Opinion
Court of Appeals No. A-8827.
July 25, 2007.
Appeal from the Superior Court, Third Judicial District, A nchorage, Larry D. Card, Judge and W illiam H. Fuld, Judge pro tem, Trial Court No. 3AN-02-7676 CR.
Sharon Barr, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In two separate trials, Craig G. Brown was convicted of two counts of second-degree burglary and two counts of third-degree criminal mischief. Brown argues that his convictions should be reversed. He claims that the superior court erred in allowing him to proceed pro se and then refusing to appoint counsel mid-trial, that the judge in one trial made prejudicial comments about him in the jury's presence, and that the prosecutor in one trial made improper remarks during closing argument. We reject all the arguments for the reasons expressed below.
Facts and proceedings
On January 5, 2002, two Anchorage police officers responded to a break-in at the People Mover customer service office in the downtown Bus Accommodation Center. The front door of the office had been forced open. Inside the office and behind a security gate, two cash registers were damaged, and the metal cash boxes from the registers were on the floor. The police found fingerprints on the bottom of one of the cash boxes that matched Brown's fingerprints.
On May 26, 2002, the Anchorage police investigated a break in at Hi-Tech Live Scan Fingerprinting in Anchorage. The glass on the front doors had been cracked (but not shattered), and a window had been broken allowing access to the office. Some cash and a laptop computer were missing. The officers discovered drops of blood outside the office, on and near the broken window, and inside the office on a printer that was located on a table near the window. DNA from the blood at the Hi-Tech office matched Brown's DNA.
The grand jury indicted Brown on one count of second-degree burglary and one count of third-degree criminal mischief for each of the two incidents. Brown was also indicted on one count of second-degree theft for the Hi-Tech incident.
AS 11.46.310.
AS 11.46.482(a)(1).
AS 11.46.130(a)(1).
The Public Defender Agency was appointed to represent Brown. On Brown's motion, the counts based on the People Mover burglary were severed for trial from the counts based on the Hi-Tech burglary. The Hi-Tech burglary went to trial first.
Several weeks before the Hi-Tech trial began, Brown informed the court that he wanted to represent himself, expressing his unhappiness with his public defender. At Brown's request, a representation hearing was held on September 2, 2003. Brown asked for hybrid representation, but Brown's attorney stated he was unwilling to do that. Superior Court Judge Larry D. Card then asked Brown if he still wanted to represent himself and Brown said that he did. Ultimately, the court concluded that Brown had knowingly and intelligently waived his right to counsel, and discharged the Public Defender Agency.
The Hi-Tech trial began on November 24, 2003, with Superior Court Judge pro tem William H. Fuld presiding. Judge Fuld twice gave Brown the opportunity to request counsel, once before voir dire and once after the jury was selected, but Brown did not ask for an appointed attorney. However, midway through the trial, Brown requested counsel. Judge Fuld denied this request. The jury returned guilty verdicts on the second-degree burglary and third-degree criminal mischief charges, but hung on the second-degree theft charge.
Before trial on the People Mover incident, Judge Card reappointed the Public Defender Agency to represent Brown. On the morning of the first day of trial, Brown asked to represent himself. Judge Card advised Brown of his right to counsel and concluded that Brown knowingly and intelligently waived that right. Again the Public Defender was permitted to withdraw. The jury found Brown guilty of second-degree burglary and third-degree criminal mischief.
Brown was sentenced to terms of 3 1/2 years for each incident, for a total of 7 years to serve. Brown appeals. Discussion Brown waived his right to counsel
Brown argues that the superior court erred in accepting his waiver of counsel before each trial, that Judge Fuld erred in refusing to appoint advisory counsel, and that Judge Fuld erred in refusing to appoint counsel mid-trial.
Before the first trial, Brown stated that he wanted advisory counsel, but that he wanted someone other than the public defender who was assigned to his case. (That attorney said he was not willing to act as advisory counsel.) After Judge Card explained that Brown was not entitled to a specific attorney from the Public Defender Agency, and that he had to either continue with his present attorney or represent himself, Brown said he wanted to represent himself.
Judge Card asked Brown what it meant to represent himself, and Brown responded: "It means that I'm going to be handling all my legal matters. And I'm going to. . . suffer the consequences, if there are any." Judge Card questioned Brown and established that Brown had no legal training, but that he had represented himself, with advisory counsel, in a trial before Judge Card three years earlier. Brown told Judge Card that he had completed high school, and could read and write in English. Brown also affirmed that he was not under the influence of any medication, drugs, or alcohol at the time of the hearing, nor did he knowingly have any mental disease or defect.
Judge Card explained the expertise and ro le of an attorn ey in a criminal trial: the attorney has legal training and is licensed to practice in Alaska; the attorney plans a defense; the attorney makes pretrial motions and may attempt to seek pretrial disposition of a case; the attorney selects the jury and asks appropriate questions of the potential jurors; the attorney offers and objects to evidence in a legally proper way; the attorney cross-examines witnesses; the attorney prepares and objects to jury instructions; and the attorney argues the case to the jury. Brown indicated that he understood all of these facts.
Judge Card explained that an attorney would be more able to engage in effective negotiations with the prosecutor in the case, and Brown said he understood. Judge Card explained that an attorney may be better able to identify legal defenses that a lay person might not recognize, and Brown said he understood. Judge Card explained that there are many evidentiary and other court rules that would apply to his case, and that Brown would not be exempted from following these rules just because he was representing himself; Brown said he understood. Judge Card explained that "trial is more than telling your side of the story," and Brown said he understood. Judge Card confirmed that Brown knew he had a right not to say anything at trial, and that sometimes silence would be the best tactical option. Judge Card explained that a defense attorney would also be able to argue regarding Brown's sentence, and Brown said he understood. Judge Card explained that the sentence for the felonies on which he was indicted would be presumptive, and asked Brown if he knew what a presumptive sentence was. Brown responded: "Presumptive means it's a determined amount that the state. . . has to impose against me." The judge clarified that it is the court that is required by legislation to impose a presumptive sentence, and explained the concepts of felony classes, prior felonies, and aggravating and mitigating factors. Brown confirmed that he understood.
Judge Card then specifically explained the dangers of not being represented by an attorney: Brown may be at a disadvantage because the State was represented by an experienced attorney; Brown may fail to make effective use of jury selection by not asking appropriate questions of jurors; Brown may fail to object to inadmissible evidence, resulting in the admission of that evidence; Brown may fail to introduce admissible and important evidence; and Brown may make tactical decisions that may have unintended results. Brown confirmed that he understood these disadvantages.
Judge Card again asked Brown what he wished to do. Brown said that he wanted to "exhaust all dealings with [his public defender] and proceed pro se." Brown said he understood that he could either keep the assigned public defender, hire his own lawyer, or proceed pro se, and that he still wanted to represent himself.
Judge Card found that Brown knowingly, voluntarily, and intelligently waived his right to counsel. More specifically, Judge Card reiterated that he had covered the benefits of having an attorney and the roles of the various parties, which Brown understood, that Brown respected the decorum of the court, and that Brown was competent to waive his right to counsel and was capable of representing himself. Judge Card permitted the Public Defender Agency to withdraw.
Judge Fuld presided over the first trial. Twice, Judge Fuld gave Brown the opportunity to request counsel before the State started presenting its case-in-chief, but Brown declined each time. Before jury selection, Judge Fuld told Brown that if he wanted to change his mind and request a continuance and the reappointment of a public defender, Judge Fuld would consider it. Brown declined. Later, after the jury was selected, Judge Fuld asked Brown if he was still sure he wanted to represent himself, because he could, at that time, "probably remedy the situation if you change your mind and want an attorney." Brown again declined, but requested the hybrid representation that had already been denied by Judge Card. Judge Fuld did not appoint advisory counsel for Brown.
Midway through the trial, Brown declared that he wanted to consult with an attorney. Judge Fuld denied his request, stating:
Well, it's too late now. We're not going to — you've made your choice, so you're not going to consult with a lawyer now. There's no lawyer available. We're not going to hold up the trial. You've made your choice.
The trial proceeded and Brown was convicted of one count of second-degree burglary and one count of third-degree criminal mischief.
Before the second trial, Judge Card reappointed the Public Defender Agency to represent Brown. On the morning of the first day of trial, the public defender assigned to the case informed the court that Brown wanted to represent himself. Judge Card confirmed that Brown understood he had a right to an attorney. He informed Brown of the role of his attorney at trial: the attorney plans a defense, makes pretrial motions and seeks pretrial disposition of a case, selects the jury, offers and objects to witnesses and evidence, cross-examines witnesses, prepares and objects to jury instructions, and argues the case to the jury. Brown said he understood this information. Judge Card explained that Brown would not be allowed to "testify" himself in presenting opening and closing arguments and in examining witnesses, but could only refer to facts already in evidence, and Brown said he understood.
Judge Card also explained the advantages of representation by counsel over self-representation: an attorney is better able to negotiate with the State; an attorney is better able to recognize defenses and objections; an attorney is better able to argue for a lenient sentence because the attorney is not the person being sentenced; an attorney is better able to make effective use of jury selection; Brown might fail to object to inadmissible evidence, or might fail to offer admissible evidence; and Brown might make tactical decisions that could harm his case. Judge Card explained that the court would not make special exceptions for Brown solely because he was representing himself, so he would have to follow the court rules. Judge Card also informed Brown that if he represented himself he would not be able to file an application for post-conviction relief based on ineffective assistance of counsel. Brown said he understood. Brown informed Judge Card that he was educated, that he could read and write in English, and that he was not under the influence of drugs, alcohol, or any medication that would affect his abilities.
Judge Card found that Brown understood his right to counsel, the function of an attorney in court, the benefits of having an attorney, and the dangers of not having an attorney. He found that Brown would be able to follow the rules, could conduct himself with decorum in the courtroom, and could represent himself rationally and coherently. Judge Card thus found that Brown had knowingly and intelligently waived his right to counsel, and he allowed the Public Defender Agency to withdraw.
Brown argues that his waiver of counsel before each trial should not have been accepted by the court, and that his convictions must be overturned. We independently review the record to determine whether a defendant knowingly and intelligently waived the right to counsel.
McIntire v. State, 42 P.3d 558, 561 (Alaska App. 2002).
A criminal defendant has the right under the United States and Alaska Constitutions to represent himself. But because the exercise of this right inherently involves the waiver of another fundamental right — the right to counsel — a defendant must knowingly and intelligently waive his right to counsel before being permitted to represent himself at trial.
U.S. Const. amend. VI; Alaska Const. art. 1, § 21; Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975); McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
James v. State, 730 P.2d 811, 813 (Alaska App. 1987), modified on reh'g, 739 P.2d 1314 (Alaska App. 1987), (citing Faretta, 422 U.S. at 835, 95 S. Ct. at 2541).
In Alaska, the trial judge must assure that a defendant's waiver is knowingly and intelligently given, and must conduct that inquiry on the record. The judge must determine that the defendant is capable of representing himself in a "rational and coherent manner." The trial judge must "satisfy himself that the [defendant] understands precisely what he is giving up by declining the assistance of counsel" by explaining the advantages of legal representation in "some detail."
O'Dell v. Anchorage, 576 P.2d 104, 107-08 (Alaska 1978) (citing Faretta, 422 U.S. at 835, 95 S. Ct. at 2541, and Gregory v. State, 550 P.2d 374, 379 (Alaska 1976)).
McCracken, 518 P.2d at 91.
Id. at 91-92.
Brown identifies several specific matters and concepts that Judge Card failed to mention; Brown contends that these failures render his waiver of counsel invalid. Brown first argues that his waiver was not valid because Judge Card did not inform Brown of the nature of his burglary, theft, and criminal mischief charges, the potential sentences for these charges, and possible defenses or mitigating factors. But Brown's communications to the court regarding his public defender demonstrate that Brown knew of available defenses. And when Judge Card questioned him, Brown demonstrated that he understood the concept of presumptive sentencing and its potential application in his case.
Brown also argues that Judge Card erred in failing to warn Brown that the effectiveness of his defense might be compromised because he was acting as his own attorney, and in failing to advise Brown that counsel "can provide objective advice and decision-making when the client may find it hard to coolly evaluate his or her situation and options." But Judge Card went into great detail regarding the disadvantages of not having an attorney and the many tasks an attorney normally undertakes, and Brown indicated his understanding of all of Judge Card's statements. Judge Card's extensive inquiry was sufficient.
See id .
Next, Brown claims that his "[p]assive yes and no responses" demonstrate an inadequate waiver of counsel. But Brown does not provide any authority indicating that "yes and no" responses from a defendant are inadequate. Moreover, Brown's responses to Judge Card's questions were not so limited. Several times, Brown provided narrative responses when asked questions by Judge Card. These responses show that Brown understood the role of an attorney and what he was giving up by representing himself.
Brown also appears to argue that his waiver was not valid because he was not in fact able to represent himself in a "rational and coherent manner." Brown points out that he "did not behave properly in court" because he "argued for jury nullification, made factual statements about his charges without testifying, repeatedly called his prosecution `racist,' and was cut off during his cross-examination." But McCracken requires that a judge make a thorough enough inquiry to ensure that the defendant is "capable of presenting his allegations in a rational and coherent manner." Brown's alleged poor performance at trial does not undercut an otherwise proper pre-trial waiver of counsel.
Id. at 91.
See Faretta, 422 U.S. at 834 n. 46, 95 S. Ct. at 2541 n. 46 ("[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'"); Saucier v. State, Alaska App. Memorandum Opinion and Judgment No. 5202 at 10 (April 11, 2007), 2007 WL 1098423 at *5 (observing that the defendant could not vitiate his knowing waiver by asserting that he put on a poor defense); Hollaus v. State, Alaska App. Memorandum Opinion and Judgment No. 4771 at 6-7 (Oct. 15, 2003), 2003 WL 22351608 at *3 (relying on Faretta in refusing to consider defendant's argument that the record of his performance at trial demonstrated that he was not qualified to represent himself).
From our review of the record, we conclude that Brown knowingly waived his right to counsel for the first trial.
Next, Brown argues that Judge Card erred when he accepted Brown's waiver of counsel for the second trial. Brown's arguments draw on the arguments he made concerning the waiver that preceded the first trial. (Brown's argument references the earlier section of his brief, takes up less than a page of the brief, and cites no legal authority.) Brown argues that the waiver was improper because: Judge Card's questions elicited "passive yes and no responses" from Brown; Judge Card did not review the nature of the charges, the range of possible sentences, possible defenses, and mitigating factors; Judge Card failed to inform Brown that his dual role as attorney and defendant could harm his defense; and Judge Card failed to advise Brown that an attorney would be more credible in his arguments because he would not be the defendant as well.
We have examined Judge Card's questioning of Brown on the morning of the second trial when Brown announced that he again wished to represent himself. Judge Card's inquiry of Brown was sufficient. For the reasons we discussed above in relation to Brown's waiver before the first trial, we reject Brown's claims that his waiver of counsel before the second trial was not knowing and intelligent.
We now turn to Brown's claim that Judge Card improperly refused to appoint advisory counsel. It is within the trial judge's discretion to determine whether to permit advisory counsel. And "co-counsel or hybrid representation should only be allowed if counsel and the defendant can work together and present a coherent defense."
Garrison v. State, 762 P.2d 465, 467 (Alaska App. 1988); Cano v. Anchorage, 627 P.2d 660, 663-64 (Alaska App. 1981).
Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988).
In this case, the public defender assigned to represent Brown declined to function as advisory counsel, and Brown indicated his extreme displeasure with the public defender, declining to be represented by that attorney. Judge Card explained to Brown that he had no right to demand a particular attorney from the Public Defender Agency.
See Cano, 627 P.2d at 664 (noting that willingness of appointed counsel to act in an advisory capacity is relevant to trial court's decision to allow hybrid representation).
See Daniels v. State, 17 P.3d 75, 82 (Alaska App. 2001).
Judge Card could reasonably conclude that Brown and the public defender would not be capable of working together to present a coherent defense. We conclude that Judge Card acted within his discretion in not ordering hybrid representation.
See Lonis v. State, 998 P.2d 441, 447 (Alaska App. 2000).
Finally, Brown contends that Judge Fuld erred in failing to grant Brown's mid-trial request for counsel during the first trial. According to Professor LaFave's treatise on criminal procedure:
A defendant properly allowed to proceed pro se may find himself stuck with that choice. A trial court may refuse to permit him to change his mind and obtain the representation of counsel if that course of action would require a disruptive continuance.
3 Wayne R. LaFave, Jerold H. Israel Nancy J. King, Criminal Procedure § 11.5(c), at 581 (2d ed. 1999).
3 Wayne R. LaFave, Jerold H. Israel Nancy J. King, Criminal Procedure § 11.5(c), at 581 (2d ed. 1999).
The State cites several cases that have affirmed denials of mid-trial requests for counsel. Circuit Judge Richard Posner, in United States v. Solina, summarizes the risk a defendant takes when proceeding pro se:
United States v. Proctor, 166 F.3d 396, 402 (1st Cir. 1999) (holding that it is "within the district court's discretion to refuse a defendant's request to withdraw from self-representation after a valid waiver if a defendant seeks counsel in an apparent effort to delay or disrupt proceedings on the eve of trial, or once trial is well underway"); United States v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993) (holding that where defendant had "unequivocally asserted his right to represent himself and decided it was time for a change only after the government had completed nearly two-thirds of its case," it was "well within the discretion of the court to deny as untimely requests for counsel made after meaningful trial proceedings have begun" (citation and quotation marks omitted)); Brookner v. Superior Court, 76 Cal. Rptr. 2d 68, 71 (Cal.App. 1998) ("A trial judge is not obligated to restore counsel if a Faretta defendant changes his mind in mid-trial and no longer wants to represent himself."); People v. Trump, 347 N.E.2d 252, 253 (Ill.App. 1976) (holding that appointment of counsel mid-trial would have required either a mistrial or a continuance, and that to require the trial court to grant defendant's request "could create a situation wherein an accused might effectively thwart the orderly administration of justice").
733 F.2d 1208 (7th Cir. 1984).
A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid the disruption of the court's schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause.
Id. at 1211-12.
Id. at 1211-12.
The Alaska Supreme Court has held that a trial judge has discretion to grant or deny a continuance of trial, even when the continuance is requested in order to retain counsel. In exercising its discretion, the trial court "must give great weight to any substantial prejudice to the rights of the moving party [and] also consider the interests of the opposing party, the public and the judicial system in the prompt disposition of litigation."
Gottschalk v. State, 602 P.2d 448, 450-51 (Alaska 1979); Burleson v. State, 543 P.2d 1195, 1199 (Alaska 1975).
Burleson, 543 P.2d at 1199.
In Gottschalk v. State, the defendant waived his right to counsel and trial began with Gottschalk representing himself. However, after the trial began, Gottschalk requested a continuance to consult with an attorney he was about to hire. The trial court denied his request. The Alaska Supreme Court affirmed the trial court's decision, noting that it was the defendant's neglect in failing to hire an attorney earlier that had led to his request for a continuance.
Id.
Id. at 450.
Id. at 450-51.
Although there is no indication here that Brown was requesting counsel merely to disrupt the trial, we conclude that Judge Fuld acted within his discretion when he denied Brown's request. Brown clearly and repeatedly objected to his attorney before trial, and turned down Judge Fuld's offers to reappoint counsel before the State's case began. As in Gottschalk, Brown elected to proceed pro se. His waiver of counsel was knowing and intelligent. And Brown requested the reappointment of counsel not at the start of the trial and not after the jury was chosen, but only after the State had presented evidence in its case-in-chief. At that point, Judge Fuld could reasonably conclude that granting Brown's mid-trial request for counsel would have required a continuance, thereby disrupting the trial and inconveniencing all parties involved. We conclude that Judge Fuld did not abuse his discretion when he declined to grant a mid-trial continuance. Brown's contention that Judge Fuld made prejudicial comments
See id. at 450.
Brown argues that Judge Fuld made a variety of comments in front of the jury that were unduly prejudicial. Brown focuses on a comment in which he contends Judge Fuld referred to him as "the burglar," but Brown also identifies other purportedly prejudicial comments.
Brown was identified as a suspect in the Hi-Tech burglary because his blood was found on and near a printer in the Hi-Tech office. The printer was located on a table near the broken window, a possible entry point for the burglar. The State's theory of the case was that the presence of Brown's blood on the printer placed Brown inside the office. In addition, Harry Buccilli, the owner of Hi-Tech, testified that the printer had been moved from its usual location, and he inferred that the person who had been inside the office and had stolen the property — i.e., the burglar — had moved the printer in an effort to climb back out the window. Brown contended that the blood could have gotten on the printer by spattering in through the window, and that the printer could have been moved by somebody else.
While the prosecutor was examining Buccilli and establishing a foundation for the admission of various photographs of the Hi-Tech office, Brown interrupted and put several questions to Buccilli in an attempt to establish where the printer was normally located and where it was located when Buccilli found it after the burglary.
Brown asked Buccilli how far the printer had been moved from its normal location, and Buccilli estimated about ten inches. As the prosecutor continued his direct examination, Brown spoke up and stated: "Your Honor, that printer in that office was obviously. . . moved around, Your Honor, obviously." In response, the judge stated: "Well, that's the testimony — by the burglar." Brown responded: "By the burglar? Come on, Your Honor, what kind of statement is that?"
A short time later, Judge Fuld instructed the jury as follows:
[T]he jury should disregard what I said about who moved — you decide who moved — I said whoever broke in moved the table. It could have been — I guess Mr. Brown objected. It could have been the police, or the witness who moved the table, so disregard anything I said about what moved the table.
Brown now argues that Judge Fuld's statement improperly commented on his guilt, and thus denied him due process and a fair trial. Brown contends that Judge Fuld's statement told the jury that Brown's observation that the printer had obviously been moved constituted "testimony" by "the burglar" — i.e., Brown.
We do not read the record this way. In context, Judge Fuld's comment responded to Brown's observation that the printer had been moved by pointing out that Buccilli had just testified that the burglar had moved the printer. It is apparent that Judge Fuld was not identifying Brown as the burglar. Shortly thereafter, Judge Fuld instructed the jury that the question of who might have moved the printer was a question for the jury.
Brown also contends that several other comments by Judge Fuld were so prejudicial as to deprive Brown of due process and a fair trial. Brown contends that Judge Fuld frequently "expressed his negative, scornful opinion of Brown in front of Brown's jury."
During Brown's opening statement, Judge Fuld stopped Brown from making a jury nullification argument. Brown argued with the judge about whether he was allowed to make such an argument. Judge Fuld asked Brown if he was done with his opening statement, and Brown said he was not. Judge Fuld then said "I'm not going to get into. . . a rambling argument, here." Judge Fuld also pointed out that Brown was making an argument, as opposed to merely outlining what he expected the evidence at trial to show. When Brown continued to make a jury nullification argument, Judge Fuld again explained that the jury could not disregard the law. Brown now argues that Judge Fuld's reference to his comments as "rambling" was prejudicial.
See Hartley v. State, 653 P.2d 1052, 1055 (Alaska App. 1982) (rejecting the doctrine of jury nullification).
Judge Fuld appropriately limited Brown's discussion of jury nullification during opening statements and acted within his discretion by steering Brown away from arguing the case instead of providing an opening statement. We conclude that Judge Fuld's characterization of a potential discussion with Brown about a well-supported ruling as "rambling" was not prejudicial.
During the State's redirect examination of Buccilli, Judge Fuld allowed Brown to ask Buccilli a few voir dire questions regarding the admissibility of an exhibit. After Judge Fuld determined that Brown did not have any objections to the admission of the exhibit, but instead wanted to ask general questions of Buccilli, the following exchange occurred:
The Court: All right, sit down, Mr. Brown. You'll get another chance. Sit down.
Brown: This ain't right, Your Honor. This ain't right.
The Court: Listen, Mr. Brown, because you don't have an attorney, you don't [have] a clue as to what is right and what is wrong. Now, stop saying it's not right, and sit down.
Brown: Oh, I'm going to sit down. I have to sit down.
The Court: Or you'll be done.
Brown argues that Judge Fuld impermissibly criticized or reprimanded Brown with these statements. A trial judge has the responsibility of "exercis[ing] reasonable control over the mode and order of interrogating witnesses and presenting evidence." Judge Fuld was therefore acting properly when he refused to allow Brown to continue questioning Buccilli in the middle of the prosecutor's redirect examination. Judge Fuld was also justified in instructing Brown to sit down after he had ruled that Brown could not ask Buccilli any more questions during the State's redirect examination. When Judge Fuld said that Brown did not have "a clue as to what is right and what is wrong," he had just corrected Brown on a point of procedure about which Brown appeared to have little awareness. And although in this situation the process may "have been better served by more temperate words," we conclude that Judge Fuld's blunt analysis of Brown's procedural knowledge was not prejudicial.
Hanson v. Hanson, 36 P.3d 1181, 1187 (Alaska 2001).
While Brown was cross-examining Anchorage Police Officer Noel Senoran, Judge Fuld told Brown that he was "mischaracterizing" and "misquoting" Senoran's testimony in framing his questions. Brown maintains that these comments were prejudicial.
Judge Fuld's observation followed Brown's attempt to establish through cross-examination of Officer Senoran that entry through the window opening would be impossible for a person of Brown's size. Officer Senoran had testified that a person of about the prosecutor's size could have entered through the window opening as Officer Senoran found it when he arrived on the scene. Brown then proceeded: "[S]o it would be hard for a person of [the prosecutor's] stature and size to get through the window. I'm a little bigger, so, it would be almost impossible for me to go through the window, right?" Officer Senoran responded "No." Brown tried again: "Okay, it would be hard for him to go through the window because it's not big enough. And I'm a little bigger than him, so it would be impossible for me — that's what I'm thinking. . . . Correct me if I'm w ro ng."
Judge Fuld interrupted and stated that Brown was "mischaracterizing" Officer Senoran's testimony because he had not heard Officer Senoran testify that it would be hard for the prosecutor to go through the window opening. Judge Fuld asked Officer Senoran whether he had said that. Officer Senoran agreed that he had not testified that it would have been hard for someone of the prosecutor's size to fit through the window opening. Judge Fuld told Brown that he was "misquoting" the testimony and told him to proceed.
A few minutes later, Brown contended that Officer Senoran "already answered that a person of my size couldn't have went through that window." Judge Fuld instructed the jury to "disregard [Brown's] misstatement of the testimony." Brown takes issue with Judge Fuld's statements.
A trial judge may properly question a witness in order to clear up any confusion created by the parties. Brown's questioning was sometimes hard to follow, and when Brown inaccurately summarized Officer Senoran's testimony, Judge Fuld interrupted and asked Officer Senoran to clarify the point. Judge Fuld determined that Brown's statements contradicted Officer Senoran's testimony, and when Brown continued to contend that the officer testified that Brown could not get through the window opening, Judge Fuld instructed the jury to disregard Brown's contention. To the extent that this may have been an improper comment on the evidence, we are convinced that any error was harmless beyond a reasonable doubt.
Cook v. State, 36 P.3d 710, 725 (Alaska App. 2001) (citing Commentary to Alaska Evidence Rule 614(a)).
Brown points to some other comments by Judge Fuld. We have examined the context of those comments. Brown persistently made argumentative comments while asking repetitive questions. Judge Fuld exercised reasonable control of a contentious litigant. We conclude that Judge Fuld's efforts to control the proceedings did not prejudice Brown's right to a fair trial.
Brown's objections to the prosecutor's final argument
Brown also argues that the prosecutor made several improper remarks during closing argument in the Hi-Tech trial. Brown argues that the prosecutor improperly told the jurors that they should "`do their job' and convict [Brown]." He further argues that the prosecutor made comments that were "calculated to inflame the passions and prejudices of the jury and to divert their attention away from the case at hand to the broader issue of burglary and its victims, in general, and the jurors, as individual victims themselves, in particular."
In his initial closing argument, the prosecutor argued as follows:
This set of circumstances — someone cutting themselves, bleeding inside the crime scene, leaving that most compelling of evidence — that doesn't come around very often, ladies and gentlemen. In voir dire you all talked about burglars. We talked about how many in the city get away. . . . The State has the burden to prove something beyond a reasonable doubt. You tell me? You think this evidence is enough for you? We caught this burglar. Don't let him get away.
And in rebuttal, the prosecutor argued as follows:
[Y]ou're educated, you're smart, you're responsible citizens in the community, I know that you all will look at the evidence and you'll do the right thing. I told you once before, and I'll say it again, you all know that in Anchorage there's a problem with burglary because so many of you have been victims of it. And so many of you know how difficult it is to catch a burglar. In this case, the unfortunate burglar cut himself, and left behind that oh so compelling evidence of his own DNA. He left it in a location that could have only been left if he had been inside. And knowing that he was inside tells you the whole story. Don't let him get away, ladies and gentlemen.
Because Brown did not object to the prosecutor's comments at trial, he must now show plain error. A plain error is one that is so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice. In reviewing the propriety of a prosecutor's closing argument, we review the entire closing argument and determine whether the comments appreciably affected the jury's verdict.
See Heaps v. State, 30 P.3d 109, 117 (Alaska App. 2001).
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1 (1985); Patterson v. State, 747 P.2d 535, 541 (Alaska App. 1987).
Brown argues that the prosecutor improperly diverted the jury's attention away from the facts in the case by referring to the larger problem of burglary in Anchorage, and improperly inflamed the jury's passions by directing their attention to their own personal experiences as burglary victims. Read in context, however, the prosecutor's argument signified something different.
When the prosecutor mentioned burglary in the city and in the jurors' own experiences, he was drawing a distinction between the "average" burglary case, which can be difficult to solve due to a lack of evidence police can use to track down the perpetrator, and this case, in which the "unfortunate burglar. . . left behind. . . compelling evidence of his own DNA." He emphasized that although many burglaries go unsolved, "[w]e caught this burglar."
Brown also argues that the prosecutor improperly exhorted the jurors to "`do their job' and convict [Brown]." Brown is correct that courts have traditionally found prosecutorial misconduct where a prosecutor indicates in summation that "the jurors would not be `doing [their] job as jurors' if they voted to acquit." But this was not the thrust of the prosecutor's argument.
Young, 470 U.S. at 30, 105 S. Ct. at 1054 (Brennan, J., concurring in part), cited in Potts, 712 P.2d at 393.
The prosecutor did express his hope that the jurors would "look at the evidence and do the right thing." In Williams v. State, we held that exhortation to jurors to "do their job" would be plain error only to the extent that it implied that the jury's "job" was to find the defendant guilty. In Williams, the prosecutor's comment encouraging the jurors to "do their job" "was tempered by the prosecution's simultaneous admonition to the jury to `look at the evidence and talk about the testimony.'" Here, the comment was made during the prosecution's rebuttal argument, after Brown had encouraged the jurors to disregard the judge's instructions, to fail to reach an agreement on a verdict, and to nullify the law. As in Williams, the statement to which Brown objects — encouraging the jurors to "do the right thing" — was referring to their duty to "look at the evidence" and fairly deliberate this case, not to a duty to convict Brown.
789 P.2d 365 (Alaska App. 1990).
Id. at 369.
Id.
The comments Brown objects to amounted to only a few words in the prosecutor's closing argument. The prosecutor's argument outlined the evidence presented, and emphasized the State's burden of proving guilt beyond a reasonable doubt. Viewing the final arguments as a whole, the prosecutor's comments, even if improper, did not appreciably affect the jury's verdict.
Conclusion
The judgment of the superior court is AFFIRMED.