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           IN THE COURT OF APPEALS OF THE STATE OF ALASKA


LETA G. ALLEN,
                                                     Court of Appeals No. A-11477
                            Petitioner,             Trial Court No. 3KN-11-1250 CR

                     v.
                                                            O P I N I O N
STATE OF ALASKA,

                            Respondent.               No. 2485 — January 22, 2016


              Petition for Review from the District Court, Third Judicial
              District, Kenai, Sharon A. S. Illsley, Judge.

              Appearances: Kelly R. Taylor, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Petitioner. Mary A. Gilson, Assistant Attorney General,
              Office of Special Prosecutions and Appeals, Anchorage, and
              Michael C. Geraghty, Attorney General, Juneau, for the
              Respondent.

              Before: Mannheimer, Chief Judge, Allard, Judge, and
              Hanley, District Court Judge. *

              Judge MANNHEIMER.



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              The defendant, Leta G. Allen, was brought to trial on a charge of driving
under the influence, but the trial ended without a verdict after the trial judge declared a
mistrial over the objection of the defense attorney.
              The State now intends to try Allen again on the same charge, and Allen has
petitioned us to prohibit the second trial. Allen argues that there was no manifest
necessity for the mistrial, and thus the double jeopardy clauses of the federal and state
constitutions bar any retrial. 1
              As we explain in this opinion, we conclude that a mistrial was manifestly
required. The necessity for a mistrial arose from the fact that, during deliberations, one
member of the jury sent a note to the judge assertingthat another juror (the foreman) had
committed misconduct in two respects. According to the juror’s report, (1) the foreman
of the jury drove to the section of the highway where the trooper said he observed
Allen’s impaired driving, for the purpose of personally investigating whether the
trooper’s description of this area was accurate, and then (2) the foreman reported his
findings to the other jurors.
              When the trial judge questioned the six jurors about this alleged
misconduct, the foreman and three other jurors flatly denied that anything like that had
happened. But the other two jurors declared unequivocally that the jury had been
informed of the foreman’s personal investigation, and that the jurors (as a group) had
discussed the foreman’s findings.
              Given this situation, if the trial was to continue, the trial judge would be
required to conduct a further investigation to see who was telling the truth. And during



   1
      See Arizona v. Washington, 434 U.S. 497, 505; 98 S.Ct. 824, 830; 54 L.Ed.2d 717
(1978); Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008); Browning v. State, 707 P.2d
266, 268 (Alaska App. 1985).

                                           –2–                                        2485

this further investigation, it was inevitable that the six jurors would come to realize that
each sub-group of the jury was implicitly accusing the other of lying to the court.
              Once the jurors realized this, no reasonable judge could hope to obtain a
proper verdict from this jury. Thus, a mistrial was manifestly necessary.


       Underlying facts: the basis of the charge against Allen, and Allen’s
       defense to this charge


              On the afternoon of July 26, 2011, the state troopers received a report that
a woman who appeared to be impaired had just driven away from a local gas station.
State Trooper Michael Lorring responded to this report.
              The report included a description of the woman’s vehicle, and Lorring
located this vehicle on the highway. Lorring later testified that, as he followed the
vehicle, it was “sway[ing]” or “bouncing” within its lane of travel, and at one point
Lorring saw the vehicle leave its lane of travel and cross over the fog line onto the
shoulder of the road.
              When the driver of this vehicle — Allen — pulled into a parking lot,
Lorring contacted her. Lorring observed that Allen had bloodshot, watery eyes, that her
speech was slurred, and that she swayed as she stood. And, according to Lorring, Allen
told him that she thought he was following her because she had driven over the
“lineman”.
              Despite these signs of impairment, Allen did not smell of alcoholic
beverages. When Lorring asked Allen if she was taking any medications, Allen said that
she was taking four: Vicodin, Paxil, Trazadone, and Valium.
              Lorring administered field sobriety tests to Allen, and the results indicated
that Allen was impaired. A subsequent DataMaster test showed that Allen had not


                                           –3–                                         2485

consumed any alcohol, but a blood test showed the presence of THC (the active
ingredient in marijuana), plus Valium (diazepam) and Trazadone.
                 Based on all of this, the State charged Allen with driving under the
influence. 2
                 At Allen’s trial, the State called Trooper Lorring, who testified to the
information we have described — including the assertion that Allen had once crossed
over the fog line of the highway. But during Lorring’s cross-examination by Allen’s
attorney, Lorring admitted that no fog line was visible in the photographs of the stretch
of highway where he purportedly saw Allen cross the fog line.
                 At the end of the trial, Allen’s attorney argued that Allen had not been
impaired by her medications, and that Allen’s unsteadiness and swaying during the field
sobriety tests were the result of back pain. And the defense attorney urged the jurors to
reject Trooper Lorring’s testimony, specifically reminding them that Lorring had
conceded, during cross-examination, that the photographs of the highway did not show
any fog lines.


       Underlying facts pertaining to the judge’s declaration of a mistrial


                 Shortly before noon on the final day of Allen’s trial, after the trial judge
instructed the jury, the jurors retired to begin their deliberations. During the early
afternoon, the trial judge received a note from the jury, signed by the jury foreman. This
note stated that the jurors were deadlocked — divided three to three.
                 After some discussion between the judge and the attorneys, it was decided
that the jurors should be summoned to the courtroom to receive a Fields instruction —



   2
       AS 28.35.030(a)(1).
                                             –4–                                        2485

that is, an instruction emphasizing the jurors’ duty to meaningfully discuss the case with
each other for the purpose of reaching unanimous agreement, either for conviction or
acquittal. 3
               But just as that was about to happen, the judge received another note — this
time from an individual juror. The bailiff told the judge and the attorneys that this
individual juror had written the note outside the other jurors’ presence, and that this juror
did not want to reveal this communication to the other jurors.
               In this note, the juror reported that the jury foreman had driven to the
section of the highway where the trooper said he observed Allen driving across the fog
line. According to this juror, the foreman reported to the other jurors that there was no
fog line there, “so the trooper was not honest and cannot be believed.”
               After the judge apprised the attorneys of the juror’s note, she asked the
attorneys if they thought that the jury should continue to deliberate.
               The prosecutor, concerned that at least some of the jurors were relying on
information that was not presented in court, urged the trial judge to conduct further
inquiry into this matter. But Allen’s attorney opposed the prosecutor’s suggestion.
Instead, the defense attorney asked the judge to summon the jurors and simply inquire
whether they believed that further deliberations would be fruitful.
               The judge decided to follow the defense attorney’s suggested course. She
summoned the jurors, gave them a Fields instruction, and then, without mentioning the
individual juror’s note, she asked each juror individually whether they thought that the
group might be able to reach a verdict if given more time. All six jurors told the judge
“no”.

   3
       See Fields v. State, 487 P.2d 831,841-42 (Alaska1971) (settingout the recommended
instruction, and holding that a trial judge should give, or re-give, this instruction if the jury
is deadlocked).

                                             –5–                                           2485

             After receiving these answers, the judge sent the jurors back to the jury
room, and then the judge asked the attorneys to take some time and formulate their
positions on what to do next.
             When court reconvened, the prosecutor again urged the judge to ask the
jurors about the allegations contained in the individual juror’s note. The prosecutor
argued that it was necessary to find out if the foreman had indeed engaged in
independent investigation of the case — and, if so, what information the foreman had
shared with the other jurors.
             The judge was initially skeptical of this approach. She repeatedly indicated
that she thought the jury was hopelessly divided, and that there was no point in making
the jury continue. But the defense attorney refused to consent to a mistrial, so the judge
finally agreed to question the jurors further — both to find out exactly what had
happened and, if misconduct had indeed occurred, to find out if it was curable.
             The jurors were summoned to the courtroom, one by one, beginning with
the foreman. The judge apprised each juror that she was concerned that the jury might
have received information, outside the evidence presented in court, about the existence
or non-existence of a fog line on the stretch of highway in question.
             Here, for example, is the judge’s questioning of the foreman:

                    The Court: The Court is concerned that information
             from a source other than what was presented at trial may have
             entered in to the jury’s deliberations, specifically information
             as to whether the fog line exists or not. Can you tell me
             whether that’s happened?

                    Jury Foreman: Would you repeat that one more time?




                                          –6–                                        2485

                    The Court: I’m just trying to figure out if the jury is
             taking into account information that was not received here in
             court, and entered deliberations.

                   Jury Foreman: No. We — no, everything — I
             thought we really did a pretty good job of discussing what
             was presented by the State and — and their witnesses, and ...

                    The Court: Okay, ... so, as far as you’re concerned, no
             information besides what was presented in court has been
             discussed by the jury?

                    Jury Foreman: Not that I’m aware of, no. We
             discussed what was presented. And we discussed it at quite
             some length. ... They’re — they’ve been a good group, and
             there’s been no shouting. It’s been very — well, thoughtful
             consideration ... .
                    . . .
                    The Court: Okay. Just one more question which I
             neglected to ask: As far as you’re aware, did any juror do
             any independent investigation in this case?

                      Jury Foreman: No.

             But the judge’s questioning of the next juror elicited a significantly
different response:

                    The Court: The Court is concerned, and [is] just trying
             to figure out, whether or not there’s been any discussion of
             any independent investigation by anyone regarding, for
             example, the fog line in this case. Has there been something
             outside of what was presented in trial discussed by the jury?

                    Second Juror:     We have discussed the fog line
             incident.

                                          –7–                                 2485

                    The Court: And I did not ask that question very well.
              And clearly, a jury is required to base their decision only on
              what they hear in court. Has there been any discussion about
              anyone investigating outside of court? ... Any jurors?

                        Second Juror: Yes.

                     The Court: And I’m not going to ask [you] for names;
              I’m not interested in that. Was that something that was
              discussed in the group as a whole?

                    Second Juror: It was brought up in the group this
              morning, yes.

              When the third, fourth, and fifth jurors were brought into the courtroom and
asked if any extra-judicial information had been presented to the jury, all three of them
denied that this had happened. But the sixth juror corroborated the second juror’s
assertion that there had been discussion of outside information. Specifically, the sixth
juror told the court:

                      Sixth Juror: We were instructed not to visit the sites
              [or] anything else. And we went in and sat down [to
              deliberate], and the first thing [the foreman] said was, “Let’s
              take a vote; I already know where I am. I went to the site;
              I visited it. There’s no fog line.”

                     And then he went on to give us all of his reasons why,
              you know, [he did not] believe that the State presented a good
              case. ... And we tried to go back to the evidence, and each
              time [he stated that] the trooper was dishonest: “We can’t
              believe what the trooper said. He didn’t tell the truth about
              the fog line.” ... And he was adamant from the beginning
              that he would not change his mind, because he went to the
              site and visited [it].


                                             –8–                                     2485

              After the sixth juror made these statements, the defense attorney questioned
the juror and suggested that the foreman might not have conducted a special investigation
— that the foreman might simply have traveled down this section of the highway as part
of his daily routine. But the juror told the defense attorney that this was not the case:

                     Sixth Juror: No, [the foreman] went out of his way [to
              make these observations], because he lives in a different
              direction. And he made a point that he went there
              specifically to see about this case, and [to] show ... basically
              that the trooper was wrong.

              This sixth juror assured the court that all of the jurors were “getting along
fine” — “nobody’s violent, [and we’re] all very amicable”. The problem, according to
this juror, was the foreman’s attempt “to bring outside evidence into [the case].”
              After completing this voir dire examination of the six jurors, the judge
again asked the attorneys how they stood on the question of a mistrial.
              The prosecutor took no position. He told the judge that, as far as he was
concerned, the decision was up to Allen’s attorney: if the defense did not request a
mistrial, then the jurors should be instructed to continue their deliberations. And Allen’s
attorney, for his part, declared that he would not agree to a mistrial.
              Despite the parties’ positions on this matter, the judge declared a mistrial
because the judge concluded that “there [was] no probability that a unanimous verdict
[could] be reached.”
              (The judge expressly declined to make a finding as to whether the jury
foreman had actually engaged in independent investigation of the case, or whether any
extraneous information had actually been discussed during the jury’s deliberations.




                                           –9–                                        2485

Rather, she simply cited the inconsistency between the jurors’ accounts as one additional
reason to conclude that the jurors were not going to reach a unanimous verdict.)
              A few minutes later, the judge summoned the jurors to the courtroom and
informed them that the trial was over.


       Why we conclude that there was a manifest necessity for the mistrial


              Allen’s trial judge was presented with substantial reason to believe that the
jury foreman engaged in a private investigation of the facts, and then communicated the
results of his investigation to the other jurors. This allegation, if true, meant that the
integrity of the jury’s deliberations had been compromised, and the trial judge would be
required to take curative action. Thus, the judge’s individual examination of the six
jurors was both proper and necessary.
              (We note that the type of inquiry that the judge conducted here would be
allowed even after the jury returned its verdict — because, under Alaska Evidence Rule
606(b), a jury’s verdict may be impeached by juror testimony “on the question [of]
whether extraneous prejudicial information was improperly brought to the jury’s
attention”. In Allen’s case, Evidence Rule 606(b) did not even apply — because the
inquiry concerning the jury’s potential exposure to extraneous information was
conducted during the jury’s deliberations, before a verdict was reached, to make sure that
the jury’s deliberations remained lawful. As this Court explained in Larson v. State, 79
P.3d 650, 653 (Alaska App. 2003), “Evidence Rule 606(b) ... does not restrict the use of
[juror] evidence when the court investigates potential juror misconduct before the jury
renders its decision.”)
              The results of the judge’s inquiry (i.e., the judge’s individual examinations
of the six jurors) demonstrated the manifest necessity for a mistrial. By the end of the

                                          – 10 –                                      2485

judge’s inquiry, it was clear that the answers given by four of the jurors were
irreconcilable with the answers given by the other two jurors. Somebody was lying to
the court.
              The jurors would not necessarily have been aware of this, because the six
of them were questioned individually, outside each other’s presence. But the judge had
to make a decision about whether to continue the trial, given these conflicting answers
and given the unresolved possibility that extra-judicial information had been injected into
the jury’s deliberations.
              If the trial was to continue, the trial judge would have to conduct a more
probing inquiry to ascertain the truth or falsity of the allegation of misconduct. And
when the judge conducted this additional inquiry, the jurors would inevitably become
aware that the two groups of jurors were implicitly accusing each other of lying to the
court.
              Once the jurors became aware of this, no reasonable judge would expect
the jury to be capable of rendering a proper verdict. For this reason, we conclude that
it was manifestly necessary to declare a mistrial.


         Conclusion


              Under the facts of this case, we hold that the district court’s declaration of
a mistrial was justified by a manifest necessity. The State is therefore authorized to
bring Allen to trial again.
              However, we wish to caution trial judges — once more 4 — that they must
be extremely hesitant to declare a mistrial without the express consent of the

   4
      See, e.g., Cook v. State, 36 P.3d 710, 729 (AlaskaApp.2001);Riney v. State, 935 P.2d
828, 838 (Alaska App. 1997); Cross v. State, 813 P.2d 691, 694 (Alaska App. 1991).

                                          – 11 –                                      2485

defense. Because of the constitutional protection against double jeopardy, a wrong
decision will mean that the State will be barred from retrying the defendant, regardless
of the strength of the State’s evidence.
             This caution is particularly applicable in situations like the present case,
where the defense attorney urged the court not to declare a mistrial, and the prosecutor
took the position that the court should adhere to the defense attorney’s wishes. We have
affirmed the trial judge’s decision only because of the unusual circumstances of Allen’s
case.




                                           – 12 –                                   2485

