DANIEL JAMES GADOMSKI, n/k/a Just Danny v. STATE OF ALASKA
Court of Appeals No. A-13840
Trial Court No. 3AN-16-02925 CR
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
March 27, 2026
Opinion No. 2827
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501; Fax: (907) 264-0878; E-mail: corrections@akcourts.gov
OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Judge WOLLENBERG, writing for the Court.
Judge TERRELL, concurring.
Following a jury trial, Daniel James Gadomski was convicted of one count of first-degree sexual assault and one count of second-degree assault of B.N. At trial,
In an interview with the police after the incident, Gadomski repeatedly denied engaging in any sexual or physical contact with B.N. At trial, however, Gadomski disclaimed his prior statements to the police and testified that he had engaged in consensual sexual intercourse with B.N. He also testified that later in the evening, there was a physical altercation in which he used force against B.N.
Gadomski now appeals, raising several challenges to his convictions.
We first address Gadomski‘s plain error challenges to the prosecutor‘s cross-examination of him at trial. During her cross-examination, the prosecutor questioned Gadomski about his failure — in the weeks and years following his interview with the police — to contact the police to correct his earlier statements, thus implicitly commenting on his silence. The prosecutor also asked Gadomski questions that implied he had a personal obligation to identify evidence corroborating aspects of his testimony. The State acknowledges that much of this questioning was improper but argues that the court‘s failure to intervene does not constitute plain error because the questioning was not prejudicial.
We agree that large portions of the prosecutor‘s cross-examination of Gadomski were improper. The key question in dispute is whether this improper cross-examination was prejudicial.
For the reasons discussed in this opinion, we conclude that the improper cross-examination was harmless beyond a reasonable doubt as to Gadomski‘s conviction for second-degree assault given the corroborating evidence of B.N.‘s injuries. But having carefully reviewed the questioning and the trial record as a whole, we conclude that the State has not met its burden of showing that the improper cross-examination was harmless beyond a reasonable doubt with respect to Gadomski‘s first-degree sexual assault conviction.
Gadomski also challenges a jury instruction given by the court as to the use of prior inconsistent statements. We agree with Gadomski that the jury instruction was incomplete in some respects. We nonetheless conclude that any errors were harmless as to Gadomski‘s remaining conviction for second-degree assault, which we affirm.
Background facts
The events underlying this case took place on June 2, 2015. At 9:29 p.m. that evening, Anchorage police responded to a call at the Black Angus Inn that a woman, naked from the waist down and with a bloody lip, had just reported being sexually assaulted. When the police arrived, they found B.N. in the lobby wrapped in a blanket; her lips were swollen and bleeding, and she was visibly upset.
The police conducted a brief interview of B.N. at the scene. B.N. stated that she was having “rough sex” with Gadomski that was consensual, but that the sex became too rough and she told Gadomski to stop, but he just “kept going, going, going.” B.N. told the police that she had tried to get out of the hotel room and that Gadomski kept hitting her and held her by her neck. B.N did not know how she ultimately got out of the room. An officer later described B.N. as upset and intoxicated during this initial interview.
After B.N.‘s initial interview, the police transported her to a Sexual Assault Response Team (SART) center. During the transport, B.N. described Gadomski as a friend and someone she had trusted. B.N. described her face as “fucked up” and said that Gadomski had done a “whole bunch of shit to” her. On a phone call B.N. took outside of the SART center, B.N. said that she had been “beaten” because she “didn‘t have a bottle for him.”
Following her discharge from the hospital, B.N. returned the next morning to complete a SART examination. During this SART examination, a nurse documented and photographed numerous bruises and injuries on B.N.‘s body. The nurse also observed petechiae on B.N.‘s neck and under her ear, which the nurse testified was consistent with B.N.‘s report of strangulation. The nurse did not observe any genital injuries, but later testified that sexual assault does not always cause genital injuries.
B.N. was also interviewed at the SART center by Anchorage Police Detective Andrew Cottle. B.N. explained that she had met Gadomski in December 2014 when she was dating his brother. When asked if she had been sexually intimate with Gadomski in the past, B.N. said that she “went” with him a couple of times.
B.N. said that she only remembered “bits and parts” of what had happened the night before. B.N. said that she had called Gadomski and was then dropped off at the Black Angus Inn in the late afternoon to see him. She recalled that they started drinking and then had consensual sex while she was partially dressed. She said that “everything was fine at the beginning” and that she “fell asleep for a while.” But “when [she] woke up, [Gadomski] was choking [her]” and she could not breathe. She said that she told “him to stop and he just kept going.” B.N. explained that she was on her stomach, with Gadomski holding her arms around her back and using his other hand to choke her. B.N. said that after choking her, Gadomski hit her all over her head with his fists and open hand.
In response to Detective Cottle‘s question as to whether Gadomski “put anything inside [her] vagina” during the time that it “wasn‘t consensual,” she responded “just himself” and then confirmed it was his penis. She also stated that she was
The police also interviewed Gadomski about what happened. Anchorage Police Officer Daniel Gill first interviewed Gadomski at the Black Angus Inn after Gadomski approached him in the lobby. Gadomski told Officer Gill that he had gone down to the lobby to get some ice and that he had no idea why B.N. was upset.
Gadomski repeatedly denied having had any sexual contact with B.N. that night. Gadomski told the officer that the last time he had sex with B.N. was four to five months earlier. Gadomski also repeatedly denied physically assaulting B.N., stating that he did not touch her other than to grab her shoulders and tell her to calm down.
The police then transported Gadomski to the Anchorage Police Department, where he was interviewed by Anchorage Police Detective Chris Thomas after being read his Miranda rights. During this interview, Gadomski repeatedly denied having had any sexual contact with B.N. or physically assaulting her that night. Contrary to his previous statements, Gadomski also denied having sexual contact with B.N. on any previous occasions.1
When Detective Thomas asked Gadomski about an injury to his right pointer finger and blood on his left palm, Gadomski said that the only thing he could think of was that “it was from the handcuffs from being in the back of the car.” Although Gadomski had previously told Officer Gill that B.N. bit his finger when he tried to stop her from leaving, he now denied that B.N. had bitten him.
Pursuant to a warrant, the detective swabbed Gadomski‘s hands and penis for DNA. The police also retained Gadomski‘s phone, which he had encouraged them
Nine months later, in March 2016, after the police received the results of the DNA testing, a criminal complaint was filed against Gadomski charging him with first- and second-degree sexual assault and third- and fourth-degree assault. A warrant was issued for his arrest.
In the meantime, Gadomski had moved out of state to find work.2 While living in Florida in February 2018, Gadomski learned of the 2016 arrest warrant. He subsequently flew back to Anchorage and turned himself in to the police.
In March 2018, a grand jury indicted Gadomski on one count of first-degree sexual assault (for engaging in sexual penetration of B.N. without her consent), one count of second-degree assault (for causing physical injury to B.N., with intent to do so, by means of a dangerous instrument, his hands), and one count of third-degree assault (for recklessly placing B.N. in fear of imminent serious physical injury by means of a dangerous instrument, his hands).3 The State also charged Gadomski by information with fourth-degree assault (for recklessly causing physical injury to B.N.).4
Trial proceedings
Gadomski‘s case proceeded to a jury trial. At trial, the State argued that Gadomski and B.N. had initially engaged in consensual sex on June 2, 2015, but that
B.N. testified at trial. B.N. testified that Gadomski had previously sexually assaulted her in December 2014, and that she had not told anyone about that incident until several years later. B.N. testified that on June 2, 2015, she was dropped off at the Black Angus Inn, where Gadomski was staying. B.N. had already been drinking that day and she brought one or two bottles of alcohol with her; she and Gadomski started drinking together in his room. B.N. testified that she did not have any injuries when she arrived.
B.N. was largely unable to remember or testify to the events that occurred after that. She testified that she could not remember much other than that she was lying on her stomach, Gadomski was holding her down and holding one of her arms behind her back, and she felt scared. At some point, she lost consciousness. She also remembered that she somehow got out of Gadomski‘s room, and she was running and looking for an exit while wearing just a shirt. B.N. testified that she did not remember having either consensual or nonconsensual sex with Gadomski that day.
Because B.N. had little memory of the incident, the State introduced her recorded statements to the police as prior inconsistent statements to prove its case.5 The State introduced B.N.‘s recorded interview with the police at the scene. The State also introduced B.N.‘s interview that was completed at the SART center the morning after the incident.
The initial SART intake nurse testified to the redness and bruising on B.N.‘s neck, and the nurse who ultimately conducted the SART examination testified to B.N.‘s injuries, including the signs of strangulation. The second nurse testified that B.N had reported symptoms of strangulation including difficulty breathing, tunnel vision, and loss of consciousness.
The front desk clerk at the Black Angus Inn testified that he called 911 after B.N., who was naked from the waist down and had a bloody lip, told him that she had been sexually assaulted in one of the rooms. He described B.N. as “very scared, fearful” and said that she “couldn‘t stop crying.”
The State introduced Gadomski‘s interview with Officer Gill at the scene and his interview with Detective Thomas at the police station and played them for the jury. The State also presented evidence that B.N.‘s DNA was found on Gadomski‘s penis and that B.N.‘s blood was found on Gadomski‘s left hand.
Gadomski took the stand in his own defense. He acknowledged that all of his prior denials to the police were not true. Gadomski testified that he had engaged in consensual sex with B.N. and that he had lied to the police about doing so because he was drunk and scared. Gadomski testified that he and B.N. had engaged in previous sexual encounters, and he testified that the sex they had in December 2014 was consensual.
Gadomski testified that, on June 2, 2015, he and B.N. started engaging in consensual sex within ten minutes of B.N. arriving in his room; he then fell asleep in a chair and woke up to B.N. shaking him. Gadomski testified that he responded by grabbing B.N.‘s hands and shoulders, shaking her, and throwing her such that the back of her legs hit the bed and she sat down on top of it. He asserted that this physical altercation was instigated by B.N., who woke him from a “dead sleep.”
Gadomski denied pinning B.N. down, holding her hands behind her back, or strangling her. When asked about whether he put his hands around B.N.‘s neck, Gadomski testified that he grabbed her, and part of his fingers might have been on her throat, but that he mainly grabbed her jaw.
On cross-examination, the prosecutor questioned Gadomski about his prior inconsistent statements to the police that he had no sexual contact with B.N., did not hit B.N., and did not put his hands around B.N.‘s throat. Gadomski acknowledged that he had repeatedly and “adamantly” lied to the police. But he maintained that he was now telling the truth.
Gadomski asserted that his use of force was meant to “create space” between himself and B.N., but on cross-examination he acknowledged that, in hindsight, he probably could have used less force. When asked how hard he grabbed B.N.‘s jaw, he said he “squeezed probably as hard as [he] could probably squeeze” — he “squeezed decent.”
The prosecutor further asked Gadomski about the details of the sexual encounter. Gadomski testified that he and B.N. had sex on the bed and that after they had sex, he went over to the chair and B.N. fell asleep on the bed.
The prosecutor also questioned Gadomski extensively about his failure to correct his lies to the police in the years following his interview with Detective Thomas. That is, the prosecutor repeatedly asked Gadomski whether he had ever contacted the
Prior to closing arguments, the parties discussed jury instructions. The prosecutor requested a non-pattern jury instruction on prior inconsistent statements that informed the jury that prior inconsistent statements could be used as “substantive evidence” and that the jury could “use that evidence as proof of an element of the crime charged” if they believed the prior inconsistent statements. Gadomski objected to this instruction as unnecessary and unfairly slanted towards the State. The court overruled Gadomski‘s objection and gave the requested instruction.
In closing, the prosecutor argued that B.N.‘s statements to the police were credible and that the jury should convict Gadomski of physical and sexual assault based on the evidence of B.N.‘s injuries, the DNA evidence, and B.N.‘s prior statements. The prosecutor explained that the second-degree assault count (and the related third-degree fear assault count) related to strangulation and argued that B.N.‘s injuries were consistent with her report of strangulation. The prosecutor explained that the fourth-degree assault charge was for hitting B.N. about the head. The prosecutor argued that Gadomski‘s only choice was to take the stand and admit that he lied because “every bit of physical evidence disprove[d]” his statements to the police.
The defense attorney largely conceded that Gadomski had physically assaulted B.N. by hitting her, but he argued that Gadomski was telling the truth when he said that the sexual intercourse was consensual. The defense attorney also argued that Gadomski had not strangled B.N. Instead, the defense attorney pointed to Gadomski‘s testimony that he had grabbed B.N.‘s face and pushed her off, arguing that this would not impede her breathing. The defense attorney attacked B.N.‘s credibility,
The jury found Gadomski guilty of all four charges. The superior court merged the third- and fourth-degree assault counts into the second-degree assault conviction. Gadomski was thus convicted of one count of first-degree sexual assault and one count of second-degree assault.
This appeal followed.
Gadomski‘s challenges to the prosecutor‘s cross-examination of him at trial
We begin with Gadomski‘s challenges to the prosecutor‘s cross-examination of him at trial. Gadomski challenges three categories of questions: (1) questions about his failure to contact the police to correct his previous false statements; (2) questions as to whether he had subpoenaed records or identified evidence to corroborate aspects of his testimony; and (3) questions regarding B.N.‘s potential motive to lie. Gadomski concedes that his attorney failed to object to any of these questions at trial and that he must, therefore, establish plain error.6
Of these claims, the most significant is Gadomski‘s assertion that the prosecutor impermissibly and repeatedly asked him questions which implicitly commented on his silence — namely, his failure, over the course of years (including when he was ultimately taken into custody) to explain to the police that his prior statements were false and that the sexual encounter was consensual. This claim is significant because both the Alaska Supreme Court and this Court have repeatedly emphasized that Alaska law provides strong protections for a criminal defendant‘s right
Overview of the law regarding impeachment of a defendant with their pre- or post-arrest silence
Article I, Section 9 of the Alaska Constitution provides in relevant part that “[n]o person shall be compelled in any criminal proceeding to be a witness against himself.” In the seminal 2011 case Adams v. State, the Alaska Supreme Court reviewed the long-standing protections for silence under Alaska law and reaffirmed Alaska‘s general prohibition on questioning and comment regarding a defendant‘s pre- and post-arrest silence.8
With respect to post-arrest silence, the Adams court stated that “article I, section 9 prohibits the state from using a defendant‘s post-arrest silence for substantive or impeachment value, even if the defendant did not receive Miranda warnings.”9 The supreme court explained that, since as far back as 1972, the court had specifically “disapproved any comment upon a defendant‘s exercise of the right to remain silent” following their arrest.10
In short, the supreme court stated, “[T]here is little to distinguish between pre- and post-arrest silence when the issue is whether an accused‘s silence is probative of guilt[.]”14 Accordingly, comment on both pre- and post-arrest silence is generally prohibited.
Like the Alaska Constitution, the Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” But federal law provides more limited protections against impeachment by silence — and this limitation is generally drawn in relation to the Due Process Clause of the Fourteenth Amendment.
But the Supreme Court has also held that the federal constitution generally does not prohibit impeachment of the defendant concerning their pre-arrest silence.19 Nor does the federal constitution preclude cross-examination as to a defendant‘s silence occurring between the time of arrest and the administration of Miranda warnings —
With this overview in mind, we turn to the prosecutor‘s cross-examination of Gadomski and the parties’ arguments in this case.
Why we agree with the parties that the prosecutor‘s repeated questioning related to Gadomski‘s silence was error
On appeal, Gadomski argues that the prosecutor improperly questioned him about his silence. In particular, Gadomski argues that the prosecutor‘s repeated questions about his failure to contact the police in the days and years following the conclusion of his interview constitute an impermissible use of his right to silence against him.
The State acknowledges that the prosecutor‘s questions about Gadomski‘s failure to contact the police to correct his previous statements were likely improper as an indirect comment on Gadomski‘s silence.
We agree that this questioning was improper.
As an initial matter, we note (and Gadomski agrees) that the prosecutor could properly question him about the statements he did give to the police on the night of the events in this case. The prosecutor asked Gadomski whether he had lied to the police on the night in question, and Gadomski agreed that he had “adamantly” done so. The prosecutor also asked Gadomski a series of questions about the specific lies he told the police — that he did not have a prior consensual sexual encounter with B.N., that
These questions were proper. Under both federal and Alaska law, when a suspect does not remain silent, but actually gives a statement of what occurred, “[o]missions and inconsistencies in [that] exculpatory statement [can] properly be pointed out at trial.”22 Thus, the prosecutor was free to cross-examine Gadomski on the inconsistences between the statements he made on the night in question and his testimony at trial.23
But the prosecutor then went beyond that questioning and “pointedly and repeatedly” inquired as to Gadomski‘s failure to correct his prior statements at any point following the conclusion of the interview — between the time of his statements and his testimony at trial.24 That is, the prosecutor sought to impeach Gadomski by suggesting
The prosecutor began this line of inquiry by asking Gadomski why he had never, at any point, called the police to correct his prior false statements. Gadomski replied that he was being investigated for a sexual assault and “was scared.” Here is the exchange:
Prosecutor: When did you call the police after this and say, ‘You know what? I told some lies, but this really happened. This was really all self-defense‘?
Gadomski: Why didn‘t I call the police and say that?
Prosecutor: Yeah.
. . . .
Gadomski: So, the question is why I didn‘t call the cops and say, ‘Hey, look, I had time to think about it and this is what happened‘?
Prosecutor: Yeah.
Gadomski: Because I was scared.
Prosecutor: Okay.
questions are no longer being asked of him, there is a reasonable possibility that the defendant is relying on the right to remain silent); State v. Heller, 793 P.2d 461, 465 (Wash. App. 1990) (concluding that it was improper for the prosecutor to question the defendant “extensively and at length” regarding her failure to go back to the police and correct her original story).
Gadomski: I was — I was being investigated for a sexual assault, a rape.
The prosecutor then focused attention on the times, following the interrogation, when Gadomski contacted the police for logistical reasons — the day of his interview (when he called the police to retrieve his phone, which they had seized); a few days after the interview (when he called the police to ensure he could leave Alaska, according to his testimony on direct examination); and nearly three years later, in February 2018 (when he contacted the police from Florida to inquire about the outstanding warrant).
For example, the prosecutor asked Gadomski: “The next day [following the interview], when you called to get your phone back from [Detective Cottle], did you say, ‘You know what? I‘ve slept on it overnight, and I need to clarify my statement‘?” Gadomski replied that he was just trying to get his phone back and that the detective had not asked him any questions either.
The prosecutor also asked Gadomski whether he told the police his side of the story after he confirmed the existence of the warrant in 2018: “Did you try and call [the police] back and say, ‘You‘ve got this wrong? This wasn‘t a sexual assault‘?” Gadomski said that he had not — that he “didn‘t try and call them back and explain anything.”
Finally, the prosecutor asked Gadomski whether he tried to “clarify any of these lies” when he actually turned himself in on the warrant. Gadomski responded that he did not — that the first person he talked to was his attorney. Here is a portion of the exchange:
Prosecutor: My question is: when you ultimately find your way back to Alaska and turn yourself in and [Anchorage Police Officer] John Daily is saying, ‘I tried to make [the warrant] extraditable.’ Did you tell him, ‘You know what? I‘ve had a lot of time to think about this. What I told the police originally was untrue. We had consensual sex‘?
Gadomski: So, the first person I — I see, I think I —
Prosecutor: I mean, it seems like you were trying really hard to reach out to the police in your testimony. While you were doing that, did you try and clarify any of these lies that you had told?
Gadomski: No. No. The first person that I had talked to was my attorney about — about this.
The prosecutor continued to press Gadomski about whether he had told Officer Daily that his previous statements to the police were false. Gadomski responded that he did not think the officer would care — that the officer just had “a job to do,” which was to arrest him:
Prosecutor: So, when you‘re there saying, ‘John Daily, put me in cuffs. I got this warrant.’ You didn‘t tell him, ‘But you got it all wrong because I lied, I made some —’
Gadomski: No. I —
Prosecutor: ‘— errors in my statement‘?
Gadomski: Past experience has taught me that they don‘t care. They‘ve just got a job to do. They‘re — they‘re trying to wipe their docket and they‘re — you know, they‘ve got people that they‘re looking for. There‘s [sic] fugitives. And they‘re just trying to erase you off their list and get you in custody. They don‘t care about the facts. They don‘t — they‘re not going to sit there and wait.
Gadomski further stated, “You‘re asking . . . why I didn‘t try to explain myself,” and he explained that “past experience has taught me just to talk to my attorney.”
In total, this discussion of Gadomski‘s silence was spread across eight transcript pages of the prosecutor‘s cross-examination. As the Alaska Supreme Court has explained, references to a defendant‘s silence — whether pre- or post-arrest — are generally improper because an accused‘s silence is “ambiguous at best.”26 A
Here, the implication that Gadomski‘s testimony was not credible because he had failed to return to the police to correct his false statements, or even that he had an obligation to do so, constituted an improper comment on his right to remain silent.28 Indeed, Gadomski himself offered a number of explanations for his silence that reflect its ambiguity — that he was scared, that he did not think the police cared to hear his story at that point, and that he wanted to consult with his attorney.
As past Alaska cases have made clear, prosecutors must be particularly vigilant in the area of questioning regarding silence.29 The prosecutor‘s repeated cross-examination of Gadomski implicitly commenting on his right to silence was error.
The main dispute between the parties is not whether the prosecutor’s implicit comment on Gadomski’s silence was improper; the State essentially acknowledges that it was. Rather, the primary dispute relates to whether the prosecutor’s questioning related to pre- or post-arrest silence and whether the error was prejudicial and thus requires reversal of Gadomski’s convictions.
The reason the parties dispute the proper characterization of the questioning is because, under current Alaska law, this distinction impacts the standard for assessing whether the error was prejudicial. An improper comment on post-arrest silence is an error of constitutional magnitude, violating
But neither the Alaska Supreme Court nor this Court has resolved whether an improper comment on pre-arrest silence is an error of constitutional dimension.32 As we noted earlier, such a comment is generally impermissible under
Gadomski argues that the prosecutor’s questioning regarding his failure to give a corrected statement to Officer Daily at the time he turned himself in on the
Gadomski characterizes the prosecutor’s questioning regarding earlier points in time as relating to his pre-arrest silence, but he argues that we should answer the question left open under Alaska law and decide that impeachment by pre-arrest silence is prohibited under the
In contrast, the State argues that all (or nearly all) of the prosecutor’s questioning related to Gadomski’s pre-arrest silence and was therefore not an error of constitutional dimension; the State contends that the questioning was harmless under a non-constitutional prejudice standard. The State further argues that, even if some of the questioning was constitutional in scope, the State has shown that the questioning was harmless beyond a reasonable doubt.
We agree with Gadomski that the prosecutor’s questioning regarding the period when he turned himself in on the warrant constituted a comment on his post-arrest silence. The State argues that the prosecutor’s questions related to this time period constituted a pre-arrest conversation because the prosecutor referred to the period when Gadomski was “there saying ‘John Daily, put me in cuffs‘” (i.e., when Gadomski approached Officer Daily to turn himself in), suggesting that the prosecutor was asking about the time before Gadomski was placed in handcuffs and, therefore, before he was formally arrested.
But Gadomski knew he was turning himself in on an arrest warrant for a charge of first-degree sexual assault. The warrant was a court order to take Gadomski into custody. It is therefore clear that Gadomski would not have been free to leave during any portion of his interaction with Officer Daily and would necessarily be placed under arrest. This questioning is appropriately categorized as commenting on Gadomski’s post-arrest silence and is therefore an error of constitutional dimension.
That leaves the questioning regarding Gadomski’s failure to correct his prior statements at the remaining points in time: in the days following the interview when he contacted the police about his phone and (according to his testimony) about leaving Alaska and when he called the police from Florida to inquire about the warrant for his arrest. Gadomski argues that this questioning was constitutional error because pre-arrest silence is protected under
As an initial matter, we note that the Alaska Supreme Court has emphasized that improper commentary on a defendant’s pre- and post-arrest silence affects a defendant’s substantial rights “in precisely the same way — by admitting evidence that has an inherently low probative value but a high potential for unfair prejudice.”36 Here, the prosecutor questioned Gadomski about his failure to correct his statements in the days immediately following the interview up until the time of his trial. The implication was the same throughout: that if Gadomski were now telling the truth, he would have told this story sooner.
As we noted above, in Doyle v. Ohio, the United States Supreme Court held that impeachment of a defendant based on their post-arrest silence after receiving Miranda warnings violates the Due Process Clause of the
(Since Doyle, multiple courts have held that the critical factor in the Doyle analysis is not whether the defendant has been formally arrested, but whether the defendant has received Miranda warnings.39 This is due to the fundamental unfairness of using a defendant’s silence against them following an implicit promise not to do so.)
For example, the Appellate Court of Connecticut held in State v. Apostle that a prosecutor may not question a defendant about the defendant’s failure to correct a previous false story given to officers following waiver of their Miranda rights.42 In Apostle, the defendant was convicted of, inter alia, first-degree sexual assault for engaging in forcible sexual intercourse with a teenage girl in a wooded area.43 When the girl was later picked up by passing motorists, she was “crying and hysterical,” and she then reported to her friend’s mother and sister what had happened.44 After the defendant was arrested and read the Miranda warnings, he gave a written statement to
During the defendant’s testimony at trial, the prosecutor asked him why, after giving his statement to the police, he had not returned to the police to correct that statement.47 Despite not preserving the issue in the superior court, the defendant claimed on appeal that the prosecutor’s question was constitutional error.48
The Appellate Court of Connecticut described the issue as follows:
The issue is whether, after the warnings of Miranda are given and the defendant chooses to answer questions posed by the police, the defendant has an affirmative obligation when his interrogation has ceased, to return to the police to correct a false statement made during that interrogation about the facts or circumstances of the crime.49
The court made clear that a prosecutor may question a defendant about statements actually made during a custodial interview and any omission of facts from that statement.50 But the court held that the prosecutor may not question the defendant about their silence following Miranda warnings — i.e., their decision either not to make a statement at the time of the interrogation or not to come forward with additional
The reason for the defendant’s failure to correct his statement after he was no longer being questioned by the police is unknown because it is impossible to know whether that subsequent silence arose because he relied on his Miranda rights, because he was guilty, because he was a liar, or because he was instructed by his lawyer not to speak to the police.52
The court thus found that a defendant’s post-interrogation silence was as “insolubly ambiguous” as the silence in Doyle.53
Because the prosecutor’s questions about Apostle’s failure to correct his original false statement “could be interpreted as implying guilt or as a comment on his federal [F]ifth [A]mendment right to remain silent,” the Appellate Court of Connecticut held that this questioning violated the federal constitution.54 The court noted that the same rule would apply whether or not the defendant had been formally arrested at the time Miranda warnings were given; the key was the administration of the Miranda
Similarly, in State v. DeGraff, the New Mexico Supreme Court explained that “a prosecutor’s questions regarding a defendant’s failure to correct or amend his initial statement to the police were improper because they invited the jury to draw a negative inference from the defendant’s failure to make an additional statement after his arrest.”57 The court distinguished between “permissible comment on a defendant’s incomplete statement” and an invitation to infer guilt from a defendant’s later silence — i.e., the defendant’s failure to make a new statement.58
Thus, in State v. Pacheco, the New Mexico Court of Appeals held that the prosecutor impermissibly commented on the defendant’s right to silence by repeatedly questioning him about his failure to contact the police investigator to correct the statements he made in his initial interview with the police.59 The defendant had been under investigation for a sexual assault, and he agreed to be interviewed by the police. Several days after the interview, however, he obtained counsel and engaged in no further discussions with the police. After discrepancies in his statement emerged at trial, the prosecutor “pointedly and repeatedly” questioned him about his failure to go back to the police and correct his prior statement.60
Finally, in State v. Heller, a decision by the Washington Court of Appeals, the defendant waived her right to silence and told the police one story (that she did not know anything about the alleged stabbing) and then told another story at trial (that she had acted in self-defense).66 The State was permitted to cross-examine her about her prior inconsistent statements to police.67 The prosecutor also asked, however, whether
Gadomski’s case presents analogous facts to Apostle, Pacheco, and Heller. On the night of the incident, Gadomski was taken to the station in handcuffs and questioned as a suspect several hours later. Prior to questioning, Gadomski was read his Miranda rights; as part of the Miranda warnings, Gadomski was told that he had the right to remain silent and that he could decide at any time to exercise that right and not answer any questions or make any statements. Gadomski then voluntarily gave a statement to the police. His hands and penis were swabbed for DNA and then he was released.
As we explained above, any inconsistencies between Gadomski’s statement during that interview (or his statements at the hotel) and his trial testimony were a proper subject of cross-examination. But questioning Gadomski about his post-statement silence, and implying that his testimony was less credible because he had failed at any time prior to trial to return to the police to correct his statements and explain that the sexual encounter was consensual, was an unconstitutional comment on his right to silence.
In sum, we agree with the parties that the prosecutor’s questioning was an implicit comment on Gadomski’s right to silence and therefore improper. We further
However, we are also persuaded by the reasoning of Apostle, Pacheco, Heller, and related cases that all of the questioning about Gadomski’s failure to contact the police to correct his earlier statements was a due process violation in light of the fact that Gadomski was read his Miranda rights and directly advised that he had the right to remain silent — a right that he could invoke at any time.71
Why we conclude that the prosecutor’s improper questioning of Gadomski during cross-examination constitutes prejudicial plain error with respect to his sexual assault conviction, but not his physical assault conviction
Gadomski acknowledges that he did not object to the prosecutor’s questioning in the trial court and therefore must show plain error. “Plain error is an error
The parties largely do not dispute whether the error was obvious or affected substantial rights — i.e., that the error related to “an important right that could affect the fundamental fairness of the proceeding.”73 The State also does not claim that the failure to object was tactical.74 Given the strong and well-established protections for silence under Alaska law,75 we conclude that these prongs are met.
As we noted earlier, the main point of dispute relates to whether the improper questioning was prejudicial. Alaska courts have repeatedly emphasized the importance of the right to silence.76 But even when an improper comment on a defendant’s right to silence is constitutional in nature, the State may establish that the error is harmless beyond a reasonable doubt.77
The second and third Adams factors clearly weigh in favor of finding prejudice here. The prosecutor directly elicited the testimony about Gadomski’s silence in an attempt to undermine his credibility. And the questions were not brief and passing, but rather substantial and extended. During Gadomski’s testimony, the prosecutor “pointedly and repeatedly” cross-examined him about his failure to return to the police to correct his prior statements.79 And as we noted earlier, this questioning was spread across eight transcript pages.
At the same time, Gadomski acknowledges that the prosecutor did not extensively comment during closing argument on his silence.80 The fourth factor —
This case therefore hinges in large part on the first factor — the strength of the evidence and whether Gadomski’s convictions hinged primarily on conflicting witness testimony.
We find this to be a rather straightforward case with respect to Gadomski’s conviction for second-degree (physical) assault. There was substantial corroborating evidence for the physical assault, including photographs of B.N.’s injuries and the testimony of medical professionals. The nurse who conducted the full SART examination testified that B.N. had bruising all over her body, including to her head, face, neck, shoulders, chest, and arms, and the State introduced photographs corroborating these injuries. The nurse also testified that she performed a strangulation assessment and determined that B.N. presented as a “severe” case of strangulation.
In his closing argument, Gadomski’s attorney conceded that Gadomski had beaten B.N., stating, “She did get beat up. Was that justified? No. Not necessarily at all.” Indeed, defense counsel argued that B.N. wrongly accused Gadomski of sexual assault because Gadomski physically assaulted her. Specifically, Gadomski’s attorney argued, “But what I am saying is that — did she have motivation to accuse Mr. Gadomski of sexual assault? Yeah. She did. She got beaten up by him.”
Defense counsel did not concede that Gadomski had strangled B.N. — instead arguing that the evidence did not establish that B.N. had been unable to breathe. But we see little reason to believe that the jury would have been impacted by the prosecutor’s questioning in finding Gadomski guilty of second-degree assault. The evidence of B.N.’s injuries, including linear bruising and petechiae on B.N.’s neck, was extensive, and although Gadomski testified that he did not strangle B.N., he acknowledged that he grabbed her by the jaw and chin and “squeezed decent.” Gadomski’s description of his other actions — grabbing B.N.’s hands and shoulders,
Weighing the Adams factors, we conclude that the State has met its burden of proving that the prosecutor’s improper questioning of Gadomski was harmless beyond a reasonable doubt as to his second-degree assault conviction.
But the analysis is more difficult with respect to the first-degree sexual assault conviction. This count posed evidentiary issues for the State. Most notably, B.N. could not recall or was unable to testify at trial as to whether she had sex with Gadomski on the day in question. Accordingly, the State relied on the statements B.N. previously made to the officers and medical professionals. The State acknowledged in closing argument the importance of B.N.’s prior statements to its case, explaining that the jury instruction regarding the use of prior inconsistent statements (addressed in the next section of this opinion) was a “very important instruction.”
The determination of Gadomski’s guilt on the first-degree sexual assault count therefore relied heavily on the jury’s assessment of the relative credibility of Gadomski’s testimony versus B.N.’s prior statements. At trial, there was no dispute that Gadomski and B.N. were initially engaging in consensual sexual intercourse. When the police interviewed B.N., she stated that she was initially having consensual rough sex with Gadomski but that it turned nonconsensual when Gadomski got too rough, and that he then physically and sexually assaulted her. In contrast, Gadomski testified that he and B.N. had engaged in consensual sex on the day in question, and that the conduct forming the basis for the physical assault was separate from the sexual encounter and was instigated by B.N.
Conviction on the sexual assault count thus depended on whether the sexual encounter was consensual the entire time, as Gadomski claimed, or whether B.N. withdrew her consent, as she told the police, and when during this encounter the physical assault occurred. In closing argument, defense counsel noted that B.N. told Detective Cottle that at some point after she and Gadomski had consensual sex, she fell
We acknowledge that Gadomski repeatedly lied to the police and that the State validly relied on those lies to demonstrate his consciousness of guilt. But the same was true in Apostle, Pacheco, and Heller, which all involved similar impeachment, and all of these cases resulted in reversals, notwithstanding the defendant’s prior falsehoods.
Moreover, the harm from the prosecutor’s implicit commentary on Gadomski’s silence was exacerbated by other improper questioning identified by Gadomski.
At multiple points during her cross-examination of Gadomski, the prosecutor asked Gadomski questions about evidence that would corroborate his testimony. First, the prosecutor questioned Gadomski about whether there was evidence that supported his assertion that he had contacted the police a few days after his interview to confirm that he could leave the state. In particular, the prosecutor repeatedly asked Gadomski whether he had subpoenaed his mother’s phone records (because he claimed to have used her phone) and whether he had seen a report from Detective Cottle about that conversation in discovery.81 When Gadomski responded that he had not seen such a report in discovery and that he “didn‘t think [he] needed to” subpoena his mother’s phone records, the prosecutor implied that the jury should doubt Gadomski’s testimony because all they had was his “word.”
The prosecutor followed a similar line of inquiry when questioning Gadomski about his assertion that a police officer had told him in the hotel lobby on the night of the incident that B.N. had accused him of sexual assault. (The prosecutor was
Gadomski argues on appeal that this line of questioning improperly shifted the burden of proof to the defense. The State concedes that this line of questioning was improper. The State maintains, however, that these questions did not amount to constitutional error and instead were improper only because the subject matter — i.e., the decision to subpoena records or witnesses and the contents of discovery — falls within the responsibility of defense counsel and did not relate to facts of which Gadomski had personal knowledge and thus had little probative value.
We agree with the parties that this questioning was improper. Defense counsel, not Gadomski, was responsible for subpoenaing witnesses or records and for reviewing the contents of discovery. A criminal defendant is generally not expected to have personal knowledge of these matters. It was therefore improper for the prosecutor to imply that Gadomski’s failure to personally subpoena records or identify anything in discovery that supported his testimony meant that his testimony was less credible.82
Moreover, the questioning perpetuated the repeated implication that Gadomski had an affirmative obligation to present evidence — either by providing an
We acknowledge that Gadomski’s case was not simply a case of competing testimony. The State argues that it presented corroborating evidence supporting B.N.’s account of the sexual assault, including evidence of injuries consistent with her description of the encounter as well as evidence of her demeanor and the circumstances surrounding her first report of the sexual assault to the hotel front desk clerk. We agree. Gadomski’s lies to the police also undermined his credibility. But there were also some ambiguities in B.N.’s earlier statements on which Gadomski’s attorney relied in closing to argue that the consensual sexual encounter was separate in
We find this to be a close and difficult case. Given the strength of the State’s evidence, the first factor likely weighs slightly in the State’s favor. But ultimately, in light of the constitutional implications of the questioning regarding Gadomski’s silence, the State must meet the burden of showing that the improper questioning was harmless beyond a reasonable doubt — that the constitutional error was “so insignificant in the setting of [the] . . . case” that it did not have an effect on the jury.90 This is a high burden.91
Given the extensiveness of the prosecutor’s questioning, which was not “brief and passing” and which directly elicited evidence related to Gadomski’s silence, we conclude that the State has not met this burden as to the sexual assault conviction. Stated differently, we conclude that the questioning regarding Gadomski’s silence — together with the prosecutor’s repeated questioning about why Gadomski had not produced certain records to corroborate his testimony — was prejudicial and constituted plain error as to Gadomski’s sexual assault conviction.92 We therefore reverse that conviction.
Why we reject Gadomski’s challenges to the jury instruction on witnesses’ prior inconsistent statements
Because we conclude that the errors in the cross-examination of Gadomski during trial were harmless beyond a reasonable doubt as to his second-degree assault conviction, we must address his remaining claim: that the court erred in giving the State’s proposed non-pattern jury instruction on the use of witnesses’ prior inconsistent and consistent statements and that the content of this instruction was incomplete or erroneous.
On appeal, Gadomski argues that the instruction was unnecessary and an inaccurate statement of the law that unduly favored the State.96
The larger question here is whether the instruction was legally complete. The superior court appeared to give the instruction at least in part because it believed that we had previously approved it in Yatchmenoff v. State.100
But the legal adequacy of the instruction was not squarely before this Court in Yatchmenoff. And the instruction here was incomplete in several ways.101
Gadomski also notes that, while the instruction informed the jury that prior inconsistent statements “may be used as substantive evidence,” the instruction did not expressly inform the jury that it could also use these statements to evaluate a witness’s credibility.102 We agree that the instruction could have been clearer in this regard.
Ultimately, however, we conclude that any errors in the instruction were harmless as to Gadomski’s conviction for second-degree assault — the only conviction that remains in light of our order granting a new trial on the first-degree sexual assault charge. As we noted earlier, there was substantial corroborating evidence of the physical assault, including photographs and testimony about B.N.’s extensive bruising and signs of strangulation.
Moreover, “when an appellate court reviews claims of error involving jury instructions, the question is not whether the challenged jury instruction might contain
We remind judges, however, of the danger of lifting jury instructions from appellate decisions where the adequacy of the instruction was not otherwise at issue.104
Conclusion
We REVERSE Gadomski’s first-degree sexual assault conviction and remand this case for a new trial on that count. We otherwise AFFIRM the judgment of the superior court, including Gadomski’s conviction for second-degree assault.
The decision in this case is based on the legal principle that a prosecutor’s comment on the defendant’s exercise of their
This decision has not been without its critics and has occasionally been challenged over the years. In particular, I agree with Justice Scalia’s observations on behalf of a four-justice dissent in Mitchell v. United States, where he stated:
[T]he text and history of the
Fifth Amendment give no indication that there is a federal constitutional prohibition on the use of the defendant’s silence as demeanor evidence. Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsense inference as equivalent pressure. And it is implausible that the Americans of 1791, who were subject to adverse inferences for failing to give unsworn testimony, would have viewed an adverse inference for failing to give sworn testimony as a violation of theFifth Amendment .2
Nonetheless, the critics of Griffin have not carried the day, and it remains the case that Griffin is good law as a matter of federal constitutional law. Also, as the majority recognizes, the Alaska Supreme Court has adopted this principle as a matter
Prosecutors, like lower court judges, must take the law as they find it, and are subject to binding precedent from the United States Supreme Court and Alaska’s appellate courts, and risk reversal of their hard-fought convictions when they push against the boundaries of those precedents.
Notes
We note that, in an analogous situation, the fact that a person has given incriminating testimony in one proceeding does not preclude the person from invoking the right to silence in a later proceeding. For example, the Alaska Supreme Court has stated that “[i]t is hornbook law that the waiver [of the privilege] is limited to the particular proceeding in which the witness appears.” Graham v. Durr, 433 P.3d 1098, 1104 n.29 (Alaska 2018) (alterations in original) (quoting State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993)); see also McConkey v. State, 504 P.2d 823, 829-30 (Alaska 1972) (Erwin, J., concurring) (“The almost universal rule is that no waiver of the privilege against compulsory self-incrimination continues to a later proceeding by reason of incriminating testimony given in an earlier one.“).
If you want to belie — you know, believe that he was so scared to tell the police the truth and you want to believe this statement that you heard today, the physical injuries that she suffered are not corroborated by what he said happened, what he had four years to plan to say what happened.
State v. Starr, 564 P.3d 933, 937 (Or. App. 2025) (quoting State v. Smith, 554 P.3d 817, 819 (Or. App. 2024)).Remarks concerning evidence that a defendant has or has not presented can sometimes fall on either side of a thin line. On one side, it is permissible for a prosecutor to argue that a defendant’s evidence is unconvincing, and that the jury should not be persuaded by it. On the other side of that thin line, it is impermissible for a prosecutor to argue that a defendant was required to or had a burden to present corroborating evidence, evidence that contradicts the state’s evidence, or, indeed, any evidence at all.
In Kim, we held that it is generally improper to question a witness as to the veracity of another witness, particularly when the questions are directed at the defendant or defense witnesses and the jury need not conclude that a witness is lying in order to credit the defendant’s account. We noted that such questions generally seek information beyond the competency of the witness and are generally intended only to make the defendant look bad by forcing the defendant to accuse another of lying. Id. at 1210-12.
We agree that the prosecutor’s questioning resembles the questioning we disapproved in Kim because it is premised on the implicit assumption that B.N. was lying, when there were other possible explanations for her statements to the police. The questioning also raised some of the additional concerns we flagged in Kim — i.e., it had little probative value as it was strictly speculative, and it was also argumentative. See id.
At the same time, the prosecutor did not directly ask Gadomski whether B.N. had lied, and in response to the prosecutor’s question, Gadomski himself offered an alternative explanation for the inconsistency between their accounting of events — namely, that B.N., like him, “says a lot of stupid stuff when she drinks.” And defense counsel also argued in closing that B.N. had a motive to lie about the sexual assault because “[s]he got beat up by [Gadomski].” We conclude that this questioning alone did not constitute plain error.
The party offering a witness’ prior, out of court statement may introduce that prior statement by either playing a recording of the statement, if available, or by having a witness recite the statement from memory or a transcript. All three means of introducing prior statements may be utilized in this trial.
Prior statements of witnesses that are inconsistent with their trial testimony may be used as substantive evidence regarding the subject matter of the statement. In other words, if you choose to believe the substance of the witness’ prior statement and [sic] you may use that evidence as proof of an element of the crime charged.
Prior statements of witnesses that are consistent with their trial testimony may be used in your deliberations only to the extent that the prior statement may assist you in determining the credibility of the witness’ trial testimony.