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Savo v. State (8/12/2016) ap-2511

Savo v. State (8/12/2016) ap-2511

                                                                                NOTICE
  

              The text         of   this opinion can be corrected before the opinion is published in the                             

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                                

              errors to the attention of the Clerk of the Appellate Courts:    



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                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



JOSHUA  SAVO,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-11742  

                                                                                                                                                              

                                                      Appellant,                                      Trial Court No. 3DI-13-101 CR  



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE  OF  ALASKA,  



                                                      Appellee.                                          No. 2511 - August  12, 2016  

                                                                                                                                                        



                           Appeal   from   the   District   Court,   Third   Judicial                                               District,  

                                                                                                                                   

                           Dillingham, Patricia L. Douglass, Judge.  

                                                                                             



                           Appearances:   Hanley R. Robinson, Anchorage, under contract  

                                                                                                                                     

                           with the Public Defender Agency, and Quinlan Steiner, Public  

                                                                                                                                        

                           Defender,  Anchorage,  for  the  Appellant.                                          Jack R.  McKenna,  

                                                                                                                                 

                           Assistant District Attorney, Anchorage, and Craig W. Richards,  

                                                                                                                                   

                           Attorney General, Juneau, for the Appellee.  

                                                                                                                



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                    

                           Superior Court Judge.*  

                                                                         



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


----------------------- Page 2-----------------------

                          Joshua Savo was charged with, and ultimately convicted of, two crimes:                                                                          



                                                                                                                                            1  

 fourth-degree assault and interfering with a report of domestic violence.                                                                      



                          Before trial, Savo's attorney gave notice that he would present a defense  

                                                                                                                                                         



 of self-defense.  But just prior to jury selection, at the behest of the prosecutor, Savo's  

                                                                                                                                                           



trial judge issued an unusual ruling: she prohibited the defense attorney from mentioning  

                                                                                                                                                    



 anything about self-defense during jury selection and during his opening statement.  The  

                                                                                                                                                                



judge concluded that it would be improper to have the jurors hear anything about this  

                                                                                                                                                                  



proposed defense until later in the trial, after the defense attorney had actually introduced  

                                                                                                                                                     



 evidence that was sufficient to support a jury instruction on self-defense.  

                                                                                                                                                



                          The judge's rulingwas a significant error. It prevented the defense attorney  

                                                                                                                                                         



 from questioning the prospective jurors regarding self-defense - while at the same time  

                                                                                                                                                                



 giving the prosecutor free reign to question the jurors about the State's theory of the case.  

                                                                                                                                                                          



 In addition, by requiring the defense attorney to avoid mentioning self-defense in his  

                                                                                                                                                                   



 opening statement,  the  judge's  ruling made  it  falsely  appear  as  though  the  defense  

                                                                                                                                                         



 attorney had come up with the idea of self-defense at the last moment, during the trial  

                                                                                                                                                                 



 itself.  

              



                          We therefore reverse Savo's convictions.  

                                                                                    



             A more detailed look at this case  

                                                                      



                          Three days  before Savo's trial, the prosecutor filed a motion in limine  

                                                                                                                                                            



 asking the judge to completely preclude Savo from pursuing a claim of self-defense.  In  

                                                                                                                                                                    



this  motion, the prosecutor argued that there was no view of the evidence that could  

                                                                                                                                                              



possibly justify a claim of self-defense.  

                                                                              



       1     AS 11.41.230(a)(1) and AS 11.56.745(a), respectively.                                                  



                                                                                - 2 -                                                                           2511
  


----------------------- Page 3-----------------------

                                                                                                                       

                     The prosecutor's motion was frivolous. The State's own pre-trialdisclosure  



                                                                                                                               

included  information  that  Savo's  girlfriend  had  punched  him,  and  that  Savo  had  



                                                                                                                                       

telephoned the police (from a closet) to report that his girlfriend had assaulted him.  



                                                                                                                               

Thus, even before the defense presented any evidence of its own, it was obvious that  



                                                                                     

there was evidence to support a claim of self-defense.  



                                                                                                                             

                     What the prosecutor really argued in her motion was that no juror could  



                                                                                                                                

possibly believe a claim of self-defense - i.e., no reasonable juror could believe that  



                                                                                                                             

Savo's girlfriend was the initial aggressor or, even if she was, no reasonable juror could  



                                                                            

believe that Savo's response was proportionate.  



                                                                                                                              

                     These were matters for the jury - and the trial judge should simply have  



                                          

denied the State's motion.  



                                                                                                                            

                     But  instead  of  denying  the  State's  motion  outright,  the  trial  judge  



                                                                                                                         

temporized.  The judge declared that there was no reason to decide immediately whether  



                                                                                                                                  

Savo would be allowed to litigate a claim of self-defense; instead, the judge decided to  



                                                                                                                         

defer her decision on this matter.  But she ruled that, in the meantime, Savo's attorney  



                                                                                                                           

was precluded from mentioning self-defense in any fashion until he was ready to present  



                                                                                                                               

evidence of self-defense. Even then, the judge declared, the defense attorney would have  



                                                                                                                             

to argue the matter outside the presence of the jury, so that the judge could issue a ruling  



                                                                                                                                  

on the State's motion in limine before the defense attorney presented any evidence of  



                                      

self-defense to the jury:  



                       

                                                                                                       

                               The Court:  [Regarding the State's] motion in limine  

                                                                                                           

                     to preclude a [defense of] self-defense:  I don't need to rule  

                                                                                                             

                     on  that  [motion  until]  such  time  as  the  defense  puts  on  

                                                                                                                  

                     evidence  of  self-defense.                 Then  that  will be  appropriate.  

                                                                                                                  

                     But make sure that you understand, Mr. [Defense Attorney]:  

                                                                                                     

                     there  will be  no  mention  of  self-defense  in  your  opening  

                                                                                                            

                     [statement] or [at] any other time until we've addressed this  



                                                               - 3 -                                                          2511
  


----------------------- Page 4-----------------------

                                                                                                             

                    motion in limine.  And so, if at some point you're ready to  

                                                                                                            

                    put on evidence of self-defense, then you need to alert the  

                                                                                                             

                    Court, and we will address this motion out of the presence of  

                                   

                    the jury.  



                                                                                                                           

                    The trial judge apparently based her decision on the rule that a jury should  



                                                                                                                      

not  be  instructed on self-defense at the conclusion of a trial unless there is sufficient  



                                                                                                                                

evidence to support a verdict in the defendant's favor on the claim of self-defense.  



                                                                                                                        

                    But  the  judge  mistakenly  interpreted  this  rule  to  mean  that  a  defense  



                                                                                                                               

attorney is barred from mentioning self-defense,  and  is  barred from presenting any  



                                                                                                                                

evidence of self-defense, until the attorney has made an offer of proof  regarding the  



                                                                                                                 

evidence that  will support the claim of self-defense,  and the judge has affirmatively  



                                                                                                                  

concluded that this evidence is sufficient to support a jury verdict in the defendant's  



                                                        

favor on the claim of self-defense:  



                                                                                                          

                               The Court:  [T]he rules are very clear, as is the case  

                                                                                                        

                    law, that in order to present self-defense, there must be some  

                                                                                                      

                     ... evidence showing self-defense.   And ... until that "some  

                                                                                                 

                    evidence" is presented, ... you can't argue it.  So obviously,  

                                                                                                    

                     ... you can't present it in your opening [statement], because  

                                                                                                                

                    you haven't [yet] presented some evidence of self-defense.  



                                                                                                        

                               As I said, when the trial starts and evidence is being  

                                                                                                             

                    put on - whether it's during the [State's] case-in-chief ... or  

                                                                                                             

                    during your cross-examination of [the State's] witnesses, or  

                                                                                                           

                    in your own case - [and] you come to the point where you  

                                                                                                             

                    want to put on evidence of self-defense, then you need to let  

                                                                                                         

                    the Court know.  We'll clear the courtroom, [and] we'll have  

                                                                                                         

                    a hearing on the [State's] motion in limine, and then we'll  

                                                                                                

                    proceed after a ruling at that point. And that's the appropriate  

                                          

                    way to do it.  



                                                               - 4 -                                                          2511
  


----------------------- Page 5-----------------------

                                           It is true that unless "some evidence" of self-defense is presented during the                                                                                                                                                  



trial (   i.e., evidence sufficient to allow reasonable jurors to find in the defendant's favor                                                                                                                                                                     



on the claim of self-defense), the jurors should not be instructed on self-defense, and the                                                                                                                                                                                



                                                                                                                                                                                                                                                                  2  

defense attorney can be prohibited from arguing self-defense during summation.                                                                                                                                                                                          But  



                                                                                                                                                                                                                                                                             

this rule applies at the conclusion of the trial, after all the evidence has been received -  



                                                                                                                                                                                                                                                               

when the judge can make informed rulings as to what legal doctrines the jurors should  



                                                                                                                                                     

and should not consider when they deliberate.  



                                                                                                                                                                                                                                                                     

                                           This rule does not give a judge the authority to prohibit an attorney from  



                                                                                                                                                                                                                                                                                        

mentioning their theory of the case during jury selection or during opening statement.  

                                                                                                                                        3  a trial judge should normally wait until the  

                                                                                                                                                                                                                                                                          

As this Court suggested in Clarke v. State,  



close of the evidence and then, if the evidence does not provide a legally sufficient basis  

                                                                                                                                                                                                                                                                     



for a self-defense verdict, the trial judge should simply instruct the jury that the doctrine  

                                                                                                                                                                                                                                                           



of self-defense does not apply to the defendant's case.  

                                                                                                                                                                                



                                           We acknowledge that trial judges have considerable discretion to limit the  

                                                                                                                                                                                                                                                                           



questions asked during jury selection, and to restrict the content of the attorneys' opening  

                                                                                                                                                                                                                                                            



statements, if (1) there is a significant dispute as to what evidence will be admissible at  

                                                                                                                                                                                                                                                                               



trial, or whether a particular claim or defense can lawfully be presented at trial, and if  

                                                                                                                                                                                                                                                                                



(2) it is not possible to resolve this dispute before the parties begin their presentation of  

                                                                                                                                                                                                                                                                              



evidence.  

                                 



           2         See Shane v. Rhines                                             , 672 P.2d 895, 901 (Alaska 1983) (holding that a trial judge can                                                                                                                     



properly forbid an attorney from arguing legal theories "having no bearing on the facts at                                                                                                                                                                                      

hand", and which "might tend to distract or confuse the jury");                                                                                                                             Clarke v. State                                 , unpublished,   

2009 WL 3681650, *5 (Alaska App. 2009) (holding that a trial judge may properly forbid                                                                                                                                                                            

a defense attorney from arguing self-defense when there is insufficient evidence to justify                                                                                                                                                                      

a jury instruction on self-defense).                                                                        



           3  

                                                                                                                                                                                                                                                                 

                      Clarke v. State, unpublished, 2009 WL 3681650, *2, *5 (Alaska App. 2009).  



                                                                                                                                    - 5 -                                                                                                                               2511
  


----------------------- Page 6-----------------------

                                                                                                                             

                     But in Savo's case, Savo's attorney had given pre-trial notice of his intent  



                                                                                                                          

to argue self-defense, and even the evidence already known to the State provided support  



                                                                                                                         

for this claim of self-defense.  In the State's motion in limine, the prosecutor basically  



                                                                                                                                  

asserted that any claim of self-defense would be implausible.  But "implausibility" is no  



                                                             

legal bar to the presentation of a claim.  



                                                                                                                                  

                     More importantly, the trial judge gave Savo's attorney no opportunity to  



                                                                                                                    

resolve this issue before jury selection and opening statements took place.  



                                                                                                                             

                     The State asserts that the trial judge invited the defense attorney to make  



                                                                                                                                

an immediate offer of proof (in advance of jury selection) describing the evidence that  



                                                                                                                           

would support Savo's claim of self-defense.  But the record does not support the State's  



                 

assertion.  



                                                                                                                             

                     Rather, as can  be  seen from the judge's ruling quoted above, the judge  



                                                                                                                             

apparently believed that she could make no decision on this issue until "the trial starts  



                                                                                                                                

and evidence is being put on".  Based on this belief, the trial judge concluded that she  



                                                                                                                        

had to preclude the defense attorney from mentioning self-defense during jury selection  



                                                                                                                               

and during his opening statement - because jury selection and opening statements take  



                                                                                      

place before the parties begin to present their evidence.  



                                                                                                                                    

                     All of this was error.  And this erroneous ruling prejudiced the defense:  it  



                                                                                                                                

improperly restricted the defense attorney's ability to question the prospective jurors, and  



                                                                                                                       

it likewise improperly constrained the defense attorney's opening statement.  



                                                                                                                                

                     The restrictions on jury voir dire were obviously prejudicial to Savo.  His  



                                                                                                                            

defense  attorney  could  reasonably  have  wished  to  question  the  prospective  jurors  



                                                                                                                         

regarding their attitudes toward situations where a man claims self-defense in a domestic  



                                                                                                                            

violence situation - for instance, whether some of the jurors believed that a man should  



                                                                                                                     

never strike a woman, even in self-defense.  Or the defense attorney could reasonably  



                                                                                                                                 

have  wished  to  question  the  jurors  regarding their  knowledge  of  Savo  himself  -  



                                                               - 6 -                                                          2511
  


----------------------- Page 7-----------------------

                                                                                                                           

whether, because of previous acquaintance or community reputation, some of the jurors  



                                                                                                                                

might be inclined to reject out of hand any assertion that Savo acted in self-defense.  



                                                                                                                           

                    We note that although the trial judge restricted the defense attorney's ability  



                                                                                                                        

to question the prospective jurors about the defense theory of the case, the judge allowed  



                                                                                                                              

the prosecutor full rein to question the jurors about the State's theory of the case.  For  



                                                                                                                                  

instance, the prosecutor asked the jurors whether they felt that domestic violence was a  



                                                                                                                             

significant problem in the region, and the prosecutor also asked the jurors whether they  



                                                                                                                       

could "imagine that [a] person who beat somebody ... up might call the cops because  



                                                                                                                            

they think they have a better chance of getting away with it if they call the cops".  



                                                                                                                    

                    With regard to the limitation on the defense attorney's opening statement,  



                                                                                                                     

the trial judge's ruling created the possibility that when the defense attorney ultimately  



                                                                                                                            

argued self-defense during his summation at the end of the trial, the jurors might have  



                                                                                                                          

thought that this theory of defense was a new theory concocted during the trial - when,  



                                                                                                                                     

in fact, Savo's attorney had given notice before trial that this would be Savo's defense.  



                                                                                                 

                    For these reasons, we reverse Savo's convictions.  



          Conclusion  



                                                                                                    

                    The judgement of the district court is REVERSED.  



                                                              - 7 -                                                          2511
  

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