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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JAMES WILLIAM LEFFEL,
                                                      Court of Appeals No. A-11916
                            Appellant,               Trial Court No. 3AN-12-2785 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                  No. 2564 — August 25, 2017


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Jack Smith, Judge.

              Appearances: Jason A. Gazewood, Gazewood & Weiner, PC,
              Anchorage, for the Appellant. Terisia K. Chleborad, Assistant
              Attorney General, Office of Criminal Appeals, Anchorage, and
              Craig W. Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge SUDDOCK.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             James William Leffel was convicted of first-degree assault1 for stabbing
another man in the leg during a confrontation outside the Buckaroo Club, an Anchorage
bar.
             In this appeal, Leffel argues that the prosecutor improperly commented on
Leffel’s post-arrest silence. We agree that the prosecutor should not have characterized
Leffel’s claim of self-defense as “new information,” thus implying that Leffel had not
disclosed this information to the police. However, for the reasons we explain here, we
conclude that this implied reference to Leffel’s post-arrest silence was harmless beyond
a reasonable doubt.
             We also hold that the prosecutor should not have suggested that Leffel was
able to “tailor” his testimony because he had reviewed the State’s discovery materials,
but we conclude that this error was harmless.
             Lastly, Leffel challenges the trial judge’s admission of testimony about the
Hells Angels motorcycle club, of which Leffel was a member. The record supports the
judge’s ruling.


       Background facts and proceedings
             During an evening of drinking, Jens Schurig and three friends went to the
Buckaroo Club in Anchorage. They left the bar around midnight to await a cab. As the
men stood outside the bar, they commented upon a three-wheel Harley Davidson
motorcycle parked by the bar’s entrance.
             The Buckaroo’s bouncer, Anders Ekstrand, was also standing outside of the
bar. When Ekstrand heard Schurig and his friends discussing the motorcycle, Ekstrand




   1
       AS 11.41.200(a)(1).

                                         –2–                                        2564

ordered them not to touch it, nor even to look at it, on pain of a beating. Schurig
responded profanely and suggested that three-wheel motorcycles were less than manly.
              Leffel — the motorcycle’s owner and a member of the Alaska chapter of
the Hells Angels motorcycle club — had by this point emerged from the bar to smoke
a cigar. He was holding a pocket knife to cut the tip off of the cigar prior to lighting up.
Leffel’s friend, fellow Hells Angel Thomas Moore, joined him. Ekstrand recognized
both men as Hells Angels and as frequent patrons of the Buckaroo Club.
              When Leffel heard Schurig denigrate Leffel’s motorcycle, Leffel
approached Schurig and stabbed him in the upper thigh, opening Schurig’s femoral vein.
Bleeding profusely, Schurig soon lost consciousness. Leffel remained outside the bar,
smoking, until the police arrived and took him into custody.
              Leffel testified at trial, claiming self-defense. He testified that as he walked
toward his motorcycle to retrieve a lighter for his cigar, Schurig threw a punch at him.
Feeling outnumbered and vulnerable to attack by Schurig and his three friends, Leffel
stabbed Schurig’s leg.
              Both Ekstrand (the bouncer) and Moore (Leffel’s friend and fellow member
of the Hells Angels) testified in support of Leffel.
              The jury rejected Leffel’s claim of self-defense and found him guilty of
first-degree assault.


       Why we conclude that the prosecutor’s comment on Leffel’s post-arrest
       silence was harmless error
              After Leffel offered his exculpatory version of events at trial, the prosecutor
asked him, “Now, what we’re hearing today, we’re hearing it for the first time, right?”
The defense attorney immediately objected, and the attorneys approached the bench.



                                            –3–                                          2564

              The prosecutor told the trial judge that he intended to elicit that Leffel at no
time contacted the district attorney’s office to explain his side of the story — a clear
violation of Leffel’s right not to talk to the authorities about the pending charge.2 The
trial judge forbade the prosecutor from asking his proposed question, but he authorized
the prosecutor to establish that Leffel’s claim of self-defense was “new information” that
he was publicly revealing for the first time:
                     The Court: I think [that the prosecutor] can ask to
              [what] extent that this is new information. ... I mean, it
              doesn’t [implicate Leffel’s] right to remain silent. [The
              prosecutor] can [ask whether] this is the first time we’ve
              heard this. Now certainly, [the prosecutor] can’t go beyond
              that.
After receiving this ruling, the prosecutor asked Leffel: “This whole story that you’ve
testified [to] here today is new information, correct?”
              On appeal, Leffel argues that the prosecutor should not have been allowed
to ask this question, because it was an improper comment on Leffel’s right to post-arrest
silence. We agree. In a similar case, Adams v. State, the prosecutor impeached a
defendant through questions that alerted the jury that the defendant failed to offer an
exculpatory account of events to the authorities after his arrest.3 The Alaska Supreme
Court held that such questions are normally constitutional error.4 An exception applies
when a defendant places their silence at issue by asserting at trial that the police denied




   2
        See, e.g., Adams v. State, 261 P.3d 758, 770 (Alaska 2011) (citing Alaska Const. art.
1, § 9; Alaska Evid. R. 403).
   3
       261 P.3d 758, 762-63 (Alaska 2011).
   4
       Id. at 767, 774.

                                            –4–                                          2564

them an opportunity to tell their side of the story.5 A prosecutor may then comment on
the defendant’s earlier opportunity to, and voluntary decision not to, offer an exculpatory
version of events.6
              In Leffel’s case, the State concedes that the prosecutor’s question about
“new information” would have been error if offered to prove Leffel’s guilt. But the State
argues that Leffel opened the door to questions about his post-arrest silence by his
response to a question inquiring why he did not retrieve his knife from the ground
following the stabbing:
                     Leffel: Well, I glanced around for it, but by then the
              police were there, and they pretty well had every little red
              light in Anchorage on my chest, and you know, they’re
              telling me to throw down the cigar, and you know, I could
              see things weren’t going good. So I resigned myself to the
              fact that they really didn’t want to hear anything I had to say,
              and I needed to contact my attorney immediately.
Based on this testimony, the State contends (1) that Leffel volunteered that he chose to
contact an attorney rather than speak to the police, and (2) that Leffel implied that the
police refused to listen to him, thus opening the door to cross-examination on that point.
              But nothing in Leffel’s answer suggested that the police actively denied him
an opportunity to recount his version of events. Rather, Leffel stated that, given the
circumstances, he decided that it was not an opportune time for him to justify himself to
police, and that it would be better to consult an attorney. Leffel’s brief reference to his



   5
      Id. at 767-68 & n.46 (citing United States v. Robinson, 485 U.S. 25, 32 (1988)
(permitting a prosecutor to comment on the defendant’s choice not to testify when the
defense argued during closing that the government had “breached its duty to be fair” by
denying the defendant the opportunity to explain his actions)).
   6
       Id.

                                           –5–                                        2564

post-arrest silence did not justify the prosecutor’s question suggesting that Leffel’s self-
defense claim might be false because it was first disclosed at trial.7
              Because the prosecutor improperly commented on Leffel’s post-arrest
silence, Leffel’s conviction must be reversed unless the State can show that the error was
harmless beyond a reasonable doubt.8
              Adams sets forth the relevant harmless error factors for this case: (1)
whether Leffel’s conviction depended primarily on the jury’s assessment of the relative
credibility of Leffel’s testimony versus the testimony of other witnesses; (2) whether the
prosecutor’s questions directly elicited the testimony about Leffel’s post-arrest silence;
(3) whether the adverse comment on Leffel’s post-arrest silence was “express” as
opposed to “brief and passing;” and (4) whether the prosecutor accentuated the adverse
comment by repeating it during closing argument.9
              Here, the first factor weighs in Leffel’s favor. In large part, this case turned
on the relative credibility of Leffel and his two supporting witnesses versus Schurig and
his companions. But the remaining factors weigh against a finding of prejudice. The
prosecutor only briefly questioned Leffel about whether his claim of self-defense was
“new information.” And as we have explained, it was Leffel himself who first
volunteered that he decided not to explain matters to the police, and to consult an
attorney instead. Lastly, the prosecutor made no reference to Leffel’s post-arrest silence
or to “new information” during his closing argument.




   7
       See Adams, 261 P.3d at 767-68 (holding that the defense attorney’s tangential
references to silence did not “open the door” to prosecutorial comment on silence).
   8
       Id. at 773; Chapman v. California, 386 U.S. 18, 23 (1967).
   9
       See Moreno v. State, 341 P.3d 1134, 1147 (Alaska 2015); Adams, 261 P.3d at 774-75.

                                            –6–                                          2564

              We conclude that there is no reasonable possibility that the prosecutor’s
brief questions about “new information” affected the jury’s verdict. Thus, the error was
harmless beyond a reasonable doubt.10


        Why we conclude that the prosecutor should not have been allowed to
        comment on Leffel’s review of the pretrial discovery, but that the
        prosecutor’s comment was harmless error
              On appeal, Leffel contends that the prosecutor improperly implied that
Leffel deliberately conformed his testimony to the pretrial discovery. During the
prosecutor’s cross-examination of him, Leffel asserted that he was providing “pieces to
the puzzle” so that the jury could understand what had happened outside the bar.
Without objection, the prosecutor asked, “And you’re putting the pieces together because
you’ve read [the pretrial] discovery, correct?” The prosecutor then asked Leffel if he had
reviewed the police reports in the case. Leffel confirmed that he had read the reports.
              Although Leffel’s attorney did not object at the time, Leffel now argues that
the prosecutor’s questions about Leffel’s review of the pretrial discovery, in conjunction
with the prosecutor’s earlier comment that Leffel’s claim of self-defense was “new
information,” was an improper comment on Leffel’s post-arrest silence. Leffel reasons
that the prosecutor could only assert that Leffel had tailored his testimony to the police
reports because Leffel had remained silent following his arrest — and so had not
committed himself to a particular defense until the time of trial. Thus, Leffel argues that
the prosecution’s implication of tailored testimony amounted to an indirect comment on
Leffel’s post-arrest silence.
              The State analogizes this case to the United States Supreme Court case
Portuondo v. Agard, where the court declared that a prosecutor could properly comment

   10
        See Adams, 261 P.3d at 773.

                                           –7–                                        2564

on the fact that a defendant’s continuous presence in the courtroom during trial afforded
the defendant an opportunity to tailor their testimony to that of the preceding witnesses.11
In Adams v. State, the Alaska Supreme Court cited Portuondo with approval.12
However, our supreme court added the caveat that a prosecutor may not frame the
“advantage of going second” argument in such a manner that it becomes a comment on
the tactical advantages of pre- and post-arrest silence.13
               Because Leffel did not object at trial, we review the prosecutor’s question
about Leffel’s access to pretrial discovery for plain error.14
               Although the prosecutor questioned Leffel about the advantage of being
able to review the police reports and witness statements before he testified, the
prosecutor did not return to this theme during closing argument. And the prosecutor’s
questioning on this point did not explicitly suggest that Leffel gained an advantage by
remaining silent at the time of his arrest.
               An astute legal analyst might interpret the prosecutor’s questions as an
implied comment on Leffel’s pretrial silence. But we consider it highly unlikely that any
of the jurors drew this inference.
               We are nonetheless troubled by the fact that in virtually every case where
a defendant testifies, the defendant will likely have read the pretrial discovery. A
prosecutor could plant doubts about the veracity of a defendant’s testimony merely by
eliciting the fact that the defendant had earlier reviewed the pretrial discovery.



   11
        Portuondo v. Agard, 529 U.S. 61, 73 (2000).
   12
        Adams, 261 P.3d at 769 n.54.
   13
        Id. at 769.
   14
        See id. at 764.

                                              –8–                                      2564

               It is true that our supreme court has authorized prosecutors to comment on
the fact that a defendant enjoyed the advantage of hearing the State’s witnesses prior to
testifying.15 But the jurors will themselves have heard the same testimony as the
defendant. Thus, jurors will be able to evaluate the strength (or weakness) of the
prosecutor’s implication that the defendant’s testimony may have been tailored to the
testimony that came before.
               The same cannot be said as to pretrial discovery materials furnished to the
defense. Jurors have no way of knowing what information this discovery contained, and
so can not independently evaluate an accusation that the defendant conformed their
testimony to that material. For lack of a factual context, there will be little relevance to
a prosecutor’s generalized questions or comments regarding a defendant’s review of the
pretrial discovery.
               We conclude that prosecutors should generally not comment (through
cross-examination or during final argument) upon a testifying defendant’s prior
opportunity to review pretrial discovery material. If a defendant’s prior knowledge of
particular information in the discovery has case-specific relevance, the prosecutor should
ask the trial judge for permission to pursue that inquiry.


        The trial court’s denial of a pretrial motion to preclude mention of Leffel’s
        membership in the Hells Angels was not error
               Leffel’s attorney filed a motion in limine to preclude testimony about
Leffel’s membership in the Alaska chapter of the Hells Angels. The defense attorney
argued that this evidence was more prejudicial than probative and thus should be
excluded under Alaska Evidence Rule 403.



   15
        Id.; see also Gray v. State, 463 P.2d 897, 907 (Alaska 1970).

                                            –9–                                         2564

              In the State’s opposition to this motion, the prosecutor surmised that the
defense would call two witnesses: Thomas Moore (Leffel’s friend and fellow member
of the Hells Angels) and Anders Ekstrand (the bouncer at the Buckaroo Club who
instigated the confrontation by ordering Schurig to leave Leffel’s motorcycle alone). The
prosecutor argued that these witnesses were biased in Leffel’s favor because of their
association with the Hells Angels. The prosecutor also argued that Leffel’s membership
in the Hells Angels was relevant to explain why he reacted violently to Schurig’s
comments denigrating Leffel’s motorcycle.
              The trial judge agreed with the prosecutor that evidence of Leffel’s
membership in the Hells Angels was relevant to Moore’s potential bias. The judge also
ruled that evidence of Leffel’s membership in the Hells Angels was relevant to explain
Leffel’s reaction to Schurig’s disrespectful comment about the motorcycle. The judge
offered to give a limiting instruction so that the jurors would not misuse this information,
but the defense did not request such an instruction.
              During Leffel’s testimony, he volunteered details about his membership in
the motorcycle club. He claimed that his motorcycle was immune to theft due to the
Hells Angels’ intimidating reputation. He boasted that the Hells Angels do not tolerate
disrespectful behavior. With little prompting, Leffel explained that the Hells Angels
control the street where their clubhouse is located.
              Thomas Moore testified as a defense witness. During cross-examination,
the prosecutor asked Moore about the criteria for membership in the Hells Angels, about
Moore’s own participation in club activities, about his loyalty to the club, and about the
value that Moore placed on his reputation.
              During his closing statement, the prosecutor argued that Leffel’s
membership in the Hells Angels explained his reaction to Schurig’s disrespect of Leffel’s
three-wheel motorcycle.

                                          – 10 –                                       2564

              Leffel now contends that the prosecutor demagogically focused the jury’s
attention on the Hells Angels. But the record does not support this claim. Rather, it was
Leffel who volunteered information about the nature and activities of the club and its
importance to his identity. Leffel volunteered that club membership confers an aura of
intimidating toughness that engenders deference from the public. Leffel’s attachment to
that aura of toughness potentially explained his assaultive reaction to Schurig’s drunken
taunt that the owner of a three-wheel motorcycle must be less than manly.
              We review a judge’s decision to admit or exclude evidence under Rule 403
for abuse of discretion.16 We conclude that the trial judge did not abuse his discretion
when he allowed the prosecutor to elicit testimony about the Hells Angels to show
Moore’s potential bias,17 and to explain Leffel’s assaultive reaction to Schurig’s
comment about the motorcycle.18 We also conclude that any irrelevant or unfairly
prejudicial testimony about the Hells Angels was volunteered by Leffel himself.


        Conclusion
              We AFFIRM the judgment of the superior court.



   16
        See Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010).
   17
        See Smith v. State, 431 P.2d 507, 508-09 (Alaska 1967) (allowing cross-examination
into business relationship between two defense witnesses and the defendant). See also Evans
v. State, 550 P.2d 830, 836-37 & n.11 (Alaska 1976) (citing Smith and other cases as support
for the point that trial courts should liberally permit cross-examination on witness bias).
   18
       See, e.g., United States v. LaFond, 783 F.3d 1216, 1222 (11th Cir. 2015) (approving
introduction of evidence of defendant’s gang membership to show motive and bias); United
States v. Teran, 496 F.App’x 287, 292-93 (4th Cir. 2012); United States v. Gordon, 496
F.App’x 579, 582-83 (6th Cir. 2012); United States v. Montgomery, 390 F.3d 1013, 1018
(7th Cir. 2004); United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997); United States v.
Santiago, 46 F.3d 885, 889 (9th Cir. 1995).

                                          – 11 –                                       2564

