Opinion
A-13323
08-25-2021
RANDY LEE LAROSE JR., Appellant, v. STATE OF ALASKA, Appellee.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kimberly Del Frate, Assistant District Attorney, Palmer, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Palmer, Trial Court No. 3PA-18-01249 CR John W. Wolfe, Judge.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kimberly Del Frate, Assistant District Attorney, Palmer, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
Randy Lee LaRose Jr. was convicted of misdemeanor assault against his fiancée, Angela Ozenna. Ozenna initially told the responding troopers that LaRose had choked her, pushed her, and punched her in the back. But at trial, she recanted her prior statements and claimed that LaRose had not choked her or caused her any injuries.
AS 11.41.230(a)(1). A jury found LaRose guilty of two counts of assault, under AS 11.41.230(a)(1) (recklessly causing physical injury) and AS 11.41.230(a)(3) (recklessly placing another person in fear of imminent physical injury). The court merged these two counts into a single conviction under AS 11.41.230(a)(1).
During defense counsel's cross-examination of Ozenna, Ozenna answered many of his questions by simply stating, "Correct." During closing argument, the prosecutor asserted that the majority of Ozenna's testimony was, "That's correct," and he argued that Ozenna "wasn't speaking for herself at that time."
Defense counsel objected to this argument. The attorney argued that the prosecutor's assertion that Ozenna "wasn't speaking for herself" suggested that defense counsel "was somehow tampering with the witness or colluding with her to get favorable testimony." The attorney requested a jury instruction clarifying that he had not tampered with Ozenna's testimony.
The district court denied LaRose's request, explaining that it had not interpreted the prosecutor's argument as a commentary on defense counsel's conduct, but instead as a permissible characterization of Ozenna's demeanor and credibility during cross-examination.
LaRose now appeals, arguing that the district court erred when it denied his request for a curative instruction and that this error requires reversal of his conviction.
We begin by noting that the prosecutor's comment did not directly impugn the conduct of defense counsel. When the prosecutor claimed that Ozenna "wasn't speaking for herself," he appeared, at least facially, to be commenting on Ozenna's credibility - i.e., asserting that Ozenna was less credible because she was simply agreeing with defense counsel and not telling her story in her own words. This is supported by the fact that the disputed comment was both preceded and followed by the prosecutor's request that the jury review the evidence to determine which of Ozenna's version of events to believe - as the prosecutor put it, "which story was more credible."
See Gunnerud v. State, 611 P.2d 69, 74 (Alaska 1980) ("[A] prosecutor's comments that have an evidentiary basis and are within the reasonable range of inferences deducible from the evidence will not be considered improper argument.").
But it is not difficult to understand why LaRose's attorney was concerned about how the prosecutor's statement would be interpreted by the jury. The prosecutor's statement that Ozenna "wasn't speaking for herself" invited the jury to speculate about whom Ozenna may have been speaking for, and how her alternative story came to be. By offering this statement alongside a discussion of how defense counsel cross-examined Ozenna, there was a risk that the jury would infer that defense counsel improperly influenced Ozenna's testimony. The curative instruction LaRose requested would not have meaningfully delayed the proceedings or imposed any burden on the court or the prosecution, and it would have eliminated the risk of misinterpretation about which defense counsel was understandably concerned.
See Smith v. State, 771 P.2d 1374, 1379 (Alaska App. 1989) (noting that it is "virtually always improper to suggest that defense counsel corroborated perjury").
But even assuming the district court abused its discretion in denying LaRose's request for a limiting instruction, we conclude that any error was harmless. The statement "she wasn't speaking for herself" was a single passing comment in an otherwise unobjectionable closing argument, and, as we have noted, it did not directly impugn the conduct of defense counsel.
Furthermore, Ozenna testified at trial that she first recanted her accusations during a call with the district attorney's office only two or three days after the incident, "once [LaRose] was already in jail and they were trying to find a lawyer for him." Neither party disputed this timing of events at any point during the trial. Given Ozenna's undisputed testimony that she recanted her allegations before counsel was appointed to represent LaRose, there is little reason to believe the jury would have credited any claim by the prosecutor that defense counsel had coached Ozenna regarding her testimony.
Moreover, Ozenna's testimony makes it clear that LaRose's attorney was not just "putting words in her mouth," as the attorney suggested. As an initial matter, Ozenna first indicated during her direct examination that the version of events she told the troopers was inaccurate. This direct examination included most of the key facts of the alternate version of events she gave at trial: that LaRose actually put his arm against her chest, not her neck; that LaRose did not impair her breathing; and that LaRose never raised his fist at her.
In addition, during cross-examination, defense counsel asked Ozenna several of open-ended questions, to which Ozenna provided her own answers. And when defense counsel asked about certain events, Ozenna offered additional clarifying details, and contradicted counsel when his account was not correct. Any risk of an unfair inference from the prosecutor's assertion that Ozenna "wasn't speaking for herself" was further reduced by the court's admonition to the jurors to disregard any argument that was contradicted by the evidence.
See Jackson v. State, 652 P.2d 104, 110 (Alaska App. 1982).
For these reasons, we conclude that, even assuming the court's failure to give a limiting instruction was error, that error was harmless.
The judgment of the district court is AFFIRMED.