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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SEAN ALLEN CARPENTER,
                                                      Court of Appeals No. A-12045
                            Appellant,               Trial Court No. 3PA-14-1297 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                 No. 2577 — December 8, 2017


              Appeal from the District Court, Third Judicial District, Palmer,
              David L. Zwink, Judge.

              Appearances: Josie Garton, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Raymond E. Beard, Assistant District Attorney, Palmer, and
              Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

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

              Judge ALLARD.


              Sean Allen Carpenter was charged with fourth-degree assault for allegedly
hitting his elderly mother. Five hours into the jury deliberations on this charge, the jury



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
sent a note to the judge indicating that they were hung. The trial judge did not notify the
parties of this note. Instead, on his own initiative, the trial judge engaged in a series of
ex parte communications with the jury, ultimately informing them that they could return
after the weekend to continue their deliberations, or they could continue to deliberate that
night if they believed that they would be able to come to a final verdict within the next
twenty-five minutes. The jury indicated that they wished to continue to deliberate that
night. Less than five minutes before the deadline, the jury returned a guilty verdict on
the fourth-degree assault charge.
              On appeal, Carpenter argues that the judge’s ex parte communications with
the jury violated his constitutional rights and may have had a coercive effect on the jury.
The State concedes that the judge’s ex parte communications constituted constitutional
error, but the State argues that the error was harmless beyond a reasonable doubt.
              For the reasons explained here, we conclude that the judge’s ex parte
communications with the jury, after the jury had declared itself hung, were not harmless
beyond a reasonable doubt, and that reversal of Carpenter’s conviction is therefore
required.


       Background facts and procedural history
              Sean Carpenter was charged with fourth-degree assault for allegedly
striking his seventy-year-old mother in the face. At trial, Carpenter testified that he did
not hit his mother and that his mother was injured by accident when he leaned on a table,
causing one end to fly up and strike her in the cheek. Carpenter also testified that his
mother was confused about what happened and that her mental health had been
deteriorating in recent years.
              Carpenter’s trial began on a Thursday morning and the jury began
deliberating on the case around 11:00 a.m. the following day (Friday). At 4:15 p.m.,

                                           –2–                                        2577

approximately five hours into its deliberations, the jury sent a note to the judge stating,
“We are hung.”
              The trial judge did not notify the parties of the jury’s note or of their
reported status.    Instead, the judge engaged in a series of ex parte written
communications with the jury. The exact timing of these communications is slightly
unclear because the communications were written on the same sheet of paper and only
some of the communications were properly time-stamped. Here is the sequence of
communications, as best we can tell.
              At 4:15 p.m., the jury sent its note stating, “We are hung.” At 4:19 p.m.,
the judge returned the note with a handwritten response stating “[d]o you think taking
the weekend off [and] coming back fresh on Monday may help your progress?” The jury
appears to have responded to the judge’s question with the statement “We will stay.”
              (Because the jury did not time-stamp this response, and because the record
does not otherwise indicate when it occurred, it is possible that the jury’s statement “We
will stay” was sent at the same time as its response to the judge’s later 4:34 p.m.
communication.      In either case, however, our analysis of the judge’s ex parte
communications remains the same. We nevertheless take this opportunity to remind trial
judges that all substantive communications with a jury must be properly memorialized
in the record.)
              At 4:34 p.m., the judge, seemingly on his own initiative, sent a second ex
parte communication to the jury. This communication informed the jury that:
              We can let you deliberate only until 5 p.m. tonight. I do not
              want you to feel rushed into reaching a verdict. If you
              believe that you can [reach a verdict] by 5 p.m., then you may
              continue now. If you feel that is not enough time, then please
              let me know [and] we will reconvene on Monday morning.
              Thank you.


                                           –3–                                       2577

The jury then responded “We think we will make one by 5 p.m.”
              At 4:55 p.m., five minutes before the deadline set by the court, the jury sent
a new note indicating that it had reached a verdict. The court contacted the parties, who
returned to court to hear the verdict. The jury then announced that it had reached a guilty
verdict on the fourth-degree assault charge.
              This appeal followed.


       The trial judge committed constitutional error by engaging in ex parte
       communications with the jury
              Under both the United States Constitution and the Alaska Constitution, the
defendant has the right to be present at every stage of the trial.1 The right to be present
includes the right to be notified of any communication with the jury.2 A trial court’s
“[f]ailure to notify the defendant of a jury communication is constitutional error that
requires reversal on appeal unless the error is found harmless beyond a reasonable
doubt.”3 The State bears the burden of proving that any ex parte communication with
the jury was harmless beyond a reasonable doubt.4




   1
        See Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); see also Raphael v. State, 994
P.2d 1004, 1013 (Alaska 2000); Wamser v. State, 652 P.2d 98, 101-02 (Alaska 1982); Cox
v. State, 575 P.2d 297, 300-01 (Alaska 1978); Jones v. State, 719 P.2d 265, 266 (Alaska App.
1986); Newman v. State, 655 P.2d 1302, 1307 (Alaska App. 1982); see also Alaska R. Crim.
P. 38(a).
   2
       Jones, 719 P.2d at 266 (internal citations omitted).
   3
       Id. at 266-67 (internal citations omitted).
   4
       Id. at 267.

                                            –4–                                       2577

              Here, the State concedes that the trial judge’s ex parte communications with
the jury constituted constitutional error. This concession is well-founded.5 The only
remaining question, therefore, is whether the judge’s actions were harmless beyond a
reasonable doubt.


       The ex parte communications with the jury were not harmless beyond a
       reasonable doubt
              To determine whether a judge’s ex parte communication with a jury was
harmless beyond a reasonable doubt, we must consider the type of action taken by the
court, and the effect of the defendant’s absence on that action, rather than on the
propriety of the action itself.6 A trial court’s failure to notify the defendant of a jury note
is not harmless beyond a reasonable doubt in cases where the defendant’s participation
“could have had an impact on the decisional process”7 and where the defendant could
have “offer[ed] comments, suggestions, and objections [that might have] guid[ed] both
the substance and phrasing of the court’s response to the jury.”8
              Here, the judge’s ex parte communication with the jury occurred in
response to the jury’s declaration that it was hung. This was critical information about
the jury’s deliberations that should have been immediately communicated to the defense
attorney so that the defense attorney could take appropriate action to protect the


   5
      See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently assess any concession of error by the State in a criminal case).
   6
       See Jones, 719 P.2d at 267.
   7
      Raphael, 994 P.2d at 1013 (citing State v. Hannagan, 559 P.2d 1059, 1065 n.20
(Alaska 1977)).
   8
       Jones, 719 P.2d at 267 (quoting Wamser, 652 P.2d at 101-02); see also Dixon, 605
P.2d at 888.

                                             –5–                                         2577

defendant’s rights — such as moving for a mistrial or objecting to the court’s proposed
response to the jury’s announcement.9
                As Alaska caselaw makes clear, communicating appropriately with a
potentially hung jury is no easy task.10 Among other things, the judge must be careful
to avoid instructions that could be viewed as coercive or that might disadvantage jurors
in the minority position.11 The judge must also avoid any suggestion that the jurors
should reach a verdict based on anything other than the evidence and the arguments
presented to them in open court.12 The input of the parties is therefore not only required
by law, but also likely to be distinctly helpful to the trial judge in avoiding these
pitfalls.13
                The danger of ex parte communication with a hung jury is evidenced by
what occurred in this case. Although it is clear that the judge did not intend for his ex
parte communications with the jury to be coercive, there is certainly a reasonable
possibility that they were viewed that way by individual jurors. The judge told the jurors
that he did not want them to feel “rushed into reaching a verdict,” but the judge also
presented the jurors with only two options: (1) they could stop deliberating and commit

    9
       See Wamser, 652 P.2d at 101-02; see also Dixon, 605 P.2d at 887 (holding that even
a jury’s request to review evidence “raises questions of great importance to a criminal
defendant’s rights, as it generally reflects doubt or disagreement on the part of at least some
jurors as to the nature of evidence presented at trial.”).
    10
       See, e.g., Fields v. State, 487 P.2d 831, 842 (Alaska 1971); Stapleton v. State, 696
P.2d 180 (Alaska App. 1985); see also 6 Wayne R. LaFave, Criminal Procedure § 24.9(d),
at 674-78 (4th ed. 2015).
    11
         See Fields, 487 P.2d at 841-42.
    12
         See id. at 838 n.12.
    13
      See Dixon, 605 P.2d at 888 (emphasizing that “adversarial scrutiny” of a judge’s
proposed response to a jury note is both useful to the judge and necessary under the law).

                                            –6–                                          2577

to returning the following week (thereby inconveniencing themselves and their fellow
jurors); or (2) they could continue to deliberate — but only if they believed that they
could reach a verdict within the next twenty-five minutes. The jury chose the second
option and, true to its word, returned a verdict twenty-one minutes later (just before the
deadline imposed by the judge). Had Carpenter and his attorney been present when the
court’s response to the jury note was being formulated, there is a significant chance that
a more appropriate and less coercive communication would have been sent to the jury.
             Because it was constitutional error for the court to engage in communica­
tions with the jury without Carpenter’s knowledge or participation, and because it cannot
be said that the error was harmless beyond a reasonable doubt given the nature of the ex
parte communication and the circumstances under which it occurred, we conclude that
reversal of Carpenter’s conviction is required.


      Conclusion
             We REVERSE the judgment of the district court.




                                          –7–                                       2577

