Kugzruk v. State, 750

• Citation: 436 P.2d 962
• Decision Date: 02 February 1968
• Docket Number: No. 750,750
• Parties: Vernon K. KUGZRUK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 962

436 P.2d 962

Vernon K. KUGZRUK, Appellant, v. STATE of Alaska, Appellee.

No. 750.

Supreme Court of Alaska.

Feb. 2, 1968.

Richard R. Cole, Fairbanks, for appellant.

William G. Richards, Asst. Dist. Atty., and Jay Hodges, Dist. Atty., Fairbanks, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

In the lower court guilty verdicts were rendered against appellant as to the separate crimes of robbery, assault with a dangerous weapon, and burglary in a dwelling. ¹ A judgment and commitment sentencing appellant to concurrent six-year terms of incarceration was entered. It is from this judgment and commitment of the superior court that appellant appeals.

In his specification of error appellant contends that the trial court erred in allowing 'the prejudicial remarks of a prospective jury member made during the voir dire proceedings.' After considerable time had elapsed in selection of the jury, the clerk of court called prospective juror E. Albright. At this point the record shows that juror Albright volunteered the following:

Uh, Your Honor, I think that it would be a waste of time for me to come up there, because having had a long record of pilferage, breaking and entering, a boat pilfered, armed robbery, I'm sure I wouldn't have an open mind.

After this unsolicited information was revealed, the district attorney stated: 'We'll stipulate.' Appellant's trial counsel immediately followed with, 'So stipulate, also.' ² The trial judge then said, 'You're excused Mr. Albright.'

Review of the entire record fails to disclose that appellant's trial counsel objected to the prospective juror's remarks, or requested that the trial judge instruct the jury regarding them, or moved for a mistrial because of these comments.

In Sidney v. State ³ we held in part that, 'We will not consider on appeal any objection which was not raised at the trial level.' On the other hand, Criminal Rule 47(b) provides that:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

In accord with Criminal Rule 47(b) we said in Thomas v. State ⁴ that:

The record does not disclose that the subject motion was ever noticed for hearing. * * * In such a situation we follow the rule that alleged error occurring upon the trial of a case must be raised and urged in the trial court and passed upon by that court before this court will consider it on appeal unless the error specified raised a jurisdictional question or deprived the defendant of a substantial right. This is in keeping with Crim.R. 47 that only plain errors or defects affecting substantial rights may be noticed even though they were not brought to the attention of the court. ⁵

Also pertinent is Bowker v. State ⁶ where we said in regard to plain error that before we will notice a point that was not brought to the trial judge's attention, it must be 'obviously prejudicial.' We have concluded that appellant has not made out a case of plain error in regard to prospective juror Albright's comments. Appellant contends that he was prejudiced in that the juror Albright's remarks, together with counsels' immediate stipulation to dismiss the juror for cause, 'left implanted in at least some of the jurors' minds that the defendant Kugzruk had a long record of pilferage, breaking and entering, and armed robbery.' We disagree. At most, the prospective juror's statement was ambiguous. We are of the opinion that the more reasonable construction of the statement in question is that the juror himself had been the victim of a long history of criminal conduct. We hold, under the Bowker v. State ⁷ criterion, that appellant has not made out a case of plain error. ⁸

Appellant next contends that he was denied the right to be present at every stage of the trial. Criminal Rule 38 provides in part that:

The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.

In Noffke v. State ⁹ we were asked to decide whether every violation of Criminal Rule 38 necessitated reversal. There we said:

We hold that nonadherence by the trial court to the provisions of Crim.R. 38 does not automatically constitute reversible error. A violation of the mandate of Crim.R. 38 is not prejudicial error unless such nonadherence has affected a substantial right of the defendant. ¹⁰

In regard to this second specification of error, the record shows that during the testimony of Frank Mate, one of the victims of appellant's assault, robbery, and burglary, the following occurred: Counsel for appellant objected to a question which the district attorney had propounded to the witness; after a brief colloquy between counsel, the trial judge said:

(W)ould counsel care to-if the materiality is challenged, counsel may come forward, and the defendant if interested.

Appellant then asked, 'Does that mean for all these * * * hearings?' The record does not indicate that appellant's inquiry was answered. It does show that a conference was then held in an anteroom outside the presence of the jury. ¹¹ We note that in regard to this conference the record does not affirmatively show appellant's absence. We also consider it significant that the record does not indicate that trial counsel ever objected to appellant's absence from the anteroom conference. The status of the record is identical in regard to three subsequent anteroom conferences. As to each of these conferences the record does not affirmatively show appellant's absence nor does the record show that any objections were lodged as to appellant's absence. Upon review of the record, and adhering to the 'obviously prejudicial' test for determining plain error which we enunciated in Bowker v. State, ¹² we conclude that appellant has not demonstrated that he should be granted a new trial because he was denied the right to be present at every stage of his trial.

The first anteroom conference at which appellant asserts he was denied the right to be present involved a discussion as to the materiality and relevancy of testimony concerning certain objects which were located on a dresser within the apartment that appellant burglarized. The second conference concerned the marking of certain photographs as prosecution identifications. At the conclusion of this conference the district attorney decided not to use the photographs. The third conference took place during counsel for appellant's cross-examination of a prosecution witness. This anteroom conference was initiated because the district attorney was uncertain as to the import of the witness' testimony. Outside the jury's presence, appellant's counsel explained what had transpired and the district attorney indicated that he understood. The matter ended there.

Assuming that appellant was not present during any of these three conferences, we fail to discern any prejudice to appellant's substantial rights. We follow Noffke ¹³ and hold that nonadherence to the requirements of Criminal Rule 38 did not constitute prejudicial or reversible error here because no substantial rights of appellant were affected by anything which transpired at the conference in question.

Additionally, appellant claims that his right to be present at all stages of the trial was violated by a conference which was held following the reading of the court's charge to the jury. At this conference the district attorney suggested a grammatical change in one of the instructions pertaining to the count of assault with a dangerous weapon. Neither during the anteroom conference, nor at any time subsequent thereto, did appellant's trial counsel object to the court's granting the prosecution's requested change in the assault with a dangerous weapon instruction. ¹⁴ At the same conference appellant's counsel suggested that a word had been omitted from a portion of the court's charge as it pertained to the burglary count. The trial court followed appellant's counsel's suggestion and added the omitted word to the burglary instruction. ¹⁵ At the conclusion of this conference, the trial judge informed the jury, in the presence of appellant and his counsel, that he had made several handwritten changes in the instructions. ¹⁶ Here again the record shows that there was no objection on the part of appellant's counsel after the trial court had informed the jury that changes had been made in the instructions.

After reviewing the events of this last conference, we have concluded no substantial rights of appellant were affected by his absence from this fourth anteroom conference. Unlike the situation presented by Noffke v. State ¹⁷ the changes made in the court's instructions did not adversely affect any of appellant's substantial rights. In the case at bar, the addition of the word 'away' to the court's burglary charge at the suggestion of appellant's own counsel did not in any way prejudice appellant's rights. This instruction, as modified, enabled the court to correctly define an essential element of the crime of burglary which the jury had to find was proven beyond a reasonable doubt before they could return a guilty verdict as to this count. In our view, this change in the burglary charge was beneficial to appellant. As to the modification of the assault with a dangerous weapon charge, we find that the change correctly clarified an existing ambiguity in the instruction and was not prejudicial to any substantial rights of appellant.

In short, we hold that appellant has not shown plain error resulting from anything which occurred during the four anteroom conferences now questioned in this appeal. We note that federal precedent construing Rule 43, Federal Rules of Criminal Procedure (which is substantially similar to our Criminal Rule 38), have ruled that conferences held between court and counsel during a...