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Hess v. State

Court of Appeals of Alaska

September 2, 2016

CHRISTOPHER S. HESS, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-11-10574 CR Anchorage, Gregory Miller, Judge.

          Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

          Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          SUDDOCK, JUDGE

          A jury convicted Christopher S. Hess of second- and third-degree assault for strangling his mother, Patricia Hess. On appeal, he challenges aspects of the prosecutor's final argument. We agree that some of the prosecutor's statements were inflammatory and thus improper. But because Hess did not object to these remarks, he must establish that they undermined the fundamental fairness of his trial. We conclude that they did not.

         Facts and proceedings

         Responding to a report of an assault in progress, Anchorage police went to the apartment where Patricia Hess lived with her son, Christopher Hess. They found Patricia outside the apartment, apparently quite shaken. She coughed repeatedly, said she had difficulty swallowing, complained of throat pain, had bruises on her neck, and had urinated on herself. Patricia reported that her adult son became angry at her, shoved her to the floor, and strangled her.

         The police spoke with Hess inside the apartment. He denied strangling his mother. He said that he and his mother had been drinking, and he claimed that she was "crazy." The police found Patricia's dentures, eyeglasses, and a kitchen knife on the floor of the apartment.

         The State charged Hess with second-degree assault for strangling his mother and with third-degree assault for recklessly placing her in fear by use of a dangerous weapon.

         At trial Patricia equivocated, saying that she had trouble remembering the incident. She testified that she and Hess had been drinking that night and that they became "really, really drunk." She disavowed any memory of her prior claim that Hess had strangled her until she almost passed out. But she related that the following morning her throat hurt at a level eight on a scale of one to ten.

         Several of Patricia's relatives testified that she had a reputation for untruthfulness and that she was particularly untruthful when off of her medications and drinking.

         Hess testified that his mother always had a friend or relative living with her to help her; he had been staying with her for approximately a month before the charged incident. He said that he and his mother were drinking on the evening in question and that the last thing he remembered was watching television. He declared that he would never strangle his mother.

         Hess testified that his mother is a manipulative, attention-seeking exaggerator. He claimed that while he was passed out, she concocted a plan to injure herself, and then framed him by feigning distress to a neighbor and calling 911.

         The jury convicted Hess of both second-degree and third-degree assault. The superior court merged the two convictions and sentenced Hess to 6 years with 2 years suspended. This appeal followed.

         Why the prosecutor's argument addressing how the jury should view a recanting victim was not obvious error

         Hess challenges the prosecutor's statements urging the jury to convict Hess to "protect" the victim and to show the victim that she was "worthy of protection." We agree with Hess that, as a general matter, such comments are improper. A prosecutor should not argue for a conviction based on alleged future harms that might occur if the defendant is not convicted, nor should a prosecutor urge a jury to convict in order to "send a message."

         But it is not clear that the prosecutor was making this type of improper argument here. The prosecutor made these statements in the context of discussing Ms. Hess's obvious ...


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