Wamser v. State, 5370
| Decision Date | 08 October 1982 |
| Docket Number | No. 5370,5370 |
| Citation | 652 P.2d 98 |
| Parties | Bernard H. WAMSER, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Charles G. Evans, Smith & Gruening, Inc., Anchorage, for appellant.
W.H. Hawley, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.
This case raises the issue of whether a bailiff's failure to notify a trial court of a jury foreman's communication indicating that the jury was deadlocked constitutes reversible constitutional error. The superior court denied petitioner's motion for post-conviction relief. The Alaska Court of Appeals affirmed. We reverse.
The facts in this case are undisputed. In 1977, Bernard H. Wamser (Wamser) was convicted in district court of unlawfully fishing for king crab in closed waters. We affirmed his conviction 1.
Subsequently, Wamser retained new counsel who reviewed the original file in the case and discovered a note signed by the jury foreman which read:
Bailiff,
We seem to be completely unable to come to a unanimous decision
/s/ Robert G. Blair
This note was filed in the district court at Kodiak and stamped by the deputy clerk on March 23, 1977. The precise time of day when the note was filed is uncertain.
Upon determining that neither Wamser nor his prior counsel had ever been advised of the existence of this note, 2 counsel promptly filed a motion for post-conviction relief pursuant to Criminal Rule 35(c). 3 Wamser alleged violations of his federal and state constitutional rights to due process of law and to be present at every stage of the trial.
Neither the deputy clerk 4 who stamped receipt of the note nor the jury foreman who authored it have any independent recollection of the note or the circumstances surrounding it. Nevertheless, the authenticity of the note is undisputed, as well as the fact that it was never seen by the trial judge, the prosecuting attorney, Wamser, or Wamser's counsel.
The trial started on March 22, 1977. After each side completed its presentation on the following day, the trial judge instructed the jury that:
During your deliberations you'll be in the custody of a bailiff. You are not permitted contact with any other person. Any requests for your needs must be addressed to the bailiff.
If a verdict was not reached by 4:30 p.m., the jury was instructed to use a sealed verdict form. 5 The trial judge orally paraphrased the written instructions found on the sealed verdict form, but neither set of instructions addressed the issue of what the jury should do if it was unable to reach a unanimous decision.
The case went to the jury shortly before noon on March 23, 1977; deliberations commenced at approximately 1:00 p.m. The court reconvened at 2:25 p.m. that same afternoon to consider a note submitted by the jury to the bailiff regarding a piece of evidence. That note was responded to on the record and in the presence of the defendant and his counsel. No further proceedings, other than the swearing in of another bailiff, were held on the record until the jury verdict was returned in open court on the following morning, March 24, 1977.
It is unclear exactly how long the jury deliberations lasted. The verdict was dated March 23, 1977, however, and because the sealed verdict form was utilized we do know that a verdict was not returned until after 4:30 p.m. There is also evidence that the jury deliberations may have continued into the evening hours. 6
Wamser's motion for post-conviction relief was denied by the superior court which found and concluded that:
1. The Applicant, Bernard H. Wamser, has failed to show, by a preponderance of the evidence, that error was committed by ex parte communication alleged to have been made between the jury which convicted him and any bailiff, clerk, judge or other officer of the court, and further,
2. If such error by ex parte communication as alleged had been shown to have been made, by a preponderance of the evidence, I hereby conclude that under all premises such alleged error would have been harmless beyond a reasonable doubt.
The Alaska Court of Appeals affirmed for the same reasons given by the superior court. 7 We granted Wamser's Petition For Hearing to consider two issues.
In a proceeding for post-conviction relief, the petitioner has the burden of establishing by a preponderance of the evidence those facts which will entitle him to relief. 8 In denying Wamser's motion for post-conviction relief the superior court found that an ex parte communication was only "alleged" to have been made between the jury and the bailiff. The trial court's factual findings will only be set aside on review if they are clearly erroneous. 9 In the present case, however, neither party disputes that the jury foreman passed the deadlock note to the bailiff and that this communication did not come to the attention of the trial judge, Wamser, or his counsel. Moreover, the court records reflect that this communication was filed with the court on the day of the deliberations. In view of these facts, we believe the superior court's finding is clearly erroneous.
The superior court also concluded that no error was committed by the jury's "alleged" ex parte communication. Wamser argues, however, that the bailiff's failure to notify the court of the jury's deadlock note precluded any opportunity to conduct proceedings on the record in his presence therefore violating his constitutional rights to due process of law and to be present at every stage of the trial. We agree and find that the superior court erred in its conclusion.
The right of the defendant to be present at every stage of the trial has been recognized under both the United States and the Alaska Constitutions. 10 "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." 11 Dixon v. State 12 and the line of cases preceding it 13 hold that a trial judge's response to a jury communication without notice to the defendant and his counsel and a hearing on the record is error. We described the critical nature of the defendant's right to be notified of jury communications in Dixon:
While the final decision as to the appropriate response to such a jury request is left to the trial court's discretion, we think it critically important that the defendant and his counsel be notified of the request. They should be allowed to consult with the trial court and to offer comments, suggestions, and objections to guide both the substance and phrasing of the court's response to the jury's request. 14
Wamser argues that the present case is controlled by the Dixon line of cases.
The State contends that the Dixon line of cases can be distinguished from the present case because they involved situations in which the trial judge actually received communications from the jury, whereas in the present case the trial judge never received the jury note. This distinction, together with the fact that in the instant case the jury initiated the communication to the trial court, rather than the converse, provided the basis for the superior court's finding that Wamser had not established constitutional error by a preponderance of the evidence. 15
We agree with Wamser and conclude that the present case falls squarely within the boundaries of Dixon and its predecessors. It is irrelevant that the communication at issue came from the jury rather than from the judge. Constitutional considerations arise whenever a trial judge is not informed of substantive inquiries from a deliberating jury. Where a jury submits a note to the proper authority 16 stating that it is deadlocked in its deliberations, the failure to respond may have a coercive effect. 17 In Des Jardins v. State, 18 we held that a trial judge should provide guidance when a jury is confused about a legal issue that earlier instructions have not sufficiently resolved. The jury instructions in the present case provided no guidance for the jury in the event that it was unable to reach a unanimous verdict. While we need not address what response, if any, would have been appropriate, Wamser and his counsel had a right to be present to offer recommendations to the trial judge. 19 We hold, therefore, that the bailiff's failure to deliver the jury deadlock note to the trial judge precluded an opportunity to conduct proceedings on the record in Wamser's presence, and thus violated Wamser's rights guaranteed by the Alaska Constitution to due process of law and to be present at every stage of the trial.
We are not persuaded by the State's argument that Wamser has not proved error by a preponderance of the evidence because "he has not shown that the note was not orally recalled or that the jury did not inform the bailiff it had reached a verdict while the bailiff was in the process of attempting to inform the court of the note." The State's idle speculation is not supported by the record and fails to rebut the evidence of constitutional error presented by Wamser. 20 Moreover, Wamser's burden on this issue does not require him to prove a myriad of hypothetical negatives. We hold that Wamser has demonstrated by a preponderance of the evidence that the trial court committed constitutional error.
Although Wamser has demonstrated that constitutional error was committed at his trial, reversal is warranted only if the error was prejudicial. Thus we must determine whether the error was prejudicial or harmless. The proper standard of review is whether the error was "harmless beyond a reasonable doubt." 21 The burden of proof on this issue lies with the State. 22
Wamser contends that if the trial court had learned of the jury deadlock, it could have...
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...United States v. Driscoll, 276 F.Supp. 333 (S.D.New York 1967); Brummitt v. State, 44 Ala.App. 78, 203 So.2d 133 (1967); Wamser v. State, 652 P.2d 98 (Alaska 1982); People v. Hogan, 31 Cal.3d 815, 183 Cal.Rptr. 817, 647 P.2d 93 (1982); State v. Brigandi, 186 Conn. 521, 524, 442 A.2d 927, 93......