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Leffel v. State

Court of Appeals of Alaska

August 25, 2017


         Appeal from the Superior Court, No. 3AN-12-2785 CR Third Judicial District, Anchorage, Jack Smith, Judge.

          Jason A. Gazewood, Gazewood & Weiner, PC, 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.[*]


          SUDDOCK Judge.

         James William Leffel was convicted of first-degree assault[1] for stabbing another man in the leg during a confrontation outside the Buckaroo Club, an Anchorage bar.

         In this appeal, Leffel argues that the prosecutor improperly commented on Leffel's post-arrest silence. We agree that the prosecutor should not have characterized Leffel's claim of self-defense as "new information, " thus implying that Leffel had not disclosed this information to the police. However, for the reasons we explain here, we conclude that this implied reference to Leffel's post-arrest silence was harmless beyond a reasonable doubt.

         We also hold that the prosecutor should not have suggested that Leffel was able to "tailor" his testimony because he had reviewed the State's discovery materials, but we conclude that this error was harmless.

         Lastly, Leffel challenges the trial judge's admission of testimony about the Hells Angels motorcycle club, of which Leffel was a member. The record supports the judge's ruling.

         Background facts and proceedings

         During an evening of drinking, Jens Schurig and three friends went to the Buckaroo Club in Anchorage. They left the bar around midnight to await a cab. As the men stood outside the bar, they commented upon a three-wheel Harley Davidson motorcycle parked by the bar's entrance.

         The Buckaroo's bouncer, Anders Ekstrand, was also standing outside of the bar. When Ekstrand heard Schurig and his friends discussing the motorcycle, Ekstrand ordered them not to touch it, nor even to look at it, on pain of a beating. Schurig responded profanely and suggested that three-wheel motorcycles were less than manly.

         Leffel - the motorcycle's owner and a member of the Alaska chapter of the Hells Angels motorcycle club - had by this point emerged from the bar to smoke a cigar. He was holding a pocket knife to cut the tip off of the cigar prior to lighting up. Leffel's friend, fellow Hells Angel Thomas Moore, joined him. Ekstrand recognized both men as Hells Angels and as frequent patrons of the Buckaroo Club.

         When Leffel heard Schurig denigrate Leffel's motorcycle, Leffel approached Schurig and stabbed him in the upper thigh, opening Schurig's femoral vein. Bleeding profusely, Schurig soon lost consciousness. Leffel remained outside the bar, smoking, until the police arrived and took him into custody.

         Leffel testified at trial, claiming self-defense. He testified that as he walked toward his motorcycle to retrieve a lighter for his cigar, Schurig threw a punch at him. Feeling outnumbered and vulnerable to attack by Schurig and his three friends, Leffel stabbed Schurig's leg.

         Both Ekstrand (the bouncer) and Moore (Leffel's friend and fellow member of the Hells Angels) testified in support of Leffel.

         The jury rejected Leffel's claim of self-defense and found him guilty of first-degree assault.

         Why we conclude that the prosecutor's comment on Leffel's post-arrest silence was harmless error

         After Leffel offered his exculpatory version of events at trial, the prosecutor asked him, "Now, what we're hearing today, we're hearing it for the first time, right?" The defense attorney immediately objected, and the attorneys approached the bench.

         The prosecutor told the trial judge that he intended to elicit that Leffel at no time contacted the district attorney's office to explain his side of the story - a clear violation of Leffel's right not to talk to the authorities about the pending charge.[2] The trial judge forbade the prosecutor from asking his proposed question, but he authorized the prosecutor to establish that Leffel's claim of self-defense was "new information" that he was publicly revealing for the first time:

The Court: I think [that the prosecutor] can ask to [what] extent that this is new information. ... I mean, it doesn't [implicate Leffel's] right to remain silent. [The prosecutor] can [ask whether] this is the first time we've heard this. Now certainly, [the prosecutor] can't go beyond that.

         After receiving this ruling, the prosecutor asked Leffel: "This whole story that you've testified [to] here ...

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