Opinion
Court of Appeals No. A-10299.
September 8, 2010.
Appeal from the Superior Court, Third Judicial District, Kenai, Anna Moran, Judge.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Richard G. Poage of second-degree assault and two counts of violating the conditions of his release. Poage now appeals his conviction, arguing that Superior Court Judge Anna Moran committed plain error by allowing testimony relating to Poage's statements to the Alaska State Troopers prior to his arrest. We conclude that Poage has not shown plain error because the testimony was arguably admissible and was not obviously prejudicial.
AS 11.41.210(a)(2).
AS 11.56.757(b)(1).
Background
On August 24, 2007, Richard Poage was living with Shane and Claudette David, and Claudette David served as his third-party custodian. Poage's girlfriend, Chelsee Martin, and the Davids' son also lived in the trailer. There were tensions in the trailer due to the tight living quarters and other disagreements. The Davids decided that Claudette would no longer act as Poage's third-party custodian and that Poage and Martin should move out.
After telling Martin that she needed to remove her belongings from the trailer, David went inside where his wife, Claudette, was cooking at the stove. What happened next was disputed at trial. Shane David testified that Poage came inside, apparently upset by what David had said to Martin, and told David: "you got a problem, let's take it outside." David testified that he ignored Poage and turned his head away, and that Poage then punched him in the back of the head. David fell to the ground, striking his face on an exposed beam — an injury that resulted in multiple fractures of David's facial bones and required surgery. Claudette David called the troopers and removed herself as Poage's third-party custodian.
Poage offered a different version of events. He testified that he entered the trailer and asked David to come outside to talk to him. Poage said that David refused and turned away, then suddenly turned back, lunging at Poage with a shiny, metal object in his hand. Poage testified that he swung at David, hitting him along the side of his face, and explained that he hit David to keep him away so he could leave the trailer.
At trial, Trooper Kyle Carson testified that he attempted to contact Poage on Poage's cellular phone after the assault, and Poage returned his call around 11:00 p.m. that night. Carson testified that Poage stated he was calling to tell Carson that he had hired an attorney and that Carson should talk to his attorney. Carson told Poage that he was a suspect in the assault, and Poage responded, "You've got the wrong guy. I don't know who hit who."
The prosecutor then asked Carson whether he told Poage about the status of the investigation. At that point, Poage's attorney objected that the trooper's testimony was infringing upon Poage's right against self-incrimination: "If he just remains silent in the face of questions — there's case law saying that that's improper to bring that out."
It appears that the trial judge overruled the objection, although when the prosecutor resumed this line of questioning Poage's attorney maintained a "running objection" that the questions had been "asked and answered." The trooper explained that after he revealed that he had witnesses accusing Poage of the assault, Poage said, "I don't know who, but I'm not going to talk to you about this any more." Trooper Carson testified that Poage refused to reveal his location, and asserted that he had not left the custody of his third-party custodian, but that she had left him.
The State then called Trooper Robert Hunter to the stand. Hunter testified that Poage had not contacted the authorities to report that he had been assaulted by Shane David: Poage's only contact with law enforcement between the time of the assault and his arrest a week later was the phone call to Trooper Carson.
In his closing argument the prosecutor argued that Poage's statements to Trooper Carson were inconsistent with his testimony at trial:
[Y]ou've got to go back to Mr. Poage's version of what happens. Not the night of the incident when I don't know who hit who and I don't know — or maybe Claudette hit Shane, and nothing about a knife, nothing about self-defense, none of that, even though he knows not only that the officer wants to talk with him about it but he initiates the call to the officer to talk about it.
Poage now appeals his conviction.
Discussion
Poage maintains that the trial court should have excluded the evidence of his prearrest silence based on Alaska Evidence Rule 403. Poage did not object on this basis at trial, so he must establish plain error to succeed on appeal. In order to establish plain error, Poage must show that (1) the error was so obvious that it should have been apparent to any competent judge or lawyer; (2) he had no apparent tactical reason for failing to object; and (3) the error was so prejudicial that failure to correct it would be manifestly unjust.
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
Poage's argument is based on Silvernail v. State. In that case, the State charged Silvernail and two other men with murder. Silvernail's defense was that the other men had forced him to cooperate with them. On appeal he argued that the trial court erred in allowing the State to present evidence that he failed to make any claim of duress to the police when he was detained immediately before his arrest. This court concluded that the prejudicial impact of Silvernail's silence outweighed the probative evidentiary value of such evidence. This court observed that "Silvernail was engaged by the police in a plainly confrontational setting," and that he "had no reason to believe that the officers who had stopped him were aware of [the] murder. . . ." The court noted that "it would hardly seem `natural under the circumstances,' for [Silvernail] to have disclosed his claim to the police."
777 P.2d 1169 (Alaska App. 1989).
Id. at 1170-71.
Id. at 1171.
Id. at 1172-74.
Id. at 1174.
Id. at 1178.
Id. (quoting United States v. Hale, 422 U.S. 171, 176, 95 S. Ct. 2133, 2136, 45 L. Ed. (1975)).
Unlike Silvernail, Poage was not engaged in a confrontational setting — he called Trooper Carson on the telephone. Poage knew that Carson was investigating the incident involving Shane David. Moreover, Poage's prearrest statements were arguably admissible and not so prejudicial that their admission was manifestly unjust.
First, Poage's statement to Carson — "You've got the wrong guy. I don't know who hit who" — was arguably admissible, and thus not plain error, because it was inconsistent with Poage's testimony at trial that he acted in self defense. A defendant may properly be impeached by prior statements that are inconsistent with the defendant's testimony attrial.
See Sidney v. State, 571 P.2d 261, 263-64 (Alaska 1977).
Second, Trooper Hunter's testimony — that Poage had not contacted the authorities to report that he had been assaulted — was also arguably admissible for impeachment purposes because it was inconsistent with Poage's trial testimony that he had been the victim of an assault. Cases from other jurisdictions suggest that it may be natural to expect a defendant to contact the police if the defendant has been the victim of a crime.
Cf. Dyer v. State, 666 P.2d 438, 446-47 n. 8 (Alaska App. 1983) (holding that evidence of the defendant's flight was admissible because it was inconsistent with his claim of self defense).
See People v. Collier, 393 N.W.2d 346, 351-52 (Mich. 1986) (holding that it was appropriate to allow the prosecution to question an assault defendant about his claim of self defense: "it is entirely natural and expected that one who has been robbed under the circumstances related by the defendant would report the crime to the police"); People v. Rothschild, 320 N.E.2d 639, 641-42 (N.Y. 1974) (holding that a police officer defendant would naturally be required to report that he had been bribed by the complaining witness); State v. Kennedy, 595 S.W.2d 836, 838-39 (Tenn. App. 1979) (holding that prosecutor could question defendant about why she did not tell the police who came to her home that she had been coerced into committing armed robberies).
Third, the testimony that Poage told Carson, "I'm not going to talk to you anymore," was not obviously inadmissible or prejudicial. Poage's statement was not a clear invocation of his right to remain silent, but rather could reasonably be interpreted as a statement terminating the phone call that Poage had placed to Carson. Moreover, Carson made only a brief and passing reference to Poage's statement in his testimony — a reference that was not prompted by the prosecutor's query. And the prosecutor did not refer to this testimony at any other point during the trial. This reference thus appears harmless when compared with the direct evidence of Poage's assault against Shane David.
Cf. Nashoalook v. State, 663 P.2d 975, 977-78 (Alaska App. 1983) (finding that the defendant did not invoke his right to silence because his concern was focused almost entirely on police efforts to tape record the interview).
See Van Hatten v. State, 666 P.2d 1047, 1056-57 (Alaska App. 1983) (holding that passing reference to the defendant's assertion of the right to silence during a custodial interrogation had no appreciable effect on the verdict).
Finally, the prosecutor's closing argument — pointing out the differences between Poage's prearrest statements and his trial testimony — was also arguably proper. Inconsistencies between a defendant's prior statements and his trial testimony are a proper basis for comment in closing argument.
Sidney, 571 P.2d at 263-64.
In a related context, we have asked whether prosecutorial comment "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." Here, the jury would not "naturally and necessarily" take the prosecutor's language to be a comment on Poage's silence. The prosecutor's argument focused on the differences between Poage's statement to Trooper Carson and his trial testimony, not on Poage's alleged assertion of his right to remain silent.
Hill v. State, 902 P.2d 343, 345 (Alaska App. 1995) (quoting McCracken v. State, 431 P.2d 513, 517 (Alaska 1967)).
Conclusion
We therefore AFFIRM the superior court's judgment.