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.
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
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.
FACTS AND PROCEEDINGS
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.
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.
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.
was indicted for one count of second degree assault for
strangling Patricia and one count of third degree assault for
recklessly placing her in fear of injury with a dangerous
instrument (his hands around her neck). The case went to
trial on both counts in August 2012.
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]
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.
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.
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.
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.
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
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
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.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.
concluded by arguing Patricia's statements to the police
were consistent with the physical evidence and that
Hess's defense was not credible.
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
[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 ...