GLEN OGLETREE v. STATE OF ALASKA (2010)

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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

In Ogletree v. State,¹ we concluded that the superior court erred in ordering Ogletree shackled during his trial proceedings.   We therefore remanded Ogletree's case to the superior court to allow the parties to litigate whether the jurors observed the shackling, or whether Ogletree might otherwise have been prejudiced by this illegal shackling.²

On remand, Superior Court Judge Eric Smith conducted two evidentiary hearings on this issue.   At the first evidentiary hearing, Judge Smith took testimony from the trial attorneys.   The lead prosecutor testified that he “[did not] recall anything happening during any of the core proceedings, or during any of the breaks, that would indicate to [him] that [any] of the jurors saw the restraints or focused on the restraints.”   The assistant prosecutor testified similarly.   The defense attorney had no recollection of the proceedings.

This evidentiary hearing took place in the same courtroom in which Ogletree's trial was held, and Judge Smith arranged for Ogletree to be shackled and seated at the same table at which he was seated during his trial, with an opaque skirting covering the front of the table, as it was during the trial.   Judge Smith walked around the courtroom and observed Ogletree from several different spots, to determine if it was possible to see the shackles.

First, the judge sat in the jury box.   Judge Smith found that, from the jury box, the skirting around Ogletree's table completely blocked the view of Ogletree's feet.   The judge also found that, with one exception, Ogletree had remained seated behind this skirting at all times when the jurors were in the courtroom.   The one exception was when Ogletree took the stand at his trial-but he was not shackled during that time.   Based on all of this, Judge Smith concluded that the jurors could not have seen Ogletree's shackles during the trial.

Next, Judge Smith sat and stood in the various places within the courtroom that had been occupied by the group of potential jurors during jury selection.   Judge Smith found that there were few places from which a potential juror could have seen the shackles during jury selection-and that, even from these few places, a potential juror could have seen the shackles only if the juror was specifically looking for them.  (Ogletree's shackles were covered with a black cloth which hid them and muffled any sounds that they might have made.   In addition, the table where Ogletree sat had skirting around it.)

Judge Smith acknowledged that there were a few places where a member of the jury venire could potentially have seen the shackles if the potential juror had been standing and looking directly at them:

The Court:  If I stand directly behind Mr. Ogletree ․ just to the right of the first seat, and I look directly to the floor, I can see some silver glinting next to his shoe.   It's pretty dark down there, but I do see some silver.   When I am sitting here, [I cannot] see anything except the very top of the counsel table and the tip top of the chairs.   So, in order to see Mr. Ogletree's feet, it would be necessary for somebody to be standing directly here.   If I go sit on the far left in the front row, ․ I can only see the top of the table.   If I am standing here, and I bend over and look really hard, I can see some glint of silver under the chair.   But it requires a very careful view to see it from that far left chair.   And I ․ had to bend way down and get a really good angle on it.

In addition, because Ogletree stood up when the jury venire entered the courtroom, Judge Smith asked Ogletree to stand, and then the judge walked into the courtroom, simulating how the jury venire had entered.   Here are the judge's observations:

The Court:  As I walk in, I cannot see Mr. Ogletree's feet, and I can only see them when I reach the bar, the swinging door.   The first time I can see his feet from my vantage point is just in front of the second row of chairs.   I can see his feet, I can see the shackles if I'm looking directly at them as I walk ․ to the swinging gate․  As I walk towards these seats, I can see them quite clearly, and I can see them until I get to the far left in the front lefthand row of seats․  If somebody came in and happened to be looking at Mr. Ogletree's feet, they could see them while he's standing waiting for the jury․  Now I'm walking through the swinging gate.   If I look down as I walk up, I can see them.

Judge Smith also noted that he could see Ogletree's feet from the seats on the right-side front row of the public seating area.

Judge Smith held a second evidentiary hearing to determine whether the people who sat as jurors in Ogletree's case had, in fact, observed his shackling during jury selection or at any other time during the trial.   At this second evidentiary hearing, Judge Smith interviewed seven of the twelve jurors who decided Ogletree's case.   These seven jurors were interviewed one at a time, out of each other's presence.

Judge Smith asked each juror whether he or she had seen Ogletree's feet during the trial.   Five of the jurors said “No,” and two jurors stated that they remembered seeing Ogletree's feet when he testified-i.e., when he was not shackled.   All seven of the jurors stated that they did not know whether Ogletree was wearing leg shackles during the trial, and that this subject had not come up during jury deliberations.

Based on this testimony, and based on the observations he had made at the first evidentiary hearing, Judge Smith concluded that none of the jurors at Ogletree's trial had seen his shackles or had otherwise become aware of the shackles, and that no discussion of shackling took place among the jurors.³  Based on these findings of fact, Judge Smith concluded that the State had proven beyond a reasonable doubt that Ogletree was not prejudiced by the shackling.

In his brief to this court, Ogletree argues that, despite Judge Smith's findings, there remains at least some possibility that the shackling had an impact on the jury's verdict.   Ogletree points out that only seven of the twelve jurors testified at the evidentiary hearing, and he argues that Judge Smith could not reasonably draw any conclusions about what the other five jurors would have said if they, too, had testified.

Although it is true that Judge Smith did not hear the testimony of all twelve jurors, the judge was in much the same position that trial jurors find themselves when they hear the testimony of some, but not all, of the witnesses to an event.   In situations like that, the finder of fact must reach a conclusion based on the testimony that was presented, given the burden of proof that applies to the proceeding.

Here, Judge Smith heard from a majority of the jurors who decided Ogletree's case.   These seven jurors were unanimous in declaring that they were not aware that Ogletree was shackled during the trial, and that this subject was not discussed by any of the twelve jurors during deliberations.   The testimony of the seven jurors was corroborated by the physical observations that Judge Smith made during the first evidentiary hearing, and it was further corroborated by the testimony of the attorneys at that earlier hearing.

Moreover, Judge Smith was aware that it was the State's burden to prove a lack of prejudice beyond a reasonable doubt, and he applied that standard of proof when he found that Ogletree's jurors neither observed nor discussed the shackling.

As an appellate court, we are authorized to reverse Judge Smith's findings of fact only if we are convinced that those findings are clearly erroneous.   Here, Judge Smith conducted a thorough inquiry, and the evidence fully supports his conclusions.   Although one could speculate that one or more of the remaining five jurors might offer conflicting testimony, there is little in the record to suggest that they would give conflicting testimony.

Accordingly, we uphold Judge Smith's finding that Ogletree was not prejudiced by the illegal shackling because none of the jurors saw or discussed the shackling.   Based on this finding, the judgment of the superior court is AFFIRMED.

FOOTNOTES

FN1. Alaska App. Memorandum Opinion & Judgment No. 5508 (Aug. 19, 2009), 2009 WL 2568533..  FN1. Alaska App. Memorandum Opinion & Judgment No. 5508 (Aug. 19, 2009), 2009 WL 2568533.

FN2. Id. at *1..  FN2. Id. at *1.

FN3. Under Alaska Evidence Rule 606(b), it is generally impermissible to question jurors for the purpose of impeaching the jury's verdict.   But the parties have not raised this issue, so we do not address it..  FN3. Under Alaska Evidence Rule 606(b), it is generally impermissible to question jurors for the purpose of impeaching the jury's verdict.   But the parties have not raised this issue, so we do not address it.

COATS, Chief Judge.