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Hess v. State (9/2/2016) ap-2513

Hess v. State (9/2/2016) ap-2513


         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 @



                                                                    Court of Appeals No. A-11425  

                                    Appellant,                   Trial Court No. 3AN-11-10574 CR  


                                                                               O P I N I O N  


                                    Appellee.                      No. 2513 - September 2, 2016  

                  Appeal   from  the  Superior  Court,  Third  Judicial  District,  


                  Anchorage, Gregory Miller, Judge.  

                  Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals  


                  and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                  Advocate, Anchorage, for the Appellant. Terisia K. Chleborad,  


                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  


                  Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                  for the Appellee.  

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



                  Superior Court Judge.   

                  Judge SUDDOCK.  

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

Constitution and Administrative Rule 24(d).  

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

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


for  strangling  his  mother,  Patricia  Hess.                      On  appeal,  he  challenges  aspects  of  the  


prosecutor's final argument.  We agree that some of the prosecutor's statements were  


inflammatory and thus improper.  But because Hess did not object to these remarks, he  


must establish that they undermined the fundamental fairness of his trial.  We conclude  


that they did not.  


          Facts and proceedings  


                    Responding to a report of an assault in progress, Anchorage police went to  


the apartment where Patricia Hess lived with her son, Christopher Hess.  They found  


Patricia outside the apartment, apparently quite shaken.  She coughed repeatedly, said  


she had difficulty swallowing, complained of throat pain, had bruises on her neck, and  


had urinated on herself. Patricia reported that her adult son became angry at her, shoved  


her to the floor, and strangled her.  


                    The police spoke with Hess inside the apartment. He denied strangling his  


mother.  He said that he and his mother had been drinking, and he claimed that she was  


"crazy."  The police found Patricia's dentures, eyeglasses, and a kitchen knife on the  


floor of the apartment.  


                    The  State  charged  Hess  with  second-degree  assault  for  strangling  his  


mother and with third-degree assault for recklessly placing her in fear by  use of a  


dangerous weapon.  


                    At trial Patricia equivocated, saying that she had trouble remembering the  


incident.   She testified that she and Hess had been drinking that night and that they  


became "really, really drunk."  She disavowed any memory of her prior claim that Hess  


had strangled her until she almost passed out. But she related that the following morning  


her throat hurt at a level eight on a scale of one to ten.  


                                                               - 2 -                                                          2513

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                     Several  of  Patricia's  relatives  testified  that  she  had  a  reputation  for  


untruthfulness and that she was particularly untruthful when off of her medications and  




                    Hess testified that his mother always had a friend or relative living with her  


to help her; he had been staying with her for approximately a month before the charged  


incident.  He said that he and his mother were drinking on the evening in question and  


that the last thing he remembered was watching television.  He declared that he would  


never strangle his mother.  


                    Hess  testified  that  his  mother  is  a  manipulative,  attention-seeking  


exaggerator.  He claimed that while he was passed out, she concocted a plan to injure  


herself,  and  then  framed  him  by  feigning  distress  to  a  neighbor  and  calling  911.  


                    The jury convicted Hess of both second-degree and third-degree assault.  


The superior court merged the two convictions and sentenced Hess to 6 years with 2  


years suspended.  This appeal followed.  


           Why the prosecutor's argument addressing how the jury should view a  


          recanting victim was not obvious error  


                    Hess challenges the prosecutor's statements urging the jury to convict Hess  


to "protect" the victim and to show the victim that she was "worthy of protection."  We  


agree with Hess that, as a general matter, such comments are improper.  A prosecutor  


should not argue for a conviction based on alleged future harms that might occur if the  


defendant is not convicted, nor should a prosecutor urge a jury to convict in order to  


"send a message."  


                    But it is not clear that the prosecutor was making this type of improper  


argument here.  The prosecutor made these statements in the context of discussing Ms.  


Hess's obvious reluctance to incriminate her son on the witness stand:  


                                                               -  3 -                                                         2513

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                    Maybe Ms. Hess doesn't want the State to prosecute her son.  


                    Maybe she doesn't, but it doesn't mean that she does not  


                    deserve protection. Even if her own family doesn't value her,  


                    we as a community value her, and we as a community must  


                    protect her.  


The prosecutor then continued:  


                     So  if you  believe the State has proved its case beyond  a  


                    reasonable doubt, don't be tempted to say, "What does it  


                    matter?"         ...   What  this  is  about  is  proof,  and  ladies  and  


                    gentlemen I will reiterate you have the photographs.  You  


                    have her statements from that night.  


Thus, contrary to Hess's argument on appeal, it does not appear that the prosecutor was  


urging the jury to convict Hess because of the need to protect the victim, or to send a  


message that she was worthy of being protected.  Rather, the prosecutor was concerned  


that the jury would find that the State had proved its case beyond a reasonable doubt and  


would nevertheless decide not to convict because the victim herself did not seem to want  


her son convicted. In context, therefore, the prosecutor's statements were not improper,  


or  at  least  not  so  obviously  improper  that  the  trial  court  should  have  sua  sponte  


intervened despite the absence of any defense objection.  


           Why we conclude that several of the prosecutor's closing statements were  


          improper but that Hess nonetheless received a fair trial  


                    Hess argues that the prosecutor made several other improper statements  


during his closing argument.  Hess concedes that he did not object to these statements.  


He must therefore show that the judge committed plain error by not admonishing the  


                                                               - 4 -                                                          2513

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prosecutor, instructing the jury to disregard the prosecutor's remarks, or declaring a                                                               


mistrial, even though Hess did not request this relief.                                         


                       When a defendant argues that a prosecutor's closing argument amounted  


to prosecutorial misconduct, we consider "whether the prosecutor's statements, if in  


error, constituted such egregious conduct as to undermine the fundamental fairness of  



the trial."          In this analysis, we view the challenged statements in the context of the  



record as a whole. 


                       At trial, the defense had elicited testimony fromthe victimand others about  


the victim's mental health issues and her diminished ability to accurately perceive events  


when she was off of her medication.  The defense also introduced reputation evidence  


through various family members who testified that the victim had a reputation for being  


untruthful and manipulative.  


                       The prosecutor responded during his closing argument, asserting that the  


defense attorney was "vilifying" the victim, a tactic he claimed is frequently employed  


by defense attorneys in domestic violence cases.  He stated:  


                       Now, I warned you during my opening [at the beginning of  


                       trial] 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.  


                       We agree with Hess that the prosecutor improperly denigrated the defense  


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

      1     Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012);                                         see Cook v. State, 36 P.3d  

710, 729 (Alaska App. 2001).  

      2     Rogers, 280 P.3d at 589.  

      3     Id.  


                                                                       -  5 -                                                                  2513

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in false "vilification" of victims of domestic violence.                                                                    The prosecutor was implicitly                   

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

support, but instead because of the prosecutor's purported experience handling similar                                                                                            

cases,   and   his   unsupported   accusation   that   defense   attorneys   commonly   resort   to  

underhanded or misleading tactics.                                               

                              As we stated in                    Patterson v. State                     , a prosecutor's argument must be based                                      

on the evidence presented at trial and the inferences that might fairly be drawn from that                                                                                                



                         It is improper for a prosecutor to "mak[e] appeals calculated to inflame [the]  


passions and prejudices of the jury," or to "advanc[e] arguments based on ... issues other  



than the guilt or innocence of the accused." 


                              In her summation to the jury, Hess's attorney responded to the prosecutor's  


remarks by arguing that the defense was not "vilifying" Hess's mother, but was only  


pointing out the reasons to be skeptical of her initial report of assault and the need to hold  


the State to its high burden of proof.  


                              After  the  defense  attorney  concluded  her  summation,  the  prosecutor  


returned to the issue of "vilification":  


                              Now, [the defense attorney] says [that] she is not vilifying the  


                              victim.   ...   Maybe that's true[,] and maybe that's not.   ...  


                              [But  if]  she's  not vilifying  the  victim,  [then]  what  she  is  


                              suggesting is that someone who [suffers from post-traumatic  


                              stress disorder from a prior unrelated assault and rape,] and  


                              [who] is on medication[,] can no longer ever be a victim.  


                              That's what [the defense attorney] is suggesting to you, and  


                              that is what is offensive.  

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

        5      Id.   

                                                                                           -  6 -                                                                                       2513

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                                        We agree with Hess that this argument was improper.                                                                                                                       The prosecutor   

grossly distorted the defense attorney's argument, and he again urged the jury to decide                                                                                                                                                       

the case on issues other than whether the evidence established Hess's guilt - this time,                                                                                                                                                            

by implicitly asking the jury to convict Hess in the name of defending all people who                                                                                                                                                                

suffer from post-traumatic stress disorder.                                                                                      

                                        But the challenged portions of the prosecutor's closing argument are only                                                                                                                                    

a   small   part   of   what   was   otherwise   an   appropriate   final   argument   focused   on   the  

evidence   in   this   case   and   the   State's   burden   of   proof   beyond   a   reasonable   doubt.   

Viewing these challenged statements in the context of the record as a whole, we find that                                                                                                                                                               

the moments where the prosecutor argued intemperately were not sufficiently central to                                                                                                                                                                       

the trial so as to rob it of its fundamental fairness, as is required for a finding of plain                                                                                                                                                       




                    The judge's role during final argument  


                                        In a case involving allegations of prosecutorial misconduct during final  


argument,  the  United  States  Supreme  Court  stated  that  federal  trial  judges  have  a  


responsibility to manage the propriety of final argument, even in the absence of objection  


by a party:  


                                        We emphasize that the trial judge has the responsibility to  


                                        maintain   decorum  in   keeping   with   the   nature   of   the  


                                        proceeding; "the judge is not a mere moderator, but is the  


                                        governor of the trial for the purpose of assuring its proper  


                                        conduct."  The judge "must meet situations as they arise and  


                                        [be able] to cope with ... the contingencies inherent in the  


                                        adversary  process."                                               Of  course,  "hard  blows"  cannot  be  


                                        avoided in criminal trials; both the prosecutor and defense  

          6         See Rogers, 280 P.3d at 589.  

                                                                                                                          -  7 -                                                                                                                     2513

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                        counsel must be kept within appropriate bounds.                                                ...    The  

                        situation brought before the Court of Appeals was but one                                              

                        example of an all too common occurrence in criminal trials                                           

                        -   the   defense   counsel   argues   improperly,   provoking   the  

                        prosecutor to respond in kind, and the trial judge takes no                                              

                        corrective action.              7  


In like manner, the Ninth Circuit Court of Appeals has stated that trial judges must  


remain acutely alert during final argument, intervening without prompting when counsel  


engage in improper argument:  


                                     Trial court judges are not mere referees.  They play an  


                        active  role,  keeping  the  trial  running  efficiently  with  a  


                        minimum of error.  Their control over closing argument is  




                                    A trial judge should be alert to deviations from proper  


                        argument.  Because such comments have the clear potential  


                        for affecting adversely the defendant's right to a fair trial, the  


                        judge should take prompt corrective action as appropriate in  



                        each case. 



We have previously expressed a similar admonition for vigilance on the part of judges. 


                        We take this opportunity to remind judges of their duty to guard against  



improper closing argument, even in the absence of objection.                                                      While we recognize that  


some trial judges prefer a hands-off approach to final argument absent objection by a  

      7      United States v. Young, 470 U.S. 1, 10-11 (1985) (internal citations omitted).  

      8      United  States  v.  Roberts,  618  F.2d  530,  534  (9th  Cir.  1980)  (internal  citations  


      9     See Potts v. State, 712 P.2d 385, 394 (Alaska App. 1985), superseded by statute on  

other grounds as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).  

      10    See Adams v. State, 261 P.3d 758, 772 (Alaska 2011).  

                                                                           -  8 -                                                                     2513

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party, such judicial reticence is actually contrary to a judge's duty to supervise final  




                    And this judicial reticence only perpetuates recurrent improper argument.  


Trials are hard-fought, emotions run high, and one side might feel provoked by the other  


to  exceed  the  bounds  of  proper  argument.                        But  when  an  argument  diverges  from  


consideration of the evidence into the realmof emotion or otherwise improper argument,  


the judge has a duty to intervene.  


                    Here the improper nature of the prosecutor's arguments should have been  


apparent  to  the  superior  court.                 The  judge  should  have  interrupted  the  argument,  


conducted a bench conference, and considered a curative instruction to the jury.  



                    We AFFIRM the judgment of the superior court.  


                                                              -  9 -                                                        2513

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