Opinion
Court of Appeals No. A-10917 Trial Court No. 3AN-09-14649 CR No. 5881
09-19-2012
MARK A. JAIME, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Mark A. Jaime was convicted of second-degree theft, two counts of third-degree theft, and two counts of removal of identification marks. These convictions were based on evidence of four incidents in which Jaime was involved in stealing or attempting to steal electronic equipment from Best Buy and Wal-Mart stores. On appeal, Jaime argues that statements made by the prosecutor during the State's rebuttal argument amounted to an impermissible comment on his failure to testify. We find no plain error because the record does not suggest that the prosecutor's argument was intended to be an adverse comment on Jaime's failure to testify or that the jury would necessarily have understood it to be such a comment.
Background
On October 8, 2009, Jaime and another man were seen standing and talking in front of a computer display at a Best Buy store in Anchorage. Jaime walked out of the store, and the other man purchased a laptop computer, obtained a receipt, and also left the store. A short time later, Jaime re-entered the store and picked up a laptop computer. Jaime presented a receipt to a store employee at the front door and then left the store with the laptop computer (without paying for it).
On October 25, 2009, Jaime and another man were seen in the electronics department of a Wal-Mart store. The other man picked up a touchscreen computer and walked to the store's furniture aisle. Jaime placed a printer in his cart and walked to the store's hardware department. There, he flipped the printer box over and appeared to be cutting the UPC label from the box. Jaime then walked down the furniture aisle past the other man and exited the store.
A store employee who had been watching Jaime discovered that the UPC code was missing from the printer box in the cart that Jaime left in the store. After Jaime exited the store, the other man went to a check-out counter and appeared to purchase the touchscreen computer. But the store employees later discovered that the other man had used the missing UPC code to pay the lower price for the printer that Jaime had left in the store.
On December 12, 2009, Jaime returned to the Wal-Mart store. This time, he walked up to the lay-away table, picked up a box containing a television, and walked out of the store with the box without paying for it.
On December 24, 2009, Jaime was again seen in the Wal-Mart electronics department, this time with a computer monitor in his cart. Jaime pushed the cart to the computer section and met a man later identified as Damian Quinones. Quinones placed a touchscreen computer into Jaime's cart and then took the cart containing both the monitor and the touchscreen computer to another area of the store, where he rearranged the boxes in the cart and appeared to be tampering with the UPC label on one of the boxes. Quinones then walked away. The monitor was later discovered back on the shelf, but its UPC code had been cut off. The store personnel called the police, and Jaime was arrested in the store shortly thereafter.
At trial, the State presented evidence of each of these incidents through store employees and a number of still images taken from the stores' surveillance video footage. Jaime's defense at trial was that the State's case was based on misidentification and guilt by association. He claimed he was not in the stores on October 8th, October 25th, or December 12th and that the witnesses were mistaken in their identifications. Regarding the December 24th incident, Jaime claimed he was an innocent shopper and was being prosecuted simply because he was misidentified as Quinones's associate.
During the State's initial closing argument, the prosecutor stated that the State had the burden of proving the intent required for each of the charges. In the defense argument, Jaime's attorney contended that the State must prove that Jaime "actually had the specific intent in his head to promote or facilitate the commission of the crime[s]" and "the specific intent in his head to interfere with ownership of another." (Emphasis added.) The defense attorney also argued that the burden of proving Jaime guilty beyond a reasonable doubt was always on the government, and that "[a] defendant has the absolute right not to testify and you must not draw any inference against a defendant for not testifying."
During the State's rebuttal argument, the prosecutor responded to the defense attorney's comments about the defendant's state of mind:
There is a question about, how am I supposed to prove that Mr. Jaime intended to take ... these items from Wal-Mart or from Best Buy? I can't get into his head. I can't get into your heads. But there's an instruction for that; it's instruction six and number seven. It talks to you about the difference between direct and circumstantial evidence. Everybody knows that I can't prove what you were thinking unless you come out and tell me yourself. He's got a right not to testify and we all honor that. The burden is on me; it's not on him, it's not his responsibility. So, how then, do I prove what's going on in his head? Circumstantial evidence.Jaime's attorney did not object to the State's argument.
We look at the facts surrounding the case; the facts surrounding what he did on that particular day. And you make the reasonable conclusion on what a person intends to do when they walk out with a computer they didn't pay for. When they deliver a monitor to Mr. Quinones so that Mr. Quinones can take the UPC symbol off and do whatever he does to be able to purchase a computer for an improper price.
Following deliberations, the jury convicted Jaime of one count of second-degree theft, two counts of third-degree theft, and two counts of removal of identification marks. Jaime appeals his convictions, claiming that the prosecutor's remarks constituted an adverse comment on his failure to testify.
AS 11.46.130(a)(1).
AS 11.46.140(a)(1).
AS 11.46.260(b)(1); AS 11.46.260(b)(2).
Discussion
The Fifth Amendment to the United States Constitution and Article I, section 9 of the Alaska Constitution both forbid a prosecutor from commenting on a defendant's failure to testify at trial. However, the law forbids only those comments which suggest that jurors should draw an adverse inference from the defendant's silence. The test for determining whether a particular comment is improper is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."
Griffin v. California, 380 U.S. 609, 614-15 (1965); McCracken v. State, 431 P.2d 513, 517 n.10 (Alaska 1967); Hill v. State, 902 P.2d 343, 345 (Alaska App. 1995).
Lakeside v. Oregon, 435 U.S. 333, 338-39 (1978); Hill, 902 P.2d at 345-46.
McCracken, 431 P.2d at 517 (quoting Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955)).
Because Jaime did not object in the trial court, we review his claim for plain error. In order to establish plain error, (1) the error must not be the result of an intelligent waiver or a strategic decision not to object; (2) the error must affect substantial rights; (3) the error must be obvious; and (4) the error must be prejudicial. A constitutional violation (like the one Jaime alleges) that is obvious and not the result of an intelligent waiver or strategic decision will always be considered to affect substantial rights and will be prejudicial unless the State proves that the error was harmless beyond a reasonable doubt.
See Adams v. State, 261 P.3d 758, 770 (Alaska 2011).
Id. at 771.
Id. at 773.
The prosecutor's argument in this case was similar to the argument we considered in Hill v. State. In that case, the prosecutor was arguing that the defendant's out-of-court statement to the police was not credible:
902 P.2d 343 (Alaska App. 1995).
[Y]ou must understand that the police interview by the defendant was not capable of cross-examination and neither was it under oath. Okay. So just accept that when taking — when evaluating that statement and that evidence. Obviously the defendant does not have to testify in this case. That is his constitutional right ... .Hill objected in the trial court, so we reviewed his claim directly, rather than for plain error. We concluded that the prosecutor's argument did not constitute an adverse comment on Hill's failure to testify.
Id. at 345.
Id. at 346.
We first noted that the prosecutor's argument that Hill's out-of-court statement was not sworn or subject to cross-examination was not focused on Hill's failure to testify. We then addressed the prosecutor's statement that "Obviously the defendant does not have to testify in this case. That is his constitutional right." Although this was a direct comment on Hill's exercise of his right to silence, we concluded that it was not impermissible because the prosecutor neither expressly nor implicitly urged the jury to draw any negative inference from Hill's failure to testify. In reaching this conclusion, we found it important that the prosecutor's comment "was evidently made for a legitimate purpose: to prevent the jury from misconstruing the [prosecutor's] immediately preceding argument ... as an attempt to blame Hill for failing to testify."
Id. at 345.
Hill, 902 P.2d at 345.
Id. at 346-47.
Id.
The same reasoning applies to the prosecutor's argument in this case. The prosecutor's comment that "I can't get into his head. I can't get into your heads. ... Everybody knows that I can't prove what you were thinking unless you come out and tell me yourself" was not focused on Jaime's failure to testify. Several cases from other jurisdictions have held that similar comments about the difficulty of proving the defendant's mental state should not necessarily be taken as an adverse comment on the defendant's failure to testify.
See Windsor v. State, 683 So. 2d 1021, 1023 (Ala. 1994); State v. Matus, 486 P.2d 209, 210-11 (Ariz. App. 1971); Quarles v. State, 236 S.E.2d 139, 140 (Ga. App. 1977); State v. Atwood, 342 N.W.2d 474, 475-76 (Iowa 1984); Staley v. State, 887 S.W.2d 885, 895-96 (Tex. Crim. App. 1994).
Moreover, when the prosecutor made this statement, he was responding directly to the defense attorney's argument that the State had the burden of proving Jaime's "specific intent in his head." Where a prosecutor's comments are a "fair response" to arguments made by the defense attorney, there is no Fifth Amendment violation.
United States v. Robinson, 485 U.S. 25, 32 (1988); see Hilburn v. State, 765 P.2d 1382, 1390 (Alaska App. 1988).
As in Hill, the prosecutor also commented directly on Jaime's right to remain silent:
He's got a right not to testify and we all honor that. The burden is on me; it's not on him, it's not his responsibility. So, how then, do I prove what's going on in his head? Circumstantial evidence.
Viewed in the context of the prosecutor's argument, this remark conveyed to the jury that it should not draw an adverse inference from the prosecutor's preceding comments about using circumstantial evidence to prove Jaime's intent. Similar to the argument in Hill, the prosecutor was not urging the jury to draw an improper inference from Jaime's failure to take the stand.
As noted above, we review the argument in this case for plain error. In order to establish plain error, the defendant must show that the error is so obvious that it should have been apparent to any competent judge or attorney. We conclude that, when we view the prosecutor's argument in light of the discussion in Hill, this argument does not obviously amount to an adverse comment on Jaime's right not to testify.
Adams, 261 P.3d at 773.
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Conclusion
We therefore AFFIRM the superior court's judgment of conviction.