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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adams v. State (9/16/2011) sp-6600

Adams v. State (9/16/2011) sp-6600, 261 P3d 758

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

LEROY ADAMS,                                    ) 
                                                )       Supreme Court No. S-13733 
                        Petitioner,             )       Court of Appeals No. A-9643 
                                                ) 
        v.                                      )       Superior Court No. 2KB-05-00455 CR 
                                                ) 
STATE OF ALASKA,                                )       O P I N I O N 
                                                ) 
                        Respondent.             )       No. 6600 - September 16, 2011 
                                                ) 

                Petition for Hearing from the Court of Appeals of the State of 
                Alaska, on appeal from the Superior Court of the State of 
                Alaska,     Second    Judicial   District,   Kotzebue,     Richard    H. 
                Erlich,   Judge. 

                Appearances: Sharon Barr, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for Petitioner. 
                Terisia   Chleborad,   Assistant   Attorney   General,   Office   of 
                Special Prosecutions & Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for Respondent. 

                Before:   Carpeneti,   Chief   Justice,   Fabe,   Winfree,   Christen, 
                and Stowers, Justices. 

                FABE, Justice. 

I.      INTRODUCTION 

                A jury convicted Leroy Adams of sexual assault in the second degree for 

having sexual intercourse with K.S. when he knew that K.S. was unaware that a sexual 

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

act was being committed. Both Adams and K.S. were intoxicated at the time, and Adams 

testified at trial that the sex was consensual. During his cross-examination of Adams, the 

prosecutor questioned Adams about his refusal to speak to the police prior to trial.  The 

prosecutor also argued to the jury in closing that Adams's refusal to talk to the police 

made his testimony at trial less credible. Adams claimed on appeal that the prosecutor's 

questions and argument were improper comments on Adams's right to silence under 

article I, section 9 of the Alaska Constitution.       Because Adams did not object to the 

prosecutor's questions or argument at trial, his claims were reviewed for plain error, and 

the court of appeals affirmed his conviction.       We granted Adams's petition for review 

and now conclude that the prosecutor improperly commented on Adams's invocation of 

his right to silence and violated his constitutional rights. We reverse Adams's conviction 

and remand for a new trial. 

II.     FACTS AND PROCEEDINGS 

        A.     Underlying Facts 

               On February 7, 2005, K.S. traveled from her home in Kivalina to Kotzebue 

for a dentist appointment.      K.S. was sixteen years old at the time.  That night, K.S. was 

drinking with a friend and consumed about half a bottle of whiskey.             She left her hotel 

room and went to the apartment of Nellie Knox, where K.S.'s cousin Emma Hawley was 

staying.  According to Hawley, K.S. was visibly intoxicated, "banging on the door" of 

Knox's apartment and "hollering."        Hawley tried to convince K.S. to come inside and 

go to sleep, but K.S. refused and said that she wanted to go out.  Hawley left K.S. in the 

hallway and went back inside Knox's apartment. Going to see Hawley was the last thing 

that K.S. remembered prior to waking up in Leroy Adams's apartment. 

               Leroy    Adams   and   his   wife   Mae   Adams   lived   in   the   same   apartment 

complex.  On the night of February 7 and the early morning hours of February 8, Adams 

and Mae were drinking whiskey and playing board games in their apartment with  Lena 

                                                -2-                                          6600
 

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

Koenig, who described Mae and Adams as her aunt and uncle.                   Adams and Mae were 

47 years old at the time and they knew K.S. from Kivalina.  Emma Hawley testified that 

before she went back inside, she saw Mae call K.S. over to her apartment.                 According 

to Mae, she was outside smoking a cigarette with Adams and Koenig when she noticed 

that K.S. was so drunk that she was "staggering" and about to "pass out."  Because they 

were concerned that K.S. would freeze outside in the cold, Koenig and Mae had K.S. 

come back to the Adamses' apartment. 

                At the Adamses' apartment, K.S. sat or lay on the couch while Adams, 

Mae, and Koenig continued to drink and play board games.                 Mae and Adams testified 

that K.S. wanted to drink more whiskey, but Mae would not give her any.  K.S. then got 

up from the couch and   tried to grab the bottle of whiskey, which was near Adams. 

According to Mae and Adams, K.S. let her shirt slide down and rubbed her breast against 

Adams's arm before grabbing the whiskey bottle and drinking from it.   Adams said that 

he was also "pretty well intoxicated" at this point. 

                Koenig and Mae then went back outside to smoke another cigarette and 

Koenig   left   the   apartment   complex.    Adams   testified   that   he   asked   K.S.   if   she   was 

"coming on to [him]" by "touching [his] elbow with her [breast]" and if "she wanted to 

get it on while no one was in the apartment."          Adams maintained that K.S. voluntarily 

went into the bedroom with him, that she consented to oral sex, and that she was awake 

and actively participating.      At that point, Mae returned to the apartment, went into the 

bedroom and saw K.S. lying on the bed with Adams's "head between her legs."                      Mae 

testified that K.S. was awake "because she had her eyes open," but that neither Adams 

nor K.S. said anything.      Mae also claimed that she "tried to stop [Adams]," but that he 

"put out his arm, and [she] blacked out after that."  According to Adams,  he shoved Mae 

when Mae tried to pull him off K.S., and Mae then went back to the living room. 

                                                 -3-                                            6600
 

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

                Adams   further   testified   that   a   few   minutes   later,   Mae   returned   to   the 

bedroom and began touching K.S.'s breasts.             He claimed that he told Mae to leave and 

then   asked   K.S.   if   they   could   have   vaginal   intercourse. According   to   Adams,   K.S. 

consented, and afterward "we both realized what we had done, and she wanted to get out 

of the apartment as quickly as she can [sic]."          He said that K.S. got dressed, went to the 

bathroom, and   left after calling Emma Hawley to ask her to open the door to Nellie 

Knox's apartment.       Adams and Mae then continued drinking and fell asleep until the 

police knocked on their door the next morning. 

                K.S. testified that after talking to Hawley outside Knox's apartment, the 

next thing she remembered was waking up with Adams on top of her engaged in vaginal 

intercourse.    K.S. maintained that she did not consent and also alleged that Mae was in 

the room "playing with [K.S.'s] bottom."  According to K.S., when she woke up, Adams 

got off of her, and she went to the bathroom, dressed, and called Hawley. 

                When Hawley answered the phone, K.S. was crying and said "I'm hurting 

and I don't know what to do" and "she pushed me . . . with her breasts."                   K.S. asked 

Hawley to open the door to Knox's apartment.  When K.S. arrived at Knox's apartment, 

she was still crying and had left her shoes behind.  K.S. told Hawley, "I'm hurting" and 

"it hurts when I pee," and then she went back to sleep.               Based on K.S.'s statements, 

Hawley told her uncle that K.S. had been raped.  Hawley's uncle then called the Alaska 

State Troopers. 

        B.      The Investigation 

                Trooper Ron Monigold arrived at the apartment complex around 8:30 a.m. 

on   February   8.   He   met   with   K.S.   and   observed   that   she   was   upset   and   crying   and 

appeared to still be intoxicated.  Trooper Monigold took K.S. to the hospital, where she 

underwent a sexual assault examination and gave a statement to the police. 

                                                  -4-                                             6600
 

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

                Trooper   Monigold   then   returned   to   the   apartment   complex   and   made 

contact with Adams around 10:00 a.m.   Trooper Monigold smelled alcohol on Adams's 

breath and spoke to Adams for about five to ten minutes.  Adams told Trooper Monigold 

that the previous evening Adams and Mae had been outside smoking when they saw K.S. 

passed out on the stairs.     Adams said that they first took K.S. to her friend's apartment 

(presumably the apartment of Nellie Knox), and that later K.S. came to their apartment. 

At some point during the interview, Adams told Trooper Monigold that he no longer 

wanted to answer questions.  Trooper Monigold asked Adams to accompany him to the 

hospital for a sexual assault exam and mentioned that it was in Adams's best interest to 

make sure that he had not contracted a sexually transmitted disease.               Adams agreed to 

accompany the trooper to the hospital, where a DNA specimen was obtained from him 

for a sexual assault suspect kit. 

                The sexual assault exams showed that DNA from the sperm collected from 

K.S.'s vagina was a statistical match to Adams's DNA.   On August 26, 2005, Leroy and 
Mae Adams were each indicted on one count of sexual assault in the second degree.1 

        C.      The Prosecutor's Disputed Remarks 

                The    case   against   Leroy   and   Mae    Adams     was   scheduled     for  trial  in 

November 2005.         On the eve of trial, Mae Adams reached an agreement with the State 

to plead no contest to misdemeanor fourth-degree assault.   This agreement allowed Mae 

to avoid the possibility of a felony conviction and sex offender registration.   Mae agreed 

        1       Leroy was indicted under AS 11.41.420(a)(3)(C), which provides that an 

offender   commits   the   crime   of   sexual   assault   in   the   second   degree   if   "the   offender 
engages in sexual penetration with a person who the offender knows is unaware that a 
sexual act is being committed."         Mae was indicted under AS 11.41.420(a)(1), which 
provides that an offender commits the crime of sexual assault in the second degree if "the 
offender engages in sexual contact with another person without consent of that person." 

                                                  -5-                                            6600
 

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

to a sentence of 360 days jail time with 270 days suspended and 90 days to serve and 
also agreed to testify at Adams's trial. The case against Leroy Adams proceeded to trial.2 

               During the State's case-in-chief on Thursday, November 17, the prosecutor 

took steps to make sure that the jury was not informed that Adams invoked his right to 

silence prior to trial.  In the middle of his direct examination of Trooper Monigold, the 

prosecutor asked for a sidebar and told the judge, "I want to play a portion of the taped 

interview with the defendant and Trooper Monigold.   What we want to make sure is that 

it's only that portion of statements that he made not about his right - exercising his right 

to remain silent."    Adams's attorney did not object to the tape, but agreed that he was 

concerned "that it doesn't get slipped in that [Adams] exercised his right."             When the 

trial judge determined that the tape was of too poor a quality to play for the jury, the 

prosecutor agreed to question Trooper Monigold about the interview without asking any 

questions about Adams's invocation of his right to remain silent. 

               A similar exchange occurred during the redirect examination of Trooper 

Monigold.      Prior   to   asking   follow-up   questions   about   the   interview,   the   prosecutor 

requested a sidebar with the witness and cautioned Trooper Monigold:  "Do not refer to 

his right to remain silent or the fact that he exercised his right to remain silent. . . . 

Where you can't go is, I tried to ask him this and he said, I want to talk to my attorney, 

or he didn't want to tell me anything else." 

               The remarks at issue in this appeal came when the trial reconvened four 

days later on Monday, November 21, and Adams took the stand in his own defense.  On 

cross-examination, the prosecutor asked Adams about his conversation with Trooper 

Monigold on February 8: 

        2      We note that the trial attorneys for Adams and the State were not the same 

attorneys who handled the appeal. 

                                                -6-                                             6600 

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

                Q:	    Do you remember talking to Officer Monigold? 

                A:	    Yes, I do. 

                Q:	    Okay. Do you remember him - remember telling him 
                       that you saw a passed-out female that you identified as 
                        [K.S.]? 

                A:	    Yes, I do. 

                Q:	    Okay.     And that you were outside and you saw her 
                       again, this time awake? 

                A:	    Yes, I do. 

                Q:	    And that your wife called her over, she came into the 
                       house? 

                A:	    The second trip, it was on the second time around. 

                Q:	    Okay.     And then you stated that Lena Koenig was in 
                       the apartment with you and your wife? 

                A:	    Yes, she was. 

                Q:	    And then you refused to talk to police any further .         Correct? 

                A:	    That's right. 

                Q:	    Okay.    Until today? 

                A:	    I was exercising my right. 

                Q:	    Okay.     You've   heard   from   the   victim   in   this   case, 
                       correct?   You've been sitting right over there? 

                A:	    Yes, I did. 

                Q:	    You've      heard   from   your   wife?   You've    heard   her 
                       testify while sitting right over there?      Correct? 

                A:     Yes, I did. 

(Emphasis added.)      A few minutes later, the following exchange occurred between the 

prosecutor and Adams: 

                                                 -7-	                                          6600
 

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

                Q:        Now, new information that we heard from you today 
                         is everything that happened in your apartment, correct? 
                        Would you agree to that? From your perspective? 

                A:       What do you mean by everything? 

                Q:        Well, we didn't know anything about what happened 
                         in your apartment from you, because you didn't talk to 
                        police, until after hearing all the evidence so far in this 
                         case. 

                A:      I assumed I had the right to remain silent until . . . 

                Q:        Okay. 

                A:       . . . I choose [sic] to testify. 

(Emphasis added.) 

                During his closing argument, the prosecutor pointed to Adams's silence to 
argue that Adams's testimony was less credible than the victim's.3                The prosecutor first 

argued that Adams changed his decision not to talk when he learned about the DNA 

evidence indicating that he had sex with K.S.: 

                But before we get to the defendant's testimony, that night, 
                 [K.S.] woke up.      The defendant was on top of her.           She ran 
                over   to   the   house   where   Emma   Hawley   was   after   calling 
                 [Emma], and the police investigated.  Defendant's wife Mae 
                said    she   was    too   drunk    to  remember      what    happened. 
                Defendant said:   Victim came into the house; I don't have 
                anything else to say. 
                 . . . . 

                The victim was interviewed and a sexual assault exam was 
                conducted.       Evidence was collected.         DNA was found and 
                typed from semen   that   was taken, found from the vaginal 
                swab from the victim. 
                 . . . . 

        3       Due to scheduling conflicts the closing arguments in the case did not occur 

until almost a month later, on December 20. 

                                                   -8-                                              6600 

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

                But we don't - it's not a - this case is not a fight over the 
                DNA.  Right?  Because upon the investigation, upon finding 
                of DNA, and after months and months of thought, what is the 
                defendant's story now?        It was consensual.      What does he 
                have to say?     He has to say that sex occurred.        Right?    He 
                can't say it didn't occur.     He can't stick with the story that, 
                I'm not going to tell you what happened.           And because he 
                decided to testify, you get to scrutinize his testimony. 

(Emphasis added.) The prosecutor also argued in closing that the defendant's testimony 

at trial was not as credible as the victim's because it was inconsistent with his earlier 

decision not to speak to the police: 

                Defendant doesn't want to talk . . . .        On that morning the 
                victim's   testimony   was   consistent   with   what   she   testified 
                here.    There    are  two   people    whose    testimony    was    not 
                consistent with what they told police on February 8th: The 
                defendant and his wife. So using your reason, logic, and your 
                common sense, you get to determine why that would be. 

(Emphasis added.)   Finally, the prosecutor again mentioned Adams's silence in order to 

argue that K.S. was the most credible witness: 

                Do you believe the victim who was intoxicated and whose 
                version   of   what   happened   was   consistent   the   moment   she 
                called from the house, went to Emma Hawley's house, was 
                investigate - was talking to police, and then testified here, 
                all of that was consistent?     Or do you believe someone who 
                was too drunk - that is Mae Adams - and then she has all 
                this recollection of what happened at trial. And the defendant 
                who says: Yeah, she came in; I don't want to say anything 
                else; DNA is fine, it's him; yeah, it was consensual? Who do 
                you believe? 

(Emphasis added.)  Adams did not object to the prosecutor's line of questioning during 

cross-examination or the prosecutor's repeated references to Adams's silence during 

closing argument.      The jury convicted Adams of second-degree sexual assault. 

                                                 -9-                                            6600
 

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

        D.        Appellate Proceedings 

                 On appeal, Adams claimed that it was plain error for the trial court to allow 

the prosecutor's argument and line of questioning because the prosecutor improperly 
commented on Adams's right to remain silent.4                The court of appeals decided that the 

prosecutor's      comments      only   pertained    to  Adams's      pre-arrest   silence   and   that  the 
comments on pre-arrest silence did not constitute plain error.5                  The court of appeals 

reasoned that under federal law, if a defendant testifies at trial, the prosecution is free to 

cross-examine him regarding his failure to make a statement prior to receiving Miranda 

            6 
warnings,  and that under Alaska law evidence of pre-arrest silence is only inadmissible 
if it is more prejudicial than probative under Alaska Evidence Rule 403.7                   The court of 

                                                                            8 
appeals concluded that Adams had no claim under federal law;   that his claim under state 

                                   9 
law was at best "debatable";  and that the prosecutor's comments thus did not constitute 

plain error because "[i]f a claim of error is reasonably debatable - if reasonable judges 
could differ on what the law requires - then a claim of plain error fails."10 

        4       Adams v. State (Adams I), Mem. Op. & J. No. 5363, 2008 WL 2779195, 

at *1 (Alaska App., July 16, 2008). 

        5       Id. at *2-3. 

        6       Id. at *1; see Fletcher v. Weir, 455 U.S. 603, 606-07 (1982) (per curiam); 

Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980). 

        7       Adams I, 2008 WL 2779195, at *2; see Silvernail v. State, 777 P.2d 1169, 

1174-78 (Alaska App. 1989). 

        8       Adams I, 2008 WL 2779195, at *2. 

        9       Id. at *3. 

        10      Adams I, 2008 WL 2779195, at *3 (quoting Simon v. State, 121 P.3d 815, 

820 (Alaska App. 2005)). 

                                                   -10-                                              6600
 

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

                 We granted Adams's petition for hearing on this issue and remanded to the 

court of appeals for consideration of whether the prosecutor improperly commented on 
Adams'spost -arrest silence and whether those comments amounted to plain error.11                       On 

remand, the court of appeals recognized that "the prosecutor twice referred to the fact 
that   Adams   had   continued   to   remain   silent   up   until   the   time   of   his   trial,"12  but   it 

concluded that even if the prosecutor improperly commented on Adams's post-arrest 
silence, there was no plain error.13       The court of appeals ruled that it was Adams's burden 

to establish "that the claimed error was so prejudicial to the fairness of the proceedings 
that the failure to correct it would perpetuate manifest injustice."14  Noting that the sexual 

assault was reported on February 8, 2005, that Adams was arrested in July 2005, and that 

the trial occurred in November 2005, the court of appeals compared the periods of pre- 

arrest and post-arrest silence, reasoning that "the period of post-arrest silence in Adams's 

case accounts for less than half of the nine months that elapsed" between the assault and 
the trial.15 Therefore, the court concluded, if comment on Adams's pre-arrest silence did 

not undermine the fairness of the proceedings, neither did any comment on Adams's 

post-arrest silence, because "[t]o the extent that Adams kept silent during these nine 
months, the majority of this silence was pre -arrest silence."16              Adams again petitioned 

this court for hearing, and we granted the petition. 

        11       Adams v. State (Adams II), Mem. Op. & J. No. 5550, 2009 WL 4758732, 

at *1 (Alaska App., Dec. 9, 2009). 

        12       Id.
 

        13
      Id. at *6. 

        14       Id. (citing Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008)). 

        15       Id. at *5. 

        16       Id. at *5-6. 

                                                    -11-                                              6600
 

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

III.	   STANDARD OF REVIEW 

                Alaska Criminal Rule 47(b) allows appellate courts to notice "[p]lain errors 

or defects affecting substantial rights . . . although they were not brought to the attention 

of the court."   Adams did not object at trial to the prosecutor's questioning or argument 

concerning his pre-trial silence.   We thus "look to see whether the trial court committed 
plain error."17   Plain error is an error that (1) was not the result of intelligent waiver or 

a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) 
was prejudicial.18    We have described plain error as "involv[ing] such egregious conduct 

as to 'undermine the fundamental fairness of the trial and contribute to a miscarriage of 
justice.' " 19 

IV.	    DISCUSSION 

        A.	     Alaska Law Protects A Criminal Defendant's Pre-Arrest And Post- 
                Arrest Silence. 

                Alaska   law   provides   greater   protection   than   federal   law   for   a   criminal 

defendant's right to remain silent both before and after arrest.   Under the United States 

Constitution, the Due Process Clause of the Fourteenth Amendment prohibits a state 

from cross-examining a defendant about his decision to remain silent after receiving 
Miranda warnings.20       In Doyle v. Ohio, the United States Supreme Court concluded that 

"while it is true that the Miranda warnings contain no express assurance that silence will 

        17	     Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000). 

        18      See infra Part IV.C.1. 

        19      Raphael, 994 P.2d at 1015 (quoting United States v. Young, 470 U.S. 1, 16 

(1985)). 

        20      Doyle v. Ohio, 426 U.S. 610 (1976). 

                                                 -12-	                                           6600
 

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

carry no penalty, such assurance is implicit to any person who receives the warnings."21 

The Doyle court thus held that "it would be fundamentally unfair and a deprivation of 

due process to allow the arrested person's silence to be used to impeach an explanation 
subsequently offered at trial."22      In subsequent decisions, however, the U.S. Supreme 

Court    concluded     that  the  U.S.   Constitution    does  not   prohibit  a  state  from   cross- 

examining a defendant about his failure to give a statement prior to arrest or prior to 
receiving Miranda warnings.23 

                In contrast, Alaska case law protects a criminal defendant's right to remain 

silent both before and after arrest.   As we explain below, evidence of a defendant's post- 

arrest silence is prohibited by the Alaska Constitution, and evidence of a defendant's pre- 

arrest silence will usually be inadmissible under Evidence Rule 403 due to its inherently 

low probative value and its high risk of unfair prejudice. 

                Article I, section 9 of the Alaska Constitution provides in part that "[n]o 

person shall be compelled in any criminal proceeding to be a witness against himself." 

"Implicit in this right is the notion that when an accused person chooses to exercise his 
right to silence, such silence may not be commented upon."24               And we have held that 

article I, section 9 prohibits the state from using a defendant's post-arrest silence for 

substantive   or   impeachment   value,   even   if   the   defendant   did   not   receive  Miranda 

warnings. In a 1972 case, Davis v. State, we expressed "our disapproval of any comment 

        21      Id. at 618. 

        22      Id. 

        23      Fletcher v. Weir, 455 U.S. 603, 606-07 (1982) (per curiam) (covering post- 

arrest,   pre-Miranda      silence); Jenkins    v.  Anderson,     447   U.S.   231,  238-39    (1980) 
(covering pre-arrest silence). 

        24      Coleman v. State, 553 P.2d 40, 50 (Alaska 1976). 

                                                 -13-                                           6600
 

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

absent waiver by the prosecution on an accused's silence resulting from the exercise of 

his constitutional rights. . . . [A]n inference of guilt may not be drawn from a failure to 
speak or to explain when a person has been arrested."25        A 1976 concurring opinion 

written by Chief Justice Boochever and joined by Justice Rabinowitz further explained 

that "evidence of silence in the face of custodial interrogation by police is not properly 
admissible in a trial."26  In  Gunnerud v. State, a 1980 case, we reversed a conviction 

where the prosecutor had played a recording for the jury that included the defendant 
exercising her right to remain silent.27  In that case the prosecutor used the tape during 

his   case-in-chief,  and   it  concerned   silence   after Miranda     warnings   had   been 

administered. We observed that "[i]t is well settled that prosecutorial comment on silence 

for   substantive  or  impeachment     value  is  constitutionally  prohibited.  [We    have] 

specifically disapproved any comment upon a defendant's exercise of the right to remain 
silent."28 Finally, one year after Gunnerud in Dorman v. State, we held that plain error 

occurred when the prosecutor told the jury in closing argument that they should infer 

guilt from the defendant's silence during the period after his arrest but prior to receiving 
Miranda warnings.29 

       25      501 P.2d 1026, 1030-31 (Alaska 1972). 

       26      Coleman, 553 P.2d at 53 (Boochever, C.J., concurring). 

       27      611 P.2d 69, 75-76 (Alaska 1980). 

       28     Id. at 75 (emphasis added) (internal citations omitted). 

       29      622 P.2d 448, 456-59 (Alaska 1981).       Dorman was decided prior to the 

U.S. Supreme Court's decision in Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam), 
which held that the use of post-arrest, pre-Miranda silence for impeachment purposes 
did not violate the federal constitution.  But two years after Fletcher, the court of appeals 
reaffirmed Dorman in Nelson v. State, 691 P.2d 1056 (Alaska App. 1984), holding that 
                                                                               (continued...) 

                                             -14-                                       6600
 

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

                Neither this court nor the court of appeals has decided whether the Alaska 
Constitution prohibits the state from using evidence of a defendant's pre-arrest silence.30 

But we do not need to decide that question in this case for two reasons.  First, at the very 

least, Alaska law protects a defendant's pre-arrest silence through the rules of evidence, 

and in this case, evidence of Adams's pre-arrest silence was inadmissible under Evidence 
Rule 403.   Adams has shown that the admission of this evidence was plain error.31  And 

second, in this case the prosecutor violated Adams's constitutional rights by commenting 

on Adams'spost -arrest silence.   Allowing the prosecutor's comments to be presented to 
the jury also amounted to plain error.32 

                In Silvernail v. State, the court of appeals held that it was plain error for the 

trial court to admit evidence of the defendant's pre-arrest silence because the inherently 

low probative value of the defendant's silence was outweighed by the danger of unfair 

        29(...continued) 

Dorman      remained     the  correct   interpretation   of  article  I,  section  9  of  the  Alaska 
Constitution and therefore "a person who is under arrest for a crime cannot normally be 
impeached by the fact that he was silent following his arrest."  Id. at 1059. 

        30      See Bloomstrand v. State, 656 P.2d 584, 587 (Alaska App. 1982) ("The 

propriety   of   comment   on   pre-arrest   silence   under   the   Alaska   Constitution   has   not 
specifically been addressed."); see also Silvernail v. State, 777 P.2d 1169, 1175 (Alaska 
App. 1989) ("While Bloomstrand recognized that evidence of pre-arrest silence is not 
precluded as a matter of federal constitutional law, the case expressly left open the issue 
of admissibility of such evidence under Alaska law.").  We have previously interpreted 
article I, section 9 of the Alaska Constitution "more broadly than the U.S. Supreme Court 
has construed the Fifth Amendment of the Federal Constitution."  Munson v. State, 123 
P.3d 1042, 1049 n.48 (Alaska 2005). 

        31      See infra Part IV.C.2. 

        32      Id. 

                                                 -15-                                           6600
 

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

prejudice under Evidence Rule 403.33          Silvernail was charged with murder and testified 

on his own behalf, attempting to establish a defense of duress.34            On cross-examination, 

the prosecutor questioned Silvernail about why he did not explain his claim of duress 
when     he   was   initially   stopped   by   police.35 Silvernail's   counsel   objected   on   Fifth 

Amendment grounds, but the trial court ruled that questions about Silvernail's pre-arrest 
silence were admissible.36 

                The court of appeals held that although the trial court was correct in its 

reasoning that the federal constitution only prohibits evidence of post-Miranda silence, 

the trial court should have excluded the evidence of Silvernail's pre-arrest silence under 
Evidence Rule 403.37       The court of appeals noted that despite the U.S. Supreme Court's 

interpretation   of   the   federal   constitution,   "numerous   state   courts   have   continued   to 

condemn       evidence    of  pre-Miranda       silence,"   relying   on   both   state  constitutional 
provisions and the rules of evidence.38           The court of appeals further recognized that 

whether     it  is  grounded    in  constitutional    protections   or  evidentiary    principles,   the 

prohibition     on  using   evidence     of  a  defendant's    silence  is  motivated    by   the  same 

        33      Silvernail, 777 P.2d at 1174-79.   Evidence Rule 403 provides:  "Although 

relevant, evidence may be excluded if its probative value is outweighed by the danger 
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations 
of undue delay, waste of time, or needless presentation of cumulative evidence." 

        34      Silvernail, 777 P.2d at 1171. 

        35      Id. at 1172. 

        36      Id. at 1172-73. 

        37      Id. at 1174-78.     The court of appeals reviewed this claim under the plain 

error rule because Silvernail did not base his objection at trial on Evidence Rule 403. 
Id. at 1174. 

        38      Id. at 1175. 

                                                  -16-                                            6600
 

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

concerns: "The underlying rationale of the constitutional bar against admitting evidence 

of a defendant's post-arrest silence is the concern that such evidence is only minimally 

probative, while possessing a high potential for prejudice to the defendant's case.  This 
is the same basic concern expressed in Alaska Rule of Evidence 403."39                      The court of 

appeals reiterated that "the Alaska Supreme Court and this court have both expressed 

distrust   of   silence   as   probative   evidence   of   guilt.  [Alaska   courts]   have   previously 

recognized the low probative value of silence, as well as its concomitantly high potential 
for prejudice."40 

                 The   court   of   appeals   went   on   to   discuss   why   the   probative   value   of   a 

defendant's silence is inherently low.           The court of appeals observed that while silence 

can potentially be probative "under circumstances in which it would have been natural 

for the accused to speak," there are many reasons why an accused's "natural" response 
would   be   to   remain   silent.41   A   defendant's   silence   might   be   motivated   by   fear   or 

intimidation; a failure to understand the question or realize that a reply was necessary; 

an   unwillingness   to   incriminate   another;   mistrust   of   law   enforcement;   or   simply   an 
awareness of his right to remain silent.42 

                 The court of appeals concluded that, given these various motivations for 

silence, "distinctions between pre-arrest, post-arrest, and post-Miranda silence" are of 

"little significance" when "the issue is whether the accused's silence is probative of 

        39       Id. at 1174. 

        40       Id. at 1175 (internal citations omitted). 

        41       Id. at 1176-77. 

        42       Id. at 1177-78 (citing  United States v. Hale, 422 U.S. 171, 177 (1975); 

People v. Conyers, 420 N.E.2d 933, 935 (N.Y. 1981); Farley v. State, 717 P.2d 111, 112 
(Okla. App. 1986)). 

                                                    -17-                                              6600
 

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

guilt."43  The court of appeals noted that although Silvernail had not yet been arrested, 

he was "engaged by the police in a plainly confrontational setting" and "was clearly not 

obligated   to   respond   to   the   officers   who   stopped   him.     His   silence   may   well   have 
reflected nothing more than his awareness of and reliance on this right."44                    Reiterating 

that "the potential prejudice from this line of inquiry is both obvious and substantial," the 

court   of   appeals   held   that   evidence   of   Silvernail's   pre-arrest   silence   was   "plainly 
improper under Alaska Rule of Evidence 403."45 

                 Silvernail's conclusion that there is little to distinguish between pre- and 

post-arrest silence when the issue is whether an accused's silence is probative of guilt is 

sound, and we adopt it.          We recognize that Evidence Rule 403 is a balancing test and 

thus   necessarily   contemplates   a   case   where   evidence   of   pre-arrest   silence   is   more 

probative than prejudicial.         Given the numerous reasons that silence can be a natural 

response, in most cases an accused's pre-arrest silence will be ambiguous at best, and the 

high   potential   for   unfair   prejudice   will   require   evidence   of   pre-arrest   silence   to   be 

prohibited for substantive or impeachment value.  Of course, any evidence of post-arrest 

silence, whether or not Miranda warnings were administered, remains prohibited under 

article I, section 9 of the Alaska Constitution. 

        B.       The Prosecutor's Comments On Adams's Silence Were Not Justified. 

                 Adams argues that the prosecutor's remarks encompassed both his pre- 

arrest   and    post-arrest   silence   and    therefore    were   inadmissible      under   either   theory 

discussed above.       The State does not dispute that the prosecutor referenced Adams's 

silence,   but   responds   that   distinctions   between   pre-   and   post-arrest   silence,   or   even 

        43       Id. at 1177. 

        44       Id. at 1178 (internal citations and quotation marks omitted). 

        45       Id. 

                                                    -18-                                                 6600 

----------------------- Page 19-----------------------

between state and federal law, are unimportant in this case because "there is one common 

circumstance in which it is entirely proper for the prosecutor to mention a defendant's 

silence to the jury. . . . [I]t is proper for the prosecutor to reference a defendant's silence 
when the defendant himself has put his silence into question."46            The State maintains that 

Adams argued through his counsel that he had been denied the opportunity to tell his side 

of the story, and therefore "opened the door for the prosecutor to make valid references 

to Adams'[s] pre- and post-arrest silence." 

                The State points to two statements made by Adams's lawyer to support its 

argument.     First, during his opening statement after the State's case-in-chief, defense 

counsel told the jury: 

                This   case   basically   has   to   do   with   the   credibility   of  the 
                witnesses and what you believe from what [K.S.] told you 
                and what Mr. Adams is going to tell you.  Promise you right 
                now, Mr. Adams is going to testify.            Mr. Adams has been 
                waiting since February to tell you his side of the story.  He 
                wants you to hear the other side of the story so that you can 
                make a decision . . . . 

(Emphasis added.)         The State argues that the sentence "Mr. Adams has been waiting 

since February to tell you his side of the story" creates a "reasonable inference" that 

"those with authority, specifically the police, had denied Adams the opportunity to tell 

his version of what had happened between him and K.S." The State further contends that 

Adams's      counsel    "planted    the   seed"   for  this  inference    when    he   cross-examined 

Lieutenant Swisher, one of the police officers involved in the case, and asked, "[a]nd you 

didn't interview Leroy Adams in connection with this case, did you?" 

        46      See United States v. Robinson, 485 U.S. 25, 32 (1988) (holding that where 

"the prosecutor's reference to the defendant's opportunity to testify is a fair response to 
a claim made by defendant or his counsel" there is no violation of the privilege against 
self-incrimination). 

                                                  -19-                                               6600 

----------------------- Page 20-----------------------

                The State's argument with respect to the cross-examination of Lieutenant 

Swisher ignores the context of defense counsel's questions. Lieutenant Swisher testified 

very briefly that he took over the case from Trooper Monigold, sent evidence to the 

crime lab, and conducted follow-up interviews. On cross-examination, Adams's counsel 

asked Lieutenant Swisher only three questions establishing that he came into the case a 

few weeks after the incident and did not interview Adams or K.S.  It is obvious from the 

transcript that these questions were meant to demonstrate that Lieutenant Swisher had 

only minimal involvement in the case, not that he prevented Adams from telling his side 

of the story or that the "police had not properly investigated [the] case." 

                We turn next to defense counsel's opening   statement.               When read as a 

whole, and in the context of the rest of the defense case, it would be unreasonable to 

interpret that statement as an argument that the police had prevented Adams from telling 

his side of the story.  Defense counsel's opening statement was short and unremarkable: 

                Good morning. Just a few quick words before we present our 
                case.   I think that given what you saw last week, where you 
                saw that large list of witnesses that were going to testify, you 
                were told that there was going to be some scientific evidence 
                in this case, you - told that there were going to be some 
                doctors testifying in this case.       I think this case is going to 
                play out to be a little more simple than what you guys first 
                saw last week when you came in here. 

                This   case   basically    has   to   do   with   the   credibility   of   the 
                witnesses and what you believe from what [K.S.] told you 
                and what Mr. Adams is going to tell you.  Promise you right 
                now, Mr. Adams is going to testify.           Mr. Adams has been 
                waiting since February to tell you his side of the story.  He 
                wants you to hear the other side of the story so that you can 
                make the decision about whether or not [K.S.] was aware that 
                she   was   having   sexual   intercourse   with   him   at   the   time. 
                Because that's all this case is about.   It's very simple.  Don't 
                think there's any question about whether or not there was 

                                                  -20-                                            6600
 

----------------------- Page 21-----------------------

              intercourse between Mr. Adams that night and [K.S.].        It's 
              going to be whether she was aware of it and whether he knew 
              that she was aware of it. 

              After you hear all the evidence, we think that you will not be 
              able to find beyond a reasonable doubt that Mr. Adams is 
              guilty of this crime. Thank you. 

              Nothing in defense counsel's statement suggests that the police denied 

Adams a chance to tell his side of the story or that the defense planned to advance any 

theory of police misconduct. It is clear that when defense counsel repeatedly said "you," 

he was addressing the members of the jury and simply meant to emphasize that Adams 
was eager to testify.47 The State's argument that defense counsel created a "reasonable 

inference" that the authorities denied Adams the chance to tell his side of the story would 

perhaps be more persuasive if there were any other evidence in the transcript that showed 

the defense pursuing this theory. But nothing in Adams's testimony or any aspect of the 

defense case supports the claim that Adams was suggesting the police mishandled the 

case or prohibited Adams from explaining his side of the story. 

              This is particularly apparent in comparison to the case the State cites in 

support of its argument.  In United States v. Robinson, the defendant chose not to testify, 

and in closing argument defense counsel contended that the government had "breached 

its duty to be fair" and "had unfairly denied [Robinson] the opportunity to explain his 
actions."48 In rebuttal, the prosecutor told the jury that Robinson "could have taken the 

       47     Furthermore, by the time defense counsel gave his opening statement, the 

jury had already heard testimony from Trooper Monigold that he interviewed Adams the 
morning after the incident, so it would seem very odd for Adams to argue that the police 
prevented him from giving a statement. 

       48     Robinson, 485 U.S. at 27 (internal quotation marks omitted). 

                                            -21-                                      6600
 

----------------------- Page 22-----------------------

stand   and   explained   it   to   you,   anything   he   wanted   to."49  The   U.S.   Supreme   Court 

concluded   that   "the   prosecutorial   comment   did   not   treat   the   defendant's   silence   as 

substantive evidence of guilt, but instead referred to the possibility of testifying as one 

of several opportunities which the defendant was afforded, contrary to the statement of 
his   counsel,   to   explain   his   side  of   the   case."50 The   Court   held   that   although   the 

prosecutor could not "on his own initiative" ask the jury "to draw an adverse inference 

from a defendant's silence," the prosecutor was permitted to give a "fair response" to 
claims made by Robinson or his counsel.51 

                 This   case   is   distinguishable   from Robinson   for   two   reasons.       First,   the 

defense counsel inRobinson expressly claimed that the government had denied Robinson 

the ability to tell his side of the story; here, the State's argument that defense counsel 

created a "reasonable inference" of such a theory is unpersuasive.  Second, the remarks 

made by the prosecutor in Robinson were a direct response to defense counsel's claims, 

while in this case, the prosecutor never indicated that he was responding to an argument 

made by Adams, and instead appeared to comment on Adams's silence "on his own 
initiative."52 

                 The State also argues that the prosecutor's comments on Adams's silence 

were justified because they were a legitimate method of demonstrating inconsistencies 

in Adams's testimony and of reminding the jury that because Adams testified last he 

could tailor his testimony to the prosecution's case.  These arguments are without merit. 

The State was of course free to cross-examine Adams on any inconsistencies between 

        49       Id. at 28. 

        50       Id. at 32. 

        51       Id. 

        52       See id. 

                                                    -22-                                              6600
 

----------------------- Page 23-----------------------

the statement he gave to Trooper Monigold the morning after the incident and Adams's 

testimony at trial. But the prosecutor's argument that Adams's silence the morning after 

the assault was inconsistent with his testimony at trial was wholly impermissible.                 This 

is precisely what the law prohibits, because as the U.S. Supreme Court has concluded, 

"it   would    be  fundamentally      unfair"   to  allow   "silence   to  be   used   to  impeach    an 
explanation subsequently offered at trial."53         Similarly, while the State is correct that "a 

prosecutor   may   point   out   to   the   jury   that   the   defendant,   by   going   second,   has   the 
opportunity to tailor his defense to the government's evidence,"54 the prosecutor remains 

forbidden     from    commenting      on  a  defendant's   pre-trial   silence    as  part   of   such  an 

argument. 

                Because Adams did not open the door to the prosecutor's comments, the 

prosecutor's remarks were improper, whether under article I, section 9 of the Alaska 

Constitution or under Evidence Rule 403. Adams contends that the prosecutor's remarks 

amounted to a state constitutional violation because two exchanges during the cross- 

examination addressed Adams's post-arrest silence: 

        53      Doyle v. Ohio, 426 U.S. 610, 618 (1976) (referring to post-arrest silence). 

The State's reliance on our decision in Davis v. State, 501 P.2d 1026 (Alaska 1972), and 
the court of appeals' decision in  Weston v. State, 656 P.2d 1186 (Alaska App. 1982), 
rev'd on other grounds, Weston v. State, 682 P.2d 1119 (Alaska 1984), is misplaced.  In 
Davis, the defendant claimed that her statements to the police immediately after her arrest 
were evidence of innocence, and the prosecutor pointed out in response that Davis did 
not provide her   full exculpatory story upon arrest.           Davis, 501 P.2d at 1029-30.   In 
Weston,     the  defendant     claimed    that  he  cooperated     fully  with   the  police,   and   the 
prosecutor pointed out in response that during his first interview Weston became silent 
and stopped cooperating.         Weston, 656 P.2d at 1190.           In   both cases, the defendants 
opened the door to comments on their silence, but neither case is analogous to the facts 
here. 

        54      See Portuondo v. Agard, 529 U.S. 61 (2000); Gray v. State, 463 P.2d 897, 

907 (Alaska 1970). 

                                                  -23-                                            6600
 

----------------------- Page 24-----------------------

                 Q:      And   then   you   refused   to   talk   to   police   any   further. 
                         Correct? 

                 A:       That's right. 

                 Q:       Okay.   Until today? 

                 A:      I was exercising my right. 

                 . . . . 

                 Q:       Now, new information that we heard from you today 
                         is everything that happened in your apartment, correct? 
                         Would you agree to that?         From your perspective? 

                 A:       What do you mean by everything? 

                 Q:       Well, we didn't know anything about what happened 
                         in your apartment from you, because you didn't talk to 
                         police, until after hearing all the evidence so far in the 
                         case. 

(Emphasis added.)  Adams argues that the references in this passage to "until today" and 

"until after hearing all the evidence so far in this case" necessarily encompassed his post- 

arrest silence because he was arrested prior to the trial. 

                 We agree with Adams that some of the prosecutor's remarks commented 

on his post-arrest silence.  But the distinction between pre-arrest and post-arrest silence 

is not particularly important in this case because the prosecutor's comments would be 

inadmissible   under  Silvernail   even   if   they   concerned   only   pre-arrest   silence.          The 

inherently low probative value of pre-arrest silence and its concomitantly high risk of 

unfair prejudice are no different here than in the facts confronted by the Silvernail court. 

Adams, like Silvernail, was "engaged by the police in a plainly confrontational setting," 

and   "[h]is   silence   may   well   have   reflected   nothing   more   than   his   awareness   of   and 

                                                    -24-                                              6600
 

----------------------- Page 25-----------------------

reliance    on   [his   rights]."55 The     risk  of   unfair   prejudice   outweighed     any   possible 

probative value of Adams's pre-arrest silence, and therefore any comment by the State 

on that silence was inadmissible under Evidence Rule 403.                  This conclusion, however, 

is only the first part of our inquiry because Adams's counsel failed to object to the 

prosecutor's remarks at trial. We thus turn to whether the prosecutor's remarks were not 

only prohibited under Silvernail and the Alaska Constitution, but also amounted to plain 

error. 

        C.	     The Prosecutor's Remarks Amounted To Plain Error: They Affected 
                Substantial Rights And Were Obviously Prejudicial. 

                 1.	     The plain error rule 

                Review   of   a   criminal   defendant's   claim   of   error   not   raised   at   trial   is 

governed   by   Alaska   Criminal   Rule   47(b),   which   provides:   "Plain   errors   or   defects 

affecting   substantial   rights   may   be   noticed   although   they   were   not   brought   to   the 

attention of the court."  Our cases applying Criminal Rule 47(b), however, are in conflict 

with recent decisions of the court of appeals.            We take this opportunity to clarify the 

standard for plain error review under Criminal Rule 47(b). 

                As an initial matter, our cases have consistently held that plain error does 

not exist where the right at issue was intelligently waived or the defendant's decision not 
to object to the error was strategic or tactical.56 

        55	     Silvernail v. State, 777 P.2d 1169, 1178 (Alaska App. 1989). 

        56      Dorman v. State, 622 P.2d 448, 457-58 (Alaska 1981); Owens v. State, 613 

P.2d 259, 261-62 (Alaska 1980); Pulakis v. State, 476 P.2d 474, 479-80 (Alaska 1970); 
Hammonds v. State, 442 P.2d 39, 42-43 (Alaska 1968). 

                                                   -25-	                                              6600 

----------------------- Page 26-----------------------

                Moreover, beginning in the mid-1970s, our cases began to consistently 
define plain error as error that affects substantial rights and is obviously prejudicial.57 

We have generally interpreted "affects substantial rights" to mean that the alleged error 
must "raise[] a substantial and important question"58 such that a failure to address it could 

"undermine   the   fundamental   fairness   of   the   trial   and   contribute   to   a   miscarriage   of 
justice."59  The phrase "obviously prejudicial" has come to encompass two requirements 

- that the error be both obvious and prejudicial.60          A review of our case law shows that 

        57      Larson v. State, 569 P.2d 783, 787 (Alaska 1977);  Hampton v. State, 569 

P.2d 138, 147 (Alaska 1977); Davenport v. State, 543 P.2d 1204, 1206 n.1 (Alaska 
 1975); Thomas v. State, 522 P.2d 528, 531 n.16 (Alaska 1974); Martin v. State, 517 P.2d 
 1399, 1402 (Alaska 1974).          Some cases use the term "substantive rights" instead of 
"substantial rights."     Dorman v. State, 622 P.2d 448, 457 (Alaska 1981); Tuckfield v. 
State, 621 P.2d 1350, 1352 (Alaska 1981); Calder v. State, 619 P.2d 1026, 1029 n.7 
(Alaska 1980); Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979); Torres v. State, 519 P.2d 
788, 795 (Alaska 1974); Burford v. State, 515 P.2d 382, 383 (Alaska 1973). 

                Our early cases defined plain error in various ways that, while sounding 
similar, may not have had precisely the same meaning.  For example, some of our cases 
in the 1960s and early 1970s defined plain error as error that is "obviously prejudicial," 
see, e.g., Bowker v. State, 373 P.2d 500, 505 (Alaska 1962), some defined it as error that 
must be corrected "to effect substantial justice or prevent the denial of fundamental 
rights," see, e.g., Goresen v. State, 432 P.2d 326, 327 (Alaska 1967), and another defined 
it as error that is both "obvious" and "substantial," Dimmick v. State, 449 P.2d 774, 776 
(Alaska 1969). 

        58      Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980);Moreau v. State, 588 

P.2d 275, 280 (Alaska 1978) (quoting Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 
 1973)). 

        59      Raphael   v.   State,   994   P.2d   1004,   1015   (Alaska   2000)   (quoting  United 

States v. Young, 470 U.S. 1, 16 (1985)). 

        60      See id. at 1015 ("We have interpreted the phrase 'plain error' to mean an
 

error that is both obvious and substantially prejudicial."); Brown v. State, 601 P.2d 221,
 
                                                                                        (continued...)
 

                                                  -26-                                            6600
 

----------------------- Page 27-----------------------

in order for a court to find plain error, the error must not be the result of an intelligent 

waiver or a strategic decision not to object; the error must affect substantial rights; the 

error must be obvious; and the error must be prejudicial. 

                 Confusion has persisted, however, over how to apply this standard when 

the alleged error is a constitutional violation.  In our earliest case to directly address this 

subject, Burford v. State, we held that "[d]enial of a constitutional right, in the normal 

case, would affect substantial rights and give rise to plain error" unless the State proves 
that the error was "harmless beyond a reasonable doubt."61                 If the error was harmless 

beyond   a   reasonable   doubt,   "the   rights   of   the   accused   are   not   prejudiced   and   the 
requirements of plain error have not been met."62            In contrast, in cases where the alleged 

error   was   not   a   constitutional   violation,   we   applied   our   traditional   harmless   error 

standard of whether the defendant has shown that the error appreciably affected the 
jury's verdict.63   In other words, Burford identified two differences in applying the plain 

error doctrine to constitutional violations: First, constitutional violations always "affect 

substantial   rights,"   while   others   may   not;   and,   second,   constitutional   violations   are 

always prejudicial unless the State proves they are harmless beyond a reasonable doubt, 

        60(...continued) 

226 (Alaska 1979) ("[T]o constitute plain error, an error or defect must be obvious, affect 
substantial rights, and be obviously prejudicial."); Gilbert, 598 P.2d at 92 ("Where the 
error   is   not   obvious   or   immediately   apparent   we   should   abstain   from   a     full-scale 
examination of it, for the basic rule is that failure to object to offered evidence waives the 
objection."). 

        61       515 P.2d at 383 (citing Chapman v. California, 386 U.S. 18, 23 (1967)); 

see also Sidney v. State, 571 P.2d 261, 264 (Alaska 1977). 

        62      Burford, 515 P.2d at 383. 

        63       See, e.g., Kristich v. State, 550 P.2d 796, 801 (Alaska 1976) (citing Love 

v. State, 457 P.2d 622 (Alaska 1969)). 

                                                   -27-                                             6600
 

----------------------- Page 28-----------------------

while other errors are only prejudicial if the defendant proves that the error appreciably 

affected    the   outcome.    But   constitutional   errors   must   still   be   obvious   in   order   to 
constitute plain error,64 and they must not have been the result of intelligent waiver or a 

strategic decision.65 

                We   reaffirmed   the   approach   outlined   in  Burford   in   1974   in  Martin   v. 
State,66 in 1979 in Brown v. State,67 and in 1981 in Dorman v. State.68                But in 1983 the 

court of appeals held in  Van Hatten v. State that the standard of prejudice for all plain 

error cases, including those involving constitutional error, was "whether it can be fairly 
said that the alleged error did not appreciably affect the jury's verdict."69  To support its 

holding the court of appeals quoted language from our decision in Gilbert v. State: 

                [N]ot all constitutional claims require extensive review under 
                the    plain   error   rule.   To    say   that   asserted    errors   of 
                constitutional dimension must all be examined in depth under 
                the plain error rule would circumvent the strong basic policy 

        64      See, e.g., Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980) ("[T]he 

requirement . . . that the alleged defect be readily apparent . . . applies not just to non- 
constitutional issues but to those of constitutional dimension as well."). 

        65      See, e.g.,Raphael v. State, 994 P.2d 1004, 1015-16 (Alaska 2000);Dorman 

v. State, 622 P.2d 448, 457-58 (Alaska 1981). 

        66      517 P.2d 1399, 1402 (Alaska 1974) ("Denial of a constitutional right affects 

substantial rights.  Therefore, plain error will result unless the defect is harmless beyond 
a reasonable doubt."). 

        67      601 P.2d 221, 226 (Alaska 1979) ("[W]here the error denies a constitutional 

right, by definition a substantial right is affected, and reversal is required unless the error 
is found to be harmless beyond a reasonable doubt."). 

        68      622 P.2d at 459 (applying the standard of harmless beyond a reasonable 

doubt to plain error review of a constitutional error). 

        69      666 P.2d 1047, 1057 (Alaska App. 1983). 

                                                  -28-                                            6600
 

----------------------- Page 29-----------------------

                which requires that, in order to preserve an error for appeal, 
                an objection must have been made in the trial court.[70] 

The    State,   pointing   to Van    Hatten,   now    suggests    that   our  plain  error   rulings   are 
inconsistent71 and urges us to resolve this perceived inconsistency by adopting the U. S. 

Supreme Court's interpretation of the federal analogue to Alaska Criminal Rule 47(b).72 

We decline to do so for two reasons. 

                First, the language in Gilbert cited by the court of appeals in  Van Hatten 

does not pertain to the prejudice standard for constitutional errors. When read in context, 

it is apparent that in  Gilbert we were discussing the requirement that plain error be 

        70      Id. at 1056 (quoting Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979)). 

        71      In its initial briefing, the State conceded that the appropriate standard was 

whether the error was harmless beyond a reasonable doubt.                  After oral argument, the 
State requested and was permitted supplemental briefing to address potential ambiguity 
in our case law concerning the plain error standard for constitutional errors. 

        72      Federal     plain  error   review    is  governed    by  Federal    Rule   of  Criminal 

Procedure 52(b).  The U. S. Supreme Court held in United States v. Olano, 507 U.S. 725 
(1993), that federal plain error review is governed by a three-part test: (1) there must be 
error, and the right at issue must not have been intentionally relinquished; (2) the error 
must be plain, meaning obvious; and (3) the error must affect substantial rights, meaning 
it must have affected the outcome of the proceeding.  Id. at 732-35. 

                The first and second prongs of the Olano test are the same as our first two 
requirements under Alaska Criminal Rule 47(b).               But unlike the Olano court, we have 
interpreted "affect substantial rights" not to mean that the error was prejudicial, but 
instead   to   mean   that   the   error   pertains   to   an   important   right   that   could   affect   the 
fundamental fairness of the proceeding.           We have required a showing of prejudice as a 
separate factor.      And, as explained in detail above, when the error is a constitutional 
violation, it will always affect substantial rights and will be prejudicial unless it was 
harmless beyond a reasonable doubt. 

                                                  -29-                                             6600
 

----------------------- Page 30-----------------------

obvious.73    Immediately prior to the language quoted in Van Hatten, we wrote:  "Where 

the error is not obvious or immediately apparent we should abstain from a full-scale 
examination of it."74     One of the underlying principles of the plain error doctrine is that 

the error must have been so obvious that the trial court should have noticed it despite the 

absence of an objection.  Gilbert simply explained that this principle applies even when 
the appellant alleges a constitutional violation.75 

                Second, although we did not expressly refer to  Van Hatten, our recent 

decision in Raphael v. State reaffirmed our pre- Van Hatten case law.  Quoting Burford, 

we held in Raphael that "denial of a defendant's constitutional rights, 'in the normal 
case, would . . . give rise to plain error' "76 unless "the constitutional error was harmless 

        73      See Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980) (citing Gilbert 

for   the   proposition   that   alleged   constitutional   errors   must   be   "readily   apparent"   to 
constitute plain error). 

        74      Gilbert, 598 P.2d at 92. 

        75      The State also argues that our decision in Brown v. State, 601 P.2d 221 

(Alaska 1979), is inconsistent with Burford.            The State points to language from Brown 
that says:   "[W]e have never held that the standard of harmless beyond a reasonable 
doubt applies merely because a constitutional right is involved."  Id. at 226 (emphasis 
added).     But the State takes this language out of context.        In Brown, we concluded that 
there was no constitutional violation.  Id.        The passage quoted by the State was simply 
making the obvious point that the alleged constitutional violation must actually have 
occurred in order to trigger the corresponding harmless error standard.   Only a few lines 
earlier, Brown actually reaffirmed our holding in Burford :              "[W]here the error denies a 
constitutional right, by definition a substantial right is affected, and reversal is required 
unless the error is found to be harmless beyond a reasonable doubt."                    Id. (emphasis 
added). 

        76      Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000) (quoting Burford v. 

State, 515 P.2d 382, 383 (Alaska 1973)). 

                                                  -30-                                            6600
 

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beyond a reasonable doubt."77           Our decisions, starting with Burford and on through 

Raphael, are consistent on this point. The plain error standard announced in Van Hatten 

is not controlling.       Establishing plain error under Criminal Rule 47(b) requires the 

following:     (1) there must be error, and the error must not have been the result of an 

intelligent waiver or a tactical decision not to object; (2) the error must be obvious, 

meaning that it should have been apparent to any competent judge or lawyer; (3) the 

error   must   affect   substantial   rights,   meaning   that   it   must   pertain   to   the   fundamental 

fairness   of   the   proceeding;   and   (4)   the   error   must   be   prejudicial. A   constitutional 

violation will always affect substantial rights and will be prejudicial unless the State 

proves that it was harmless beyond a reasonable doubt. An error that is not constitutional 

in nature will be prejudicial if the defendant proves that there is a reasonable probability 

that it affected the outcome of the proceeding. 

                2.       The prosecutor's remarks in this case amounted to plain error. 

                Applying these standards to the present case, we conclude that there was 

plain error.   First, there is no evidence that Adams's failure to object was strategic.  In 

Dorman v. State, we explained that where a defendant "neither injected the issue of his 

silence into the case nor obtained a benefit from the prosecutor's inculpatory comment," 

there is no basis for inferring that the failure to object was tactical "unless it is implied 
that defense counsel invited error for the purpose of obtaining a reversal on appeal."78 

Such a conclusion, we cautioned, "is not one which should be lightly inferred in any 

        77      Id. 

        78      622 P.2d 448, 458 (Alaska 1981). 

                                                  -31-                                                6600 

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case, for it would preclude review of the most fundamental defects under the plain error 
doctrine."79 

                 We have already determined that Adams did not inject the issue of his 
silence   into   the   case,80 and   Adams   did   not   obtain   any   discernible   benefit   from   the 

prosecutor's   comments.        This   case   turned   chiefly   on   credibility,   and   the   prosecutor 

argued that Adams was a less credible witness because he did not talk to the police.  The 

State argues that "Adams cannot . . . show that defense counsel did not make a tactical 

decision to refrain from objecting to the prosecutor's references to Adams'[s] silence" 

because "[d]efense counsel was well aware that Adams'[s] silence could not be used 

against Adams . . . during the first part of the state's case-in-chief."  But the prosecutor's 

remarks during cross-examination occurred four days after the sidebar discussion about 

Adams's       silence   during   the   State's  case-in-chief,     and   his  remarks    during    closing 

argument occurred a full month later.           Defense counsel's awareness of Adams's rights 

during the State's case-in-chief is not enough to show that his failure to object later in 
the trial was tactical.81 

                 Second, the error in this case was obvious.           The major cases establishing 

that Alaska law protects a defendant's pre- and post-arrest silence were all decided in the 
        82 Adams was tried in late 2005. Thus, the law protecting Adams's right to silence 
1980s; 

        79      Id. 

        80       See supra Part IV.B. 

        81       We note that if the trial court observes an obvious error such as the one in 

this case and believes that defense counsel's failure to object may have been tactical, a 
best practice might be to inquire outside the presence of the jury about the lack of an 
objection and offer a curative instruction. 

        82       Silvernail v. State, 777 P.2d 1169 (Alaska App. 1989);Nelson v. State, 691 

                                                                                           (continued...) 

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was well established at the time of his trial and the prosecutor committed an obvious 

violation    of  that  right   by  expressly    arguing    that  Adams's     silence   diminished      his 
credibility.83 

                Third, the prosecutor's comments affected Adams's substantial rights.  As 

explained above, any comment on Adams's post-arrest silence would affect substantial 

rights because it would violate article I, section 9 of the Alaska Constitution.  But those 

comments that were limited to Adams's pre-arrest silence also affected his substantial 

rights.   As the court of appeals explained in Silvernail v. State, whether grounded in the 

Alaska constitution or the rules of evidence, the   prohibition on using evidence of a 

defendant's silence is motivated by the same concern: "The underlying rationale of the 

constitutional bar against admitting evidence of a defendant's post-arrest silence is the 

concern that such evidence is only minimally probative, while possessing a high potential 

for prejudice to the defendant's case. This is the same basic concern expressed in Alaska 
Rule   of   Evidence   403."84    To   put   it   another   way,   the   introduction   of   evidence   of   a 

defendant's silence, whether pre- or post-arrest, affects substantial rights in precisely the 

same way - by admitting evidence that has an inherently low probative value but a high 

potential for unfair prejudice.   Admission of such evidence threatens the fairness of the 

proceeding and therefore affects substantial rights. 

                Finally, the prosecutor's comments were prejudicial. We conclude that the 

State has not shown that the prosecutor's improper questions and comment about post- 

        82(...continued) 

P.2d 1056 (Alaska App. 1984); Dorman, 622 P.2d 448; Gunnerud v. State, 611 P.2d 69 
(Alaska 1980). 

        83      See supra Part IV.A-B. 

        84      Silvernail, 777 P.2d at 1174. 

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----------------------- Page 34-----------------------

arrest silence were harmless beyond a reasonable doubt.               And even if our analysis is 

limited to the non-constitutional claim that the prosecutor commented on Adams's pre- 

arrest silence, we conclude that Adams has shown that there is a reasonable probability 

that the error affected the outcome of the case. 

                Our decisions inDorman and Gunnerud and the court of appeals' decisions 

in  Van Hatten and Silvernail identify several factors that should be considered when 

determining whether a prosecutor's comments on a defendant's silence were harmless 

error.   First, of course, is the strength   of the State's other evidence.           Gunnerud and 

Silvernail instruct that comment on a defendant's silence is more likely to be prejudicial 
if the conviction depended primarily on conflicting witness testimony.85 

                This case hinged primarily on the conflicting testimony of Adams and K.S. 

The elements of the crime at issue were whether K.S. was unaware of the sexual act and 

whether Adams knew that she was unaware.                Adams testified that K.S. was aware and 

consented to the sexual act.  K.S. testified that after going to see Emma Hawley, the next 

thing she remembered was waking up with Adams on top of her engaged in intercourse, 

and that she did not consent.       The State's other chief witness was Mae Adams.  Some 

parts of Mae Adams's testimony did contradict Adams's testimony - for instance, Mae 

testified that K.S. was just lying on the bed with her eyes open, while Adams testified 

that   K.S.   was   actively   participating. But   other   aspects   of   Mae's   story   corroborated 

Adams's testimony, and Adams attempted to impeach Mae's credibility based on the fact 

        85      Gunnerud, 611 P.2d at 76 ("In determining whether the error was harmless 

we note that Gunnerud's conviction depended principally upon Baker's testimony."); 
Silvernail, 777 P.2d at 1178-79 ("The issue of Silvernail's guilt rested heavily on the 
jury's evaluation of the relative credibility of the conflicting testimony . . . . We are 
therefore unable to conclude that the erroneous admission of the disputed evidence did 
not appreciably affect the jury's verdict."). 

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----------------------- Page 35-----------------------

that she accepted a plea bargain on the eve of trial that allowed her to serve minimal jail 

time and avoid sex offender registration in exchange for her testimony. 

                Second, in Dorman we observed that comments on a defendant's silence 

are   more    likely  to  be  prejudicial   if  they  occur,   as  they  did  here,  during    closing 
argument.86     In  Dorman,   we   noted   that   plain   error   review   of   such   comments   was 

appropriate in part because of our "doubts concerning the effectiveness of an objection 
made during final argument."87        We explained: 

                A timely objection could have prevented the evidence from 
                ever reaching the jury.      However, an objection during final 
                argument   is   not   so   effective. The   prejudicial   comment   is 
                before the jury before the objection can be made, and   the 
                curative effect of an admonition of the court to disregard the 
                comment is of debatable value.[88] 

The court of appeals in  Van Hatten also recognized that comments on a defendant's 

silence are more likely to be prejudicial if the comment was "express" rather than a "brief 

and passing" reference and if the evidence was "directly elicited by the prosecutor's 
questioning."89    All of these circumstances are present here; the prosecutor first directly 

elicited   evidence   of   Adams's   silence   on   cross-examination,   and   then   he   expressly 

commented on that silence during his closing argument.              We conclude that Adams has 

shown that there is a reasonable probability that the prosecutor's comments on pre-arrest 

        86      Dorman, 622 P.2d at 458-59; accord Van Hatten v. State, 666 P.2d 1047, 

1056 (Alaska   App. 1983) (explaining that "the possibility of any prejudicial impact 
flowing from the improper testimony concerning Van Hatten's decision to remain silent" 
was significantly diminished in part because "[a]t no point in his final argument did the 
prosecutor mention this evidence"). 

        87      Dorman, 622 P.2d at 458. 

        88      Id. (quoting Padgett v. State, 590 P.2d 432, 435 (Alaska 1979)). 

        89      Van Hatten, 666 P.2d at 1056. 

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silence affected the jury's verdict and that the State has not shown that the comments on 

post-arrest silence were harmless beyond a reasonable doubt. Thus there was plain error 

as to the comments on both pre-arrest and post-arrest silence. 

V.     CONCLUSION 

              Because the prosecutor's comments on Adams's invocation of his right to 

silence amounted to plain   error, we REVERSE the court of appeals and REVERSE 

Adams's conviction. 

                                           -36-                                     6600
 
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