Dixon v. State

• Decision Date: 18 January 1980
• Docket Number: No. 3810,3810
• Parties: Richard DIXON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 882

605 P.2d 882

Richard DIXON, Appellant, v. STATE of Alaska, Appellee.

No. 3810.

Supreme Court of Alaska.

Jan. 18, 1980.

Walter L. Carpeneti, Asst. Public Defender, Juneau, and Brian Shortell, Public Defender, Anchorage, for appellant.

Michael J. Stark, Asst. Dist. Atty., Juneau, Thomas Wardell, Dist. Atty., Kenai, and Avrum M. Gross, Juneau, Atty. Gen., for appellee.

Before RABINOWITZ, C. J., BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

RABINOWITZ, Chief Justice.

Richard Dixon was indicted and convicted, after trial by jury, of the crime of rape in violation of AS 11.15.120(a)(1). The incident which led to his conviction occurred on the evening of October 9, 1976, in Soldotna. On that evening, Dixon met the complaining witness in a bar in Soldotna, where she had stopped to attempt to locate a fellow employee with whom she was traveling on business from Anchorage to Homer. Dixon and the complaining witness left the bar together in Dixon's car and dined in a restaurant located a short distance from the bar. The complaining witness asserts that on the way back to the bar after dinner the rape occurred. Dixon's defense to the charge was that the complaining witness had consented to the act of intercourse.

Dixon's first point in this appeal is that the superior court erred in responding to a written communication from the jury during its deliberations requesting a playback of certain testimony without notifying him or either counsel of the communications and without allowing the parties to be present and to be heard on the matter.

Approximately two and one-half hours after the jury began its deliberations, a note signed by the foreman was sent to the court. The note requested the playback of the complaining witness' testimony as well as Dixon's testimony. ¹ Without consultation with either counsel or Dixon, the trial judge sent a return note to the jury informing them that while he would not allow them to hear all of the requested testimony over again, if they would designate the portions of the testimony concerning which there was disagreement, he would attempt to locate those portions of the testimony and play them back to the jury. ² Approximately one hour later, the jury sent a note to the judge, which stated: "Judge Hanson: We need nothing more at this time apparently. Thank you (signed by the jury foreman)." A verdict of guilty was returned some five hours after this final communication from the jury.

Under both the United States Constitution and the Alaska Constitution the right of the defendant to be present at every stage of the trial has been recognized. ³ Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. ⁴ In Alaska, this constitutional right has been further implemented by the provisions of Criminal Rule 38(a) which provide:

Presence Required. The defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule. ⁵

Given the foregoing, and this court's decisions on the point, the state has appropriately conceded that it was error for the superior court to have communicated to the jury without counsel and Dixon present. ⁶ However, this concession is not dispositive of the issue in the appeal for it remains to be determined whether the error was prejudicial or harmless. In past decisions involving improper judge/jury communications, we have expressly rejected a Per se reversibility standard. Rather, we have applied the normal standard of reversibility for an error of constitutional magnitude, namely, 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). ⁷

State v. Hannagan, 559 P.2d 1059 (Alaska 1977), is of significance. ⁸ In that case, we held that the defendant's absence from the courtroom during the playback of the testimony was harmless beyond a reasonable doubt. In reaching this conclusion, we said:

The playback involved no rights to confront witnesses or cross-examine witnesses and was not a situation in which polling of the jury would be appropriate. The reason the jury would be appropriate. In the presence of the jury, counsel for Hannagan attempted to waive Mr. Hannagan's rights to be present, and the district attorney concurred in this result. The trial court indicated its willingness initially to wait until morning when Mr. Hannagan would be present. Under these circumstances, we believe that it was made sufficiently clear to the jury that Mr. Hannagan had not absconded from the jurisdiction or defied an order of the court to be present so as to create an unfavorable impression to the jury. There is no allegation here that there was communication between the court and the jury without counsel for both sides present. This case does not involve reinstruction of the jury on matters of law. We do not think that the psychological effects of defendant's absence during a 45-minute replay merits retrial in this case.

Id. at 1066.

However, in Richardson v. State, 579 P.2d 1372 (Alaska 1978), which also involved the playback of testimony in the absence of the defendant, we determined that the error was not harmless. The distinguishing features of the Richardson case were that the trial judge, counsel and the defendant all were absent from the playback proceeding (apparently only the jury, the bailiff and an in-court deputy were present), and no independent record was made of the replay proceedings. In those circumstances, we concluded that the state had not established that the error was harmless beyond a reasonable doubt because there was no record to indicate which portions of the witnesses' testimony were replayed, whether any non-jurors present in any way communicated with the jury, or whether the jury communicated among themselves or with anyone else during the proceeding. We suggested that had the trial judge, counsel, and Richardson been present, objections or suggestions might have been made which would have affected the trial court's decision in determining which portions of the testimony were to be replayed to the jury.

Cox v. State, 575 P.2d 297 (Alaska 1978), was decided a few months prior to Richardson. In Cox, the jury had communicated to the trial court a desire to hear a playback of a portion of the testimony of two witnesses whose testimony had supported the defendant's alibi defense. The trial court apparently instructed the bailiff to reply to the jury that though their request was denied at that time (it was one-half hour from the jurors' scheduled dinner hour), if the jury still wanted to hear the testimony after they returned from dinner, they should renew their request at that time. Neither the defendant nor his attorney was notified of the request and the court's response until after the verdict was returned. In finding that the Ex parte communications between the judge and the jury were not harmless error, we emphasized in Cox the fact that no electronic recording was made of the trial court's communication to the jury through the bailiff and the additional fact that the testimony which the jury had sought to have replayed was crucial to Cox's defense. We stated:

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. 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 considered harmless error beyond a reasonable doubt. Therefore, the matter must be remanded for a new trial.

Id. at 300-01 (footnote omitted).

In order to assess any prejudice to Dixon, it is necessary to review the nature of a jury's request to rehear trial testimony and of a trial court's discretion in granting or denying such a request. As we said in Price v. State, 437 P.2d 330, 334 (Alaska 1968) (footnote omitted):

There is no uniform rule in the courts on the question of whether testimony may be read to or reheard by the jury. Some jurisdictions disapprove of such a practice, others permit it by statute, while others, and probably the majority, leave the matter to...