Dougherty v. State, 120518 AKCA, A-12858

Docket Nº:A-12858
Opinion Judge:MANNHEIMER, JUDGE
Party Name:SHANE LEE DOUGHERTY, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Appearances: Amy K. Welch, Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
Case Date:December 05, 2018
Court:Court of Appeals of Alaska
 
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SHANE LEE DOUGHERTY, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12858

Court of Appeals of Alaska

December 5, 2018

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the District Court No. 4 DJ-16-035 CR, Fourth Judicial District, Delta Junction, Paul R Peterson, Magistrate Judge.

Appearances: Amy K. Welch, Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant.

Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

MEMORANDUM OPINION

MANNHEIMER, JUDGE

Shane Lee Dougherty appeals his conviction for driving under the influence.1 Dougherty's claim on appeal arises from an incident that occurred late in his trial.

Seven jurors had been selected in Dougherty's case - with the idea that, at the conclusion of the trial, the court would randomly designate one of these seven jurors as the "alternate". This juror would then be dismissed, and the remaining six jurors would decide Dougherty's case.

Toward the end of Dougherty's trial, but before an alternate juror had been designated, one of the seven jurors informed the court that her mother had just been hospitalized. The judge apprised the attorneys of this situation and suggested that this juror could be designated as the alternate, and then be excused. The judge asked the attorneys for their position on this matter - but the judge made a mistake by doing this in open court, in the presence of the entire jury, instead of bringing this matter to the attorneys' attention outside the jury's presence.

Dougherty claims that, because this matter was discussed in the entire jury's presence, his trial attorney felt coerced to accede to the judge's suggestion, rather than sticking with the original plan to have one juror excused at random. And because of this, Dougherty claims that he is entitled to a new trial.

We reject this claim for four reasons.

First, the record shows that Dougherty's attorney failed to preserve an objection to the trial judge's action. True...

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