Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JORGE MORENO, 

Petitioner, 

v. 

TATE OF ALASKA, 

Respondent. 

________________________

ARY HICKS, 

Petitioner, 

v. 

TATE OF ALASKA, 

Respondent. 

S

_ ______ ) 

) 

M ) 

) 

) 

) 

)
 

)
 

S )
 

)
 

) 

_______________________________ ) 

Petition for Hearing in File No. S-15067 from the Court of 

Appeals of the State of Alaska, on appeal from the Superior 

Court of the State of Alaska, Second Judicial District, 

Barrow, Michael I. Jeffery, Judge. Petition for Hearing in 

File No. S-15070 from the Court of Appeals of the State of 

Alaska, on appeal from the Superior Court of the State of 

Alaska, Third Judicial District, Glennallen, Daniel Schally, 

Judge pro tem. 

) 

) Supreme Court Nos. S-15067/15070 

(Consolidated) 

Court of Appeals No. A-10837 

Superior Court No. 2BA-09-00239 CR 

O P I N I O N 

No. 6982 – January 30, 2015 

Court of Appeals No. A-10820 

Superior Court No. 3GL-09-00126 CR 

) 

) 

) 

) 

) 

) 

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Appearances: Josie Garton and John Page, Assistant Public 

Defenders, Anchorage, and Quinlan Steiner, Public Defender, 

Anchorage, for Petitioners. Diane L. Wendlandt, Assistant 

Attorney General, Office of Special Prosecutions & Appeals, 

Anchorage, and Michael C. Geraghty, Attorney General, 

Juneau, for Respondent. 

Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen, 

Justices. [Bolger, Justice, not participating.] 

STOWERS, Justice. 

I. INTRODUCTION 

“Trial errors to which the parties did not object are reviewed for plain 

error.”1 In Adams v. State we held that plain error is “an 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.”2 These consolidated cases require us to 

clarify the standard for determining when a defendant intelligently waived an objection 

or made a tactical decision not to object. 

Defendants in two criminal cases failed to object to errors at trial: in 

Moreno v. State, the admission of improper testimony regarding Jorge Moreno’s exercise 

3 of his right to be free from compelled self-incrimination; in Hicks v. State, the lack of 

a jury unanimity instruction when the prosecutor directed the jury that it could find Mary 

Hicks guilty of either of two episodes of allegedly driving under the influence of 

1 Khan v. State, 278 P.3d 893, 896 (Alaska 2012) (citing Adams v. State, 261 

P.3d 758, 764 (Alaska 2011)). 

2 Adams, 261 P.3d at 764. 

3 Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *1 (Alaska 

App. Jan. 9, 2013), reh’g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013). 

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alcohol. 4 Moreno and Hicks each sought plain error review, and in each case the court 

of appeals held that the defendant failed to show that the error was not the result of 

defense counsel’s tactical decision not to object.5 In Moreno, the court of appeals also 

applied a presumption that where the record is silent or ambiguous, defense counsel’s 

inaction is tactical and precludes plain error review.6 

Moreno and Hicks filed petitions for hearing before this court, arguing that 

the burden of proof should be on the State to show that their counsels’ failures to object 

were the result of tactical decisions. They also contended that the court of appeals 

erroneously speculated on the purported tactical benefits they received due to their 

attorneys’ lack of objections. Finally, they each requested an evidentiary hearing to 

develop the record on this issue. 

We granted review to determine whether to apply an evidentiary 

presumption or to place a burden of proof on a party to establish that a defendant’s lack 

of objection at trial was or was not the result of defense counsel’s intelligent waiver or 

tactical decision not to object.7 But we conclude that our case law compels neither result. 

Today we hold that defense counsel’s tactical reason for failing to object, or counsel’s 

4 Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 (Alaska 

App. Jan. 16, 2013). 

5 Moreno, 2013 WL 120907, at *2-3; Hicks, 2013 WL 203264, at *3-4. 

6 Moreno, 2013 WL 120907, at *5 (concluding that when a litigant pursues 

a claim of plain error on a silent or ambiguous record, the court will “focus on whether 

there is a serious potential for tactical inaction” because where “an attorney makes a 

conscious decision not to object to inadmissable evidence in order to gain a tactical 

advantage . . . the attorney is unlikely to make this decision a matter of record” (emphasis 

added)). 

7 Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, 

June 10, 2013). 

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intelligent waiver of an objection, should be plainly obvious from the record before 

foreclosing the reviewing court’s consideration of the remaining plain error elements. 

We therefore reverse the court of appeals’ decisions on this issue. But we conclude that 

Moreno suffered no prejudice despite the error in his case, and we affirm the court of 

appeals’ decision upholding Moreno’s conviction on this alternate ground. We remand 

Hicks’s case to the court of appeals for further proceedings consistent with this opinion. 

II. FACTS AND PROCEEDINGS 

A. Moreno v. State 

Jorge Moreno was charged with possession and delivery of 

methamphetamine and illegal sale of alcohol in a local option community.8 At trial, 

Moreno’s attorney asked the investigating officer whether the police had been able to 

verify that Moreno owned a jacket that contained a methamphetamine pipe.9

 The officer 

replied that Moreno had refused to speak to the police.10 Moreno’s attorney did not 

object to the officer’s statement; instead, the attorney interrupted the officer and directed 

8 Moreno, 2013 WL 120907, at *1. A local option community is one that has 

elected to prohibit the sale, importation, or possession of alcoholic beverages. See 

AS 04.11.491. 

9 Id. at *1-2 (discussing the defense attorney’s question: “And at no point 

during your investigation did you determine who that jacket belonged to?” and the 

officer’s reply: “Correct, ma’am. There [were] no identifying items [in the jacket] and 

the defendant refused to speak to us about it, but we did photograph where that — that 

came out of . . . .” (emphasis omitted)). 

10 Id. at *1. 

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the officer to reply “[y]es or no.”11 Moreno was convicted, and he appealed arguing that 

the officer’s reference to his silence was impermissible.12 

The court of appeals concluded that Moreno’s attorney’s question elicited 

the officer’s testimony and that counsel “apparently made a tactical decision not to object 

to the officer’s answer.”13 Both the State and the court of appeals identified potential 

reasons why Moreno’s counsel failed to object.14 The State argued that Moreno likely 

sought “to impeach the police investigation and to lay a foundation for arguing that the 

[S]tate had not proved that Moreno knowingly possessed the pipe.”15 The court also 

offered its own possible explanations: that the defense attorney perceived the officer had 

made an inadmissible comment and chose to preserve “at least one colorable issue” on 

appeal or that the attorney recognized an objection would have focused the jury’s 

attention on Moreno’s silence.16 

11 Id. at *1-2. 

12 We have held that questions or comments by the State about a defendant’s 

pre-arrest silence are generally inadmissible under Alaska Rule of Evidence 403 and that 

questions or comments by the State on a defendant’s post-arrest silence are prohibited 

by article I, section 9 of the Alaska Constitution. Adams v. State, 261 P.3d 758, 765-67 

(Alaska 2011). It is unclear whether Moreno had been arrested when police questioned 

him about the jacket. Moreno, 2013 WL 120907, at *2. 

13 Moreno, 2013 WL 120907, at *1. 

14 Id. at *2-3. 

15 Id. at *2 

16 Id. at *3. 

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The court of appeals additionally examined whether Moreno had suffered 

any prejudice from his counsel’s failure to object.17 The court of appeals interpreted 

Adams as holding that a reviewing court should consider the following factors in 

determining whether a prosecutor’s comments on a defendant’s silence resulted in 

harmless error: 

(1) [W]hether the conviction depended primarily on 

resolution of conflicting witness testimony; (2) whether any 

comments on the defendant’s silence were made during the 

prosecutor’s closing argument; (3) whether the reference was 

“express” rather than “brief and passing”; and (4) whether the 

evidence was “directly elicited by the prosecutor’s 

[ ] questioning.” 18

The court of appeals examined these factors and concluded that the alleged error in 

Moreno’s case was harmless beyond a reasonable doubt.19 

Moreno petitioned the court of appeals for rehearing, arguing that the court 

improperly placed the burden on him to prove that his counsel did not make a tactical 

decision to withhold an objection to the officer’s testimony.20 The court of appeals 

denied his petition, reasoning that the plain error doctrine required the court to “focus 

on . . . a serious potential for tactical inaction.”21 The court relied on its decision in 

Borchgrevink v. State, which held that “when the record is silent or ambiguous . . . [an 

17 Id. 

18 Id. 

19 Id. 

20 Id. at *5. 

21 Id. 

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appellate court] appl[ies] a presumption that the defense attorney’s action (or, more 

precisely, inaction) was tactical.”22 

Moreno petitioned this court for hearing. We granted the petition and 

consolidated it with Hicks’s petition.23 

B. Hicks v. State 

Mary Hicks was arrested for and convicted of driving under the influence.24 

At her trial a village public safety officer testified that, while responding to a report that 

Hicks was driving under the influence, he located Hicks’s truck parked in a spot at her 

friend’s house that he knew had recently been vacant.25 He also testified to observing 

Hicks enter the truck and start the engine. 26 He stated that Hicks then exited the truck 

and ran back inside the friend’s house.27 The officer spoke with Hicks at the friend’s 

house, determined that she was intoxicated, and arrested her.28 During closing arguments 

at Hicks’s trial, the prosecutor told the jury that it could find Hicks guilty of either of the 

22 Id. at *5 (omissions in original) (quoting Borchgrevink v. State, 239 P.3d 

410, 421 (Alaska App. 2010)). 

23 Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, 

June 10, 2013). 

24 See Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 

(Alaska App. Jan. 16, 2013). 

25 Id. 

26 Id. 

27 Id. 

28 Id. at *1-2. 

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two distinct driving or operating incidents: driving to the friend’s house or starting the 

parked truck in front of the friend’s house.29 

This was obvious error under the Alaska Constitution’s due process 

clause,30 which we have interpreted to bestow on a criminal defendant the “right to have 

jurors ‘all agree that the defendant committed a single offense.’ ”31 Hicks did not object 

to the prosecutor’s statement or ask the court to instruct the jury that it had to 

unanimously agree on one offense to return a guilty verdict. 32 The jury convicted Hicks 

of driving under the influence.33 

Hicks appealed, arguing plain error. Before the court of appeals, the State 

proffered two possible tactical reasons for Hicks’s failure to object.34 First, the State 

asserted that “had she raised the issue in the trial court, the State might have sought to 

amend the indictment to charge her with two separate felony offenses.”35 Second, the 

State argued that Hicks’s defense focused on attacking the strength of the evidence of the 

second incident when the officer observed Hicks start her engine.36 The court of appeals 

concluded that Hicks’s attorney made a tactical decision not to object because an 

29 Id. at *3. 

30 Alaska Const. art. I, § 7 (“No person shall be deprived of life, liberty, or 

property without due process of law.”). 

31 Khan v. State, 278 P.3d 893, 899 (Alaska 2012) (quoting State v. James, 

698 P.2d 1161, 1167 (Alaska 1985)). 

32 Hicks, 2013 WL 203264, at *3. 

33 Id. at *1. 

34 Id. at *4.
 

35 Id.
 

36 Id. 

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objection would have emphasized that the jury could convict Hicks based solely on the 

evidence of her driving under the influence, which did not rely on the officer’s disputed 

testimony.37 

Hicks filed a petition for hearing. We granted Hicks’s petition and 

consolidated it with Moreno’s petition.38 

III.	 STANDARD OF REVIEW 

These consolidated petitions present only questions of law to which we 

apply our independent judgment.39 We will adopt the rule of law that “is most persuasive 

in light of precedent, reason, and policy.”40 

IV.	 DISCUSSION 

A.	 It Was Error To Apply A Presumption On A Silent Or Ambiguous 

Record That Defense Counsel Made A Tactical Decision Not To Object 

And To Place The Burden On Defendant To Disprove This 

Presumption. 

In Johnson v. State, we explained why a general rule requiring a party in 

trial to object to a perceived error is necessary to preserve that error as a point on appeal: 

Typically, a litigant or defendant must raise an objection in 

the trial court in order to preserve that argument for appeal. 

This general preservation rule is a prudential gate-keeping 

doctrine adopted by the courts to serve important judicial 

policies: ensuring that there is “a ruling by the trial court that 

37	 Id. at *1, *4. 

38 Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, 

June 10, 2013). 

39 State v. Doe A, 297 P.3d 885, 887 (Alaska 2013), as modified on denial of 

reh’g (Apr. 10, 2013). 

40 Id. (quoting Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 

1991)) (internal quotation marks omitted). 

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may be reviewed on appeal, . . . afford[ing] the trial court the 

opportunity to correct an alleged error,” and creating a 

sufficient factual record “so that appellate courts do not 

[ ] decide issues of law in a factual vacuum.” 41

“But the general preservation rule is not absolute, and it is subject to 

[certain] exceptions, such as the plain error doctrine.”42 The plain error doctrine allows 

an appellate court to review issues not otherwise preserved where “there was [an] 

obvious and prejudicial error below affecting substantial rights that did not result from 

‘intelligent waiver or a tactical decision not to object.’ ”43 

Under Alaska Criminal Rule 47(b), “[p]lain errors or defects affecting 

substantial rights may be noticed [sua sponte by the trial court]44 although they were not 

brought to the attention of the court.” When the trial court fails to correct an error on its 

own initiative, however, plain error review on appeal operates “to mitigate . . . the harsh 

effects of a rigid application of the adversary method of trial.”45 

41 328 P.3d 77, 82 (Alaska 2014) (alteration in original) (footnotes omitted) 

(quoting Alexander v. State, 611 P.2d 469, 478 (Alaska 1980) and Pierce v. State, 261 

P.3d 428, 433 (Alaska App. 2011)). 

42 Id. 

43 Id. (quoting Adams v. State, 261 P.3d 758, 764 (Alaska 2011)). 

44 Cf. Adams, 261 P.3d at 764 (noting that “Alaska Criminal Rule 47(b) allows 

appellate courts to notice ‘[p]lain errors or defects affecting substantial 

rights . . . although they were not brought to the attention of the court’ ” without 

restricting the rule’s application to appellate proceedings (alterations in original) 

(emphasis added) (quoting Alaska R. Crim. P. 47(b))). We recently clarified in Johnson 

that plain error is a “prudential exception[]” to the general preservation rule; in other 

words, we retain inherent discretion to hear such appeals under the rubric of plain error 

as a common law doctrine. Johnson, 328 P.3d at 82 & n.24. 

45 Dorman v. State, 622 P.2d 448, 459 (Alaska 1981) (alteration in original) 

(continued...) 

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We use a four-part test when determining whether to review a defendant’s 

claim of plain error. 46 The appellate court must find the error “(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.”47 Plain error review operates as a safety 

valve allowing an appellate court to review unobjected-to errors “involv[ing] such 

egregious conduct as to undermine the fundamental fairness of the trial and contribute 

to a miscarriage of justice.”48 

These consolidated cases concern the tactical-decision prong of the plain 

error test announced in Adams. 

49 While the remainder of the plain error test involves 

substantive requirements an appellate court must conclude are present to reverse on the 

basis of plain error, the tactical-decision prong acts as a bar to substantive review, 

preventing defense counsel from deliberately bypassing the contemporaneous-objection 

rule as part of a trial strategy. 50 We will not afford a defendant an after-the-fact review 

45(...continued)
 

(quoting Bargas v. State, 489 P.2d 130, 133 (Alaska 1971)) (internal quotation marks
 

omitted). 

46 Adams, 261 P.3d at 764. 

47 Id. 

48 Id. (alteration in original) (quoting Raphael v. State, 994 P.2d 1004, 1015 

(Alaska 2000)) (internal quotation marks omitted). 

49 We recently revisited the plain error test in Johnson v. State, 328 P.3d 77 

(Alaska 2014), where we reiterated Adams’s holding that “we will review unpreserved 

claims for plain error and reverse the trial court where there was obvious and prejudicial 

error below affecting substantial rights that did not result from ‘intelligent waiver or a 

tactical decision not to object.’ ” Id. at 82 (quoting Adams, 261 P.3d at 764). 

50 E.g., Hammonds v. State, 442 P.2d 39, 42, and 43 n.16 (Alaska 1968) 

(continued...) 

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of a claim of error when defense counsel made a tactical decision not to object or 

engaged in strategic gamesmanship to avoid the trial court’s correction of the error in the 

first instance.51 

In Hicks, the court of appeals concluded that “Hicks ha[d] not shown that 

she did not make a tactical decision to forgo a jury unanimity instruction” because (1) 

it “appear[ed] that the defense attorney tried to focus on the weakness in the State’s 

proof” of one of the incidents; and (2) had Hicks raised the issue earlier, “the trial court 

might have allowed the State to add a second count of driving under the influence.”52 In 

Moreno, the court of appeals reasoned that “when the record is silent or 

ambiguous . . . [the court] appl[ies] a presumption that the defense 

attorney’s . . . inaction . . . was tactical.”53 The court also speculated as to Moreno’s 

counsel’s reasons for not objecting54 and stated that the test was whether, based on the 

50(...continued) 

(“There is here a clear intimation of a deliberate design to knowingly [forgo] a 

constitutional claim. Such a deliberate act on the part of counsel amounts to a waiver of 

appellant’s constitutional right which is binding on appellant.”). 

51 Id. at 42-43. 

52 Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *3-4 (Alaska 

App. Jan. 16, 2013). 

53 Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska 

App. Jan. 9, 2013), reh’g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013) 

(omissions in original) (alterations added) (quoting Borchgrevink v. State, 239 P.3d 410, 

421 (Alaska App. 2010)). 

54 Id. at *2-3. 

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record, “there is a serious potential for tactical inaction.”55 As explained below, neither 

approach accords with our prior case law up to and including Adams. 

56 

1. The tactical-decision case law from 1960-1980 

In Rank v. State, we examined whether allowing trial testimony regarding 

the defendant’s failure to take a lie detector test was reversible error where defense 

counsel did not object to this evidence at trial.57 We reviewed the trial transcript and 

concluded that Rank’s counsel “went into the subject [of his client’s failure to take the 

test] in great detail in his cross-examination of a [S]tate witness and when [Rank] 

testified in his own defense.”58 Based on this clear indication in the record of defense 

counsel’s tactics, we reasoned that “Rank had presumably taken the position that to 

explore the subject in detail would be advantageous to his cause.”59 But on appeal Rank 

“adopt[ed] the totally inconsistent position that he ha[d] suffered a grave disadvantage.”60 

We held that Rank was “bound by the choice he first made in the court below. He ha[d] 

55 Id. at *5. 

56 We divide our discussion of the tactical-decision case law into three 

categories: (1) cases from 1960 to 1980; (2) cases from 1980 to 2000; and (3) the 

tactical-decision analysis in Adams v. State, 261 P.3d 758 (Alaska 2011). We discern 

no significant changes in our tactical-decision analysis from one period to the next but 

have divided our discussion into these sections to assist the reader. 

57 373 P.2d 734, 735 (Alaska 1962), overruled in part on other grounds by 

Shafer v. State, 456 P.2d 466 (Alaska 1969). 

58 Id. at 736. 

59 Id. 

60 Id. 

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waived any error that might otherwise have occurred when testimony regarding the 

polygraph was first brought into the case by a [S]tate witness.”61 

In Noffke v. State, the trial judge received a question from the jury and 

responded by giving the jury a supplemental instruction without contemporaneously 

notifying the defendant and his counsel of the question or the court’s answer.62 Unlike 

in Rank, we noted “[t]here [was] nothing in the record to show that appellant’s trial 

counsel had any knowledge . . . of the fact that the trial judge had given the jury this 

supplemental instruction” and consequently held that “it would work an injustice to 

appellant to hold that he is now precluded from questioning the propriety of the 

supplementary instruction” by not contemporaneously objecting to preserve the issue for 

appellate review.63 In both Rank and Noffke, we focused on whether the record on its 

face clearly indicated defense counsel’s obvious knowledge of the error. 

In Hammonds v. State, defense counsel failed to object when a police 

officer testified to statements the defendant made after an inadequate Miranda warning.64 

Similar to Rank and Noffke, the issue before us was “not merely one of a technical failure 

to object in the trial court.”65 The trial record plainly indicated that defense counsel was 

aware of the requirements of Miranda and that he could have excluded his client’s 

statements by objecting, but chose not to object because the statements were potentially 

61 Id. 

62 422 P.2d 102, 103 (Alaska 1967). 

63 Id. at 106-07. 

64 442 P.2d 39, 40-41 (Alaska 1968). 

65 Id. at 43. 

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exculpatory.66 We concluded that there was “a clear intimation of a deliberate design to 

knowingly [forgo] a constitutional claim” and “[s]uch a deliberate act on the part of 

counsel amount[ed] to a waiver of appellant’s constitutional right.”67 In other words, 

because counsel’s failure to object was “an intelligent waiver of a known right,”68 

Hammonds could not complain on appeal that his Fifth Amendment privilege against 

self-incrimination was infringed upon because the record indicated that his counsel was 

aware of the requirements of Miranda and allowed the admission of his client’s 

statements despite the constitutional violation. 

Then in Gafford v. State, another lie detector case, the record revealed that 

Gafford’s counsel had informed the court that he had decided not to request an 

instruction on the inadmissibility of information about the lie detector test because he 

“did not want ‘to underline’ the lie detector answer” elicited during cross examination.69 

We held “In view of the decision made at trial by his counsel, . . . appellant is now 

precluded from asserting that it was error for the trial court not to have instructed the jury 

to disregard [the witness’s] reference to a lie detector [test].”70 

66 Id. at 42 (referring to Miranda v. Arizona, 384 U.S. 436 (1966), which held 

that statements obtained from defendants during interrogation in a police-dominated 

atmosphere, without full warning of constitutional rights, were inadmissible in violation 

of their Fifth Amendment privileges against self-incrimination). 

67 Id. (emphasis added). 

68 Id. at 43 (emphasis added). 

69 440 P.2d 405, 410 (Alaska 1968), overruled on other grounds by Fields v. 

State, 487 P.2d 831 (Alaska 1971). 

70 Id. 

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Finally, in Pulakis v. State, the trial court, without objection from defense 

counsel, admitted testimony regarding two lie detector tests the defendant took.71 We 

considered Pulakis’s counsel’s actions throughout the course of trial and concluded they 

“present[ed] a more compelling factual situation for finding an intelligent waiver of a 

known right than existed in Rank.”72 For example, defense counsel (1) questioned 

prospective jurors intensively on the subject of polygraph examinations; (2) elicited 

responses favorable to Pulakis’s position; (3) minimized the importance of the polygraph 

evidence in his opening statement and closing argument; and (4) made no objection to 

the qualifications of the expert witness on the results of the polygraph examination or to 

the admissibility of that testimony. 73 We noted that “[i]n fact, counsel stated explicitly 

that there was no objection to the admission of the written report of the expert witness,” 

and “[o]n cross-examination, . . . counsel obtained significant admissions from the expert 

about the unreliability of the polygraph test.” 74 Defense counsel also requested highly 

favorable jury instructions on the issue, which were given by the superior court.75 We 

concluded “that this entire pattern of events demonstrate[d] a clear, intelligent waiver of 

any privilege to exclude this evidence” based on defense counsel’s trial strategy, thus 

precluding plain error review.76 

71 476 P.2d 474, 477 (Alaska 1970).
 

72 Id. at 480.
 

73 Id.
 

74 Id.
 

75 Id.
 

76 Id.
 

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These cases make clear that for an appellate court to decline plain error 

review because defense counsel made a tactical decision, it must be plainly obvious from 

the record on its face: (1) that counsel had an obvious awareness or knowledge of the 

error, and (2) that counsel made an intentional or tactical decision not to object to the 

error. Our case law has remained consistent on this point. 

2. The tactical-decision case law from 1980-2000 

In Owens v. State, the prosecution arranged for a radio broadcast on Sitka’s 

only radio station in an effort to locate an anonymous caller to testify.77 Unfortunately, 

the station broadcast the message during the morning hours before jurors were due to 

report for the trial.78 Owens brought the broadcast to the court’s attention the next day, 

but opposed the prosecution’s suggestion that the court make a general inquiry of the 

jurors.79 The superior court noted on the record that “it would respect Owens’[s] request 

not to have the jury queried in a general manner, but pointed out that Owens, by his 

tactical decision, was depriving the court of the ability to take any actions necessary to 

cure the harm caused by jury exposure to the inadmissible evidence.”80 The superior 

court “indicated that it considered Owens to be waiving the jury exposure issue by 

objecting to a general inquiry of the jurors.”81 On appeal we stressed that because Owens 

objected to a procedure that would have cured any possible prejudice, he waived his right 

77 613 P.2d 259, 260 (Alaska 1980).
 

78 Id.
 

79 Id.
 

80 Id.
 

81 Id.
 

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to raise this issue on appeal under plain error review.82 It was Owens’s attorney’s 

intentional decision not to cure the error in the first instance that barred further plain 

error review. 

In Moss v. State, a defense witness refused to testify and defense counsel 

asked that the witness be held in contempt.83 The court took a short recess, during which 

defense counsel was permitted to confer with the witness.84 Following the recess, 

defense counsel did not renew his attempt to compel the witness to testify under threat 

of contempt, made no further mention of the witness or counsel’s proposed line of 

inquiry, and instead rested Moss’s case.85 On appeal Moss argued that the trial court 

should have compelled the witness to testify, that its failure to do so violated Moss’s 

constitutional rights to due process and to confrontation, and that the court’s failure to 

hold a hearing concerning the proposed testimony was plain error.86 We summarily 

dismissed these contentions, concluding: 

[W]e believe that[,] given the tactical reasons that may have 

supported a decision to withdraw the witness, it was 

82 Id. at 262 (“We conclude that the trial court here could have cured any 

possible prejudice with an instruction to the jury that they were to determine guilt or 

innocence solely on the basis of the evidence admitted at trial. Because Owens objected 

to this procedure, he has waived his right to raise on appeal this issue.” (footnote 

omitted)). We note that the trial judge in Owens did a commendable job making a clear 

record on this issue. Best practices for trial judges who become aware of an attorney’s 

probable tactical decision not to object (or not to request a curative instruction) include 

making an inquiry and findings on the record outside the presence of the jury. 

83 620 P.2d 674, 677 (Alaska 1980). 

84 Id. 

85 Id. 

86 Id. 

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incumbent upon counsel to renew his attempt to obtain the 

witness[’s] testimony following the recess. During the recess 

counsel may have learned that the witness would not testify 

in a manner helpful to the defense and thus have decided not 

to proceed further with him. . . . [C]ounsel’s decision to rest 

his case at that point is inconsistent with the present claim of 

[ ] 87 error. 

In other words, we concluded that Moss’s counsel made a tactical decision 

when he chose to forgo asking the court to compel the witness’s testimony after speaking 

to the witness. While speculating somewhat on counsel’s rationale for this particular trial 

strategy, we were careful to point out that the record reflected counsel’s intentional 

choice not to go forward with this witness.88 Thus, Moss is distinguishable from Moreno 

and Hicks where, on a silent or ambiguous record, the court of appeals applied a 

presumption that defense counsels’ inaction was tactical.89 In Moss, the record reflected 

that defense counsel made an affirmative decision to withdraw a witness and rest his 

client’s case after conferring with the witness.90 We did not apply a presumption that 

defense counsel’s inaction was tactical; rather, we recognized that defense counsel’s 

action of withdrawing the witness was tactical. 

In Dorman v. State, we discussed the distinction between cases where 

defense counsel deliberately injects error at trial or makes a tactical decision not to 

object, and cases where defense counsel’s lack of objection could have no tactical 

87 Id. at 677-78. 

88 Id. 

89 Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska 

App. Jan. 16, 2013); Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 

(Alaska App. Jan. 9, 2013), reh’g denied, 2013 WL 120907, at *5 (Alaska App. 

Feb. 7, 2013). 

90 Moss, 620 P.2d at 677-78. 

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benefit.91 During closing arguments at Dorman’s trial, the prosecutor commented that 

the jury should infer guilt from the fact that Dorman remained silent between the time 

of his arrest and the time he was advised of his Miranda rights.92 Dorman’s counsel 

failed to object.93 We noted that Dorman’s counsel (1) failed to object to identical 

testimony during trial; (2) mentioned Dorman’s Miranda rights during crossexamination; (3) asked for no curative instruction at the time; and (4) made no motion 

for a mistrial.94 

Despite Dorman’s counsel’s awareness of Miranda, we held the failure to 

object was not tactical because Dorman had not “injected the issue of his silence into the 

case” and there could be no benefit to him in letting the potentially incriminating silence 

into evidence.95 In addressing whether counsel may have been inviting error, we 

concluded: 

There is no basis for the inference that defense counsel was 

trying to further Dorman’s case by failing to object to the 

final argument comment, unless it is implied that defense 

counsel invited error for the purpose of obtaining a reversal 

on appeal. That conclusion, however, is not one which 

should be lightly inferred in any case, for it would preclude 

91 622 P.2d 448, 457-58 (Alaska 1981) (comparing Davis v. State, 501 P.2d 

1026 (Alaska 1972) and Hammonds v. State, 442 P.2d 39 (Alaska 1968) with Bargas v. 

State, 489 P.2d 130 (Alaska 1971)). 

92 Id. at 456. There had also been testimony regarding Dorman’s reactions 

to questions after he had been informed of his Miranda rights, despite Dorman’s 

counsel’s objections. Id. at 452. The trial court prohibited the prosecutor from 

referencing that testimony during closing arguments. Id. 

93 Id. at 457. 

94 Id. 

95 Id. at 458. 

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review of the most fundamental defects under the plain error 

[ ] doctrine . . . . 96

In other words, we explicitly refrained from construing counsel’s inaction as a tactical 

decision absent a clear indication in the record. Without an affirmative act by counsel 

indicating his awareness of the existence of a known right and some indication in the 

record of a conscious failure to preserve the issue, we conducted the remainder of the 

plain error analysis.97 

Finally, in Raphael v. State, the prosecutor told the trial judge at an ex parte 

hearing that the State’s key witness was likely to recant, was intoxicated, and should be 

incarcerated until she testified.98 Without first notifying Raphael or his attorney of the 

prosecutor’s statements, the trial judge granted the prosecutor’s request, jailing the key 

witness and placing her children in protective custody.99 Raphael was convicted and 

appealed, arguing that the trial court denied him due process given the potentially 

coercive effect of the witness’s incarceration on her testimony and his right to be present 

96 Id. at 458 (emphasis added). We also noted Dorman’s counsel’s “many 

objections” to testimony regarding Dorman’s silence after receiving a Miranda warning 

compared to Dorman’s counsel’s failure to object to testimony regarding Dorman’s 

silence before receiving a Miranda warning. Id. We stated that this discrepancy further 

indicated that counsel’s failure to object to evidence of Dorman’s pre-Miranda-warning 

silence was not invited error. Id. 

97 Id. (“Thus, since the failure to object to the final comment has not been 

shown to have been a tactical or strategic decision, the [S]tate’s argument does not 

compel us to disregard the error. We must still, of course, determine whether this remark 

constituted plain error.”). 

98 994 P.2d 1004, 1006 (Alaska 2000). 

99 Id. 

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at the hearing.100 The State responded that Raphael abandoned his right to appeal his 

absence from the ex parte hearing (and the hearing’s allegedly coercive effect on the key 

witness’s testimony) because his attorney failed to object to, and thus preserve, these 

alleged errors during trial.101 The State argued that the tactical-decision prong should bar 

further review because Raphael’s failure to object might have been tactical and Raphael 

could have obtained a benefit from his failure to object.102 

We rejected such speculation because it “assume[d] that Raphael’s attorney 

had a sufficiently accurate view of the scope of the error and deliberately chose to waive 

any objection.”103 We compared the situation in Raphael to Noffke v. State, where we 

held that defense counsel’s failure to object was not a tactical decision because the record 

failed to demonstrate that defense counsel was aware of the error asserted on appeal.104 

And we noted that we had requested that both parties search the trial record for “any 

evidence, . . . of [Raphael’s attorney’s] knowledge of the ex parte hearing and the 

surrounding circumstances,” but that “[n]either party found any such references.”105 

Based on the lack of support in the record for the conclusion that defense 

counsel knew the full extent of the constitutional errors and deliberately chose not to 

100 Id. 

101 Id. at 1015. 

102 Id. (“Specifically, the State contends that Raphael could have hoped that 

[the complaining witness’s] incarceration would make her hostile toward the prosecution 

and cause her to slant her testimony in his favor.”). 

103 Id. 

104 Id. at 1016 (citing Noffke v. State, 422 P.2d 102, 106-07 (Alaska 1967)). 

105 Id. at 1016 n.53 (emphasis added) (explaining our request that the parties 

provide supplemental briefing on whether the record contained any evidence of defense 

counsel’s knowledge of the hearing, apart from the trial court’s limited description of it). 

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object, we could not say that Raphael’s attorney’s decision not to object was tactical.106 

Because plain error review was not foreclosed by any tactical decision not to object, we 

held that the error complained of (1) was obvious; (2) was substantially prejudicial; and 

(3) undermined the fundamental fairness of the trial and contributed to a miscarriage of 

justice.107 Concluding there was plain error, we remanded Raphael’s case for a new 

trial.108 

In sum, these cases consistently demonstrate our reluctance to foreclose 

plain error review on tactical-decision grounds. Evidence of a tactical decision not to 

object to a trial error must be plainly obvious from the record to persuade an appellate 

court that a defendant’s otherwise meritorious substantive claim of error should not 

109 110 trigger appellate review. This rule was further underscored in Adams v. State. 

3. The tactical-decision analysis in Adams v. State, 2011 

All parties agree that our decision in Adams governs the outcome of the 

present cases. Moreno and Hicks argue that Adams’s reliance on Dorman, Owens, 

Pulakis, and Hammonds indicates that we intended defense counsel’s tactical decisions 

to operate as implied waivers of future appeals, with the State bearing the burden of 

proving that a decision was tactical. Moreno and Hicks also read Adams as precluding 

106 Id.
 

107 See id. at 1015.
 

108 Id. at 1015-16.
 

109 See, e.g., Hammonds v. State, 442 P.2d 39, 42-43 (Alaska 1968).
 

110 261 P.3d 758, 773 (Alaska 2011).
 

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plain error review where the benefit conferred on the defendant is readily apparent on the 

record.111 

The State does not read Adams as requiring proof of an express or implied 

waiver or a discernable benefit on the defendant. According to the State, nothing in 

Adams suggests that these are the only types of tactical decisions that will preclude plain 

error review. The State instead attempts to factually distinguish Adams and the cases it 

relied on to convince us to adopt the court of appeals’ line of cases.112 

Adams began its analysis of the plain error rule by discussing how our cases 

“have consistently held that plain error does not exist where the right at issue was 

intelligently waived or the defendant’s decision not to object to the error was strategic 

or tactical.” 113 We underscored our analysis in Dorman that where there is “no evidence” 

that defendant’s failure to object was strategic, there is “no basis for inferring that the 

111 Moreno and Hicks cite Adams’s discussion of Dorman, where we 

explained: “[W]here a defendant ‘neither injected the issue of his silence into the case 

nor obtained a benefit from the prosecutor’s inculpatory comment,’ there [was] no basis 

for inferring that the failure to object was tactical ‘unless it is implied that defense 

counsel invited error for the purpose of obtaining a reversal on appeal.’ ” Adams, 

261 P.3d at 773 (quoting Dorman v. State, 622 P.2d 448, 458 (Alaska 1981)). 

112 The State argues that we should explicitly adopt the court of appeals’ 

standard for deciding whether a failure to object was tactical. Under this standard, the 

court of appeals reviews the trial court record for any “plausible” tactical reason for 

defense counsel’s failure to object, Borchgrevink v. State, 239 P.3d 410, 422 (Alaska 

App. 2010), and “unless the record precludes the possibility that counsel’s actions may 

have been tactical, a finding of plain error is rarely appropriate.” Massey v. State, 

771 P.2d 448, 453 (Alaska App. 1989). Under the court of appeals’ approach, if the 

court can divine a conceivable tactical reason or the record is silent or ambiguous, that 

court applies a presumption that the defense attorney’s decision was tactical, and then 

the burden shifts to the defendant to prove that counsel’s decision was not tactical. 

Borchgrevink, 239 P.3d at 421. 

113 Adams, 261 P.3d at 770. 

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failure to object was tactical ‘unless it is implied that defense counsel invited error for 

the purpose of obtaining a reversal on appeal.’ ”114 And we stated that this implication 

“is not one which should be inferred lightly, for it would preclude review of the most 

fundamental defects under the plain error doctrine.”115 This statement recognized the 

central focus of plain error review: 

[The rule] [is] intended to ensure that litigants have a means 

for the prompt redress of miscarriages of justice, and it 

applies only when the error was so plain that the trial court 

and prosecutor were derelict in countenancing it, even absent 

the defendant’s timely assistance in detecting it. It also 

reflects a careful balancing between the Court’s intention of 

encourag[ing] all trial participants to seek a fair and accurate 

trial the first time around and the Court’s insistence that 

obvious injustice be promptly redressed.[116] 

In Adams, we cautioned that appellate courts should concentrate on the substantive 

requirements of plain error review: the obvious nature of the error, the substantial rights 

the error affected, and the prejudice that resulted from the error.117 Inferring a tactical 

114 Id. at 773 (quoting Dorman, 622 P.2d at 458). 

115 Id. (emphasis added) (quoting Dorman, 622 P.2d at 458) (internal quotation 

marks omitted). 

116 Larry Cunningham, Appellate Review of Unpreserved Questions in 

Criminal Cases: An Attempt to Define the “Interest of Justice,” 11 J. APP. PRAC. & 

PROCESS 285, 298 (2010) (third alteration in original) (footnote omitted) (quoting United 

States v. Frady, 456 U.S. 152, 163 (1982)) (internal quotation marks omitted). 

117 Adams, 261 P.3d at 770, 773 (noting that “our [earlier] 

cases . . . consistently define[d] plain error as error that affects substantial rights and is 

obviously prejudicial,” but noting that three substantive requirements must now be met: 

there “must be error . . . ; the error must be obvious, meaning that it should have been 

apparent to any competent judge or lawyer; . . . the error must affect substantial rights, 

meaning that it must pertain to the fundamental fairness of the proceeding; and . . . the 

(continued...) 

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decision or intelligent waiver of a known right on a silent or ambiguous record would 

serve only to impede substantive review of the error. 

Adams and the cases it relied upon thus stand at odds with the court of 

appeals’ conclusion in Moreno that “when the record is silent or ambiguous[,] . . . [the 

court] appl[ies] a presumption that the defense attorney’s . . . inaction . . . was tactical.”118 

It was also error to place the burden on the defendant to negate the possibility that his 

attorney’s failure to object was tactical.119 

The same error was made in Hicks, where the court of appeals held that 

“Hicks must . . . show that the error was not the result of her attorney’s tactical decision 

not to object.” 120 We have never placed this burden on the defendant. Hicks cited our 

analysis in Khan v. State,

121 but Khan only reaffirmed the “Adams rule” that “includ[es] 

an inquiry into whether the defendant’s non-objection was tactical, [which] better 

respects the trial process and the role of counsel.”122 

Whether the 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. The records in Moreno and Hicks 

117(...continued) 

error must be prejudicial”). 

118 Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska 

App. Jan. 9, 2013), reh’g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013) 

(quoting Borchgrevink, 239 P.3d 410, 421 (Alaska App. 2010)). 

119 Id. 

120 Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska 

App. Jan. 16, 2013) (citing Khan v. State, 278 P.3d 893, 901 (Alaska 2012)). 

121 Id. at *4 (citing Khan, 278 P.3d at 901). 

122 Khan, 278 P.3d at 901. 

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do not reveal plainly obvious evidence of tactical decisions not to object by defense 

counsel. Because the court of appeals improperly placed the burden on Moreno and 

Hicks to prove that their attorneys did not make tactical decisions, and because the court 

of appeals improperly applied a presumption of tactical inaction in the case of a silent or 

ambiguous record in Moreno, we reverse the court of appeals’ conclusions regarding the 

tactical-decision determination in both cases.123 

B.	 We Affirm The Court Of Appeals’ Conclusion That The Error In 

Moreno’s Case Was Not Prejudicial. 

In Moreno, the court of appeals also addressed the prejudice prong of plain 

error review. The court held that admitting the arresting officer’s statement regarding 

Moreno’s decision to remain silent did not result in prejudice because admitting the 

statement was harmless beyond a reasonable doubt. 124 Moreno argues that the court of 

appeals erred in reaching that conclusion. 

Adams considered what would constitute prejudice and held that 

[a] constitutional violation will always affect substantial 

rights and will be prejudicial unless the State proves that it 

was harmless beyond a reasonable doubt. An error that is not 

constitutional in nature will be prejudicial if the defendant 

123 We note that the court of appeals recently discussed the tactical-decision 

principle in Anderson v. State, 337 P.3d 534, 543-44 (Alaska App. 2014). We had 

previously remanded the Anderson case to the court of appeals for its reconsideration of 

this issue in that case. The court of appeals decided not to reconsider its earlier 

determination of the tactical decision in that case in light of its alternative holding that 

the jury instruction error in Anderson was harmless beyond a reasonable doubt. Id. at 

544. 

124	 Moreno, 2013 WL 120907, at *3. 

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proves that there is a reasonable probability that it affected 

the outcome of the proceeding.[125] 

We identified several factors that a reviewing court must consider in determining 

whether a trial court’s failure to take remedial action regarding a prosecutor’s comments 

on a defendant’s silence constituted harmless error. These include (1) whether the 

conviction depended primarily on conflicting witness testimony; (2) whether the 

comment occurred during closing argument; (3) whether the comment was “express” 

rather than “brief and passing”; and (4) whether the evidence was “directly elicited by 

the prosecutor’s questioning.”126 

Moreno was convicted at trial of delivery and possession of 

methamphetamine. 127 On cross-examination, Moreno’s defense attorney asked the 

investigating officer whether the officer had been able to identify the owner of a jacket 

that contained a methamphetamine pipe. The officer replied that there were “no 

identifying items [in the jacket] and the defendant refused to speak to us about it, but we 

did photograph where that — that came out of,” at which point the defense attorney 

interrupted and directed the officer to answer yes or no. (Emphasis added.) This was the 

only reference in the entire course of trial implicating Moreno’s constitutional right to 

be free from self-incrimination.128 

125 Adams v. State, 261 P.3d 758, 773 (Alaska 2011). 

126 Id. at 774-75 (quoting Van Hatten v. State, 666 P.2d 1047, 1056 (Alaska 

App. 1983)). 

127 Moreno, 2013 WL 120907, at *1. 

128 See Alaska Const. art. I, § 9 (“No person shall be compelled in any criminal 

proceeding to be a witness against himself.”); Moreno, 2013 WL 120907, at *2 

(“Evidence of a defendant’s post-arrest silence in response to police questioning is 

generally inadmissible under Article I, section 9 of the Alaska Constitution. In addition, 

(continued...) 

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By comparison, in Adams, the prosecutor made two remarks on crossexamination that directly addressed Adams’s post-arrest silence: 

[PROSECUTOR]: And then you refused to talk to police any
 

further. Correct?
 

[ADAMS]: That’s right.
 

[PROSECUTOR]: Okay. Until today?
 

[ADAMS]: I was exercising my right.[129]
 

And then again: 

[PROSECUTOR]: Now, new information that we heard 

from you today is everything that happened in your 

apartment, correct? Would you agree to that? From your 

perspective? 

[ADAMS]: What do you mean by everything? 

[PROSECUTOR]: Well, we didn’t know anything about 

what happened in your apartment from you, because you 

128(...continued) 

a defendant’s pre-arrest silence will usually be inadmissible under Alaska 

Evidence Rule 403 because its probative value is inherently low and the danger of unfair 

prejudice is inherently high.” (footnote omitted)). 

We note that the court of appeals did not explicitly determine whether 

Moreno was under arrest when he was questioned about the jacket, but assumed that he 

was, at the very least, detained when the questioning occurred. Moreno, 2013 WL 

120907, at *2. The court of appeals therefore analyzed the officer’s comment under the 

higher “harmless beyond a reasonable doubt” standard employed when the alleged error 

implicates a constitutional right. See id.; see also Adams, 261 P.3d at 771. Because our 

decision to affirm the court of appeals’ conclusion in Moreno regarding the lack of 

prejudice would be the same under either the pre- or post-arrest standard as stated in 

Adams, 261 P.3d at 773, whether Moreno was under arrest at the time of his statement 

is irrelevant. 

129 Adams, 261 P.3d at 770. 

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didn’t talk to police, until after hearing all the evidence so far 

] in the case.[130

And during closing argument, the prosecutor again pointed to Adams’s silence to argue 

that Adams’s testimony was less credible than the victim’s.131 

The prosecution’s conduct in Adams was egregious, continued over a 

protracted period, and went to the core of the prosecution’s theory of the case, namely, 

that Adams was not credible and “changed his decision not to talk when he learned about 

the DNA evidence indicating that he had sex with [the underage victim].”132 The facts 

in Moreno are far less compelling: the officer’s comment was elicited by defense 

counsel; it was made in passing; and the prosecutor did not refer to it during his closing 

argument. 

Accordingly, we agree with the court of appeals that the officer’s testimony 

“had little impact on Moreno’s trial” and was “harmless beyond a reasonable doubt” 

under the four factors of Adams that a reviewing court considers when determining 

whether a court’s failure to address a prosecutor’s comments on a defendant’s silence 

was harmless error. 133 We thus affirm the court of appeals’ decision in Moreno on this 

alternate ground. 

V. CONCLUSION 

We REVERSE the court of appeals’ decisions foreclosing plain error 

review in both Hicks and Moreno, but we AFFIRM the court of appeals’ decision in 

130 Id.
 

131 Id. at 762.
 

132 Id.
 

133 Moreno, 2013 WL 120907, at *3.
 

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Moreno on the alternate ground that the error was not prejudicial. We REMAND Hicks 

for further proceedings consistent with this opinion. 

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