Opinion
Court of Appeals No. A-9643.
December 9, 2009.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, Judge, Trial Court No. 2KB-05-455 Cr.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
The defendant in this case, Leroy T. Adams, was convicted of second-degree sexual assault. According to the State's evidence, the sexual assault occurred when the victim visited Adams's apartment on February 8, 2005.
At trial, Adams took the stand in his own defense and claimed that his sexual activity with the victim had been consensual. During the prosecutor's cross-examination of Adams, the prosecutor repeatedly brought up the fact that Adams had declined to speak to the state troopers when they came to Adams's residence on February 8, 2005 to investigate the reported sexual assault, and that, since then, Adams had never offered any explanation of the episode until he took the stand at his trial. Adams's attorney made no objection to this cross-examination. Later, during the prosecutor's summation to the jury, the prosecutor argued that Adams's unwillingness to talk to the troopers about what happened in his apartment was one factor that the jury should consider when assessing the credibility of Adams's testimony. Again, Adams's attorney made no objection.
Despite the lack of any objection at trial, Adams argued on appeal that the prosecutor's cross-examination of Adams, as well as the prosecutor's related argument to the jury, were plain error. Adams alleged that the prosecutor's remarks constituted improper comments on Adams's right to silence, and that any competent trial judge would have perceived that the prosecutor's remarks were improper.
In our previous decision in this case, Adams v. State, Alaska App. Memorandum Opinion No. 5363 (July 16, 2008), we concluded that the prosecutor's references to Adams's pre-arrest silence were at least arguably permissible — and, as a consequence, these remarks did not constitute plain error.
After we issued our decision, Adams petitioned the Alaska Supreme Court to review our decision. See Adams v. State, File No. S-13254. In an order issued on May 12, 2009, the supreme court granted Adams's petition in part. The supreme court directed us to decide whether the prosecutor had improperly commented on Adams's post-arrest silence — and, if so, whether the prosecutor's comments constituted plain error. The details of Adams's claim that the prosecutor improperly commented on his post-arrest silence
During the prosecutor's cross-examination of Adams, when the prosecutor asked Adams about his refusal to speak to the troopers who came to interview him at his apartment, the prosecutor twice referred to the fact that Adams had continued to remain silent up until the time of his trial. We have italicized the two remarks that we are talking about:
Prosecutor: And then you refused to talk to the police any further, correct?
Adams: That's right.
Prosecutor: Okay. Until today?
Adams: I was exercising my right.
Prosecutor: Okay. You've [now] heard from the victim in this case, correct? You've been sitting right over there [at the defense table]?
Adams: Yes, I did.
Prosecutor: [And] you've heard from your wife? You've heard her testify while [you were] sitting right over there? Correct?
Adams: Yes, I did.
. . .
Prosecutor: Okay. Now, [the] new information that we heard from you today is everything that happened in your apartment, correct? Would you agree to that? . . .
Adams: What do you mean by "everything"?
Prosecutor: Well, we didn't know anything about what happened in your apartment from you, because you didn't talk to [the] police — [you didn't talk] until after hearing all the evidence so far in the case.
Adams: I assumed I had the right to remain silent . . . until I choose to testify.
In Adams's petition to the Alaska Supreme Court, he argued that the two italicized portions of the prosecutor's cross-examination constituted improper comments on his post-arrest silence. Specifically, Adams argued:
The prosecutor was clearly questioning Adams on his continued silence after arrest, during which [Adams] would have received his Miranda warnings informing him of his constitutional right to remain silent . . . up until he took the stand at trial. These [two] questions therefore addressed Adams' . . . post-arrest silence.
"Petition for Hearing" in Adams v. State, Supreme Court File No. S-13254, pages 8-9.
Under federal law, if a defendant takes the stand at trial (as Adams did here), the government can comment on the defendant's pre-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 238-39; 100 S.Ct. 2124, 2129; 65 L.Ed.2d 86 (1980). Moreover, if the defendant testifies, the government can comment on the defendant's post-arrest silence unless the defendant received Miranda warnings — in other words, unless the defendant was expressly informed of their right to remain silent, with the implicit assurance that the exercise of this right would not be used against them. Fletcher v. Weir, 455 U .S. 603, 606-07; 102 S.Ct. 1309, 1311-12; 71 L.Ed.2d 490 (1982) ( per curiam).
In Adams's case, the prosecutor clearly referred to the fact that Adams had failed to offer any account of the episode until he testified at trial. But the prosecutor made these remarks after Adams chose to take the stand. Under the Supreme Court's decisions in Jenkins and Weir, the prosecutor's comments would be proper unless they amounted to an adverse comment on Adams's post-arrest exercise of the Miranda right to silence. Thus, under federal law, Adams's claim of error stands or falls on whether he was arrested and advised of his Miranda rights.
In Adams's petition to the Alaska Supreme Court (the portion quoted above), Adams asserted (1) that he was arrested for the sexual assault, (2) that he received Miranda warnings following his arrest, and (3) that his continued refusal to speak about the episode was simply an assertion of the Miranda right to silence that the police had informed him of. The problem is that Adams never made these assertions when he argued his case to this Court.
In Adams's briefs to this Court, and in the excerpt of record that he submitted, there is no mention of Adams ever being arrested on the sexual assault charge — and no indication that, if he was arrested, he ever received Miranda warnings. These subjects are simply not discussed in Adams's pleadings in this Court.
Because we were directed by the supreme court to determine if Adams had a claim of plain error, and because Adams offered us no information on these subjects in his briefs or in the excerpt of record, we electronically searched the transcript of Adams's trial (from the opening statements through the closing arguments) for any mention of the words "arrest", "custody", " Miranda", "rights", and "silence" or "silent". Here are the results of our search:
The word "arrest" is mentioned only twice, both times during the testimony of Trooper Ron Monigold. Monigold testified that Adams was not under arrest when Monigold interviewed him at his apartment on February 8, 2005, nor at any time during Monigold's later interaction with Adams. (Following the interview at the apartment, Adams agreed to accompany Monigold to the hospital to give body samples for testing.)
The word "custody" is mentioned only once; this occurred during the testimony of Lieutenant Eric Swisher. Swisher was describing the "chain of custody" of the physical evidence in the case.
The transcript contains no mention of the word " Miranda", no mention of the word "rights", and no mention of the word "silence".
The word "silent" is mentioned in only three places in the transcript: (1) during the attorneys' discussion about redacting the audiotape of the interview that the police conducted with Adams at his apartment (this discussion is quoted in our first opinion), (2) during a related discussion in which the parties agreed that, in lieu of playing the audiotape, the prosecutor could simply ask Trooper Monigold questions about the contents of the tape, so long as he did not ask Monigold about Adams's decision to invoke his right to silence (this discussion occurred during the State's casein-chief, before Adams decided to take the stand at trial), and (3) during Adams's own testimony (the portion that we quoted earlier in this opinion).
This is not to say that Adams was never arrested in connection with this case. Other documents in the trial court file (documents not contained in the excerpt of record) indicate that Adams was arrested after the police filed the felony complaint against him. But Adams never asserted that he had been arrested, nor did he provide this Court with any information concerning his arrest, when he argued his case on appeal.
Given the fact that documents in the superior court file reveal that Adams was arrested, the next question under federal law is whether Adams was ever advised of his Miranda rights.
It is possible that Adams received Miranda warnings when he was arrested, but there is nothing in the record to show this — or, at least, nothing that we could find. In addition to the fact that the transcript of Adams's trial contains no reference to Adams's arrest or to Miranda warnings, we note that the superior court file contains no pre-trial motions that refer to Adams's arrest.
It is also possible that Adams did not receive Miranda warnings. As we explain in more detail later in this opinion, Adams was not arrested in early February 2005 when the sexual assault was reported and he declined to be interviewed. Rather, Adams was arrested in late July 2005, when the police finally filed felony charges against him following a nearly six-month investigation. Given Adams's refusal to speak to the police when the sexual assault was reported, and given his silence during the ensuing months preceding his arrest, it is conceivable that the police did not plan to interrogate Adams when they arrested him, and that they therefore did not give him Miranda warnings.
And we again note that Adams never asserted that he received Miranda warnings when he argued his case to this Court.
We assume (as we must, in light of the supreme court's order) that Adams's briefs on appeal include a plain-error claim that the prosecutor improperly commented on Adams's post-arrest silence (as opposed to his pre-arrest silence). Nevertheless, even when a claim is raised as a matter of plain error, the claim must be adequately briefed.
Here, Adams failed to argue — indeed, failed to mention at all — the two factual assertions that are crucial to his claim of error under federal law: an allegation that he was arrested, and an allegation that he received Miranda warnings. For this reason, any claim of error under federal law is inadequately briefed.
Moreover, even if the claim had been adequately briefed, the record contains no indication that Adams was ever advised of his Miranda rights. For this reason, any claim of error that Adams might have under federal law can not be "plain error".
To qualify as "plain error", an error must be so obvious that any competent judge would have recognized it and acted to rectify or ameliorate it. Thus, if the assertion of error is merely debatable, so that reasonable judges might differ as to whether error had occurred, a claim of plain error fails. Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
As we explained above, the Jenkins and Weir decisions hold that, when a defendant takes the stand at trial, a prosecutor can properly comment on the defendant's pre-trial silence and can properly comment on the defendant's post-arrest silence unless the defendant received Miranda warnings. Because the record in Adams's case contains no information that Adams ever received Miranda warnings, the judge who presided over Adams's trial had no affirmative indication that the prosecutor's comments on Adams's silence were improper under the federal constitution. Thus, any claim of error that Adams might have under federal law does not amount to plain error.
We now turn to Adams's claim of plain error under Alaska law.
Alaska law on this subject is more favorable to defendants than federal law. See, in particular, this Court's lengthy discussion of this area of the law in Silvernail v. State, 777 P.2d 1169, 1774-79 (Alaska App. 1989).
Indeed, in Alaska, judicial scrutiny of adverse comments on a defendant's silence does not hinge on whether the defendant was under arrest. In Silvernail, we declared that "[r]esolution of this issue turns upon a case-by-case examination of the evidence" — in other words, an examination of its probative force versus its potential for unfair prejudice under Alaska Evidence Rule 403 — "and not upon the formalistic nomenclature that attaches to the accused's custodial status". Silvernail, 777 P.2d at 1777. Thus, in Silvernail, we reversed a conviction because the prosecutor adversely commented on the defendant's failure to speak during a confrontational investigative stop. See id. at 1778-79.
But the limited issue before us now — the issue that the supreme court has directed us to address — is whether Adams has a convincing claim of plain error based on the prosecutor's adverse comments on Adams's post-arrest silence.
(We concluded in our earlier decision that the prosecutor's comments on Adams's pre-arrest silence were not plain error, and the supreme court declined review of that issue.)
As we have already discussed, Adams's pleadings to this Court contain no information concerning whether, or when, Adams was arrested. And as we have explained, no evidence concerning this issue was presented at Adams's trial.
As we noted earlier, even when a claim is raised as a matter of plain error, the claim must be adequately briefed. Here, Adams failed to argue — indeed, failed to mention at all — the factual assertion that is crucial to a claim of error based on post-arrest silence: an allegation that he was arrested (or at least officially detained in some lesser manner).
Nevertheless, because the supreme court directed us to consider the issue of post-arrest silence, we have independently examined the trial court file for information on this matter. The superior court file shows that the investigation of this case took five and a half months: the police received the report of the sexual assault on February 8, 2005 (the day it occurred), but the felony complaint against Adams was not filed until July 18, 2005. When the police filed the felony complaint, they asked the court to issue a bench warrant. The bench warrant was issued on July 21, 2005, and Adams was arrested under the authority of that warrant the next day, July 22, 2005.
Thus, Adams's arrest occurred five and a half months after the police attempted to interview Adams at his apartment on February 8, 2005 (when he declined to discuss the episode with them). We further note that Adams's arrest occurred a little less than four months before Adams went to trial on November 14, 2005.
In other words, the period of post-arrest silence in Adams's case accounts for less than half of the nine months that elapsed between February 8, 2005 (when the police received the report of the sexual assault and attempted to interview Adams at his apartment) and November 14, 2005 (when Adams's trial commenced). To the extent that Adams kept silent during these nine months, the majority of this silence was pre-arrest silence.
This fact militates against a finding of plain error in Adams's case. To establish plain error, a litigant must show that the claimed error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice. Given our first decision in Adams's case — that is, given our decision that it was not plain error for the prosecutor to comment on Adams's five and a half months of pre-arrest silence — it appears that any error in allowing the prosecutor to also comment on Adams's ensuing four months of post-arrest silence would not have substantially undermined the fairness of the trial.
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008); Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007); Baker v. State, 22 P.3d 493, 498 (Alaska App. 2001).
Under our decision in Silvernail, when the government improperly comments on a defendant's silence, the question is whether that improper evidence or argument "appreciably affect[ed] the jury's verdict". Here, we have already ruled that it was not plain error for the prosecutor to comment adversely on Adams's pre-arrest silence: Adams's failure to offer an explanation of the episode when the police attempted to interview him at his apartment on February 8, 2005, and his ensuing failure to offer any explanation during the nearly six months that the case was under investigation ( i.e., before the police filed charges against Adams and obtained the warrant for his arrest). Thus, even if the prosecutor overstepped legal boundaries by including, in his comments, an implied reference to Adams's silence during the final four months of the case ( i.e., the time between Adams's arrest and Adams's trial), it is unlikely that this would have appreciably affected the jury's decision.
Silvernail, 777 P.2d at 1179, citing Love v. State, 457 P.2d 622, 634 (Alaska 1969) (establishing the test for whether non-constitutional error requires reversal of a criminal conviction).
For these reasons, we conclude that Adams has failed to show that the prosecutor's references to his post-arrest silence constituted plain error. We again AFFIRM the judgement of the superior court.