JACE H. CUNNINGHAM, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court Trial No. 1PE-12-133 CR, First
Judicial District, Petersburg, William B. Carey, Judge.
Orlansky, Reeves Amodio LLC, Anchorage, for the Appellant.
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. [*]
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,  arguing that the judge committed
reversible error when he communicated with the jury about
their deliberations outside the presence of defense counsel.
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
facts and prior proceedings
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.
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.
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.
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.
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.
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). 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.
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.
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.
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.
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
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.
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
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. The defense attorney agreed to do so. The
defense attorney was scheduled to land in Ketchikan sometime
after 5:00 p.m.
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
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.
judge and Cunningham were present in the Petersburg courtroom
for the hearing. The prosecutor participated in the ...