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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moreno v. State (1/30/2015) sp-6982

Moreno v. State (1/30/2015) sp-6982

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

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



JORGE MORENO,                                         )  

                                                      )        Supreme Court Nos. S-15067/15070  

                  Petitioner,                         )        (Consolidated)  

                                                      )  

         v.                                           )        Court of Appeals No. A-10837  

                                                      )        Superior Court No. 2BA-09-00239 CR  

STATE OF ALASKA,                                      )  

                                                      )        O P I N I O N  

                  Respondent.                         )  

_______________________________ )                              No. 6982 - January 30, 2015  

                                                      )  

MARY HICKS,                                           )  

                                                      )  

                  Petitioner,                         )        Court of Appeals No. A-10820  

                                                      )        Superior Court No. 3GL-09-00126 CR  

         v.                                           )
  

                                                      )
  

STATE OF ALASKA,                                      )
  

                                                      )
  

                  Respondent.                         )  

_______________________________ )  



                  Petition for Hearing in File No. S-15067 from the Court of  

                                                               

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

                                                              

                  Court  of  the  State  of  Alaska,  Second  Judicial  District,  

                  Barrow, Michael I. Jeffery, Judge.   Petition for Hearing in  

                                                                                

                  File No. S-15070 from the Court of Appeals of the State of  

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

                                             

                  Alaska, Third Judicial District, Glennallen, Daniel Schally,  

                                                                               

                  Judge pro tem.   


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

                   Appearances:  Josie Garton and John Page, Assistant Public  

                                                                 

                   Defenders, Anchorage, and Quinlan Steiner, Public Defender,  

                   Anchorage, for Petitioners.  Diane L. Wendlandt, Assistant  

                   Attorney General, Office of Special Prosecutions & Appeals,  

                   Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                   Juneau, for Respondent.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, and Maassen,  

                                                                         

                   Justices.  [Bolger, Justice, not participating.]  



                   STOWERS, Justice.  



I.        INTRODUCTION  



                   "Trial  errors to which the parties did not object are reviewed for plain  

                             

error."1  

             In Adams v. State we held that 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  



                                                               2  

substantial rights; and (4) was prejudicial."   These consolidated cases require us to  



clarify the standard for determining when a defendant intelligently waived an objection  



or made a tactical decision not to object.  



                   Defendants  in  two  criminal  cases  failed  to  object  to  errors  at  trial:    in  



Moreno v. State , the admission of improper testimony regarding Jorge Moreno's exercise  



                                                                                3 

of his right to be free from compelled self-incrimination;  in Hicks v. State, the lack of  



a jury unanimity instruction when the prosecutor directed the jury that it could find Mary  



Hicks  guilty  of  either  of  two  episodes  of  allegedly  driving  under  the  influence  of  

                         



          1        Khan v. State , 278 P.3d 893, 896 (Alaska 2012) (citing  Adams v. State , 261  



P.3d 758, 764 (Alaska 2011)).  



          2        Adams , 261 P.3d at 764.  



          3        Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *1 (Alaska             



App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013).  



                                                           -2-                                                     6982
  


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

             4  

                                     

alcohol.        Moreno and Hicks each sought plain error review, and in each case the court  



                                                                                  

of appeals held that the defendant failed to show that the error was not the result of  



                                                                            5  

                                                                                                   

defense counsel's tactical decision not to object.   In Moreno , the court of appeals also  



applied a presumption that where the record is silent or ambiguous,  defense counsel's  

inaction is tactical and precludes plain error review.6  



                                                                                            

                     Moreno and Hicks filed petitions for hearing before this court, arguing that  



the burden of proof should be on the State to show that their counsels' failures to object  



                                                                                                                         

were the result of tactical decisions.  They also contended that the  court  of appeals  



erroneously  speculated  on  the  purported  tactical  benefits  they  received  due  to  their  



attorneys' lack of objections.  Finally, they each requested an evidentiary hearing to  



develop the record on this issue.  



                     We   granted   review   to   determine   whether   to   apply   an   evidentiary  



                                                                        

presumption or to place a burden of proof on a party to establish that a defendant's lack  



                                                                                                                           

of objection at trial was or was not the result of defense counsel's intelligent waiver or  



                                              7  

                                                                                                

tactical decision not to object.                 But we conclude that our case law compels neither result.  



                                                                                      

Today we hold that defense counsel's tactical reason for failing to object, or counsel's  



           4         Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 (Alaska       



App. Jan. 16, 2013).  



           5         Moreno , 2013 WL 120907, at *2-3; Hicks , 2013 WL 203264, at *3-4.  



           6  

                                                                                                      

                     Moreno , 2013 WL 120907, at *5 (concluding that when a litigant pursues  

                                                        

a claim of plain error on a silent or ambiguous record, the court will "focus on whether  

                                                                                                              

there is a serious potential for tactical inaction" because where "an attorney makes a  

                                 

conscious decision not to object to inadmissable evidence in order to gain a tactical  

                                                                                                          

advantage . . . the attorney is unlikely to make this decision a matter of record" (emphasis  

added)).  



           7         Moreno  v.  State ,  Nos.  S-15067/15070  (Alaska  Supreme  Court  Order,  



June 10, 2013).  



                                                                  -3-                                                            6982
  


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

                                                                               

intelligent waiver of an objection, should be plainly obvious from the record before  



foreclosing the reviewing court's consideration of the remaining plain error elements.  



                                                                                                     

We therefore reverse the court of appeals' decisions on this issue.  But we conclude that  



                               

Moreno suffered no prejudice despite the error in his case, and we affirm the court of  



appeals' decision upholding Moreno's conviction on this alternate ground.  We remand  



                                                                                                    

Hicks's case to the court of appeals for further proceedings consistent with this opinion.  



II.       FACTS AND PROCEEDINGS  



          A.       Moreno v. State  



                   Jorge      Moreno         was      charged        with     possession         and      delivery       of  



                                                                                                             8  

                                                                                                                At trial,  

methamphetamine and illegal sale of alcohol in a local option community. 



Moreno's attorney asked the investigating officer whether the police had been able to  



                                                                                                          9 

                                                                                                             The officer  

verify that Moreno owned a jacket that contained a methamphetamine pipe. 



                                                                                 10  

replied that Moreno had refused to speak to the police.                              Moreno's attorney did not  



                                                           

object to the officer's statement; instead, the attorney interrupted the officer and directed  



          8        Moreno , 2013 WL 120907, at *1.  A local option community is one that has  



elected  to  prohibit  the  sale,  importation,  or  possession  of  alcoholic  beverages.  See  

AS 04.11.491.  



          9        Id. at *1-2 (discussing the defense attorney's question:  "And at no point  



during  your  investigation  did  you  determine  who  that  jacket  belonged  to?"  and  the  

officer's reply:  "Correct, ma'am. There [were] no identifying items [in the jacket] and  

                       

the defendant refused to speak to us about it, but we did photograph where that - that  

                                                                                                             

came out of . . . ." (emphasis omitted)).  



          10       Id. at *1.  



                                                            -4-                                                      6982
  


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

                                                  11  

                                                                                            

the officer to reply "[y]es or no."                    Moreno was convicted, and he appealed  arguing that  

the officer's reference to his silence was impermissible.12  



                                                                              

                     The court of appeals concluded that Moreno's attorney's question elicited  



                                                              

the officer's testimony and that counsel "apparently made a tactical decision not to object  



                                      13  

to the officer's answer."                  Both the State and the court of appeals identified potential  



                                                                           14  

                                                                               The State argued that Moreno likely  

reasons why Moreno's counsel failed to object. 



                                                                                                                

sought "to impeach the police investigation and to lay a foundation for arguing that the  



                                                                                                            15  

[S]tate had not proved that Moreno knowingly possessed the pipe."                                                The court also  



offered its own possible explanations:  that the defense attorney perceived the officer had  



                                                                    

made an inadmissible comment and chose to preserve "at least one colorable issue" on  



appeal  or  that  the  attorney  recognized  an  objection  would  have  focused  the  jury's  

attention on Moreno's silence.16  



           11        Id. at *1-2.  



           12        We have held that questions or comments by the State about a defendant's   



pre-arrest silence are generally inadmissible under Alaska Rule of Evidence 403 and that   

questions or comments by the State on a defendant's post-arrest silence are prohibited  

by article I, section 9 of the Alaska Constitution.  Adams v. State , 261 P.3d 758, 765-67  

                                                                                                       

(Alaska 2011).  It is unclear whether Moreno had been arrested when police questioned  

                             

him about the jacket.  Moreno , 2013 WL 120907, at *2.  



           13        Moreno , 2013 WL 120907, at *1.  



           14        Id. at *2-3.  



           15        Id. at *2  



           16        Id. at *3.  



                                                                  -5-                                                           6982
  


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

                      The court of appeals additionally examined whether Moreno had suffered     



                                                                                     17  

any prejudice from his counsel's failure to object.                                      The court of appeals interpreted  



                                                                

Adams  as  holding  that  a  reviewing  court  should  consider  the  following  factors  in  



determining  whether  a  prosecutor's  comments  on  a  defendant's  silence  resulted  in  



harmless error:  



                             

                      (1)      [W]hether           the     conviction           depended           primarily          on  

                                                                                                

                      resolution of conflicting witness testimony; (2) whether any  

                      comments on the defendant's silence were made during the  

                                                                           

                      prosecutor's closing argument; (3) whether the reference was  

                      "express" rather than "brief and passing"; and (4) whether the  

                      evidence           was       "directly         elicited        by     the      prosecutor's  

                                             [18] 

                      questioning."  



The court of appeals examined these factors and concluded that the alleged error in  

Moreno's case was harmless beyond a reasonable doubt.19  



                                                                      

                      Moreno petitioned the court of appeals for rehearing, arguing that the court  



                                                                                                                       

improperly placed the burden on him to prove that his counsel did not make a tactical  



                                                                                                       20  

decision to withhold an objection to the officer's testimony.                                               The court of appeals  



                                                    

denied his petition, reasoning that the plain error doctrine required the court to "focus  



                                                                                 21  

on . . . a serious potential for tactical inaction."                                 The court relied on its decision in  



Borchgrevink v. State , which held that "when the record is silent or ambiguous . . . [an  



           17         Id.  



           18         Id.  



           19         Id.  



           20         Id. at *5.  



           21         Id.  



                                                                      -6-                                                               6982
  


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

appellate court] appl[ies] a presumption   that the defense attorney's action (or, more  

precisely, inaction) was tactical."22  



                                                              

                   Moreno petitioned this court for  hearing.  We granted the petition and  

consolidated it with Hicks's petition.23  



         B.        Hicks v. State  

                   Mary Hicks was arrested for and convicted of driving under the influence.24  



At her trial a village public safety officer testified that, while responding to a report that  



                                                        

Hicks was driving under the influence, he located Hicks's truck parked in a spot at her  



                                                                            25  

                                                                                He also testified to observing  

friend's house that he knew had recently been vacant. 



                                                           26  

Hicks enter the truck and start the engine.     He stated that Hicks then exited the truck  



                                                       27  

                                                                             

and ran back inside the friend's house.                    The officer spoke with Hicks at the friend's  

house, determined that she was intoxicated, and arrested her.28  During closing arguments  



at Hicks's trial, the prosecutor told the jury that it could find Hicks guilty of either of the  



         22        Id. at *5 (omissions in original) (quoting Borchgrevink v. State , 239 P.3d  



410, 421 (Alaska App. 2010)).  



         23        Moreno  v.  State ,  Nos.  S-15067/15070  (Alaska  Supreme  Court  Order,  



June 10, 2013).  



         24        See Hicks  v.  State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1  



(Alaska App. Jan. 16, 2013).  



         25        Id.  



         26        Id.  



         27        Id.  



         28        Id. at *1-2.  



                                                           -7-                                                    6982
  


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

two distinct driving or operating incidents:  driving to the friend's house or starting the  

                                   

parked truck in front of the friend's house.29  



                    This  was  obvious  error  under  the  Alaska  Constitution's  due  process  

          30 which we have interpreted to bestow on a criminal defendant the "right to have  

clause,                                                                                                



                                                                                              31  

jurors 'all agree that the defendant committed a single offense.' "                               Hicks did not object  

                                                    



to  the  prosecutor's  statement  or  ask  the  court  to  instruct  the  jury  that  it  had  to  



                                                                                       32  

                                                                                           The jury convicted Hicks  

unanimously agree on one offense to return a guilty verdict.  

of driving under the influence.33  



                                                                                           

                    Hicks appealed, arguing plain error.  Before the court of appeals, the State  



                                                                                                     34  

proffered two possible tactical reasons for Hicks's failure to object.                                   First, the State  



                                                                                         

asserted that "had she raised the issue in the trial court, the State might have sought to  



                                                                                                          35  

amend the indictment to charge her with two separate felony offenses."                                        Second, the  



                                                                                                                        

State argued that Hicks's defense focused on attacking the strength of the evidence of the  



                                                                                              36 

                                                                                                  The court of appeals  

second incident when the officer observed Hicks start her engine. 



concluded  that  Hicks's  attorney  made  a  tactical  decision  not  to  object  because  an  



          29        Id. at *3.  



          30        Alaska Const. art. I,  7 ("No person shall be deprived of life, liberty, or   



property without due process of law.").  



          31        Khan v. State , 278 P.3d 893, 899 (Alaska 2012) (quoting State v. James,  



698 P.2d 1161, 1167 (Alaska 1985)).  



          32        Hicks , 2013 WL 203264, at *3.  



          33        Id. at *1.  



          34        Id. at *4.
  



          35        Id.
  



          36        Id.  



                                                              -8-                                                       6982
  


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

objection would have emphasized that the jury could convict Hicks based solely on the  

                                                             



evidence of her driving under the influence, which did not rely on the officer's disputed  

                                                               

testimony.37  



                   Hicks  filed  a  petition  for  hearing.    We  granted  Hicks's  petition  and  

consolidated it with Moreno's petition.38  



III.	     STANDARD OF REVIEW  



                   These consolidated petitions present only questions of law to which we  

                                                                                                   

apply our independent judgment.39  We will adopt the rule of law that "is most persuasive  

                                                                                                 

in light of precedent, reason, and policy."40  



IV.	     DISCUSSION  



         A.	       It Was Error To Apply A Presumption On A Silent Or Ambiguous  

                   Record That Defense Counsel Made A Tactical Decision Not To Object  

                   And   To   Place   The   Burden   On   Defendant   To   Disprove   This  

                   Presumption.  



                   In Johnson v. State , we explained why a general rule requiring a party in  

                                                      



trial to object to a perceived error is necessary to preserve that error as a point on appeal:  

                                                                                  



                   Typically, a litigant or defendant must raise an objection in  

                                      

                   the trial court in order to preserve that argument for appeal.  

                         

                   This general preservation rule is a prudential gate-keeping  

                                                         

                   doctrine  adopted  by  the  courts  to  serve  important  judicial  

                   policies:  ensuring that there is "a ruling by the trial court that  

                                                                                           



         37	       Id. at *1, *4.  



         38        Moreno  v.  State ,  Nos.  S-15067/15070   (Alaska  Supreme  Court  Order,  



June 10, 2013).  



         39        State v. Doe A, 297 P.3d 885, 887 (Alaska 2013), as modified on denial of  



reh'g (Apr. 10, 2013).  



         40        Id.  (quoting Ford v. Municipality of Anchorage , 813 P.2d 654, 655 (Alaska  

                         

1991)) (internal quotation marks omitted).  



                                                           -9-	                                                    6982
  


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

                    may be reviewed on appeal, . . . afford[ing] the trial court the  

                                                                                      

                                                                                            

                    opportunity  to  correct  an  alleged  error,"  and  creating  a  

                    sufficient  factual  record  "so  that  appellate  courts  do  not  

                                                                                    [41] 

                    decide issues of law in a factual vacuum."  



                    "But  the  general  preservation  rule  is  not  absolute,  and  it  is  subject  to  

                                                                                



                                                                                 42  

[certain] exceptions, such as the plain error doctrine."                             The plain error doctrine allows  

                                                                                                     



an  appellate  court  to  review  issues  not  otherwise  preserved  where  "there  was  [an]  

                                                                



obvious and prejudicial error below affecting substantial rights that did not result from  

                                                                                        

'intelligent waiver or a tactical decision not to object.' "43  



                    Under  Alaska  Criminal  Rule  47(b),  "[p]lain  errors  or  defects  affecting  

                                                                              

substantial rights may be noticed [sua sponte by the trial court]44 although they were not  

                                                                     



brought to the attention of the court."  When the trial court fails to correct an error on its  

                                                          



own initiative, however, plain error review on appeal operates "to mitigate . . . the harsh  

                                                                                 

effects of a rigid application of the adversary method of trial."45  



          41        328 P.3d 77, 82 (Alaska 2014) (alteration in original)  (footnotes omitted)  



(quoting Alexander v. State ,  611 P.2d 469,  478 (Alaska   1980) and Pierce v. State , 261  

P.3d 428, 433 (Alaska App. 2011)).  



          42        Id.  



          43        Id.  (quoting Adams v. State , 261 P.3d 758, 764 (Alaska 2011)).  



          44        Cf.  Adams , 261 P.3d at 764 (noting that "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'  "  without  

                                 

restricting  the  rule's  application  to  appellate  proceedings  (alterations  in  original)  

(emphasis added) (quoting Alaska R. Crim. P. 47(b))).  We recently clarified in Johnson  

                                                                                    

that plain error is a "prudential exception[]" to the general preservation rule; in other  

words, we retain inherent discretion to hear such appeals under the rubric of plain error  

                  

as a common law doctrine. Johnson , 328 P.3d at 82 & n.24.  



          45        Dorman  v. State, 622  P.2d 448, 459 (Alaska 1981) (alteration in original)  



                                                                                                               (continued...)  



                                                              -10-                                                         6982
  


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

                    We use a four-part test when determining whether to review a defendant's  



                             46  

                                                                        

claim of plain error.            The appellate court must find the error "(1) was not the result of  



                                                                                                

intelligent  waiver  or  a  tactical  decision  not  to  object;  (2)  was  obvious;  (3)  affected  



                                                                 47  

substantial rights; and (4) was prejudicial."                        Plain error review operates as a safety  



valve  allowing  an  appellate  court  to  review  unobjected-to  errors  "involv[ing]  such  



                                                                                                    

egregious conduct as to undermine the fundamental fairness of the trial and contribute  

to a miscarriage of justice."48  



                                                  

                    These consolidated cases concern the tactical-decision prong of the plain  



                                              49  

error test announced in Adams .    While the remainder of the plain error test involves  



                                                                                                                       

substantive requirements an appellate court must conclude are present to reverse on the  



basis  of  plain  error,  the  tactical-decision  prong  acts  as  a  bar  to  substantive  review,  



preventing defense  counsel from deliberately bypassing the contemporaneous-objection  



                                           50  

                                                                              

rule as part of a trial strategy.              We will not afford a defendant an after-the-fact review  



          45(...continued)
  



(quoting Bargas v. State , 489 P.2d 130, 133  (Alaska 1971)) (internal quotation marks
  

omitted).  



          46       Adams , 261 P.3d at 764.  



          47       Id.  



          48       Id.  (alteration in original) (quoting Raphael v. State ,  994 P.2d 1004, 1015  



(Alaska 2000)) (internal quotation marks omitted).  



          49        We r   ecently revisited the pl         ain error t  est in Johnson v. State , 328 P.3d 77  



(Alaska  2014), where we reiterated Adams 's ho                       lding  that "we will review unpreserved  

claims for plain error and reverse the trial  court where there was obvious and prejudicial  

error below affecting substantial rights that did not result from 'intelligent waiver  or a  

tactical decision not to object.' "  Id. at 82 (quoting Adams , 261 P.3d at 764).  



          50  

                                                                                             

                   E.g. , Hammonds v. State, 442 P.2d 39, 42,  and  43 n.16 (Alaska 1968)  

                                                                                                           (continued...)  



                                                             - 11-                                                      6982
  


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

                                                                                                                

of  a  claim  of error  when  defense  counsel made  a  tactical decision  not to  object  or  



                                                                      

engaged in strategic gamesmanship to avoid the trial court's correction of the error in the  

first instance.51  



                                                                                      

                   In Hicks , the court of appeals concluded that "Hicks ha[d] not shown that  



                           

she did not make a tactical decision to forgo a jury unanimity instruction" because (1)  



it "appear[ed] that the defense attorney tried to focus on the weakness in the State's  



proof" of one of the incidents; and (2) had Hicks raised the issue earlier, "the trial court  

might have allowed the State to add a second count of driving under the influence."52   In  



Moreno ,       the    court      of   appeals       reasoned       that    "when        the    record      is   silent    or  



ambiguous           .   .    .   [the     court]      appl[ies]       a    presumption           that     the     defense  



                                                            53  

attorney's . . . inaction . . . was tactical."                  The court also speculated as to Moreno's  



                                                   54  

                                                      and stated that the test was whether, based on the  

counsel's reasons for not objecting 



          50(...continued)  



("There  is  here  a  clear  intimation  of  a  deliberate  design  to  knowingly  [forgo]  a  

constitutional claim.  Such a deliberate act on the part of counsel amounts to a waiver of  

                                                                        

appellant's constitutional right which is binding on appellant.").  



          51       Id. at 42-43.  



          52       Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *3-4 (Alaska  



App. Jan. 16, 2013).  



          53  

                                                                        

                   Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska  

App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013)  

(omissions in original) (alterations added) (quoting Borchgrevink v. State , 239 P.3d 410,  

                                                                                                           

421 (Alaska App. 2010)).  



          54       Id. at *2-3.  



                                                            -12-                                                      6982
  


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

                                                                                        55  

                                                        

record, "there is a serious potential for tactical inaction."                               As explained below, neither  



                                                                                                             56  

approach accords with our prior case law up to and including Adams .  



                     1.        The tactical-decision case law from 1960-1980  



                                                      

                     In Rank v. State , we examined whether allowing trial testimony regarding  



                                                                         

the defendant's failure to take a lie detector  test was reversible error where defense  



                                                                          57  

counsel did not object to this evidence at trial.                             We reviewed the trial transcript and  



                                                                                                 

concluded that Rank's counsel "went into the subject [of his client's failure to take the  



                                                                          

test]  in  great  detail  in  his  cross-examination  of  a  [S]tate  witness  and  when  [Rank]  



                                              58  

                                                  Based on this clear indication in the record of defense  

testified in his own defense." 



                                                          

counsel's tactics, we reasoned  that "Rank had presumably taken the position that to  



                                                                                                      59  

                                                                                                                 

explore the subject in detail would be advantageous to his cause."                                       But on appeal Rank  

"adopt[ed] the totally inconsistent position that he ha[d] suffered a grave disadvantage."60  



                                                             

We held that Rank was "bound by the choice he first made in the court below.  He ha[d]  



           55        Id. at *5.  



           56        We  divide  our  discussion  of  the  tactical-decision   case   law  into  three  



categories:  (1) cases from 1960 to 1980; (2) cases from 1980 to 2000; and (3) the   

tactical-decision analysis in Adams v. State , 261 P.3d 758 (Alaska 2011).                                            We discern  

no significant changes in our tactical-decision analysis from one period to the next but  

have divided our discussion into these sections to assist the reader.  



           57  

                                                                                                              

                     373 P.2d 734, 735 (Alaska 1962), overruled in part on other grounds by  

Shafer v. State, 456 P.2d 466 (Alaska 1969).  



           58        Id. at 736.  



           59  

                           

                     Id.  



           60        Id.  



                                                                 -13-                                                           6982
  


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

waived any error that might otherwise have occurred when testimony regarding the  

polygraph was first brought into the case by a [S]tate witness."61  



                     In Noffke v. State , the trial judge received a question from the jury and   



responded by giving the jury a supplemental instruction without contemporaneously   



                                                                                                                           62  

notifying the defendant and his counsel of the question or the court's answer.                                                 Unlike  



in Rank , we noted "[t]here [was] nothing in the record to show that appellant's trial  

                                



counsel had any knowledge . . . of the fact that the trial judge had given the jury this  

                                                                              



supplemental instruction" and consequently held  that "it would work an injustice to  

                                                                                  



appellant  to  hold  that  he  is  now  precluded  from  questioning  the  propriety  of  the  

                                      



supplementary instruction" by not contemporaneously objecting to preserve the issue for  

                                                       



                           63  

appellate review.               In both Rank  and Noffke , we focused on whether the record on its  

                                                       



face clearly indicated defense counsel's obvious knowledge of the error.  



                     In  Hammonds  v.  State ,  defense  counsel  failed  to  object  when  a  police  

officer testified to statements the defendant made after an inadequate Miranda warning.64  



Similar to Rank and Noffke , the issue before us was "not merely one of a technical failure  

                                             



                                          65  

to object in the trial court."                 The trial record plainly indicated that defense counsel was  

                                                                                                                        



aware  of  the  requirements  of Miranda  and  that  he  could  have  excluded  his  client's  



statements by objecting, but chose not to object because the statements were potentially  



           61        Id.  



           62        422 P.2d 102, 103 (Alaska 1967).  



           63        Id. at 106-07.  



           64        442 P.2d 39, 40-41 (Alaska 1968).  



           65        Id. at 43.  



                                                                  -14-                                                            6982
  


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

                     66  

                                                          

exculpatory.             We concluded that there was "a clear intimation of a deliberate design to  



knowingly [forgo] a constitutional claim" and "[s]uch a deliberate act on the part of  



                                                                                                                  67  

                                                                                                                      In other words,  

counsel amount[ed] to a waiver of appellant's constitutional right." 

because  counsel's  failure  to  object  was  "an  intelligent  waiver  of  a  known  right,"68  



Hammonds could not complain on appeal that his Fifth Amendment privilege against  



self-incrimination was infringed upon because the record indicated that his counsel was  



aware  of  the  requirements  of  Miranda  and  allowed  the  admission  of  his  client's  



statements despite the constitutional violation.  



                                                                                                           

                      Then in Gafford v. State, another lie detector case, the record revealed that  



                                                                                                                  

Gafford's  counsel  had  informed  the  court  that  he  had  decided  not  to  request  an  



                                                                                   

instruction on the inadmissibility of information about the lie detector test because he  



                                                                                                                                              69  

                                                                         

"did not want 'to underline' the lie detector answer" elicited during cross examination. 



                                                                                        

We held "In view of the decision made at trial by his counsel, . . . appellant is now  



                                                                                                 

precluded from asserting that it was error for the trial court not to have instructed the jury  

to disregard [the witness's] reference to a lie detector [test]."70  



           66         Id. at 42 (referring to Miranda v. Arizona , 384 U.S. 436 (1966), which held                 



that statements obtained from defendants during interrogation in a police-dominated   

atmosphere, without full warning of constitutional rights, were inadmissible in violation                

of their Fifth Amendment privileges against self-incrimination).  



           67         Id. (emphasis added).  



           68         Id. at 43 (emphasis added).  



           69         440 P.2d 405, 410 (Alaska 1968), overruled on other grounds by Fields v.  



State, 487 P.2d 831 (Alaska 1971).  



           70         Id.  



                                                                     -15-                                                               6982
  


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

                     Finally, in Pulakis v. State , the trial court, without objection from defense       

counsel, admitted testimony regarding two lie detector tests the defendant took.                                                 71  We  



considered Pulakis's counsel's actions throughout the course of trial and concluded they  

                                                                                                  



"present[ed] a more compelling factual situation for finding an intelligent waiver of a  

                                                                                                                         



                                                           72  

known  right  than  existed  in  Rank ."                         For  example,  defense  counsel  (1)  questioned  

                                                                                                      



prospective jurors intensively on the subject of polygraph examinations; (2) elicited  



responses favorable to Pulakis's position; (3) minimized the importance of the polygraph  

                                                                         



evidence in his opening statement and closing argument; and (4) made no objection to  

                                                                                                                    



the qualifications of the expert witness on the results of the polygraph examination or to  

                                                                                                                                     

                                                        73  We noted that "[i]n fact, counsel stated explicitly  

the admissibility of that testimony.                                



that there was no objection to the admission of the written report of the expert witness,"  

                                                 



and "[o]n cross-examination, . . . counsel obtained significant admissions from the expert  

                                                                                                  

                                                                         74  Defense counsel also requested highly  

about the unreliability of the polygraph test."  

                                                                                            

favorable jury instructions on the issue, which were given by the superior court.75                                                  We  

                                                                                                                         



concluded "that this entire pattern of events demonstrate[d] a clear, intelligent waiver of  

                                                                       



any privilege to exclude this evidence" based on defense counsel's trial strategy, thus  

precluding plain error review.76  



           71        476 P.2d 474, 477 (Alaska 1970).
  



           72        Id. at 480.
  



           73        Id.
  



           74        Id.
  



           75        Id.
  



           76        Id.
  



                                                                  -16-                                                             6982
  


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

                     These cases make clear that for an appellate court to decline plain error  



                                                                                                  

review because defense counsel made a tactical decision, it must be plainly obvious from  



the record on its face:  (1) that counsel had an obvious awareness or knowledge of the  



error, and (2) that counsel made an intentional or tactical decision not to object to the  



error.  Our case law has remained consistent on this point.  



                     2.        The tactical-decision case law from 1980-2000  



                                                                         

                     In Owens v. State, the prosecution arranged for a radio broadcast on Sitka's  



                                                                                                          77  

                                                                                                              Unfortunately,  

only radio station in an effort to locate an anonymous caller to testify. 



                                                                      

the station broadcast the message during the morning hours before jurors were due to  



                            78  

                                Owens brought the broadcast to the court's attention the next day,  

report for the trial.                                                          



but opposed the prosecution's suggestion that the court make a general inquiry of the  

                                                                                                                            

jurors. 79  The superior court noted on the record that "it would respect Owens'[s] request  

                                                                                                          



not to have the jury queried in a general manner, but pointed out that Owens, by his  

           



tactical decision, was depriving the court of the ability to take any actions necessary to  

                                                        



                                                                                                            80  

cure the harm caused by jury exposure to the inadmissible evidence."                                            The superior  

                                                



court  "indicated  that  it  considered  Owens  to  be  waiving  the  jury  exposure  issue  by  

objecting to a general inquiry of the jurors."81  On appeal we stressed that because Owens  

                                                                                      



objected to a procedure that would have cured any possible prejudice, he waived his right  

                                           



          77         613 P.2d 259, 260 (Alaska 1980).
  



          78        Id.
  



          79        Id.
  



          80        Id.
  



           81       Id.
   



                                                               -17-                                                         6982
  


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

                                                                                                             82  

                                                                        

to  raise  this  issue  on  appeal  under  plain  error  review.                                                    It  was  Owens's  attorney's  



                                                                                                                                  

intentional decision not to cure the error in the first instance that barred further plain  



error review.  



                                                                                                

                          In Moss v. State , a defense witness refused to testify and defense counsel  



                                                                                  83 

asked that the witness be held in contempt.                                           The court took a short recess, during which  



                                                                                                                      84  

defense  counsel  was  permitted  to  confer  with  the  witness.                                                            Following  the  recess,  



defense counsel did not renew his attempt to compel the witness to testify under threat  



of  contempt,  made  no  further  mention  of  the  witness  or  counsel's  proposed  line  of  



                                                                               85  

inquiry, and instead rested Moss's case.                                            On appeal Moss argued that the trial court  



should have compelled the witness to testify, that its failure to do so violated Moss's  



constitutional rights to due process and to confrontation, and that the court's failure to  



                                                                                                                                     86  

hold a hearing concerning the proposed testimony was plain error.                                                                         We summarily  



dismissed these contentions, concluding:  



                                                                                                                             

                          [W]e believe that[,] given the tactical reasons that may have  

                                               

                          supported   a   decision   to   withdraw   the   witness,   it   was  



             82           Id.   at 262 ("We conclude that the trial court here could have cured any   



possible prejudice with an instruction to the jury that they were to determine guilt or                                                                   

innocence solely on the basis of the evidence admitted at trial.  Because Owens objected   

to  this  procedure,  he  has  waived  his  right  to  raise  on  appeal  this  issue."  (footnote  

omitted)).  We note that the trial judge in Owens did a commendable job making a clear  

                                                                                                                                                             

record on this issue.  Best practices for trial judges who become aware of an attorney's  

                                                                                      

probable tactical decision not to object (or not to request a curative instruction) include  

                                                                                           

making an inquiry and findings on the record outside the presence of the jury.  



             83           620 P.2d 674, 677 (Alaska 1980).  



             84           Id.  



             85           Id.  



             86           Id.  



                                                                                -18-                                                                           6982
  


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

                    incumbent upon counsel to renew his attempt to obtain the  

                                                                                                  

                    witness['s] testimony following the recess. During the recess  

                                                                                                 

                    counsel may have learned that the witness would not testify  

                                                             

                    in a manner helpful to the defense and thus have decided not  

                                      

                    to proceed further with him. . . .  [C]ounsel's decision to rest  

                                                                           

                    his case at that point is inconsistent with the present claim of  

                             [87] 

                    error.  



                    In other words, we concluded that Moss's counsel made a tactical decision  



                                                                                  

when he chose to forgo asking the court to compel the witness's testimony after speaking  



                                                                                       

to the witness.  While speculating somewhat on counsel's rationale for this particular trial  



                                                                                     

strategy, we were careful to point out that the record reflected counsel's  intentional  



                                                               88  

                                                                   Thus, Moss is distinguishable from Moreno  

choice not to go forward with this witness. 



                                                 

and  Hicks  where,  on  a  silent  or  ambiguous  record,  the  court  of  appeals  applied  a  



                                                                                      89  

presumption that defense counsels' inaction was tactical.                                 In Moss , the record reflected  



that defense counsel made an affirmative decision to withdraw a witness and rest his  



                                                                       90  

                                                                           We did not apply a presumption that  

client's case after conferring with the witness. 



defense counsel's  inaction was tactical; rather, we recognized that defense counsel's  



action of withdrawing the witness was tactical.  



                    In  Dorman  v.  State ,  we  discussed  the  distinction  between  cases  where  



              

defense  counsel deliberately injects error at trial or makes a tactical decision not to  



                                                                                                           

object,  and  cases  where  defense  counsel's  lack  of  objection  could  have  no  tactical  



          87        Id. at 677-78.  



          88        Id.  



          89        Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska   



App. Jan. 16, 2013); Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5                                          

(Alaska  App.  Jan.  9,  2013),  reh'g  denied,  2013   WL   120907,  at  *5  (Alaska  App.  

Feb. 7, 2013).  



          90        Moss , 620 P.2d at 677-78.  



                                                               -19-                                                         6982
  


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

           91  

benefit.       During closing arguments at Dorman's trial, the prosecutor commented that  

                                                                                   



the jury should infer guilt from the fact that Dorman remained silent between the time  

                                                                   



                                                                                                92  

of his arrest and the time he was advised of his Miranda rights.                                    Dorman's counsel  

           



                        93  

failed  to  object.           We  noted  that  Dorman's  counsel  (1)  failed  to  object  to  identical  



testimony   during   trial;   (2)   mentioned   Dorman's   Miranda   rights   during   cross- 



examination; (3) asked for no curative instruction at the time; and (4) made no motion  

                                                           

for a mistrial.94  



                    Despite Dorman's counsel's awareness of Miranda , we held the failure to  

                                                                                                                    



object was not tactical because Dorman had not "injected the issue of his silence into the  



                                                     

case" and there could be no benefit to him in letting the potentially incriminating silence  



                      95  

into  evidence.             In  addressing  whether  counsel  may  have  been  inviting  error,  we  



concluded:  



                                                                               

                    There is no basis for the inference that defense counsel was  

                                   

                    trying to further Dorman's case by failing to object to the  

                    final  argument  comment,  unless  it  is  implied  that  defense  

                                                                                               

                    counsel invited error for the purpose of obtaining a reversal  

                    on  appeal.    That  conclusion,  however,  is  not  one  which  

                    should be lightly inferred in any case, for it would preclude  



          91        622 P.2d 448, 457-58 (Alaska 1981) (comparing Davis v. State , 501 P.2d  



1026 (Alaska 1972) and Hammonds v. State , 442 P.2d 39 (Alaska 1968) with Bargas v.  

                      

State, 489 P.2d 130 (Alaska 1971)).  



          92        Id. at 456.  There had also been testimony regarding Dorman's reactions  



to  questions  after  he  had  been  informed  of  his  Miranda  rights,  despite  Dorman's  

counsel's  objections.  Id.  at  452.    The  trial  court  prohibited  the  prosecutor  from  

referencing that testimony during closing arguments.  Id.  



          93        Id. at 457.  



          94        Id.  



          95        Id. at 458.  



                                                             -20-                                                        6982
  


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

                      review of the most fundamental defects under the plain error               

                                            [96] 

                      doctrine . . . .  



                           

In other words, we explicitly refrained from construing counsel's inaction as a tactical  



                                                                                                                             

decision absent a clear indication in the record.  Without an affirmative act by counsel  



indicating his awareness of the existence of a known right and some indication in the  



record of a conscious failure to preserve the issue, we conducted the remainder of the  

plain error analysis.97  



                      Finally, in Raphael v. State , the prosecutor told the trial judge at an ex parte  



                                                                   

hearing that the State's key witness was likely to recant, was intoxicated, and should be  



                                                  98  

                                                                              

incarcerated until she testified.                      Without first notifying Raphael or his attorney of the  



                                                       

prosecutor's statements, the trial judge granted the prosecutor's request, jailing the key  



                                                                                           99  

witness and placing her children in protective custody.                                         Raphael was convicted and  



                                                                                                           

appealed,  arguing  that  the  trial  court  denied  him  due  process  given  the  potentially  



                                                                                                                  

coercive effect of the witness's incarceration on her testimony and his right to be present  



           96         Id. at 458 (emphasis added).  We also noted Dorman's counsel's "many  



objections" to testimony regarding Dorman's silence after receiving a Miranda warning  

                                                                                       

compared to Dorman's counsel's failure to  object to testimony regarding Dorman's  

silence before receiving a Miranda warning.  Id.  We stated that this discrepancy further  

             

indicated that counsel's failure to object to evidence of Dorman's pre-Miranda -warning  

                                                                  

silence was not invited error.  Id.  



           97  

                             

                      Id.   ("Thus, since the failure to object to the final comment has not been  

shown to have been a tactical or strategic decision, the [S]tate's  argument does not  

compel us to disregard the error.  We must still, of course, determine whether this remark  

                                                                                              

constituted plain error.").  



           98         994 P.2d 1004, 1006 (Alaska 2000).  



           99         Id.  



                                                                    -21-                                                              6982
  


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

                           100  

     

at the hearing.                  The State responded that Raphael abandoned his right to appeal his  



                                                                        

absence from the ex parte hearing (and the hearing's allegedly coercive effect on the key  



witness's testimony) because his attorney failed to object to, and thus preserve, these  



                                               101 

                                                                                             

alleged errors during trial.                         The State argued that the tactical-decision prong should bar  



                                                               

further review because Raphael's failure to object might have been tactical and Raphael  

could have obtained a benefit from his failure to object.102  



                         We rejected such speculation because it "assume[d] that Raphael's attorney  



                                                                                                       

had a sufficiently accurate view of the scope of the error and deliberately chose to waive  



                            103  

any objection."                   We compared the situation in Raphael to Noffke v. State , where we  



                                                                                                                               

held that defense counsel's failure to object was not a tactical decision because the record  



                                                                                                                                                             104  

                                                                                                                                         

failed to demonstrate that defense counsel was aware of the error asserted on appeal. 



                                                    

And we noted that we had requested that both parties search the trial record for "any  



evidence,  .  .  .  of  [Raphael's  attorney's]  knowledge  of  the  ex  parte  hearing  and  the  



                                                                                                                                                       105  

surrounding circumstances," but that "[n]either party found any such references."                                                                            



                                                                                                        

                         Based on the lack of support in the record for the conclusion that defense  



                                                                   

counsel knew the full extent of the constitutional errors and deliberately chose not to  



            100         Id.  



            101         Id. at 1015.  



            102         Id. ("Specifically, the State contends that Raphael could have hoped that  



[the complaining witness's] incarceration would make her hostile toward the prosecution  

and cause her to slant her testimony in his favor.").  



            103         Id.  



            104         Id. at 1016 (citing Noffke v. State , 422 P.2d 102, 106-07 (Alaska 1967)).  



            105         Id.  at 1016 n.53 (emphasis added) (explaining our request that the parties                                  



provide supplemental briefing on whether the record contained any evidence of defense   

counsel's knowledge of the hearing, apart from the trial court's limited description of it).       



                                                                            -22-                                                                      6982
  


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

object, we could not say that Raphael's attorney's decision not to object was tactical.106  



Because plain error review was not foreclosed by any tactical decision not to object, we             



held that the error complained of (1) was obvious;                                        (2) was substantially prejudicial; and   



(3) undermined the fundamental fairness of the trial and contributed to a miscarriage of      



             107  

justice.           Concluding there was plain error, we remanded Raphael's case for a new  

trial.108  



                        In sum, these cases consistently demonstrate our reluctance to foreclose  

                                                                                                                                           



plain error review on tactical-decision grounds.  Evidence of a tactical decision not to  

                                                                                                                   



object to a trial error must be plainly obvious from the record to persuade an appellate  

                                                      



court that a defendant's otherwise meritorious substantive claim of error should not  

                                                                                                                                        



                                            109                                                                                                 110 

trigger appellate review.                         This rule was further underscored in Adams v. State .  



                        3.          The tactical-decision analysis in Adams v. State , 2011  



                        All parties agree that our decision in Adams governs the outcome of the  



present  cases.    Moreno  and  Hicks  argue  that  Adams 's  reliance  on Dorman ,  Owens,  



Pulakis , and Hammonds indicates that we intended defense counsel's tactical decisions  

                                                                                                                             



to operate as implied waivers of future appeals, with the State bearing the burden of  

                                                                                         



proving that a decision was tactical.  Moreno and Hicks also read Adams as precluding  

                           



            106         Id.
  



            107         See id. at 1015.
  



            108         Id. at 1015-16.
  



            109         See, e.g., Hammonds v. State , 442 P.2d 39, 42-43 (Alaska 1968).
  



            110         261 P.3d 758, 773 (Alaska 2011).
  



                                                                          -23-                                                                    6982
  


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

                                       

plain error review where the benefit conferred on the defendant is readily apparent on the  

record.111  



                                                                                         

                     The State does not read Adams as requiring proof of an express or implied  



                                                              

waiver or a discernable benefit on the defendant.  According to the State, nothing in  



                                                                     

Adams suggests that these are the only types of tactical decisions that will preclude plain  



                                                                

error review.  The State instead attempts to factually distinguish Adams and the cases it  

relied on to convince us to adopt the court of appeals' line of cases.112  



                                                                                                                  

                     Adams began its analysis of the plain error rule by discussing how 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  



                  113  

                                                                                                      

or tactical."         We underscored our analysis in Dorman that where there is "no evidence"  



                                                                           

that defendant's failure to object was strategic, there is "no basis for inferring that the  



           111       Moreno  and  Hicks  cite  Adams 's  discussion  of  Dorman ,  where  we  



explained:  "[W]here a defendant 'neither injected the issue of his silence into the case  

                                                                                                  

nor obtained a benefit from the prosecutor's inculpatory comment,' there [was] 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.'  "   Adams ,  

                                                                                                                           

261 P.3d at 773 (quoting Dorman v. State , 622 P.2d 448, 458 (Alaska 1981)).  



           112  

                                                  

                     The  State  argues  that  we  should  explicitly  adopt  the  court  of  appeals'  

                                                                                                             

standard for deciding whether a failure to object was tactical.  Under this standard, the  

                                                                                                                       

court of appeals reviews the trial court record for any "plausible" tactical reason for  

                                                                                                                   

defense counsel's failure to object, Borchgrevink v. State , 239 P.3d 410, 422 (Alaska  

                     

App. 2010), and "unless the record precludes the possibility that counsel's actions may  

                                                

have  been  tactical,  a  finding  of  plain  error  is  rarely  appropriate."    Massey  v.  State ,  

                               

771 P.2d 448, 453 (Alaska App. 1989).  Under the court of appeals' approach, if the  

                                                                        

court can divine a conceivable tactical reason or the record is silent or ambiguous, that  

court applies a presumption that the defense attorney's decision was tactical, and then  

the  burden  shifts  to  the  defendant  to  prove  that  counsel's  decision  was  not  tactical.  

                                        

Borchgrevink , 239 P.3d at 421.  



           113       Adams , 261 P.3d at 770.  



                                                                -24-                                                          6982
  


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

failure to object was tactical 'unless it is implied that defense counsel invited error for  



                                                                          114  

                                                                               And we stated that this implication  

the purpose of obtaining a reversal on appeal.' " 



                                                                                                        

"is not one which should be inferred lightly, for it would preclude review of the most  



                                                                                115  

fundamental defects under the plain error doctrine."                                  This statement recognized the  



central focus of plain error review:  



                                                                        

                     [The rule] [is] intended to ensure that litigants have a means  

                                                           

                    for  the  prompt  redress  of  miscarriages  of  justice,  and  it  

                    applies only when the error was so plain that the trial court  

                                                                 

                    and prosecutor were derelict in countenancing it, even absent  

                                               

                    the  defendant's  timely  assistance  in  detecting  it.    It  also  

                                 

                    reflects a careful balancing between the Court's intention of  

                                                                                              

                    encourag[ing] all trial participants to seek a fair and accurate  

                    trial  the  first  time  around  and  the  Court's  insistence  that  

                    obvious injustice be promptly redressed.[116]  



In  Adams ,  we  cautioned  that  appellate  courts  should  concentrate  on  the  substantive  



                                          

requirements of plain error review:  the obvious nature of the error, the substantial rights  



                                                                                                  117  

the error affected, and the prejudice that resulted from the error.                                     Inferring a tactical  



          114       Id. at 773 (quoting Dorman , 622 P.2d at 458).  



          115       Id. (emphasis added) (quoting Dorman , 622 P.2d at 458) (internal quotation  



marks omitted).  



          116       Larry  Cunningham,  Appellate  Review  of  Unpreserved  Questions  in  



Criminal Cases: An Attempt to Define the "Interest of Justice, " 11 J. A 

                                                                                                                 PP .   PRAC .   &  

PROCESS 285, 298 (2010) (third alteration in original) (footnote omitted) (quoting                                        United  

States v. Frady, 456 U.S. 152, 163 (1982)) (internal quotation marks omitted).  



          117       Adams ,         261       P.3d       at    770,       773       (noting        that      "our       [earlier]  

                                                                                                           

cases . . . consistently define[d] plain error as error that affects substantial rights and is  

                                                                   

obviously prejudicial," but noting that three substantive requirements must now be met:  

                                                                                                                          

there "must be error . . . ; the error must be obvious, meaning that it should have been  

                                                               

apparent to any competent judge or lawyer; . . . the error must affect substantial rights,  

                                                                          

meaning that it must pertain to the fundamental fairness of the proceeding; and . . . the  

                                                                                                                    

                                                                                                                (continued...)  



                                                               -25-                                                         6982
  


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

decision or intelligent waiver of a known right on a silent or ambiguous record would  



serve only to impede substantive review of the error.  



                                        

                    Adams  and the cases it relied upon thus stand at odds with the court of  



                                

appeals' conclusion in Moreno that "when the record is silent or ambiguous[,] . . . [the  

court] appl[ies] a presumption that the defense attorney's . . . inaction . . . was tactical."118  



It was also error to place the burden on the defendant to negate the possibility that his  

attorney's failure to object was tactical.119  



                                                                                             

                    The same error was made in Hicks , where the court of appeals held that  



                                                                         

"Hicks must . . . show that the error was not the result of her attorney's tactical decision  

                      120  We have never placed this burden on the defendant.  Hicks cited our  

                                                                      

not to object."  

analysis in Khan v. State ,121 but Khan only reaffirmed the "Adams rule" that "includ[es]  

                                                                                                     



an  inquiry  into  whether  the  defendant's  non-objection  was  tactical,  [which]  better  

                  

respects the trial process and the role of counsel."122  



                    Whether the defendant made a tactical decision not to object or intelligently  

                                                                                                     



waived an opportunity to object must be plainly obvious from the face of the record, not  



                                                                                  

presumed in the face of a silent or ambiguous record.  The records in Moreno and Hicks  



          117(...continued)  



error must be prejudicial").  



          118       Moreno v. State , Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska               



App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013)   

(quoting Borchgrevink , 239 P.3d 410, 421 (Alaska App. 2010)).  



          119       Id.  



          120  

                                                                                                                    

                    Hicks v. State , Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska  

App. Jan. 16, 2013) (citing Khan v. State , 278 P.3d 893, 901 (Alaska 2012)).  



          121       Id. at *4 (citing Khan , 278 P.3d at 901).  



          122       Khan , 278 P.3d at 901.  



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

do not reveal plainly obvious evidence of tactical decisions not to object by defense  



counsel.  Because the court of appeals improperly placed the burden on Moreno and  



                                                                                             

Hicks to prove that their attorneys did not make tactical decisions, and because the court  



of appeals improperly applied a presumption of tactical inaction in the case of a silent or  



                                           

ambiguous record in Moreno, we reverse the court of appeals' conclusions regarding the  

tactical-decision determination in both cases.123  



         B.	       We  Affirm  The  Court  Of  Appeals'  Conclusion  That  The  Error  In  

                   Moreno's Case Was Not Prejudicial.  



                   In Moreno , the court of appeals also addressed the prejudice prong of plain  



                                                               

error review.  The court held that admitting the arresting officer's statement regarding  



                                                                

Moreno's decision to remain silent did not result in prejudice because admitting the  

                                                                        124  Moreno argues that the court of  

                                                                                                               

statement was harmless beyond a reasonable doubt.  



appeals erred in reaching that conclusion.  



                  Adams considered what would constitute prejudice and held 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  



         123       We note that the court of appeals recently discussed the tactical-decision  



principle in Anderson v. State , 337 P.3d 534, 543-44 (Alaska App. 2014).  We had  

previously remanded the Anderson case to the court of appeals for its reconsideration of  

this  issue  in  that  case.    The  court  of  appeals  decided  not  to  reconsider  its  earlier  

determination of the tactical decision in that case in light of its alternative holding that  

                                                                                      

the jury instruction error in Anderson was harmless beyond a reasonable doubt.  Id .  at  

                                                                          

544.  



         124	      Moreno , 2013 WL 120907, at *3.  



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

                   proves that there is a reasonable probability that it affected  

                   the outcome of the proceeding.[125]  



We  identified  several  factors  that  a  reviewing  court  must  consider  in  determining  



whether a trial court's failure to take remedial action regarding a prosecutor's comments  



                                                                    

on  a  defendant's  silence  constituted  harmless  error.    These  include  (1)  whether  the  



conviction  depended  primarily  on  conflicting  witness  testimony;  (2)  whether  the  



comment occurred during closing argument; (3) whether the comment was "express"  



                                                                                         

rather than "brief and passing"; and (4) whether the evidence was "directly elicited by  

the prosecutor's questioning."126  



                   Moreno        was      convicted       at    trial   of    delivery       and     possession        of  



                           127  

                                                                                                             

methamphetamine.                 On  cross-examination,  Moreno's  defense  attorney  asked  the  



investigating officer whether the officer had been able to identify the owner of a jacket  



that  contained  a  methamphetamine  pipe.    The  officer  replied  that  there  were  "no  



                                                                                  

identifying items [in the jacket] and the defendant refused to speak to us about it, but we  



                        

did photograph where that - that came out of," at which point the defense attorney  



                                                                      

interrupted and directed the officer to answer yes or no.  (Emphasis added.)  This was the  



only reference in the entire course of trial implicating Moreno's constitutional right to  

be free from self-incrimination.128  



          125      Adams v. State , 261 P.3d 758, 773 (Alaska 2011).  



          126      Id. at 774-75 (quoting  Van Hatten v. State                 , 666 P.2d 1047, 1056 (Alaska  



App. 1983)).  



          127      Moreno , 2013 WL 120907, at *1.  



          128      See Alaska Const. art. I,  9 ("No person shall be compelled in any criminal  



proceeding  to  be  a  witness  against  himself.");  Moreno ,  2013  WL  120907,  at  *2  

                      

("Evidence  of  a  defendant's  post-arrest  silence  in  response  to  police  questioning  is  

generally inadmissible under Article I, section 9 of the Alaska Constitution.  In addition,  

                                                                                        

                                                                                                       (continued...)  



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

                                                                                                       

                  By comparison, in Adams, the prosecutor  made two remarks  on cross- 



examination that directly addressed Adams's post-arrest silence:  



                  [PROSECUTOR]:  And then you refused to talk to police any
  

                  further.  Correct?
  



                  [ADAMS]:  That's right.
  



                  [PROSECUTOR]:  Okay.  Until today?
  

                  [ADAMS]:  I was exercising my right.[129]
  



And then again:  



                  [PROSECUTOR]:    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?  



                  [ADAMS]:  What do you mean by everything?  



                  [PROSECUTOR]:    Well,  we  didn't  know  anything  about  

                  what  happened  in  your  apartment  from  you,  because  you  



         128(...continued)  



a   defendant's        pre-arrest     silence     will    usually     be    inadmissible       under     Alaska  

Evidence Rule 403 because its probative value is inherently low and the danger of unfair  

                                                                                               

prejudice is inherently high." (footnote omitted)).  



                  We note that the court of appeals did not explicitly determine whether  

Moreno was under arrest when he was questioned about the jacket, but assumed that he  

                                                                                               

was, at the very least, detained when the questioning occurred.  Moreno , 2013 WL  

 120907, at *2.  The court of appeals therefore analyzed the officer's comment under the  

                      

higher "harmless beyond a reasonable doubt" standard employed when the alleged error  

implicates a constitutional right.  See id.; see also Adams, 261 P.3d at 771.  Because our  

decision to affirm the court of appeals' conclusion in Moreno regarding the lack of  

prejudice would be the same under either the pre- or post-arrest standard as stated in  

Adams , 261 P.3d at 773, whether Moreno was under arrest at the time of his statement  

                            

is irrelevant.  



         129      Adams , 261 P.3d at 770.  



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

                    didn't talk to police, until after hearing all the evidence so far           

                    in the case.[130] 



                                                                    

And during closing argument, the prosecutor again pointed to Adams's silence to argue  

that Adams's testimony was less credible than the victim's.131  



                                                                                                      

                    The  prosecution's  conduct  in  Adams  was  egregious,  continued  over  a  



                                                                                         

protracted period, and went to the core of the prosecution's theory of the case, namely,  



that Adams was not credible and "changed his decision not to talk when he learned about  



                                                                                                             132  

                                                                                                                  The facts  

the DNA evidence indicating that he had sex with [the underage victim]." 



in  Moreno  are  far  less  compelling:    the  officer's  comment  was  elicited  by  defense  



                                                                                         

counsel; it was made in passing; and the prosecutor did not refer to it during his closing  



argument.  



                    Accordingly, we agree with the court of appeals that the officer's  testimony  



"had little impact on Moreno's trial" and was "harmless beyond a reasonable doubt"  



                                                          

under the four factors of Adams  that a reviewing court considers when determining  



whether a court's failure to address a prosecutor's comments on a defendant's silence  



                             133  

was harmless error.               We thus affirm the court of appeals' decision in Moreno on this  



alternate ground.  



V.        CONCLUSION  



                    We  REVERSE  the  court  of  appeals'  decisions  foreclosing  plain  error  



                                                                                                   

review in both Hicks and Moreno , but we AFFIRM the court of appeals' decision in  



          130       Id.
  



          131       Id. at 762.
  



          132       Id.
  



          133       Moreno , 2013 WL 120907, at *3.
  



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----------------------- Page 31-----------------------

Moreno on the alternate ground that the error was not prejudicial.                           We REMAND  Hicks  



for further proceedings consistent with this opinion.  



                                                            -31-                                                   6982
  

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