MEMORANDUM OPINION
Star page 1*1 Over the course of two days in June 2022, Jessica Julie Montgomery made four trips to a credit union in Ketchikan and, on each occasion, she cashed a check drawn on the bank account of Luke Moore.
These four checks totaled a little more than $1,000. They were all made out to “Jessica J. Montgomery”, and the checks were variously labeled “landscaping”, “pay advance”, “day labor 6/3 Walmart reimbursement”, and “buy mower”.
The evidence presented at Montgomery's trial (viewed in the light most favorable to the jury's verdict) showed that Luke Moore had lost two of his checkbooks some weeks before Montgomery cashed these checks, and that all four of the checks that Montgomery cashed at the credit union were forged. One of Moore's lost checkbooks was later found in an apartment where Montgomery's niece lived.
Montgomery was indicted on ten felonies. These felonies encompassed theft of the checkbook from which the four checks came, forgery of the checks themselves, fraudulently presenting the checks for payment, and theft of Luke Moore's money (by cashing the checks).
At trial, Montgomery asserted that her friend Jason Brendible had tricked her into believing that the checks were genuine. Montgomery testified that Brendible told her that all four of the checks were written by Moore, and that these checks represented money that Moore owed to Brendible. According to Montgomery, Brendible would have had difficulty cashing these checks if the checks were made payable to him, because Brendible had no bank account and no government-issued ID — so Brendible asked Moore to make the checks payable to Montgomery, with the idea that Montgomery would cash the checks and give the money to Brendible.
The jury rejected this defense and convicted Montgomery of all ten counts. Montgomery now appeals her convictions on three grounds.
Montgomery's first point on appeal arises from the fact that Jason Brendible, who had been expected to testify at Montgomery's trial, invoked his privilege against self-incrimination. After Brendible's attorney privately explained the basis of Brendible's claim of privilege to the trial court (in an ex parte hearing), the trial court agreed that Brendible would risk incriminating himself if he were to testify. The court therefore upheld Brendible's claim of privilege, and Brendible did not testify at Montgomery's trial.
On appeal, Montgomery argues that the trial court should have allowed her attorney to call Brendible to the stand and attempt to question him — so that the jury would hear Brendible assert his privilege against self-incrimination in open court.
Montgomery acknowledges that Alaska law normally forbids a party from calling a witness to the stand if the party knows beforehand that the witness will assert a valid claim of privilege to refuse to answer questions.1 But Montgomery asserts that her case presents a special circumstance — a situation where her constitutional right to present a defense required the jury to hear Brendible assert his privilege against self-incrimination.2
Star page 2*2 Montgomery notes that, in her defense attorney's opening statement to the jury, the attorney expressly asserted that Brendible had tricked Montgomery into cashing the checks, and that Brendible was the true culprit. Montgomery now argues that, because her defense attorney argued this theory of the case to the jury, it was crucial for the jurors to hear Brendible assert his privilege against self-incrimination — so that the jurors would understand that Montgomery was doing everything she could to “bring[ ] forward all witnesses with knowledge bearing on the case”.
We reject this argument for two reasons.
First, if the trial court had allowed Montgomery's attorney to force Brendible to claim the privilege in front of the jury, there was a substantial risk that the jurors would have inferred that Brendible was claiming this privilege because he was criminally liable for stealing, forging, and cashing the four checks involved in this case. But under Alaska law, it is impermissible for a fact-finder (whether a judge or a jury) to draw any inference whatsoever from a person's invocation of their privilege not to testify.3
In fact, in Montgomery's case, this potential inference would have affirmatively misled the jurors. The record of the ex parte hearing shows that the trial judge did not uphold Brendible's claim of privilege based on any risk that his testimony would tend to incriminate him in the crimes charged against Montgomery. Rather, the trial judge upheld Brendible's claim of privilege based on the risk that his testimony would tend to incriminate him in other unlawful acts.
Second, if Montgomery's aim was to have the jurors understand that Montgomery was doing everything she could to “bring forward all witnesses with knowledge bearing on the case”, this aim could be met by having the trial court instruct the jury that, for reasons beyond the control of either party, Jason Brendible was not available to testify at Montgomery's trial. And, in fact, the trial judge in Montgomery's case instructed the jurors that Brendible was not available as a witness, and that the jurors should not speculate as to why that was so.
For these reasons, we reject Montgomery's argument that the trial court should have allowed Montgomery's attorney to force Brendible to assert his privilege against self-incrimination in front of the jury.
In a separate related argument, Montgomery asks us to review the ex parte hearing and assess whether Brendible presented sufficient grounds to support his claim of privilege, or whether Brendible should only have been allowed to invoke the privilege with respect to a limited range of testimony. We have reviewed the ex parte hearing, and we conclude (1) that Brendible presented valid reasons to think that he risked self-incrimination if he took the stand at Montgomery's trial, and (2) that the trial court could not have solved this problem by limiting the scope of Brendible's testimony.
Montgomery's next argument concerns the prosecutor's summation to the jury. Montgomery contends that, in this summation, the prosecutor improperly commented on Montgomery's failure to come forward and explain her version of events to the police before she was charged.
Star page 3*3 It is true, as Montgomery points out, that the prosecutor referred to Montgomery's pre-arrest silence in her summation. More specifically, the prosecutor referred to the fact that Montgomery never met with the investigating officer in this case, even after the officer invited Montgomery to be interviewed before a charging decision was made. The prosecutor suggested that this allowed Montgomery and her fiancé, Troy Adams (who also testified at Montgomery's trial) to fashion an exculpatory narrative after they learned the details of the State's case.
As our supreme court explained in Adams v. State, it would normally be error for a prosecutor to comment on a defendant's pre-arrest silence.4 But twice during Montgomery's trial, Montgomery's attorney expressly told the court that he did not object to the prosecutor's introducing evidence that Montgomery failed to speak with the investigating officer, even after the officer invited Montgomery to be interviewed.
This issue arose early in the trial (just before the parties delivered their opening statements), when the prosecutor alerted Montgomery's attorney to a new one-page supplemental report that the prosecutor had just received from the investigating officer — a report in which the officer described his contact with Montgomery. When the prosecutor alerted everyone to this supplemental report, here is what Montgomery's attorney told the court:
Defense Attorney: [I've] decided to let this — I mean, normally we're not going to ever allow comments on pre-arrest silence. It violates the rules of evidence [and the supreme court's decision in] Adams. Nevertheless, it's fine in this case; so I have no problem with the State producing the evidence that they noticed in the police report. [So] I don't think I have any [issues to be addressed before opening statements], Your Honor.
Later during the trial, just before the prosecutor called the investigating officer to the stand, the prosecutor asked Montgomery's attorney to confirm that he had no objection if the investigating officer testified that Montgomery never met with him even though he invited her to be interviewed. Here is what followed:
The Court: [The defense attorney] indicated [that] he didn't oppose that [evidence].
Defense Attorney: I'm not going to oppose it, although usually it is ... the [controlling] case is State of Alaska versus Bill Adams. It's usually not admissible, but I'm not going to object.
Given this record, it was not error for the prosecutor to introduce evidence that Montgomery never met with the investigating officer to discuss this case before a charging decision was made; nor was it error for the prosecutor to briefly comment on this evidence during her summation to the jury.
Montgomery also argues that it was improper for the prosecutor to suggest that Montgomery's fiancé, Troy Adams, collaborated with Montgomery to formulate an exculpatory narrative (that Montgomery cashed the checks only because Brendible misled her into thinking that the checks were genuine).
At trial, Adams testified that he heard Brendible ask Montgomery to cash a check for him, and that Montgomery cashed checks for Brendible on at least three occasions. Adams further testified that he had no idea that these checks were forged until months later, when the criminal charges were filed. Thus, Adams's testimony corroborated Montgomery's own testimony about the checks. But as Montgomery points out on appeal, there was no direct evidence that she and Adams fashioned their testimony in tandem. In fact, Adams expressly denied that Montgomery ever told him what her defense to the charges would be. Montgomery therefore argues that it was improper for the prosecutor to suggest otherwise.
Star page 4*4 Of course, the credibility of Adams's testimony was a matter for the jury to decide. But Montgomery and Adams had been engaged for three years at the time of Montgomery's trial. Their longstanding intimate relationship furnished reasonable grounds for the prosecutor to suggest that Adams was not a disinterested witness — that Adams had reasons to support Montgomery even if this meant shading or misrepresenting the truth.
Finally, Montgomery argues that the evidence presented at her trial was insufficient to support the jury's finding that Montgomery was guilty of the theft of Luke Moore's checkbook, as distinct from Montgomery's acts of fraudulently cashing four checks that came from that checkbook.
Under Alaska law, a person can be guilty of the theft of property even if the property was merely lost or mislaid. Under AS 11.46.160, it is sufficient for the State to prove (1) that the person obtained the lost or mislaid property in some way, (2) that the person knew that the property was lost or mislaid, and that, (3) acting with intent to deprive the owner of this property, (4) the person failed to take reasonable measures to restore the property to its owner (measures such as notifying the owner, if the owner was identifiable, or notifying the police).
Montgomery concedes that the State's evidence, viewed in the light most favorable to the jury's verdicts, was sufficient to prove that she possessed and fraudulently cashed four checks that came from Luke Moore's checkbook. But Montgomery argues that it would be mere conjecture or speculation to conclude that she ever possessed the checkbook itself.
The four checks that Montgomery cashed were numbered “133”, “135”, “136”, and “137”. It was therefore reasonable for the jurors to conclude that these four checks all came from the same checkbook. And Montgomery herself admitted that she cashed these four checks by going to her credit union four different times on two consecutive days, over a period of only 29 hours.
Based on this evidence, it was reasonable for the jurors to conclude that Montgomery possessed the checkbook from which these checks came — and thus the evidence was legally sufficient to support the jury's verdict that Montgomery was guilty of the theft of this checkbook.
In sum, for the reasons explained in this opinion, we reject all of Montgomery's claims on appeal and we AFFIRM the judgement of the superior court.