author: MATTHEWS, Justice.

text:
    STATE of Alaska, Petitioner, v. Donald WAGAR, Respondent.
    No. S-10369.
    Supreme Court of Alaska.
    Nov. 7, 2003.

      Douglas H. Kossler, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Petitioner.
    Quinlan Steiner, Assistant Public Defender, Barbara K. Brink, Public Defender, Anchorage, for Respondent.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

The question here is whether an officer conducting a pat-down search for weapons during an investigatory stop who feels an object that he reasonably believes might be used as a weapon may examine the object to confirm that it is not a potential weapon. The court of appeals answered this question in the negative, holding that the officer must have a reasonable belief that the object is a weapon, not merely that it might be used as a weapon. We answer in the affirmative because officer safety is better served by permitting searches for potential weapons and because this is the teaching of the leading treatise on search and seizure law.

II. FACTS AND PROCEEDINGS

The facts and the initial proceedings are stated by the court of appeals:

At about 10:00 p.m. on August 8, 1997, Othal C. Madden, a security manager for Brown Jug, Incorporated, was in a parking lot by the Brown Jug liquor store at 26th Avenue and Spenard Road. Madden was in the parking lot to look for adults purchasing alcohol for minors or minors trying to buy aleohol out of the Brown Jug store. Madden saw Wagar and a female companion pull into the lot in a relatively new Dodge pickup. Wagar was driving. Madden saw Wagar throw and break a bottle into the parking lot. Then Wagar got out, went to the bed of the pickup, took a bottle of beer out of a cooler, and got back into the driver's side. Shortly thereafter, Wa-gar got out again, left the door open, and urinated in the parking lot.
Madden watched the pickup for about an hour. During the hour, Madden saw Wa-gar return to the cooler for what appeared to be several more beers. Madden also saw the passenger repeatedly put her hand to her nose, covering a nostril, and lean down as if she were snorting cocaine. Madden decided to defer calling the police about what he saw until he was ready to wrap up or until the pickup started to leave because Madden did not want his "sting" interrupted by a "parking lot ... full of police cars." When Madden was ready to go, he called Alcohol Beverage Control Board Investigator John F. Bilyeu on a cell phone. Bilyeu was approximately 200 yards away in a patrol car with Anchorage Police Officer Derek Hsich. Bilyeu and Hsieh were working together that night investigating potential aleohol violations.
Madden told Bilyeu that he had seen a man (Wagar) consume four or five beers and urinate in the parking lot. Madden told Bilyeu that the woman passenger appeared to be using cocaine. Madden also described the Dodge to Bilyeu. According to Bilyeu, Madden told him that both occupants appeared to be using cocaine. Bilyeu relayed this version of Madden's report to Hsieh,. Bilyeu and Hsieh, who had just pulled up to Chilkoot Charlie's to walk through the bar, instead went directly to the parking lot where the Dodge was parked. As Hsich and Bilyeu pulled into the lot, Madden pointed to the Dodge, and Hsich drove up to the truck and parked.
Wagar and his companion were getting out of the truck when Hsich and Bilyeu 'arrived. Hsich contacted Wagar and noticed that he smelled of alcoholic beverages. Bilyeu contacted the companion. Wa-gar put his hands in his jeans pockets, although Hsich told him not to do that. Wagar turned away from Hsieh, an action that Hsich described as "blading," and "kind of a danger sign that a person may be attempting to hide something or ... positioning their body in some type of fighting posture[.]" Because Wagar put his hands in his pockets and turned away, Hsich testified that he felt he was "potentially ... at risk[.]" Hsieh frisked Wagar for weapons.
Hsieh found nothing of note until he got to Wagar's T-shirt pocket. In that pocket, Hsieh felt a pack of cigarettes, a lighter, and an unknown object that was hard, pointed, and approximately three inches long. Hsich asked Wagar what the object was, and Wagar said he did not know. Hsieh testified that he became "very nervous" because he thought that the object might be a weapon. As Hsich manipulated the object with his fingers, he looked into the T-shirt pocket and saw that the object was a glass vial with a white powdery substance that looked like cocaine. Hsich seized the vial and arrested Wagar.
The grand jury indicted Wagar on one count of fourth-degree misconduct involving a controlled substance. Wagar moved to suppress the cocaine Hsich seized. Superior Court Judge Larry D. Card held an evidentiary hearing on Wagar's motion. Judge Card found that Wagar was subjected to an investigatory stop at the point Hsieh touched him, and that this investigatory stop was supported by Hsieh's reasonable suspicion of criminal activity. Judge Card concluded that Hsieh's reasonable suspicion justified a pat-down for weapons and denied Wagar's motion. Wagar entered a Cooksey plea, reserving his right to appeal the denial of his motion to suppress. Judge Card sentenced Wagar to eighteen months' imprisonment with seventeen months suspended.

On appeal, Wagar raised three points. First, he contended that the investigatory stop conducted by Officer Hsich was not supported by reasonable suspicion "that imminent public danger exists or that serious harm to persons or property has recently occurred." Second, even if the stop were permissible, Wagar argued that the frisk was not Third, even if the stop and the frisk were permissible, Wagar argued that Hsich exceeded the allowable seope of a pat-down search for weapons when Hsieh looked into Wagar's T-shirt pocket in order to determine what the unknown object was.

On the first two points, a majority of the court of appeals concluded that the superior court's determinations were appropriate. But on the third point, the court of appeals concluded that the superior court's findings were inadequate and remanded the case for "findings on whether the object felt like a typical weapon or whether Officer Hsich knew of specific and articulable facts that support a reasonable belief that the unknown object was an atypical weapon that Wagar could use to harm Officer Hsich or others nearby."

On remand, the superior court conducted a supplemental evidentiary hearing. The superior court purported to answer the court of appeals's second question in the affirmative, stating:

This court finds after hearing that the glass vial discovered by Officer Hsich was not a typical weapon which was apparent to the Court of Appeals. Having not found it a typical weapon, Officer Hsieh had to have specific and articulable facts that would support a reasonable belief that the unknown object was an atypical weapon that it could use-to harm the officers before he examined the contents of the pocket.
As he testified at the hearing on October 13, 2000, it was a small, unidentified, hard object and he was curious as to what it might be because it was hard and pointed and approximately three inches long. Even though he did not feel it was a weapon, he became very nervous because he thought that the object could be used as a weapon or might be a weapon, in his words.
The officer proceeded to discuss a time in his training when he was given opportunity to do a practice attack on the training officer, and the training officer took a small object which he could not even see that was pointed and placed it at or about his neck which caused the officer to become disoriented.
Thus, the question is whether it was an atypical weapon that he felt and can be used to harm the officers is answered in the affirmative. The officer's feelings were reasonable. That it was an atypical weapon even if nothing more than, from the court's perspective, a pencil with a point that could be used to harm the officer.
Thus, having said that, this court finds that it was a reasonable belief that it was an atypical weapon. And, therefore, the court affirms its findings previously issued.

Upon receiving the superior court's findings the court of appeals stated that "the superior court found the police were justified in removing the vial from Wagar's pocket because the officer who performed the search reasonably believed the unknown object could potentially be used as a weapon." The court concluded that this was not the correct test. Instead, what is required are "affirmative reasons-specific and articulable facts-to support a reasonable belief the unknown object was indeed an atypical weapon. The court of appeals found that the superior court's findings fell short of determining that Officer Hsich had a reasonable belief that the unknown object was an atypical weapon and thus reversed the judgment of the superior court.

We granted the state's petition for hearing.

III. DISCUSSION

We disagree with the court of appeals's decision. In our view, what is needed to justify a further examination of an unknown object felt in a frisk for weapons is a reasonable belief on the part of the officer, based on "specific and articulable facts ... taken together with rational inferences from those facts," that the object may be used as a weapon.

This conclusion is supported by the rationale justifying a weapons search in connection with investigatory stops when the officer has reason to believe that the suspect may be armed and dangerous. The overarching rationale is officer safety. As the Terry Court observed: "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." The distinction between objects that are not shaped like typical weapons but may nevertheless be weapons and similar objects that are merely potentially usable as weapons seems extremely tenuous. If there is a difference it lies in the intent of the bearer of the object. But this intent is not necessarily apparent to the officer conducting the frisk. In our view, the distinction inherent in the court of appeals's decision is too vague to serve as a dividing line between permissible and impermissible searches that are conducted in order to ensure officer safety.

Our conclusion that the court of appeals too narrowly limited searches after a pat down to objects that are reasonably believed to be weapons rather than objects that are reasonably believed to have the potential for use as weapons is also supported by the leading text on search and seizure, Professor LaFave's Search ano Seizure. According to LaFave, the critical issue is "what properly may be deemed a potential weapon in this context." LaFave precedes this statement with the following discussion:

[Alnother important question which must be resolved in order to assess the conduct of a police officer who has performed a frisk is that of what tactile sensations produced by the pat-down will justify a further intrusion into the clothing of the suspect.
At the outset, it must be asked what the legal test is at this point. In Terry, the Court stressed that after patting down the suspects Officer McFadden "did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons." But surely this does not mean that the policeman must know beyond any doubt that what he has felt is a weapon; the officer "need not be absolutely certain that the individual is armed." Sometimes it is said that he must feel "an object which he reasonably believes to be a dangerous weapon," which may be an appropriate test if this reasonable belief does not require that it be possible to determine that it is more probable than not that the object is a weapon. As some courts put it, it must be asked whether the object "feels like a weapon" or was one the officer "reasonably believed could have been" a weapon, or whether on the other hand there was anything in the officer's "perception to indicate it was not a weapon either because of size or density."
In making a judgment on this point in a particular case, it may be eritical to determine what properly may be deemed a potential weapon in this context.[]

After warning against accepting fanciful speculations as to what might reasonably be believed to be a weapon, LaFave continues:

Under the better view, then, a search is not permissible when the object felt is soft in nature.[] If the object felt is hard, then the question is whether its "size or density" is such that it might be a weapon.... Under this approach, courts have upheld as proper searches which turned up certain objects other than guns, such as a pocket tape recorder, a pipe, a pair of pliers, cigarette lighter, several keys taped together, a metal money elip full of money, tightly wrapped bags of crack cocaine, or a prescription bottle.[]

We agree with LaFave. In the context of this case the relevant question was whether the object Hsieh felt in Wagar's T-shirt pocket could, based on "specific and articulable facts," reasonably be believed to be a potential weapon, not as the court of appeals held, whether it was indeed a weapon.

A denial of a motion to suppress is reviewed in the light most favorable to upholding the trial court's ruling. "The trial court's findings of fact will not be disturbed unless they are clearly erroneous." Whether the trial court's findings support its legal conclusions is a question we answer with our independent judgment. Employing these standards, we conclude that the trial court's decision should be upheld.

The trial court found that Hsieh "thought that the object could be used as a weapon" and that this was a reasonable belief. These findings are supported by "specific and articulable facts"-the evidence as to the size, shape, and hardness of the object and Hsieh's training experience-and are thus not clearly erroneous. They also satisfy the appropriate legal standard that an object felt in a pat-down search can be examined if the officer reasonably believes that it might be used as a weapon against the officer or others nearby.

IV. CONCLUSION

REVERSED and REMANDED for further proceedings in accordance with this opinion.

      . See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

      . Wagar v. State (Wagar I1), 2000 WL 799324 *1-2 (Alaska App., June 21, 2000).

      . Id. at *2. This is the Alaska standard under which an investigatory stop is justified. See, eg., Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). The standard is somewhat more stringent than the standard for investigatory stops under the federal constitution. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring a reasonable belief "that criminal activity may be afoot." Coleman adopted the objective test expressed in Terry for determining when an officer's suspicion is reasonable:
      {The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.... And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?
      Coleman, 553 P.2d at 45 (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).

      . Wagar I, 2000 WL 799324 at *3. Not every legitimate stop can be accompanied by a frisk. What is needed is a reasonable belief at the time of the initiation of the frisk that the suspect may be armed and dangerous. Terry, 392 U.S. at 30, 88 S.Ct. 1868:
      [WJhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
      See also 4 Wayne R. LaFave, Searcu ano Seizure § 9.5(a), at 250 (3d ed. 1996) ("[It should not be assumed that whatever might happen between the initiation of the stop and the initiation of the frisk is of no relevance, for this is not the case.").

      . Wager I, 2000 WL 799324 at *3. As the court of appeals noted, the permissible scope of a pat-down search for weapons is ordinarily "limited to the person's exterior clothing. Unless the pat-down search discloses the presence of a potential weapon, further intrusion into the person's pockets is not permitted." Id. (citation omitted).

      . Id. at *2-3.

      . Id. at *5.

      . Wagar v. State (Wager II), 2001 WL 1143307 *1 (Alaska App., Sept.26, 2001).

      . Id.

      . Id.

      . Id.

      . Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Id. at 23, 88 S.Ct. 1868.

      . 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Amendment § 9.5(c), at 277 (3d ed.1996) (emphasis added).

      . Id. at 276-77 (citations omitted) (emphasis added).

      . Id. at 277 (using as an example "a rubber water pistol loaded with carbolic acid") (citing People v. Armenta, 268 Cal.App.2d 248, 73 Cal.Rptr. 819 (1968)).

      . LaFave quotes the admonition of People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970):
      To permit officers to exceed the scope of a lawful pat-down whenever they feel a soft object by relying upon mere speculation that the object might be a razor blade concealed in a handkerchief, a "sap," or any other atypical weapon would be to hold that possession of any object, including a wallet, invites a plenary search of an individual's person.
      LaFave, supra note 14, at 277.

      . Id. at 278-79 (citations omitted).

      . In deciding this point, we have no occasion to question the validity of prior Alaska cases like Zehrung v. State, 569 P.2d 189 (Alaska 1979), and Jackson v. State, 791 P.2d 1023 (Alaska App.1990)-a line of authority that the court of appeals relied on in reaching its decision here. See Wagar II at *2-3. These cases are inapposite because they address a narrow point not raised in Wagar's case: an arresting officer's authority, under the search incident to arrest doctrine, where the arrest is not for a crime for which there could be concealable evidence, to open and look inside a small, closed container (in both cases, a wallet) that is not itself suspected of being usable as a weapon, but is lawfully taken into police custody during the arrest and is then searched to see if it might contain an atypical weapon. See, e.g., Jackson, 791 P.2d at 1028 ("Search of smaller containers which could only contain atypical weapons must be supported by specific articulable facts[.]"). Here, by contrast, Officer Hsich seized a glass vial from Wagar because he reasonably felt that Wagar might use the vial itself as a weapon, not because he wanted to see if it might contain an atypical weapon; and Wagar challenges only the vial's seizure, not its subsequent search.

      . State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).

      . Id.

      . Id.


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Loren J. LARSON, Jr., Appellant, v. STATE of Alaska, Appellee.
    No. A-8208.
    Court of Appeals of Alaska.
    Oct. 24, 2003.

      James H. McComas, Anchorage, for the Appellant.
    Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In early 2000, this Court affirmed Loren J. Larson's convictions on two counts of first-degree murder and one count of burglary. A little over one year later, Larson filed a petition for post-conviction relief in which he alleged that several members of his jury had engaged in misconduct during his trial.

Specifically, Larson asserted that several jurors violated the trial judge's instructions by (1) forming and announcing opinions about Larson's guilt before the case was submitted to the jury, (2) discussing the merits of the case with other jurors before the case was submitted to the jury, and (8) relying on their own personal knowledge (rather than evidence presented at trial) concerning how loud a shot from a .22 caliber rifle would be, and concerning the breakage characteristics of glass used in construction vehicles. In addition, Larson asserted that several jurors improperly declared or apparently agreed (4) that Larson's decision not to testify was an indication that Larson was guilty, and (5) that Larson's wife's absence from the courtroom was an indication that she believed Larson was guilty.

But Larson faced a legal problem: His assertions of juror misconduct were supported solely by the affidavits of jurors. (The affidavits were supplied by some of the jurors who decided Larson's case, as well as the two alternates who sat through the trial but were then excused as deliberations commenced.) Alaska Evidence Rule 606(b) states that, generally, a litigant can not rely on juror affidavits to attack a jury verdict. Rule 606(b) contains only two exceptions: an attack on a jury verdiet can be supported by juror affidavits only when those affidavits are offered to prove (1) that "extraneous prejudicial information was improperly brought to the jury's attention" or (2) that "[some] outside influence was improperly brought to bear upon any juror". The superior court concluded that the alleged jury misconduct in this case did not fall within either of these exeeptions, and that Evidence Rule 606(b) therefore prohibited Larson from relying on the juror affidavits. Accordingly, the court dismissed Larson's petition for post-convietion relief.

Larson now challenges the superior court's ruling. His primary argument is that Evidence Rule 606(b) prohibits the use of juror affidavits to attack a verdict only when those affidavits describe misconduct that occurred dwring-not before-the jury's formal deliberations. Larson contends that Rule 606(b) does not apply to the juror affidavits he presented in his case, because these affidavits describe misconduct that occurred before his case was submitted to the jury.

Larson further argues that when jurors blatantly violate their oaths and their duties as jurors, they lose their status as "jurors" and instead become an "outside influence"thus making evidence of their misconduct admissible under the provision of Rule 606(b) that allows the use of juror affidavits to prove (or disprove) that "any outside influence was improperly brought to bear upon any juror".

Finally, Larson contends that the alleged juror misconduct in his case was so egregious that, if the allegations are true, this misconduct constituted an obstruction of justice and a denial of due process. Accordingly, Larson argues that he has a right (either as a matter of state law or as a matter of federal constitutional law) to use juror affidavits to prove his allegations of juror misconduct, despite the general prohibition contained in Evidence Rule 606(b).

For the reasons explained here, we reject Larson's construction of Evidence Rule 606(b). We hold that the admissibility of juror affidavits under Rule 606(b) turns on the type of impropriety they describe, not the timing of that impropriety. Because the juror affidavits in Larson's case describe matters that "inhere" in the jury's decision-making process (a concept that we explain in this opinion), Evidence Rule 606(b) bars the use of these affidavits.

We further reject Larson's argument that jurors who engage in misconduct cease being "jurors". Finally, we hold that the application of Evidence Rule 606(b) to Larson's case does not deprive him of due process of law or any other constitutional right. Accordingly, we conclude that the superior court was correct when it dismissed Larson's petition for post-conviction relief.

The rule at issue in this case Alaska Evidence Rule 606(b)

The two subsections of Alaska Evidence Rule 606 define the situations in which litigants are barred from offering the testimony or affidavits of jurors. Evidence Rule 606(3) states that jurors are barred from testifying as witnesses at the trial they are judging. Evidence Rule 606(b) addresses the question of whether a litigant can offer juror testimony or juror affidavits to attack a jury's decision (or defend the decision from attack):

(b) Inquiry Into [the] Validity of [a] Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

The first thing to note is that Evidence Rule 606(b) does not apply when the issue of potential jury misconduct is litigated before the jury returns its verdict. The rule prohibits the use of juror testimony and juror affidavits in "an inquiry into the validity of a verdict", but it does not restrict the use of this evidence when the court investigates potential juror misconduct before the jury renders its decision.

Turning to post-verdict inquiries, Evidence Rule 606(b) declares that juror testimony and juror affidavits can not be offered for any of these purposes: (1) to prove "any matter or statement occurring during the course of the jury's deliberations", or (2) to prove "the effect of any matter or statement upon that [juror's] or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict", or (8) to prove "the juror's mental processes in connection therewith" [ie., in connection with the juror's decision to assent to or dissent from the verdict].

Rule 606(b) declares that there are two exceptions to the prohibitions described in the preceding paragraph. According to the rule, juror testimony and juror affidavits can be offered on the issues of (A) "whether extraneous prejudicial information was improperly brought to the jury's attention", or (B) "whether any outside influence was improperly brought to bear upon any juror".

In practice, however, Rule 606(b) has been interpreted so that these two exceptions apply only to the first prohibition-the prohibition on the use of juror testimony or juror affidavits to prove "any matter or statement occurring during the course of the jury's deliberations". That is, juror testimony and juror affidavits can be offered to prove or disprove the occurrence of the improper events described in the two exceptions-jurors' receipt of "extrancous prejudicial information", or the subjection of jurors to "outside influence"-but Rule 606(b) still bars juror testimony and affidavits when offered to prove the effect of these events on the jurors' mental processes. Swain v. State, 817 P.2d 927, 932-33 (Alaska App.1991).

In his petition for post-conviction relief, Larson offered juror affidavits to prove (1) that some jurors formed and announced opinions about Larson's guilt during the trial, before the case was submitted to the jury, (2) that some jurors discussed the merits of the case before the case was submitted to the jury, (8) that some jurors viewed Larson's decision not to testify as an indication of his guilt, and (4) that some jurors viewed Larson's wife's absence from the trial as an indication that she believed Larson was guilty. None of these allegations appear to fall within the two exceptions specified in Rule 606(b)-the exceptions for "extrancous prejudicial information" and "[improper] outside influence".

Larson also offered juror affidavits to prove (5) that one or more jurors reached their decision by relying on information beyond the evidence presented at trial-specifically, jurors' personal knowledge of how loud a shot from a .22 caliber rifle would be, and jurors' personal knowledge concerning the breakage characteristics of glass used in construction vehicles. One could potentially argue that these jurors' personal knowledge constituted "extraneous prejudicial information". However, the Alaska Supreme Court rejected this interpretation of Rule 606(b) in Titus v. State, 963 P.2d 258 (Alaska 1998).

In Titus, the supreme court held that a juror's "pre-existing ... knowledge of a general nature" does not constitute "extraneous prejudicial information" for purposes of Rule 606(b). Id. at 262. The court declared that "a juror who discusses his or her general knowledge during deliberations, such as a familiarity with x-ray technology, has not introduced extraneous prejudicial information into the jury room". Id. Accordingly, even if Larson's jurors discussed their personal knowledge of the characteristics of .22 caliber firearms and construction-vehicle glass, this would not fall within the exceptions listed in Rule 606(b).

Larson nevertheless offers two arguments why the juror affidavits are admissible despite Evidence Rule 606(b)'s apparent bar.

First, Larson argues that Rule 606(b) applies only to evidence concerning what was said and done during the jury's formal deliberations-Le., what was said and done after the trial judge instructed the jury and directed them to decide the case. Larson contends that the alleged juror misconduct in his case can be established through juror affidavits because that misconduct occurred before the jury's formal deliberations.

Second, Larson argues that if any of the jurors engaged in the types of misconduct he alleges-forming opinions concerning Larson's guilt or innocence before the trial was over, discussing the merits of the case before the judge ordered the jury to begin its formal deliberations, and holding Larson's failure to testify against him-then these jurors forfeited their status as "jurors" and became, in effect, "outside influences". Thus, Larson argues, their misconduct falls within one of Rule 606(b)'s listed exceptions-so that the rule allows the misconduct to be proved by juror testimony or juror affidavits.

(Because Larson relies in part on the affidavits of two alternate jurors, one additional question is potentially raised by Larson's case: whether Evidence Rule 606(b) applies to evidence offered by alternate jurors as well as evidence offered by the jurors who ultimately decide the case. Both Larson and the State assume that Rule 606(b) applies to alternate jurors, and our limited research on this issue supports the parties' position. See State v. Reiner, 89 Ohio St.3d 342, 731 N.E.2d 662, 670-73 (2000). We therefore assume, for purposes of this case, that Evidence Rule 606(b) governs testimony or affidavits supplied by alternate jurors.)

Evidence Rule 606(b) applies to the allegations of jwror misconduct in Larson's case, even though that misconduct occurred before the jury commenced its formal deliberations

Larson's first argument-that Rule 606(b) does not cover juror misconduct that occurs before formal deliberations-finds some support in the wording of the rule. The rule states that when the validity of a verdict is at issue, "a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations". (Emphasis added.) This same phrasing in the federal counterpart to our rule, Federal Evidence Rule 606(b), led four members of the United States Supreme Court-the dissenters in Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)-to conclude that Federal Evidence Rule 606(b) should be interpreted to permit juror testimony or juror affidavits dealing with events that occurred during the trial, before formal deliberations began. See Tanner, 483 U.S. at 138-140, 107 S.Ct. at 2757-58 (Marshall, J., dissenting).

However, the dissenters view of the rule did not carry the day. The Tanner majority decided that Federal Evidence Rule 606(b) precluded the post-verdict use of juror testimony or juror affidavits alleging misconduct that occurred during the trial-specifically, the allegation that certain jurors drank excessive amounts of aleoholic beverages during the jury's lunch breaks and became so intoxicated as to be unable to meaningfully follow the progress of the trial. The Tanner court noted that Rule 606(b) does not preclude jurors from "report[ing] inappropriate juror behavior to the court before they render a verdict" (emphasis in the original) , nor does the rule preclude litigants from later "seek[ing] to impeach the verdict by non{[-ljuror evidence of misconduct". But the Tanner majority held that this misconduct could not be proved by juror testimony or affidavit after the verdict.

The federal courts who have addressed this issue after Tanner have been reluctant to construe Federal Evidence Rule 606(b) in a way that would completely preclude post-verdict inquiry into the jury's internal decision-making, particularly if there were strong evidence that the jury's decision was the direct product of overt racial bias. See Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir.1987), and Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (8th ed.2002), Vol. 3, pp. 606-5-606-6 and 606-183-606-14.

But the federal cases are virtually unanimous in rejecting post-verdiet attacks based on allegations of the types presented in Larson's case-i.e., allegations that jurors prematurely discussed the merits of the case, or prematurely formed opinions about the defendant's guilt or innocence. As the District of Columbia Cireuit noted in United States v. Williams-Davis, 90 F.3d 490 (D.C.Cir.1996), the precise legal basis of these federal decisions "is slightly obscure". However, it seems that all of the federal courts agree "that even if [Federal Evidence] Rule 606(b) does not actually bar receipt of [Juror] evidence of pre-deliberation discussions, a trial court is virtually automatically justified in declining to pursue such an inquiry". See the cases discussed in Williams-Davis, 90 F.3d at 504-05, and United States v. Gigante, 53 F.Supp.2d 274, 276-77 (E.D.N.Y.1999).

Larson urges us to construe Alaska's Rule 606(b) in a different way, by adopting the approach of the Tanner dissenters and holding that Rule 606(b) speaks solely to events that occur during a jury's formal deliberations. One state court has interpreted its rule in this fashion: see State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000).

Although Larson's suggested interpretation of Evidence Rule 606(b) is tenable, we conclude that it must be rejected because it leads to results that are incompatible with the policies underlying Rule 606(b).

As our supreme court acknowledged in Titus v. State Alaska Evidence Rule 606(b) represents a compromise between competing values. On the one hand, we must take steps to ensure "that verdicts are accurate and that they are reached through a fair process". On the other hand, the health of the jury system requires that we take steps "to protect jurors from harassment, to encourage free jury deliberation, and to promote the finality of verdicts". The commentary to Evidence Rule 606(b) expands on these themes:

Allowing inquiry into the mental operations and emotional reactions of jurors in reaching a given verdict would invite constant review.... Moreover, even without [post-verdiet] pressure by [attorneys] or litigants, many jurors are likely to have second thoughts about their verdicts after they are excused by the Court and the influence of fellow jurors dissipates. Such second thoughts might cause jurors to question their verdicts if permitted to do so. Yet these polic{ies] are not promoted by a blanket prohibition against inquiry into irregularities [resulting] from prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process.
The line between what is the proper subject of subsequent inquiry and what is to be insulated from review is a fine one.... Hard cases remain[,] and [these] must be decided with [the] policies underlying the rule in mind: to insulate the deliberative process and to promote the finality of verdicts while not foreclosing testimony as to ... extrinsic forces erroneously injected into the process.

Commentary, Evidence Rule 606(b), excerpted from paragraphs two, three, and five.

The approach taken by the Tanner dissenters-allowing unrestricted inquiry concerning any events or statements that occurred before the jury commenced its formal deliberations-may have seemed harmless enough under the facts of Tamnmer, where it was alleged that several jurors became too intoxicated to meaningfully follow the progress of the trial. But the allegations raised in Larson's case-allegations that some jurors discussed the evidence and formed opinions about the case before the jury began its formal deliberations-demonstrate the dangers of this approach.

Although we instruct jurors to completely withhold judgement until they have heard all the evidence, the summations, and the jury instructions, a moment's reflection will show that this is all but impossible. As the evidence is presented and the attorneys' litigation strategies become clear, thinking jurors will inevitably form at least tentative opinions concerning the credibility of various witnesses and the relative strength of the litigants' positions. The real point of our admonition is to make sure that jurors keep an open mind-to make sure that their opinions remain tentative-until the entire case has been presented and the jurors have heard the trial judge's instructions.

In the same vein, although jurors are admonished to refrain from discussing the case until their formal deliberations commence, we have no doubt that there are many trials in which one or more members of a jury prematurely remark on the credibility of the testimony they have heard or express some opinion about the anticipated outcome of the case.

These deviations from proper procedure do not suggest that the ensuing deliberations are tainted or that the resulting verdict should be distrusted. Even though improprieties of these types may have occurred, they do not undermine the jury's ability to ultimately render a fair decision based on the evidence and the jury instructions.

Indeed, in Hancock v. Northcutt, 808 P.2d 251 (Alaska 1991), the Alaska Supreme Court rejected a litigant's request for a new trial based on similar jury misconduct. Although the court's opinion does not describe the details of the alleged juror misconduct, an examination of Hancock's brief " shows that one of his claims of misconduct was that a specified juror, "contrary to [the trial judge's] repeated instructions ..., made up his mind [about the case] before the close of [the] evidence". The supporting affidavit-supplied by the errant juror himself-disclosed that "at a particular point in [the] trial" this juror had already decided that the Northcutts should be awarded damages.

The supreme court ruled that this juror's evidence (as well as other jurors' evidence) was barred by Evidence Rule 606(b):

The [juror] affidavits ... detail the jurors' mental processes and do not demonstrate that there was any outside influence improperly brought to bear on any juror or that extraneous prejudicial information was improperly brought to the jury's attention. Thus the [superior] court did not err in refusing to grant a new trial on this basis. See West v. State, 409 P.2d 847, 852 (Alaska 1966); Evidence Rule 606.

Hancock v. Northcutt, 808 P.2d at 259.

Similarly, in Poulin v. Zartman, 542 P.2d 251, 264-65 (Alaska 1975), the supreme court rejected the notion that a litigant could obtain a new trial by showing that one or more jurors "develop[ed] a like or dislike for one side during [the] trial [that] may [have] affect[ed] the way that juror vote[d] in the jury room". The court ruled that these types of juror emotions "inhere[ ] in the verdict" that is, they are part of the jurors' internal decision-making process, and they do not constitute a serious violation of the jurors' duty. The supreme court decided that allowing verdicts to be impeached on such grounds would lead to "folly and chaos".

We conclude that we would achieve these same unfortunate results if we construed Evidence Rule 606(b) as Larson suggests. If litigants were permitted to mount the kinds of post-trial attacks on a jury verdict that Larson raises here, few verdicts would be safe from challenge. Alternate jurors who disagreed with the jury's decision, or regular jury members who later regretted their decision, could attack the verdict based on passing comments made in hallways, restrooms, and lunch rooms during the trial-comments that might well have been rebutted or forcefully criticized by fellow jurors if repeated during formal deliberations. Another danger pointed out by the District of Columbia Circuit in Williams-Davis is that, if evidence of premature deliberations were permitted under Rule 606(b), this "would place a powerful weapon in the hands of a juror who senses that his viewpoint is not shared by his fellows-deliberate promotion of pre-deliberation conversations".

With regard to the other types of impro-pricties alleged by Larson-jurors' holding Larson's failure to testify against him, or holding Larson's wife's failure to attend the trial against him, or urging the other jurors to speed up their deliberations so that jury service would not interfere with a particular juror's personal plans-the law is settled that Evidence Rule 606(b) bars jurors from giving evidence on these matters if the alleged improprieties occurred during the jury's formal deliberations. Thus, for example, Federal Evidence Rule 606(b) bars the receipt of juror affidavits alleging that, during deliberations, some jurors declared that the defendant's failure to take the stand was evidence of the defendant's guilt.

Likewise, Federal Evidence Rule 606(b) bars juror assertions that the jury reached its decision through compromise or hastened its verdict to avoid interfering with a juror's vacation plans. The Alaska Supreme Court reached a similar decision in Van Huff v. Soho Alaska Petroleum Co., 835 P.2d 1181 (Alaska 1992).

Van Huff sued Sohio Alaska Petroleum Company for unlawful termination of his employment, but the jury found in Sohio's favor. 835 P.2d at 1182-83. In a motion for a new trial, Van Huff presented a juror affidavit tending to prove that one juror, Randall Butts, expressed frustration that jury deliberations were taking so long. Aceording to Van Huffs offer of proof, Butts told the other jurors that he was about to begin a new job and that he wanted the jury to reach a decision by Monday. At least one juror believed that Butts switched his vote simply to facilitate the jury's reaching a quick decision. Id. at 1184.

The superior court denied Van Huff's motion for a new trial, and the supreme court upheld the superior court's decision on appeal. The supreme court ruled that even if the allegations were true, Butts's alleged bias and potential misconduct did not invalidate the jury's verdict because these actions did not constitute "severe jury misconduct"which the supreme court defined as "fraud, bribery, forcible coercion|[,] or obstruction of justice". Id. at 1188.

Larson argues that even though Evidence Rule 606(b) prohibits a party from relying on juror testimony or juror affidavits to prove that such matters occurred during the jury's deliberations, Rule 606(b) should nevertheless be construed to permit juror evidence on these issues if the challenged conduct occurred before the jury commenced its deliberations. But Larson's interpretation of Rule 606(b) would undermine the values of the rule.

As explained above, Rule 606(b) is designed to insulate jury verdicts from post-trial challenges based on matters that "inhere" in the jury's decision-making process-by generally prohibiting jurors from giving post-verdiet evidence except on the subjects of whether the jury received extraneous prejudicial information or was subjected to improper outside influence. If the types of misconduct that Larson alleges had occurred during the jury's formal deliberations, it is clear that Rule 606(b) would bar any juror testimony or affidavits on these subjects. This is not because we condone the misconduct of jurors who openly proclaim that a defendant's failure to testify indicates the defendant's guilt, or who care more about their personal schedule than their duty to do justice. Rather, Rule 606(b) represents the value judgement that subjecting jury verdicts to these types of post-trial attacks would work more harm than good.

When jurors make these same types of improper statements before the jury begins its formal deliberations, their misconduct is less likely to cause injustice than if the statements had been uttered during deliberations. And yet Larson argues that Rule 606(b) should allow jurors to impeach their verdicts under these circumstances of lesser danger, even though cireumstances of greater danger are insulated from attack. Moreover, Larson's interpretation of the rule would open many verdicts to attack based on jurors' spontaneous exelamations or passing comments.

We also note that, even though the first clause of Rule 606(b) speaks of "matter{s] or statement[s] occurring during the course of the jury's deliberations", the next two clauses of the rule have no apparent temporal limitation. Rule 606(b) declares that jurors may not be questioned concerning "the effect of any matter or statement upon ... any .. juror's mind or emotions as influencing the juror to assent to or dissent from the verdict", nor may jurors be questioned "concerning [a] juror's mental processes in connection [with the juror's decision to assent to or dissent from the verdiet]".

In the end, we are guided by the concluding sentence of the commentary to Alaska Evidence Rule 606(b), which states that Rule 606(b) should be interpreted so as to preserve and advance the policies underlying the rule: insulating the jury's deliberative process and promoting the finality of jury ver-diets, while not foreclosing post-verdiet attacks if external forces have erroneously been injected into the deliberative process.

In view of these policies, and in view of the case law discussed here, we conclude that Evidence Rule 606(b) precludes Larson from offering juror testimony or juror affidavits to support the assertions of juror misconduct described in his petition for post-conviction relief,

For these same reasons, we reject Larson's argument that jurors who engage in such misconduct forfeit their status as "jurors" and should be viewed as external influences on the jury.

Evidence Rule 606(b) does not deny Larson his constitutional right to due process of law

Larson argues that if we construe Evidence Rule 606(b) to preclude juror testimony and juror affidavits on the allegations of misconduct he raised in his petition for post-conviction relief, then Rule 606(b) infringes his right to due process of law-by barring him from presenting evidence that the jury unjustly convicted him.

As we noted earlier, some federal courts have shown reluctance to enforce Rule 606(b) strictly when there is strong evidence that the jury's verdict was the direct product of racial prejudice. However, to our knowledge, no court has ever held that Rule 606(b) is unconstitutional to the extent that it bars juror evidence of the types of misconduct at issue in Larson's case.

Larson cites no cases that have accepted his constitutional attack on Evidence Rule 606(b). Indeed, several courts have recently upheld their versions of Rule 606(b) against constitutional challenge:

Williams v. Price, 343 F.3d 223, 230 (3rd Cir.2003) ("Tanner strongly suggests that the exelusion of evidence of juror misconduct pursuant to the traditional 'no impeachment' rule is constitutional because of the important purposes that the rule has long been recognized as serving."); United States v. Griek, 920 F.2d 840, 843 (11th Cir.1991); Maldonado v. Missouri Pacific Railway Co., 798 F.2d 764, 770 (5th Cir.1986); Miles v. State, 350 Ark. 248, 85 S.W.3d 907, 913 (2002); People v. Steele, 27 Cal.4th 1230, 120 Cal.Rptr.2d 432, 47 P.3d 225, 245-47 (2002); State v. DeGrat, 128 Idaho 352, 913 P.2d 568, 570 (1996); State v. Workman, 111 S.W.3d 10, 20-21 (Tenn.Crim.App.2002); Glover v. State, 110 S.W.3d 549, 551-52 (Tex.App.2003); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 374-75 (Tex.2000).

We therefore reject Larson's assertion that Evidence Rule 606(b) violates his constitutional rights to the extent that it precludes the kind of juror evidence he offered in his petition for post-conviction relief.

Larson's claim that he should have been allowed to proceed on his assertions of juror bias

Larson argues that even if the juror affidavits supporting his petition for post-conviction relief are precluded by Evidence Rule 606(b), so that he had no admissible evidence of juror misconduct, he still should have been allowed to pursue his claim that some of the jurors were biased against him and willfully concealed that bias when they answered questions during jury selection.

Under the supreme court's holding in Poulin v. Zartman, 542 P.2d at 264-65, the fact that some jurors became biased against Larson during the trial is not a ground for attacking the verdict. The rule is different, however, with regard to a juror's deceit during jury selection. Juror testimony or affidavits are admissible to prove that jurors falsely denied pre-existing bias during jury selection. See Poulin v. Zartman, 542 P.2d at 264.

But Larson's claim of pre-existing bias is based solely on his allegations of juror misconduct during the trial. Larson's theory is that if the jurors improperly expressed a belief in his guilt during the trial, or if they expressed a wish for a quick verdict, they must have been biased against him from the time they were first called as potential jurors, and they therefore must have hidden this bias during jury selection.

For example, in Larson's brief, he argues that a prima facie case of Juror Hayes's preexisting bias was shown by the fact that even though Hayes stated during jury selection that he could be fair, that he would assume Larson's innocence, and that he would follow the trial judge's instructions, Hayes later violated the judge's instructions by announcing (during trial, before the jury began its formal deliberations) that he believed Larson was guilty. Thus, Larson's claim of preexisting juror bias is based on the speculation that any adverse opinion expressed by jurors during his trial must have been rooted, not in the events of the trial, but rather in those same jurors pre-existing bias against him before the trial began.

But Larson presented no evidence to suggest that this was true. We therefore conclude that the superior court correctly dismissed this portion of Larson's petition for post-conviction relief for failure to state a prima facie case.

Conclusion

The judgement of the superior court is AFFIRMED.

      . See Larson v. State, Alaska App. Memorandum Opinion No. 4171 (January 12, 2000); 2000 WL 19199.

      . See Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), in which the Court gave this same construction to the word "therewith" in Federal Evidence Rule 606(b), the counterpart to our rule. In particular, see Justice Marshall's dissenting opinion, 483 U.S. at 140, 107 S.Ct. at 2757.

      . Id., 483 U.S. at 125-27, 107 S.Ct. at 2750-51.

      . Id., 483 U.S. at 127, 107 S.Ct. at 2751.

      . Id.

      . 90 F.3d at 504.

      . Id.

      . Titus v. State, 963 P.2d at 261.

      . Id.

      . File No. S-3470, Appellant's Brief filed April 26, 1990.

      . Appellant's Brief at page 48.

      . 542 P.2d at 264.

      . Id. at 264-65.

      . Id. at 265.

      . Williams-Davis, 90 F.3d at 505.

      . See United States v. Tran, 122 F.3d 670, 673 (8th Cir.1997); United States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir.1997); United States v. Martinez-Moncivais, 14 F.3d 1030, 1036-37 (5th Cir.1994); United States v. Voigt, 877 F.2d 1465, 1469 (10th Cir.1989). Accord, State v. DeGrat, 128 Idaho 352, 913 P.2d 568, 570-71 (1996) (construing the corresponding state evidence rule).

      . See United States v. Straach, 987 F.2d 232, 241 (5th Cir.1993) (two jurors asserted that they wished to declare the defendants innocent of all charges, but they were pressured into a compromise vote of "guilty" on two of the counts); United States v. Campbell, 684 F.2d 141, 150-51 (D.C.Cir.1982) (one juror allegedly told the group that she would go along with any unanimous decision reached by the other eleven).

      . See United States v. Murphy, 836 F.2d 248, 256 (6th Cir.1988).


author: COATS, Chief Judge.

text:
    Adonna L. CROUSE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. A-8434.
    Court of Appeals of Alaska.
    Nov. 7, 2003.

      Stephanie Patel, Law Office of Dan Allan, Anchorage, for Appellant.
    John E. MceConnaughy III, Assistant Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury intended to convict Adonna L. Crouse of driving under the influence, but it filled out the wrong verdiet form and mistakenly convicted her of the lesser-included offense of reckless driving. The district court judge immediately learned of this error, and allowed the jury to revise its verdiet. Crouse argues that the court should have entered a judgment convicting her of reckless driving without inquiring into the jurors' intent. She also argues that the court staff's ex parte contact with the jury regarding this verdict form deprived her of her constitutional right to be present at every stage of the trial.

Having reviewed the record, we reject these claims. The trial judge learned as soon as he announced the verdict that it did not accurately convey the jury's unanimous decision; under these cireumstances, he was authorized to inquire into the jurors' intent and to send the jury back into deliberations with the proper verdict forms. Moreover, while we agree that the court staff erred in providing the jury with a verdict form without authorization from the court and notice to the defendant, we conclude that this error was harmless beyond a reasonable doubt. We therefore affirm the decisions of the district court.

Facts and proceedings

Crouse went to trial on a charge of driving under the influence. After the close of evidence, District Court Judge Sigurd E. Murphy instructed the jury that if it acquitted Crouse of driving under the influence, it was required to return a verdict on the lesser-included offense of reckless driving. Judge Murphy held up two verdiet forms he said would be attached to the back of the jury's packet of instructions-one form to return a verdiet on the charge of driving under the influence, and the other to use if the jury returned a verdict on reckless driving.

At some point during deliberations, the jury discovered that it had only one verdict form-the form to use if it returned a verdict on the lesser-included offense of reckless driving. Consequently, after the jurors decided Crouse was guilty of driving under the influence, the forewoman informed the bailiff that they were missing one of the verdict forms. The bailiff relayed this information to the in-court clerk. The in-court clerk, seeing a form on the bench, and assuming it was the missing verdict form, gave it to the bailiff, who delivered it to the jury. The bailiff said nothing to the jurors when he gave them the verdiet form. As it turned out, the verdict form on the bench was one the Municipality had proposed and Judge Murphy had rejected. The jury forewoman wrote "guilty" on this form-apparently without reading it-and then sent a note to the court informing it that the jury had reached its verdict. The jurors did not deliberate on the charges between the time the bailiff gave them the wrong form and when they sent a note to Judge Murphy indicating that they had arrived at a decision.

The court reconvened so that the jury's verdict could be announced. But immediately after Judge Murphy read the verdict-which declared that the jury had found Crouse "not guilty" of driving under the influence and "guilty" of the lesser-included offense of reckless driving-the jury forewoman objected, stating: "No, that's not what we reached." Judge Murphy then observed that the verdict form he had just read was not the form he had submitted to the jury, but the one he had rejected. The forewoman and one other juror then explained what had happened: they discovered that a verdict form was missing, asked the bailiff for the missing form, and then wrote "guilty" on that form, believing they were convicting Crouse of driving under the influence. After conferring with counsel, Judge Murphy polled the jury, and all the jurors asserted that they had intended to convict Crouse of driving under the influence. Judge Murphy then questioned the jurors, the in-court clerk, and the bailiff in more detail, and their responses confirmed the above sequence of events.

Crouse objected to Judge Murphy's inquiry into the jurors' intent, arguing that the court was required to enter a conviction for reckless driving because the jury's verdict had been read in open court and was therefore final, In the alternative, Crouse argued that the court should order a mistrial.

Judge Murphy disagreed, and sent the jury back to deliberate with the jury instructions and the proper verdict forms. The jury returned a verdict convicting Crouse of driving under the influence. Crouse then moved for a new trial, arguing that the judge had improperly inquired into the reasoning behind the jury's verdict. She also argued that the bailiff's ex parte communications with the jury had infringed on her constitutional right to be present at every stage of the proceedings. Judge Murphy denied Crouse's new trial motion, ruling that despite the "unfortunate" confusion over the verdict forms, the jurors had properly deliberated and found Crouse guilty of driving under the influence.

Discussion

Did the district court abuse its discretion by inquiring into the jurors' intent instead of entering a judgment for reckless driving?

On appeal, Crouse renews her claim that the district court should have entered a conviction for reckless driving based on the first verdict form signed by the jury. She argues that "[olnee a verdict has been returned, it may not be impeached, even by the jurors themselves."

As general rule, courts are not permitted to inquire into a juror's reasoning processes as a means of impeaching the jury's verdict That rule is reflected in Alaska Evidence Rule 606(b), which, except in limited cireumstances, prohibits courts from questioning jurors about their mental or emotional processes in reaching a verdict But Rule 606(b) does not bar a court from asking jurors to clarify a verdict when their reasoning processes are not at issue-for instance, "when it appears that the written verdict may not accurately convey their group decision."

In previous cases, we have recognized the trial court's discretion to question jurors to ensure that the judgment entered actually reflects the jury's verdict. In Davidson v. State we found no error in the court's decision to question jurors about inconsistent verdicts convicting the defendant of the charged offense but acquitting him of two lesser-included offenses. After the defendant moved for a new trial based on this inconsistency, the trial judge in written interrogatories asked the jurors to clarify their decision; in response, the jurors indicated that they had mistakenly believed they were required to acquit the defendant of the lesser charges if they convicted him of the primary charge. We ruled that Evidence Rule 606(b) permitted such an inquiry, and upheld the jury's verdict

We reaffirmed the Davidson holding in Wardlow v. State In Wardlow, shortly after the jury's verdict was announced, the jury forewoman informed the trial judge that she believed the verdicts were mistaken; the jurors had intended to find Wardlow guilty on Count II and not guilty on Count IV, but the judge had announced the verdicts the other way around." No more than two minutes after the judge had exeused the jury, he called the jurors and parties back into the courtroom. The judge polled the jury and, after confirming that the verdiets on Counts II and IV had indeed been transposed, amended the judgment to reflect the jurors' true intent. Relying on Davidson, we found no error, ruling that the court had authority in these cireumstances to clarify the jurors' intent and to "amend the verdicts so that they accurately reflected the jurors' decision."

In Crouse's case, Judge Murphy became aware that there was an error in the verdict as soon as it was announced, and before the jurors had been polled or exeused. Because Judge Murphy had reason to believe that the verdiet did not accurately reflect the jury's decision, he had authority under Davidson and Wardlow to question the jurors to clarify their intent. Moreover, once a poll of the jury indicated that there was "not unanimous concurrence" with the verdict delivered to the court, Judge Murphy had discretion under Criminal Rule 31 to send the jury back into deliberations with the jury instructions and the correct verdict forms. Given these circumstances, we find no merit to Crouse's claim that the court was obliged to enter judgment for the offense of reckless driving even though the jury intended to convict her of a greater offense.

Did the court abuse its discretion by denying Crouse's motion for a new trial based on the court staff's ex parte communication with the jury?

Crouse next argues that the bailiff and in-court clerk deprived her of her constitutional right to be present at every stage of the trial by communicating with the jury-i.e., by delivering the verdiet form to the jury-without notice to her.

A defendant has a right under the federal and state constitutions to be present at every stage of the trial. That right is founded in the accused's rights to confrontation and due process, and includes the right to be present during any communication between the court and jury during jury deliberations. If the trial court fails to notify the defendant of a communication with the jury, we will reverse the defendant's conviction unless the government can prove that the error was harmless beyond a reasonable doubt.

The Municipality contends that there was no error in the court staff's ex parte contact with the jury because Crouse's presence during this contact would have had no impact on the outcome of the case. But the Municipality confuses the issue of whether Crouse was prejudiced by the actions of court staff with the issue of whether those actions were improper. The defendant has the right to have input into how the court responds to any substantive question from a deliberating jury,"" which would include the request for a verdict form. Providing a verdict form to the jury without authorization from the court or notice to the defendant has the potential to improperly influence the jury. The defendant therefore has the right to be notified of such a request, if only to ensure that the jury receives the agreed-upon form. We thus hold that it was error for the in-court clerk and bailiff to give the jury the verdiet form without obtaining permission from the trial judge.

As a general rule, we will reverse a conviction based on an improper jury communication only if the government fails to show that the error was harmless beyond a reasonable doubt. Crouse urges us to apply a stricter standard to ex parte contacts between court staff and jurors; she argues that such contacts should be reversible error per se because they are less likely to come to the attention of the parties.

However, our supreme court held otherwise in Wamser v. State. In Wamser, the supreme court concluded that the bailiff had improperly communicated with the jury. In evaluating whether reversal was required, the court applied the same harmless beyond a reasonable doubt standard applied to ex parte communications between the judge and jury. In applying this standard, the court noted that the bailiff was an agent of the court; it also cited out-of-state authority for the principle that it was "irrelevant" that the ex parte communication "came from [the] bailiff rather than a judge. Crouse has not shown why we should depart from the decision in Wamser under the cireumstances of her case.

Crouse next argues that reversal is required because, in the absence of an electronic record, it is impossible for this court to know what communication took place between the bailiff and jury. But Crouse bases this claim on cases in which there was no contemporaneous record revealing the precise nature of the improper communications that took place. Those cases are easily distinguished. In Crouse's case, the court questioned the jurors, bailiff, and in-court clerk only minutes after the bailiff had delivered the mistaken verdict form to the jury, and that inquiry revealed that there were no improper communications apart from the verdict form itself, which is in the record. In her opening brief on appeal, Crouse does not argue that she was prejudiced because the jury read this form, or because she had no input into the bailiffs decision to give the jury this form-she only argues that she may have been prejudiced by something the bailiff may have said to the jury when he gave it this form. Yet the evidence in the record shows that the bailiff said nothing to the jury when he delivered the verdiet form.

We conclude that the court staffs error in providing the verdict form to the jury was harmless beyond a reasonable doubt. When polled, the jurors all confirmed that they had reached a verdict convicting Crouse of driving while intoxicated before the forewoman asked the bailiff for the missing verdict form. The jurors also indicated that no deliberations took place between the time the bailiff delivered the form and the forewoman signed it and notified the court that the jury had reached its verdict. The bailiff said nothing to the jury when he handed it the verdict form. And apparently the Jurors never read the form, because by signing it they believed they had convicted Crouse of driving under the influence. Given these circumstances, we agree with the trial judge's conclusion that the jury was not improperly influenced by this improper contact with court staff.

In her reply brief, Crouse suggests for the first time that the judge's reaction to the mix-up over the verdict forms may have persuaded jurors who had intended to con-viet her of reckless driving to change their votes. But Crouse waived this claim by raising it for the first time in her reply brief In any event, the claim is without merit. Judge Murphy polled the jurors within two minutes of when he announced the verdict, and they all stated they had intended to convict Crouse of driving under the influence. Before polling the jury, Judge Murphy questioned two jurors about how they had obtained the wrong verdict form, but he said nothing to intimidate the jurors or to suggest that they had done anything wrong. We consequently find no merit to Crouse's claim that the court's brief inquiry may have persuaded jurors who believed Crouse was guilty of only reckless driving to convict her of a greater offense. We therefore conclude that Judge Murphy did not abuse his discretion by denying Crouse's motion for a new trial.

Conclusion

The decisions of the district court are AFFIRMED.

      . AMC 9.28.020(A).

      . See ARE. 606(b); Meyer v. State, 627 P.2d 636, 638 (Alaska 1981).

      . A.R.E. 606(b) provides:
      Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

      . See Davidson v. State, 975 P.2d 67, 73-74 (Alaska App.1999).

      . 975 P.2d 67.

      . Id. at 70, 71.

      . Id. at 71-74.

      . Id. at 71.

      . 2 P.3d 1238 (Alaska App.2000).

      . Id. at 1252.

      . Id.

      . Id.

      . Id.

      . Alaska R.Crim. P. 31(d) provides:
      Poll of Jury. When the verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If, upon the poll, there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

      . See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Wamser v. State, 652 P.2d 98, 101 (Alaska 1982); Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977); see also Alaska R.Crim. P. 38(a) ('The defendant shall be present ... at every stage of the trial").

      . See Alaska Const. art. I, §§ 11, 7; Hannagan, 559 P.2d at 1063.

      . See Wamser, 652 P.2d at 101; Dixon, 605 P.2d at 884; Hannagan, 559 P.2d at 1063-64; Gafford v. State, 440 P.2d 405, 417 (Alaska 1968), overruled on other grounds in Fields v. State, 487 P.2d 831, 836 (Alaska 1971); Noffke v. State, 422 P.2d 102, 105 (Alaska 1967), overruled on other grounds as stated in Raphael v. State, 994 P.2d 1004, 1013 n. 40 (Alaska 2000).

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

      . Cf. Meyer, 627 P.2d at 638-39 & 639 n. 4 (noting that the defendant's presence was required when the judge discussed an instruction with the jury because the defendant's presence, in the abstract, could have had an impact on the trial court's decision, but holding that the error was harmless under the facts of the defendant's case).

      . See Wamser, 652 P.2d at 102 ("Constitutional considerations arise whenever a trial judge is not informed of substantive inquiries from a deliberating fury.").

      . 652 P.2d 98.

      . Id. at 102 n. 16 (quoting United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 238 (7th Cir.1974)); see also Diane M. Allen, Annotation, Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal-post-Parker cases, 35 A.LRAth 890 (1985 & supp.2003) (observing that most jurisdictions will not reverse a conviction based on improper communications between the court staff and jury unless the defendant was prejudiced, and listing cases).

      . See Richardson v. State, 579 P.2d 1372, 1373-74 (Alaska 1978); Cox v. State, 575 P.2d 297, 300-01 (Alaska 1978).

      . Cf. Wilson v. State, 272 Ark. 361, 614 S.W.2d 663, 664 (1981) (ruling that the trial court did not err in denying a motion for new trial based on the testimony of the defendant and another man that they bad seen the bailiff answering questions from the jury, because the defendant failed to show that the bailiff had advised the jury on the law).

      . See Petersen v. Mut. Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990).


author: WILKINS, Justice:

text:
    2003 UT 38
    UTAH GOLF ASSOCIATION, INC., a Utah non-profit corporation, Plaintiff, Appellee, and Cross-Appellant, v. The CITY OF NORTH SALT LAKE, Utah, a Utah municipal corporation; and the City of North Salt Lake, Utah, Municipal Building Authority, a Utah non-profit corporation, Defendants, Appellants, and Cross-Appellees.
    No. 20010928.
    Supreme Court of Utah.
    Sept. 16, 2003.
    Rehearing Denied Oct. 29, 2003.
    Lester A. Perry, Salt Lake City, for plaintiff.
    Larry S. Jenkins, Salt Lake Caty, for defendants.
   WILKINS, Justice:

T1 The City of North Salt Lake ("the City") appeals the trial court's decision to grant partial summary judgment to the Utah Golf Association ("the UGA") on the issue of liability under a contract, and the court's denial of the City's motion for summary Judgment and reconsideration. The City contends that the court failed to consider controlling Utah law which generally does not require a vendor of real property to have clear and marketable title to the property until the time to convey. the property has arrived; and controlling law which restricts a municipality's disposal of pubhc property as a gift, which rendered the contract ultra vires and unenforceable. Also, the City contends that the trial court mlstakenly construed the twenty-year lease extension as an unenforceable "agreement to agree" rather than as a valid condition precedent. ‘

{2 The UGA cross-appeals a decision by the trial court denying the UGA damages based on moving costs. The UGA argues that it did not have a duty to mitigate its damages by entering into a twenty-year lease with the City. -

BACKGROUND

13 On March 31, 1992, the City and the UGA entered into an "Office Use Agreement" ("the Agreement") in which the City agreed to construct approximately 2,424 square feet of office space in the clubhouse of the City's Eaglewood Golf Course, and which the UGA agreed to lease for five years. The annual rent for the office space was set at $30,800. As a further inducement for the UGA to enter into the Agreement, a "First Addendum to the Office Use Agreement" ("the First Addendum") granted to the UGA several incentives. These included 888 square feet of space for the Utah Golf Hall of Fame, exclusive use of the golf course and golf carts for two days each year of the Agreement (and all green fees collected on those days), and exclusive access to the driving range for two hours per week (and all fees collected during that period). Most significantly, the City promised that the Municipal Building Authority ("the Building Authority") would convey a piece of property ("the UGA Property") to the UGA, upon which the UGA could construct its permanent headquarters at the end of the original lease period. The First Addendum provided that if the UGA elected not to build its permanent headquarters on the UGA Property, the UGA could receive the proceeds from the sale of the UGA Property on the condition that the UGA enter into a twenty-year use agreement for the premises, "with a provision for an annual three percent (8%) increase in the base user fee for the extended term." The First Addendum also provided a right of first refusal on the UGA Property to the Building Authority, and it reserved to the City the right to "approve the development and architectural plans of the third party buyer with respect to the UGA Property."

4 In January 1994, the UGA and the City amended the Agreement and created a "Second Addendum to the Office Use Agreement" ("the Second Addendum"). The Second Addendum reduced the amount of space the UGA agreed to lease to 2,178 square feet. The rent was lowered to $25,000. The 888 square feet of space for the Utah Golf Hall of Fame was reduced to 710 square feet. Also, the driving range fees collected by the UGA during its exclusive two hours per week were reduced by half. Most significantly, a change was made to the condition regarding the UGA Property. The Second Addendum provided that if the UGA elected not to build its permanent headquarters on the UGA Property, the UGA would be entitled to the proceeds of the sale of the UGA Property only if it first entered into a twenty-year use agreement "upon such terms and conditions agreed upon between the parties on or before the expiration of the original five (5) year Agreement Term."

T5 The original five-year agreement term expired in January 1999. At that time, the UGA had not elected to build its permanent headquarters on the UGA Property, nor had it entered into a twenty-year lease for the office space. The City allowed the UGA to continue to rent the office space on a month-to-month basis while the two parties continued to negotiate for a new long-term lease. An agreement was never reached, and in December of 1999, the City evicted the UGA.

T6 On January 21, 2000, the UGA filed a complaint against the City alleging breach of contract. The UGA argued that a use restriction on the City's title to the UGA Property, which the City failed to remove, constituted a breach of the Agreement. The use restriction required the UGA Property to be used only for an addition to the golf course or as the UGA's headquarters.

T7 In a motion for partial summary judgment by the UGA, the trial court found that the use restriction prevented anyone but the City or the UGA from purchasing the UGA Property. The court determined that the City was "unable to lift this restriction" and thus, the City had committed an anticipatory breach of the Agreement. The court determined that because of the City's anticipatory breach, the UGA was excused from entering into a long-term lease with the City. The court ruled that the Second Addendum was an unenforceable "agreement to agree" and, therefore, the First Addendum was controlling. The court concluded that, under the First Addendum, the UGA would have performed if the City had not breached the Agreement.

18 The City filed a motion for summary judgment and reconsideration of the partial summary judgment ruling, arguing that the trial court failed to consider controlling Utah law in its prior ruling. The City alleged that the contract conveying the UGA Property to the UGA was unenforceable because Utah law prohibits a municipality from transferring public property for less than a present benefit that represents fair market value. The City also argued that the trial court did not consider Utah law which holds that a seller need not have unencumbered title to property until the time for conveyance arrives. The City then presented evidence that the developer would have been willing to lift the deed restriction if the City had exercised its right of first refusal. The UGA moved to strike that evidence, claiming that it should have been raised previously. The court agreed and granted the UGA's motion to strike the evidence. The court also denied the City's motion for summary judgment and reconsideration, concluding that the City had ample opportunity to raise the issues in its response to the UGA's motion for partial summary judgment.

19 The district court awarded the UGA damages amounting to $158,441 for the value of the UGA Property. The court also awarded prejudgment interest as of January 1, 2000, the effective date of the notice to quit, and attorney fees and costs.

STANDARD OF REVIEW

1 10 In order for summary judgment to be appropriate, there must be no genuine issue of material fact. The moving party must be entitled to judgment as a matter of law. Greene v. Utah Transit Auth., 2001 UT 109, ¶ 10, 37 P.3d 1156. When reviewing a grant of summary judgment, we view the facts in the light most favorable to the non-moving party. Norman v. Arnold, 2002 UT 81, ¶ 2, 57 P.3d 997. However, we give no deference to the trial court's decision and review it for correctness. Greene, 2001 UT 109 at ¶ 10, 37 P.3d 1156.

ANALYSIS

' 11 The City and the UGA entered into a contract containing a condition precedent regarding the transfer of the UGA Property to the UGA, or the transfer of the proceeds of the sale of the property to the UGA. We reverse the judgment below because the UGA did not meet the condition precedent contained in the agreement.

12 The Second Addendum contains the following language:

In the event that User [UGA] elects not to construct the UGA Facility, User shall have the right to sell the Deeded Property and receive the proceeds from said sale only upon the following conditions User shall enter into a long-term (twenty years) use agreement for the Premises upon such terms and conditions agreed wpon between the parties on or before the expiration of the original five (5) year Agreement Term.

(emphasis added). The trial court held that this provision is an unenforceable agreement to agree. See Pingree v. Cont'l Group, 558 P.2d 1817 (Utah 1976). The court then held that the First Addendum controlled, and that the UGA was "ready, willing, and able" to perform under the conditions set forth in the First Addendum.

%18 Conditions precedent are operative facts "on which the existence of some particular legal relation depends." 8 Catherine Mc Cauliff, Corbin on Contracts § 30.6 (rev. ed.1999). Courts have long held that conditions that are indefinite but not illusory can be enforced. See, e.g., Mattei v. Hopper, 51 Cal.2d 119, 330 P.2d 625, 628-29 (1958) (holding condition requiring one party's satisfaction did not render contract for sale of property unenforceable). Where an indefinite condition depends upon the satisfaction of one or more parties, the duty to deal in good faith is sufficient to render the condition enforceable. Id. at 628. On the other hand, an unenforceable agreement to agree occurs when parties to a contract fail to agree on material terms of the contract "with sufficient definiteness to be enforced." Cottonwood Mall Co. v. Sine, 767 P.2d 499, 502 (Utah 1988) (quoting Valcarce v. Bitters, 12 Utah 2d 61, 362 P.2d 427, 428 (1961)).

114 The terms of the Second Addendum created an enforceable condition precedent, not an unenforceable agreement to agree. As a condition precedent, the Second Addendum does not purport to obligate either party to enter into a twenty-year lease. Rather, the Second Addendum provides that if the parties agreed to such a lease, the UGA would be entitled to the proceeds from the sale of the UGA Property. Both the City and the UGA are obligated only to act in good faith in negotiating the long-term lease. Under the contract, the UGA does not acquire any rights to the UGA Property in the absence of a long-term lease or bad faith behavior by the City.

¶15 The UGA argues that, because the City did not have perfect title to the UGA Property at the time of negotiation, the City anticipatorily breached its duty to convey the property. However, the fact that there were use restrictions on the UGA Property does not excuse the UGA from meeting the condition precedent before obtaining any rights predicated upon it. Further, it is a well-settled rule that a seller may make a valid contract to sell property, though the seller has no legal title to the property, as long as the seller has title when the time to convey arrives. Neves v. Wright, 638 P.2d 1195, 1199 n. 1 (Utah 1981). Until conveyance was due, the City could not have breached its duty, if any, to convey fee title. Id.

1 16 Since the UGA never met the condition precedent contained in the Second Addendum, the time for the City's conveyance of the UGA Property never arrived. The City never breached its contract with the UGA since it was not obligated to have perfect title to the UGA Property until the time of conveyance arrived. If the UGA had entered into a long-term lease agreement under the terms of the Second Addendum, and if the deed restrictions had not been lifted, then the UGA might have had a cause of action.

T 17 We need not address the City's argument that the contract was ultra vires and unenforceable for lack of legal consideration. It is impossible to evaluate whether the City might have received fair market value for the property in the absence of any agreed terms for the lease of office space or the purchase of the property. Salt Lake County Comm'n v. Salt Lake County Attorney, 1999 UT 73, ¶¶ 31-32, 985 P.2d 899. Additionally, we need not do so to resolve this case because the UGA's failure to enter into a long-term lease agreement prevented the City from incurring any obligation to transfer the UGA Property. Whether or not the City could legally transfer the property under the condition precedent is therefore irrelevant to our decision.

CONCLUSION

18 The UGA did not perform the condition precedent which would have entitled the UGA to the proceeds of the sale of the UGA Property. The City did not breach its duty to convey perfect title to the property because the City was never obligated to convey the property to the UGA. Judgment is reversed and attorney fees are granted to the City. Reversed and remanded for proceedings consistent with our opinion.

"[ 19 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS opinion.