Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
John Todd Rantala appeals his conviction for witness tampering.  This charge was based on three telephone conversations between Rantala and his domestic partner, Terri Mischler. Rantala, who was in jail on a charge of burglary, telephoned Mischler three times on the day Before his burglary case was scheduled to come Before the grand jury. The State alleged, and the trial jury found, that during these three telephone conversations Rantala " attempted to induce [Mischler] to testify falsely, [or] offer misleading testimony, or unlawfully withhold testimony" at the grand jury proceeding.
Rantala was originally charged with three separate counts of witness tampering, one count for each of the three telephone conversations. His trial on these charges ended without a decision, after the jury declared themselves hung on all three counts and Rantala's attorney requested a mistrial. Eight months later, the State filed a superseding information which contained a single, consolidated charge of witness tampering based on all three telephone conversations. At Rantala's second trial, he was convicted of this superseding count.
In the present appeal, Rantala claims that the trial judge at his first trial engaged in misconduct, and that the judge's actions misled the defense attorney into seeking a mistrial. Based on the assertion that his attorney was misled about the need for, or the advisability of, a mistrial, Rantala argues that the double jeopardy clause barred the State from bringing him to trial a second time for witness tampering.
Rantala also argues in this appeal that the evidence presented at his trial was legally insufficient to establish the crime of witness tampering.
As we explain more fully in this opinion, we reject Rantala's double jeopardy claim. However, we also conclude that the evidence presented at Rantala's trial, even when viewed in the light most favorable to the jury's verdict, is insufficient as a matter of law to support a conviction for witness tampering. We must therefore reverse Rantala's conviction.
Rantala's double jeopardy claim
As we noted earlier, Rantala's first trial ended in a mistrial after the jurors returned to court and announced that they were hung on all three counts. In a note that the foreman handed to the trial judge when the jurors came back to the courtroom, the jurors gave the following breakdown of their position: on Count I, they were split 6 to 6; on Count II, they were split 6 for conviction, 3 for acquittal (with 3 apparently undecided); and on Count III, they were split 9 for conviction and 3 for acquittal.
Based on this information, both the prosecutor and the defense attorney agreed that the jurors would be unable to reach any verdicts, and the defense attorney requested a mistrial. The trial judge, Superior Court Judge Harold M. Brown, granted this request.
However, a few minutes Before the jury returned to court and told Judge Brown that they were unable to reach a verdict on any of the three counts, the jury took an action that was seemingly inconsistent with their later declaration that they were hung: they sent the judge a completed verdict form on one of the counts (Count I). This verdict form declared that the jurors had found Rantala " Not Guilty" on Count I.
Judge Brown notified the parties that he had received this completed verdict form, and that this form apparently contained the jury's verdict on Count I, but Judge Brown did not tell the parties what that verdict was. Instead, the judge told the parties that he intended to send the verdict form back to the jury, with an instruction that the jurors should submit their verdicts on all three counts at the same time.
The prosecutor immediately responded, " I agree." Rantala's attorney's only response was to point out that it was ten minutes Before 9:00 p.m., the time at which Judge Brown intended to let the jurors go home for the night.
There was a pause in the proceedings while Judge Brown composed his note to the jurors. When the judge was finished, he read the note aloud to the two attorneys. Neither attorney objected to (or even commented on) what the judge had written. Judge Brown then sent the following note to the jury:
Jurors: I am returning the verdict form to you. I have not announced your verdict to the parties. You should return your verdict on all counts at the same time. I will ask you as a group to come back into court at 9 p.m. to consider whether it would be fruitful to continue deliberations tonight or whether we should return at 9 a.m. tomorrow to continue deliberations.
This note bears the time " 8:50 p.m." , but the log notes of the proceeding show that the court went off-record (assumedly, so that this note could be sent to the jury) at 8:55 p.m. Just under ten minutes later, at 9:04 p.m., the court reconvened with the jurors present in the courtroom. At that time, the jury foreman handed Judge Brown the note which declared that the jurors were split along the lines described in the first paragraph of this section. We note, in particular, the fact that the jurors declared themselves split 6 to 6 on Count I-the very count on which the jurors, seemingly, had been in unanimous agreement only minutes Before .
Moreover (as Judge Brown immediately revealed to the parties), the jury foreman made a verbal comment when he handed Judge Brown the note that contained the breakdown of the jurors' positions: the foreman told the judge that, in his opinion, the jury was " hopelessly hung" .
When the prosecutor and the defense attorney were apprised of the jury's numerical breakdown, and of the foreman's comment,
they agreed that it was pointless to ask the jurors to continue deliberating. The defense attorney then moved for a mistrial, which Judge Brown granted.
Two weeks later, Rantala (now represented by a new attorney) filed a motion in which he argued that, under the double jeopardy clause, Count I had to be dismissed. Rantala asserted that Judge Brown committed error by failing to inform the parties of the content of the jury's premature verdict on Count I- i.e., by failing to inform the parties that the jury had apparently voted to acquit Rantala on this count. Rantala argued that if his defense attorney had been aware of the apparent acquittal on Count I, the defense attorney either would not have requested a mistrial when the jury returned to court ten minutes later and declared themselves hung, or the defense attorney at least would have insisted on polling the jurors Before he asked for the mistrial.
Based on the foregoing argument, Rantala asserted that his defense attorney's request for a mistrial did not constitute a " knowing" or " intelligent" waiver of Rantala's double jeopardy rights on Count I-and that, therefore, the State was barred from bringing Rantala to trial again on Count I.
Rantala did not offer an affidavit from his trial attorney in support of this motion, nor did he seek an evidentiary hearing. Judge Brown denied the motion without comment.
As explained above, Rantala was later tried a second time-this time, on the single consolidated count-and the jury found him guilty.
On appeal, Rantala renews his argument that Judge Brown should have apprised the parties that the jury foreman had written " Not Guilty" on the verdict form for Count I. This time, however, Rantala argues that he is entitled to more than simply dismissal of the charge in former Count I (the charge based on the first telephone conversation). Rantala now argues that he is entitled to dismissal of the entire case, and to an order barring the State from reinstituting the charges based on the second and third telephone conversations.
Rantala's briefs to this Court present the argument that Judge Brown had no authority to reject what was apparently a valid verdict on Count I. According to this argument, Judge Brown was obligated to enter judgement on this verdict, even though it was only a partial resolution of the charges, and the judge therefore acted illegally when he sent the verdict form back to the jury and directed the jury to return all three verdicts at the same time. However, Rantala's attorney withdrew this claim at the oral argument in this case.
Rantala's briefs also present an alternative argument that was not raised in the superior court: the argument that even if Judge Brown had the authority to ask the jurors to return their verdicts on all three counts at the same time, the judge's note to the jury was worded improperly-worded in such a way as to imply that the judge refused to accept the jurors' apparent decision on Count I, and that the judge was ordering the jurors to reconsider that decision.
We reject this alternative argument. The text of Judge Brown's note does not appear coercive on its face; it merely informs the jurors that they should return all three of their verdicts at the same time. Moreover, as we explained earlier, Judge Brown read the content of this note, verbatim, to the two attorneys Before he sent the note to the jury, and Rantala's defense attorney had no objection to either the substantive content of the note or to the judge's wording. Judge Brown committed no error, much less plain error, when he composed this note and sent it to the jury.
This leaves Rantala's last claim: that Judge Brown, by failing to disclose the content of the verdict form on Count I, unlawfully misled Rantala's defense attorney about the status of the jury's deliberations-thus preventing the defense attorney from making an informed decision about whether to seek a mistrial when, ten minutes later, the jury announced that they were hopelessly divided on all three counts.
We reject this argument because it is not supported by the record. There is no indication that the defense attorney was misled.
The defense attorney knew that the jurors declared themselves unable to decide Rantala's
case. In particular, the defense attorney knew that the jurors declared themselves split 6 to 6 on Count I. The defense attorney also knew that, ten minutes Before the jurors returned to court and announced themselves deadlocked, the jury had sent Judge Brown a verdict form that apparently contained the jury's verdict on this same count. The defense attorney knew this because, as soon as Judge Brown received the verdict form, he announced this fact in open court.
The defense attorney also knew what had happened to that verdict: he was aware of (and apparently approved of) Judge Brown's decision to return the verdict form to the jurors, accompanied by an instruction that they should return their verdicts on all three counts at the same time.
Generally, litigants waive their right to challenge a verdict procedure unless they raise their objection Before the jury is discharged. If Rantala's trial attorney thought that he needed to know the content of the verdict form Before he decided whether to seek a mistrial, he could have asked Judge Brown to reveal that information. Alternatively, the defense attorney could have requested Judge Brown to ask the jurors why they now declared themselves hung when, only minutes Before , they had returned a verdict on one of the counts.
But the defense attorney chose not to pursue this matter in either of the ways suggested in the preceding paragraph, or in any other fashion. Instead, he pronounced himself satisfied that the jury was truly deadlocked, and he asked for a mistrial.
On appeal, Rantala implies that his trial attorney acted incompetently when he asked Judge Brown to declare a mistrial even though he did not know the content of the verdict form. According to Rantala, this information was crucial to any informed decision on the matter of a mistrial.
An attorney's decision to ask a trial judge to declare a mistrial is obviously a tactical decision. The law presumes that an attorney's decisions are competent, and that they are motivated by sound tactical considerations.  Thus, it is Rantala's burden to affirmatively establish that no competent defense attorney would have decided to seek a mistrial without knowing the content of the previously submitted verdict form.
As we noted earlier, Rantala has not offered an affidavit from his trial attorney, or any other evidence, to support the assertion that his attorney was misled or that his attorney was otherwise unable to make a competent tactical decision regarding whether to request a mistrial. Rantala rests his claim solely on the record of the trial proceedings.
That record does not address or explain the defense attorney's tactical analysis of the situation. Moreover, it was not patently incompetent for Rantala's attorney to seek a mistrial in this situation. Accordingly, Rantala failed to rebut the presumption that his attorney acted competently when he asked for a mistrial.
For these reasons, we reject Rantala's claim that his second trial was held in violation of the double jeopardy clause.
The sufficiency of the evidence to support Rantala's conviction for witness tampering
At Rantala's second trial (the trial that led to the judgement that Rantala challenges in this appeal), the prosecution and the defense each presented one witness. The prosecution presented the testimony of the state trooper who arrested Rantala for burglary and who later obtained the search warrant that authorized the seizure of the recordings of Rantala's three telephone calls to Terri Mischler from jail. The defense presented the testimony of Mischler, who asserted that Rantala never asked her to testify falsely or to withhold testimony. However, the primary evidence in the case was the audio recordings and accompanying transcripts of Rantala's three telephone calls to Mischler.
Here is the factual background of these telephone calls: Rantala and Mischler had been living together, along with Mischler's two children from a prior relationship. Rantala moved out of the residence after the state Office of Children's Services obtained a restraining order that prohibited Rantala from contacting Mischler's two children. This restraining order was issued in November 2003, and it was valid for the next six months-in other words, until May 2004.
On March 12, 2004, Rantala returned to Mischler's house. When Mischler refused to let him inside, Rantala entered through a window. Mischler took her two children to a friend's house, where she called the state troopers. The trooper who responded to the scene found Rantala hiding underneath Mischler's house; the trooper had to use pepper spray to get Rantala to surrender. Based on this incident, Rantala was arrested and charged with burglary (a felony) as well as six misdemeanors.
Rantala's burglary charge was scheduled to be heard by the grand jury on March 19, 2004. Rantala called Mischler from jail three times on March 18th: one call at 9:32 in the morning, another at 10:16, and a third at 1:25 in the afternoon. All told, these three phone calls comprise 36 minutes of conversation between Rantala and Mischler.
In each of these conversations, Rantala and Mischler discussed the impending grand jury hearing. Rantala told Mischler that, even though he broke into her house, he was not a bad person and he did not deserve to be convicted of a felony ( i.e., the burglary charge). Rantala repeatedly appealed to Mischler's sympathies, urging her not to cooperate with the authorities in their attempts to pursue the burglary charge.
Standing alone, these statements do not constitute the crime of witness tampering as defined in AS 11.56.540(a)(1). Under this statute, the State was required to prove that Rantala attempted to induce Mischler to " testify falsely" , or to " offer misleading testimony" ...