from the Superior Court, No. 3AN-12-2785 CR Third Judicial
District, Anchorage, Jack Smith, Judge.
A. Gazewood, Gazewood & Weiner, PC, Anchorage, for the
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.[*]
William Leffel was convicted of first-degree
assault for stabbing another man in the leg during
a confrontation outside the Buckaroo Club, an Anchorage bar.
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.
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.
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
facts and proceedings
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.
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.
- 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.
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
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.
Ekstrand (the bouncer) and Moore (Leffel's friend and
fellow member of the Hells Angels) testified in support of
jury rejected Leffel's claim of self-defense and found
him guilty of first-degree assault.
we conclude that the prosecutor's comment on Leffel's
post-arrest silence was harmless error
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.
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. 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.
receiving this ruling, the prosecutor asked Leffel:
"This whole story that you've testified [to] here