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concluding that prosecutor's statement in rebuttal closing argument that D.S. could have called a particular witness did not warrant reversal on grounds of improper burden shifting where the prosecutor's statement was responsive to a defense comment regarding a missing witness and the prosecutor and the judge reminded the jury that the burden of proof always rests on the State
Summary of this case from Kameroff v. StateOpinion
Court of Appeals No. A-9472.
March 14, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-04-138 CP.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W . Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION
Following a jury trial, D.S. was adjudicated a delinquent minor for engaging in sexual contact with an eight-year-old girl who was unaware that a sexual act was being committed upon her (third-degree sexual assault). D.S. now appeals this delinquency adjudication.
AS 11.41.425(a)(1)(C).
D.S. argues that he was denied a fair trial because, during the prosecutor's rebuttal summation to the jury, the prosecutor referred to a witness who did not testify at D.S.'s trial, and noted that D.S.'s attorney could have called this witness to the stand if he had wished to. D.S. asserts that the prosecutor's comment improperly invited the jurors to shift the burden of proof, or at least the burden of producing evidence, away from the State and onto D.S. .
However, as we explain here, (1) the prosecutor was responding to the defense attorney's comments concerning this missing witness, and (2) both the prosecutor and the trial judge carefully explained to the jury that, even though D.S. could have presented this witness, the burden of proof and the burden of producing evidence always rested on the State and never shifted to the defense. For these reasons, we find no error, and we affirm D.S.'s delinquency adjudication.
Underlying facts
Twelve-year-old D.S. was accused of third-degree sexual assault for engaging in sexual contact with an eight-year-old girl, K.F. . He exercised his right to trial by jury. There were three main witnesses at D.S.'s trial: the victim, her mother, and D.S. himself.
The assault occurred when D.S. was invited to "sleep over" with the victim's older brother. All three children were sleeping in the same bedroom, with D.S. and the brother in one bed, and K.F. in another. K.F. testified that she was awakened by someone touching her genitals. She opened her eyes and saw D.S. kneeling by her bed, with his arm underneath her covers. D.S. quickly drew back his arm, and then he crawled on his hands and knees back to his own bed (that is, the bed he was sharing with the girl's brother).
K.F. immediately got up and went to her parents' bedroom, where she awakened her mother. According to K.F.'s mother, this occurred around 6:30 a.m. . K.F. was crying and trembling, and she reported that D.S. had "poked" her in her private area, and had hurt her. K.F.'s mother arose and looked into the children's bedroom. She saw her own son asleep under the covers, while D.S. was lying on the bed on top of the covers. D.S. too, was apparently asleep, but he was lying reversed on the bed: that is, his head was toward the foot of the bed, and his feet were by the pillow.
K.F.'s mother roused her husband, M.F., and told him what their daughter had said. Together, they went into the children's bedroom, where M.F. awakened the boys. According to K.F.'s mother's testimony, K.F.'s brother ( i.e., their own son) was groggy and confused when he awoke, but D.S. appeared alert. K.F.'s mother stated that D.S. "didn't look like he was just coming out of a sleep."
K.F.'s mother further testified that, after the boys were awakened, her husband did not know what to do, so he simply stared at the boys. Then K.F.'s mother drove D.S. back to his home. When they approached the road or driveway leading to D.S.'s residence, D.S. asked K.F.'s mother to let him off at the end of the road, rather than bringing him all the way to his house. K.F.'s mother refused to do this. She said: "I thought that [this] was a very serious accusation, [and] that his mother needed to hear it from me, not [from D.S. after] being dropped off, so I took [D.S.] all the way home."
(K.F.'s mother had been friends with D.S.'s mother since girlhood, when they were in the second grade together.)
After the State rested, D.S. took the stand and testified that he never touched K.F. . D.S. remembered waking up briefly during the night when he heard a "whimpering noise" or a "sniveling noise" and then he went back to sleep. The next thing he remembered was K.F.'s father, M.F., waking him up. According to D.S., the father took the two boys (that is, both D.S. and his own son) into the kitchen and started asking them what they had done. (D.S. did not offer any further description of this questioning.) Then, after a short while, K.F.'s mother drove him home.
In his testimony, D.S. maintained that he never went over to K.F.'s bed, never reached under her blankets, and never touched her.
During their summations to the jury, both the prosecutor and the defense attorney agreed that this was a fairly straightforward case of "whom do you believe?" The issue presented in this appeal arose in the following way:
Toward the end of his summation, the defense attorney said to the jurors:
Defense Attorney: Don't you wonder, "Where the heck is [M.F., the girl's father]?" [M.F.] is the one who woke the boys up. He's the one . . . who saw how they were sleeping. He's the one who . . . asked them questions. He's the one who called the police. He's the one who was the only person situated to observe [the demeanor of the two boys] — how someone is holding their head [or] squinting their eyes, those ways of telling someone's demeanor. He's someone singularly situated [to observe these things]; [his wife] said [that] the light was fine in [the room], and [that] he was looking at the boys. Where's [M.F.] to tell us why [he] sent [D.S.] home, or what did [his] own son say? Isn't [M.F.] the one who is the main actor in this case? . . . [A]ren't we missing that key person who could tell us what was happening when those boys woke up?
Immediately after the defense attorney finished his summation, the prosecutor asked the trial judge for permission to argue, in reply, that the defense also could have presented M.F.'s testimony if they had wished to do so. The defense attorney objected, arguing that this proposed argument would be improper, because it would implicitly invite the jury to shift the burden of proof to the defendant.
The prosecutor disagreed — pointing out that D.S. had taken the stand and had presented a contradictory account of the event. The prosecutor argued that, since the defendant had chosen to present a case, the State was now entitled to comment on the defense attorney's failure to call a witness who might have shed further light on the event. The defense attorney continued to insist that this was not right. The defense attorney took the position that, although a defendant may comment on the State's failure to present evidence, the State may not comment on a defendant's failure to present evidence — because any such comment would amount to a suggestion that the defendant has a burden to call witnesses, or a burden to prove innocence.
After the attorneys had presented their positions on this matter, the trial judge (Superior Court Judge Randy M. Olsen) announced: "I'm going to permit the [prosecutor to offer this] argument. And I'm going to caution the jurors that this does not shift the burden [of proof]."
The defense attorney still objected, but Judge Olsen stuck by his ruling. Then the defense attorney asked Judge Olsen to caution the jurors before the prosecutor presented the challenged argument. Judge Olsen agreed. Here is what he told the jurors:
The Court: Ladies and gentlemen: [The defense attorney] has commented on the State's failure to bring in the father [of K.F.]. I'm going to permit [the prosecutor] to address that [issue], and . . . I expect that she's going to say that [the defense] could have called [the father as well, because] he is [a] known [witness]. That does not — the defense does not have any burden of proving [D.S.'s] innocence, and they don't even have a burden of . . . bringing information into the courtroom to place before you. That is not their responsibility. And with that instruction, [the prosecutor may proceed].
The prosecutor then commenced her rebuttal summation. She first addressed two other topics: the lack of physical injury to K.F.'s genitals, and why this did not defeat the State's case; and the fact that D.S. had apparently changed his story when he took the stand at trial (that is, his account varied from the account that he gave the investigating trooper). Then the prosecutor addressed the fact that the defense attorney had not called M.F. to the stand:
Prosecutor: Now, . . . as the judge ha[s] instructed you, the burden of proof is always on the State, ladies and gentlemen. That [burden] does not shift at all during trial. But if there was anything that [K.F.'s father] was going to add that would in any way have changed any of the testimony that you've heard, the defense would have put him [on the stand, given the fact that D.S.] is taking the stand and telling you what happened that night.
[K.F.'s mother] told you that she was there the entire time when all this was going on, and . . . she testified [about] what actually happened when the boys were gotten up. That is . . . testimony of a person who was there. It's not required that if . . . ten people [witnessed an occurrence], all ten people have to be placed on the stand. [K.F.'s mother was] a person who was there, who saw what was going on, and [she] told [you about it]. She actually had more knowledge than anyone else, because [K.F.] woke her up first. . . . Then, after she finds out exactly what is going on, [she] goes and wakes up her husband. But it's [K.F.'s mother] who is the first contact, the first person that this is reported to.
This is the portion of the prosecutor's summation that D.S. objects to on appeal.
After the attorneys had delivered their summations, Judge Olsen instructed the jury. Jury Instruction No. 7 explicitly addressed the principle that a defendant bears no burden of proof and no burden of producing evidence:
A [juvenile delinquency] trial is distinguished by the principles of the presumption of innocence and the burden of proof beyond a reasonable doubt. The law presumes a juvenile defendant to be innocent of a crime. Thus, a juvenile defendant, although accused, begins the trial with a clean slate. The presumption of innocence alone is sufficient to acquit a juvenile defendant, unless and until, after careful and impartial consideration of all the evidence in the case, you are satisfied beyond a reasonable doubt of the juvenile defendant's guilt.
. . .
The burden of proving the elements of the crime charged beyond a reasonable doubt always rests upon the prosecution. This burden never shifts throughout the trial, for the law never imposes upon a juvenile defendant . . . the burden or duty of calling any witnesses or producing any evidence. . . . Thus[,] a reasonable doubt may arise not only from the evidence produced, but also from the lack of evidence. Because the burden is upon the prosecution to prove every essential element of the crime charged, beyond a reasonable doubt, a juvenile defendant has the right to rely upon [the] failure of the prosecution to establish such proof.
The major Alaska cases on the question of whether, or when, it is proper for a prosecutor to comment on the defense attorney's failure to call a witness
There is no clear rule of law in Alaska concerning a prosecutor's ability to comment on the failure of the defense to call a witness.
The Alaska Supreme Court first addressed this issue in McCurry v. State, 538 P.2d 100, 104 (Alaska 1975). In McCurry, the defendant offered the alibi that he was living at his parents' home at the time of the crime; the defendant also offered other exculpatory assertions that could have been corroborated by his parents. His parents were apparently available to testify, but the defense attorney did not call them. In the prosecutor's closing argument to the jury, the prosecutor suggested that the defense had not called McCurry's parents because they would not have corroborated his exculpatory version of events. McCurry, 538 P.2d at 103. The defense attorney did not object to the prosecutor's comment. Id.
On appeal, our supreme court noted that the "usual rule" governing this situation was that a prosecutor is allowed to comment on a defendant's failure to call a witness "only when the witness is peculiarly within the control of the defendant and [the] witness's testimony can reasonably be expected to elucidate matters already at issue". McCurry, 538 P.2d at 104. However, the supreme court did not have to decide whether to adopt this rule (or some other rule) because (1) the matter was raised as a claim of plain error and (2) it appeared that the prosecutor's comment was proper under the "usual rule" — since McCurry's parents, "while technically equally available to [both parties], did have a `special relationship' to the accused which would render them more likely to cooperate with the defense". Id. Moreover, the court noted, "while McCurry himself did not testify, his whole line of defense centered on questions of identity and residence which his parents were possibly in a position to elucidate." Id. Given the circumstances, the court found no plain error. Id.
This Court addressed this same problem at some length in Lewis v. State, 862 P.2d 181, 190-91 (Alaska App. 1993). We noted that the "usual rule" discussed in McCurry "has generated considerable disagreement", and that Professor Wigmore has advocated a different, broader rule: "that . . . where a witness is equally available to both parties, the more logical view is that [a party's] failure to produce [the witness] is open to an inference against both parties, [with] the particular strength of the inference depending on the circumstances." Lewis, 862 P.2d at 190, citing John H. Wigmore, Evidence in Trials at Common Law (Chadbourne rev. 1979), § 288, Vol. 2, p. 208.
Some jurisdictions . . . continue to apply the traditional version of the rule. See, e.g., People v. Paylor, . . . 518 N.Y.S.2d 102, 103, 511 N.E.2d 370, 371 ([N.Y.] 1987). Others, in keeping with the spirit of Wigmore's criticism, have relaxed the requirement that a witness be peculiarly within the control of the defendant and have allowed comment on the failure to call any available witness whose testimony "would naturally be expected to be favorable" to the defendant. People v. Ford, . . . 247 Cal.Rptr. 121, 131, 754 P.2d 168, 178 ([Cal.] 1988); Wheatley v. State, 465 A.2d 1110, 1111 (Del. 1983); State v. Moore, 620 S.W.2d 370, 373 (Mo. 1981).
Still other jurisdictions lean in the opposite direction, applying stringent variants of the usual rule. See, e.g., Dent v. United States, 404 A.2d 165, 169-70 (D.C.App. 1979) (requiring prior hearing to establish that absent witness is peculiarly within the power of the party to produce, and to establish the likelihood that absent witness would have been "likely to elucidate the transaction"); Commonwealth v. Niziolek, . . . 404 N.E.2d 643, 647 ([Mass.] 1980) (comment permissible if the evidence is so strong that the defendant, if innocent, could be expected to call the witness). And at least one state has forbidden comment under all circumstances. State v. Brewer, 505 A.2d 774, 777 (Me. 1985).
Lewis, 862 P.2d at 190.
In Lewis, this Court declined to adopt a definitive rule to govern this situation — because "both parties pa[id] only cursory attention to the question of whether the prosecutor's comments were improper, and neither offer[ed] any meaningful discussion of the relevant case law". Id.
Instead, we concluded that even if the prosecutor's comment was error, there was no realistic possibility that the jury had been misled concerning the State's burden of proof, and thus the error was harmless: "Since the prosecutor prefaced his comment by acknowledging that the state, rather than Lewis, bore the burden of proof, it seems unlikely that the jury might have interpreted the comment to suggest that the burden be shifted to the defendant." Id. We also noted that, during the defense attorney's summation, the defense attorney had anticipated this potential problem — and had told the jury: "The [S]tate has the burden of proof[,] and the [S]tate could say, I suppose, `[W]ell, you know, [defense counsel] could have called [this witness] to testify.' [But] I don't have that burden[.]" Id. at 190-91.
Given these circumstances, we concluded in Lewis that the trial judge had not abused his discretion when he refused to declare a mistrial based on the prosecutor's challenged comment. Id. at 191.
Two years later, in Gilbert v. State, 891 P.2d 228 (Alaska App. 1995), this Court reversed a criminal conviction after the prosecutor commented on the defense attorney's failure to call a witness. However, the supreme court granted the State's petition for hearing and ultimately reversed our decision: State v. Gilbert, 925 P.2d 1324 (Alaska 1996). Again, the supreme court declined to adopt a clear rule governing this situation. Instead, the supreme court declared that, if there was any error, it was harmless.
The defendant in Gilbert was accused of raping a young woman while the two were walking home from a bar in Seward. The defendant asserted that he had left the woman unharmed and had then gone back to his fishing boat (which was docked in the Seward harbor). According to the defendant, one of his shipmates was awake and was cooking a meal when he returned to the ship. The defendant further claimed that he had noted the time of his return to the ship ("five twenty-something" in the morning) by noting the clock located in the ship's galley. Gilbert (II), 925 P.2d at 1325.
If the defendant's story was true, this shipmate — Bob Olson — could apparently have corroborated an important aspect of the defendant's story. But Olson did not testify at Gilbert's trial.
In the prosecutor's opening summation to the jury, the prosecutor did not comment on Olson's failure to testify. Rather, he noted a different fact: that when Gilbert was interviewed by the police, he never mentioned that Olson was cooking in the galley when he returned to the ship. Id. The prosecutor suggested that Gilbert had invented this incident. Id. In response, the defense attorney urged the jury to find that the State, by not calling Olson to the stand, had failed to prove its case. The defense attorney told the jury:
Defense Attorney: [In this trial, it] is the State, [with] their resources [and] wealth, coming to bear upon one private individual, . . . a commercial fisherman. . . . [T]hey have [the] Seward police department at their disposal to investigate [and] to collect evidence. They've got the power and the wealth to bring FBI agents from Washington, to fly in other witnesses.
[T]he prosecution has the burden of proving to you or disproving to you all reasonable doubt. . . . [Quoting from one of the jury instructions:] "[A] reasonable doubt may arise not only from the evidence produced, . . . but also from a lack of evidence. Since the burden is upon the prosecution to prove every essential element of a crime charged beyond a reasonable doubt, a defendant has the right to rely upon the failure of [the] prosecution to establish such proof."
Gilbert (II), 925 P.2d at 1325-26.
The defense attorney's argument prompted the following reply from the prosecutor, and an ensuing objection from the defense attorney:
Prosecuting Attorney: [The defense attorney] said [that] the State had the power to produce all these witnesses and do things. . . . Well, speaking of witnesses, let me ask you a question: why do you think the defense went to all the effort of bringing Jeff Jackson back from Arkansas but they didn't bother to bring you Bob Olson, this quote "Bob Olson" that we heard about on Monday, the one man that presumably can give [Gilbert] his alibi? The one man that supposedly is right there when he comes in at 5:20-something in the morning. Ask yourselves, and think about that, when you . . . reflect on what [the defense attorney] is telling you.
Defense Attorney: Your Honor, I would object to this line of argument. The instruction says [that] the defense has the burden of producing no witnesses. And there are other considerations as to why Mr. Olson may or may not have been here. I think it's improper for [the prosecutor] to suggest that [Gilbert] has the duty of calling those witnesses.
[The trial judge overruled the defense attorney's objection. The prosecutor then continued:]
Prosecuting Attorney: The State's not saying that Mr. Gilbert had any burden of proving anything. I'm just saying if they went to all the trouble of bringing a man here from Arkansas who really doesn't know anything about this case, why do you suppose they didn't go to the effort of bringing somebody here who allegedly saw [the defendant] at 5:20 in the morning? Think about that. I'll tell you why. . . . You've heard of the phrase "red herring". That's the job of the defense: to throw out red herrings to distract you.
Gilbert (II), 925 P.2d at 1326.
As noted above, this Court concluded that the prosecutor's above-quoted argument was error, and that this error required reversal of Gilbert's conviction. The supreme court disagreed:
We find it unnecessary to determine whether [the prosecutor's argument was proper — because,] if there was any . . . error, it was harmless. The prosecutor's comments did not improperly shift the burden of proof to the defendant. We find unpersuasive Gilbert's argument that the prosecutor's comments in effect shifted the burden of proof from the State to the defendant. In his final comment, the prosecutor prefaced his remarks by stating that "[t]he State's not saying that Mr. Gilbert had any burden of proving anything. . . ." [Moreover,] Gilbert's counsel, quoting Jury Instruction 2(b), had previously reminded the jury that "the prosecution has the burden of proving to you or disproving to you all reasonable doubt . . . [and a] reasonable doubt may arise not only from the evidence produced . . . but also from a lack of evidence. Since the burden is upon the prosecution to prove every essential element of a crime charged beyond a reasonable doubt, a defendant has the right to rely upon the failure of prosecution to establish such proof." These reminders, along with the court's jury instructions, were sufficient to ensure that the burden of proof did not shift to the defendant.
Gilbert (II), 925 P.2d at 1328 (combining the main text and the accompanying footnote, footnote 8).
The supreme court next concluded that, given the strength of the State's case, and given the fact that Gilbert's lawyer had presented plausible evidence to support the assertion that the crime had been committed by someone else, it was unlikely that the prosecutor's comments affected the jury's verdict. Id. at 1328-29.
Finally, the supreme court concluded that "the jury instructions overcame any potentially impermissible effect [that] the prosecutor's comments may have had on the jury." Id. at 1329.
The supreme court pointed, in particular, to a jury instruction which, in crucial respects, mirrored Jury Instruction No. 37 in D.S.'s case (the instruction quoted in the preceding section of this opinion). The saving instruction in Gilbert informed the jurors (1) that the burden of proving the defendant guilty always rests with the prosecution throughout the trial, and never shifts; (2) that the law never imposes a burden on the defendant to call witnesses or produce any other evidence; and (3) that a reasonable doubt may arise from the government's failure to produce evidence. Id. Why we conclude that the challenged portion of the prosecutor's summation did not prejudice the fairness of D.S.'s trial
Based on the case law that we have just discussed, we conclude that the prosecutor's challenged comments did not cause unfairness at D.S.'s trial.
First, we note that the prosecutor was responding directly to the defense attorney's argument — the defense attorney's suggestion (during summation) that M.F. had important testimony to give, since he had confronted the two boys after his daughter, K.F., reported the sexual assault. It was fair for the prosecutor to respond by pointing out that D.S. also could have called M.F. to the stand.
Potentially, the prosecutor overstepped the limits of proper argument by implying that M.F.'s testimony would not have favored the defense. The prosecutor did not directly assert this, but the prosecutor did argue that D.S.'s attorney would have called M.F. to the stand if M.F. had had any testimony to offer that would have favored the defense. ("[I]f there was anything that [M.F.] was going to add that would in any way have changed any of the testimony that you've heard, the defense would have put him [on the stand].")
But this was only one statement among the prosecutor's comments, and the defense attorney did not object to this particular statement, nor otherwise suggest that this statement was materially different from the remainder of the prosecutor's comments. Rather, the only objection voiced by the defense attorney came earlier, when the prosecutor asked Judge Olsen for permission to address this topic. At that time, the defense attorney took the position that it would be improper for the prosecutor to make any mention of D.S.'s ability to call witnesses. Under the circumstances, Judge Olsen did not abuse his discretion when he overruled this across-the-board objection.
Second, one consistent theme of the case law in this area is that a prosecutor's comments on the defense attorney's failure to call a witness are often cured when the prosecutor and the trial judge emphasize that the State, and the State alone, bears the burden of proof and the burden of producing evidence. That is what happened here.
As explained above, before Judge Olsen allowed the prosecutor to mention the fact that the defense attorney could have called M.F. to the stand, the judge gave the jury a special instruction. In this instruction, Judge Olsen noted that D.S.'s attorney "ha[d] commented on the State's failure to bring in the father [of K.F.]", and he told the jurors that he was "going to permit [the prosecutor] to address that [issue]" by pointing out that the defense could have called M.F. as well. Judge Olsen cautioned the jurors that, notwithstanding the defense's ability to call M.F. as a witness, "the defense does not have any burden of proving [D.S.'s] innocence, and they don't even have a burden of . . . bringing information into the courtroom to place before you. That is not their responsibility."
Immediately afterward, when the prosecutor resumed her summation, she prefaced her comments by reiterating what Judge Olsen had just said about the burden of proof: "Now, . . . as the judge ha[s] instructed you, the burden of proof is always on the State, ladies and gentlemen. That [burden] does not shift at all during trial."
In addition, at the end of D.S.'s trial, Judge Olsen gave Jury Instruction No. 7 (quoted above), which repeated the principle that a defendant bears no burden of proof and no burden of producing evidence, and that it is always the State's burden to prove the defendant's guilt.
Given these circumstances, we conclude that any possible error in the prosecutor's comments did not adversely affect the fairness of D.S.'s trial. There is no reasonable possibility that the jurors interpreted the prosecutor's comments as a suggestion that D.S. had the burden of ultimately proving his innocence, or even the lesser burden of presenting affirmative evidence of his innocence.
The issue of the Victims' Rights Act, the defense investigator's violation of this Act, and M.F.'s decision not to speak further with the defense
D.S. argues in his brief that Alaska's Victims' Rights Act presents a new wrinkle on the legal problem discussed in the preceding section — because there is a provision of this Act which empowers sexual assault victims to refuse to be interviewed by the defense.
Under AS 12.61.125(a)(1), when a defendant is accused of a sex offense, neither the defendant nor the defense attorney nor a defense investigator "may . . . contact the victim of the offense or [any other] witness to the offense if the victim or witness, or the parent or guardian of the victim or witness . . ., has informed the defendant or the defendant's attorney . . . that the victim [or witness] does not wish to be contacted by the defense".
We note that the constitutionality of this provision and other related provisions of AS 12.61.120 — 125 are currently being litigated in the Alaska Supreme Court: see State of Alaska and Alaska Office of Victims' Rights v. Murtagh et al., Supreme Court File Nos. S-11988 S-12007.
This statute was invoked in D.S.'s case: M.F. informed the defense attorney (through the prosecutor's office) that neither he nor his daughter, K.F., wished to speak to the defense team.
One might plausibly argue that, in cases where a victim or witness is covered by AS 12.61.125(a)(1), if the victim or witness invokes their statutory right not to be contacted by the defense team, the victim or witness could never be viewed as "equally available" to both the prosecution and the defense — and, therefore, in such circumstances, it would be improper for the prosecutor to suggest to the jury that the defense attorney had an equal opportunity to call this person to the stand.
In his brief to this Court, D.S. in fact makes this very argument. D.S. claims that M.F. " was a `stranger' to the defense" and "his testimony was not known" to the defense. (Emphasis supplied by D.S.'s appellate attorney.) Thus, according to D.S., the prosecutor actively misled the jury when she argued that the defense had an equal opportunity to call M.F. to the stand.
D.S.'s argument would have more force if these statements were true. But, in fact, the defense investigator had already interviewed M.F. before M.F. invoked his rights under the Victims' Rights Act. Thus, the defense team knew pretty much what M.F. would say if called to the stand.
In January 2005 (that is, about three months after D.S. was charged), an investigator working for the Public Defender Agency contacted M.F. and asked him for an interview. The investigator revealed his association with D.S., and the investigator informed M.F. that M.F. had the right not to talk to him. However, the investigator violated AS 12.61.120(c)(3) and AS 12.61.125(a)(2) by failing to tell M.F. that he could insist on having someone from the prosecutor's office present during the interview, and also by failing to obtain M.F.'s written consent to be interviewed. The defense investigator then proceeded to interview M.F. about the case by telephone.
Later, things went sour. According to M.F., the defense investigator told him that he was taping their interview, but when M.F. called the Public Defender Agency to ask for a copy of the tape, the investigator insisted that there was no tape, and that the investigator had merely taken notes. At that point, M.F. contacted the District Attorney's Office, and the District Attorney's Office then filed a motion to suppress the defense investigator's interview with M.F. (because of the investigator's failure to inform M.F. that he had the right to have someone from the prosecutor's office present, and because the investigator failed to obtain M.F.'s written consent to be interviewed).
Confronted with the District Attorney's motion, D.S.'s defense attorney insisted that his investigator had not taped the interview with M.F., but had merely taken notes. (The defense attorney turned over a copy of the investigator's typed-up notes from that interview.) However, the defense attorney conceded that M.F.'s statement should be suppressed because of the investigator's violations of the Victims' Rights Act.
(According to the investigator's notes, M.F. told the investigator that he was convinced that D.S. was guilty, not because of what he observed that night, but rather because of his daughter's reaction since that time — in particular, his daughter's continuing fear of the bedroom where she was assaulted, and her desire to sleep in her parents' bed. M.F. also told the investigator that he did not wish to see D.S. punished, but rather to have D.S. obtain counseling. According to M.F., D.S. had been offered a negotiated settlement of the case that involved mandatory counseling, but D.S. had declined this offer.)
After this dispute about whether the interview was taped, and after this litigation over the defense investigator's violation of the Victims' Rights Act, M.F. announced that he would not speak to the defense team again, and that he did not want the defense team to interview his daughter, K.F. .
If M.F. had invoked the Victims' Rights Act when he was first approached by the defense investigator, and had thereby prevented the defense team from ever interviewing him, D.S. would have a much stronger argument that the prosecutor acted improperly when she suggested to the jury that D.S.'s defense attorney had equal access to M.F. and an equal opportunity to call M.F. to the stand.
But, as we have just explained, M.F. invoked his rights under the Act only after the defense interviewed him (and after he became convinced that the defense investigator was refusing to produce the tape recording of that interview). Thus, the defense knew, at least in general terms, what M.F. would say about the matters being litigated if he was called to the stand. Under these circumstances, there was no impropriety when the prosecutor commented that M.F. was available as a witness if the defense attorney wanted to call him.
We express no opinion as to whether we would adopt a different analysis in cases where a victim or witness invokes the provisions of the Victims' Rights Act and thereby prevents the defense attorney from finding out what they would say if they were called to testify.
Conclusion
The judgement of the superior court is AFFIRMED.