Coffin v. State

          Appeal from the Superior Court, Second Judicial District, Trial Court No. 2KB-13-379 CR, Kotzebue, Paul A. Roetman, Judge.

          Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

          Eric A. Ringsmuth, 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.

         Jerry L. Coffin was charged with third-degree sexual assault and first-degree harassment.^[1] When the jury retired to deliberate on these charges at Coffin's trial, the trial court excused, but did not discharge, the one remaining alternate juror. The court also instructed the alternate juror that he should not discuss the case with anyone because he could still be recalled to serve on the jury if one of the regularly seated jurors became sick or otherwise unavailable to serve. This procedure violated Alaska Criminal Rule 24(b), which requires the trial court to discharge any remaining alternate jurors once the jury retires to consider its verdict.^[2] However, neither party objected to the judge's retention of the alternate juror.

         After approximately three and one-half hours on the first day of deliberations, the jury's deliberations were suspended because one of the jurors had to address child care issues. By the time that first juror returned, a different juror required emergency medical care. Deliberations were therefore suspended for the remainder of the day and the jury was sent home with instructions to return the next morning.

         Because the second juror's medical issues had not been resolved by the following morning, the trial court summoned the alternate juror to court and confirmed that the alternate juror was still available to deliberate. The trial court subsequently excused the juror who was ill, and replaced that juror with the alternate juror. The trial court also instructed the newly reconstituted jury to "reboot" and "restart their deliberations" because the alternate juror had not been part of its earlier deliberations. Again, neither party objected to this procedure or voiced any concerns with the court's instructions.

         After the newly reconstituted jury retired to deliberate, the trial judge commented to both attorneys (outside the presence of the jury) that he was sure that neither of the attorneys "would like to redo [this trial] again, so ... ." The defense attorney responded, "Right." The judge also noted that this was the first time that he had had to use this procedure, and he was glad that it had worked.

         Later that day, after approximately five hours of deliberations, the jury returned a guilty verdict on the third-degree sexual assault charge. However, the jury was not able to reach a verdict on the first-degree harassment charge, and that charge was later dismissed by the State.

         Coffin now appeals, claiming that the trial court committed plain error when it replaced a regularly seated juror with an alternate juror after deliberations in the case had already begun.

         Coffin is correct that the procedures used in this case were improper under Alaska law. We addressed this very issue in Plate v. State, a case in which the trial judge substituted an alternate juror for a regularly seated juror who had died after the first day of deliberations.^[3] In Plate, we held that "Alaska Criminal Rule 24(b)(2) does not authorize a trial judge to substitute an alternate juror for a regular juror once deliberations have begun."^[4] We also concluded that the trial court in Plate committed reversible error when it authorized such a substitution over the defense attorney's objection.^[5]

         We also made clear in Plate, however, that we were not deciding whether all violations of Rule 24(b)(2) would necessarily result in a deprivation of due process or infringement of the defendant's constitutional right to a jury trial.^[6] Instead, our decision to reverse Plate's conviction rested on the particular facts of that case, which included the defense attorney's objection to the procedure and the trial court's failure to use proper procedural safeguards.^[7]

         Thus, Plate did not answer the question presented by the present case - whether a violation of Rule 24(b)(2) that is not objected to by the defense attorney (and, arguably, tacitly agreed to by the defense attorney) ...