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Pierce v. State (7/29/2011) ap-2319

Pierce v. State (7/29/2011) ap-2319

                                               NOTICE
 
        The text of this opinion can be corrected before the opinion is published in the 
        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 
        errors to the attention of the Clerk of the Appellate Courts: 

                               303 K Street, Anchorage, Alaska  99501
 
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                         E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

EARLE R. PIERCE JR., 
                                                             Court of Appeals No. A-10484 
                                Appellant,                 Trial Court No. 3AN-04-2317 Cr 

                        v. 
                                                                    O    P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                     No. 2319    -    July 29, 2011 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 
                Anchorage, Philip R. Volland, Judge. 

                Appearances:     Michael Schwaiger, Assistant Public Defender, 
                and    Quinlan    Steiner,  Public   Defender,    Anchorage,     for  the 
                Appellant.   Mary A. Gilson, Assistant Attorney General, Office 
                of Special Prosecutions and Appeals, Anchorage, and Richard 
                A. Svobodny, Acting Attorney General, Juneau, for the Appel­ 
                lee. 

                Before:    Coats,    Chief   Judge,   and  Mannheimer      and  Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                Earle R. Pierce Jr. appeals his convictions on three counts of robbery, one 

count of theft, and one count of misdemeanor assault.               He contends that his trial was 

tainted because the State was allowed to introduce evidence that a witness had identified 

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

Pierce   as   the   perpetrator   of   one   of   the   robberies.  Pierce   argues   that   the   witness's 

identification of him was the product of improperly suggestive procedures, and that the 

resulting identification was so unreliable that the introduction of this evidence violated 

his right to due process of law. 

                 In particular, Pierce asserts that the witness's identification of him was 

impermissibly unreliable under the test announced by the United States Supreme Court 
in Manson v. Brathwaite 1 and later adopted by the Alaska Supreme Court in  Viveros v. 

State. 2   Pierce   argues   in   the   alternative   that,   if   the   circumstances   surrounding   the 

witness's identification satisfy the Brathwaite test, we should replace the Brathwaite test 

with     a  more    rigorous     test  based    on   recent   scientific    research    into   how    police 

identification procedures can influence a witness's identification of a suspect, as well as 

the witness's later memory of the suspect. 

                 We conclude that we need not - indeed, should not - reach the merits of 

Pierce's arguments.  These arguments were not presented to the superior court, and the 

superior court made no ruling on the merits of these claims. Thus, as we explain in more 

detail   in   this   opinion,   the   primary   issue   raised   in   this   appeal   does   not   involve   the 

reliability of the witness's identification of Pierce, but rather the rules that govern the 

preservation of issues for appeal. 

         Underlying facts 

                 Pierce was indicted for four separate robberies, and the State wished to try 

all four charges together.        Among the victims of these four robberies, only one victim 

    1   432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). 

    2   606 P.2d 790, 792 & n. 1 (Alaska 1980). 

                                                   - 2 -                                                 2319 

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

stated   that   she   was   able   to   identify   Pierce.   This   witness's   identification   of   Pierce 

stemmed from a photo lineup that was shown to the witness several weeks after the 

robbery. 

                 In advance of trial, Pierce's attorney filed a motion that was styled, "Motion 

to   Sever   Counts   [for   purposes   of   trial   and]   Motion   to   Suppress   [the   Eye-witness] 

Identification".       In   this   motion,   the   defense   attorney   asserted   (1)   that   Pierce   should 

receive a separate trial for each of the four robberies charged in the indictment, and (2) 

that   the   witness's   identification   of   Pierce   from   the   photo   lineup   was   the   product   of 

"unduly       suggestive"      identification      procedures      which     resulted     in   an   unreliable 

identification, and thus the State should not be allowed to introduce evidence of this 

identification. 

                 With   respect   to   the   request   for   severance   of   the   four   robbery   charges, 

Pierce's   motion   contained   a   detailed   description   of   the   evidence   pertaining   to   each 

robbery, and the legal reasons why Pierce should be granted separate trials. 

                 But with respect to Pierce's request to suppress the witness's identification 

of him, Pierce's motion contained no discussion of the pertinent facts.  Pierce cited two 

Alaska      appellate     decisions     for   the   general     proposition      that   unreliable     witness 
identifications   should   be   suppressed, 3        but   Pierce   offered   no   discussion   of   how   this 

general proposition of law related to the facts of his case.                   Instead, Pierce's attorney 

wrote: 

                 [The defense team currently has] no information about any 
                 contacts   [that   the   identifying   witness   may   have]   had   with 
                 [the] other [robbery] victims, or what other information [the 
                 witness] reviewed before [she identified Pierce in] the photo 

    3    Holden   v.   State,   602   P.2d   452   (Alaska   1979),   and  White   v.   State,   773   P.2d   211 

(Alaska App. 1989). 

                                                     - 3 -                                                  2319 

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

                 lineup.   [For this reason, it] will be necessary to elicit that 
                 information   at   the   ...   scheduled   evidentiary   hearing[.]   ... 
                 Any further argument [on this issue], therefore, is reserved 
                 until after the evidentiary hearing, and Mr. Pierce reserves his 
                 right to supplement the briefing [on this issue] following the 
                 evidentiary hearing[.] 

                 In other words, even though Pierce's attorney told the superior court that 

she intended to ask for suppression of the witness's identification, the defense attorney 

offered   no   factual   or   legal   analysis   in   support   of   this   request.  Instead,   the   defense 

attorney told the court that she would provide the basis for her motion after the testimony 

was presented at the evidentiary hearing. 

                 The evidentiary hearing on the defense motion took place over a period of 

several days.       The first four segments of the hearing were devoted primarily to   the 

testimony of a series of witnesses.         The attorneys presented their arguments during the 

last segment of the hearing - the portion of the hearing that took place on the afternoon 

of March 29, 2006. 

                 Although Pierce's attorney presented a lengthy argument to the superior 

court, that argument was devoted solely to the question of whether the four robbery 

counts should be tried jointly or separately.  During her remarks to the court, the defense 

attorney did not even mention the question of suppressing the eye-witness identification 

-   much   less   present   any   factual   or   legal   argument   as   to   why,   given   the   testimony 

developed at the evidentiary hearing, and given the pertinent law, the superior court 

should suppress that evidence. 

                 On April 5, 2006 (i.e., one week later), Superior Court Judge Philip Volland 

issued a fourteen-page written decision dealing with the pending pre-trial motions.  In 

his decision, Judge Volland engaged in a lengthy examination of the facts of the four 

robberies, and a lengthy analysis of why the four robberies were properly joined for trial. 

                                                   - 4 -                                              2319
 

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

Then, in a footnote on the final page of his decision, Judge Volland cursorily noted that 

he had "heard no evidence to support any conclusion that [the witness's] identification 

of Pierce was the result of unnecessarily suggestive police procedure." 

                 As   we   noted   at   the   beginning   of   our   opinion,   Pierce's   appellate   briefs 

contain a detailed discussion of the evidence pertaining to the witness's identification of 

Pierce,   as   well   as   a   lengthy   analysis   of   why   that   identification   should   be   deemed 

unreliable under the Brathwaite test.  In addition, Pierce argues at length that, in light of 

recent   research   into   the   psychology   of   eye-witness   identification,   this   Court   should 

abandon the Brathwaite test in favor of a more rigorous test based on new scientific 

understanding        of  how     police   identification     procedures      can   influence     a  witness's 

identification of a suspect, as well as the witness's later memory of the suspect. 

                 (For    a  general    discussion     of  this   latter  question,    see   our  decision     in 

Tegoseak v. State, 221 P.3d 345, 350-362 (Alaska App. 2009).) 

         Why we conclude that these issues are not preserved for appeal 

                 Under the law of appellate procedure, a litigant is not entitled to pursue a 

claim       on     appeal       unless      that     claim      was      presented        to    the     lower 

        4 
court,     and      unless    the   lower     court    issued     a  ruling     on   the    merits    of   that 

    4    See, e.g., Miller v. Miller, 105 P.3d 1136, 1142 (Alaska 2005); Douglas v. State, 151 

P.3d 495, 500 (Alaska App. 2006); McCormick v. Anchorage, 999 P.2d 155, 166 (Alaska 
App. 2000). 

                                                    - 5 -                                                  2319 

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

claim. 5   Pierce's appeal requires us to examine what is meant by "presenting" a claim 

to the lower court. 

                 As we noted in our statement of underlying facts, Pierce's attorney filed a 

pleading in which she alerted the superior court (and the State) that she intended to seek 

suppression   of   the   witness's   identification   on   the   ground   that   it   was   the   product   of 

improperly        suggestive      procedures,       and    that   the    resulting     identification     was 

unconstitutionally unreliable. 

                 Pierce's attorney called this pleading a "motion" for suppression of the 

identification,   but   the   pleading   did   not   contain   all   of   the   essential   components   of   a 

motion.     Alaska Criminal Rule 42(b) declares that a motion - that is, a request for a 

court   to   grant   some   form   of   relief   -   must   include   a   "complete   ...   statement   of   the 

reasons in support of the motion", including "the legal points and authorities upon which 

the ... party will rely" and a "detailed statement of [the] material facts" supporting the 

request for relief. 

                 Criminal Rule 42(b) codifies the principle that a litigant must not only tell 

the court what they want, but must also explain - unless it is already apparent - why, 

under the facts of the case and the pertinent law, the court is authorized or required to 
grant the relief the litigant is seeking. 6 

    5    See, e.g., Sengupta v. University of Alaska, 139 P.3d 572, 581 (Alaska 2006) ("To 

preserve a claim based on [the lower] court's failure to rule on a motion, a party must make 
every effort to request and obtain a ruling before proceeding to trial.") (quoting  Taylor v. 
Johnston , 985 P.2d 460, 467 (Alaska 1999)); Bryant v. State, 115 P.3d 1249, 1258 (Alaska 
App. 2005) ("Normally, an appellant may only appeal issues on which he has obtained an 
adverse ruling from the trial court."); Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) 
("To preserve an issue for appeal, an appellant must obtain an adverse ruling."). 

    6    See also Criminal Rule 30(a), which declares that a party may not pursue a claim of 

error   relating   to  the  jury   instructions   unless   "the  party   object[ed]   thereto   [and   stated] 
distinctly ... the grounds of [their] objections."), and Evidence Rule 103(a)(1), which declares 

                                                    - 6 -                                                2319
 

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

                 Here, Pierce's attorney stated that she intended to seek suppression of the 

witness's   identification   of   Pierce   on   the   ground   that   it   was   unreliable.    But   in   this 

context, "unreliable" is a legal conclusion, not an argument. 

                 Pierce's case was not a situation where the pertinent facts were clear and 

undisputed, and where the controlling law's application   to   those facts was obvious. 

Rather,   Pierce's   attorney   explicitly   stated   that   the   pertinent   facts   would   have   to   be 

developed at the evidentiary hearing. 

                 At the close of that hearing, in order for Judge Volland to decide whether 

to exclude the witness's identification as "unreliable", Judge Volland had to (1) weigh 

the   evidence   pertaining   to   the   circumstances   of   the   identification,   (2)   resolve   any 

disputes in the testimony concerning the pertinent facts, (3) decide whether, under the 

facts as he found them, the identification procedures were improperly suggestive, and 

then, if he concluded that the evidentiary procedures were indeed improperly suggestive, 

(4) decide whether the witness's identification of Pierce was nevertheless reliable under 

the five-factor test set forth in Brathwaite. 

                 The defense attorney's pre-trial motion contained no discussion of these 

matters.    Instead, the defense attorney informed Judge Volland that she would address 

these matters when the evidentiary hearing was completed.  But, as we explained earlier 

in this opinion, when the defense attorney delivered her argument to Judge Volland at 

the close of the evidentiary hearing, she never once mentioned her request to suppress 

the witness's identification. 

                 We   particularly   note   that,   in   the   defense   attorney's   remarks   to   Judge 

Volland at the close of the hearing, the attorney never referred to a single court decision 

that a party may not pursue a claim of error relating to the admission of evidence unless the 
party "[made] a timely objection or motion to strike [the evidence]" and "stat[ed] the specific 
ground of objection, if the specific ground was not apparent from the context". 

                                                    - 7 -                                                2319 

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

(federal or state) dealing with the suppression of unreliable eye-witness testimony.  Nor 

did the attorney offer any analysis of whether, given the circumstances surrounding the 

witness's identification of Pierce, that identification should be viewed as the fruit of 

impermissibly suggestive procedures. Finally, the defense attorney never mentioned the 

Brathwaite criteria for assessing whether a witness's out-of-court identification should 

be deemed reliable despite a suggestive lineup; much less did she make any attempt to 

apply those criteria to the facts surrounding the witness's identification of Pierce. 

                In short, after the evidence had been heard, and the parties were presenting 

their arguments, the defense attorney never renewed her request for suppression of the 

witness's identification, nor did she articulate any reasons why Judge Volland should 

suppress the identification. 

                On    appeal,    Pierce   argues    that  the   defense    attorney's    pre-hearing 

suppression motion was sufficient to alert Judge Volland to the issue, and that it was 

unnecessary for the defense attorney to offer a more detailed explanation of why the 

witness's identification should be deemed unreliable.           We reject this notion. 

                Both this Court and the Alaska Supreme Court have held that when a party 

objects to a ruling or other action of the lower court, the party must specify their grounds 

for objecting, or else the issue is not preserved for appeal.         Williams v. State, 629 P.2d 

54, 62 (Alaska 1981) ("[T]he ground of an objection must be clearly stated so that the 

[lower]     court  may    intelligently   rule   upon   the   objection.   ...  [If]  there   [is]  no 

comprehensible objection, the point [is] not properly preserved for appeal.");  Willis v. 

State, 57 P.3d 688, 692 (Alaska App. 2002) ("An objection without an accompanying 

statement of reasons is not sufficient to preserve a point on appeal."). 

                Thus, in Willis, we held that the defendant failed to preserve a mistrial claim 

when the defense attorney   asked for a mistrial but failed to advance any grounds to 

support the request.  57 P.3d at 691-92.  In Petersen v. State, 930 P.2d 414, 434 (Alaska 

                                                - 8 -                                           2319
 

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

App. 1996), and Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App. 1996), we held 

that a defendant failed to preserve a jury instruction claim when the defense attorney 

declined   to   argue   the   point   or   provide   any   rationale   for   giving   the   requested   jury 

instruction. 

                 In  Ratliff   v.   State,   110   P.3d   982   (Alaska   App.   2005),   we   applied   this 

principle to a case where the defendant raised a Daubert objection to scientific evidence. 

The evidence in question was the proposed testimony of a criminologist who compared 

shoe prints found at the scene of the crime with the pattern on the bottom of Ratliff's 

shoes.   The criminologist concluded that two of the shoe prints were definitely made by 

Ratliff's shoes, and that several other shoe prints were "consistent" with Ratliff's shoes 

- i.e., they were made by Ratliff's shoes or by other shoes of the same brand or similar 
manufacture. 7 

                 Ratliff   objected     to  this  proposed     testimony,     arguing     that  shoe   print 

comparison was not valid science under the test adopted by the United States Supreme 
Court   in Daubert   v.   Merrell   Dow   Pharmaceuticals,   Inc., 8         and   later   adopted   by   the 

Alaska Supreme Court in State v. Coon. 9            In response to Ratliff's objection, the superior 

court   held   an   evidentiary   hearing   on   this   issue.   At   this   hearing,   the   criminologist 

described her training, her experience, and the procedures and methods used by her and 

    7   Id., 110 P.3d at 983. 

    8   509   U.S.   579,   113   S.Ct.   2786,   125   L.Ed.2d   469   (1993)   (construing   the   federal 

evidence rules governing expert testimony). 

    9   974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of 

Alaska's rules governing expert testimony). 

                                                   - 9 -                                               2319
 

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

other shoe print examiners - in particular, how shoe prints are taken and preserved, and 
how these prints are then compared to particular shoes. 10 

                 At the conclusion of the criminologist's testimony, the trial judge asked 

Ratliff's attorney if she had any argument to present regarding the scientific validity (or 

lack of validity) of the criminologist's analysis. The defense attorney had nothing to say: 

she simply responded, "Your Honor, as far as whether the general techniques [of shoe 
print   analysis]   are   acceptable   or   not,   I   will   just   let   the   Court   rule   on   that." 11 We 

indicated that "such a response is [not] sufficient to preserve a challenge to [the trial 
judge's] ruling".  12 

                 We reach the same conclusion in Pierce's case.  Pierce's attorney told the 

superior court that she intended to seek suppression of the witness's identification under 

the   theory   that   the   identification   was   the   unreliable   fruit   of   improperly   suggestive 

identification procedures.         But when the time came for the defense attorney to provide 

a case-specific factual and legal analysis of why the witness's identification should be 

suppressed, the defense attorney did not provide one. 

                 It was not Judge Volland's job to figure out how the testimony presented 

at the evidentiary hearing, in combination with the applicable law, might conceivably 

justify suppression of the witness's identification.            Nor was it Judge Volland's duty to 

make, unprompted, all the findings of fact and rulings of law needed to resolve any and 

all possible arguments in support of suppression.  Rather, it was the defense attorney's 

job to frame an argument that contained a proposed factual and legal analysis of Pierce's 

case, and to seek the judge's ruling on that argument. 

     10  Ratliff, 110 P.3d at 983-84. 

     11  Id. at 985. 

     12  Ibid. 

                                                   - 10 -                                                2319 

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

                 This requirement is not some arbitrary rule imposed by irascible appellate 

judges for the purpose of shielding themselves from work. Instead, the primary purposes 

of this requirement are to make sure (1) that civil or criminal litigation in the trial court 

remains the "main event" (as opposed to the appeal), and (2) that appellate courts do not 

decide issues of law in a factual vacuum, or under hypothetical facts, or under "facts" 

that are actually counter-factual. 

                 Under this preservation rule, before a litigant can invoke the authority of 

an    appellate    court   to  reverse   or  vacate    a  trial  court's   decision,    the  litigant  must 

demonstrate that they gave the trial judge reasonable notice of their request or objection, 

and gave the judge a reasonable opportunity to respond to that request or objection. This 

rule affirms the primacy of the trial court proceedings by restricting litigants' ability to 

attack trial court decisions under novel theories in an ensuing appeal. 

                 This rule also ensures that, when issues are litigated in the trial court, the 

opposing party will have a fair opportunity to muster the evidence and legal arguments 

to   respond   to   the   litigant's   request   or   objection. In   Pierce's   case,   for   instance,   the 

defense attorney never mentioned the suppression issue when she delivered her argument 

to Judge Volland at the close of the evidentiary   hearing - and, apparently for this 

reason, the prosecutor omitted any discussion of the suppression issue when he addressed 

Judge Volland (in response to the defense attorney's argument).                    We therefore do not 

know what factual and legal theories the prosecutor might have relied on if the defense 

attorney had argued for suppression of the witness's identification of Pierce. 

                 The preservation rule also promotes the regularity and fairness of appellate 

litigation.   In many instances, proper resolution of a litigant's request or objection will 

require the trial judge to make findings regarding the weight, credibility, or accuracy of 

witnesses' testimony. And in many instances, the law will not provide a specific solution 

to the problem, and the trial judge will have to exercise discretion.  The preservation rule 

                                                   -  11 -                                             2319
 

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

ensures that the trial judge has made the required findings, and/or exercised the required 

discretion, before the appellate court takes up the issue.          This avoids the problem of 

having an appellate court decide a case based on contested or hypothetical facts, or based 

on what the trial judge conceivably might have done (or might have refrained from 

doing) if they had been asked. 

               As we have said, Pierce's briefs to this Court present an extensive argument 

-  both factual and legal - as to why the witness's identification of him should be 

deemed the unreliable product of unlawfully suggestive police procedures.  But neither 

the factual components nor the legal components of this argument were ever presented 

to Judge Volland.     The judge was never asked to make findings of fact based on the 

testimony presented at the evidentiary hearing, nor was the judge asked to evaluate the 

facts surrounding the witness's identification in light of the Brathwaite criteria.          And 

Pierce's trial attorney never suggested that the Brathwaite criteria should be abandoned 

in favor of a different test.  For these reasons, Pierce is not entitled to ask this Court to 

suppress the witness's identification based on the theories set forth in his appellate briefs. 

               Pierce offers two arguments in an attempt to avoid this conclusion. 

               First, Pierce argues that, even though his trial attorney may never have 

presented a detailed factual and legal explanation of why the witness's identification 

should be suppressed, Judge Volland nevertheless did reach the merits of the suppression 

issue - and that the judge essentially ruled that there was no possible argument in favor 

of suppressing the witness's identification. 

               To    support   this  assertion  that  Judge   Volland   issued   a  ruling  on  his 

suppression     motion,   Pierce   relies  on  the  concluding   footnote   of  Judge   Volland's 

decision,    where   the  judge   stated  that  he  had  "heard   no  evidence    to  support  any 

conclusion that [the witness's] identification of Pierce was the result of unnecessarily 

suggestive police procedure."       Pierce argues that this footnote constitutes a ruling by 

                                              -  12 -                                        2319
 

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

Judge Volland that, under any and all possible constructions of the evidence, the eye­ 

witness     identification     of  Pierce   was    sufficiently    reliable   to  satisfy   constitutional 

standards. 

                 We disagree with this characterization of Judge Volland's footnote.                   It is 

not    reasonable     to  interpret    this  footnote     as  a  "ruling"    on   whether     the   witness 

identification procedures in Pierce's case satisfied due process - because, at the close 

of the evidentiary hearing, the defense attorney did not ask Judge Volland to decide this 

question. 

                 Rather, we construe the footnote as equivalent to the statement that Pierce 

had not litigated the eye-witness identification issue. Judge Volland was acknowledging 

that Pierce's attorney had earlier announced that she intended to pursue this issue, but 

the judge was also noting that the defense attorney failed to argue this issue at the close 

of the evidentiary hearing. 

                 The judge's footnote was perhaps also an invitation to the defense attorney 

to file a supplemental pleading or take other action if she had somehow unwittingly 

failed   to   pursue   the   suppression   issue   -   but   the   defense   attorney   filed   no   further 

pleadings on this matter. 

                 From the record of the trial court proceedings, it appears that the defense 

attorney made a tactical decision not to seek pre-trial suppression of the photo lineup 

identification, but rather to attack the reliability of that identification during Pierce's trial. 

For this purpose, Pierce's trial attorney engaged the services of Dr. Geoffrey Loftus, an 

expert on human sensory perception, memory, and eye-witness identification.                        At trial, 

Dr. Loftus testified at length about the factors that might cause one to doubt the accuracy 

of a witness's identification of a suspect from a photo lineup following a violent crime. 

                                                   -  13 -                                             2319
 

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

                 The    defense     attorney's    failure  to  ask   Judge    Volland     to  suppress    the 

witness's identification (indeed, the attorney's failure to even mention the suppression 

issue at the close of the evidentiary hearing), coupled with the attorney's affirmative 

decision to present Dr. Loftus's testimony at Pierce's trial, strongly suggests that the 

defense attorney made a conscious choice "to argue a tainted lineup to the jury rather 

than attempting to suppress the lineup [identification] entirely".                 McGee v. State, 614 

P.2d 800, 804 n. 6 (Alaska 1980).   Because the record strongly suggests that the defense 

attorney had a tactical reason for failing to ask Judge Volland to suppress the witness's 

identification of Pierce, Pierce is now barred from asking us to suppress the identification 
under the rubric of "plain error". 13 

                 Finally, Pierce argues that even if his suppression claims are not properly 

preserved for appeal, and even if they can not be considered under the rubric of "plain 

error", this Court may nevertheless take up those claims and resolve them.  Pierce notes 

that in Tegoseak v. State, 221 P.3d 345 (Alaska App. 2009), this Court engaged in an 

extensive discussion of the law pertaining to eye-witness identification, and of recent 

research into the psychology of eye-witness identification, even though the parties did 

not raise many of the points discussed by this Court. 

                 But our discussion of these issues in Tegoseakwas just that - a discussion. 

We did not resolve Tegoseak's appeal on the basis of that discussion.  More to the point, 

    13  See Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App. 2010) ("[U]nder Alaska 

law,   when   a   defendant   presents   a   claim   of  plain   error,   the   defendant   must   negate   the 
possibility that their attorney's failure to make a timely objection in the trial court was the 
product of a tactical decision."); Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993) (an 
appellate court will not entertain a claim of plain error when it appears that the litigant had 
a   tactical   reason   to   withhold   an   objection); Robison   v.   State,   763   P.2d   1357,   1358   n.   1 
(Alaska App. 1988) (if a litigant had strategic reasons for refraining from seeking a remedy, 
this precludes a finding of plain error). 

                                                   -  14 -                                              2319
 

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

we were free in Tegoseak to discuss the potential flaws in the current legal approach to 

the   reliability   of   eye-witness   identification,   even   though   these   matters   had   not   been 

briefed by the parties, specifically because the resolution of Tegoseak's case did not 

hinge on these matters, so that we did not need to reach any conclusion regarding these 

matters. 

        Conclusion 

                Because the claims raised by Pierce in this appeal were never presented to 

Judge Volland, nor ruled upon by him, and because Judge Volland did not commit plain 

error when he failed to suppress the eye-witness identification sua sponte, the judgement 

of the superior court is AFFIRMED. 

                                                 -  15 -                                           2319
 
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