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noting criticism by other courts of attempts to define reasonable doubt in terms of the standard that ordinary people would use in making decisions in their important affairs, including the use of analogies like buying a house
Summary of this case from Mati v. StateOpinion
Court of Appeals No. A-9738.
October 15, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge, Trial Court No. 3KN-04-1728 CR.
Marjorie Allard, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Brian K. Cooper was convicted by a jury of sexual assault in the first degree, sexual abuse of a minor in the second degree, and two counts of sexual abuse of a minor in the third degree. On appeal Cooper argues that, although he did not object to the prosecutor's final argument, he is entitled to a new trial because the prosecutor's argument constituted plain error. We affirm.
AS 11.41.410 (a)(1).
AS 11.41.436 (a)(1).
Former AS 11.41.438 (a)(1) (2002).
Cooper, age nineteen, was accused of sexually assaulting T.A., a thirteen-year-old girl. T.A. testified to the sexual assault. Cooper did not testify, but argued that T.A.'s account of the alleged assault was not credible. The jury acquitted Cooper of the two counts of sexual abuse of a minor that alleged he had penetrated T.A.'s vagina and anus with his penis. But the jury convicted Cooper of the counts of sexual assault in the first degree and sexual abuse of a minor in the second degree that alleged digital penetration. The jury also convicted Cooper of two counts of sexual abuse of a minor in the third degree for having "sexual contact" with T.A.
Cooper argues that the prosecutor's final rebuttal argument to the jury was improper and unfairly prejudicial. But Cooper never objected to the argument. He therefore must establish plain error. Cooper recognizes the high barrier he faces to establish plain error. In Potts v. State, we stated that "a plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
712 P.2d 385 (Alaska App. 1985).
Id. at 390.
Cooper first argues that the prosecutor, in her argument, diminished the heavy evidentiary burden that the State must carry to secure a conviction, proof beyond a reasonable doubt, by analogizing the decision which the jury had to make to a decision such as buying a house. Cooper cites a number of cases from other jurisdictions to support his argument that it is improper to instruct the jury on reasonable doubt using examples like buying a house.
For instance, California has a long history of criticizing the use of analogies between the beyond a reasonable doubt standard and the standard that jurors would apply in deciding the important affairs of their own lives. In People v. Brannon, decided in 1873, the trial judge below had instructed the jury that it was their duty to convict if they were "satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life." The Supreme Court of California found that this instruction constituted error and reversed the conviction. The court stated that "[t]he judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence." California has continued to follow Brannon. In 1995, in People v. Nguyen, during closing arguments the prosecutor compared the reasonable doubt standard to decisions jurors make in their lives such as whether to get married or to change lanes while driving. The court "strongly disapproved[d]" of the prosecutor's statements because they "trivialize[d] the reasonable doubt standard." But the court held that, because the defendant had not objected, the issue had been waived for appeal. The court also concluded that the error was harmless because the jury was properly instructed on the reasonable doubt standard by the court. In 2004, in People v. Johnson, the trial judge below had used examples of taking a vacation or getting on an airplane in describing the concept of beyond a reasonable doubt. Relying on Brannon, the court concluded that "the trial court's attempt to explain reasonable doubt had the effect of lowering the prosecution's burden of proof." Although the defendant had not objected to the trial court's explanation, the appellate court found plain error and reversed.
47 Cal. 96 (Cal. 1873).
Id. at 97.
Id.
Id.
46 Cal. Rptr. 2d 840 (Cal.App. 1995).
Id. at 844.
Id. at 845.
Id.
Id.
9 Cal. Rptr. 3d 781 (Cal.App. 2004).
Id. at 782-83.
Id. at 783.
Id. at 784.
Courts in other jurisdictions have also criticized attempts to define reasonable doubt in terms of the standard that ordinary people would apply in making decisions about their important affairs, as well as the use of examples such as making an investment or buying a house. However, courts have generally reversed convictions only when the judge — not the prosecutor — improperly instructed the jury or when the prosecutor's comments were upheld over objection. Plain error has been found only where the judge improperly instructed the jury by using a type of analogy that had been previously criticized in that jurisdiction.
See, e.g., United States v. Jaramillo-Suarez, 950 F.2d 1378, 1386 (9th Cir. 1991) (noting that "the most important decisions in life . . . may involve a heavy element of uncertainty and risk-taking and are wholly unlike the decisions jurors ought to make in criminal cases" (quoting Com mentary to Ninth Circuit M odel Jury Instruction No. 3.03)); see also Victor v. Nebraska, 511 U.S. 1, 24, 114 S. Ct. 1239, 1252, 127 L. Ed. 2d 583 (1994) (Ginsburg, J., concurring in part and concurring in the judgment) (criticizing the use of analogies to decisions people make in their most important affairs) and id. at 34, 114 S. Ct. at 1257 (Blackmun Souter, JJ., concurring in part and dissenting in part) (agreeing with Justice Ginsburg's criticism of analogies to important affairs in a juror's life); Commonwealth v. Garcia, 399 N.E. 2d 460, 472 (Mass. 1980) (holding that the use of specific examples like buying a house "`trivializes' the standard of proof in the direction of the `preponderance of the evidence' standard"); Holmes v. State, 972 P.2d 337, 343 (Nev. 1998) (stating that "prosecutorial commentary analogizing reasonable doubt with major life decisions such as buying a house or changing jobs is improper because these decisions involve elements of uncertainty and risk-taking and are wholly unlike the kinds of decisions that jurors must make in criminal trials").
See Joyner-Pitts v. State, 647 A.2d 116 (MD. Spec. App. 1994) (holding judge's commentary on reasonable doubt was reversible error); see also Wills v. State, 620 A.2d 295 (Md. 1993) (holding judge's instructions erroneous); Commonwealth v. Rembiszewski, 461 N.E.2d 201 (Mass. 1984) (same); Commonwealth v. Ferreiera, 364 N.E.2d 1264 (Mass. 1977) (same).
Compare Nguyen, 46 Cal. Rptr. 2d 840 (holding that defendant's objection to prosecutor's comments about reasonable doubt standard were waived because not raised at trial) with Q uillen v. State, 929 P.2d 893 (Nev. 1996) (considering defendant's argument that prosecutor's comm ents were improper where defendant apparently made a timely objection) and Holmes, 972 P.2d 337 (holding that prosecutor's comments in connection with erroneous jury instruction was reversible error where defendant apparently made a timely objection).
See Johnson, 9 Cal. Rptr. 3d at 783; Ferreira, 364 N.E.2d at 1272-73; see also Tillman v. Cook, 855 P.2d 211, 230 (Utah 1993) (Stewart, J., dissenting).
There is no prior authority in Alaska criticizing the use of analogies to important affairs. We observe that Cooper's attorney also discussed reasonable doubt in terms of evidence the jury would act on "without hesitation in [their] important affairs." Ultimately, Cooper's attorney suggested that the jury should analogize the decision the jury had to make to a decision about making an investment.
Judge Brown instructed the jury on reasonable doubt by using Alaska Criminal Pattern Jury Instruction 1.06. That instruction (with Judge Brown's addition marked in brackets) states:
It is not required that the prosecution prove guilt beyond all possible doubt, for it is rarely possible to prove anything to an absolute certainty. Rather, the test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense. Proof beyond a reasonable doubt must be proof of such a convincing character that, after [careful] consideration, you would be willing to rely and act upon it without hesitation in your important affairs.
Alaska Criminal Pattern Jury Instruction 1.06 (1999 Rev.).
It appears that both counsel were trying to flesh out for the jury what their "important affairs" might be. The prosecutor talked about buying a house. Cooper's attorney talked about making an investment.
As is illustrated by the arguments of both Cooper's counsel and the prosecutor, argument based upon examples of what those important affairs might be is not uncommon in Alaska. Because Cooper did not object to the prosecutor's argument, he must establish plain error — that is, an error that was "so obvious that it must have been apparent to a competent judge and a competent lawyer even without objection" and "so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice." Because there is no prior authority in Alaska criticizing this kind of argument, there is no basis for us to conclude that it would have been apparent to any competent judge or attorney that the prosecutor's argument was obviously improper.
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
As we have previously pointed out, Judge Brown gave the Alaska Criminal Pattern Jury Instruction on reasonable doubt. It defines reasonable doubt in terms of "proof of such a convincing nature that, after consideration, you would be willing to rely and act upon it without hesitation in your important affairs." Cooper has not attacked that instruction on appeal. In fact, this same jury instruction was challenged in Hilbish v. State and we noted that it "appear[ed] to be a correct statement of the law" and declined to hold that it was plain error. Furthermore, besides instructing the jury on reasonable doubt according to the pattern jury instruction, Judge Brown told the jury that if the arguments of counsel departed from the facts or from the law, those arguments should be disregarded. He told the jury that his instructions were the law the jury was to apply. Because Judge Brown correctly instructed the jury on reasonable doubt, we find that the prosecutor's remarks were not "so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice." We therefore do not find plain error.
Alaska Criminal Pattern Jury Instruction 1.06 (1999 Rev.).
891 P.2d 841 (Alaska App. 1995).
Id. at 850-51 (citing Davenport v. State, 519 P.2d 452, 456 (Alaska 1974)).
Potts, 712 P.2d at 390.
Toward the end of the prosecutor's argument, she suggested that the evidence established that T.A.
was a victim of sexual assault and sexual abuse that day. But I'm here to suggest to you that you look past that label when people call her a victim. Today, you get to tell the world that she is, in fact, a survivor. That she survived this horror, this trauma, this very sad episode in her life. An episode that made her sad then and it makes her sad now. An episode that would be upsetting and disruptive and that she is a survivor. That she is somebody that has gotten past being a victim. And that, as pertains to this case, it is proved beyond a reasonable doubt that Brian Cooper is the person that sexually penetrated her.
The part of the argument where the prosecutor states: "Today you get to tell the world that she is, in fact, a survivor" does appear improper. It could be interpreted to exhort the jury to support the victim by convicting the defendant. But it is a single statement to which there was no objection. The prosecutor could have made a similar proper argument by emphasizing that T.A. had come forward, undergone embarrassing testimony and cross-examination, and had to relive the entire episode. She could have argued that it was reasonable to infer that T.A. would not have done this unless she was telling the truth. We fail to see that the prosecutor's argument was so improper that any competent judge or defense attorney would have objected or that this brief statement would have caused substantial prejudice. We therefore do not find plain error.
The judgment of the superior court is AFFIRMED.