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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EDWARD A. CLUM, )
) Court of Appeals No. A-5214
Appellant, ) Trial Court No. 1JU-93-648 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1407 - April 28, 1995]
______________________________)
Appeal from the District Court, First
Judicial District, Juneau, Peter Froehlich,
Judge.
Appearances: Daniel C. Wayne, Juneau,
for Appellant. Thomas E. Wagner, Assistant
District Attorney, Richard Svobodny, District
Attorney, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Edward A. Clum appeals his conviction for driving while
intoxicated, AS 28.35.030(a). We reverse Clum's conviction
because the prosecutor engaged in improper argument to the jury.
Shortly after midnight on the morning of May 5, 1993,
Juneau Police Officer Jerry Nankervis saw Clum driving erratical
ly. Clum twice drove his jeep across the fog line at the right-
hand edge of the road; Clum also drifted in and out of the center
turn lane, braking suddenly when his car entered the center lane.
Based on these observations, Nankervis stopped Clum's vehicle.
When Clum got out of his jeep, Nankervis observed that
Clum appeared intoxicated: he had a strong odor of alcoholic
beverages, his eyes were bloodshot, his speech was slurred, and
he swayed as he walked. Nankervis asked Clum to perform several
field sobriety tests, which Clum either failed or was unable to
perform. Nankervis also testified that, when he initially asked
Clum for his name, Clum told the officer that his name was "Joe",
only later admitting that his first name was really "Ed".
Nankervis concluded from all these observations that Clum was
intoxicated, and he arrested him.
Clum did not testify at his trial. However, Clum
called Mike Miller, his employer, to testify concerning Clum's
level of sobriety when he was arrested. Miller had not witnessed
any of the events described in the last paragraph, but Miller
asserted that he could ascertain Clum's level of sobriety by
listening to Clum's voice. Before Miller testified, defense
investigator David Hays played an audio tape for him. This
recording, according to Hays, was a copy of approximately twenty
minutes of the original tape recording that the police made when
Clum was brought to the police station for breath testing and
other DWI processing. Hays testified that he played about two or
three minutes of this copy for Miller. When Miller took the
stand, he asserted that, from listening to this segment of the
tape, he could tell that Clum had not been intoxicated at the
police station.
The prosecutor did not comment on Miller's testimony or
the taped interview in his initial summation to the jury, and
Clum's attorney did not mention these topics in his closing
argument. However, in his rebuttal summation, the prosecutor
told the jury:
I want to talk a little bit about Mr.
Miller. Mr. Miller says, "The defendant
didn't sound to me like he was under the in
fluence, on [the] two minutes out of the tape
that I heard." I don't want to suggest to
you that there was a problem with the tape he
heard; you heard how it was done. I don't
want to suggest to you that it wasn't done on
May 5th, that it was done by somebody other
than Officer Nankervis. The defense could
have tied all those things up if they wanted
to. You see, Officer Nankervis is still
sitting here. They could have called him as
a witness and said, "Hey, listen. Did you
make a tape recording? Did you provide it to
the district attorney's office?" They chose
not to do that. You'll have to figure out
why they chose not to do that, but maybe it
suggests that there was something a little
fishy about what went on.
At this point, Clum's attorney interposed: "I have to object,
Your Honor. We know why we didn't call Officer Nankervis. And
it has nothing to do with being fishy." Judge Froehlich
responded: "I'm going to overrule the objection. It's merely a
suggestion, and again, it's what the jury makes of the evidence
that matters here. The attorneys can make suggestions or submit
proposals as to how [the jury] should do that, but it's what the
jury thinks of the evidence that counts."
After Judge Froehlich overruled the defense attorney's
objection, the prosecutor continued:
Let me use a different word; then maybe
I won't give that connotation. Something odd
about Mr. Miller's testimony. And what is
it? What time did you [the jury] get in here
this morning? Nine o'clock. And when you
came in here, what did you see? A proposed
witness list. Who's on that proposed
witness list? Mike Miller. When did Mike
Miller hear this tape? Around eleven o'clock
today. He knew what he was going to say
before he heard the tape. He's on [the
list], he's a proposed witness before he ever
hears the tape. Now, why? Well, you know, I
don't know. I suspect none of us will ever
know. But Mr. Miller does tell us that his
job, his work, will be affected by the
outcome of this trial [because Clum was
Miller's employee]. And maybe that's why, in
listening to two minutes, or four minutes, of
a twenty-minute tape, that he came up with
the observation he did. You should also ask
yourself, "Why did he only listen to two
minutes, or four minutes? Who chose those
four minutes that he listened to? Were they
amended? Were they at the end of the tape,
or the beginning of the tape?" Officer
Nankervis told you he was with the defendant
for about two hours. Was the [defense
investigator's] tape [excerpted from] when
[Nankervis] first contacted the defendant, or
was it made at the end of the two hours?
Would ... the passage of time affect whether
somebody was intoxicated, whether they became
less so, or that his speech got better, after
two hours? They could have called Officer
Nankervis and asked those questions. They
chose not to do that. Since they knew, at
nine in the morning, ...
Clum's attorney then interrupted: "Your Honor, I object again.
The reason we [did not call] Mr. Nankervis has nothing to do with
that _ [the prosecutor] know[s] that." Judge Froehlich declared:
"I'm going to overrule the objection to the argument here, and
again remind the jury [that] it's only argument, not evidence."
The problem here is that the prosecutor's argument,
although only argument, improperly commented on Clum's failure to
call Officer Nankervis _ a witness peculiarly associated with the
State. The prosecutor asked the jury to infer, from Clum's
failure to call Nankervis, that the defense investigator's tape
had been doctored _ that either Clum or his investigator was
perpetrating a fraud on the court.
It is true that the prosecutor prefaced his remarks by
telling the jury, "I don't want to suggest to you that there was
a problem with the tape [Miller] heard[.] I don't want to
suggest to you that [the tape] wasn't [from the morning of Clum's
arrest, or] that it was [made] by somebody other than Officer
Nankervis." However, immediately after making this disclaimer,
the prosecutor asked the jury to draw precisely that inference:
[But] the defense could have tied all those
things up if they wanted to. You see, Offi
cer Nankervis is still sitting here. They
could have called him as a witness and said,
"Hey, listen. Did you make a tape recording?
Did you provide it to the district attorney's
office?" They chose not to do that. You'll
have to figure out why they chose not to do
that, but maybe it suggests that there was
something a little fishy about what went on.
When Clum's attorney objected, the trial judge overruled the
objection; he told the jurors that the prosecutor was engaging in
permissible argument, and that they could consider the
prosecutor's suggestions for whatever value they might have.
Given this invitation, the prosecutor returned to his theme:
Let me use a different word; then maybe
I won't give that connotation. [There is]
something odd about Mr. Miller's testimony.
And what is it? ... You should also ask
yourself, "Why did [Miller] only listen to
... four minutes? Who chose those four
minutes that he listened to? Were they amend
ed? Were they at the end of the tape, or the
beginning of the tape?" ... They could have
called Officer Nankervis and asked those
questions. They chose not to do that.
(emphasis added) Again, when Clum's attorney objected, the trial
judge told the jury that the prosecutor's argument was proper.
Thus, the prosecutor asked the jury to draw the very
inference that he disavowed; the inference that the tape was
suspect and unreliable. When the prosecutor's disclaimer is
evaluated in light of the argument that followed, it proves as
misleading as Marc Antony's protestation that he had come to bury
Caesar, not to praise him.1 The prosecutor clearly asked the
jury to infer, from the fact that Clum had not called Nankervis
to authenticate the tape, that the tape played for Miller had
been altered.
In Lewis v. State, 862 P.2d 181, 190-91 (Alaska App.
1993), this court surveyed the law governing a prosecutor's power
to ask the jury to draw an adverse inference from the fact that
the defendant has failed to call a particular witness. As the
supreme court noted 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), most courts allow such comment when the
absent witness was particularly within the control of the defen
dant. Some courts, responding to commentators' criticism of this
traditional rule, allow comment on the defendant's failure to
call any witness who was available and whose testimony "would
naturally be expected to be favorable to the defendant". People
v. Ford, 754 P.2d 168, 178 (Cal. 1988), and other cases cited in
Lewis, 862 P.2d at 190.
However, under either the traditional approach to this
subject or the more liberal rule now followed by some courts, the
prosecutor's argument in Clum's case was impermissible. Officer
Nankervis was the officer who arrested Clum; he clearly was
associated with the government, not the defense. He was not
under Clum's peculiar control. Nor had the defense made any
factual assertion that would lead one to infer that Nankervis's
testimony could be expected to be favorable to the defense.
On appeal, the State argues that the prosecutor could
lawfully comment on the fact that the defense had neither offered
the tape into evidence nor played the tape in court so that the
jury might hear the portion Miller was testifying about. The
State further argues that the prosecutor could lawfully comment
on the possibility that the four minutes Miller heard might have
been carefully selected to mask the intoxication that Clum
demonstrated on the rest of the tape. We agree with the State
that these arguments were legitimately available to the
prosecutor. However, the State's suggested arguments could have
been made without asking the jury to draw any inference from the
fact that Clum failed to call Nankervis. The problem here is
that the prosecutor made a different, impermissible argument.
Under the circumstances of this case, the trial judge
erred when he failed to sustain Clum's objection to the
prosecutor's argument. When Clum made his objection, the judge
should have instructed the jury that Clum was under no obligation
to call Nankervis and that the jurors were to draw no adverse
inference from the fact that Clum had failed to call Nankervis.
Because we can not say that this error was harmless, Clum is
entitled to a new trial.
The judgement of the district court is REVERSED.
_______________________________
1 In William Shakespeare's Julius Caesar, Act III, Scene 2,
the conspirators who have assassinated Caesar and who now rule
Rome allow Marc Antony to speak at Caesar's funeral, even though
Antony was Caesar's friend and supporter. Antony's funeral
oration begins, "Friends, Romans, countrymen _ lend me your ears!
I come to bury Caesar, not to praise him." Antony then proceeds
to recite and extol Caesar's personal, civic, and military
virtues _ all the while protesting that he means no disrespect to
the "honorable men" who assassinated Caesar. Antony's words
incite the multitude to revolt against the conspirators.
