Moreno v. State
341 P.3d 1134
| Alaska | 2015Background
- Consolidated appeals from two criminal convictions: Moreno (drug possession/delivery; officer testified defendant refused to speak) and Hicks (DUI; prosecutor argued jury could convict on either of two separate driving incidents).
- Neither defendant’s trial counsel objected at trial to the contested errors (reference to defendant’s silence in Moreno; lack of jury unanimity instruction in Hicks).
- The Alaska Court of Appeals denied plain-error review in both cases, applying a presumption (on silent/ambiguous records) that counsel’s inaction was tactical and placing the burden on defendants to show otherwise.
- Moreno and Hicks petitioned the Alaska Supreme Court to review whether the record-silence presumption and burden-shifting were proper.
- The Supreme Court granted review to clarify the standard for when failure to object constitutes intelligent waiver or a tactical decision and whether that must be plainly obvious from the record.
- The Court reversed the court of appeals’ tactical-decision rulings (removing the presumption/burden-shift), affirmed the court of appeals’ harmless-error finding in Moreno, and remanded Hicks for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for foreclosing plain-error review when counsel fails to object | Moreno/Hicks: burden should be on State to prove failure to object was tactical; no presumption against defendant on silent record | State: courts may infer plausible tactical reasons; no special burden-shift required | Court: No presumption or burden-shift; tactical/waiver finding must be "plainly obvious" on the record before barring plain-error review |
| Whether an ambiguous/silent trial record permits presuming counsel acted tactically | Moreno/Hicks: ambiguity should not trigger presumption of tactical inaction | State/Ct. of Appeals: apply presumption when record silent or ambiguous and require defendant to disprove tactical choice | Held: Presumption is improper; record silence alone insufficient to infer tactical waiver |
| Application to Moreno (reference to silence during cross-exam) — prejudice inquiry | Moreno: the admission violated the right against compelled self-incrimination and was prejudicial | State: the single, passing reference was harmless beyond a reasonable doubt | Held: Error analysis allowed (no tactical waiver on record), but the officer’s passing comment was harmless beyond a reasonable doubt; conviction affirmed on alternate ground |
| Application to Hicks (no unanimity instruction) — remand? | Hicks: request for plain-error review; record does not plainly show counsel intentionally forewent objection | State: plausible tactical benefits (avoid second count; focus defense), so bar plain-error | Held: Court reversed appellate bar to review; remanded Hicks to court of appeals for further proceedings consistent with clarified standard |
Key Cases Cited
- Adams v. State, 261 P.3d 758 (Alaska 2011) (articulated four-part plain-error test and cautioned against lightly inferring tactical waiver)
- Johnson v. State, 328 P.3d 77 (Alaska 2014) (reaffirmed plain-error as prudential exception and discussed Adams)
- Dorman v. State, 622 P.2d 448 (Alaska 1981) (refused to infer tactical waiver absent clear record indication)
- Hammonds v. State, 442 P.2d 39 (Alaska 1968) (found intelligent waiver where record showed counsel knowingly permitted Miranda error for tactical reasons)
- Pulakis v. State, 476 P.2d 474 (Alaska 1970) (found intelligent waiver from defense counsel’s pattern of conduct on polygraph evidence)
- Raphael v. State, 994 P.2d 1004 (Alaska 2000) (refused to speculate that counsel’s silence was tactical where record lacked indication of counsel’s awareness)
- Khan v. State, 278 P.3d 893 (Alaska 2012) (recognized role of tactical-nonobjection inquiry under Adams)