from the District Court No. 3PA-14-1297 CR, Third Judicial
District, Palmer, David L. Zwink, Judge.
Garton, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
Raymond E. Beard, Assistant District Attorney, Palmer, and
Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
Allen Carpenter was charged with fourth-degree assault for
allegedly hitting his elderly mother. Five hours into the
jury deliberations on this charge, the jury sent a note to
the judge indicating that they were hung. The trial judge did
not notify the parties of this note. Instead, on his own
initiative, the trial judge engaged in a series of ex parte
communications with the jury, ultimately informing them that
they could return after the weekend to continue their
deliberations, or they could continue to deliberate that
night if'they believed that they would be able
to come to a final verdict within the next twenty-five
minutes. The jury indicated that they wished to continue to
deliberate that night. Less than five minutes before the
deadline, the jury returned a guilty verdict on the
fourth-degree assault charge.
appeal, Carpenter argues that the judge's ex parte
communications with the jury violated his constitutional
rights and may have had a coercive effect on the jury. The
State concedes that the judge's ex parte communications
constituted constitutional error, but the State argues that
the error was harmless beyond a reasonable doubt.
reasons explained here, we conclude that the judge's ex
parte communications with the jury, after the jury had
declared itself hung, were not harmless beyond a reasonable
doubt, and that reversal of Carpenter's conviction is
facts and procedural history
Carpenter was charged with fourth-degree assault for
allegedly striking his seventy-year-old mother in the face.
At trial, Carpenter testified that he did not hit his mother
and that his mother was injured by accident when he leaned on
a table, causing one end to fly up and strike her in the
cheek. Carpenter also testified that his mother was confused
about what happened and that her mental health had been
deteriorating in recent years.
trial began on a Thursday morning and the jury began
deliberating on the case around 11:00 a.m. the following day
(Friday). At 4:15 p.m., approximately five hours into its
deliberations, the jury sent a note to the judge stating,
"We are hung."
trial judge did not notify the parties of the jury's note
or of their reported status. Instead, the judge engaged in a
series of ex parte written communications with the jury. The
exact timing of these communications is slightly unclear
because the communications were written on the same sheet of
paper and only some of the communications were properly
time-stamped. Here is the sequence of communications, as best
we can tell.
p.m., the jury sent its note stating, "We are
hung." At 4:19 p.m., the judge returned the note with a
handwritten response stating "[d]o you think taking the
weekend off [and] coming back fresh on Monday may help your
progress?" The jury appears to have responded to the
judge's question with the statement "We will
the jury did not time-stamp this response, and because the
record does not otherwise indicate when it occurred, it is
possible that the jury's statement "We will
stay" was sent at the same time as its response to the
judge's later 4:34 p.m. communication. In either case,
however, our analysis of the judge's ex parte
communications remains the same. We nevertheless take this
opportunity to remind ...