Dixon v. State

DIXON, Appellant, Richard Alaska, Appellee.

STATE of No. 3810. Supreme Court of Alaska.

Jan.

OPINION

RABINOWITZ, Justice. Chief convict- Dixon was indicted and Richard ed, rape crime of by jury, after trial 11.15.120(a)(1). The inci- in violation of AS occurred on dent conviction which led 9,1976, in Soldotna. evening of October complain- evening, met On that Dixon Soldotna, she where ing witness in a bar fellow stopped attempt to locate a traveling she on employee with whom Anchorage Homer. Dixon business from witness left the bar complaining car dined in a res- together in Dixon’s and from the located a short distance taurant complaining witness asserts bar. way back to the bar after dinner defense rape occurred. Dixon’s complaining witness charge was that to the of intercourse. had consented act point appeal in this Dixon’s first responding to superior erred from the dur- written communication requesting playback ing its deliberations testimony notifying without him certain communications and either counsel of the allowing parties to be without matter. and to be heard on the one-half hours two and Approximately deliberations, a jury began its after to the was sent signed by the foreman note requested The note court. testimony as well complaining witness’ Defend- Carpeneti, Public L. Asst. Walter Without consulta- testimony.1 as Dixon’s Shortell, er, Juneau, Public De- and Brian Dixon, the trial with either counsel tion fender, Anchorage, appellant. inform- note to a return judge sent Stark, Atty., Ju- Asst. Dist. Michael J. he would not allow that while ing them Kenai, Warded, neau, Atty., Dist. Thomas testimony requested all of the them to hear Juneau, Gen., Gross, Atty. M. and Avrum designate the again, they if would over appellee. concerning testimony portions J., attempt would RABINOWITZ, disagreement, he there was Before C. BOOCHEV- JJ., portions testimony ER, MATTHEWS, to locate those BURKE and and Approxi- jury.2 to the DIMOND, play them Justice. Senior back superior to the written jury’s 1. The note read: jury’s full: note stated in Judge Hanson Sheppard: Mr. requested by It been has members testimony of a allow all I cannot panel they complain- hear . [the specific replayed. If there is witness to be testimony witness’] and cross-examina- jurors disagreement among particular on a tion —also same on Mr. Dixon —would testimony, portion will at- of a witness’ possible this be play tempt to locate that [signed by foreman] later, mately one hour the jury preliminary hearing, sent a note ..the the time of judge, “Judge plea, hearing, which stated: at the Hanson: omnibus and at ev- trial, ery stage including nothing appar- need more at this time of the the im- paneling return of ently. you [signed by Thank jury fore- verdict, sentence, imposition and at the guilty A verdict of was returned man].” except provided as otherwise in this rule.5 some five hours after this final communica- tion from the jury. foregoing, Given and this court’s deci- ft sions on point, appropri- the state has both the Under United States Con ately conceded that it was error for stitution Alaska and the Constitution the superior court to have communicated to the right of the present defendant to be at jury present.6 without counsel Dixon every stage recogn of the trial has been However, dispositive this concession is not Included ized.3 within the scope of this appeal the issue in for it remains to right deliberations; period jury preju- determined whether the error was thus, right defendant has the to be dicial or past harmless. In decisions involv- present any whenever communication be ing improper judge/jury communications, tween the court during occurs rejected we have expressly per se reversi- Alaska, those In deliberations.4 this consti Rather, bility applied standard. we have right tutional has been further implement the normal reversibility standard of for an ed by provisions 38(a) of Criminal Rule magnitude, error of namely, constitutional provide: beyond the “harmless a reasonable doubt” Required.

Presence The defendant Chapman California, standard of 386 U.S. present shall be arraignment, at 18, 824, at 87 (1967).7 S.Ct. 17 705 L.Ed.2d you. exists, (1978); Benavides, disagreement back If such United States v. 549 F.2d (cid:127) please (e. specifically you (5th 1977); Eyman, set it out as can. 392 Cir. Bustamante v. 456 g., say say (9th 1972); ‘did witness A so and so’ or did he Hannagan, F.2d 269 Cir. State v. ?) (Alaska ‘such and such’ 1977); State, 559 P.2d 1059 Gafford v. [signed by Judge (Alaska 1968); State, Hanson] 440 P.2d 405 Noffke v. preserve your questions my Please all of (Alaska 1967). 422 P.2d 102 your answers and return them when delibera- tion is over. 38(a) (essentially 5. Alaska R.Crim.P. similar to 43). State, Federal R.Crim.P. See Brown v. 372 (Alaska 1962). constitution, P.2d 785 3.Under the federal See also Koehler v. the United State, (Alaska Supreme 1974); State, 519 442 States P.2d Court has treated the ac- Lee v. right present (Alaska State, 1973); cused’s to be 509 P.2d 1088 either as related to R.L.R. v. (Alaska 1971). the confrontation clause of the sixth amend- ment or under the 14th Amendment’s due 487 P.2d 27 proc- See, g., Allen, ess clause. e. Illinois v. 397 U.S. See, State, g., (Alaska e. Cox v. 575 297 337, 338, 1057, 1058, 353, 90 S.Ct. 25 L.Ed.2d 1978) (involving parte an ex communication (1970); States, 356 Dowdell v. United 221 U.S. 753, judge to their re- 325, 331, 590, 592, 31 S.Ct. 55 L.Ed. 757 quest playback testimony). for the of certain (1911); States, 370, Lewis v. United 146 U.S. 541, See also Aillon v. 168 Conn. 363 373, 136, 137, 1011, 13 S.Ct. 36 L.Ed. 1013 49, (1975): A.2d 53 Alaska, right In to be universally accepted It has thus become a every stage of the trial also is founded in the principle that communications between a rights state constitutional process of the accused to due jury, especially and a after the has against and to confront the witnesses begun deliberations, only be made should 1, him. Alaska Constitution art. 1§§ & 7. See open presence parties. of the Hannagan, (Alaska State v. 559 P.2d 1059 1372, 7. See Richardson v. 579 P.2d 1374 (Alaska 297, 1978); Cox v. 300 575 P.2d (Alaska 1978); Hannagan, States, State v. 4.Rogers United 422 U.S. (Alaska 1977). 2091, 2094, (1975); Cf. Noffke v. S.Ct. 45 L.Ed.2d P,2d 102, States, (Alaska 1967), which was Shields v. United 273 U.S. 47 S.Ct. (1927); prior Chapman decided 71 L.Ed. 787 and held that United States v. Cla yey, denied, (7th 1977), 565 F.2d 111 error must affect a Cir. cert. substantial of the 439 U.S. 99 S.Ct. 58 L.Ed.2d 345 defendant to be reversible. circumstances, those we proceedings. In Hannagan, P.2d 1059 State not established that the state had concluded significance.8 is of beyond a rea- absence from the error was harmless held that the defendant’s there was record of the testi- sonable doubt because during playback courtroom of the witnesses’ portions to indicate which beyond a reasonable mony was harmless conclusion, any whether non- reaching replayed, we said: were doubt. In jurors way communicated rights to con- involved no commu- jury, with the whether witness- witnesses or cross-examine front among anyone or with nicated themselves poll- es was not a in which situation suggested during proceeding. else appropriate. would be counsel, and judge, Rich- the trial appropri- would be reason the sugges- present, objections ardson been presence jury, ate. In the counsel would been made which attempted to Mr. tions Hannagan waive court’s decision present, and the have affected the trial Hannagan’s rights to portions of the testimo- determining result. which attorney district concurred willingness ny jury. the replayed its were to be to trial court indicated morning to wait until when Mr. initially (Alaska 1978), 575 P.2d Cox present. Under Hannagan would be prior months to Richard- was decided a few circumstances, we that it these believe Cox, to jury In the had communicated son. sufficiently jury was made clear to the playback hear the trial court a desire to Hannagan had that Mr. not absconded testimony the of two witnesses portion of jurisdiction an order of from the or defied testimony the defend- supported whose had so to the court to be create an appar- alibi defense. The trial court ant’s impression jury. to the unfavorable reply to the ently instructed the bailiff to allegation There is no here that there was though request that their was denied jury communication between the court and the (it from the at that time was one-half hour jury for both without counsel sides hour), jurors’ jury if the scheduled dinner present. not involve rein- This case does testimony to after still wanted hear the jury struction of the matters law. dinner, they should re- they returned from psychological We not think the do that the request new their at that time. Neither during a effects of defendant’s absence attorney was notified defendant nor his retrial in this replay 45-minute merits response request until the and the court’s case. finding In the was returned. after verdict Id. at between parte communications that the ex jury were not harmless the and the However, in Richardson error, Cox fact that emphasized we the also involved the which was the recording made of electronic in the absence of the playback testimony to the trial court’s communication defendant, that we determined the error fact through and the additional the bailiff distinguishing was not harmless. fea- had testimony which the the case were that the tures of the Richardson to replayed was crucial sought to have the defendant all judge, trial counsel and We stated: Cox’s defense. proceeding playback were absent from the bar, court’s superior In case the (apparently only jury, the the bailiff the bailiff, the through deputy response, and no inde- transmitted present), in-court were of whether replay directly to the issue pendent record was made of the related present, the Hannagan, the defendant’s waive In the sent a note the requested judge during it conform waiver was ineffective since did its which deliberations right be testimony. playback mandate In de- to the constitutional of certain by absence, with granted personally defendant or exercised the ap- fendant’s the trial court express request Lee v. playback See On consent. was made. (Alaska 1973). peal though we held that the defendant’s even attempted counsel was There is no uniform rule the courts jury’s playback request would be hon- recording ored. no electronic Since testimony question of whether made of the trial court’s communication by jury. to or be read reheard bailiff, through to the jury, we have jurisdictions disapprove of such a Some no way ascertaining precisely what statute, practice, permit others was communicated to the others, majority, probably while Thus, possibility light- bailiff. cannot leave the matter to the sound discretion ly be dismissed superior that the of the trial court. response may implied unin- —even of the view absent are circum- tentionally they need —to requiring jury request stances denial not listen the witness- trial testimony, rehear determina- testimony. es’ upon Based affidavits tion of which should to the alluded, be left discre- previously which we have justice trial court’s judge, tion of the trial is more was equivocal when viewed its likely promoted if than obstructed —even most light. favorable jury, at its request, allowed Further, evidence recorded recording specific rehear the electronic jury sought played to have given at the trial. —testimo- ny of two alibi witnesses—was crucial to Price, quoted, approval, In. defense; Cox’s particular importance following Jersey Supreme views the New was their testimony as times in- Court: appellant, volved. words of ‘No When a retires to their consider ver- by other testimony presented dur- [him] dict, may produce their discussion disa- ing the trial was crucial to his de- a[s] greement or doubt or failure of definite believed, fense. jury If must have acquitted. particular as to a person No be at recollection what wit- can two places at the same time.’ Had Cox and testimony. ness in the of his said course his attorney been made aware of the re- request If they enlightenment on the sub- quest, superior court have de- ject through reading testimony, a of his termined playback more im- in the absence of some unusual circum- portant jurors’ plans. than the dinner It stance, request granted. should be is even likely more that counsel or Cox justice of true administration calls could input per- have had sufficient for there such action. Where is a doubt superior suade the court to allow the jurors the minds as what a wit- request. without renewed At said, ness it cannot prejudicial any- be least, very his attorney Cox and one to have that doubt removed a would opportunity have had the to help testimony. of his rehearing There no is . wording formulate the court’s re- chary giving need to be fear undue sponse jury. to the We thus conclude prominence testimony to the of the wit- that the superior parte court’s ex commu- system ness. If our under trials a nication jury, to the in violation of Cox’s intelligent enough is to be considered rights 38(a), under Criminal Rule cannot powers decision, it entrusted beyond considered harmless error a they enough must be assumed have sense Therefore, reasonable doubt. the matter to ask to have their memories must stimulated be remanded trial. for a new portions or only refreshed as to those (footnote omitted). Id. at 300-01 testimony they about which are in Dixon, any prejudice order to assess disagreement. It doubt or must be as- necessary is to review nature of a they any sumed also that if similar jury’s request to testimony rehear trial disagreement doubts or about statements of a granting trial court’s discretion they of other witnesses would seek the denying a request. such As we said in remedy. they Price same If do not ask for’ (Alaska P.2d 1968)(footnote omitted): reading no in a further there is Draft, which, (Approved section demand it. The matter must be party to 5.2(a), provide suggest of the trial that a court should left the sensitive discretion requested testimony if judge. inquire they He wish “[whenev- witness, er the is reasonable.” Con- testimony hear the other it. New Jer- suggests curring But with the rationale party whether not a Wolf, above, sey quoted he with unnec- should burden recog- essary they commentary to this ABA Standard reading do not indicate regard, hear, need it is not error to decline nizes a trial discretion court’s deny suggests discretion to portions of the evidence but that “its to read further strictly simply so demands. But evidence is limited.”9 party because a review of is reason- generally where jury’s request to review evidence A available, not refuse ably should during obviously raises its deliberations it read grant request to have great importance to a criminal questions of reading would take merely because the generally rights, as it reflects defendant’s days purpose time. In these when the part of at disagreement doubt or full, expo- free procedure our fair and evi jurors as to the nature of least some in a case sure of all relevant evidence the final presented dence trial. While trial, during the there is both before and appropriate decision as to the insisting just layman reason to the trial jury request is left such a jurors unfailing must and unani- discretion, im critically we think it testimony they memory all mous his counsel defendant and portant hear in the courtroom. They should be request. be notified of the Wolf, 334-35, quoting State v. 44 N.J. Id. at with the trial court and allowed to consult 207 A.2d 675-76 See also comments, objec suggestions, and to offer (Alaska P.2d Ripley 51-52 phras guide tions to both the substance jury’s response to the of the court’s re- request. Alaska’s on such Richardson v. perspective (Alaska 1978); adopted by the Cox v. quests is similar to that 1978).10 We think it Relating Jury to Trial ABA Standards jury request. Relating to of to refuse such a 9. Section 5.2 the ABA Standards court’s discretion Draft, 74, by Jury 1968) provides: See, State, (Approved g., Trial 85 v. 569 S.W.2d e. Gardner 911, denied, (Ark. 1978) (en banc), Jury 440 U.S. request cert. to review evidence. (a) 1224, (1979) (“better jury, retiring If the after for 99 59 L.Ed.2d 460 S.Ct. delibera- tion, requests testimony approach a review of certain is the trial to honor for jury court evidence, they evidence, or other shall be to request specific conducted a to of hear the courtroom. Whenever the why compelling the absence of some reason reasonable, court, is notice the the after to Butler, granted”); People should not be v. 47 defense, prosecutor and counsel for the shall 273, (Cal. Cal.Rptr. (1975) Cal.App.3d 120 647 testimony requested parts have of the the providing jury right to re Penal 1138 § Code jury permit jury read the and shall the evidence). view requested admitted reexamine the materials into evidence. 526, Artus, 591 F.2d States v. 10. See United (b) need court not submit evidence (“The 1979) curiam) (9th (per inter 528 Cir. specifically jury beyond the for that review jury judge change be sur and should between requested jury, the in its discretion the the with formalities so that Defendant rounded may jury other have the review also opportunity adequate to evaluate the has an propriety relating issue so evidence to the same factual proposed response or instruc the of give prominence to the evi- as not to undue tion, objections, suggest differ formulate requested. dence response.”) v. also United States ent See language This standard is retained in identical 1969); Schor, 26, (2nd Slin 418 Cir. F.2d 29-30 of edition in Standard 15-5.2 the 1978 second 451, (Fla.App. State, sky 453-54 232 So.2d Rule tentative draft of ABA Standards. 640, Pokini, P.2d 1970); 526 55 Haw. State v. 533 of of Proce- the Uniform Rules Criminal Cf., 94, (1974). P.2 519 Koehler v. 105 (1974) suggests is dure tively a rule which substan- d judge 1974) (“And while the 446 same that in the Standards. as ABA discharge jury their has discretion jurisdictions, or com- Some mon either statute majority inability agree, reason of courts law, limited a trial have even further 888 response that conclude that in this case the state has not

necessary the trial court’s subjected proving of be- degree some of adversarial met its burden harmlessness scrutiny, preservation both yond to assure a reasonable doubt.15 11 confidentiality jury deliberations jurors two testimony least possibility and to minimize the that the trial wished to rehear was that the defendant place court’s will such burden on prosecutrix. testimony This can inquiring jurors, who constitute crucial, only be since the resolution termed only a minority panel, as to discour- of the issue of consent to intercourse for the age the resolution of doubt conflict jury’s on part most rested assessment among jurors import as of specif- testimony of conflicting these two wit- presented ic evidence at trial. These con- judge’s response, nesses. The inform- trial strongly implicate cerns a defendant’s due jury he could not them to that allow rights process a fair trial.12 hear to be “all a witness importance suggesting

Because replayed” and nar- requests such the one in this request, may as row its have caused the Supreme has recently particularly Florida Court con as it request, to abandon that “[a]ny cluded that the may placed pressure communication with have considerable presence prosecutor, outside the of the minority panel of two members of the defendant, request. and apparently defendant’s counsel so who Had initiated fraught potential prejudice present it can his the defendant been and counsel not be considered harmless.” Ivory v. allowed the chance to the trial influence (Fla.1977).13 decision, So.2d While the trial court parte that ex we adhere to view persuaded jury’s our com request been allow the munication between does phrase preference or to a narrower case,14 not mandate every request reversal in less absolute terms. While we do counsel, by being right the accused and his tions on as record well to make participating discharge argument in the deci- jury’s full as to the reasons the sion, may significant impact request have a should or should honored. discretion.”) court’s exercise of its Isley State, Id at 28. See also So.2d (Fla. App. See, g., Elisovsky e. Supreme adopted The Hawaii Court also (Alaska 1979) (discussing permissible 1228-29 per reversibility light statutory of a se rule scope inquiry into deliberations requirement interpreted State v. effect. conduct). Pokini, 55 Haw. 105-07 However, intervening light See, g., Eyman, e. Bustamante v. 456 F.2d statute, repeal of the indi- relevant the court (9th 1972); 271-74 Cir. Aillon v. apply beyond cated that it would harmless (1975) (right Conn. 363 A.2d to be analysis reasonable doubt cases. Id future dimensions, of constitutional since it 526 P.2d at 107. involves to a trial a fair fair tribu- nal, very proc- which is “the of foundation due See, 144, g., Gray, e. N.J. 336 State v. 67 14. ess”). 486, (1975) (error refusing A.2d 488-89 Ivory requests The made for several 13. photographs see to without con- types including reversible, information the defendant’s sulting defendant and counsel not report. statement and a medical examiner’s photographs since had not been admitted in judge responded requests The trial to the with and, therefore, evidence could not been have notifying consulting out or the defendant or reject- given jury). jurisdictions Most to State, 26, Ivory (Fla. counsel. v. 351 So.2d 27 per reversibility. generally ed a rule of se See 1977). adopted following The Florida the 227, Annot., (1955 41 A.L.R.2d 14-16 & §§ rule: April Supp.). 1979 prejudicial We now that it for hold is error judge respond request a trial to to a from the 1372, 1374 Richardson v. 579 See prosecuting attorney, without the the also, (Alaska 1978). g., See e. Bustamante v. defendant, being and defendant’s counsel Eyman, 269, 1972) (bur- (9th 456 F.2d 271 Cir. present having opportunity partic- and the to prosecution parte den on show ex to ipate in the discussion of action be the to judge-jury were harmless be- communications jury’s request. right taken on the This to yond doubt). a reasonable participate objec- place includes the to

889 by court committed reversible error re- whether the trial question not reach the request sponding jury’s amounted to an out in itself response discretion,16 consultation with presence we in the of and without abuse hold attorney.17 superior here the his presented defendant and circumstances finding dur cases the absence of defendant general guidelines for a trial court’s 16. The regard ing judge-jury sort to in this have been outlined communications discretion supra. recognize may rely We that it be text harmless on the fact that be error judge appropriate a trial in certain situa- was al defendant’s counsel was and narrowing request require a or tions to represent lowed to interests defendant’s unreasonably jury request broad to review evi- by process judge on an which the decided See, g., e. v. 491 S.W.2d dence. Swindell See, response. g., appropriate e. United States 400, (deciding (Tex.Cr.App.1973) 401 under Nelson, (8th 1978); v. 570 F.2d 258 McNair, Cir. United statutory “properly trial court formulation that 26, U.S.App.D.C. 140 433 States v. jury request all de- refused” curiam); (1970) (per F.2d Ware v. United 1132 required prosecutrix, and and fendant States, People (7th 1967); F.2d v. 376 717 Cir. request). commentary The to section narrow Pierce, (1972), Ill.App.3d 58 9 291 N.E.2d Relating 5.2(a) of the ABA to Trial Standards aff'd, (1974); 577 56 Ill.2d 308 N.E.2d Peo Draft, supra, by Jury (Approved 9 note Lewis, ple Ill.App.3d 73 v. 25 Ill.Dec. following suggests approach: Solomon, (1979); People 386 910 v. 82 N.E.2d Most a courts have taken the view that Mich.App. 453 266 N.W.2d See jury request cannot be for review evidence Hannagan, also State v. (Alaska 1977) (“There 559 P.2d solely ground refused on the it would allegation here that is no 5.2(a) take too much time.' Section is con- the court there communication between view, although sistent with this the second sides and counsel for both without permitting be sentence should read present.”) „ (cid:127) judge to exercise some control in this trial regard. commentary 5.2(a) to section of the ABA unlikely In the event that the Relating by Jury, note 9 Standards Trial portion requests reading a of a substantial supra, recognizes requirement the common trial, testimony given court is un- at present, apparently reasoning that of these cases 1969); Briggman, Ill.App.3d People 21 v. Cir. 747, judge’s response her is within where the Harmon, (1974); People v. 121 316 N.E.2d discretion, prejudice defend there is 294, (1968); Ill.App.2d Peo 244 N.E.2d 104 358 910, Brunk, F.2d 587 United States v. 837, ant. See ple Ramsey, 332 40 A.D.2d 337 N.Y.S.2d v. 1978); (8th v. Mes Cir. United States Clavey, 912-13 (1972). 565 v. See also United States 333, 1976); teth, (8th J., United 111, F.2d 335 Cir. (7th 1977) (Swygert, 528 125-26 F.2d dissenting), Cir. 4, (6th Reynolds, 954, 489 7-8 Cir. denied, F.2d States v. 99 S.Ct. 439 U.S. cert. 2395, 988, denied, 1973), Furthermore, 416 94 S.Ct. 351, (1978). U.S. cert. other 58 L.Ed.2d 345 890 prejudice must established order to appeal

One other issue in this re support process a due claim. mains be decided. Dixon asserts that the nearly delay five months between the bur- Id. The bears the ultimate defendant dispute occurrence of the on event Octo proof den of on the absence a valid both 9, 1976, ber and the return of the indict delay preju- and the fact of reason for 4, 1977, prejudiced ment March his de dice.21 “That the ultimate burden is on the effectively proc fense denied him due defendant, however, does not mean that the ess of This previously law.18 court has rec coming state is relieved of the burden of ognized protection addition to the delay, forward with reasons for matters applicable afforded statute of limita normally exclusive knowledge within the tions, guarantees process of due of law Rather, the state. the defendant must under the Alaska Constitution also serve to show so advanced reasons do 22 protect against the hazards defendant justify delay.” State, delay.19 Marks pre-indictment v. 496 attempted the state has Here 66, (Alaska 1972), P.2d 68 established that delay justify pre-indictment the five month deciding two factors are relevant in wheth by establishing investigation er delay a substantial between the commis alleged continuing rape incident was in two discovery alleged sion or anof offense and up shortly parts different state until charges initiation formal constitutes against before the indictment Dixon was process; namely, denial of due the reason alleged Shortly rape returned. after the probable ableness of the delay prej 9, 1976, evening occurred on October delay.20 udice attributable to the Marks the victim made contact with Officer Mike held that: Department. Wilson of Soldotna Police process In order to assess a claim due sign complaint against She declined deprivation, governmental interest in time, apparently Dixon at that recon

postponing weighed, accusation must be attorney’s sidered and contacted the district against early defendant’s interest upon returning her Ju office home in charges against notice of the him. days neau three later. district attor sum, Investigator both absence of valid reason ney’s office contacted Kaiser preaccusation delay Troopers and the fact of of the Alaska and asked State Marion, (1974). ceedings. United States v. 40 L.Ed.2d 766 See also United States 404 U.S. Clavey, 111, (7th 307, 320-21, 455, 463-464, v. 565 F.2d 118-20 Cir. 92 S.Ct. 30 L.Ed.2d denied, 954, 351, 468, cert. 439 99 (1971). Similarly, U.S. S.Ct. 58 con- 478-79 the Alaska questions (1978) (refusal L.Ed.2d 345 answer trial, speedy stitutional embodied concerning advising instructions without coun I, prior art. does not attach to formal § sel within trial court’s discretion and therefore State, v. 567 accusation. Yarbor 546 P.2d harmless). However, reject this rationale (Alaska 1976). essentially ignores process as it the due values requirement which ant, underlie the defend State, 19. Marks v. 496 P.2d counsel, with the assistance of be allowed 1972). Marion, See also United States input giv into the information and instructions 307, 324, 455, 465, U.S. 92 S.Ct. 30 L.Ed.2d jury during en the its deliberations trial (1971). 480-81 judge. See also Koehler v. 519 P.2d (Alaska 1974) (trial judge’s 448 n.18 decision to also, 20. Under federal law the reasonableness discharge jury in absence of defendant and delay resulting of the accused, harm to prejudicial, notwithstanding counsel was See, g., any, if must be balanced. e. judge’s testimony “that he would have dis States, U.S.App.D.C. charged regardless Robinson v. United . . . suggestions . . . defendant F.2d [the made]”). (Alas- Coffey P.2d 519-20 pre-accusation delay 18.A claim of must sound 1978); 564, 567 ka (Alaska 1976). Yarbor v. deprivation process in terms of of due of law under the 14th amendment to the United States Constitution and Alaska Constitution, I, art. Coffey (Alas- 7. The 520 n.19 '§ United States sixth Constitution’s protec- speedy amendment does not afford trial ka pro- tion until the of formal commencement the to from Juneau in time case arrange the he contact victim and Investigator February an interview. Kaiser then 1977. grand by the complaining with witness made contact the dispute expla- the state’s Dixon does not on October place and an took interview chronology events the which nation of tape-recorded 1976. statement taken The investigative phase the of the constituted complaining the witness was subse- from case, argue he that the time taken but does her, transcribed, by quently reviewed and excessive, investigation was complete early in November. In- corrections made complexity of the given the relative lack vestigator Kaiser then forwarded the state- prosecut- fact that the instant and the along physical ment with evidence taken only days forward three witness came complaining from the witness to the state after the incident.23 trooper detachment in Soldotna. delay in justifications for the state’s an in- Investigator also conducted Kaiser against must prosecuting Dixon be balanced area of wit- terview in the Juneau another by defense caused prejudice to the ness, follow-up in- and handled additional was preju- he delay. Dixon asserts that e., vestigation (i. polygraph administrated delay pre-accusation in two by diced early Janu- complaining witness in First, ways. he that certain material ary). claims unavailable, specifically, became witnesses receipt was the com- It not until after complaining person in house the whose plaining witness' statement in sometime. night alleged stayed the witness Kilpatrick Trooper began November that rape, stayed she person with whom aspect investigation. the Soldotna following night.24 persons The latter Trooper Kilpatrick After received the state- case apparently the state before the left Kaiser, Investigator he ment from contact- and were una- brought against was Dixon ed and interviewed Dixon several witnesses Presumably, had these testify. vailable to for the first time on December 1976. 17, persons they on December have testi- Dixon was reinterviewed been located would attempt Kilpatrick by Trooper fied when she as to victim’s manner incident, clarify discrepancy shortly Dixon’s first telephoned after them as to the location of the sexual stay any statement during her demeanor her were interviewed contact. Other witnesses she have made to them statements 17. after December regarding points The state incident. does not reflect that out that the record report, The entire which investigative by defense to sub- attempt was made compiled pages, (cid:127)consisted of 133-135 was and, addition, persons poena the above attorney’s and sent to the Kenai district persons whom none 30, 1977, January approximately office on day witness contact complaining and was received that office on Febru- interviewed following the incident were grand jury to sit ary 1977. As the next Further, been subpoenaed. it has not February in Kenai was scheduled would have shown that Attorney District Wardell determined materially aided produced been would have subpoena impossible that would be of consent. arrangements make travel for witnesses Dixon’s defense prosecuting that, after especially witness testified thát recognized This has assault, rape involving occurred she drove from Soldotna cases there sexual Homer, got delay procedures prosecutor’s but her to the house directions not due to stay night supposed where she was office rather reluc- the understandable up sleeping prosecution. confused ended couch tance of the victim initiate the wrong her house. She learn of See did Yarbor v. 1976). However, morning delay until next when the owner mistake was occa- no such subsequently prosecuting her. sioned awakened She able witness . stayed the correct house and there locate case. night. following 568. then prejudice alleged by Id. at found that the defend- type The second of memory lapses Dixon of concerns the sever- establishing ant not his of had met burden of at al the witnesses who testified trial. prejudice, he part in because failed to certi- potential Dixon’s that one brief indicates portions of the fy the relevant record witness in who was the bar at Soldotna allegations his were appeal and also because hearing remembered Dixon talk of some Coffey too of tenuous. Also relevance night rape sexual contact on of but (Alaska 1978), not of did remember the nature the talk. where this court held that unavailabili- witness, Mitchell, Kay Another who was ty sufficiently two not witnesses was at also the bar and talked with the com- prejudicial reversal of the de- to warrant plaining length, witness could at some not fendant’s conviction where witness “did one long remember exactly how the victim was disappear pretrial evi- not until after in the or what her attire was (though bar dentiary hearing,, was definitely she did remember that victim conflicting as to whether ‘Bear’ was dressed), casually provocatively and not holdings at the sale.” of these Under bought whether her victim own cases, prejudice alleged in this case does drinks. required toup not measure in order allegations prejudice These do ap- pre-indictment delay a claim that sustain pear to be sufficient warrant overturn- impeded presentation de- accused’s granting Dixon’s conviction. Even in at fense the case bar. proceeded investigation state’s Trial.26 Reversed and Remanded New manner, unduly dilatory the prejudice al- leged appear does not to be very substantial BURKE, Justice, dissenting part. when compared prior cases which have point by been reversed on this this court. disagree majori- I respectfully (Alaska In Marks Judge ty’s Hanson’s re- conclusion 1972), a reversal was mandated where the sponse for a pre-accu- state made no attempt justify constituted reversible error. Read its sation delay eight months in narcotics entirety, Judge I think Hanson’s note made sale and the defendant testified that refusing playback, it clear that he was not possible either witnesses recollec- only asking its refine re- day alleged tion the events on the quest specific so point portions as to out the offense or had moved from the area and possible of the record as to which there was contrast, could not be contacted.25 Thus, disagreement. I conclude that 1976), Yarbor (Alaska 546 P.2d 564 beyond error was harmless a reasonable arising where allegations prejudice appellant’s doubt and would affirm convic- delay bringing from a nine-month in the tion. charges lewd and lascivious conduct were Otherwise, I concur ex- views the memories of witnesses had faded pressed by majority. as to some the time of details trial, we observed that:

We think it note appropriate to at the outset degree that to some there are fad- action,

ed every recollections in criminal brought since generally cases are not alleged- trial until a few after the months ly illegal incident occurs. judge-jury It 26. resolution of the communica- should also noted that in Marks v. Our unnecessary gave great 496 P.2d 66 tion issue has also made to re- weight “appellant to the state’s concession that solve the assistance of counsel issue ineffective ‘prima showing preju- appeal. at trial made facie raised ” dice.’ Id. [footnote omitted] that the notes defendant request. obligation grant Rath- der no er, 5.2(a) requires prose- section notice to both inquire precise further into the he should cutor no view and defense counsel and “takes disagreement is as to which matters there necessary appropriate as to whether it is recall, and see that the lack then should present.” have the Golf v. defendant See also is reviews that evidence which relevant (1977) (en Ark. 552 S.W.2d 236 to those matters. banc) judge (prejudicial trial to re- error for (citations omitted). Id. jury’s presence spond questions in of defend- necessary, concluding we that reversal is ant, absent). While counsel but with defense similarity the circumstances note between presence many counsel’s cases defense held to re in this case those which were possibility participation eliminate quire reversal in Cox v. presence prejudice, that the we reiterate (Alaska 1978). In both Cox and during judge-jury is communications defendant jury request judge responded the trial to a dimensions, requirement of constitutional way placed re review evidence adopt presence of a rule that the decline ability jury’s strictions rehear of the de- would render the absence counsel testimony requested notifica recorded without Accord, per Bustamante se harmless. fendant tion and consultation with the defendant or (9th Eyman, Cir. 456 F.2d cases, attorney. jury returned a In both States, F.2d 717 See Ware United also requested verdict without the benefit of the 1967) opinion). (7th (dissenting Cir. placed review evidence after limitations which, opinions recognize are that there judge them. the trial were communicated to desirability though recognizing of consulta opinions involving We note that numerous defendant tion the trial between support opinion that similar circumstances our counsel, judge’s her and his or hold See, g., required. e. United States reversal Artus, jury request refusing without for information 1979) (9th (per cu 591 F.2d 526 Cir. error. harmless such consultation Schor, (2nd riam); F.2d 26 States v. United

Case Details

Case Name: Dixon v. State

Court Name: Alaska Supreme Court

Date Published: Jan 18, 1980

Citation: 605 P.2d 882

Docket Number: 3810

Court Abbreviation: Alaska