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Hess v. State

Supreme Court of Alaska

December 21, 2018


          Petition for Hearing from the Court of Appeals No. A-11425 of the State of Alaska, on appeal from the Superior Court No. 3AN-11-10574CR of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

          Brooke Berens, Assistant Public Advocate, Anchorage, and Richard Allen, Public Advocate, Anchorage, for Appellant.

          Terisia K. Chleborad, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          CARNEY, Justice.


         A jury convicted Christopher Hess of second and third degree assault. He appealed, arguing that the superior court committed plain error by not addressing improper statements in the prosecutor's closing arguments. The court of appeals affirmed Hess's convictions and held that, although some of the prosecutor's statements were improper, they did not undermine the trial's fundamental fairness. Hess petitioned for hearing. We granted the petition and, finding plain error, reverse his convictions.


         A. Facts

         In September 2011 Anchorage police responded to a reported assault in progress at Patricia Hess's apartment. Officers found Patricia outside the apartment. She was extremely upset and appeared to be intoxicated. There was bruising on the front of her throat and the front of her pants was wet.

         Patricia told one of the officers that she and her son, Christopher Hess, had argued and he had become angry. She said she struggled with him and he knocked her to the ground and began strangling her. Patricia said she lost control of her bladder while being strangled and almost blacked out, although she did not pass out.

         The officers and a police dog entered the apartment looking for Hess. He was arrested after being found and bitten by the dog. Hess appeared intoxicated and when questioned, he denied strangling his mother. Officers took Hess to a hospital where he had surgery for the dog bite to his arm. The officers found Patricia's dentures, glasses, and a kitchen knife on the floor of the apartment.

         B. Trial

         Hess was indicted for one count of second degree assault for strangling Patricia[1] and one count of third degree assault for recklessly placing her in fear of injury with a dangerous instrument (his hands around her neck).[2] The case went to trial on both counts in August 2012.

         The State called three witnesses: Patricia and two of the responding officers. Patricia testified that she did not remember much of what happened. She said she remembered drinking with Hess, becoming very drunk, and then walking home from the hospital. Patricia testified that it was "kind of like blackout" and that she remembered being in a patrol car, but could not remember meeting with police officers. Patricia said that she did remember having a sore neck the next day. On cross-examination Patricia testified that she had post-traumatic stress disorder (PTSD) after a sexual assault four years earlier. She stated that she took medication for the PTSD, as well as for depression, sleeplessness, pain, and high blood pressure. Patricia testified that the medicine made her bruise easily. She also said that when she was "stressed [she had] dissociation."

         One of the police officers testified about his medical training - he testified that he had worked as an EMT before joining the police department - and what he had been taught were signs of possible strangulation. The signs included redness around the throat and neck, petechiae (small red spots caused by broken blood vessels in the eyes, hairline, or behind the ears), difficulty swallowing or breathing, and lost bladder and bowel control. The officer testified that Patricia had difficulty swallowing and appeared to have urinated on herself, but that he did not remember seeing petechiae or marks on her face. He testified that he had seen strangulation cases in which there were no petechiae. But he conceded on cross-examination that intoxication could cause people to urinate on themselves.

         The other officer had interviewed Patricia and Hess at the scene. He testified that Patricia was intoxicated, upset, coughing a lot, and had bruises on her neck. He said that she seemed to be afraid of Hess and she said that he had strangled her after an argument. The officer testified that marks on Patricia's neck were consistent with finger marks but that he did not see any impression of a hand or fingers. He also stated that Hess was intoxicated, denied strangling his mother, and denied that his mother had almost passed out.

         The defense presented four witnesses: Hess and three of Patricia's other family members. Each family member testified that Patricia had a reputation for untruthfulness and dishonesty. They testified that Patricia was even less truthful when drinking.

         Hess testified that he lived with Patricia when she needed help managing her medical conditions, taking her medication, and taking care of household chores. He said that he was with his mother on the night of the alleged assault, but that he only remembered starting to drink in the afternoon and then waking up in the hospital after being bitten by a dog. He testified that he did not remember strangling his mother or putting his hands on her neck, and that he would never hurt his mother even if he was drunk. Hess said that his mother sometimes forgot to take her medication, exaggerated things, and was a danger to herself. The prosecutor impeached Hess's testimony with his convictions for crimes of dishonesty.

         The State's closing argument focused on meeting the State's burden of proof and rebutting the defense's theory. The prosecutor told the jury that the defense wanted the jury to assume that Patricia was "crazy" and not to be trusted. After discussing the elements of charges against Hess, the prosecutor argued that they were not "going to be the biggest point. The biggest point is who do you believe?" He continued:

I warned you during my opening that the defense was going to go out of their way to make it look like the victim was crazy, to vilify the victim. And we talked about this in voir dire. In domestic violence crimes that's too often what happens. And if my demeanor was at any point in time less than professional, that's my frustration because this case isn't really about whether or not [Ms.] Hess is crazy. This case is about whether or not the defendant strangled his own mother, and that's the evidence that came in.

         After briefly arguing that the evidence had shown beyond a reasonable doubt that Hess was guilty of the charged offenses, the prosecutor returned to whether Patricia was "crazy":

Now, I understand Ms. Hess has been through a lot. You heard her testimony. And she is sympathetic, and I am [not] suggesting that you [should have] sympathy for her.[3]You're supposed to make this decision absent pity and prejudice or passion. You're supposed to be objective when you make this. And she paints a sympathetic figure, but think about the position she's in when the state calls her to the stand. Her whole family clearly is against this prosecution.
They all came to the stand and called her a liar. Her own son got on the stand and had no problem saying she's crazy. And that's problematic, ladies and gentlemen, because you didn't really see any evidence that she was crazy.

         He concluded by arguing Patricia's statements to the police were consistent with the physical evidence and that Hess's defense was not credible.

         After discussing the State's burden of proof and the State's reliance upon Patricia's version of events, the defense questioned Patricia's credibility. Emphasizing that the State's case depended upon Patricia's credibility, the defense attorney responded to the prosecutor's comments about the defense's argument:

[T]here was a characterization that we're vilifying the victim. Now, to say that she has mental health issues, to say that she confuses reality from fantasy is not to vilify her.... We don't know what she was perceiving. . . . [W]e know [] that she ...

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