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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JACE H. CUNNINGHAM, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11731 

Trial Court No. 1PE-12-133 CR 

O P I N I O N 

No. 2578 — December 15, 2017 

Appeal from the Superior Court, First Judicial District, 

Petersburg, William B. Carey, Judge. 

Appearances: Susan Orlansky, Reeves Amodio LLC, 

Anchorage, for the Appellant. Donald 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. * 

Judge ALLARD. 

Jace H. Cunningham was convicted of two counts of third-degree assault, 

four counts of fourth-degree assault, and other misdemeanor offenses based on a series 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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,1

 arguing that the judge committed 

reversible error when he communicated with the jury about their deliberations outside 

the presence of defense counsel. 

For the 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 

(Count V). 

Background facts and prior proceedings 

On 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. 

Cunningham does not challenge any of his misdemeanor convictions. 

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In 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. 

In the 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. 

The 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. 

At some 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 

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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. 

Cunningham 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).2 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, 

Cunninghamwas also charged with five misdemeanors, including misconduct involving 

a weapon, driving while intoxicated, refusing a breath test, and criminal mischief. 

Cunningham 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. 

At 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. 

AS 11.41.220(a)(1). 

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Cunningham 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. 

Jury deliberations 

Cunningham’s 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 issues. 

Ontheafternoon ofthesecondday ofdeliberations(Saturday), thejury 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. 

The 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 deliberations. 

After 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 

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landed in Ketchikan.3 The defense attorney agreed to do so. The defense attorney was 

scheduled to land in Ketchikan sometime after 5:00 p.m. 

At some 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 the 

record.) 

Rather 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. 

The judge and Cunningham were present in the Petersburg courtroom for 

the hearing. The prosecutor participated in the hearing telephonically from Juneau. 

At the hearing, the judge acknowledged the defense attorney’s absence and 

stated that he was proceeding without the defense attorney because Cunningham had 

“co-counsel status” and “this is kind of an administrative type of hearing, really.” The 

judge then informed Cunningham and the prosecutor that his plan was to follow Alaska 

Criminal Rule 31(f), which would allow the jury’s verdicts to be sealed and the jury to 

return the next day to formally announce the verdicts once the defense attorney was 

available. 

The judge noted that he might “perhaps briefly discuss” the jury’s status on 

the count on which it was hung. He also noted that “there’s a slight possibility that I 

The judge also asked the defense attorney to call in when the plane stopped in 

Wrangell on the way to Ketchikan. The parties appear to agree that this call happened but 

that the call came before the jury had announced that it had reached final verdicts on all 

counts but one count, on which they were hung. 

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might send [the jury] back to do some more deliberations, but I’m getting the feeling 

that’s not going to be the case, given that the jury has had this case for well over 24 hours 

now and have not been able to reach a verdict.” 

The prosecutor noted that the next day was Sunday and that some of the 

jurors might want to go to church. He therefore suggested that the jurors be brought 

back Monday. The judge indicated that his preference was for the jury to return on 

Sunday because the judge planned to fly home to Ketchikan on Sunday afternoon. 

Nothing more was said about how the count on which the jury was hung should be 

handled. 

At the end of the discussion, the judge asked Cunninghamif he was “good” 

with proceeding without his defense attorney “for this limited purpose.” The judge 

explained to Cunningham that the verdicts would not be announced until the defense 

attorney was available. Cunningham agreed that the judge could proceed without his 

attorney “[j]ust for this limited purpose.” 

The jury was then brought into the courtroom. The judge’s initial action 

was to ask the foreperson if the jury was “hopelessly deadlocked” on the remaining 

count. The foreperson responded “I’m thinking that we’re pretty deadlocked.” The 

judge then advised the jury that he could not take the verdicts on the other counts without 

the defense attorney being present, but that he could seal the verdicts the jury had 

reached, place them in an envelope, discharge the jurors for the day, and then have them 

return briefly on the next day when the defense attorney could participate. 

After informing the jury of this procedure (which was consistent with what 

he told the prosecutor and Cunningham he was going to do), the judge then mentioned 

some additional options for the jury. The judge told the jury that it could continue to 

deliberate that night to try to resolve the case, rather than have to come back the next 

day. The judge noted that the next day was Sunday, and that people might have church 

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or other responsibilities. The judge indicated that his own preference was for the jury 

to come back on Sunday, but that if “any of you can’t make it tomorrow for some reason, 

we can talk about it [a]nd then make a determination whether further deliberations would 

be fruitful.” The judge again noted that the jury had the option of continuing to 

deliberate longer that night, stating: 

Or, you know, the other thing is that we could keep going 

tonight, wait for [Cunningham’s] attorney ... So does anyone 

have a problemwith coming back brieflytomorrow,or would 

you prefer to keep deliberating and wait until later tonight to 

do it? 

The jurors retired at 5:00 p.m. to discuss their options. At 5:05 p.m., the 

jury sent a note asking if the verdicts on Counts I-V “all need to be consistent.” (Counts 

I-V were the third-degree assault charges that involved the five officers who had been 

placed in fear by the two gunshots from Cunningham’s vehicle.) 

At 5:10 p.m., the trial judge (apparently on his own initiative) sent a written 

note to the jury that instructed the jury “to reach verdicts on those counts that they are 

able to do so.” It is not clear from the record why this communication was sent. The 

judge’s note was written in a response to a question the jury had asked earlier that 

morning about what would happen if they were not unanimous as to all counts. But this 

question had already been answered orally by the judge (with input from both counsel) 

at an earlier hearing in which both attorneys were present. There is nothing in the record 

to suggest that the judge notified the parties that he was supplementing the earlier oral 

advisement with a written response. Nor is there any indication that the judge ever made 

the parties aware that this additional communication was sent. 

At 5:13 p.m., the judge reconvened court to address the 5:05 p.m. jury note 

asking whether the verdicts on Counts I-V needed to be consistent. By this time, the 

defense attorney’s plane had landed at the Ketchikan airport and the defense attorney 

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was able to participate in the hearing telephonically. There is nothing in the record to 

suggest that the defense attorney was ever told about the earlier hearing that occurred in 

his absence, or about the substance of the judge’s communications with the jury at that 

hearing. There is likewise nothing in the record to suggest that the defense attorney was 

notified of the judge’s recent sua sponte written communication with the jury. 

At the 5:13 p.m. hearing, the defense attorney and the prosecutor both 

agreed that the court should direct the jury’s attention to Instruction No. 39, which stated: 

“[a] separate offense is charged in each count. You must decide each count separately. 

Your verdict on one count should not control your verdict on any other count.” The 

judge then sent a written communication to the jury to that effect. 

Shortly after receiving the judge’s response, the jury advised the court that 

it had reached verdicts on all counts. 

At 5:40 p.m., court was reconvened and the jurors delivered their verdicts. 

The jury found Cunningham guilty of two counts of third-degree assault — Count V (the 

count related to Officer Pitta-Rosse) and Count VI (the count related to Sergeant Agner). 

The jury acquitted Cunningham of the other four counts of third-degree assault, but 

convicted him of the lesser-included charge of fourth-degree assault in each instance. 

The jury also convicted Cunningham of the five charged misdemeanors. 

This appeal followed. 

Cunningham’s arguments on appeal 

On appeal, Cunningham argues that the court committed reversible error 

when it held a hearing without the defense attorney present in response to the jury’s 

announcement that it had reached verdicts on all but one count. Cunningham 

acknowledges that this ex parte communication with the jury might potentially require 

reversal of all of his convictions, but he makes clear that he is only seeking reversal of 

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the two third-degree assault convictions (Counts V & VI). Cunningham further argues 

that the court committed reversible error by (1) sending a written response to the jury at 

5:10 p.m. without notifying the parties that this response had been sent; (2) failing to 

notify the parties of the jury’s playback requests without securing a waiver of the parties’ 

right to be present on the record; and (3) permitting the jury to communicate informally 

with the court through the bailiff. 

The State implicitly acknowledges that there were irregularities in the trial 

judge’s communications with the jury, but the State argues that none of these 

irregularities require reversal of Cunningham’s third-degree assault convictions. The 

Statealsoargues thatCunninghampersonallywaived his attorney’s presencefor the4:48 

p.m. hearing and that, in any case, the communication with the jury that occurred outside 

the defense attorney’s presence was harmless beyond a reasonable doubt, at least with 

regard to Count VI. 

Did Cunningham knowingly waive his right to counsel at the 4:48 p.m. 

hearing? 

A criminal defendant has both a federal and state constitutional right to be 

present at every stage of his or her trial.4 The right to be present includes the right to 

have counsel present.5 A defendant is entitled to have the “guiding hand of counsel at 

every step in the proceedings against him”6 and “[d]ue process requires that the court 

4 See Wamser v. State, 652 P.2d 98, 101 (Alaska 1982); Jones v. State, 719 P.2d 265, 

266 (Alaska App. 1986); see also Alaska Const. art. I, §§ 1, 7; Alaska R. Crim. P. 38(a); U.S. 

Const. amends. VI, XIV, § 1; Illinois v. Allen, 397 U.S. 337, 338 (1970). 

5 See Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971) (quoting Powell 

v. Alabama, 287 U.S. 45, 68-69 (1932)). 

6 Powell v. Alabama, 287 U.S. 45, 69 (1932). 

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allow the defendant, with the assistance of counsel, input into the information and 

instructions given by the trial judge to the jury during its deliberations.”7 

The State argues that these constitutional principles were not violated in 

Cunningham’s casebecauseCunninghamknowinglywaived his right tohavehis defense 

counsel participate in the 4:48 p.m. hearing. We disagree. 

In order to validly waive his or her right to counsel, a defendant must 

“understand[] the benefits of counsel and knowingly waive[] the same.”8 Here, the 

record shows that Cunningham was not given enough information to knowingly and 

intelligently waive his right to have his attorney present when the judge communicated 

with the jury about its inability to reach a unanimous verdict on one count. The judge 

inaccurately referred to the 4:48 p.m. hearing as “an administrative type of hearing” and 

the judge only asked Cunningham to waive his right to counsel for “this limited 

purpose.” But the ensuing communications with the jury were not merely administrative 

in nature. The judge directly questioned the jury about its status on the one remaining 

charge and the judge responded to the jury’s announcement that it was “hopelessly 

deadlocked” on the one count by giving the jurors various options of how to proceed — 

options that included continuing to deliberate on that count despite their apparent 

deadlock. 

Given these circumstances, we conclude that the record does not support 

the State’s claim that Cunningham knowingly and intelligently waived his right to 

counsel at the 4:48 p.m. hearing. Accordingly, the judge’s decision to proceed with that 

hearing, rather than to wait the twenty or so minutes until defense counsel would be 

7 Newman v. State, 655 P.2d 1302, 1307 (Alaska App. 1982); see also Dixon v. State, 

605 P.2d 882, 887 (Alaska 1980). 

8 McCracken v. State, 518 P.2d 85, 91-92 (Alaska 1974). 

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available, was constitutional error that requires reversal of the challenged convictions 

unless the error is shown to have been harmless beyond a reasonable doubt.9 

The fact that Cunningham had been granted conditional co-counsel status 

earlier in the case does not change this analysis. Cunningham’s co-counsel status was 

limited to cross-examiningtheState’switnessesanddelivering his ownclosing argument 

after his defense counsel had delivered the main closing argument. Cunningham never 

sought, nor was he ever granted, the right to represent himself, and the record is clear that 

his attorney remained the lead counsel.10 Because Cunningham did not give up his right 

to be represented by counsel, his limited co-counsel status did not affect his 

constitutional right to have his attorney present at the hearing where substantive matters 

about the jury’s deadlock on one count were discussed. 

TheStatealsoargues thatCunningham’s counsel “invited”thecourt’s error 

by choosing to fly from Petersburg back home to Ketchikan during jury deliberations. 

According to the State, Cunningham’s attorney put the court in a difficult position, in 

that error would likely ensue whatever option the court chose — whether waiting for 

defense counsel to become available or proceeding, as the court did, without defense 

counsel present. 

We find no merit to this contention. Here, defense counsel’s decision to be 

out of contact for less than an hour, with the court’s tacit approval, cannot be seen as an 

invitation to the court to hold proceedings without the attorney. In Blair v. State, we held 

9 Wamser, 652 P.2d at 103. 

10 See Alaska Pub. Def. Agency v. Superior Court, Third Judicial Dist., Anchorage, 343 

P.3d 914, 915 (Alaska App. 2015) (explaining difference between co-counsel status where 

the defendant remains represented by counsel and situations where defendant has fully 

waived his right of representation and is representing himself, either with or without the 

assistance of stand-by counsel). 

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that it was reversible error for the court to conduct a playback without defense counsel 

in a forty-five minute period of time during which defense counsel had previously 

notified the court that he would be unavailable.11 We declined to find invited error in 

Blair, and we similarly find none here. 

Was the ex parte communication with the jury outside the presence of the 

defense attorney harmless beyond a reasonable doubt? 

When a trial court engages in ex parte communications with a jury during 

jury deliberations, the State bears the burden of showing that the ex parte communication 

was harmless beyond a reasonable doubt.12 Whether error is harmless beyond a 

reasonable doubt in this context requires a determination of whether there is a reasonable 

possibility that defense counsel’s presence could have had an impact on the jury’s 

deliberative process.13 As prior case law explains, the focus of the inquiry is on whether 

the defense counsel might have influenced the nature and content of the court’s 

communication with the jury, rather than on whether the content of the communication 

that was made without the defense attorney’s participation was itself improper.14 

We have previously found harmless error in circumstances where the 

judge’s ex parte communications to the jury contained no substantiveinformation —that 

is, where the judge’s communication could not have had any possible effect on the jury’s 

11 Blair v. State, 42 P.3d 1152, 1153-54 (Alaska App. 2002). 

12 See Wamser, 652 P.2d at 103; Dixon, 605 P.2d at 884; State v. Hannagan, 559 P.2d 

1059, 1065 (Alaska 1977); Chapman v. California, 386 U.S. 18, 23-24 (1967). 

13 Wamser, 652 P.2d at 103; Dixon, 605 P.2d at 884. 

14 See Jones, 719 P.2d at 267; see also Raphael v. State, 994 P.2d 1004, 1013 (Alaska 

2000). 

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deliberations.15 The State argues that this was the situation here, particularly with regard 

to Count VI — the third-degree assault conviction based on Cunningham pointing his 

rifle at Sergeant Agner. 

We agree with the State that the ex parte communication with the jury at 

the 4:48 p.m. hearing was harmless beyond a reasonable doubt with regard to the jury’s 

guilty verdict on this count. The State’s evidence on this count was particularly strong. 

More importantly, the record clearly indicates that the jury reached its guilty verdict on 

Count VI during the first day of its deliberations. When the trial court took the jury’s 

verdicts on the second day of deliberations, the court noted that some of the verdicts 

(including the guilty verdict on Count VI) had been signed the day before.16 The 

foreperson confirmed that the jury had reached those verdicts the previous day. 

The other jury communications in the case further confirm that the jury’s 

struggles were not over Count VI. As already explained, the jury informed the court on 

the second day of deliberations that it had reached verdicts on some of the counts but that 

it was struggling with one count in particular. Later that day, the jury announced that it 

had reached a final verdict on all counts but the one on which it was hung. After the jury 

was returned to the courtroom to discuss the options presented at the 4:48 p.m. hearing, 

the jury sent another note asking if its verdicts on Counts I-V (the third-degree assault 

15 See, e.g., Crouse v. Anchorage, 79 P.3d 660, 664-65 (Alaska App. 2003) (harmless 

error when defendant was not notified of jury’s note requesting an additional verdict form); 

see also Hoffman v. State, 950 P.2d 141, 145-46 (Alaska 1997) (harmless error when judge 

responded to a playback request with logistical considerations and defendant had previously 

waived presence for playbacks). 

16 The verdict forms for Counts VI (third-degree assault against Sergeant Agner), VIII 

(refusal to submit to a chemical test), X (fifth-degree criminal mischief), and XI (fifth-degree 

criminal mischief) were signed on the first day. 

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charges involving the other officers and the gunshots from the vehicle) had to be 

consistent, indicating that the hung count was one of those charges. 

Given this record, we agree that the State has met its burden of showing that 

there is no reasonable possibility that the ex parte communications that occurred at the 

4:48 p.m. hearing and in the 5:10 p.m. written note could have affected the jury’s 

deliberations on Count VI, a count on which it was clearly no longer actively 

deliberating. 

We reach the opposite conclusion, however, with regard to the jury’s guilty 

verdict on Count V. As already noted, the jury’s 5:05 p.m. note indicates that the jury 

was hung on one of the first five counts (Counts I-V). The jury broke through its 

deadlock on the last remaining count only after the 4:48 p.m. ex parte hearing and only 

after the jury was instructed that its verdicts on Counts I-V did not need to be consistent. 

When the verdicts were finally announced, the jury’s verdict on Count V (the count 

involving Officer Pitta-Rosse) was not consistent with the verdicts on Counts I-IV. 

The record is also clear that the jury had been struggling with this same 

count for some time and that the court was already prepared for the fact that it might not 

be able to reach a verdict on that count. Indeed, the court specifically noted to the 

prosecutor at the 4:48 p.m. hearing that it was “getting the feeling” that further 

deliberation would not be helpful — a feeling that was seemingly confirmed by the 

foreperson’s later announcement that the jury was “hopelessly deadlocked” on that final 

count. 

Given this record, we conclude that there is a reasonable possibility that the 

defense attorney’s participation in the 4:48 p.m. hearing might have had an impact on the 

nature of the court’s communication with the jury and the outcome of the jury’s 

deliberative process. Among other things, the defense attorney could have convinced 

the court to accept at face value the jury’s declaration that it was now “hopelessly 

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deadlocked,” and to declare a mistrial on that count and allow the other ten verdicts to 

be taken. 

Instead, because the 4:48 p.m. hearing was held without the defense 

attorney’s input, the judge responded to the jury’s announcement that it was “hopelessly 

deadlocked” by directly encouraging the jurors to continue to deliberate on that count 

despite their apparent deadlock, and by telling the jury that if they could not reach a 

verdict that day, the judge preferred to make them return on Sunday — because that fit 

his schedule better. The judge’s response may have put pressure on the jurors to 

compromise their individual viewpoints and to agree to a verdict on that last count, rather 

than face the burden of having to return to court on a Sunday.17 This pressure may have 

alsobeen further compounded by thejudge’ssubsequentexpartewritten communication 

with the jury, which sua sponte instructed the jury (without notice to the parties) that the 

jury should try “to reach verdicts on those counts that they are able to so.” 

Thus, becausethereis areasonablepossibility that thedefenseattorney may 

have been able to influence the outcome of the 4:48 p.m. hearing and the jury’s 

deliberations on Count V, we conclude that the court’s decision not to wait the twenty 

minutes that it would have taken to secure the defense attorney’s presence was 

constitutional error that was not harmless beyond a reasonable doubt as to that count. 

Reversal of that conviction is therefore required. 

We take this opportunity to remind trial judges of the risks of any ex parte 

communications with the jury. We also remind judges that communications from the 

17 See Fields v. State, 487 P.2d 831, 838-43 (Alaska 1971) (prohibiting courts from 

instructing juries that have declared themselves to be hung with coercive language that might 

“place the holders of a minority viewpoint in a vulnerable position” or that might pressure 

the jurors to reach a conclusion on something other than the “evidence and argument in open 

court”) (internal citations omitted). 

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jury should, in most instances, be handled formally and should be properly memorialized 

in the record. Lastly, trial judges should be mindful that the parties should be notified 

of any requests for playbacks unless they waive their right to notice, and that any waiver 

of that right should take place on the record.18 

Conclusion 

Cunningham’s conviction on Count V is REVERSED. The judgment of 

the superior court is otherwise AFFIRMED. 

18 Dixon, 605 P.2d at 884-89; Hoffman, 950 P.2d at 145-46. 

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