Daniel James Gadomski, n/k/a Just Danny v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL JAMES GADOMSKI,
n/k/a Just Danny,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-13840
Trial Court No. 3AN-16-02925 CR
O P I N I O N
No. 2827 — March 27, 2026
Appeal 	from 	the 	Superior 	Court, 	Third 	Judicial 	District,
Anchorage, Frank A. Pfiffner, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and
Samantha 	Cherot, 	Public 	Defender, 	Anchorage, 	for 	the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge WOLLENBERG, writing for the Court.
Judge TERRELL, concurring.
Following a jury trial, Daniel James Gadomski was convicted of one count
of first-degree sexual assault and one count of second-degree assault of B.N. At trial,

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B.N. could not remember much about what had occurred, and the State introduced her
prior statements (given close in time to the incident) to help prove its case. The State
also introduced testimony and photographs showing B.N.’s injuries.
In an interview with the police after the incident, Gadomski repeatedly
denied engaging in any sexual or physical contact with B.N. At trial, however,
Gadomski disclaimed his prior statements to the police and testified that he had engaged
in consensual sexual intercourse with B.N. He also testified that later in the evening,
there was a physical altercation in which he used force against B.N.
Gadomski now appeals, raising several challenges to his convictions.
We first address Gadomski’s plain error challenges to the prosecutor’s
cross-examination of him at trial. During her cross-examination, the prosecutor
questioned Gadomski about his failure — in the weeks and years following his
interview with the police — to contact the police to correct his earlier statements, thus
implicitly commenting on his silence. The prosecutor also asked Gadomski questions
that implied he had a personal obligation to identify evidence corroborating aspects of
his testimony. The State acknowledges that much of this questioning was improper but
argues that the court’s failure to intervene does not constitute plain error because the
questioning was not prejudicial.
We agree that large portions of the prosecutor’s cross-examination of
Gadomski were improper. The key question in dispute is whether this improper cross-
examination was prejudicial.
For the reasons discussed in this opinion, we conclude that the improper
cross-examination 	was 	harmless 	beyond 	a 	reasonable 	doubt 	as 	to 	Gadomski’s
conviction for second-degree assault given the corroborating evidence of B.N.’s
injuries. But having carefully reviewed the questioning and the trial record as a whole,
we conclude that the State has not met its burden of showing that the improper cross-
examination was harmless beyond a reasonable doubt with respect to Gadomski’s first-
degree sexual assault conviction.

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We therefore conclude that the prosecutor’s improper questioning was
prejudicial 	and 	plainly 	erroneous 	as 	to 	Gadomski’s 	sexual 	assault 	conviction.
Accordingly, we reverse this conviction and remand for a new trial on this count.
Gadomski also challenges a jury instruction given by the court as to the
use of prior inconsistent statements. We agree with Gadomski that the jury instruction
was incomplete in some respects. We nonetheless conclude that any errors were
harmless as to Gadomski’s remaining conviction for second-degree assault, which we
affirm.
Background facts
The events underlying this case took place on June 2, 2015. At 9:29 p.m.
that evening, Anchorage police responded to a call at the Black Angus Inn that a
woman, naked from the waist down and with a bloody lip, had just reported being
sexually assaulted. When the police arrived, they found B.N. in the lobby wrapped in a
blanket; her lips were swollen and bleeding, and she was visibly upset.
The police conducted a brief interview of B.N. at the scene. B.N. stated
that she was having “rough sex” with Gadomski that was consensual, but that the sex
became too rough and she told Gadomski to stop, but he just “kept going, going, going.”
B.N. told the police that she had tried to get out of the hotel room and that Gadomski
kept hitting her and held her by her neck. B.N did not know how she ultimately got out
of the room. An officer later described B.N. as upset and intoxicated during this initial
interview.
After B.N.’s initial interview, the police transported her to a Sexual
Assault Response Team (SART) center. During the transport, B.N. described Gadomski
as a friend and someone she had trusted. B.N. described her face as “fucked up” and
said that Gadomski had done a “whole bunch of shit to” her. On a phone call B.N. took
outside of the SART center, B.N. said that she had been “beaten” because she “didn’t
have a bottle for him.”

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During the initial SART intake, B.N. reported to the nurse that she had
been strangled to the point of unconsciousness, and the nurse observed bruising and
redness on B.N.’s neck. The nurse did not complete a full examination at that time
because B.N. was in too much pain. Instead, the nurse arranged for B.N. to be evaluated
at the hospital.
Following her discharge from the hospital, B.N. returned the next morning
to complete a SART examination. During this SART examination, a nurse documented
and photographed numerous bruises and injuries on B.N.’s body. The nurse also
observed petechiae on B.N.’s neck and under her ear, which the nurse testified was
consistent with B.N.’s report of strangulation. The nurse did not observe any genital
injuries, but later testified that sexual assault does not always cause genital injuries.
B.N. was also interviewed at the SART center by Anchorage Police
Detective Andrew Cottle. B.N. explained that she had met Gadomski in December 2014
when she was dating his brother. When asked if she had been sexually intimate with
Gadomski in the past, B.N. said that she “went” with him a couple of times.
B.N. said that she only remembered “bits and parts” of what had happened
the night before. B.N. said that she had called Gadomski and was then dropped off at
the Black Angus Inn in the late afternoon to see him. She recalled that they started
drinking and then had consensual sex while she was partially dressed. She said that
“everything was fine at the beginning” and that she “fell asleep for a while.” But “when
[she] woke up, [Gadomski] was choking [her]” and she could not breathe. She said that
she told “him to stop and he just kept going.” B.N. explained that she was on her
stomach, with Gadomski holding her arms around her back and using his other hand to
choke her. B.N. said that after choking her, Gadomski hit her all over her head with his
fists and open hand.
In response to Detective Cottle’s question as to whether Gadomski “put
anything inside [her] vagina” during the time that it “wasn’t consensual,” she responded
“just himself” and then confirmed it was his penis. She also stated that she was

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facedown during the time that it “wasn’t consensual” and that her face only came up
when Gadomski pulled her hair and her head up.
The police also interviewed Gadomski about what happened. Anchorage
Police Officer Daniel Gill first interviewed Gadomski at the Black Angus Inn after
Gadomski approached him in the lobby. Gadomski told Officer Gill that he had gone
down to the lobby to get some ice and that he had no idea why B.N. was upset.
Gadomski repeatedly denied having had any sexual contact with B.N. that
night. Gadomski told the officer that the last time he had sex with B.N. was four to five
months earlier. Gadomski also repeatedly denied physically assaulting B.N., stating that
he did not touch her other than to grab her shoulders and tell her to calm down.
The 	police 	then 	transported 	Gadomski 	to 	the 	Anchorage 	Police
Department, where he was interviewed by Anchorage Police Detective Chris Thomas
after being read his Miranda rights. During this interview, Gadomski repeatedly denied
having had any sexual contact with B.N. or physically assaulting her that night.
Contrary to his previous statements, Gadomski also denied having sexual contact with
B.N. on any previous occasions.1
When Detective Thomas asked Gadomski about an injury to his right
pointer finger and blood on his left palm, Gadomski said that the only thing he could
think of was that “it was from the handcuffs from being in the back of the car.” Although
Gadomski had previously told Officer Gill that B.N. bit his finger when he tried to stop
her from leaving, he now denied that B.N. had bitten him.
Pursuant to a warrant, the detective swabbed Gadomski’s hands and penis
for DNA. The police also retained Gadomski’s phone, which he had encouraged them
1 	Gadomski also provided a brief written statement to Detective Thomas, which stated
that he had been drinking and watching television with B.N. at the Black Angus Inn and
contained no mention of any sexual or physical contact with B.N.

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to examine. Gadomski was released after the interview. Later DNA testing revealed
B.N.’s DNA on Gadomski’s penis and her blood on his hands.
Nine months later, in March 2016, after the police received the results of
the DNA testing, a criminal complaint was filed against Gadomski charging him with
first- and second-degree sexual assault and third- and fourth-degree assault. A warrant
was issued for his arrest.
In the meantime, Gadomski had moved out of state to find work.2 While
living in Florida in February 2018, Gadomski learned of the 2016 arrest warrant. He
subsequently flew back to Anchorage and turned himself in to the police.
In March 2018, a grand jury indicted Gadomski on one count of first-
degree sexual assault (for engaging in sexual penetration of B.N. without her consent),
one count of second-degree assault (for causing physical injury to B.N., with intent to
do so, by means of a dangerous instrument, his hands), and one count of third-degree
assault (for recklessly placing B.N. in fear of imminent serious physical injury by means
of 	a 	dangerous 	instrument, 	his 	hands).3 	The 	State 	also 	charged 	Gadomski 	by
information with fourth-degree assault (for recklessly causing physical injury to B.N.).4
Trial proceedings
Gadomski’s case proceeded to a jury trial. At trial, the State argued that
Gadomski and B.N. had initially engaged in consensual sex on June 2, 2015, but that
2 	Gadomski testified that he had been a tree trimmer for an electrical union in
Anchorage and that, just prior to this incident, he lost his job.
3 	Former 	AS 	11.41.410(a)(1) 	(2015), 	AS 	11.41.210(a)(1), 	and
AS 11.41.220(a)(1)(A), respectively.
4 	The fourth-degree assault was initially charged as a fear assault, but was later
amended to a physical injury assault under AS 11.41.230(a)(1).

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B.N. revoked her consent when the sex became too rough, and she told him to stop. The
State argued that Gadomski then physically and sexually assaulted B.N.
B.N. testified at trial. B.N. testified that Gadomski had previously sexually
assaulted her in December 2014, and that she had not told anyone about that incident
until several years later. B.N. testified that on June 2, 2015, she was dropped off at the
Black Angus Inn, where Gadomski was staying. B.N. had already been drinking that
day and she brought one or two bottles of alcohol with her; she and Gadomski started
drinking together in his room. B.N. testified that she did not have any injuries when she
arrived.
B.N. was largely unable to remember or testify to the events that occurred
after that. She testified that she could not remember much other than that she was lying
on her stomach, Gadomski was holding her down and holding one of her arms behind
her back, and she felt scared. At some point, she lost consciousness. She also
remembered that she somehow got out of Gadomski’s room, and she was running and
looking for an exit while wearing just a shirt. B.N. testified that she did not remember
having either consensual or nonconsensual sex with Gadomski that day.
Because B.N. had little memory of the incident, the State introduced her
recorded statements to the police as prior inconsistent statements to prove its case.5 The
State introduced B.N.’s recorded interview with the police at the scene. The State also
introduced B.N.’s interview that was completed at the SART center the morning after
the incident.
The initial SART intake nurse testified to the redness and bruising on
B.N.’s neck, and the nurse who ultimately conducted the SART examination testified
to B.N.’s injuries, including the signs of strangulation. The second nurse testified that
B.N had reported symptoms of strangulation including difficulty breathing, tunnel
vision, and loss of consciousness.
5 	See Beavers v. State, 492 P.2d 88, 94 (Alaska 1971).

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The second SART nurse also testified that B.N. had bruising all over her
body, including 	her head, 	face, 	neck, 	and 	shoulders, 	and 	the 	State 	introduced
photographs corroborating these injuries. With respect to the injuries to B.N.’s neck,
the nurse described two circular bruises and a longer, linear bruise. The nurse also
identified areas on B.N.’s neck and underneath her right ear showing petechiae, which
she testified she is trained to look for in strangulation cases. The nurse testified that
B.N.’s injuries presented as a “remarkable” and “severe” case of strangulation.
The front desk clerk at the Black Angus Inn testified that he called 911
after B.N., who was naked from the waist down and had a bloody lip, told him that she
had been sexually assaulted in one of the rooms. He described B.N. as “very scared,
fearful” and said that she “couldn’t stop crying.”
The State introduced Gadomski’s interview with Officer Gill at the scene
and his interview with Detective Thomas at the police station and played them for the
jury. The State also presented evidence that B.N.’s DNA was found on Gadomski’s
penis and that B.N.’s blood was found on Gadomski’s left hand.
Gadomski took the stand in his own defense. He acknowledged that all of
his prior denials to the police were not true. Gadomski testified that he had engaged in
consensual sex with B.N. and that he had lied to the police about doing so because he
was drunk and scared. Gadomski testified that he and B.N. had engaged in previous
sexual encounters, and he testified that the sex they had in December 2014 was
consensual.
Gadomski testified that, on June 2, 2015, he and B.N. started engaging in
consensual sex within ten minutes of B.N. arriving in his room; he then fell asleep in a
chair and woke up to B.N. shaking him. Gadomski testified that he responded by
grabbing B.N.’s hands and shoulders, shaking her, and throwing her such that the back
of her legs hit the bed and she sat down on top of it. He asserted that this physical
altercation was instigated by B.N., who woke him from a “dead sleep.”

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He also testified that, when B.N. approached him a second time, he
“smack[ed]” her and “threw her down or . . . shook her.” Gadomski testified that the
third time B.N. came at him, he “smacked” her again. He said he was “mad” and
“grabbed her by her face hard.” Gadomski testified that he specifically grabbed her by
her chin and jaw and then pushed her such that the back of her legs hit the bed and she
“did a somersault over the bed and hit the ground on the other side.” According to
Gadomski, B.N. screamed and left the room. Gadomski estimated that this entire
incident was not much longer than a minute or a minute and a half.
Gadomski denied pinning B.N. down, holding her hands behind her back,
or strangling her. When asked about whether he put his hands around B.N.’s neck,
Gadomski testified that he grabbed her, and part of his fingers might have been on her
throat, but that he mainly grabbed her jaw.
On cross-examination, the prosecutor questioned Gadomski about his
prior inconsistent statements to the police that he had no sexual contact with B.N., did
not hit B.N., and did not put his hands around B.N.’s throat. Gadomski acknowledged
that he had repeatedly and “adamantly” lied to the police. But he maintained that he
was now telling the truth.
Gadomski asserted that his use of force was meant to “create space”
between himself and B.N., but on cross-examination he acknowledged that, in
hindsight, he probably could have used less force. When asked how hard he grabbed
B.N.’s jaw, he said he “squeezed probably as hard as [he] could probably squeeze” —
he “squeezed decent.”
The prosecutor further asked Gadomski about the details of the sexual
encounter. Gadomski testified that he and B.N. had sex on the bed and that after they
had sex, he went over to the chair and B.N. fell asleep on the bed.
The prosecutor also questioned Gadomski extensively about his failure to
correct his lies to the police in the years following his interview with Detective Thomas.
That is, the prosecutor repeatedly asked Gadomski whether he had ever contacted the

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police to explain that his prior statements were false and that there had been a
consensual sexual encounter with B.N. The prosecutor also asked Gadomski whether
he had subpoenaed records to corroborate his assertion that he contacted the police prior
to leaving Alaska for work to confirm that it was okay to leave the state. Lastly, the
prosecutor questioned Gadomski about what motive B.N. would have for lying about
him sexually assaulting her.
Prior to closing arguments, the parties discussed jury instructions. The
prosecutor requested a non-pattern jury instruction on prior inconsistent statements that
informed the jury that prior inconsistent statements could be used as “substantive
evidence” and that the jury could “use that evidence as proof of an element of the crime
charged” if they believed the prior inconsistent statements. Gadomski objected to this
instruction as unnecessary and unfairly slanted towards the State. The court overruled
Gadomski’s objection and gave the requested instruction.
In closing, the prosecutor argued that B.N.’s statements to the police were
credible and that the jury should convict Gadomski of physical and sexual assault based
on the evidence of B.N.’s injuries, the DNA evidence, and B.N.’s prior statements. The
prosecutor explained that the second-degree assault count (and the related third-degree
fear assault count) related to strangulation and argued that B.N.’s injuries were
consistent with her report of strangulation. The prosecutor explained that the fourth-
degree assault charge was for hitting B.N. about the head. The prosecutor argued that
Gadomski’s only choice was to take the stand and admit that he lied because “every bit
of physical evidence disprove[d]” his statements to the police.
The defense attorney largely conceded that Gadomski had physically
assaulted B.N. by hitting her, but he argued that Gadomski was telling the truth when
he said that the sexual intercourse was consensual. The defense attorney also argued
that Gadomski had not strangled B.N. Instead, the defense attorney pointed to
Gadomski’s testimony that he had grabbed B.N.’s face and pushed her off, arguing that
this would not impede her breathing. The defense attorney attacked B.N.’s credibility,

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arguing that it was not credible that she would continue to seek out Gadomski and have
sexual intercourse with him if he had sexually assaulted her in December 2014 as she
claimed.
The jury found Gadomski guilty of all four charges. The superior court
merged the third- and fourth-degree assault counts into the second-degree assault
conviction. Gadomski was thus convicted of one count of first-degree sexual assault
and one count of second-degree assault.
This appeal followed.
Gadomski’s challenges to the prosecutor’s cross-examination of him at
trial
We 	begin 	with 	Gadomski’s 	challenges 	to 	the 	prosecutor’s 	cross-
examination of him at trial. Gadomski challenges three categories of questions:
(1) questions about his failure to contact the police to correct his previous false
statements; (2) questions as to whether he had subpoenaed records or identified
evidence to corroborate aspects of his testimony; and (3) questions regarding B.N.’s
potential motive to lie. Gadomski concedes that his attorney failed to object to any of
these questions at trial and that he must, therefore, establish plain error.6
Of these claims, the most significant is Gadomski’s assertion that the
prosecutor 	impermissibly 	and 	repeatedly 	asked 	him 	questions 	which 	implicitly
commented on his silence — namely, his failure, over the course of years (including
when he was ultimately taken into custody) to explain to the police that his prior
statements were false and that the sexual encounter was consensual. This claim is
significant because both the Alaska Supreme Court and this Court have repeatedly
emphasized that Alaska law provides strong protections for a criminal defendant’s right
6 	See Adams v. State, 261 P.3d 758, 764 (Alaska 2011); Alaska R. Crim. P. 47(b).

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to remain silent and precludes improper comment on the defendant’s pre- or post-arrest
silence.7 We therefore start by discussing this claim.
Overview of the law regarding impeachment of a defendant with
their pre- or post-arrest silence
Article I, Section 9 of the Alaska Constitution provides in relevant part
that “[n]o person shall be compelled in any criminal proceeding to be a witness against
himself.” In the seminal 2011 case Adams v. State, the Alaska Supreme Court reviewed
the long-standing protections for silence under Alaska law and reaffirmed Alaska’s
general prohibition on questioning and comment regarding a defendant’s pre- and post-
arrest silence.8
With respect to post-arrest silence, the Adams court stated that “article I,
section 9 prohibits the state from using a defendant’s post-arrest silence for substantive
or impeachment value, even if the defendant did not receive Miranda warnings.”9 The
supreme court explained that, since as far back as 1972, the court had specifically
“disapproved any comment upon a defendant’s exercise of the right to remain silent”
following their arrest.10
7 	See Adams, 261 P.3d at 764; Silvernail v. State, 777 P.2d 1169, 1175 (Alaska App.
1989) (“Neither the Alaska Supreme Court nor the courts of other jurisdictions have shied
away from finding plain error in cases in which evidence of the defendant’s silence has
been introduced as probative evidence of guilt.”).
8 	Adams, 261 P.3d at 765-66.
9 	Id. at 765.
10 	Id. (emphasis omitted) (quoting Gunnerud v. State, 611 P.2d 69, 75 (Alaska 1980),
and citing Davis v. State, 501 P.2d 1026, 1030-31 (Alaska 1972); Coleman v. State,
553 P.2d 40, 53 (Alaska 1976) (Boochever, C.J., concurring); Dorman v. State, 622 P.2d
448, 456-59 (Alaska 1981)).

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With respect to pre-arrest silence, the Adams court held that Alaska
Evidence Rule 403 generally prohibits the introduction of evidence of a defendant’s
pre-arrest silence “due to its inherently low probative value and its high risk of unfair
prejudice.”11 Although the supreme court declined to decide whether evidence of a
defendant’s pre-arrest silence is prohibited under the Alaska Constitution, the court
affirmed a principle recognized by this Court in 1989 in Silvernail v. State: that the
underlying reasons for barring use of a defendant’s post-arrest silence apply equally in
the pre-arrest context.12 In particular, “[t]he underlying rationale of the constitutional
bar against admitting evidence of a defendant’s post-arrest silence is the concern that
such evidence is only minimally probative, while possessing a high potential for
prejudice to the defendant’s case. This is the same basic concern expressed in Alaska
Rule of Evidence 403.”13
In short, the supreme court stated, “[T]here is little to distinguish between
pre- and post-arrest silence when the issue is whether an accused’s silence is probative
of guilt[.]”14 Accordingly, comment on both pre- and post-arrest silence is generally
prohibited.
Like the Alaska Constitution, the Fifth Amendment to the United States
Constitution provides that “[n]o person . . . shall be compelled in any criminal case to
be a witness against himself.” But federal law provides more limited protections against
impeachment by silence — and this limitation is generally drawn in relation to the Due
Process Clause of the Fourteenth Amendment.
11 	Id.
12 	Id. at 766 (discussing Silvernail, 777 P.2d at 1174).
13 	Id. at 766, 773-74 (quoting Silvernail, 777 P.2d at 1174) .
14 	Id. at 767.

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Under federal law, the operative event for purposes of determining
whether a defendant may be impeached with their silence is the administration of
Miranda warnings.15 In Doyle v. Ohio, the United States Supreme Court held that
impeachment of a defendant based on their post-arrest silence after receiving Miranda
warnings violates the Due Process Clause of the Fourteenth Amendment.16 Specifically,
a prosecutor may not “impeach a defendant’s exculpatory story, told for the first time
at trial, by cross-examining the defendant about his failure to have told the story after
receiving Miranda warnings at the time of his arrest.”17 This is because the Miranda
warnings contain an implicit assurance that a defendant’s silence will not be used
against them.18
But the Supreme Court has also held that the federal constitution generally
does not prohibit impeachment of the defendant concerning their pre-arrest silence.19
Nor does the federal constitution preclude cross-examination as to a defendant’s silence
occurring between the time of arrest and the administration of Miranda warnings —
15 	See Miranda v. Arizona, 384 U.S. 436 (1966).
16 	Doyle v. Ohio, 426 U.S. 610, 619 (1976).
17 	Id. at 611.
18 	Fletcher v. Weir, 455 U.S. 603, 606 (1982).
19 	Jenkins v. Anderson, 447 U.S. 231, 238, 240 (1980). That said, the Fifth Amendment
precludes reliance by the government in its case-in-chief on a defendant’s express
invocation of the right to silence as substantive evidence of the defendant’s guilt, even if
the invocation occurred prior to arrest. See Salinas v. Texas, 570 U.S. 178, 181 (2013);
United States v. Okatan, 728 F.3d 111, 120 (2d Cir. 2013).

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i.e., post-arrest but pre-Miranda.20 In other words, the critical issue for purposes of
impeachment by silence under federal law is the administration of Miranda warnings.21
With this overview in mind, we turn to the prosecutor’s cross-examination
of Gadomski and the parties’ arguments in this case.
Why we agree with the parties that the prosecutor’s repeated
questioning related to Gadomski’s silence was error
On appeal, Gadomski argues that the prosecutor improperly questioned
him about his silence. In particular, Gadomski argues that the prosecutor’s repeated
questions about his failure to contact the police in the days and years following the
conclusion of his interview constitute an impermissible use of his right to silence against
him.
The State acknowledges that the prosecutor’s questions about Gadomski’s
failure to contact the police to correct his previous statements were likely improper as
an indirect comment on Gadomski’s silence.
We agree that this questioning was improper.
As an initial matter, we note (and Gadomski agrees) that the prosecutor
could properly question him about the statements he did give to the police on the night
of the events in this case. The prosecutor asked Gadomski whether he had lied to the
police on the night in question, and Gadomski agreed that he had “adamantly” done so.
The prosecutor also asked Gadomski a series of questions about the specific lies he told
the police — that he did not have a prior consensual sexual encounter with B.N., that
20 	Fletcher, 455 U.S. at 605-06.
21 	See id. at 607 (recognizing that the due process underpinnings of Doyle are premised
on “the sort of affirmative assurances embodied in the Miranda warnings”); see also
Salinas, 570 U.S. at 188 n.3 (“Petitioner is correct that due process prohibits prosecutors
from pointing to the fact that a defendant was silent after he heard Miranda warnings, but
that rule does not apply where a suspect has not received the warnings’ implicit promise
that any silence will not be used against him.” (internal citations omitted)).

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he did not have a sexual encounter with B.N. on the night in question, and that he did
not hit B.N. Gadomski agreed that he had lied and “denied everything.”
These questions were proper. Under both federal and Alaska law, when a
suspect does not remain silent, but actually gives a statement of what occurred,
“[o]missions and inconsistencies in [that] exculpatory statement [can] properly be
pointed out at trial.”22 Thus, the prosecutor was free to cross-examine Gadomski on the
inconsistences between the statements he made on the night in question and his
testimony at trial.23
But the prosecutor then went beyond that questioning and “pointedly and
repeatedly” inquired as to Gadomski’s failure to correct his prior statements at any point
following the conclusion of the interview — between the time of his statements and his
testimony at trial.24 That is, the prosecutor sought to impeach Gadomski by suggesting
22 	Sidney v. State, 571 P.2d 261, 264 (Alaska 1977); Nelson v. State, 691 P.2d 1056,
1060 (Alaska App. 1984); see also Anderson v. Charles, 447 U.S. 404, 408 (1980)
(recognizing that questioning a defendant about their prior inconsistent statements “makes
no unfair use of silence because a defendant who voluntarily speaks after receiving
Miranda 	warnings has not been induced to remain silent”); 	Nicoli v. State, 2015
WL 4874913, at *8 (Alaska App. Aug. 12, 2015) (unpublished) (recognizing that a
prosecutor may not comment on a defendant’s decision to remain silent when the defendant
declared, or implicitly conveyed, that they did not wish to respond to police questioning,
but the prosecutor is allowed to comment on the fact that a defendant who offered full
answers to police questioning failed to mention important things or gave an inconsistent
account during those answers).
23 	See Adams v. State, 261 P.3d 758, 769 (Alaska 2011) (“The State was of course free
to cross-examine [the defendant] on any inconsistencies between the statement he gave to
[the police] the morning after the incident and [the defendant’s] testimony at trial.”).
24 	State v. Pacheco, 170 P.3d 1011, 1015-16 (N.M. App. 2007) (holding that it was
improper for the prosecutor to question the defendant about his failure to contact the police
to correct his earlier statement because “[t]he fact that [the] Defendant had previously given
a voluntary statement did not in any way diminish his right to subsequently remain silent
and not speak to the police”); see also State v. Apostle, 512 A.2d 947, 954 (Conn. App.
1986) (noting that if a defendant fails to come forward with correcting information after

– 17 – 	2827
that, if his testimony were true, he would have volunteered this information to the police
prior to trial. Asking the jury to draw this adverse inference was an improper comment
on Gadomski’s right to maintain his silence after the interrogation was over.25
The prosecutor began this line of inquiry by asking Gadomski why he had
never, at any point, called the police to correct his prior false statements. Gadomski
replied that he was being investigated for a sexual assault and “was scared.” Here is the
exchange:
Prosecutor: When did you call the police after this
and say, ‘You know what? I told some lies, but this really
happened. This was really all self-defense’?
Gadomski: 	Why didn’t I call the police and say that?
Prosecutor: Yeah.
. . . .
Gadomski: 	So, the question is why I didn’t call the
cops and say, ‘Hey, look, I had time to think about it and this
is what happened’?
Prosecutor: Yeah.
Gadomski: 	Because I was scared.
Prosecutor: Okay.
questions are no longer being asked of him, there is a reasonable possibility that the
defendant is relying on the right to remain silent); State v. Heller, 793 P.2d 461, 465 (Wash.
App. 1990) (concluding that it was improper for the prosecutor to question the defendant
“extensively and at length” regarding her failure to go back to the police and correct her
original story).
25 	See, e.g., Leffel v. State, 404 P.3d 196, 198 (Alaska App. 2017). In Leffel, the
prosecutor asked the defendant at trial, “Now, what we’re hearing today, we’re hearing it
for the first time, right?” Id. The prosecutor explained in a sidebar that he intended to
establish that the defendant at no time contacted the district attorney’s office to explain his
side of the story. We described this questioning as “a clear violation of [the defendant’s]
right not to talk to the authorities about the pending charge.” Id. And we concluded that the
State was not permitted to imply that the defendant’s claim of self-defense might be false
because it was first disclosed at trial. Id. at 199.

– 18 – 	2827
Gadomski: 	I was — I was being investigated for a
sexual assault, a rape.
The 	prosecutor 	then focused 	attention on 	the 	times, 	following 	the
interrogation, when Gadomski contacted the police for logistical reasons — the day of
his interview (when he called the police to retrieve his phone, which they had seized);
a few days after the interview (when he called the police to ensure he could leave
Alaska, according to his testimony on direct examination); and nearly three years later,
in February 2018 (when he contacted the police from Florida to inquire about the
outstanding warrant).
For example, the prosecutor asked Gadomski: “The next day [following
the interview], when you called to get your phone back from [Detective Cottle], did you
say, ‘You know what? I’ve slept on it overnight, and I need to clarify my statement’?”
Gadomski replied that he was just trying to get his phone back and that the detective
had not asked him any questions either.
The prosecutor also asked Gadomski whether he told the police his side
of the story after he confirmed the existence of the warrant in 2018: “Did you try and
call [the police] back and say, ‘You’ve got this wrong? This wasn’t a sexual assault’?”
Gadomski said that he had not — that he “didn’t try and call them back and explain
anything.”
Finally, the prosecutor asked Gadomski whether he tried to “clarify any
of these lies” when he actually turned himself in on the warrant. Gadomski responded
that he did not — that the first person he talked to was his attorney. Here is a portion of
the exchange:
Prosecutor: My question is: when you ultimately
find your way back to Alaska and turn yourself in and
[Anchorage Police Officer] John Daily is saying, ‘I tried to
make [the warrant] extraditable.’ Did you tell him, ‘You
know what? I’ve had a lot of time to think about this. What
I told the police originally was untrue. We had consensual
sex’?

– 19 – 	2827
Gadomski: 	So, the first person I — I see, I think I —
Prosecutor: I mean, it seems like you were trying
really hard to reach out to the police in your testimony.
While you were doing that, did you try and clarify any of
these lies that you had told?
Gadomski: 	No. No. The first person that I had talked
to was my attorney about — about this.
The prosecutor continued to press Gadomski about whether he had told Officer Daily
that his previous statements to the police were false. Gadomski responded that he did
not think the officer would care — that the officer just had “a job to do,” which was to
arrest him:
Prosecutor: So, when you’re there saying, ‘John
Daily, put me in cuffs. I got this warrant.’ You didn’t tell
him, ‘But you got it all wrong because I lied, I made some
—’
Gadomski: 	No. I —
Prosecutor: ‘— errors in my statement’?
Gadomski: 	Past experience has taught me that they
don’t care. They’ve just got a job to do. They’re — they’re
trying to wipe their docket and they’re — you know, they’ve
got people that they’re looking for. There’s [sic] fugitives.
And they’re just trying to erase you off their list and get you
in custody. They don’t care about the facts. They don’t —
they’re not going to sit there and wait.
Gadomski further stated, “You’re asking . . . why I didn’t try to explain myself,” and
he explained that “past experience has taught me just to talk to my attorney.”
In total, this discussion of Gadomski’s silence was spread across eight
transcript pages of the prosecutor’s cross-examination. As the Alaska Supreme Court
has explained, references to a defendant’s silence — whether pre- or post-arrest — are
generally 	improper 	because 	an 	accused’s 	silence 	is 	“ambiguous 	at 	best.”26 	A
26 	Adams, 261 P.3d at 767.

– 20 – 	2827
defendant’s silence might be “motivated by fear or intimidation; a failure to understand
the question or realize that a reply was necessary; an unwillingness to incriminate
another; mistrust of law enforcement; or simply an awareness of his right to remain
silent.”27 Thus, the probative value of silence is inherently low, while the potential for
unfair prejudice is high.
Here, the implication that Gadomski’s testimony was not credible because
he had failed to return to the police to correct his false statements, or even that he had
an obligation to do so, constituted an improper comment on his right to remain silent.28
Indeed, Gadomski himself offered a number of explanations for his silence that reflect
its ambiguity — that he was scared, that he did not think the police cared to hear his
story at that point, and that he wanted to consult with his attorney.
As past Alaska cases have made clear, prosecutors must be particularly
vigilant in the area of questioning regarding silence.29 The prosecutor’s repeated cross-
examination of Gadomski implicitly commenting on his right to silence was error.
27 	Id. (citing Silvernail v. State, 777 P.2d 1169, 1177-78 (Alaska App. 1989)).
28 	According to his testimony, Gadomski did contact the police after his interview to
retrieve his phone and seek permission to leave the state. But contacting the police for these
logistical purposes cannot be viewed as waiving one’s right to silence as to statements
about an alleged offense that could be incriminating, and the State does not argue
otherwise. If we were to conclude that such contacts eliminated the protections afforded to
one’s silence, suspects would be disincentivized from maintaining contact with the police
or from attempting to retrieve their seized property.
29 	See, e.g., Adams, 261 P.3d at 767; see also id. at 773-74 (finding plain error when
the prosecutor questioned the defendant about his refusal to speak to the police and argued
that this refusal made the defendant’s testimony less credible, noting that “the law
protecting Adams’s right to silence was well established at the time of his trial and the
prosecutor committed an obvious violation of that right by expressly arguing that Adams’s
silence diminished his credibility”); Dorman v. State, 622 P.2d 448, 456-59 (Alaska 1981)
(finding plain error where the prosecutor asked the jury to infer guilt from the defendant’s
silence following arrest).

– 21 – 	2827
Why we conclude that the error is one of constitutional magnitude
The main dispute between the parties is not whether the prosecutor’s
implicit 	comment 	on 	Gadomski’s 	silence 	was 	improper; 	the 	State 	essentially
acknowledges 	that 	it 	was. 	Rather, 	the 	primary 	dispute 	relates 	to 	whether 	the
prosecutor’s questioning related to pre- or post-arrest silence and whether the error was
prejudicial and thus requires reversal of Gadomski’s convictions.
The 	reason 	the 	parties 	dispute 	the 	proper 	characterization 	of 	the
questioning is because, under current Alaska law, this distinction impacts the standard
for assessing whether the error was prejudicial. An improper comment on post-arrest
silence is an error of constitutional magnitude, violating Article I, Section 9 of the
Alaska Constitution.30 When we evaluate the harm of a constitutional error, the burden
is on the State to prove that the error is harmless beyond a reasonable doubt.31
But neither the Alaska Supreme Court nor this Court has resolved whether
an improper comment on pre-arrest silence is an error of constitutional dimension.32 As
we noted earlier, such a comment is generally impermissible under Evidence Rule 403
because of its high potential for unfair prejudice relative to its low probative value.33
But in assessing the harm of a non-constitutional error, we apply a lower standard of
prejudice, examining whether the defendant has proved that there is a reasonable
probability that the error affected the outcome of the proceeding.34
Gadomski argues that the prosecutor’s questioning regarding his failure to
give a corrected statement to Officer Daily at the time he turned himself in on the
30 	See Adams, 261 P.3d at 765; Dorman, 622 P.2d at 457.
31 	Adams, 261 P.3d at 773.
32 	Id. at 766.
33 	Id. at 765.
34 	Id. at 771-73.

– 22 – 	2827
warrant related to his post-arrest silence. Gadomski argues that, at least as to this period
of time, the State must prove that the error was harmless beyond a reasonable doubt.
Gadomski characterizes the prosecutor’s questioning regarding earlier
points in time as relating to his pre-arrest silence, but he argues that we should answer
the question left open under Alaska law and decide that impeachment by pre-arrest
silence is prohibited under the Alaska Constitution, thus holding that all the questioning
here was unconstitutional. And he argues that the questioning as a whole requires
reversal of his convictions, regardless of what standard of prejudice is applied.
In contrast, the State argues that all (or nearly all) of the prosecutor’s
questioning related to Gadomski’s pre-arrest silence and was therefore not an error of
constitutional dimension; the State contends that the questioning was harmless under a
non-constitutional prejudice standard. The State further argues that, even if some of the
questioning was constitutional in scope, the State has shown that the questioning was
harmless beyond a reasonable doubt.
We agree with Gadomski that the prosecutor’s questioning regarding the
period when he turned himself in on the warrant constituted a comment on his post-
arrest silence. The State argues that the prosecutor’s questions related to this time period
constituted a pre-arrest conversation because the prosecutor referred to the period when
Gadomski was “there saying ‘John Daily, put me in cuffs’” (i.e., when Gadomski
approached Officer Daily to turn himself in), suggesting that the prosecutor was asking
about the time before Gadomski was placed in handcuffs and, therefore, before he was
formally arrested.
But Gadomski knew he was turning himself in on an arrest warrant for a
charge of first-degree sexual assault. The warrant was a court order to take Gadomski
into custody. It is therefore clear that Gadomski would not have been free to leave
during any portion of his interaction with Officer Daily and would necessarily be placed
under 	arrest. 	This 	questioning 	is 	appropriately 	categorized 	as 	commenting 	on
Gadomski’s post-arrest silence and is therefore an error of constitutional dimension.

– 23 – 	2827
As we discussed above, the prosecutor also questioned Gadomski about
his failure, at any point prior to trial, to contact the police to correct his prior statements
to the police. The prosecutor asked, “When did you call the police after this and say,
‘You know what? I told some lies, but this really happened’?” To the extent this
questioning asked the jury to draw a negative inference from the fact that Gadomski
had never “call[ed] the cops [to] say, ‘Hey, look, I had time to think about it and this is
what happened’” prior to trial, it also related to Gadomski’s post-arrest (in addition to
his pre-arrest) silence.35
That leaves the questioning regarding Gadomski’s failure to correct his
prior statements at the remaining points in time: in the days following the interview
when he contacted the police about his phone and (according to his testimony) about
leaving Alaska and when he called the police from Florida to inquire about the warrant
for his arrest. Gadomski argues that this questioning was constitutional error because
pre-arrest silence is protected under Article I, Section 7 and Article I, Section 9 of the
Alaska Constitution. But we conclude that we need not reach that open question in this
case.
As an initial matter, we note that the Alaska Supreme Court has
emphasized that improper commentary on a defendant’s pre- and post-arrest silence
affects a defendant’s substantial rights “in precisely the same way — by admitting
evidence that has an inherently low probative value but a high potential for unfair
prejudice.”36 Here, the prosecutor questioned Gadomski about his failure to correct his
statements in the days immediately following the interview up until the time of his trial.
The implication was the same throughout: that if Gadomski were now telling the truth,
he would have told this story sooner.
35 	See Leffel v. State, 404 P.3d 196, 198 (Alaska App. 2017); Adams, 261 P.3d at 764.
36 	Adams, 261 P.3d at 774.

– 24 – 	2827
But more importantly, the parties’ focus on whether the questioning
related to pre- or post-arrest silence obscures a larger issue: all of the questioning
referred to periods of time after Gadomski had already received Miranda warnings and
had been explicitly told that his silence would not be used against him.
As we noted above, in Doyle v. Ohio, the United States Supreme Court
held that impeachment of a defendant based on their post-arrest silence after receiving
Miranda warnings violates the Due Process Clause of the Fourteenth Amendment.37
The reason for this is twofold: one, “every post-arrest silence is insolubly ambiguous”
because it “may be nothing more than the arrestee’s exercise of [their] Miranda rights,”
and two, the use of silence to impeach would be “fundamentally unfair” given that the
warnings contain the implicit “assurance that silence will carry no penalty.”38
(Since Doyle, multiple courts have held that the critical factor in the Doyle
analysis is not whether the defendant has been formally arrested, but whether the
defendant has received Miranda warnings.39 This is due to the fundamental unfairness
of using a defendant’s silence against them following an implicit promise not to do so.)
37 	Doyle v. Ohio, 426 U.S. 610, 619 (1976).
38 	Id. at 617-18.
39 	See, e.g., Kappos v. Hanks, 54 F.3d 365, 368-69 (7th Cir. 1995) (recognizing that
“the fact that an arrest had not yet occurred does not render Doyle inapplicable” and “that
the promise contained in the statement of Miranda rights precludes the prosecutor from
commenting on the defendant’s silence”); State v. Fencl, 325 N.W.2d 703, 710 (Wisc.
1982) (“Receipt of the Miranda warning is the important factor in the Doyle analysis, not
whether the defendant has been arrested. Therefore, the Doyle rationale protects post-
Miranda silence whether occurring before or after arrest.”); State v. Plourde, 545 A.2d
1071, 1077-78 (Conn. 1988) (“The unfairness of using a defendant’s silence following
Miranda warnings is not mitigated by the absence of custody. . . . Custody is therefore not
a prerequisite to a Doyle violation.”); Bartley v. Commonwealth, 445 S.W.3d 1, 9
(Ky. 2014) (recognizing that “[w]hen an accused receives the Miranda warnings’ implicit
promise that any silence will not be used against her, it is fundamentally unfair and a
violation of due process to then use that silence against her,” even when Miranda warnings
are given unnecessarily); People v. Warren, 577 N.E.2d 936, 939 (Ill. App. 1991) (holding

– 25 – 	2827
Notably, relying on the rationale in Doyle, several courts have held that
the type of impeachment that occurred in Gadomski’s case violates the federal
constitution.40 These courts have held that, when the defendant’s earlier statement was
preceded by a Miranda warning, the government may not impeach the defendant or ask
the jury to draw a negative inference from the defendant’s failure to contact the
authorities prior to trial to correct their original statement.41
For example, the Appellate Court of Connecticut held in State v. Apostle
that a prosecutor may not question a defendant about the defendant’s failure to correct
a previous false story given to officers following waiver of their Miranda rights.42 In
Apostle, the defendant was convicted of, inter alia, first-degree sexual assault for
engaging in forcible sexual intercourse with a teenage girl in a wooded area.43 When
the girl was later picked up by passing motorists, she was “crying and hysterical,” and
she then reported to her friend’s mother and sister what had happened.44 After the
defendant was arrested and read the Miranda warnings, he gave a written statement to
that “using a defendant’s pre-arrest, post-Miranda warning silence, unless invited, violates
due process”); see also United States v. Rivera, 944 F.2d 1563, 1568 n.12 (11th Cir. 1991)
(recognizing that the key question for purposes of whether the government could comment
on the defendant’s silence was not when the defendant was arrested or in custody, “but
when she was given her Miranda warnings and thereby given the implicit assurance that
her silence would not be used against her”). But see State v. Robinson, 496 A.2d 1067,
1071-72 (Me. 1985) (holding that comment on pre-arrest, post-Miranda silence was
permissible 	where 	administration 	of 	Miranda 	warnings 	was 	unnecessary 	because
defendant was not in custody).
40 	See, e.g., State v. Apostle, 512 A.2d 947 (Conn. App. 1986); State v. Pacheco, 170
P.3d 1011 (N.M. App. 2007); State v. Heller, 793 P.2d 461 (Wash. App. 1990).
41 	Apostle, 512 A.2d at 954; Pacheco, 170 P.3d at 1015-16; Heller, 793 P.2d at 465.
42 	Apostle, 512 A.2d at 954.
43 	Id. at 950-51.
44 	Id. at 951.

– 26 – 	2827
the police in which he told the police that no sexual intercourse had occurred.45 As in
Gadomski’s case, the defendant then admitted at trial that parts of this story were false.46
During the defendant’s testimony at trial, the prosecutor asked him why,
after giving his statement to the police, he had not returned to the police to correct that
statement.47 Despite not preserving the issue in the superior court, the defendant
claimed on appeal that the prosecutor’s question was constitutional error.48
The Appellate Court of Connecticut described the issue as follows:
The issue is whether, after the warnings of Miranda are
given and the defendant chooses to answer questions posed
by the police, the defendant has an affirmative obligation
when his interrogation has ceased, to return to the police to
correct a false statement made during that interrogation
about the facts or circumstances of the crime.[49]
The court made clear that a prosecutor may question a defendant about
statements actually made during a custodial interview and any omission of facts from
that statement.50 But the court held that the prosecutor may not question the defendant
about their silence following Miranda warnings — i.e., their decision either not to make
a statement at the time of the interrogation or not to come forward with additional
45 	Id. at 951 & n.3.
46 	Id. at 951.
47 	Id. at 951-52.
48 	Id. at 952.
49 	Id.
50 	Id. at 953 (recognizing that it is constitutionally permissible to inquire about a
defendant’s prior inconsistent statements during a custodial interview, including their
“formalistic silence,” or silence by omission of facts).

– 27 – 	2827
information after the interrogation has ceased — because “[a] defendant may reassert
his right to remain silent at any time.”51 As the court explained:
The 	reason 	for 	the 	defendant’s 	failure 	to 	correct 	his
statement after he was no longer being questioned by the
police is unknown because it is impossible to know whether
that subsequent silence arose because he relied on his
Miranda rights, because he was guilty, because he was a liar,
or because he was instructed by his lawyer not to speak to
the police.[52]
The court thus found that a defendant’s post-interrogation silence was as “insolubly
ambiguous” as the silence in Doyle.53
Because the prosecutor’s questions about Apostle’s failure to correct his
original false statement “could be interpreted as implying guilt or as a comment on his
federal [F]ifth [A]mendment right to remain silent,” the Appellate Court of Connecticut
held that this questioning violated the federal constitution.54 The court noted that the
same rule would apply whether or not the defendant had been formally arrested at the
time Miranda warnings were given; the key was the administration of the Miranda
51 	Id. at 954; see also State v. Shashaty, 513 A.2d 172, 175 (Conn. App. 1986)
(recognizing that a defendant’s “post-statement silence” — i.e., the defendant’s failure to
correct an earlier statement made during a police interrogation — may not be used for
impeachment purposes).
52 	Apostle, 512 A.2d at 954.
53 	Id.
54 	Id. at 955; see also State v. Silano, 529 A.2d 1283, 1289-90 (Conn. 1987) (holding
that the prosecutor’s question, “Did you, Mr. Silano, ever again contact . . . Inspector
Fabrizi to tell him that that story was untrue and that you simply said that because your
brother made you?” was a violation of Doyle but harmless beyond a reasonable doubt);
State v. Brunetti, 901 A.2d 1, 29-31 (Conn. 2006) (same, regarding prosecutor’s question,
“[O]ther than your lawyer, could you please tell . . . the jury when is the first time that you
told someone in authority, like a judge, a prosecutor or a police officer, this story . . . ?”).

– 28 – 	2827
warnings.55 Because the references to the defendant’s silence were not harmless beyond
a reasonable doubt, the court reversed the defendant’s convictions.56
Similarly, in State v. DeGraff, the New Mexico Supreme Court explained
that “a prosecutor’s questions regarding a defendant’s failure to correct or amend his
initial statement to the police were improper because they invited the jury to draw a
negative inference from the defendant’s failure to make an additional statement after
his arrest.”57 The court distinguished between “permissible comment on a defendant’s
incomplete statement” and an invitation to infer guilt from a defendant’s later silence
— i.e., the defendant’s failure to make a new statement.58
Thus, in State v. Pacheco, the New Mexico Court of Appeals held that the
prosecutor impermissibly commented on the defendant’s right to silence by repeatedly
questioning him about his failure to contact the police investigator to correct the
statements he made in his initial interview with the police.59 The defendant had been
under investigation for a sexual assault, and he agreed to be interviewed by the police.
Several days after the interview, however, he obtained counsel and engaged in no
further discussions with the police. After discrepancies in his statement emerged at trial,
the prosecutor “pointedly and repeatedly” questioned him about his failure to go back
to the police and correct his prior statement.60
55 	Apostle, 512 A.2d at 953 n.5; see also Johnson v. Comm’r of Corr., 640 A.2d 1007,
1010 n.4 (Conn. App. 1994) (“The principles of Doyle v. Ohio . . . apply to silence after
Miranda warnings, regardless of whether the warnings were given before or after arrest.”).
56 	Apostle, 512 A.2d at 955-56.
57 	State v. DeGraff, 131 P.3d 61, 66 (N.M. 2006).
58 	Id.
59 	State v. Pacheco, 170 P.3d 1011, 1016 (N.M. App. 2007).
60 	Id. at 1012-13, 1015.

– 29 – 	2827
Although the issue was not preserved, the court nonetheless found that
this questioning constituted fundamental error.61 The court noted that the prosecutor
was permitted to question the defendant freely about statements he made during the
interview itself, but held that the defendant’s “silence from the time of the interview to
the 	commencement 	of 	trial 	was 	insulated 	from 	prosecutorial 	comment 	by
considerations of due process.”62 The court further stated: “The fact that [the] Defendant
had previously given a voluntary statement did not in any way diminish his right to
subsequently remain silent and not speak to the police.”63 Because the prosecutor’s
questioning (and related comment in closing argument) “unmistakably impl[ied]” that
the defendant would have contacted the police again if there were any truth to his
assertions at trial, and thus asked the jury to draw a negative inference from his silence,
the questions and comments constituted “improper commentary on [the] Defendant’s
silence.”64 The court reversed Pacheco’s convictions.65
Finally, in State v. Heller, a decision by the Washington Court of Appeals,
the defendant waived her right to silence and told the police one story (that she did not
know anything about the alleged stabbing) and then told another story at trial (that she
had acted in self-defense).66 The State was permitted to cross-examine her about her
prior inconsistent statements to police.67 The prosecutor also asked, however, whether
61 	Id. at 1014, 1016-17.
62 	Id. at 1014.
63 	Id. at 1015.
64 	Id. at 1015-16.
65 	Id. at 1017.
66 	State v. Heller, 793 P.2d 461, 464 (Wash. App. 1990).
67 	Id.

– 30 – 	2827
the defendant or her attorney ever went to the police to tell them the true story after the
initial 	interrogations.68 	Persuaded 	by 	the 	reasoning 	of 	the 	Appellate 	Court 	of
Connecticut in Apostle, the Washington court held that the questioning impermissibly
commented on Heller’s post-interrogation silence.69 The court further held that, even
though defense counsel failed to fully preserve the issue, the issue was one of manifest
error requiring reversal.70
Gadomski’s case presents analogous facts to Apostle, Pacheco, and
Heller. On the night of the incident, Gadomski was taken to the station in handcuffs and
questioned as a suspect several hours later. Prior to questioning, Gadomski was read his
Miranda rights; as part of the Miranda warnings, Gadomski was told that he had the
right to remain silent and that he could decide at any time to exercise that right and not
answer any questions or make any statements. Gadomski then voluntarily gave a
statement to the police. His hands and penis were swabbed for DNA and then he was
released.
As 	we 	explained 	above, 	any 	inconsistencies 	between 	Gadomski’s
statement during that interview (or his statements at the hotel) and his trial testimony
were a proper subject of cross-examination. But questioning Gadomski about his post-
statement silence, and implying that his testimony was less credible because he had
failed at any time prior to trial to return to the police to correct his statements and
explain that the sexual encounter was consensual, was an unconstitutional comment on
his right to silence.
In sum, we agree with the parties that the prosecutor’s questioning was an
implicit comment on Gadomski’s right to silence and therefore improper. We further
68 	Id. at 463-64.
69 	Id. at 465.
70 	Id. at 463 & n.1, 466.

– 31 – 	2827
hold that questioning about Gadomski’s failure to tell his side of the story to Officer
Daily when he turned himself in on the warrant constituted an improper comment on
his post-arrest silence, and it was therefore a constitutional error under Alaska law
regardless of how we characterize the remaining questioning. And the remaining
questioning was clearly an improper comment on Gadomski’s pre-arrest silence.
However, we are also persuaded by the reasoning of Apostle, Pacheco,
Heller, and related cases that all of the questioning about Gadomski’s failure to contact
the police to correct his earlier statements was a due process violation in light of the
fact that Gadomski was read his Miranda rights and directly advised that he had the
right to remain silent — a right that he could invoke at any time.71
Why we conclude that the prosecutor’s improper questioning of
Gadomski during cross-examination constitutes prejudicial plain
error with respect to his sexual assault conviction, but not his
physical assault conviction
Gadomski acknowledges that he did not object to the prosecutor’s
questioning in the trial court and therefore must show plain error. “Plain error is an error
71 	See State v. Apostle, 512 A.2d 947, 954 (Conn. App. 1986) (“A defendant may
reassert his right to remain silent at any time, and if he ceases to answer questions, or to
come forward with additional or correcting information after questions are no longer being
asked of him, there is a reasonable possibility that he is relying upon that right.”).
We note that, in an analogous situation, the fact that a person has given incriminating
testimony in one proceeding does not preclude the person from invoking the right to silence
in a later proceeding. For example, the Alaska Supreme Court has stated that “[i]t is
hornbook law that the waiver [of the privilege] is limited to the particular proceeding in
which the witness appears.” Graham v. Durr, 433 P.3d 1098, 1104 n.29 (Alaska 2018)
(alterations in original) (quoting State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993)); see
also McConkey v. State, 504 P.2d 823, 829-30 (Alaska 1972) (Erwin, J., concurring) (“The
almost 	universal 	rule 	is 	that 	no 	waiver 	of 	the 	privilege 	against 	compulsory 	self-
incrimination continues to a later proceeding by reason of incriminating testimony given
in an earlier one.”).

– 32 – 	2827
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.”72
The parties largely do not dispute whether the error was obvious or
affected substantial rights — i.e., that the error related to “an important right that could
affect the fundamental fairness of the proceeding.”73 The State also does not claim that
the failure to object was tactical.74 Given the strong and well-established protections for
silence under Alaska law,75 we conclude that these prongs are met.
As we noted earlier, the main point of dispute relates to whether the
improper questioning was prejudicial. Alaska courts have repeatedly emphasized the
importance of the right to silence.76 But even when an improper comment on a
defendant’s right to silence is constitutional in nature, the State may establish that the
error is harmless beyond a reasonable doubt.77
72 	Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
73 	Hess v. State, 435 P.3d 876, 880 (Alaska 2018) (explaining that the phrase “affect
substantial rights” does not mean that the error was prejudicial, but instead that “the error
pertains to an important right that could affect the fundamental fairness of the proceeding”
(quoting Adams, 261 P.3d at 772 n.72)).
74 	Moreno v. State, 341 P.3d 1134, 1145 (Alaska 2015) (“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 trigger appellate review.”).
75 	Adams, 261 P.3d at 764; see also Silvernail v. State, 777 P.2d 1169, 1175 (Alaska
App. 1989) (“Neither the Alaska Supreme Court nor the courts of other jurisdictions have
shied away from finding plain error in cases in which evidence of the defendant’s silence
has been introduced as probative evidence of guilt.”).
76 	See, e.g., Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000) (“A criminal
suspect’s right to remain silent in the face of police interrogation represents one of the most
fundamental aspects of our constitutional jurisprudence.”).
77 	See Adams, 261 P.3d at 773.

– 33 – 	2827
In Adams v. State, the Alaska Supreme Court set forth several factors for
evaluating whether a trial court’s failure to take remedial action to curb a prosecutor’s
comments on a defendant’s silence constitutes harmless error: (1) the strength of the
State’s evidence (and in particular, whether the defendant’s convictions hinged
primarily on the jury’s assessment of conflicting testimony); (2) whether the prosecutor
“directly elicited” the testimony about the defendant’s silence, (3) whether the adverse
comment was “express” as opposed to “brief and passing,” and (4) whether the
prosecutor accentuated the adverse comment by repeating it in closing argument.78
The second and third Adams factors clearly weigh in favor of finding
prejudice here. The prosecutor directly elicited the testimony about Gadomski’s silence
in an attempt to undermine his credibility. And the questions were not brief and passing,
but rather substantial and extended. During Gadomski’s testimony, the prosecutor
“pointedly and repeatedly” cross-examined him about his failure to return to the police
to correct his prior statements.79 And as we noted earlier, this questioning was spread
across eight transcript pages.
At the same time, Gadomski acknowledges that the prosecutor did not
extensively comment during closing argument on his silence.80 The fourth factor —
78 	Id. at 774-75; see also Moreno, 341 P.3d at 1147-48 (discussing Adams, 261 P.3d
at 774-75); Leffel v. State, 404 P.3d 196, 199 (Alaska App. 2017) (same).
79 	State v. Pacheco, 170 P.3d 1011, 1015 (N.M. App. 2007).
80 	Gadomski points to one comment by the prosecutor in rebuttal closing which he
argues was an implicit comment on his silence:
If you want to belie — you know, believe that he was so scared
to tell the police the truth and you want to believe this statement
that you heard today, the physical injuries that she suffered are
not corroborated by what he said happened, what he had four
years to plan to say what happened.

– 34 – 	2827
whether the prosecutor made an adverse comment during closing argument on the
defendant’s silence — therefore weighs against a finding of prejudice.
This case therefore hinges in large part on the first factor — the strength
of the evidence and whether Gadomski’s convictions hinged primarily on conflicting
witness testimony.
We find this to be a rather straightforward case with respect to Gadomski’s
conviction for second-degree (physical) assault. There was substantial corroborating
evidence for the physical assault, including photographs of B.N.’s injuries and the
testimony 	of 	medical 	professionals. 	The 	nurse 	who 	conducted 	the 	full 	SART
examination testified that B.N. had bruising all over her body, including to her head,
face, 	neck, 	shoulders, 	chest, 	and 	arms, 	and 	the 	State 	introduced 	photographs
corroborating these injuries. The nurse also testified that she performed a strangulation
assessment and determined that B.N. presented as a “severe” case of strangulation.
In his closing argument, Gadomski’s attorney conceded that Gadomski
had beaten B.N., stating, “She did get beat up. Was that justified? No. Not necessarily
at all.” Indeed, defense counsel argued that B.N. wrongly accused Gadomski of sexual
assault because Gadomski physically assaulted her. Specifically, Gadomski’s attorney
argued, “But what I am saying is that — did she have motivation to accuse
Mr. Gadomski of sexual assault? Yeah. She did. She got beaten up by him.”
Defense counsel did not concede that Gadomski had strangled B.N. —
instead arguing that the evidence did not establish that B.N. had been unable to breathe.
But we see little reason to believe that the jury would have been impacted by the
prosecutor’s questioning in finding Gadomski guilty of second-degree assault. The
evidence of B.N.’s injuries, including linear bruising and petechiae on B.N.’s neck, was
extensive, 	and 	although 	Gadomski 	testified 	that 	he 	did 	not 	strangle 	B.N., 	he
acknowledged that he grabbed her by the jaw and chin and “squeezed decent.”
Gadomski’s description of his other actions — grabbing B.N.’s hands and shoulders,

– 35 – 	2827
shaking and “smack[ing]” her, and pushing her over the bed — was also inconsistent
with the severity of B.N.’s injuries.
Weighing the Adams factors, we conclude that the State has met its burden
of proving that the prosecutor’s improper questioning of Gadomski was harmless
beyond a reasonable doubt as to his second-degree assault conviction.
But the analysis is more difficult with respect to the first-degree sexual
assault conviction. This count posed evidentiary issues for the State. Most notably, B.N.
could not recall or was unable to testify at trial as to whether she had sex with Gadomski
on the day in question. Accordingly, the State relied on the statements B.N. previously
made to the officers and medical professionals. The State acknowledged in closing
argument the importance of B.N.’s prior statements to its case, explaining that the jury
instruction regarding the use of prior inconsistent statements (addressed in the next
section of this opinion) was a “very important instruction.”
The determination of Gadomski’s guilt on the first-degree sexual assault
count therefore relied heavily on the jury’s assessment of the relative credibility of
Gadomski’s testimony versus B.N.’s prior statements. At trial, there was no dispute that
Gadomski and B.N. were initially engaging in consensual sexual intercourse. When the
police interviewed B.N., she stated that she was initially having consensual rough sex
with Gadomski but that it turned nonconsensual when Gadomski got too rough, and that
he then physically and sexually assaulted her. In contrast, Gadomski testified that he
and B.N. had engaged in consensual sex on the day in question, and that the conduct
forming the basis for the physical assault was separate from the sexual encounter and
was instigated by B.N.
Conviction on the sexual assault count thus depended on whether the
sexual encounter was consensual the entire time, as Gadomski claimed, or whether B.N.
withdrew her consent, as she told the police, and when during this encounter the
physical assault occurred. In closing argument, defense counsel noted that B.N. told
Detective Cottle that at some point after she and Gadomski had consensual sex, she fell

– 36 – 	2827
asleep or passed out and woke up to Gadomski “choking” her, and counsel suggested
that this supported the notion that there was a break in time between the sexual
encounter and the physical assault.
We acknowledge that Gadomski repeatedly lied to the police and that the
State validly relied on those lies to demonstrate his consciousness of guilt. But the same
was true in Apostle, Pacheco, and Heller, which all involved similar impeachment, and
all of these cases resulted in reversals, notwithstanding the defendant’s prior falsehoods.
Moreover, the harm from the prosecutor’s implicit commentary on
Gadomski’s silence was exacerbated by other improper questioning identified by
Gadomski.
At 	multiple 	points 	during 	her 	cross-examination 	of 	Gadomski, 	the
prosecutor asked Gadomski questions about evidence that would corroborate his
testimony. First, the prosecutor questioned Gadomski about whether there was evidence
that supported his assertion that he had contacted the police a few days after his
interview to confirm that he could leave the state. In particular, the prosecutor
repeatedly asked Gadomski whether he had subpoenaed his mother’s phone records
(because he claimed to have used her phone) and whether he had seen a report from
Detective Cottle about that conversation in discovery.81 When Gadomski responded
that he had not seen such a report in discovery and that he “didn’t think [he] needed to”
subpoena his mother’s phone records, the prosecutor implied that the jury should doubt
Gadomski’s testimony because all they had was his “word.”
The prosecutor followed a similar line of inquiry when questioning
Gadomski about his assertion that a police officer had told him in the hotel lobby on the
night of the incident that B.N. had accused him of sexual assault. (The prosecutor was
81 	During the State’s rebuttal case, Detective Thomas testified that he had not found
any audio recording or report regarding this conversation in Detective Cottle’s reports on
the case, though Detective Thomas acknowledged that he had not searched the police
department’s records to see if such a recording existed.

– 37 – 	2827
challenging this assertion because Gadomski relied on it to explain that his false
statements to the police were born of fear.) The prosecutor asked Gadomski whether he
had reviewed the discovery and, if so, whether he had heard any audio recording of this
alleged discussion. Gadomski stated that he had not, although he also said that he did
not personally have much discovery and was seeing some things for the first time in
court. When Gadomski continued to insist that one of the officers had told him about
the sexual assault accusation, the prosecutor again asked, “So the jury should take your
word for that?” Gadomski said that they should because he was testifying under oath.
Gadomski argues on appeal that this line of questioning improperly shifted
the burden of proof to the defense. The State concedes that this line of questioning was
improper. The State maintains, however, that these questions did not amount to
constitutional error and instead were improper only because the subject matter — i.e.,
the decision to subpoena records or witnesses and the contents of discovery — falls
within the responsibility of defense counsel and did not relate to facts of which
Gadomski had personal knowledge and thus had little probative value.
We agree with the parties that this questioning was improper. Defense
counsel, not Gadomski, was responsible for subpoenaing witnesses or records and for
reviewing the contents of discovery. A criminal defendant is generally not expected to
have personal knowledge of these matters. It was therefore improper for the prosecutor
to imply that Gadomski’s failure to personally subpoena records or identify anything in
discovery that supported his testimony meant that his testimony was less credible.82
Moreover, the questioning perpetuated the repeated implication that
Gadomski had an affirmative obligation to present evidence — either by providing an
82 	Cf. Leffel, 404 P.3d at 201 (“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.”).

– 38 – 	2827
additional or corrected statement to the police or by subpoenaing records.83 This
implication was improper.84
83 	The Oregon Court of Appeals has recognized the “thin line” between permissible
and impermissible comment on evidence that was or was not presented by the defense:
Remarks concerning evidence that a defendant has or has not
presented can sometimes fall on either side of a thin line. On
one side, it is permissible for a prosecutor to argue that a
defendant’s evidence is unconvincing, and that the jury should
not be persuaded by it. On the other side of that thin line, it is
impermissible for a prosecutor to argue that a defendant was
required to or had a burden to present corroborating evidence,
evidence that contradicts the state’s evidence, or, indeed, any
evidence at all.
State v. Starr, 564 P.3d 933, 937 (Or. App. 2025) (quoting State v. Smith, 554 P.3d 817,
819 (Or. App. 2024)).
84 	Gadomski also challenges the prosecutor’s questioning of him about B.N.’s
potential motive for lying. He argues that this questioning was improper under our decision
in Kim v. State, 390 P.3d 1207 (Alaska App. 2017).
In Kim, we held that it is generally improper to question a witness as to the veracity
of another witness, particularly when the questions are directed at the defendant or defense
witnesses and the jury need not conclude that a witness is lying in order to credit the
defendant’s account. We noted that such questions generally seek information beyond the
competency of the witness and are generally intended only to make the defendant look bad
by forcing the defendant to accuse another of lying. Id. at 1210-12.
We 	agree 	that 	the 	prosecutor’s 	questioning 	resembles 	the 	questioning 	we
disapproved in Kim because it is premised on the implicit assumption that B.N. was lying,
when there were other possible explanations for her statements to the police. The
questioning also raised some of the additional concerns we flagged in Kim — i.e., it had
little probative value as it was strictly speculative, and it was also argumentative. See id.
At the same time, the prosecutor did not directly ask Gadomski whether B.N. had
lied, and in response to the prosecutor’s question, Gadomski himself offered an alternative
explanation for the inconsistency between their accounting of events — namely, that B.N.,
like him, “says a lot of stupid stuff when she drinks.” And defense counsel also argued in
closing that B.N. had a motive to lie about the sexual assault because “[s]he got beat up
by [Gadomski].” We conclude that this questioning alone did not constitute plain error.

– 39 – 	2827
Finally, while reversible error in these circumstances often involves an
improper line of questioning compounded by an improper reference in closing
argument,85 the Washington Court of Appeals found in State v. Heller that the
prosecutor’s questioning alone, without a reference to the defendant’s silence in closing
argument, was not harmless.86 In Heller, the prosecutor extensively questioned the
defendant about whether she or her attorney ever corrected her initial false statement to
the police, in which she denied that anything had happened, to instead report that she
had acted in self-defense — the testimony she ultimately gave at trial.87 Although the
issue was not fully preserved, the court found manifest error that was not harmless given
that the defendant’s credibility was at issue, and the court reversed Heller’s robbery
conviction.88 The court noted that the cross-examination of the defendant regarding her
failure to go to the police or to the prosecutor to correct her story covered “six full pages
of the record.”89
We 	acknowledge 	that Gadomski’s 	case was not simply 	a 	case 	of
competing testimony. The State argues that it presented corroborating evidence
supporting B.N.’s account of the sexual assault, including evidence of injuries
consistent with her description of the encounter as well as evidence of her demeanor
and the circumstances surrounding her first report of the sexual assault to the hotel front
desk clerk. We agree. Gadomski’s lies to the police also undermined his credibility. But
there were also some ambiguities in B.N.’s earlier statements on which Gadomski’s
attorney relied in closing to argue that the consensual sexual encounter was separate in
85 	See Leffel, 404 P.3d at 199.
86 	State v. Heller, 793 P.2d 461, 465-66 (Wash App. 1990).
87 	Id. at 463-64.
88 	Id. at 463 n.1, 466.
89 	Id. at 465 n.4.

– 40 – 	2827
time from the physical assault. And at trial, B.N. was unable to remember having sex
with Gadomski and thus was unable to respond to questions about the sexual encounter.
We find this to be a close and difficult case. Given the strength of the
State’s evidence, the first factor likely weighs slightly in the State’s favor. But
ultimately, in light of the constitutional implications of the questioning regarding
Gadomski’s silence, the State must meet the burden of showing that the improper
questioning was harmless beyond a reasonable doubt — that the constitutional error
was “so insignificant in the setting of [the] . . . case” that it did not have an effect on the
jury.90 This is a high burden.91
Given the extensiveness of the prosecutor’s questioning, which was not
“brief and passing” and which directly elicited evidence related to Gadomski’s silence,
we conclude that the State has not met this burden as to the sexual assault conviction.
Stated differently, we conclude that the questioning regarding Gadomski’s silence —
together with the prosecutor’s repeated questioning about why Gadomski had not
produced certain records to corroborate his testimony — was prejudicial and constituted
plain error as to Gadomski’s sexual assault conviction.92 We therefore reverse that
conviction.
90 	LaVigne v. State, 812 P.2d 217, 220 (Alaska 1991) (citing Chapman v. California,
386 U.S. 18, 22 (1967)).
91 	See Adams v. State, 261 P.3d 758, 771 (Alaska 2011) (discussing the different
prejudice standards applicable to non-constitutional and constitutional errors); Jones-
Nelson v. State, 512 P.3d 665, 676 (Alaska 2022) (discussing the “harmless beyond a
reasonable doubt” standard of prejudice applicable to constitutional errors); see also Frye
v. Broomfield, 115 F.4th 1155, 1165 (9th Cir. 2024) (noting that the “beyond a reasonable
doubt” standard is “an extremely heavy burden”).
92 	See Crawford v. State, 337 P.3d 4, 34 (Alaska App. 2014) (“[A] claim of cumulative
error is really a claim of cumulative prejudice: this doctrine applies in cases where the total
impact of the errors at trial ‘is so prejudicial that the defendant was deprived of a fair trial,
even if each individual error was harmless.’” (quoting Sawyer v. State, 244 P.3d 1130,

– 41 – 	2827
Gadomski argues that there was insufficient evidence to support his
conviction for first-degree sexual assault and that he is therefore entitled to a judgment
of acquittal on this count, and not simply a new trial.93 We conclude, however, that the
evidence was legally sufficient to support the first-degree sexual assault conviction, and
the State is therefore entitled to retry Gadomski on this count.94
Why we reject Gadomski’s challenges to the jury instruction on witnesses’
prior inconsistent statements
Because we conclude that the errors in the cross-examination of Gadomski
during trial were harmless beyond a reasonable doubt as to his second-degree assault
conviction, we must address his remaining claim: that the court erred in giving the
State’s proposed non-pattern jury instruction on the use of witnesses’ prior inconsistent
and consistent statements and that the content of this instruction was incomplete or
erroneous.
1137-38 (Alaska App. 2011))); see also Moreno v. State, 341 P.3d 1134, 1139 (Alaska
2015) (“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.’” (quoting Adams, 261 P.3d
at 764 (alteration in original))).
93 	See Burks v. United States, 437 U.S. 1, 11 (1978) (recognizing that the Double
Jeopardy Clause prohibits a second trial when the government presented insufficient
evidence to support a conviction at the first trial).
94 	When we review the sufficiency of the evidence to support a conviction, we view
the evidence in the light most favorable to the verdict. Johnson v. State, 188 P.3d 700, 702
(Alaska App. 2008) (stating that we “assess the sufficiency of the evidence . . . by first
resolving all conflicts and doubts presented by the evidence in favor of the jury’s verdict,
and then asking whether, viewing the evidence in that light, a reasonable fact-finder could
have concluded that the State’s case was proved beyond a reasonable doubt”). While we
are unable to say that the improper cross-examination was harmless beyond a reasonable
doubt when considering its possible effect on the jury as to the sexual assault conviction,
we are confident in saying that, viewed in the light most favorable to the jury’s verdict, the
evidence was sufficient to support this conviction.

– 42 – 	2827
In the superior court, the State argued that this instruction was necessary
because the State’s case relied heavily on B.N.’s prior inconsistent statements, and it
was important to instruct the jury on how this evidence could be used. Gadomski
objected to the instruction, arguing that (1) the instruction was unnecessary, (2) it
“skew[ed] more towards being favorable to [the State’s] arguments,” and (3) it directed
the jury to “focus on these prior statements rather than looking at the entire evidence
that’s come in.” The superior court agreed with the State and gave the proposed
instruction.95
On appeal, Gadomski argues that the instruction was unnecessary and an
inaccurate statement of the law that unduly favored the State.96
95 	The instruction read as follows:
The 	party 	offering 	a 	witness’ 	prior, 	out 	of 	court
statement may introduce that prior statement by either playing
a recording of the statement, if available, or by having a
witness recite the statement from memory or a transcript. All
three means of introducing prior statements may be utilized in
this trial.
Prior statements of witnesses that are inconsistent with
their trial testimony may be used as substantive evidence
regarding the subject matter of the statement. In other words,
if you choose to believe the substance of the witness’ prior
statement and [sic] you may use that evidence as proof of an
element of the crime charged.
Prior statements of witnesses that are consistent with
their trial testimony may be used in your deliberations only to
the 	extent 	that 	the 	prior 	statement 	may 	assist 	you 	in
determining the credibility of the witness’ trial testimony.
96 	See Jones-Nelson, 512 P.3d at 671 (recognizing that “as long as the instructions
actually given . . . adequately set forth the applicable law, trial courts should refrain from
giving additional instructions drafted by parties unless [the instruction] would substantially
aid the jury in arriving at a just verdict” (quoting Young v. State, 374 P.3d 395, 428 (Alaska
2018))).

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As a general matter, the decision to give a particular jury instruction is
reviewed for an abuse of discretion, assuming the instruction is otherwise a proper
statement of the law.97 Here, the court did not abuse its discretion in choosing to give a
specific instruction on prior inconsistent statements, though it is not clear that such an
instruction was necessary. As a general matter, absent a limiting instruction, jurors will
naturally proceed on the assumption that all evidence, including prior inconsistent
statements, can be used as substantive evidence.98 In fact, this is the reason the supreme
court authorized the admission of prior inconsistent statements for substantive purposes
in Beavers v. State: the court stated that “it is likely that in many cases juries find it
impossible to understand and act upon limiting instructions requiring them to consider
evidence of prior inconsistent statements only for impeachment purposes and not as
substantive evidence.”99
The larger question here is whether the instruction was legally complete.
The superior court appeared to give the instruction at least in part because it believed
that we had previously approved it in Yatchmenoff v. State.100
But the legal adequacy of the instruction was not squarely before this
Court in Yatchmenoff. And the instruction here was incomplete in several ways.101
97 	See Young, 374 P.3d at 405.
98 	See Beavers v. State, 492 P.2d 88, 94 (Alaska 1971).
99 	Id. (emphasis added).
100 Yatchmenoff 	v. 	State, 	2003 	WL 	21350242 	(Alaska 	App. 	June 	11, 	2003)
(unpublished).
101 See City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004) (“[W]e apply
our independent judgment to determine whether the challenged or refused instruction states
the law correctly.”). The State argues that Gadomski failed to preserve the legal challenges
he now raises to the language of the jury instruction. We do not need to definitively resolve
this argument given our resolution of this claim.

– 44 – 	2827
Gadomski notes that the instruction advised the jury that it could use prior
inconsistent statements “as proof of an element of the crime charged,” but failed to
instruct the jury that it could also rely on prior inconsistent statements as evidence that
negated guilt. The State acknowledges that there might be some cases where the
omission of this language might make a difference, but argues that there was no harm
here since Gadomski did not rely on any prior inconsistent statements as substantive
evidence that negated his guilt.
Gadomski also notes that, while the instruction informed the jury that prior
inconsistent statements “may be used as substantive evidence,” the instruction did not
expressly inform the jury that it could also use these statements to evaluate a witness’s
credibility.102 We agree that the instruction could have been clearer in this regard.
Ultimately, however, we conclude that any errors in the instruction were
harmless as to Gadomski’s conviction for second-degree assault — the only conviction
that remains in light of our order granting a new trial on the first-degree sexual assault
charge. As we noted earlier, there was substantial corroborating evidence of the
physical assault, including photographs and testimony about B.N.’s extensive bruising
and signs of strangulation.
Moreover, “when an appellate court reviews claims of error involving jury
instructions, the question is not whether the challenged jury instruction might contain
102 See Alaska R. Evid. 613, 801(d)(1). Gadomski also argues that the instruction
“failed to guide the jury’s evaluation of this evidence” by advising the jury that it should
consider prior inconsistent statements in the same manner that it evaluates other evidence.
As part of this claim, Gadomski notes in passing (and for the first time on appeal) that the
instruction did not inform the jury that corroboration is required before it can convict based
entirely on prior inconsistent statements. See Brower v. State, 728 P.2d 645, 647-48
(Alaska App. 1986); Nunn v. State, 845 P.2d 435, 441 (Alaska 1993). The State responds
that in some cases, the failure to instruct the jury on the need for corroboration could qualify
as plain error. But the State contends that the lack of an instruction on corroboration could
not have affected the jury in this case because there was clearly corroborating evidence of
the kind contemplated by Brower and Nunn. We agree.

– 45 – 	2827
language that could be misinterpreted. Rather, the question is whether the jury
instructions, taken as a whole, properly informed the jury of the applicable law.”103
Here, the court separately instructed the jurors that, “[i]n deciding whether to believe a
witness or how much weight to give a witness’s testimony,” the jurors could consider
“anything that reasonably helps [them] to judge the testimony,” including “the
consistency of the witness’s testimony and whether it is supported or contradicted by
the other evidence.” Thus, other jury instructions served to clarify those portions of the
instruction that may have been incomplete.
We remind judges, however, of the danger of lifting jury instructions from
appellate decisions where the adequacy of the instruction was not otherwise at issue.104
Conclusion
We REVERSE Gadomski’s first-degree sexual assault conviction and
remand this case for a new trial on that count. We otherwise AFFIRM the judgment of
the superior court, including Gadomski’s conviction for second-degree assault.
103 Kangas v. State, 463 P.3d 189, 194 (Alaska App. 2020).
104 See Jones-Nelson v. State, 446 P.3d 797, 805 (Alaska App. 2019) (Allard, J.,
concurring) (cautioning courts about “the danger of lifting language from appellate court
decisions and then asking jurors to interpret and apply this language without the benefit of
its original context” and instructing judges and litigants to “analyze the proposed
instruction to make sure that it properly conveys the law”), rev’d on other grounds,
512 P.3d 665 (Alaska 2022).

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Judge TERRELL, concurring.
The decision in this case is based on the legal principle that a prosecutor’s
comment on the defendant’s exercise of their Fifth Amendment right to remain silent is
itself a violation of the Fifth Amendment. This principle traces back to a 1965 Warren
Court decision, Griffin v. California, where the Court held that comment on the exercise
of the right to remain silent “is a penalty imposed by courts for exercising a
constitutional privilege” and stated that “[i]t cuts down on the privilege by making its
assertion costly.”1
This decision has not been without its critics and has occasionally been
challenged over the years. In particular, I agree with Justice Scalia’s observations on
behalf of a four-justice dissent in Mitchell v. United States, where he stated:
[T]he text and history of the Fifth Amendment give no
indication that there is a federal constitutional prohibition on
the use of the defendant’s silence as demeanor evidence. Our
hardy forebears, who thought of compulsion in terms of the
rack and oaths forced by the power of law, would not have
viewed 	the 	drawing 	of 	a 	commonsense 	inference 	as
equivalent pressure. And it is implausible that the Americans
of 1791, who were subject to adverse inferences for failing
to give unsworn testimony, would have viewed an adverse
inference for failing to give sworn testimony as a violation
of the Fifth Amendment.[2]
Nonetheless, the critics of Griffin have not carried the day, and it remains
the case that Griffin is good law as a matter of federal constitutional law. Also, as the
majority recognizes, the Alaska Supreme Court has adopted this principle as a matter
1 	Griffin v. California, 380 U.S. 609, 614 (1965).
2 	Mitchell v. United States, 526 U.S. 314, 335 (1999) (Scalia, J., dissenting, joined by
Rehnquist, C.J., and O’Connor and Thomas, JJ.); accord Salinas v. Texas, 570 U.S. 178,
191-93 (2013) (Thomas, J., concurring, joined by Scalia, J.).

– 47 – 	2827
of Alaska constitutional law.3 Thus, as an intermediate appellate court judge, I am
bound by this law and must follow it, but I note my agreement with the above-
mentioned criticisms of Griffin, lest my agreement with the majority decision be
mistaken as enthusiasm for applying case law grounded on Griffin. I concur fully with
the majority opinion because the prosecutor’s failure to adhere to this law as manifested
in her cross-examination of Gadomski, combined with the other problems noted in the
decision, violated Gadomski’s constitutional rights, and those violations were not
harmless beyond a reasonable doubt as to Gadomski’s sexual assault conviction. This
is true regardless of whether the failures were inadvertent, knowing, or intentional.
Prosecutors, like lower court judges, must take the law as they find it, and
are subject to binding precedent from the United States Supreme Court and Alaska’s
appellate courts, and risk reversal of their hard-fought convictions when they push
against the boundaries of those precedents.
3 	See Adams v. State, 261 P.3d 758, 764-65 (Alaska 2011) (discussing the history of
this area of Alaska law).