Cunningham v. State, 408 P.3d 1238

Background

On Oct. 4, 2012, Jace Cunningham was confronted by police after suicidal statements and being found with a loaded rifle; a multi‑officer response set up a roadblock at night. Cunningham’s vehicle entered ditches, shots were reported, and he later approached officers with a rifle before surrendering. He denied firing shots.
Cunningham was indicted on six counts of third‑degree assault (recklessly placing officers in fear by means of a firearm) and several misdemeanors; trial proceeded before a visiting judge and visiting counsel. Cunningham testified and had limited conditional co‑counsel rights to question witnesses and give a closing statement.
The jury deliberated over two days. On day two the jury reported partial verdicts and being hung on one count. The judge held a 4:48 p.m. hearing about jury status without defense counsel present (defense counsel was airborne and arrived ~20 minutes later). Cunningham was present and assented "for this limited purpose."
During that hearing the judge questioned the jury about deadlock, discussed options (including continuing deliberations that evening vs. returning the next day), and later (5:10 p.m.) sent a written note instructing jurors to reach verdicts on counts they could decide; the parties were not notified of that written communication in advance.
After further communication and an instruction to consider each count separately, the jury returned verdicts: guilty on two third‑degree assault counts (Counts V and VI), acquitted on the other four third‑degree counts but convicted of lesser included fourth‑degree assaults on those, and guilty on several misdemeanors.
On appeal the Court of Appeals held the judge’s communications constituted impermissible ex parte communications (violating the right to counsel and presence). The court found the error harmless beyond a reasonable doubt as to Count VI but not harmless as to Count V; therefore Count V was reversed and the rest of the judgment affirmed.

Issues

Issue	Cunningham's Argument	State's Argument	Held
Whether Cunningham validly waived right to counsel for the 4:48 p.m. hearing	Waiver was not knowing; the hearing was substantive, and he was not informed adequately	Cunningham acquiesced and had conditional co‑counsel status; he agreed to proceed "for this limited purpose"	No valid waiver — proceeding without defense counsel was constitutional error
Whether the ex parte communications were harmless beyond a reasonable doubt	Error requires reversal of the challenged third‑degree convictions (at least Counts V & VI)	Any error was harmless; particularly Count VI had strong evidence and verdicts were reached earlier	Harmless as to Count VI (jury had decided it earlier); not harmless as to Count V (jury deadlock on Counts I‑V; breakthrough occurred after ex parte communications)
Whether the judge’s written 5:10 p.m. note (and other communications) without notice to parties was improper	Written note and failure to notify parties tainted deliberations and could have pressured jurors	Irregularities acknowledged but not outcome‑determinative	Sending the note without notifying counsel was an improper ex parte communication contributing to reversible error as to Count V
Whether counsel’s temporary absence invited error or justified proceeding	Defense counsel’s short absence did not invite the court to act without him	Court was placed in a difficult position by counsel’s travel	No invited error; counsel’s brief unavailability did not permit ex parte handling

Key Cases Cited

Wamser v. State, 652 P.2d 98 (Alaska 1982) (ex parte jury communications; harmless‑beyond‑reasonable‑doubt framework)
Blair v. State, 42 P.3d 1152 (Alaska App. 2002) (error conducting playback without defense counsel present is reversible)
Fields v. State, 487 P.2d 831 (Alaska 1971) (prohibits coercive language to a jury that has declared itself hung)
Dixon v. State, 605 P.2d 882 (Alaska 1979) (procedural safeguards for jury communications and playbacks)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless error standard under federal constitutional law)