements directly responded to
statements made by Barr's defense attorney. During opening statements, Barr's defense
counsel told the jury it would hear directly from Barr and that Barr would testify that
M.B.'s injuries were from falling down. In closing argument, Barr's counsel referred to
this earlier promise and argued that the jury had heard directly from Barr - because his
recorded interview with the troopers was played to the jury almost in its entirety. Barr's
counsel explained that Barr had originally intended to take the stand and testify, but that
after the prosecutor played Barr's interview, Barr and his counsel had decided that Barr's
testimony was no longer necessary and would simply further delay getting the case to the
jury. Barr's counsel also asserted that Barr's contemporaneous statements to the trooper
were "much more reliable" than any trial testimony, and that there was therefore no
reason to put Barr on the stand "to repeat exactly what the jury [had] already heard."
In rebuttal, the prosecutor stated the following:
Now, one interesting thing about what we've just heard in the
defense is what really didn't say [sic]. There's no
explanation. Certainly, one would wait to hear something
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like that. How would a pattern of injuries apparently inflicted
over time occur? You're about to go back and look at all
those pictures. How else would that occur if they weren't
imposed intentionally by someone who had the opportunity
to do so?
. . . .
Now, there's simply no explanation - alternative
explanation that's been offered at this point. When the idea
that [M.B.] came in her[e] and told you about these episodes
and what happened to her at great emotional expense to
herself because she'd fallen down one time is frankly
ridiculous.
Barr's counsel did not object to any of these statements. On appeal,
however, Barr argues that these statements constituted an impermissible comment on his
constitutional right not to testify. We disagree.
Viewed in context, the prosecutor's statements appear to be (1) a direct
response to the defense attorney's contention that Barr fully explained M.B.'s injuries
when he was interviewed by the troopers; and (2) fair comment on the inadequacy of
Barr's explanation to the troopers, rather than an attack on Barr's decision not to testify,
or an invitation to the jury to shift the burden of proof to Barr.17
Even if the prosecutor had commented more directly on Barr's failure to
testify, we would not necessarily find error, given that Barr expressly told the jury he
decided not to take the stand because his testimony would add nothing to the statement
he gave the police. In Hilburn v. State ,18 we held that this defense argument opened the
17 See, e.g., Hill v. State , 902 P.2d 343, 346-47 (Alaska App. 1995); Hilburn v. State ,
765 P.2d 1382, 1390 (Alaska App. 1988).
18 765 P.2d 1382.
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door to considerably more direct comment by the prosecutor on the defendant's failure
to testify.19
As in Hilburn , the jury in this case was instructed on Barr's constitutional
right not to testify, and the jury was told not to draw any inferences of guilt from the fact
20
that he did not testify. While we acknowledge that the line between fair comment on
the evidence and adverse comment on a defendant's constitutional right to remain silent
can be imprecise, we do not view the prosecutor's comments in this case as error, much
less obvious error requiring the trial court to act sua sponte in the absence of a defense
objection.21
Conclusion
The superior court's judgment is AFFIRMED.
19 Id. at 1389-90.
20 See id. at 1390.
21 See Khan v. State , 278 P.3d 893, 900 (Alaska 2012) ("[I]n order for a court to find
plain error, (1) the error must not be the result of an intelligent waiver or a strategic decision
not to object; (2) the error must affect substantial rights; (3) the error must be obvious; and
(4) the error must be prejudicial.") (quoting Adams v. State , 261 P.3d 758, 771 (Alaska
2011)).
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