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Adams v. State (3/1/2019) ap-2639

Adams v. State (3/1/2019) ap-2639

                                                                              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:    



                                                   303 K Street, Anchorage, Alaska  99501  

                                                                   Fax:  (907) 264-0878  

                                                        E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                    



JACKIE  RUSSELL  ADAMS,  

                                                                                                                                               

                                                                                                     Court of Appeals No. A-11450  

                                                                                                                                                             

                                                     Appellant,                                   Trial Court No. 3AN-12-1048 CR  



                                        v.  

                                                                                                                      O P I N I O N  

                                                                                                                                             

STATE  OF  ALASKA,  

                                                                                          

                                                     Appellee.                                          No. 2639 - March 1, 2019  

                                                                                                                                                    



                           Appeal   from  the   Superior   Court,  Third  Judicial                                                District,  

                                                                                                                                 

                           Anchorage, Larry D. Card, Judge.  

                                                                              



                           Appearances:   Marjorie Mock, under contract with the Public  

                                                                                                                                      

                           Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                              

                           Anchorage,  for  the  Appellant.                             Tamara E.  deLucia,  Assistant  

                                                                                                                                 

                           Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                                                            

                           Craig   W.   Richards                       (initial        brief)         and   Jahna   Lindemuth  

                                                                                                                            

                           (supplemental   brief),   Attorneys   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-----------------------

                      Jackie       Russell        Adams          appeals        his     conviction          for      second-degree  



              1  

murder.                                                                                                                       

                Among other things, Adams asserts that he is entitled to a new trial because,  



                                                                                                                                   

during the State's closing argument, the prosecutor openly suggested that if the jurors  



                                                                                                                                     

returned an erroneous verdict, this verdict would be corrected later by the courts.  



                                                                                                                                       

                      We agree with Adams that the prosecutor's argument was improper, and  



                                                                                                                            

we  further  conclude  that  this  improper  argument  requires  reversal  of  Adams's  



                    

conviction.  



                                

           Background facts  



                                                                                                                                   

                      Adams was convicted of second-degree murder for stabbing and killing  



                                                                                                            

Andrew Wilson at the Inlet Inn in Anchorage in January of 2012.  



                                                                                                                                

                      On the evening in question, both men had been among the people drinking  



                                                                                                                               

in Adams's hotel room.   After Wilson spit onto the carpet, Adams physically escorted  



                                                                                                                                       

Wilson out of the room and locked the door (leaving Wilson in the hallway).  From the  



                                                                                                                                       

hallway, Wilson kicked the door twice.   Adams opened the door and came out of the  



                                                                                        

room, into the hallway, where he and Wilson tussled.  



                                                                                                                                              

                      Eventually, the two men stopped fighting, and Adams returned to his room.  



                                                                                                                                    

But a little later, Wilson kicked the door again. This time, when Adams opened the door,  



                                                                                                                                 

there was another scuffle.  At the end of this scuffle, Adams re-entered the room holding  



                                                                                                                                

a steak knife, and he declared that he had stabbed Wilson.   Wilson was in fact stabbed  



                                                                                   

in the stomach, and he later died from this wound.  



                                                                                                                                       

                      At trial, Adams's attorney conceded that Adams stabbed Wilson, but the  



                                                                                                                                       

defense attorney contended that Wilson had been drunk and violent, and that Adams had  



      1    AS 11.41.110(a)(1) or (2).                 



                                                                  - 2 -                                                              2639
  


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

                                                                                                                                   

stabbed Wilson in self-defense,  or in defense of the other people in the room,  or in  



                                                                              

defense of the premises against a violent intruder.  



                                                                                                                 

                     The jury rejected these defenses and found Adams guilty of second-degree  



               

murder.  



                                                                                                          

           Facts relating to the prosecutor's improper argument to the jury  



                                                                                                                      

                     At  the  close  of  Adams's  trial,  during  the  defense  closing  argument,  



                                                                                                                    

Adams's attorney discussed the jury instruction defining the concept of "reasonable  



                                                                                                                                   

doubt."          This  instruction  (Alaska  Criminal Pattern  Jury  Instruction  1.06)  stated  in  



                

pertinent part:  



                       

                                                                                                              

                               Proof beyond a reasonable doubt must be proof of  

                                                                                                            

                     such  a  convincing character  that,  after  consideration,  you  

                                                                                                               

                     would be willing to rely and act upon it without hesitation in  

                                                     

                     your own important affairs.  



                                                                                                                                  

                     During his summation, Adams's attorney urged the jurors to equate the  



                                                                                                                                  

concept of "proof beyond a reasonable doubt" with the kind of convincing proof that the  



                                                                                                                            

jurors would require before deciding to withdraw life support from a loved one:  



                       

                                                                                                         

                               Defense Attorney :  [Proof beyond a reasonable doubt  

                                                                                                             

                     requires you to have] the same degree of confidence that you  

                                                                                                            

                     would have to have in ... another important affair in your life,  

                                                                                                        

                     and to act without hesitation in that important affair.  

                                      

                               .   .  .  



                                                                                                                   

                               Important affairs in your life,  ladies and gentlemen.  

                                                                                                 

                     What would those be?  ... Well, important affairs presumably  

                                                                                                            

                     would be ... the same types of stakes that we're dealing with  

                                                                                                        

                     here:  things where you have to make a decision that cannot  

                                         

                     be changed.  



                                                                - 3 -                                                          2639
  


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

                                      

                               .  .  .  



                                                                                                           

                               Permanent, irreversible decisions.  ...  That's the type  

                                                                                                     

                     of decision you're about to make in this case.   ...   There's  

                                                                                                             

                     only one really good example I can think of, frankly.  ...  



                                                                                                     

                               [Objection by the prosecutor; the trial judge declines  

                                                     

                               to intervene]  



                                                                                                              

                               [Defense  Attorney  continues :]                   Important  affairs  in  

                                                                                                              

                    your life.  Potentially, ladies and gentlemen, one example of  

                                                                                                                  

                    that might  be terminating life support for a loved one.                                 ...  

                                                                                                           

                     It's  a  decision,  an  extremely  important  decision,  that  you  

                                                                                                              

                    may have to make at some point in your life.  Maybe some of  

                                                                                                                  

                    you have already had to make that decision; I don't know.  

                                                                                                             

                     But it's an important affair in your life.   It's permanent; it's  

                                                                                                            

                     irreversible.   That's analogous to the decision that you are  

                                                                          

                    being asked to make in this case.  



                                                                                                                     

                    As  noted  in this excerpt from the trial transcript,  when the prosecutor  



                                                                                                                                       

objected  to  the  defense  attorney's  argument,  the  trial judge  declined  to  intervene.  



                                                                                                                        

Instead, the judge told the prosecutor that he would simply caution the jury to disregard  



                                                                                                                               

any arguments of counselthat misstated the law.  But the judge never indicated, one way  



                                                                                                                       

or the other, whether he thought that the defense attorney's argument actually misstated  



              

the law.  



                                                                                                                       

                     Havingreceived this response from the trial judge, the prosecutor addressed  



                                                                                                                      

this issue in  her  rebuttal summation.   She told the jurors that the defense attorney's  



                                 

analogy was wrong:  



                      

                                                                                                  

                               Prosecutor :  [The defense attorney] talked repeatedly  

                                                                                                              

                     about this term "permanent and irrevocable", and [argued to  

                                                                                                         

                    you that] ...  you should equate [your decision in this case]  

                                                                                                                  

                    to your life's [decisions] that are permanent and irrevocable.  



                                                               - 4 -                                                          2639
  


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

                                                                                                           

                    I would disagree.  I think everybody in this room knows that  

                                                                                                    

                    there's  a  number  of  procedures  after  this  court  hearing  

                                     

                    happens.  



                                                                                                       

                               Your decision is an important one, and I [by] no means  

                                                                                                

                    mean to trivialize the burden of proof beyond a reasonable  

                                                                                                           

                    doubt.  It's a high burden.  But if he wants, Mr. Adams can  

                                                                                                            

                    ask the judge to set aside the verdict.  He can appeal it to the  

                                                                                                        

                    Court of Appeals.   You know that there's a Supreme Court  

                                                                                                   

                    after that.  It is not a permanent and irrevocable ... decision.  



                                                                                                                             

                    At this point, Adams's attorney objected.  He argued that the various ways  



                                                                                                                              

in which the trial result might later be judicially altered "are not considerations the jury  



                                                                                                                               

should be thinking about."  In response, the judge cautioned the jurors to disregard any  



                                                                                                                          

arguments  of  counsel that  misstated  the  law.                          But,  just  as  in  the  preceding bench  



                                                                                                                               

conference, the judge gave the jurors no indication as to whether he thought that the  



                                                                  

prosecutor had, in fact, misstated the law.  



                                                                                                                              

                    Having received this response from the trial judge,  the prosecutor then  



                                                                       

restated her point (without further objection):  



                      

                                                                                                          

                              Prosecutor :          [Your  verdict]  is  not  permanent  and  

                                                                                                                 

                    irrevocable, the way it is when you decide to kill a loved one.  

                                                                            

                    Don't let that hyperbole skew your decision.  



                                                                                                               

                    Following  deliberations,  the jury found Adams guilty of second-degree  



murder.  



                                                               - 5 -                                                          2639
  


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

               Why we conclude that both the prosecutor's and the                                                              defense attorney's   

              arguments were improper            



                            The   concept   of   "proof   beyond   a   reasonable   doubt"   is   difficult,   if   not  



impossible,   to define with precision.                                         At the time of Adams's trial,                                    Alaska   Criminal  



Pattern Jury Instruction 1.06 defined "proof beyond a reasonable doubt" as evidence                                                                               



which, upon consideration, is so convincing that a person would be willing to act upon                                                                                   



it,   without   hesitation,   in   their   own   important   affairs.     We   recently   criticized   this  

formulation in                Roberts v. State                  , 394 P.3d 639, 644 (Alaska App. 2017).                                               2  



                            Here, when Adams's defense attorney delivered his summation to the jury,  

                                                                                                                                                                           



he urged the jurors to equate the concept of "proof beyond a reasonable doubt" with the  

                                                                                                                                                                              



kind of convincing proof that the jurors would require before deciding to withdraw life  

                                                                                                                                                                              



support from a loved one.  

                                              



                            This argument was improper because it suggested that the jurors should  

                                                                                                                                                                       



decide Adams's case as if they had a powerful, if not overwhelming, personal interest  

                                                                                                                                                                     



in the outcome.   The defense attorney told the jurors that they should not be satisfied  

                                                                                                                                                                   



with the State's evidence unless it was so convincing that they would be willing to act  

                                                                                                                                                                              



on it,  without hesitation, when making a decision that was fraught with emotion and  

                                                                                                                                                                            



which would have irrevocable and irremediable consequences for one or more people  

                                                                                                                                                                      



whom they loved.  

                                       



                            When the prosecutor objected to the defense attorney's argument, it would  

                                                                                                                                                                        



have been better if the trial judge had told the jurors that the defense attorney's argument  

                                                                                                                                                                 



was improper for these reasons, and if the judge had reminded the jurors that they had  

                                                                                                                                                                             



been  selected  precisely  because  they  were  capable  of  being disinterested  judges  of  

                                                                                                                                                                               



Adams's case - capable of deciding Adams's guilt or innocence without having their  

                                                                                                                                                                           



       2      This pattern instruction was later amended in light of our decision in                                                                Roberts .   



                                                                                      - 6 -                                                                                2639
  


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

                                                                                                                                                                                                                                   3  

decision "influenced by sentiment, prejudice,                                                                                                                                [or] passion."                                             Indeed, the jurors had                                                  



taken an oath to abide by this standard.                                                                      



                                                 But   after the prosecutor obtained no remedy from the trial judge,                                                                                                                                                                                            she  



responded to the defense attorney's argument with improper argument of her own.                                                                                                                                                                                                              



                                                 When the prosecutor addressed the defense attorney's argument                                                                                                                                                                            duringher   



rebuttal, the prosecutor did not focus solely on the impropriety of the defense attorney's                                                                                                                                                                                               



analogy (a decision whether to withdraw life support from a loved one).                                                                                                                                                                                                        Instead, the   



prosecutor also urged the jurors not to view their decision as final - assuring the jurors                                                                                                                                                                                                              



that, if they made a mistake, the trial judge or an appellate court would fix it later.                                                                                                                                                                                                                    This  



argument was almost certain to mislead the jurors regarding the importance and finality                                                                                                                                                                                                              



of their decision.                                             



                                                 It is true that trial judges have the authority to vacate a jury's verdict and                                                                                                                                                                                 



grant a new trial under Alaska Criminal Rule 33(a) based on "any claim of trial error or                                                                                                                                                                                                                              



pretrial error that would                                                                    justify reversal of [the] conviction", or based on the judge's                                                                                                                                       

assessment that the verdict is against the clear weight of the evidence.                                                                                                                                                                                         4  



                                                 But this authority is circumscribed.  For example, when a defendant claims  

                                                                                                                                                                                                                                                                                                       



that the jury's verdict is against the weight of the evidence, a judge may grant a new trial  

                                                                                                                                                                                                                                                                                                                



only if the judge concludes that the jury's verdict is manifestly against the weight of the  

                                                                                                                                                                                                                                                                                                                  



evidence -  i.e.,  that the jury's view of the evidence "is plainly  unreasonable and  

                                                                                                                                                                                                                                                                                                                



                               5  

unjust."                                  Likewise,  claims  that  a  verdict  should  be  overturned  based  on  newly  

                                                                                                                                                                                                                                                                                                      



             3           Alaska  Criminal  Pattern  Jury  Instruction   1.07  (2011).   



            4           Angasan v   .  State,  314 P                                                           .3d   1219,   1222 (  Alaska  App.  2013).   



             5            White  v.  State,  298 P                                                   .3d  884,  885 (  Alaska  App.  2013),  quoting   Taylor  v.  State,  262  



P.3d  232,  234 (  Alaska  App.  2011).   



                                                                                                                                                        - 7 -                                                                                                                                                   2639
  


----------------------- Page 8-----------------------

 discovered   evidence   "are   not   favored   by   the   courts,   and   ...   are   viewed   with   great  



                     6  

 caution."    



                              An  appellate  court  has  even  less  authority  to  second-guess  a  jury's  

                                                                                                                                                                                 



weighing of the evidence.  An appellate court must uphold a jury's verdict unless, even  

                                                                                                                                                                                     



viewing the evidence (and all reasonable inferences to be drawn from it) in the light most  

                                                                                                                                                                                     



 favorable to the jury's verdict,  no reasonable person could have concluded that the  

                                                                                                                                                                                        



                                                                         7  

 government had proved its case.  

                                                                            



                              In other words, even though our legal system provides certain avenues for  

                                                                                                                                                                                         



 challenging a jury's verdict, there are significant limits on judicial authority to interfere  

                                                                                                                                                                             



with a jury's decision.  The prosecutor was technically correct in saying that the jury's  

                                                                                                                                                                                  



 decision was not as final and irrevocable as a decision to withdraw life support.  But the  

                                                                                                                                                                                         



prosecutor's  argument  was  materially  misleading to  the  extent  it  suggested  that  the  

                                                                                                                                                                                       



judiciary could correct any mistake the jurors made.  That is simply not true.  

                                                                                                                                                                           



                              In addition, the prosecutor's remarks could be interpreted as downplaying  

                                                                                                                                                                    



the importance of the jury's decision.  One implication of the prosecutor's remarks is the  

                                                                                                                                                                                       



 suggestion that, if the jurors were having a difficult time deciding whether the State had  

                                                                                                                                                                                       



proved Adams's guilt, they could simply return a mutually agreeable verdict and then  

                                                                                                                                                                                     



trust that things would be sorted out later by the courts.  

                                                                                                                            



        6      Angasan , 314 P.3d at 1222.                                   See also            Wayne R. LaFave, Jerold H. Israel, Nancy J.                                                



 King, and Orin S. Kerr,                         Criminal Procedure                          (4th ed. 2015),  24.11(d), Vol. 6, p. 739:                                               



        Courts are naturally skeptical of claims that a defendant [who was] fairly convicted,                                                                     

        with proper representation by counsel, should now be given a second opportunity                                                                         

        because of new information that has suddenly been acquired.                                                                    ...   Accordingly, rather   

        exacting standards have been developed for the motion for new trial based on newly                                                                                  

        discovered evidence.                         



        7  

                                                                                                                                                           

               See, e.g., Morrell v. State , 216 P.3d 574, 576 (Alaska App. 2009).  



                                                                                           - 8 -                                                                                      2639
  


----------------------- Page 9-----------------------

                     The    courts    of    several    other    jurisdictions    have    found    this    type    of  



prosecutorial    argument    to    be    reversible    error.       For    example,    in    Johnson    v.  

         8  the  Maryland Court of Appeals (that state's highest court) ruled that a similar  

State,                                                                                                                     



argument entitled the defendant to a new trial.  

                                                                        



                     In  Johnson,  the  defense  attorney  urged  the  jury  to  "think  very,  very  

                                                                                                                              



carefully" before reaching its verdict, because a verdict "is not exchangeable" and "not  

                                                                                                                               

                                    9   In rebuttal,  the prosecutor told the jurors  that  the defense  

returnable tomorrow."  

                                                                                                                         



attorney  "[was]  not  being  quite  honest  [with]  you"  when  the  defense  attorney  

                                                                                                                        

characterized the verdict as final. 10                     The prosecutor told the jurors that the defense  

                                                                                                                          



attorney's assertion was misleading because a defendant can appeal a guilty verdict, and  

                                                                                                                                



because "[a defendant has] rights of the appeal [that] go all the way up to the [United  

                                                                                                                          



                                       11  

States] Supreme Court."  

                                           



                     The Maryland high court concluded that the prosecutor's argument was  

                                                                                                                                



reversible error:  

                          



                       

                     The message conveyed by the  [prosecutor's] remarks was  

                                                                                                           

                     plain ... .   The implication  was that the jurors need not be  

                                                                                                             

                     unduly concerned about convicting Johnson.   If the convic- 

                                                                                                      

                     tion turned out to be improper, it may be wiped out on appeal  

                                                                                                        

                     ... .  One of the most egregious errors counsel can make is to  

                                                                                                              

                     attempt to put the responsibilities of the jurors on some other  

                                                                                                          

                     body.  

                               



Johnson, 601 A.2d at 1096.  

                                             



     8     601 A    .2d   1093,   1098 (  Md.   1992).  



     9    Johnson ,  601 A        .2d  at   1095.  



      10  Id.  at   1094.   



      11  Ibid.  



                                                               - 9 -                                                          2639
  


----------------------- Page 10-----------------------

                      Other        courts       have       reached          similar       conclusions.               In    Borgen          v.  



          12  

State,                                                                                                                                   

             the prosecutor told the jury, during closing argument in the penalty phase of the  



                                                                                                                                   

trial,        that        "some           other         court         will        rectify"             any         mistake            they  



           13  

                                                                                           

made.           The Texas Court of Appeals condemned this argument:  



                        

                                                                                                                   

                      The  argument was calculated to and probably did give the  

                                                                                                             

                      impression to the jury that, no matter what it did, a higher  

                                                                                                               

                      court   would   ensure   ultimate,   perfect   justice   for   [the]  

                                                                                                                 

                      appellant, and that therefore [the jury] need not concern itself  

                                                                                                                          

                      with assessing a punishment that it sincerely felt was proper.  

                                                                                                           

                      This  was ...  expressly contrary to our system of criminal  

                                                                                                                 

                      justice,  for  it[,]  in  effect,  told  the  jury  that  it  could  deal  

                                                                                                                 

                      harshly with appellant at  the punishment stage, rather than  

                                                                                                              

                      concerning itself with an honest effort to determine a proper  

                      punishment.  



                                                 

Borgen, 682 S.W.2d at 623.  

                                                                     14 the Mississippi Supreme Court reversed the  

                                                                                                                                          

                      Likewise, in Howell v. State,  



defendant's conviction because the prosecutor repeatedly told the jury that its verdict was  

                                                                                                                                        

not final and could be appealed. 15   The Mississippi court emphasized the danger that the  

                                                                                                                                         



jury  would  mistakenly  believe  that  any  erroneous   findings  of  fact  were  readily  

                                                                                                                                  



correctable on appeal:  

                                      



                        

                      The jury was not informed that the jurors ... were the ones  

                                                                                                                 

                      who determined the facts, not the appellate court.   Just the  

                                                                                                                   

                      opposite   was   left   in   the   minds   of   the   jurors.                              The  

                                                                                                                



      12   682 S.W.2d 620 (Tex. App. 1984).            



      13   Borgen , 682 S.W.2d at 622.  

                                                         



      14   411 So.2d 772 (Miss. 1982).  

                                               



      15  

                                                      

           Howell , 411 So.2d at 773.  



                                                                   -  10 -                                                             2639
  


----------------------- Page 11-----------------------

                                                                                                        

                     [prosecutor's] argument could only leave in the jurors' minds  

                                                                                                       

                     [the  mistaken  impression]  that  if  they  decided  a  close,  

                                                                                                 

                     contradicted  [question  of]  fact  and  found  the  defendant  

                                                                                           

                     guilty[,] the appellate court could change that finding.  



                                          

Howell, 411 So.2d at 777.  



                                                                                                                               

                    We agree with these courts that it is error for a prosecutor to assure the jury  



                                                                                                                            

that any mistakes in its verdict can and will be remedied later, either by the trial judge  



                                                                                                                            

or on appeal.  In Adams's case, the prosecutor may not have directly assured the jurors  



                                                                                                                 

that they could count on the  judiciary to correct their mistakes, but the prosecutor's  



                                         

remarks implied as much.  



                                                                                                                       

                     Even though Adams's attorney overstepped the bounds of proper argument  



                                                                                                                         

when he offered his "terminating life support for a loved one" analogy for "proof beyond  



                                                                                                                              

a  reasonable  doubt",  this  was  no  justification  for  the  prosecutor's  remarks.                                        The  



                                                                                                                                

prosecutor's remarks were clearly improper.  The trial judge should have sustained the  



                                                                                                                     

defense attorney's  objection to those remarks and should have given an immediate  



              

curative instruction.  



                                                                                                                       

           Why  we conclude that the prosecutor's argument requires reversal of  

                                           

          Adams's conviction  



                                                                                                                      

                     Our next  task  is to decide whether the prosecutor's improper argument  



                                                                                                                   

requires reversal of Adams's conviction, or whether it was harmless error.  



                                                                                                                            

                     Several times in the past, both this Court and the Alaska Supreme Court  



                                                                                                                     

have dealt with cases where a prosecutor made arguments to the jury that potentially  



                                                                                                                                 

disparaged or undermined the procedural protections afforded to criminal defendants by  



                                                              -  11 -                                                         2639
  


----------------------- Page 12-----------------------

                                                                     16  

 our constitution.                                                          As shown by these cases, the supreme court has applied two different                                                                                                                                                                                  



 standards when assessing whether a prosecutor's improper argument requires reversal                                                                                                                                                                                                                                                



 of a defendant's conviction.                                                                                         



                                                        In   cases   where   the   prosecutor's   improper   argument   did   not   deny   a  



 constitutional   right   of   the   defendant,   the   supreme   court   has   used   the   "appreciably  



 affected the verdict" test (                                                                            i.e., the test that applies to non-constitutional error) to assess                                                                                                                                                                



 whether the prosecutor's improper argument required reversal of a criminal conviction.                                                                                                                                                                                                                                 



                                                        For example, in                                                Brown v. State                                              , 601 P.2d 221 (Alaska 1979), the prosecutor                                                                                            



 argued,   at   the   close   of   the   trial,   that   the   defendant   was   no   longer   entitled   to   the  



 presumption of innocence "because [the] State [has] proven, beyond a reasonable doubt,                                                                                                                                                                                                                                                     

                                                                                                                                                                           17         This argument was improper because, as a  

 that he is guilty [of the charged crimes]."                                                                                                                                                                                                                                                                                                                    



 matter of law, the defendant's presumption of innocence continues until such time as the  

                                                                                                                                                                                                                                                                                                                                                         

jury reaches a verdict of guilty. 18  

                                                                                                                                          



                                                        Nevertheless,  the supreme  court  declared that the "harmless beyond a  

                                                                                                                                                                                                                                                                                                                                                               



 reasonable  doubt" test does not apply unless the court concludes,  not only that the  

                                                                                                                                                                                                                                                                                                                                                       



               16           See,   e.g.,   Goldsbury v. State                                                                                           , 342 P.3d 834, 835 (Alaska 2015) (the prosecutor                                                                                                                 



 commented on the fact that only the victim and the defendant knew what happened, and that                                                                                                                                                                                                                                                             

 the victim was the one who testified at trial);                                                                                                                                          State v. Gilbert                                                  , 925 P.2d 1324, 1326-27                                              

 (Alaska 1996) (the prosecutor commented on the defense attorney's failure to call a witness                                                                                                                                                                                                                                         

 who, according to the defendant's testimony, could corroborate his alibi);                                                                                                                                                                                                              Brown v. State                                            , 601   

 P.2d 221, 225-26 (Alaska 1979) (the prosecutor told the jury that, because of the strength of                                                                                                                                                                                                                                                               

 the State's evidence, the defendant was no longer cloaked in the presumption of innocence);                                                                                                                                                                                                                            

  Graham v. State                                                   , 656 P.2d 1192, 1193-94 (Alaska App. 1982) (the prosecutor improperly                                                                                                                                                                               

 commented on the defendant's invocation of his right against self-incrimination).                                                                                                                                                                                                                                             



               17  

                                                                                                                              

                            Brown , 601 P.2d at 225.  



               18  

                                                 

                            Ibid.  



                                                                                                                                                                        -  12 -                                                                                                                                                                      2639
  


----------------------- Page 13-----------------------

prosecutor's argument was improper, but also that it actually had the effect of denying                                                                                                                                                                                                                                 



 one of the defendant's constitutional rights:                                                                                                                               



                                                       

                                                                                 [W]here   the   error   denies   a   constitutional   right,   ...  

                                                     reversal is required unless the error is found to be harmless                                                                                                                                             

                                                     beyond a reasonable doubt.                                                                                       However, we have never held                                                                                

                                                     that   the   standard   of   harmless   beyond   a   reasonable   doubt  

                                                      applies   merely   because   a   constitutional   right   is   involved.   

                                                     While   it   is   true that a constitutional right,                                                                                                                            the right to the                                 

                                                     presumption of innocence, is involved here, we believe that                                                                                                                                                                   

                                                     the instructions given by the judge both before the trial and                                                                                                                                                                 

                                                     before the jury's deliberations were sufficient to ensure that                                                                                                                                                                 

                                                     the                  defendant                                        enjoyed                                  that                   right                      and                    therefore                                   no  

                                                      constitutional right was denied.                                                                                            ...   



                                                                                We    are    convinced    that                                                                                 the    court's    instructions  

                                                     prevented the error from rising to the level of plain error.                                                                                                                                               



Brown, 601 P.2d at 226 (emphasis in the original) (citations omitted).                                                                                                                                                                        



                                                      Similarly, in                                  State v. Gilbert                                               , 925 P.2d 1324 (Alaska 1996), the prosecutor                                                                                             



 suggested that the jury might reasonably draw an adverse inference from the fact that the                                                                                                                                                                                                                                                 



 defense   did   not   call   a   particular   witness   (a   witness   who   purportedly   could   have  



 corroborated the defendant's alibi), but the supreme court concluded that the error was                                                                                                                                                                                                                                               



not constitutional.                                                     The supreme court noted that the prosecutor prefaced his remarks by                                                                                                                                                                                                  



 expressly telling the jurors that "Mr. Gilbert had [no] burden of proving anything", and                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                               19         The court further noted  

the defense attorney echoed this principle in his summation.                                                                                                                                                                                                                                                                     



that the trial judge had expressly instructed the jurors that the government bore the sole  

                                                                                                                                                                                                                                                                                                                                        

burden of proof, and that this burden was proof beyond a reasonable doubt. 20  

                                                                                                                                                                                                                                                                                                                       



              19           Gilbert, 925 P.2d at 1328 n. 8.                                                                                      



              20          Ibid.  



                                                                                                                                                                  -  13 -                                                                                                                                                               2639
  


----------------------- Page 14-----------------------

                           The supreme court concluded that the attorneys' other statements to the                                                                 



jury, along with the court's jury instructions, "were sufficient to ensure that the burden                                                                  

                                                                             21    The court therefore treated the error as non- 

 of proof did not shift to the defendant."                                                                                                                       



 constitutional, and the court employed the "appreciably affected the verdict" test when  

                                                                                                                                                               



 assessing  whether  the  prosecutor's  comment  required  reversal  of  the  defendant's  

                                                                                                                                                  



                      22  

 conviction.    



                           But in cases where the record revealed that the prosecutor's improper  

                                                                                                                                                      



 comment had the effect of denying a defendant's constitutionalrights, the supreme court  

                                                                                                                                                                



has held that the defendant's conviction must be reversed unless the error is shown to be  

                                                                                                                                                                     



harmless beyond a reasonable doubt (the test that applies to constitutional errors).  

                                                                                                                                                                 



                           For  instance,  in  Goldsbury v.  State,  342 P.3d 834 (Alaska 2015),  the  

                                                                                                                                                                  



 supreme court  concluded that the prosecutor's adverse comment on the defendant's  

                                                                                                                                                   



 failure to take the stand at trial was constitutional error because "the language used [by  

                                                                                                                                                                   



the prosecutor] was manifestly intended or was of such a character that the jury would  

                                                                                                                                                              



naturally  and  necessarily  take  it  to  be  a  comment  on  the  failure  of  the  accused  to  

                                                                                                                                                                     

testify." 23           Thus,  the  supreme  court  ruled  that  the  error  would  require  reversal of  

                                                                                                                                                                     



 Goldsbury's  conviction unless the court was convinced that the error was harmless  

                                                                                                                                                        



                                                       24  

beyond a reasonable doubt.  

                                                           



                           We think that this case is closer to Goldsbury than to Brown and Gilbert.  

                                                                                                                                                                           



 The challenged remarks were a prominent part of the prosecutor's rebuttal summation,  

                                                                                                                                                   



 and one obvious implication of the prosecutor's remarks was that the jurors did not need  

                                                                                                                                                                



       21    Ibid.   



       22    Id. at 1328-29.  

                                           



       23     Goldsbury, 342 P.3d at 837.  

                                                                    



       24  

                                         

             Id. at 837-38.  



                                                                                -  14 -                                                                          2639
  


----------------------- Page 15-----------------------

 to worry too much about reachingthe proper verdict, because the judiciary would                                                                                                                                                                         correct  



 any mistake the jurors made.                                                                These remarks created a significant possibility that, if one                                                                                                          



 or more jurors found it difficult to reach a decision in Adams's case, those jurors would                                                                                                                                                                  



 nevertheless acquiesce in a verdict because of the mistaken belief that some other entity                                                                                                                                                                    



 -  either the trial judge or an appellate court - bore the ultimate responsibility of doing                                                                                                                                                                   



justice in Adams's case.                                                       



                                           We thus conclude that the jurors would naturally and necessarily                                                                                                                                                    have  



 drawn an improper inference from the prosecutor's remarks - the inference that the                                                                                                                                                                                  



jurors could rely on the courts to cure any mistake in their verdict.                                                                                                                                             



                                           We must then ask whether this improper inference was negated or cured by                                                                                                                                                     



                                                                                                                            25  

 the trial judge's instructions to the jury.                                                                                       



                                           We note that in both Brown and Gilbert, the supreme court relied on the  

                                                                                                                                                                                                                                                                     



 trial court's jury instructions as a basis for concluding that the prosecutor's statements  

                                                                                                                                                                                                                                              



 did not result in a denial of the defendant's constitutional rights, and that the error was  

                                                                                                                                                                                                                                                                  

                                                                                         26   In Goldsbury, on the other hand, the supreme court first  

 therefore non-constitutional.  

                                                                                                                                                                                                                                                                   



 concluded, based solely on the nature of the prosecutor's statements, that the error was  

                                                                                                                                                                                                                                                                   



 constitutional, and then the court relied on the trial court's jury instructions to conclude  

                                                                                                                                                                                                                                                   



                                                                                                                                                                              27  

 that the error was harmless beyond a reasonable doubt.  

                                                                                                                                                                                     



                                           Given this discrepancy in the case law, it is unclear whether a trial court's  

                                                                                                                                                                                                                                                          



jury instructions are a factor to be considered when determining whether a prosecutor's  

                                                                                                                                                                                                                                      



           25         See Goldsbury                                ,342 P.3d at 839;                                 Gilbert, 925 P.2d at 1328 n. 8, 1329;                                                                        Brown v. State                              ,  



 601 P.2d 221, 225-26 (Alaska 1979).                                                                              



           26  

                                                                                                                                                                                             

                     Brown , 601 P.2d at 226; Gilbert, 925 P.2d at 1328 n. 8.  



           27  

                                                                                                                       

                      Goldsbury, 342 P.3d at 837-38.  



                                                                                                                                -  15 -                                                                                                                            2639
  


----------------------- Page 16-----------------------

improper   remarks   were   an   error   of   constitutional   dimension,   or   whether   the   jury  



instructions are only relevant when evaluating whether the error was harmless.                                                                                                                                                                                                                                                                                                            



                                                                However, this distinction is irrelevant to our decision of Adams's case -                                                                                                                                                                                                                                                                         



because, as we have already explained, the trial judge refused to intervene to clarify these                                                                                                                                                                                                                                                                                                           



matters   for   the   jury,   even   after   the   defense   attorney   objected   to   the   prosecutor's  



argument.    The judge cautioned the jurors to disregard any arguments of counsel that                                                                                                                                                                                                                                                                                                                     



misstated the law - but the judge gave the jurors no indication as to whether he thought                                                                                                                                                                                                                                                                                                  



that the prosecutor had, in fact, misstated the law.                                                                                                                                                                                              



                                                                 Thus,   even   if   an   appellate   court   should   consider   a   trial   court's   jury  



instructions when assessing whether a prosecutor's improper remarks amounted to a                                                                                                                                                                                                                                                                                                                                       



constitutional error or                                                                                      only a non-constitutional error,                                                                                                                               it makes no difference to our                                                                                                    



decision in Adams's case because no pertinent curative instructions were given.                                                                                                                                                                                                                                                                                                               



                                                                Because the prosecutor told the jurors that they could rely on the judiciary                                                                                                                                                                                                                                         



to correct any mistakes in their verdict, and because the trial judge did nothing to alert                                                                                                                                                                                                                                                                                                               



the   jury   to   the   error   in   the   prosecutor's   improper   argument,   we   conclude   that   the  



prosecutor's improper argument was an error of constitutional dimension: it undermined                                                                                                                                                                                                                                                                         



Adams's right to insist that the government prove its case beyond a reasonable doubt.                                                                                                                                                                                                                                                                                                                                            



The prosecutor essentially told the jurors that they should not be overly concerned if they                                                                                                                                                                                                                                                                                                         



were having difficulty deciding what verdict to render, because they could rely on the                                                                                                                                                                                                                                                                                                                         



courts to set things right later.                                                                                                                



                                                                We must now ask whether this error was harmless beyond a reasonable                                                                                                                                                                                                                                 

doubt,   given the evidence in the case and the way it                                                                                                                                                                                                                  was litigated.                                                       28              Based on our  

                                                                                                                                                                                                                                                                                                                                                                                                             



review of the record,  we conclude that the error in Adams's case was not harmless  

                                                                                                                                                                                                                                                                                                                                                                                   



beyond a reasonable doubt.  

                                                                                                    



                28              See Goldsbury                                                         , 342 P.3d at 839.                                                                



                                                                                                                                                                                                   -  16 -                                                                                                                                                                                                  2639
  


----------------------- Page 17-----------------------

                                                                                                                               

                     Adams acknowledged that he caused Wilson's death by stabbing him.  The  



                                                                                                                      

question litigated at trial was whether Adams acted in self-defense - or, more precisely,  



                                                                                                                              

whether the State had proved beyond a reasonable doubt that Adams's claim of self- 



                                    

defense had no merit.  



                                                                                                                              

                     Given the actions of both Adams and Wilson that night, as  well as their  



                                                                                                                                

states of intoxication, Adams's claim of self-defense was at least arguable.   And as we  



                                                                                                                              

have explained, the prosecutor's improper remarks created a significant possibility that,  



                                                                                                                             

if one or more jurors found it difficult to resolve Adams's claim of self-defense, those  



                                                                                                                               

jurors would nevertheless acquiesce in a guilty verdict because of the mistaken belief that  



                                                                                                                            

the judiciary, and not the jurors themselves, bore the ultimate responsibility of doing  



                                       

justice in Adams's case.  



                                                                                                                               

                     For these reasons, we conclude that the State has failed to show that this  



                                                                                                                             

error was harmless beyond a reasonable doubt.  Accordingly, Adams's conviction must  



                     

be reversed.  



                                                                                                                      

          If Adams is retried, the trial judge should revisit the jury instruction on the  

                                                                                      

          justified use of deadly force to resist a burglary  



                                                                                                                          

                     At Adams's trial, the judge (over defense objection) modified the pattern  



                                                                                                                                

jury instruction on the justified use of deadly force to resist a burglary.  Specifically, the  



                                                                                                                                   

judge told the jurors that the use of deadly force is not justified when a person resists a  



                                                                                                                       

burglary if the burglary was committed solely for the purpose  of damaging property  



                               

inside the building.  



                                                                                                                                

                     We are unaware of any legal basis for the judge's modification of the  



                                                                                                                        

pattern jury instruction on this issue.   That pattern instruction is based on the wording  



                                                                                                                               

of AS 11.81.350(c)(2):  "A person in possession or control of any premises ... may use  



                                                              -  17 -                                                         2639
  


----------------------- Page 18-----------------------

                                                                                                                                  

 ... deadly force upon another when and to the extent the person reasonably believes it is  



                                                                                                                          

necessary to terminate what the person reasonably believes to be a burglary in any degree  



                                                                         

occurring in an occupied dwelling or building."  



                                                                                                                               

                     Should this question arise on retrial, the trialjudge should either instruct the  



                                                                                                                               

jurors in accordance with this statute,  or the judge should explain his legal basis for  



                                                                                                                         

concluding that this statute does not authorize the use of deadly force against a burglar  



                                                                                                                                     

who enters an occupied dwelling with the intent to damage property inside the dwelling.  



           Conclusion  



                                                                                                      

                     The judgement of the superior court is REVERSED.  



                                                              -  18 -                                                        2639
  

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