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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hess v. State (12/21/2018) sp-7323

Hess v. State (12/21/2018) sp-7323

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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

                                                                                    

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



CHRISTOPHER SEEGANA HESS,                             )   Supreme Court No. S-16466  

                                                      )  

                           Appellant,                 )   Court of Appeals No. A-11425  

                                                      )  

         v.                                           )   Superior Court No. 3AN-11-10574CR  

                                                      )  

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

                                                      )  

                           Appellee.                  )   No. 7323 - December 21, 2018  



                  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, Anchorage, Gregory Miller,  

                  Judge.  



                  Appearances:  Brooke Berens, Assistant Public Advocate,  

                  Anchorage, and Richard Allen, Public Advocate, Anchorage,  

                  for  Appellant.    Terisia  K.  Chleborad,  Assistant  Attorney  

                  General,      Anchorage,        and     Jahna     Lindemuth,        Attorney  

                                                  

                  General, Juneau, for Appellee.  



                  Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                  and Carney, Justices.  



                  CARNEY, Justice.  



I.       INTRODUCTION  



                  A jury convicted Christopher Hess of second and third degree assault.  He  

                                                                                     



appealed,  arguing  that  the  superior  court  committed  plain  error  by  not  addressing  


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

improper  statements  in  the  prosecutor's  closing  arguments.    The  court  of  appeals  

                                         



affirmed Hess's convictions and held that, although some of the prosecutor's statements  

                                                                                         



were improper, they did not undermine the trial's fundamental fairness.  Hess petitioned  



for hearing.  We granted the petition and, finding plain error, reverse his convictions.  



II.      FACTS AND PROCEEDINGS  



         A.        Facts  



                   In September 2011 Anchorage police responded to a reported assault in  

                                               



progress at Patricia Hess's apartment.  Officers found Patricia outside the apartment.  She  

                                                                                                                    



was extremely upset and appeared to be intoxicated.  There was bruising on the front of  



her throat and the front of her pants was wet.  



                                                                               

                   Patricia told one of the officers that she and her son, Christopher Hess, had  



argued and he had become angry.  She said she struggled with him and he knocked her  



                                                 

to the ground and began strangling her.  Patricia said she lost control of her bladder while  



being strangled and almost blacked out, although she did not pass out.  



                   The officers and a police dog entered the apartment looking for Hess.  He  



was arrested after being found and bitten by the dog.  Hess appeared intoxicated and  



when questioned, he denied strangling his mother.  Officers took Hess to a hospital  



                               

where he had surgery for the dog bite to his arm.  The officers found Patricia's dentures,  



glasses, and a kitchen knife on the floor of the apartment.  



         B.        Trial  



                   Hess was indicted for one count of second degree assault for strangling  

           1 and one count of third degree assault for recklessly placing her in fear of injury  

Patricia                                                                                       



         1        See AS 11.41.210(a)(1) (a person who, with intent to cause physical injury  

                                                                                         

                                                                                                     (continued...)  



                                                          -2-                                                       7323  


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

with a dangerous instrument (his hands around her neck).2   The case went to trial on both  

                                                                                       



counts in August 2012.  



                                                                                                          

                    The  State  called  three  witnesses:    Patricia  and  two  of  the  responding  



officers.  Patricia testified that she did not remember much of what happened.  She said  



                                                       

she remembered drinking with Hess, becoming very drunk, and then walking home from  



                       

the  hospital.         Patricia  testified  that  it  was  "kind  of  like  blackout"  and  that  she  



                                                         

remembered being in a patrol car, but could not remember meeting with police officers.  



Patricia  said  that  she  did  remember  having  a  sore  neck  the  next  day.    On  cross- 



                                                                                                            

examination Patricia testified that she had post-traumatic stress disorder (PTSD) after a  



sexual assault four years earlier.  She stated that she took medication for the PTSD, as  



                                                                                                    

well as for depression, sleeplessness, pain, and high blood pressure. Patricia testified that  



                                                                                               

the medicine made her bruise easily.  She also said that when she was "stressed [she had]  



dissociation."  



                                                                                                                 

                    One of the police officers testified about his medical training - he testified  



that he had worked as an EMT before joining the police department - and what he had  



been taught were signs of possible strangulation.  The signs included redness around the  



                                                                                

throat and neck, petechiae (small red spots caused by broken blood vessels in the eyes,  



          1         (...continued)  



to another, does so by means of a dangerous instrument, commits the crime of assault in  

                                  

the second degree).  



          2         See AS 11.41.220(a)(1)(A) (a person who recklessly places another in fear  



of imminent serious physical injury by means of a dangerous instrument commits the  

crime of assault in the third degree); see also AS 11.81.900(15)(B) (defining "dangerous  

          

instrument" to include "hands or other objects when used to impede normal breathing  

or circulation of blood by applying pressure on the throat or neck or obstructing the nose  

                                                                                                                     

or mouth").  



                                                              -3-                                                        7323
  


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

hairline, or behind the ears), difficulty swallowing or breathing, and lost bladder and  



                         

bowel control. The officer testified that Patricia had difficulty swallowing and appeared  



                                                                         

to have urinated on herself, but that he did not remember seeing petechiae or marks on  



                                                                                                                        

her  face.       He  testified  that he  had  seen  strangulation  cases  in  which  there  were  no  



                                                                                                         

petechiae.  But he conceded on cross-examination that intoxication could cause people  



to urinate on themselves.  



                     The  other  officer  had  interviewed  Patricia  and  Hess  at  the  scene.    He  



                                                                                                                    

testified that Patricia was intoxicated, upset, coughing a lot, and had bruises on her neck.  



                    

He said that she seemed to be afraid of Hess and she said that he had strangled her after  



                       

an argument.  The officer testified that marks on Patricia's neck were consistent with  



                                                                                                                

finger marks but that he did not see any impression of a hand or fingers.  He also stated  



                                                                                       

that Hess was intoxicated, denied strangling his mother, and denied that his mother had  



almost passed out.  



                                                                                  

                     The defense presented four witnesses:  Hess and three of Patricia's other  



                                                    

family  members.    Each  family  member  testified  that  Patricia  had  a  reputation  for  



                                                 

untruthfulness and dishonesty.  They testified that Patricia was even less truthful when  



drinking.  



                                                       

                     Hess testified that he lived with Patricia when she needed help managing  



                                                                                                

her medical conditions, taking her medication, and taking care of household chores.  He  



said that he was with his mother on the night of the alleged assault, but that he only  



                                                                                       

remembered starting to drink in the afternoon and then waking up in the hospital after  



                                                                                                                      

being bitten by a dog.  He testified that he did not remember strangling his mother or  



             

putting his hands on her neck, and that he would never hurt his mother even if he was  



                                   

drunk.  Hess said that his mother sometimes forgot to take her medication, exaggerated  



                                                                -4-                                                          7323
  


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

things, and was a danger to herself.  The prosecutor impeached Hess's testimony with  



his convictions for crimes of dishonesty.  



                   The State's closing argument focused on meeting the State's burden of  



                

proof and rebutting the defense's theory.  The prosecutor told the jury that the defense  



wanted  the  jury  to  assume  that  Patricia  was  "crazy"  and  not  to  be  trusted.    After  



                                                                                            

discussing the elements of charges against Hess, the prosecutor argued that they were not  



"going to be the biggest point.  The biggest point is who do you believe?"  He continued:  



                                                                                             

                   I warned you during my opening that the defense was going  

                   to go out of their way to make it look like the victim was  

                                                                         

                    crazy, to vilify the victim.  And we talked about this in voir  

                              

                    dire.    In  domestic  violence  crimes  that's  too  often  what  

                   happens.  And if my demeanor was at any point in time less  

                                                                             

                   than professional, that's my frustration because this case isn't  

                                                                                

                   really about whether or not [Ms.] Hess is crazy.  This case is  

                                                                       

                    about whether or not the defendant strangled his own mother,  

                    and that's the evidence that came in.  



                                                                                                                  

After briefly arguing that the evidence had shown beyond a reasonable doubt that Hess  



was  guilty  of  the  charged  offenses,  the  prosecutor  returned  to  whether  Patricia  was  



"crazy":  



                   Now, I understand Ms. Hess has been through a lot.  You  

                                                                 

                   heard her testimony.  And she is sympathetic, and I am [not]  

                                                                                                        [3] 

                    suggesting  that  you  [should  have]  sympathy  for  her.  

                   You're  supposed  to  make  this  decision  absent  pity  and  

                   prejudice or passion.  You're supposed to be objective when  

                                                                                               

                   you make this. And she paints a sympathetic figure, but think  

                              

                    about  the  position  she's  in  when  the  state  calls  her  to  the  

                    stand.  Her whole family clearly is against this prosecution.  



          3        The  bracketed  language  was  omitted  from  the  trial  transcripts,  but  the  



alterations were agreed upon by the parties as present in the audio recording.  



                                                             -5-                                                          7323  


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

                    They all came to the stand and called her a liar.  Her own son  

                                  

                    got on the stand and had no problem saying she's crazy.  And  

                                                                                                       

                    that's problematic, ladies and gentlemen, because you didn't  

                                                                                  

                    really see any evidence that she was crazy.  



He concluded by arguing Patricia's statements to the police were consistent with the  



physical evidence and that Hess's defense was not credible.  



                    After discussing the State's burden of proof and the State's reliance upon  

                                                                             



Patricia's version of events, the defense questioned Patricia's credibility.  Emphasizing  

                                                            



that the State's case depended upon Patricia's credibility, the defense attorney responded  

                                                     



to the prosecutor's comments about the defense's argument:  



                                                                        

                    [T]here was a characterization that we're vilifying the victim.  

                                                         

                    Now, to say that she has mental health issues, to say that she  

                                                                                             

                    confuses reality from fantasy is not to vilify her. . . . We don't  

                    know what she was perceiving. . . . [W]e know [] that she  

                    was  not  on  her  mental  health  medication  and  she  was  

                            

                    intoxicated.  



The prosecutor returned to his vilification theme in rebuttal:  



                    [The defense attorney] says she is not vilifying the victim.  

                    She's not vilifying the victim.  Maybe that's true and maybe  

                                                                                       

                    that's  not.    We  talked  about  it  in  voir  dire.    If  she's  not  

                    vilifying the victim, what she is suggesting is that someone  

                    who has had her teeth knocked out and been raped and is on  

                    medication can no longer ever be a victim. That's what she's  

                                                                                    

                    suggesting to you, and that is what is offensive.   



                    It doesn't make her a liar because she's been victimized in  

                    the past.  



He then argued that Hess had reasons to lie to the jury, and that he should not be believed  



because he had "no qualms about making out his mother to be this crazy invalid, this  

                                                                                                               



helpless creature."  The prosecutor argued that, on the other hand, Patricia had no motive  

                             



to lie even though she was reluctant to testify and "[c]learly she is involved in a family  

                                                                                                                 



                                                              -6-                                                        7323
  


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

that does not support her."  Hess did not object to any of these statements as improper  



closing argument.  



                   The jury convicted Hess on both counts.  



          C.       Appeal  



                                                                                                    

                   Hess argued for the first time in his brief to the court of appeals that the  



                                                                                                    

prosecutor's closing argument was improper. He acknowledged that he had not objected  



                                                                   

to the argument at trial, but he argued that the prosecutor's statements amounted to plain  



                                        4  

                  

error under Adams v. State .  



                   The  court of appeals concluded that although some of the prosecutor's  



                                                                                                    5  

arguments were improper, they did not rise to the level of plain error.   Relying upon its  

                                                                                             



                                               6 

previous case of Rogers v. State ,  the court made its determination "in the context of the 



                                                                                                      

record as a whole" and concluded that the improper remarks did not "rob [the trial] of  



                                      7  

its fundamental fairness."   The court did not address whether the improper remarks  

amounted to a constitutional violation.8  



                   We granted Hess's petition for hearing, and, applying the correct plain error  



test and finding plain error, we reverse Hess's conviction and remand for a new trial.  



III.      STANDARD OF REVIEW  



                                                                                                

                   Appellate courts are authorized to notice plain errors or defects, even when  



          4        261 P.3d 758 (Alaska 2011).
  



          5        Hess v. State , 382 P.3d 1183, 1185-87 (Alaska App. 2016).
  



          6
       280 P.3d 582 (Alaska App. 2012).  



          7        Hess , 382 P.3d at 1186-87.  



          8        See id.  



                                                             -7-                                                       7323
  


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

not brought to the court's attention, when they affect substantial rights.9  



IV.       DISCUSSION  



          A.        Alaska's Plain Error Test  



                                                                                                                                10  

                    We articulated the four-part test for plain error review in Adams v. State .  

                                                                           



All four factors must be met to determine whether plain error occurred:  



                                                                             

                    (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)  

                                                                [11] 

                    the error must be prejudicial.  



                    The Adams test differs from the federal test because it imposes an additional  



                                                                                                                        

step not required under federal law. "[F]ederal plain error review is governed by a three- 



                                                                                                        

part test:  (1) there must be error, and the right at issue must not have been intentionally  



                                                                                          

relinquished; (2) the error must be plain, meaning obvious; and (3) the error must affect  



                                                                                                                          12  

substantial rights, meaning it must have affected the outcome of the proceeding."                                              



                                

                    Unlike the inquiry required by the three-pronged federal plain error test,  



                                                                                          13  

Alaska's standard separates the third prong into two steps.                                   While federal appellate  



courts  determine  that  an  error  affected  substantial  rights  only  when  the  error  was  



          9         Adams , 261 P.3d at 764.
  



          10        Id. at 773.
  



          11        Id.
  



          12        Id.  at  772  n.72  (citing  United  States  v.  Olano,  507  U.S.  725,  732-35  



(1993)).  



          13        Id.  



                                                               -8-                                                         7323
  


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

prejudicial, we have interpreted the phrase " 'affect substantial rights' not to mean that  



                                                                           

                                                                                               

the error was prejudicial, but instead to mean that the error pertains to an important right  



                                                                                       14  

that could affect the fundamental fairness of the proceeding."                              



                   Having determined that an error pertains to the fundamental fairness of the  



                                                                                                                 15  

                                                                                                                     We  

proceeding,  the  court  must  next determine  whether  the  error  was  prejudicial. 



explained in Adams how courts are to make that determination:  



                                                        

                   A constitutional violation will always affect substantial rights  

                   and  will  be  prejudicial  unless  the  State  proves  that  it  was  

                   harmless beyond a reasonable doubt.  An error that is not  

                   constitutional in nature will be prejudicial if the defendant  

                   proves that there is a reasonable probability that it affected  

                                                               [16] 

                   the outcome of the proceeding.  



Whether  the  error  was  of  constitutional  dimension  thus  establishes  and  assigns  the  



                                                                                      

burden of proof that must be met before the reviewing court can determine whether the  



error was prejudicial.  Contrary to the court of appeals' decision and its reliance upon  



                                                                                     

Rogers , prejudice does not depend upon whether the error was "sufficiently central to  

the trial so as to rob it of its fundamental fairness."17  



          B.       The Plain Error Test Applied To Hess's Case  



                   We now examine the prosecutor's improper arguments under the Adams  



                                                       

test.  No argument has been made that Hess either waived his objection to the improper  



          14       Id.  



          15       Id.  



          16       Id. at 773.  



          17       Hess v. State ,  382 P.3d 1183, 1186-87 (Alaska App. 2016) (citing Rogers  



v. State, 280 P.3d 582, 589 (Alaska App. 2012)).  



                                                           -9-                                                     7323
  


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

statements or made a tactical decision not to object.  The first prong of the plain error test  

is satisfied.18  



                   The second prong is satisfied when the alleged error is obvious.19  The court  



of appeals found that the prosecutor's statements "improperly denigrated the defense  



                                                                    

                                                                                                 

lawyer's trial strategy by asserting that defense attorneys in general commonly engage  



in false 'vilification' of victims of domestic violence" and that "[t]he prosecutor was  



                                                      

implicitly asking the jurors to reject Hess's defense, not because the defense lacked  



                                                                                           

evidentiary support, but instead because of . . . his unsupported accusation that defense  

attorneys commonly resort to underhanded or misleading tactics."20  



                                                                                     

                   We agree that these arguments were improper.  Both this court and the court  



of appeals have previously condemned similar arguments as prosecutorial misconduct  



and emphasized that closing arguments must be restricted "to the evidence presented at  



                                                                                           21  

                                                                                                 Alaska's  Rules  of  

trial  and  the  inferences  that  may  fairly  be  drawn  therefrom." 



                                                                                                                   

Professional Conduct place upon all attorneys the ethical obligation not to "allude to any  



matter  that  the  lawyer  does  not  reasonably  believe  is  relevant  or  that  will  not  be  



supported  by  admissible  evidence"  and  forbid  a  lawyer  from  asserting  personal  



                                                                                                                22  

                                                                                                                    Rule  

knowledge or stating a personal opinion about the issues before the trier of fact. 



          18       See Adams, 261 P.3d at 773.  



          19       Id. at 773.  



         20        Hess , 382 P.3d at 1186.  



         21        Patterson v. State , 747 P.2d 535, 538 (Alaska App. 1987) (approvingly  



discussing STANDARDS FOR CRIMINAL JUSTICE   3-5.8 (AM .  BAR ASS 'N  2d ed. 1982));  

see  Adams , 261 P.3d at 767-770, 774-75.  



         22        Alaska  R.  Prof.  Conduct  3.4(e)  (excluding  times  when  the  lawyer  is  a  



                                                          -10-                                                     7323
  


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

of Professional Conduct 3.8 establishes special responsibilities for prosecuting attorneys;  



its  accompanying  commentary  begins  with  the  reminder  that  a  prosecutor  "has  the  

responsibility  of  a  minister  of  justice  and  not  simply  that  of  an  advocate."23                               The  



American   Bar   Association's   Criminal   Justice   Standard   3-6.8(c)   reiterates   these  



                                    

obligations, stating that "[a] prosecutor should not make arguments calculated to appeal  



                                                                24  

to improper prejudices of the trier of fact."                       The comments in the closing arguments  



                                                                          

here attacking the defense attorneys and accusing Hess's counsel of vilifying the victim  



clearly violate these standards and were obvious error.  



                                                                                       

                    The third prong of the Adams test requires the reviewing court to determine  



                                                              

whether the error "affect[ed] substantial rights, meaning that it . . . pertain[ed] to the  



                                                           25  

                                                                              

fundamental fairness of the proceeding."                       In Adams we concluded that the prosecutor's  



comments on the defendant's pre-arrest silence pertained to a substantial right because  

a defendant's pre-arrest silence is minimally probative and highly prejudicial.26  



                    The prosecutor's comments here likewise affected important rights that  



                                                            

could affect the fundamental fairness of the proceeding.  The prosecutor suggested that  



                                                                         

the jury should consider his personal opinion of defense attorneys and Hess's defense  



          22        (...continued)  



witness).  



          23        Alaska R. Prof. Conduct 3.8 cmt. 1.  



          24        ABA    STANDARDS  FOR   CRIMINAL  JUSTICE :    PROSECUTION    &    DEFENSE  



                                         

FUNCTION  3-6.8(c) (AM . BAR ASS 'N 4th ed. 2015).  



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



          26       Id. at 774.  



                                                             -11-                                                       7323
  


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

             27  

strategy.        The prosecutor's attack on the defense strategy and defense counsel was  

                                                            



inappropriate,  the  comments  were  of  no  probative  value,  and  they  created  a  high  



potential for unfair prejudice.  



                                                                                                                   

                    The  fourth  prong  of  the  Adams  test  requires  the  reviewing  court  to  

                                                                 28  If an error affected a non-constitutional  

                                                                          

determine whether the error was prejudicial.  



substantial right, the defendant must show "there is a reasonable probability that the error  

                          



                                                   29  

affected the outcome of the case."                     In Adams we considered the following factors to  



determine  whether  the  defendant  had  shown  whether  "there  [was]  a  reasonable  



probability that the error affected the outcome of the case":  the weight of the State's  



                                                                                                   

other evidence, whether the case "hinged primarily on [] conflicting testimony," whether  



the statements occurred during closing arguments, whether the comments were "express"  



                            

versus "brief and passing," and whether the comments were "directly elicited by the  



                                       30  

                                           In Goldsbury v. State we recently restated that "prejudicial  

prosecutor's questioning."                                                 



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

                          



          27        See Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983) (discussing how             



prosecutorial attacks on defense counsel affect due process rights).  



          28       Adams , 261 P.3d at 773.  



          29       Id. at 774.  



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



App. 1983), abrogated by Adams , 261 P.3d at 773).  We have noted that statements  

during closing arguments are more likely to be prejudicial because of concerns about the  

                                                                     

effectiveness of objections made during final arguments.  Id.  "The prejudicial comment  

                     

is  before  the  jury  before  the  objection  can  be  made,  and  the  curative  effect  of  an  

admonition of the court to disregard the comment is of debatable value."  Id.  at 775  

                                                                                                                      

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



                                                             -12-                                                       7323
  


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

             

                                               

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

of a trial."31  



                                                       

                   The same considerations that led us to conclude that the error in Adams was  



                                      32 

                                          The prosecutor made several separate comments attacking  

prejudicial are present here. 



the defense.  He made them both during his initial closing argument and again during  



                                     

rebuttal.  The trial court did not give a curative instruction.  The improper statements  



went directly to the defense's theory of the case and aimed to discredit  the defense  



                 

attorney as well as her argument.  Finally, as in Adams , the State's case depended largely  



                                              33  

                                                                                  

on conflicting witness testimony.                 As a result "there is a reasonable probability that the  

error affected the outcome of the case."34  



V.        CONCLUSION  



                   Because the prosecutor's improper statements during closing arguments  



were plain error, we REVERSE Hess's convictions and REMAND for a new trial.  



         31        Goldsbury v. State, 342 P.3d 834, 838 (Alaska 2015).  



         32        Adams , 261 P.3d at 774-75.  



         33        See id. at 774.  



         34        Id.   Because the prosecutor's st          atements accusing  Hess's defense attorney  



of vilifying the victim meet our test for plain error  we  do not  reach his  argument that the  

improper prosecutorial remarks affected his constitutional rights.  



                                                          -13-                                                     7323
  

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