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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moreno v. State (1/30/2015) sp-6982
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JORGE MORENO, )
) Supreme Court Nos. S-15067/15070
Petitioner, ) (Consolidated)
)
v. ) Court of Appeals No. A-10837
) Superior Court No. 2BA-09-00239 CR
STATE OF ALASKA, )
) O P I N I O N
Respondent. )
_______________________________ ) No. 6982 - January 30, 2015
)
MARY HICKS, )
)
Petitioner, ) Court of Appeals No. A-10820
) Superior Court No. 3GL-09-00126 CR
v. )
)
STATE OF ALASKA, )
)
Respondent. )
_______________________________ )
Petition for Hearing in File No. S-15067 from the Court of
Appeals of the State of Alaska, on appeal from the Superior
Court of the State of Alaska, Second Judicial District,
Barrow, Michael I. Jeffery, Judge. Petition for Hearing in
File No. S-15070 from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Glennallen, Daniel Schally,
Judge pro tem.
----------------------- Page 2-----------------------
Appearances: Josie Garton and John Page, Assistant Public
Defenders, Anchorage, and Quinlan Steiner, Public Defender,
Anchorage, for Petitioners. Diane L. Wendlandt, Assistant
Attorney General, Office of Special Prosecutions & Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Respondent.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
Justices. [Bolger, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
"Trial errors to which the parties did not object are reviewed for plain
error."1
In Adams v. State we held that 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
2
substantial rights; and (4) was prejudicial." These consolidated cases require us to
clarify the standard for determining when a defendant intelligently waived an objection
or made a tactical decision not to object.
Defendants in two criminal cases failed to object to errors at trial: in
Moreno v. State , the admission of improper testimony regarding Jorge Moreno's exercise
3
of his right to be free from compelled self-incrimination; in Hicks v. State, the lack of
a jury unanimity instruction when the prosecutor directed the jury that it could find Mary
Hicks guilty of either of two episodes of allegedly driving under the influence of
1 Khan v. State , 278 P.3d 893, 896 (Alaska 2012) (citing Adams v. State , 261
P.3d 758, 764 (Alaska 2011)).
2 Adams , 261 P.3d at 764.
3 Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *1 (Alaska
App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013).
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----------------------- Page 3-----------------------
4
alcohol. Moreno and Hicks each sought plain error review, and in each case the court
of appeals held that the defendant failed to show that the error was not the result of
5
defense counsel's tactical decision not to object. In Moreno , the court of appeals also
applied a presumption that where the record is silent or ambiguous, defense counsel's
inaction is tactical and precludes plain error review.6
Moreno and Hicks filed petitions for hearing before this court, arguing that
the burden of proof should be on the State to show that their counsels' failures to object
were the result of tactical decisions. They also contended that the court of appeals
erroneously speculated on the purported tactical benefits they received due to their
attorneys' lack of objections. Finally, they each requested an evidentiary hearing to
develop the record on this issue.
We granted review to determine whether to apply an evidentiary
presumption or to place a burden of proof on a party to establish that a defendant's lack
of objection at trial was or was not the result of defense counsel's intelligent waiver or
7
tactical decision not to object. But we conclude that our case law compels neither result.
Today we hold that defense counsel's tactical reason for failing to object, or counsel's
4 Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 (Alaska
App. Jan. 16, 2013).
5 Moreno , 2013 WL 120907, at *2-3; Hicks , 2013 WL 203264, at *3-4.
6
Moreno , 2013 WL 120907, at *5 (concluding that when a litigant pursues
a claim of plain error on a silent or ambiguous record, the court will "focus on whether
there is a serious potential for tactical inaction" because where "an attorney makes a
conscious decision not to object to inadmissable evidence in order to gain a tactical
advantage . . . the attorney is unlikely to make this decision a matter of record" (emphasis
added)).
7 Moreno v. State , Nos. S-15067/15070 (Alaska Supreme Court Order,
June 10, 2013).
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----------------------- Page 4-----------------------
intelligent waiver of an objection, should be plainly obvious from the record before
foreclosing the reviewing court's consideration of the remaining plain error elements.
We therefore reverse the court of appeals' decisions on this issue. But we conclude that
Moreno suffered no prejudice despite the error in his case, and we affirm the court of
appeals' decision upholding Moreno's conviction on this alternate ground. We remand
Hicks's case to the court of appeals for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Moreno v. State
Jorge Moreno was charged with possession and delivery of
8
At trial,
methamphetamine and illegal sale of alcohol in a local option community.
Moreno's attorney asked the investigating officer whether the police had been able to
9
The officer
verify that Moreno owned a jacket that contained a methamphetamine pipe.
10
replied that Moreno had refused to speak to the police. Moreno's attorney did not
object to the officer's statement; instead, the attorney interrupted the officer and directed
8 Moreno , 2013 WL 120907, at *1. A local option community is one that has
elected to prohibit the sale, importation, or possession of alcoholic beverages. See
AS 04.11.491.
9 Id. at *1-2 (discussing the defense attorney's question: "And at no point
during your investigation did you determine who that jacket belonged to?" and the
officer's reply: "Correct, ma'am. There [were] no identifying items [in the jacket] and
the defendant refused to speak to us about it, but we did photograph where that - that
came out of . . . ." (emphasis omitted)).
10 Id. at *1.
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----------------------- Page 5-----------------------
11
the officer to reply "[y]es or no." Moreno was convicted, and he appealed arguing that
the officer's reference to his silence was impermissible.12
The court of appeals concluded that Moreno's attorney's question elicited
the officer's testimony and that counsel "apparently made a tactical decision not to object
13
to the officer's answer." Both the State and the court of appeals identified potential
14
The State argued that Moreno likely
reasons why Moreno's counsel failed to object.
sought "to impeach the police investigation and to lay a foundation for arguing that the
15
[S]tate had not proved that Moreno knowingly possessed the pipe." The court also
offered its own possible explanations: that the defense attorney perceived the officer had
made an inadmissible comment and chose to preserve "at least one colorable issue" on
appeal or that the attorney recognized an objection would have focused the jury's
attention on Moreno's silence.16
11 Id. at *1-2.
12 We have held that questions or comments by the State about a defendant's
pre-arrest silence are generally inadmissible under Alaska Rule of Evidence 403 and that
questions or comments by the State on a defendant's post-arrest silence are prohibited
by article I, section 9 of the Alaska Constitution. Adams v. State , 261 P.3d 758, 765-67
(Alaska 2011). It is unclear whether Moreno had been arrested when police questioned
him about the jacket. Moreno , 2013 WL 120907, at *2.
13 Moreno , 2013 WL 120907, at *1.
14 Id. at *2-3.
15 Id. at *2
16 Id. at *3.
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----------------------- Page 6-----------------------
The court of appeals additionally examined whether Moreno had suffered
17
any prejudice from his counsel's failure to object. The court of appeals interpreted
Adams as holding that a reviewing court should consider the following factors in
determining whether a prosecutor's comments on a defendant's silence resulted in
harmless error:
(1) [W]hether the conviction depended primarily on
resolution of conflicting witness testimony; (2) whether any
comments on the defendant's silence were made during the
prosecutor's closing argument; (3) whether the reference was
"express" rather than "brief and passing"; and (4) whether the
evidence was "directly elicited by the prosecutor's
[18]
questioning."
The court of appeals examined these factors and concluded that the alleged error in
Moreno's case was harmless beyond a reasonable doubt.19
Moreno petitioned the court of appeals for rehearing, arguing that the court
improperly placed the burden on him to prove that his counsel did not make a tactical
20
decision to withhold an objection to the officer's testimony. The court of appeals
denied his petition, reasoning that the plain error doctrine required the court to "focus
21
on . . . a serious potential for tactical inaction." The court relied on its decision in
Borchgrevink v. State , which held that "when the record is silent or ambiguous . . . [an
17 Id.
18 Id.
19 Id.
20 Id. at *5.
21 Id.
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----------------------- Page 7-----------------------
appellate court] appl[ies] a presumption that the defense attorney's action (or, more
precisely, inaction) was tactical."22
Moreno petitioned this court for hearing. We granted the petition and
consolidated it with Hicks's petition.23
B. Hicks v. State
Mary Hicks was arrested for and convicted of driving under the influence.24
At her trial a village public safety officer testified that, while responding to a report that
Hicks was driving under the influence, he located Hicks's truck parked in a spot at her
25
He also testified to observing
friend's house that he knew had recently been vacant.
26
Hicks enter the truck and start the engine. He stated that Hicks then exited the truck
27
and ran back inside the friend's house. The officer spoke with Hicks at the friend's
house, determined that she was intoxicated, and arrested her.28 During closing arguments
at Hicks's trial, the prosecutor told the jury that it could find Hicks guilty of either of the
22 Id. at *5 (omissions in original) (quoting Borchgrevink v. State , 239 P.3d
410, 421 (Alaska App. 2010)).
23 Moreno v. State , Nos. S-15067/15070 (Alaska Supreme Court Order,
June 10, 2013).
24 See Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1
(Alaska App. Jan. 16, 2013).
25 Id.
26 Id.
27 Id.
28 Id. at *1-2.
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----------------------- Page 8-----------------------
two distinct driving or operating incidents: driving to the friend's house or starting the
parked truck in front of the friend's house.29
This was obvious error under the Alaska Constitution's due process
30 which we have interpreted to bestow on a criminal defendant the "right to have
clause,
31
jurors 'all agree that the defendant committed a single offense.' " Hicks did not object
to the prosecutor's statement or ask the court to instruct the jury that it had to
32
The jury convicted Hicks
unanimously agree on one offense to return a guilty verdict.
of driving under the influence.33
Hicks appealed, arguing plain error. Before the court of appeals, the State
34
proffered two possible tactical reasons for Hicks's failure to object. First, the State
asserted that "had she raised the issue in the trial court, the State might have sought to
35
amend the indictment to charge her with two separate felony offenses." Second, the
State argued that Hicks's defense focused on attacking the strength of the evidence of the
36
The court of appeals
second incident when the officer observed Hicks start her engine.
concluded that Hicks's attorney made a tactical decision not to object because an
29 Id. at *3.
30 Alaska Const. art. I, § 7 ("No person shall be deprived of life, liberty, or
property without due process of law.").
31 Khan v. State , 278 P.3d 893, 899 (Alaska 2012) (quoting State v. James,
698 P.2d 1161, 1167 (Alaska 1985)).
32 Hicks , 2013 WL 203264, at *3.
33 Id. at *1.
34 Id. at *4.
35 Id.
36 Id.
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----------------------- Page 9-----------------------
objection would have emphasized that the jury could convict Hicks based solely on the
evidence of her driving under the influence, which did not rely on the officer's disputed
testimony.37
Hicks filed a petition for hearing. We granted Hicks's petition and
consolidated it with Moreno's petition.38
III. STANDARD OF REVIEW
These consolidated petitions present only questions of law to which we
apply our independent judgment.39 We will adopt the rule of law that "is most persuasive
in light of precedent, reason, and policy."40
IV. DISCUSSION
A. It Was Error To Apply A Presumption On A Silent Or Ambiguous
Record That Defense Counsel Made A Tactical Decision Not To Object
And To Place The Burden On Defendant To Disprove This
Presumption.
In Johnson v. State , we explained why a general rule requiring a party in
trial to object to a perceived error is necessary to preserve that error as a point on appeal:
Typically, a litigant or defendant must raise an objection in
the trial court in order to preserve that argument for appeal.
This general preservation rule is a prudential gate-keeping
doctrine adopted by the courts to serve important judicial
policies: ensuring that there is "a ruling by the trial court that
37 Id. at *1, *4.
38 Moreno v. State , Nos. S-15067/15070 (Alaska Supreme Court Order,
June 10, 2013).
39 State v. Doe A, 297 P.3d 885, 887 (Alaska 2013), as modified on denial of
reh'g (Apr. 10, 2013).
40 Id. (quoting Ford v. Municipality of Anchorage , 813 P.2d 654, 655 (Alaska
1991)) (internal quotation marks omitted).
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may be reviewed on appeal, . . . afford[ing] the trial court the
opportunity to correct an alleged error," and creating a
sufficient factual record "so that appellate courts do not
[41]
decide issues of law in a factual vacuum."
"But the general preservation rule is not absolute, and it is subject to
42
[certain] exceptions, such as the plain error doctrine." The plain error doctrine allows
an appellate court to review issues not otherwise preserved where "there was [an]
obvious and prejudicial error below affecting substantial rights that did not result from
'intelligent waiver or a tactical decision not to object.' "43
Under Alaska Criminal Rule 47(b), "[p]lain errors or defects affecting
substantial rights may be noticed [sua sponte by the trial court]44 although they were not
brought to the attention of the court." When the trial court fails to correct an error on its
own initiative, however, plain error review on appeal operates "to mitigate . . . the harsh
effects of a rigid application of the adversary method of trial."45
41 328 P.3d 77, 82 (Alaska 2014) (alteration in original) (footnotes omitted)
(quoting Alexander v. State , 611 P.2d 469, 478 (Alaska 1980) and Pierce v. State , 261
P.3d 428, 433 (Alaska App. 2011)).
42 Id.
43 Id. (quoting Adams v. State , 261 P.3d 758, 764 (Alaska 2011)).
44 Cf. Adams , 261 P.3d at 764 (noting that "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' " without
restricting the rule's application to appellate proceedings (alterations in original)
(emphasis added) (quoting Alaska R. Crim. P. 47(b))). We recently clarified in Johnson
that plain error is a "prudential exception[]" to the general preservation rule; in other
words, we retain inherent discretion to hear such appeals under the rubric of plain error
as a common law doctrine. Johnson , 328 P.3d at 82 & n.24.
45 Dorman v. State, 622 P.2d 448, 459 (Alaska 1981) (alteration in original)
(continued...)
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----------------------- Page 11-----------------------
We use a four-part test when determining whether to review a defendant's
46
claim of plain error. The appellate court must find the error "(1) was not the result of
intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected
47
substantial rights; and (4) was prejudicial." Plain error review operates as a safety
valve allowing an appellate court to review unobjected-to errors "involv[ing] such
egregious conduct as to undermine the fundamental fairness of the trial and contribute
to a miscarriage of justice."48
These consolidated cases concern the tactical-decision prong of the plain
49
error test announced in Adams . While the remainder of the plain error test involves
substantive requirements an appellate court must conclude are present to reverse on the
basis of plain error, the tactical-decision prong acts as a bar to substantive review,
preventing defense counsel from deliberately bypassing the contemporaneous-objection
50
rule as part of a trial strategy. We will not afford a defendant an after-the-fact review
45(...continued)
(quoting Bargas v. State , 489 P.2d 130, 133 (Alaska 1971)) (internal quotation marks
omitted).
46 Adams , 261 P.3d at 764.
47 Id.
48 Id. (alteration in original) (quoting Raphael v. State , 994 P.2d 1004, 1015
(Alaska 2000)) (internal quotation marks omitted).
49 We r ecently revisited the pl ain error t est in Johnson v. State , 328 P.3d 77
(Alaska 2014), where we reiterated Adams 's ho lding that "we will review unpreserved
claims for plain error and reverse the trial court where there was obvious and prejudicial
error below affecting substantial rights that did not result from 'intelligent waiver or a
tactical decision not to object.' " Id. at 82 (quoting Adams , 261 P.3d at 764).
50
E.g. , Hammonds v. State, 442 P.2d 39, 42, and 43 n.16 (Alaska 1968)
(continued...)
- 11- 6982
----------------------- Page 12-----------------------
of a claim of error when defense counsel made a tactical decision not to object or
engaged in strategic gamesmanship to avoid the trial court's correction of the error in the
first instance.51
In Hicks , the court of appeals concluded that "Hicks ha[d] not shown that
she did not make a tactical decision to forgo a jury unanimity instruction" because (1)
it "appear[ed] that the defense attorney tried to focus on the weakness in the State's
proof" of one of the incidents; and (2) had Hicks raised the issue earlier, "the trial court
might have allowed the State to add a second count of driving under the influence."52 In
Moreno , the court of appeals reasoned that "when the record is silent or
ambiguous . . . [the court] appl[ies] a presumption that the defense
53
attorney's . . . inaction . . . was tactical." The court also speculated as to Moreno's
54
and stated that the test was whether, based on the
counsel's reasons for not objecting
50(...continued)
("There is here a clear intimation of a deliberate design to knowingly [forgo] a
constitutional claim. Such a deliberate act on the part of counsel amounts to a waiver of
appellant's constitutional right which is binding on appellant.").
51 Id. at 42-43.
52 Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *3-4 (Alaska
App. Jan. 16, 2013).
53
Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska
App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013)
(omissions in original) (alterations added) (quoting Borchgrevink v. State , 239 P.3d 410,
421 (Alaska App. 2010)).
54 Id. at *2-3.
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55
record, "there is a serious potential for tactical inaction." As explained below, neither
56
approach accords with our prior case law up to and including Adams .
1. The tactical-decision case law from 1960-1980
In Rank v. State , we examined whether allowing trial testimony regarding
the defendant's failure to take a lie detector test was reversible error where defense
57
counsel did not object to this evidence at trial. We reviewed the trial transcript and
concluded that Rank's counsel "went into the subject [of his client's failure to take the
test] in great detail in his cross-examination of a [S]tate witness and when [Rank]
58
Based on this clear indication in the record of defense
testified in his own defense."
counsel's tactics, we reasoned that "Rank had presumably taken the position that to
59
explore the subject in detail would be advantageous to his cause." But on appeal Rank
"adopt[ed] the totally inconsistent position that he ha[d] suffered a grave disadvantage."60
We held that Rank was "bound by the choice he first made in the court below. He ha[d]
55 Id. at *5.
56 We divide our discussion of the tactical-decision case law into three
categories: (1) cases from 1960 to 1980; (2) cases from 1980 to 2000; and (3) the
tactical-decision analysis in Adams v. State , 261 P.3d 758 (Alaska 2011). We discern
no significant changes in our tactical-decision analysis from one period to the next but
have divided our discussion into these sections to assist the reader.
57
373 P.2d 734, 735 (Alaska 1962), overruled in part on other grounds by
Shafer v. State, 456 P.2d 466 (Alaska 1969).
58 Id. at 736.
59
Id.
60 Id.
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waived any error that might otherwise have occurred when testimony regarding the
polygraph was first brought into the case by a [S]tate witness."61
In Noffke v. State , the trial judge received a question from the jury and
responded by giving the jury a supplemental instruction without contemporaneously
62
notifying the defendant and his counsel of the question or the court's answer. Unlike
in Rank , we noted "[t]here [was] nothing in the record to show that appellant's trial
counsel had any knowledge . . . of the fact that the trial judge had given the jury this
supplemental instruction" and consequently held that "it would work an injustice to
appellant to hold that he is now precluded from questioning the propriety of the
supplementary instruction" by not contemporaneously objecting to preserve the issue for
63
appellate review. In both Rank and Noffke , we focused on whether the record on its
face clearly indicated defense counsel's obvious knowledge of the error.
In Hammonds v. State , defense counsel failed to object when a police
officer testified to statements the defendant made after an inadequate Miranda warning.64
Similar to Rank and Noffke , the issue before us was "not merely one of a technical failure
65
to object in the trial court." The trial record plainly indicated that defense counsel was
aware of the requirements of Miranda and that he could have excluded his client's
statements by objecting, but chose not to object because the statements were potentially
61 Id.
62 422 P.2d 102, 103 (Alaska 1967).
63 Id. at 106-07.
64 442 P.2d 39, 40-41 (Alaska 1968).
65 Id. at 43.
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66
exculpatory. We concluded that there was "a clear intimation of a deliberate design to
knowingly [forgo] a constitutional claim" and "[s]uch a deliberate act on the part of
67
In other words,
counsel amount[ed] to a waiver of appellant's constitutional right."
because counsel's failure to object was "an intelligent waiver of a known right,"68
Hammonds could not complain on appeal that his Fifth Amendment privilege against
self-incrimination was infringed upon because the record indicated that his counsel was
aware of the requirements of Miranda and allowed the admission of his client's
statements despite the constitutional violation.
Then in Gafford v. State, another lie detector case, the record revealed that
Gafford's counsel had informed the court that he had decided not to request an
instruction on the inadmissibility of information about the lie detector test because he
69
"did not want 'to underline' the lie detector answer" elicited during cross examination.
We held "In view of the decision made at trial by his counsel, . . . appellant is now
precluded from asserting that it was error for the trial court not to have instructed the jury
to disregard [the witness's] reference to a lie detector [test]."70
66 Id. at 42 (referring to Miranda v. Arizona , 384 U.S. 436 (1966), which held
that statements obtained from defendants during interrogation in a police-dominated
atmosphere, without full warning of constitutional rights, were inadmissible in violation
of their Fifth Amendment privileges against self-incrimination).
67 Id. (emphasis added).
68 Id. at 43 (emphasis added).
69 440 P.2d 405, 410 (Alaska 1968), overruled on other grounds by Fields v.
State, 487 P.2d 831 (Alaska 1971).
70 Id.
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Finally, in Pulakis v. State , the trial court, without objection from defense
counsel, admitted testimony regarding two lie detector tests the defendant took. 71 We
considered Pulakis's counsel's actions throughout the course of trial and concluded they
"present[ed] a more compelling factual situation for finding an intelligent waiver of a
72
known right than existed in Rank ." For example, defense counsel (1) questioned
prospective jurors intensively on the subject of polygraph examinations; (2) elicited
responses favorable to Pulakis's position; (3) minimized the importance of the polygraph
evidence in his opening statement and closing argument; and (4) made no objection to
the qualifications of the expert witness on the results of the polygraph examination or to
73 We noted that "[i]n fact, counsel stated explicitly
the admissibility of that testimony.
that there was no objection to the admission of the written report of the expert witness,"
and "[o]n cross-examination, . . . counsel obtained significant admissions from the expert
74 Defense counsel also requested highly
about the unreliability of the polygraph test."
favorable jury instructions on the issue, which were given by the superior court.75 We
concluded "that this entire pattern of events demonstrate[d] a clear, intelligent waiver of
any privilege to exclude this evidence" based on defense counsel's trial strategy, thus
precluding plain error review.76
71 476 P.2d 474, 477 (Alaska 1970).
72 Id. at 480.
73 Id.
74 Id.
75 Id.
76 Id.
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These cases make clear that for an appellate court to decline plain error
review because defense counsel made a tactical decision, it must be plainly obvious from
the record on its face: (1) that counsel had an obvious awareness or knowledge of the
error, and (2) that counsel made an intentional or tactical decision not to object to the
error. Our case law has remained consistent on this point.
2. The tactical-decision case law from 1980-2000
In Owens v. State, the prosecution arranged for a radio broadcast on Sitka's
77
Unfortunately,
only radio station in an effort to locate an anonymous caller to testify.
the station broadcast the message during the morning hours before jurors were due to
78
Owens brought the broadcast to the court's attention the next day,
report for the trial.
but opposed the prosecution's suggestion that the court make a general inquiry of the
jurors. 79 The superior court noted on the record that "it would respect Owens'[s] request
not to have the jury queried in a general manner, but pointed out that Owens, by his
tactical decision, was depriving the court of the ability to take any actions necessary to
80
cure the harm caused by jury exposure to the inadmissible evidence." The superior
court "indicated that it considered Owens to be waiving the jury exposure issue by
objecting to a general inquiry of the jurors."81 On appeal we stressed that because Owens
objected to a procedure that would have cured any possible prejudice, he waived his right
77 613 P.2d 259, 260 (Alaska 1980).
78 Id.
79 Id.
80 Id.
81 Id.
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----------------------- Page 18-----------------------
82
to raise this issue on appeal under plain error review. It was Owens's attorney's
intentional decision not to cure the error in the first instance that barred further plain
error review.
In Moss v. State , a defense witness refused to testify and defense counsel
83
asked that the witness be held in contempt. The court took a short recess, during which
84
defense counsel was permitted to confer with the witness. Following the recess,
defense counsel did not renew his attempt to compel the witness to testify under threat
of contempt, made no further mention of the witness or counsel's proposed line of
85
inquiry, and instead rested Moss's case. On appeal Moss argued that the trial court
should have compelled the witness to testify, that its failure to do so violated Moss's
constitutional rights to due process and to confrontation, and that the court's failure to
86
hold a hearing concerning the proposed testimony was plain error. We summarily
dismissed these contentions, concluding:
[W]e believe that[,] given the tactical reasons that may have
supported a decision to withdraw the witness, it was
82 Id. at 262 ("We conclude that the trial court here could have cured any
possible prejudice with an instruction to the jury that they were to determine guilt or
innocence solely on the basis of the evidence admitted at trial. Because Owens objected
to this procedure, he has waived his right to raise on appeal this issue." (footnote
omitted)). We note that the trial judge in Owens did a commendable job making a clear
record on this issue. Best practices for trial judges who become aware of an attorney's
probable tactical decision not to object (or not to request a curative instruction) include
making an inquiry and findings on the record outside the presence of the jury.
83 620 P.2d 674, 677 (Alaska 1980).
84 Id.
85 Id.
86 Id.
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----------------------- Page 19-----------------------
incumbent upon counsel to renew his attempt to obtain the
witness['s] testimony following the recess. During the recess
counsel may have learned that the witness would not testify
in a manner helpful to the defense and thus have decided not
to proceed further with him. . . . [C]ounsel's decision to rest
his case at that point is inconsistent with the present claim of
[87]
error.
In other words, we concluded that Moss's counsel made a tactical decision
when he chose to forgo asking the court to compel the witness's testimony after speaking
to the witness. While speculating somewhat on counsel's rationale for this particular trial
strategy, we were careful to point out that the record reflected counsel's intentional
88
Thus, Moss is distinguishable from Moreno
choice not to go forward with this witness.
and Hicks where, on a silent or ambiguous record, the court of appeals applied a
89
presumption that defense counsels' inaction was tactical. In Moss , the record reflected
that defense counsel made an affirmative decision to withdraw a witness and rest his
90
We did not apply a presumption that
client's case after conferring with the witness.
defense counsel's inaction was tactical; rather, we recognized that defense counsel's
action of withdrawing the witness was tactical.
In Dorman v. State , we discussed the distinction between cases where
defense counsel deliberately injects error at trial or makes a tactical decision not to
object, and cases where defense counsel's lack of objection could have no tactical
87 Id. at 677-78.
88 Id.
89 Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska
App. Jan. 16, 2013); Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5
(Alaska App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App.
Feb. 7, 2013).
90 Moss , 620 P.2d at 677-78.
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91
benefit. During closing arguments at Dorman's trial, the prosecutor commented that
the jury should infer guilt from the fact that Dorman remained silent between the time
92
of his arrest and the time he was advised of his Miranda rights. Dorman's counsel
93
failed to object. We noted that Dorman's counsel (1) failed to object to identical
testimony during trial; (2) mentioned Dorman's Miranda rights during cross-
examination; (3) asked for no curative instruction at the time; and (4) made no motion
for a mistrial.94
Despite Dorman's counsel's awareness of Miranda , we held the failure to
object was not tactical because Dorman had not "injected the issue of his silence into the
case" and there could be no benefit to him in letting the potentially incriminating silence
95
into evidence. In addressing whether counsel may have been inviting error, we
concluded:
There is no basis for the inference that defense counsel was
trying to further Dorman's case by failing to object to the
final argument comment, unless it is implied that defense
counsel invited error for the purpose of obtaining a reversal
on appeal. That conclusion, however, is not one which
should be lightly inferred in any case, for it would preclude
91 622 P.2d 448, 457-58 (Alaska 1981) (comparing Davis v. State , 501 P.2d
1026 (Alaska 1972) and Hammonds v. State , 442 P.2d 39 (Alaska 1968) with Bargas v.
State, 489 P.2d 130 (Alaska 1971)).
92 Id. at 456. There had also been testimony regarding Dorman's reactions
to questions after he had been informed of his Miranda rights, despite Dorman's
counsel's objections. Id. at 452. The trial court prohibited the prosecutor from
referencing that testimony during closing arguments. Id.
93 Id. at 457.
94 Id.
95 Id. at 458.
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review of the most fundamental defects under the plain error
[96]
doctrine . . . .
In other words, we explicitly refrained from construing counsel's inaction as a tactical
decision absent a clear indication in the record. Without an affirmative act by counsel
indicating his awareness of the existence of a known right and some indication in the
record of a conscious failure to preserve the issue, we conducted the remainder of the
plain error analysis.97
Finally, in Raphael v. State , the prosecutor told the trial judge at an ex parte
hearing that the State's key witness was likely to recant, was intoxicated, and should be
98
incarcerated until she testified. Without first notifying Raphael or his attorney of the
prosecutor's statements, the trial judge granted the prosecutor's request, jailing the key
99
witness and placing her children in protective custody. Raphael was convicted and
appealed, arguing that the trial court denied him due process given the potentially
coercive effect of the witness's incarceration on her testimony and his right to be present
96 Id. at 458 (emphasis added). We also noted Dorman's counsel's "many
objections" to testimony regarding Dorman's silence after receiving a Miranda warning
compared to Dorman's counsel's failure to object to testimony regarding Dorman's
silence before receiving a Miranda warning. Id. We stated that this discrepancy further
indicated that counsel's failure to object to evidence of Dorman's pre-Miranda -warning
silence was not invited error. Id.
97
Id. ("Thus, since the failure to object to the final comment has not been
shown to have been a tactical or strategic decision, the [S]tate's argument does not
compel us to disregard the error. We must still, of course, determine whether this remark
constituted plain error.").
98 994 P.2d 1004, 1006 (Alaska 2000).
99 Id.
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100
at the hearing. The State responded that Raphael abandoned his right to appeal his
absence from the ex parte hearing (and the hearing's allegedly coercive effect on the key
witness's testimony) because his attorney failed to object to, and thus preserve, these
101
alleged errors during trial. The State argued that the tactical-decision prong should bar
further review because Raphael's failure to object might have been tactical and Raphael
could have obtained a benefit from his failure to object.102
We rejected such speculation because it "assume[d] that Raphael's attorney
had a sufficiently accurate view of the scope of the error and deliberately chose to waive
103
any objection." We compared the situation in Raphael to Noffke v. State , where we
held that defense counsel's failure to object was not a tactical decision because the record
104
failed to demonstrate that defense counsel was aware of the error asserted on appeal.
And we noted that we had requested that both parties search the trial record for "any
evidence, . . . of [Raphael's attorney's] knowledge of the ex parte hearing and the
105
surrounding circumstances," but that "[n]either party found any such references."
Based on the lack of support in the record for the conclusion that defense
counsel knew the full extent of the constitutional errors and deliberately chose not to
100 Id.
101 Id. at 1015.
102 Id. ("Specifically, the State contends that Raphael could have hoped that
[the complaining witness's] incarceration would make her hostile toward the prosecution
and cause her to slant her testimony in his favor.").
103 Id.
104 Id. at 1016 (citing Noffke v. State , 422 P.2d 102, 106-07 (Alaska 1967)).
105 Id. at 1016 n.53 (emphasis added) (explaining our request that the parties
provide supplemental briefing on whether the record contained any evidence of defense
counsel's knowledge of the hearing, apart from the trial court's limited description of it).
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object, we could not say that Raphael's attorney's decision not to object was tactical.106
Because plain error review was not foreclosed by any tactical decision not to object, we
held that the error complained of (1) was obvious; (2) was substantially prejudicial; and
(3) undermined the fundamental fairness of the trial and contributed to a miscarriage of
107
justice. Concluding there was plain error, we remanded Raphael's case for a new
trial.108
In sum, these cases consistently demonstrate our reluctance to foreclose
plain error review on tactical-decision grounds. Evidence of a tactical decision not to
object to a trial error must be plainly obvious from the record to persuade an appellate
court that a defendant's otherwise meritorious substantive claim of error should not
109 110
trigger appellate review. This rule was further underscored in Adams v. State .
3. The tactical-decision analysis in Adams v. State , 2011
All parties agree that our decision in Adams governs the outcome of the
present cases. Moreno and Hicks argue that Adams 's reliance on Dorman , Owens,
Pulakis , and Hammonds indicates that we intended defense counsel's tactical decisions
to operate as implied waivers of future appeals, with the State bearing the burden of
proving that a decision was tactical. Moreno and Hicks also read Adams as precluding
106 Id.
107 See id. at 1015.
108 Id. at 1015-16.
109 See, e.g., Hammonds v. State , 442 P.2d 39, 42-43 (Alaska 1968).
110 261 P.3d 758, 773 (Alaska 2011).
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plain error review where the benefit conferred on the defendant is readily apparent on the
record.111
The State does not read Adams as requiring proof of an express or implied
waiver or a discernable benefit on the defendant. According to the State, nothing in
Adams suggests that these are the only types of tactical decisions that will preclude plain
error review. The State instead attempts to factually distinguish Adams and the cases it
relied on to convince us to adopt the court of appeals' line of cases.112
Adams began its analysis of the plain error rule by discussing how 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
113
or tactical." We underscored our analysis in Dorman that where there is "no evidence"
that defendant's failure to object was strategic, there is "no basis for inferring that the
111 Moreno and Hicks cite Adams 's discussion of Dorman , where we
explained: "[W]here a defendant 'neither injected the issue of his silence into the case
nor obtained a benefit from the prosecutor's inculpatory comment,' there [was] 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.' " Adams ,
261 P.3d at 773 (quoting Dorman v. State , 622 P.2d 448, 458 (Alaska 1981)).
112
The State argues that we should explicitly adopt the court of appeals'
standard for deciding whether a failure to object was tactical. Under this standard, the
court of appeals reviews the trial court record for any "plausible" tactical reason for
defense counsel's failure to object, Borchgrevink v. State , 239 P.3d 410, 422 (Alaska
App. 2010), and "unless the record precludes the possibility that counsel's actions may
have been tactical, a finding of plain error is rarely appropriate." Massey v. State ,
771 P.2d 448, 453 (Alaska App. 1989). Under the court of appeals' approach, if the
court can divine a conceivable tactical reason or the record is silent or ambiguous, that
court applies a presumption that the defense attorney's decision was tactical, and then
the burden shifts to the defendant to prove that counsel's decision was not tactical.
Borchgrevink , 239 P.3d at 421.
113 Adams , 261 P.3d at 770.
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failure to object was tactical 'unless it is implied that defense counsel invited error for
114
And we stated that this implication
the purpose of obtaining a reversal on appeal.' "
"is not one which should be inferred lightly, for it would preclude review of the most
115
fundamental defects under the plain error doctrine." This statement recognized the
central focus of plain error review:
[The rule] [is] intended to ensure that litigants have a means
for the prompt redress of miscarriages of justice, and it
applies only when the error was so plain that the trial court
and prosecutor were derelict in countenancing it, even absent
the defendant's timely assistance in detecting it. It also
reflects a careful balancing between the Court's intention of
encourag[ing] all trial participants to seek a fair and accurate
trial the first time around and the Court's insistence that
obvious injustice be promptly redressed.[116]
In Adams , we cautioned that appellate courts should concentrate on the substantive
requirements of plain error review: the obvious nature of the error, the substantial rights
117
the error affected, and the prejudice that resulted from the error. Inferring a tactical
114 Id. at 773 (quoting Dorman , 622 P.2d at 458).
115 Id. (emphasis added) (quoting Dorman , 622 P.2d at 458) (internal quotation
marks omitted).
116 Larry Cunningham, Appellate Review of Unpreserved Questions in
Criminal Cases: An Attempt to Define the "Interest of Justice, " 11 J. A
PP . PRAC . &
PROCESS 285, 298 (2010) (third alteration in original) (footnote omitted) (quoting United
States v. Frady, 456 U.S. 152, 163 (1982)) (internal quotation marks omitted).
117 Adams , 261 P.3d at 770, 773 (noting that "our [earlier]
cases . . . consistently define[d] plain error as error that affects substantial rights and is
obviously prejudicial," but noting that three substantive requirements must now be met:
there "must be error . . . ; the error must be obvious, meaning that it should have been
apparent to any competent judge or lawyer; . . . the error must affect substantial rights,
meaning that it must pertain to the fundamental fairness of the proceeding; and . . . the
(continued...)
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decision or intelligent waiver of a known right on a silent or ambiguous record would
serve only to impede substantive review of the error.
Adams and the cases it relied upon thus stand at odds with the court of
appeals' conclusion in Moreno that "when the record is silent or ambiguous[,] . . . [the
court] appl[ies] a presumption that the defense attorney's . . . inaction . . . was tactical."118
It was also error to place the burden on the defendant to negate the possibility that his
attorney's failure to object was tactical.119
The same error was made in Hicks , where the court of appeals held that
"Hicks must . . . show that the error was not the result of her attorney's tactical decision
120 We have never placed this burden on the defendant. Hicks cited our
not to object."
analysis in Khan v. State ,121 but Khan only reaffirmed the "Adams rule" that "includ[es]
an inquiry into whether the defendant's non-objection was tactical, [which] better
respects the trial process and the role of counsel."122
Whether the defendant made a tactical decision not to object or intelligently
waived an opportunity to object must be plainly obvious from the face of the record, not
presumed in the face of a silent or ambiguous record. The records in Moreno and Hicks
117(...continued)
error must be prejudicial").
118 Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska
App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013)
(quoting Borchgrevink , 239 P.3d 410, 421 (Alaska App. 2010)).
119 Id.
120
Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska
App. Jan. 16, 2013) (citing Khan v. State , 278 P.3d 893, 901 (Alaska 2012)).
121 Id. at *4 (citing Khan , 278 P.3d at 901).
122 Khan , 278 P.3d at 901.
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do not reveal plainly obvious evidence of tactical decisions not to object by defense
counsel. Because the court of appeals improperly placed the burden on Moreno and
Hicks to prove that their attorneys did not make tactical decisions, and because the court
of appeals improperly applied a presumption of tactical inaction in the case of a silent or
ambiguous record in Moreno, we reverse the court of appeals' conclusions regarding the
tactical-decision determination in both cases.123
B. We Affirm The Court Of Appeals' Conclusion That The Error In
Moreno's Case Was Not Prejudicial.
In Moreno , the court of appeals also addressed the prejudice prong of plain
error review. The court held that admitting the arresting officer's statement regarding
Moreno's decision to remain silent did not result in prejudice because admitting the
124 Moreno argues that the court of
statement was harmless beyond a reasonable doubt.
appeals erred in reaching that conclusion.
Adams considered what would constitute prejudice and held that
[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
123 We note that the court of appeals recently discussed the tactical-decision
principle in Anderson v. State , 337 P.3d 534, 543-44 (Alaska App. 2014). We had
previously remanded the Anderson case to the court of appeals for its reconsideration of
this issue in that case. The court of appeals decided not to reconsider its earlier
determination of the tactical decision in that case in light of its alternative holding that
the jury instruction error in Anderson was harmless beyond a reasonable doubt. Id . at
544.
124 Moreno , 2013 WL 120907, at *3.
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proves that there is a reasonable probability that it affected
the outcome of the proceeding.[125]
We identified several factors that a reviewing court must consider in determining
whether a trial court's failure to take remedial action regarding a prosecutor's comments
on a defendant's silence constituted harmless error. These include (1) whether the
conviction depended primarily on conflicting witness testimony; (2) whether the
comment occurred during closing argument; (3) whether the comment was "express"
rather than "brief and passing"; and (4) whether the evidence was "directly elicited by
the prosecutor's questioning."126
Moreno was convicted at trial of delivery and possession of
127
methamphetamine. On cross-examination, Moreno's defense attorney asked the
investigating officer whether the officer had been able to identify the owner of a jacket
that contained a methamphetamine pipe. The officer replied that there were "no
identifying items [in the jacket] and the defendant refused to speak to us about it, but we
did photograph where that - that came out of," at which point the defense attorney
interrupted and directed the officer to answer yes or no. (Emphasis added.) This was the
only reference in the entire course of trial implicating Moreno's constitutional right to
be free from self-incrimination.128
125 Adams v. State , 261 P.3d 758, 773 (Alaska 2011).
126 Id. at 774-75 (quoting Van Hatten v. State , 666 P.2d 1047, 1056 (Alaska
App. 1983)).
127 Moreno , 2013 WL 120907, at *1.
128 See Alaska Const. art. I, § 9 ("No person shall be compelled in any criminal
proceeding to be a witness against himself."); Moreno , 2013 WL 120907, at *2
("Evidence of a defendant's post-arrest silence in response to police questioning is
generally inadmissible under Article I, section 9 of the Alaska Constitution. In addition,
(continued...)
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----------------------- Page 29-----------------------
By comparison, in Adams, the prosecutor made two remarks on cross-
examination that directly addressed Adams's post-arrest silence:
[PROSECUTOR]: And then you refused to talk to police any
further. Correct?
[ADAMS]: That's right.
[PROSECUTOR]: Okay. Until today?
[ADAMS]: I was exercising my right.[129]
And then again:
[PROSECUTOR]: 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?
[ADAMS]: What do you mean by everything?
[PROSECUTOR]: Well, we didn't know anything about
what happened in your apartment from you, because you
128(...continued)
a defendant's pre-arrest silence will usually be inadmissible under Alaska
Evidence Rule 403 because its probative value is inherently low and the danger of unfair
prejudice is inherently high." (footnote omitted)).
We note that the court of appeals did not explicitly determine whether
Moreno was under arrest when he was questioned about the jacket, but assumed that he
was, at the very least, detained when the questioning occurred. Moreno , 2013 WL
120907, at *2. The court of appeals therefore analyzed the officer's comment under the
higher "harmless beyond a reasonable doubt" standard employed when the alleged error
implicates a constitutional right. See id.; see also Adams, 261 P.3d at 771. Because our
decision to affirm the court of appeals' conclusion in Moreno regarding the lack of
prejudice would be the same under either the pre- or post-arrest standard as stated in
Adams , 261 P.3d at 773, whether Moreno was under arrest at the time of his statement
is irrelevant.
129 Adams , 261 P.3d at 770.
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didn't talk to police, until after hearing all the evidence so far
in the case.[130]
And during closing argument, the prosecutor again pointed to Adams's silence to argue
that Adams's testimony was less credible than the victim's.131
The prosecution's conduct in Adams was egregious, continued over a
protracted period, and went to the core of the prosecution's theory of the case, namely,
that Adams was not credible and "changed his decision not to talk when he learned about
132
The facts
the DNA evidence indicating that he had sex with [the underage victim]."
in Moreno are far less compelling: the officer's comment was elicited by defense
counsel; it was made in passing; and the prosecutor did not refer to it during his closing
argument.
Accordingly, we agree with the court of appeals that the officer's testimony
"had little impact on Moreno's trial" and was "harmless beyond a reasonable doubt"
under the four factors of Adams that a reviewing court considers when determining
whether a court's failure to address a prosecutor's comments on a defendant's silence
133
was harmless error. We thus affirm the court of appeals' decision in Moreno on this
alternate ground.
V. CONCLUSION
We REVERSE the court of appeals' decisions foreclosing plain error
review in both Hicks and Moreno , but we AFFIRM the court of appeals' decision in
130 Id.
131 Id. at 762.
132 Id.
133 Moreno , 2013 WL 120907, at *3.
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Moreno on the alternate ground that the error was not prejudicial. We REMAND Hicks
for further proceedings consistent with this opinion.
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