Cox v. State, 2862

• Decision Date: 17 February 1978
• Docket Number: No. 2862,2862
• Parties: Francis COX, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 297

575 P.2d 297

Francis COX, Appellant, v. STATE of Alaska, Appellee.

No. 2862.

Supreme Court of Alaska.

Feb. 17, 1978.

Craig M. Cornish and R. Collin Middleton, Wagstaff and Middleton, Anchorage, for appellant.

Michael J. Keenan, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR and BURKE, Justices.

RABINOWITZ, Justice.

After trial by jury Francis Cox was found guilty of the crime of assault with intent to rape. ¹ Subsequent to his indictment but prior to trial, Cox moved to suppress an anticipated in-court identification by a witness, Jonathan Ramey, on the ground that it was prejudicially tainted. That motion was denied, and the case proceeded to trial. Mistaken identity and alibi were Cox's main defenses. Shortly after the jury retired to commence their deliberations, they requested a playback of the court tape recording of two alibi witnesses' testimony. The trial court denied the request at that time. The record indicates that no communication by the court was made to either counsel or Francis Cox regarding the jury's request to listen to a playback of two alibi witnesses' testimony until after the verdict had been returned and filed. After Cox's trial counsel subsequently discovered the jury request and the trial court's communication to the jury, he submitted a motion for new trial, based in part on these events. The motion was denied and Cox was then sentenced to the maximum penalty, 15 years imprisonment, to be served consecutively to a prior sentence in Kentucky on which Cox had been paroled. This appeal followed.

We first address the issue whether the superior court's ex parte communication to the jury made in response to their request for playback of testimony constituted reversible error. In his affidavit filed in support of Cox's motion for a new trial, Cox's trial counsel asserted that subsequent to the return of the verdict he was informed by a juror

that the jury had requested a playback of portions of the testimony of Mrs. Charita Riggins and Miss Jean Hehnlin, two witnesses whose testimony had supported the defendant's alibi. (The juror) indicated that the jury had specifically requested this testimony for the purpose of ascertaining the exact times that these persons said they had encountered the defendant during the afternoon in which the alleged crime had taken place.

In further support of the motion for new trial, Cox filed an affidavit from the bailiff who had charge of the jury. In this affidavit the bailiff stated that the jury retired to begin its deliberations at about 5 p.m. and approximately one hour later, the foreman of the jury informed him

that they had a request, and wished to listen to the recorded testimony of two of the defendant's witnesses: Mrs. Charita Riggins, and Mrs. Jean Hehnlin. The foreman noted that the jury was concerned about the various times which these people had referred to in their testimony.

I conveyed this request to Judge Carlson. . . . (H)e instructed me to reply that the jury would not be allowed to listen to the tapes at that time, but could renew their request later in the evening if necessary.

Judge Carlson filed an affidavit in response to the motion for new trial. In this affidavit Judge Carlson noted that the bailiff had made reservations for the jurors to dine at 7 p.m. and at 6:30 p.m., while at home, he received a call from the bailiff who informed him that the jury wanted to listen to the tape of two witnesses' testimony. Judge Carlson further averred that he informed the bailiff "to tell the jury that they could not hear the testimony at that time and if they still wanted to hear it after they returned from dinner they should renew their request." ² In denying the motion for new trial, the superior court ruled, in part:

I also find that the law does not require that I notify counsel, defendant and the defendant of every instance when the bailiff communicates something to me concerning the jury and especially in a case of this nature where the opportunity to again request for the hearing of the tape was given, they did not request it. They came in with a verdict shortly after returning from dinner.

Cox raises two basic issues with respect to the superior court's actions concerning the jury's playback request. First, he argues that the denial of the request was reversible error. Second, Cox argues that even if the superior court's denial was proper, in the circumstances the superior court's actions denied him his right to be present at every stage of trial.

Jury requests for testimony playback are addressed to the sound discretion of the trial court. ³ Nevertheless, we have stated that "justice is more likely to be prompted than obstructed if the jury at its request is allowed to rehear the electronic recording of specific testimony given at trial." ⁴ Although resolution of the issue whether the superior court's denial of the jury's request for playback constituted an abuse of discretion presents an extremely difficult question, we find it unnecessary to decide this issue in light of our conclusion that Cox was denied the right to be present at every stage of the trial.

This court dealt with the subject of the defendant's presence in our recent opinion in State v. Hannagan, 559 P.2d 1059 (Alaska 1977). In Hannagan, when the jury requested playback of the testimony of two witnesses, counsel for both the state and the defendant were called to the courthouse. Hannagan was not called, and the judge suggested delaying the proceedings until the next morning when Hannagan could be present. Hannagan's counsel attempted to waive his client's right to be present, and the tape was played to the jury. We held that the playback was a "stage of trial" requiring the presence of the defendant under Alaska Criminal Rule 38(a) ⁵ and that the purported waiver was ineffective. Though finding error, we did not reverse the conviction, because we found the error to have been harmless beyond a reasonable doubt. The effect of Hannagan was to extend to the jury deliberation playback stage the holdings of Gafford v. State, 440 P.2d 405, 417 (Alaska 1968), and Noffke v. State, 422 P.2d 102, 105 (Alaska 1967), that "a defendant has a right to be present when any type of communication occurs between the court and the jury during its deliberations." ⁶

In Noffke v. State, 422 P.2d 102 (Alaska 1967), after the jury had retired, some of the jurors requested additional instructions from the court. The bailiff delivered the request to the judge who, without contacting counsel or the defendant and without reconvening court, issued supplemental instructions. We concluded it was error for the superior court to communicate with the jury in the absence of Noffke and his attorney. However, we refused to adopt a per se reversibility standard in such situations but held the error must affect a substantial right of the defendant. ⁷ The appropriate standard, as pointed out in Hannagan, ⁸ is now the "harmless beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In Gafford v. State, 440 P.2d 405 (Alaska 1968), the judge and jury exchanged notes relating to the clearing of the courtroom when the verdict was to be received. The jury's request to clear the courtroom was based on an emotional outburst the first time the verdict was received and the jury was polled. We did not reverse because the defendant's substantial rights were not affected. Noting that "unlike the communication involved in Noffke (the note) had no direct bearing on the merits of the litigation." ⁹

We have concluded, in light of the factual context of this case and under the Noffke-Gafford-Hannagan rationale, that the superior court's ex parte communication in this case constituted error. As we stated in Hannagan, "it (is) constitutional error for the judge to communicate with the jury or permit the playback of testimony to the jury in the defendant's absence." ¹⁰ Therefore, it must be determined whether the superior court's error was harmless beyond a reasonable doubt.

In the case at bar, the superior court's response, transmitted through the bailiff, related directly to the issue of whether the jury's playback request would be honored. Since no electronic recording was made of the trial court's communication to the jury, through the bailiff, we have no way of ascertaining precisely what was communicated to the jury by the bailiff. Thus, the possibility cannot lightly be dismissed that the superior court's response may have implied even unintentionally to the jury that they need not listen to the playback of the witnesses' testimony. Based upon the affidavits to which we have previously alluded, the trial court's response to the jury's request was equivocal even when viewed in its most favorable light.

Further, the recorded evidence which the jury sought to have played testimony of two alibi witnesses was crucial to Cox's defense; of particular importance was their testimony as to the times involved. ¹¹ In the words of appellant, "No other testimony presented by (him) during the trial was a(s) crucial to his defense. If believed, the jury must have acquitted. No person can be at two places at the same time." Had Cox and his attorney been made aware of the request, the superior court might have determined that the playback was more important than the jurors' dinner plans. It is even more likely that counsel or Cox could have had sufficient input to persuade the superior court to allow the playback without renewed request. At the very least, Cox and his attorney would have had the opportunity to help formulate the wording of the court's response to the jury. We thus conclude that the superior court's ex parte communication to the jury, in violation of Cox's rights under Criminal Rule 38(a), cannot be...