Petition for Hearing in File No. S-15067 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Petition for Hearing in File No. S-15070 from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Glennallen, Daniel Schally, Judge pro tem. Court of Appeals Nos. A-10837, A-10820, Superior Court Nos. 2BA-09-00239 CR, 3GL-09-00126 CR
Josie Garton and John Page, Assistant Public Defenders, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Petitioners.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen, Justices.[Bolger, Justice, not participating.]
"Trial errors to which the parties did not object are reviewed for plain error." In Adams v. State we held that plain error is "an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial." These consolidated cases require us to clarify the standard for determining when a defendant intelligently waived an objection or made a tactical decision not to object.
Defendants in two criminal cases failed to object to errors at trial: in Moreno v. State, the admission of improper testimony regarding Jorge Moreno's exercise of his right to be free from compelled self-incrimination; in Hicks v. State, the lack of a jury unanimity instruction when the prosecutor directed the jury that it could find Mary Hicks guilty of either of two episodes of allegedly driving under the influence of alcohol.  Moreno and Hicks each sought plain error review, and in each case the court of appeals held that the defendant failed to show that the error was not the result of defense counsel's tactical decision not to object. In Moreno, the court of appeals also applied a presumption that where the record is silent or ambiguous, defense counsel's inaction is tactical and precludes plain error review.
Moreno and Hicks filed petitions for hearing before this court, arguing that the burden of proof should be on the State to show that their counsels' failures to object were the result of tactical decisions. They also contended that the court of appeals erroneously speculated on the purported tactical benefits they received due to their attorneys' lack of objections. Finally, they each requested an evidentiary hearing to develop the record on this issue.
We granted review to determine whether to apply an evidentiary presumption or to place a burden of proof on a party to establish that a defendant's lack of objection at trial was or was not the result of defense counsel's intelligent waiver or tactical decision not to object. But we conclude that our case law compels neither result. Today we hold that defense counsel's tactical reason for failing to object, or counsel's intelligent waiver of an objection, should be plainly obvious from the record before foreclosing the reviewing court's consideration of the remaining plain error elements. We therefore reverse the court of appeals' decisions on this issue. But we conclude that Moreno suffered no prejudice despite the error in his case, and we affirm the court of appeals' decision upholding Moreno's conviction on this alternate ground. We remand Hicks's case to the court of appeals for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Moreno v. State
Jorge Moreno was charged with possession and delivery of methamphetamine and illegal sale of alcohol in a local option community. At trial, Moreno's attorney asked the investigating officer whether the police had been able to verify that Moreno owned a jacket that contained a methamphetamine pipe. The officer replied that Moreno had refused to speak to the police. Moreno's attorney did not object to the officer's statement; instead, the attorney interrupted the officer and directed the officer to reply "[y]es or no." Moreno was convicted, and he appealed arguing that the officer's reference to his silence was impermissible.
The court of appeals concluded that Moreno's attorney's question elicited the officer's testimony and that counsel "apparently made a tactical decision not to object to the officer's answer." Both the State and the court of appeals identified potential reasons why Moreno's counsel failed to object. The State argued that Moreno likely sought "to impeach the police investigation and to lay a foundation for arguing that the [S]tate had not proved that Moreno knowingly possessed the pipe." The court also offered its own possible explanations: that the defense attorney perceived the officer had made an inadmissible comment and chose to preserve "at least one colorable issue" on appeal or that the attorney recognized an objection would have focused the jury's attention on Moreno's silence.
The court of appeals additionally examined whether Moreno had suffered any prejudice from his counsel's failure to object. The court of appeals interpreted Adams as holding that a reviewing court should consider the following factors in determining whether a prosecutor's comments on a defendant's silence resulted in harmless error:
(1) [W]hether the conviction depended primarily on resolution of conflicting witness testimony; (2) whether any comments on the defendant's silence were made during the prosecutor's closing argument; (3) whether the reference was "express" rather than "brief and passing"; and (4) whether the evidence was "directly elicited by the prosecutor's questioning."
The court of appeals examined these factors and concluded that the alleged error in Moreno's case was harmless beyond a reasonable doubt.
Moreno petitioned the court of appeals for rehearing, arguing that the court improperly placed the burden on him to prove that his counsel did not make a tactical decision to withhold an objection to the officer's testimony. The court of appeals denied his petition, reasoning that the plain error doctrine required the court to "focus on . . . a serious potential for tactical inaction." The court relied on its decision in Borchgrevink v. State, which held that "when the record is silent or ambiguous . . . [an appellate court] appl[ies] a presumption that the defense attorney's action (or, more precisely, inaction) was tactical."
Moreno petitioned this court for hearing. We granted the petition and consolidated it with Hicks's petition.
B. Hicks v. State
Mary Hicks was arrested for and convicted of driving under the influence.At her trial a village public safety officer testified that, while responding to a report that Hicks was driving under the influence, he located Hicks's truck parked in a spot at her friend's house that he knew had recently been vacant. He also testified to observing Hicks enter the truck and start the engine.  He stated that Hicks then exited the truck and ran back inside the friend's house. The officer spoke with Hicks at the friend's house, determined that she was intoxicated, and arrested her. During closing arguments at Hicks's trial, the prosecutor told the jury that it could find Hicks guilty of either of the two distinct driving or operating incidents: driving to the friend's house or starting the parked truck in front of the friend's house.
This was obvious error under the Alaska Constitution's due process clause,  which we have interpreted to bestow on a criminal defendant the "right to have jurors 'all agree that the defendant committed a single offense.' " Hicks did not object to the prosecutor's statement or ask the court to instruct the jury that it had to unanimously agree on one offense to return a guilty verdict. The jury convicted Hicks of driving under the influence.
Hicks appealed, arguing plain error. Before the court of appeals, the State proffered two possible tactical reasons for Hicks's failure to object. First, the State asserted that "had she raised the issue in the trial court, the State might have sought to amend the indictment to charge her with two separate felony offenses." Second, the State argued that Hicks's defense focused on attacking the strength of the evidence of the second incident when the officer observed Hicks start her engine. The court of appeals concluded that Hicks's attorney made a tactical decision not to object because an objection would have emphasized that the jury could convict Hicks based solely on the evidence of her driving under the influence, which did not rely on the officer's disputed testimony.
Hicks filed a petition for hearing. We granted Hicks's petition and consolidated it ...