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Crouse v. Municipality of Anchorage (11/07/2003) ap-1905
Crouse v. Municipality of Anchorage (11/07/2003) ap-1905
NOTICE
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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ADONNA L. CROUSE, )
) Court of Appeals No. A-
8434
Appellant, ) Trial
Court No. 3AN-02-4632 CR
)
v. ) O P I N I O
N
)
MUNICIPALITY OF ANCHORAGE, )
)
)
Appellee. )
[No. 1905 - November 7, 2003]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy,
Judge.
Appearances: Stephanie Patel, Law Office of
Dan Allan, Anchorage, for Appellant. John E.
McConnaughy III, Assistant Municipal
Attorney, and William A. Greene, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury intended to convict Adonna L. Crouse of driving
under the influence, but it filled out the wrong verdict form and
mistakenly convicted her of the lesser-included offense of
reckless driving. The district court judge immediately learned
of this error, and allowed the jury to revise its verdict.
Crouse argues that the court should have entered a judgment
convicting her of reckless driving without inquiring into the
jurors intent. She also argues that the court staffs ex parte
contact with the jury regarding this verdict form deprived her of
her constitutional right to be present at every stage of the
trial.
Having reviewed the record, we reject these claims.
The trial judge learned as soon as he announced the verdict that
it did not accurately convey the jurys unanimous decision; under
these circumstances, he was authorized to inquire into the jurors
intent and to send the jury back into deliberations with the
proper verdict forms. Moreover, while we agree that the court
staff erred in providing the jury with a verdict form without
authorization from the court and notice to the defendant, we
conclude that this error was harmless beyond a reasonable doubt.
We therefore affirm the decisions of the district court.
Facts and proceedings
Crouse went to trial on a charge of driving under the
influence.1 After the close of evidence, District Court Judge
Sigurd E. Murphy instructed the jury that if it acquitted Crouse
of driving under the influence, it was required to return a
verdict on the lesser-included offense of reckless driving.
Judge Murphy held up two verdict forms he said would be attached
to the back of the jurys packet of instructions one form to
return a verdict on the charge of driving under the influence,
and the other to use if the jury returned a verdict on reckless
driving.
At some point during deliberations, the jury discovered
that it had only one verdict form the form to use if it returned
a verdict on the lesser-included offense of reckless driving.
Consequently, after the jurors decided Crouse was guilty of
driving under the influence, the forewoman informed the bailiff
that they were missing one of the verdict forms. The bailiff
relayed this information to the in-court clerk. The in-court
clerk, seeing a form on the bench, and assuming it was the
missing verdict form, gave it to the bailiff, who delivered it to
the jury. The bailiff said nothing to the jurors when he gave
them the verdict form. As it turned out, the verdict form on the
bench was one the Municipality had proposed and Judge Murphy had
rejected. The jury forewoman wrote guilty on this form
apparently without reading it and then sent a note to the court
informing it that the jury had reached its verdict. The jurors
did not deliberate on the charges between the time the bailiff
gave them the wrong form and when they sent a note to Judge
Murphy indicating that they had arrived at a decision.
The court reconvened so that the jurys verdict could be
announced. But immediately after Judge Murphy read the verdict
which declared that the jury had found Crouse not guilty of
driving under the influence and guilty of the lesser-included
offense of reckless driving the jury forewoman objected,
stating: No, thats not what we reached. Judge Murphy then
observed that the verdict form he had just read was not the form
he had submitted to the jury, but the one he had rejected. The
forewoman and one other juror then explained what had happened:
they discovered that a verdict form was missing, asked the
bailiff for the missing form, and then wrote guilty on that form,
believing they were convicting Crouse of driving under the
influence. After conferring with counsel, Judge Murphy polled
the jury, and all the jurors asserted that they had intended to
convict Crouse of driving under the influence. Judge Murphy then
questioned the jurors, the in-court clerk, and the bailiff in
more detail, and their responses confirmed the above sequence of
events.
Crouse objected to Judge Murphys inquiry into the
jurors intent, arguing that the court was required to enter a
conviction for reckless driving because the jurys verdict had
been read in open court and was therefore final. In the
alternative, Crouse argued that the court should order a
mistrial.
Judge Murphy disagreed, and sent the jury back to
deliberate with the jury instructions and the proper verdict
forms. The jury returned a verdict convicting Crouse of driving
under the influence. Crouse then moved for a new trial, arguing
that the judge had improperly inquired into the reasoning behind
the jurys verdict. She also argued that the bailiffs ex parte
communications with the jury had infringed on her constitutional
right to be present at every stage of the proceedings. Judge
Murphy denied Crouses new trial motion, ruling that despite the
unfortunate confusion over the verdict forms, the jurors had
properly deliberated and found Crouse guilty of driving under the
influence.
Discussion
Did the district court abuse its discretion by
inquiring into the jurors intent instead of entering a
judgment for reckless driving?
On appeal, Crouse renews her claim that the district
court should have entered a conviction for reckless driving based
on the first verdict form signed by the jury. She argues that
[o]nce a verdict has been returned, it may not be impeached, even
by the jurors themselves.
As general rule, courts are not permitted to inquire
into a jurors reasoning processes as a means of impeaching the
jurys verdict.2 That rule is reflected in Alaska Evidence Rule
606(b), which, except in limited circumstances, prohibits courts
from questioning jurors about their mental or emotional processes
in reaching a verdict.3 But Rule 606(b) does not bar a court
from asking jurors to clarify a verdict when their reasoning
processes are not at issue for instance, when it appears that
the written verdict may not accurately convey their group
decision.4
In previous cases, we have recognized the trial courts
discretion to question jurors to ensure that the judgment entered
actually reflects the jurys verdict. In Davidson v. State5 we
found no error in the courts decision to question jurors about
inconsistent verdicts convicting the defendant of the charged
offense but acquitting him of two lesser-included offenses.6
After the defendant moved for a new trial based on this
inconsistency, the trial judge in written interrogatories asked
the jurors to clarify their decision; in response, the jurors
indicated that they had mistakenly believed they were required to
acquit the defendant of the lesser charges if they convicted him
of the primary charge.7 We ruled that Evidence Rule 606(b)
permitted such an inquiry, and upheld the jurys verdict.8
We reaffirmed the Davidson holding in Wardlow v.
State.9 In Wardlow, shortly after the jurys verdict was
announced, the jury forewoman informed the trial judge that she
believed the verdicts were mistaken; the jurors had intended to
find Wardlow guilty on Count II and not guilty on Count IV, but
the judge had announced the verdicts the other way around.10 No
more than two minutes after the judge had excused the jury, he
called the jurors and parties back into the courtroom.11 The
judge polled the jury and, after confirming that the verdicts on
Counts II and IV had indeed been transposed, amended the judgment
to reflect the jurors true intent.12 Relying on Davidson, we
found no error, ruling that the court had authority in these
circumstances to clarify the jurors intent and to amend the
verdicts so that they accurately reflected the jurors decision.13
In Crouses case, Judge Murphy became aware that there
was an error in the verdict as soon as it was announced, and
before the jurors had been polled or excused. Because Judge
Murphy had reason to believe that the verdict did not accurately
reflect the jurys decision, he had authority under Davidson and
Wardlow to question the jurors to clarify their intent.
Moreover, once a poll of the jury indicated that there was not
unanimous concurrence with the verdict delivered to the court,
Judge Murphy had discretion under Criminal Rule 31 to send the
jury back into deliberations with the jury instructions and the
correct verdict forms.14 Given these circumstances, we find no
merit to Crouses claim that the court was obliged to enter
judgment for the offense of reckless driving even though the jury
intended to convict her of a greater offense.
Did the court abuse its discretion by denying Crouses
motion for a new
trial based on the court staffs ex parte communication
with the jury?
Crouse next argues that the bailiff and in-court clerk
deprived her of her constitutional right to be present at every
stage of the trial by communicating with the jury i.e., by
delivering the verdict form to the jury without notice to her.
A defendant has a right under the federal and state
constitutions to be present at every stage of the trial.15 That
right is founded in the accuseds rights to confrontation and due
process,16 and includes the right to be present during any
communication between the court and jury during jury
deliberations.17 If the trial court fails to notify the
defendant of a communication with the jury, we will reverse the
defendants conviction unless the government can prove that the
error was harmless beyond a reasonable doubt.18
The Municipality contends that there was no error in
the court staffs ex parte contact with the jury because Crouses
presence during this contact would have had no impact on the
outcome of the case. But the Municipality confuses the issue of
whether Crouse was prejudiced by the actions of court staff with
the issue of whether those actions were improper.19 The
defendant has the right to have input into how the court responds
to any substantive question from a deliberating jury,20 which
would include the request for a verdict form. Providing a
verdict form to the jury without authorization from the court or
notice to the defendant has the potential to improperly influence
the jury. The defendant therefore has the right to be notified
of such a request, if only to ensure that the jury receives the
agreed-upon form. We thus hold that it was error for the in-
court clerk and bailiff to give the jury the verdict form without
obtaining permission from the trial judge.
As a general rule, we will reverse a conviction based
on an improper jury communication only if the government fails to
show that the error was harmless beyond a reasonable doubt.
Crouse urges us to apply a stricter standard to ex parte contacts
between court staff and jurors; she argues that such contacts
should be reversible error per se because they are less likely to
come to the attention of the parties.
However, our supreme court held otherwise in Wamser v.
State.21 In Wamser, the supreme court concluded that the bailiff
had improperly communicated with the jury. In evaluating whether
reversal was required, the court applied the same harmless beyond
a reasonable doubt standard applied to ex parte communications
between the judge and jury. In applying this standard, the court
noted that the bailiff was an agent of the court; it also cited
out-of-state authority for the principle that it was irrelevant
that the ex parte communication came from [the] bailiff rather
than a judge.22 Crouse has not shown why we should depart from
the decision in Wamser under the circumstances of her case.
Crouse next argues that reversal is required because,
in the absence of an electronic record, it is impossible for this
court to know what communication took place between the bailiff
and jury. But Crouse bases this claim on cases in which there
was no contemporaneous record revealing the precise nature of the
improper communications that took place.23 Those cases are
easily distinguished. In Crouses case, the court questioned the
jurors, bailiff, and in-court clerk only minutes after the
bailiff had delivered the mistaken verdict form to the jury, and
that inquiry revealed that there were no improper communications
apart from the verdict form itself, which is in the record. In
her opening brief on appeal, Crouse does not argue that she was
prejudiced because the jury read this form, or because she had no
input into the bailiffs decision to give the jury this form she
only argues that she may have been prejudiced by something the
bailiff may have said to the jury when he gave it this form. Yet
the evidence in the record shows that the bailiff said nothing to
the jury when he delivered the verdict form.24
We conclude that the court staffs error in providing
the verdict form to the jury was harmless beyond a reasonable
doubt. When polled, the jurors all confirmed that they had
reached a verdict convicting Crouse of driving while intoxicated
before the forewoman asked the bailiff for the missing verdict
form. The jurors also indicated that no deliberations took place
between the time the bailiff delivered the form and the forewoman
signed it and notified the court that the jury had reached its
verdict. The bailiff said nothing to the jury when he handed it
the verdict form. And apparently the jurors never read the form,
because by signing it they believed they had convicted Crouse of
driving under the influence. Given these circumstances, we agree
with the trial judges conclusion that the jury was not improperly
influenced by this improper contact with court staff.
In her reply brief, Crouse suggests for the first time
that the judges reaction to the mix-up over the verdict forms may
have persuaded jurors who had intended to convict her of reckless
driving to change their votes. But Crouse waived this claim by
raising it for the first time in her reply brief.25 In any
event, the claim is without merit. Judge Murphy polled the
jurors within two minutes of when he announced the verdict, and
they all stated they had intended to convict Crouse of driving
under the influence. Before polling the jury, Judge Murphy
questioned two jurors about how they had obtained the wrong
verdict form, but he said nothing to intimidate the jurors or to
suggest that they had done anything wrong. We consequently find
no merit to Crouses claim that the courts brief inquiry may have
persuaded jurors who believed Crouse was guilty of only reckless
driving to convict her of a greater offense. We therefore
conclude that Judge Murphy did not abuse his discretion by
denying Crouses motion for a new trial.
Conclusion
The decisions of the district court are AFFIRMED.
_______________________________
1 AMC 9.28.020(A).
2 See A.R.E. 606(b); Meyer v. State, 627 P.2d 636, 638
(Alaska 1981).
3 A.R.E. 606(b) provides:
Inquiry Into Validity of Verdict or Indictment.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not be questioned as to
any matter or statement occurring during the
course of the jurys deliberations or to the effect
of any matter or statement upon that or any other
jurors mind or emotions as influencing the juror
to assent to or dissent from the verdict or
indictment or concerning the jurors mental
processes in connection therewith, except that a
juror may testify on the question whether
extraneous prejudicial information was improperly
brought to the jurys attention or whether any
outside influence was improperly brought to bear
upon any juror. Nor may a jurors affidavit or
evidence of any statement by the juror concerning
a matter about which the juror would be precluded
from testifying be received for these purposes.
4 See Davidson v. State, 975 P.2d 67, 73-74 (Alaska App.
1999).
5 975 P.2d 67.
6 Id. at 70, 71.
7 Id. at 71-74.
8 Id. at 71.
9 2 P.3d 1238 (Alaska App. 2000).
10 Id. at 1252.
11 Id.
12 Id.
13 Id.
14 Alaska R. Crim. P. 31(d) provides:
Poll of Jury. When the verdict is returned and
before it is recorded the jury shall be polled at
the request of any party or upon the courts own
motion. If, upon the poll, there is not unanimous
concurrence, the jury may be directed to retire
for further deliberations or may be discharged.
15 See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct.
1057, 1058, 25 L.Ed.2d 353 (1970); Wamser v. State, 652 P.2d 98,
101 (Alaska 1982); Dixon v. State, 605 P.2d 882, 884 (Alaska
1980); State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977); see
also Alaska R. Crim. P. 38(a) (The defendant shall be present ...
at every stage of the trial).
16 See Alaska Const. art. I, 11, 7; Hannagan, 559 P.2d at
1063.
17 See Wamser, 652 P.2d at 101; Dixon, 605 P.2d at 884;
Hannagan, 559 P.2d at 1063-64; Gafford v. State, 440 P.2d 405,
417 (Alaska 1968), overruled on other grounds in Fields v. State,
487 P.2d 831, 836 (Alaska 1971); Noffke v. State, 422 P.2d 102,
105 (Alaska 1967), overruled on other grounds as stated in
Raphael v. State, 995 P.2d 1004, 1013 n.40 (Alaska 2000).
18 See Wamser, 652 P.2d at 103; Dixon, 605 P.2d at 884.
19 Cf. Meyer, 627 P.2d at 638-39 & 639 n.4 (noting that
the defendants presence was required when the judge discussed an
instruction with the jury because the defendants presence, in the
abstract, could have had an impact on the trial courts decision,
but holding that the error was harmless under the facts of the
defendants case).
20 See Wamser, 652 P.2d at 102 (Constitutional
considerations arise whenever a trial judge is not informed of
substantive inquiries from a deliberating jury.).
21 652 P.2d 98.
22 Id. at 102 n.16 (quoting United States ex rel. Tobe v.
Bensinger, 492 F.2d 232, 238 (7th Cir. 1974)); see also Diane M.
Allen, Annotation, Communication between court officials or
attendants and jurors in criminal trial as ground for mistrial or
reversal post-Parker cases, 35 A.L.R. 4th 890 (1985 & supp.
2003) (observing that most jurisdictions will not reverse a
conviction based on improper communications between the court
staff and jury unless the defendant was prejudiced, and listing
cases).
23 See Richardson v. State, 579 P.2d 1372, 1373-74 (Alaska
1978); Cox v. State, 575 P.2d 297, 300-01 (Alaska 1978).
24 Cf. Wilson v. State, 614 S.W.2d 663, 664 (Ark. 1981)
(ruling that the trial court did not err in denying a motion for
new trial based on the testimony of the defendant and another man
that they had seen the bailiff answering questions from the jury,
because the defendant failed to show that the bailiff had advised
the jury on the law).
25 See Petersen v. Mut. Life Ins. Co., 803 P.2d 406, 411
(Alaska 1990).
