Opinion
No. 5931
03-27-2013
JASMINE M. HIBBERT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
Court of Appeals No. A-10811
Trial Court No. 1KE-10-338 CR
MEMORANDUM OPINION
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Judge MANNHEIMER.
Jasmine M. Hibbert appeals her conviction for fourth-degree assault. As we explain in this opinion, the prosecutor at Hibbert's trial improperly commented on Hibbert's pre-trial silence — her failure to go to the state troopers and offer her version of events. We conclude that there is a reasonable possibility that this improper comment on Hibbert's silence influenced the jury's verdict, so we reverse Hibbert's conviction.
The prosecution and defense versions of the events at issue in this case
According to the State's witnesses, Hibbert was socializing at a bar one evening with her friend, Cheri Henson. Henson left the bar before Hibbert, but she told Hibbert that she was welcome to come to Henson's home later and spend the night there.
Henson testified that her boyfriend was already asleep, and that she herself had just gotten ready for bed, when Hibbert walked up to her porch. Henson waited for Hibbert to knock on the front door, but several moments passed and Henson heard nothing, so she looked through the peephole in the door to see what Hibbert was doing.
Hibbert was trying to slip the door lock with a credit card. When that did not work, Hibbert began trying to open several of Henson's windows. Hibbert eventually found an unlatched bathroom window, and she entered Henson's home through this window.
Although Henson was perplexed by Hibbert's behavior, she offered to let Hibbert spend the night on the couch. Hibbert, however, demanded the keys to her vehicle. Henson explained that she did not have Hibbert's keys, but Hibbert kept asking anyway, and she began to scream at Henson.
Henson maneuvered Hibbert toward the door, trying to get her to leave. In response, Hibbert grabbed Henson by the hair and pulled her to the floor. Henson felt her neck pop, and she momentarily lost consciousness when she hit her head on a child's scooter. When Henson regained consciousness, Hibbert was on top of her, ripping at her hair.
At this point, Henson's boyfriend woke up and came out of the bedroom. He helped to get Hibbert off of Henson, and then he and Henson pushed Hibbert out of the home through the front door. However, Hibbert did not leave. Instead, she returned to the bathroom window and again tried to enter the home. When Henson attempted to close this window, Hibbert struck the window several times, causing the glass to shatter and cascade over Henson's face. A shard lodged in Henson's eye. Henson's boyfriend then called 911. Hibbert finally left after she was informed that the authorities had been summoned.
At trial, Hibbert offered a very different version of events. Hibbert testified that, when she approached Henson's home, she knocked on the front door but no one answered. She then tried to open a back window, but she was unsuccessful, so she returned to the front door and knocked again. This time, Henson's boyfriend opened the door and told her to go away. Hibbert did not want to leave, because her work clothes and cosmetics — items she needed for the next day — were inside Henson's home.
Hibbert testified that when she refused to leave, Henson's boyfriend pulled her into the home and started "throwing [her] around". Then the boyfriend held her while Henson punched and kicked her. Hibbert acknowledged that she pulled Henson to the ground, but she declared that she did this only to stop Henson from hitting her. Henson's boyfriend then pulled Hibbert off of Henson and threw her out the door.
Hibbert did not leave because she still needed her work clothes and cosmetics, so she went to the bathroom window and put her head inside, asking for her belongings. In response, Henson came into the bathroom and shoved Hibbert's head into the window, breaking the glass.
Hibbert's failure to offer her version of events to the state trooper who was investigating the case
Alaska State Trooper Joey Beaudoin responded to the 911 call, and he began investigating the incident. Beaudoin interviewed Henson and her boyfriend, and he searched for Hibbert that night, but he could not locate her.
Later, Hibbert's employer informed her that Trooper Beaudoin was looking for her. Hibbert telephoned the police and asked if she could be interviewed by another officer. When Hibbert was told that Beaudoin was the officer assigned to the case, and that she would have to speak to him, Hibbert decided not to talk to the police. Instead, she decided to contact an attorney.
The prosecutor's comments on Hibbert's pre-arrest silence
During the prosecutor's cross-examination of Hibbert, he asked her why she declined to speak to Trooper Beaudoin, even after she was informed that he wanted to interview her:
Prosecutor: [And so, after being told that Trooper Beaudoin wanted to speak with you], you did contact the trooper; you called Trooper Beaudoin at the trooper post. Is that right?At this point, Hibbert's attorney objected that the prosecutor's line of questioning was improper, but the trial judge immediately overruled the defense attorney's objection and allowed the prosecutor to continue.
Hibbert: I was going to talk to him, but I ...
Prosecutor: But you never did?
Hibbert: I thought about it, and I decided I'd be better off talking to my attorney.
Prosecutor: Trooper Beaudoin told you [that you were] a suspect in an assault case. Is that right?
Hibbert: Yeah.
Prosecutor: And he said, "I want to be able to meet you in person; I don't want to talk to you over the phone." Is that right?
Hibbert: Yeah.
Prosecutor: And then you never went in to follow up with that?
After the prosecutor asked several more questions along this line, the defense attorney again objected, arguing that Hibbert "[had] a right to remain silent" and that she "[did not] have to volunteer information [to the authorities]". The trial judge again overruled the objection and allowed the prosecutor to continue.
At the end of the trial, just before the parties delivered their closing arguments to the jury, Hibbert's attorney asked the trial judge to instruct the jurors that an accused person "always has the right to remain silent", and that the jurors "must not draw any inference from the allegation that Ms. Hibbert declined to be interviewed by Trooper Beaudoin." The defense attorney told the judge that the prosecutor was improperly asking the jurors to infer that Hibbert was guilty, based on the fact that she decided not to speak to the trooper.
The trial judge refused to give the requested jury instruction. The judge reasoned that, because Hibbert had apparently been willing to speak with a law enforcement official other than Beaudoin, she had not really asserted her right to remain silent.
The prosecutor took advantage of this ruling during the rebuttal portion of the State's summation to the jury, when the prosecutor returned to the theme of Hibbert's pre-arrest silence. He told the jurors that Hibbert's refusal to be interviewed by Trooper Beaudoin showed that she was guilty. Hibbert's attorney again objected, arguing that the prosecutor was improperly commenting on Hibbert's exercise of her right to remain silent. And, again, the trial judge overruled the defense attorney's objection.
Following the judge's ruling, the prosecutor continued his argument by explicitly asking the jurors to infer that Hibbert was guilty because she declined to speak to Trooper Beaudoin:
Prosecutor: [W]hen you're beaten [up], if [Hibbert's version of events] is true, ... [then] you want to tell the troopers [about it] — especially when you know that you're the suspect[.] ... [But Hibbert decided] to do [nothing, and] to wait a few more months, so [she could] manufacture something, [and] show up in court and try and sell [you] a bill of goods. That's what's going on here.
Why we reverse Hibbert's conviction
Hibbert's case is governed by the Alaska Supreme Court's decision in Adams v. State, 261 P.3d 758 (Alaska 2011). In Adams, the supreme court found plain error when, at the defendant's trial, the prosecutor elicited testimony that the defendant had not told his side of the story to the authorities prior to trial. The supreme court declared that Alaska law "protects a criminal defendant's right to remain silent both before and after arrest", and that "evidence of a defendant's pre-arrest silence will usually be inadmissible under [Alaska] Evidence Rule 403 due to its inherently low probative value and its high risk of unfair prejudice." Id. at 765.
In the present case, the prosecutor repeatedly urged the jurors to conclude that Hibbert must be guilty because she declined to be interviewed by Trooper Beaudoin. This was improper. And because Hibbert's credibility as a witness was crucial to the jurors' evaluation of the case and their ultimate verdict, this error requires reversal of Hibbert's conviction.
Conclusion
The judgement of the district court is REVERSED.