382 P.3d 1183
Alaska Ct. App.2016Background
- Christopher S. Hess was tried for strangling his mother, Patricia Hess; jury convicted him of second- and third-degree assault, merged for sentencing to 6 years (2 suspended).
- Police found Patricia outside the apartment with throat pain, neck bruises, coughing, difficulty swallowing, and reported she had been shoved and strangled; dentures, glasses, and a knife were on the floor.
- Patricia initially reported strangulation but at trial equivocated and said she had been very intoxicated and had poor memory of the incident; she later said her throat hurt the next morning.
- Defense elicited testimony about Patricia’s mental-health issues, medication noncompliance, drinking, and a reputation for untruthfulness; defendant claimed she fabricated the incident while he was passed out.
- Prosecutor’s closing argument included statements urging jurors not to let a recanting/reluctant victim prevent conviction, accusing the defense of “vilifying” the victim, and arguing the defense’s theme would deny certain victims protection.
- Hess did not object at trial to the prosecutor’s complained-of remarks; on appeal he argued prosecutorial misconduct and plain error for failure of the trial judge to intervene sua sponte.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s statements urging conviction to “protect” a reluctant victim were improper and plain error | Prosecutor improperly asked jury to convict to protect victim/send message; this is impermissible appeal to non-evidentiary concerns | Prosecutor argued concern was jurors letting victim’s reluctance overshadow evidence; not urging conviction for future deterrence | Court: Statements were not clearly improper in context (concerned juror bias), so not plain error |
| Whether prosecutor’s repeated denigration of defense strategy and suggestion that defense denies protection to PTSD/medicated victims was improper and plain error | Such remarks improperly appealed to emotion and asked jury to decide on grounds other than evidence; distorted defense | Prosecutor relied on experience in domestic violence cases and rebutted defense narrative; overall closing focused on evidence | Court: These specific remarks were improper (distorted defense and appealed beyond evidence) but were isolated and not so central as to render trial fundamentally unfair; no plain error |
| Whether trial judge had duty to intervene sua sponte during improper closing | Prosecutor and caselaw: judges must police closings and intervene even absent objection to preserve fairness | Trial court took no corrective action; defense did not object | Court: Trial judges have duty to guard against improper argument and should have intervened here, but failure to do so did not produce reversible plain error given the record |
| Whether the prosecutor’s improper remarks required reversal of conviction | Hess: cumulative improper remarks undermined fundamental fairness and require reversal | State: overall record and evidence cured isolated improper remarks; conviction stands | Court: Affirmed conviction — improper comments, but not sufficiently prejudicial to warrant reversal |
Key Cases Cited
- Rogers v. State, 280 P.3d 582 (Alaska App. 2012) (plain-error standard for unobjected-to prosecutorial misconduct)
- Patterson v. State, 747 P.2d 535 (Alaska App. 1987) (prosecutor’s argument must be based on evidence and fair inferences)
- United States v. Young, 470 U.S. 1 (U.S. 1985) (trial judge’s duty to manage and curb improper argument at trial)
- United States v. Roberts, 618 F.2d 530 (9th Cir. 1980) (trial judges are not mere referees and should control closing argument)
- Adams v. State, 261 P.3d 758 (Alaska 2011) (judicial vigilance urged regarding improper closing arguments)