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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JERRY L. COFFIN,
                                                      Court of Appeals No. A-11878
                            Appellant,               Trial Court No. 2KB-13-379 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                    No. 2598 — May 4, 2018


              Appeal from the Superior Court, Second Judicial District,
              Kotzebue, Paul A. Roetman, Judge.

              Appearances: Dan S. Bair, Assistant Public Advocate, Appeals
              and Statewide Defense Section, and Richard Allen, Public
              Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth,
              Assistant Attorney General, Office of Criminal Appeals,
              Anchorage, and Craig W. Richards, Attorney General, Juneau,
              for the Appellee.

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

              Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Jerry L. Coffin was charged with third-degree sexual assault and first-
degree harassment.1 When the jury retired to deliberate on these charges at Coffin’s trial,
the trial court excused, but did not discharge, the one remaining alternate juror. The
court also instructed the alternate juror that he should not discuss the case with anyone
because he could still be recalled to serve on the jury if one of the regularly seated jurors
became sick or otherwise unavailable to serve. This procedure violated Alaska Criminal
Rule 24(b), which requires the trial court to discharge any remaining alternate jurors
once the jury retires to consider its verdict.2 However, neither party objected to the
judge’s retention of the alternate juror.
              After approximately three and one-half hours on the first day of
deliberations, the jury’s deliberations were suspended because one of the jurors had to
address child care issues. By the time that first juror returned, a different juror required
emergency medical care. Deliberations were therefore suspended for the remainder of
the day and the jury was sent home with instructions to return the next morning.
              Because the second juror’s medical issues had not been resolved by the
following morning, the trial court summoned the alternate juror to court and confirmed
that the alternate juror was still available to deliberate. The trial court subsequently
excused the juror who was ill, and replaced that juror with the alternate juror. The trial
court also instructed the newly reconstituted jury to “reboot” and “restart their
deliberations” because the alternate juror had not been part of its earlier deliberations.




   1
       AS 11.41.425(a)(1)(B) & (C) and AS 11.61.118(a)(2), respectively.
   2
       See Alaska R. Crim. P. 24(b)(2)(A) (“An alternate juror who does not replace a
regular juror shall be discharged after the jury retires to consider its verdict.”) (emphasis
added); Alaska R. Crim. P. 24(b)(2)(B) (“The jurors selected for elimination shall be
discharged after the jury retires to consider its verdict.”) (emphasis added).

                                            –2–                                        2598

Again, neither party objected to this procedure or voiced any concerns with the court’s
instructions.
                After the newly reconstituted jury retired to deliberate, the trial judge
commented to both attorneys (outside the presence of the jury) that he was sure that
neither of the attorneys “would like to redo [this trial] again, so ... .” The defense
attorney responded, “Right.” The judge also noted that this was the first time that he had
had to use this procedure, and he was glad that it had worked.
                Later that day, after approximately five hours of deliberations, the jury
returned a guilty verdict on the third-degree sexual assault charge. However, the jury
was not able to reach a verdict on the first-degree harassment charge, and that charge was
later dismissed by the State.
                Coffin now appeals, claiming that the trial court committed plain error
when it replaced a regularly seated juror with an alternate juror after deliberations in the
case had already begun.
                Coffin is correct that the procedures used in this case were improper under
Alaska law. We addressed this very issue in Plate v. State, a case in which the trial judge
substituted an alternate juror for a regularly seated juror who had died after the first day
of deliberations.3 In Plate, we held that “Alaska Criminal Rule 24(b)(2) does not
authorize a trial judge to substitute an alternate juror for a regular juror once
deliberations have begun.”4 We also concluded that the trial court in Plate committed
reversible error when it authorized such a substitution over the defense attorney’s
objection.5


   3
       Plate v. State, 925 P.2d 1057, 1059 (Alaska App. 1996).
   4
       Id. at 1061.
   5
       Id. at 1061-62.

                                            –3–                                       2598

               We also made clear in Plate, however, that we were not deciding whether
all violations of Rule 24(b)(2) would necessarily result in a deprivation of due process
or infringement of the defendant’s constitutional right to a jury trial.6 Instead, our
decision to reverse Plate’s conviction rested on the particular facts of that case, which
included the defense attorney’s objection to the procedure and the trial court’s failure to
use proper procedural safeguards.7
               Thus, Plate did not answer the question presented by the present case —
whether a violation of Rule 24(b)(2) that is not objected to by the defense attorney (and,
arguably, tacitly agreed to by the defense attorney) constitutes plain error requiring
reversal of the defendant’s conviction.
               At the time we decided Plate, our analysis was informed by the fact that the
federal courts had a criminal rule similar to our Criminal Rule 24(b)(2).8 We also noted,
however, that Colorado had recently amended their criminal rules to allow substitution
of an alternate juror after deliberations had started, and we commented that
“[p]resumably Colorado believes that this procedure is constitutional.”9
               Three years after we issued Plate, the Federal Rules of Criminal Procedure
were also amended to allow such mid-deliberation substitutions.10 Federal Rule of
Criminal Procedure 24(c) now provides, in relevant part:




   6
        Id. at 1061-62.
   7
        Id.
   8
        Id. at 1060 (citing former Fed. R. Crim. P. 24(c)).
   9
        Id. at 1061-62 (citing Colo. R. Crim. P. 24(e)).
   10
        Fed. R. Crim. P. 24(c), advisory committee’s notes to the 1999 amendment.


                                            –4–                                      2598

              The court may retain alternate jurors after the jury retires to
              deliberate. The court must ensure that a retained alternate
              does not discuss the case with anyone until that alternate
              replaces a juror or is discharged. If an alternate replaces a
              juror after deliberations have begun, the court must instruct
              the jury to begin its deliberations anew.
A growing number of states have likewise amended their criminal rules to allow mid-
deliberation substitutions.11
              Indeed, according to LaFave, a significant number of states now allow mid-
deliberation substitutions provided that (1) the alternate juror had not “been relieved of
the obligations of a juror or otherwise become tainted [prior to the substitution],” and (2)
the reconstituted jury is “carefully instructed to begin its deliberations anew when its
composition changed.”12
              Here, the record shows that both of these procedural safeguards were met.
The superior court excused, but did not discharge, the alternate juror when the jury
retired to deliberate the first time. The superior court also specifically instructed the
alternate juror that he was not to discuss the case, and that his service on the jury might
still be needed if one of the regular jurors became unavailable to serve. In addition,
when the superior court later substituted the alternate juror for the juror who had become
ill, the court directly instructed the newly reconstituted jury that they were required to
“reboot” and to restart their deliberations anew. The record also indicates that the jury
did so — deliberating for a number of hours before it returned its verdict in this case.



   11
       See, e.g., Ark. R. Crim. P. 32.3; Conn. Gen. Stat. Ann. § 54-82h (West 2018); N.H.
Rev. Stat. Ann. § 500-A:13, V (2018); Ohio Crim. R. 24(G)(1); Pa. R. Crim. P. 645. See
generally 6 Wayne R. LaFave et al., Criminal Procedure § 22.3(e), at 178 & n.300 (4th ed.
2015).
   12
        6 Wayne R. LaFave et al., Criminal Procedure § 22.3(e), at 179 (4th ed. 2015).

                                           –5–                                        2598

              On appeal, Coffin argues that the trial court should have engaged in the
additional inquiries mentioned in Plate. That is, the trial court could have conducted a
more lengthy inquiry of the alternate juror regarding his compliance with the court’s
instructions, and the trial court could have asked the other jurors if they believed that
they would be able to set aside any opinions that had been formed during the earlier
deliberations.13
              Although it might have been better practice for the trial court to conduct
these additional inquiries, we do not agree that the absence of such additional inquiries
creates reversible error in this case. We note that the defense attorney was given an
opportunity to object to the trial court’s instructions and to conduct his own inquiry of
the jurors. His failure to request any further action from the trial court indicates that he
did not view the instructions as inadequate under the circumstances as they presented
themselves at the time.
              Nor do we find any reason to believe that the newly reconstituted jury did
not follow the instructions that they were given. On appeal, Coffin points out that the
jury asked a question about the definition of “harassment” only a short time after the
alternate juror joined the jury. From this, he speculates that the jury never actually
“rebooted” their deliberations on the third-degree sexual assault charge on which they
ultimately convicted Coffin. But the jury continued to deliberate for many hours after
they asked their question about the harassment charge, and we see no reason to believe
that they confined their deliberations to only one of the two charges. Nor do we agree
with Coffin that the reconstituted jury’s deliberations were suspiciously brief. This was
a relatively simple trial that took less than two days to try and involved only four



   13
      Plate, 925 P.2d at 1061 (citing People v. Burnette, 775 P.2d 583, 590-591 (Colo.
1989)).

                                           –6–                                        2598

prosecution witnesses and no defense witnesses. As a general matter, jurors are
presumed to follow the instructions that they are given, and we find no reason to question
that presumption here.14
              In sum, given the procedural safeguards utilized by the judge in this case,
the defense attorney’s acquiescence in the mid-deliberation substitution, and the
widespread acceptance of this practice in other jurisdictions, we conclude that the
substitution of the alternate juror for a regular juror after deliberations had already begun
— although improper under Alaska law — did not violate Coffin’s constitutional rights
and did not constitute plain error requiring reversal of Coffin’s conviction.15


        Conclusion
              The judgment of the superior court is AFFIRMED.




   14
        Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).
   15
       See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (describing plain error as
“involv[ing] such egregious conduct as to ‘undermine the fundamental fairness of the trial
and contribute to a miscarriage of justice.’”) (internal citations omitted).

                                            –7–                                        2598
