CHRISTOPHER S. HESS, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Third Judicial District, Trial Court
No. 3AN-11-10574 CR Anchorage, Gregory Miller, Judge.
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. [*]
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.
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.
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.
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.
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.
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.
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
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
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
the prosecutor's argument addressing how the jury should
view a recanting victim was not obvious error
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."
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