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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8905 | |
| Appellant, | ) Trial Court No. 4FA-03-601 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| KEVIN W. PEASE, | ) |
| ) | |
| Appellee. | ) No. 2112 ( July 27, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Ben J. Esch, Judge.
Appearances: W. H. Hawley Jr., Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and David W.
M rquez, Attorney General, Juneau, for the Appellant. Lori M.
Bodwell, Fairbanks, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
STEWART, Judge, dissenting.
Following a jury trial, Kevin W. Pease and Marvin L.
Roberts were convicted of robbing and murdering a teenage boy, and
also assaulting an adult, Franklin Dayton, in a separate incident
that same night. A more detailed description of these events is
contained in Pease v. State, 54 P.3d 316, 319-321 (Alaska App.
2002) ( the opinion in which we affirmed Pease(s and Roberts(s
convictions.1
About six months after this Court affirmed Pease(s and
Roberts(s convictions, two journalism students from the University
of Alaska Fairbanks reported that the jurors had engaged in a
group experiment during their deliberations. Further
investigation revealed the details of this experiment: During the
jury deliberations, the jurors asked the bailiff to take them
outside to the northwest corner of the Anchorage courthouse (the
corner of Third Avenue and I Street). Two of the jurors then
crossed to the north side of Third Avenue and walked west to the
location formerly occupied by the Elevation 92 restaurant ( that
is, to a point a few yards west of the intersection of Third
Avenue and K Street, approximately 430 feet from the other jurors.
So positioned, the two groups of jurors looked at each other
across this distance to see if they could recognize each other.
(The significance of this experiment will be explained shortly.)
Having learned all this, Pease filed a petition for
post-conviction relief, arguing that he was entitled to a new
trial because the jurors conducted this unauthorized visual
experiment. The superior court ultimately agreed. Relying on
this Court(s decision in Gorz v. State, 749 P.2d 1349, 1355
(Alaska App. 1988), Superior Court Judge Ben J. Esch concluded
that the jurors committed misconduct when they performed this
experiment, and that the result of this experiment had probably
influenced the jury(s verdict. Judge Esch therefore granted
Pease(s petition for post-conviction relief and ordered a new
trial.
We conclude that the superior court erred in ordering a
new trial. Our conclusion is based on a three-part analysis.
We conclude that the jurors could properly conduct this
type of experiment, and that there would have been no error if the
experiment had been conducted within the confines of the jury
room.
We further conclude that the jurors committed
misconduct when they failed to seek court permission to leave the
jury room and go outside to perform the experiment. But not all
acts of jury misconduct require a new trial.
Here, the jurors( act of going outside to conduct the
experiment did not make the results of their experiment less
reliable or valid. Indeed, as we explain here, conducting the
experiment outside helped make the results more reliable and
valid.
Thus, because the jurors were entitled to conduct this
type of experiment in the first place, we conclude that the fact
that this experiment took place outside did not prejudice the
fairness of Pease(s trial.
Underlying facts
One of the important government witnesses at trial was
Arlo Olson, who testified that he saw Pease, Roberts, and two
other accomplices (Eugene Vent and George Frese) commit an assault
upon Franklin Dayton down the street from the Eagles Hall in
Fairbanks.
Olson was attending a late-evening wedding reception at
the Eagles Hall. According to his testimony, he was standing on
the front steps of the hall between 12:30 and 1:00 in the morning
when Pease, Roberts, and the two other men drove up in Roberts(s
car.
Olson was not well-acquainted with Pease and Roberts,
but Olson had known one of the other men, Eugene Vent, since high
school, and Olson was friends with the fourth man, George Frese.
Frese asked Olson if he wanted to get high with them, but Olson
declined, so the four men drove off.
Olson testified that, about half an hour later, while
he was still on the front steps of the Eagles Hall, he saw the
four men attack Franklin Dayton as Dayton walked down the street.
Olson testified that he saw Pease push Dayton to the ground, and
then all four men began kicking Dayton. When one of the four men
yelled, (Give me your fucking money, bitch,( Dayton handed
something to one of the four. The four men then ran to Roberts(s
car and drove away.
Pease(s defense was alibi; he claimed to have been
elsewhere that night. Accordingly, Pease(s attorney attacked
Olson(s identification of Pease as one of the assailants.
Part of this attack took the form of cross-examination.
Olson admitted that he had drunk a considerable quantity of
alcoholic beverages on the evening in question, and he further
admitted that he had smoked marijuana earlier in the day.
Moreover, Olson admitted that the attack on Dayton had lasted only
about thirty seconds, and that the four assailants had had their
backs to Olson for much of this time. Olson conceded that he did
not get a good look at the four men until they were running back
to their car.
The defense also introduced expert testimony to attack
Olson(s identification of Pease. Olson testified that he observed
the attack on Dayton from about 400 feet away. To rebut Olson(s
testimony that he could identify the four assailants from a
distance of 400 feet, the defense presented Dr. Geoffrey Loftus,
an expert on human visual perception and memory. Dr. Loftus
testified that it was virtually impossible for a human being to
distinguish one person from another at that distance ( indeed, at
even half that distance.
According to Dr. Loftus, ([the] ability to distinguish
[any one person] from somebody else ( in other words, to recognize
them later on ( is essentially nil( beyond 200 feet. Loftus
claimed that this was true even when under the best of
circumstances ( that is, even when the lighting is good, and the
observer has (unlimited time( to make the observation, and when
the observer is (in an optimal physiological state( to make the
observation ((awake, alert, [and] not ill, ... drunk, [or] under
the influence of any drugs().
This dispute as to whether Arlo Olson(s identification
of Pease was humanly possible figured prominently in the
summations delivered by the prosecutor and the defense attorneys
at the close of the trial. As Judge Esch noted in his decision,
(all counsel discussed the testimony of these two witnesses and
attempted to [either] bolster or denigrate its value.(
During their deliberations, the jurors attempted to
test this issue by looking out of the jury room window to see if
they could recognize people at a distance. (The jury room windows
in the Anchorage courthouse face north; these windows overlook
city streets, a parking lot, and (farther in the distance)
portions of the Alaska Railroad yard and the Port of Anchorage.)
However, this effort to discern people(s features at a distance
through the jury room window proved unfruitful because the jurors
had differing estimates concerning how far away a particular
observed person was. To better investigate this issue, the jurors
decided to go outside and view each other across a distance that
could be paced off.
It was in this context that the jurors left the
courthouse and conducted their experiment. Apparently, the
experiment had mixed results: at least six of the jurors
indicated that they were able to recognize each other across this
distance, but at least one juror acknowledged that he could not.
In Pease(s petition for post-conviction relief, he
characterized the jurors( experiment as an attempt to assess the
credibility of a key government witness, Arlo Olson. But as Judge
Esch recognized, the circumstances of the jurors( experiment show
that the experiment was only collaterally relevant to assessing
the credibility of Olson(s testimony.
As explained above, Olson had been drinking, and he
made his observations in the middle of the night (in October, when
it was dark). The jurors made no attempt to replicate these
conditions, even though these factors were obviously important to
assessing the trustworthiness of Olson(s identification. Rather,
based on the circumstances of the experiment and the jurors(
accounts of their actions, Judge Esch found that the primary
purpose of their experiment (was ... to test the validity of
Loftus([s] testimony(. That is, the main purpose of the
experiment was to test Loftus(s assertion that it was not humanly
possible, even under the best conditions, to recognize another
person at a distance of greater than 200 feet.
Cases upholding the authority of a jury to engage in
experimentation to test the factual assertions made by witnesses
or the theories suggested by the attorneys
Centuries ago, the role of the jury was to investigate
allegations of criminal behavior and then render a decision based
on their investigation.2 In modern times, however, the parties (
that is, the government and the defendant ( are in charge of
investigating and presenting the facts of the case (with the trial
judge having a residual authority to call additional witnesses and
to cross-examine the witnesses presented by the parties).3
Because the jury no longer has a formal investigative
role, courts often declare that juries are required to base their
decisions solely on the evidence presented in court, and that
juries are barred from independently investigating the case or
from otherwise considering extraneous information (i.e.,
information that was not elicited during the trial).4 Here, for
example, is what this Court said on this subject in Gorz v. State:
The law [on this point] is well settled. Jurors have a duty to
consider only the evidence presented in open court. ... Evidence
that has not been subjected to the procedural safeguards of trial
impinges on the constitutional rights to confrontation,
cross-examination, and counsel.
Gorz, 749 P.2d 1349, 1355 (Alaska App. 1988).
But this is an over-simplification. The law does, in
fact, sometimes allow jurors to rely on information that was
obtained outside of the court proceedings.
The Alaska Supreme Court has held that jurors are
allowed to discuss, and to rely on, any (pre-existing ...
knowledge of a general nature( that individual jurors bring to the
deliberative process. Titus v. State, 963 P.2d 258, 262 (Alaska
1998).
For example, in Titus, the supreme court approvingly
cited a case where, during deliberations, an individual juror
shared his expertise in X-ray technology. Id. at 262.5 And,
employing the Titus rule, this Court held that it was not
misconduct for individual jurors to share their personal knowledge
of how loud a shot from a .22 caliber rifle would be, or their
knowledge of the breakage characteristics of the type of glass
used in construction vehicles. See Larson v. State, 79 P.3d 650,
654 (Alaska App. 2003).
See also Brooks v. Zahn, 826 P.2d 1171, 1176-78 (Ariz.
App. 1991), where one of the jurors was a registered nurse who
relied upon her medical knowledge and experience during the jury(s
deliberations. The Arizona court held that the juror(s prior
knowledge was not (extraneous(. Similarly, in State v. Aguilar,
818 P.2d 165 (Ariz. App. 1991), one of the jurors was a medical
doctor. He (shared with the other jurors [his] fund of knowledge
... regarding alcohol and cocaine ... blackouts(, and he also told
the other jurors that he disagreed with the defendant(s expert
witness who had testified that the defendant lacked criminal
intent because of his alcohol and cocaine consumption. Id. at
166-67. The Arizona court held that the doctor(s knowledge was
not (extraneous( information.
As can be seen from these examples, a juror(s personal
knowledge of such topics may be quite important, even crucial, in
evaluating the credibility or plausibility of the testimony
presented during the trial. Nevertheless, this juror knowledge is
not considered (extraneous( information, even though it is
obtained extrajudicially. It is not misconduct for jurors to
share this information with each other, nor is it misconduct for
the jurors to rely on this information during their deliberations.
Titus, 963 P.2d at 262.
There is another line of authority, more pertinent to
Pease(s case, that addresses the issue of jury experimentation
during deliberations. Courts have repeatedly upheld jurors(
efforts to test the credibility or plausibility of trial testimony
by experimenting with items of physical evidence admitted during
the trial, or by re-enacting the events or conditions described by
witnesses.
An early example of this principle is found in Rex v.
Smith (1915), a case in which the defendant was charged with
murdering his wife by drowning her in their bathtub. The bathtub
was produced as an exhibit, and during the trial the jury foreman
informed the judge that ([o]ne of the jury ha[d] expressed a wish
that someone should be put in the bath for ocular demonstration.(
The judge replied, (I can only suggest to you that when you
examine these baths in your private room, you should put one of
yourselves in.(6
Twenty years earlier, on this side of the Atlantic, the
Virginia Supreme Court upheld an even more intrusive jury
experiment in Taylor v. Commonwealth, 17 S.E. 812 (Va. 1893).
Taylor was a murder prosecution in which the government introduced
expended cartridges that bore particular marks left by the murder
weapon(s (plunger( ( what we now call the firing pin. The
defendant responded by introducing evidence that the firing pin of
his rifle did not make such marks on expended cartridges. During
their deliberations, the jurors called for the defendant(s rifle
to be brought to the jury room, and then they dismantled the
weapon to see if someone had tampered with the firing pin. (The
jurors discovered that, indeed, the firing pin (had been recently
tampered with and fixed for the occasion of the trial(.) Rather
than condemning the jurors( action, the Virginia Supreme Court
commended the (intelligent and scrutinizing jury( for making this
discovery. Id., 17 S.E. at 816.
Several more recent cases are listed and described in
this Court(s decision in Bowlin v. State, 823 P.2d 676, 679
(Alaska App. 1991).
In People v. Kurena, 410 N.E.2d 277 (Ill. App. 1980),
jurors constructed a cardboard replica of a knife that had been
admitted into evidence, and then they used this replica to
re-enact the assault, to see if the victim(s wounds could have
been inflicted by a left-handed or right-handed person, and to see
if the weapon could have been concealed in a sleeve.
In State v. Thompson, 524 P.2d 1115 (Mont. 1974),
jurors used a handgun that had been admitted into evidence to
re-enact the struggle described in the testimony, to see if the
gun could have been fired if it was held in the manner described
in the testimony.
In Allen v. State, 146 S.W.2d 384, 386 (Tex. Crim. App.
1940),7 the jury experimented with a pistol admitted into evidence
to see if, as claimed by the defendant, the cylinder would (hang(
or stick at a particular place in its revolution and cause the
handgun to discharge accidentally.
In State v. Best, 232 N.W.2d 447, 457 (S.D. 1975), a
defendant on trial for child abuse claimed that her infant(s
injuries had been inflicted when the baby(s two-year-old brother
struck the baby with a telephone. The jurors experimented with
the telephone (which had been admitted into evidence), testing its
weight to see if it was conceivable that a two-year-old could have
used it to inflict serious injury.
In People v. Engler, 540 N.Y.S.2d 591, 594 (N.Y. App.
1989), jurors experimented with a vaporizer to test the
defendant(s claim that a child(s injuries had been sustained when
the child carelessly played near the vaporizer.
And in Taylor v. Reo Motors, Inc., 275 F.2d 699, 705
(10th Cir. 1960), the jurors dismantled and reassembled a heat
exchanger to test a witness(s testimony about the way it
functioned.
In addition to these cases listed in Bowlin, several
other appellate decisions have approved experiments conducted by
the jury during deliberations.
In State v. Balisok, 866 P.2d 631, 663-34 (Wash. 1994),
the court held that the jurors( re-enactments of the alleged
struggle between the defendant and the victim were not (extrinsic
evidence( and thus did not constitute jury misconduct.
In United States v. Hephner, 410 F.2d 930, 936 (7th
Cir. 1969), the court upheld a jury experiment in which one juror
covered his head and donned sunglasses so that the jurors could
evaluate whether it was possible to identify a person who was
disguised in this manner.
In People v. Agado, 964 P.2d 565, 567-68 (Colo. App.
1998), the court upheld the jurors( experimentation with a gun
admitted into evidence to determine its trigger pull, and thus to
evaluate defendant(s testimony.
In State v. Chamberlain, 819 P.2d 673, 676, 683 (N.M.
1991), a case in which the defendant claimed self-defense, and in
which the government and the defendant offered competing versions
of when a police officer had pulled his gun from its holster, the
jurors experimented with the gun and holster to ascertain the
sound made when the gun was removed from the holster, and then
they listened for that sound when they reviewed the audio
recording of the encounter between the officer and the defendant.
In United States v. Abeyta, 27 F.3d 470, 477 (10th Cir.
1994), the defendant was charged with stabbing another man during
a confrontation outside a bar. Using a pocket knife owned by one
of the jurors, the jurors engaged in a re-enactment of the events
described by the witnesses. The circuit court of appeals held
that this jury experiment did not entitle the defendant to a new
trial. The court stated, (There is simply no constitutional
command preventing a jury from using common sense and ordinary and
uninflammatory props to reenact a crime in the privacy of the jury
room.(
In United States v. Silks, unpublished, 1988 WL 141090
(9th Cir. 1988), the defendant was charged with conspiracy to
unlawfully import controlled substances. The government
introduced a composite drawing of the pilot of the airplane that
was used to transport the controlled substances. However, in
conformity with witness accounts, the pilot depicted in this
composite drawing was clean shaven, while Silks was wearing a
beard during the trial. During their deliberations, the jurors
requested additional copies of a composite drawing of the pilot.
At least one member of the jury drew a beard on the drawing (
presumably to see if the drawing, so modified, resembled the
bearded Silks.
The Ninth Circuit upheld this jury experiment: (It is
not misconduct when the jury uses its own senses in weighing the
evidence presented to it. The jurors must be given enough
latitude to permit them to use common experiences and
illustrations in reaching their verdict. ... The jurors had
observed Silks, and the type of beard he was presently wearing, in
the courtroom during trial. The jurors( own attempts to evaluate
the evidence to reach a verdict do not rise to the level of juror
misconduct.( 1988 WL 141090 at *2.
In United States v. Avery, 717 F.2d 1020, 1026 (6th
Cir. 1983), the defendant was charged with attempting to blow up a
building. The police received a late-evening burglar alarm signal
from a medical office building; within minutes, an officer arrived
to investigate and found the defendant crouched down outside a
storage area at the rear of the building. A subsequent inspection
of the building revealed that the rear storage door had been pried
open. Inside a crawl space underneath the building, the police
found a substantial quantity of flammable materials, including
four canisters of propane, two gallon jugs and fifteen milk
cartons containing gasoline, newspapers (some of which had address
labels listing the defendant(s name and address), and a roll of
wax paper.
During the summations to the jury, the defense attorney
argued that it was impossible that the defendant could have hidden
all of these materials in the crawl space within the approximately
three minutes between the time the burglar alarm went off and the
time the police arrived to investigate. The prosecutor responded
that he thought it would be possible, and he described how he
thought it could be done. Id. at 1026.
On appeal, the defendant claimed that the prosecutor(s
remark was, essentially, an invitation to the jurors to conduct an
unauthorized experiment. The circuit court of appeals concluded
that, even if the jurors had experimented with the evidence in the
manner suggested by the prosecutor, this would have been proper:
The record reveals that the defense, through expert
testimony, put into issue the question of how long it would take
to place the materials into the crawl space. Indeed, the defense
theory of the case was that the defendant could not possibly have
moved and assembled all of the materials in a three[-]minute
period. This argument was repeated by defense counsel on at least
two occasions during his closing argument. Under these
circumstances, we believe the prosecutor could respond to [the]
defendant(s argument by asking the jury to handle the milk cartons
and recreate portions of the defendant(s actions. Even assuming
the jury did recreate the defendant(s actions, we find no error in
such conduct. ... [J]urors must be given enough latitude in
their deliberations to permit them to use common experiences and
illustrations in reaching their verdict.
Avery, 717 F.2d at 1026.
See also People v. Smith, 453 N.E.2d 1079, 466 N.Y.S.2d
662 (N.Y. 1983), where the New York Court of Appeals applied this
same principle to an experiment conducted by a single juror. One
of the disputed issues at Smith(s trial was a police officer(s
purported ability to observe the interior of a car through its
rear window. During deliberations, one of the jurors tested the
officer(s testimony by looking through the rear windows of various
cars, both while the juror was walking to dinner with the other
jurors and while the juror was riding in a bus with the other
jurors to their hotel. The New York high court upheld the juror(s
experiments.
In each of the cases discussed above, juries performed
experiments that could theoretically be viewed as infringing the
defendant(s rights to confrontation and cross-examination.
Moreover, in many instances, the circumstances or conditions of
the jury(s experiment arguably ( or even clearly ( deviated from
the circumstances or conditions of the events being litigated.
This leads to an obvious difficulty: because the jury experiment
takes place in private, neither the judge nor the defense attorney
can point out the potential weaknesses in the jury(s method of
procedure, or point out the circumstances or conditions that the
experiment omits or fails to take adequate account of, or point
out the potential ambiguities in the experiment(s result.
Given these problems, one might argue that juries
should always be barred from engaging in unsupervised
experimentation. And yet no rule of prohibition emerges from
these cases. Instead, these courts have condoned jury experiments
( sometimes fairly elaborate jury experiments ( under the
principle that ([j]urors must be given enough latitude in their
deliberations to permit them to use common experiences and
illustrations in reaching their verdict.( United States v.
Hephner, 410 F.2d at 936.
In Judge Stewart(s dissent, he notes that many of these
jury experiment cases were decided before this Court issued its
decision in Gorz. Judge Stewart then concludes that (it is [not]
beneficial to rely on ... authority [from other jurisdictions]
when the rule adopted in Gorz is clear(.
It may be true that the rule stated in Gorz is (clear(
and uncomplicated, but this is only because Gorz does not
accurately describe the complexity of the law on this point.
In Gorz, the discussion of the issue of jury
experimentation is both short and conclusory:
The law governing this issue is well settled. Jurors have a duty
to consider only the evidence presented in open court. Thus, a
juror commits misconduct by conducting an unauthorized experiment
and either personally relying on the results or communicating
[those results] to other members of the jury. Evidence that has
not been subjected to the procedural safeguards of trial impinges
on the constitutional rights to confrontation, cross-examination,
and counsel. Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct.
546, 549-550, 13 L.Ed.2d 424 (1965).
. . .
In the present case, ... a member of [the] jury committed
misconduct by personally determining the amount of time it would
take to walk from the scene of the explosion to the Alaska Motor
Inn. This point is not seriously disputed by the state.
Gorz, 749 P.2d at 1355.
The Gorz opinion does not acknowledge any of the court
decisions discussed above (or any others like them). In these
decisions ( many of which were issued decades before Gorz ( courts
upheld jury experiments that were similar in nature to the
experiment conducted by the jurors in Pease(s case.
Judging from this Court(s comment in Gorz that the
claim of juror misconduct ([was] not seriously disputed by the
state(, it appears that this Court may not have received
adversarial briefing on the issue of what types of jury
experimentation are lawful ( and, thus, this issue may not have
received focused attention. But in any event, a review of the
cases in this area demonstrates that the bright-line rule stated
in Gorz does not accurately reflect the law on this subject.
Application of this law to Pease(s case
Under the cases discussed above, if a question had
arisen in Pease(s case as to whether a particular placard was
legible from ten feet away, or whether the color of a particular
object could be discerned in dim light, there would be no
impropriety in the jury(s experimenting with these objects in the
privacy of the jury room.
The experiment conducted in Pease(s case presents even
less cause for concern in terms of a defendant(s rights of
confrontation and cross-examination. The focus of the jury(s
inquiry was not a case-specific assertion about the quality or
condition of a particular object or event. Rather, as Judge Esch
found, the jury(s attention was primarily focused on testing the
generalized assertion made by Pease(s expert witness, Dr. Loftus (
the assertion that it is impossible, even under the best
conditions, for one human being to recognize another at distances
of more than 200 feet.
It appears that the jurors first attempted to test Dr.
Loftus(s assertion in the jury room ( by looking out of the window
to see if they could recognize people at a distance. Under the
cases discussed above, this type of experiment was proper. The
jurors took advantage of an experience afforded by everyday life (
the experience of observing people at a distance from the window
of a multi-story building ( to directly test the accuracy or
inaccuracy of Dr. Loftus(s assertion.
(Indeed, this Court has little doubt that, by this
point in our discussion, many of our readers have been tempted (
or have already succumbed to the temptation ( to peer out of their
own windows and try the experiment for themselves.)
When this question concerning the limits of human
perception became a disputed issue at Pease(s trial, the jurors
were undoubtedly entitled to rely on their own experience when
they discussed and ultimately assessed the credibility of Dr.
Loftus(s assertion. And, based on the cases discussed above, the
jurors were also authorized to make test observations through the
jury room window to help them resolve this question.
The real problem in this case arises because the jurors
disagreed in their estimates as to how far away the observed
people were. The jurors therefore decided to move the test
outside, where they could get a better measurement of the
distance.
By leaving the jury room, the jurors engaged in conduct
that courts are much less likely to condone. We acknowledge that,
in numerous instances, courts have held that jurors committed
misconduct when they ventured out of the jury room to view the
scene of the crime, or to assess how long it would take to travel
from one place to another, or to conduct other case-specific
experiments. Our own decision in Gorz v. State is a prime
example.
We nevertheless conclude that the jurors( conduct in
Pease(s case presents a materially different situation from the
ones described in the preceding paragraph. As Judge Esch found,
the circumstances surrounding the experiment show that the jurors
were not attempting to re-create Arlo Olson(s nighttime
observation of the assault on Franklin Dayton. Rather, the jurors
were attempting to test Dr. Loftus(s general assertion about the
limits of human perception.
Conceivably, when disagreement arose among the jurors
concerning the distance between the jury room window and the
people whom the jurors were observing through that window, the
jurors might have resolved this matter by deferring to the
judgement of individual jurors who had more experience viewing
people and objects at a distance ( for example, a pilot or a
soccer coach. If the jurors had done so (thus obviating the need
for them to leave the jury room), this would be an easier case.
But the jurors (for whatever reason) were unable to
resolve their disagreement by discussion and debate. So, instead,
they decided to renew their observations outside, where they could
use a more objective method for measuring the distance.
It is true that the jurors conducted this experiment
without the authorization of the court. But we believe that,
given the circumstances, reasonable judges would have allowed the
experiment if the jurors had asked. Because the main objective
was to test Dr. Loftus(s assertion about human perception under
optimal conditions (rather than to re-create Arlo Olson(s personal
experience of viewing other people at a particular distance on the
night of the crimes), it did not matter that there were obvious
differences between the jurors( experiment and the actual events
being litigated.
On this point, see Bierria v. Dickinson Manufacturing
Co., Ltd., 36 P.3d 654, 658-59 (Alaska 2001), a case that
addresses the issue of what courts mean when they insist that the
conditions of a proposed experiment be (substantially similar to
the conditions at the time of the event in issue.(8 In Bierria,
our supreme court emphasized that the concept of (substantial
similarity( hinges on what the experiment is offered to prove.
Often, there are identifiable dissimilarities between the
circumstances of the experiment and the real-life event being
litigated; nevertheless, the experiment is still (substantially
similar( if these dissimilarities are irrelevant to what the
proponent of the experimental evidence is trying to prove.
Here, the jurors wished to test Dr. Loftus(s assertion
that it was impossible, even under the best of conditions, to
recognize another person at a distance of greater than 200 feet.
Given this purpose, it is irrelevant that the jurors( observations
of each other, in daylight on Third Avenue in Anchorage, bore
obvious dissimilarities to the nighttime observation described by
Arlo Olson in his testimony.
For this same reason, the fact that neither Pease nor
his defense attorney were present to witness and critique the
experiment is not particularly important. In Pease(s pleadings
(both in the superior court and on appeal), he argues that the
jurors( experiment was irremediably flawed because the jurors may
have failed to perceive, or may have misperceived, crucial
differences between the circumstances and conditions of their
experiment and the circumstances and conditions of Arlo Olson(s
observation on the night in question. But, as explained above, we
conclude that these differences are immaterial.
We note, moreover, that Pease and his attorney would
not have been present if the jurors had followed the lawful course
of remaining inside the jury room and resolving their disagreement
about the distances involved through discussion and debate, or by
deferring to the judgement of individual jurors who were deemed to
have better skill at estimating distances.
In sum, we conclude that the jurors( experiment was a
proper type of inquiry for the jury to make, even though the
jurors committed misconduct when they left the jury room for this
purpose without the court(s permission.
The remaining question is whether the jurors( act of
leaving the jury room without authorization requires reversal of
Pease(s convictions.
As this Court noted in Gorz, 749 P.2d at 1355, not all
acts of jury misconduct require reversal of the jury(s verdict.
In fact, our supreme court has declared that (generally the
verdict should stand unless the evidence clearly establishes a
serious violation of the juror(s duty and [this violation of duty]
deprives a party of a fair trial.( Fickes v. Petrolane-Alaska Gas
Service, Inc., 628 P.2d 908, 910 (Alaska 1981), quoting West v.
State, 409 P.2d 847, 852 (Alaska 1966).9
We conclude that the act of jury misconduct presented
in Pease(s case ( i.e., the act of leaving the jury room without
authorization to conduct an experiment that was otherwise proper (
is not a (serious violation of the [jurors(] duty( for purposes of
the Fickes/West test.
Moreover, even assuming that the act of leaving the
jury room was a serious violation of the jurors( duty, we further
conclude that the jury(s experiment did not deprive Pease of a
fair trial. As we have explained, the jurors( primary purpose was
to test Dr. Loftus(s general assertion about the limits of human
perception under optimal conditions. The experiment, in itself,
was proper. And, given the purpose of the experiment, there is no
reason to believe that the experiment yielded a false or
misleading result (i.e., a result that the jurors could not
understand or meaningfully evaluate).
Thus, even though the result of the experiment may have
influenced the jury(s ultimate decision, the fact that the jurors
conducted this experiment does not require reversal of Pease(s
convictions.
Conclusion
For the reasons explained here, the superior court(s
decision to grant Pease(s petition for post-conviction relief is
REVERSED, and Pease(s convictions are reinstated.
COATS, Chief Judge, concurring.
A contested issue at Pease(s trial was whether Arlo
Olson, from a distance of 400 feet or more, could identify the
people who attacked Franklin Dayton. Olson testified that he could
identify the four assailants from this distance. To rebut Olson(s
testimony, the defense called Dr. Geoffrey Loftus, an expert in
human visual perception and memory. Dr. Loftus testified that,
even under optimal conditions, it was impossible to identify
someone from even 200 feet away.
During their deliberations, the jurors attempted to
test Dr. Loftus(s assertion by looking out of the jury room window
and observing the people below. Then, dissatisfied with this
investigation, the jurors went outside and conducted the
experiment that is at issue in this case.
The ultimate question facing Judge Esch, and now this
Court, is whether the jurors( act of conducting this experiment on
the street outside the jury room undermines confidence in their
verdict to such an extent that we should grant Pease a new trial.
We would certainly expect jurors to critically examine
Dr. Loftus(s assertion that it is not humanly possible to identify
a person from a distance of 200 feet. It is all but inevitable
that, faced with this assertion, the jurors would test it. We
frequently observe other people at a distance in our daily life,
and it seems obvious that, after hearing Dr. Loftus(s testimony,
any juror with normal curiosity would test their own ability to
observe and identify people at a distance ( probably by doing
something similar to what the jurors did in this case: looking
out the window of the jury room, or looking down the street during
a lunch break or when driving home at night.
Had the jurors stopped there, it seems unlikely that
Pease would be entitled to a new trial. It would simply be a
matter of the jurors using their common sense and everyday
experience to resolve a factual issue.
We could, of course, try to stop jurors from personally
assessing the credibility or probative force of in-court testimony
( by specifically instructing jurors not to conduct these types of
common-sense experiments and observations. But if we did this (
if the law strictly prohibited jurors from conducting any kind of
extrajudicial evaluation whatsoever ( then it is unlikely that any
verdict would withstand close scrutiny. After an adverse verdict,
a disappointed litigant could obtain a new trial by simply
questioning the jurors and getting them to admit that they did
something to test the factual assertions that they heard in court.
It is true that the jurors in Pease(s case did not
limit themselves to observations from the jury room window.
Instead, they engaged (as a group) in mutual observation at a
distance on the street. But it does not seem to me that this
materially changes the analysis.
Even though the jurors continued their testing on the
street, observing each other at a distance, they were still
engaged in the same kind of common-sense experimentation, based on
everyday experience, that would have occurred had the jurors
confined their observations to the jury room. In fact, the jurors
were probably able to conduct a more accurate experiment on the
street, since they could be sure that they were all making their
observations across the same distance.
It is true, as Pease points out, that the credibility
of Dr. Loftus(s testimony was not the ultimate issue. Dr.
Loftus(s assertion about the limits of human perception was
relevant because it undercut Olson(s claim that he was able to
identify the men who attacked Franklin Dayton.
Moreover, Olson admitted that he had been drinking and
that it was dark when he made the identification, and he further
admitted that he was able to see the men for only a limited time.
Thus, the conditions under which the jurors observed each other on
the street were quite different from the circumstances surrounding
Olson(s observations. But the circumstances of Olson(s
observation, and the potential difficulties that he faced in
making the identification, were thoroughly aired at Pease(s trial
and were extensively argued to the jury. It is unrealistic to
think that the jurors were unaware of the differences between the
circumstances of their experiment and the actual circumstances of
Olson(s identification.
Because the jurors must have been aware of these
substantial differences, the jurors( experiment only makes sense
as a test of Dr. Loftus(s testimony, not a test of Olson(s
testimony. If the jurors found that Dr. Loftus(s assertion about
the limits of human perception under optimal conditions was
accurate, this would largely undermine the credibility of Olson(s
testimony. But even if the jurors concluded that Dr. Loftus had
exaggerated the limitations of human perception, the jurors would
still have to resolve the question of whether, under less-than-
optimal conditions, Olson could make an accurate identification of
the men who attacked Franklin Dayton.
It appears to me that the jurors engaged in a sensible
effort to resolve the credibility of Dr. Loftus(s testimony, and
that they understood both the significance and the limitations of
their experiment. This was the sort of factual issue that we
routinely trust juries to resolve using their common sense and
their combined life experience. For these reasons, I conclude
that the jurors( conduct does not undermine the trustworthiness or
fairness of their verdict. Thus, Pease is not entitled to a new
trial.
STEWART, Judge, dissenting.
I disagree with the majority for three reasons. I
characterize Judge Esch(s decision differently than the majority.
I conclude that the jury conducted an unauthorized experiment
under Gorz v. State.1 And I would uphold Judge Esch(s conclusion
that Pease is entitled to post-conviction relief.
During discovery in this case, several jurors from
Pease(s trial confirmed that the entire panel left the Nesbett
courthouse in the middle of deliberations and performed an
experiment. The jurors generally agreed that the purpose of the
experiment was to see what another person looks like at the
distances discussed in the testimony, to see what the relevant
distances were on the ground, and to test the validity of Arlo
Olson(s testimony. Olson was the only witness who placed the
defendants at the scene of the first crimes occurring on October
11 (the charges of robbery and assault of Franklin Dayton).
The capability of anyone to reasonably identify a
person from a distance was the subject of expert testimony and a
contested issue. Although more than sixty witnesses testified
during the trial, only Olson testified that he saw the defendants
robbing and assaulting Dayton. Other witnesses offered
conflicting evidence about the defendants( whereabouts when these
crimes occurred.
Olson testified that he spoke with one of the men, all
four of whom were together in Marvin Roberts(s car, at the front
steps of Eagles Hall in Fairbanks before the assault on Dayton.
Approximately thirty minutes passed before Olson said he saw four
men attack Dayton down the street.
Olson confirmed that it was dark outside, but that
there were a number of lights nearby, including lights from a
nearby gas station and street lights. Olson also stated that,
although he was approximately 150 yards from the site of the
assault, he recognized Dayton, George Frese, and Eugene Vent
immediately because he had known them for a while. He further
stated that the men had their backs to him for part of the time
but that he got a clear look at all four men for approximately
three or four seconds while they were hurrying back to the car.
Olson conceded that he would have needed binoculars to distinguish
the men(s facial features, but he could recognize them by their
hair and build. Olson also recognized the car the men got into as
the blue car he had seen them in earlier.
A day or two later, Olson read an article in the
newspaper implicating Frese, Pease, Roberts, and Vent in J.H.(s
murder (an act for which he was separately convicted and which is
not the subject of this appeal). The article included head shots
of the four men. Olson testified that he recognized the
defendants as the same men who assaulted Dayton. Olson did not
immediately contact the police because he did not want to turn in
his friends, but ultimately, he changed his mind and reported the
assault. Olson told the police that he recognized the four men
from the newspaper as the four who had assaulted Dayton.
Olson admitted drinking alcohol that evening. He
conceded that during the attack on Dayton, the assailants often
had their backs toward him, and that he only got a good look at
them as they ran back to their car after attacking Dayton. And
while Olson estimated that Dayton was attacked approximately 150
yards away from him, there was evidence presented that the
distance was closer to 550 feet (approximately 183 yards).
To impeach Olson(s testimony, the defense presented an
expert witness, Dr. Geoffrey Loftus. The superior court qualified
Dr. Loftus as an expert in human visual perception and memory.
Dr. Loftus testified that one(s (ability to distinguish [one
person] from somebody else, in other words to recognize them later
on, is essentially nil( at distances greater than 200 feet. He
testified that this is true even in the best of circumstances,
with full light, unlimited time, and a sober and alert observer.
During deliberations, the bailiff accompanied the
jurors as they walked to the corner of Third Avenue and I Street
in Anchorage. A juror paced off a distance he believed was 350 or
360 feet and stopped in front of the entrance to an office
building near the intersection of Third Avenue and K Street. This
distance was later measured at approximately 434 feet. According
to at least two accounts, another juror also walked down to the
same spot. The jurors then looked at each other to determine
whether they could recognize one another at that distance, and a
few jurors stated that they also looked at passersby to test
whether they could distinguish the features of those strangers.
Although most of the jurors could not remember precisely what time
it was when they conducted the experiment, they all agreed that it
was during daylight hours.
In their depositions, the jurors generally agreed that
the purpose of the experiment was to get an idea of the distance
discussed in the testimony and to see what another person looks
like at that distance. One juror testified:
Well, part of the testimony was that an incident had happened at
that distance from the wedding reception. ... And I think the
[contention] was that it would be difficult to see accurately at
that distance. And so it was just a matter of satisfying
ourselves whether that was, in fact, true or not.
According to another juror:
The idea was to see if there was some way we can actually, you
know, if it(s a question of can we see a certain distance, can we
get an idea, just by going out and pacing ( not pacing off, but
somehow guessing what that distance would be, just to feel
comfortable[.]
...
I don(t like the word (experiment,( but that probably sums it up.
Bottom line, it was, to me, a confidence builder or some sort of
satisfaction that ... my assumptions were right to begin with.
This juror also stated that on (one of the first days[, the
jurors] went to the window and asked each other, how far do you
think that thing is[?](
When asked about the (connection [between] this
experiment and the trial testimony,( a third juror responded:
(There was some discussion around ... what you could see from that
distance, could you ( could you see a person at that distance or
persons[?]( A fourth juror stated that the experiment (had a
singular purpose, that was to try to ( you know, I suppose for
each person to make up his own mind what he thought about how far
he could recognize somebody.( And a fifth juror explained that
she recalled (discussions about distance ... and references to,
you know, say, a football field. ... And, you know, tell me a
football field, and I have no idea what you(re talking about.
Show me what you mean; I know what you mean.( She said the
experiment outside the courthouse was designed to show how far the
distance they had been discussing actually was.
A sixth juror could not remember how the experiment
came about but recalled that it was hot out and speculated that
(it could have been [they] were going to go for a walk, and then
there was a discussion of how far that distance was, and so from
there, it turned into looking at each other to see what it looked
like from that distance.( She also recalled that an expert
witness for the defense (had said it was impossible [to recognize
someone at the distances in question], [that] he couldn(t
recognize his mother, and [she] remember[ed] that a lot of [the
jurors] were talking about that, about whether or not that was
true, whether that was accurate.(
According to a seventh juror,
some of the jurors were kind of confused about how far is that
distance, you know, in relation to whatever, and so we ... [went]
outside as a group and [tried] to walk off or have somebody stand
down where we determined to be a certain distance, ... and so we
had a person do that.
Finally an eighth juror recalled the purpose of the
experiment as follows:
[The purpose was] just to see what someone would look like at 500
feet away, you know, or ( because in my mind I have a hard time
figuring out what 500 [feet] would be. I kind of ( one of
reference of, like, a football [field] is 300 feet. And 500 feet
is just ( I remember I kept thinking that(s just ( I don(t have
any reference point. I don(t know what someone would look like,
if they(d look like an ant or if they(d look halfway recognizable
or whatever. So that(s why I was ( you know, that was my two
cents I chipped in on our discussion about doing this whole thing.
This juror also explained that, because he has poor eyesight, he
could not recognize the people down the street. But he listened
to what the other jurors were saying and took into consideration
that they said they could recognize the other jurors down the
street. According to this juror, (it seems like at least half of
the people said, (Oh, yeah, I can tell that is so and so,( then it
made it believable to me that it(s possible. It removed the doubt
that one might have that it(s impossible to see someone or
identify someone at 500 feet.(
Thus, some jurors agreed that a purpose of the
experiment was to test whether Olson could have recognized the
defendants.
Pease moved for summary disposition of his application
for post-conviction relief, arguing that the jury performed an
unauthorized experiment and that the experiment constituted jury
misconduct that denied him his rights of confrontation and cross-
examination. The State opposed, contending that the jurors(
actions did not constitute an unauthorized experiment and that
Pease had not demonstrated that his conviction was unfair.
Judge Esch found that the material facts were not in
dispute. Judge Esch found that the jurors conducted an
unauthorized, out-of-court experiment to assess the credibility of
Olson(s and Dr. Loftus(s trial testimony. (In its initial
briefing, the State did not challenge Judge Esch(s factual
findings, and agreed at oral argument that the jury(s experiment
was misconduct.)
Judge Esch applied the standard for evaluating jury
misconduct that this court described in Gorz v. State2: ([T]he
ultimate issue in any case involving juror misconduct is whether
it can be said beyond a reasonable doubt that the misconduct did
not contribute to the verdict.(3 He ruled that the misconduct
(was likely to have influenced the jury,( and could not find that
(the jury [misconduct] did not (contribute( to the ultimate
verdict of guilt.( Accordingly, he granted post-conviction
relief.
The experiment that led to the reversal of the
defendant(s conviction in Gorz was simple.4 Gorz was charged with
first-degree arson arising out of an explosion that occurred at an
apartment building in Fairbanks.5 Gorz presented an alibi defense
that was based, in part, on evidence that Gorz and his co-
defendant were seen a couple of blocks from the apartment building
about fifteen minutes after the blast.6 The State did not present
any specific evidence on the time it would take to walk from the
site of the explosion to where Gorz was seen, but it did establish
that the distance between these two locations was about two
blocks.7
During a recess in the jury(s deliberations, one of the
jurors walked from the crime scene at the apartment building to
the place where Gorz was seen.8 Apparently, the walk took four to
five minutes.9 Gorz argued that the juror(s experiment
constituted misconduct.10
This court reversed Gorz(s conviction, ruling that:
a juror commits misconduct by conducting an unauthorized
experiment and either personally relying on the results or
communicating them to other members of the jury. Evidence that
has not been subjected to the procedural safeguards of trial
impinges on the constitutional rights to confrontation, cross-
examination, and counsel.[11]
Judge Esch cited Gorz in ruling that the jurors had
improperly conducted an unauthorized, out-of-court experiment.
Judge Esch found that the jury sought (to test the validity of
Loftus([s] testimony,( and to (assess [] the validity of the
testimony of Arlo Olson.(
Next, to evaluate the effect of the unauthorized
experiment, Judge Esch turned to a test set out in Swain v.
State12:
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.[13]
Judge Esch ruled that the experiment (was likely to have
influenced the jurors( deliberations.( He found that the trial
was (rife with conflicting testimony,( especially Olson(s
identification testimony and the impeaching expert testimony from
Dr. Loftus, and an experiment designed to address this dispute in
the evidence was (likely to have influenced the verdict.(
On reconsideration, Judge Esch rejected the State(s
claim that the evidence against Pease was so overwhelming as to
negate the effects of the juror misconduct. He described the
evidence against Pease as (compelling( but, applying the Swain
test(s beyond a reasonable doubt standard, he could not find (that
the jury action did not (contribute( to the ultimate verdict of
guilt.(
The majority contends that Judge Esch found that the
jury(s primary purpose was to test Dr. Loftus(s assertion that it
was impossible for a person to recognize another at distances of
more than 200 feet. I do not read Judge Esch(s decision as being
so limited, because the judge also found that the jury was
attempting to test the validity of Olson(s testimony.
The evidence also points out problems with the jury
experiment. During trial, there was evidence that Olson was 550
feet from the nighttime attack on Dayton. A measurement of the
distance paced off by a juror in the experiment showed it to be
less than 435 feet.
Because the jurors were testing more than Dr. Loftus(s
testimony, I do not agree that we can conclude that reasonable
judges would likely have authorized the experiment they conducted.
Experimental evidence is admissible when the conditions of the
experiment are substantially similar to the conditions at the time
of the event in issue.14 In Love, the supreme court announced a
multi-part analysis to decide whether the conditions were
substantially similar.15 The factors include: (1) whether the
dissimilarities are likely to distort the results of the
experiment to a degree that the evidence is not relevant; (2)
whether the dissimilarities can be adjusted for or explained so
that their effect on the results can be understood by the jury;
(3) the purpose of the experiment and the degree to which the
matter under experiment is a subject of precise science; and (4)
whether the experiment would be considered valid by persons
skilled or knowledgeable in the field which the experiment
concerns.16
The conditions of the jury(s experiment differed
markedly from the conditions facing Olson. Olson viewed the
attack on Dayton at night at a distance of about 550 feet under
artificial lighting. The jurors were looking at each other during
the daytime at a distance more than 100 feet less than Olson
faced. Considering the differences in the lighting and the
significant variation in distance, I conclude that the conditions
were not substantially similar.
The majority also discusses several cases that review
jury experiments. Most of the experiments in those cases occurred
in the jury room with evidence admitted during trial. And the
majority of those cases were decided before Gorz. I do not think
it is beneficial to rely on other authority when the rule adopted
in Gorz is clear: a juror conducting an unauthorized experiment
that develops evidence untested in open court violates the
defendant(s constitutional rights.17
Because such an experiment is a constitutional
violation, a conviction cannot stand unless the court can
conclude, beyond a reasonable doubt, that the misconduct did not
contribute to the verdict. I would affirm Judge Esch(s conclusion
that the unauthorized experiment was likely to have influenced the
jury(s deliberations. Therefore, I dissent.
1Four men actually perpetrated these crimes. We affirmed
the convictions of the other two accomplices in Vent v. State, 67
P.3d 661 (Alaska App. 2003), and Frese v. State, Alaska App.
Memorandum Opinion No. 4629 (October 23, 2002), 2002 WL 31376010.
2See Wayne R. LaFave, Jerold H. Israel, and Nancy J.
King, Criminal Procedure (2nd ed.1999), ( 1.4(c), Vol. 1, p. 177
n. 113:
When the Normans introduced the jury [to English law],
they ... sought merely to gain the advantage of community
knowledge of local events. As first established, jurors were
neighbors who were likely to know something of the facts in
question. They typically based their verdicts on their own
knowledge and what they heard from their friends. As England
moved from a rural to a more urbanized society, it was no longer
possible to assume that jurors were self-informed. A method [was
then] developed for presenting the facts to the jury in the course
of the trial.
3See Alaska Evidence Rule 614 ((Calling and Examination
of Witnesses by [the] Court().
4See Turpin v. State, 890 P.2d 1128, 1131 (Alaska App.
1995), defining (extraneous information( as (information that
reaches the jury other than through the normal trial process[,]
such as prejudicial publicity, pressure placed on jurors from
outside sources, use of extrajudicial information, and the like.(
(Quoting Stephen A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, Federal Rules of Evidence Manual (6th ed. 1994), Vol. 2, p.
777.)
5Citing Hard v. Burlington Northern Railroad Co., 870
F.2d 1454, 1462 (9th Cir. 1989).
6Notable British Trials, Series 1922, Trial of George J.
Smith, page 118 (quoted in John Henry Wigmore, Evidence in Trials
at Common Law (Chadbourn rev(n, 1972), ( 1160, Vol. 4, p. 357, n.
1).
7Overruled on other grounds by Stiles v. State, 520
S.W.2d 894 (Tex. Crim. App. 1975).
8Beck v. State Department of Transportation and Public
Facilities, 837 P.2d 105, 113 (Alaska 1992).
9The emphasis on the word (and( is not present in the
original quotation from West; it was added by the Fickes Court.
1749 P.2d 1349 (Alaska App. 1988).
2Id.
3Id. at 1355.
4Id. at 1350-55.
5Id. at 1350.
6Id. at 1352.
7Id.
8Id.
9Id.
10Id. at 1353-55.
11Id. at 1355.
12817 P.2d 927 (Alaska App. 1991).
13Id. at 932 (quoting 2 ABA STANDARDS FOR CRIMINAL
JUSTICE ( 8-3.7, Commentary at 58 (2d ed. 1980)).
14Love v. State, 457 P.2d 622, 627 (Alaska 1969).
15Id. at 628.
16Id.
17See Gorz, 749 P.2d at 1355. See also United States v.
Navarro-Garcia, 926 F.2d 818, 821-23 (9th Cir. 1991); People v.
Castro, 184 Cal. App. 3d 849, 852-54, 229 Cal. Rptr. 280 (Cal.
App. 1986); People v. Legister, 552 N.E.2d 154, 154-55 (N.Y.
1990); People v. Brown, 399 N.E.2d 51, 53-54 (N.Y. 1979).
(41( 2112
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