KENNETH A. GOLDSBURY, Petitioner,
STATE OF ALASKA, Respondent
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge. Court of Appeals No. A-10624, Superior Court No. 3PA-09-00204 CR.
Paul E. Malin, Law Office of Christine Schleuss, Anchorage, for Petitioner.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen, Justices. [Bolger, Justice, not participating.].
FABE, Chief Justice.
A criminal defendant exercised his constitutional right not to testify at trial. The prosecutor, in her rebuttal closing argument, commented that two people knew what had happened on the night in question, and only one of them, the victim, had testified. The defendant did not object to the comment, and the jury convicted him of attempted murder. The court of appeals, reviewing the defendant's unpreserved claim of error, determined that the prosecutor's remark violated the defendant's right against self-incrimination. But the court of appeals concluded that there was no plain error because " at least some reasonable judges could have concluded that the problem was not egregious enough to warrant a mistrial, and that the problem could be handled through curative instructions."  We affirm the conviction, but for a different reason -- because the error, even though obvious, non-tactical, and affecting a substantial right, was harmless beyond a reasonable doubt.
II. FACTS AND PROCEEDINGS
Following a dispute at the Roadside Inn at Mile 49.5 of the Parks Highway, Kenneth Goldsbury fired a round of bird shot through the door of his motel room, striking Marvin Long in the torso. Long sustained minor injuries. At trial the State asserted that Goldsbury had intended to kill Long, and that he had taken a substantial step toward that goal by firing the round of bird shot through the door. Goldsbury argued that he was acting in self-defense and that he lacked the requisite intent to support a conviction for attempted murder in the first degree. The jury heard testimony from Long, but Goldsbury did not take the stand. During her closing argument rebuttal, the prosecutor remarked:
[W]e heard all this talk about what was not done in the investigation. But the fact remains, the only people who know what happened that night are [the victim] and the defendant. And [the victim] testified, came in here and faced all you people, and told you what happened in this case.
Goldsbury's attorney did not object to this statement, despite its implicit adverse comment on Goldsbury's decision not to testify.
Before the closing arguments the superior court had given the jury a series of instructions, which included the following passage ...