Opinion
Court of Appeals No. A-12358 No. 6812
08-07-2019
AUSAGE VAITAGUTU MATI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-04662 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
Following a jury trial with three co-defendants, Ausage Vaitagutu Mati was convicted of one count of first-degree assault and one count of fourth-degree assault. (Mati also pleaded guilty to a second count of fourth-degree assault.)
AS 11.41.200(a)(1) and AS 11.41.230(a)(1), respectively.
AS 11.41.230(a)(1).
The parties expected the trial to last approximately three weeks; instead, the trial spanned two months. Although the judge sat three alternate jurors to account for the anticipated length of the trial, the jury was reduced to twelve members after the first month. When it was clear the case would not be submitted to the jury before the twelfth juror was scheduled to leave on a vacation, the judge released the juror and found manifest necessity for a mistrial. Two of the defendants consented to the mistrial; Mati and the fourth co-defendant agreed to proceed with only eleven jurors on the panel.
Mati now appeals, arguing that his constitutional right to a twelve-person jury was violated when the judge released the twelfth juror. Mati also challenges two other rulings: (1) the superior court's denial of his motion to suppress all evidence obtained as a result of the stop of Mati and his co-defendants prior to their arrest, and (2) the court's decision to preclude the parties from using analogies to describe the "beyond a reasonable doubt" standard during closing arguments.
For the reasons explained in this opinion, we reject Mati's claims, and we affirm his convictions.
Underlying facts
The State charged Mati — along with Mac Mata'afa, Bruce Mata'afa, and Nimrod Asaivao — with several offenses based on two incidents that occurred in Anchorage in the early morning of May 17, 2014. The first incident took place downtown, outside of the Gaslight Lounge. Antoine Mayo reported that he approached a group of men he identified as Samoan after he mistook one of them for his cousin. After realizing his mistake, Mayo tried to walk away, but he was hit on the back of the head. Later, the same men approached Mayo and knocked him to the ground, punching and kicking him. David Perkins, an acquaintance of Mayo, was also injured in the altercation.
The second incident occurred later, in the parking lot south of Chilkoot Charlie's bar. David Cossairt was exiting the bar when he engaged in a brief verbal altercation with a man he identified as Samoan. Later, Cossairt reported that he was surrounded and violently attacked by "four big gentlemen." Two women saw the assault and intervened, standing over Cossairt until the assailants fled. Cossairt suffered serious injuries as a result of the attack.
The police, responding to a 911 call, arrived at the scene, stopped a white SUV as it was leaving the parking lot, and detained its passengers, including the defendants. The defendants were later identified by Cossairt and two other eyewitnesses in three photographic lineups.
Trial proceedings
Mati was charged, along with his three co-defendants, with one count of first-degree assault (for injuring David Cossairt) and two counts of fourth-degree assault (for injuring Antoine Mayo and David Perkins). When the trial began on October 13, 2014, the parties anticipated that the trial would last three weeks. Given this expected length, the judge sat fifteen jurors — twelve jurors to decide the case, plus three alternate jurors.
See Alaska R. Crim. P. 23(b) & 24(b).
Ultimately, due to both foreseeable and unforeseeable delays, the trial took more than seven weeks. On October 29, one of Mati's co-defendants fell extremely ill, and the court recessed for two days. On November 6, the judge determined that the trial would not finish the following week, and, without objection, he released two jurors who had previously identified conflicts. The court then did not meet on November 10 — both because Mati's attorney had another all-day hearing and because the judge was not available — or on November 11 due to the Veterans Day holiday.
On Monday, November 17, the judge (again without objection) released a third juror who was leaving on a three-week vacation, reducing the jury to twelve members. The same day, one of the State's witnesses became ill and could not testify, causing a delay. The judge informed the jury that, due to various scheduling issues the following week and the Thanksgiving holiday, the trial would not be held the following week and would reconvene (following the end of the current trial week) on Tuesday, December 2.
At this point, one of the remaining twelve jurors announced that she would be leaving the state on December 9 for a family trip for three-and-a-half weeks. The judge told her that he was "pretty confident" that the trial would finish by then, and he arranged his schedule upon return from the holiday to allow for full days of trial.
However, on December 4, the defense was still presenting its case, and it became clear that jury deliberations would not begin before the twelfth juror departed on her trip. Accordingly, the attorneys met with the judge to discuss their options.
One of the defense attorneys suggested that the judge obtain permission for weekend deliberations and also ask the twelfth juror to delay her travel plans by several days. The judge expressed his willingness to consider weekend deliberations, but he was skeptical that delaying the twelfth juror's trip by a few days would realistically allow the parties to complete the trial with twelve jurors.
The prosecutor then expressed the State's willingness to proceed with eleven jurors. Mati's attorney responded:
Your Honor, I have spoken with my client. I've been thinking about this for quite — a couple of weeks I guess. And my client has agreed to proceed with the eleven. I think he has the constitutional right to proceed with eleven if he so chooses. And if the other defendants don't want to go that — they can have another trial. But we're prepared to go ahead with eleven . . . if [the twelfth juror] can't make other arrangements.
The judge summoned the twelfth juror and questioned her about her travel plans. The juror confirmed that she would be out of state from December 9 to December 30 on a trip to visit family she had not seen in four years. She indicated that she could not delay the trip, and that, after she returned, she would be starting a nursing clinical program on January 5. She stated that she had been on a wait list for the program for two-and-a-half years.
The juror explained that she was available and willing to serve as a juror between December 31 and the start of her program on January 5. But, after questioning the remaining jurors, it became clear that two of the other jurors were not available during that time. Accordingly, the judge concluded that it would not be possible to reconvene the entire jury panel after the twelfth juror returned from her trip.
However, all of the jurors expressed their willingness to deliberate over the weekend, and the judge later obtained court approval for weekend deliberations. The judge therefore allowed the trial to continue.
But the next day (a Friday, December 5), the parties agreed that they would not complete the presentation of evidence, closing arguments, and jury instructions in time to submit the case to the jury before the weekend. The judge therefore sought to clarify all of the parties' positions on continuing with eleven jurors.
Mati's attorney expressed a preference for asking the twelfth juror to adjust her travel plans so that she could remain on the jury. However, the attorney reiterated that if the judge refused to pursue that option, Mati would prefer to proceed with eleven jurors "unless something goes horribly wrong and somebody is going to sandbag me and I have to make a different strategic decision."
The judge found that it would be impossible to finish the trial with twelve jurors in the few days remaining, given the length of time needed for closing arguments and jury instructions (and ultimately, deliberations) in such a complex case. The judge also found that it would be fundamentally unfair to force the juror to cancel her trip, and that there was no reason to believe that the trial would end soon enough for a mere delay in the juror's trip to be beneficial. The judge therefore concluded that the circumstances required the release of the twelfth juror.
The judge gave the defendants the option of agreeing to an eleven-person jury; otherwise, he would declare a mistrial.
Two of the four defendants refused to proceed with eleven jurors. Accordingly, the judge severed the case based on the parties' preferences — declaring a mistrial for defendants Bruce Mata'afa and Asaivao, and proceeding with a jury panel of only eleven members for Mati and Mac Mata'afa.
Prior to resuming trial, the judge brought Mati and Mac Mata'afa into the courtroom and personally addressed them. Both defendants said that they understood they had a constitutional right to a jury of twelve people and were voluntarily choosing to proceed with only eleven jurors. They each signed a written waiver of their right to a twelve-person jury and a stipulation to proceed to trial with a jury of only eleven members.
The trial resumed, and the jury ultimately found Mati guilty of first-degree assault for injuring Cossairt and fourth-degree assault for injuring Perkins. (Mati pleaded guilty to the fourth-degree assault of Mayo.)
The trial court granted Mac Mata'afa's motion for judgment of acquittal as to the first-degree assault against Cossairt. Mata'afa was convicted of a single count of fourth-degree assault (for injuring Mayo).
This appeal followed.
Why we conclude that the trial court did not violate Mati's constitutional right to a twelve-person jury
On appeal, Mati argues that the trial court erred in excusing the twelfth juror. Mati contends that the judge's decision to release the juror deprived him of his constitutional right to be tried by a twelve-person jury.
An individual charged with a felony has the constitutional right to be tried by a twelve-person jury. But under Alaska Criminal Rule 23(b), "at any time before verdict, the parties may stipulate in writing with the approval of the court that the jury shall consist of fewer persons." If a defendant wishes to waive his right to a twelve-person jury, the court must address the defendant personally and determine whether the defendant's waiver is knowing and voluntary.
See Alaska Const. art. I, § 11 ("In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record."); Land v. Anchorage, 640 P.2d 164, 166 & n.3 (Alaska App. 1982) (noting that, under AS 22.10.050, the superior court is a "court of record" for which a twelve-person jury is constitutionally mandated); see also Alaska R. Crim. P. 23(b) ("In felony cases, juries shall be of 12 persons.").
Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978); see also Land, 640 P.2d at 166 (holding that a defendant must personally waive his right to a jury trial by less than a full panel).
Here, the judge personally addressed Mati and informed him that he had "an absolute right" to a twelve-person jury and that he could "assert that right" and have a new trial before twelve jurors. Pursuant to Criminal Rule 23(b), Mati signed a written waiver stating that he was "agreeing to proceed with eleven (11) jurors at trial in this case" and that he was doing so "knowingly, voluntarily, and in consultation with counsel."
On appeal, Mati does not argue that his waiver was invalid, but rather that the ruling that led to the waiver — the trial judge's decision to release the twelfth juror — was erroneous.
We conclude that Mati did not preserve his objection to the release of the twelfth juror. As an initial matter, we note that the prosecutor refused to consent to proceed with eleven jurors — as required by Criminal Rule 23(b) — if Mati intended to argue that his waiver was coerced by the release of the twelfth juror. Initially, Mati's and Mac Mata'afa's attorneys proposed a waiver form that included a provision stating, "This waiver is entered into only because the court has denied defendant's request to take measures to keep [the twelfth juror] on the jury." The prosecutor refused to accept this term, and indicated that he would withhold his consent and have the judge declare a mistrial if the two defendants declined to unconditionally waive their right to a twelve-person jury.
Mati then signed a waiver form without the contested language, and the judge addressed him directly to confirm that his waiver was knowing and voluntary.
Moreover, Mati had the option to refuse to proceed with eleven jurors. If he refused and objected to the release of the twelfth juror, the judge would have declared a mistrial over his objection. At that point, Mati could have argued that there was no manifest necessity for release of the twelfth juror and a mistrial, and that double jeopardy precluded the State from retrying him.
See Tritt v. State, 173 P.3d 1017, 1019-20 (Alaska App. 2008).
Instead, Mati made a strategic decision to proceed to a final verdict before an eleven-person jury. Now, in arguing on appeal that he is entitled to a new trial before a twelve-person jury, Mati is essentially asking this Court to provide a remedy (i.e., a new trial) that he already considered and declined.
See, e.g., Calloway v. Blackburn, 612 F.2d 201, 205 (5th Cir. 1980) (holding that the defendant was not entitled to habeas corpus relief based on the trial court's denial of his motion for a new trial, in part because the defendant had previously rejected the trial court's offer for a mistrial); People v. Cone, 2009 WL 323376, at *4 (Mich. App. Feb. 10, 2009) (unpublished) (concluding that the defendant waived his challenge to the government's motion to amend the charges when the defendant specifically rejected the option of a mistrial and chose to submit the case to the jury); People v. Clark, 125 A.D.2d 878, 879 (N.Y. App. Div. 1986) (noting that the defendant rejected the court's offer for a mistrial to support the conclusion that the prosecutor's error was not cause for reversal); cf. Dinitz v. United States, 424 U.S. 600, 608-12 (1976) (holding that a defendant who requests a mistrial may not later claim that retrial violates the double jeopardy clause).
But even assuming that Mati preserved his objection to the release of the twelfth juror, the superior court did not abuse its discretion when it dismissed the juror.
Mati argues that the court was required to, and failed to, make a finding of manifest necessity before excusing the twelfth juror. Assuming that such a finding was required, we conclude that the judge satisfied this burden.
The manifest necessity standard requires a high degree of necessity such that "the ends of public justice would not be served by a continuation of the proceedings." But, as the trial judge explained in his ruling, the unique and unusual circumstances of this trial warranted such a finding: The trial, anticipated to be three weeks long, began eight weeks prior with fifteen jurors. Three jurors had been released without objection, and the trial had taken significantly longer than expected. Given the remaining jurors' conflicting schedules, the judge concluded that there was no reasonable option to reconvene that particular jury of twelve once the twelfth juror returned from her trip, and that imposing limits on closing arguments would have been insensitive to the needs of counsel in such a long case.
Cross v. State, 813 P.2d 691, 694 (Alaska App. 1991) (quoting United States v. Jorn, 400 U.S. 470, 485 (1971)).
Moreover, the trial judge found that asking the twelfth juror to delay her travel plans would not only have been inappropriate and fundamentally unfair given the number of accommodations previously made for the attorneys, other jurors (including the three he dismissed because of their scheduling conflicts), and the judge himself, but also not helpful given the amount of material that remained to be presented. The judge estimated that it would be another week before the case could be submitted to the jury, and he thought that deliberations could require a significant amount of additional time. He therefore found, "It doesn't work unless I tell [the juror] to cancel her plans," which he refused to do. The judge also expressed concern that requiring the juror to delay her trip could spark anger and resentment against the defense, particularly given the clear accommodation throughout trial of other people's schedules.
Mati notes that the trial ultimately ended on December 12 (three days after the start of the twelfth juror's trip), and he argues that the judge could have solved the scheduling problem by simply requiring the twelfth juror to delay her trip by three days. But Mati's argument assumes that, at the time the judge released the twelfth juror, he knew when the trial was going to end. Based on the repeated delays in the case and the amount of work still to be completed, the judge reasonably believed that the trial might extend beyond December 12. More importantly, Mati's argument fails to account for the fact that the trial ultimately ended more quickly because, after the judge released the twelfth juror, two of the defendants refused to proceed with eleven jurors and dropped out of the trial.
Given that Mati chose to proceed to trial with an undersized jury, his constitutional right to a jury of twelve was not violated. Moreover, the trial court did not abuse its discretion when it decided to release the twelfth juror in light of the unique circumstances in this case. Accordingly, we reject Mati's challenge to the dismissal of the twelfth juror.
Why we affirm the trial court's denial of Mati's motion to suppress
Mati and his co-defendants were apprehended when the police stopped their vehicle as it was departing from the Chilkoot Charlie's parking lot. Prior to trial, Mati filed a motion to suppress, arguing that the stop was illegal because the police did not have reasonable suspicion to believe that the vehicle's occupants were involved in the assault. The trial court held an evidentiary hearing, and Sergeant Ryan Rockom from the Anchorage Police Department was the only person to testify.
Subsequently, the other three co-defendants orally joined Mati's motion.
Rockom was the first officer to respond to the 911 call. Rockom drove into the main (south) Chilkoot's parking lot around bar break time and observed a "lot[] of stuff going on" — a large number of people were moving around outside the bar and getting into vehicles to leave the premises. Rockom saw a group of people standing around a person who was lying face down on the ground in the parking lot, and a woman was waving at him to get his attention. The woman pointed west, toward a white SUV that looked like it was preparing to leave the parking lot.
The officer observed people running toward the vehicle and getting inside. He instructed other officers over the radio to cut the vehicle off before it could leave. The officers did so, and they conducted an investigative stop to see whether the occupants of the vehicle had any involvement in the events that had allegedly occurred in the parking lot.
Following the evidentiary hearing, the superior court ruled that Rockom had reasonable suspicion to stop the white SUV. The court found that the State had met its burden of proving that serious harm to persons had recently occurred, as the 911 call was to report an assault and "assault is by definition a crime involving serious harm to persons."
The court further found that Rockom responded to the scene within five minutes of the initial 911 call, and that he observed several individuals hustling toward the vehicle within two minutes of his arrival. The court found credible Rockom's report of a woman pointing toward the west end of the parking lot.
Ultimately, the court concluded that the events at the scene presented a "dynamic, time-is-of-the-essence situation" where quick judgment and prompt police action were necessary to prevent potential suspects and witnesses from leaving. The court therefore denied the defendants' motion to suppress.
On appeal, Mati challenges the court's ruling, raising two claims. First, Mati argues that the trial court erred in concluding, based on the inherent seriousness of an alleged assault, that Rockom had a reasonable basis to believe that serious harm to persons had recently occurred. Second, Mati contends that there was an insufficient basis to connect the vehicle stopped with the alleged harm.
Under Alaska law, a police officer may conduct an investigative stop only when the officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred. To constitute "reasonable suspicion," officers must have some "minimal level of objective justification" — i.e., "something more than an inchoate and unparticularized suspicion or hunch."
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
State v. Miller, 207 P.3d 541, 544 (Alaska 2009).
Having reviewed the record, we conclude that the trial court did not err in finding that Rockom had a reasonable suspicion that serious harm to persons had recently occurred. In State v. Miller, the Alaska Supreme Court held that a 911 call reporting a verbal dispute between a couple in a parking lot justified the temporary detention of the two individuals involved. Here, the reported altercation involved a possible physical injury: Rockom knew that a 911 caller had reported an assault, and that a victim was "down." Rockom arrived on the scene in less than five minutes, and he saw a person lying on the ground, a large number of people leaving the area, and an apparent witness pointing in the direction of the moving vehicle. Given this, we agree with the trial court that Rockom had a reasonable basis to believe that recent serious harm had occurred in the Chilkoot's parking lot.
Id. at 547.
See Metzker v. State, 797 P.2d 1219, 1221 (Alaska App. 1990) (holding that a report of an assault constituted recent serious harm when the alleged offense had only recently occurred and the alleged victim, though not obviously injured, appeared extremely disoriented).
Next, Mati relies on our decision in Cofey v. State to argue that the white SUV in this case was not sufficiently connected to the alleged assault to justify an investigative stop. But the facts of Cofey are distinguishable. In Cofey, the police received a report of a fight or disorderly conduct; when the officer arrived at the scene, he saw the defendant on the side of the street. The officer testified that the defendant seemed suspicious because he "looked at [the officer] and then start[ed] to walk away." On appeal, we concluded that an investigative stop of the defendant was not supported by reasonable suspicion, because the defendant was simply walking along the street near the site of the 911 call and had done nothing to suggest that he posed a danger or that he had caused any harm.
Cofey v. State, 216 P.3d 564, 565-67 (Alaska App. 2009).
Id. at 565.
Id. at 567.
Id.
In contrast, here, Rockom reasonably believed that the individuals in the white SUV had some connection to the alleged assault given the woman's act of pointing toward the vehicle, the individuals' own behavior in running toward and jumping into the vehicle as it was leaving the scene, and the recency of the events described in the 911 call. We note that, after reviewing the security video, the trial court specifically found that the individuals' movement toward the white SUV "was colorably different in speed and movement than other people who were milling about Chilkoot's at the time." The superior court additionally found that the "dynamic" scene presented a situation where the officer needed to act quickly "as a matter of practical necessity" in order to prevent potential witnesses and suspects from leaving.
See State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989) (recognizing that the fundamental inquiry as to whether an investigative stop was justified is "whether 'a prompt investigation [was] required . . . as a matter of practical necessity'") (quoting Coleman, 553 P.2d at 46) (alterations in G.B.).
Given these circumstances, including the recency of the alleged assault and the need to act quickly, we conclude that the officers had reasonable suspicion to conduct an investigative stop of the white SUV before it left the scene.
See State v. Miller, 207 P.3d 541, 544-49 (Alaska 2009) (balancing four factors — the seriousness of the alleged crime, the immediacy of the stop, the strength of the reasonable suspicion, and the intrusiveness of the stop — to conclude that an officer had reasonable suspicion to effectuate a stop in a situation where the officer needed to act quickly in order to prevent a potentially violent escalation of a dispute) (citing G.B., 769 P.2d at 456).
We therefore uphold the superior court's denial of Mati's motion to suppress evidence collected from the investigative stop.
Why we conclude that the trial court did not abuse its discretion in precluding the parties from using analogies in closing arguments to define the burden of proof
During voir dire, Mati's defense attorney analogized the "beyond a reasonable doubt" standard to the decision to terminate the life support of a loved one. In particular, Mati's attorney asked, "How about if you had a relative, a daughter or son, on life support, what kind of evidence and what is the quality of evidence that you would want before you made that decision?" After soliciting answers from the prospective jurors, Mati's attorney connected the discussion to the burden of proof in a criminal trial: "[E]verybody agrees they'd need some pretty concrete evidence so that you would act . . . without hesitation. And that's what you need for beyond a reasonable doubt." The State objected, arguing that the analogy improperly introduced emotional, religious, personal, and cultural mores into the deliberative process.
The superior court requested that the parties no longer use analogies to describe the reasonable doubt standard during voir dire. The court addressed the venire and explained that he had instructed the attorneys not to use analogies because (1) "there is no example or analogy that can, with precision, redefine the test for you by way of example," and (2) "if I have six attorneys in this room giving you different analogies or examples of what constitutes reasonable doubt, you're going to have so many different examples, maximizing or minimizing the test I think it's just — it's going to end up being more confusing than instructive."
At the end of the trial, the court revisited the use of analogies during the parties' closing arguments. The court reiterated its belief that the use of analogies to discuss reasonable doubt was fraught with risk because it can tend to ignite undue passion or create the impression that reasonable doubt means no doubt. Regarding the specific analogy that defense counsel had used during voir dire, the court explained:
For some people who hold strong religious convictions, and we don't know that from this jury . . . terminating the life support of a loved one is a decision left to God, their God and their God alone, and they will not do it. They won't do it if I order it, a court orders it. They will only do it when their God says, and their God decides. And to say that's a reasonable doubt in my mind is just inappropriate. And because it suggests that it's no doubt. So that's why I think analogies are inappropriate.
The court then ordered the attorneys not to use analogies of any kind. However, the court did permit the attorneys to compare proof "beyond a reasonable doubt" to other standards of proof in the legal system.
On appeal, Mati argues that the trial court erred by preventing the parties from using analogies during closing arguments to define the reasonable doubt standard.
We have previously cautioned against the use of daily-life analogies to define the concept of proof "beyond a reasonable doubt." In disapproving of the practice, we have noted that such analogies can minimize the State's burden. Even though it was Mati's attorney, and not the State, who sought to analogize the standard in this case, the risk of inappropriately altering the standard of proof remains a concern.
See Roberts v. State, 394 P.3d 639, 643 (Alaska App. 2017) (noting the considerable criticism by commentators of drawing analogies between the decisions a jury must make in a criminal case and the decisions people make in their own important affairs); see also Yang v. State, 2017 WL 838809, at *3 (Alaska App. Mar. 1, 2017) (unpublished) (disapproving of prosecutor's use of an airplane travel analogy to explain the concept of "beyond a reasonable doubt" and noting the general disapproval of these types of "daily-life" analogies across jurisdictions); cf. Cooper v. State, 2008 WL 4595180, at *1-2 (Alaska App. Oct. 15, 2008) (unpublished) (noting criticism by other courts of attempts to define reasonable doubt in terms of the standard that ordinary people would use in making decisions in their important affairs, including the use of analogies like buying a house).
Yang, 2017 WL 838809, at *3.
Indeed, in Adams v. State, we recently found that the exact analogy that Mati's attorney sought to use during his trial was improper. We concluded that analogizing proof "beyond a reasonable doubt" to the decision to withdraw life support from a loved one is problematic "because it suggest[s] that the jurors should decide [the defendant's] case as if they had a powerful, if not overwhelming, personal interest in the outcome." We noted that the decision to remove a loved one from life support can be fraught with emotion; in contrast, jurors are directed to decide a case without being influenced by sentiment, prejudice, or passion.
Adams v. State, 440 P.3d 337, 340 (Alaska App. 2019).
Id.
Id. (citing Alaska Criminal Pattern Jury Instruction 1.07 (2011)).
Given our previous decisions disapproving of the use of analogies to define proof beyond a reasonable doubt, as well as a trial judge's broad authority to limit the content and scope of closing arguments, we conclude that the superior court did not abuse its discretion in precluding the use of analogies to define the burden of proof during the attorneys' closing arguments.
See Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983) (recognizing that the trial court is "vested with the discretion to control the scope and content of argument of counsel").
We note that the court rightfully allowed the defense attorneys to engage in a lengthy discussion of the reasonable doubt standard, the importance of the jurors' decision, and the fact that the jurors would not have any opportunity to revisit their decision in the future. More specifically, the superior court permitted the defense attorneys to contrast the reasonable doubt standard with various other standards under the law and to use a chart to illustrate five increasingly heavy burdens of proof, with proof beyond a reasonable doubt at the pinnacle.
See Roberts v. State, 394 P.3d 639, 644 (Alaska App. 2017) (noting that "it would have been helpful if the defense attorney had been allowed to clarify that the jury could not convict Roberts merely because he was 'probably' or 'likely' guilty — that Roberts could be convicted only if jurors were convinced that there was no reasonable possibility that Roberts was not guilty").
Mati contends that the trial court's ruling prohibiting the use of analogies "specifically precluded him from remedying the . . . deficiencies" in the jury instruction defining reasonable doubt. The instruction given to the jury was, at the time, the pattern jury instruction, and it defined reasonable doubt, in part, as "proof of such a convincing character that, after consideration, you would be willing to rely and act upon it without hesitation in your important affairs." In Roberts v. State, we noted that commentators had extensively criticized this formulation of the reasonable doubt standard. (The pattern jury instruction has now been revised in response to our decision in Roberts.)
See Former Alaska Criminal Pattern Jury Instruction No. 1.06, quoted in Roberts, 394 P.3d at 642 n.7.
Roberts, 394 P.3d at 643.
See Alaska Criminal Pattern Jury Instruction No. 1.06 (revised 2019).
Mati notes that, in support of his attorney's request to use analogies, the attorney flagged this criticism for the trial court. But Mati never asked to alter the instruction itself, and he does not challenge the reasonable doubt instruction on appeal. Moreover, as we noted in Roberts, the use of analogies does not resolve the issues in the former pattern instruction; if anything, it exacerbates the problem by creating more confusion about exactly which important affairs are most closely related to the jury's decision.
Roberts, 394 P.3d at 643.
Because the attorneys were allowed to contrast proof "beyond a reasonable doubt" to other, lesser standards of proof and to engage in a full discussion of the concept, we conclude that the court's prohibition on the attorneys' use of analogies did not materially limit Mati's ability to argue his case.
Conclusion
The judgment of the superior court is AFFIRMED.