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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Goldsbury v. State (2/13/2015) sp-6983

Goldsbury v. State (2/13/2015) sp-6983

         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  



KENNETH A. GOLDSBURY,                                   )  

                                                        )         Supreme Court No. S-15393  

                            Petitioner,                 )         Court of Appeals No. A-10624  

                                                        )  

         v.                                             )         Superior Court No. 3PA-09-00204 CR  

                                                        )  

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

                                                        )  

                            Respondent.                 )         No. 6983 - February 13, 2015  

                                                        )  



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

                                                                                              

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

                                               

                   Alaska,  Third  Judicial  District,  Palmer,  Kari  Kristiansen,  

                   Judge.  



                   Appearances:    Paul  E.  Malin,  Law  Office  of  Christine  

                                                                  

                   Schleuss,  Anchorage,  for  Petitioner.    Eric  A.  Ringsmuth,  

                   Assistant Attorney General, Office of Special Prosecutions  

                   and Appeals, Anchorage, and Michael C. Geraghty, Attorney  

                                                        

                   General, Juneau, for Respondent.  



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

                               

                   Justices.  [Bolger, Justice, not participating.]  



                   FABE, Chief Justice.  



I.       INTRODUCTION  



                   A criminal defendant exercised his constitutional right not to testify at  trial.  



The prosecutor, in her rebuttal closing argument, commented that two people knew what  

                                                       



had happened on the night in question, and only one of them, the victim, had testified.  

                               


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

The defendant did not object to the comment, and the jury convicted him of attempted     



murder.   The court of appeals, reviewing the defendant's unpreserved claim of error,           



determined  that  the  prosecutor's  remark  violated  the  defendant's  right  against  self- 



                                                                                         

incrimination.  But the court of appeals concluded that there was no plain error because  



       

"at  least  some  reasonable  judges  could  have  concluded  that  the  problem  was  not  



                                                

egregious enough to warrant a mistrial, and that the problem could be handled through  



                                    1  

                                       We affirm the conviction, but for a different reason - because  

curative instructions."                                                                                                   



the  error,  even  though  obvious,  non-tactical,  and  affecting  a  substantial  right,  was  

                           



harmless beyond a reasonable doubt.  



II.        FACTS AND PROCEEDINGS  



                     Following a dispute at the Roadside Inn at Mile 49.5 of the Parks Highway,  

                                                                                                                   



Kenneth  Goldsbury  fired  a  round  of  bird  shot  through  the  door  of  his  motel  room,  



striking Marvin Long in the torso.  Long sustained minor injuries.  At trial the State  



                                                              

asserted that Goldsbury had intended to kill Long, and that he had taken a substantial  



                                                     

step toward that goal by firing  the  round of bird shot through the door.  Goldsbury  



                                                                               

argued that he was acting in self-defense and that he lacked the requisite intent to support  



                                                                                                                   

a conviction for attempted murder in the first degree.  The jury heard testimony from  



Long, but Goldsbury did not take the stand.  During her closing argument rebuttal, the  



prosecutor remarked:  



                                                                                   

                      [W]e  heard  all  this  talk  about  what  was  not  done  in  the  

                     investigation.  But  the  fact  remains,  the  only  people  who  

                     know  what  happened  that  night  are  [the  victim]  and  the  

                                                 

                     defendant.  And [the victim] testified, came in here and faced  

                      all you people, and told you what happened in this case.  



           1          Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *5  



(Alaska App. June 13, 2012).  



                                                                   -2-                                                                 6983  


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

Goldsbury's  attorney  did  not  object  to  this  statement,  despite   its   implicit  adverse  



comment on Goldsbury's decision not to testify.  



                                                                                           

                    Before the closing arguments the superior court had given the jury a series  



of  instructions,  which  included  the  following  passage  regarding  the  presumption  of  



innocence and the burden of proof beyond a reasonable doubt:   



                                                                            

                   A defendant has the absolute right not to testify, and you must  

                    not  draw  any  inference   against  the  defendant  for  not  

                                                                                              

                    testifying.  Thus a reasonable doubt may arise not only from  

                    the  evidence  produced,  but  also  from  a  lack  of  evidence.  

                    Since  the  burden  is  upon  the  prosecution  to  prove  every  

                    essential element of the crime charged, beyond a reasonable  

                                                        

                    doubt, a defendant has the right to rely upon the failure of the  

                                                                                                    

                    prosecution to establish such proof.  (Emphasis added.)  



And immediately following the prosecutor's closing argument rebuttal, the superior court  



gave another set of instructions, which further specified:  



                   A defendant has an absolute right not to testify.  The fact that  

                    the defendant did not testify cannot be considered by you in     

                    any way.  Do not speculate about why the defendant did not  

                                                                                                  

                    testify.  Do not even discuss it in your deliberations.  



                    It is up to the State to prove the defendant guilty beyond a  

                    reasonable doubt.  It is not up to the defendant to prove that  

                                                             

                    he is innocent.  (Emphasis added.)  



No  instruction  specifically  addressing  the  prosecutor's  comment  during  closing  

                                                                                                        



arguments was requested or given.  

                    The jury convicted Goldsbury of attempted murder in the first degree,2  



assault in the second degree by intentionally causing physical injury with a dangerous  



          2         AS 11.41.100(a)(1)(A); AS 11.31.100(a).  



                                                             -3-                                                        6983  


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

                 3                                                       4  

instrument,  recklessly firing a gun at a building,  and criminal mischief in the fourth  

degree resulting in property damage.5  



                    Goldsbury  maintains  that  the  prosecutor's    comment  during  closing  



argument violated his state and federal constitutional rights against self-incrimination.  



                                                    

The court of appeals agreed that the prosecutor's comment "clearly" was constitutionally  



impermissible  because  its  "obvious  implication  was  that  Goldsbury,  the  only  other  



                                                                                                                      

person who could tell the jury what happened, was more likely guilty because he had not  



              6 

                                                                      

testified."   But Goldsbury failed to preserve his argument for appeal by objecting at trial, 



                                                                                                     

and the court of appeals concluded that the prosecutor's statement did not constitute plain  



        7  

error.   Goldsbury petitioned this court for review, and we granted his petition on the  



                                                                                                        

question "whether the prosecutor's comment regarding Goldsbury's failure to testify  



                                                                                                                          8  

meets the plain error test set forth in Adams v. State , 261 P.3d 758 (Alaska 2011)."   



III.      STANDARDS OF REVIEW  



                             

                    "The  proper  extent  of  appellate  review  for  an  unpreserved  claim  of  



                                                                                                  9  

constitutional error is a question of law that we review de novo."   The scope of the  



                                                                                         

constitutional right against self-incrimination "is a question of constitutional law which  



          3         AS 11.41.210(a)(1).  



          4         AS 11.61.195(a)(3)(A).  



          5         AS 11.46.484(a)(1).  



          6         Goldsbury, 2012 WL 2203055, at *3.  



          7         See id. at *4-5.  



          8         We did not grant review on a separate sentencing issue Goldsbury raised  



in his petition.  



          9        Johnson v. State , 328 P.3d 77, 81 (Alaska 2014).  



                                                             -4-                                                        6983
  


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

                               10  

                                                                                                             

we decide de novo."               "Under the de novo review standard, we exercise our independent  



                                                         

judgment, and our 'duty is to adopt the rule of law that is most persuasive in light of  

precedent, reason, and policy.' "11  



IV.	      DISCUSSION  



          A.	        The  Prosecutor's  Comment  Abridged  Goldsbury's  Constitutional  

                     Right Against Self-Incrimination.  



                     The Fifth Amendment to the U.S. Constitution provides for a right against  



                                                                                                                          

self-incrimination:   "No person . . . shall be compelled in any criminal case to be a  



                                             12  

                                                                                                       

witness against himself . . . ."                 Similarly, article I, section 9 of the Alaska Constitution  



                                                                              

provides:  "No person shall be compelled in any criminal proceeding to be a witness  



                           13  

against  himself."               The  U.S.  Supreme  Court  and  this  court  have  concluded  that  



                                                                                                                  

prosecutors may not comment adversely on a criminal defendant's decision to invoke his  



                                                  14  

right  against  self-incrimination.                     Even  where  an  adverse  comment  only  indirectly  



                                                       

addresses a defendant's invocation of the right against self-incrimination, constitutional  



           10	       State v. Gonzalez, 853 P.2d 526, 529 (Alaska 1993).  



           11       Johnson , 328 P.3d at 81 (citation omitted) (quoting                            Guin v. Ha, 591 P.2d  



 1281, 1284 n.6 (Alaska 1979)).  



           12        U.S.     CONST .      amend  V.    The  Fifth  Amendment  right  against  self- 



incrimination  was incorporated against the states via the Due Process Clause of the  

                       

Fourteenth Amendment in Malloy v. Hogan , 378 U.S. 1, 6 (1964).  



           13	       Alaska Const. art. I,  9.  



           14  

                                                                                              

                     Griffin v. California, 380 U.S. 609, 615 (1965) ("[T]he Fifth Amendment  

   

 . . . forbids either comment by the prosecution on the accused's silence or instructions  

                                                                                                                

by the court that such silence is evidence of guilt."); McCracken v. State , 431 P.2d 513,  

                                                                          

517 (Alaska 1967) ("It is concededly improper and reversible error to comment on the  

                                                                                   

failure of a defendant to testify in his own behalf . . . .") (quoting Knowles v. United  

States, 224 F.2d 168, 170 (10th Cir. 1955)).  



                                                                -5-	                                                        6983
  


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

                                                                                                    

error occurs if "the language used was manifestly intended or was of such character that  



                                                                       

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

accused to testify."15  



                   During closing arguments the prosecutor asserted that "the only people who  



                                                

know what happened that night are [the victim] and the defendant.  And [the victim]  



                                                              

testified, came in here and faced all you people, and told you what happened in this  



case."  We agree with the court of appeals' conclusion that "[t]he prosecutor's argument  



                                                                     16  

                                                                         This "comment on the failure of the  

in this case was clearly an improper statement." 

                           17 improperly infringed on Goldsbury's constitutional right against  

accused to testify"                              



self-incrimination.  



          B.	      The Prosecutor's Constitutional Violation Does Not Require Reversal  

                                                                                                                 

                   Of The Conviction.  



                   Goldsbury's attorney failed to object to the prosecutor's comment during  



rebuttal at closing arguments. "Typically, a litigant or defendant must raise an objection  

                                                                           

                                                                                                 18   But  "prudential  

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

                                                                                                       

exceptions,"19 like the plain error rule, exist "to provide us with an opportunity to review  



certain types of errors that we will not allow to go unreviewed despite the appellant's  



          15	      McCracken , 431 P.2d at 517 (quoting Knowles , 224 F.2d at 170).  



          16       Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *3       



(Alaska App. June 13, 2012).  



          17       McCracken , 431 P.2d at 517 (quoting Knowles , 224 F.2d at 170).  



          18       Johnson v. State , 328 P.3d 77, 82 (Alaska 2014).
  



          19       Id.
  



                                                             -6-	                                                     6983
  


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

                                                                                    20  

failure to preserve the argument for appellate review."                                 In Adams v. State we set out the  

            



test for plain error:  



                                                                                                      

                     Establishing plain error . . . requires the following:  (1) there  

                                                                                                       

                     must be error, and the error must not have been the result of  

                                                                                               

                     an intelligent waiver or a tactical decision not to object; (2)  

                                                                                         

                     the error must be obvious, meaning that it should have been  

                                                                                         

                     apparent to any competent judge or lawyer; (3) the error must  

                     affect substantial rights, meaning that it must pertain to the  

                     fundamental  fairness  of  the  proceeding;  and  (4)  the  error  

                     must be prejudicial.  A constitutional violation will always  

                     affect  substantial  rights  and  will  be  prejudicial  unless  the  

                     State  proves  that  it  was  harmless  beyond  a  reasonable  

                               

                               [21] 

                     doubt.  



                                            

And in Charles v. State we emphasized that "instead of focusing on whether [an] error  



                                                         

was hypothetically obvious, we ask whether the error was 'so prejudicial to the fairness  



                                                                                                                                      22  

                                            

of the proceedings that . . . failure to correct it would perpetuate manifest injustice.' " 



                                                                                                

                     Here, the court of appeals seemed to reason that in order to find plain error,  



                                                                                                        

it must conclude that "any reasonable judge [would] have had to declare a mistrial" if  



                                                                                     23  

                                                                                          The court's implicit rationale  

Goldsbury had objected to the prosecutor's comment. 



                              

appears to be that because the appropriate remedy was not obvious, the error itself was  



                                                                                               

not obvious.  On this basis, and without any consideration of prejudice in its analysis, the  



                                                                                          

court of appeals concluded that there was no plain error.  But our subsequent decisions  



                                                                                                                        

in Charles and Johnson have emphasized that prejudice is the touchstone of plain error  



          20         Id. at 82 n.24.  



          21         261 P.3d 758, 773 (Alaska 2011).  



          22         326 P.3d 978, 987 (Alaska 2014) (omission in original) (quoting Charles  



v. State, 287 P.3d 779, 783 (Alaska App. 2012)).  



           23        See Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *4       



(Alaska App. June 13, 2012).  



                                                                  -7-                                                           6983
  


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

            24  

review.         And in this case the obviousness element is clearly satisfied:  Had Goldsbury's  



attorney objected, the superior court could not have overruled the objection because it  



                                                                

is well-established in our jurisprudence that a comment on a defendant's failure to testify  



                                                                                       25  

                                                                                           And "[t]he fact that reasonable  

violates the Fifth Amendment and Alaska Constitution. 



                                                                                           

people could disagree about a proposition" - or in this case an appropriate remedy -  



                                                                                                                     26  

                                                                                                                         Finally, the  

does "not prevent a trial court's actions . . . from constituting plain error."  



fact  that  the  error  involves  the  infringement  of  a  constitutional  right  supports  a  



                                                  27  

conclusion that it was obvious.                       



                      Similarly, the court of appeals avoided considering prejudice by suggesting  



that Goldsbury's failure to make a timely objection foreclosed the possibility of plain  



                                                                                                     28  

error  because  that  failure  to  object  may  have  been  tactical.                                       But  "[w]hether  [a]  



                                                                    

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  



                                                      29  

                                                                                                                          

of a silent or ambiguous record."                         Here, although tactical reasons not to object may  



           24        See Charles, 326 P.3d at 987; Johnson , 328 P.3d at 83 n.27.  



           25        See, e.g.,  Griffin   v. California, 380 U.S. 609, 615 (1965) ("[T]he Fifth  



Amendment . . . forbids either comment by the prosecution on the accused's silence or     

instructions by the court that such silence is evidence of guilt.");                                McCracken v. State , 431  

P.2d  513,  517  (Alaska  1967)  ("It  is  concededly  improper   and  reversible  error  to  

comment on the failure of a defendant to testify in his own behalf . . . .").  



           26        See Johnson, 328 P.3d at 83 n.27.  



           27        See id. at 84 n.33 ("[T]he size or nature of the error deviating from the  



                                                                                                                         

claimed  right  is  a  factor  we  consider  when  determining  whether  to  review  an  

unpreserved claim of error for plain error.").  



           28        See Goldsbury, 2012 WL 2203055, at *4.  



           29  

                                                                                                         

                     Moreno v. State, ___ P.3d ___, Op. No. 6982 at 26, 2015 WL _________,  

                                                                                                                     (continued...)  



                                                                   -8-                                                             6983
  


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

                                  

exist, there is simply no evidence to suggest that Goldsbury's attorney in fact made a  



                                                           

conscious decision not to object. And contrary to the State's suggestion, the burden does  



                                                                                                                                   30  

                                    

not fall on Goldsbury to prove that his attorney's failure to object was not tactical. 



                                        

Thus there is an obvious non-tactical error affecting a substantial right.  With the first  



                                           

three elements from Adams satisfied, our analysis, as Charles directs, turns to prejudice.  



                    We conclude that the State satisfied its burden to prove the constitutional  



error harmless beyond a reasonable doubt given the brief, isolated, and indirect nature  



                                                                                         

of the comment regarding Goldsbury's right not to testify, and the instructions to the jury  



immediately  before  and  after  that  comment.    In Adams  we  did  note  that  prejudicial  



comments made during closing arguments are more likely to be prejudicial and less  



                                                                                                                      

likely to be mitigated by curative instructions than are comments made during other parts  



              31  

                                                                                             

of a trial.       But the conduct at issue here is far less egregious than that in Adams .  There,  



the  prosecutor  repeatedly  drew  negative  inferences  from  the  defendant's  silence  in  



                                                                                                                  

response to police questions, elicited testimony regarding the defendant's silence twice  



                                                                                                         

during cross-examination of the defendant, and "pointed to Adams's silence to argue that  



Adams's testimony was less credible  than the victim's" on three separate occasions  



                                            32  

                                                                                                        

during his closing argument.                    In contrast, the comment regarding Goldsbury's failure  



                                             

to  testify  was  isolated  and  indirect.    The  prosecutor  made  no  express  reference  to  



          29(...continued)  



at *__ (Alaska Jan. 30, 2015).  



          30        See  id. ("We have never placed this burden on the defendant.").  



          31  

                                                                  

                    See Adams v. State, 261 P.3d 758, 774-75 (Alaska 2011); Dorman v. State,  

                                          

622 P.2d 448, 458 (Alaska 1981) ("Even where a timely objection is made and sustained,  

                                                                                       

a curative instruction may be insufficient to remove the prejudice caused by a guilt by  

silence argument in a close case such as this one.").  



          32        See Adams, 261 P.3d at 762-63.  



                                                                -9-                                                          6983
  


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

Goldsbury's decision not to testify, and the comment was "brief and passing" rather than  



                                                                        

an express call for jury members to draw a negative inference from Goldsbury's failure  



                                                                          33  

to testify at trial, as was the case in Adams .  



                       Under these circumstances the comment was not so inflammatory as to be  



                                                                                                                           

incurable by instruction, and the actual instructions given to the jury just before and after  



                                                                                                                               

the comment were sufficient to cure any harm which may have arisen from the comment.  



                                                                                

Had Goldsbury made a timely objection to the comment, it would have been reasonable  



                                                                                                       

for the superior court to have issued a curative instruction, which would have directed  



                                                                                               

the jury to disregard the specific comment made by the prosecutor, informed the jury of  



                                                                                   

the defendant's constitutional right not to testify, and announced the jury's obligation not  



                                                                                                       34  

to draw any inferences from defendant's failure to testify.                                                And here, immediately  



                                                                                                            

before the closing arguments in which the comment was made, the superior court issued  



the following instruction:  "A defendant has the absolute right not to testify, and you  



                                                                                                   

must not draw any inference against the defendant for not testifying."  Immediately after  



                                                                                 

the conclusion of the prosecutor's rebuttal, the superior court issued another instruction  



on this topic:  



                                                                                                          

                       A defendant has an absolute right not to testify.  The fact that  

                                                                                                                    

                       the defendant did not testify cannot be considered by you in  

                                                                                  

                       any way.  Do not speculate about why the defendant did not  

                       testify.  Do not even discuss it in your deliberations.  



           33          See id. at 775 (recognizing that the court of appeals had previously held that   



"comments on a defendant's silence are more likely to be prejudicial if the comment was                                 

'express' rather than a 'brief and passing' reference" (quoting                                            Van Hatten v. State, 666  

P.2d 1047, 1056 (Alaska App. 1983))).  



           34          See,  e.g., Hamilton  v.  State ,  771  P.2d  1358,  1360  (Alaska  App.  1989)  



                    

(affirming a curative instruction in the context of improper comment on defendant's pre- 

                                                                                

trial silence which specifically announced that "the last five questions and responses are  

not to be considered by you in your deliberations").  



                                                                       -10-                                                                 6983
  


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

The jury therefore received two explicit instructions regarding Goldsbury's constitutional  



                                                                    

right not to testify and the jury's obligation not to draw inferences from, or even discuss,  



                                                                      

his failure to testify, both within close temporal proximity to the prosecutor's improper  



                              

comment.  And the jury retained written copies of the instructions for reference during  



their deliberation.  



                                                             

                   In our view, the harm from the prosecutor's comment, which was brief,  



                                                                   

isolated, and oblique, was cured by the jury instructions on Goldsbury's right not to  



                                                                                                                   

testify before and after the comment.  Accordingly, the State's burden to prove that the  



                                                                                    35  

error was harmless beyond a reasonable doubt is satisfied.                               



V.        CONCLUSION  



                   Because the error was harmless beyond a reasonable doubt, reversal of  



Goldsbury's conviction is not warranted.  We AFFIRM.  



          35       We emphasize that although reversal is not warranted in this case, we do  



not condone the comment at issue.   The prosecutor's remark in her rebuttal closing  

                                                       

argument unequivocally violated Goldsbury's right against self-incrimination.  But the  

purpose of the plain error doctrine is to reverse errors which would "contribute to a  

                                

miscarriage of justice."  Adams , 261 P.3d at 764.  With that in mind, we note that an  

identical comment made under different circumstances could warrant reversal in the  

                                                                                                         

future.    Our  decision  today  should  not  be  interpreted  to  hold  that  a  standard  jury  

instruction on the right to remain silent is a per se cure for a constitutional violation of  

                                                                                      

that right.  Rather, it is only one factor in the prejudice component of our plain error  

analysis.  



                                                            -11-                                                         6983  

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