Adams v. State , S–13733.

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.
• Citation: 261 P.3d 758
• Parties: Leroy ADAMS, Petitioner,v.STATE of Alaska, Respondent.
• Docket Number: No. S–13733.,S–13733.
• Decision Date: 16 September 2011

261 P.3d 758

Leroy ADAMS, Petitioner,

v.STATE of Alaska, Respondent.

No. S–13733.

Supreme Court of Alaska.

Sept. 16, 2011.

Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Respondent.Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

OPINION

FABE, Justice.I. INTRODUCTION

A jury convicted Leroy Adams of sexual assault in the second degree for having sexual intercourse with K.S. when he knew that K.S. was unaware that a sexual act was being committed. Both Adams and K.S. were intoxicated at the time, and Adams testified at trial that the sex was consensual. During his cross-examination of Adams, the prosecutor questioned Adams about his refusal to speak to the police prior to trial. The prosecutor also argued to the jury in closing that Adams's refusal to talk to the police made his testimony at trial less credible. Adams claimed on appeal that the prosecutor's questions and argument were improper comments on Adams's right to silence under article I, section 9 of the Alaska Constitution. Because Adams did not object to the prosecutor's questions or argument at trial, his claims were reviewed for plain error, and the court of appeals affirmed his conviction. We granted Adams's petition for review and now conclude that the prosecutor improperly commented on Adams's invocation of his right to silence and violated his constitutional rights. We reverse Adams's conviction and remand for a new trial.

II. FACTS AND PROCEEDINGSA. Underlying Facts

On February 7, 2005, K.S. traveled from her home in Kivalina to Kotzebue for a dentist appointment. K.S. was sixteen years old at the time. That night, K.S. was drinking with a friend and consumed about half a bottle of whiskey. She left her hotel room and went to the apartment of Nellie Knox, where K.S.'s cousin Emma Hawley was staying. According to Hawley, K.S. was visibly intoxicated, “banging on the door” of Knox's apartment and “hollering.” Hawley tried to convince K.S. to come inside and go to sleep, but K.S. refused and said that she wanted to go out. Hawley left K.S. in the hallway and went back inside Knox's apartment. Going to see Hawley was the last thing that K.S. remembered prior to waking up in Leroy Adams's apartment.

Leroy Adams and his wife Mae Adams lived in the same apartment complex. On the night of February 7 and the early morning hours of February 8, Adams and Mae were drinking whiskey and playing board games in their apartment with Lena Koenig, who described Mae and Adams as her aunt and uncle. Adams and Mae were 47 years old at the time and they knew K.S. from Kivalina. Emma Hawley testified that before she went back inside, she saw Mae call K.S. over to her apartment. According to Mae, she was outside smoking a cigarette with Adams and Koenig when she noticed that K.S. was so drunk that she was “staggering” and about to “pass out.” Because they were concerned that K.S. would freeze outside in the cold, Koenig and Mae had K.S. come back to the Adamses' apartment.

At the Adamses' apartment, K.S. sat or lay on the couch while Adams, Mae, and Koenig continued to drink and play board games. Mae and Adams testified that K.S. wanted to drink more whiskey, but Mae would not give her any. K.S. then got up from the couch and tried to grab the bottle of whiskey, which was near Adams. According to Mae and Adams, K.S. let her shirt slide down and rubbed her breast against Adams's arm before grabbing the whiskey bottle and drinking from it. Adams said that he was also “pretty well intoxicated” at this point.

Koenig and Mae then went back outside to smoke another cigarette and Koenig left the apartment complex. Adams testified that he asked K.S. if she was “coming on to [him]” by “touching [his] elbow with her [breast]” and if “she wanted to get it on while no one was in the apartment.” Adams maintained that K.S. voluntarily went into the bedroom with him, that she consented to oral sex, and that she was awake and actively participating. At that point, Mae returned to the apartment, went into the bedroom and saw K.S. lying on the bed with Adams's “head between her legs.” Mae testified that K.S. was awake “because she had her eyes open,” but that neither Adams nor K.S. said anything. Mae also claimed that she “tried to stop [Adams],” but that he “put out his arm, and [she] blacked out after that.” According to Adams, he shoved Mae when Mae tried to pull him off K.S., and Mae then went back to the living room.

Adams further testified that a few minutes later, Mae returned to the bedroom and began touching K.S.'s breasts. He claimed that he told Mae to leave and then asked K.S. if they could have vaginal intercourse. According to Adams, K.S. consented, and afterward “we both realized what we had done, and she wanted to get out of the apartment as quickly as she can [sic].” He said that K.S. got dressed, went to the bathroom, and left after calling Emma Hawley to ask her to open the door to Nellie Knox's apartment. Adams and Mae then continued drinking and fell asleep until the police knocked on their door the next morning.

K.S. testified that after talking to Hawley outside Knox's apartment, the next thing she remembered was waking up with Adams on top of her engaged in vaginal intercourse. K.S. maintained that she did not consent and also alleged that Mae was in the room “playing with [K.S.'s] bottom.” According to K.S., when she woke up, Adams got off of her, and she went to the bathroom, dressed, and called Hawley.

When Hawley answered the phone, K.S. was crying and said “I'm hurting and I don't know what to do” and “she pushed me ... with her breasts.” K.S. asked Hawley to open the door to Knox's apartment. When K.S. arrived at Knox's apartment, she was still crying and had left her shoes behind. K.S. told Hawley, “I'm hurting” and “it hurts when I pee,” and then she went back to sleep. Based on K.S.'s statements, Hawley told her uncle that K.S. had been raped. Hawley's uncle then called the Alaska State Troopers.

B. The Investigation

Trooper Ron Monigold arrived at the apartment complex around 8:30 a.m. on February 8. He met with K.S. and observed that she was upset and crying and appeared to still be intoxicated. Trooper Monigold took K.S. to the hospital, where she underwent a sexual assault examination and gave a statement to the police.

Trooper Monigold then returned to the apartment complex and made contact with Adams around 10:00 a.m. Trooper Monigold smelled alcohol on Adams's breath and spoke to Adams for about five to ten minutes. Adams told Trooper Monigold that the previous evening Adams and Mae had been outside smoking when they saw K.S. passed out on the stairs. Adams said that they first took K.S. to her friend's apartment (presumably the apartment of Nellie Knox), and that later K.S. came to their apartment. At some point during the interview, Adams told Trooper Monigold that he no longer wanted to answer questions. Trooper Monigold asked Adams to accompany him to the hospital for a sexual assault exam and mentioned that it was in Adams's best interest to make sure that he had not contracted a sexually transmitted disease. Adams agreed to accompany the trooper to the hospital, where a DNA specimen was obtained from him for a sexual assault suspect kit.

The sexual assault exams showed that DNA from the sperm collected from K.S.'s vagina was a statistical match to Adams's DNA. On August 26, 2005, Leroy and Mae Adams were each indicted on one count of sexual assault in the second degree.¹

C. The Prosecutor's Disputed Remarks

The case against Leroy and Mae Adams was scheduled for trial in November 2005. On the eve of trial, Mae Adams reached an agreement with the State to plead no contest to misdemeanor fourth-degree assault. This agreement allowed Mae to avoid the possibility of a felony conviction and sex offender registration. Mae agreed to a sentence of 360 days jail time with 270 days suspended and 90 days to serve and also agreed to testify at Adams's trial. The case against Leroy Adams proceeded to trial.²

During the State's case-in-chief on Thursday, November 17, the prosecutor took steps to make sure that the jury was not informed that Adams invoked his right to silence prior to trial. In the middle of his direct examination of Trooper Monigold, the prosecutor asked for a sidebar and told the judge, “I want to play a portion of the taped interview with the defendant and Trooper Monigold. What we want to make sure is that it's only that portion of statements that he made not about his right—exercising his right to remain silent.” Adams's attorney did not object to the tape, but agreed that he was concerned “that it doesn't get slipped in that [Adams] exercised his right.” When the trial judge determined that the tape was of too poor a quality to play for the jury, the prosecutor agreed to question Trooper Monigold about the interview without asking any questions about Adams's invocation of his right to remain silent.

A similar exchange occurred during the redirect examination of Trooper Monigold. Prior to asking follow-up questions about the interview, the prosecutor requested a sidebar with the witness and cautioned Trooper Monigold: “Do not refer to his right to remain silent or the fact that he exercised his right to remain silent.... Where you can't go is, I tried to ask him this and he said, I want to talk to my attorney, or he didn't want to tell me anything else.”

The remarks at issue in this appeal came when the trial reconvened four days later on Monday, November 21, and Adams took the stand in his own defense. On cross-examination, the prosecutor asked Adams about his conversation with Trooper Monigold on February 8:

Q: Do you remember talking to Officer Monigold?

A: Yes, I do.

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