NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
SWANEE F. SWAIN, )
) Court of Appeals No. A-2913
Appellant, ) Trial Court No. 3PA-S87-821CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
)
MARK C. ELLIS, ) Court of Appeals No. A-2957
) Trial Court No. 3PA-S87-819CR
Appellant, )
)
v. )
)
STATE OF ALASKA, ) [No. 1158 - September 20, 1991]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant Swain. Steven E. Sumida, Law
Offices of John C. Pharr, Anchorage for
Appellant Ellis. Shelley K. Chaffin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Swanee F. Swain and Mark C. Ellis were convicted by a
jury of robbery in the first degree, burglary in the first
degree, and assault in the third degree. They moved for a new
trial, alleging misconduct by one of their jurors. Superior
Court Judge Beverly W. Cutler denied the motion. On appeal,
Swain and Ellis contend that the court erred in failing to order
a mistrial. We remand.
The state's evidence at trial indicated that, on
November 17, 1986, Swain and Ellis entered the Keck residence
near Wasilla; they held John Schreiber, who was housesitting, at
gunpoint while they stole money, property, and cocaine. The two
men were accompanied by Mark Ellis' sister, Tina Ellis. Before
leaving the residence, Swain and Ellis tied Schreiber up and
knocked him out by hitting him over the head with a large
porcelin object -- apparently a flower pot. Schreiber did not
immediately report the robbery, evidently because drugs were
involved.
About two months later, in January of 1987, Ellis, his
sister, and another man -- not Swain -- committed a similar
burglary and robbery at a different Wasilla residence. In the
course of the crime, Tina Ellis held the homeowner, Carla
Schmelzer, and Schmelzer's infant daughter at gunpoint.
Later in 1987, after being implicated in the Schmelzer
robbery, Tina Ellis agreed to cooperate with the state and
reported participating with Swain and Ellis in the November 17,
1986, burglary and robbery at the Keck residence. The police
contacted Schreiber, who confirmed Tina Ellis' account of the
incident. Schreiber was unable to identify Tina Ellis'
accomplices, however, because he had had insufficient opportunity
to view them.
Swain and Ellis were subsequently charged and jointly
tried for breaking into the Keck residence and robbing Schreiber.
At trial, Tina Ellis and Schreiber were the primary prosecution
witnesses. The trial court allowed the jury to hear that Tina
Ellis had been implicated in the subsequent burglary and robbery
of the Schmelzer residence. However, the court issued a
protective order precluding any mention of Mark Ellis'
involvement in that offense.
The jury convicted Swain and Ellis on all charges.
Prior to sentencing both men moved for a mistrial, claiming among
other things that, during trial, one of the jurors, Darcella
Perry, had received prejudicial information from extrinsic
sources concerning the Schmelzer robbery.
In support of the mistrial motion, Swain and Ellis
submitted an affidavit signed by Carla Schmelzer, victim of the
Schmelzer robbery. Schmelzer disclosed that she was acquainted
with Perry and that Perry occasionally baby-sat for her.
According to the affidavit, Schmelzer had originally told Perry
about the robbery at her house shortly after it occurred; she did
not know at the time, however, who had committed it.
Schmelzer's affidavit further claimed that Schmelzer
spoke with Perry about the robbery again on March 20, 1988, while
Swain and Ellis' trial was in progress. According to the
affidavit, Perry mentioned that she was on jury duty; Schmelzer,
who was on standby as a potential prosecution witness in the
case, was aware that the trial was in progress. Schmelzer's
affidavit stated: "I asked Darcy [Perry] if it was Tina Ellis'
trial on which she was to serve. She buried her hands in her
face, shocked that I knew. I told her about the robbery of my
house by Tina and Mark Ellis. She did not know that that was the
case beforehand or she wouldn't have gotten in."
The state opposed Swain and Ellis' motion for mistrial.
In opposition to Schmelzer's affidavit, the state filed the
affidavit of its trial counsel describing an interview he had
with juror Perry. The state also submitted a transcript of an
interview of Perry conducted by an Alaska State Trooper. These
documents disclosed that Perry acknowledged her acquaintance with
Schmelzer and admitted being generally aware, just prior to Swain
and Ellis' trial, that Schmelzer had been robbed about a year
previously. Perry claimed, however, that she did not remember
Schmelzer having described the robbery in detail.
Perry further acknowledged speaking with Schmelzer
while Swain and Ellis' trial was in progress. She recalled
Schmelzer mentioning that Tina Ellis had robbed her. However,
Perry claimed no recollection of Schmelzer saying that Mark Ellis
had also been involved in that robbery. According to Perry, as
soon as Schmelzer mentioned Tina Ellis' participation in the
Schmelzer robbery, Perry told Schmelzer that it would be improper
to say anything more about the case. Perry admitted asking
Schmelzer not to mention their conversation to anyone. She
explained that she did not report her conversation to the court
because she thought that information concerning the Schmelzer
robbery was irrelevant to the charges for which Swain and Ellis
were on trial. Perry insisted that her vote as a juror was not
influenced by her communication with Schmelzer. She further gave
assurances that she never discussed any of the information she
learned from Schmelzer with other members of the jury.
To bolster this latter claim, the state submitted
additional affidavits from two other jurors, who confirmed that
Perry never mentioned, and the jury never discussed, the
possibility of Swain and Ellis' participation in the Schmelzer
robbery.
After reviewing the pleadings and hearing oral
argument, Judge Cutler denied the motion for a mistrial. The
judge found credible Perry's claim that her conversation with
Schmelzer had not influenced her decision as a juror. Relying on
the affidavits of other jurors, Judge Cutler further concluded
that Perry had never discussed the Schmelzer conversation with
other jurors. On this basis, the judge concluded that no
prejudice had been shown and that Swain and Ellis would not be
entitled to relief even if Schmelzer's account of her
conversation with Perry were taken as true.
Swain and Ellis moved for reconsideration, requesting
an opportunity for an evidentiary hearing. Judge Cutler held an
evidentiary hearing, at which Schmelzer and Perry testified.
Both witnesses essentially reiterated the positions they took in
the initial, written pleadings. At the conclusion of the
hearing, Judge Cutler reaffirmed her original decision, stating,
in relevant part:
Seeing the juror live say that she really
doesn't think it affected her, I don't see
any reason to believe that it affected her.
There's no showing that the fact that she
knew Tina Ellis and maybe Mark Ellis had
robbed another residence was that that
information was given to any of the other
jurors, so the only juror who needs to be
examined is her, and examining her it really
appears that she's saying it just did not
affect her verdict in any way, and I believe
that.
On appeal, Swain and Ellis contend that Judge Cutler
erred in failing to order a new trial. They argue that Perry's
ability to render a fair and impartial verdict was impaired by
her exposure to prejudicial information concerning Mark and Tina
Ellis' participation in the Schmelzer robbery. They also argue
that Perry's failure to disclose her acquaintance with Schmelzer
and her conversation concerning the Schmelzer robbery amounts to
misconduct depriving them of a fair trial.
These arguments require us to consider two related
lines of cases: the first deals with situations in which jurors
are exposed to potentially prejudicial matter outside the trial
record; the second deals with instances of jury misconduct
threatening the integrity of the verdict.
The first line of cases is exemplified by this court's
recent decision in Ciervo v. State, 756 P.2d 907 (Alaska App.
1988), a case in which several jurors were exposed to a newspaper
story disclosing that the defendant had previously entered and
withdrawn a no contest plea to the charge at issue.
Relying on Watson v. State, 413 P.2d 22, 25 (Alaska
1966), an Alaska Supreme Court case involving exposure of jurors
to publicity, this court recognized that "[e]ach case of juror
exposure to publicity . . . must turn on its special facts."
Ciervo, 756 P.2d at 910. We went on to refer to the ABA
Standards for Criminal Justice as an appropriate guide for
determining when the facts of a given case require a mistrial:
The ABA Standards for Criminal Justice set
forth the following standard for determining
when motions for mistrial should be granted:
On motion of the defendant,
the verdict of guilty in any
criminal case shall be set aside
and a new trial granted whenever,
on the basis of competent evidence,
the court finds a substantial
likelihood that the vote of one or
more jurors was influenced by
exposure to prejudicial matter
relating to the defendant or to the
case itself that was not part of
the trial record on which the case
was submitted. Nothing in this
recommendation is intended to
affect the rules or procedures in
any jurisdiction concerning the
impeachment of jury verdicts.
Id. (quoting II Standards for Criminal Justice 8-3.7 (Approved
Draft 1978 & Supp. 1982)).
The Alaska Supreme Court has formulated a slightly
different standard for cases involving juror misconduct. The
leading Alaska case is Fickes v. Petrolane-Alaska Gas Service,
Inc., 628 P.2d 908 (Alaska 1981), in which a juror failed to
reveal his acquaintance with an important witness. During
deliberations, the juror relied on his acquaintance to vouch for
the reliability of the witness.
In deciding Fickes, the supreme court reiterated the
two-prong standard it first set forth in West v. State, 409 P.2d
847, 852 (Alaska 1966):
In West v. State, we established the
standard for determining whether juror
misconduct requires a new trial:
"Whether the verdict should be set
aside and a new trial ordered rests
in the sound discretion of the
trial judge, but generally the
verdict should stand unless the
evidence clearly establishes a
serious violation of the juror's
duty and deprives a party of a fair
trial." (emphasis added).
In West, we observed that there is a
general policy against allowing a juror to
impeach the jury's verdict, but that
exceptions to this general rule are
recognized when the kind of misconduct
claimed is "fraud, bribery, forcible coercion
or any obstruction or justice."
628 P.2d at 910 (citations omitted).
Considering the first prong of this test, the court
found that the juror's failure to disclose his acquaintance with
the witness, and his reliance on this acquaintance during
deliberations, was "tantamount to an obstruction of justice."
Id. Turning to the second prong of the standard -- whether the
misconduct deprived a party of a fair trial -- the court
announced three relevant criteria:
Three considerations provide guidelines for
making this determination. First, if the
party asserting prejudice had known the true
facts, is it probable that it would have
challenged the juror? Second, did the
improper comment merely go toward a
collateral matter, e.g., the general
credibility of a witness, or did it go to the
essence of a claim or defense? Third, viewed
objectively, was the probable effect of the
comment prejudicial?
Id. at 911 (citations and footnotes omitted).
The Ciervo and Fickes standards -- the former governing
juror exposure to extraneous prejudicial matter and the latter
governing juror misconduct -- share a common objective: to
assure a fair trial by protecting the integrity of jury verdicts.
Thus, while the two standards differ in form, they are
essentially similar in substance.1 Both uphold the same
fundamental precept: "In order for a defendant to receive a fair
trial, the jurors must all be impartial." Ciervo, 756 P.2d at
910 (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)).
In the present case, Swain and Ellis' challenge to
their jury's verdict is susceptible to analysis under both tests.
We turn first to the Ciervo test -- the standard primarily relied
upon by the trial court.
In declining to order a new trial, Judge Cutler relied
strongly on Ciervo, which was newly decided at the time.
Although Judge Cutler scrupulously adhered to Ciervo, we are
compelled to find error; the error stems from a basic flaw in our
Ciervo decision, rather than from Judge Cutler's application of
the case.
As we have previously noted, in Ciervo we followed ABA
Standard 8-3.7 as a guide for determining whether a mistrial
should be granted due to a juror's exposure to matter outside the
trial record. The standard calls for a mistrial whenever "the
court finds a substantial likelihood that the vote of one or more
jurors was influenced by exposure . . . ." II Standards for
Criminal Justice, 8-3.7.
Applying this standard in Ciervo, we found no
substantial likelihood that any juror's vote had been influenced.
The record established that only one juror had read and
understood the potentially prejudicial newspaper article at issue
in that case. As to that juror, we emphasized: "The one juror
who remembered reading and understanding the prejudicial portion
of the article assured the court that the article did not
influence her decision." Ciervo, 756 P.2d at 910 (footnote
omitted). This passage from our decision plainly implied that,
in determining whether a substantial likelihood of influence
exists, the reviewing court may properly consider a juror's
testimony concerning the subjective impact that the potentially
prejudicial materials actually had.
Understandably relying on Ciervo, Judge Cutler, in the
present case, emphasized juror Perry's assurances that the
information she received from Schmelzer played no part in her
decision on the issue of Swain and Ellis' guilt. Since Judge
Cutler found Perry's testimony credible, she concluded that Swain
and Ellis had failed to establish any reasonable possibility that
Perry's conversation with Schmelzer had been prejudicial.
Unfortunately, Ciervo is mistaken in suggesting the
propriety of a subjective standard for determining the influence
on a juror of exposure to potentially prejudicial extraneous
matter. Although the point was lost on us in Ciervo -- perhaps
because the parties did not raise it or because it would not have
been determinative in any event -- there is a wealth of authority
holding that, for purposes of determining the likelihood that a
juror's vote has been influenced, a reviewing court must apply an
objective test and is precluded from considering evidence
concerning the subjective impact of the extraneous matter on any
juror.
This point is made clear by the commentary to ABA
Standard 8-3.7, which states, in relevant part:
[T]his standard was drafted to avoid conflict
with the universally recognized rule against
the impeachment of jury verdicts. That rule
bars any inquiry into the mental processes of
the jurors concerning their deliberations on
the question of guilt or innocence.
Accordingly, standard 8-3.7 directs the
court's inquiry only to the fact of exposure
to extrajudicial material. The ultimate
issue of influence on the juror is resolved
by reference to the substantial likelihood
test, an objective standard. In effect, the
court must examine the extrajudicial material
and then judge whether it is inherently
likely to have influenced the juror. Though
this test may seem unduly speculative, it has
significant support in the case law, and
there appears to be no more precise way to
articulate the standard.
II Standards for Criminal Justice commentary to 8-3.7 at 58.
This commentary finds strong support in the Alaska
Rules of Evidence. A.R.E. 606(b) provides, in relevant part:
Upon an inquiry into the validity of a
verdict . . . a juror may not be questioned
as to any matter or statement occurring
during the course of the jury's deliberations
or to the effect of any matter or statement
upon his or any other juror's mind or
emotions as influencing him to ascent to or
dissent from the verdict . . . or concerning
his mental processes in connection therewith,
except that a juror may testify on the
question whether extraneous prejudicial
information was improperly brought to the
jury's attention or whether any outside
influence was improperly brought to bear upon
any juror.
The plain language of A.R.E. 606(b) establishes that
jurors may be questioned only as to whether extraneous matters
were brought to their attention, and not as to what the effect of
any such matter may have been. The language of the rule is
substantiated by the rule's commentary, which provides, in
relevant part:
Generally there has been agreement among
common law jurisdictions that the mental
operations and the emotional reactions of
jurors during the deliberative process should
not be the subject of later inquiry. There
has been substantial disagreement as to
whether a juror should be able to impeach a
verdict in which he participated by
testifying about other matters. See 8
Wigmore 2352, 2353, 2354. This rule, like
the Federal Rule after which it is modeled,
limits impeachment of jury verdicts to
inquiries about extraneous prejudicial
information and outside influences which may
have been improperly brought to bear upon any
juror.
Commentary to A.R.E. 606(b).
Moreover, in the closely related area of juror
misconduct, the Alaska Supreme Court's decision in Fickes
expressly adopts an objective standard for determining the
potential impact of misconduct on a jury's verdict. In
articulating its three-factor test for determining when
misconduct deprives a party of a fair trial, the court in Fickes
described the third factor as follows: "Third, viewed
objectively, was the probable effect of the comment prejudicial?"
Fickes, 628 P.2d at 911 (footnotes omitted). In connection with
this consideration, the court went on to note: "The trial court
was correct in its view that it cannot inquire into the actual,
that is, subjective, impact of [a juror's] statement upon
particular jurors." Id. at 911 n.2 (citations omitted).
Many other jurisdictions have expressly recognized that
an objective test is applicable in cases like the present case.
They explain that a reviewing court "must determine whether such
extraneous information was prejudicial by determining how it
would effect [sic] an objective `typical juror.'" Urseth v. City
of Dayton, 680 F. Supp. 1084, 1089 (S.D. Ohio 1987) (citing Owen
v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984); United States v.
Bassler, 651 F.2d 600, 603 (8th Cir. 1981); Miller v. United
States, 403 F.2d 77, 83 n.11 (2d Cir. 1968); 3 Weinstein &
Berger, Weinstein's Evidence 606[5] (1985 & May, 1987 cum.
supp.)). See also United States v. Hornung, 848 F.2d 1040, 1045
(10th Cir. 1988); United States v. Bruscino, 687 F.2d 938, 940-41
(7th Cir. 1982) (en banc); United States v. Gerardi, 586 F.2d
896, 898 (1st Cir. 1978); Wiser v. People, 732 P.2d 1139, 1141-42
(Colo. 1987) (citing, inter alia, United States v. Vasquez, 597
F.2d 192 (9th Cir. 1979); United States v. Howard, 506 F.2d 865
(5th Cir. 1975); Louisell and Mueller, Federal Evidence, 291,
at 55 (1986 Supp.)). The function of the "objective"
formula is succinctly explained in United States v. Allen, 736 F.
Supp. 914, 918 (N.D. Ill. 1990): "The determination is objective
precisely because the trial judge cannot rely upon any testimony
of the jurors as to their subjective assessment of the actual
impact of the extraneous evidence or influence on their
deliberations." In other words, inquiry to determine whether
extraneous contact affected the juror is "limited to
identification of those extraneous sources of information -- once
the existence of external influences has been established,
neither the Court nor counsel may inquire into the subjective
effect of these external influences upon particular jurors."
Urseth, 680 F. Supp. at 1089 (citing Owen, 727 F.2d at 646;
Bassler, 651 F.2d at 603; Miller, 403 F.2d at 83 n.11; 3
Weinstein & Berger, Weinstein's Evidence 606[5] (1985 & May,
1987 cum. supp.)).
In short, we are convinced that our decision in Ciervo
is misleading and must be disavowed to the extent that it
suggests that courts may properly consider evidence of the
actual, subjective impact of extraneous prejudicial matter on a
juror's deliberations. The court erred in so doing.2
In the present case, the trial court's decision to deny
Swain and Ellis' motion for a mistrial turned precisely on this
aspect of Ciervo. As a basis for concluding that no reasonable
possibility of juror influence had been established, Judge Cutler
placed strong reliance on juror Perry's assurances that her vote
had not actually been swayed by her conversation with Schmelzer.
In some situations, mistaken reliance on a juror's
subjective statements might well be inconsequential. For
example, in the present case, Judge Cutler's emphasis on juror
Perry's assurances would at worst have amounted to harmless error
if it were nevertheless objectively clear that no substantial
likelihood of juror influence existed -- that is, if it were
apparent that no reasonable juror would have been influenced by
the information Perry gained from Schmelzer.
No such objective clarity emerges from the record in
this case, however, because it is not certain what Schmelzer told
Perry. Apparently because Judge Cutler relied on Perry's
subjective assurances to negate the likelihood of any improper
influence, the judge did not definitively resolve the primary
factual dispute emerging from Schmelzer's and Perry's testimony.
Schmelzer unequivocally claimed to have told Perry not only that
she had been robbed by Tina Ellis, but further that Mark Ellis
had also been a participant in the crime. Perry, in contrast,
was more equivocal. She acknowledged being told that Tina had
robbed Schmelzer; she further acknowledged that Mark Ellis' name
had been mentioned during the mid-trial conversation with
Schmelzer. Perry claimed, however, that she did not recall
Schmelzer ever specifically saying that Mark Ellis had actually
participated with Tina Ellis in the robbery.
The question of whether Schmelzer told Perry of Mark
Ellis' involvement in the Schmelzer robbery is, in our view, of
crucial significance. During the course of trial, Swain and
Ellis' jury was apprised that Tina Ellis had been implicated in a
burglary and robbery at the Schmelzer residence and that, in
committing the offense, Tina had held Carla Schmelzer at
gunpoint. Accordingly, if Schmelzer told Perry only of Tina
Ellis' involvement, without describing Mark Ellis' role, Perry
would have learned little that was not independently revealed at
trial. There would be little objective basis for finding a
substantial likelihood that Perry's vote "was influenced by
exposure to prejudicial matter that was not part of the trial
record on which the case was submitted to the jury." II
Standards for Criminal Justice 8.3-7.
On the other hand, if Schmelzer did expressly disclose
Mark Ellis' role in the Schmelzer robbery, Perry would have been
privy to significant information that was not presented at trial.
Disclosure of Ellis' role in the Schmelzer robbery was
specifically precluded by a protective order. Given the
similarities between the Schmelzer robbery and the robbery for
which Swain and Ellis were on trial, disclosure of Ellis'
participation in the Schmelzer case would have strongly suggested
his propensity to engage in conduct similar to that with which he
was charged. From an objective point of view, it is difficult to
imagine that exposure to this type of information would have no
influence on a typical juror's vote, particularly when the
information comes from an acquaintance of the juror who claims to
have been a victim of the defendant's misconduct.3
Moreover, one of the primary lines of defense at trial
was that Tina Ellis had fabricated the entire story concerning
the burglary and robbery at the Keck residence -- a defense
rendered at least facially plausible by Schreiber's failure to
report the crime. Disclosure that both Tina and Mark Ellis had
subsequently committed a similar robbery together would have
rendered it far more difficult to accept this line of defense as
plausible.
Finally, disclosure of Mark Ellis' participation with
Tina in the Schmelzer robbery would immeasurably have enhanced
the possibility of prejudice to Swain. Faced with information
that both Mark and Tina Ellis had participated in another similar
robbery with an unnamed third person, a typical juror might well
be tempted to draw the inference that Swain was that third
person. This, in turn, would enhance the likelihood that the
determination of both Swain and Ellis' guilt might be colored by
a perception that they had a propensity for teaming up with Tina
Ellis to commit precisely the type of misconduct for which they
were charged.
Applying ABA Standard 8-3.7 objectively, we believe
that denial of a motion for mistrial in this case would be an
abuse of discretion if, as a factual matter, the trial court
found that Schmelzer told Perry of Mark Ellis' role in the
Schmelzer robbery.
We reach the same conclusion when we apply the
alternative Fickes standard governing juror misconduct. The
first prong of the Fickes test requires proof of a serious
violation of a juror's duty -- misconduct akin to fraud, bribery,
coercion, or obstruction of justice. Fickes, 628 P.2d at 910.
The requirement appears to be satisfied here. Just as a juror's
failure to reveal his acquaintance with a witness was found to be
tantamount to an obstruction of justice in Fickes, so too was it
an obstruction of justice for Perry not to disclose her
friendship with Schmelzer or the fact that she had talked to
Schmelzer about the Schmelzer robbery. That Perry's reticence
may have been inadvertent or well-intentioned does not alter the
situation. In Fickes, the supreme court was disposed to find
conduct amounting to an obstruction of justice regardless of
whether the juror acted intentionally or inadvertently. Id.
Here, as in Fickes, regardless of Perry's motivation, her failure
to disclose was unfair to the parties in that it deprived them of
the opportunity to challenge Perry or to question her further on
the issue of actual bias. See id. at 911.
Whether juror Perry's failure to disclose her
conversation with Schmelzer deprived Swain and Ellis of a fair
trial -- the second prong of the Fickes standard -- requires
consideration of the three factors enumerated in that case. In
our view, the outcome of this process depends on how much
Schmelzer told Perry.
The first Fickes factor is whether Swain and Ellis
would probably have challenged Perry had they been apprised of
her conversation with Schmelzer. Id. While the issue might be
debatable if Schmelzer and Perry had spoken only of Tina Ellis'
participation in the Schmelzer robbery, it seems apparent that a
challenge would almost certainly have been exercised if Schmelzer
had also told Perry of Mark Ellis' involvement.
Factor two concerns the importance of the information
related by Schmelzer to Perry -- that is, did the information
merely involve collateral issues or did it go to the essence of
the case? Id. The general topic of the Schmelzer/Perry
conversation falls somewhere between the two extremes of being
collateral and essential. Precisely where it falls, however,
depends on exactly what was communicated. Disclosure that Perry
had learned of Mark Ellis' participation in the Schmelzer robbery
would have been far less collateral than mere disclosure of her
knowledge of Tina's role in the crime.
The final Fickes factor is the probable effect, in
objective terms, of the Schmelzer/Perry conversation. Id.
Consideration of this factor leads to the same conclusion that we
reached in applying the Ciervo standard. If Perry was
specifically told by Schmelzer of Mark Ellis' role, it would, in
our view, be difficult to objectively conclude that the
information would not have tended to be prejudicial.
In summary, applying both the Ciervo and Fickes
approaches to the circumstances in this case, we conclude that
the need for a mistrial turns on how much Schmelzer told Perry.
Because this issue requires resolution of disputed facts that
were not definitively addressed below, we find it necessary to
remand the case to the superior court for further findings. We
hold that, on remand, a mistrial should be declared unless the
superior court determines that Perry was not told of Mark Ellis'
participation in the Schmelzer robbery.4
This case is REMANDED for further proceedings in
conformity herewith.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Indeed, clear distinctions have not always been drawn
between claims of juror misconduct and claims of exposure to
potentially prejudicial extrajudicial materials. For example, in
Watson v. State, 413 P.2d 22, 24 (Alaska 1966), the supreme
court, in considering a case involving exposure of jurors to
prejudicial newspaper articles, relied on the standard for juror
misconduct that it had previously formulated in West v. State,
409 P.2d 847, 852 (Alaska 1966). The court apparently assumed
that both categories of cases were amenable to the same standard.
2. We emphasize that A.R.E. 606(b) expressly permits the
use of juror testimony to determine whether and to what extent
"extraneous prejudicial information was improperly brought to the
jury's attention or whether any outside influence was improperly
brought to bear upon any juror." Thus, in the current case,
Judge Cutler acted properly in considering Perry's testimony
insofar as Perry indicated that she did not mention her
conversation with Schmelzer to any other juror. Similarly, Judge
Cutler properly considered the affidavits of other jurors
confirming that Perry never mentioned the Schmelzer conversation.
Judge Cutler did not err in relying on this evidence as a basis
for the objective conclusion that the effect of the
Schmelzer/Perry conversation was necessarily limited to Perry and
had no influence on any other juror. This determination,
however, is not dispositive on the issue of whether a mistrial
was called for in the present case, since, as we recognized in
Ciervo, "In order for a defendant to receive a fair trial, the
jurors must all be impartial." 756 P.2d at 910. The relevant
issue here is whether, in objective terms, a substantial
likelihood exists that Perry's conversation with Schmelzer
influenced Perry's vote.
3. We note that other courts have found reversible error
stemming from exposure of jurors to information relating to a
defendant's participation in prior similar misconduct. See,
e.g., Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988). The
Alaska Supreme Court has found harmless error when jurors were
improperly allowed to hear evidence of other misconduct by the
defendant that was dissimilar to the misconduct charged and not
otherwise inherently prejudicial. See, e.g., Fields v. State,
629 P.2d 46 (Alaska 1981). Here, however, the similarities
between the Schmelzer and Keck robberies clearly make Fields
distinguishable.
4. Our decision to remand makes it unnecessary at this
time to resolve Swain's claim that the trial court erred in
restricting his cross-examination of Tina Ellis. Swain raises
one additional issue, however, that requires our consideration.
He argues that the trial court erred in denying his motion for
judgment of acquittal. The motion was based on AS 12.45.020,
which requires that the testimony of an accomplice be
"corroborated by other evidence that tends to connect the
defendant with the commission of the crime . . . ." Swain argues
that the testimony of Tina Ellis, an accomplice, was
uncorroborated as to his own participation.
We are inclined to agree with Swain that the evidence
discussed by the parties in their briefs would not, standing
alone, be sufficient to corroborate Tina Ellis' testimony
implicating Swain. The parties' briefs, however, have overlooked
at least two areas in which evidence corroborates Tina Ellis'
testimony. First, the state presented telephone records
establishing a series of telephone calls between Ellis' residence
in Anchorage and Swain's in Eagle River on the date of the
alleged offense. The timing of the calls coincided with that of
the robbery. Second, Ellis' father, who testified for the
defense and attempted to establish an alibi, indicated that
Swain, Tina Ellis, and Mark Ellis had all been together at his
home in Anchorage on the night of the offense. Although this
evidence was presented as part of the defense case, it may
properly be considered in determining the sufficiency of the
evidence at trial. Martin v. Fairbanks, 456 P.2d 462 (Alaska
1969), overruled on other grounds, Whitton v. State, 479 P.2d 312
(Alaska 1970). Viewing the testimony of Ellis' father in the
light most favorable to the state, the jury could well have
relied on it as linking Swain to Tina and Mark Ellis on the night
of the offense, thus lending credence to Tina Ellis' testimony
that Swain was a participant in the crime.
Considering this evidence in conjunction with the other
evidence discussed by the parties in their briefs, we conclude
that the totality of the evidence in the record would suffice to
induce "a rational belief that the accomplice was speaking the
truth" in implicating Swain. Brown v. State, 693 P.2d 324, 329
(Alaska App. 1984) (quoting Oxenberg v. State, 362 P.2d 893, 897
(Alaska 1961)). We find no error in the denial of Swain's motion
for a judgment of acquittal.
