*1 thеre were inconsistencies It is true that testimony. In her statement
in M.M.’s incident, M.M. police stated part rode in was At the car she red.
trial, however, it was green she testified trial, indicated At she some gray. was the assail-
doubt as whether Walker
ant, he then wore a but this was because had he worn
beard and not moustache Finally, M.M. was unable to re-
earlier.19 evening.
call many details most favor-
Viewing these inconsistencies state, see
ably Noble them per-
P.2d at we do not find so
suasive mandate reversal of Walker’s as to physical
conviction. There was sufficient “support evidence to a con- testimonial
clusion a reasonable mind there guilt.
no reasonable doubt” as to Walker’s
Beck v. at 997. reasons,
For conviction is these Walker’s
AFFIRMED. WAMSER, Appellant, H.
Bernard Alaska, Appellee.
STATE
No. 5370. Alaska.
Supreme Court of
Oct. comprehend between the distinction at trial Wаlker had a beard did not 19. M.M. stated rape. language and “moustache.” at the M.M.’s native “beard” time of Yupick testimony indicates that she
OPINION COMPTON, Justice. case
This raises the issue of whether a failure notify bailiff’s trial court of a jury foreman’s communication indicating was deadlocked constitutes reversible constitutional error. The superi- petitioner’s or court denied mоtion for post- relief. conviction The Alaska Court Ap- peals affirmed. We reverse.
I. FACTUAL AND PROCEDURAL
BACKGROUND in The facts this case undisputed. are 1977, Bernard H. (Wamser) Wamser was convicted district court of unlawfully for fishing king crab in closed waters. We his affirmed conviction1. Subsequently, Wamser retained new original counsel who reviewed file in signed case discovered a note by the jury foreman which read: Bailiff, seem completely unable to to a come unanimous decision /s/ Robert G. Blair Foreman This note was filed in the district court at Evans, Charles G. Smith Gruening, & stamped by deputy Kodiak and clerk on Inc., Anchorage, appellant. for precise March 1977. The time of day W.H. Hawley, Atty. Gen., Asst. Anchor- note when the was filed is uncertain. аge, Condon, Gen., and Wilson L. Atty. Ju- Upon that neither Wamser determining neau, appellee. nor ever prior his counsel had been advised BURKE, C.J., RABINOWITZ, note,2 Before the existence of this counsel CONNOR, COMPTON, MATTHEWS and promptly post-conviction filed a motion for JJ. pursuant 35(c).3 relief to Criminal Rule See Wamser v. pertinent 35(c) provides 3.Alaska R.Crim.P. part: of, Any person who hаs been convicted application In his for, sentenced a crime and who claims: states that he was (1) informed or the sentence conviction counsel at some time retired for of the constitution of the United violation Alaska; deliberations that the was deadlocked. It or the or laws of States constitution is unclear whether this information was con- veyed during (4) deliberations or after verdict. there exists of material heard, facts, previously presented Wamser’s recollection does not affect our dis- position requires the case because there is evi- vacation of conviction or justice; dence that Wamser or either his counsel interest of sentencе ceived notice of the foreman’s Fur- note. ther, agree may proceeding both under this rule to sides that the trial never institute a received the foreman’s relief. note. secure responded to on That note was of his evidence. alleged violations federal de- proc- presence and state constitutional the recоrd and every stage ess of law pro- No and his counsel. further fendant of the trial. in of swearing ceedings, other than bailiff, held on the record another were stamped clerk4 who Neither the *3 open returned in jury until the verdict was nor receipt jury of the note the foreman morning, March following court on the any independent it have rec- who authored 1977. of or circumstances ollection the note the Nevertheless, surrounding it. the authen- jury exactly long It unclear how the of as well as ticity undisputed, the note verdict lasted. The was dated deliberations by fact was the trial the that it never seen 1977, however, and the March because Wamser, judge, prosecuting attorney, the was we do form utilized sealed verdict Wamser n counsel. was not until know that a verdict returned 1977. The trial started March Af- is also evidence that p.m. There 4:30 completed presentation ter each its side have may the continued jury deliberations following day, the instructed evening into the hours.6 jury the that: Wamser n motion for be the During your you’ll in superior court which by lief was denied the custody permit- are not of a bailiff. You concluded that: found and any person. Any ted contact with other Applicant, Bernard H. Wam- 1. The requests must be ad- your needs show, ser, by a preponder- failed to has dressed to the bailiff. evidence, that error was com- ance of the by p.m., If a verdict was not reached 4:30 parte ex al- by mitted communication n jury instructed to use a sealed was leged have been made between to orally trial judge para- verdict form.5 The bailiff, and any which convicted him jury phrased the written instructions found on court, clerk, judge or officer of the other form, the sealed but neither set of verdict further, instructions addressed the issue of what the by parte 2. If such error ex communi- was to jury should if it unable reach a do alleged had been to have cation as shown unanimous decision. made, by preponderance been a of shortly The case to the before went evidence, all hereby I conclude that under 23,1977; noon on deliberations com- March error would have premises alleged such p.m. menced at 1:00 The approximately harmless a reasonable doubt. beyond been p.m. court at 2:25 same reconvened Appeals The Alaska Court of affirmed by afternoon a note submitted to consider by superior piece given a of same reasons regarding the bailiff jurors in All the must be in the box as bailiff for the clerk served A.M., jury. period at to the 9:00 of March initial after the case went court at Thereafter, sworn in and which time the verdict will handed a new bailiff was opened presence jury. deliberating. of the finished Court and served until the Alaska, Kodiak, this_day at Dated form read: sealed verdict March, 1977. Jury: Ladies and of the Gentlemen attorney’s prosecuting in states 6.The affidavit you If not reached a verdict 4:30 have part: P.M., you today, have o’clock then when verdict, working day sign agreed was upon the foreman The remainder of have office, leaving spent my same, envelope, your up in but I do recall seal it this possession, presence keep function at the Elks Club across un- social it in building separate go opened. may from the court sometime street then You observing lights evening and on in the your homes. there, room; presence juror say anything of someone the ver- about No must assuming yourself deliber- agreed upon, still dict nor suffer concerning ating; anyone this ... trial. addressed We granted court.7 Wamser’s Petition For violating his constitutional to consider two Hearing issues. рresent of law and to be every at stage agree of the trial. We and find that II. ERROR CONSTITUTIONAL erred its conclusion. In proceeding for post-conviction petitioner has right the burden of es defendant tablishing by a preponderance of the evi present every stage trial has been dence those facts which will him entitle recognized under both United Statеs relief.8 denying Wamser’s motion for and the Alaska Constitutions.10 “Included post-conviction relief the superior court scope within right period is the parte found that an ex communication was deliberations; thus, of jury the defendant only “alleged” to have been made between whenever the jury and the bailiff. The trial court’s communication between thе court and the *4 findings factual only will be aside set jury during occurs those deliberations.”11 they review if clearly are erroneous.9 In pre Dixon v. and the line State12 of cases case, however, the present neither party ceding it13 hold that judge’s response a trial disputes that jury passed the foreman the to a jury communication without notice to deadlock note to the bailiff and that the defendant his counsel hearing and a communication did not come to the atten on the is record error. We described the tion of Wamser, the trial judge, or his coun right critical nature of the to defendant’s Moreover, sel. the court records reflect be of jury notified in Dix communications that this communication was filed with the on: the day of the deliberations. While the final facts, appro- view decision as to of these we superior believe the finding priate response court’s clearly to such a is request erroneous. discretion, left to the trial court’s we superior court also concluded that no critically think it important that the de- error was by committed the jury’s “alleged” his fendant and counsel be notified of the parte ex communication. argues, request. however, They should to con- allowed that the bailiff’s failure to notify sult with the trial court of court and offer jury’s to pre- deadlock note comments, cluded opportunity suggestions, to proceed- objections conduсt ings on the record in his presence guide therefore both the phrasing substance and Summary Disposition (Alaska App., 1059, Hannagan, No. 32 (Alaska 1977). 559 P.2d 1063 10, Sept. 1981). right present The constitutional has been implemented procedural requirement by as a State, 277, (Alaska v. Dolchok 639 P.2d 282 38(a). Alaska R.Crim.P. State, 1982); 222, (Alas Hensel v. 604 P.2d 231 addressing scope Without corre- 1979); State, 231, ka Merrill v. 457 P.2d 234 sрonding rights, federal constitutional our anal- (Alaska 1969). ysis holding present in the case found- are 9. Dolchok v. State, 277, 639 P.2d 283 231, upon rights ed conferred the Alaska 1982); State, Merrill v. 457 P.2d Constitution. (Alaska 1969). 11. Dixon v. State, 882, 605 P.2d 884 10. The United States Supreme Court treat- every 1980). right present ed the accused’s to be at stage of the trial as related to either the con- 12. Id frontation clausе of sixth amendment or to process the due clause of the fourteenth See Richardson v. State, 1372, 579 1374 P.2d Allen, 337, amendment. See Illinois v. 338, 397 U.S. (Alaska 1978); State, 297, 575 1057, 1058, Cox v. P.2d 299 90 S.Ct. 356 (Alaska 1978); Hannagan, (1970). State Similarly, right 559 P.2d in Alaska the to be 1059,1064 (Alaska State, present 1977); Koehler v. 519 founded on the state constitutional rights (Alaska 1974); State, process P.2d 446 accused and to Gafford against (Alaska 1968); confront the witnesses him. Alaska Noffke v. I, Constitution art. §§ 7. See Dixon v. 422 P.2d (Alaska 1980); State v. judge provide should that a trial re- we held jury’s response
the court’s
about a
is confused
when a
guidance
quest.14
have not
earlier instructions
issue that
legal
present
case is
argues
instructions
sufficiently resolved.
line of cases.
by the Dixon
controlled
provided
guidance
present case
Dixon line of
contends
State
that it was unable
the event
present
from the
distinguished
cases can be
we need
verdict. While
a unanimous
reach
involved situations
they
case because
would
any,
if
response,
what
not address
received com-
judge actually
trial
which the
Wamser and
appropriate,
have been
wherеas
jury,
from the
munications
to offer
present
counsel had a
never received
present
case
We
judge.19
recommendations
distinction,
together
note. This
therefore,
failure to
hold,
that the bailiff’s
the instant case the
fact that
with the
to the trial
note
deliver
to the tri-
the communication
jury initiated
to conduct
opportunity
judge precluded an
converse,
court,
provided
al
rather than the
pres-
in Wamser’s
proceedings on
record
finding
court’s
the basis for the
ence,
and thus violated
constitu-
had not established
that Wamser
the Alaska Constitution
guaranteed by
of the evi-
preponderance
tional error
present
of law and
due
dence.15
of the trial.
every stage
con
agree with Wamser and
ar-
persuaded by
State’s
We are
squarely
falls
clude
case
error
proved
Wamser has not
gument
Dixon and its
the boundaries of
within
*5
the evidence because
of
by preponderance
irrelevant
that the com
a
predecessors.
It is
note was not
that
“he has not shown
came from the
munication at
issue
nоt
that
did
recalled or
orally
judge.
rather than from the
Constitutional
reached a verdict
it had
inform the bailiff
judge
arise whenever a trial
considerations
of at-
was in
while the bailiff
inquiries
informed of substantive
not
the court of the note.”
tempting to inform
Where a
deliberating jury.
from a
supported
is not
speculation
The
idle
proper authority16
to the
Stаte’s
submits a note
the evi-
and fails
rebut
by the record
it is
in its delibera
stating that
deadlocked
presented by
error
of constitutional
have a
dence
tions,
respond may
failure to
Moreover,
State,18
Wamser’s burden
In Des Jardins v.
Wamser.20
coercive effect.17
a
came from bailiff rather
than
that answers
14.
jury did not
return
verdict until after 4:30
State,
See Koehler v.
519 P.2d
Indeed,
р.m.
prosecuting attorney’s
affida-
1974);
3 ABA
Standards
Criminal
vit indicates that the
contin-
Justice,
Relating
by Jury
to Trial
Standards
evening.
ued into the
15-4.3,
(2d
4.4
ed.
§§
togeth-
pieced
An alternative
can
scenario
er from these same facts. The
communi-
jury may
24. The State
since the
contends that
during
cated its
status to
deadlocked
the bailiff
question
have withdrawn their
or reachеd a
the afternoon
of March
For some unknown
before the bailiff
inform the
verdict
could
reason,
relay
message
bailiff failed
note,
error which was commit-
Thereafter,
judge.
to the trial
validity
ted
of this
would
harmless.
evening awaiting guidance
mained into the
hinges
posed
proposition
hypo-
on whether
from the court.
it became
When
clear
actually
thetical circumstances
occurred.
guidance
forthcoming,
was not
issued
contemporaneous
of a
record con-
absence
guilty
verdict and went home.
note,
impossible
cerning it is
contemporaneous
proceed-
Given the lack of
As actually
establish what
occurred.
conse-
ings
record,
specula-
on the
both scenarios are
quence,
the State cannot demonstrate that er-
Fortunately,
tive.
need
we
not reconstruct
beyond a
ror
harmless
reasonable doubt.
appeal.
events in order to resolve this
State,
See, e.g.,
21.Dixon
v.
Richardson v.
605 P.2d
the circumstances note and its
tion of the foreman’s
delivery to the bailiff. overwhelming guilt was and I see presume error.
no reason JACKSON, Appellant,
Hazel Alaska, Appellee.
STATE
No. 5529. Appeals
Court of of Alaska. 1, 1982.
Oct.