Opinion
Court of Appeals No. A-10624 Trial Court No. 3PA-09-204 CRNo. 5854
06-13-2012
KENNETH A. GOLDSBURY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Paul E. Malin, Law Office of Christine Schleuss, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Paul E. Malin, Law Office of Christine Schleuss, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
After a heated disagreement over a box of drywall mud, Kenneth A. Goldsbury discharged a round of bird shot through the door of his motel room at Marvin "Jimbo" Long. Long received only minor injuries. In a trial conducted by Superior Court Judge Kari Kristiansen, a jury convicted Goldsbury of attempted murder in the first degree and assault in the second degree for shooting Long, along with other charges. Judge Kristiansen sentenced Goldsbury to a composite sentence of twenty-six years' imprisonment with sixteen years suspended, leaving Goldsbury with a total of ten years to serve.
AS 11.41.100.
AS 11.41.210(a)(1).
On appeal, Goldsbury, who did not testify at his trial, argues that the prosecutor impermissibly commented on Goldsbury's failure to testify. Goldsbury concedes that he did not object to the prosecutor's argument, but argues that the comment on his failure to testify was plain error.
We conclude that the prosecutor's argument was improper. But we conclude that Goldsbury has not established plain error.
Goldsbury also argues that his convictions for attempted murder in the first degree and assault in the second degree should merge. The State concedes that Goldsbury is correct. We accept the State's concession and remand for resentencing.
Factual background
Marvin "Jimbo" Long and Kenneth A. Goldsbury lived one room apart at the Roadside Inn at Mile 49.5 of the Parks Highway. They did not get along. Apparently, they had an ongoing disagreement regarding a dozen boxes of drywall mud. Long was a drywaller by trade. He stored his drywall mud in the furnace room of the Roadside Inn. Goldsbury had taken some of Long's drywall mud and had not replaced it. Long wanted it replaced.
On February 2, 2009, this ongoing disagreement escalated considerably. Long and Goldsbury were in the bar at the Roadside Inn, drinking and watching the Super Bowl. After the game, Long and Goldsbury got into a heated argument about the drywall mud. Subsequently, Goldsbury left the bar. The bartender on the night in question testified that, before Goldsbury left the bar, he stated that he was "going to end this tonight."
Later, Long knocked on the door to Goldsbury's room. Long stated that he did so because, "I decided that he hadn't really said whether he was going to replace that mud the next day or what. So, I, like — poor judgment on my part — I went and knocked on the door to see if he was going to [replace the drywall mud the next day]." Long testified that he knocked on Goldsbury's door, but that he did not say anything to identify himself. Goldsbury said something that was unclear, but which sounded like, "Go away." Long testified that he asked Goldsbury what he said. Goldsbury shot a round of birdshot through the door — which was an inch-and-a-half thick, solid wood with a metal skin — hitting Long. Long then went back to his room and called 911. When he inspected "what kind of damage" he had received from the gunshot, he noticed he was bleeding.
At around 12:20 a.m., trooper dispatch received the call about a shooting at the Roadside Inn. Several troopers responded. When they arrived, they noticed that the door had been shot through.
Trooper Duane Leventry asked Goldsbury if he had shot through the door, and Goldsbury replied he had because Long was "beatin' on it and said he was gonna kill me." Goldsbury informed troopers that the shotgun was under his bed. He also told troopers that Long had threatened to kill him in the bar at the Roadside Inn earlier. When asked if he was trying to kill Long, Goldsbury replied, "I didn't want him comin' in the door. He said he was gonna kill me." He told troopers that Long had been "screwin'" with him for two years and that he thought he "needed to end this."
The troopers arrested Goldsbury. They radioed for medical assistance for Long. Long received medical treatment for his wound at the hospital. Long's wound was not serious.
The troopers searched Goldsbury's room and recovered a shotgun. Trooper Leventry testified that the powder burns on Goldsbury's door indicated that the shotgun was fired at close range. Trooper Leventry administered a portable breath test to Goldsbury which registered a .245 blood alcohol level. A later breath test administered at the Mat-Su Regional Medical Center registered .170 blood alcohol level.
At trial, Goldsbury's theory of the case was that he acted in self-defense when he shot through the door. Goldsbury did not testify at his trial, but he attempted to elicit testimony from Long to illustrate why he believed Long to be a threat. Long testified that he owned a gun. Long also testified that he had threatened to injure Goldsbury before because Goldsbury had threatened to beat him up. Long also testified that he had a master key which allowed him access to every room at the Roadside Inn, including Goldsbury's room. Long assumed Goldsbury knew that Long had the master key.
In her closing argument, the prosecutor discussed evidence showing that Goldsbury and Long had both been drinking and engaging in a dispute over the drywall mud. She argued that Goldsbury had not let the dispute go and had stated that "he was going to finish this tonight." The prosecutor then reviewed the evidence and the jury instructions. She argued that self-defense did not apply to the circumstances of this case.
In his argument to the jury, Goldsbury contended that he had acted in self-defense. His theory of self-defense was based on his past sometimes violent interactions with Long, his knowledge that Long owned a firearm, Long's statements to Goldsbury, and Goldsbury's knowledge that Long had a key to his room.
In rebuttal, the prosecutor argued that it was unreasonable for Goldsbury to shoot at an unarmed person through a locked door. She argued that there was no evidence that Long was armed or was threatening Goldsbury's life and contended that there was no reason to use deadly force in this situation.
The prosecutor then made the following statement on which Goldsbury's main claim of error turns:
[W]e heard all this talk about what was not done in the investigation. But the fact remains, the only people who know what happened that night are [Long] and the defendant. And [Long] testified, came in here and faced all you people, and told you what happened in this case.Goldsbury did not object to this argument.
At the conclusion of the case, the jury convicted Goldsbury on all charges.
Why we conclude the prosecutor's rebuttal argument was improper
In Griffin v. California, the United States Supreme Court held that the Fifth Amendment protects criminal defendants who have invoked their right not to testify from having prosecutors comment adversely on their failure to take the stand. This protection is a necessary corollary to the privilege against self-incrimination: "A defendant's refusal to testify in a criminal case itself, the most basic invocation of the privilege imaginable, cannot be penalized by use of that action as tending to prove the defendant's guilt in that trial."
380 U.S. 609 (1965).
Id. at 614-15.
1 McCormick on Evidence § 126, at 542 (Kenneth Broun ed., 6th ed. 2006).
Similarly, article I, section 9 of the Alaska Constitution protects criminal defendants from adverse arguments about their decision to not testify.
McCracken v. State, 431 P.2d 513, 517 (Alaska 1967).
In McCracken v. State, the Alaska Supreme Court ruled that a prosecutorial comment constitutes a Fifth Amendment violation if the "language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."
Id.
While this rule is easy to apply when the prosecutor's comments directly reference the defendant's decision not to testify, an indirect reference by the prosecutor to the defendant's decision not to testify is more troublesome. Commonly, a prosecutor may refer to the evidence at trial as "uncontradicted" or "unrebutted." There is substantial agreement that an indirect prosecutorial reference to the fact that the State's evidence is "uncontradicted" violates the Fifth Amendment if the defendant is the only person capable of contradicting the evidence. As explained by the Tenth Circuit: "Such remarks, if they 'concern matters that could have been explained only by the accused, ... give rise to an innuendo that the matters were not explained because [the defendant] did not testify' and, thus, amount to indirect comment on the defendant's failure to testify."
See, e.g., United States v. Hunt, 412 F. Supp. 2d 1277, 1287-88 (M.D. Ga. 2005) (finding that "case law overwhelmingly recognizes and supports th[e] proposition" that "[w]here the defendant himself (or his co-defendant) is the only person who can contradict or rebut the testimony of a Government witness, any assertion by the prosecutor that such testimony has not been contradicted or rebutted constitutes an indirect comment on the defendant's failure to testify in violation of the Fifth Amendment"). Hunt surveyed the federal circuits on this issue, citing United States v. Flannery, 451 F.2d 880, 881 (1st Cir. 1971) ("for the government to say, in summation to the jury, that certain of its evidence was 'uncontradicted,' when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment"); United States v. Lipton, 467 F.2d 1161, 1168 (2d Cir. 1972) (recognizing an exception to the general rule that the prosecutor may comment upon the defense's failure to contradict the government's evidence "where ... the defendant alone has the information to contradict the government's case"); United States v. Jennings, 527 F.2d 862, 871 (5th Cir. 1976) (noting that it is permissible to "point out that the testimony of witnesses is uncontradicted ... where someone other than the defendant could have offered contrary evidence"); Lent v. Wells, 861 F.2d 972, 976 (6th Cir. 1988) ("If evidence that the prosecutor labels as uncontradicted could only have been contradicted by the defendant's testimony, that label is much more objectionable."); United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996) ("A prosecutor's comment that the government's evidence on an issue is 'uncontradicted,' 'undenied,' 'unrebutted,' 'undisputed,' etc., will be a violation of the defendant's Fifth Amendment rights if the only person who could have contradicted, denied, rebutted or disputed the government's evidence was the defendant himself."); Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir. 1995) ("The prosecution may comment on the defense's failure to present evidence to contradict the [government's] case 'unless the defendant alone had the information to do so.'"); Leathers v. United States, 250 F.2d 159, 166 (9th Cir. 1957) ("[A]side from those special cases where it appears that the accused himself is the only one who could possibly contradict the Government's testimony, the prosecutor may properly call attention to the fact that the testimony of the Government witnesses has not been contradicted."); and United States v. Barton, 731 F.2d 669, 674 (10th Cir. 1984) ("[Where] remarks [by the prosecutor] concern matters that could have been explained only by the accused, the remarks give rise to an innuendo that the matters were not explained because [the defendant] did not testify."). See also J. Evans, Annotation, Comment or Argument by Court or Counsel that Prosecution Evidence is Uncontradicted as Amounting to Improper Reference to Accused's Failure to Testify, 14 A.L.R.3d 723 (1967) ("Where a trial judge or a prosecuting attorney remarks that evidence offered by the prosecution is uncontradicted, and where defendant is the only person who could or would have contradicted the evidence, it is generally held that the comment refers to defendant's failure to testify and is thus improper."); 1 McCormick on Evidence § 126, at 544 (Kenneth Broun ed., 6th ed. 2006) ("Generally, prosecutors may safely argue that the State's evidence, or particular parts of it, are 'uncontradicted.' If the state of the evidence is that the only possible contradictory testimony would be from the defendant, however, such argument constitutes an impermissible indirect comment on the defendant's failure to testify.").
Pickens v. Gibson, 206 F.3d 988, 999 (10th Cir. 2000) (quoting United States v. Barton, 731 F.2d 669, 674 (10th Cir. 1984)).
The prosecutor's argument in this case was clearly an improper statement because she emphasized that only two people "know what happened that night, ... [Long] and the defendant." And she emphasized that Long "testified, came in here and faced all you people, and told you what happened in this case." The obvious implication was that Goldsbury, the only other person who could tell the jury what happened, was more likely guilty because he had not testified.
Why we conclude that the prosecutor's statement did not constitute plain error
Goldsbury did not raise any objection or ask for any relief in the trial court when the prosecutor made this remark. He must therefore establish plain error. In order to show plain error, Goldsbury must establish that the trial court erred and that the error (1) was obvious; (2) was not the result of intelligent waiver or a tactical decision not to object; (3) affected substantial rights; and (4) was prejudicial.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
It is understandable that Goldsbury may not have wanted to object during the prosecutor's rebuttal argument. Such an objection might have served to emphasize the prosecutor's improper argument. But Goldsbury could certainly have objected outside the presence of the jury. Goldsbury could have asked the court for additional instructions or other relief to reduce the possible prejudice from the prosecutor's improper argument.
Had Goldsbury made an objection in the trial court, Judge Kristiansen, who had conducted the trial and had actually heard all the evidence, would have been in a much better position than we are to determine the possible prejudice from the prosecutor's argument.
See Allen v. State, 51 P.3d 949, 955 (Alaska App. 2002); Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Yet Goldsbury never asked for any relief. Had Goldsbury asked for relief, Judge Kristiansen could have determined whether additional instructions or some other action was necessary. In particular, if Goldsbury thought there was a substantial risk of prejudice from the prosecutor's argument, he could have moved for a mistrial. Had Goldsbury moved for a mistrial, he could have made a record as to what possible prejudice might have accrued from the prosecutor's argument. And Judge Kristiansen could have evaluated whether to grant a mistrial.
In Owens v. State,the Alaska Supreme Court emphasized that if an attorney fails to object so that the trial judge has no opportunity to consider whether a cautionary instruction to the jury would be sufficient to cure any prejudice or to determine whether it was necessary to declare a mistrial, the attorney has forfeited the issue for appeal. The court pointed out that to allow an attorney to withhold an objection, only to raise the matter later, would allow the attorney to "take a gambler's risk and complain only if the cards fell the wrong way." We have consistently applied this principle in other cases.
613 P.2d 259 (Alaska 1980).
Id. at 261.
Id. (quoting Mares v. United States, 383 F.2d 805, 808 (10th Cir. 1967), opinion after remand, 409 F.2d 1083 (10th Cir. 1968)).
See, e.g., Lampley v. Municipality of Anchorage, 159 P.3d 515, 527 (Alaska App. 2007); Edwards v. State, 158 P.3d 847, 853 (Alaska App. 2007); Turpin v. State, 890 P.2d 1128, 1130 (Alaska App. 1995).
Further, we note that in her instructions to the jury, Judge Kristiansen emphasized that Goldsbury had an absolute right not to testify and that the jury was not to consider the fact that he did not testify:
A defendant has an absolute right not to testify. The fact that the defendant did not testify cannot be considered by you in any way. Do not speculate about why the defendant did not testify. Do not even discuss it in your deliberations. It is up to the State to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is innocent.
In addition, Judge Kristiansen also instructed the jury that the arguments of counsel were not evidence, that the jury was to decide the case based upon the evidence presented at trial and the law as instructed by the court. She informed the jury that "arguments of counsel, if they depart from the facts or from the law, should be disregarded." The parties were aware before they began their final arguments that Judge Kristiansen was going to give these instructions.
Because Judge Kristiansen gave these ameliorative instructions to the jury, and because, at this point, the only remedy this Court can give to Goldsbury is to reverse his convictions and order a new trial, the issue of whether the prosecutor's improper remark rose to the level of "plain error" really boils down to the following question: If Goldsbury had objected to the prosecutor's comment, would any reasonable judge have had to declare a mistrial? Or might some judges reasonably have concluded that the problem created by the prosecutor's improper remark could be adequately handled by issuing curative instructions such as the ones that Goldsbury's jury received?
We believe that at least some reasonable judges could have concluded that the problem was not egregious enough to warrant a mistrial, and that the problem could be handled through curative instructions. We therefore conclude that, although the prosecutor's argument to the jury was improper, Goldsbury has not established plain error.
Goldsbury's conviction for attempted murder in the first degree must merge with his conviction for assault in the second degree
Goldsbury points out that his convictions for attempted murder in the first degree and assault in the second degree were based upon the same act of shooting Long with the shotgun, causing Long's injury. He argues that convicting him of both offenses violates his double jeopardy rights under the United States and Alaska Constitutions. The State concedes error, relying on Starkweather v. State.
244 P.3d 522, 528-33 (Alaska App. 2010).
When the State confesses error, we are to independently review the State's concession to ensure that it is "supported by the record on appeal and has legal foundation." We have reviewed the State's concession, and it is supported by our Starkweather decision. We accordingly conclude that the superior court is required to merge the two convictions. Because the superior court imposed a portion of the sentence for the assault in the second degree conviction consecutively to the sentence for the assault in the first degree conviction, we must remand the case for the superior court to reconsider Goldsbury's sentence.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
See Starkweather, 244 P.3d at 528-33.
See Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
Goldsbury's sentencing arguments
Goldsbury raises arguments concerning his sentence, including an argument that his sentence is excessive. But since we must remand the case for resentencing, we will not address most of the sentencing issues. We will, however, address Goldsbury's argument that Judge Kristiansen erred in rejecting his proposed mitigating factor that his attempted murder in the first degree was among the least serious conduct included in the definition of the offense. Attempted murder in the first degree is an unclassified felony. Therefore, it is not governed by presumptive sentencing. And the aggravators and mitigators codified in AS 12.55.155(c) and (d) do not apply, although they can be used "as points of reference when the parties argue how a particular defendant's crime should be viewed in comparison to a typical [offense]." But any challenges to aggravating and mitigating factors which do not apply at sentencing are moot. We accordingly conclude that Goldsbury's challenge to Judge Kristiansen's findings rejecting Goldsbury's proposed mitigating factor is moot.
AS 12.55.155(d)(9).
AS 12.55.125(b).
See, e.g., Hinson v. State, 199 P.3d 1166, 1172 (Alaska App. 2008).
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002).
Id. at 685.
Conclusion
The convictions are AFFIRMED. The case is REMANDED for resentencing. Resentencing shall take place within sixty days of the issuance of this decision, and the superior court shall forward its findings to this court. Following resentencing, if Goldsbury wishes to pursue his sentence appeal, he shall have thirty days after he is resentenced to file a memorandum with this court addressing the sentence the superior court imposes. If Goldsbury files a memorandum arguing that his sentence is excessive, the State shall have thirty days after Goldsbury files his memorandum to file a memorandum in response. We retain jurisdiction.