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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MICHAEL ANTHONY ROBERTS,
                                                      Court of Appeals No. A-11626
                            Appellant,               Trial Court No. 3PA-12-3045 CR

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

                            Appellee.                    No. 2546 — April 7, 2017


              Appeal from the District Court, Third Judicial District, Palmer,
              John W. Wolfe, Judge.

              Appearances: Renee McFarland, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Appellant. James J. Fayette, Assistant Attorney General, Office
              of Special Prosecutions & Appeals, Anchorage, and Craig W.
              Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Michael Anthony Roberts pleaded no contest to eight counts of flying an
aircraft without a license. 1 In addition, following a jury trial, Roberts was convicted of
one count of unlawful possession or transportation of game. 2 (The jury acquitted
Roberts of six other charges.)
              In this appeal, Roberts challenges his conviction for unlawful possession
or transportation of game on three separate grounds. First, he argues that the trial court
committed plain error when it failed to instruct the jurors that, to return a verdict, they
had to reach a unanimous decision. Second, he argues that the trial judge improperly
restricted his attorney’s closing argument when the judge precluded the defense attorney
from contrasting the burden of proof used in criminal trials, “beyond a reasonable
doubt”, with the lesser burdens of proof used in other types of proceedings. Finally,
Roberts argues that the trial judge should have granted his attorney’s pretrial request for
disclosure of various documents relating to a search warrant application that was denied
during the investigation of Roberts’s case.
              We agree with Roberts that the trial judge should have explicitly instructed
the jurors that their decision had to be unanimous. However, we conclude that this error
was rendered harmless when the judge individually polled the jurors to confirm that they
concurred in the verdicts.
              We also agree with Roberts that the trial judge committed error when the
judge prohibited the defense attorney from contrasting proof “beyond a reasonable
doubt” with proof “by a preponderance of the evidence”. However, we conclude that
this error was rendered harmless because the defense attorney was able to address this
same concept using other phrasings.


   1
       AS 02.35.120.

   2
       5 AAC 92.140(a).


                                           –2–                                        2546

              Finally, we uphold the trialcourt’s refusal to order disclosure of the trooper
incident reports pertaining to the search warrant application that was denied.
              For these reasons, we affirm Roberts’s conviction for unlawful possession
or transportation of game.
              Roberts also appeals his composite sentence as excessive. We affirm the
sentence because, given the facts of Roberts’s case, it is not clearly mistaken.


       Underlying facts


              In 2011, a hunter contacted Michael Roberts for assistance in hunting a
bear. For a fee of $5000, Roberts agreed to fly the man to a specified hunting location
and to otherwise assist him in the hunt.
              After several failed hunting attempts, two of Roberts’s other clients joined
the hunting party for the next attempt. The four flew to Cape Yakataga and then hunted
the next day. They were successful in taking two black bears. But while two of the
hunters were field-dressing the two black bears, either Roberts or the other hunter
illegally shot a third black bear.
              After this Cape Yakataga hunt came to the attention of the authorities, the
State filed sixteen misdemeanor charges against Roberts (some relating to the Cape
Yakataga hunt, and some relating to other hunts). One of these charges was for unlawful
possession or transportation of the third bear killed at Cape Yakataga.
              Before trial, Roberts pleaded no contest to eight counts of flying an aircraft
without a license. The jury acquitted Roberts of all of the remaining counts except the
count charging him with unlawful possession or transportation of the bear.




                                           –3–                                         2546

       The trial judge committedobvious error in failing to instruct the jurors that
       their decision had to be unanimous, but this error was cured when the
       judge polled the individual jurors


              As in all criminal trials in Alaska, Roberts’s jury was required to reach
unanimity before they could return a verdict. 3 However, the trial judge neglected to
inform the jurors of this requirement.
              Roberts’s attorney did not object at the time to the trial judge’s failure to
instruct the jurors on the requirement of a unanimous verdict, but on appeal Roberts
argues that the judge’s failure to give such an instruction constituted plain error.
              We agree with Roberts that the judge’s failure to instruct the jurors
concerning the requirement of unanimity was obvious error. However, we conclude that
this error was cured when, upon the announcement of the jury’s several verdicts (most
of which favored Roberts), the trial judge polled the jurors individually.
              The judge asked each juror to tell him “whether these are your verdicts”.
In response, each juror responded in the affirmative.
              Although this question has not previously been addressed by the Alaska
appellate courts, the majority of jurisdictions that have dealt with this question have
concluded that a judge’s failure to instruct the jury on the requirement of a unanimous
decision is cured when the individual jurors are polled and they each affirm that they
concur in the announced verdicts. 4
              Roberts argues that the polling in his case was inadequate because, when
the judge asked the individual jurors whether the announced verdicts were “your

   3
       Alaska Criminal Rule 31(a).
   4
       See State v.Plantin,682 N.W.2d653, 662 (Minn. App. 2004) (collecting cases);State
v. Kircher, 525 N.W.2d 788, 791-92 (Wis. App. 1994) (collecting cases); Fountain v. State,
275 A.2d 251, 252 (Del. 1971).

                                           –4–                                         2546

verdict”, some of the jurors potentially could have interpreted the judge’s question as
simply asking them to confirm that the verdicts announced in court were, indeed, the
verdicts reached by the jury as a group, without regard to whether the individual juror
agreed with the announced decisions. We have listened to the audio recording of the
juror polling, and we conclude that it does not support Roberts’s suggestion. The audio
record shows that the trial judge directed an individualized inquiry to each juror. We
conclude that, had there been one or more dissenting jurors, they would have spoken up
during this polling process. We are confident that the verdicts returned by the jury in
Roberts’s case (one conviction and several acquittals) reflect the jurors’ unanimous
decisions.
              For these reasons, we conclude that the polling of the jurors at the end of
the trial cured the trial judge’s error in failing to instruct the jury on the requirement of
a unanimous decision.


       The trial judge committed error whenthe judge restricted the content of the
       defense attorney’s summation to the jury — but, given the arguments that
       the defense attorney was able to make despite the trial judge’s restriction,
       the judge’s error was harmless


              During his closing argument to the jury, Roberts’s defense attorney began
to discuss the “four burdens of proof that we have ... in our judicial system.” The
defense attorney apparently intended to discuss the concepts of “probable cause”, proof
by a “preponderance of the evidence”, proof by “clear and convincing evidence”, and
proof “beyond a reasonable doubt”.
              However, before the defense attorney could begin discussing these topics,
the prosecutor objected. The prosecutor took the position that any discussion of the three
lesser burdens of proof would confuse the jury.            The trial judge sustained the

                                            –5–                                         2546

prosecutor’s objection and ruled that the defense attorney was not permitted to discuss
these lesser burdens of proof:

                      The Court: I think you can argue that [proof beyond
               a reasonable doubt] is the highest burden in the land, and
               [you can talk about] what a high burden it is. But as far as
               comparing it to other legal standards that are not being
               instructed on, I don’t think that’s appropriate.

               On appeal, Roberts challenges this restriction on his attorney’s argument
to the jury.
               Both the Alaska Supreme Court and this Court have acknowledged that a
trial judge has a considerable degree of authority to control the scope and content of the
arguments that attorneys make to the jury. 5 For example, the trial judge can preclude the
attorneys from arguing legal theories that are unsupported by the evidence or that are
inconsistent with the law declared in the court’s jury instructions. 6 But we conclude that
the trial judge overstepped the bounds of that authority in Roberts’s case.
               The concept of proof “beyond a reasonable doubt” may be familiar to
lawyers and judges, but even lawyers and judges would concede that this phrase is not
self-explanatory. Because the phrase “beyond a reasonable doubt” does not have a
universally understood meaning, the Alaska committee on criminal pattern jury
instructions developed Criminal Pattern Jury Instruction 1.06 to explain this concept to
jurors. But this pattern jury instruction has its flaws.



   5
      See Shane v. Rhines, 672 P.2d895,901 (Alaska 1983); Castillo v. State, unpublished,
1994 WL 16196506, *1 (Alaska App. 1994).
   6
        See Clarke v. State, unpublished, 2009 WL 3681650, *5 (Alaska App. 2009) (holding
that a trial judge may properly forbid a defense attorney from arguing self-defense when
there is insufficient evidence to justify a jury instruction on self-defense).

                                           –6–                                        2546

              The relevant portion of Criminal Pattern Jury Instruction 1.06 defines the
concept of “beyond a reasonable doubt” in two ways: by listing various things that this
concept does not mean, and also by trying to explain what the concept does mean. 7
              The pattern instruction declares that proof “beyond a reasonable doubt”
does not mean proof by “mere suspicion or speculation” — nor, on the other hand, does
it mean proof “beyond all possible doubt”. Rather, according to the instruction, the test
is whether there is a “reasonable doubt” — a concept which the instruction defines as “a
doubt based upon reason and common sense”.
              The pattern instruction then declares that proof “beyond a reasonable
doubt” is “proof of such a convincing character that, after consideration, you would be
willing to rely and act upon it without hesitation in your important affairs.”
              This formulation of the test — the idea that jurors must find the evidence
so convincing that they would act upon it “without hesitation” in the most important of
their own personal affairs — has drawn substantial criticism.
              For example, in the commentary to the federal pattern jury instructions, the
Federal Judicial Center drafters question whether there is any meaningful analogy




   7
       The pertinent portion of Alaska Criminal Pattern Jury Instruction No. 1.06 reads:

       [The] requirement ... that the prosecution must prove the defendant’s guilt beyond
   a reasonable doubt ... is what is called the burden of proof. It is not required that the
   prosecution prove guilt beyond all possible doubt, for it is rarely possible to prove
   anything to an absolute certainty. Rather, the test is one of reasonable doubt. A
   reasonable doubt is a doubt based upon reason and common sense. Proof beyond a
   reasonable doubt must be proof of such a convincing character that, after
   consideration, you would be willing to rely and act upon it without hesitation in your
   important affairs. A defendant may never be convicted on mere suspicion or
   speculation.

                                             –7–                                          2546

between, on the one hand, the decisions that juries must make in criminal cases and, on
the other hand, the decisions that people must make in their own important affairs.
             First, the drafters note that when people make decisions about their own
important affairs, those decisions normally do not require people to resolve conflicting
accounts of past events — which, of course, is the principal task facing a jury. Rather,
making decisions about one’s own important affairs normally requires people to make
predictions about the outcomes and consequences of their potential future actions (or
inaction).
             Second, the federal drafters note that it is a fantasy to assume that people
make important life decisions “without hesitation”:

                    [The] decisions we make in the most important affairs
             of our lives — choosing a spouse, a job, a place to live, and
             the like — generally involve a very heavy element of
             uncertainty and risk-taking. [These decisions] are wholly
             unlike the decisions [that] jurors ought to make in criminal
             cases.

Federal Judicial Center, Pattern Criminal Jury Instructions (1987), pp. 18-19
(Commentary on Instruction 21).
             In her concurring opinion in Victor v. Nebraska, 8 Justice Ruth Bader
Ginsburg endorsed the following instruction on “reasonable doubt” drafted by the
Federal Justice Center:

                      The government has the burden of proving the
             defendant guilty beyond a reasonable doubt. Some of you
             may have served as jurors in civil cases, where you were told
             that it is only necessary to prove that a fact is more likely true
             than not true. In criminalcases, the government’s proof must

   8
       511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

                                           –8–                                        2546

             be more powerful than that. It must be beyond a reasonable
             doubt.

                    Proof beyond a reasonable doubt is proof that leaves
             you firmly convinced of the defendant’s guilt. There are very
             few things in this world that we know with absolute certainty,
             and in criminal cases the law does not require proof that
             overcomes every possible doubt. If, based on your
             consideration of the evidence, you are firmly convinced that
             the defendant is guilty of the crime charged, you must find
             him guilty. If on the other hand, you think there is a real
             possibility that he is not guilty, you must give him the benefit
             of the doubt and find him not guilty.

Victor v. Nebraska, 511 U.S. at 27, 114 S.Ct. at 1253 (concurring opinion of Justice
Ginsburg).
             We, like Justice Ginsburg, believe that this type of instruction is a great
improvement over instructions that speak of “acting without hesitation in the most
important of one’s personal affairs”. The above-quoted instruction avoids the serious
problems inherent in that formulation. At the same time, it explains the concept of proof
“beyond a reasonable doubt” in straightforward terms, and it explicitly and meaningfully
distinguishes proof “beyond a reasonable doubt” from proof “by a preponderance of the
evidence”.
             We note that, in the federal instruction, juries are told that they must decide
whether there is “a real possibility” that the defendant is not guilty. This mirrors the
language of Chapman v. California, 9 where the Supreme Court declared that when a
court evaluates whether a constitutionalerror was harmless “beyond a reasonable doubt”,




   9
       386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

                                           –9–                                         2546

this is equivalent to asking “whether there is a reasonable possibility” that the error
affected the outcome. 10
               We say all of this, not to formally disapprove Alaska’s Criminal Pattern
Jury Instruction 1.06, but rather to explain why we conclude that the trial judge in the
present case committed error when he prevented Roberts’s defense attorney from
explaining to the jurors that they could not find Roberts guilty merely because it was
“probable” or “more likely than not” that Roberts had committed the crimes charged
against him.
               Pattern Jury Instruction No. 1.06 does not expressly explain that proof
“beyond a reasonable doubt” requires more than a probability of guilt. Thus, it would
have been helpful if the defense attorney had been allowed to clarify that the jury could
not convict Roberts merely because he was “probably” or “likely” guilty — that Roberts
could be convicted only if the jurors were convinced that there was no reasonable
possibility that Roberts was not guilty.
               (Indeed, it would have been proper for the prosecutor or the trial judge to
clarify this same principle.)
               Nevertheless, we find the trial judge’s error to be harmless under the facts
of Roberts’s case. In his summation, Roberts’s defense attorney engaged in an extensive
discussion of the concept of proof “beyond a reasonable doubt”, and he told the jurors
that they could not find Roberts guilty merely because the State’s evidence showed that
there was good reason to think that Roberts was guilty.
               Given that the defense attorney was, as a practical matter, allowed to
contrast proof beyond a reasonable doubt with proof by a preponderance of the evidence,




   10
        Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

                                           – 10 –                                     2546

we conclude that the judge’s erroneous restriction on the defense attorney’s argument
did not affect the jury’s verdict, so the error was harmless. 11


        Why we conclude that the trial judge did not abuse his discretion when he
        rejected Roberts’s request for disclosure of the documents supporting the
        State’s unsuccessful application for a warrant to search his attorney’s
        office


              After the State filed its charges against Roberts, the State discovered that
Roberts had somehow obtained a copy of the charges before the judge had issued the
criminal process against Roberts. After being alerted to this irregularity, the prosecutor
asked the district court to issue a warrant authorizing a search of the computer belonging
to Roberts’s defense attorney, Chadwick McGrady. The State asserted that there was
probable cause to believe that McGrady’s computer contained information revealinghow
Roberts had obtained an advance copy of the charging document. While the State was
applying for this warrant, members of the Alaska State Troopers physically took
possession of McGrady’s law office for two hours.
              The State’s search warrant application was ultimately denied — and
subsequent investigation revealed that Roberts had secured the charging document
directly from the court clerk.
              Before trial, Roberts’s attorney sought disclosure of the search warrant
application. The State opposed this request for disclosure, but it filed the documents
supporting the search warrant application under seal with the district court. After
reviewing the sealed documents in camera, the district court denied the defense
attorney’s request for disclosure.


   11
       See Ingram v. State, 50 A.3d 1127 (Md. 2012) (holding that a trial judge’s curtailment
of a defense attorney’s reference to the various degrees of proof was harmless error).

                                           – 11 –                                       2546

              On appeal, Roberts asks us to independently examine these sealed materials
and re-assess the district court’s decision. We have done so. The sealed documents
consist of e-mails between the prosecutor (James Fayette) and the defense attorney
(Chadwick McGrady), as well as two “incident reports” prepared in connection with the
troopers’ investigation of the premature disclosure of the charging documents and the
physical seizure of McGrady’s law office. These documents contain nothing that is not
already of record. We therefore uphold the district court’s denial of Roberts’s request
for disclosure of these materials.


        Roberts’s challenge to his sentence


              Roberts was convicted of eight counts of flying an aircraft without a license
and one count of unlawfully possessing or transporting game. For each of his flying
without a license convictions, Roberts faced a jail term of 6 months. 12 For the unlawful
possession or transportation of game conviction, Roberts faced up to a year in jail, a fine
of $10,000, and forfeiture of his airplane. 13
              For these nine offenses, the district court sentenced Roberts to a composite
term of 340 days to serve. (Roberts received 20 days to serve for each of the eight
counts of flying without a license, and he received 180 days to serve (360 days with 180
days suspended) for the unlawful possession or transportation of game.)




   12
        AS 02.35.120.
   13
       See 5 AAC 92.140(a) (defining unlawful possession or transportation); AS 16.05.925
(declaring this offense to be a class A misdemeanor); AS 12.55.135(a) (setting forth the
penalty for class A misdemeanors); and AS 16.05.195 (authorizing forfeiture of airplanes
used in hunting offenses).

                                           – 12 –                                     2546

              With regard to the game conviction, the court also imposed a $5000 fine
and ordered forfeiture of the airplane that Roberts used for the Cape Yakataga hunt.
Roberts now challenges this sentence as excessive.
              At the time of sentencing, Roberts was 51 years old. He had a long
criminal history — more than 25 criminal convictions, including at least five prior
convictions for hunting and game offenses.
              In its sentencing remarks, the court noted Roberts’s extensive criminal
history, and the court observed that Roberts had received substantial sentences for prior
offenses — sentences that failed to deter him. Based on Roberts’s extensive criminal
history, the court concluded that Roberts’s actions were “in complete disregard of the
law”.
              Given the facts of the present case and Roberts’s criminal history, we
conclude that the sentence imposed by the district court was not clearly mistaken. 14


        Conclusion


              The judgement of the district court is AFFIRMED.




   14
        McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

                                          – 13 –                                    2546

