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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Khan v. State (6/15/2012) sp-6681

Khan v. State (6/15/2012) sp-6681

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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IZAZ KHAN,                                      ) 

                                                )       Supreme Court No. S-13501 

                        Petitioner,             )       Court of Appeals No. A-09552 


        v.                                      )       Superior Court No. 3UN-04-00340 CR 


STATE OF ALASKA,                                )       O P I N I O N 


                        Respondent.             )       No. 6681 - June 15, 2012 


                Petition for Hearing from the Court of Appeals of the State of 

                Alaska, on appeal from the Superior Court of the State of 

                Alaska, Third Judicial District, Unalaska, Sharon Gleason, 


                Appearances:  Renee McFarland, Assistant Public Defender, 

                and    Quinlan     Steiner,   Public    Defender,     Anchorage,      for 

                Petitioner.  Diane L. Wendlandt, Assistant Attorney General, 

                Office of Special Prosecutions & Appeals, Anchorage, and 

                John J. Burns, Attorney General, Juneau, for Respondent. 

                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 

                Stowers, Justices. 

                FABE, Justice. 


                Petitioner Izaz Khan was indicted on one count of perjury based on four 

allegedly false statements made in a financial affidavit.  At trial, the court instructed the 

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jury, without objection from Khan, that they did not need to be unanimous regarding 

which statements were false.         The jury convicted Khan. 

                The     court   of  appeals    affirmed,    concluding     that   even   assuming     the 

instruction was erroneous, the error would not rise to the level of plain error.  The court 

of appeals reasoned that any error was not prejudicial because Khan had presented a 

single defense that applied to all four statements. 

                Khan   filed   a   petition   for   hearing,   which   we   granted   on   the   following 

questions: "(1) whether a unanimous jury verdict is a right under the Alaska Constitution, 

and (2) if so, the appropriate plain error analysis for reviewing the effect of a contrary 

jury instruction given without any objection by the defendant." 

                Both parties agree that the right to a unanimous jury verdict is constitutional 

in nature.    We agree that Khan's right to have the jury unanimously agree on what 

criminal conduct he committed is protected by the Due Process Clause of the Alaska 


                The parties disagree about the proper plain error analysis for constitutional 

errors.   But last year, in a case decided after we granted this petition, we clarified our 

constitutional plain error analysis in Adams v. State .1         Khan now argues that we should 

depart from Adams to adopt the analysis of the Supreme Court of Hawai'i in Nichols v. 

State2 in analyzing erroneous jury instructions.  The State, in turn, argues that we should 

depart from Adams and adopt the federal plain error standard from the United States 

Supreme       Court's   decision    in United     States   v.  Olano.3   We     decline   both   parties' 

invitations to reconsider Adams , and we reaffirm our decision in that case.  Adams sets 

        1       261 P.3d 758 (Alaska 2011). 

        2        141 P.3d 974 (Haw. 2006). 

        3       507 U.S. 725 (1993). 

                                                   -2-                                               6681 

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out the correct analysis of the plain error doctrine for an erroneous jury instruction that 

violates a defendant's constitutional rights.         Because the court of appeals did not apply 

the   correct    standard    for  constitutional    plain   error,  we   remand     this  case   for   a 

determination   whether,   if   the   challenged   jury   instruction   was   erroneous,   reversal   is 

required under the proper plain error analysis. 


        A.      Facts 

                In October 2004 Petitioner Izaz Khan, a homeless resident of Unalaska, was 

being held in jail on misdemeanor charges.4           Khan asked a Department of Corrections 

employee for the paperwork necessary to obtain court-appointed counsel.                  Khan filled 

out the paperwork, including a financial statement, and signed it. 

                In   the  financial   statement,    Khan    stated  that  he   had   last  worked    on 

September 11, 2001, that he had no employers in the preceding 12 months, and that he 

had received no income in the preceding 12 months.              He also left blank a space on the 

form asking the value of any motor vehicles and listed his total assets as "None." 

                Based on these four statements, which the State alleged were false, the State 

indicted Khan for one count of perjury, a felony. 

        B.      Proceedings 

                At trial, the State presented evidence that Khan's four statements were not 

true.  An employee with the Department of Labor testified that Khan had worked for 

several employers since 2001, including three in the preceding year, and that he had 

earned   roughly   $3,000   in   the   preceding   year.    Additionally,   Department   of   Motor 

Vehicles records showed that Khan owned a truck at the time he signed his affidavit. 

        4       Most facts come from the court of appeals' opinion Khan v. State , 204 P.3d 

1036, 1038 (Alaska App. 2009). 

                                                  -3-                                              6681 

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Khan did not dispute the falsity of his statements, but rather he argued that due to his 

"anger, fright, agitation, and frustration, he was not paying careful attention to how he 

filled   out  the  affidavit  -   and,  therefore,   he  did  not  make   these   false  statements 

'knowingly.' "5 

                The superior court instructed the jury that to find Khan guilty of perjury, 

it did not have to agree which of the four statements was false.6       Khan's attorney did not 

object to this instruction.   Khan was convicted, and he appealed. 

               Among his points on appeal, Khan argued that the superior court erred in 

giving this jury instruction, maintaining "that it was unlawful for the jury to convict him 

unless    the  jurors   reached   unanimous     agreement     concerning     which   statement    or 

statements were knowingly false."7        The court of appeals said that "[i]n the context of 

jury instructions, '[p]lain error exists when [the] jury instruction obviously create[d] a 

high    likelihood   that  the  jury  w[ould]   follow   an   erroneous    theory  resulting   in  a 

        5      Id. at 1043. 

        6       The jury instruction read: 

                       You are instructed that there are alternative theories by 

               which the defendant may be found guilty of this charge.  You 

               need     not   be   unanimous      regarding    which    theory   the 

               prosecution has proven.        It is sufficient that you each agree 

               that the prosecutor has   proven at least one of the theories 

               beyond a reasonable doubt.   If you are so satisfied, then you 

                shall find the defendant guilty, notwithstanding the fact that 

               you may not have reached complete unanimity as to which 

               theory of guilt applies to the case.  This is not required by the 


        7      Khan , 204 P.3d at 1040. 

                                                -4-                                           6681

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miscarriage of justice.' "8       The court of appeals noted that "jurors must 'unanimously 


agree that the defendant committed the wrongful deed' "  and therefore "assume[d]" that 

the superior court erred in giving the jury instruction.10          But the court of appeals, relying 

on State v. Covington,11 concluded that any error was harmless because Khan presented 

a   "blanket   defense"   -   namely   that   he   lacked   the   requisite   mens   rea   -   and   so   the 

superior court's error "did not affect the jury's verdict."12           The court therefore affirmed 

Khan's conviction.13 

                 Khan filed a petition for hearing.        We granted the petition with respect to 

two    issues:   "(1)   whether     a  unanimous      jury   verdict   is  a  right  under    the   Alaska 

Constitution, and (2) if so, the appropriate plain error analysis for reviewing the effect 

of a contrary jury instruction given without objection by the defendant." 


                 We review questions of constitutional and statutory interpretation de novo, 

adopting "the rule of law that is the most persuasive in the light of precedent, reason, and 

        8       Id. at 1040-41 (internal quotation marks omitted) (quoting Aviation Assocs., 

Ltd. v. TEMSCO Helicopters, Inc. , 881 P.2d 1127, 1131 n.7 (Alaska 1994)). 

        9       Id. at 1042 (quoting State v. James, 698 P.2d 1161, 1165 (Alaska 1985)). 

        10      Id. at 1043. 

        11       711 P.2d 1183 (Alaska App. 1985). 

        12      Khan , 204 P.2d at 1043.

        13      Id.

                                                    -5-                                              6681

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policy."14    Trial errors to which the parties did not object are reviewed for plain error.15 

The proper analysis under this standard is one of the main issues in this case, and we 

address it in detail below. 


        A.      Jury Unanimity Is Required By The Alaska Constitution. 

                Khan   argues   that   the   right   to   a   unanimous   jury   verdict   is   protected   by 

various   provisions   of   the   Alaska   Constitution.     The   State,   "without   conceding   the 

existence of an error" in the superior court's instruction, "acknowledges that an alleged 

violation of jury unanimity would implicate" constitutional rights. 

                As the State suggests in its brief, jury unanimity describes two things. First 

it means literally that all jurors must agree to return a guilty verdict. Article 1, section 11 

of the Alaska Constitution guarantees that all criminal defendants "shall have the right 

to a speedy and public trial, by an impartial jury of twelve . . . ."              The United States 

Supreme Court has held that a similar requirement in the Sixth Amendment of the United 

States   Constitution16     requires   that   jury   verdicts   be   unanimous.17   Khan   argues   that 

        14      Turney v. State, 936 P.2d 533, 538 (Alaska 1997) (quoting Guin v. Ha, 591 

P.2d 1281, 1284 n.6 (Alaska 1979)). 

        15      See Adams v. State , 261 P.3d 758, 764 (Alaska 2011) (quoting Alaska R. 

Crim. P. 47(b)). 

        16      U.S. CONST . amend. VI ("In all criminal prosecutions, the accused shall 

enjoy the right to a speedy and public trial, by an impartial jury . . . ."). 

        17      See Andres v. United States, 333 U.S. 740, 748-49 (1948).  The Supreme 

Court subsequently held that this right was not incorporated against the states.                     See 

Apodaca v. Oregon , 406 U.S. 404 (1972) (upholding a state law allowing a guilty verdict 

by a vote of 10-2 against a Sixth Amendment challenge); Johnson v. Louisiana , 406 U.S. 

356 (1972) (upholding a state law allowing a guilty verdict by a vote of 9-3 against a due 

process challenge); see also McDonald v. City of Chicago , 130 S. Ct. 3020, 3035 & n.14 


                                                   -6-                                             6681

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Alaska's right to trial by jury similarly requires a unanimous verdict in his case.  As the 

State   suggests   in   its   brief,   though,   the   issue   here   is   not   simply   the   requirement   of 

numerical unanimity.        Here the jury returned its verdict 12-0. 

                 Thus, as the State points out, there is a second concept embodied in the 

notion of jury unanimity. This concept, sometimes called "factual concurrence,"18 refers 

to the specificity with which jurors must agree on the nature of the illegal act committed 

by the defendant.  The United States Supreme Court addressed this concept in Schad v. 

Arizona ,19 a case involving an Arizona man convicted under a first-degree murder statute 

that   defined   the   crime   alternatively   as   "murder   which   is   .   .   .   wilful,   deliberate   or 

premeditated   .   .   .   or   which   is   committed   .   .   .   in   the   perpetration   of,   or   attempt   to 

perpetrate, . . . robbery."20      The constitutional problem, from the defendant's point of 

view, was that the prosecutor advanced two theories - premeditated murder and felony 

murder - and the jury was not required to choose under which of these two theories it 


(2010) (noting that the Sixth Amendment requirement of unanimity was "one exception 

to th[e] general rule" that "incorporated Bill of Rights protections 'are all to be enforced 

against the States under the Fourteenth Amendment according to the same standards that 

protect those personal rights against federal encroachment[,]' " an exception caused by 

"an unusual division among the Justices, not an endorsement of the two-track approach 

to incorporation" (quoting Malloy v. Hogan , 378 U.S. 1, 10 (1964))). 

         18      See,    e.g.,  Scott    W.   Howe,    Jury     Fact-Finding       in  Criminal     Cases: 

Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 MO . L. 

REV . 1, 6 (1993). 

         19      501 U.S. 624 (1991). 

        20       Id. at 628 (quoting ARIZ . REV . STAT . ANN .  13-452 (Supp. 1973)). 

                                                    -7-                                               6681

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was convicting the defendant.21          This, claimed the defendant, violated the requirement 

of unanimity in jury verdicts in state capital cases.22 

                 The Supreme Court rejected Schad's proposed analysis based on the Sixth 

Amendment right to a jury, noting that the question was not whether a unanimous jury 

had found that the state had met its burden of proof, but rather what the state had to 

prove.23    Because the first-degree murder statute had multiple possible ways for a jury 

to find that Schad had met the mens rea requirement, the question was "whether it was 

constitutionally   acceptable   to   permit   the   jurors   to   reach   one   verdict   based   on   any 

combination of the alternative findings" of Schad's state of mind.24                This, said the Court, 

did not then implicate the Sixth Amendment right to trial by jury, but rather implicated 

due process concerns regarding "the permissible limits in defining criminal conduct, as 

reflected in the instructions to jurors applying the definitions."25 

                 The Court started its due process analysis by noting that a jury need not 

agree "as to mere means of satisfying the actus reus element of an offense" and so there 

was no reason to categorically prohibit jurors from finding mens rea elements satisfied 

        21       Id. at 628-30. 

        22       Id.   at   630.  Because      the   Supreme   Court   has   held   that   the   right   to   a 

unanimous jury verdict is not incorporated against the states, see supra note 14, Schad 

had   to   rely   on   the   fact   that   this   was   a   capital   case   and   thus   implicated   the   Eighth 

Amendment as well. 

        23       Id. 

        24       Id. 

        25       Id. at 631.  In a footnote, the Court noted that its differentiation between a 

Sixth Amendment and a due process approach was significant "chiefly[] because a state 

criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury 

verdict." Id. at 635 n.5. 

                                                     -8-                                               6681

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by alternative means.26         Nonetheless, said the Court, due process does limit a state's 

capacity to "define different courses of conduct, or states of mind, as merely alternative 

means of committing a single offense," chiefly through "[t]he axiomatic requirement of 

due   process   that   a   statute   may   not   forbid   conduct   in   terms   so   vague   that   people   of 

common intelligence would be relegated to differing guesses about its meaning."27                      This 

meant that "no person may be punished criminally save upon proof of some specific 

illegal conduct."28      Thus, while a state could permit a jury to reach a verdict based on 

alternative methods of committing the crime or achieving a mental state, the jurors at 

least had to unanimously agree what "mischief" the defendant had committed.29 

                 We   faced   a   similar   issue   in  State   v.   James.30 There   the   question   was 

whether   a   defendant   could   be   convicted   under   disjunctive   theories   of   first-degree 

assault.31   While holding that juries need not agree on a particular statutory theory, we 

noted   "that   the   purpose   of   the   unanimous   jury   requirement   is   well   served   by   our 

insistence that jurors agree upon just what the defendant did; they must all agree that the 

        26       Id. at 632.

        27       Id.

        28       Id. at 633.

        29       See Guido Calabresi, Being Honest About Being Honest Agents , 33 HARV .

J.L. & PUB . POL 'Y 907, 911 (2010) (referring to "the 'mischief' . . . to which [a criminal] 

statute was addressed"). 

        30       698 P.2d 1161 (Alaska 1985); see also Ward v. State , 758 P.2d 87 (Alaska 


        31       Id. at 1163. 

                                                     -9-                                               6681

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defendant      committed      a  single   offense."32    Although      we    enunciated     a  unanimity 

requirement, we did not explicitly outline the source of this requirement.33                We reached 

this conclusion through an analysis of the Fifth Circuit's decision in  United States v. 

Gipson.34    In Gipson, the Fifth Circuit relied on the Sixth Amendment for the proposition 

that "a federal criminal defendant has a constitutionally based right to a unanimous jury 

verdict," which was implicated when asking what the state had to prove to satisfy the 

elements   of   a   crime.35   Gipson's   reliance   on   the   Sixth   Amendment,   however,   was 

expressly disapproved by the United States Supreme Court in Schad v. Arizona .36                        In 

Schad, the Supreme Court said that cases dealing with what the state had to prove to 

convict were analyzed under due process.37            Thus the issue presented here is one of due 


                The requirement that all jurors agree on the criminal conduct committed by 

the defendant is rooted also in the interaction of the right to a trial by jury and the due 

process guarantee that no one shall be found guilty except on a finding of guilt beyond 

        32      Id. at 1167. 

        33      Alaska Rule of Criminal Procedure 31(a) requires that "verdict[s] shall be 

unanimous."  The only question here is whether this rule has a constitutional dimension. 

        34      James , 698 P.2d at 1166 (discussing United States v. Gipson, 553 F.2d 453 

(5th Cir. 1977)). 

        35      553 F.2d at 456. 

        36      Schad   v.   Arizona ,   501   U.S.   624,   635   n.5   (1991)   ("The   [Gipson]   court 

identified     this  right  as   a  concomitant      of  the  federal    criminal    defendant's     Sixth 

Amendment right to a unanimous verdict, and subsequent courts following Gipson have 

adopted that characterization. . . . [W]e think the right is more accurately characterized 

as a due process right than as one under the Sixth Amendment."). 

        37      Id. 

                                                   -10-                                             6681

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a reasonable doubt.  In United States v. Correa-Ventura, the Fifth Circuit examined the 

purpose of unanimous jury verdicts and noted that "[t]he unanimity rule is a corollary to 

the reasonable-doubt standard, both conceived as a means of guaranteeing that each of 

the jurors 'reach [ ] a subjective state of certitude' with respect to a criminal defendant's 

culpability   before   rendering   a   conviction."38  As   the   United   States   Supreme   Court 

explained in Sullivan v. Louisiana, a case dealing with an erroneous reasonable doubt 


               It is self-evident . . . that the Fifth Amendment requirement of 

               proof beyond a reasonable doubt and the Sixth Amendment 

               requirement of a jury verdict are interrelated.        It would not 

                satisfy the Sixth Amendment to have a jury determine that the 

               defendant isprobably guilty, and then leave it up to the judge 

               to determine (as [In re ] Winship requires) whether he is guilty 

               beyond a reasonable doubt.        In other words, the jury verdict 

               required by the Sixth Amendment is a jury verdict of guilty 

               beyond a reasonable doubt.[39] 

If the jury is not required to agree on what criminal conduct a defendant has committed, 

there can be no guarantee that the jury has agreed that the defendant committed a crime 

beyond a reasonable doubt.  In the case where the state is alleging alternative crimes, as 

opposed to alternative theories of a single crime, jurors who unanimously agree that 

some crime has been committed may nonetheless disagree as to which crime and may 

harbor reasonable doubts as to the alternatives. Accordingly, we conclude that a criminal 

        38     6 F.3d 1070, 1076-77 (5th Cir. 1993) (omission in original) (quoting In re 

Winship, 397 U.S. 358, 364 (1970)). 

        39     Sullivan v. Louisiana, 508 U.S. 275, 278 (1993)   (emphasis in original) 

(citations omitted). 

                                                -11-                                            6681 

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

defendant's      right   to  have  jurors   "all   agree  that   the  defendant   committed     a  single 

offense"40 is protected by the Alaska Constitution's due process clause.41 

                Although       we   conclude     that   any   error   in  the   jury  instruction    was 

constitutional in nature, we do not address the question whether the challenged jury 

instruction in this case was erroneous. The court of appeals "assume[d] that Khan's jury 

should have been instructed that they had to reach a unanimous decision regarding each 

of the four false statements alleged by the State," and went on to conclude that even were 

this error, it was harmless.42      In this case, we granted a hearing on only two questions: 

"(1) whether a unanimous jury verdict is a right under the Alaska Constitution, and (2) 

if so, the appropriate plain error analysis for reviewing   the   effect of a contrary jury 

instruction given without any objection by the defendant."               We did not ask for briefing 

on the question whether the jury instruction in this case was erroneous, and we therefore 

remand this case to the court of appeals for a decision on whether the challenged jury 

instruction   was   erroneous   and,   if   so,   whether   reversal   is   required   under   the   proper 

analysis for constitutional plain error. 

        B.      The Appropriate Plain Error Analysis 

                Because of various issues concerning Khan's representation that required 

remand for several hearings, a significant amount of time has elapsed since we granted 

this petition.   In that time, we decided Adams v. State , which clarified and affirmed the 

        40      State v. James, 698 P.2d 1161, 1167 (Alaska 1985). 

        41      Article 1, section 7 of the Alaska Constitution provides that "[n]o person 

shall be deprived of life, liberty, or property, without due process of law." 

        42      Khan v. State , 204 P.3d 1036, 1043 (Alaska App. 2009). 

                                                  -12-                                             6681

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

constitutional plain error standard that we had employed for nearly 40 years.43                 In Adams , 

we held that "in order for a court to find plain error, (1) the error must not be the result 

of an intelligent waiver or a strategic decision not to object; (2) the error must affect 

substantial rights; (3) the error must be obvious; and (4) the error must be prejudicial."44 

We further concluded that "[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."45     In other words, since granting this petition, we have effectively answered 

the second question we asked about the appropriate plain error standard for this case. 

                 Nonetheless,   both   Khan   and   the   State   urge   us   to   jettison   our   recently 

reaffirmed precedent.        Khan argues that because it is the "trial court's duty to properly 

instruct    a  jury"   and   because    constitutional     errors   are  especially    significant,    "it  is 

inappropriate   to   review   challenges   to   .   .   .   jury   instructions   [relating   to   unanimity] 

differently depending on whether a timely objection was made."  Khan would therefore 

have   us   adopt   the   Supreme   Court   of   Hawai'i's   conclusion   in  State   v.   Nichols .46    In 

Nichols , the court held that "in the case of erroneous jury instructions, th[e plain error] 

        43       261 P.3d 758 (Alaska 2011). 

        44       Id. at 771 (numbering added). 

        45       Id. at 773 (emphasis added). 

        46       141 P.3d 974 (Haw. 2006).  Khan submitted his opening brief a few weeks 

before we decided Adams , and he therefore did not have an opportunity to consider that 

case.    Whether Khan would have argued differently had he the benefit of Adams , he 

nonetheless reaffirmed his commitment to the Nichols standard in his reply brief and at 

oral argument. 

                                                    -13-                                              6681

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

standard of review is effectively merged with the . . . harmless error standard of review 

because it is the duty of the trial court to properly instruct the jury."47 

                 The State, on the other hand, argues that we ought to overturn Adams , 

adopting instead the federal plain error analysis from United States v. Olano.48                    In that 

case, concerning an alternate juror who was improperly allowed to deliberate in violation 

of a federal rule of criminal procedure, the United States Supreme Court adopted a three- 

prong test for plain error: (1) there must   be   an   error; (2) that error must have been 

obvious; and (3) the error must "affec[t] substantial rights."49             As to this third prong, the 

Court said that "in most cases it means that the error must have been prejudicial."50 

Significantly, though, even for constitutional plain error, "[i]t is the defendant rather than 

the Government who bears the burden of persuasion with respect to prejudice."51                         We 

address these two standards in turn. 

                 Khan argues that we should adopt the plain error standard of review used 

by the Supreme Court of Hawai'i in Nichols .                He argues that because the trial court is 

charged with instructing the jury, it should not matter whether a defendant has objected. 

An error in an instruction renders a jury verdict "suspect," Khan argues, and such a 

verdict must be subject to harmless error analysis regardless of whether the defendant 

objected to it.  Khan argues that this proposed rule is consistent with our decisions on the 

role   of   the   court   in   instructing   the   jury. But   nothing   in Adams   or   its   predecessors 

        47       Id. at 984.

        48       507 U.S. 725 (1993). 

      Id. at 733-34 (quoting FED . R. CRIM . P. 52(b)).           Like Federal Rule 52(b), 

Alaska Criminal Rule 47(b) refers to plain errors as those "affecting substantial rights." 

        50       Id. at 734. 

        51       Id.

                                                    -14-                                              6681

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

suggests that the plain error standard might change for jury instructions.                   We decline 

Khan's invitation to carve out an exception to the plain error rule for jury instructions. 

                 Although      we   agree   with   Khan    that  the   trial   court  bears  the  primary 

responsibility for instructing the jury,52 Khan's proposed rule ignores the role of counsel 

in aiding the trial court. Under Khan's proposed rule, a defendant who tactically chooses 

not to object to an erroneous jury instruction would be given the option of a second trial 

if convicted.  The Adams rule, by including an inquiry into whether the defendant's non- 

objection was tactical, better respects the trial process and the role of counsel.   We 

therefore decline to adopt the Nichols standard for review of erroneous jury instructions 

to which no objection has been lodged. 

                 Because the State is asking us to overturn a prior decision, it must meet the 

burden of overcoming stare decisis. We have said that "we will overrule a prior decision 

only when 'clearly convinced that the rule was originally erroneous or is no longer sound 

because   of   changed   conditions,   and   that   more   good   than   harm   would   result   from   a 

departure from precedent.' "53 

                 The State suggests that because Adams was decided in reliance on Burford 

v. State,54 it is appropriate for us to reexamine the correctness of Burford .                  As Khan 

points out, though, we granted the State's request to file supplemental briefing in Adams 

on    the   appropriate    standard     for  plain   error   review,    and   the  State   argued    in  its 

supplemental briefing, as it does here, that we should adopt the federal standard from 

        52       See   Alaska   R.   Crim.   P.   30(b)   ("The   court   shall   instruct   the   jury   on   all 

matters of law which it considers necessary for the jury's information in giving their 


        53      Pratt & Whitney Canada, Inc. v. Sheehan,  852 P.2d 1173, 1176 (Alaska 

1993) (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)). 

        54       515 P.2d 382 (Alaska 1973). 

                                                   -15-                                              6681

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

Olano.  We expressly rejected that argument.55           Therefore, in order for the State now to 

prevail on its argument that we should adopt the federal plain error rule, the State must 

show as a threshold matter that Adams was either originally erroneous or has since been 

left behind. 

                The State argues that Adams was erroneous when adopted.56  We have said 

that a decision is "originally erroneous" if (1) it "proves to be unworkable in practice" 

or (2) we failed to address relevant points and the party can show that it "would clearly 

have prevailed if the points had been fully considered."57 

                 The State argues that, although we have rejected the Olano standard, we 

have never conducted an "independent analysis" that "addresses which rule is better." 

The State argues that if we had "independently analyzed the issue, [we] would have 

reached a different result" based on policy reasons. 

                But we did consider the  Olano rule and we rejected it, recognizing that 

"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."58              We further noted that 

"[w]e have required a showing of prejudice as a separate factor.   And . . . when the error 

is a constitutional violation, it will always affect substantial rights and will be prejudicial 

        55      Adams v. State , 261 P.3d 758, 772 n.71 (Alaska 2011). 

        56      The   State   also   argues   that Burford   is   no   longer   sound   due   to   changed 

circumstances, but as discussed above, it is Adams , not Burford , that the State is seeking 

to overturn. The State makes no argument that circumstances have changed since Adams 

was decided, just nine months ago. 

        57      Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 

2004) (emphasis in original) (quoting Pratt & Whitney , 852 P.2d at 1176). 

        58      Adams , 261 P.3d at 772 n.72. 

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unless it was harmless beyond a reasonable doubt."59            In its briefing in Adams , the State 

argued several policy reasons for adopting Olano, but we found them unpersuasive.  The 

State is thus incorrect in its suggestion that we "failed to meaningfully address relevant 

points" in our Adams decision.   We therefore decline the State's invitation to reconsider 

that decision. 

                Because the analysis used by the court of appeals was inconsistent with 

Adams   and   placed   the   burden   of   showing   prejudice   of   a   constitutional   error   on   the 

defendant rather than the State,60 we remand this case for a new plain error analysis. 


                We REMAND this case to the court of appeals to determine whether, if 

there was error in the jury instruction, the error was prejudicial under the proper plain 

error analysis outlined in Adams v. State . 

        59      Id. 

        60      Khan v. State , 204 P.3d 1036, 1043 (Alaska App. 2009). 

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