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Roberts v. State

Court of Appeals of Alaska

April 7, 2017

MICHAEL ANTHONY ROBERTS, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the District Court No. 3PA-12-3045 CR, Third Judicial District, Palmer, John W. Wolfe, Judge.

          Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          James J. Fayette, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

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

          OPINION

          MANNHEIMER Judge.

         Michael Anthony Roberts pleaded no contest to eight counts of flying an aircraft without a license.[1] In addition, following a jury trial, Roberts was convicted of one count of unlawful possession or transportation of game.[2] (The jury acquitted Roberts of six other charges.)

         In this appeal, Roberts challenges his conviction for unlawful possession or transportation of game on three separate grounds. First, he argues that the trial court committed plain error when it failed to instruct the jurors that, to return a verdict, they had to reach a unanimous decision. Second, he argues that the trial judge improperly restricted his attorney's closing argument when the judge precluded the defense attorney from contrasting the burden of proof used in criminal trials, "beyond a reasonable doubt", with the lesser burdens of proof used in other types of proceedings. Finally, Roberts argues that the trial judge should have granted his attorney's pretrial request for disclosure of various documents relating to a search warrant application that was denied during the investigation of Roberts's case.

         We agree with Roberts that the trial judge should have explicitly instructed the jurors that their decision had to be unanimous. However, we conclude that this error was rendered harmless when the judge individually polled the jurors to confirm that they concurred in the verdicts.

         We also agree with Roberts that the trial judge committed error when the judge prohibited the defense attorney from contrasting proof "beyond a reasonable doubt" with proof "by a preponderance of the evidence". However, we conclude that this error was rendered harmless because the defense attorney was able to address this same concept using other phrasings.

         Finally, we uphold the trial court's refusal to order disclosure of the trooper incident reports pertaining to the search warrant application that was denied.

         For these reasons, we affirm Roberts's conviction for unlawful possession or transportation of game.

         Roberts also appeals his composite sentence as excessive. We affirm the sentence because, given the facts of Roberts's case, it is not clearly mistaken.

         Underlying facts

         In 2011, a hunter contacted Michael Roberts for assistance in hunting a bear. For a fee of $5000, Roberts agreed to fly the man to a specified hunting location and to otherwise assist him in the hunt.

         After several failed hunting attempts, two of Roberts's other clients joined the hunting party for the next attempt. The four flew to Cape Yakataga and then hunted the next day. They were successful in taking two black bears. But while two of the hunters were field-dressing the two black bears, either Roberts or the other hunter illegally shot a third black bear.

         After this Cape Yakataga hunt came to the attention of the authorities, the State filed sixteen misdemeanor charges against Roberts (some relating to the Cape Yakataga hunt, and some relating to other hunts). One of these charges was for unlawful possession or transportation of the third bear killed at Cape Yakataga.

         Before trial, Roberts pleaded no contest to eight counts of flying an aircraft without a license. The jury acquitted Roberts of all of the remaining counts except the count charging him with unlawful possession or transportation of the bear.

         The trial judge committed obvious error in failing to instruct the jurors that their decision had to be unanimous, but this error was cured when the judge polled the individual jurors

         As in all criminal trials in Alaska, Roberts's jury was required to reach unanimity before they could return a verdict.[3] However, the trial judge neglected to inform the jurors of this requirement.

         Roberts's attorney did not object at the time to the trial judge's failure to instruct the jurors on the requirement of a unanimous verdict, but on appeal Roberts argues that the judge's failure to give such an instruction constituted plain error.

         We agree with Roberts that the judge's failure to instruct the jurors concerning the requirement of unanimity was obvious error. However, we conclude that this error was cured when, upon the announcement of the jury's several verdicts (most of which favored Roberts), the trial judge polled the jurors individually.

         The judge asked each juror to tell him "whether these are your verdicts". In response, each juror responded in the affirmative.

         Although this question has not previously been addressed by the Alaska appellate courts, the majority of jurisdictions that have dealt with this question have concluded that a judge's failure to instruct the jury on the requirement of a unanimous decision is cured when the individual jurors are polled and they each affirm that they concur in the announced verdicts.[4]

         Roberts argues that the polling in his case was inadequate because, when the judge asked the individual jurors whether the announced verdicts were "your verdict", some of the jurors potentially could have interpreted the judge's question as simply asking them to confirm that the verdicts announced in court were, indeed, the verdicts reached by the jury as a group, without regard to whether the individual juror agreed with the announced decisions. We have listened to the audio recording of the juror polling, and we conclude that it does not support Roberts's suggestion. The audio record shows that the trial judge directed an individualized inquiry to each juror. We conclude that, had there been one or more dissenting jurors, they would have spoken up during this polling process. We are confident that the verdicts returned by the jury in Roberts's case (one conviction and several acquittals) reflect the jurors' unanimous decisions.

         For these reasons, we conclude that the polling of the jurors at the end of the trial cured the trial judge's error in failing to instruct the ...


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