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THE COURT OF APPEALS OF THE STATE OF ALASKA
PATRICK T. HILL, )
)
Appellant, ) Court of Appeals No. A-5164
) Trial Court No. 3AN-S93-1254CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1436 - September 15, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: G. Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Eric A.
Johnson, 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.
Following a jury trial, Patrick T. Hill was convicted
of two counts of forgery in the second degree. AS
11.46.505(a)(1). Hill appeals, claiming that the prosecutor's
closing argument impermissibly commented on Hill's failure to
testify. We affirm.
On February 17 and 18, 1993, Hill attempted to cash two
checks at National Check Cashers in Anchorage; both checks had
been stolen and forged. Hill was arrested in the course of his
second attempt. Upon arrest he gave the police an exculpatory
statement, claiming that he had received the checks in payment
for work that he had performed on a car. Subsequent
investigation established that Hill had not personally forged the
stolen checks. The state nevertheless prosecuted Hill for second-
degree forgery on the theory that he knowingly possessed the
forged checks.
At trial, Hill's exculpatory post-arrest statement was
introduced through the testimony of Anchorage Police Officer
Reese Dash. Hill did not testify at trial; he relied on his post-
arrest statement and sought to establish, through cross-
examination of the state's witnesses, that the police had failed
to investigate his version of events. During final argument, the
prosecutor summarized the state's evidence, and then turned to
Hill's version of events, emphasizing that Hill's out-of-court
statement was not credible:
I think another important thing for you
to remember, ladies and gentlemen, is that
the police statement given by the defendant
was not under oath and that the witnesses
that have come in here and testified before
you testified in a court of law under oath.
That's a very serious thing. That also goes
to the credibility of whether or not the
evidence is credible in terms of the
statements of the defendant. Submitting --
one of the primary reasons behind the law
allowing cross-examination is because it is a
device seeking the truth revealing credible
evidence and you must understand that the
police interview by the defendant was not
capable of cross-examination and neither was
it under oath. Okay. So just accept that
when taking -- when evaluating that statement
and that evidence. Obviously the defendant
does not have to testify in this case. That
is his constitutional right and I think that
when you review the evidence, you should take
into consideration the police officers that
testified here and focus on your task in
determining whether or not the defendant
knowingly uttered or possessed a forged
instrument on February 17th and 18th with the
intent to defraud.
Hill objected and moved for a mistrial, contending that
this argument amounted to an impermissible comment on his failure
to take the stand. Superior Court Judge Milton M. Souter denied
the motion, and the jury convicted Hill. Hill appeals, renewing
his claim of improper prosecutorial comment on his failure to
testify.
The Fifth Amendment to the United States Constitution
and Article I, section 9, of the Alaska Constitution both forbid
unfavorable comment on a defendant's exercise of the right to
refrain from testifying at trial. Griffin v. California, 380
U.S. 609, 615 (1965); McCracken v. State, 431 P.2d at 513, 517
(Alaska 1967). The universally accepted test for determining
whether prosecutorial remarks amount to prohibited comment is
"whether the language used was manifestly intended or was of such
character that the jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify."
McCracken, 431 P.2d at 517. Accord United States v. Tarazon, 989
F.2d 1045, 1051-52 (9th Cir. 1993); United States v. Durant, 730
F.2d 1180, 1184 (8th Cir. 1984); see generally Wayne R. LaFave &
Jerold H. Israel, Criminal Procedure 23.4(b) n.28 (Supp. 1991
at 20-21). This test requires that prosecutorial comments be
assessed in the context of the evidence at trial. McCracken, 431
P.2d at 517; United States v. Montgomery, 819 F.2d 847, 853 (8th
Cir. 1987). Applying the test to the present case, we are unable
to conclude that the challenged remarks amounted to an
impermissible comment on Hill's failure to testify.
The prosecutor's argument that Hill's exculpatory
version of events was not sworn or subject to cross-examination
did not focus on Hill's failure to testify or ask the jury to
draw any unfavorable inference therefrom. It focused instead on
elements rendering Hill's out-of-court statement worthy of doubt.
In context, this argument was not impermissible. It was not
manifestly intended as an adverse comment on Hill's failure to
testify; nor would the jury naturally and necessarily have taken
it as such. Federal courts have found similar arguments advanced
under like circumstances to be permissible.1
The prosecutor's ensuing comment -- "Obviously the
defendant does not have to testify in this case. That is his
constitutional right[.]" -- presents a closer question. Hill
characterizes this as a direct comment on his failure to testify
and insists that it was therefore constitutionally impermissible
under Griffin v. California. While Hill is technically correct
in asserting that this statement directly commented on his
exercise of the right to silence, he is incorrect in concluding
that it was therefore automatically impermissible. For Griffin
does not categorically forbid all comment on a defendant's
exercise of the right to silence:
It is clear from even a cursory
review of the facts and the square holding of
the Griffin case that the Court was there
concerned only with adverse comment, whether
by the prosecutor or the trial judge --
"comment by the prosecution on the accused's
silence or instruction by the court that such
silence is evidence of guilt." The Court
reasoned that such adverse comment amounted
to "a penalty imposed by courts for
exercising a constitutional privilege.["]
Lakeside v. Oregon, 435 U.S. 333, 338-39 (1978)(citations
omitted; emphasis in original). Because the Constitution bars
only adverse comment on a defendant's failure to take the stand,
an argument by the prosecution affirming the defendant's
constitutional right to silence is not per se forbidden.
We recognize that in some contexts even an apparently
benevolent reference by a prosecutor to a defendant's constitu-
tional right to remain silent could be highly damaging. Cf.
Lakeside, 435 U.S. at 345-47 & n.6 (Stevens, Justice, dissenting)
("It is unrealistic to assume that instructions on the right to
silence always have a benign effect.").2 An argument by the
prosecution that makes unnecessary and unsolicited reference to
the defendant's right to silence may be meant as nothing more
than a reminder that the defendant in fact did not testify -- a
reminder made in the hope that the jury, acting of its own
accord, will draw a negative inference from silence. When the
circumstances of a given case involve a gratuitous reference of
this kind, the trial court may justifiably find an impermissible
comment -- a comment "manifestly intended" to encourage an
inference of guilt from silence. But a facially neutral
reference to the constitutional right to silence becomes
impermissible, and thereby provides occasion for a mistrial, only
when it appears, in context, that the reference was manifestly
intended as an adverse comment on the defendant's failure to
testify or that the jury would naturally and necessarily
understand it as such. See Church, 854 P.2d at 140.
In the present case, viewing the state's final argument
in light of the totality of the circumstances, we find no basis
for concluding that the prosecutor's reference to Hill's right to
silence amounted to an adverse comment on the exercise of that
right. In calling attention to Hill's right, the prosecutor
neither expressly nor implicitly urged the jury to draw any
negative inference from Hill's failure to testify. As the trial
court correctly recognized, the prosecutor's reference to Hill's
constitutional right was evidently made for a legitimate purpose:
to prevent the jury from misconstruing the immediately preceding
argument (that Hill's out-of-court statements were unsworn and
not subject to cross-examination) as an attempt to blame Hill for
failing to testify.3
As the trial court also correctly recognized, by the
time the parties presented their final arguments to the jury,
Hill had already made a tactical decision not to deflect the
jury's attention from his failure to take the stand. During voir
dire, Hill advised prospective jurors that he would not testify
and questioned them on the issue. Before final argument
commenced, Hill requested the court to include in its final jury
instructions the standard instruction advising that the defendant
has an absolute right to refrain from testifying and that no
inference may be drawn from the exercise of that right. Hence,
it is clear that the state's unsolicited reference to Hill's
failure to testify did not jeopardize Hill's trial strategy.4
In Church, 854 P.2d at 140, the Arizona Court of
Appeals considered a claim of constitutional error involving a
statement similar to the one challenged by Hill. Rejecting the
claim, the court stated:
Here, the remarks simply affirmed
the defendant's right not to testify at
trial. They were not adverse; they did not
urge the jury either to draw an unfavorable
inference or to impose a penalty on the
defendant for the exercise of the right to
silence. Therefore, the remarks did not
violate the Fifth Amendment, [or] our
constitution[.]
The conclusion reached in Church applies in the present
case. In context, the state's reference to Hill's right to
silence was not manifestly intended as an adverse comment on
Hill's exercise of the right, nor would the jury naturally and
necessarily have taken it as an adverse comment. For this
reason, we conclude that the disputed reference did not amount to
a constitutional violation.
In sum, neither the state's argument concerning the
credibility of Hill's out-of-court statement nor its ensuing
mention of Hill's right to refrain from testifying amounted to an
impermissible comment on Hill's constitutional right to silence.
The trial court did not err in denying Hill's motion for a
mistrial.
The conviction is AFFIRMED.
_______________________________
1. See, e.g., Horne v. Trickey, 895 F.2d 497, 501 (8th
Cir. 1990)("The state did not call attention to Horne's failure
to testify, but rather to the fact that the statement was extra-
judicial and not credible, and therefore should be given less
weight than the in-court testimony of the victim of the crime.");
Porter v. Estelle, 709 F.2d 944, 959 (5th Cir. 1983)("[T]he focus
of the prosecutor's remarks concerning the `unsworn' nature of
the statement was to question its reliability at the time of its
confection, where Porter relied upon the exculpatory statements
therein . . . to establish his claim[.]").
2. For this reason, many courts bar unsolicited
instructions on the accused's right to silence, even though such
instructions are not constitutionally barred. Lakeside, 435 U.S.
at 348 & n.10. And some courts have expressly discouraged
prosecutors from making unsolicited mention in final argument of
the defendant's right to silence. See, e.g., State v. Church,
854 P.2d 137, 140 (Ariz. App. 1993).
3. Hill criticizes the state's comment because it informed
the jury that Hill had the right to refrain from testifying but
failed to emphasize that the jury must refrain from drawing any
adverse inference from his exercise of that right. However, to
the extent that this point was not implicit in the state's
argument, the deficiency was cured by the trial court's ensuing
instructions, which expressly cautioned the jury against drawing
any unfavorable inference from Hill's failure to take the stand.
4. Compare, e.g., Lakeside, 435 U.S. at 345-48 (Stevens,
Justice, dissenting)(arguing that the trial court should be
barred from instructing the jury on a defendant's right to
refrain from testifying if the defendant objects to such an
instruction for strategic reasons).
