Opinion
Court of Appeals No. A-10209.
January 27, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-07-2313 Cr.
David K. Allen, Assistant Public Advocate, Fairbanks, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Michael Gemmill appeals his conviction for second-degree sexual assault. He asserts that his trial judge should have declared a mistrial when, during summation, the prosecutor made a remark that might have been interpreted as an improper comment on Gemmill's decision not to testify at his trial.
The particular remark that Gemmill challenges is contained in the third paragraph of the following excerpt from the prosecutor's opening summation:
Prosecutor: This is an old-fashion[ed] case . . . in the sense [that] somebody . . . gets on the [witness] stand, and they say [the offense] happened. And somebody else . . . gets on the stand and says, "I saw it happen." [And] somebody else gets on the stand [and says,] "I saw it happen." . . .
[All the witnesses] said "Mr. Gemmill, he's the individual." That's the right person that's on trial. We have the right defendant. There's no doubt [about] that.
Is there anything, is there testimony that suggests that [it] was not Mr. Gemmill's hand on [the victim's] breasts? No. All the testimony is "yes", including [the victim's] own.
When the prosecutor uttered these last remarks, Gemmill's attorney requested a bench conference. The defense attorney asserted that when the prosecutor asked the question, "Is there . . . testimony that suggests that [it] was not Mr. Gemmill's hand on [the victim's] breasts?", the prosecutor was making a veiled reference to the fact that Gemmill had exercised his right not to testify at trial. Based on this assertion, the defense attorney requested a mistrial.
The trial judge, Superior Court Judge Mark I. Wood, stated that he did not perceive the prosecutor's remark to be a direct comment on Gemmill's decision not to testify. Judge Wood further observed that the jury had already been explicitly instructed that a defendant had a constitutional right not to testify, and that the jurors were to draw no adverse inference from the fact that Gemmill had exercised this right. For these reasons, Judge Wood denied the defense attorney's request for a mistrial.
A prosecutor is not allowed to ask jurors to draw any inference adverse to the defendant from the fact that the defendant chose not to testify at trial. However, the law does not forbid prosecutors from making any and all statements that could conceivably be interpreted as adverse comments on the defendant's failure to testify. Rather, the test is whether the prosecutor's remark was either "manifestly intended" as an improper comment on the defendant's failure to testify, or else "was of such [a] character that the jury would naturally and necessarily take it to be [an adverse] comment on the failure of the accused to testify." McCracken v. State, 431 P.2d 513, 517 (Alaska 1967).
Here, Judge Wood found (as a factual matter) that the prosecutor did not subjectively intend the challenged remark to be an adverse comment on Gemmill's failure to take the stand. We are to uphold this finding of fact unless we are convinced, based on the record as a whole, that the finding is clearly erroneous. Here, the record does not demonstrate that Judge Wood's finding is clearly erroneous. We therefore accept the judge's finding that the prosecutor did not intend the challenged remark to be an adverse comment on Gemmill's decision not to testify.
See, e.g., Bobby v . State, 950 P.2d 135, 138 (Alaska App. 1997); Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).
This leaves the other prong of the test announced in McCracken: whether the prosecutor's remark was of such a character "that the jury would naturally and necessarily take it to be [an adverse] comment on the failure of the accused to testify."
As the United States Supreme Court noted in Donnelly v. DeChristoforo, a prosecutor's summation is rarely constructed in advance, word-for-word; and even though isolated passages of the summation might raise questions, a court "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that [improper] meaning from the plethora of less damaging interpretations." 416 U.S. 637, 646-47; 94 S.Ct. 1868, 1873; 40 L.Ed.2d 431 (1974).
Here, the prosecutor's remark, on its face, referred only to the fact that the witnesses at Gemmill's trial uniformly corroborated the State's allegation that Gemmill had sexually assaulted the victim. It is possible to construe the prosecutor's remark as an implicit comment on Gemmill's failure to testify, but it does not seem to us that the jury would "naturally and necessarily" interpret the remark that way.
Moreover, as Judge Wood noted when he made his ruling, the jurors had already been explicitly instructed that Gemmill had a right not to take the stand at his trial, and that the jurors were not to draw any inference adverse to Gemmill because of his choice. Jury Instruction 7 in Gemmill's case read:
A defendant has the absolute right not to testify, and you must not draw any inference against the defendant if the defendant does not testify.
Jury Instruction 22 contained a similar admonition:
The law does not compel any defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn from the failure of a defendant to testify.
A trial judge's decision to grant or deny a mistrial is reviewed under the "abuse of discretion" standard. Having reviewed the record in this case, we conclude that Judge Wood did not abuse his discretion when he denied Gemmill's request for a mistrial.
See, e.g., Walker v. State, 652 P.2 d 88, 92 (Alaska 1982); Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
The judgement of the superior court is AFFIRMED.