Opinion
Court of Appeals No. A-9643.
July 16, 2008.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, Judge, Trial Court No. 2KB-05-455 Cr.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
The defendant in this case, Leroy T. Adams, was convicted of sexual abuse of a minor. At trial, Adams took the stand in his own defense. During the prosecutor's cross-examination of Adams, the prosecutor repeatedly brought up the fact that Adams had declined to speak to the state troopers when they came to Adams's residence to investigate the reported sexual abuse. (To be more accurate, Adams acknowledged that the minor had come to his apartment, but Adams declined to talk about what happened after the minor arrived.) Later, during the prosecutor's summation to the jury, the prosecutor argued that Adams's unwillingness to talk to the troopers about what happened in his apartment was one factor that the jury should consider when assessing the credibility of Adams's testimony.
Adams's defense attorney made no objection either to the prosecutor's cross-examination on this point or to the prosecutor's related argument to the jury. But now, on appeal, Adams claims that it was plain error for the trial judge to allow the prosecutor to engage in this cross-examination and this argument to the jury, even in the absence of a defense objection. Adams asserts that the prosecutor's actions constituted an improper comment on his constitutional right to remain silent.
In Jenkins v. Anderson, 447 U.S. 231, 239; 100 S.Ct. 2124, 2129; 65 L.Ed.2d 86 (1980), and later in Fletcher v. Weir, 455 U.S. 603, 606-07; 102 S.Ct. 1309, 1311-12; 71 L.Ed.2d 490 (1982) ( per curiam), the United States Supreme Court held that, if a criminal defendant takes the stand at trial, the federal Constitution does not prohibit the prosecutor from cross-examining the defendant regarding the defendant's earlier failure to give a statement to the police before receiving Miranda warnings.
Jenkins is similar to Adams's case, in that it involved a prosecutor's comment on the defendant's pre-arrest silence. Weir went even farther; there, the Court held that even a defendant's post-arrest silence is a fair subject of comment if the defendant takes the stand at trial, so long as the defendant had not received Miranda warnings (with their implicit promise that silence would not be held against the defendant).
The record in Adams's case strongly suggests that the prosecutor and the defense attorney were both aware of the rule announced in Jenkins and Weir, and that they believed that this rule governed Adams's case if Adams decided to take the stand.
During the State's case-in-chief, the prosecutor and the defense attorney went to significant effort to make sure that the jury did not hear that Adams had declined to speak to the troopers about what happened in his apartment. Here, for example, is the exchange that occurred (outside the presence of the jury) when the prosecutor was getting ready to have a state trooper play the audio recording of the initial interview with Adams:
Prosecutor: We want to make sure . . . that [we don't play] that portion of [the interview containing the] statements that [Adams] made . . . about his right — exercising his right to remain silent. . . .
The Court: Okay. So any objection?
Defense Attorney: No. . . . [M]y concern is just that it doesn't get slipped in — that he exercised the right [to silence].
The Court: Right. Got it.
Defense Attorney: Or else we've got a huge problem.
The Court: And . . . you both checked this [recording] out, or you . . .
Prosecutor: We're going to play it right now [outside the presence of the jury] so that we all . . .
Defense Attorney: So that we're sure.
Prosecutor: [And] you're fine if I just ask [the trooper] questions [about the interview]?
Defense Attorney: Yeah, as long as . . . you don't ask him any questions about [Adams] invoking his right to remain silent.
Prosecutor: Right; okay.
Given this colloquy, it seems almost inconceivable that the prosecutor would have engaged in the cross-examination and the argument to the jury that are challenged in this appeal — or that the defense attorney would have sat silent while the prosecutor did so — unless both attorneys believed that, under Jenkins and Weir, the rules about commenting on the defendant's pre-arrest silence changed if the defendant took the stand.
The record of Adams's trial contains no explicit discussion of Jenkins and Weir — indeed, no explicit discussion of any legal authorities pertaining to this issue — so we can not know for sure what the prosecutor and the defense attorney were thinking. But it is not strictly necessary for us to reconstruct their analysis of this issue.
Adams is making a claim of plain error (because there was no objection to the prosecutor's actions at Adams's trial). As we explained in Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005), "To be `plain error', an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails."
Given the United States Supreme Court's decisions in Jenkins and Weir (neither of which Adams discusses), Adams's position in this appeal has no merit under federal law.
With regard to Alaska law, the pertinent rule is found in this Court's decision in Silvernail v. State, 777 P.2d 1169 (Alaska App. 1989). In Silvernail, we held that evidence of a defendant's pre-arrest silence is sometimes admissible and sometimes not. We stated that "[the] [r]esolution of this issue turns upon a case-by-case examination of the evidence" — "[a] balancing of the probative value of the disputed evidence against its prejudicial impact". Id. at 1177 1176. In this context, the "probative value" of a defendant's pre-arrest silence is its relevance to assessing the credibility of the defendant's trial testimony.
In Silvernail, we held that the prejudicial impact of the evidence outweighed its probative value, and we therefore found plain error. Id. at 1178. In Adams's case, there was no objection to the cross-examination and the argument to the jury that are now challenged on appeal. Thus, the trial judge was never asked to engage in the balancing analysis prescribed by Silvernail. However, Adams's case differs from the facts of Silvernail in at least two significant ways.
First, Adams's attorney offered no objection when the prosecutor cross-examined Adams about his pre-arrest silence, while the defense attorney in Silvernail affirmatively objected to the prosecutor's cross-examination regarding Silvernail's silence. It is true that Silvernail's attorney offered a meritless legal basis for this objection (a federal Fifth Amendment claim), rather than objecting under Alaska Evidence Rule 403. But this Court concluded that the defense attorney's objection "was . . . sufficient to call the trial [judge's] attention to the fact that this line of inquiry was disputed". Silvernail, 777 P.2d at 1174.
Second, in Adams's case, the prosecutor cross-examined Adams about his refusal to speak during a non-custodial investigative interview at Adams's residence. In Silvernail, on the other hand, the prosecutor relied on Silvernail's silence at a time when Silvernail had just been taken into police custody. Although this Court did not determine whether Silvernail's custody was only an investigative stop or was instead a full arrest, we concluded that resolution of that issue was not imperative because, under any view of the events, "Silvernail was the subject of a stop amounting to a seizure of his person". Id. at 1178.
Given these distinctions between Adams's case and the facts of Silvernail, the best that can be said for Adams's contention in this appeal is that his position is debatable. But, to repeat what we said in Simon, 121 P.3d at 820, "[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."
The judgement of the superior court is AFFIRMED.