dissenting.
I disagree with the majority for three reasons. I characterize Judge Esch's decision differently than the majority. I conclude that the jury conducted an unauthorized experiment under Gorz v. State.1 And I would uphold Judge Esch's conclusion that Pease is entitled to post-conviction relief.
During discovery in this case, several jurors from Pease's trial confirmed that the entire panel left the Nesbett courthouse in the middle of deliberations and performed an experiment. The jurors generally agreed that the purpose of the experiment was to see what another person looks like at the distances discussed in the testimony, to see what the relevant distances were on the ground, and to test the validity of Arlo OIl-son's testimony. Olson was the only witness who placed the defendants at the seene of the first crimes occurring on October 11 (the charges of robbery and assault of Franklin Dayton).
The capability of anyone to reasonably identify a person from a distance was the subject of expert testimony and a contested issue. Although more than sixty witnesses testified during the trial, only Olson testified that he saw the defendants robbing and assaulting Dayton. Other witnesses offered conflicting evidence about the defendants' whereabouts when these erimes occurred.
Olson testified that he spoke with one of the men, all four of whom were together in Marvin Roberts's car, at the front steps of Eagles Hall in Fairbanks before the assault on Dayton. Approximately thirty minutes passed before Olson said he saw four men attack Dayton down the street.
Olson confirmed that it was dark outside, but that there were a number of lights nearby, including lights from a nearby gas station and street lights. Olson also stated that, although he was approximately 150 yards from the site of the assault, he recognized Dayton, George Frese, and Eugene Vent immediately because he had known them for a *997while. He further stated that the men had their backs to him for part of the time but that he got a clear look at all four men for approximately three or four seconds while they were hurrying back to the car. Olson conceded that he would have needed binoculars to distinguish the men's facial features, but he could recognize them by their hair and build. Olson also recognized the car the men got into as the blue car he had seen them in earlier.
A day or two later, Olson read an article in the newspaper implicating Frese, Pease, Roberts, and Vent in J.H.'s murder (an act for which he was separately convicted and which is not the subject of this appeal). The article included head shots of the four men. Olson testified that he recognized the defendants as the same men who assaulted Dayton. Olson did not immediately contact the police because he did not want to turn in his friends, but ultimately, he changed his mind and reported the assault. Olson told the police that he recognized the four men from the newspaper as the four who had assaulted Dayton.
Olson admitted drinking alcohol that evening. He conceded that during the attack on Dayton, the assailants often had their backs toward him, and that he only got a good look at them as they ran back to their car after attacking Dayton. And while Olson estimated that Dayton was attacked approximately 150 yards away from him, there was evidence presented that the distance was closer to 550 feet (approximately 183 yards).
To impeach Olson's testimony, the defense presented an expert witness, Dr. Geoffrey Loftus. The superior court qualified Dr. Loftus as an expert in human visual perception and memory. Dr. Loftus testified that one's "ability to distinguish [one person] from somebody else, in other words to recognize them later on, is essentially nil" at distances greater than 200 feet. He testified that this is true even in the best of cireumstances, with full light, unlimited time, and a sober and alert observer.
During deliberations, the bailiff accompanied the jurors as they walked to the corner of Third Avenue and I Street in Anchorage. A juror paced off a distance he believed was 350 or 360 feet and stopped in front of the entrance to an office building near the intersection of Third Avenue and K Street. This distance was later measured at approximately 434 feet. According to at least two accounts, another juror also walked down to the same spot. The jurors then looked at each other to determine whether they could recognize one another at that distance, and a few jurors stated that they also looked at passersby to test whether they could distinguish the features of those strangers. Although most of the jurors could not remember precisely what time it was when they conducted the experiment, they all agreed that it was during daylight hours.
In their depositions, the jurors generally agreed that the purpose of the experiment was to get an idea of the distance discussed in the testimony and to see what another person looks like at that distance. One juror testified:
Well, part of the testimony was that an incident had happened at that distance from the wedding reception.... And I think the [contention] was that it would be difficult to see accurately at that distance. And so it was just a matter of satisfying ourselves whether that was, in fact, true or not.
According to another juror:
The idea was to see if there was some way we can actually, you know, if it's a question of can we see a certain distance, can we get an idea, just by going out and pacing-not pacing off, but somehow guessing what that distance would be, just to feel comfortable[.]
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I don't like the word "experiment," but that probably sums it up. Bottom Tine, it was, to me, a confidence builder or some sort of satisfaction that ... tions were right to begin with. my assump-
This juror also stated that on "one of the first days{, the jurors] went to the window and asked each other, how far do you think that thing is[?]"
When asked about the "connection [between] this experiment and the trial testimony," a third juror responded: "There was *998some discussion around ... what you could see from that distance, could you-could you see a person at that distance or persons[?]" A fourth juror stated that the experiment "had a singular purpose, that was to try to-you know, I suppose for each person to make up his own mind what he thought about how far he could recognize somebody." And a fifth juror explained that she recalled "discussions about distance ... and references to, you know, say, a football field.... And, you know, tell me a football field, and I have no idea what you're talking about. Show me what you mean; I know what you mean." She said the experiment outside the courthouse was designed to show how far the distance they had been discussing actually was.
A sixth juror could not remember how the experiment came about but recalled that it was hot out and speculated that "it could have been [they] were going to go for a walk, and then there was a discussion of how far that distance was, and so from there, it turned into looking at each other to see what it looked like from that distance." She also recalled that an expert witness for the defense "had said it was impossible [to recognize someone at the distances in question], [that] he couldn't recognize his mother, and [she] remember[ed] that a lot of [the jurors] were talking about that, about whether or not that was true, whether that was aceu-rate."
According to a seventh juror,
some of the jurors were kind of confused about how far is that distance, you know, in relation to whatever, and so we ... [went] outside as a group and [tried] to walk off or have somebody stand down where we determined to be a certain distance, ... and so we had a person do that.
Finally an eighth juror recalled the purpose of the experiment as follows:
[The purpose was] just to see what someone would look like at 500 feet away, you know, or-because in my mind I have a hard time figuring out what 500 [feet] would be. I kind of-one of reference of, like, a football [field] is 800 feet. And 500 feet is just-I remember I kept thinking that's just-I don't have any reference point. I don't know what someone would look like, if they'd look like an ant or if they'd look halfway recognizable or whatever. So that's why I was-you know, that was my two cents I chipped in on our discussion about doing this whole thing.
This juror also explained that, because he has poor eyesight, he could not recognize the people down the street. But he listened to what the other jurors were saying and took into consideration that they said they could recognize the other jurors down the street. According to this juror, "it seems like at least half of the people said, 'Oh, yeah, I can tell that is so and so, then it made it believable to me that it's possible. It removed the doubt that one might have that it's impossible to see someone or identify someone at 500 feet."
Thus, some jurors agreed that a purpose of the experiment was to test whether Olson could have recognized the defendants.
Pease moved for summary disposition of his application for post-conviction relief, arguing that the jury performed an unauthorized experiment and that the experiment constituted jury misconduct that denied him his rights of confrontation and cross-examination. The State opposed, contending that the jurors' actions did not constitute an unauthorized experiment and that Pease had not demonstrated that his conviction was unfair.
Judge Esch found that the material facts were not in dispute. Judge Esch found that the jurors conducted an unauthorized, out-of-court experiment to assess the credibility of Olson's and Dr. Loftus's trial testimony. (In its initial briefing, the State did not challenge Judge Esceh's factual findings, and agreed at oral argument that the jury's experiment was misconduct.)
Judge Esch applied the standard for evaluating jury misconduct that this court described in Gorz v. State2: "[The ultimate issue in any case involving juror misconduct is whether it can be said beyond a reasonable doubt that the misconduct did not contribute *999to the verdict."3 He ruled that the misconduct "was likely to have influenced the jury," and could not find that "the jury [misconduct] did not 'contribute' to the ultimate verdict of guilt." Accordingly, he granted post-conviction relief.
The experiment that led to the reversal of the defendant's conviction in Gorz was simple.4 Gorz was charged with first-degree arson arising out of an explosion that occurred at an apartment building in Fairbanks.5 Gorz presented an alibi defense that was based, in part, on evidence that Gorz and his co-defendant were seen a couple of blocks from the apartment building about fifteen minutes after the blast.6 The State did not present any specific evidence on the time it would take to walk from the site of the explosion to where Gorz was seen, but it did establish that the distance between these two locations was about two blocks.7
During a recess in the jury's deliberations, one of the jurors walked from the crime scene at the apartment building to the place where Gorz was seen.8 Apparently, the walk took four to five minutes.9 Gorz argued that the juror's experiment constituted miscon-duet.10
This court reversed Gorz's conviction, ruling that:
a juror commits misconduct by conducting an unauthorized experiment and either personally relying on the results or communicating them to other members of the jury. Evidence that has not been subjected to the procedural safeguards of trial impinges on the constitutional rights to confrontation, cross-examination, and coun-gel. [11]
Judge Esch cited Gor in ruling that the jurors had improperly conducted an unauthorized, out-of-court experiment. Judge Esch found that the jury sought "to test the validity of Loftus'[s] testimony," and to "assess [] the validity of the testimony of Arlo Olson."
Next, to evaluate the effect of the unauthorized experiment, Judge Esch turned to a test set out in Swain v. State 12:
The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. Though this test may seem unduly speculative, it has significant support in the case law, and there appears to be no more precise way to articulate the standard.[13]
Judge Esch ruled that the experiment "was likely to have influenced the jurors' deliberations." He found that the trial was "rife with conflicting testimony," especially Olson's identification testimony and the impeaching expert testimony from Dr. Loftus, and an experiment designed to address this dispute in the evidence was "likely to have influenced the verdict."
On reconsideration, Judge Esch rejected the State's claim that the evidence against Pease was so overwhelming as to negate the effects of the juror misconduct. He described the evidence against Pease as "compelling" but, applying the Swain test's beyond a reasonable doubt standard, he could not find "that the jury action did not 'contribute' to the ultimate verdiet of guilt."
The majority contends that Judge Esch found that the jury's primary purpose was to test Dr. Loftus's assertion that it was impossible for a person to recognize another at distances of more than 200 feet. I do not read Judge Esch's decision as being so limit*1000ed, because the judge also found that the jury was attempting to test the validity of Olson's testimony.
The evidence also points out problems with the jury experiment. During trial, there was evidence that Olson was 550 feet from the nighttime attack on Dayton. A measurement of the distance paced off by a juror in the experiment showed it to be less than 485 feet.
Because the jurors were testing more than Dr. Loftus's testimony, I do not agree that we can conclude that reasonable judges would likely have authorized the experiment they conducted. Experimental evidence is admissible when the conditions of the experiment are substantially similar to the conditions at the time of the event in issue.14 In Love, the supreme court announced a multi-part analysis to decide whether the conditions were substantially similar.15 The factors include: (1) whether the dissimilarities are likely to distort the results of the experiment to a degree that the evidence is not relevant; (2) whether the dissimilarities can be adjusted for or explained so that their effect on the results can be understood by the jury; (8) the purpose of the experiment and the degree to which the matter under experiment is a subject of precise science; and (4) whether the experiment would be considered valid by persons skilled or knowledgeable in the field which the experiment concerns.16
The conditions of the jury's experiment differed markedly from the conditions facing Olson. Olson viewed the attack on Dayton at night at a distance of about 550 feet under artificial lighting. The jurors were looking at each other during the daytime at a distance more than 100 feet less than Olson faced. Considering the differences in the lighting and the significant variation in distance, I conclude that the conditions were not substantially similar.
The majority also discusses several cases that review jury experiments. Most of the experiments in those cases occurred in the jury room with evidence admitted during trial. And the majority of those cases were decided before Gorz. I do not think it is beneficial to rely on other authority when the rule adopted in Gorz is clear: a juror conducting an unauthorized experiment that develops evidence untested in open court violates the defendant's constitutional rights.17
Because such an experiment is a constitutional violation, a conviction cannot stand unless the court can conclude, beyond a reasonable doubt, that the misconduct did not contribute to the verdict. I would affirm Judge Esch's conclusion that the unauthorized experiment was likely to have influenced the jury's deliberations. Therefore, I dissent.
. 749 P.2d 1349 (Alaska App.1988).
. Id.
Id. at 1355. 3
Id. at 1350-55.
Id. at 1350.
. Id. at 1352.
. Id.
Id.
. Id.
. Id. at 1353-55.
. Id. at 1355.
. 817 P.2d 927 (Alaska App.1991).
. Id. at 932 (quoting 2 ABA Stanparps ror Crimr Nat Justice § 8-3.7, Commentary at 58 (2d ed.1980)).
. Love v. State, 457 P.2d 622, 627 (Alaska 1969).
. Id. at 628.
. Id.
. See Gorz, 749 P.2d at 1355. See also United States v. Navarro-Garcia, 926 F.2d 818, 821-23 (9th Cir.1991); People v. Castro, 184 Cal.App.3d 849, 852-54, 229 Cal.Rptr. 280 (1986); People v. Legister, 75 N.Y.2d 832, 552 N.Y.S.2d 906, 552 N.E.2d 154, 154-55 (1990); People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51, 53-54 (1979).