Opinion
Court of Appeals No. A-10453.
June 22, 2011.
Appeal from the District Court, Third Judicial District, Palmer, John W. Wolfe, Judge, Trial Court No. 3PA-08-2318 Cr.
Sarah T. White, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, Palmer, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Georgian R. Young scratched the manager of a grocery store when the manager tried to detain her for stealing groceries. For this conduct, Young was convicted of fourth-degree assault.
In this appeal, Young argues that her trial judge should have declared a mistrial after the prosecutor elicited testimony that Young declined to speak to a state trooper after the trooper advised her of her Miranda rights. For the reasons explained in this opinion, we find that the trial judge could reasonably conclude that this error could be adequately corrected with a jury instruction, and that no mistrial was required.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Underlying facts
Joseph Muñoz, the assistant manager of Three Bears (a grocery store on the Palmer-Wasilla highway), observed a man and a woman leaving the store with unbagged packages of meat in the bottom of their shopping cart. Muñoz knew that the store clerks ordinarily bagged every item that was purchased at the store, so he directed one of the store's employees, Carrie Leneave, to ask the couple to produce a sales receipt for the groceries.
Leneave caught up with the couple in the parking lot, while the man was loading the groceries into a car. When Leneave asked the man to show her the receipt for the groceries, he replied that he had given the receipt to his companion (Young). Young started digging in her purse for the receipt, but she said she needed more light, so Leneave and Young walked back to the grocery store.
While Young was unsuccessfully attempting to locate the receipt in her purse, her male companion drove off with the groceries. Young then tried to leave as well, but Muñoz told Young that she had to wait for the troopers to arrive. At one point, Muñoz grabbed the strap of Young's purse; in response, Young dug her nails into Muñoz's hand, leaving a scratch on his knuckles.
Young was charged with third-degree theft (for stealing the groceries), as well as fourth-degree assault for recklessly causing physical injury to Muñoz when he attempted to detain her.
During Young's trial on these charges, the prosecutor presented the testimony of several state troopers who responded to the grocery store. For purposes of this appeal, the pertinent aspect of the troopers' testimony concerns Young's invocation of her right to silence.
During Trooper Alfred Borrego's testimony, the prosecutor asked him if he spoke to Young. Borrego responded, "No. She declined to be interviewed." Young's attorney moved to strike this testimony, and District Court Judge John W. Wolfe instructed the jurors to disregard the prosecutor's question and the trooper's answer.
In a bench conference that followed, Young's attorney moved for a mistrial. Judge Wolfe ultimately denied this motion: he found that the prosecutor had not purposely elicited Borrego's remark, and he further concluded that the jurors would not necessarily view Young's refusal to be interviewed as an invocation of her right to silence. Judge Wolfe noted that, according to the testimony, Young had already talked to at least one other officer. The judge suggested that, given this testimony, the jurors might conclude that "[Young] may have just been tired of it."
Judge Wolfe offered to give the jurors a curative instruction, but Young's attorney declined the judge's offer. The defense attorney commented that "the cure [would be] worse than the disease," and he stated that he would prefer not to focus the jury's attention on the challenged testimony.
Later in the State's case, Trooper Pierre Burkett testified that Young told him that the man who drove off with the groceries was named Richard Williams. Burkett then said that, after he escorted Young to Trooper Borrego's vehicle, Borrego "read [Young] her Miranda rights, and then he asked her if she wanted to answer any questions, [and] she said `no'."
Young's attorney did not immediately object to Burkett's testimony, but during a bench conference that followed, the defense attorney asserted that this testimony had prejudiced Young. Judge Wolfe again ruled that a curative instruction would be adequate to cure any prejudice, and he offered to give one, but the defense attorney again declined a curative instruction.
During the defense case, Young took the stand. She testified that she paid Richard Williams twenty dollars to drive her to the Three Bears grocery to pick up a prescription at the pharmacy. Young said that, when she came out of the store with her prescription, she saw Williams standing next to his car talking to Leneave. Young got into the car, and then Leneave asked her to produce her receipt. Young assumed that Leneave was referring to the pharmacy receipt. She said she followed Leneave back to the store and looked for the receipt in her purse, but could not find it. She told Leneave that she must have left the receipt in the car, but when they went out to the parking lot, Williams's car was gone. Young said that Leneave refused to let her use a telephone, so she tried to cross the street to use a pay phone to arrange a ride home. Young said that she just wanted to take her medication and go home to bed, and she declared that nobody told her that the troopers had been summoned.
Young testified that, as she was leaving, someone grabbed her from behind. She thought that someone was trying to snatch her purse, and she began to struggle, but then she stopped struggling when she realized it was Muñoz. Young conceded that, at that point, she was told that the troopers were coming to the store, and that she would have to wait.
Young stated that she did not intend to scratch Muñoz's hand. She explained that she was just reacting to being grabbed, and that she apologized to Muñoz afterwards.
The jury acquitted Young of stealing groceries, but they convicted her of the assault on Muñoz. Young's attorney then filed a motion for a new trial.
In that motion, the defense attorney conceded that the prosecutor had not deliberately elicited the testimony concerning Young's assertion of her right to silence, and the defense attorney further conceded that the prosecutor had not referred to the impermissible testimony in the State's closing argument. But the defense attorney argued that Young was nevertheless prejudiced by the improper testimony because it bolstered the prosecutor's argument that Young's physical resistance to the store employees' efforts to detain her was evidence of her consciousness of guilt.
When Judge Wolfe denied Young's mistrial motion, he explained his ruling by noting that the jury's decision to acquit Young of the theft charge "[was] strongly indicative of the[] harmlessness of [the troopers'] references", and by further noting that Young's defense to the assault charge was self-defense, rather than an outright denial that she used force against Muñoz. Why we conclude that Judge Wolfe did not abuse his discretion when he denied Young's request for a mistrial
On appeal, the State concedes that it was improper for the troopers to testify about Young's refusal to speak to them after she received Miranda warnings. The question is whether this improper testimony required a mistrial.
See Gunnerud v. State, 611 P.2d 69, 76 (Alaska 1980): "evidence of silence in the face of custodial interrogation by [the] police is not properly admissible in a trial", quoting Coleman v. State, 553 P.2d 40, 53 (Alaska 1976) (Boochever, C.J., and Rabinowitz, J., concurring).
As we have explained, the trial judge granted the defense attorney's request to strike the first of the two challenged references (Trooper Borrego's testimony), and presumably the trial judge would have granted a defense request to strike the second reference (Trooper Burkett's testimony) if the defense attorney had asked him to do this. In addition, the trial judge twice offered to give the jury a curative instruction on this issue — presumably, an explanation that the suspect in a criminal investigation has a constitutional right not to speak to the police until they have consulted an attorney, and that Young's decision should not be held against her. The defense attorney rejected both of the judge's offers.
Given the fact that the trial judge was willing to grant these lesser remedies, and given the fact that a judge's decision to deny a motion for mistrial is reviewed for abuse of discretion, Young can prevail in this appeal only if she shows that no reasonable trial judge could have concluded that these lesser remedies were sufficient.
Moffitt v. State, 207 P.3d 593, 602 (Alaska App. 2009), citing Nygren v. State, 616 P.2d 20, 22 (Alaska 1980).
Judge Wolfe found that the prosecutor did not intentionally elicit the improper testimony. And, as we noted earlier, when Young's defense counsel asked for a mistrial, the defense attorney did not challenge Judge Wolfe's finding. The defense attorney also acknowledged that the prosecutor never referred to the impermissible testimony in his closing argument to the jury. Accordingly, we conclude that Young failed to preserve the argument she now makes on appeal, that the prosecutor was "careless and reckless" in eliciting this testimony.
In several cases involving improper comment on a defendant's right to silence, this Court has ruled that a timely curative instruction was sufficient to cure the prejudice. Here, we reach the same conclusion.
Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002); Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App. 1989); Windham v. State, Alaska App. Memorandum Opinion and Judgment No. 4606 (August 14, 2002), 2002 WL 1842952 at *2; Tupek v. State, Alaska App. Memorandum Opinion and Judgment No. 2164 (February 6, 1991), 1991 WL 11650686 at *1. See also Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981) (noting the general rule that "where the trial judge withdraws improper testimony from the jury's consideration, such an instruction is presumed to cure any error which may have been committed by [the] introduction [of this testimony]").
The improper testimony was potentially prejudicial to Young's defense because the jury might infer, from Young's reluctance to be questioned by the troopers, that she was conscious of her own guilt. This potential prejudice obviously did not influence the jury's decision regarding the theft charge, because the jury acquitted Young of that charge.
With respect to the assault charge, we note (as did Judge Wolfe) that Young argued self-defense. Young testified that she thought someone was trying to snatch her purse, and that she acted in response to this perceived theft attempt. In the defense attorney's summation to the jury, he argued that Muñoz was not justified in detaining Young for theft, and that any force Muñoz used for that purpose was unlawful. Thus, according to the defense attorney, Muñoz used unlawful force against Young when he grabbed her purse, and Young was therefore entitled to use force to free herself from Muñoz's grasp and to retain her purse.
In other words, the crux of Young's defense to the assault charge was that Muñoz acted unlawfully when he grabbed Young's purse — because Muñoz's belief that Young had committed a theft was not reasonable. Even if the jurors inferred that Young exercised her right to silence because of a consciousness of guilt, that inference would have no direct bearing on the jury's assessment of Young's claim that Muñoz acted unlawfully when he grabbed her purse.
Moreover, as Judge Wolfe observed, the jury's decision to acquit Young of theft strongly indicates that the jury did not infer a consciousness of guilt from Young's refusal to speak to Trooper Borrego.
For these reasons, Judge Wolfe could reasonably conclude that a mistrial was not required, and that lesser remedies were sufficient to cure the problem. Accordingly, the judgement of the district court is AFFIRMED.