from the District Court No. 3PA-12-3045 CR, Third Judicial
District, Palmer, John W. Wolfe, Judge.
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
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.[*]
Anthony Roberts pleaded no contest to eight counts of flying
an aircraft without a license. In addition, following a jury
trial, Roberts was convicted of one count of unlawful
possession or transportation of game. (The jury acquitted Roberts
of six other charges.)
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.
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.
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
we uphold the trial court's refusal to order disclosure
of the trooper incident reports pertaining to the search
warrant application that was denied.
these reasons, we affirm Roberts's conviction for
unlawful possession or transportation of game.
also appeals his composite sentence as excessive. We affirm
the sentence because, given the facts of Roberts's case,
it is not clearly mistaken.
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.
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
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.
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.
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
all criminal trials in Alaska, Roberts's jury was
required to reach unanimity before they could return a
verdict. However, the trial judge neglected to
inform the jurors of this requirement.
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
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.
judge asked each juror to tell him "whether these are
your verdicts". In response, each juror responded in the
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
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'
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 ...