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

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


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  


         errors to the attention of the Clerk of the Appellate Courts:  

                                   303 K Street, Anchorage, Alaska  99501

                                               Fax:  (907) 264-0878

                                       E-mail:  corrections @



                                                                      Court of Appeals No. A-12289  

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


                                                                                 O P I N I O N  


                                     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

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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  



          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

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                                                   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  



 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                                                                                                                                                                                                                                                                          


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


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,  


                                                                                                                                                                               -  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  


Brown must show plain error.                                                                                                                                                                                                                                                                    

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



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-----------------------


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  



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.  



                    We AFFIRM the judgment of the superior court.  


                                                             -  9 -                                                       2557

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