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Savo v. State (8/12/2016) ap-2511

Savo v. State (8/12/2016) ap-2511


              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  

                                                                    Fax:  (907) 264-0878  

                                                         E-mail:  corrections@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



                                                                                                       Court of Appeals No. A-11742  


                                                      Appellant,                                      Trial Court No. 3DI-13-101 CR  


                                                                                                                    O  P  I  N  I  O  N  



                                                      Appellee.                                          No. 2511 - August  12, 2016  


                           Appeal   from   the   District   Court,   Third   Judicial                                               District,  


                           Dillingham, Patricia L. Douglass, Judge.  


                           Appearances:   Hanley R. Robinson, Anchorage, under contract  


                           with the Public Defender Agency, and Quinlan Steiner, Public  


                           Defender,  Anchorage,  for  the  Appellant.                                          Jack R.  McKenna,  


                           Assistant District Attorney, Anchorage, and Craig W. Richards,  


                           Attorney General, Juneau, for the Appellee.  


                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                           Superior Court Judge.*  



                           Judge MANNHEIMER.  

       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                              

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

                          Joshua Savo was charged with, and ultimately convicted of, two crimes:                                                                          


 fourth-degree assault and interfering with a report of domestic violence.                                                                      

                          Before trial, Savo's attorney gave notice that he would present a defense  


 of self-defense.  But just prior to jury selection, at the behest of the prosecutor, Savo's  


trial judge issued an unusual ruling: she prohibited the defense attorney from mentioning  


 anything about self-defense during jury selection and during his opening statement.  The  


judge concluded that it would be improper to have the jurors hear anything about this  


proposed defense until later in the trial, after the defense attorney had actually introduced  


 evidence that was sufficient to support a jury instruction on self-defense.  


                          The judge's rulingwas a significant error. It prevented the defense attorney  


 from questioning the prospective jurors regarding self-defense - while at the same time  


 giving the prosecutor free reign to question the jurors about the State's theory of the case.  


 In addition, by requiring the defense attorney to avoid mentioning self-defense in his  


 opening statement,  the  judge's  ruling made  it  falsely  appear  as  though  the  defense  


 attorney had come up with the idea of self-defense at the last moment, during the trial  




                          We therefore reverse Savo's convictions.  


             A more detailed look at this case  


                          Three days  before Savo's trial, the prosecutor filed a motion in limine  


 asking the judge to completely preclude Savo from pursuing a claim of self-defense.  In  


this  motion, the prosecutor argued that there was no view of the evidence that could  


possibly justify a claim of self-defense.  


       1     AS 11.41.230(a)(1) and AS 11.56.745(a), respectively.                                                  

                                                                                - 2 -                                                                           2511

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


                     The prosecutor's motion was frivolous. The State's own pre-trialdisclosure  


included  information  that  Savo's  girlfriend  had  punched  him,  and  that  Savo  had  


telephoned the police (from a closet) to report that his girlfriend had assaulted him.  


Thus, even before the defense presented any evidence of its own, it was obvious that  


there was evidence to support a claim of self-defense.  


                     What the prosecutor really argued in her motion was that no juror could  


possibly believe a claim of self-defense - i.e., no reasonable juror could believe that  


Savo's girlfriend was the initial aggressor or, even if she was, no reasonable juror could  


believe that Savo's response was proportionate.  


                     These were matters for the jury - and the trial judge should simply have  


denied the State's motion.  


                     But  instead  of  denying  the  State's  motion  outright,  the  trial  judge  


temporized.  The judge declared that there was no reason to decide immediately whether  


Savo would be allowed to litigate a claim of self-defense; instead, the judge decided to  


defer her decision on this matter.  But she ruled that, in the meantime, Savo's attorney  


was precluded from mentioning self-defense in any fashion until he was ready to present  


evidence of self-defense. Even then, the judge declared, the defense attorney would have  


to argue the matter outside the presence of the jury, so that the judge could issue a ruling  


on the State's motion in limine before the defense attorney presented any evidence of  


self-defense to the jury:  



                               The Court:  [Regarding the State's] motion in limine  


                     to preclude a [defense of] self-defense:  I don't need to rule  


                     on  that  [motion  until]  such  time  as  the  defense  puts  on  


                     evidence  of  self-defense.                 Then  that  will be  appropriate.  


                     But make sure that you understand, Mr. [Defense Attorney]:  


                     there  will be  no  mention  of  self-defense  in  your  opening  


                     [statement] or [at] any other time until we've addressed this  

                                                               - 3 -                                                          2511

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


                    motion in limine.  And so, if at some point you're ready to  


                    put on evidence of self-defense, then you need to alert the  


                    Court, and we will address this motion out of the presence of  


                    the jury.  


                    The trial judge apparently based her decision on the rule that a jury should  


not  be  instructed on self-defense at the conclusion of a trial unless there is sufficient  


evidence to support a verdict in the defendant's favor on the claim of self-defense.  


                    But  the  judge  mistakenly  interpreted  this  rule  to  mean  that  a  defense  


attorney is barred from mentioning self-defense,  and  is  barred from presenting any  


evidence of self-defense, until the attorney has made an offer of proof  regarding the  


evidence that  will support the claim of self-defense,  and the judge has affirmatively  


concluded that this evidence is sufficient to support a jury verdict in the defendant's  


favor on the claim of self-defense:  


                               The Court:  [T]he rules are very clear, as is the case  


                    law, that in order to present self-defense, there must be some  


                     ... evidence showing self-defense.   And ... until that "some  


                    evidence" is presented, ... you can't argue it.  So obviously,  


                     ... you can't present it in your opening [statement], because  


                    you haven't [yet] presented some evidence of self-defense.  


                               As I said, when the trial starts and evidence is being  


                    put on - whether it's during the [State's] case-in-chief ... or  


                    during your cross-examination of [the State's] witnesses, or  


                    in your own case - [and] you come to the point where you  


                    want to put on evidence of self-defense, then you need to let  


                    the Court know.  We'll clear the courtroom, [and] we'll have  


                    a hearing on the [State's] motion in limine, and then we'll  


                    proceed after a ruling at that point. And that's the appropriate  


                    way to do it.  

                                                               - 4 -                                                          2511

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

                                           It is true that unless "some evidence" of self-defense is presented during the                                                                                                                                                  

trial (   i.e., evidence sufficient to allow reasonable jurors to find in the defendant's favor                                                                                                                                                                     

on the claim of self-defense), the jurors should not be instructed on self-defense, and the                                                                                                                                                                                


defense attorney can be prohibited from arguing self-defense during summation.                                                                                                                                                                                          But  


this rule applies at the conclusion of the trial, after all the evidence has been received -  


when the judge can make informed rulings as to what legal doctrines the jurors should  


and should not consider when they deliberate.  


                                           This rule does not give a judge the authority to prohibit an attorney from  


mentioning their theory of the case during jury selection or during opening statement.  

                                                                                                                                        3  a trial judge should normally wait until the  


As this Court suggested in Clarke v. State,  

close of the evidence and then, if the evidence does not provide a legally sufficient basis  


for a self-defense verdict, the trial judge should simply instruct the jury that the doctrine  


of self-defense does not apply to the defendant's case.  


                                           We acknowledge that trial judges have considerable discretion to limit the  


questions asked during jury selection, and to restrict the content of the attorneys' opening  


statements, if (1) there is a significant dispute as to what evidence will be admissible at  


trial, or whether a particular claim or defense can lawfully be presented at trial, and if  


(2) it is not possible to resolve this dispute before the parties begin their presentation of  




           2         See Shane v. Rhines                                             , 672 P.2d 895, 901 (Alaska 1983) (holding that a trial judge can                                                                                                                     

properly forbid an attorney from arguing legal theories "having no bearing on the facts at                                                                                                                                                                                      

hand", and which "might tend to distract or confuse the jury");                                                                                                                             Clarke v. State                                 , unpublished,   

2009 WL 3681650, *5 (Alaska App. 2009) (holding that a trial judge may properly forbid                                                                                                                                                                            

a defense attorney from arguing self-defense when there is insufficient evidence to justify                                                                                                                                                                      

a jury instruction on self-defense).                                                                        



                      Clarke v. State, unpublished, 2009 WL 3681650, *2, *5 (Alaska App. 2009).  

                                                                                                                                    - 5 -                                                                                                                               2511

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


                     But in Savo's case, Savo's attorney had given pre-trial notice of his intent  


to argue self-defense, and even the evidence already known to the State provided support  


for this claim of self-defense.  In the State's motion in limine, the prosecutor basically  


asserted that any claim of self-defense would be implausible.  But "implausibility" is no  


legal bar to the presentation of a claim.  


                     More importantly, the trial judge gave Savo's attorney no opportunity to  


resolve this issue before jury selection and opening statements took place.  


                     The State asserts that the trial judge invited the defense attorney to make  


an immediate offer of proof (in advance of jury selection) describing the evidence that  


would support Savo's claim of self-defense.  But the record does not support the State's  




                     Rather, as can  be  seen from the judge's ruling quoted above, the judge  


apparently believed that she could make no decision on this issue until "the trial starts  


and evidence is being put on".  Based on this belief, the trial judge concluded that she  


had to preclude the defense attorney from mentioning self-defense during jury selection  


and during his opening statement - because jury selection and opening statements take  


place before the parties begin to present their evidence.  


                     All of this was error.  And this erroneous ruling prejudiced the defense:  it  


improperly restricted the defense attorney's ability to question the prospective jurors, and  


it likewise improperly constrained the defense attorney's opening statement.  


                     The restrictions on jury voir dire were obviously prejudicial to Savo.  His  


defense  attorney  could  reasonably  have  wished  to  question  the  prospective  jurors  


regarding their attitudes toward situations where a man claims self-defense in a domestic  


violence situation - for instance, whether some of the jurors believed that a man should  


never strike a woman, even in self-defense.  Or the defense attorney could reasonably  


have  wished  to  question  the  jurors  regarding their  knowledge  of  Savo  himself  -  

                                                               - 6 -                                                          2511

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


whether, because of previous acquaintance or community reputation, some of the jurors  


might be inclined to reject out of hand any assertion that Savo acted in self-defense.  


                    We note that although the trial judge restricted the defense attorney's ability  


to question the prospective jurors about the defense theory of the case, the judge allowed  


the prosecutor full rein to question the jurors about the State's theory of the case.  For  


instance, the prosecutor asked the jurors whether they felt that domestic violence was a  


significant problem in the region, and the prosecutor also asked the jurors whether they  


could "imagine that [a] person who beat somebody ... up might call the cops because  


they think they have a better chance of getting away with it if they call the cops".  


                    With regard to the limitation on the defense attorney's opening statement,  


the trial judge's ruling created the possibility that when the defense attorney ultimately  


argued self-defense during his summation at the end of the trial, the jurors might have  


thought that this theory of defense was a new theory concocted during the trial - when,  


in fact, Savo's attorney had given notice before trial that this would be Savo's defense.  


                    For these reasons, we reverse Savo's convictions.  



                    The judgement of the district court is REVERSED.  

                                                              - 7 -                                                          2511

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