from the Superior Court Trial Court No. 3AN-12-1048 CR, Third
Judicial District, Anchorage, Larry D. Card, Judge.
Marjorie Mock, under contract with the Public Defender
Agency, and Quinlan Steiner, Public Defender, Anchorage, for
E. deLucia, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards (initial brief) and
Jahna Lindemuth (supplemental brief), Attorneys General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
Russell Adams appeals his conviction for second-degree
murder. Among other things, Adams asserts that
he is entitled to a new trial because, during the State's
closing argument, the prosecutor openly suggested that if the
jurors returned an erroneous verdict, this verdict would be
corrected later by the courts.
agree with Adams that the prosecutor's argument was
improper, and we further conclude that this improper argument
requires reversal of Adams's conviction.
was convicted of second-degree murder for stabbing and
killing Andrew Wilson at the Inlet Inn in Anchorage in
January of 2012.
evening in question, both men had been among the people
drinking in Adams's hotel room. After Wilson spit onto
the carpet, Adams physically escorted Wilson out of the room
and locked the door (leaving Wilson in the hallway). From the
hallway, Wilson kicked the door twice. Adams opened the door
and came out of the room, into the hallway, where he and
the two men stopped fighting, and Adams returned to his room.
But a little later, Wilson kicked the door again. This time,
when Adams opened the door, there was another scuffle. At the
end of this scuffle, Adams re-entered the room holding a
steak knife, and he declared that he had stabbed Wilson.
Wilson was in fact stabbed in the stomach, and he later died
from this wound.
trial, Adams's attorney conceded that Adams stabbed
Wilson, but the defense attorney contended that Wilson had
been drunk and violent, and that Adams had stabbed Wilson in
self-defense, or in defense of the other people in the room,
or in defense of the premises against a violent intruder.
jury rejected these defenses and found Adams guilty of
relating to the prosecutor's improper argument to the
close of Adams's trial, during the defense closing
argument, Adams's attorney discussed the jury instruction
defining the concept of "reasonable doubt." This
instruction (Alaska Criminal Pattern Jury Instruction 1.06)
stated in pertinent part:
Proof beyond a reasonable doubt must be proof of such a
convincing character that, after consideration, you would be
willing to rely and act upon it without hesitation in your
own important affairs.
his summation, Adams's attorney urged the jurors to
equate the concept of "proof beyond a reasonable
doubt" with the kind of convincing proof that the jurors
would require before deciding to withdraw life support from a
Defense Attorney: [Proof beyond a reasonable doubt
requires you to have] the same degree of confidence that you
would have to have in... another important affair in your
life, and to act without hesitation in that important affair.
Important affairs in your life, ladies and gentlemen. What
would those be? ... Well, important affairs presumably would
be ... the same types of stakes that we're dealing with
here: things where you have to make a decision that cannot be
Permanent, irreversible decisions. ... That's the type of
decision you're about to make in this case. ...
There's only one really good example I can think of,
[Objection by the prosecutor; the trial judge declines to
[Defense Attorney continues] Important affairs in
your life. Potentially, ladies and gentlemen, one example of
that might be terminating life support for a loved one. ...
It's a decision, an extremely important decision, that
you may have to make at some point in your life. Maybe some
of you have already had to make that decision; I don't
know. But it's an important affair in your life. It's
permanent; it's irreversible. That's analogous to the
decision that you are being asked to make in this case.
noted in this excerpt from the trial transcript, when the
prosecutor objected to the defense attorney's argument,
the trial judge declined to intervene. Instead, the judge
told the prosecutor that he would simply caution the jury to
disregard any arguments of counsel that misstated the law.
But the judge never indicated, one way or the other, whether
he thought that the defense attorney's argument actually
misstated the law.
received this response from the trial judge, the prosecutor
addressed this issue in her rebuttal summation. She told the
jurors that the defense attorney's analogy was wrong:
Prosecutor. [The defense attorney] talked repeatedly
about this term "permanent and irrevocable", and
[argued to you that] ... you should equate [your decision in
this case] to your life's [decisions] that are permanent
and irrevocable. I would disagree. I think everybody in this
room knows that there's a number of procedures after this
court hearing happens.
Your decision is an important one, and I [by] no means mean
to trivialize the burden of proof beyond a reasonable doubt.
It's a high burden. But if he wants, Mr. Adams can ask
the judge to set aside the verdict. He can appeal it to the
Court of Appeals. You know that there's a Supreme Court
after that. It is not a permanent and irrevocable ...
point, Adams's attorney objected. He argued that the
various ways in which the trial result might later be
judicially altered "are not considerations the jury
should be thinking about." In response, the judge
cautioned the jurors to disregard any arguments of counsel
that misstated the law. But, just as in the preceding bench
conference, the judge gave the jurors no indication as to
whether he thought that the prosecutor had, in fact,
misstated the law.
received this response from the trial judge, the prosecutor
then restated her point (without further objection):
Prosecutor. [Your verdict] is not permanent and
irrevocable, the way it is when you decide to kill a loved
one. Don't let that hyperbole skew your decision.
deliberations, the jury found Adams guilty of second-degree
we conclude that both the prosecutor's and the defense
attorney's arguments were improper
concept of "proof beyond a reasonable doubt" is
difficult, if not impossible, to define with precision. At
the time of Adams's trial, Alaska Criminal Pattern Jury
Instruction 1.06 defined "proof beyond a reasonable
doubt" as evidence which, upon consideration, is so
convincing that a person would be willing to act upon it,
without hesitation, in their own important affairs. We
recently criticized this formulation in Roberts v.
State, 394 P.3d 639, 644 (Alaska App.
when Adams's defense attorney delivered his summation to
the jury, he urged the jurors to equate the concept of
"proof beyond a reasonable doubt" with the kind of
convincing proof that the jurors would require before
deciding to withdraw life support from a loved one.
argument was improper because it suggested that the jurors
should decide Adams's case as if they had a powerful, if
not overwhelming, personal interest in the outcome. The
defense attorney told the jurors that they should not be
satisfied with the State's evidence unless it was so
convincing that they would be willing to act on it, without
hesitation, when making a decision that was fraught with
emotion and which would have irrevocable and irremediable
consequences for one or more people whom they loved.
the prosecutor objected to the defense attorney's
argument, it would have been better if the trial judge had
told the jurors that the defense attorney's argument was
improper for these reasons, and if the judge had reminded the
jurors that they had been selected precisely because they
were capable of being disinterested judges of Adams's
case - capable of deciding Adams's guilt or innocence
without having their decision ...