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THE COURT OF APPEALS OF THE STATE OF ALASKA
HARRY NOAH, )
) Court of Appeals No. A-5102
Appellant, ) Trial Court No. 4BE-S92-638CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1388 - January 6, 1995]
Appellee. )
________________________________)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Mark I. Wood,
Judge.
Appearances: Elizabeth Brennan,
Assistant Public Defender, Bethel, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Harry Noah was convicted, following a jury trial, for
selling an alcoholic beverage without a license in an area where
the issuance of a license is prohibited. AS 04.11.010(a);
AS 04.16.200(b). Noah appeals, arguing that District Court Judge
Mark I. Wood erred in failing to grant Noah's mistrial motion.
We reverse.
On the evening of July 2, 1992, two off-duty Bethel
police officers were driving away from Alice's Restaurant in
Bethel when they saw a group of six people who appeared to be
intoxicated. The police saw one person, Robert David, hand what
appeared to be currency to another person in the group, Harry
Noah, the defendant. The police then saw Noah reach into his
waistband, pull out a bottle which appeared to a liquor bottle,
and hand it to David.
Noah is deaf and mute, and was not able to communicate
with the police officers. The police officers placed him under
arrest for sale of an alcoholic beverage without a license. In
searching Noah they found $100 and a Gilbey's vodka bottle, which
was about a quarter full. The police questioned Robert David
immediately after the incident. At the time of the interview,
David was intoxicated. David told the police that he did not
know the person who sold him alcohol and that the seller spoke
English and Yup'ik.
Noah's case went to trial on June 1, 1993. At trial,
the state presented the testimony of Robert David and the two
police officers. In court, David testified that he knew Noah and
that Noah had sold him a bottle of liquor for $50. The defense
did not present any evidence, resting its case after the state
rested its case.
In her closing argument, counsel for the defense first
argued that a sale of alcohol had not occurred and that the men
with Noah had simply been passing a bottle around when they were
observed by the police. Second, counsel argued that even if an
illegal sale had occurred, another of the men present was
responsible and that the case was one of mistaken identity. She
further argued that the police had not been in a position to
accurately see what was happening, and that Robert David was an
incredible witness who was drunk at the time of the alleged sale
and who had a demonstrably bad memory. Counsel also argued that
because of Noah's disability, he did not have the skills to be
involved in the alleged sale.
After closing arguments, Judge Wood instructed the jury
and sent it to deliberate. After the jury had begun its
deliberations, the prosecutor reminded the court that the court
needed to address Noah personally about his desire to testify.
See LaVigne v. State, 812 P.2d 217 (Alaska 1991). When asked if
he wanted to testify, Noah indicated that he did. At that
point, the court interrupted the deliberations of the jury.
After a short recess during which he discussed the matter with
his attorney, Noah communicated that he was confused and did not
know what type of questions would come in cross-examination. He
said that although his attorney had advised him not to testify,
he wanted to tell his side of the story. Judge Wood found that
Noah wanted to testify and called the jury back to the
courtroom, informing them that the trial would continue the next
morning and that Noah would testify. The next day, before
he testified, Noah moved for a mistrial. Noah's attorney argued
that because of her previous discussions with Noah she had not
expected him to testify and as a result, she had made arguments
that would be inconsistent with Noah's testimony. As an offer of
proof, counsel outlined Noah's expected testimony:
[Noah] was in Bethel and was approached by
some people in a white car to get into the
car with them. He rode around with them and
they gave him a bottle of alcohol and pointed
to a group of people [indicating] that he
[should] walk towards that group of people,
and they handed him some money. He put it in
his pocket because he didn't know what to do.
He felt pressure by the group of people he
gave the bottle of alcohol. He was very
confused and didn't know what was going on.
Then the police came. The people in the car
drove away and the police threw him on the
ground and arrested him.
Counsel argued that this new testimony, and the accompanying
theory that Noah did not knowingly or intentionally sell the
alcohol, were inconsistent with her earlier closing argument.
She argued that even if the court gave a curative instruction,
the jury would not forget the previous day's argument, and the
jurors would view her argument as incredible in light of Noah's
testimony. Judge Wood denied the motion.
Noah testified before the jury in a manner consistent
with the earlier offer of proof. After Noah testified, Judge
Wood instructed the jury that the previous closing arguments had
been based on the evidence at that time and that those arguments
should be disregarded to the extent that they were inconsistent
with the additional closing arguments that the jury was about to
hear.
The parties then argued the case for the second time.
The prosecutor argued that Noah's testimony strengthened the
state's earlier arguments and that although Noah may have been
used as an intermediary in the sale, his disability did not
prevent him from knowing and understanding what he was doing.
Noah's attorney abandoned her earlier defense theory and argued
that Noah was tricked into selling the bottle of alcohol and that
he had been too confused at the time to have sold the bottle
knowingly.
The jury was sent to deliberate a second time and
returned with a verdict of guilty. Noah now contends that Judge
Wood erred in denying his mistrial motion.
Whether to grant a mistrial is within the sound
discretion of the trial court, and the trial court's decision
will not be reversed on appeal absent an abuse of its discretion.
For the court to have abused its discretion, its decision must
have been clearly unreasonable. Roth v. State, 626 P.2d 583, 585
(Alaska App. 1981).
In LaVigne, 812 P.2d at 222, the Alaska Supreme Court
stated:
To avoid future cases such as
LaVigne's, we believe that trial judges
should take steps to insure that a criminal
defendant's failure to take the stand in his
or her own defense was the result of a
knowing and voluntary decision made by the
defendant. To accomplish this, we believe
judges should make an on-the-record inquiry
after the close of the defendant's case,
although out of the jury's hearing, into
whether a nontestifying defendant understands
and voluntarily waives his right. Such
action insures a valid waiver of the
defendant's right. It will also assist in
any subsequent appellate review of a
defendant's claim to the contrary.
Judge Wood erred by failing to make the on-the-record
inquiry required by LaVigne before the case was submitted to the
jury. Because of this omission, we are unable to determine what
response Noah might have made had the inquiry been conducted at
the proper time. However, when Judge Wood conducted the inquiry,
Noah wanted to exercise his right to testify. His testimony was
inconsistent with his counsel's previous summation, thus
undermining the credibility of both Noah's testimony and his
attorney's closing argument. In addition, the state was in a
position to point out the inconsistencies. Under the
circumstances, we believe it clear that the trial court's
submission of the case to the jury without first obtaining Noah's
knowing and voluntary waiver of his right to testify prejudiced
Noah's right to fundamental fairness at trial. We accordingly
conclude that Noah's conviction must be reversed.
REVERSED.
