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

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


         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 @



                                                                   Court of Appeals No. A-11878  

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


                                                                              O P I N I O N  


                                   Appellee.                          No. 2598 - May 4, 2018  


                      peal  from  the  Superior  Court,  Second  Judicial  District,  

                  Kotzebue, Paul A. Roetman, Judge.  

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


                  and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

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


                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  


                  Anchorage, and Craig W. Richards, Attorney General, Juneau,  


                  for the Appellee.  

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


                  Superior Court Judge. *  


                  Judge ALLARD.  

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

Constitution and Administrative Rule 24(d).  

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

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


 degree harassment.                                                                                                                                      

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


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


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


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


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


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



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


judge's retention of the alternate juror.  


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


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


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


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


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


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


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


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


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


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


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

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

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

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

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

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

                                                                            - 2 -                                                                      2598

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

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


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

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

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

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

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

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

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

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

later dismissed by the State.                                                             

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

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

case had already begun.                                              

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

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

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


of deliberations.                                                                                                                                                                                                                                                                                                                                

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


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



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


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


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

              4            Id. at 1061.  

              5            Id. at 1061-62.  

                                                                                                                                                                      - 3 -                                                                                                                                                                2598

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

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

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


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

                                                                                                                                                       Instead, our  


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


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



use proper procedural safeguards. 


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


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


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


reversal of the defendant's conviction.  


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



                                                                                                                                                  We also noted,  

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


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


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



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


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



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


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

       6     Id. at 1061-62.  

       7     Id.  

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

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

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

                                                                                   - 4 -                                                                              2598

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

                    The court may retain alternate jurors after the jury retires to  


                    deliberate.  The court must ensure that a retained alternate  


                    does not discuss the case with anyone until that alternate  


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


                    juror after deliberations have begun, the court must instruct  


                    the jury to begin its deliberations anew.  


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



deliberation substitutions. 

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


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


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


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


composition changed."12  



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


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


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


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


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


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


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


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


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

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


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


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


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

                                                              -  5 -                                                        2598

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

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

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

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

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

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



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


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


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


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


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


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


themselves at the time.  


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


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


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


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


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


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


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


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


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


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

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


                                                                                            -  6 -                                                                                    2598

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

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

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

that presumption here.                   14  


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


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


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


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


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



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



                        The judgment of the superior court is AFFIRMED.  

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

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

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

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

                                                                           -  7 -                                                                    2598  

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