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THE COURT OF APPEALS OF THE STATE OF ALASKA
MARTIN L. GILBERT, )
) Court of Appeals No. A-4150
Appellant, ) Trial Court No. 3KN-S88-438CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1397 - March 10, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kenai, Charles K. Cranston, Judge.
Appearances: Gordon G. Goodman,
Robinson, Beiswenger & Ehrhardt, Soldotna,
for Appellant. John A. Scukanec, 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.
BRYNER, Chief Judge.
Martin L. Gilbert was convicted by a jury of sexual
assault in the first degree, AS 11.41.410(a)(1), and assault in
the first degree, AS 11.41.200(a)(2). Gilbert appeals, claiming
that the trial court improperly overruled his objection to the
prosector's final argument, which commented on Gilbert's failure
to call a witness in his defense. We reverse.
On the night of April 12-13, 1988, Gilbert, who worked
aboard the fishing vessel Valoris, went with other members of the
Valoris' crew to the Yukon Bar in Seward. B.M., a student in the
forestry program at the Alaska Vocational Technical Center
(AVTech) in Seward, was also at the Yukon Bar. During the last
hour to hour-and-a-half before the Yukon Bar's 5:00 a.m. closing,
Gilbert and B.M. sat next to each other at the bar and talked to
the bartender. Gilbert and B.M. left the bar some time between
4:50 a.m. and 5:00 a.m. They were the last customers to leave.
B.M. began walking back toward the AVTech dormitory; Gilbert
accompanied her. What happened next was the central dispute at
Gilbert's trial.
According to B.M., when she and Gilbert were within
viewing distance of the school, Gilbert grabbed her, pulled her
off the road, and forcibly raped her; after committing the rape,
Gilbert began to choke B.M., and she passed out. When she awoke,
Gilbert was gone. B.M. then went to the nearest house with
lights on and called the police.
In support of B.M.'s version of events, Jeanette
Willis, an AVTech student, testified that, while walking to
school early in the morning on April 13, she heard a woman
scream; the scream came from a nearby wooded area. Willis looked
back and saw someone in the snow. She walked on to the school
and called the police shortly after arriving. In a subsequent
interview, Willis evidently told that police that, after hearing
the scream, she had seen a woman and a man, who was wearing a
dark coat, together in the snow. At trial, however, Willis only
recalled seeing the woman.
The Seward Police Department received Willis' call at
about 5:25 a.m. Officer James Knudson testified that he
responded to the call but mistakenly investigated an area about a
block away from the area Willis had observed; finding nothing
suspicious, Knudson returned to the station. At 6:26 a.m., the
police received a second call, this one coming from the house
where B.M. went after regaining consciousness. Knudson responded
and found B.M., who had obviously been severely battered. B.M.
reported the rape.
In his defense at trial, Gilbert did not deny
accompanying B.M. as she returned to AVTech from the Yukon Bar,
and he acknowledged having sexual intercourse with her in the
woods near the AVTech dormitory. According to Gilbert, however,
the intercourse was consensual. Gilbert testified that, after he
and B.M. had sexual intercourse, B.M. went to sleep. Gilbert
tried to wake her, but she did not want to be woken. Gilbert
then returned to the Valoris. Gilbert insisted that B.M. was
asleep and uninjured when he left her.
Given the timing of the two calls that the police had
received on the morning of the rape -- the first at 5:25 a.m. and
the second an hour later -- Gilbert theorized that someone must
have assaulted and raped B.M. after Gilbert had left her asleep
in the wooded area near AVTech. To support this theory, Gilbert
called two witnesses. One of the witnesses, Jeffrey Jackson, was
living in Arkansas at the time of Gilbert's trial. At the time
of the alleged rape, however, both witnesses had been AVTech
students living in the school's dormitory. Both testified that,
at approximately 5:15 to 5:30 a.m. on April 13, two intoxicated
men, one wearing a dark coat, had knocked on an AVTech dormitory
window, trying to gain entry.
Gilbert himself insisted that by 5:30 a.m., he was
already back on board the Valoris. He explained that he had been
anxious to get back to his boat before his skipper woke up; he
recalled looking at the clock when he boarded the vessel. In
describing his actions, Gilbert mentioned seeing a crewmember as
he boarded the vessel:
Yeah, Bob Olson, one of our deckhands
that we'd hired in Seattle, was cooking
breakfast or cooking, I don't know if he just
got back to the boat or not, but he was
awake. And I remember looking at the clock.
It was five-twenty something because I was
worried whether or not I was getting back
before Lloyd [Gilbert's boss] got up. . . .
On cross-examination, Gilbert acknowledged that, in a prior
police interview, he had never mentioned seeing Olson when he
returned to the boat.
During the rebuttal stage of the state's final argument
to the jury, the prosecutor stated:
[Gilbert's attorney] said the state had
the power to produce all these witnesses and
. . . well, speaking of witnesses, let me ask
you a question: Why do you think the defense
went to all the effort of bringing Jeff
Jackson back from Arkansas but they didn't
bother to bring you Bob Olson, this quote Bob
Olson that we heard about on Monday, the one
man that can presumably give him his alibi?
The one man that supposedly is right there
when he comes in at five-twenty something in
the morning. Ask yourselves and think about
that when you listen to what -- and reflect
on what [defense counsel] is telling you.
Gilbert's attorney objected, asserting that the defense
had no burden to produce witnesses and that "there are other
considerations as to why Mr. Olson may or may not be here." The
trial court, however, overruled the objection. The prosector then
continued:
The state's not saying that Mr. Gilbert
had any burden of proving anything. I'm just
saying if they went to all the trouble of
bringing a man here from Arkansas who really
doesn't know anything about this case, why do
you suppose they didn't go to the effort of
bringing somebody here who allegedly saw him
at five-twenty in the morning? Think about
that. I'll tell you why. . . . You've heard
of the phrase "red herring." That's the job
of the defense, to throw out red herrings to
distract you.
On appeal, Gilbert contends that the trial court erred
in allowing the prosecution to argue that the jury should draw an
adverse inference from Gilbert's failure to call Olson as a
defense witness.
In McCurry v. State, 538 P.2d 100, 104 (Alaska 1975),
overruled on other grounds by Howe v. State, 589 P.2d 421 (Alaska
1979), the Alaska Supreme Court noted that comment on a
defendant's failure to call a witness is usually allowed only
when the absent witness is peculiarly within the control of the
defendant and when, under the defendant's version of events, the
witness could reasonably be expected to provide testimony
favorable to the defense. More recently, in Lewis v. State, 862
P.2d 181, 190-91 (Alaska App. 1993), after reviewing current case
law, this court found that some courts have adopted a more
flexible approach, abandoning the requirement that the non-
testifying witness be peculiarly within the control of the
defendant; these courts allow a negative inference to arise from
the defendant's failure to call any witness "whose testimony
`would naturally be expected to be favorable' to the defendant."
Lewis, 862 P.2d at 190 (quoting People v. Ford, 754 P.2d 168,
178 (Cal. 1988)); see also Wheatley v. State, 465 A.2d 1110, 1111
(Del. 1983)(en banc); State v. Moore, 620 S.W.2d 370, 373 (Mo.
1981)(en banc).
Courts appear to be particularly disposed toward
flexibility in allowing prosecutorial comment on a defendant's
failure to call a potentially favorable witness when the witness
is an alibi witness mentioned for the first time at trial. See,
e.g., United States v. Schultz, 698 F.2d 365 (8th Cir. 1983);
United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980); cf.
Commonwealth v. Niziolek, 404 N.E.2d 643 (Mass. 1980). The state
relies on these cases: it attempts to characterize the challenged
argument in the present case as fair comment on Gilbert's failure
to call a previously undisclosed alibi witness.
In our view, however, the state's attempted
characterization falls wide of the mark. Although it is
undisputed that Gilbert made no mention of Olson before
testifying in his own defense at trial, it is inaccurate to
portray Olson as a missing alibi witness. Gilbert appears to
have mentioned Olson only as a point of reference fixing
Gilbert's own recollection of seeing the Valoris' clock when he
boarded the vessel. At no point in his testimony or in the
ensuing final argument of his counsel did Gilbert suggest any
significance to his sighting of Olson apart from the tie-in
Gilbert personally drew between this observation and his action
of looking at the clock. Gilbert did not testify, argue, or
imply that Olson, for his part, would have had any occasion to
remember the event; indeed, Gilbert's testimony did not even
state or suggest that Olson had noticed Gilbert board the
Valoris.
Furthermore, although it is certainly clear that
Gilbert's failure to mention Olson prior to trial rendered Olson
unavailable to the state, the record is virtually barren of
information establishing that Olson was available to Gilbert.
From Gilbert's own testimony, it appears that Olson was a casual
acquaintance at best -- a deckhand recently hired in Seattle. At
no point in its cross-examination of Gilbert did the state
inquire about Gilbert's knowledge of Olson's whereabouts or about
Olson's availability to Gilbert. No evidentiary basis was
presented to support an inference by the jury that Gilbert could
have called Olson as a defense witness had he wanted to, and the
relationship between Gilbert and Olson is not sufficiently close,
standing alone, to support such an inference.
In short, the circumstances of this case simply fail to
sustain a rational inference that Olson was a witness who "would
naturally be expected to be favorable" to Gilbert. Ford, 754
P.2d at 178. It appears, to the contrary, that Olson could most
naturally have been expected to be neutral -- a witness who, even
assuming he was peculiarly available to Gilbert, would likely
have had little light to shed on the issues in dispute at
Gilbert's trial.
For these reasons, the disputed argument in this case
could not be deemed proper under either the McCurry approach or
the more flexible approach described in Lewis. Under either
approach, it was unfair for the prosecution to argue that the
jury should draw a negative inference from Gilbert's failure to
call Olson, because the totality of the evidence at trial could
not fairly support such an inference. The prosecution's argument
effectively called on the jury to speculate on matters beyond the
scope of the evidence and the inferences fairly arising from that
evidence. The improper argument was exacerbated by the trial
court's denial of Gilbert's timely objection. The court's ruling
could readily have been viewed by the jury as an indication that
the negative inference proposed by the state could fairly be
drawn. At the very least, the court's ruling enabled the
prosecution to return to the theme and repeat its improper
argument. So nurtured, the seed of unfairness yielded
substantial prejudice.1 We are unable to say that the
impropriety did not have a substantial effect on the jury's
verdict. Love v. State, 457 P.2d 622, 631-32 (Alaska 1969).
Accordingly, we REVERSE.
_______________________________
1. The state notes that Gilbert did not move for a
mistrial, request a curative instruction, or object to the
state's repeated reference to the significance of his failure to
call Olson as a defense witness. Given the court's decision to
overrule Gilbert's initial objection, however, Gilbert's counsel
could properly have concluded that further objection would be
pointless and might only result in drawing additional attention
to the improper argument.
