OPINION
Rеginald Silvernail was convicted by a jury of murder in the second degree and kidnapping. Acting Superior Court Judge Michael N. White sentenced Silvernail to concurrent terms of seventy-five years with twenty-five years suspended. Silver-nail later moved for a new trial, alleging newly discovered evidence. Superior Court Judge Mark C. Rowland denied the motion. On appeal, Silvernail contends that insufficient evidence was presented to support his convictions and that the trial court erred in allowing the prosecution to question him about his failure to make a statement to the police officers who arrested him. Sil-vernail additionally argues that his sentence is excessive. Finally, Silvernail claims that the court abused its discretion in denying his motion for a new trial. We reverse.
The body of Kurt Gilruth was discovered on April 8, 1986, at the bottom of a high bluff on the outskirts of Anchorage. Gil-ruth had been severely beaten with a blackjack, shot once in the head, and pushed off the edge of the bluff. Al *1171 though the injuries that Gilruth received were not in themselves fatal, they interfered with his body’s ability to produce heat, and Gilruth died of hypothermia within several hours of being pushed over the bluff.
Investigation of Gilruth’s death led the state to charge Silvemail with first-degree murder, kidnapping, and first-degree assault. Twо other men were charged as codefendants: Richard Holland and Robert Hughes. The state’s evidence indicated that Silvernail, Holland, and Hughes attended a party at a friend’s apartment in Anchorage on the night of April 7, 1986, and became involved in a dispute with Gil-ruth. According to the state’s theory of the case, the three men forced Gilruth to the parking area outside the apartment. There, they beat and kicked him until he was semi-conscious. They then loaded him into Hughes’ van. Hughes drove the van to the outskirts of Anchorage, with Silver-nail in the passenger seat. Holland was with Gilruth in the back. During the drive, Gilruth was shot in the head. Upon arrival on the outskirts of Anchorage, Gilruth was still alive and moaning. The three men unloaded him from Hughes’ van and kicked him over the edge of a bluff. They then drove back to Anchorage.
After stopping for a change of clothing, Hughes, Holland and Silvernail drove to a Safeway supermarket. There, Holland was stopped for shoplifting by a store employee. After Holland began to fight with the employee, police officers intervened. As they were attempting to subdue Holland, Hughes and Silvernail ran from the store, got into Hughes’ van, and attempted to flee. Other officers pursued Hughes’ van and managed to stop it in the parking lot of a nеarby apartment building. An officer immediately handcuffed and arrested Hughes for driving while intoxicated. Another officer “took” Silvemail out of the passenger side of the van, kept him “under his control,” and “conducted a field interview.” Silvemail was arrested a short time later, after the police learned of an outstanding warrant for his arrest in a pending misdemeanor case. Gilruth’s murder had not yet been discovered when Holland, Hughes, and Silvernail were initially arrested.
After the police linked the three men to Gilruth’s killing, Holland agreed to plead no contest to a charge of first-degree murder. In exchange for Holland’s testimony against Hughes and Silvemail, the state agreed to dismiss assault and kidnapping charges against him. Holland testified at Silvernail’s trial. He claimed that all three men had participated in beating and abducting Gilruth. Holland did not remember who actually shot Gilruth, but stated that, to the best of his memory, he did not do it himself.
Silvernail testified in his own behalf at trial, attempting to establish a defense of duress. Silvernail claimed that Holland and Hughes were responsible for taking Gilruth to the parking area outside the apartment and beating him. Silvernail testified that he attempted to intervene to prevent serious injuries but that Holland continued to beat Gilruth with a blackjack. Silvernail testified that Holland then directed him to help load Gilruth into Hughes’ van, threatening that Silvemail was “next in line.”
According to Silvernail, once they were in the van, he attempted to convince Hughes and Holland to take Gilruth to the hospital for medical treatment. However, Holland became enraged, shot Gilruth in the head, and continued to beat him about the head with his blackjack.
Silvernail testified that Holland forced him at gunpoint to help unload Gilruth when the van reached the outskirts of Anchorage. He claimed, moreover, that he thought Gilruth was already dead. Silver-nail testified that he was afraid that if he did not follow Holland’s instruсtions, Holland would attack him. Silvemail further testified that he accompanied Hughes and Holland back to Anchorage to change clothing and then traveled to the Safeway store with them only because Holland had directed him to do so.
At the conclusion of the trial, the jury acquitted Silvemail of first-degree murder *1172 and first-degree assault, but convicted him of second-degree murder and kidnapping.
Silvernail initially contends that the trial court erred in denying his motion for a judgment of acquittal. Specifically, he argues that there was insufficient evidence to corroborate the testimony of Holland, an accomplicе.
Because Holland was an accomplice, the state was required to corroborate his testimony “by other evidence which tends to connect the defendant with the commission of the crime.” AS 12.45.020. Corroborative evidence is not sufficient if it “merely shows the commission of the crime or the circumstances of the commission.”
Id.
To be sufficient, however, corroborating evidence need not independently establish the accused’s guilt.
Brown v. State,
In determining the sufficiency of the evidence, the totality of the evidеnce at trial must be considered.
Martin v. Fairbanks,
In Silvernail’s case, ample evidence was presented to corroborate Holland’s testimony. Silvernail, by his own admission, was present throughout the commission of the offense, was.in physical contact with Gilruth, assisted in loading him into the van, and helped to unload him from the van. Although Silvernail attempted to establish that his conduct was motivated in part by concern for Gilruth and in part by Holland’s threats, the jury was not bound by Silvemail’s explanation.
See Cole v. State,
Other witnesses provided further corroborating testimony against Silvernail. There was testimony that Silvernail made threatening remarks and gestures toward Gilruth, indicating an intent to injure or kill him. The state also presented testimony identifying Silvernail as an active participant in the initial assault on Gilruth.
The independent evidence, when viewed in the light most favorable to the state, is more than sufficient to induce a rational belief that Holland’s testimony was truthful. Likewise, the totality of the evidenсe would permit reasonable jurors to conclude that Silvernail’s guilt had been established beyond a reasonable doubt. Accordingly, we find no error in the trial court’s denial of Silvernail’s motion for a judgment of acquittal.
Silvernail next contends that the trial court erred in allowing the state to elicit evidence that Silvernail failed to make any claim of duress to the police immediately before his arrest. At trial, the prosecution attempted to discredit Silvernail’s testimony by cross-examining him about his failure to claim duress upon being stopped by the police near the Safeway store:
Q: When Officer Gaines camе and took you out of the passenger seat, did you say to him, “God, I’m glad you’re here.”
A: No.
Q: Did you say anything about the fact that you had just been scared to death?
Silvemail’s counsel asked to approach the bench. In a brief sidebar conference, which was only partially recorded, 1 Silver- *1173 nail’s counsel objected to the prosecution’s questions “on fifth amendment grounds.” The trial court ruled that, although the state was foreclosed from asking about Silvernail’s post-arrest or post-Miranda silence, it could inquire about his failure to make any statements before being taken into custody. 2
Thereafter, the prosecution continued its сross-examination on the issue:
Q: You never said to the police officer when he came up to the car, “Hey, I know a guy who just killed a guy. Let me tell you about it.”
A: No.
Q: You never said, “Gee, I’m relieved. You’re finally here to help me” right?
A: No, I didn’t say that.
During final argument, the prosecution commented on Silvemail’s silence:
So, let’s look at his testimony a little bit. He says that he was, in effect, a victim himself. That he was forced to do all of these things. None of that story make sense if we look to the objective things.... But [indiscernible] running away from the Safeway store and the cops are there and the source of this threat is gone. Mr. Silvemail — I mean Mr. Hughes — Hollаnd, is in handcuffs. He’s free. All of his burdens should have been lifted from him, if in fact [indiscernible]. He should have said to Officer Gains, “Boy, I’m glad you guys got me. Let me tell you what happened. The guy [indiscernible] he just shot *1174 somebody. He’s been scaring me for the last half hour.”
On appeal, Silvemail argues that the evidence concerning his failure to make a statement to the police violated his rights to due process and to remain silent, as guaranteed under article I, sections 7 and 9 of the Alaska Constitution. 3 In the alternative, Silvernail argues that the disputed evidence should have been excluded under Alaska Rule of Evidence 403, 4 because its probative value was outweighed by its potential for prejudice.
We turn first to Silvernail’s argument that the trial court erred in failing to exclude the disputed evidence on the ground that its probative value was outweighed by its potential for prejudice. The state correctly points out that Silvernail did not specifically object to the disputed evidence on this ground below; his argument must therefore be evaluated under the plain error rule.
5
Under the plain error rule, an error that has not been called to the attention of the trial court will not be considered on appeal “unless it affects a substantial right and is obviously prejudicial.”
Dorman v. State,
In the present case, the error alleged is the trial court’s decision to permit questions concerning Silvernail’s silence without first determining whether the probative value of the challenged line of inquiry was outweighed by its potential for prejudicial impact. We conclude that the trial court’s failure to balance probative value against prejudicial impact amounted to plain error.
Our decision to find plain error is influenced by several related considerations, the foremost of which is that Silver-nail did in fact object to the disputed line of questions, albeit only on fifth amendment grounds. Although the evidentiary issue that Silvemail argues on appeal was not specifically raised below, his objection on constitutional grounds was nonetheless sufficient to call the trial court’s attention to the fact that this line of inquiry was disputed.
A closely allied consideration is the inherent relationship between the constitutional rule that was actually invoked by Silvernail below and the evidentiary principles that he argues on appeal. The underlying rationale of the constitutional bar against admitting evidence of a defendant’s post-arrest silence is the concern that such evidence is only minimally probative, while possessing a high potential for prejudicе to the defendant’s case. This is the same basic concern expressed in Alaska Rule of Evidence 403.
Compare Doyle v. Ohio,
The close relationship between the constitutional prohibition against evidence of an accused’s silence and the inherent lack of
*1175
probative value of such evidence has become apparent since the United States Supreme Court has interpreted the federal constitution to preclude evidence of a defendant’s silence only after the defendant has been given
Miranda
warnings.
See Fletcher v. Weir,
Furthermore, the Alaska Supreme Court and this court have both expressed distrust of silence as probative evidence of guilt.
See, e.g., Doisher v. State,
Notably, the trial court’s decision in the present case to allow inquiry into Silver-nail’s silence does not appear to have been influenced by the absence of a specific claim that the evidence was inadmissible under Alaska Rule of Evidence 403. Instead, the court apparently admitted the disputed evidence because it believed that evidence of an accused’s pre-arrest silence was automatically admissible under this court’s decision in
Bloomstrand v. State,
The propriety of comment on pre-arrest silence under the Alaska Constitution has not specifically been addressed.... However, we find that under the particular facts of this case, it is unnecessary for us to determine whether and to what extent the Alaska Constitution protects a defendant from comment by the prosecution on his invocation of the right to remain silent.
Bloomstrand,
Finally, in the present case, it seems inconceivable that the limited scope of the objection below could have resulted from a tactical or strategiс decision by Silvernail’s trial counsel. As noted by the Alaska Supreme Court under similar circumstances:
In the instant case, defendant ... neither injected the issue of his silence into the case nor obtained a benefit from the *1176 prosecutor’s inculpatory comment. There is no basis for the inference that defense counsel was trying to further [the defendant’s] case by failing to object ..., unless it is implied that defense counsel invited error for the purpose of obtaining a reversal on appeal. That conclusion, however, is not one which should be lightly inferred in any case, for it would preclude review of the most fundamental defects under the plain error doctrine; further, it is not supported by the record in this case....
Dorman v. State,
In short, the plain error rule is designed “to mitigate ... the harsh effects of a rigid application of the adversary method of trial_”
Bargas v. State,
A balancing of the probative value of the disputed evidence against its prejudicial impact yields the conclusiоn that it should not have been admitted. We recognize that, since the United States Supreme Court’s decision in
Fletcher v. Weir,
some cases have allowed evidence of an accused’s silence to be admitted under analogous circumstances.
See, e.g., United States v. Shue,
In
United States v. Hale,
[S]ilence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of aсquiescence only if it would have been natural under the circumstances to object to the assertion in question.
Id.
(citations omitted). A similar approach has been taken by the Alaska Supreme Court in analogous circumstances to determine the relevance of an accused’s silence.
See Doisher v. State,
In the present case, the disputed line of inquiry was allowed for purposes of impeaching Silvernail’s claim of duress at trial. The inquiry established that, when confronted by the police shortly after Gilruth’s murder, Silvernail did not reveal his coerced participation in the offense. Yet, given the events surrounding SilvernaiPs contаct with the police, it would hardly have been “natural under the circumstances” for Silvernail to have made a full disclosure of his situation.
At best, Silvernail’s silence was highly ambiguous. As the United States Supreme Court has observed:
*1177 At the time of arrest and during custodial interrogation, innocent and guilty alike — perhaps particularly the innocent — may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.
United States v. Hale,
This distrust of the probative value of silence was echoed by the New York Court of Appeals in
People v. Conyers,
[Ejvidence of an individual’s pretrial failure to speak ... is of extremely limited probative worth.... [T]he individual’s silence in such circumstances may simply be attributable to his awareness that he is under no obligation to speak or to the natural caution that arises from his knowledge that anything he says might later be used against him at triаl. Alternatively, the individual may refrain from speaking because he believes that efforts to exonerate himself under the circumstances would be futile. Finally, it is a lamentable but undeniable fact of modern society that some of our citizens harbor a mistrust for law enforcement authority which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest.
See also People v. Fondron,
In
Farley v. State,
One can conceive of a variety of situations where an innocent suspect would not offer himself or his story to the police. For example, the suspect may believe that he has committed no crime and therefore has no call to explain himself to the police. Or, he may fear disbelief of his story or retaliation by the police. He may feel that since the circumstances point to his guilt, he needs to remain free to try to prove his innocence.
In
People v. Quintana,
The state attaches great significance to the fact that the disputed line of inquiry in the present case pertained to Silvernail’s silence before he was formally placed under arrest. The state seeks to distinguish cases such as People v. Quintana and People v. Conyers on the ground that they deal with post-arrest silence.
We find little significance in this distinction under the circumstances of Silvemail’s case. Admittedly, distinctions between pre-arrest, post-arrest, and
post-Miranda
silence can be of vital importance in determining whether a prosecutor’s reference to silence violates federal constitutional protections.
See, e.g., Fletcher v. Weir,
These distinctions are decidedly less significant when the issue is whether the accused’s silence is probative of guilt. Resolution of this issue turns upori a case-by-case examination of the evidence, and not upon the formalistic nomenclature that attaches to the accused’s custodial status.
For this reason, cases that have analyzed the admissibility of an accused’s silence by weighing probative value against prejudicial impact have not restricted themselves to post-arrest situations.
See, e.g., Farley v. State,
In the present case, the inquiry concerning Silvemail’s silence pertained to a situation in which Silvemail was engaged by the police in a plainly confrontational setting: Silvernail and Hughes had just been stopped after attempting to elude the police in Hughes' van. Hughes was immediately placed under arrest, and Silvernail was in the “control” of another officer. Silvernail had no reason to believe that the officers who had stopped him were aware of Gil-ruth’s murder, yet he was aware of his own intimate connection with the offense. At the time of the stop, Silvemail was still wearing a T-shirt soaked with Gilruth’s blood.
Whether Silvemail was entitled to
Miranda
warnings under the circumstances is debatable. The stop appears to have exceeded what can safely be characterized as a “routine” traffic stop.
See Berkemer v. McCarty,
Silvemаil’s silence might have been considerably less ambiguous if it appeared from his testimony that the police had rescued him from imminent peril. But this was not the case. According to Silvemail, Richard Holland was the only person who had threatened him and whom he feared. Hughes had done nothing threatening or coercive toward Silvemail, and Silvemail had no reason to fear him. Thus, at the time Hughes and Silvemail were stopped, Silvemail no longer had any immediate cause to be fearful. He was aware that Holland had already been taken into custody and no longer posed a threat.
For Silvernail to have disclosed Holland’s recent threats and coercive behavior, Sil-vemail would have had to reveal his own intimate connection to the crime. Given the extent of his own participation in the events surrounding Gilruth’s death, Silver-nail’s story would obviously have been highly incriminating unless the police were willing to accept at face value his claim of duress. Given the circumstances surrounding Silvemail’s encounter with the police, however, Silvemail would have had to be among the most trusting and naive of souls to believe that the police would be willing to accept at face value anything that he told them at that point.
Assuming Silvernail’s claim of duress to have been true, it would hardly seem “natural under the circumstances,”
United States v. Hale,
Because Silvernail’s silence appears to have been at least as consistent with innocence as it was with guilt, to allow the prosecution to inquire into his silence could do nothing to advance the legitimate cause of determining the truthfulness of Silver-nail’s claim of duress. On the other hand, the potential prejudice from this line of inquiry is both obvious and substantial. Inquiry into Silvemail’s silence was thus plainly improper under Alaska Rule of Evidence 403.
The issue of Silvernail’s guilt rested heavily on the jury’s evaluation of the relative credibility of the conflicting testimony given by Holland, on the one hand, and
*1179
Silvernail, on the other. We are therefore unable to conclude that the erroneous admission of the disputed evidence did not appreciably affect the jury’s verdict.
Love v. State,
Accordingly, we conclude that the conviction must be REVERSED. 7
Notes
. Efforts to transcribe the electronic recording of the sidebar conference were only partially successful. The transcript, in its entirety, is as follows:
MR. CARD: I think Mr. Linton is coming perilously close to mentioning the events of [indiscernible] prior to, asked for an attorney and so forth, and he already did say that.
THE COURT: I’m sorry? That what?
MR. CARD: I think the man on direct said something about "they want to talk to an attorney” and something. And I don’t mind going into that point, but I don’t think Mr. *1173 Linton should go into anything after that, suggesting that he had no opportunity to speak and did not. [sic]
MR. LINTON: Judge, this is wholly inconsistent with the assertion made by him all the way until now, that he was scared [indiscernible] for an hour and a half, and now he’s going to say ...
THE COURT: It seems to me that under Bloomstrand v. State, which coincidentally is a case I tried, so I’m pretty familiar with the appeal, prearrest silence, prior to Miranda warnings being given, pre-arrest silence is admissible to impeach an assertion of the defendant that would be inconsistent with silence. In that case, it was, uh, the defendant later claimed it was an accidental killing and, you know, didn't — he was with the defendant and he was cross-examined by, about not calling .the police [indiscernible] reasonable. In this case, it seems to me that certainly, at the time, it would — What was your question going to be?
MR. LINTON: He was going to take him to jail [indiscernible] next night [indiscernible] tell them [indiscernible].
THE COURT: [indiscernible] custody [indiscernible]? Once he’s in custody, he does have a sixth amendment right; things of that nature come into play. I thought you were talking about in the car, when the pоlice stopped him in the car, you know, that he didn’t say “Help me! Help me!”, you know.
(indiscernible simultaneous speech by the Court and by Mr. Card)
MR. CARD: ... was arrested
THE COURT: Yes, I would say after he’s arrested, out of the car [indiscernible]. And I’ll let you be heard outside the presence of the jury if you want to go further on that, but my ...
MR. LINTON: The state [indiscernible]
THE COURT: ... my inclination is that, you know, before the arrest it would be all right, before arrest or before Miranda warnings, but after arrest or after Miranda warnings tire given, that any silence cannot be granted.
. Realizing that the sidebar conference had in all likelihood not been properly recorded, the trial court later summarized its ruling for the record, out of the presence of the jury:
THE COURT: Record should reflect all the jurors are absent. You can be seated. I just want to make sure there’s a good record of Mr. Card’s last objection regarding — because it was a bench conference, regarding it. There’s an objection as to Mr. Linton’s questions regarding the actions of the defendant at the time the officer stopped the defendant. The basis for the objection, as I understand it, was fifth amendment grounds.
MR. CARD: That’s correct, Your Honor.
THE COURT: My ruling was that Mr. Linton could go into matters made before — go into the defendant’s silence as it demonstrated inconsistency with his story prior to the time he was in custody or advised of Miranda warnings. In other words, at the initial stop. My finding was that pursuant to Bloomstrand v. State, that those questions are reasonable аnd would lead to questions in any reasonable person’s mind why someone that had been kidnapped or et cetera, et cetera did not immediately tell someone about that. Didn’t pick up a phone and tell someone about it or didn’t tell an officer upon an immediate stop. Of course, once the defendant was placed in custody or advised of the Miranda warnings that would be a different story and Mr. Linton was advised to stay away from that and he did stay away from that. Anybody want to add anything to the bench conference?
MR. CARD: I think that’s a fairly accurate from the defense point of view, Your Honor.
.Article 1, section 7, оf the Alaska Constitution provides, in relevant part: "No person shall be deprived of life, liberty, or property, without due process of law.”
Article 1, section 9, of the Alaska Constitution provides, in relevant part: “No person shall be compelled in any criminal proceeding to be a witness against himself."
In arguing that the disputed evidence violated his rights under the Alaska Constitution, Silver-nail recognizes that the United States Supreme Court has interpreted the federal constitution as precluding only evidence of
post-Miranda
silence.
See Fletcher v. Weir,
. Alaska Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Alaska Criminal Rule 47(b) provides:
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
. The state also cites
United States v. Brooks,
. Our disposition makes it unnecessary to consider the other issues raised by Silvernail in this appeal or to resolve the issues raised in his separate appeal from the superior court’s denial ■ of his motion for a new trial.