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Leffel v. State (8/25/2017) ap-2564

Leffel v. State (8/25/2017) ap-2564


         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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                                                                 Court of Appeals No. A-11916  

                                  Appellant,                   Trial Court No. 3AN-12-2785 CR  


                                                                           O P I N I O N  


                                  Appellee.                      No. 2564 - August 25, 2017  

                 Appeal  f                                      

                             rom  the  Superior  Court,   Third  Judicial  District,  

                 Anchorage, Jack Smith, Judge.  

                 Appearances:  Jason A. Gazewood, Gazewood & Weiner, PC,  


                 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-----------------------


                                                                             James William Leffel was convicted of first-degree assault                                                                                                                                                                                                                                                                                              for stabbing   

  another man in the leg during a confrontation outside the Buckaroo Club, an Anchorage                                                                                                                                                                                                                                                                                                                                                      


                                                                             In this appeal, Leffel argues that the prosecutor improperly commented on                                                                                                                                                                                                                                                                                                                                        

 Leffel's post-arrest silence.                                                                                                                               We agree that the prosecutor should not have characterized                                                                                                                                                                                                         

 Leffel's claim of self-defense as "new information," thus implying that Leffel had not                                                                                                                                                                                                                                                                                                                                                                                                  

  disclosed this information to the police.                                                                                                                                                                                         However, for the reasons we explain here, we                                                                                                                                                                                                             

  conclude that this implied reference to Leffel's post-arrest silence was harmless beyond                                                                                                                                                                                                                                                                                                                                                                        

  a reasonable doubt.                                                                                              

                                                                             We also hold that the prosecutor should not have suggested that Leffel was                                                                                                                                                                                                                                                                                                                               

  able to "tailor" his testimony because he had reviewed the State's discovery materials,                                                                                                                                                                                                                                                                                                                                                           

 but we conclude that this error was harmless.                                                                                                                                                                                                                      

                                                                             Lastly, Leffel challenges the trial judge's admission of testimony about the                                                                                                                                                                                                                                                                                                                                    

 Hells Angels motorcycle club, of which Leffel was a member.                                                                                                                                                                                                                                                                                                      The record supports the                                                                                                    

judge's ruling.                                                                        

                                       Background facts and proceedings                                                                                                

                                                                             During an evening of drinking, Jens Schurig and three friends went to the                                                                                                                                                                                                                                                                                                                                       

 Buckaroo Club in Anchorage.                                                                                                                                                 They left the bar around midnight to await a cab.                                                                                                                                                                                                                                      As the   

 men   stood   outside   the   bar,   they   commented   upon   a   three-wheel   Harley   Davidson  

 motorcycle parked by the bar's entrance.                                                                                                                                            

                                                                             TheBuckaroo'sbouncer,Anders Ekstrand,                                                                                                                                                                                                            was alsostanding outsideofthe                                                                                                                                  

 bar.   When Ekstrand heard Schurig and his friends discussing the motorcycle, Ekstrand                                                                                                                                                                                                                                                                                                                                                                  

                     1                 AS 11.41.200(a)(1).  

                                                                                                                                                                                                                                          - 2 -                                                                                                                                                                                                                                     2564

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

ordered them not to touch it, nor even to look at it, on pain of a beating.   Schurig  


responded profanely and suggested that three-wheel motorcycles were less than manly.  


                    Leffel - the motorcycle's owner and a member of the Alaska chapter of  


the Hells Angels motorcycle club - had by this point emerged from the bar to smoke  


a cigar.  He was holding a pocket knife to cut the tip off of the cigar prior to lighting up.  


Leffel's friend, fellow Hells Angel Thomas Moore, joined him.  Ekstrand recognized  


both men as Hells Angels and as frequent patrons of the Buckaroo Club.  


                    When   Leffel   heard   Schurig   denigrate   Leffel's   motorcycle,   Leffel  


approached Schurig and stabbed himin the upper thigh, opening Schurig's femoral vein.  


Bleeding profusely, Schurig soon lost consciousness.  Leffel remained outside the bar,  


smoking, until the police arrived and took him into custody.  


                    Leffel testified at trial, claiming self-defense. He testified that as he walked  


toward his motorcycle to retrieve a lighter for his cigar, Schurig threw a punch at him.  


Feeling outnumbered and vulnerable to attack by Schurig and his three friends, Leffel  


stabbed Schurig's leg.  


                    Both Ekstrand(thebouncer) andMoore(Leffel's friend and fellowmember  


of the Hells Angels) testified in support of Leffel.  


                    The jury rejected Leffel's claim of self-defense and found him guilty of  


first-degree assault.  


           Why we conclude that the prosecutor's comment on Leffel's post-arrest  


          silence was harmless error  


                    After Leffeloffered his exculpatory versionofevents at trial, theprosecutor  


asked him, "Now, what we're hearing today, we're hearing it for the first time, right?"  


The defense attorney immediately objected, and the attorneys approached the bench.  


                                                               -  3 -                                                         2564

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                         The prosecutor told the trial judge that he intended to elicit that Leffel at no                                                     

time contacted the district attorney's office to explain his side of the story - a clear                                                                 

violation of Leffel's right not to talk to the authorities about the pending charge.                                                                   2  The  


trial judge forbade the prosecutor from asking his proposed question, but he authorized  


the prosecutor to establish that Leffel's claimof self-defense was "new information" that  


he was publicly revealing for the first time:  


                                      The Court:   I think [that the prosecutor] can ask to  


                         [what]  extent  that  this  is  new  information.  ...  I  mean,  it  


                         doesn't  [implicate  Leffel's]  right  to  remain  silent.                                             [The  


                         prosecutor] can [ask whether] this is the first  time we've  


                         heard this.  Now certainly, [the prosecutor] can't go beyond  




After receiving this ruling, the prosecutor asked Leffel:  "This whole story that you've  


testified [to] here today is new information, correct?"  


                         On appeal, Leffel argues that the prosecutor should not have been allowed  


to ask this question, because it was an improper comment on Leffel's right to post-arrest  


silence.   We agree.   In a similar case, Adams v. State , the prosecutor impeached a  


defendant through questions that alerted the jury that the defendant failed to offer an  



exculpatory account of events to the authorities after his arrest.   The Alaska Supreme  



Court held that such questions are normally constitutional error.                                                         An exception applies  


when a defendant places their silence at issue by asserting at trial that the police denied  

      2     See, e.g.,  Adams v. State , 261 P.3d 758, 770 (Alaska 2011) (citing Alaska Const. art.  

1,  9; Alaska Evid. R. 403).  

      3      261 P.3d 758, 762-63 (Alaska 2011).  

      4     Id. at 767, 774.  

                                                                             - 4 -                                                                        2564

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


them an opportunity to tell their side of the story.                                            A prosecutor may then comment on                                

thedefendant's earlier opportunity to, and voluntary decision not to, offer an exculpatory                                                    


version of events.                    


                         In Leffel's case, the State concedes that the prosecutor's question about  


"new information" would have been error if offered to prove Leffel's guilt. But the State  


argues that Leffel opened the door to questions about his post-arrest silence by his  


response to a question inquiring why he did not retrieve his knife from the ground  


following the stabbing:  


                                      Leffel :  Well, I glanced around for it, but by then the  


                         police were there, and they pretty well had every little red  


                         light  in  Anchorage  on  my  chest,  and  you  know,  they're  


                         telling me to throw down the cigar, and you know, I could  


                         see things weren't going good.  So I resigned myself to the  


                         fact that they really didn't want to hear anything I had to say,  


                         and I needed to contact my attorney immediately.  


Based on this testimony, the State contends (1) that Leffel volunteered that he chose to  


contact an attorney rather than speak to the police, and (2) that Leffel implied that the  


police refused to listen to him, thus opening the door to cross-examination on that point.  


                         Butnothingin Leffel'sanswersuggestedthat thepoliceactively denied him  


an opportunity to recount his version of events.  Rather, Leffel stated that, given the  


circumstances, he decided that it was not an opportune time for him to justify himself to  


police, and that it would be better to consult an attorney.  Leffel's brief reference to his  

      5     Id.   at  767-68   &   n.46  (citing  United  States  v.  Robinson,  485  U.S.  25,  32  (1988)  

(permitting  a  prosecutor  to  comment  on  the  defendant's   choice  not  to  testify when                                                                 the  

defense argued during closing that the government had "breached its duty to be fair" by                                                    

denying the defendant the opportunity to explain his actions)).  

      6     Id.  

                                                                             -  5 -                                                                         2564

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

post-arrest silence did not justify the prosecutor's question suggesting that Leffel's self-                                                          

defense claim might be false because it was first disclosed at trial.                                                  7  


                        Because  the  prosecutor  improperly  commented  on  Leffel's  post-arrest  


silence, Leffel's conviction must be reversed unless the State can show that the error was  



harmless beyond a reasonable doubt. 


                        Adams  sets forth the relevant harmless error factors for this case:   (1)  


whether Leffel's conviction depended primarily on the jury's assessment of the relative  


credibility of Leffel's testimony versus the testimony of other witnesses; (2) whether the  


prosecutor's questions directly elicited the testimony about Leffel's post-arrest silence;  


(3)  whether  the  adverse  comment  on  Leffel's  post-arrest  silence  was  "express"  as  


opposed to "brief and passing;" and (4) whether the prosecutor accentuated the adverse  




comment by repeating it during closing argument. 


                        Here, the first factor weighs in Leffel's favor. In large part, this case turned  


on the relative credibility of Leffel and his two supporting witnesses versus Schurig and  


his companions.  But the remaining factors weigh against a finding of prejudice.  The  


prosecutor only briefly questioned Leffel about whether his claim of self-defense was  


"new  information."                      And  as  we  have  explained,  it  was  Leffel  himself  who  first  


volunteered that he decided not to explain matters to the police, and to consult  an  


attorney instead. Lastly, the prosecutor made no reference to Leffel's post-arrest silence  


or to "new information" during his closing argument.  

      7     See  Adams,  261  P.3d  at  767-68  (holding  that  the  defense  attorney's  tangential  

references to silence did not "open the door" to prosecutorial comment on silence).  

      8     Id. at 773; Chapman v. California, 386 U.S. 18, 23 (1967).  

      9     See Moreno v. State, 341 P.3d 1134, 1147 (Alaska 2015);                                           Adams , 261 P.3d at 774-75.   

                                                                          -  6 -                                                                     2564

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

                          We conclude that there is no reasonable possibility that the prosecutor's                                            

brief questions about "new information" affected the jury's verdict. Thus, the error was                                                                        

harmless beyond a reasonable doubt.                                     10  


              Why we conclude that the prosecutor should not have been allowed to  


             comment  on  Leffel's  review  of  the  pretrial  discovery,  but  that  the  


            prosecutor's comment was harmless error  


                          On appeal, Leffel contends that the prosecutor improperly implied that  


Leffel  deliberately  conformed  his  testimony  to  the  pretrial  discovery.                                                                   During  the  


prosecutor's cross-examination of him, Leffel asserted that he was providing "pieces to  


the  puzzle"  so  that  the  jury  could  understand  what  had  happened  outside  the  bar.  


Without objection, theprosecutorasked, "Andyou'reputtingthepieces together because  


you've read [the pretrial] discovery, correct?" The prosecutor then asked Leffel if he had  


reviewed the police reports in the case.  Leffel confirmed that he had read the reports.  


                          Although Leffel's attorney did not object at thetime, Leffel now argues that  


the prosecutor's questions about Leffel's review of the pretrial discovery, in conjunction  


with the prosecutor's earlier comment that Leffel's claim of self-defense was "new  


information," was an improper comment on Leffel's post-arrest silence.  Leffel reasons  


that the prosecutor could only assert that Leffel had tailored his testimony to the police  


reports  because  Leffel  had  remained  silent  following  his  arrest  - and  so  had  not  


committed himself to a particular defense until the time of trial. Thus, Leffel argues that  


the prosecution's implication of tailored testimony amounted to an indirect comment on  


Leffel's post-arrest silence.  


                          The State analogizes this case to the United States Supreme Court case  


Portuondo v. Agard, where the court declared that a prosecutor could properly comment  

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

                                                                               -  7 -                                                                         2564

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

on the fact that a defendant's continuous presence in the courtroom during trial afforded                                                             

the defendant an opportunity to tailor their testimony to that of the preceding witnesses.                                                                          11  



In  Adams  v.  State ,  the  Alaska  Supreme  Court  cited  Portuondo  with  approval. 


However, our supreme court added the caveat that a prosecutor may not frame the  


"advantage of going second" argument in such a manner that it becomes a comment on  



the tactical advantages of pre- and post-arrest silence. 


                          Because Leffel did not object at trial, we review the prosecutor's question  



about Leffel's access to pretrial discovery for plain error. 


                          Although the prosecutor questioned Leffel about the advantage of being  


able  to  review  the  police  reports  and  witness  statements  before  he  testified,  the  


prosecutor did not return to this theme during closing argument.  And the prosecutor's  

questioning on this point did not explicitly suggest that Leffel gained an advantage by  


remaining silent at the time of his arrest.  


                          An astute legal analyst might interpret the prosecutor's questions as an  


implied comment on Leffel's pretrial silence. But we consider it highly unlikely that any  


of the jurors drew this inference.  


                          We are nonetheless troubled by the fact that in virtually every case where  


a defendant testifies,  the defendant will likely  have read the pretrial discovery.                                                                              A  


prosecutor could plant doubts about the veracity of a defendant's testimony merely by  


eliciting the fact that the defendant had earlier reviewed the pretrial discovery.  

       11    Portuondo v. Agard, 529 U.S. 61, 73 (2000).  

       12    Adams , 261 P.3d at 769 n.54.  

       13    Id. at 769.  

       14    See id. at 764.  

                                                                              -  8 -                                                                         2564

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

                          It is true that our supreme court has authorized prosecutors to comment on                                                              

the fact that a defendant enjoyed the advantage of hearing the State's witnesses prior to                                                                          



                          But  the  jurors  will  themselves  have  heard  the  same  testimony  as  the  


defendant.              Thus,  jurors will be able to  evaluate the strength  (or  weakness)  of the  


prosecutor's implication that the defendant's testimony may have been tailored to the  


testimony that came before.  


                          The same cannot be said as to pretrial discovery materials furnished to the  


defense. Jurors have no way of knowing what information this discovery contained, and  


so can not independently evaluate an accusation that the defendant conformed their  


testimony to that material.  For lack of a factual context, there will be little relevance to  


a prosecutor's generalized questions or comments regarding a defendant's review of the  


pretrial discovery.  


                          We conclude that  prosecutors should  generally  not comment (through  


cross-examination  or  during  final  argument)  upon  a  testifying  defendant's  prior  


opportunity to review pretrial discovery material.  If a defendant's prior knowledge of  


particular information in thediscovery has case-specificrelevance, theprosecutorshould  


ask the trial judge for permission to pursue that inquiry.  


             The trial court's denial of a pretrial motion to preclude mention of Leffel's  


             membership in the Hells Angels was not error  


                          Leffel's attorney filed a motion in limine to preclude testimony about  


Leffel's membership in the Alaska chapter of the Hells Angels.  The defense attorney  


argued  that  this  evidence  was  more  prejudicial  than  probative  and  thus  should  be  


excluded under Alaska Evidence Rule 403.  

       15    Id. ; see also Gray v. State, 463 P.2d 897, 907 (Alaska 1970).  

                                                                              -  9 -                                                                         2564

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

                    In the State's opposition to this motion, the prosecutor surmised that the  


defense would call two witnesses:  Thomas Moore (Leffel's friend and fellow member  


of the Hells Angels) and Anders Ekstrand (the bouncer at the Buckaroo Club who  


instigated theconfrontation by orderingSchurigto leaveLeffel's motorcyclealone). The  


prosecutor argued that these witnesses were biased in Leffel's favor because of their  


association with the Hells Angels. The prosecutor also argued that Leffel's membership  


in  the  Hells  Angels  was  relevant  to  explain  why  he  reacted  violently  to  Schurig's  


comments denigrating Leffel's motorcycle.  


                    The  trial  judge  agreed  with  the  prosecutor  that  evidence  of  Leffel's  


membership in the Hells Angels was relevant to Moore's potential bias.  The judge also  


ruled that evidence of Leffel's membership in the Hells Angels was relevant to explain  


Leffel's reaction to Schurig's disrespectful comment about the motorcycle.  The judge  


offered to give a limiting instruction so that the jurors would not misuse this information,  


but the defense did not request such an instruction.  


                    During Leffel's testimony, he volunteered details about his membership in  


the motorcycle club.  He claimed that his motorcycle was immune to theft due to the  


Hells Angels' intimidating reputation.  He boasted that the Hells Angels do not tolerate  


disrespectful behavior.  With little prompting, Leffel explained that the Hells Angels  


control the street where their clubhouse is located.  


                    Thomas Moore testified as a defense witness.  During cross-examination,  


the prosecutor asked Moore about the criteria for membership in the Hells Angels, about  


Moore's own participation in club activities, about his loyalty to the club, and about the  


value that Moore placed on his reputation.  


                    During   his   closing   statement,   the   prosecutor   argued   that   Leffel's  


membership in theHells Angelsexplainedhis reaction to Schurig's disrespectofLeffel's  


three-wheel motorcycle.  


                                                              -  10 -                                                         2564

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

                                     Leffel now contends that the prosecutor demagogically focused the jury's                                                                                                                   

attention on the Hells Angels. But the record does not support this claim. Rather, it was                                                                                                                                          

Leffel who volunteered information about the nature and activities of the club and its                                                                                                                                                   

importance to his identity.                                               Leffel volunteered that club membership confers an aura of                                                                                                      

intimidating toughness that engenders deference from the public. Leffel's attachment to                                                                                                                                                    

that aura of toughness potentially explained his assaultive reaction to Schurig's drunken                                                                                                                                

taunt that the owner of a three-wheel motorcycle must be less than manly.                                                                                                                                      

                                     We review a judge's decision to admit or exclude evidence under Rule 403                                                                                                                         

for abuse of discretion.16                                                                                                                                                                                

                                                                       We conclude that the trial judge did not abuse his discretion  


when he allowed the prosecutor to elicit testimony about the Hells Angels to show  



Moore's  potential  bias,                                                   and  to  explain  Leffel's  assaultive  reaction  to  Schurig's  



                                                                                                    We also conclude that any irrelevant or unfairly  

comment about the motorcycle. 


prejudicial testimony about the Hells Angels was volunteered by Leffel himself.  



                                     We AFFIRM the judgment of the superior court.  

          16       See Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010).  

          17       See Smith v. State, 431 P.2d 507, 508-09 (Alaska 1967) (allowing cross-examination   

into business relationship between two defense witnesses and the defendant).  See also Evans  

v. State, 550 P.2d 830, 836-37 & n.11 (Alaska 1976) (citing                                                                                                 Smith and other cases as support  

for the point that trial courts should liberally permit cross-examination on witness bias).  



                   See, e.g., United States v. LaFond, 783 F.3d 1216, 1222 (11th Cir. 2015) (approving  


introduction of evidence of defendant's gang membership to show motive and bias); United  


States v. Teran, 496 F.App'x 287, 292-93 (4th Cir. 2012);  United States v. Gordon, 496  


F.App'x 579, 582-83 (6th Cir. 2012);  United States v. Montgomery, 390 F.3d 1013, 1018  

(7th Cir. 2004);  United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997); United States v.  

Santiago, 46 F.3d 885, 889 (9th Cir. 1995).  

                                                                                                                -  11 -                                                                                                             2564

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