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Roberts v. State (4/7/2017) ap-2546

Roberts v. State (4/7/2017) ap-2546


              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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



                                                                                                       Court of Appeals No. A-11626  


                                                      Appellant,                                    Trial Court No. 3PA-12-3045 CR  


                                                                                                                    O  P  I  N  I  O  N  



                                                      Appellee.                                            No. 2546 - April 7, 2017  


                           Appeal from the District Court, Third Judicial District, Palmer,  


                           John W. Wolfe, Judge.  


                           Appearances:                  Renee  McFarland,  Assistant  Public  Defender,  


                           and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  


                           Appellant.  James J. Fayette, Assistant Attorney General, Office  


                           of Special Prosecutions & Appeals, Anchorage, and Craig W.  


                           Richards, Attorney General, Juneau, for the Appellee.  


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


                           Superior Court Judge.*  



                           Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                              

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

                       Michael Anthony Roberts pleaded no contest to eight counts of flying an                                                    


 aircraft without a license.                                                                                                                       

                                                In addition, following a jury trial, Roberts was convicted of  

                                                                                                              2    (The  jury  acquitted  


one  count  of  unlawful possession  or  transportation  of  game.  

Roberts of six other charges.)  


                       In this appeal, Roberts challenges his conviction for unlawful possession  


or transportation of game on three separate grounds.  First, he argues that the trial court  


committed plain error when it failed to instruct the jurors that, to return a verdict, they  


had to reach a unanimous decision.   Second, he argues that the trial judge improperly  


restricted his attorney's closing argument when the judge precluded the defense attorney  


 from  contrasting the  burden  of  proof  used  in  criminal trials,  "beyond  a  reasonable  


doubt", with the lesser  burdens of proof used in other types of proceedings.   Finally,  


Roberts argues that the trial judge should have granted his attorney's pretrial request for  


disclosure of various documents relating to a search warrant application that was denied  


during the investigation of Roberts's case.  


                       We agree with Roberts that the trial judge should have explicitly instructed  


the jurors that their decision had to be unanimous.  However, we conclude that this error  


was rendered harmless when the judge individually polled the jurors to confirm that they  


concurred in the verdicts.  


                       We also agree with Roberts that the trial judge committed error when the  


judge  prohibited  the  defense  attorney  from  contrasting proof  "beyond  a  reasonable  


doubt" with proof "by a preponderance of the evidence".  However, we conclude that  


this error was rendered harmless because the defense attorney was able to address this  


 same concept using other phrasings.  


      1     AS 02.35.120.



            5 AAC 92.140(a).

                                                                       - 2 -                                                                  2546

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


                    Finally, we uphold the trialcourt's refusal to order disclosure of the trooper  


incident reports pertaining to the search warrant application that was denied.  


                    For these reasons, we affirm Roberts's conviction for unlawful possession  


or transportation of game.  


                    Roberts also appeals his composite sentence as excessive.  We affirm the  


sentence because, given the facts of Roberts's case, it is not clearly mistaken.  


           Underlying facts  


                    In  2011, a hunter contacted Michael Roberts for assistance in hunting a  


bear.  For a fee of $5000, Roberts agreed to fly the man to a specified hunting location  


and to otherwise assist him in the hunt.  


                    After several failed hunting attempts, two of Roberts's other clients joined  


the hunting party for the next attempt.  The four flew to Cape Yakataga and then hunted  


the next day.   They were successful in taking two black bears.   But while two of the  


hunters were field-dressing the  two  black bears,  either Roberts or the other hunter  


illegally shot a third black bear.  


                    After this Cape Yakataga hunt came to the attention of the authorities, the  


State filed sixteen misdemeanor charges against Roberts  (some  relating to the Cape  


Yakataga hunt, and some relating to other hunts).  One of these charges was for unlawful  


possession or transportation of the third bear killed at Cape Yakataga.  


                    Before trial, Roberts pleaded no contest to eight counts of flying an aircraft  


without a license.  The jury acquitted Roberts of all of the remaining counts except the  


count charging him with unlawful possession or transportation of the bear.  

                                                               - 3 -                                                          2546

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

              The trial judge committedobvious error in failing to instruct the jurors that                                                                    

              their decision had to be unanimous, but this error was cured when the                                                                             

             judge polled the individual jurors                          

                            As in all criminal trials in Alaska,                                     Roberts's jury was required to reach                                

                                                                                                 3    However, the trial judge neglected to  

unanimity before they could return a verdict.                                                                                                                                   

inform the jurors of this requirement.  


                            Roberts's attorney did not object at the time to the trial judge's failure to  


instruct the jurors on the  requirement of a unanimous verdict, but on appeal Roberts  


argues that the judge's failure to give such an instruction constituted plain error.  


                            We  agree  with  Roberts  that  the  judge's  failure  to  instruct  the  jurors  


concerning the requirement of unanimity was obvious error.  However, we conclude that  


this error was cured when, upon the announcement of the jury's several verdicts (most  


of which favored Roberts), the trial judge polled the jurors individually.  


                            The judge asked each juror to tell him "whether these are your verdicts".  


In response, each juror responded in the affirmative.  


                            Although  this question has not previously been addressed by the Alaska  


appellate courts,  the majority of jurisdictions that have dealt with this question have  


concluded that a judge's failure to instruct the jury on the requirement of a unanimous  


decision is cured when the individual jurors are polled and they each affirm that they  



concur in the announced verdicts.  


                            Roberts argues that the polling in his case was inadequate because, when  


the  judge  asked  the  individual  jurors  whether  the  announced  verdicts  were  "your  


       3      Alaska Criminal Rule 31(a).                              



              See State v.Plantin,682 N.W.2d653, 662 (Minn. App. 2004) (collecting cases);State  


v. Kircher , 525 N.W.2d 788, 791-92 (Wis. App. 1994) (collecting cases); Fountain v. State ,  


275 A.2d 251, 252 (Del. 1971).  

                                                                                      - 4 -                                                                                2546

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


verdict", some of the jurors potentially could have interpreted the judge's question as  


simply asking them to confirm that the verdicts announced in court were, indeed, the  


verdicts reached by the jury as a group, without regard to whether the individual juror  


agreed with the announced decisions.   We have listened to the audio recording of the  


juror polling, and we conclude that it does not support Roberts's suggestion.  The audio  


record shows that the trial judge directed an individualized inquiry to each juror.   We  


conclude that, had there been one or more dissenting jurors, they would have spoken up  


during this polling process.  We are confident that the verdicts returned by the jury in  


Roberts's case (one conviction and several acquittals)  reflect the jurors' unanimous  




                     For these reasons, we conclude that the polling of the jurors at the end of  


the trial cured the trial judge's error in failing to instruct the jury on the requirement of  


a unanimous decision.  


           The trial judge committed error whenthe judge restricted the content of the  


           defense attorney's summation to the jury - but, given the arguments that  


           the defense attorney was able to make despite the trial judge's restriction,  


           the judge's error was harmless  


                     During his closing argument to the jury, Roberts's defense attorney began  


to  discuss the "four burdens of proof that we have ... in our judicial system."                                             The  


defense attorney apparently intended to discuss the concepts of "probable cause", proof  


by a "preponderance of the evidence", proof by "clear and convincing evidence", and  


proof "beyond a reasonable doubt".  


                     However, before the defense attorney could begin discussing these topics,  


the prosecutor objected. The prosecutor took the position that any discussion of the three  


lesser  burdens   of  proof  would  confuse  the  jury.                              The  trial  judge  sustained  the  

                                                               - 5 -                                                          2546

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

 prosecutor's objection and ruled that the defense attorney was not permitted to discuss                                                                                                                                                 

 these lesser burdens of proof:                                                           


                                                            The Court                     :    I think you can argue that [proof beyond                                                          

                                        a reasonable doubt] is the highest burden in the land,                                                                                                             and  

                                        [you can talk about] what a high burden it is.                                                                                         But as far as                    

                                        comparing   it   to   other   legal   standards   that   are   not   being  

                                        instructed on, I don't think that's appropriate.                                                                                       

                                        On appeal, Roberts challenges this restriction on his attorney's argument                                                                                                                 

 to the jury.                       

                                        Both the Alaska Supreme Court and this Court have acknowledged that a                                                                                                                                                

 trial judge has a considerable degree of authority to control the scope and content of the                                                                                                                                                         

                                                                                                                           5  For example, the trial judge can preclude the  

 arguments that attorneys make to the jury.                                                                                                                                                                                                          

 attorneys from arguing legal theories that are unsupported by the evidence or that are  


                                                                                                                                                                                            6  But we conclude that  

 inconsistent with the law declared in the court's jury instructions.  


 the trial judge overstepped the bounds of that authority in Roberts's case.  


                                        The concept of proof "beyond a reasonable doubt" may be familiar to  


 lawyers and judges, but even lawyers and judges would concede that this phrase is not  


 self-explanatory.                                     Because the phrase "beyond a reasonable doubt" does not have a  


 universally  understood   meaning,  the  Alaska  committee  on  criminal  pattern  jury  


 instructions developed Criminal Pattern Jury Instruction 1.06 to explain this concept to  


jurors.  But this pattern jury instruction has its flaws.  


           5        See Shane v. Rhines                                     , 672 P.2d895,901 (Alaska                                                   1983);  Castillo v. State                                        , unpublished,   

 1994 WL 16196506, *1 (Alaska App. 1994).                                                                                       



                    See Clarke v. State, unpublished, 2009 WL 3681650, *5 (Alaska App. 2009) (holding  


 that a trial judge may properly forbid a defense attorney from arguing self-defense when  


 there is insufficient evidence to justify a jury instruction on self-defense).  

                                                                                                                         - 6 -                                                                                                                    2546

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

                                      The relevant portion of Criminal Pattern Jury Instruction 1.06 defines the                                                                                                                             

concept of "beyond a reasonable doubt" in two ways:                                                                                                      by listing various things that this                                                


concept does                          not  mean, and also by trying to explain what the concept                                                                                                         does  mean.    


                                      The pattern instruction declares that proof "beyond a reasonable doubt"  


does not mean proof by "mere suspicion or speculation" - nor, on the other hand, does  


it mean proof "beyond all possible doubt".  Rather, according to the instruction, the test  


is whether there is a "reasonable doubt" - a concept which the instruction defines as "a  


doubt based upon reason and common sense".  


                                      The  pattern  instruction  then  declares  that  proof  "beyond  a  reasonable  


doubt" is "proof of such a convincing character that, after consideration, you would be  


willing to rely and act upon it without hesitation in your important affairs."  


                                      This formulation of the test - the idea that jurors must find the evidence  


so convincing that they would act upon it "without hesitation" in the most important of  


their own personal affairs - has drawn substantial criticism.  


                                      For example, in the commentary to the federal pattern jury instructions, the  


Federal  Judicial  Center  drafters  question  whether  there  is  any  meaningful  analogy  

          7        The pertinent portion of Alaska Criminal Pattern Jury Instruction No. 1.06 reads:                                                                                                                       

                   [The] requirement ... that the prosecution must prove the defendant's guilt beyond                                                                                                                     

          a reasonable doubt ... is what is called the burden of proof.                                                                                                It is not required that the                                  

         prosecution prove guilt beyond all possible doubt, for it is rarely possible to prove                                                                                                                               

          anything to an absolute certainty.                                                            Rather, the                       test is one of reasonable doubt.                                                            A  

         reasonable doubt is a doubt based upon reason and common sense.                                                                                                                        Proof beyond a                           

         reasonable    doubt    must    be    proof    of    such    a    convincing    character    that,    after  

          consideration, you would be willing to rely and act upon it without hesitation in your                                                                                                                                

          important   affairs.     A   defendant   may   never   be   convicted   on   mere   suspicion   or  


                                                                                                                     - 7 -                                                                                                                2546

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

between, on the one hand, the decisions that juries must make in criminal cases and, on                                                                                                                                                                                         

the other hand, the decisions that people must make in their own important affairs.                                                                                                                                                                                          

                                           First, the drafters note that when people make decisions about their own                                                                                                                                                      

important affairs, those decisions normally do not require people to resolve conflicting                                                                                                                                                              

accounts of                           past events                           - which, of course, is the principal task facing a jury.                                                                                                                          Rather,  

making decisions about one's own important affairs normally requires people to make                                                                                                                                                                                   

predictions about the outcomes and consequences of their                                                                                                                                      potential future actions                                                       (or  


                                            Second, the federal drafters note that it is a fantasy to assume that people                                                                                                                                           

make important life decisions "without hesitation":                                                                           


                                                                  [The] decisions we make in the most important affairs                                                                                                  

                                            of our lives - choosing a spouse, a job, a place to live, and                                                                                                                        

                                           the   like   -   generally   involve   a   very   heavy   element   of  

                                           uncertainty and risk-taking.                                                                    [These decisions] are wholly                                                

                                           unlike the decisions [that] jurors ought to make in criminal                                                                                                            



Federal  Judicial  Center,   Pattern  Criminal  Jury  Instructions   (1987),  pp.  18-19  


(Commentary on Instruction 21).  

                                                                                                                                                                                                                   8   Justice  Ruth  Bader  


                                           In  her  concurring opinion  in  Victor  v.  Nebraska,  

Ginsburg endorsed  the  following instruction  on  "reasonable  doubt"  drafted  by  the  


Federal Justice Center:  



                                                                 The  government  has  the   burden  of  proving  the  


                                            defendant guilty beyond a reasonable doubt.   Some of you  


                                           may have served as jurors in civil cases, where you were told  


                                           that it is only necessary to prove that a fact is more likely true  


                                           than not true.  In criminalcases, the government's proof must  


           8          511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).                                                                                                                  

                                                                                                                                     - 8 -                                                                                                                                 2546

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

                                                               be more powerful than that.                                                                                                         It must be beyond a reasonable                                                               


                                                                                              Proof beyond a reasonable doubt is proof that leaves                                                                                                                                                                      

                                                               you firmly convinced of the defendant's guilt.                                                                                                                                                                    There are very                                   

                                                               few things in this world that we know with absolute certainty,                                                                                                                                                                             

                                                               and in criminal cases the law does not require                                                                                                                                                                                  proof   that  

                                                               overcomes    every    possible    doubt.       If,    based    on    your  

                                                               consideration of the evidence, you are firmly convinced that                                                                                                                                                                                                         

                                                               the defendant is guilty of the crime charged, you must find                                                                                                                                                                                                        

                                                               him   guilty.   If on the other hand, you think there is a real                                                                                                                                                                                               

                                                               possibility that he is not guilty, you must give him the benefit                                                                                                                                                                                      

                                                               of the doubt and find him not guilty.                                                                                                      

  Victor v. Nebraska                                                                       , 511 U.S. at 27, 114 S.Ct. at 1253 (concurring opinion of Justice                                                                                                                                                                                                                      


                                                               We,   like Justice Ginsburg, believe that this type of instruction is a great                                                                                                                                                                                                                                          

improvement   over   instructions   that   speak   of   "acting without                                                                                                                                                                                                                                hesitation   in   the   most  

important of one's personal affairs".                                                                                                                                         The above-quoted instruction avoids the serious                                                                                                                                                     

problems inherent in that formulation.                                                                                                                                          At the same time, it explains the concept of proof                                                                                                                                                         

"beyond a reasonable doubt" in straightforward terms, and it explicitly and meaningfully                                                                                                                                                                                                                                                                

distinguishes proof "beyond a reasonable doubt" from proof "by a preponderance of the                                                                                                                                                                                                                                                                                                                


                                                               We note that, in the federal instruction, juries are told that they must decide                                                                                                                                                                                                                                        

whether there is "a real possibility" that the defendant is not guilty.                                                                                                                                                                                                                                                           This mirrors the                                                  

                                                                                                                                                                              9  where the Supreme Court declared that when a  

language of                                             Chapman v. California                                                                                             ,                                                                                                                                                                                                                                   

court evaluates whether a constitutionalerror was harmless "beyond a reasonable doubt",  


                9               386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).                                                                                                                                                                                 

                                                                                                                                                                                                 - 9 -                                                                                                                                                                                            2546

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

this is equivalent to asking "whether                              there is a reasonable possibility" that the error                        

affected the outcome.                 10  

                       We say all of this, not to formally disapprove Alaska's Criminal Pattern  


Jury Instruction 1.06, but rather to explain why we conclude that the trial judge in the  


present  case  committed  error  when  he  prevented  Roberts's  defense  attorney  from  


explaining to the jurors that they could not find Roberts guilty merely because it was  


"probable" or "more likely than not" that Roberts had committed the crimes charged  


against him.  


                       Pattern Jury Instruction No.  1.06 does not expressly explain that proof  


"beyond a reasonable doubt" requires more than a probability of guilt.  Thus, it would  


have been helpful if the defense attorney had been allowed to clarify that the jury could  


not convict Roberts merely because he was "probably" or "likely" guilty - that Roberts  


could be convicted only if the jurors  were  convinced that there was no reasonable  


possibility that Roberts was not guilty.  


                       (Indeed, it would have been proper for the prosecutor or the trial judge to  


clarify this same principle.)  


                       Nevertheless, we find the trial judge's error to be harmless under the facts  


of Roberts's case. In his summation, Roberts's defense attorney engaged in an extensive  


discussion of the concept of proof "beyond a reasonable doubt", and he told the jurors  


that they could not find Roberts guilty merely because the State's evidence showed that  


there was good reason to think that Roberts was guilty.  


                       Given that the defense attorney was,  as a practical matter,  allowed  to  


contrast proof beyond a reasonable doubt with proof by a preponderance of the evidence,  


      10    Chapman, 386 U.S. at 24, 87 S.Ct. at 828.                             

                                                                      -  10 -                                                                2546

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

we conclude that the judge's erroneous restriction on the defense attorney's argument                                                                                         


did not affect the jury's verdict, so the error was harmless.                                                                             


                Why we conclude that the trial judge did not abuse his discretion when he  


               rejected Roberts's request for disclosure of the documents supporting the  


               State's unsuccessful application for a warrant to  search his attorney's  



                              After the State filed its charges against Roberts, the State discovered that  


Roberts had somehow obtained a copy of the charges before the judge had issued the  


criminal process against Roberts.  After being alerted to this irregularity, the prosecutor  


asked the district court to issue a warrant authorizing a search of the computer belonging  


to Roberts's defense attorney, Chadwick McGrady.  The State asserted that there was  


probable cause to believe that McGrady's computer contained information revealinghow  


Roberts had obtained an advance copy of the charging document.  While the State was  


applying  for  this  warrant,  members  of  the  Alaska  State  Troopers  physically  took  


possession of McGrady's law office for two hours.  


                              The  State's  search  warrant  application  was  ultimately  denied  -  and  


subsequent  investigation  revealed  that  Roberts  had  secured  the  charging document  


directly from the court clerk.  


                              Before trial,  Roberts's attorney sought disclosure of the search warrant  


application.   The State opposed this request for disclosure, but it filed the documents  


supporting the  search  warrant  application  under  seal with  the  district  court.                                                                                                  After  


reviewing  the  sealed  documents  in  camera,  the  district  court  denied  the  defense  


attorney's request for disclosure.  

        11     See Ingram v. State                       , 50 A.3d 1127 (Md. 2012) (holding that a trial judge's curtailment                                               

of a defense attorney's reference to the various degrees of proof was harmless error).                                                                                                  

                                                                                           -  11 -                                                                                       2546

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

                                            On appeal, Roberts asks us to independently examine these sealed materials                                                                                                                                       

and re-assess the district court's decision.                                                                                               We have done so.                                                 The sealed documents                     

consist of e-mails between the                                                                          prosecutor (James Fayette) and the defense attorney                                                                                                  

(Chadwick McGrady), as well as two "incident reports" prepared in connection with the                                                                                                                                                                                          

troopers' investigation of the premature disclosure of the charging documents and the                                                                                                                                                                                         

physical seizure of McGrady's law office.                                                                                                These documents contain nothing that is not                                                                                           

already of record.                                           We therefore uphold the district court's denial of Roberts's request                                                                                                                                

for disclosure of these materials.                                        

                      Roberts's challenge to his sentence                                                    

                                            Roberts was convicted of eight counts of flying an aircraft without a license                                                                                                                                        

and one                      count of unlawfully possessing or transporting game.                                                                                                                               For each of his flying                                

                                                                                                                                                                                                                            12   For the unlawful  

without a license convictions, Roberts faced a jail term of 6 months.                                                                                                                                                                                        

possession or transportation of game conviction, Roberts faced up to a year in jail, a fine  


of $10,000, and forfeiture of his airplane. 13  


                                            For these nine offenses, the district court sentenced Roberts to a composite  


term  of  340 days to serve.   (Roberts received 20 days to serve for each of the eight  


counts of flying without a license, and he received 180 days to serve (360 days with 180  


days suspended) for the unlawful possession or transportation of game.)  


           12         AS 02.35.120.                                 

           13         See 5 AAC 92.140(a) (defining unlawful possession or transportation);AS 16.05.925  


(declaring this offense to be a class  A misdemeanor); AS 12.55.135(a) (setting forth the  


penalty for class A misdemeanors); and AS 16.05.195 (authorizing forfeiture of airplanes  


used in hunting offenses).  


                                                                                                                                    -  12 -                                                                                                                                 2546

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

                                                          With regard to the game conviction, the court also imposed a $5000 fine                                                                                                                                                                                                                                    

and ordered forfeiture of the airplane that Roberts used for the Cape Yakataga hunt.                                                                                                                                                                                                                                                                                                    

Roberts now challenges this sentence as excessive.                                                                                                                                                                           

                                                          At the time of sentencing,                                                                                            Roberts was 51                                                             years   old.    He had a long                                                                           

criminal   history   -   more   than   25   criminal convictions,                                                                                                                                                                                         including at                                            least   five   prior  

convictions for hunting and game offenses.                                                                                                                                                 

                                                          In its sentencing remarks,                                                                                          the court noted Roberts's                                                                                             extensive criminal   

history, and the court observed that Roberts had received substantial sentences for prior                                                                                                                                                                                                                                                                        

offenses - sentences that failed to deter him.                                                                                                                                                             Based on Roberts's extensive criminal                                                                                                  

history, the court concluded that Roberts's actions were "in complete disregard of the                                                                                                                                                                                                                                                                                  


                                                          Given the facts                                                         of the present case and Roberts's criminal history,                                                                                                                                                                                   we  


conclude that the sentence imposed by the district court was not clearly mistaken.                                                                                                                                                                                                                                                                                        


                                                          The judgement of the district court is AFFIRMED.  


               14            McClain v. State                                                      , 519 P.2d 811, 813-14 (Alaska 1974).                                                                                              

                                                                                                                                                                                -  13 -                                                                                                                                                                              2546

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