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Brown v. State (6/2/2017) ap-2557

Brown v. State (6/2/2017) ap-2557

                                                      NOTICE
  

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RAYMOND SCOTT BROWN,  

                                                                      Court of Appeals No. A-12289  

                                     Appellant,                     Trial Court No. 3KN-12-2038 CR  



                            v.  

                                                                                 O P I N I O N  

STATE OF ALASKA,  



                                     Appellee.                           No. 2557 - June 2, 2017  



                  Appeal from the Superior Court, Third Judicial District, Kenai,  

                                     

                   Carl Bauman, Judge.  



                  Appearances:  Randall S. Cavanaugh, Kalamarides & Lambert,  

                                       

                  Anchorage, for the Appellant.  Terisia K. Chleborad, Assistant  

                                                             

                  Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                         

                  Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                         



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                         

                                                *  

                   Superior Court Judge.   



                  Judge SUDDOCK.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                        A jury convicted Raymond Scott Brown of four counts of second-degree                     

                                                                                                                                                   1  On  

theft based on four separate incidents of shoplifting from the Kenai Home Depot.                                                                       



appeal, Brown argues that the trial judge erred in denying his motion to dismiss the  

                                                                                                                                                       



indictment against him based on alleged grand juror bias.  Brown also argues that the  

                                                                                                                                                       



prosecutor's cross-examination of him was improper and that the prosecutor engaged in  

                                                                                                                                                         



improper argument during the State's summation.  For the reasons explained here, we  

                                                                                                           



reject Brown's grand jury argument and his improper summation argument.  We agree  

                                                                                                                                                   



with Brown that the prosecutor's cross-examination was improper, but we conclude that  

                                                                                                                                                      



the error was harmless.  

                                             



            Background facts  

                                    



                        Sometime during the month of July 2012, a Kenai Home Depot employee  

                                                                                                                                           



observed a man with a dilapidated red pickup truck hitch a log splitter to the pickup and  

                                                                                                                                                      



drive away without paying for it.  Later that same month, a different store employee  

                                                                                                                                           



photographed a red pickup truck bearing license plate number FAE585 that was loaded  

                                                                                                                                                 



with a generator that had not been purchased. The employee who had witnessed the first  

                                                                                                                                                      



theft identified the red pickup in the photograph as the one that he had observed earlier.  

                                                                                                                                                              



According to DMV records, the pickup was registered to Brown.  

                                                                                                                       



                        On September 5, 2012, while Kenai resident Kelly Crane was stopped in  

                                                                                                          



his vehicle near  the Home  Depot,  he observed  a man wearing  work clothes and  a  

                                                                                                                                                          



distinctive wide-brimmed hat standing on the Home Depot side of a locked chain link  

                                                                                                                          



gate at the rear of the store.  Crane saw the man push a contractor garbage bag through  

                                                                                                                                              



a gap in the gate.  The man then departed, and Crane approached and examined the bag;  

                                                                                                                                                     



he  found  that  it  contained  brand  new  hand  tools  and  other  items.                                                      As  Crane  was  

                                                                                                                                                     



      1     Former AS 11.46.130(a)(1) (2012).  



                                                                          - 2 -                                                                     2557
  


----------------------- Page 3-----------------------

examining the bag, a man who Crane believed to be the person he saw at the gate, drove  

                                                                                                                            



by in a red pickup truck without a tailgate and peered at Crane before driving away.  

                                                                                                                                 



                    According  to  Crane's  testimony,  when  he  then  parked  in  the  store's  

                                                                                                                         



contractor parking lot he observed the same red pickup, and he jotted down its license  

                                        



plate number - FAE585, Brown's license plate number.  As Crane returned the stolen  

                                                                                                                           



goods to the store management, he spotted a man he believed to be the same person he  

                                                                                                                                 



had observed earlier.  The man wore the same wide-brimmed hat, had the same facial  

                                                                                                                            



hair, and wore work clothes.  The man exited the store and drove away in the red pickup  

                                                                                                                          



without the tailgate.  

                                



                     Brown was indicted for the two thefts in July, and for subsequent thefts in  

                                                                                                                                 



 September and October of 2012, from the same Home Depot store.  

                                                                                                        



                    At trial, Brown testified and denied the charges.  As to the theft observed  

                                                                                                                      



by Crane, Brown testified that he observed a young man with blond hair pushing a  

                                                                                                                                  



contractor garbage bag through the Home Depot gate, and that this young man departed  

                                                                                                                       



in a blue car.  Brown was convicted of all four of these charges by the jury.  This appeal  

                                                                                                                          



followed.  



          Brown's attack on the grand jury indictment  

                                                               



                    At the start of the grand jury proceeding, the prosecutor asked the grand  

                                                                                                                           



jurors if any of them knew anyone involved in Brown's case.  One of the grand jurors  

                                                                                                 



stated that she worked at the Kenai Home Depot, and that she knew "all these people."  

                                                                                                                                     



Another grand juror then called out, "Guilty," followed by some laughter.  The first  

                                                                                                                              



grand juror then explained:  "I already know all about this incident.   I know what's  

                                                                                                                          



happened."  The prosecutor excused the first grand juror from the proceeding.  

                                                                                                                         



                    After hearing the evidence in the case, the sixteen remaining members of  

                                                                                      



the grand jury indicted Brown on the four theft charges.  

                                                                                       



                                                              -  3 -                                                         2557
  


----------------------- Page 4-----------------------

                                                   Prior to trial, Brown moved to dismiss the indictment.                                                                                                                                                                   In his motion,               



 Brown argued that the second grand juror's "guilty" comment tainted the entire grand   



jury panel, and that the prosecutor exacerbated the second grand juror's misconduct by                                                                                                                                                                                                                                       



 failing to admonish the grand juror or provide a curative instruction.                                                                                                                                                                                              



                                                   The superior court denied Brown's motion. In his written order, the judge                                                                                                                                                                                      



 found  that   Brown   had,   "[a]t   most   ...   demonstrated   possible   bias   or,   more   likely,   a  



 misguided attempt at humor by one member of the grand jury."                                                                                                                                                                                 Even assuming that the                                                        



 second grand juror was biased, the judge concluded that Brown had offered no reason                                                                                                                                                                                



 "[to] impute that [grand juror's] possible bias to the rest of the grand jurors."                                                                                                                                                                                                                   



                                                   Brown now challenges this ruling on appeal, arguing that the second grand                                                                                                                                                                                      



juror's comment demonstrated that the grand juror had made up his mind about Brown's                                                                                                                                                                                                                   



 guilt   prior   to   hearing   the   evidence.     Brown   further   argues   that   this   problem   was  



 "compounded by the inaction of the prosecutor."                                                                                                                                                  Based on these assertions, Brown                                                                          



 contends that the superior court should have dismissed the indictment.                                                                                                                                                        



                                                   To prevail on this claim, Brown must demonstrate both that the second                                                                                                                                                                                    

 grand juror was biased, and that this bias affected the other grand jurors.                                                                                                                                                                                              2  

                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                But as we have  



                                                                                                                                                                                                                                                                                                 

 explained, "[i]n the absence of particularized circumstances establishing the likelihood  



                                                                                                                                                                                                                                                                                                                            

 of a significant influence on the grand jury as a whole, [there is] no legitimate basis for  



                                                                                                                                                                                   3  

                                                                                                                                                     

 imputing the bias of one grand juror to others." 



                                                                                                                                                                                                                                                                                                                        

                                                   Here, we agree with Brown that the second grand juror's comment was  



                                                                                                                                                                                                                                                                                                              

 improper - and that a prosecutorial response would have been appropriate. But Brown  



                                                                                                                                                                                                                                                                                                                            

 has not pointed to any reason for concluding that this grand juror's comment affected the  



             2            Hohman v. State, 669 P.2d 1316, 1319 (Alaska App. 1983).  



              3           Patterson v. State, 747 P.2d 535, 537 (Alaska App. 1987).  



                                                                                                                                                           - 4 -                                                                                                                                                       2557
  


----------------------- Page 5-----------------------

rest of the panel.                                                      And upon review of the grand jury transcript, we perceive no basis for                                                                                                                                                                                                                      



imputing the single grand juror's comment to the rest of the jury panel.                                                                                                                                                                                                                                         



                                                         We   accordingly  uphold   the   trial   court's   denial   of   Brown's   motion   to  



dismiss the indictment.                                                                              



                             The prosecutor's cross-examination of Brown was improper but harmless                                                                                                                                                                                                           



                                                         During the prosecutor's cross-examination of Brown, the prosecutor noted                                                                                                                                                                                                                        



that Crane (who had testified earlier for the State) had identified Brown as the man who                                                                                                                                                                                                                                                                      



pushed the bag containing stolen tools through a gap in the chain link gate.                                                                                                                                                                                                                                                                       Then,  



without objection, the prosecutor asked Brown whether he was accusing Crane of lying.                                                                                                                                                                                                                                                                                                



                                                         Brown initially replied that he was not sure what the prosecutor meant by                                                                                                                                                                                                                                    



"lying."     Brown   suggested   that  Crane   might   have   seen   someone   else,   and   that   he  



mistakenly identified this other person as Brown. Then Brown added, "If you are saying                                                                                                                                                                                                                                                               



 [that Crane is] lying because he [said he] saw me, yes, he's lying."                                                                                                                                                                                                                                      The prosecutor   



responded, "Both of you can't be right.                                                                                                                                   One of you has to be lying."                                                                                                  



                                                         On appeal, Brown argues that these questions constituted plain error.                                                                                                                                                                                                                                 We  



agree with Brown that the questions were improper, but we reject his claim of plain error                                                                                                                                                                                                                                                                   



because we conclude that, given the evidence in Brown's case, the questions were                                                                                                                                                                                                                                                                          



harmless.   



                                                         We   recently   held   in   Kim   v.   State   that   this   type   of   questioning   by   a  



                                                                                                                                                                                           4  

prosecutor should rarely, if ever, be allowed.                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                   The facts of the instant case illustrate why  



                                                                                                                                                                                                                                                                                                                                          

the implicit assumption underlying such questions -that as a matter of logical necessity  



                                                                                                                                                                                       

one witness must be lying - will often be unfounded.  



              4             Kim v. State, ___ P.3d _____, Op. No. 2542, 2017 WL 727128 (Alaska App. Feb. 24,  



2017).  



                                                                                                                                                                               -  5 -                                                                                                                                                                         2557
  


----------------------- Page 6-----------------------

                                                 During Crane's testimony, he acknowledged that he "didn't get a real good                                                                                                                                                                                



look at [the man's] face at the [gate], because he kind of had [his wide-brimmed hat]                                                                                                                                                                                                                        



down."   Moreover, Crane testified that he was 120 to 150 feet away when he observed                                                                                                                                                                                                       



the incident at the gate.                                                            When the red pickup truck drove by Crane minutes later, Crane                                                                                                                                                    



described his view of the driver as "a quick glimpse."                                                                                                                                                        And when Crane thought he                                                                            



spotted  Brown   inside   the   Home   Depot,   he   was   only   confident   of   his   in-store  



identification because Brown left in the red pickup truck.                                                                                                                                                         



                                                 In light of this testimony, there is at least some possibility that Crane's                                                                                                                                                                   



identification of Brown was mistaken.                                                                                                          Crane's in-store identification of Brown could                                                                                                          



have derived mainly from his view of the man who had suspiciously driven by Crane in                                                                                                                                                                                                                                 



a red truck, and not from Crane's more distant view of the man at the gate.                                                                                                                                                                                                                  Crane's  



testimony was thus consistent with the possibility suggested by Brown - that Crane had                                                                                                                                                                                                                         



made a mistaken identification.                                                                                     Under these circumstances, the assumption underlying                                                                                                            



the prosecutor's questioning of Brown - that one or the other witness must inevitably                                                                                                                                                                                                   



be lying - was fallacious.                                                                          



                                                 Brown's   attorney   did   not   object   to   the   prosecutor's   questions,   and   so  



                                                                                                              5  

Brown must show plain error.                                                                                                                                                                                                                                                                    

                                                                                                                    An error is plain when it "was so obvious that it should  



                                                                                                                                                                                                  6  

                                                                                                                                                                 

have  been  noticed  by  the  trial  court  sua  sponte."                                                                                                                                                                                                                                                      

                                                                                                                                                                                                             Because  the  propriety  of  the  



                                                                                                                                                                                                                                                                                                                      

prosecutor's cross-examination in this case was a matter of first impression in Alaska at  



                                                                                                                                                                                                                                                                                                              

the time of Brown's trial, the error might not have been obvious to the trial judge.  



                                                                                                                                                                                                                                                                                                                 

                                                 Under a plain error analysis, a non-constitutional error is prejudicial if the  



                                                                                                                                                                                                                                                                                                                 

defendant proves that there is a reasonable probability that it affected the outcome of the  



            5           See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).  



            6           Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008) (quoting Carman v. State, 658  



P.3d 131, 137 (Alaska App. 1983)).  



                                                                                                                                                      -  6 -                                                                                                                                                 2557
  


----------------------- Page 7-----------------------

                                                                            7  

proceeding."   Given the strength of the State's case, the prosecutor's improper line of                                                                                                                                                                                                                                                                                                                                                                                                                        



 questioning did not affect the outcome of the proceeding.                                                                                                                                                                                                                                                                                         The evidence at trial linking                                                                                                  



thefts from Home Depot of a log splitter and a generator to a particular red pickup was                                                                                                                                                                                                                                                                                                                                                                                                              



 strong, and a photograph of the truck's license plate linked that truck to Brown.                                                                                                                                                                                                                                                                                                                                                                                                   Crane  



testified that he saw a man with a distinctive wide-brimmed hat commit a theft from                                                                                                                                                                                                                                                                                                                                                                                                           



Home Depot, and that moments later he saw that man, wearing the distinctive hat, drive                                                                                                                                                                                                                                                                                                                                                                                                        



 slowly   by   the   scene   of   the   crime   in   a   red   pickup.     Brown   testified   that   he   was  



 coincidentally present near the scene of the crime as it occurred - but only as an                                                                                                                                                                                                                                                                                                                                                                                                                         



 observer. And to explain the possibility that Crane might have seen him drive by, Brown                                                                                                                                                                                                                                                                                                                                                                                             



testified that he habitually drove around the Home Depot and looked through the fence                                                                                                                                                                                                                                                                                                                                                                                                       



to spot goods that the store intended to discard.                                                                                                                                                                                      



                                                                               This evidence established a compelling circumstantial case against Brown.                                                                                                                                                                                                                                                                                                                         



 Given the strength of the State's case, the prosecutor's brief suggestion during cross-                                                                                                                                                                                                                                                                                                                                                                                                



 examination that Brown might be lying had no appreciable effect on the verdict, and so                                                                                                                                                                                                                                                                                                                                                                                                                        



was not plain error.                                                                                                 



                                       Brown's attack on the prosecutor's summation                                                                                                                                                                       



                                                                               Brown also argues that the prosecutor committed misconduct when he                                                                                                                                                                                                                                                                                                                                                           



 argued during his summation that Brown's testimony on the stand was knowingly false.                                                                                                                                                                                                                                                                                                                                                                                                                                           



Because Brown did not object to this argument, he must demonstrate plain error.                                                                                                                                                                                                                                                                                                                                                                                                               



                                                                               Here is the challenged portion of the prosecutor's summation:                                                                                                                                                                                                                                         



                                                                               I submit to you that Mr. Brown lied when he testified about                                                                                    

                                                                               the events on September 5, lied about the events of ... seeing                                                                                                                                                                                                                                                            

                                                                               someone [else] stuff the bag through the garden gate center.                                                                                                                                                                                                                                                                                                      

                                                                                [It] didn't happen the way that he said ... [He] lied about that.                                                                                                                                                                                                                                                                                                



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



                                                                                                                                                                                                                                                 -  7 -                                                                                                                                                                                                                                             2557
  


----------------------- Page 8-----------------------

According   to   Brown,   these   comments   were   improper   because   the   prosecutor  was  



essentially vouching for the credibility of the State's witnesses.                          



                       We have previously held in                     Smith v. State           that it is usually improper for the               

prosecutor to call the defendant a liar during the prosecutor's final argument.                                                      8  But we  



                                                                                                                                           

declined to find plain error in Smith, because there the defendant testified that the police  



                                                                                                                                            

were maliciously framing him; as between the police and Smith, only one account could  



                             9  

                      

possibly be true. 



                                                                                                                                     

                       As we noted above, this case is not one where Brown's claim of innocence  



                                                                                                                    

was necessarily inconsistent with the inculpatory testimony of the eyewitness, for that  



                                                                                                     

witness could have been honestly mistaken.  Thus, it was improper cross-examination  



                                                                                                                             

for the prosecution to suggest the contrary.  But during final argument, the prosecutor  



                                                                                                                                              

did not repeat his earlier innuendo that contradictory testimony necessarily equates with  



                                                                                         

a lie by someone.  Instead, the prosecutor argued a different proposition:  that in order  



                                                                                                                                                 

for the jury to convict Brown, it necessarily had to find that he perjured himself on the  



                                                                                                                                               

stand.   The prosecutor "submitted" for the jury's consideration the proposition that  



                                                                                            

Brown had testified untruthfully - that he "lied."  



                                                                                                                                    

                       Under the circumstances of this case, it was not improper for the prosecutor  



                                                                                                                                        

to argue that the evidence should lead the jury to the conclusion that Brown had testified  



                                                                                                                     

untruthfully.  The prosecutor's argument appropriately focused on Brown's testimony  



                                                                                                                             

that a blond young man with a blue car committed the theft.  Although the prosecutor  



                                                                                                                                               

characterized Brown's account as knowingly fictitious, he did not assert that Brown was  



                                                                                                                                      

a congenital liar, nor did he engage in inflammatory assertions against Brown unrelated  



                                                                

to the jury's task of determining the facts.  



      8     Smith v. State, 771 P.2d 1374, 1379 (Alaska App. 1989).  



      9    Id.  



                                                                      -  8 -                                                                 2557
  


----------------------- Page 9-----------------------

                    Moreover, immediately after the prosecutor asserted that Brown had lied  

                                                                      



in his testimony about this event, the prosecutor reminded the jurors that it was their "job  

                                                                                                                           



as fact-finders ... to weigh the credibility of the witnesses, come to a determination as to  

                                                                                                                              



what happened, and then apply that to the ... law in the case."  

                                                                                             



                    The prosecutor's argument was not an improper bolstering ofthe testimony  

                                                                                                                   



of other witnesses as Brown claims, and was not error.  

                                                                          



          Conclusion  



                    We AFFIRM the judgment of the superior court.  

                                                                                              



                                                             -  9 -                                                       2557
  

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