Opinion
A-13003
08-11-2021
FRANK LEONARD NUNOORUK, Appellant, v. STATE OF ALASKA, Appellee.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 3AN-15-02789 CR Third Judicial District, Anchorage, Jack W. Smith, Judge.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
ALLARD JUDGE
Frank Leonard Nunooruk was convicted, following a jury trial, of first-degree sexual assault against G.S. (He was acquitted of second-degree sexual assault involving a different individual, J.K., in an earlier incident.)
AS 11.41.410(a)(1).
On appeal, Nunooruk raises four claims of error. The first two claims involve limitations on his cross-examination of G.S. and limitations on his cross-examination of a police officer who responded to G.S.'s 911 call. The remaining two claims involve testimony from the investigating officer about G.S.'s demeanor and facial expressions on the night she reported the assault, and about statements Nunooruk made to the officer. Nunooruk also argues that all of these errors entitle him to reversal under the cumulative error doctrine, even if each individual error was harmless.
For the reasons explained in this decision, we conclude that none of these claims of error, singly or collectively, require reversal of Nunooruk's first-degree sexual assault conviction.
Background facts and procedural history
In December 2013, after an evening of drinking, J.K. spent the night in a hotel room with her cousin, Frank Nunooruk. When J.K. awoke the next morning, her clothes had been removed, and Nunooruk was lying next to her in bed. Due to J.K.'s level of intoxication, she did not remember what had happened, but she felt "disgusted" and believed Nunooruk "probably took advantage of [her]." J.K. called 911 to report a possible sexual assault.
In a separate incident nearly a year later, in November 2014, G.S. called 911 to report that a man named "Frank" had just sexually assaulted her. At the time, G.S. did not know Frank's last name, but she later identified him from a photo lineup as Frank Nunooruk.
Nunooruk, whom G.S. had met about three weeks earlier, had offered to let her spend the night in his hotel room after she found herself homeless and with no other place to stay. Nunooruk bought food and alcohol for G.S., which they consumed together before G.S. fell asleep.
According to G.S., she awoke sometime later to find Nunooruk on top of her with his hand covering her mouth. Nunooruk removed G.S.'s pants and sexually penetrated her. After the sexual assault, Nunooruk fled the hotel room, leaving behind his shoes and socks, and G.S. called 911.
Forensic testing revealed sperm consistent with Nunooruk's DNA on vaginal swabs collected from both J.K. and G.S.
During a police interview, Nunooruk initially denied any sexual involvement with G.S., but he later asserted that they had a consensual "one night stand." According to Nunooruk, the situation was "all good until [he] asked her for a different position and she said no." Nunooruk admitted that what he had done "wasn't right," and he blamed what had happened on alcohol and "mixed signs." He also agreed with the detective that it was reasonable for G.S. to call the police, and that he would expect his daughter to call the police if the same thing happened to her.
Nunooruk was indicted on charges of first-degree sexual assault for the incident involving G.S., and second-degree sexual assault for the incident involving J.K.At trial, Nunooruk claimed that both women consented. A jury ultimately convicted Nunooruk of sexually assaulting G.S., but acquitted him of sexually assaulting J.K.
AS 11.41.410(a)(1) and AS 11.41.420(a)(3), respectively.
This appeal followed.
Nunooruk's claim that his right to confrontation was violated when he was not allowed to impeach G.S. with the fact that her boyfriend had been convicted of hitting her
At trial, Nunooruk argued that G.S. had a motive to lie about having consensual sex with Nunooruk to preserve her relationship with her boyfriend. During cross-examination, G.S. admitted that her boyfriend had a serious drinking problem and was not always very nice to her; in fact, the two had argued the night before the incident with Nunooruk. G.S. denied, however, that her boyfriend had ever hit her.
At this point in the cross-examination, the prosecutor objected. The parties discussed the objection at a bench conference:
Judge: The objection was relevance.
Defense Attorney: Judge, if she's afraid of her boyfriend and she's saying - and she does have consensual sex with [Nunooruk], if she's afraid of the boyfriend, she's got a motive to say something that was consensual wasn't.
Prosecutor: I mean, ask her if she's afraid of him. I don't know, we're counting every incident where they had a fight or if there's any potential domestic violence reported to the court.
Judge: I don't know if he'd gone there. He asked if [her boyfriend] had ever put hands on her and she said no. You're stuck with that answer. But you can ask if he believes there's a potential reason to be less than candid. I know (indiscernible) I'm not going to strike the answer, but you can't explore each individual incident. You can't (indiscernible). (End of bench conference)
Judge: All right. I'll overrule the objection.
After this exchange, and despite the fact that the court overruled the prosecutor's objection, Nunooruk chose not to ask any other questions about G.S.'s relationship with her boyfriend. He did not ask if G.S. was afraid of her boyfriend, or if her boyfriend had ever done anything to place her in fear of physical injury. He also never requested to introduce extrinsic evidence to impeach G.S.'s claim that her boyfriend had never hit her.
On appeal, Nunooruk argues that the trial court "violated Nunooruk's right to confrontation by prohibiting impeachment regarding G.S.'s potential motive to fabricate." The parties disagree as to whether Nunooruk preserved this claim of error, and thus whether this Court should review the trial court's ruling for an abuse of discretion or for plain error.
As we have previously held, "before a litigant can invoke the authority of an appellate court to reverse or vacate a trial court's decision, the litigant must demonstrate that they gave the trial judge reasonable notice of their request or objection, and gave the judge a reasonable opportunity to respond to that request or objection.""[A]bsent plain error, a party challenging a trial court's ruling may not rely on an argument or on evidence that was not brought to the trial court's attention at the time the trial court made its ruling."
Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011).
Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003); see also Alaska R. Evid. 103(a)(2) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.").
Here, Nunooruk did not give the trial court "reasonable notice of [his] request or objection." He did not ask G.S. questions about whether she feared her boyfriend, and he did not request to impeach G.S. Nor did he ever make any offer of proof regarding any impeachment material.
Pierce, 261 P.3d at 433.
Indeed, Nunooruk identifies for the first time on appeal the impeachment material he claims he would have presented at trial: judgments from four cases in which the boyfriend was convicted of assault or related charges involving G.S. We note that only one of the convictions Nunooruk identifies on appeal involved physical assault. The remaining convictions -two for apparently placing G.S. in fear of imminent injury, and one for violating conditions of release - may have been relevant for establishing that G.S. feared her boyfriend, but not for impeaching G.S.'s answer to the one question Nunooruk asked on this issue - that is, whether the boyfriend had ever "put his hands on [G.S.] before."
(We also note that the four assault convictions that Nunooruk proffers for this appeal were all committed in 2015 or 2017. As the State points out, the boyfriend's acts in 2015 and 2017 would not have influenced G.S. to accuse Nunooruk of sexual assault in 2014.)
In any event, given Nunooruk's failure to question G.S. further and his failure to present any impeachment request to the trial court, we conclude that Nunooruk failed to preserve his claim of error, and the claim is therefore reviewable only for plain error. Plain error is an error that: (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial. Here, the trial court had no reason to know that Nunooruk possessed undisclosed impeachment material. In these circumstances, the trial court's ruling did not constitute obvious error.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Nunooruk's claim that his right to confrontation was violated when he was not permitted to question a police officer about the possible destruction of field
Nunooruk next argues that the trial court erred in prohibiting inquiry into whether police officers had destroyed notes relevant to his case.
Nunooruk's claim concerns the testimony of Anchorage Police Officer Patrick O'Connor, one of the officers who initially responded to G.S.'s 911 call. Officer O'Connor was accompanied by Officer Behar, a recruit officer in training who was no longer with the Anchorage Police Department at the time of trial, and whom neither party called as a witness.
Officer O'Connor testified that he did not take notes or write a report based on his involvement in the investigation. He did not recall whether Officer Behar had taken any notes, although she did audio-record the officers' interaction with G.S. and later wrote a police report summarizing her involvement. During cross-examination, Nunooruk's attorney questioned Officer O'Connor about his note-taking practices. The following exchange occurred:
Defense Attorney: At this point in your career, how many notebooks would you say you've gone through?
Officer O'Connor: I - I do not know, sir.
Defense Attorney: Do you keep them all still?
Officer O'Connor: No, sir.
Defense Attorney: Do you have a system for disposing [of] them?
Prosecutor: Can we approach, Judge?
Judge: Yes.
(Bench conference as follows)
Prosecutor: I guess I'd like some kind of proffer as far as the relevance of this line of inquiry.
Defense Attorney: Well, Judge, as part of [Officer Behar's audio] recording, and it's kind of in low tones, where Officer O'Connor is speaking to Officer Behar about the way she kind of keeps her notes. And at some point he tells her about things become discovery unless you destroy it. So I'm just kind of interested if this is a normal course of action that they destroy discoverable material. And if it's something that either counsel or (indiscernible) to do -
Judge: Okay, but he said he wasn't making notes anyway. So I don't find this relevant and material. Okay?
Defense Attorney: Well, Judge, if he was telling her - advising her on how to keep the memo book, and he tells her if you write it down it's discoverable unless you destroy it, I think that's relevant. I will not -
Judge: Do you have -
Defense Attorney: - (indiscernible).
Judge: - any indication they could have - that the officer that was actually making the notes destroyed her notes?
Defense Attorney: I don't know.
Judge: Okay. I don't find it relevant and material.
Defense Attorney: Thank you.
(End of bench conference)
Judge: I'll sustain the objection.
Nunooruk subsequently asked two other officers who responded to the scene if they had created notes during the course of the investigation. Officer Kevin McDonald affirmatively stated that he did not take any notes. The other officer, Officer Robinson, could not recall whether he took notes, but he asserted that any notes would have been destroyed prior to trial. According to Officer Robinson, Anchorage police officers typically fill, and subsequently destroy, a notebook every two to three weeks, after transferring the substance of the notes to a police report. Nunooruk's attorney did not question Officer Robinson further about the destroyed notes or the Anchorage Police Department's policy of destroying field notes.
On appeal, Nunooruk argues that it was reversible error for the trial court to preclude him from asking those questions of Officer O'Connor. We agree that Nunooruk should have been allowed to pursue this line of inquiry, but we conclude that Nunooruk has failed to show that he was prejudiced by the court's ruling.
Nunooruk argues that the trial court's ruling prevented him from "present[ing] this information to the jury and ask[ing] [the jurors] to credit the inference that notes had been created and destroyed by [Anchorage police] officers." But the record refutes this claim. The jury heard this information through Officer Robinson - an officer with firsthand knowledge of his own note-taking practices and the likelihood that notes were destroyed in this case. Had Nunooruk wished to ask the jury "to credit the inference that notes had been created and destroyed," he certainly could have done so. The fact that Nunooruk did not make this argument, and did not request any sanction for the likely destruction of notes, undercuts his contention on appeal that the trial court's ruling prevented him from making an argument he otherwise would have made.
Nunooruk also argues that he should have been allowed to impeach Officer O'Connor with the statement he allegedly made to Officer Behar that "things become discovery unless you destroy it" - not just to establish the creation and destruction of notes during the investigation, but also to establish Officer O'Connor's personal bias and credibility.
Nunooruk characterizes the substance of Officer O'Connor's statement to Officer Behar in the recording as undisputed. However, Officer O'Connor denied hearing this statement in the portion of the recording Nunooruk's attorney asked him to review. The trial court did not ultimately resolve whether Officer O'Connor in fact made any such statement.
A defendant is entitled to "broad latitude" in cross-examining a witness about potential bias. However, "the question of what specific questions will be allowed and what specific evidence will be admitted is entrusted to the trial judge's discretion, and [this Court] will not reverse the trial judge's ruling absent a showing that this discretion has been abused." "An abuse of discretion occurs only when the jury did not otherwise receive information adequate to allow it to evaluate the bias and motives of a witness."
Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988); see also Alaska R. Evid. 613(a) ("[E]vidence of bias or interest on the part of a witness [is] admissible for the purpose of impeaching the credibility of a witness.").
Beltz v. State, 895 P.2d 513, 518 (Alaska App. 1995).
Stumpf, 749 P.2d at 901.
Here, Nunooruk had the opportunity to impugn the integrity of the Anchorage Police Department based on their apparent policy of destroying field notes, and he failed to take advantage of it. More importantly, Officer O'Connor's personal role in the investigation was minimal. As the State notes, Officer O'Connor's testimony was brief, and added little of substance to the evidence against Nunooruk. Given this, we conclude that any error with regard to the cross-examination of Officer O'Connor was harmless beyond a reasonable doubt.
See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (explaining that errors in evidentiary rulings that infringe constitutional rights require reversal unless they are harmless beyond a reasonable doubt).
Nunooruk's claim that the trial court erred in allowing Detective Thomas's "micro-expressions" testimony
Nunooruk's next claim of error concerns the testimony of Detective Chris Thomas, who testified about his contact with G.S. on the night she reported the sexual assault. Detective Thomas testified that he would "never forget" G.S.'s demeanor: distraught, crying, and "just very upset." When asked why his memory of G.S. was so vivid, Detective Thomas explained:
So I, as part of - so I studied deception detection just kind of in general just because I really enjoy learning about it. And I've studied micro-expressions to a certain degree. And at that time I was reading a book by a gentleman named Paul Ekman who kind of pioneered that work in micro-expressions. And so when I was talking with [G.S.]
Before Detective Thomas could finish his answer, Nunooruk's attorney objected. Outside the presence of the jury, the court warned Detective Thomas not to opine about G.S.'s veracity, but ruled that Detective Thomas could explain why G.S.'s demeanor was memorable to him. Once the jury returned, Detective Thomas continued with his answer:
I'd been learning about a subject matter, about facial expressions, and the facial expressions that [G.S.] made . . . registered very clear disgust and sadness. And I'd just been reading about sort of the reliable muscles in the face that trigger when those emotions occur.
The State did not ask any follow-up questions and did not reference "micro-expressions" again at any point during the trial. Nunooruk referred to this portion of Detective Thomas's testimony during closing argument, characterizing Detective Thomas as having lost objectivity because he was so affected by G.S.'s "twitching facial muscles."
On appeal, Nunooruk argues that the detective's testimony regarding G.S.'s "micro-expressions" improperly vouched for the reliability of G.S.'s emotions and should not have been permitted by the trial court. "This Court has repeatedly condemned allowing a witness to act as a 'human polygraph' - i.e., allowing a witness to offer a personal opinion about the credibility of another witness's prior statements or testimony." Such a lay opinion is particularly problematic "when the testifying witness is a law enforcement officer, because 'jurors may surmise that the police are privy to more facts than have been presented in court, or [jurors] may be improperly swayed by the opinion of a witness who is presented as an experienced criminal investigator.'"
Kim v. State, 390 P.3d 1207, 1209 (Alaska App. 2017); see also Rodriquez v. State, 741 P.2d 1200, 1204 (Alaska App. 1987) ("Testimony by an expert witness that purports to establish by scientific principles that another witness is telling the truth treads on dangerous legal ground.").
Kim, 390 P.3d at 1209 (alteration in original) (quoting Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998)).
The State argues that the detective's testimony was permissible demeanor testimony. "Lay witnesses (i.e., witnesses with no psychological expertise) are generally allowed to testify about another person's apparent mental state if the witnesses' conclusions are 'rationally based on [their] perception . . . [and are] helpful to a clear understanding of [their] testimony or the determination of a fact in issue.'"
Markgraf v. State, 12 P.3d 197, 199 (Alaska App. 2000) (alterations in original) (quoting Alaska R. Evid. 701).
We agree that Detective Thomas's testimony regarding G.S.'s general demeanor was permissible. Detective Thomas testified that G.S. was distraught, crying, and "very upset" when describing the sexual assault - observations independently corroborated by the other officers who responded to the 911 call.
However, by linking these observations to his study of micro-expressions and characterizing G.S.'s demeanor as the product of "reliable" muscle movements, Detective Thomas improperly cloaked his observations in an "aura of scientific insight and infallibility," reinforced by his status as a trained and experienced criminal investigator. This was error that should not have been permitted by the trial court.
Nighswonger v. State, 1992 WL 12153670, at *4 (Alaska App. Dec. 9, 1992) (unpublished); cf. Leanne ten Brinke et. al., Crocodile Tears: Facial, Verbal and Body Language Behaviours Associated with Genuine and Fabricated Remorse, 36 Law & Hum. Behav. 51, 52 (2012) (noting that "little research has been conducted to substantiate" the theory of micro-expressions).
However, the error is reversible only if it was prejudicial - i.e., if the error appreciably affected the jury's verdict. We conclude that it was not prejudicial for two primary reasons. First, the testimony regarding the micro-expressions was brief and was not relied on by the prosecutor in closing argument. After the statement was made, in fact, it was never referred to again, except by Nunooruk's attorney in closing when he scoffed at the detective's "twitching facial muscles" hypothesis. Second, the overall import of the testimony - that G.S. was visibly distraught after calling 911 - was corroborated by at least two other witnesses who responded to the scene immediately after the incident.
Love v. State, 457 P.2d 622, 631-32 (Alaska 1969).
We further note that the court instructed the jury at multiple points during trial that they were the sole judges of the credibility of witnesses. These instructions would have helped cure any prejudice associated with Detective Thomas's erroneous "micro-expressions" testimony because G.S. testified and the jury was in a position to judge G.S.'s credibility for itself.
In sum, given the way in which this case was presented and argued to the jury, we conclude that Detective Thomas's reference to the reliability of micro-expressions - although error - did not appreciably affect the jury's verdict in this case.
Nunooruk's claim that the trial court erred in allowing Detective Thomas's testimony regarding Nunooruk's interrogation statements
Nunooruk also challenges other aspects of Detective Thomas's testimony. In particular, Nunooruk challenges Detective Thomas's commentary on his interview with Nunooruk, and the way the detective characterized the purpose of his questions and Nunooruk's responses.
This claim arises because, at trial, the prosecutor did not simply play the relevant portions of Nunooruk's interview for the jury. Instead, he supplemented the recording with commentary from Detective Thomas before and after each clip. At the beginning of his testimony, Detective Thomas detailed his training in various interrogation methods and "deception detection." The detective then followed up this description of his "expertise," with a primer on the differences between an interview and an interrogation, and he testified that the contact with Nunooruk began as an interview, but developed into an interrogation when Nunooruk persisted in denying that he had sex with G.S. The detective testified that an interrogation starts with "positive confrontation," in which the officer declares that the act occurred and puts forward a rationalization for the offense that the subject of the interrogation is more likely to agree to than just a straight accusation. The detective later explained that he used this technique with Nunooruk by suggesting that alcohol may have been responsible for the "misunderstanding."
During the detective's discussion of interrogation techniques, the prosecutor asked the detective if he was ever worried about false confessions. The detective testified that false confessions "don't actually occur very frequently" and that the "hallmarks" of false confessions are when the person has been in custody for ten to twelve hours or the person is a minor. The detective further testified that he is always aware of "red flags" that signal a false confession, and he claimed that "there were none in this case."
Nunooruk did not object to this testimony. Nor did he object to Detective Thomas's discussion of the purpose of interrogation or most of the detective's commentary and narration of his interview with Nunooruk. However, on appeal, Nunooruk argues that the detective's testimony constituted impermissible "quasi-scientific" opinion testimony that usurped the jury's role as factfinder and improperly characterized Nunooruk's statements as inculpatory and reliable.
We agree that there were aspects of this testimony that were objectionable, and that Detective Thomas's testimony often came close to the type of "human polygraph" testimony that we have previously condemned.
See Kim, 390 P.3d at 1209; Sakeagak, 952 P.2d at 282; Flynn v. State, 847 P.2d 1073, 1076 (Alaska App. 1993).
As a general matter, it is inappropriate for an officer to "interpret" a defendant's statements to the jury, unless the statements involve specialized code or slang that cannot be understood by lay people. As the First Circuit has noted, the dangers of such testimony include the possibility that the police witness "may usurp the jury's function by effectively testifying as to guilt rather than merely providing building blocks for the jury to draw its own conclusion." There is also the concern that while the police witness may be drawing inferences about the defendant's statements that the prosecutor would be permitted to make during closing argument, the police witness is doing so with the "imprimatur" of testifying as a law enforcement officer and with the unfair advantage of seemingly testifying as a "fact" witness.
See United States v. Albertelli, 687 F.3d 439, 447-48 (1st Cir. 2012) (upholding police officer's testimony interpreting otherwise oblique statements in wiretaps because officer had investigated the criminal organization for years and was able to identify the sources of information that provided his explanation for his interpretations).
Id. at 447. The First Circuit identified five different dangers that this type of testimony presented: (1) "the testimony may effectively smuggle in inadmissible evidence;" (2) "the witness may be drawing inferences that counsel could do but with advantages as to timing, repetition and the imprimatur of testifying as a law enforcement officer;" (3) "the witness may usurp the jury's function by effectively testifying as to guilt rather than merely providing building blocks for the jury to draw its own conclusion;" (4) "the witness may be unable to point to any rational basis for the interpretation offered or be doing nothing more than speculating;" and (5) "the witness may act as a summary witness without meeting the usual requirements." Id.; see also Sakeagak, 952 P.2d at 282 (noting the danger that the jury may be "improperly swayed by the opinion of a witness who is presented as an experienced criminal investigator" or "may surmise that the police are privy to more facts than have been presented in court").
Albertelli, 687 F.3d at 447.
But because Nunooruk did not object to the bulk of Detective Thomas's commentary and narration of his interview with Nunooruk, he must show plain error on appeal.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
We do not find plain error here. Although Detective Thomas's testimony sometimes veered into improper opinion testimony, he did not directly testify to his assessment of Nunooruk's veracity or guilt. Importantly, this was not a case where the defendant was claiming that his initial denials were true or that his later admission that he had sex with G.S. was a false confession. Instead, at trial, Nunooruk's attorney acknowledged that Nunooruk's initial denials of having sex with G.S. were false, and he urged the jury to credit as true Nunooruk's later statements - in which he attributed the misunderstanding that arose between him and G.S. during sex as the product of "alcohol" and "mixed signs."
Contrast United States v. Hill, 749 F.3d 1250, 1255-57, 1264 (10th Cir. 2014) (concluding that the trial court committed plain error in allowing an officer to repeatedly attack the defendant's veracity by characterizing the defendant's interview answers as nonsense, deceptive, and not consistent with the assertions of an innocent person).
Moreover, the record shows that the court expressly told the jurors during Detective Thomas's testimony that they should not be swayed by Detective Thomas's opinions regarding Nunooruk's statements. At one point, Detective Thomas testified that Nunooruk's explanation that he did not initially realize that G.S. did not want to have sex was "ridiculous." Nunooruk's attorney objected to this testimony, and the trial court sustained the objection and struck the detective's answer. The trial court explained to the jury that the detective's characterization of what he thinks is "ridiculous" is "not what he's supposed to be up here telling you about." And the court again instructed the jurors that they were to determine the credibility of the witnesses and what the evidence shows for themselves.
Lastly, we note that the weight of the State's evidence in this case was strong. Forensic evidence confirmed the presence of Nunooruk's semen in a vaginal swab taken from G.S. within hours of the reported assault, despite Nunooruk's initial denials that he and G.S. had ever engaged in any sexual activity. The evidence also showed that G.S. immediately reported the incident, calling 911 in the middle of the night from a hotel room registered under Nunooruk's name - a hotel room that Nunooruk fled prior to the arrival of the police, leaving behind his shoes and socks. Multiple witnesses also confirmed that G.S. was "distraught" and "very upset" when recounting the incident. Moreover, as the prosecutor pointed out during closing argument, Nunooruk repeatedly changed his story during the course of the interview, initially denying any sexual relations with G.S. and then claiming a consensual one-night stand. Nunooruk also admitted that he felt bad about what had happened, and agreed that he would expect his daughter to call the police if anything similar ever happened to her.
Thus, given the circumstances presented here, and the repeated instructions that the jury received regarding judging the evidence for itself, we conclude that Detective Thomas's improper opinion testimony and commentary on his interview with Nunooruk, although objectionable, did not rise to the level of plain error.
Nunooruk's cumulative error claim
Nunooruk also argues that even if the individual errors in his case were harmless, we should still reverse his conviction under the cumulative error doctrine. The cumulative error doctrine "applies only when real errors have been identified and the remaining question is whether these errors, in combination, were so prejudicial as to undermine the trustworthiness of the underlying judgment (even though each error, taken individually, might not require reversal)."
State v. Savo, 108 P.3d 903, 916 (Alaska App. 2005).
Nunooruk argues that the errors in his case "compounded the prejudicial impact of each [other] and ultimately created a distorted presentation of evidence." Having reviewed the trial in its entirety, we conclude that the errors do not undermine the trustworthiness of Nunooruk's conviction and do not entitle him to reversal under the cumulative error doctrine.
See Crawford v. State, 337 P.3d 4, 34-35 (Alaska App. 2014).
Conclusion
The judgment of the superior court is AFFIRMED.