Cunningham v. State

         Appeal from the Superior Court Trial No. 1PE-12-133 CR, First Judicial District, Petersburg, William B. Carey, Judge.

          Susan Orlansky, Reeves Amodio LLC, Anchorage, for the Appellant.

          Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

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

          OPINION

          ALLARD JUDGE.

         Jace H. Cunningham was convicted of two counts of third-degree assault, four counts of fourth-degree assault, and other misdemeanor offenses based on a series of altercations with multiple police officers who had responded to reports that Cunningham was suicidal and in possession of a firearm. On appeal, Cunningham challenges his two third-degree assault convictions, ^[1] arguing that the judge committed reversible error when he communicated with the jury about their deliberations outside the presence of defense counsel.

         For the reasons explained here, we conclude that the trial court's communications with the jury constituted ex parte communications with the jury in violation of Cunningham's constitutional rights. We also conclude that the court's error was harmless beyond a reasonable doubt as to one of the third-degree assault convictions (Count VI) but that reversal is required on the other third-degree assault conviction (Count V).

         Background facts and prior proceedings

         On October 4, 2012, Jace Cunningham contacted his friends to say goodbye and to tell them that he planned to kill himself. Cunningham then drove several miles down Frederick Point Road outside of Petersburg with beer and a loaded rifle. Cunningham's friends went to talk to Cunningham, but were unable to dissuade him from his suicide plan. After leaving Cunningham at his request, the friends called the Petersburg Police Department to report Cunningham's suicide plan and his approximate location. The police department also received two other calls about Cunningham that evening - one from a Petersburg resident who heard a gunshot near Cunningham's parked car along Frederick Point Road, and one from Cunningham himself, asking for help.

         In response to these calls, five Petersburg police officers and two mental health workers set out to make contact with Cunningham. The officers created a roadblock several hundred yards from where they believed Cunningham was located. The mental health workers and three of the police officers positioned themselves around and behind the roadblock, while the other two police officers positioned themselves on the side of the road in front of the roadblock. By the time the roadblock was set, it was dark.

         In the meantime, Cunningham had decided to abandon his suicide plan and return to Petersburg. Cunningham began driving back along Frederick Point Road, unaware of the officers and the roadblock. After rounding a curve, Cunningham saw the roadblock, and he had to brake suddenly and swerve to avoid hitting a police vehicle. Cunningham's car landed in the roadside ditch near the police roadblock. Cunningham was able to reverse the car out of the ditch, but in his attempt to turn around, he drove the car into the ditch on the opposite side of the road.

         The officers later reported that, while Cunningham's car was in the first ditch or while he was backing up, Cunningham fired two shots from his rifle. Officer Pitta-Rosse, the officer in the trees closest to the ditch, reported seeing what he believed was a muzzle flash. Four other officers reported hearing noises that they believed were gun shots. Because of the darkness, the officers did not know where the rifle was pointed when it was fired. Cunningham later testified at trial that he could not see any of the officers and did not know how many were there. Cunningham also denied firing his gun.

         At some point after his truck got stuck in the second ditch, Cunningham got out of his vehicle and walked toward the roadblock holding his rifle. Sergeant Heidi Agner called out to Cunningham and tried to persuade him to put his gun down and submit to being taken into custody. Cunningham refused to put his gun down. During the resulting standoff, Cunningham twice approached Sergeant Agner with his rifle pointed in her direction. Cunningham also made various threatening statements, including telling Sergeant Agner that he had her "in his scope" and that he could "kill all [of the officers]" before they could hurt him. After about an hour, Cunningham put his rifle down and allowed himself to be taken into custody.

         Cunningham was indicted on six counts of third-degree assault for recklessly placing the officers in fear of imminent serious physical injury by means of a dangerous instrument (the firearm).^[2] Counts I-V were based on the five officers who were put in fear by the two shots fired from Cunningham's car; Officer Pitta-Rosse was the victim identified in Count V. Count VI was based on Cunningham pointing his rifle at Sergeant Agner during the stand-off. In addition to the six third-degree assault counts, Cunningham was also charged with five misdemeanors, including misconduct involving a weapon, driving while intoxicated, refusing a breath test, and criminal mischief.

         Cunningham was tried before a jury in Petersburg. The judge, the prosecutor, and the defense attorney were not from Petersburg and all three had to fly into Petersburg for the trial.

         At trial, Cunningham requested and was granted conditional co-counsel status for the limited purpose of asking his own questions of witnesses after his attorney completed his cross-examination. The court explained to the jury that it was "granting a very limited request on Mr. Cunningham's part to be able to ask some questions himself of the witnesses." Cunningham availed himself of this privilege only once. The court also allowed Cunningham to give his own closing statement after his defense counsel gave the primary argument.

         Cunningham testified in his own defense at trial. Cunningham's defense was mostly focused on the third-degree assault charges. Cunningham testified that he was upset and scared that night and that he never intended to harm anyone but himself. Cunningham also testified that he did not know how many officers were at the scene or where they were located. Cunningham denied firing any shots at the scene.

         Jury deliberations

         Cunningham's trial ended on a Friday and the jury began deliberations that same day. The jury was very active during their deliberations, making numerous requests for playbacks and sending notes asking for clarification of various legal issues.

         On the afternoon of the second day of deliberations (Saturday), the jury sent a written note asking what would happen if it reached a unanimous verdict on some counts, but not on others. The trial judge notified the parties and convened a hearing to discuss the note. Cunningham and the defense attorney were both present. The trial prosecutor was not present because he was en route back to Juneau, but an attorney from his office participated telephonically.

         The jury was brought into the courtroom and asked about the status of its deliberations. The foreperson indicated that they had reached verdicts on "about half the counts, and we're hung up on one count significantly." The trial judge encouraged the jurors to keep working and to reach verdicts on all counts, but the judge told the jurors that "it doesn't go on forever, " and that they should let the judge know if they ultimately could not reach a unanimous verdict on any particular count, and they would then "come in and talk about it." The defense attorney and the prosecutor were in agreement with this approach, and the jurors were excused to continue their deliberations.

         After the jury resumed its deliberations, the defense attorney left to fly home to Ketchikan. The judge asked the defense attorney to call in when his plane landed in Ketchikan.^[3] The defense attorney agreed to do so. The defense attorney was scheduled to land in Ketchikan sometime after 5:00 p.m.

         At some point before the defense attorney's plane reached Ketchikan, the jury informed the bailiff that it had reached verdicts on all but one count. (This communication was apparently made orally and was not properly memorialized in the record.)

         Rather than waiting for the defense attorney's plane to land, the trial judge convened a hearing without the defense attorney present to discuss how to respond to the jury's announcement that it had reached final verdicts on all counts but one and that it was hung on that count. This hearing was held at 4:48 p.m. - approximately twenty minutes before the defense attorney's plane was scheduled to land.

         The judge and Cunningham were present in the Petersburg courtroom for the hearing. The prosecutor participated in the ...