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Landt v. State (03/19/2004) ap-1919
Landt v. State (03/19/2004) ap-1919
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
ALYA S. LANDT, )
) Court of Appeals No. A-
8154
Appellant, ) Trial Court
No. 3UN-S00-230 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1919 March 19, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Unalaska, Fred Torrisi, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
At the beginning of Alya S. Landts trial, Superior
Court Judge Fred Torrisi informed the jury that each member could
propose questions for the witnesses. During the trial, Judge
Torrisi put several of the jurors proposed questions to various
witnesses after he and the parties had reviewed those questions.
Landt now appeals, arguing that the superior court erred by
allowing the members of the jury to propose questions. We
conclude that Judge Torrisi did not abuse his discretion. In the
context of the case, we also conclude that even if Judge Torrisi
erred, the error was harmless. Therefore, we affirm Landts
convictions.
Background facts and proceedings
In the early morning of September 3, 2000, Unalaska
Police Officer Aaron Renken contacted Landt, Ty Dushkin, and
Robert Shapsnikoff because he saw the trio arguing outside a bar.
Landt told Officer Renken that they were arguing because
Shapsnikoff had taken her keys and he would not return them.
Shapsnikoff said he took the keys because he believed that Landt
was too intoxicated to drive.
Officer Renken also thought Landt was too intoxicated
to drive, but since Landt said she needed her keys because her
house key was on the key ring, Officer Renken told Shapsnikoff to
return her keys. Officer Renken warned Landt that if he saw her
driving, he would arrest her for driving while intoxicated.
Dushkin pulled Landt away and said that he would not let Landt
drive and would see that she got home.
About one and a half hours later, Landt telephoned Kent
Steele, a physicians assistant whom she worked with, and asked
him to come to the new HUD housing to care for a man
[Shapsnikoff] whom she had found in the road. Landt told Steele
that the man, who she thought had been hit by a car, was
unconscious and not breathing. Steele immediately called 911.
Despite emergency treatment, Shapsnikoff was pronounced dead at
the scene.
Officer Renken and Officer Lowell Creeze spoke with
Landt and Dushkin at the scene when the officers responded to the
911 call. Dushkin told officers that he and Landt had found
Shapsnikoff lying in an intersection nearby, and that Dushkin had
helped Shapsnikoff almost to his house, where Shapsnikoff
collapsed in the street. Landt said that she and Dushkin had
been driving home when they found Shapsnikoff lying in the
street, and that they had placed him in the truck and driven him
home. Landt also explained that she and Dushkin had phoned for
help when they realized that Shapsnikoff was not breathing. At
trial, Officer Creeze testified that he understood Landt to have
said that she, rather than Dushkin, had been driving the truck
when they found Shapsnikoff.
Shapsnikoff died as a result of multiple blunt force
injuries, consistent with being run over by an automobile. The
police discovered rub marks and cloth fibers consistent with
Shapsnikoffs clothing on the undercarriage of Landts truck.
At this point, police interviewed Dushkin again.
Consistent with this interview, Dushkin testified at trial that
Landt was driving when she suddenly saw someone lying in the
roadway and accidentally ran over the person. Landt stopped the
car, and Dushkin ran back to the person [Shapsnikoff]. They put
Shapsnikoff in the truck, and Landt drove to Shapsnikoffs house.
When Landt and Dushkin realized that Shapsnikoff was probably
dead, they phoned for help.
The grand jury indicted Landt on manslaughter,
criminally negligent homicide, and tampering with evidence.1
The State also charged Landt with driving while intoxicated.2
Before opening statements, Judge Torrisi told the
attorneys that he would let the jurors propose questions for the
witnesses. Landt objected, arguing that the procedure would
allow jurors to aid the State in meeting its burden of proof.
The judge
overruled the objection, stating that he had allowed questioning
in previous trials, that the practice helps jurors to understand
the evidence better, and that he thought there was nothing
unconstitutional about the practice.
After opening statements, Judge Torrisi gave the jury
preliminary instructions. At this point, Judge Torrisi told the
jurors that he would allow them to question witnesses:
I am going to allow if there are
questions that you feel are not answered by a
witness, Im going to allow you to ask
questions. Now, the lawyers here are
familiar with this case. .... They also know
the Rules of Evidence. They know certain
things can come in, certain things cant come
in. And so they are going to probably ask
pretty much everything thats that the
witness knows. They know what the witness
knows more than we do because most of these
witnesses have been interviewed. So theres
probably not much that you would need to ask
about. On the other hand, youre the one
thats going to have to decide it in the end.
So if at the end of a witness testimony you
still have questions, then you can write down
the question and pass it forward. ....
I would sort of like somebody up front
here to be the note taker collector. I dont
want anybody reading anybody elses
[questions]. The way its going to work is if
you do pass it forward, I will try to
remember before I excuse a witness, and maybe
whoevers the note collector can remind me if
I forget. But I promise to look at every
question. I dont promise to ask any of them.
The way it works is Ill bring the lawyers up.
They can look at it. If its something that
didnt get asked, if its a proper question,
Ill ask it for you, and then theyll get a
chance to follow up if they want to do that.
But I may not get a chance I mean it may be
that theres no questions. It may be theres
lots. It may be that I wont get
a chance to tell you why I didnt ask
something. But Ill just tell you if you want
to do it, youve got the paper. When you
think of it, you might want to write it down,
and then if it still hasnt been asked when
the things over, you might want to shoot it
forward and well take it from there.
Whenever a juror proposed a question, Judge Torrisi and
the parties discussed it outside the hearing of the jury. If
Judge Torrisi asked the proposed question (or a modification of
the question), he permitted the attorneys to ask follow up
questions.
Jurors proposed fifty-two individual questions, forty-
two of which the judge asked after discussing the questions with
counsel outside the hearing of the jury. Many of the questions
sought to clarify details about where and when pieces of evidence
were found; some questions sought more detailed information than
the police officers had gathered.
Jurors proposed three questions for Landt, one of which
Judge Torrisi asked. Judge Torrisi rejected two questions
because of objections by the defense [w]hy didnt you tell the
police officers that you believed Ty [Dushkin] had hit Bobby
[Shapsnikoff]? and [w]hy did you consult with an attorney so soon
after the accident? The court did ask the third question, in
which a juror sought to clarify by what name Landt was referring
to Officer Creeze. (Landt was referring to Creeze by his first
name, Lowell).
The jury convicted Landt of tampering with evidence and
driving while intoxicated and acquitted her of manslaughter and
criminally negligent homicide.
Did the superior court deprive Landt of a fair trial by
allowing jurors to propose questions for the witnesses?
Landt argues that the superior courts decision to allow
jurors to propose questions for the witnesses violated her rights
to a fair trial and to an impartial jury under the federal and
state constitutions. Landt argues that juror questioning
requires jurors to form opinions about the case before the
parties have presented all the evidence, because jurors must
hypothesize about what happened in order to form a question.
Recently, in State v. Culkin,3 the Hawaii Supreme Court
upheld a pilot program that allows jurors to question witnesses
against challenges similar to the ones Landt raises in this
appeal. The court noted that several federal circuit courts
that have considered the issue have decided that the trial court
has the discretion to permit juror questioning.4 Although no
federal circuit has declared juror questioning illegal, several
have discouraged juror questioning.5 The majority of state
courts that have considered the issue have upheld the process as
within the discretion of the trial court,6 although some states
have rejected the practice.7
The Culkin court noted that even under the traditional
adversary system, the parties and their attorneys are not in sole
control of the presentation of evidence. The trial judge, too,
has traditionally exercised the power to question witnesses and
even to call witnesses that the parties have neglected or refused
to call.8 Questions proposed by jurors resemble questioning by
a judge, who, under our adversarial system, retains the power to
question, or summon witnesses.9
Obviously, a judge must be impartial, but the power to
question or summon witnesses is not necessarily inconsistent with
impartiality. In Cook v. State,10 we ruled that a trial judge
can present evidence at trial under Alaska Rule of Evidence 614,
as long as the judge does so impartially.11
[A] trial judge must be careful to avoid
taking actions that the jury would reasonably
construe as partisanship. ... But [this
does] not prohibit a judge from taking a role
in the presentation of evidence at trial.
Indeed, Evidence Rule 614 explicitly
recognizes trial judges authority to call
witnesses on [their] own motion and to
examine any witness called by the parties.
The commentary to Rule 614 declares that the
court is not entirely a prisoner of the
parties approach to the case; rather, it is
proper for the court to ask questions [of
witnesses] in order to clear up confusion
created by the parties[, although] a judges
questioning should be ... guarded so as not
to constitute an implied comment on the
merits of the case.[12]
Using analogous reasoning, the
Hawaii Supreme Court in Culkin rejected the
assertion that giving jurors the power to
question witnesses was inconsistent with the
adversary system of justice. The court
quoted the words of the Court of Appeals for
the District of Columbia in Yeager v. Greene:
Questions by jurors ... may bring to the
courts and counsels attention improper
concerns which can be promptly addressed with
cautionary instructions, admonishing the
juror who asked the question that the matter
is not relevant to the case and should not be
brought to the attention of other jurors or
play any part in the inquiring jurors
consideration of the case. Additionally ...
it seems indisputable that the increased
effectiveness of communication with jurors
that will result if they are permitted to
pose questions to witnesses will aid in
finding the truth. As one of the most recent
and thorough commentaries on the questioning
of witnesses by jurors observed:
Only when evidence and issues
are communicated successfully to
jurors can they begin to fulfill
their duty to seek truth and
deliver a just verdict. But,
because the jury is relegated to a
passive role, communication in a
trial is basically a one-way system
a system notably lacking in ability
to insure a reliable communication
of evidence or issues to the jury.
Allowing jurors to
ask questions of
witnesses would promote
better and more reliable
communication, because a
two-way system provides
for constant
clarification of messages
being sent.
Understanding testimony
more clearly, jurors thus
would be able to fulfill
their basic function of
finding the facts in
dispute.
Finally, there is reason to believe that
permitting receivers of information, e.g.,
jurors, to ask questions enhances not only
their ability to understand what is being
communicated, but results in their putting
forth more effort to listen and to understand
because they know they may ask questions. A
concomitant benefit predictable from these
effects might well be a reduced likelihood
that the court will be required to intervene
to question witnesses or elucidate issues
that are clarified by juror questions.[13]
Landt argues that juror questioning
does not compare with questioning by the
trial judge because the judge is trained in
the law and is required to see that justice
is done, while the jury is not legally
trained and is instructed to sit as a neutral
factfinding body. She relies on DeBenedetto
v. Goodyear Tire & Rubber Co.14 for this
argument.15 But the juror questioning
process in DeBenedetto, unlike that in Landts
trial, did not prevent the jury from hearing
the questioning jurors question, which was
spoken aloud by the juror before the trial
judge ruled on its propriety.16 In Landts
trial, jurors proposed questions in writing,
and Judge Torrisi and both attorneys reviewed
the questions. The attorneys were able to
object to questions outside of the hearing of
the jury. Therefore, we conclude that
allowing jurors to propose questions in
Landts trial did not undermine jurors
impartiality.
In Commonwealth v. Britto,17 the
Massachusetts Supreme Judicial Court recently
upheld the constitutionality of jurors
questioning witnesses at criminal trials
under a procedure similar to the one employed
by Judge Torissi in this case. The court
listed several concerns that a trial judge
permitting juror questions should consider:
(1) [T]he judge
should instruct [the
jury] ... that they will
be given the opportunity
to pose questions to
witnesses. We suggest
that the jury also be
instructed not to let
themselves become aligned
with any party, and that
their questions should
not be directed at
helping or responding to
any party. Rather, they
must remain neutral and
impartial, and not assume
the role of investigator
or of advocate.
(Judge Torrisi informed the jury that he
would let them propose questions.)
(2) Jurors questions
need not be limited to
important matters, ...
but may also seek
clarification of a
witnesss testimony.
Reining in excessive
questioning may present
the greatest challenge to
a judge[.] ...
(Many of the jurors questions here sought
clarification of the witnesses testimony.)
(3) The judge should
emphasize [ ] to jurors
that, although they are
not expected to
understand the technical
rules of evidence, their
questions must comply
with those rules, and so
the judge may have to
alter or to refuse a
particular question.
(Judge Torrisi informed the jurors that he
would only ask proper questions.)
(4) The judge
further should emphasize
that, if a particular
question is altered or
refused, the juror who
poses the question must
not be offended or hold
that against either
party.
(Judge Torrisi told the jurors that he might
not tell them why a question was not posed.)
(5) [I]t is
important that the jurors
are told that they should
not give the answers to
their own questions a
disproportionate weight.
We suggest that the judge
also instruct jurors not
to discuss the questions
among themselves but,
rather each juror must
decide independently any
questions he or she may
have for a witness.
(There is no indication in the record that
the jurors consulted each other about
questions.)
(6) These
instructions should be
repeated during the final
charge to the jury before
they begin deliberations.
(7) All questions
should be submitted in
writing to the judge. We
suggest that the jurors
identification number be
included on each
question. This will
enable the judge to
address problems unique
to a juror, as by voir
dire, or to give a
curative instruction
without exposing the
entire jury to any
potential prejudice.
(Judge Torrisi retained all the proposed
juror questions.)
(8) On submission of
questions, counsel should
have an opportunity,
outside the hearing of
the jury, to examine the
questions with the judge,
make any suggestions, or
register objections. This
may be done at sidebar,
or the jury may be
removed at the judges
discretion. The judge
should rule on any
objections at this time,
including any objection
that the question touches
on a matter that counsel
purposefully avoided as a
matter of litigation
strategy, and that, if
asked, will cause
particular prejudice to
the party.
(Judge Torrisi discussed the jurors proposed
questions outside the jurors hearing.)
(9) Finally, counsel
should be given the
opportunity to reexamine
a witness after juror
interrogation. The scope
of the examination should
ordinarily be limited to
the subject matter raised
by the juror question and
the witnesss answer. The
purpose of reexamination
is two fold. First, it
cures the admission of
any prejudicial questions
or answers; and second,
it prevents the jury from
becoming adversary in its
interrogation.[18]
(Judge Torrisi permitted follow up
questions.)
Judge Torrisi followed almost all of these
guidelines. He informed the jurors that he
would allow them to propose questions in
writing. He told the jurors that he and the
parties would review the questions and that
he might not be able to tell them why he
would not ask a proposed question. Judge
Torrisi retained the jurors proposed
questions. The parties objected to proposed
questions outside the jurors hearing. The
parties were permitted to ask follow-up
questions if a jurors proposed question was
allowed.
Furthermore, allowing the jurors to
propose questions can give the court notice
that a juror might be considering improper
factors. In this case, one of the proposed
questions for Landt was [w]hy did you consult
with an attorney so soon after the accident?
At this point, Landts attorney might have
asked Judge Torrisi to instruct the jury that
there is nothing improper about consulting an
attorney and that they should draw no
negative inferences from this consultation.
Landt did not request such an instruction.
Landt next argues that Judge
Torrisi abused his discretion by allowing
juror questioning without considering whether
the benefits of doing so outweighed the risks
of compromising her right to a fair trial.
Landt relies on two opinions from the Second
Circuit Court of Appeals that require
district courts to find that the benefits to
be gained by allowing juror questioning
outweigh the risk of biasing the jury.19
Although Judge Torrisi did not
explicitly balance the benefits and risks of
juror questioning, he explained that when he
first considered the practice, he shared
defense counsels concern that juror
questioning might help the State to meet its
burden of proof. Having used juror
questioning in previous trials, however,
Judge Torrisi found the practice to
capitalize on jurors ability to notice
things, to be interested [in the trial] in a
common sense manner. Further, Judge Torrisi
found there to be nothing constitutionally
wrong with the practice. Therefore, we
conclude that Judge Torrisi did consider the
risk that Landt would be prejudiced and found
the benefits of juror questioning to outweigh
that risk.
We conclude that Judge Torrisi did
not abuse his discretion when he allowed the
jurors to propose questions for the witnesses
under the procedure he used in this trial.
We wish to emphasize that this review is
necessarily a case-by-case process. There
may be a case where a defendant can show from
the proposed questions from jurors, or the
procedure adopted by the trial judge, that
the questioning process prejudiced the
defendant. But from our review of the
record, we conclude that this is not one of
those cases.
Finally, the State argues that even
if the trial court erred by allowing juror
questioning, this error was harmless. Landt
argues that we should not consider whether
such an error was harmless because the
effects of juror questioning are impossible
to identify.
But we conclude that even if Judge
Torrisi erred in one or more procedural
aspects of juror questioning, this error was
harmless beyond a reasonable doubt. None of
the jurors questions that were actually asked
by Judge Torrisi elicited objectionable
evidence. Additionally, none of the
questions (either asked or rejected) involved
elements of the tampering with evidence or
driving while intoxicated charges. Landt was
acquitted of the manslaughter and negligent
homicide charges.
Allowing juror questioning did not
prejudice Landt on the tampering with
evidence charge because Landt testified that
she helped move Shapsnikoff and because
jurors submitted no questions regarding her
intent. Because Landts testimony supported a
conviction on this charge, and because no
juror questions considered the facts
underlying the charge, we conclude that the
questions actually asked could not have
prejudiced her.
Conclusion
We AFFIRM Landts convictions.
_______________________________
1 AS 11.41.120(a)(1), AS 11.41.130(a), and AS
11.56.610(a)(1), respectively.
2 AS 28.35.030.
3 35 P.3d 233 (Hawaii 2001).
4 Id. at 252, citing United States v. Feinberg, 89 F.3d 333,
336 (7th Cir. 1996); United States v. Sutton, 970 F.2d 1001,
1004-07 (1st Cir. 1992); United States v. Lewin, 900 F.2d 145,
147 (8th Cir. 1990); DeBenedetto v. Goodyear Tire and Rubber Co.,
754 F.2d 512, 516 (4th Cir. 1985); United States v. Callahan, 588
F.2d 1078, 1086 (5th Cir. 1979); United States v. Gonzales, 424
F.2d 1055, 1056 (9th Cir. 1970); United States v. Witt, 215 F.2d
580, 584 (2nd Cir. 1954).
5 See Feinberg, 89 F.3d at 336 (We agree that the practice
[of juror questioning of witnesses] is acceptable in some cases,
but do not condone it.); United States v. Ajmal, 67 F.3d 12, 14
(2nd Cir. 1995) (holding that trial courts abuse their discretion
if they allow juror questioning of witnesses in the absence of
extraordinary or compelling circumstances, and without first
balancing the potential benefits and disadvantages of the
practice); United States v. Bush, 47 F.3d 511, 515 (2nd Cir.
1995) (Although we reaffirm ... that juror questioning of
witnesses lies within the trial judges discretion, we strongly
discourage its use.).
6 See Culkin, 35 P.3d at 253; State v. LeMaster, 669 P.2d
592, 596-97 (Ariz. App. 1983); Nelson v. State, 513 S.W.2d 496,
498 (Ark. 1974); People v. McAlister, 213 Cal.Rptr. 271, 276-77
(Cal. App. 1985); Gurliacci v. Mayer, 590 A.2d 914, 930 (Conn.
1991); Scheel v. State, 350 So.2d 1120, 1121 (Fla. App. 1977);
Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550, 556
(Iowa 1980); Transit Auth. of River City v. Montgomery, 836
S.W.2d 413, 416 (Ky. 1992); Commonwealth v. Urena, 632 N.E.2d
1200, 1206 (Mass. 1994); People v. Heard, 200 N.W.2d 73, 76
(Mich. 1972); Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852,
867 (Mo. 1993); Sparks v. Daniels, 343 S.W.2d 661, 667-68 (Mo.
App. 1961); State v. Graves, 907 P.2d 963, 966-67 (Mont. 1995);
State v. Jumpp, 619 A.2d 602, 610-12 (N.J. App. 1993); People v.
Bacic, 608 N.Y.S.2d 452, 452 (N.Y. App. 1994); State v. Howard,
360 S.E.2d 790, 795 (N.C. 1987); State v. Wayt, 615 N.E.2d 1107,
1112 (Ohio App. 1992); Krause v. State, 132 P.2d 179, 182 (Okla.
Crim. App. 1942); State v. Munoz, 837 P.2d 636, 639 (Wash. App.
1992).
7 See State v. Costello, 646 N.W.2d 204, 214 (Minn. 2002);
Wharton v. State, 734 So.2d 985, 990 (Miss. 1998); Morrison v.
State, 845 S.W.2d 882, 888 (Tex. Crim. App. 1992); State v. Zima,
468 N.W.2d 377, 380 (Neb. 1991); Matchett v. State, 364 S.E.2d
565, 566-67 (Ga. 1988).
8 See Culkin, 35 P.3d at 254.
9 Id. at 252-53.
10 36 P.3d 710 (Alaska App. 2001).
11 Id. at 724-25.
12 Id. (footnote omitted).
13 Culkin, 35 P.3d at 252-53 (quoting Yeager, 502 A.2d 980,
998-1000 (D.C. App. 1985) (citations and footnotes omitted)).
14 754 F.2d 512 (4th Cir. 1985).
15 Id. at 516.
16 Id. at 515 n.1, 516.
17 744 N.E.2d 1089 (Mass. 2001).
18Britto, 744 N.E.2d at 1105-06 (citations and footnotes
omitted).
19 Bush, 47 F.3d 512; Feinberg, 89 F.3d 337.
