      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

KENNETH A. GOLDSBURY,                          )
                                               )        Supreme Court No. S-15393
                      Petitioner,              )        Court of Appeals No. A-10624
                                               )
      v.                                       )        Superior Court No. 3PA-09-00204 CR
                                               )
STATE OF ALASKA,                               )        OPINION
                                               )
                      Respondent.              )        No. 6983 – February 13, 2015
                                               )

              Petition for Hearing from the Court of Appeals of the State of
              Alaska, on appeal from the Superior Court of the State of
              Alaska, Third Judicial District, Palmer, Kari Kristiansen,
              Judge.

              Appearances: Paul E. Malin, Law Office of Christine
              Schleuss, Anchorage, for Petitioner. Eric A. Ringsmuth,
              Assistant Attorney General, Office of Special Prosecutions
              and Appeals, Anchorage, and Michael C. Geraghty, Attorney
              General, Juneau, for Respondent.

              Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
              Justices. [Bolger, Justice, not participating.]

              FABE, Chief Justice.

I.    INTRODUCTION
              A criminal defendant exercised his constitutional right not to testify at trial.
The prosecutor, in her rebuttal closing argument, commented that two people knew what
had happened on the night in question, and only one of them, the victim, had testified.
The defendant did not object to the comment, and the jury convicted him of attempted
murder. The court of appeals, reviewing the defendant’s unpreserved claim of error,
determined that the prosecutor’s remark violated the defendant’s right against self-
incrimination. But the court of appeals concluded that there was no plain error because
“at least some reasonable judges could have concluded that the problem was not
egregious enough to warrant a mistrial, and that the problem could be handled through
curative instructions.”1 We affirm the conviction, but for a different reason — because
the error, even though obvious, non-tactical, and affecting a substantial right, was
harmless beyond a reasonable doubt.
II.    FACTS AND PROCEEDINGS
              Following a dispute at the Roadside Inn at Mile 49.5 of the Parks Highway,
Kenneth Goldsbury fired a round of bird shot through the door of his motel room,
striking Marvin Long in the torso. Long sustained minor injuries. At trial the State
asserted that Goldsbury had intended to kill Long, and that he had taken a substantial
step toward that goal by firing the round of bird shot through the door. Goldsbury
argued that he was acting in self-defense and that he lacked the requisite intent to support
a conviction for attempted murder in the first degree. The jury heard testimony from
Long, but Goldsbury did not take the stand. During her closing argument rebuttal, the
prosecutor remarked:
              [W]e heard all this talk about what was not done in the
              investigation. But the fact remains, the only people who
              know what happened that night are [the victim] and the
              defendant. And [the victim] testified, came in here and faced
              all you people, and told you what happened in this case.



       1
            Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *5
(Alaska App. June 13, 2012).

                                            -2-                                       6983
Goldsbury’s attorney did not object to this statement, despite its implicit adverse
comment on Goldsbury’s decision not to testify.
             Before the closing arguments the superior court had given the jury a series
of instructions, which included the following passage regarding the presumption of
innocence and the burden of proof beyond a reasonable doubt:
             A defendant has the absolute right not to testify, and you must
             not draw any inference against the defendant for not
             testifying. Thus a reasonable doubt may arise not only from
             the evidence produced, but also from a lack of evidence.
             Since the burden is upon the prosecution to prove every
             essential element of the crime charged, beyond a reasonable
             doubt, a defendant has the right to rely upon the failure of the
             prosecution to establish such proof. (Emphasis added.)
And immediately following the prosecutor’s closing argument rebuttal, the superior court
gave another set of instructions, which further specified:
             A defendant has an absolute right not to testify. The fact that
             the defendant did not testify cannot be considered by you in
             any way. Do not speculate about why the defendant did not
             testify. Do not even discuss it in your deliberations.
             It is up to the State to prove the defendant guilty beyond a
             reasonable doubt. It is not up to the defendant to prove that
             he is innocent. (Emphasis added.)
No instruction specifically addressing the prosecutor’s comment during closing
arguments was requested or given.
             The jury convicted Goldsbury of attempted murder in the first degree,2
assault in the second degree by intentionally causing physical injury with a dangerous




      2
             AS 11.41.100(a)(1)(A); AS 11.31.100(a).

                                           -3-                                    6983
instrument,3 recklessly firing a gun at a building,4 and criminal mischief in the fourth
degree resulting in property damage.5
              Goldsbury maintains that the prosecutor’s comment during closing
argument violated his state and federal constitutional rights against self-incrimination.
The court of appeals agreed that the prosecutor’s comment “clearly” was constitutionally
impermissible because its “obvious implication was that Goldsbury, the only other
person who could tell the jury what happened, was more likely guilty because he had not
testified.”6 But Goldsbury failed to preserve his argument for appeal by objecting at trial,
and the court of appeals concluded that the prosecutor’s statement did not constitute plain
error.7 Goldsbury petitioned this court for review, and we granted his petition on the
question “whether the prosecutor’s comment regarding Goldsbury’s failure to testify
meets the plain error test set forth in Adams v. State, 261 P.3d 758 (Alaska 2011).”8
III.   STANDARDS OF REVIEW
              “The proper extent of appellate review for an unpreserved claim of
constitutional error is a question of law that we review de novo.”9 The scope of the
constitutional right against self-incrimination “is a question of constitutional law which



       3
              AS 11.41.210(a)(1).
       4
              AS 11.61.195(a)(3)(A).
       5
              AS 11.46.484(a)(1).
       6
              Goldsbury, 2012 WL 2203055, at *3.
       7
              See id. at *4-5.
       8
               We did not grant review on a separate sentencing issue Goldsbury raised
in his petition.
       9
              Johnson v. State, 328 P.3d 77, 81 (Alaska 2014).

                                            -4-                                       6983

we decide de novo.”10 “Under the de novo review standard, we exercise our independent
judgment, and our ‘duty is to adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.’ ”11
IV.	   DISCUSSION
       A.	    The Prosecutor’s Comment Abridged Goldsbury’s Constitutional
              Right Against Self-Incrimination.
              The Fifth Amendment to the U.S. Constitution provides for a right against
self-incrimination: “No person . . . shall be compelled in any criminal case to be a
witness against himself . . . .”12 Similarly, article I, section 9 of the Alaska Constitution
provides: “No person shall be compelled in any criminal proceeding to be a witness
against himself.”13    The U.S. Supreme Court and this court have concluded that
prosecutors may not comment adversely on a criminal defendant’s decision to invoke his
right against self-incrimination.14 Even where an adverse comment only indirectly
addresses a defendant’s invocation of the right against self-incrimination, constitutional



       10	
              State v. Gonzalez, 853 P.2d 526, 529 (Alaska 1993).
       11
            Johnson, 328 P.3d at 81 (citation omitted) (quoting Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
       12
             U.S. CONST . amend V. The Fifth Amendment right against self-
incrimination was incorporated against the states via the Due Process Clause of the
Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 6 (1964).
       13	
              Alaska Const. art. I, § 9.
       14
                Griffin v. California, 380 U.S. 609, 615 (1965) (“[T]he Fifth Amendment
. . . forbids either comment by the prosecution on the accused’s silence or instructions
by the court that such silence is evidence of guilt.”); McCracken v. State, 431 P.2d 513,
517 (Alaska 1967) (“It is concededly improper and reversible error to comment on the
failure of a defendant to testify in his own behalf . . . .”) (quoting Knowles v. United
States, 224 F.2d 168, 170 (10th Cir. 1955)).

                                            -5-	                                       6983

error occurs if “the language used was manifestly intended or was of such character that
the jury would naturally and necessarily take it to be a comment on the failure of the
accused to testify.”15
              During closing arguments the prosecutor asserted that “the only people who
know what happened that night are [the victim] and the defendant. And [the victim]
testified, came in here and faced all you people, and told you what happened in this
case.” We agree with the court of appeals’ conclusion that “[t]he prosecutor’s argument
in this case was clearly an improper statement.”16 This “comment on the failure of the
accused to testify”17 improperly infringed on Goldsbury’s constitutional right against
self-incrimination.
       B.	    The Prosecutor’s Constitutional Violation Does Not Require Reversal
              Of The Conviction.
              Goldsbury’s attorney failed to object to the prosecutor’s comment during
rebuttal at closing arguments. “Typically, a litigant or defendant must raise an objection
in the trial court in order to preserve that argument for appeal.”18 But “prudential
exceptions,”19 like the plain error rule, exist “to provide us with an opportunity to review
certain types of errors that we will not allow to go unreviewed despite the appellant’s




       15	
              McCracken, 431 P.2d at 517 (quoting Knowles, 224 F.2d at 170).
       16
            Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *3
(Alaska App. June 13, 2012).
       17
              McCracken, 431 P.2d at 517 (quoting Knowles, 224 F.2d at 170).
       18
              Johnson v. State, 328 P.3d 77, 82 (Alaska 2014).

       19
              Id.


                                            -6-	                                      6983

failure to preserve the argument for appellate review.”20 In Adams v. State we set out the
test for plain error:
              Establishing plain error . . . requires the following: (1) there
              must be error, and the error must not have been the result of
              an intelligent waiver or a tactical decision not to object; (2)
              the error must be obvious, meaning that it should have been
              apparent to any competent judge or lawyer; (3) the error must
              affect substantial rights, meaning that it must pertain to the
              fundamental fairness of the proceeding; and (4) the error
              must be prejudicial. A constitutional violation will always
              affect substantial rights and will be prejudicial unless the
              State proves that it was harmless beyond a reasonable
              doubt.[21]
And in Charles v. State we emphasized that “instead of focusing on whether [an] error
was hypothetically obvious, we ask whether the error was ‘so prejudicial to the fairness
of the proceedings that . . . failure to correct it would perpetuate manifest injustice.’ ”22
              Here, the court of appeals seemed to reason that in order to find plain error,
it must conclude that “any reasonable judge [would] have had to declare a mistrial” if
Goldsbury had objected to the prosecutor’s comment.23 The court’s implicit rationale
appears to be that because the appropriate remedy was not obvious, the error itself was
not obvious. On this basis, and without any consideration of prejudice in its analysis, the
court of appeals concluded that there was no plain error. But our subsequent decisions
in Charles and Johnson have emphasized that prejudice is the touchstone of plain error

       20
              Id. at 82 n.24.
       21
              261 P.3d 758, 773 (Alaska 2011).
       22
              326 P.3d 978, 987 (Alaska 2014) (omission in original) (quoting Charles
v. State, 287 P.3d 779, 783 (Alaska App. 2012)).
       23
            See Goldsbury v. State, Mem. Op. & J. No. 5854, 2012 WL 2203055, at *4
(Alaska App. June 13, 2012).

                                            -7-                                        6983

review.24 And in this case the obviousness element is clearly satisfied: Had Goldsbury’s
attorney objected, the superior court could not have overruled the objection because it
is well-established in our jurisprudence that a comment on a defendant’s failure to testify
violates the Fifth Amendment and Alaska Constitution.25 And “[t]he fact that reasonable
people could disagree about a proposition” — or in this case an appropriate remedy —
does “not prevent a trial court’s actions . . . from constituting plain error.”26 Finally, the
fact that the error involves the infringement of a constitutional right supports a
conclusion that it was obvious.27
              Similarly, the court of appeals avoided considering prejudice by suggesting
that Goldsbury’s failure to make a timely objection foreclosed the possibility of plain
error because that failure to object may have been tactical.28 But “[w]hether [a]
defendant made a tactical decision not to object or intelligently waived an opportunity
to object must be plainly obvious from the face of the record, not presumed in the face
of a silent or ambiguous record.”29 Here, although tactical reasons not to object may

       24
              See Charles, 326 P.3d at 987; Johnson, 328 P.3d at 83 n.27.
       25
              See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“[T]he Fifth
Amendment . . . forbids either comment by the prosecution on the accused’s silence or
instructions by the court that such silence is evidence of guilt.”); McCracken v. State, 431
P.2d 513, 517 (Alaska 1967) (“It is concededly improper and reversible error to
comment on the failure of a defendant to testify in his own behalf . . . .”).
       26
              See Johnson, 328 P.3d at 83 n.27.
       27
            See id. at 84 n.33 (“[T]he size or nature of the error deviating from the
claimed right is a factor we consider when determining whether to review an
unpreserved claim of error for plain error.”).
       28
              See Goldsbury, 2012 WL 2203055, at *4.
       29
              Moreno v. State, ___ P.3d ___, Op. No. 6982 at 26, 2015 WL _________,
                                                                       (continued...)

                                             -8-                                        6983

exist, there is simply no evidence to suggest that Goldsbury’s attorney in fact made a
conscious decision not to object. And contrary to the State’s suggestion, the burden does
not fall on Goldsbury to prove that his attorney’s failure to object was not tactical.30
Thus there is an obvious non-tactical error affecting a substantial right. With the first
three elements from Adams satisfied, our analysis, as Charles directs, turns to prejudice.
              We conclude that the State satisfied its burden to prove the constitutional
error harmless beyond a reasonable doubt given the brief, isolated, and indirect nature
of the comment regarding Goldsbury’s right not to testify, and the instructions to the jury
immediately before and after that comment. In Adams we did note that prejudicial
comments made during closing arguments are more likely to be prejudicial and less
likely to be mitigated by curative instructions than are comments made during other parts
of a trial.31 But the conduct at issue here is far less egregious than that in Adams. There,
the prosecutor repeatedly drew negative inferences from the defendant’s silence in
response to police questions, elicited testimony regarding the defendant’s silence twice
during cross-examination of the defendant, and “pointed to Adams’s silence to argue that
Adams’s testimony was less credible than the victim’s” on three separate occasions
during his closing argument.32 In contrast, the comment regarding Goldsbury’s failure
to testify was isolated and indirect. The prosecutor made no express reference to


       29
        (...continued)
at *__ (Alaska Jan. 30, 2015).
       30
              See id. (“We have never placed this burden on the defendant.”).
       31
              See Adams v. State, 261 P.3d 758, 774-75 (Alaska 2011); Dorman v. State,
622 P.2d 448, 458 (Alaska 1981) (“Even where a timely objection is made and sustained,
a curative instruction may be insufficient to remove the prejudice caused by a guilt by
silence argument in a close case such as this one.”).
       32
              See Adams, 261 P.3d at 762-63.

                                            -9-                                       6983

Goldsbury’s decision not to testify, and the comment was “brief and passing” rather than
an express call for jury members to draw a negative inference from Goldsbury’s failure
to testify at trial, as was the case in Adams.33
                 Under these circumstances the comment was not so inflammatory as to be
incurable by instruction, and the actual instructions given to the jury just before and after
the comment were sufficient to cure any harm which may have arisen from the comment.
Had Goldsbury made a timely objection to the comment, it would have been reasonable
for the superior court to have issued a curative instruction, which would have directed
the jury to disregard the specific comment made by the prosecutor, informed the jury of
the defendant’s constitutional right not to testify, and announced the jury’s obligation not
to draw any inferences from defendant’s failure to testify.34 And here, immediately
before the closing arguments in which the comment was made, the superior court issued
the following instruction: “A defendant has the absolute right not to testify, and you
must not draw any inference against the defendant for not testifying.” Immediately after
the conclusion of the prosecutor’s rebuttal, the superior court issued another instruction
on this topic:
                 A defendant has an absolute right not to testify. The fact that
                 the defendant did not testify cannot be considered by you in
                 any way. Do not speculate about why the defendant did not
                 testify. Do not even discuss it in your deliberations.


       33
              See id. at 775 (recognizing that the court of appeals had previously held that
“comments on a defendant’s silence are more likely to be prejudicial if the comment was
‘express’ rather than a ‘brief and passing’ reference” (quoting Van Hatten v. State, 666
P.2d 1047, 1056 (Alaska App. 1983))).
       34
               See, e.g., Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App. 1989)
(affirming a curative instruction in the context of improper comment on defendant’s pre­
trial silence which specifically announced that “the last five questions and responses are
not to be considered by you in your deliberations”).

                                              -10-                                     6983

The jury therefore received two explicit instructions regarding Goldsbury’s constitutional
right not to testify and the jury’s obligation not to draw inferences from, or even discuss,
his failure to testify, both within close temporal proximity to the prosecutor’s improper
comment. And the jury retained written copies of the instructions for reference during
their deliberation.
              In our view, the harm from the prosecutor’s comment, which was brief,
isolated, and oblique, was cured by the jury instructions on Goldsbury’s right not to
testify before and after the comment. Accordingly, the State’s burden to prove that the
error was harmless beyond a reasonable doubt is satisfied.35
V.     CONCLUSION
              Because the error was harmless beyond a reasonable doubt, reversal of
Goldsbury’s conviction is not warranted. We AFFIRM.




       35
              We emphasize that although reversal is not warranted in this case, we do
not condone the comment at issue. The prosecutor’s remark in her rebuttal closing
argument unequivocally violated Goldsbury’s right against self-incrimination. But the
purpose of the plain error doctrine is to reverse errors which would “contribute to a
miscarriage of justice.” Adams, 261 P.3d at 764. With that in mind, we note that an
identical comment made under different circumstances could warrant reversal in the
future. Our decision today should not be interpreted to hold that a standard jury
instruction on the right to remain silent is a per se cure for a constitutional violation of
that right. Rather, it is only one factor in the prejudice component of our plain error
analysis.

                                           -11-                                       6983
