Opinion
Court of Appeals No. A-12503 No. 6879
06-24-2020
CHRISTOPHER PANAMARIOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KO-12-00002 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge. Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Christopher Panamarioff was convicted by a jury of one count of first-degree sexual assault for anally penetrating M.J. without M.J.'s consent. After the jury returned its verdict, Panamarioff filed a motion for a new trial, which the superior court denied. In this appeal, Panamarioff renews two of the claims rejected by the trial court — that juror misconduct and an improper playback procedure denied him the right to a fair trial. For the reasons explained in this opinion, we affirm Panamarioff's conviction.
AS 11.41.410(a)(1).
Factual and procedural background
According to the trial testimony of M.J., she was sexually assaulted in three separate incidents on March 8, 2011. M.J. told the jury that, on that date, she and her friend Priscella Kelly spent an evening in a trailer drinking and playing cards with three friends of Kelly's — Panamarioff, Jeremy Rogers, and Marshall Van Nice. Panamarioff and Rogers are Kelly's cousins, but M.J. did not know Panamarioff, Rogers, or Van Nice.
Late in the evening, Kelly and Van Nice retreated to separate rooms, leaving M.J., Panamarioff, and Rogers alone. M.J. walked outside in an attempt to leave, but Rogers followed her and sexually assaulted her — by penetrating both her mouth and her anus with his penis.
After being sexually assaulted by Rogers in a vehicle parked outside the trailer and a second time inside the trailer, M.J. went into the bathroom to clean herself. Upon exiting the bathroom, she ran into Panamarioff. According to M.J., Panamarioff then pulled her into a bedroom and sexually assaulted her — also by penetrating her mouth and her anus with his penis.
Later that night, M.J. called her ex-husband and told him what had happened. He contacted the troopers, who conducted an investigation.
A grand jury returned an indictment charging both men with sexual assault. Rogers was charged with four counts of first-degree sexual assault and Panamarioff was charged with two counts of first-degree sexual assault. Rogers accepted a plea agreement with the State, but Panamarioff proceeded to trial.
At trial, both M.J. and her ex-husband testified. M.J.'s memory of the sexual assaults was hazy, but her ex-husband testified that during M.J.'s phone call to him, M.J. described the three sets of sexual assaults.
During the trial, the State called M.J.'s friend, Kelly, as a witness. Before she testified, Kelly whispered to the judge that she knew one of the jurors, who was identified as S.D. The court then excused the jury to conduct voir dire of Kelly and S.D. After this mid-trial voir dire, neither Panamarioff nor the State asked the court to take any action, and Panamarioff's attorney stated his belief that S.D. could be a fair and impartial juror despite being acquainted with Kelly.
After the mid-trial voir dire, Kelly testified. She told the jury that she remembered playing cards and drinking with M.J., Panamarioff, Rogers, and Van Nice, and that she later went into the bedroom to take a phone call that lasted over an hour. She stated that she did not hear any "sex noises" or yelling in the trailer and that if she had heard anything that sounded like an assault occurring that night, she would have done something to protect M.J.
The jury found Panamarioff guilty of one count of first-degree sexual assault for anal penetration but not guilty of first-degree sexual assault for oral penetration.
After the verdict was returned, Panamarioff filed a motion for a new trial. In the motion, Panamarioff made two claims that he now renews on appeal. First, he claimed that he was denied a fair trial because S.D. committed juror misconduct by failing to inform the court that he knew Kelly, and by later telling the other jurors about his personal opinions of her. Second, Panamarioff claimed that he was denied a fair trial because the court failed to notify him of the jury's playback requests. Panamarioff argued that, if he had been informed, his attorney would have objected to the jury listening to only part of M.J.'s testimony rather than to her entire testimony.
The State opposed Panamarioff's motion and the court held an evidentiary hearing. Four witnesses testified at the hearing: S.D., another juror, Kelly, and an investigator who worked for Panamarioff's attorney. After hearing this testimony and considering the arguments of counsel, the court denied the motion for a new trial. This appeal followed.
Why we conclude that the trial court did not err in denying Panamarioff's motion for a new trial based on a juror's knowledge of one of the witnesses
Panamarioff first claims that the juror identified as S.D. engaged in juror misconduct that deprived him of a fair trial. According to Panamarioff, S.D. failed to inform the court that he knew a State's witness, Kelly, and that he was biased against her. Panamarioff alleges that S.D. told the other jurors about his personal opinions of Kelly, depriving Panamarioff of his right to a fair trial before an impartial jury.
Generally, when a verdict is challenged based on allegations of juror misconduct, the "verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty [that] deprives a party of a fair trial."
West v. State, 409 P.2d 847, 852 (Alaska 1966); see also Fickes v. Petrolane-Alaska Gas Serv., Inc., 628 P.2d 908, 910 (Alaska 1981).
In this case, during jury selection, the prospective jurors were informed of the witnesses who would testify at the trial, and Kelly was one of the witnesses named. When S.D. was asked whether he knew any of the witnesses, he said that he did not. Neither attorney questioned his response, and S.D. was ultimately chosen to sit on the jury.
However, as we have explained, just before Kelly took the stand, she alerted the judge that she and S.D. knew each other. Based on this information, the trial judge held a voir dire examination of Kelly and S.D. During this voir dire, Kelly stated that S.D. knew her well because they both had lived in the village of Ouzinkie for many years. Kelly said that she had not had any "bad run-ins" with S.D., and that there was no "bad blood" between them. She also said that S.D. knew that she had been in trouble with the law.
During the voir dire of S.D., S.D. said that he knew Kelly from living in Ouzinkie for approximately seventeen years. He said that he had not seen her in several years and that he could neutrally assess her credibility.
Panamarioff's attorney did not question S.D.'s answers, nor did the attorney ask the trial court to take any other action regarding this matter. Instead, the attorney commented that it seemed to him that S.D. could be fair and impartial. The trial thus continued with S.D. on the jury.
Panamarioff's claim of juror misconduct is based on information he obtained after the trial. When a defense investigator conducted post-verdict interviews with several jurors, the investigator asked one of these jurors — M.K. — whether somebody on the jury knew Kelly. M.K. responded that one of the jurors (she could not remember which one) "did know of [Kelly]." When the investigator asked M.K. whether this juror told the others that Kelly had a reputation for drinking and for being a troublemaker, M.K. agreed that this was what the juror had said.
Based on M.K.'s statements to the defense investigator, Panamarioff's attorney filed a motion for a new trial, and the trial court held an evidentiary hearing on the motion. At that hearing, M.K. testified that during jury deliberations, S.D. said in passing that he knew Kelly and that he knew she was "trouble."
Kelly and S.D. also testified for the second time at this post-trial evidentiary hearing, and both of them gave testimony that differed from what they told the judge during the mid-trial voir dire.
Kelly testified that her family and S.D.'s family did not "really get along." She explained that this was due to a fight that she had with S.D.'s father at some point in the past, when she was working for a housing program in Ouzinkie. According to Kelly, she "disrespected" S.D.'s father by yelling at him even though he was "a little older." Kelly testified that she did not know for certain whether S.D. had any knowledge of the incident, but she believed that "everybody" knew about it because it was "pretty loud." Kelly did not dispute S.D.'s claim that his only contact with her was over a decade ago. She explained that she and S.D. did not hang out or socialize.
For his part, S.D. acknowledged that he did not inform the court of his prior knowledge of Kelly during jury selection, but he suggested that this may have been because he did not "read the names [of the prospective witnesses] real good." S.D. also told the court that, although he was acquainted with Kelly from living in Ouzinkie, he did not consider himself to "know" her.
S.D. testified that he was aware that Kelly had been in trouble with the law, but he did not consider this to be "negative information." He also testified that he did not have any ill will toward Kelly's family. When Panamarioff's attorney asked why S.D. did not disclose that he knew that Kelly had a "bad reputation," S.D. answered that he did not consider Kelly's run-ins with the law to amount to a bad reputation.
Later, S.D. told the court that this was his "first time even being in court. . . . It's a learning process." He subsequently assured the court that he understood his duty and role as a juror and that he tried to be as honest as possible.
In Alaska, "[a] two-part inquiry governs claims of juror misconduct: (1) whether the evidence establishes a serious violation of the juror's duty and, if so, (2) whether the violation deprived the complaining party of a fair trial."
Liddicoat v. State, 268 P.3d 355, 357 (Alaska App. 2001).
With regard to the first part of this inquiry, a party may show a "serious violation" of the juror's duty by establishing serious misconduct such as "fraud, bribery, forcible coercion or any other obstruction of justice." In particular, "[w]hen a juror knows a party or a witness, and is questioned about this information in voir dire, but fails to disclose this information, that conduct may amount to an obstruction of justice."
West, 409 P.2d at 852.
Liddicoat, 268 P.3d at 357; see, e.g., Fickes, 628 P.2d at 911 (holding that the "failure by a juror to acknowledge an acquaintance with a witness, and then to argue the probability of a fact to co-jurors based on that acquaintance, that is, based on evidence outside the record, constitutes an obstruction of justice"); Swain v. State, 817 P.2d 927, 935 (Alaska App. 1991) (concluding that it is "an obstruction of justice for [a juror] not to disclose her friendship with [the victim] or the fact that she had talked to [the victim] about the [crime]"); Lindeman v. State, 244 P.3d 1151, 1160-61 (Alaska App. 2001) (holding that it is not a serious violation of a juror's duty when a juror knew a potential witness that the defendant claimed was actually the assailant and that witness never testified at the trial).
The second part of the test — whether the violation deprived the complaining party of a fair trial — requires a court to consider three factors: (1) whether the juror would have been challenged had the juror disclosed the relevant information; (2) whether the misconduct went to a collateral or a material issue; and (3) whether the probable effect of the misconduct was prejudicial.
Fickes, 628 P.2d at 911; see also Swain, 817 P.2d at 930-31 (adopting the Fickes considerations in a criminal context).
In this case, the court determined that Panamarioff had not satisfied either part of the two-part test. The court found that S.D. had not committed a "serious violation" of his duty as a juror and that none of the three prejudice factors were present.
In determining that S.D. had not committed serious misconduct under the first part of the test, the trial court credited S.D.'s testimony that he had "extremely limited knowledge" of Kelly and that S.D.'s knowledge of Kelly did not impact his ability to be an impartial juror. It found that S.D.'s failure to disclose his "minimal recognition" of Kelly was not a conscious attempt to withhold information but rather was "due to his complete lack of understanding that it could be relevant."
We conclude that the record supports the court's factual findings with regard to the first part of the test. While it is true that Kelly's testimony at the post-trial evidentiary hearing was that her family did not get along with S.D.'s family because of an argument she had with S.D.'s father, she testified quite differently at the mid-trial voir dire. During the mid-trial voir dire, Kelly told the court that she and S.D. stop and say hi to each other when they see each other and that there was no "bad blood" between them. Additionally, there was no evidence presented at either hearing that S.D. knew about the alleged argument between Kelly and S.D.'s father. In fact, S.D. consistently testified that he had very limited knowledge of Kelly.
In determining that Panamarioff was not denied a fair trial under the second part of the test, the court first found that Panamarioff's attorney would not have challenged S.D. even if S.D. had disclosed the additional information about his knowledge of Kelly during the original voir dire. In so finding, the court noted that Panamarioff's attorney did not challenge S.D. as a juror during the mid-trial voir dire of S.D. and Kelly. The court reasoned that because S.D.'s testimony at the post-trial evidentiary hearing was essentially the same as the information he revealed during the mid-trial voir dire, the defense attorney would not have challenged S.D. even if the attorney had known this additional information prior to the conclusion of the trial. Additionally, the court found that S.D.'s "cursory" statement about Kelly during deliberations was collateral to the issues litigated at trial, and that there was no reasonable possibility S.D.'s statement affected the jury's verdict.
We further note that during Kelly's trial testimony, she acknowledged that she had been drinking heavily and admitted that her memory of the evening was not complete. She also admitted that she had lied to the trooper who initially interviewed her and that, at the time of trial, she was in custody serving a sentence for a criminal offense unrelated to Panamarioff's case. As a result, all of the jurors were well aware of Kelly's legal troubles, her poor memory of the evening, and her intoxication. We therefore conclude that the record supports the trial court's finding that the information about Kelly from S.D. could not have had any significant impact on the jurors' view of Kelly's testimony.
For these reasons, we conclude that the record amply supports the court's finding that S.D. did not commit a serious violation of his duty as a juror and that none of the three prejudice factors were present. Because S.D.'s conduct, viewed objectively, did not deprive Panamarioff of a fair trial, we conclude that the court did not abuse its discretion in denying Panamarioff's motion for a new trial based on alleged juror misconduct.
Why we conclude that the trial court did not err in denying Panamarioff's motion for a new trial based on the circumstances of its response to the jury's request for playback of a witness's trial testimony
Immediately after the jury was excused to deliberate, Panamarioff waived his right to be present during playbacks of witness testimony, but his attorney asked to be given notice of what testimony the jury requested to have replayed. During the jury's deliberations, the jury sent several notes to the judge. In their first note, the jury asked to listen to M.J.'s testimony. Later, the jury sent a second note asking, "Also, is there a means to determine the portion of the testimony we are interested in? We do not wish to listen to the entire recording." The judge responded, "One way to do this is to tell us if you want to hear her direct, cross, redirect, or recross. It may be more difficult if you wanted to hear her testimony on certain points or issues." The attorneys both approved this response.
The following morning, the jury entered the courtroom and started listening to M.J.'s testimony, but the jury stopped the playback before the end of M.J.'s direct testimony, never listening to M.J.'s testimony on cross-examination. The jury reached a verdict approximately one hour later.
In Panamarioff's motion for a new trial, he argued that while he waived his right to be physically present for playbacks, he did not give up his right to be notified about what playbacks occurred. According to Panamarioff, if he had been informed that the jury listened to M.J.'s direct testimony but not the cross-examination, he would have asked the court to require the jury to listen to both portions of her testimony.
Panamarioff now makes the same claim on appeal, but this claim has no merit for two reasons. First, we note that Panamarioff waived any right to claim on appeal that the jury was improperly permitted to listen to only a partial replay of M.J.'s testimony. At trial, Panamarioff waived his right to be present for playbacks. It is true that he reserved his right to be notified of any playback request, but he was notified of every communication between the jury and the court, including the jury's question about partial playbacks. And he explicitly agreed to the court's response telling the jury that it could narrow the playback by only listening to "direct, cross, redirect, or recross" examination.
Second, "whether or not to replay testimony for the jury is a matter within the sound discretion of a trial court." A party has no right to demand that the jury hear playback it did not request. And although a trial judge may inquire if the jury would like to hear additional or different testimony,
Price v. State, 437 P.2d 330, 333 (Alaska 1968).
Price, 437 P.2d at 334 (citing State v. Wolf, 207 A.2d 670, 675-76 (N.J. 1965)); see also Ripley v. State, 590 P.2d 48, 51-52 (Alaska 1979) (rejecting the defendant's argument that the trial court failed to exercise its discretion when it did not require the jury to rehear a witness's cross-examination when the jury only requested playback of that witness's direct testimony); Mullins v. State, 1981 WL 605498, at *7 (Alaska App. July 20, 1981) (unpublished) (concluding it was within the trial court's discretion to playback only what the jury requested); Shetters v. State, 1994 WL 16196525, at *5 (Alaska App. Aug. 10, 1994) (unpublished) (acknowledging "that certain evidence, viewed in isolation, may suggest a false picture of the whole," but recognizing a "risk that the trial judge, by requiring the jury to rehear testimony they have not requested, will tacitly communicate the judge's belief that the jury has overlooked crucial evidence — thus leading the jurors to give undue prominence to the portions of the testimony replayed by order of the trial judge").
it must be assumed [that jurors] have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement. . . . [The judge] should not burden a jury with unnecessary [playback] they do not indicate a need to hear,
and it is not error to decline to [play] further portions of the evidence simply because a party so demands.
Price, 437 P.2d at 334 (quoting Wolf, 207 A.2d at 675-76).
Here, the court correctly allowed the jury to determine which portion of the testimony it wished to hear, including providing instructions on how to designate a specific portion if it chose not to listen to the entire recording. We perceive no error in the court's denial of Panamarioff's motion for a new trial based on the circumstances of its response to the jury's request for playback.
Conclusion
The judgment of the superior court is AFFIRMED.