SUMMARY
Trial Court Judge- Rachel Ahrens
Appearances for Defendant – Claire de Witte and Renee McFarland
Appearances for State – Donald Soderstrom
Opinion by Judge Allard
Defendant Vanderpool (defendant) was tried by a jury. The jury convicted defendant of felony driving under the influence and felony refusal to submit to a chemical test. Vanderpool argued that the prosecutor committed prosecutorial misconduct. First, she analogized reasonable doubt to a 500-piece puzzle of a tiger with ten pieces missing. Second, she argued in rebuttal that Vanderpool’s attorney had conceded one offense because he was trying to distract the jury’s attention from the fact that Vanderpool was guilty of all the offenses. Alaska Court of Appeals (COA) held no reversible error.
RELEVANT FACTS
Vanderpool also challenges two aspects of the prosecutor’s closing argument, asserting that they constituted prosecutorial misconduct that improperly diminished the State’s burden of proof and denigrated the defense role. The first aspect of the prosecutor’s closing argument that Vanderpool challenges is the prosecutor’s use of a puzzle analogy to describe reasonable doubt. The prosecutor stated:
“So one of the examples that I usually use when it comes to [the “beyond a reasonable doubt” standard] is a puzzle. And anyone who has ever done a puzzle — let’s say you’re doing a 500-piece puzzle and it’s a tiger, is what the final picture is going to show. And you put them together, the puzzle, and you get down to the last 10 pieces and you haven’t finished it yet. I mean, you can look at that puzzle and know it’s a tiger. You don’t need those last 10 pieces to know what you’re looking at is a tiger. And so that’s kind of what I like to use for beyond a reasonable doubt, right, because it’s not all doubt. You don’t have to have every piece of the puzzle answered in order to find someone guilty. It’s a reasonable doubt. And so the question is, when you look at the puzzle, do you know the answer to it? And the things that are in my puzzle are the elements of the crimes. So it’s nothing outside of that. And I don’t have to prove all of them beyond all doubt. It’s beyond a reasonable doubt. And here, we’ve done that, and I’m asking you to find
the defendant guilty of all the counts.”
Vanderpool’s attorney did not object to this puzzle analogy. But in
her closing argument, she was critical of the analogy:
“Being on a jury is incredibly important. And this is not a tiger puzzle. We are here in a criminal case. This is the highest legal burden in the land. This is someone’s life. And the
burden is on the government here. We’re not playing a game.”
Later in her closing argument, defense counsel stated that proof beyond a reasonable doubt “is not a puzzle.” It is not “a cute little box that we fit a few things into.”
STANDARD OF REVIEW
Vanderpool acknowledges that his attorney did not object to the puzzle
analogy and that he must therefore show plain error on appeal. Plain error is error that
“(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was
obvious; (3) affected substantial rights; and (4) was prejudicial.”14 We do not find plain
error here.
ANALYSIS
1. Puzzle analogy was not reversible error
The prosecutor’s use of a puzzle analogy in closing argument is an issue of first impression in Alaska. Courts in other state have been critical of prosecutors analogizing “beyond a reasonable doubt” standard to a puzzle. Vanderpool is correct that courts in other jurisdictions have been critical of prosecutors analogizing the “beyond a reasonable doubt” standard to a puzzle. In State v. Lindsay, for example, the Washington Supreme Court reversed a conviction in part because the prosecutor improperly analogized the “beyond a reasonable doubt” standard to a puzzle depicting the Seattle skyline with the easily recognizable Seattle Space Needle.16 The prosecutor in Lindsay argued to the jury that “you can be halfway done with that puzzle and you know beyond a reasonable doubt that it’s Seattle” and “[y]ou could have 50 percent of those puzzle pieces missing and you know it’s Seattle.”17 The Washington Supreme Court held that the prosecutor’s analogy
constituted prosecutorial misconduct because it misstated the State’s burden of proof
and improperly quantified the degree of certainty the jurors needed to act.18 Other courts have likewise criticized similar puzzle analogies as improperly quantifying the burden
of proof, trivializing the State’s burden, and encouraging juries to “jump to a
conclusion” by using iconic images.
According to the COA, not every puzzle analogy is improper. Some courts have rejected challenges to puzzle analogies in circumstances where the analogy is limited to arguing that the jury does not need to see every piece of a puzzle to know what the puzzle depicts. 20 In those circumstances, courts have generally accepted the analogy as a fair illustration of the legal principle that the State need not prove the defendant’s built beyond all doubt.
The COA found any impropriety harmless. The jury was properly instructed
on the “beyond a reasonable doubt” standard, and the puzzle analogy was only a brief
reference in a closing argument that did not otherwise misstate the State’s burden of
proof. Moreover, any potential prejudice from the puzzle analogy was lessened by the
defense attorney’s direct attack on the analogy in her closing argument. Given these
circumstances, we reject Vanderpool’s claim that the superior court committed plain
error when it failed to sua sponte intervene in response to the prosecutor’s puzzle
analogy.
The COA cites many out of state cases in this opinion in the footnotes.
2. Disparaging the defense argument was not reversible error
Vanderpool makes a second challenge to the prosecutor’s rebuttal argument. In the defense closing argument, the defense attorney conceded that Vanderpool was guilty of driving with a revoked license. The defense attorney also emphasized that Vanderpool had been “up front” with the officer at the hospital about the fact that he was guilty of driving with a revoked license. The clear implication of the defense attorney’s argument was that Vanderpool was admitting the only crime of which he was guilty. In response to this argument, the prosecutor countered that Vanderpool had been upfront about his revoked license because he knew that it was not hard for the officer to discover that his license was revoked. The prosecutor then argued that “the fact that they’re stipulating this, and saying oh, he, you know, he did do this one is just to detract [sic] you from the idea that he committed the rest of them. They’re saying we’re being —” At this point, the defense attorney objected, arguing that the prosecutor was improperly disparaging the defense. Following a bench conference, the superior court overruled the objection. The prosecutor then briefly noted that the jury “should take into consideration what I just said,” and the prosecutor moved on to the rest of her rebuttal argument.
On appeal, Vanderpool renews his objection. He argues that the
prosecutor was improperly denigrating the defense and suggesting that the defense was
engaged in trying to distract the jury from the truth. We conclude that any error in failing
to sustain the objection was harmless given the brevity of the prosecutor’s statements
and her willingness to move on to other arguments.
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