Richardson v. State, 3262

• Decision Date: 16 June 1978
• Docket Number: No. 3262,3262
• Citation: 579 P.2d 1372
• Parties: Frederick RICHARDSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1372

579 P.2d 1372

Frederick RICHARDSON, Appellant, v. STATE of Alaska, Appellee.

No. 3262.

Supreme Court of Alaska.

June 16, 1978.

Mark E. Ashburn, Asst. Public Defender, Fairbanks and Brian Shortell, Public Defender, Anchorage, for appellant.

Rhonda F. Butterfield, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and BURKE, JJ. and DIMOND, J. Pro Tem.

DIMOND, Justice Pro Tem.

A jury found Frederick Richardson guilty of possession of the narcotic drug heroin. He appeals on a number of different grounds.

The case was tried in the Fourth Judicial District in Fairbanks by Judge Ripley, whose official station was in the Third Judicial District in Anchorage. After the case had gone to the jury, Judge Ripley departed for Anchorage. Apparently Judge Van Hoomissen, the presiding judge of the Fourth Judicial District in Fairbanks, was to receive the verdict.

After debating for an unknown length of time, the jury foreman gave a note to the bailiff, stating that the jury would like to rehear the recorded testimony of three witnesses. The bailiff telephoned Judge Van Hoomissen sometime after the dinner hour, and he told the bailiff to go ahead and let the jury hear the testimony. An in-court deputy called the judge later and said she had played the tapes for the jury and was going home.

The judge was not present when the replay of the tapes was made. Although the bailiff had the telephone numbers of counsel for the state and the defense, no attempt was made to notify them. Neither they nor the defendant were present at the replay of the testimony. It is not entirely clear from the record what particular testimony was played back to the jury, although defense counsel stated that he thought it was the testimony of the state's witnesses Aldridge, Brown, and Thomas. But there is no certainty as to this, and there is nothing to indicate if all or only a portion of a particular witness' testimony was played back to the jury. No recording of the replay proceedings was made in court, so there is no way of ascertaining whether the in-court deputy or the bailiff, or anyone else who might have been present, in anyway communicated with the jury, or whether the jury communicated among themselves or with anyone else at this time. In short, about all we know from the record is that the jury was permitted to hear a replay of a portion of some testimony given at the trial and that neither the judge, the state's attorney, the defense counsel, nor the defendant was present at the time.

In the absence of an express waiver by a defendant in a criminal case, we have held that it is constitutional error for a judge to permit the playback of testimony in the defendant's absence. State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977). Where such constitutional error exists, as it does here, the judgment of conviction must be reversed unless the court is able to declare that the error is harmless beyond a reasonable doubt. Hannagan, supra. The state must establish beyond a reasonable doubt that such an error "did not contribute to the verdict obtained." Braham v. State, 571 P.2d 631, 645 (Alaska 1977).

Except for what we have stated, the record is silent on what transpired when the playback took place. It is not inconceivable that portions of the testimony selected by the jury for rehearing would have placed undue emphasis on the state's case against Richardson, whereas other testimony, not played back, would have had the effect of modifying the impact of what the jury reheard. At least, had the judge, counsel, and defendant been present, Richardson's attorney might have made objections or suggestions that could have affected the judge's discretion in determining what portions of the recorded testimony the jurors should have been permitted to have played back to them.

But we need not conjure up possibilities of prejudice to Richardson in these circumstances. Preservation of his fundamental constitutional right to be present when the playback took place "should not depend on the imaginative abilities of appellate judges." R. L. R. v. State, 487 P.2d 27, 43 (Alaska 1971). It was constitutional error to allow the playback of testimony to the jury in Richardson's absence, and the state has not demonstrated that the error was harmless beyond a reasonable doubt. This is enough to require reversal and a new trial.

Since there must be a new trial, it is not necessary that we pass upon other points of alleged error raised by Richardson in his brief on appeal. But some of those issues may arise again at a new trial, and thus we believe it appropriate to dispose of them here.

The heroin that Richardson was charged with possessing was a brownish colored, powdery substance contained in five small plastic bags, which were enclosed in the larger plastic bag. The heroin had been identified as such by a chemist, had been introduced in evidence as an exhibit at the trial of James Aldridge, and had been placed on the desk of the deputy clerk in the courtroom. Attached to the larger plastic bag was a red evidence tag of the Alaska State Troopers and a white tag used by the court clerk to identify the bag and contents as an exhibit.

On February 11, 1976, Richardson was a spectator, along with several other persons, at Aldridge's trial. Another spectator, Wilbert Brown, testified that during a court recess, when the judge, counsel, and the deputy clerk were out of the courtroom. Richardson walked up to the clerk's desk and took the heroin. Brown stated that he stopped Richardson at the door to the courtroom and asked him what he was doing. In response, Richardson showed Brown a plastic bag in which were enclosed small packets containing a brownish substance. Brown remonstrated with Richardson, but Richardson continued out of the courtroom. Later in the day, the deputy clerk discovered that the bag of heroin was missing.

This event allegedly occurred between 3:30 and 4:40 p. m. Robert Thomas testified that on the same day and between those same hours, Richardson and a man named Gordon Pascu showed up at Thomas' house. Also present was a woman named Patricia Hawley. Thomas said he saw Richardson in possession of the plastic bag with a brown substance within and a red card attached to the bag and asked Richardson where he got the heroin. Richardson replied that it came from the courthouse. There was testimony that the heroin was used or "shot up" by Thomas, Richardson, and Hawley.

A few moments later someone came to the front door of Thomas' house. Thomas testified at the trial that while he was in the front room to answer the door, Pascu, Richardson, and Hawley were in the kitchen. Thomas said that he heard a male voice from the kitchen directing someone to flush the bags and the tags down the toilet. His testimony was as follows:

Q (Mr. Ray) Mr. Thomas, I was asking you about the voices that you heard the words that you heard. Would relate to us, and specifically the ladies and gentlemen of the jury, what it was that you heard from the kitchen?

A Someone said to flush the bags and tags down the toilet . . .

Q And . . ..............

A . . . get rid of them.

Q . . . did you hear any toilet being flushed after that?

A Yes.

Richardson objected to the introduction of this testimony as hearsay, but his objection was overruled. On this appeal, Richardson claims that the admission of the evidence was erroneous and calls for a new trial.

In Watson v. State, 387 P.2d 289, 293 (Alaska 1963), we held:

Evidence of a statement made other than by a witness who is testifying is excluded as hearsay only when it is offered to establish the truth of the fact stated. Where it is offered without reference to its truth, but for some other relevant purpose, then the hearsay rule does not apply. (footnote omitted)

The statement that was made here, other than by the witness Thomas, was this: "(F)lush the bags down the toilet get rid of them." This utterance is, of course, an out-of-court statement made by someone other than Thomas, the witness testifying. The question is whether its value depends on the truth of the statement or the credibility of the person who made it.

The statement made was a directive from one person to another to perform an act. As such, the statement, taken literally, is not susceptible of being characterized as being a true statement or a false one and thus could not, as such, be offered to "establish the truth of the facts stated." (...