Petition for Hearing in File No. S-15067 from the Court of Appeals of the State of Alaska,
No. A-10837 on appeal from the Superior Court of the State of Alaska, No.
2BA-09-00239 CR, 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,
No. A-10820 on appeal from the Superior Court of the State of Alaska, No.
3GL-09-00126 CR, Third Judicial District, Glennallen, Daniel Schally, Judge pro tem.
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 ...