Opinion
Court of Appeals No. A-9878.
May 20, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, John W. Wolfe, Judge pro tem, Trial Court No. 3PA-05-2114 CR.
Linda Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Juneau, Attorney General, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Erik E. Barber testified at his trial on charges of burglary and theft. During closing arguments, the prosecutor accused Barber of lying about issues where other evidence directly contradicted Barber's testimony. The prosecutor also stated that he did not believe Barber's testimony. Barber did not object to these comments at the time, but now claims that they constituted plain error.
We conclude that the jury likely interpreted the prosecutor's comments to be directed at the credibility of Barber's testimony rather than his general character. And although it is improper for a prosecutor to express a personal opinion concerning the credibility of any witness's testimony, we conclude that the jury would have understood that the prosecutor's statement was based upon the evidence presented at Barber's trial, rather than on any personal knowledge of matters outside of the evidence. For these reasons, we find no plain error.
Background
At Barber's trial, the main witnesses were Barber and Dennis Freeman, the victim. Freeman was the owner of Nagley's General Store and the West Rib Café in Talkeetna. Freeman testified that early one August morning he went into the café next to his home to get a cup of coffee. As Freeman was walking back through the café, he saw movement through a glass door, as if a person had just gone around the corner.
Freeman attempted to catch this person by taking a shortcut through his home. When he emerged, Freeman saw the man carrying food items from the café . Freeman yelled at the man to stop; then Freeman pulled out the .38 Special he carried in his bathrobe and fired a warning shot into the air. When the unknown man turned around, Freeman recognized him as Barber, whom Freeman had known for many years.
Freeman then fired another shot into the ground and ordered Barber to his knees. Freeman testified that he asked Barber, "Why the fuck are you robbing me, Erik?" Barber responded, "Sort of," and then said, "Go ahead and shoot me and put me out of my misery." During this exchange, Daryl Miller, a local park ranger, was passing by on his way to work and saw Freeman in the street with his pistol. Miller offered to call the police, but Barber ran away.
The frozen food items taken from the café included crab cakes, spring burgers, chicken breasts, caribou burgers, halibut tenders, muskox burgers, shrimp cheese, salmon fillets, halibut fillets, and hamburgers. Freeman estimated that the food boxes weighed about seventy-two pounds and were worth two-to-three hundred dollars.
Barber testified that he had not stolen from Freeman's café. He said that he had been at a party until around 5:00 a.m. On the way back to his father's cabin in Talkeetna, he heard a noise behind the café, and when he went to investigate he found some scattered food containers. Barber testified that he was stacking the boxes on a bench when Freeman came around the corner of the building and fired two gun shots in quick succession. Barber tried to explain that he was not stealing from Freeman — saying, "I know what it sort of looks like." Barber also testified that his father's cabin did not have a refrigerator or a freezer, so he could not even keep food there.
Barber's counsel argued in closing that Barber appeared nervous on the witness stand because he had been accused of a crime and questioned by a trained prosecutor. He also argued that Barber would not have stolen the food because he did not have a freezer, and that the truth of Barber's testimony was evidenced by its simplicity.
In reply, the prosecutor argued that "when the defendant was testifying, he might have been nervous, but he was also lying." Regarding the freezer, the prosecutor argued:
No freezer at dad's house? All we heard that from is a self-serving statement from the defendant. I don't believe that as far as I can throw him I would wager there ain't a soul in Talkeetna that lived there for more than a year that doesn't have a freezer. I don't buy that as far as I can throw him. That is just self-serving from the defendant. It's like, "why would I steal? I had nowhere to put it." No way. And he has a girlfriend, he has an ex-girlfriend with a child or a wife, he has a girlfriend for his dad. There's tons of people. There's tons of freezers. There's no way.
Finally, regarding the defendant's testimony about the incident, the prosecutor stated:
Well, I've got to tell you, the best liar is the one that mixes a little truth with a little lie, with a little truth with a little lie, because then it's hard to find the lie. And Erik Barber lied on the stand. Erik Barber is guilty of these crimes, well beyond a reasonable doubt.
Barber's attorney did not object to any of these comments.
Immediately before the closing arguments, the judge had cautioned the jury that the closing arguments were not evidence:
Ladies and gentleman, this is the time for closing arguments. The parties will outline what they believe the evidence has proved and the inferences that should be drawn from the evidence, [but] what is said in closing argument, just as what's said in opening statement, is not evidence. The arguments are simply to present the contentions of the part[ies]. . . .
The jury convicted Barber of second-degree burglary and third-degree theft. In this appeal, Barber argues that the prosecutor's comments interfered with his right to a fair trial.
AS 11.46.310.
AS 11.46.140(a)(1).
Discussion
Barber did not object to the prosecutor's comments at trial, therefore we must review these comments for plain error. In determining whether prosecutorial statements amount to plain error, this court "consider[s] whether the impropriety was so flagrant as to `undermine the fundamental fairness of the trial.'"
See Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996).
Id. (quoting United States v. Young, 470 U.S. 1, 16, 105 S. Ct. 1038, 1047, 84 L. Ed. 2d 1 (1985)).
In this case, the prosecutor's comments fell into two related categories. First, the prosecutor argued that Barber was lying on the stand, and later he called him a liar. Second, the prosecutor suggested that he knew that Barber was lying when he testified that he did not even have a freezer, stating that he did not believe Barber "as far as [he] c[ould] throw him."
The first category of comments could be improper if the prosecutor was disparaging the defendant's general character. But we have not considered similar comments to be plain error in cases where the prosecutor is clearly referring to a conflict in the testimony presented at trial.
For example, in Smith v. State, the prosecutor called the defendant a liar in closing arguments. In that case, there was a "sharp contrast" between the defendant's testimony and the testimony of the arresting officer: The officer testified that he saw the defendant throw away a bag containing cocaine, and the defendant testified that he was the victim of a conscious frame-up. We noted how "it is usually improper for the prosecutor to call the defendant a liar," but that this impropriety is not plain error when there is a direct conflict in the evidence.
771 P.2d 1374 (Alaska App. 1989).
Id. at 1379.
Id. at 1374-75.
Id. at 1379.
In the present case, there was a similar conflict between the accounts given by Barber and Freeman. Freeman testified that he caught Barber leaving with the food boxes. Freeman also recalled that when he accused Barber of robbing him, Barber replied "Sort of" and said, "Go ahead and shoot me and put me out of my misery."
In contrast, Barber testified that he was merely stacking the scattered food boxes on a store bench. When Freeman confronted him, he said, "I know what it sort of looks like." Barber could not recall telling Freeman "to put [him] out of [his] misery."
In Freeman's version of the events, Barber essentially confessed after Freeman caught him with the food. But in Barber's account, Barber tried to explain himself and did not confess. Under these circumstances the jury likely understood that the prosecutor's comments referred to Barber's trial testimony rather than his general character for honesty. Consequently, these comments did not constitute plain error.
The second category of comments, referring to the prosecutor's personal belief, is more problematic. The Alaska Supreme Court has noted: "It is improper for a prosecuting attorney to express his personal belief as to the reliability of a witness, whether to bolster the state's case or to discredit the credibility or reliability of defense witnesses." As the supreme court explained, "[T]he vice sought to be guarded against by such a rule is the introduction into evidence of the unsworn testimony of counsel in which he states either explicitly or implicitly that his opinion as to the credibility of a witness is based upon personal knowledge of the witness."
Darling v. State, 520 P.2d 793, 794 (Alaska 1974).
Id.
In Barber's case, however, the prosecutor also emphasized that it was the jury's role to evaluate the testimony. Moreover, the prosecutor established that he and Barber did not personally know each other, and he told the members of the jury to rely on their own notes on the trial evidence. Finally, the prosecutor's improper comments were directed only at a minor issue — whether Barber's father owned a freezer.
It was improper for the prosecutor to state his personal belief that Barber was lying, but the jury was unlikely to view this comment as having been based on any personal knowledge. Under these circumstances, the prosecutor's comments were not plain error.
Conclusion
Some of the prosecutor's comments were improper, but they did not amount to plain error threatening the fairness of Barber's trial. We therefore AFFIRM the judgment of the superior court.