Opinion
Court of Appeals No. A-12858 No. 6742
12-05-2018
SHANE LEE DOUGHERTY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Amy K. Welch, Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4DJ-16-035 CR MEMORANDUM OPINION Appeal from the District Court, Fourth Judicial District, Delta Junction, Paul R. Peterson, Magistrate Judge. Appearances: Amy K. Welch, Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge MANNHEIMER.
Shane Lee Dougherty appeals his conviction for driving under the influence. Dougherty's claim on appeal arises from an incident that occurred late in his trial.
AS 28.35.030(a).
Seven jurors had been selected in Dougherty's case — with the idea that, at the conclusion of the trial, the court would randomly designate one of these seven jurors as the "alternate". This juror would then be dismissed, and the remaining six jurors would decide Dougherty's case.
Toward the end of Dougherty's trial, but before an alternate juror had been designated, one of the seven jurors informed the court that her mother had just been hospitalized. The judge apprised the attorneys of this situation and suggested that this juror could be designated as the alternate, and then be excused. The judge asked the attorneys for their position on this matter — but the judge made a mistake by doing this in open court, in the presence of the entire jury, instead of bringing this matter to the attorneys' attention outside the jury's presence.
Dougherty claims that, because this matter was discussed in the entire jury's presence, his trial attorney felt coerced to accede to the judge's suggestion, rather than sticking with the original plan to have one juror excused at random. And because of this, Dougherty claims that he is entitled to a new trial.
We reject this claim for four reasons.
First, the record shows that Dougherty's attorney failed to preserve an objection to the trial judge's action. True, the attorney made a passing comment that he objected to discussing this matter in the presence of the jury — but then, without waiting for a ruling on his objection, and without seeking the trial judge's permission to address the juror, the defense attorney proceeded to question the juror about whether she wished to be excused.
In response to the defense attorney's questions, the juror answered that she would rather be at the hospital with her mother. Then she added, "But I'll stay here if it's needed. I'll just go if it's ..." At that point, the juror began to cry, and her words became indiscernible. In response, Dougherty's attorney declared, "That's it, Your Honor. Your Honor, we'll consent."
Because Dougherty's attorney began questioning the juror in front of the entire panel, without waiting for the trial judge to rule on his objection that this questioning should be done in private, the attorney waived this claim of error.
To preserve a claim for appeal, it is not enough for an attorney to mention an objection in passing and then proceed without obtaining a ruling. Rather, the attorney must insist that the trial judge issue a ruling on the attorney's request for relief. The record shows that Dougherty's attorney did not do this. Accordingly, Dougherty's claim of error is not preserved for appeal.
Snowden v. State, 352 P.3d 439, 444-45 (Alaska App. 2015).
Kenai Chrysler Center, Inc. v. Denison, 167 P.3d 1240, 1262 (Alaska 2007).
Our second reason for rejecting Dougherty's claim of error is based on what occurred after the judge realized that he had made a mistake. While the defense attorney was questioning the juror, the trial judge had time to digest the defense attorney's fleeting objection. The judge interrupted the questioning of the juror to acknowledge (in front of the entire jury) that the judge and the attorneys should be discussing this matter in private, and the judge apologized to the attorneys. But the defense attorney made no response to the judge's apology. Instead, the attorney waited until the questioning was over and the juror had been excused from further service. Then the defense attorney moved for a mistrial.
Before ruling on the defense attorney's motion, the trial judge researched the case law dealing with the question of when to grant a mistrial, and the judge ultimately concluded that the error could be corrected with a curative instruction and an accompanying poll of the jurors.
The judge's curative instruction read:
Before sending the jury to deliberate, I raised the issue of whether all parties would agree to allow Juror Number 1 to be excused because of a medical issue of a close family member. It was improper of me to raise such an issue, without warning, in open court, and for that, I sincerely apologize. You may not consider any reactions to or answers given to the question I proposed in any way. Do not speculate about why any party or attorney reacted or answered in the way they did. Do not even discuss it in your deliberations.
On appeal, Dougherty claims that this curative instruction (and the judge's polling of the jurors) was insufficient to cure the error. But Dougherty has not shown that the judge abused his discretion when he settled on this alternative remedy.
Our third reason for rejecting Dougherty's claim of error is that Dougherty's trial attorney never asserted that his actions or his decision would have been any different if he had been able to question the juror outside the presence of the other jurors. There is nothing in the record to suggest that Dougherty's attorney would have refused to consent to the juror's excusal if the attorney could have done so outside the presence of the other jurors.
Finally, we reject Dougherty's claim of error because the trial court's decision to excuse the juror did not prejudice Dougherty's right to a jury trial.
Here, seven jurors emerged from the jury selection process. Dougherty had accepted all seven jurors, with the understanding that, just before deliberations began, one of them would be selected at random to be excused from further service. Although the designation of the alternate juror did not occur at random as originally anticipated, Dougherty has not offered any reason to believe that any of the six jurors who decided his case were unfair.
Cf. Minch v. State, 934 P.2d 764, 769-770 (Alaska App. 1997), quoting the Alaska Supreme Court's decision in Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 763 n. 46 (Alaska 1992): "A party has a right to an impartial jury, but not to have certain individuals on the jury[.]" --------
Thus, even assuming that Dougherty's trial attorney would have objected to the excusal of the juror if he could have done so outside the presence of the jurors, this fact alone would not be sufficient to demonstrate that Dougherty was prejudiced by the trial judge's failure to hold the proceeding outside the presence of the jurors.
Conclusion
The judgement of the district court is AFFIRMED.
The judge then polled the jurors, asking them if they believed that their ability to be impartial had been affected by what had occurred. All of them answered no.