Davis v. Alaska, 2018 Alas. App. LEXIS 203 (AK Ct. App. 2018)
Court of Appeals No. A-12474, No. 6690.
Court of Appeals of Alaska.
August 22, 2018.
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-14-10859 CR, Anchorage, Michael L. Wolverton, Judge.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge and Allard, Judge.
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
William Charles Davis was convicted, following a jury trial, of third-degree assault and fourth-degree weapons misconduct after he fired a gun during an altercation with his neighbor. On appeal, Davis challenges his assault conviction and argues that the prosecutor’s unobjected-to remarks during closing argument regarding Davis’s failure to call 911 constituted an impermissible comment on his pre-arrest silence. For the reasons explained in this decision, we find no plain error under the circumstances presented here.
Factual background and prior proceedings
The incident in this case arose because of escalating tensions between two next-door neighbors, Davis and DaRon Mason.
In September 2014, there was a confrontation between Davis and Mason regarding the placement of plastic storage units on Mason’s property. Davis told Mason that they were too close to the property line. In response to Davis’s complaints, Mason picked up a piece of wood and violently knocked down the storage units. Mason’s behavior seemed threatening enough that Davis called 911. The police arrived some time later, but they concluded that there had been no crime. The police did not speak to Mason, who did not answer his door when they knocked.
More than a month later, on November 28, 2014, Davis was drinking in the backyard with friends, while Mason was working on the seven-foot high privacy fence he was building on his side of the property line. Davis went over to Mason and the two men began arguing. During the argument, Davis pulled out a handgun from behind him, pointed it at about a 45-degree angle over Mason’s head, and fired. Davis then threatened Mason, telling him “Say something else, [and] I’m going to blow your fucking brains out.” Mason responded by saying “If you pull that gun, you might as well use it.” Mason then shouted for Davis’s friends to take Davis inside.
After hearing the gunshot, one of Davis’s friends came out and pulled Davis into the house. Davis put the gun in a bedroom closet and continued drinking beer. Mason called 911, and the police arrived within a few minutes. Davis did not call 911.
(After the State introduced Mason’s 911 call into evidence at trial, Davis’s attorney then introduced Davis’s 911 call from the earlier September incident. Davis’s attorney also elicited testimony establishing that Davis was a member of his Neighborhood Watch and that he had called 911 for neighborhood disturbances in the past.)
Davis was arrested soon after the police arrived. Following his arrest, Davis made a number of statements to the police. In those statements, Davis denied threatening Mason. Davis did not deny having a handgun during the altercation. But he did not mention that he fired his gun, nor did he claim that he had fired it in self-defense.
Davis was indicted on one count of third-degree assault for recklessly placing another person in fear by means of a dangerous instrument. He was also charged with fourth-degree misconduct involving weapons for possessing a firearm while intoxicated.
At trial, Davis’s attorney conceded that Davis fired his gun above Mason’s head, but he argued that Davis fired the gun in self-defense. The attorney argued that Mason was a bully, and he asserted that, during the verbal confrontation that preceded the firing of the gun, Mason was leaning over the fence and threatening Davis with a nailgun. The defense attorney also argued that the police had rushed to judgment when they arrived, and that they had not been interested in hearing Davis’s side of the story. Davis did not testify at trial.
The prosecutor argued that Davis’s actions were not consistent with a person who had fired a gun in self-defense. In keeping with this argument, the prosecutor began his closing argument by characterizing Davis as someone who “calls 911 all the time.” The prosecutor then argued that it was therefore suspicious that Davis did not call 911 after his altercation with Mason when, according to Davis’s theory of defense, he was in fear for his life and he believed that he had to resort to firing his gun to defend himself against his neighbor. The prosecutor also pointed out that Davis’s other actions were inconsistent with his claim of self-defense: Davis had to be pulled back from the altercation by his friend, and Davis’s primary response to what happened was to hide his gun in a bedroom closet and continue to drink beer. The prosecutor then continued:
Why’d he do all these things? Why didn’t he call 911? Because people don’t call 911 on themselves when they just committed a crime, when they’re intoxicated, they possess a weapon and they fire it up in the air and threaten to blow their neighbor’s brains out. People don’t call 911 when they do that. Guilty people don’t call 911. Mr. Davis is guilty.
Davis’s attorney did not object to these remarks.
Following deliberations, the jury convicted Davis of both offenses.
Why we reject Davis’s plain error argument on appeal
On appeal, Davis argues that the prosecutor’s remarks regarding Davis’s failure to call 911 constituted an impermissible comment on Davis’s right to pre-arrest silence. Because Davis did not object to the prosecutor’s closing argument, his claim is reviewable only for plain error. To establish plain error, Davis must show (1) that the error was obvious, (2) that the error was not the product of waiver or a tactical decision to withhold an objection, (3) that the error affected his substantial rights, i.e., it must have pertained to the fundamental fairness of the trial, and (4) that the error was prejudicial.
As Davis acknowledges, the federal constitution does not protect a defendant’s right to pre-arrest silence. Whether the Alaska Constitution protects a defendant’s right to pre-arrest silence remains an open question under Alaska law.
However, both this Court and the Alaska Supreme Court have held that evidence of pre-arrest silence as proof of guilt is generally inadmissible under Alaska Evidence Rule 403 because of its “inherently low probative value” and “concomitantly high risk of unfair prejudice.” As we explained in Silvernail v. State, evidence of pre-arrest silence is relevant “only under circumstances in which it would have been natural for the accused to speak.” But under most circumstances, evidence of a defendant’s silence is ambiguous given the “many reasons why an accused’s `natural’ response would be to remain silent.”
Davis argues that the prosecutor’s remarks regarding Davis’s failure to call 911 were akin to an impermissible comment on Davis’s silence. We agree with Davis that, as a general matter, a prosecutor should not use a defendant’s failure to call 911 as stand-alone evidence of the defendant’s guilt. As Davis points out, there are many legitimate reasons why a person might choose not to enlist police assistance, just as there are many legitimate reasons why a person might choose to remain silent in the face of police questioning.
We do not agree with Davis, however, that the prosecutor’s remarks necessarily treated Davis’s failure to call 911 as stand-alone evidence of his guilt. Although the prosecutor’s statements included the broad declaration “Guilty people do not call 911,” the prosecutor’s remarks were focused on the specific circumstances of this case — in particular, Davis’s demonstrated willingness to call 911 in prior situations far less serious than what he claimed had occurred here. Indeed, the prosecutor prefaced his remarks by noting that the trial had shown that Davis was “someone who calls 911 all the time.”
We also do not agree that the connection between the prosecutor’s remarks and the prohibition against commenting on a defendant’s pre-arrest silence would have been obvious to the superior court in the absence of an objection that explained that connection. Prior appellate cases finding plain error in this context have involved a prosecutor’s improper comments on a defendant’s silence in the face of pre-arrest police questioning. They have not involved comments on a defendant’s action (or rather inaction) in failing to call 911 in the first instance.
Notably, this case did not involve a defendant who remained silent in the face of police questioning. Instead, Davis provided statements to the police after his arrest — statements that did not directly support Davis’s claim of self-defense at trial. The prosecutor was entitled to comment on how those statements were inconsistent with Davis’s claim of self-defense, just as the prosecutor was entitled to comment on how Davis’s actions after the altercation were also inconsistent with his defense. Whether those comments could include emphasizing Davis’s failure to call 911 is perhaps debatable, but it is not obvious error in the absence of a defense objection.
When we review a prosecutor’s statements during closing argument for plain error, we are required to view the statements in the context of the record as a whole.Here, the challenged statements were only a small part of an otherwise proper closing argument, and they were not obviously improper given the context in which they occurred. Accordingly, we find no plain error.
The judgment of the superior court is AFFIRMED.
 AS 11.41.220(a)(1)(A) and AS 11.61.210(a)(1), respectively.
 Davis does not seek reversal of his weapons-misconduct conviction.
 AS 11.41.220(a)(1)(A).
 AS 11.61.210(a)(1).
 Hess v. State, 382 P.3d 1183, 1185 (Alaska App. 2016).
 Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
 Id. at 766.
 Id. at 770; Silvernail v. State, 777 P.2d 1169, 1175 (Alaska App. 1989).
 Silvernail, 777 P.2d at 1176 (citing United States v. Hale, 422 U.S. 171, 176 (1975)).
 See Adams, 261 P.3d at 767; Silvernail, 777 P.2d at 1176-77 (citing Hale, 422 U.S. at 177)).
 See Adams, 261 P.3d at 763, 773; Silvernail, 777 P.2d at 1172, 1174-79.
 See Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012) (citing Patterson v. State, 747 P.2d 535, 541 (Alaska App. 1987)).