You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
State v. Gilbert (10/11/96), 925 P 2d 1324
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-7020
)
Petitioner, ) Court of Appeals
) No. A-4150
)
v. ) Trial Court No.
) 3KN-88-438 Cr.
)
MARTIN L. GILBERT, )
) O P I N I O N
)
Respondent. ) [Op. 4412 - October 11, 1996]
______________________________)
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Kenai, Charles K. Cranston,
Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Petitioner. George B. Davenport, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Respondent.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.
EASTAUGH, Justice.I. INTRODUCTION
We consider here whether the trial court prejudicially
erred in allowing a prosecutorial comment on a criminal defendant's
failure to call a witness at trial. The court of appeals held that
the comment was both impermissible and prejudicial, and reversed
the conviction. We reverse, and reinstate the judgment of the
trial court.
II. FACTS AND PROCEEDINGS
B.M. was beaten and raped early April 13, 1988, in a
snowy lot in Seward. Martin Gilbert was charged with the crimes.
Gilbert was then a member of the crew of the F/V Valoris. He was
questioned by police before and after his arrest. He did not
mention during either interview the existence of any witness who
could possibly corroborate the time he returned to the boat.
Gilbert testified at trial in his own defense. At trial,
he admitted he had sexual intercourse with B.M. in the snowy lot,
but claimed it was consensual. He testified that after
intercourse, he left the victim "passed out"in the snow and
returned to the Valoris.
Gilbert's defense was that someone other than he,
possibly a man in "a dark coat"seen by a passerby, had beaten and
raped B.M. after Gilbert had consensual sex with her, left her in
the snowy lot, and walked back to the Valoris. In support of this
theory Gilbert called two witnesses, including Jeff Jackson, to
testify about two men seen nearby close to the time of the
assaults. Gilbert brought Jackson back from Arkansas to testify.
Gilbert testified that the distance from the lot to the Valoris was
"under a mile."
On direct examination, defense counsel asked Gilbert:
"When . . . you got back to your boat was there anything
happening?" Gilbert then testified on direct examination at trial
that he had seen a crewmate when he returned to the boat at "five
twenty-something"the morning of the assaults:
Yeah, Bob Olson, one of our deckhands that
we'd hired in Seattle, was cooking breakfast
or cooking, I don't know if he just got back
to the boat or not, but he was awake. And I
remember looking at the clock. It was five
twenty-something because I was worried whether
or not I was getting back before Lloyd got up
because he's a 69 year old Norwegian and he's
really strict about getting -- he gets up at
6:00 o'clock every morning, no matter what.
And I wanted to -- I knew if I could beat him
into my bunk that I could get at least a
couple hours sleep.
Gilbert testified on cross-examination that the clock he referred
to was "right in"the galley. The prosecutor then questioned
Gilbert about whether he had mentioned to police anyone who was up
and cooking who could perhaps say when Gilbert returned to the
boat. Gilbert admitted that he had not. No further reference was
made to Olson until argument.
In his initial closing argument, the prosecutor commented
on Gilbert's failure to mention Olson to the police. The
prosecutor argued:
Do you think it's just coincidence that he
just happened to look at the bar clock and
just happened to note the clock on the ship
supposedly when he came in and it just
happened to say 5:20 something, isn't that
just coincidence? Did you hear him say
anything to Lt. Earl about, you know, there's
a guy on the ship, Bob Olson, who was cooking
breakfast when I came in. He'll tell you what
time I came in. When does Bob Olson first
show up, Monday, yesterday, here on the
witness stand? You didn't hear any mention of
that to Lt. Earl. Is that just coincidence?
In his closing argument, Gilbert's counsel argued that
the State was better able than the defendant to bring witnesses to
court:
It's not [the victim] versus Martin Gilbert.
It is the state of Alaska versus Martin
Gilbert. It is the state, their resources,
its wealth, coming to bear upon one private
individual, in this case it happens to be a
commercial fisherman. . . . [T]hey have a
Seward police department at their disposal to
investigate, to collect evidence. They've got
the power and the wealth to bring FBI agents
from Washington, to fly in other witnesses.
Gilbert's counsel also reminded the jury that
the prosecution has the burden of proving to
you or disproving to you all reasonable doubt.
. . . "[A] reasonable doubt may arise not only
from the evidence produced,"and I think this
is going to be important in this case this
next phrase, "but also from a lack of
evidence. Since the burden is upon the
prosecution to prove every essential element
of a crime charged beyond a reasonable doubt,
a defendant has the right to rely upon the
failure of prosecution to establish such
proof."
Gilbert's counsel was quoting Jury Instruction 2(b).
Finally, Gilbert's counsel referred to Olson's presence
in the galley at the time Gilbert allegedly returned to the boat.
In tracing Gilbert's steps, his counsel stated:
After Martin Gilbert leaves and sometime
probably while he was walking back to his
boat, because he arrived there at 5:20
something, he had reason to look, [the
prosecutor] kept on making a big deal about
that. He wanted -- he knew he was coming home
late. He wanted to beat his skipper -- he
wanted to get into bed before his skipper got
up. There was a guy there cooking breakfast.
The clock is in a natural area, he looks at
it, it's 5:20 something. He doesn't know
exactly. He knows he's beaten the skipper
Lloyd up, jumps into bed. While this is going
on, whether [the victim] comes to and starts
staggering her way home or whether one or both
of these individuals come along, but they get
her to a different area . . . and they
sexually assault her and physically.
In his rebuttal argument, the prosecutor responded to
these arguments:
[Defense counsel] said the state had the power
to produce all these witnesses and do things
but they had to do it because the State wasn't
and the State didn't -- well, speaking of
witnesses, let me ask you a question; why do
you think the defense went to all the effort
of bringing Jeff Jackson back from Arkansas
but they didn't bother to bring you Bob Olson,
this quote Bob Olson that we heard about on
Monday, the one man that presumably can give
him his alibi? The one man that supposedly is
right there when he comes in at 5:20 something
in the morning. Ask yourselves and think
about that when you listen to what -- and
reflect on what [defense counsel] is telling
you.
Defense counsel immediately objected:
Your Honor, I would object to this line of
argument. The instruction says the defense
has the burden of producing no witnesses. And
there are other considerations as to why Mr.
Olson may or may not have been here. I think
it's improper for him to suggest that he has
the duty of calling those witnesses.
The court overruled the objection. The prosecutor then
argued to the jury:
The State's not saying that Mr. Gilbert had
any burden of proving anything. I'm just
saying if they went to all the trouble of
bringing a man here from Arkansas who really
doesn't know anything about this case, why do
you suppose they didn't go to the effort of
bringing somebody here who allegedly saw him
at 5:20 in the morning? Think about that.
I'll tell you why. . . . You've heard of the
phrase "red herring." That's the job of the
defense, to throw out red herrings to distract
you.[ (EN1)]
The jury convicted Gilbert of sexual assault in the first
degree and assault in the first degree, in violation of AS
11.41.410(a)(1) and AS 11.41.200(a)(2), respectively. Gilbert
appealed his conviction, claiming that "[t]he trial court erred
when it failed to strike the District Attorney's comments to the
jury concerning Mr. Gilbert's failure to produce an alibi witness
during closing argument, thus allowing the District Attorney to
engage in prosecutorial misconduct." The court of appeals reversed
Gilbert's conviction, holding that the trial court erred in
overruling Gilbert's objection to the prosecutor's argument and
that the error was prejudicial. Gilbert v. State, 891 P.2d 228,
231 (Alaska App. 1995).
We granted the State's petition for hearing under Alaska
Rule of Appellate Procedure 304(a) and (c).
III. DISCUSSION
A. Prosecutorial Comment on Defendant's Failure to Call a
Witness
The parties have extensively discussed the propriety of
the prosecutor's comments concerning Gilbert's failure to call a
witness, and the inferences that can reasonably be drawn from those
comments. (EN2) This is a question of law, which we review de
novo. See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).
In McCurry v. State, 538 P.2d 100, 104 (Alaska 1975)
(citing Gass v. United States, 416 F.2d 767 (D.C. Cir. 1969), and
United States v. Blakemore, 489 F.2d 193 (6th Cir. 1973)),overruled
on other grounds by Howe v. State, 589 P.2d 421 (Alaska 1979), we
noted the "usual rule"that a prosecutorial comment on a
defendant's failure to call a witness is permitted only when "the
witness is peculiarly within the control of the defendant and that
witness's testimony can reasonably be expected to elucidate matters
already at issue."(EN3) However, in McCurry, we did not reach the
question of when such comments are proper, because defense counsel
failed to object to the prosecutor's statement. Id. at 104.
The question of when a prosecutor may comment on a
defendant's failure to produce a witness arose again in Lewis v.
State, 862 P.2d 181 (Alaska App. 1993), (EN4) where the court of
appeals noted that "[n]o Alaska decision has squarely determined
the circumstances under which negative comment on a defendant's
failure to call witnesses is impermissible."(EN5) Id. at 190.
The court of appeals held that under the facts of that case, it was
questionable whether the missing witnesses could "naturally have
been expected to be favorable witnesses"for the defendant. Id.
Accordingly, the court "assume[d] that comment on Lewis' failure to
call [the witnesses] would be impermissible." Id. The court
nevertheless concluded that any impropriety did not warrant a
mistrial. The court held that "[s]ince the prosecutor prefaced his
comment by acknowledging that the state, rather than Lewis, bore
the burden of proof, it seems unlikely that the jury might have
interpreted the comment to suggest that the burden be shifted to
the defendant." Id.
In this case, the court of appeals held that the
prosecutor's comments "could not be deemed proper under either the
McCurry approach or the more flexible approach described in Lewis."
Gilbert, 891 P.2d at 231. The court stated that "Olson could most
naturally have been expected to be neutral -- a witness who, even
assuming he was peculiarly available to Gilbert, would likely have
had little light to shed on the issues in dispute at Gilbert's
trial."(EN6) Id. The court stated that "Gilbert did not testify,
argue, or imply that Olson, for his part, would have had any
occasion to remember the event; indeed, Gilbert's testimony did not
even state or suggest that Olson had noticed Gilbert board the
Valoris." Id. Therefore, the court of appeals held that the
comments made by the prosecutor concerning Gilbert's failure to
call Olson as a witness were impermissible. Id.
We find it unnecessary to determine whether the court of
appeals's conclusion that the trial court erred in overruling
Gilbert's objection was erroneous, because if there was any such
error, it was harmless. (EN7) The prosecutor's comments did not
improperly shift the burden of proof to the defendant. (EN8) The
asserted error is not of constitutional dimension. In deciding
whether an error was harmless, we determine whether the error had
a substantial effect on the jury's verdict. Love v. State, 457
P.2d 622, 631 (Alaska 1969) (holding that a non-constitutional
evidentiary error in a criminal trial is only harmless if the error
did not have a substantial effect on the jury's verdict).
In this case, the court of appeals found that "[t]he
prosecution's argument effectively called on the jury to speculate
on matters beyond the scope of the evidence and the inferences
fairly arising from that evidence." Gilbert, 891 P.2d at 231.
That court held that the prosecutor's unfair argument "yielded
substantial prejudice." Id. "[U]nable to say that the impropriety
did not have a substantial effect on the jury's verdict,"the court
reversed the conviction. Id. (citing Love, 457 P.2d at 631-32).
We disagree. In this case, it is unlikely that the
prosecutor's comments regarding the defendant's failure to call a
witness had a substantial effect on the jury's verdict.
At trial, Gilbert presented evidence in support of his
theory that someone else committed the assaults after he returned
to the boat. Although Gilbert identified Olson as potentially the
only person who could have corroborated the time of Gilbert's
return to the boat, Gilbert called two witnesses who testified
concerning the presence of two seemingly suspicious men near the
scene of the crimes. In support of his defense Gilbert also
presented expert testimony from a toxicologist at the Department of
Public Safety crime laboratory.
The State, in turn, presented a surfeit of evidence
against Gilbert. The victim herself testified that Gilbert raped
her. One witness saw Gilbert with B.M. not long before the
assaults. The police testified that they found signs of a struggle
at the scene, and only two sets of tracks in the snow. These
tracks were a female's imprint, and a boot track that appeared to
be consistent with the boots Gilbert was wearing that morning. The
tracks make untenable Gilbert's theory that the real perpetrator
came upon B.M. and assaulted her in the snowy lot after Gilbert
left her and returned to the boat. The jury also heard a tape of
Gilbert's initial interview with the police, and testimony from
Federal Bureau of Investigation experts who testified that body
fluid and hair and fiber samples from the crime scene were
consistent with samples taken from Gilbert.
In view of the strength of the evidence presented, we
hold that the prosecution's comments on Gilbert's failure to call
Olson as a witness did not have a substantial effect on the jury's
verdict.
Furthermore, the jury instructions overcame any
potentially impermissible effect the prosecutor's comments may have
had on the jury. Instruction 2(b) in part informed the jury:
The burden [of] proving the defendant guilty
beyond a reasonable doubt always rests upon
the prosecution. This burden never shifts
throughout the trial, for the law never
imposes upon a defendant in a criminal case
the burden or duty of calling any witnesses or
producing any evidence. . . . [A] reasonable
doubt may arise not only from the evidence
produced, but also from a lack of evidence.
Instruction 27 in part informed the jury:
Every person who testifies under oath is a
witness. You, as jurors, are the sole judges
of the credibility of the witnesses and the
weight their testimony deserves. In deciding
whether to believe a witness or how much
weight to give a witness's testimony, you
should consider anything that reasonably helps
you to judge the testimony. Among the things
you should consider are the following:
. . . .
10. The consistency of the witness's
testimony and whether it is supported or
contradicted by other evidence.
Instruction 29 told the jury:
In this case the defendant testified in his
own behalf. You should subject the
defendant's testimony to the same scrutiny as
the testimony of any other witness.
These instructions reinforced the court's direction to
the jury that the State bore the burden of proof, and mitigated any
potential prejudice of the prosecutor's comments. Consequently, we
find that the court of appeals erred in concluding that the
prosecutor's comments had a substantial effect on the jury's
verdict. Any error, if it had occurred, would have been harmless.
IV. CONCLUSION
We REVERSE the decision of the court of appeals, and hold
that any error regarding the prosecutor's comments about the
defendant's failure to call a witness was harmless. Accordingly,
we reinstate the judgment of the trial court. Gilbert's conviction
stands.
ENDNOTES:
1. We note that the prosecutor mischaracterized Gilbert's
testimony at this point by stating that Olson "saw"Gilbert.
Gilbert, however, did not object to this mischaracterization, and
consequently failed to preserve any question about its propriety or
accuracy.
2. We assume for purposes of this opinion that Gilbert's
objection to the prosecutor's comments was properly preserved.
When Gilbert's counsel initially objected to the prosecutor's
comments, the court responded by stating that "I'm going to
overrule the argument at this point. I don't know how far it's
going." The prosecution then responded that "[t]he State's not
saying Mr. Gilbert had any burden of proving anything,"and
continued his argument. Gilbert did not object further, move for
a mistrial, or request a curative instruction. Arguably, these
actions by the court and opposing counsel were intended to satisfy
Gilbert's counsel's objection; if so, any further objection may
have been waived. See Hilburn v. State, 765 P.2d 1382, 1388-89
(Alaska App. 1988) (holding that when defense counsel objected to
a prosecutor's statement in closing argument, but did not request
additional relief or move for a mistrial after the court responded
to the objection by stating that "[t]he defense is not required to
establish anything,"the defendant's claim that the court's actions
were inadequate to cure any prejudice were not properly preserved).
We do not agree with the conclusion of the court of appeals
that "[g]iven the court's decision to overrule Gilbert's initial
objection, . . . Gilbert's counsel could properly have concluded
that further objection would be pointless and might only result in
drawing additional attention to the improper argument." Gilbert v.
State, 891 P.2d 228, 231 n.1 (Alaska App. 1995). Certainly any
motion for mistrial or for a written instruction to accompany the
other jury instructions could have been made outside the jury's
presence. Assuming the best time for an immediate cautionary
instruction was during argument itself, however, nothing said by
the trial judge indicated an unwillingness to limit the prosecutor
to fair comment, and the jury instructions, which counsel had
already discussed with the court, contained Instruction No. 2(b).
There is consequently no reason to think the trial court, if asked
to do so, would have declined to give an immediate cautionary
instruction that would have incorporated or reemphasized this
language from that instruction: "[T]he law never imposes upon a
defendant in a criminal case the burden or duty of calling any
witnesses or producing any evidence."
3. According to McCormick on Evidence,
[t]he cases fall into two groups. In the
first, an adverse inference may be drawn
against a party for failure to produce a
witness reasonably assumed to be favorably
disposed to the party. In the second, the
inference may be drawn against a party who has
exclusive control over a material witness but
fails to produce him or her, without regard to
any possible favorable disposition of the
witness toward the party.
2 Kenneth S. Broun et al., McCormick on Evidence sec. 264, at 185
(John W. Strong ed., 4th ed. 1992) (footnotes omitted).
4. See also Clum v. State, 893 P.2d 1277, 1280 (Alaska App. 1995)
(holding that under either the traditional approach or the more
liberal approach, the prosecutor's argument was impermissible).
5. The court of appeals also commented that "[t]he 'usual rule'
noted in McCurry has generated considerable disagreement." Lewis
v. State, 862 P.2d 181, 190 (Alaska App. 1993). The court went on
to examine current approaches to the "usual rule." The court noted
that the "rule"was criticized by Wigmore, "observing that even in
cases where a witness is equally available to both parties, 'the
more logical view is that the failure to produce is open to an
inference against both parties, the particular strength of the
inference depending on the circumstances.'" Id. (quoting 2 John H.
Wigmore, Evidence sec. 288 (Chadburn rev. 1979) and citing United
States v. Beekman, 155 F.2d 580, 584 (2d Cir. 1946)). Despite this
criticism, some jurisdictions continue to apply the traditional
version of the rule. Id. (citing People v. Paylor, 511 N.E.2d 370,
371 (N.Y. 1987)). The court also found that other jurisdictions,
"in keeping with the spirit of Wigmore's criticism, have relaxed
the requirement that a witness be peculiarly within the control of
the defendant and have allowed comment on the failure to call any
available witness whose testimony 'would naturally be expected to
be favorable' to the defendant." Id. (citing People v. Ford, 754
P.2d 168, 178 (Cal. 1988) (en banc); Wheatley v. State, 465 A.2d
1110, 1111 (Del. 1983); State v. Moore, 620 S.W.2d 370, 373 (Mo.
1981) (en banc)). However, some other jurisdictions endorse a very
strict application of the "usual rule." Id. (citing Dent v. United
States, 404 A.2d 165, 169-70 (D.C. App. 1979); Commonwealth v.
Niziolek, 404 N.E.2d 643, 647 (Mass. 1980)). At least one state
"has forbidden comment under all circumstances." Id. (citing State
v. Brewer, 505 A.2d 774, 777 (Me. 1985)).
6. The court of appeals concluded that Olson's testimony would
not have been helpful. Gilbert, 891 P.2d at 231. We disagree.
Even if Olson could not testify that he saw Gilbert's return, it
was logical to assume that Olson could testify that at 5:20 he was
in the boat's galley, cooking breakfast. That testimony would
corroborate Gilbert's account of what he observed and the time of
his return to the boat.
7. We note, however, that such comments by the prosecution might
well be unfair under other circumstances, and that they may
gratuitously jeopardize otherwise valid convictions.
8. We find unpersuasive Gilbert's argument that the prosecutor's
comments in effect shifted the burden of proof from the State to
the defendant. In his final comment, the prosecutor prefaced his
remarks by stating that "[t]he State's not saying that Mr. Gilbert
had any burden of proving anything . . . ." Gilbert's counsel,
quoting Jury Instruction 2(b), had previously reminded the jury
that
the prosecution has the burden of proving to
you or disproving to you all reasonable doubt.
. . . "[A] reasonable doubt may arise not only
from the evidence produced,"and I think this
is going to be important in this case this
next phrase, "but also from a lack of
evidence. Since the burden is upon the
prosecution to prove every essential element
of a crime charged beyond a reasonable doubt,
a defendant has the right to rely upon the
failure of prosecution to establish such
proof."
These reminders, along with the court's jury instructions, were
sufficient to ensure that the burden of proof did not shift to the
defendant.
]]>
