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David v. State7/14/2004
A Bethel jury convicted Michael David Sr. of felony bootlegging (selling alcoholic beverages without a license in a "local option" community - i.e., a community that has adopted restrictions on the sale or possession of alcoholic beverages). In this appeal, David contends that the prosecutor engaged in improper argument during the State's summation to the jury, and that the trial judge should therefore have declared a mistrial. In addition, David asserts that his sentence of 3 1/2 years to serve is excessive. For the reasons explained here, we conclude that the trial judge did not abuse his discretion when he denied David's motion for a mistrial, and we further conclude that David's sentence is not excessive.
The Facts Underlying David's Request for a Mistrial
At David's trial, the State presented the testimony of Betty Williams, the undercover police officer who had purchased the bottles of alcoholic beverages from David. During the defense cross-examination of Williams, David's attorney asked her about a taped statement that she had made following David's arrest. In particular, the defense attorney asked Williams whether it was true that, in this taped statement, she had stated that a third person named "Gubby", and not David, had sold her the bottles. The prosecutor objected that this was a mischaracterization of Williams's taped statement - that Williams had made no such assertion. Eventually, the prosecutor and the defense attorney agreed that the relevant portion of Williams's taped statement would be played for the jury, so that the jurors could judge for themselves what Williams did or did not say.
Later, during the defense closing argument, David's attorney asked the jurors to consider certain purported inconsistencies in Williams's testimony. And during the State's rebuttal argument, the prosecutor responded to the defense attorney's argument:
Prosecutor: [The defense attorney] asked our witness,
Betty Williams, "Didn't you say that 'Gubby' made the sale?" And [Williams] did not say that. You heard a portion of the tape that she made [after David's arrest], and we have stipulated that the only comment she made about 'Gubby' when she was indicating who she believed lived in the home. And if her testimony was so inconsistent with what she had told [the other police officer conducting the interview], we would've been able to play the tape for you. I was not allowed to play the tape for you.
That is, the prosecutor was apparently trying to argue that Williams's taped statement could not have been substantially inconsistent with her trial testimony because, if the taped statement had been materially inconsistent, it would have been admissible as a prior inconsistent statement under Alaska Evidence Rule 801(d)(1)(A).
At this point, David's attorney objected that the prosecutor's argument was "misconduct" and was "highly prejudicial". The defense attorney argued (correctly, we believe) that the prosecutor's comments invited the jurors to draw an inference from one of the trial judge's evidentiary rulings, and that the prosecutor's comments at least impliedly suggested that the defense was trying to keep information from the jury. The defense attorney asked for a mistrial.
The trial judge - Superior Court Judge Leonard R. Devaney III - admonished the prosecutor to stop "talk about any law that's not in the jury instructions", and he instructed the prosecutor to "drop this [subject] and move forward". However, Judge Devaney denied David's request for a mistrial because he concluded that the prosecutor "hadn't quite gotten to the point she was trying to make", so no real damage had been done.
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