Opinion
Court of Appeals No. A-10318.
March 17, 2010.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-07-897 Cr.
Brian T. Duffy, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Tamara E. de Lucia, 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
Alper R. Johnson appeals his conviction for second-degree sexual assault (non-consensual sexual penetration of a sleeping woman) and third-degree assault. He contends that the trial judge committed plain error by failing to take curative measures, sua sponte, in response to some of the remarks that the prosecutor made during his summation to the jury. For the reasons explained here, we conclude that the prosecutor's comments were either proper or at least not obviously improper, and thus the trial judge did not commit plain error when she failed to intervene sua sponte.
AS 11.41.420(a)(3)(A) — (C), and AS 11.41.220(a)(1)(B), respectively.
Johnson also asserts that the description of his sentence of imprisonment contained in the written judgement does not conform to the sentence described by the judge in her sentencing remarks. The State concedes that this is true, and the transcript of the sentencing hearing corroborates the State's concession. We therefore direct the superior court to amend the written judgement.
Underlying facts
On the morning of February 17, 2007, postal employee Cesar Fernández was delivering mail in Juneau on Slate Drive when a woman ran toward his truck. The woman, who was later identified as L.S., appeared "distressed [and] upset"; she paused at the truck just long enough to tell Fernández that she had been raped. Fernández asked the woman to wait, but she continued running. Fernández called the police.
After speaking briefly to Fernández, L.S. hid under a boat on a nearby lawn for a brief period of time, and then she knocked on the door of a stranger's house, seeking help. The residents of that house likewise contacted the police. When the police arrived, they found L.S. lying in the entryway of the house, in a semi-fetal position. When the police contacted her, L.S. was "extremely upset", to the point of hysteria: she screamed and cried, and she told the police, "Don't make me go outside; don't make me go outside." L.S. was taken by ambulance to a hospital, where she finally began describing the incident to the authorities.
According to L.S.'s testimony at Johnson's trial, she and friends spent the evening and early morning of February 17th-18th socializing and drinking at local bars. After L.S. left the last bar, she went to the home of a friend, where she encountered Johnson. L.S. was previously acquainted with Johnson because he worked with her husband. L.S., Johnson, and several other individuals later went to a house on Slate Drive, where they drank, socialized, and watched videos before eventually settling down to sleep.
L.S. testified that, after she fell asleep, she was awakened in the early morning because "[Johnson] had his hand around [her] neck [and was] holding [her] down", making it difficult for her to breathe or speak. L.S. further testified that Johnson's penis was inside her vagina, and that he continued to assault her even after she told him "no". L.S. then scratched Johnson on the face and neck in an attempt to stop him. Eventually, Johnson got off of her; L.S. then pulled on her clothing and ran out of the house — where she encountered Fernández in his mail truck.
When the police contacted Johnson later on February 18th, they observed (and photographed) injuries to his head and neck. In these photographs (which were admitted at trial), Johnson had visible scratches on his face, behind his ear, and down his neck. During his police interview (which was videotaped), Johnson asserted that L.S. was falsely accusing him. In particular, Johnson claimed that the scratches to his head and neck were the result of wrestling with friends. He further claimed that he had not been to the house on Slate Drive for a long time. Johnson told the police that he spent the night of February 17th-18th driving around with his cousin Robert.
Medical testing showed that Johnson's DNA was consistent with the spermatozoa found in L.S.'s body.
Johnson's defense was that the sexual intercourse had been consensual. Johnson did not take the stand himself, but his attorney called several of the other people who were present at the Slate Drive house that night. One of these defense witnesses, Darren Wigg, testified that L.S. was "all over" Johnson, and that, at one point in the evening, she danced in front of Johnson and the other men in a sexually provocative manner. Another defense witness, Christopher Williams, testified that L.S. and Johnson were "hanging on each other". Williams also testified that, at one point in the evening, L.S. and Johnson entered a bedroom together, and then they came out and sat together on a couch.
The challenged portions of the prosecutor's summation
During his summation of the case at the close of the trial, the prosecutor told the jury: "I don't [say] this lightly[, but Johnson] is a liar, and he lied about [this] incident [to the police], and he lied about [not] having sex with [L.S.]."
Johnson did not object to these comments at the time, so he must now show that it was plain error for the trial judge not to interrupt or admonish the prosecutor sua sponte. Johnson argues that it was plainly improper for the prosecutor to characterize him as a liar. He notes that, under Alaska law, arguments to the jury must be confined to the evidence in the record and the inferences that can reasonably be drawn from the record, and he asserts that the prosecutor's argument obviously violated this principle.
See, e.g., Darling v . State, 520 P .2d 79 3, 794 (Alaska 19 7 4); Gafford v. State, 440 P.2d 405, 414 (Alaska 1968).
We disagree. The videotape of Johnson's interview with the police was played for the jury. In that interview, Johnson apparently stated that he had not had sex with L.S. — that he had not been to the Slate Drive house in a long time, and that he was elsewhere, and with other people, on the night of February 17th-18th. But at trial, when Johnson had to explain the DNA evidence, he conceded that he had engaged in sexual intercourse with L.S., and he asserted that this sexual intercourse was consensual.
Given this evidence, and given Johnson's position at trial, it was reasonable to infer that Johnson lied during his police interview. The prosecutor's argument to the jury was therefore proper.
Johnson also attacks two other comments that the prosecutor made during the State's summation. In one of these comments, the prosecutor referred to the in-court conduct of a defense witness, Darren Wigg. In the other comment, the prosecutor referred to the in-court conduct of Johnson himself.
As we have already explained, Wigg testified for the defense at Johnson's trial. He told the jury that L.S. was "all over" Johnson, and that, at one point in the evening, she danced in front of Johnson and the other men in a sexually provocative manner.
On cross-examination, the prosecutor asked Wigg about his relationship with Johnson. Wigg suggested that he was a casual acquaintance of Johnson's, nothing more:
Prosecutor: So you know Mr. Johnson? You played basketball with him.
Wigg: Yeah.
Prosecutor: You play on the same team? A different team?
Wigg: No, like I said, . . . we didn't grow up [together], we didn't hang out much. You know, we [would] hang out at the teen center or something, . . . get a ball game going. He might be there, I might be there, you know.
Prosecutor: So . . . you're closer to him than you are to [L.S.]?
Wigg: I know him more, yeah, than I do [L.S.]. Yeah. . . . [But] I don't consider him a friend or, you know. I consider him an acquaintance, you know. . . . He's not someone I hang out with, you know, on a regular basis[.] I think that [night] was the first time we actually ever hung out [together] at a party.
During his opening summation to the jury, the prosecutor commented on this testimony, and how it compared to Wigg's conduct as he was leaving the witness stand:
Prosecutor: [Let's] talk a little bit about Mr. Wigg for a minute, a witness that came in yesterday. Do you remember when he was up [on] the witness stand, and [then] he got up, and he walked over and he hesitated in front of [Johnson], [and] he reached his hand out? He said — I can't remember [exactly] what he said. I think it was something [like], "Good luck. Good luck, Alper."
They're buddies. He didn't really want to concede that to me on the witness stand. [But] they obviously know each other pretty well.
The defense attorney made no objection to the prosecutor's characterization of Wigg's post-testimonial conduct. In fact, a few minutes later, when the defense attorney delivered her summation to the jury, she conceded that the prosecutor's characterization was accurate:
Defense Attorney: As far as this little thing where [Wigg] came up and shook hands [with my client], well, he's not a friend of Mr. Johnson's. I believe he testified [that] they don't hang out [together]. [Juneau is] a small town. He kind of knows him. [That handshake] was more of a reaction of somebody who had just gotten out of jail, and say[ing], "Good luck." It doesn't mean they're buddies. Nothing like that.
Nevertheless, Johnson now contends on appeal that it was plainly improper for the prosecutor to comment on Wigg's conduct upon leaving the witness stand. According to Johnson, the prosecutor's comment was plainly improper because it was "based upon factual assertions that are not in evidence".
But a witness's conduct in court is evidence, in the sense that it is proper for the trier of fact to take account of the manner in which a witness gives their testimony when the trier of fact assesses the credibility of that testimony or the weight to be given it. As noted by Dean Wigmore in his treatise on the law of evidence:
The conduct of [a] witness . . . is . . . admissible [evidence] when [it is] exhibited in the courtroom and on the stand, even though no formal offer of [this evidence is] required. . . . [A] witness' demeanor . . . is always assumed to be in evidence.
John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev'n, 1970), § 946, Vol. IIIA, p. 783.
It therefore follows that a trial judge does not commit plain error when the judge allows an attorney to comment on a witness's in-court conduct, at least when that conduct occurred in front of the jurors, so that the jurors can independently assess the accuracy of the attorney's characterization.
In Johnson's case, the accuracy of the prosecutor's characterization is not at issue. As we have already explained, Johnson's attorney agreed that Wigg had engaged in the conduct described by the prosecutor. She just disagreed about the inferences to be drawn from it. We find no plain error.
This same issue — whether an attorney can comment on a person's in-court conduct — is presented by another portion of the prosecutor's summation that Johnson attacks.
During the prosecutor's summation, he spoke to the jurors about the fact that, when L.S. was cross-examined by Johnson's attorney, L.S. was apparently unwilling to make eye contact with the defense attorney:
Prosecutor: You may recall, after [the defense attorney] was [done] asking questions of [L.S.], I came back to [L.S. on redirect], and the first question that I asked her was, "Why are you looking away? Why aren't you looking at [the defense attorney]?" . . .
I recall [L.S.] looking over here [and] over here. I recall her glancing at [you] jurors. I don't recall her looking at [the defense attorney] at all. Maybe one glance or two. Why? Just imagine how hard it is to stand in front of all of you, having a lawyer like me asking her questions when she has the man that has sexually assaulted her sitting here, scowling at her.
[The defense attorney asked you], in her opening [statement], "Can you imagine a worse nightmare than being falsely accused of sexual assault?" I can. How about the nightmare of being sexually assaulted and then having to go through it all again, in painstaking detail, in front of you all?
Johnson again contends that the trial judge committed plain error by allowing the prosecutor to assert, during this portion of his summation, that Johnson was scowling at L.S. during her testimony. Based on the principle we have already cited (from Wigmore on Evidence), we conclude that there is no plain error when an attorney, without objection, comments on the in-court conduct of the defendant.
Johnson also argues that this portion of the prosecutor's summation violated another legal doctrine: the doctrine that an attorney should not urge jurors to decide a case by following "the golden rule".
Under Alaska law, it is improper for an attorney to ask jurors to decide a case by (1) mentally putting themselves in the shoes of the attorney's client and then (2) asking themselves how they would wish to be treated in that situation. But that is not what the prosecutor did here.
See Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978); Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966) (both holding that it is improper for an attorney to implore jurors to put themselves in the position of one of the litigants and then ask themselves what kind of outcome they would wish under the circumstances).
The prosecutor did not ask the jurors to convict Johnson because that is the outcome they would wish if they, themselves, had been the victims of a sexual assault. Rather, the prosecutor attempted to offer an explanation for L.S.'s conduct on the stand — in particular, her unwillingness to make eye contact with the defense attorney. Because a person's unwillingness to look another person in the eye often bespeaks untruthfulness, the prosecutor apparently concluded that he needed to offer an alternative explanation for L.S.'s behavior.
This proposed alternative explanation was proper argument: it rested on the evidence and on the jurors' general knowledge of the world. We therefore find no plain error.
In addition to the foregoing arguments, Johnson also challenges another portion of the prosecutor's summation — a portion of the rebuttal summation in which the prosecutor attacked the version of events offered by the defense attorney in her summation:
Prosecutor: None of [the defense] witnesses [establish] the proposition that [the sexual assault] couldn't have happened in the living room [of the Slate Drive house]. [The defense attorney] is putting a gloss on [their testimony] and selecting facts that might be good for her.
Again, there was no contemporaneous objection to the prosecutor's comment. But on appeal, Johnson asserts that the prosecutor's comment was improper because (according to Johnson) the prosecutor invited the jurors to disparage the proper role of a defense attorney in a criminal case. We disagree. In context, the prosecutor was simply arguing that when the defense attorney characterized or summarized the testimony given by the defense witnesses, the defense attorney overlooked or overstated key aspects of that testimony.
Finally, Johnson argues that the prosecutor improperly urged the jurors to convict Johnson in order to "send a message" to the community that sexual assault (in general) would not be tolerated. Here is the challenged remark:
Prosecutor: And you [the jurors] need to say to [Johnson], "We've looked at the evidence, we've looked at all of the objective physical evidence in this case, and [we conclude that] you sexually assaulted her. And that was wrong. And we're going to protect [L.S.] even though we might not all agree with all of her lifestyle choices and the decisions [that] she made on February 17th."
Again, Johnson's trial attorney made no objection to the prosecutor's comment, so the issue on appeal is whether this comment was so plainly improper that the trial judge was obliged to intervene sua sponte.
We find no plain error in this comment. The context of the prosecutor's remark was the evidence indicating that L.S., a married woman, had gone drinking and partying with a group of men, that she had danced in a sexually provocative manner in front of these men, and that she acted in an openly affectionate way toward Johnson during the evening. Responding to this evidence, the prosecutor urged the jurors not to let their potential distaste for L.S.'s behavior alter their decision if they believed that the evidence established Johnson's guilt.
For all these reasons, we reject Johnson's multiple attacks on the prosecutor's summation to the jury.
The written judgement must be corrected so that it accurately reflects the sentence that the judge announced at Johnson's sentencing hearing
Toward the end of Johnson's sentencing hearing, the sentencing judge declared that Johnson's composite sentence was "26 years with 9 [years] suspended — 16 years to serve". The ensuing written judgement repeats this characterization of Johnson's composite sentence; the judgement states, "Composite sentence — 26 years with 9 years suspended".
Johnson and the State agree that this is a mistaken characterization of Johnson's composite sentence.
Johnson was convicted of two offenses: second-degree sexual assault and third-degree assault. For the sexual assault, he received a sentence of 22 years' imprisonment with 7 years suspended ( i.e., 15 years to serve). For the third-degree assault, he received a sentence of 4 years' imprisonment with 2 years suspended ( i.e., 2 years to serve).
If these two sentences were entirely consecutive, then they would add up to the composite sentence recited in the judgement: 26 years with 9 years suspended. However, the sentencing judge stated (and the written judgement indeed accurately reflects) that one year of the 2 years that Johnson must serve for third-degree assault is concurrent with his sentence for sexual assault. Thus, Johnson's composite time to serve is only 25 years, not 26 years.
In other words, having examined the record, we agree with the parties that the written judgement must be amended so that it reads, "Composite sentence — 25 years with 9 years suspended."
Conclusion
Johnson's convictions for second-degree sexual assault and third-degree assault are AFFIRMED. However, the superior court is directed to amend the written judgement in this case as described in the preceding section of this opinion.