Opinion
Court of Appeals No. A-12685 No. 6846
01-08-2020
ALAN OSBORN BAXTER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4NE-14-00150 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Fairbanks, Ben A. Seekins, Judge. Appearances: Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Spenser J. Ruppert, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. Judge COATS.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Alan Osborn Baxter appeals his conviction for assault in the fourth degree. He argues that, at two different instances in his trial, the State violated his constitutional right to remain silent. Because we conclude that there was no error in the first instance and that any error was harmless in the second instance, we affirm.
AS 11.41.230(a)(1).
See Alaska Const. art. I, § 9 ("No person shall be compelled in any criminal proceeding to be a witness against himself.").
Background facts and proceedings
This case arose out of a verbal altercation between Wesley Beyers (Baxter's friend and colleague) and David Ferns at a road construction site on the Parks Highway. At trial, Beyers testified that he returned to his truck to defuse the heated situation and that, after he got in, he heard something hit the side of the vehicle. When he turned around to look, he saw Ferns lying injured on the ground.
Boyd Brownfield, an employee of the Alaska Department of Transportation (DOT), was also at the job site that day. He testified that he saw someone run up to Ferns and elbow Ferns in the neck; Brownfield saw Ferns's head snap back before his body hit Beyers's truck door and fell to the ground. Brownfield provided the investigating officer, Sergeant Brian Zeisel of the Alaska State Troopers, with a description of the person who hit Ferns and the truck that person used to drive away.
Sergeant Zeisel soon located the suspect — who turned out to be Baxter — and interviewed him. Baxter told Sergeant Zeisel that Ferns had climbed onto the side of Beyers's truck swinging a hammer. Baxter then started running towards the truck, but by the time he got there, Ferns was already on the ground saying that he had hit his head. Baxter asked Ferns if he was okay or needed help getting up. When Ferns declined, Baxter left the scene — he was told to get in his truck and go because he was blocking traffic. During this interview, Baxter repeatedly insisted that he never touched Ferns.
At trial, Baxter told a different version of events. He testified that he was sprinting towards Beyers and Ferns to see if he could break up the argument, but because he was wearing loosely-tied shoes, he tripped on the new asphalt and lost his right shoe. This caused him to fall forward and hit Ferns in the back. Again, Baxter said he asked Ferns, who was then lying on the ground, if he needed help. As Brownfield arrived at the scene, Baxter was informed that his truck was blocking traffic. Baxter testified that he felt guilty and "wasn't in the right mind," so he got in his truck and drove away. When asked by defense counsel why he did not originally tell this to Sergeant Zeisel, Baxter replied that he was scared and nervous because nothing like this had happened to him before.
In closing, defense counsel argued that Baxter had accidentally fallen forward and had not been reckless when he injured Ferns. The prosecutor countered that Baxter's trial account was a "convenient explanation," that it was inconsistent with Brownfield's testimony of an intentional elbow strike, and that Brownfield was the more credible witness. Ultimately, the jury found Baxter guilty of fourth-degree assault.
On appeal, Baxter argues that the prosecutor violated his right to remain silent on two different occasions during his trial. The first allegedly occurred during Sergeant Zeisel's testimony, after the prosecutor played the recording of Baxter's interview with Sergeant Zeisel. The second allegedly occurred during the prosecutor's cross-examination of Baxter.
The exchange between the prosecutor and Sergeant Zeisel
Evidence of a defendant's post-arrest silence is prohibited by article I, section 9 of the Alaska Constitution. At trial, Sergeant Zeisel testified that he decided to arrest Baxter at the conclusion of the interview because Baxter's statements were inconsistent with those of the other witnesses and because Baxter was unable to explain why Ferns fell.
The prosecutor then asked, "After you arrested Mr. Baxter, when you have him in the car, when you're transporting him, did he ever offer any further explanation about what could have happened or qualify his story in any way?"
Sergeant Zeisel responded, "Not — not that I can recall right now. I just — I just know that it was — he just seemed pretty resigned to the ride. I mean, I just expected if someone hadn't — hadn't committed an assault or committed that particular crime [ . . .]"
At this point, the trial judge asked the parties to approach and stated that Sergeant Zeisel "was right on the edge" of commenting on Baxter's right to remain silent. Baxter's attorney then argued that the prosecutor and Sergeant Zeisel had already impermissibly commented on Baxter's right to remain silent. After listening to a playback of Sergeant Zeisel's testimony, the trial judge agreed.
Baxter's counsel requested a mistrial based on the violation. The judge denied the motion for mistrial but struck the question and answer from the record and ended Sergeant Zeisel's direct examination. The judge also allowed Baxter's counsel to propose a curative instruction, which was adopted verbatim and read to the jury.
On appeal, Baxter argues that these remedial measures were insufficient and he asserts the trial judge erred in not granting a mistrial. We review a trial judge's ruling on a motion for mistrial for an abuse of discretion.
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
In Hamilton v. State, we concluded that a targeted curative instruction removed any error caused by a fairly brief exchange about the defendant's silence. We come to the same conclusion under the similar circumstances presented here. As in Hamilton, the trial judge struck the exchange from the record and issued a targeted jury instruction. Here, the judge went even further by ending the direct examination of Sergeant Zeisel — all to cure one question and one answer. Given these circumstances, we find no abuse of discretion in the trial court's denial of the mistrial motion.
Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App. 1989).
See id.; see also Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002) ("A timely curative instruction is presumed to remedy the unfair prejudice that might otherwise arise from inadmissible testimony.").
The exchange between the prosecutor and Baxter during cross-examination
Baxter also challenges the exchange that occurred during his cross-examination, where the prosecutor sought an explanation for his inconsistent accounts. The prosecutor pressed Baxter about why he had not talked to the other people at the scene who were his friends. Baxter's attorney objected to this line of questioning. Initially, the court overruled the objection, and the prosecutor continued to question Baxter about why he had not told his version of events to his friends. Baxter's attorney objected a second time, and this time, the court implicitly sustained the objection and directed the prosecutor to move on from "that topic area."
The judge subsequently told both lawyers not to refer to Baxter's silence at all in closing arguments, specifically including in his admonishment the prosecutor's line of questioning about whether Baxter spoke to his friends. The parties apparently heeded this warning, and no further objections were made during closing arguments.
On appeal, Baxter argues that the judge should have sustained his attorney's first objection and that it was error to allow the prosecutor to continue this line of questioning. Baxter further asserts that this error was prejudicial because his conviction depended primarily on conflicting witness testimony and this line of questioning attacked Baxter's credibility. Baxter also argues that the absence of any curative instruction prejudiced him.
See Adams v. State, 261 P.3d 758, 774 (Alaska 2011) ("[C]omment on a defendant's silence is more likely to be prejudicial if the conviction depended primarily on conflicting witness testimony.").
Although neither this Court nor our supreme court has decided whether the Alaska Constitution prohibits evidence of a defendant's pre-arrest silence, "pre-arrest silence will usually be inadmissible under [Alaska] Evidence Rule 403 due to its inherently low probative value and high risk of unfair prejudice."
Id. at 765-66; see also Alaska Evid. R. 403.
However, we need not reach the question of whether the court erred because we find any error harmless. The record shows that the judge implicitly sustained defense counsel's second objection shortly after overruling the first — a decision which meant that the line of questioning was brief. In addition, the judge warned both parties not to refer to this line of questioning during closing argument — an admonishment that was followed by both parties. Given these circumstances, we conclude that any error in allowing this brief questioning was harmless under either the constitutional or non-constitutional standard.
Compare Smithart v. State, 988 P.2d 583, 589 (Alaska 1999) (explaining that, in determining whether errors are harmless beyond a reasonable doubt under the standard for constitutional errors, "the question is whether there is a reasonable possibility that the error affected the result"), with Love v. State, 457 P.2d 622, 634 (Alaska 1969) (describing harmlessness standard for non-constitutional errors as "whether [the appellate court] can fairly say that the error did not appreciably affect the jury's verdict").
Conclusion
The judgment of the district court is AFFIRMED.