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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adams v. State (9/16/2011) sp-6600
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LEROY ADAMS, )
) Supreme Court No. S-13733
Petitioner, ) Court of Appeals No. A-9643
)
v. ) Superior Court No. 2KB-05-00455 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6600 - September 16, 2011
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Second Judicial District, Kotzebue, Richard H.
Erlich, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Terisia Chleborad, Assistant Attorney General, Office of
Special Prosecutions & Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
A jury convicted Leroy Adams of sexual assault in the second degree for
having sexual intercourse with K.S. when he knew that K.S. was unaware that a sexual
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act was being committed. Both Adams and K.S. were intoxicated at the time, and Adams
testified at trial that the sex was consensual. During his cross-examination of Adams, the
prosecutor questioned Adams about his refusal to speak to the police prior to trial. The
prosecutor also argued to the jury in closing that Adams's refusal to talk to the police
made his testimony at trial less credible. Adams claimed on appeal that the prosecutor's
questions and argument were improper comments on Adams's right to silence under
article I, section 9 of the Alaska Constitution. Because Adams did not object to the
prosecutor's questions or argument at trial, his claims were reviewed for plain error, and
the court of appeals affirmed his conviction. We granted Adams's petition for review
and now conclude that the prosecutor improperly commented on Adams's invocation of
his right to silence and violated his constitutional rights. We reverse Adams's conviction
and remand for a new trial.
II. FACTS AND PROCEEDINGS
A. Underlying Facts
On February 7, 2005, K.S. traveled from her home in Kivalina to Kotzebue
for a dentist appointment. K.S. was sixteen years old at the time. That night, K.S. was
drinking with a friend and consumed about half a bottle of whiskey. She left her hotel
room and went to the apartment of Nellie Knox, where K.S.'s cousin Emma Hawley was
staying. According to Hawley, K.S. was visibly intoxicated, "banging on the door" of
Knox's apartment and "hollering." Hawley tried to convince K.S. to come inside and
go to sleep, but K.S. refused and said that she wanted to go out. Hawley left K.S. in the
hallway and went back inside Knox's apartment. Going to see Hawley was the last thing
that K.S. remembered prior to waking up in Leroy Adams's apartment.
Leroy Adams and his wife Mae Adams lived in the same apartment
complex. On the night of February 7 and the early morning hours of February 8, Adams
and Mae were drinking whiskey and playing board games in their apartment with Lena
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Koenig, who described Mae and Adams as her aunt and uncle. Adams and Mae were
47 years old at the time and they knew K.S. from Kivalina. Emma Hawley testified that
before she went back inside, she saw Mae call K.S. over to her apartment. According
to Mae, she was outside smoking a cigarette with Adams and Koenig when she noticed
that K.S. was so drunk that she was "staggering" and about to "pass out." Because they
were concerned that K.S. would freeze outside in the cold, Koenig and Mae had K.S.
come back to the Adamses' apartment.
At the Adamses' apartment, K.S. sat or lay on the couch while Adams,
Mae, and Koenig continued to drink and play board games. Mae and Adams testified
that K.S. wanted to drink more whiskey, but Mae would not give her any. K.S. then got
up from the couch and tried to grab the bottle of whiskey, which was near Adams.
According to Mae and Adams, K.S. let her shirt slide down and rubbed her breast against
Adams's arm before grabbing the whiskey bottle and drinking from it. Adams said that
he was also "pretty well intoxicated" at this point.
Koenig and Mae then went back outside to smoke another cigarette and
Koenig left the apartment complex. Adams testified that he asked K.S. if she was
"coming on to [him]" by "touching [his] elbow with her [breast]" and if "she wanted to
get it on while no one was in the apartment." Adams maintained that K.S. voluntarily
went into the bedroom with him, that she consented to oral sex, and that she was awake
and actively participating. At that point, Mae returned to the apartment, went into the
bedroom and saw K.S. lying on the bed with Adams's "head between her legs." Mae
testified that K.S. was awake "because she had her eyes open," but that neither Adams
nor K.S. said anything. Mae also claimed that she "tried to stop [Adams]," but that he
"put out his arm, and [she] blacked out after that." According to Adams, he shoved Mae
when Mae tried to pull him off K.S., and Mae then went back to the living room.
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Adams further testified that a few minutes later, Mae returned to the
bedroom and began touching K.S.'s breasts. He claimed that he told Mae to leave and
then asked K.S. if they could have vaginal intercourse. According to Adams, K.S.
consented, and afterward "we both realized what we had done, and she wanted to get out
of the apartment as quickly as she can [sic]." He said that K.S. got dressed, went to the
bathroom, and left after calling Emma Hawley to ask her to open the door to Nellie
Knox's apartment. Adams and Mae then continued drinking and fell asleep until the
police knocked on their door the next morning.
K.S. testified that after talking to Hawley outside Knox's apartment, the
next thing she remembered was waking up with Adams on top of her engaged in vaginal
intercourse. K.S. maintained that she did not consent and also alleged that Mae was in
the room "playing with [K.S.'s] bottom." According to K.S., when she woke up, Adams
got off of her, and she went to the bathroom, dressed, and called Hawley.
When Hawley answered the phone, K.S. was crying and said "I'm hurting
and I don't know what to do" and "she pushed me . . . with her breasts." K.S. asked
Hawley to open the door to Knox's apartment. When K.S. arrived at Knox's apartment,
she was still crying and had left her shoes behind. K.S. told Hawley, "I'm hurting" and
"it hurts when I pee," and then she went back to sleep. Based on K.S.'s statements,
Hawley told her uncle that K.S. had been raped. Hawley's uncle then called the Alaska
State Troopers.
B. The Investigation
Trooper Ron Monigold arrived at the apartment complex around 8:30 a.m.
on February 8. He met with K.S. and observed that she was upset and crying and
appeared to still be intoxicated. Trooper Monigold took K.S. to the hospital, where she
underwent a sexual assault examination and gave a statement to the police.
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Trooper Monigold then returned to the apartment complex and made
contact with Adams around 10:00 a.m. Trooper Monigold smelled alcohol on Adams's
breath and spoke to Adams for about five to ten minutes. Adams told Trooper Monigold
that the previous evening Adams and Mae had been outside smoking when they saw K.S.
passed out on the stairs. Adams said that they first took K.S. to her friend's apartment
(presumably the apartment of Nellie Knox), and that later K.S. came to their apartment.
At some point during the interview, Adams told Trooper Monigold that he no longer
wanted to answer questions. Trooper Monigold asked Adams to accompany him to the
hospital for a sexual assault exam and mentioned that it was in Adams's best interest to
make sure that he had not contracted a sexually transmitted disease. Adams agreed to
accompany the trooper to the hospital, where a DNA specimen was obtained from him
for a sexual assault suspect kit.
The sexual assault exams showed that DNA from the sperm collected from
K.S.'s vagina was a statistical match to Adams's DNA. On August 26, 2005, Leroy and
Mae Adams were each indicted on one count of sexual assault in the second degree.1
C. The Prosecutor's Disputed Remarks
The case against Leroy and Mae Adams was scheduled for trial in
November 2005. On the eve of trial, Mae Adams reached an agreement with the State
to plead no contest to misdemeanor fourth-degree assault. This agreement allowed Mae
to avoid the possibility of a felony conviction and sex offender registration. Mae agreed
1 Leroy was indicted under AS 11.41.420(a)(3)(C), which provides that an
offender commits the crime of sexual assault in the second degree if "the offender
engages in sexual penetration with a person who the offender knows is unaware that a
sexual act is being committed." Mae was indicted under AS 11.41.420(a)(1), which
provides that an offender commits the crime of sexual assault in the second degree if "the
offender engages in sexual contact with another person without consent of that person."
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----------------------- Page 6-----------------------
to a sentence of 360 days jail time with 270 days suspended and 90 days to serve and
also agreed to testify at Adams's trial. The case against Leroy Adams proceeded to trial.2
During the State's case-in-chief on Thursday, November 17, the prosecutor
took steps to make sure that the jury was not informed that Adams invoked his right to
silence prior to trial. In the middle of his direct examination of Trooper Monigold, the
prosecutor asked for a sidebar and told the judge, "I want to play a portion of the taped
interview with the defendant and Trooper Monigold. What we want to make sure is that
it's only that portion of statements that he made not about his right - exercising his right
to remain silent." Adams's attorney did not object to the tape, but agreed that he was
concerned "that it doesn't get slipped in that [Adams] exercised his right." When the
trial judge determined that the tape was of too poor a quality to play for the jury, the
prosecutor agreed to question Trooper Monigold about the interview without asking any
questions about Adams's invocation of his right to remain silent.
A similar exchange occurred during the redirect examination of Trooper
Monigold. Prior to asking follow-up questions about the interview, the prosecutor
requested a sidebar with the witness and cautioned Trooper Monigold: "Do not refer to
his right to remain silent or the fact that he exercised his right to remain silent. . . .
Where you can't go is, I tried to ask him this and he said, I want to talk to my attorney,
or he didn't want to tell me anything else."
The remarks at issue in this appeal came when the trial reconvened four
days later on Monday, November 21, and Adams took the stand in his own defense. On
cross-examination, the prosecutor asked Adams about his conversation with Trooper
Monigold on February 8:
2 We note that the trial attorneys for Adams and the State were not the same
attorneys who handled the appeal.
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Q: Do you remember talking to Officer Monigold?
A: Yes, I do.
Q: Okay. Do you remember him - remember telling him
that you saw a passed-out female that you identified as
[K.S.]?
A: Yes, I do.
Q: Okay. And that you were outside and you saw her
again, this time awake?
A: Yes, I do.
Q: And that your wife called her over, she came into the
house?
A: The second trip, it was on the second time around.
Q: Okay. And then you stated that Lena Koenig was in
the apartment with you and your wife?
A: Yes, she was.
Q: And then you refused to talk to police any further . Correct?
A: That's right.
Q: Okay. Until today?
A: I was exercising my right.
Q: Okay. You've heard from the victim in this case,
correct? You've been sitting right over there?
A: Yes, I did.
Q: You've heard from your wife? You've heard her
testify while sitting right over there? Correct?
A: Yes, I did.
(Emphasis added.) A few minutes later, the following exchange occurred between the
prosecutor and Adams:
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Q: Now, new information that we heard from you today
is everything that happened in your apartment, correct?
Would you agree to that? From your perspective?
A: What do you mean by everything?
Q: Well, we didn't know anything about what happened
in your apartment from you, because you didn't talk to
police, until after hearing all the evidence so far in this
case.
A: I assumed I had the right to remain silent until . . .
Q: Okay.
A: . . . I choose [sic] to testify.
(Emphasis added.)
During his closing argument, the prosecutor pointed to Adams's silence to
argue that Adams's testimony was less credible than the victim's.3 The prosecutor first
argued that Adams changed his decision not to talk when he learned about the DNA
evidence indicating that he had sex with K.S.:
But before we get to the defendant's testimony, that night,
[K.S.] woke up. The defendant was on top of her. She ran
over to the house where Emma Hawley was after calling
[Emma], and the police investigated. Defendant's wife Mae
said she was too drunk to remember what happened.
Defendant said: Victim came into the house; I don't have
anything else to say.
. . . .
The victim was interviewed and a sexual assault exam was
conducted. Evidence was collected. DNA was found and
typed from semen that was taken, found from the vaginal
swab from the victim.
. . . .
3 Due to scheduling conflicts the closing arguments in the case did not occur
until almost a month later, on December 20.
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But we don't - it's not a - this case is not a fight over the
DNA. Right? Because upon the investigation, upon finding
of DNA, and after months and months of thought, what is the
defendant's story now? It was consensual. What does he
have to say? He has to say that sex occurred. Right? He
can't say it didn't occur. He can't stick with the story that,
I'm not going to tell you what happened. And because he
decided to testify, you get to scrutinize his testimony.
(Emphasis added.) The prosecutor also argued in closing that the defendant's testimony
at trial was not as credible as the victim's because it was inconsistent with his earlier
decision not to speak to the police:
Defendant doesn't want to talk . . . . On that morning the
victim's testimony was consistent with what she testified
here. There are two people whose testimony was not
consistent with what they told police on February 8th: The
defendant and his wife. So using your reason, logic, and your
common sense, you get to determine why that would be.
(Emphasis added.) Finally, the prosecutor again mentioned Adams's silence in order to
argue that K.S. was the most credible witness:
Do you believe the victim who was intoxicated and whose
version of what happened was consistent the moment she
called from the house, went to Emma Hawley's house, was
investigate - was talking to police, and then testified here,
all of that was consistent? Or do you believe someone who
was too drunk - that is Mae Adams - and then she has all
this recollection of what happened at trial. And the defendant
who says: Yeah, she came in; I don't want to say anything
else; DNA is fine, it's him; yeah, it was consensual? Who do
you believe?
(Emphasis added.) Adams did not object to the prosecutor's line of questioning during
cross-examination or the prosecutor's repeated references to Adams's silence during
closing argument. The jury convicted Adams of second-degree sexual assault.
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----------------------- Page 10-----------------------
D. Appellate Proceedings
On appeal, Adams claimed that it was plain error for the trial court to allow
the prosecutor's argument and line of questioning because the prosecutor improperly
commented on Adams's right to remain silent.4 The court of appeals decided that the
prosecutor's comments only pertained to Adams's pre-arrest silence and that the
comments on pre-arrest silence did not constitute plain error.5 The court of appeals
reasoned that under federal law, if a defendant testifies at trial, the prosecution is free to
cross-examine him regarding his failure to make a statement prior to receiving Miranda
6
warnings, and that under Alaska law evidence of pre-arrest silence is only inadmissible
if it is more prejudicial than probative under Alaska Evidence Rule 403.7 The court of
8
appeals concluded that Adams had no claim under federal law; that his claim under state
9
law was at best "debatable"; and that the prosecutor's comments thus did not constitute
plain error because "[i]f a claim of error is reasonably debatable - if reasonable judges
could differ on what the law requires - then a claim of plain error fails."10
4 Adams v. State (Adams I), Mem. Op. & J. No. 5363, 2008 WL 2779195,
at *1 (Alaska App., July 16, 2008).
5 Id. at *2-3.
6 Id. at *1; see Fletcher v. Weir, 455 U.S. 603, 606-07 (1982) (per curiam);
Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980).
7 Adams I, 2008 WL 2779195, at *2; see Silvernail v. State, 777 P.2d 1169,
1174-78 (Alaska App. 1989).
8 Adams I, 2008 WL 2779195, at *2.
9 Id. at *3.
10 Adams I, 2008 WL 2779195, at *3 (quoting Simon v. State, 121 P.3d 815,
820 (Alaska App. 2005)).
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We granted Adams's petition for hearing on this issue and remanded to the
court of appeals for consideration of whether the prosecutor improperly commented on
Adams'spost -arrest silence and whether those comments amounted to plain error.11 On
remand, the court of appeals recognized that "the prosecutor twice referred to the fact
that Adams had continued to remain silent up until the time of his trial,"12 but it
concluded that even if the prosecutor improperly commented on Adams's post-arrest
silence, there was no plain error.13 The court of appeals ruled that it was Adams's burden
to establish "that the claimed error was so prejudicial to the fairness of the proceedings
that the failure to correct it would perpetuate manifest injustice."14 Noting that the sexual
assault was reported on February 8, 2005, that Adams was arrested in July 2005, and that
the trial occurred in November 2005, the court of appeals compared the periods of pre-
arrest and post-arrest silence, reasoning that "the period of post-arrest silence in Adams's
case accounts for less than half of the nine months that elapsed" between the assault and
the trial.15 Therefore, the court concluded, if comment on Adams's pre-arrest silence did
not undermine the fairness of the proceedings, neither did any comment on Adams's
post-arrest silence, because "[t]o the extent that Adams kept silent during these nine
months, the majority of this silence was pre -arrest silence."16 Adams again petitioned
this court for hearing, and we granted the petition.
11 Adams v. State (Adams II), Mem. Op. & J. No. 5550, 2009 WL 4758732,
at *1 (Alaska App., Dec. 9, 2009).
12 Id.
13
Id. at *6.
14 Id. (citing Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008)).
15 Id. at *5.
16 Id. at *5-6.
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III. STANDARD OF REVIEW
Alaska Criminal Rule 47(b) allows appellate courts to notice "[p]lain errors
or defects affecting substantial rights . . . although they were not brought to the attention
of the court." Adams did not object at trial to the prosecutor's questioning or argument
concerning his pre-trial silence. We thus "look to see whether the trial court committed
plain error."17 Plain error is an error that (1) was not the result of intelligent waiver or
a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4)
was prejudicial.18 We have described plain error as "involv[ing] such egregious conduct
as to 'undermine the fundamental fairness of the trial and contribute to a miscarriage of
justice.' " 19
IV. DISCUSSION
A. Alaska Law Protects A Criminal Defendant's Pre-Arrest And Post-
Arrest Silence.
Alaska law provides greater protection than federal law for a criminal
defendant's right to remain silent both before and after arrest. Under the United States
Constitution, the Due Process Clause of the Fourteenth Amendment prohibits a state
from cross-examining a defendant about his decision to remain silent after receiving
Miranda warnings.20 In Doyle v. Ohio, the United States Supreme Court concluded that
"while it is true that the Miranda warnings contain no express assurance that silence will
17 Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000).
18 See infra Part IV.C.1.
19 Raphael, 994 P.2d at 1015 (quoting United States v. Young, 470 U.S. 1, 16
(1985)).
20 Doyle v. Ohio, 426 U.S. 610 (1976).
-12- 6600
----------------------- Page 13-----------------------
carry no penalty, such assurance is implicit to any person who receives the warnings."21
The Doyle court thus held that "it would be fundamentally unfair and a deprivation of
due process to allow the arrested person's silence to be used to impeach an explanation
subsequently offered at trial."22 In subsequent decisions, however, the U.S. Supreme
Court concluded that the U.S. Constitution does not prohibit a state from cross-
examining a defendant about his failure to give a statement prior to arrest or prior to
receiving Miranda warnings.23
In contrast, Alaska case law protects a criminal defendant's right to remain
silent both before and after arrest. As we explain below, evidence of a defendant's post-
arrest silence is prohibited by the Alaska Constitution, and evidence of a defendant's pre-
arrest silence will usually be inadmissible under Evidence Rule 403 due to its inherently
low probative value and its high risk of unfair prejudice.
Article I, section 9 of the Alaska Constitution provides in part that "[n]o
person shall be compelled in any criminal proceeding to be a witness against himself."
"Implicit in this right is the notion that when an accused person chooses to exercise his
right to silence, such silence may not be commented upon."24 And we have held that
article I, section 9 prohibits the state from using a defendant's post-arrest silence for
substantive or impeachment value, even if the defendant did not receive Miranda
warnings. In a 1972 case, Davis v. State, we expressed "our disapproval of any comment
21 Id. at 618.
22 Id.
23 Fletcher v. Weir, 455 U.S. 603, 606-07 (1982) (per curiam) (covering post-
arrest, pre-Miranda silence); Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980)
(covering pre-arrest silence).
24 Coleman v. State, 553 P.2d 40, 50 (Alaska 1976).
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----------------------- Page 14-----------------------
absent waiver by the prosecution on an accused's silence resulting from the exercise of
his constitutional rights. . . . [A]n inference of guilt may not be drawn from a failure to
speak or to explain when a person has been arrested."25 A 1976 concurring opinion
written by Chief Justice Boochever and joined by Justice Rabinowitz further explained
that "evidence of silence in the face of custodial interrogation by police is not properly
admissible in a trial."26 In Gunnerud v. State, a 1980 case, we reversed a conviction
where the prosecutor had played a recording for the jury that included the defendant
exercising her right to remain silent.27 In that case the prosecutor used the tape during
his case-in-chief, and it concerned silence after Miranda warnings had been
administered. We observed that "[i]t is well settled that prosecutorial comment on silence
for substantive or impeachment value is constitutionally prohibited. [We have]
specifically disapproved any comment upon a defendant's exercise of the right to remain
silent."28 Finally, one year after Gunnerud in Dorman v. State, we held that plain error
occurred when the prosecutor told the jury in closing argument that they should infer
guilt from the defendant's silence during the period after his arrest but prior to receiving
Miranda warnings.29
25 501 P.2d 1026, 1030-31 (Alaska 1972).
26 Coleman, 553 P.2d at 53 (Boochever, C.J., concurring).
27 611 P.2d 69, 75-76 (Alaska 1980).
28 Id. at 75 (emphasis added) (internal citations omitted).
29 622 P.2d 448, 456-59 (Alaska 1981). Dorman was decided prior to the
U.S. Supreme Court's decision in Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam),
which held that the use of post-arrest, pre-Miranda silence for impeachment purposes
did not violate the federal constitution. But two years after Fletcher, the court of appeals
reaffirmed Dorman in Nelson v. State, 691 P.2d 1056 (Alaska App. 1984), holding that
(continued...)
-14- 6600
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Neither this court nor the court of appeals has decided whether the Alaska
Constitution prohibits the state from using evidence of a defendant's pre-arrest silence.30
But we do not need to decide that question in this case for two reasons. First, at the very
least, Alaska law protects a defendant's pre-arrest silence through the rules of evidence,
and in this case, evidence of Adams's pre-arrest silence was inadmissible under Evidence
Rule 403. Adams has shown that the admission of this evidence was plain error.31 And
second, in this case the prosecutor violated Adams's constitutional rights by commenting
on Adams'spost -arrest silence. Allowing the prosecutor's comments to be presented to
the jury also amounted to plain error.32
In Silvernail v. State, the court of appeals held that it was plain error for the
trial court to admit evidence of the defendant's pre-arrest silence because the inherently
low probative value of the defendant's silence was outweighed by the danger of unfair
29(...continued)
Dorman remained the correct interpretation of article I, section 9 of the Alaska
Constitution and therefore "a person who is under arrest for a crime cannot normally be
impeached by the fact that he was silent following his arrest." Id. at 1059.
30 See Bloomstrand v. State, 656 P.2d 584, 587 (Alaska App. 1982) ("The
propriety of comment on pre-arrest silence under the Alaska Constitution has not
specifically been addressed."); see also Silvernail v. State, 777 P.2d 1169, 1175 (Alaska
App. 1989) ("While Bloomstrand recognized that evidence of pre-arrest silence is not
precluded as a matter of federal constitutional law, the case expressly left open the issue
of admissibility of such evidence under Alaska law."). We have previously interpreted
article I, section 9 of the Alaska Constitution "more broadly than the U.S. Supreme Court
has construed the Fifth Amendment of the Federal Constitution." Munson v. State, 123
P.3d 1042, 1049 n.48 (Alaska 2005).
31 See infra Part IV.C.2.
32 Id.
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prejudice under Evidence Rule 403.33 Silvernail was charged with murder and testified
on his own behalf, attempting to establish a defense of duress.34 On cross-examination,
the prosecutor questioned Silvernail about why he did not explain his claim of duress
when he was initially stopped by police.35 Silvernail's counsel objected on Fifth
Amendment grounds, but the trial court ruled that questions about Silvernail's pre-arrest
silence were admissible.36
The court of appeals held that although the trial court was correct in its
reasoning that the federal constitution only prohibits evidence of post-Miranda silence,
the trial court should have excluded the evidence of Silvernail's pre-arrest silence under
Evidence Rule 403.37 The court of appeals noted that despite the U.S. Supreme Court's
interpretation of the federal constitution, "numerous state courts have continued to
condemn evidence of pre-Miranda silence," relying on both state constitutional
provisions and the rules of evidence.38 The court of appeals further recognized that
whether it is grounded in constitutional protections or evidentiary principles, the
prohibition on using evidence of a defendant's silence is motivated by the same
33 Silvernail, 777 P.2d at 1174-79. Evidence Rule 403 provides: "Although
relevant, evidence may be excluded if its probative value is outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence."
34 Silvernail, 777 P.2d at 1171.
35 Id. at 1172.
36 Id. at 1172-73.
37 Id. at 1174-78. The court of appeals reviewed this claim under the plain
error rule because Silvernail did not base his objection at trial on Evidence Rule 403.
Id. at 1174.
38 Id. at 1175.
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concerns: "The underlying rationale of the constitutional bar against admitting evidence
of a defendant's post-arrest silence is the concern that such evidence is only minimally
probative, while possessing a high potential for prejudice to the defendant's case. This
is the same basic concern expressed in Alaska Rule of Evidence 403."39 The court of
appeals reiterated that "the Alaska Supreme Court and this court have both expressed
distrust of silence as probative evidence of guilt. [Alaska courts] have previously
recognized the low probative value of silence, as well as its concomitantly high potential
for prejudice."40
The court of appeals went on to discuss why the probative value of a
defendant's silence is inherently low. The court of appeals observed that while silence
can potentially be probative "under circumstances in which it would have been natural
for the accused to speak," there are many reasons why an accused's "natural" response
would be to remain silent.41 A defendant's silence might be motivated by fear or
intimidation; a failure to understand the question or realize that a reply was necessary;
an unwillingness to incriminate another; mistrust of law enforcement; or simply an
awareness of his right to remain silent.42
The court of appeals concluded that, given these various motivations for
silence, "distinctions between pre-arrest, post-arrest, and post-Miranda silence" are of
"little significance" when "the issue is whether the accused's silence is probative of
39 Id. at 1174.
40 Id. at 1175 (internal citations omitted).
41 Id. at 1176-77.
42 Id. at 1177-78 (citing United States v. Hale, 422 U.S. 171, 177 (1975);
People v. Conyers, 420 N.E.2d 933, 935 (N.Y. 1981); Farley v. State, 717 P.2d 111, 112
(Okla. App. 1986)).
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----------------------- Page 18-----------------------
guilt."43 The court of appeals noted that although Silvernail had not yet been arrested,
he was "engaged by the police in a plainly confrontational setting" and "was clearly not
obligated to respond to the officers who stopped him. His silence may well have
reflected nothing more than his awareness of and reliance on this right."44 Reiterating
that "the potential prejudice from this line of inquiry is both obvious and substantial," the
court of appeals held that evidence of Silvernail's pre-arrest silence was "plainly
improper under Alaska Rule of Evidence 403."45
Silvernail's conclusion that there is little to distinguish between pre- and
post-arrest silence when the issue is whether an accused's silence is probative of guilt is
sound, and we adopt it. We recognize that Evidence Rule 403 is a balancing test and
thus necessarily contemplates a case where evidence of pre-arrest silence is more
probative than prejudicial. Given the numerous reasons that silence can be a natural
response, in most cases an accused's pre-arrest silence will be ambiguous at best, and the
high potential for unfair prejudice will require evidence of pre-arrest silence to be
prohibited for substantive or impeachment value. Of course, any evidence of post-arrest
silence, whether or not Miranda warnings were administered, remains prohibited under
article I, section 9 of the Alaska Constitution.
B. The Prosecutor's Comments On Adams's Silence Were Not Justified.
Adams argues that the prosecutor's remarks encompassed both his pre-
arrest and post-arrest silence and therefore were inadmissible under either theory
discussed above. The State does not dispute that the prosecutor referenced Adams's
silence, but responds that distinctions between pre- and post-arrest silence, or even
43 Id. at 1177.
44 Id. at 1178 (internal citations and quotation marks omitted).
45 Id.
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between state and federal law, are unimportant in this case because "there is one common
circumstance in which it is entirely proper for the prosecutor to mention a defendant's
silence to the jury. . . . [I]t is proper for the prosecutor to reference a defendant's silence
when the defendant himself has put his silence into question."46 The State maintains that
Adams argued through his counsel that he had been denied the opportunity to tell his side
of the story, and therefore "opened the door for the prosecutor to make valid references
to Adams'[s] pre- and post-arrest silence."
The State points to two statements made by Adams's lawyer to support its
argument. First, during his opening statement after the State's case-in-chief, defense
counsel told the jury:
This case basically has to do with the credibility of the
witnesses and what you believe from what [K.S.] told you
and what Mr. Adams is going to tell you. Promise you right
now, Mr. Adams is going to testify. Mr. Adams has been
waiting since February to tell you his side of the story. He
wants you to hear the other side of the story so that you can
make a decision . . . .
(Emphasis added.) The State argues that the sentence "Mr. Adams has been waiting
since February to tell you his side of the story" creates a "reasonable inference" that
"those with authority, specifically the police, had denied Adams the opportunity to tell
his version of what had happened between him and K.S." The State further contends that
Adams's counsel "planted the seed" for this inference when he cross-examined
Lieutenant Swisher, one of the police officers involved in the case, and asked, "[a]nd you
didn't interview Leroy Adams in connection with this case, did you?"
46 See United States v. Robinson, 485 U.S. 25, 32 (1988) (holding that where
"the prosecutor's reference to the defendant's opportunity to testify is a fair response to
a claim made by defendant or his counsel" there is no violation of the privilege against
self-incrimination).
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The State's argument with respect to the cross-examination of Lieutenant
Swisher ignores the context of defense counsel's questions. Lieutenant Swisher testified
very briefly that he took over the case from Trooper Monigold, sent evidence to the
crime lab, and conducted follow-up interviews. On cross-examination, Adams's counsel
asked Lieutenant Swisher only three questions establishing that he came into the case a
few weeks after the incident and did not interview Adams or K.S. It is obvious from the
transcript that these questions were meant to demonstrate that Lieutenant Swisher had
only minimal involvement in the case, not that he prevented Adams from telling his side
of the story or that the "police had not properly investigated [the] case."
We turn next to defense counsel's opening statement. When read as a
whole, and in the context of the rest of the defense case, it would be unreasonable to
interpret that statement as an argument that the police had prevented Adams from telling
his side of the story. Defense counsel's opening statement was short and unremarkable:
Good morning. Just a few quick words before we present our
case. I think that given what you saw last week, where you
saw that large list of witnesses that were going to testify, you
were told that there was going to be some scientific evidence
in this case, you - told that there were going to be some
doctors testifying in this case. I think this case is going to
play out to be a little more simple than what you guys first
saw last week when you came in here.
This case basically has to do with the credibility of the
witnesses and what you believe from what [K.S.] told you
and what Mr. Adams is going to tell you. Promise you right
now, Mr. Adams is going to testify. Mr. Adams has been
waiting since February to tell you his side of the story. He
wants you to hear the other side of the story so that you can
make the decision about whether or not [K.S.] was aware that
she was having sexual intercourse with him at the time.
Because that's all this case is about. It's very simple. Don't
think there's any question about whether or not there was
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intercourse between Mr. Adams that night and [K.S.]. It's
going to be whether she was aware of it and whether he knew
that she was aware of it.
After you hear all the evidence, we think that you will not be
able to find beyond a reasonable doubt that Mr. Adams is
guilty of this crime. Thank you.
Nothing in defense counsel's statement suggests that the police denied
Adams a chance to tell his side of the story or that the defense planned to advance any
theory of police misconduct. It is clear that when defense counsel repeatedly said "you,"
he was addressing the members of the jury and simply meant to emphasize that Adams
was eager to testify.47 The State's argument that defense counsel created a "reasonable
inference" that the authorities denied Adams the chance to tell his side of the story would
perhaps be more persuasive if there were any other evidence in the transcript that showed
the defense pursuing this theory. But nothing in Adams's testimony or any aspect of the
defense case supports the claim that Adams was suggesting the police mishandled the
case or prohibited Adams from explaining his side of the story.
This is particularly apparent in comparison to the case the State cites in
support of its argument. In United States v. Robinson, the defendant chose not to testify,
and in closing argument defense counsel contended that the government had "breached
its duty to be fair" and "had unfairly denied [Robinson] the opportunity to explain his
actions."48 In rebuttal, the prosecutor told the jury that Robinson "could have taken the
47 Furthermore, by the time defense counsel gave his opening statement, the
jury had already heard testimony from Trooper Monigold that he interviewed Adams the
morning after the incident, so it would seem very odd for Adams to argue that the police
prevented him from giving a statement.
48 Robinson, 485 U.S. at 27 (internal quotation marks omitted).
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stand and explained it to you, anything he wanted to."49 The U.S. Supreme Court
concluded that "the prosecutorial comment did not treat the defendant's silence as
substantive evidence of guilt, but instead referred to the possibility of testifying as one
of several opportunities which the defendant was afforded, contrary to the statement of
his counsel, to explain his side of the case."50 The Court held that although the
prosecutor could not "on his own initiative" ask the jury "to draw an adverse inference
from a defendant's silence," the prosecutor was permitted to give a "fair response" to
claims made by Robinson or his counsel.51
This case is distinguishable from Robinson for two reasons. First, the
defense counsel inRobinson expressly claimed that the government had denied Robinson
the ability to tell his side of the story; here, the State's argument that defense counsel
created a "reasonable inference" of such a theory is unpersuasive. Second, the remarks
made by the prosecutor in Robinson were a direct response to defense counsel's claims,
while in this case, the prosecutor never indicated that he was responding to an argument
made by Adams, and instead appeared to comment on Adams's silence "on his own
initiative."52
The State also argues that the prosecutor's comments on Adams's silence
were justified because they were a legitimate method of demonstrating inconsistencies
in Adams's testimony and of reminding the jury that because Adams testified last he
could tailor his testimony to the prosecution's case. These arguments are without merit.
The State was of course free to cross-examine Adams on any inconsistencies between
49 Id. at 28.
50 Id. at 32.
51 Id.
52 See id.
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the statement he gave to Trooper Monigold the morning after the incident and Adams's
testimony at trial. But the prosecutor's argument that Adams's silence the morning after
the assault was inconsistent with his testimony at trial was wholly impermissible. This
is precisely what the law prohibits, because as the U.S. Supreme Court has concluded,
"it would be fundamentally unfair" to allow "silence to be used to impeach an
explanation subsequently offered at trial."53 Similarly, while the State is correct that "a
prosecutor may point out to the jury that the defendant, by going second, has the
opportunity to tailor his defense to the government's evidence,"54 the prosecutor remains
forbidden from commenting on a defendant's pre-trial silence as part of such an
argument.
Because Adams did not open the door to the prosecutor's comments, the
prosecutor's remarks were improper, whether under article I, section 9 of the Alaska
Constitution or under Evidence Rule 403. Adams contends that the prosecutor's remarks
amounted to a state constitutional violation because two exchanges during the cross-
examination addressed Adams's post-arrest silence:
53 Doyle v. Ohio, 426 U.S. 610, 618 (1976) (referring to post-arrest silence).
The State's reliance on our decision in Davis v. State, 501 P.2d 1026 (Alaska 1972), and
the court of appeals' decision in Weston v. State, 656 P.2d 1186 (Alaska App. 1982),
rev'd on other grounds, Weston v. State, 682 P.2d 1119 (Alaska 1984), is misplaced. In
Davis, the defendant claimed that her statements to the police immediately after her arrest
were evidence of innocence, and the prosecutor pointed out in response that Davis did
not provide her full exculpatory story upon arrest. Davis, 501 P.2d at 1029-30. In
Weston, the defendant claimed that he cooperated fully with the police, and the
prosecutor pointed out in response that during his first interview Weston became silent
and stopped cooperating. Weston, 656 P.2d at 1190. In both cases, the defendants
opened the door to comments on their silence, but neither case is analogous to the facts
here.
54 See Portuondo v. Agard, 529 U.S. 61 (2000); Gray v. State, 463 P.2d 897,
907 (Alaska 1970).
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Q: And then you refused to talk to police any further.
Correct?
A: That's right.
Q: Okay. Until today?
A: I was exercising my right.
. . . .
Q: Now, new information that we heard from you today
is everything that happened in your apartment, correct?
Would you agree to that? From your perspective?
A: What do you mean by everything?
Q: Well, we didn't know anything about what happened
in your apartment from you, because you didn't talk to
police, until after hearing all the evidence so far in the
case.
(Emphasis added.) Adams argues that the references in this passage to "until today" and
"until after hearing all the evidence so far in this case" necessarily encompassed his post-
arrest silence because he was arrested prior to the trial.
We agree with Adams that some of the prosecutor's remarks commented
on his post-arrest silence. But the distinction between pre-arrest and post-arrest silence
is not particularly important in this case because the prosecutor's comments would be
inadmissible under Silvernail even if they concerned only pre-arrest silence. The
inherently low probative value of pre-arrest silence and its concomitantly high risk of
unfair prejudice are no different here than in the facts confronted by the Silvernail court.
Adams, like Silvernail, was "engaged by the police in a plainly confrontational setting,"
and "[h]is silence may well have reflected nothing more than his awareness of and
-24- 6600
----------------------- Page 25-----------------------
reliance on [his rights]."55 The risk of unfair prejudice outweighed any possible
probative value of Adams's pre-arrest silence, and therefore any comment by the State
on that silence was inadmissible under Evidence Rule 403. This conclusion, however,
is only the first part of our inquiry because Adams's counsel failed to object to the
prosecutor's remarks at trial. We thus turn to whether the prosecutor's remarks were not
only prohibited under Silvernail and the Alaska Constitution, but also amounted to plain
error.
C. The Prosecutor's Remarks Amounted To Plain Error: They Affected
Substantial Rights And Were Obviously Prejudicial.
1. The plain error rule
Review of a criminal defendant's claim of error not raised at trial is
governed by Alaska Criminal Rule 47(b), which provides: "Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court." Our cases applying Criminal Rule 47(b), however, are in conflict
with recent decisions of the court of appeals. We take this opportunity to clarify the
standard for plain error review under Criminal Rule 47(b).
As an initial matter, our cases have consistently held that plain error does
not exist where the right at issue was intelligently waived or the defendant's decision not
to object to the error was strategic or tactical.56
55 Silvernail v. State, 777 P.2d 1169, 1178 (Alaska App. 1989).
56 Dorman v. State, 622 P.2d 448, 457-58 (Alaska 1981); Owens v. State, 613
P.2d 259, 261-62 (Alaska 1980); Pulakis v. State, 476 P.2d 474, 479-80 (Alaska 1970);
Hammonds v. State, 442 P.2d 39, 42-43 (Alaska 1968).
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----------------------- Page 26-----------------------
Moreover, beginning in the mid-1970s, our cases began to consistently
define plain error as error that affects substantial rights and is obviously prejudicial.57
We have generally interpreted "affects substantial rights" to mean that the alleged error
must "raise[] a substantial and important question"58 such that a failure to address it could
"undermine the fundamental fairness of the trial and contribute to a miscarriage of
justice."59 The phrase "obviously prejudicial" has come to encompass two requirements
- that the error be both obvious and prejudicial.60 A review of our case law shows that
57 Larson v. State, 569 P.2d 783, 787 (Alaska 1977); Hampton v. State, 569
P.2d 138, 147 (Alaska 1977); Davenport v. State, 543 P.2d 1204, 1206 n.1 (Alaska
1975); Thomas v. State, 522 P.2d 528, 531 n.16 (Alaska 1974); Martin v. State, 517 P.2d
1399, 1402 (Alaska 1974). Some cases use the term "substantive rights" instead of
"substantial rights." Dorman v. State, 622 P.2d 448, 457 (Alaska 1981); Tuckfield v.
State, 621 P.2d 1350, 1352 (Alaska 1981); Calder v. State, 619 P.2d 1026, 1029 n.7
(Alaska 1980); Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979); Torres v. State, 519 P.2d
788, 795 (Alaska 1974); Burford v. State, 515 P.2d 382, 383 (Alaska 1973).
Our early cases defined plain error in various ways that, while sounding
similar, may not have had precisely the same meaning. For example, some of our cases
in the 1960s and early 1970s defined plain error as error that is "obviously prejudicial,"
see, e.g., Bowker v. State, 373 P.2d 500, 505 (Alaska 1962), some defined it as error that
must be corrected "to effect substantial justice or prevent the denial of fundamental
rights," see, e.g., Goresen v. State, 432 P.2d 326, 327 (Alaska 1967), and another defined
it as error that is both "obvious" and "substantial," Dimmick v. State, 449 P.2d 774, 776
(Alaska 1969).
58 Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980);Moreau v. State, 588
P.2d 275, 280 (Alaska 1978) (quoting Garroutte v. State, 508 P.2d 1190, 1191 (Alaska
1973)).
59 Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000) (quoting United
States v. Young, 470 U.S. 1, 16 (1985)).
60 See id. at 1015 ("We have interpreted the phrase 'plain error' to mean an
error that is both obvious and substantially prejudicial."); Brown v. State, 601 P.2d 221,
(continued...)
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----------------------- Page 27-----------------------
in order for a court to find plain error, the error must not be the result of an intelligent
waiver or a strategic decision not to object; the error must affect substantial rights; the
error must be obvious; and the error must be prejudicial.
Confusion has persisted, however, over how to apply this standard when
the alleged error is a constitutional violation. In our earliest case to directly address this
subject, Burford v. State, we held that "[d]enial of a constitutional right, in the normal
case, would affect substantial rights and give rise to plain error" unless the State proves
that the error was "harmless beyond a reasonable doubt."61 If the error was harmless
beyond a reasonable doubt, "the rights of the accused are not prejudiced and the
requirements of plain error have not been met."62 In contrast, in cases where the alleged
error was not a constitutional violation, we applied our traditional harmless error
standard of whether the defendant has shown that the error appreciably affected the
jury's verdict.63 In other words, Burford identified two differences in applying the plain
error doctrine to constitutional violations: First, constitutional violations always "affect
substantial rights," while others may not; and, second, constitutional violations are
always prejudicial unless the State proves they are harmless beyond a reasonable doubt,
60(...continued)
226 (Alaska 1979) ("[T]o constitute plain error, an error or defect must be obvious, affect
substantial rights, and be obviously prejudicial."); Gilbert, 598 P.2d at 92 ("Where the
error is not obvious or immediately apparent we should abstain from a full-scale
examination of it, for the basic rule is that failure to object to offered evidence waives the
objection.").
61 515 P.2d at 383 (citing Chapman v. California, 386 U.S. 18, 23 (1967));
see also Sidney v. State, 571 P.2d 261, 264 (Alaska 1977).
62 Burford, 515 P.2d at 383.
63 See, e.g., Kristich v. State, 550 P.2d 796, 801 (Alaska 1976) (citing Love
v. State, 457 P.2d 622 (Alaska 1969)).
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while other errors are only prejudicial if the defendant proves that the error appreciably
affected the outcome. But constitutional errors must still be obvious in order to
constitute plain error,64 and they must not have been the result of intelligent waiver or a
strategic decision.65
We reaffirmed the approach outlined in Burford in 1974 in Martin v.
State,66 in 1979 in Brown v. State,67 and in 1981 in Dorman v. State.68 But in 1983 the
court of appeals held in Van Hatten v. State that the standard of prejudice for all plain
error cases, including those involving constitutional error, was "whether it can be fairly
said that the alleged error did not appreciably affect the jury's verdict."69 To support its
holding the court of appeals quoted language from our decision in Gilbert v. State:
[N]ot all constitutional claims require extensive review under
the plain error rule. To say that asserted errors of
constitutional dimension must all be examined in depth under
the plain error rule would circumvent the strong basic policy
64 See, e.g., Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980) ("[T]he
requirement . . . that the alleged defect be readily apparent . . . applies not just to non-
constitutional issues but to those of constitutional dimension as well.").
65 See, e.g.,Raphael v. State, 994 P.2d 1004, 1015-16 (Alaska 2000);Dorman
v. State, 622 P.2d 448, 457-58 (Alaska 1981).
66 517 P.2d 1399, 1402 (Alaska 1974) ("Denial of a constitutional right affects
substantial rights. Therefore, plain error will result unless the defect is harmless beyond
a reasonable doubt.").
67 601 P.2d 221, 226 (Alaska 1979) ("[W]here the error denies a constitutional
right, by definition a substantial right is affected, and reversal is required unless the error
is found to be harmless beyond a reasonable doubt.").
68 622 P.2d at 459 (applying the standard of harmless beyond a reasonable
doubt to plain error review of a constitutional error).
69 666 P.2d 1047, 1057 (Alaska App. 1983).
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----------------------- Page 29-----------------------
which requires that, in order to preserve an error for appeal,
an objection must have been made in the trial court.[70]
The State, pointing to Van Hatten, now suggests that our plain error rulings are
inconsistent71 and urges us to resolve this perceived inconsistency by adopting the U. S.
Supreme Court's interpretation of the federal analogue to Alaska Criminal Rule 47(b).72
We decline to do so for two reasons.
First, the language in Gilbert cited by the court of appeals in Van Hatten
does not pertain to the prejudice standard for constitutional errors. When read in context,
it is apparent that in Gilbert we were discussing the requirement that plain error be
70 Id. at 1056 (quoting Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979)).
71 In its initial briefing, the State conceded that the appropriate standard was
whether the error was harmless beyond a reasonable doubt. After oral argument, the
State requested and was permitted supplemental briefing to address potential ambiguity
in our case law concerning the plain error standard for constitutional errors.
72 Federal plain error review is governed by Federal Rule of Criminal
Procedure 52(b). The U. S. Supreme Court held in United States v. Olano, 507 U.S. 725
(1993), that federal plain error review is governed by a three-part test: (1) there must be
error, and the right at issue must not have been intentionally relinquished; (2) the error
must be plain, meaning obvious; and (3) the error must affect substantial rights, meaning
it must have affected the outcome of the proceeding. Id. at 732-35.
The first and second prongs of the Olano test are the same as our first two
requirements under Alaska Criminal Rule 47(b). But unlike the Olano court, we have
interpreted "affect substantial rights" not to mean that the error was prejudicial, but
instead to mean that the error pertains to an important right that could affect the
fundamental fairness of the proceeding. We have required a showing of prejudice as a
separate factor. And, as explained in detail above, when the error is a constitutional
violation, it will always affect substantial rights and will be prejudicial unless it was
harmless beyond a reasonable doubt.
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----------------------- Page 30-----------------------
obvious.73 Immediately prior to the language quoted in Van Hatten, we wrote: "Where
the error is not obvious or immediately apparent we should abstain from a full-scale
examination of it."74 One of the underlying principles of the plain error doctrine is that
the error must have been so obvious that the trial court should have noticed it despite the
absence of an objection. Gilbert simply explained that this principle applies even when
the appellant alleges a constitutional violation.75
Second, although we did not expressly refer to Van Hatten, our recent
decision in Raphael v. State reaffirmed our pre- Van Hatten case law. Quoting Burford,
we held in Raphael that "denial of a defendant's constitutional rights, 'in the normal
case, would . . . give rise to plain error' "76 unless "the constitutional error was harmless
73 See Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980) (citing Gilbert
for the proposition that alleged constitutional errors must be "readily apparent" to
constitute plain error).
74 Gilbert, 598 P.2d at 92.
75 The State also argues that our decision in Brown v. State, 601 P.2d 221
(Alaska 1979), is inconsistent with Burford. The State points to language from Brown
that says: "[W]e have never held that the standard of harmless beyond a reasonable
doubt applies merely because a constitutional right is involved." Id. at 226 (emphasis
added). But the State takes this language out of context. In Brown, we concluded that
there was no constitutional violation. Id. The passage quoted by the State was simply
making the obvious point that the alleged constitutional violation must actually have
occurred in order to trigger the corresponding harmless error standard. Only a few lines
earlier, Brown actually reaffirmed our holding in Burford : "[W]here the error denies a
constitutional right, by definition a substantial right is affected, and reversal is required
unless the error is found to be harmless beyond a reasonable doubt." Id. (emphasis
added).
76 Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000) (quoting Burford v.
State, 515 P.2d 382, 383 (Alaska 1973)).
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beyond a reasonable doubt."77 Our decisions, starting with Burford and on through
Raphael, are consistent on this point. The plain error standard announced in Van Hatten
is not controlling. Establishing plain error under Criminal Rule 47(b) requires the
following: (1) there must be error, and the error must not have been the result of an
intelligent waiver or a tactical decision not to object; (2) the error must be obvious,
meaning that it should have been apparent to any competent judge or lawyer; (3) the
error must affect substantial rights, meaning that it must pertain to the fundamental
fairness of the proceeding; and (4) the error must be prejudicial. A constitutional
violation will always affect substantial rights and will be prejudicial unless the State
proves that it was harmless beyond a reasonable doubt. An error that is not constitutional
in nature will be prejudicial if the defendant proves that there is a reasonable probability
that it affected the outcome of the proceeding.
2. The prosecutor's remarks in this case amounted to plain error.
Applying these standards to the present case, we conclude that there was
plain error. First, there is no evidence that Adams's failure to object was strategic. In
Dorman v. State, we explained that where a defendant "neither injected the issue of his
silence into the case nor obtained a benefit from the prosecutor's inculpatory comment,"
there is no basis for inferring that the failure to object was tactical "unless it is implied
that defense counsel invited error for the purpose of obtaining a reversal on appeal."78
Such a conclusion, we cautioned, "is not one which should be lightly inferred in any
77 Id.
78 622 P.2d 448, 458 (Alaska 1981).
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case, for it would preclude review of the most fundamental defects under the plain error
doctrine."79
We have already determined that Adams did not inject the issue of his
silence into the case,80 and Adams did not obtain any discernible benefit from the
prosecutor's comments. This case turned chiefly on credibility, and the prosecutor
argued that Adams was a less credible witness because he did not talk to the police. The
State argues that "Adams cannot . . . show that defense counsel did not make a tactical
decision to refrain from objecting to the prosecutor's references to Adams'[s] silence"
because "[d]efense counsel was well aware that Adams'[s] silence could not be used
against Adams . . . during the first part of the state's case-in-chief." But the prosecutor's
remarks during cross-examination occurred four days after the sidebar discussion about
Adams's silence during the State's case-in-chief, and his remarks during closing
argument occurred a full month later. Defense counsel's awareness of Adams's rights
during the State's case-in-chief is not enough to show that his failure to object later in
the trial was tactical.81
Second, the error in this case was obvious. The major cases establishing
that Alaska law protects a defendant's pre- and post-arrest silence were all decided in the
82 Adams was tried in late 2005. Thus, the law protecting Adams's right to silence
1980s;
79 Id.
80 See supra Part IV.B.
81 We note that if the trial court observes an obvious error such as the one in
this case and believes that defense counsel's failure to object may have been tactical, a
best practice might be to inquire outside the presence of the jury about the lack of an
objection and offer a curative instruction.
82 Silvernail v. State, 777 P.2d 1169 (Alaska App. 1989);Nelson v. State, 691
(continued...)
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was well established at the time of his trial and the prosecutor committed an obvious
violation of that right by expressly arguing that Adams's silence diminished his
credibility.83
Third, the prosecutor's comments affected Adams's substantial rights. As
explained above, any comment on Adams's post-arrest silence would affect substantial
rights because it would violate article I, section 9 of the Alaska Constitution. But those
comments that were limited to Adams's pre-arrest silence also affected his substantial
rights. As the court of appeals explained in Silvernail v. State, whether grounded in the
Alaska constitution or the rules of evidence, the prohibition on using evidence of a
defendant's silence is motivated by the same concern: "The underlying rationale of the
constitutional bar against admitting evidence of a defendant's post-arrest silence is the
concern that such evidence is only minimally probative, while possessing a high potential
for prejudice to the defendant's case. This is the same basic concern expressed in Alaska
Rule of Evidence 403."84 To put it another way, the introduction of evidence of a
defendant's silence, whether pre- or post-arrest, affects substantial rights in precisely the
same way - by admitting evidence that has an inherently low probative value but a high
potential for unfair prejudice. Admission of such evidence threatens the fairness of the
proceeding and therefore affects substantial rights.
Finally, the prosecutor's comments were prejudicial. We conclude that the
State has not shown that the prosecutor's improper questions and comment about post-
82(...continued)
P.2d 1056 (Alaska App. 1984); Dorman, 622 P.2d 448; Gunnerud v. State, 611 P.2d 69
(Alaska 1980).
83 See supra Part IV.A-B.
84 Silvernail, 777 P.2d at 1174.
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arrest silence were harmless beyond a reasonable doubt. And even if our analysis is
limited to the non-constitutional claim that the prosecutor commented on Adams's pre-
arrest silence, we conclude that Adams has shown that there is a reasonable probability
that the error affected the outcome of the case.
Our decisions inDorman and Gunnerud and the court of appeals' decisions
in Van Hatten and Silvernail identify several factors that should be considered when
determining whether a prosecutor's comments on a defendant's silence were harmless
error. First, of course, is the strength of the State's other evidence. Gunnerud and
Silvernail instruct that comment on a defendant's silence is more likely to be prejudicial
if the conviction depended primarily on conflicting witness testimony.85
This case hinged primarily on the conflicting testimony of Adams and K.S.
The elements of the crime at issue were whether K.S. was unaware of the sexual act and
whether Adams knew that she was unaware. Adams testified that K.S. was aware and
consented to the sexual act. K.S. testified that after going to see Emma Hawley, the next
thing she remembered was waking up with Adams on top of her engaged in intercourse,
and that she did not consent. The State's other chief witness was Mae Adams. Some
parts of Mae Adams's testimony did contradict Adams's testimony - for instance, Mae
testified that K.S. was just lying on the bed with her eyes open, while Adams testified
that K.S. was actively participating. But other aspects of Mae's story corroborated
Adams's testimony, and Adams attempted to impeach Mae's credibility based on the fact
85 Gunnerud, 611 P.2d at 76 ("In determining whether the error was harmless
we note that Gunnerud's conviction depended principally upon Baker's testimony.");
Silvernail, 777 P.2d at 1178-79 ("The issue of Silvernail's guilt rested heavily on the
jury's evaluation of the relative credibility of the conflicting testimony . . . . We are
therefore unable to conclude that the erroneous admission of the disputed evidence did
not appreciably affect the jury's verdict.").
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that she accepted a plea bargain on the eve of trial that allowed her to serve minimal jail
time and avoid sex offender registration in exchange for her testimony.
Second, in Dorman we observed that comments on a defendant's silence
are more likely to be prejudicial if they occur, as they did here, during closing
argument.86 In Dorman, we noted that plain error review of such comments was
appropriate in part because of our "doubts concerning the effectiveness of an objection
made during final argument."87 We explained:
A timely objection could have prevented the evidence from
ever reaching the jury. However, an objection during final
argument is not so effective. The prejudicial comment is
before the jury before the objection can be made, and the
curative effect of an admonition of the court to disregard the
comment is of debatable value.[88]
The court of appeals in Van Hatten also recognized that comments on a defendant's
silence are more likely to be prejudicial if the comment was "express" rather than a "brief
and passing" reference and if the evidence was "directly elicited by the prosecutor's
questioning."89 All of these circumstances are present here; the prosecutor first directly
elicited evidence of Adams's silence on cross-examination, and then he expressly
commented on that silence during his closing argument. We conclude that Adams has
shown that there is a reasonable probability that the prosecutor's comments on pre-arrest
86 Dorman, 622 P.2d at 458-59; accord Van Hatten v. State, 666 P.2d 1047,
1056 (Alaska App. 1983) (explaining that "the possibility of any prejudicial impact
flowing from the improper testimony concerning Van Hatten's decision to remain silent"
was significantly diminished in part because "[a]t no point in his final argument did the
prosecutor mention this evidence").
87 Dorman, 622 P.2d at 458.
88 Id. (quoting Padgett v. State, 590 P.2d 432, 435 (Alaska 1979)).
89 Van Hatten, 666 P.2d at 1056.
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silence affected the jury's verdict and that the State has not shown that the comments on
post-arrest silence were harmless beyond a reasonable doubt. Thus there was plain error
as to the comments on both pre-arrest and post-arrest silence.
V. CONCLUSION
Because the prosecutor's comments on Adams's invocation of his right to
silence amounted to plain error, we REVERSE the court of appeals and REVERSE
Adams's conviction.
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