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Brandon D. Ledbetter v State of Alaska (3/5/2021) ap-2693

Brandon D. Ledbetter v State of Alaska (3/5/2021) ap-2693

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                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



BRANDON D. LEDBETTER,  

                                                                                                             Court of Appeals No. A-12910  

                                                          Appellant,                                      Trial Court No. 1SI-16-00179 CR  



                                           v.  

                                                                                                                               O P I N I O N  

STATE OF ALASKA,  



                                                          Appellee.                                              No. 2693 - March 5, 2021  



                             Ap                           

                                   peal from the Superior Court, First Judicial District, Sitka,  

                             David V. George, Judge.  



                             Appearances:   Emily L. Jura, Assistant Public Defender, and  

                                                                           

                             Beth  Goldstein,  Acting  Public  Defender,  Anchorage,  for  the  

                             Appellant.                Donald  Soderstrom,  Assistant  Attorney General,  

                                                                                                                                             

                             Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  

                                                                                                                        

                             Attorney General, Juneau, for the Appellee.  



                             Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                              

                             Judges.  



                             Judge HARBISON.  



                             The State charged Brandon D. Ledbetter with one count of second-degree                                                          



assault and one count of third-degree assault for stabbing another man, Patrick Parrish,                                                                                   


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                                                                                                                                                                                                                                              1  

with a pocketknife during a bar fight.                                                                                                                                                                                                              At trial, Ledbetter claimed that he acted in self-                                                                                                                                                                                                                                  



 defense after Parrish choked him nearly to the point of unconsciousness.                                                                                                                                                                                                                                                                                                                                                                                                                           The jury   



rejected this defense and found Ledbetter guilty of both counts of assault. The trial court                                                                                                                                                                                                                                                                                                                                                                                                                                         



 later merged the two counts, leaving Ledbetter with a single conviction for second-                                                                                                                                                                                                                                                                                                                                                                                                                             



 degree assault based on this incident.                                                                                                                                                                                                        



                                                                                     Onappeal,                                                           Ledbetter arguesthat                                                                                                                 theprosecutor madeanumber ofimproper                                                                                                                                                                         



 arguments to the jury, which deprived him of a fair trial.  For the reasons discussed in                                                                                                                                                             



this opinion, we agree with Ledbetter that the trial court's failure to intervene during the                                                                                                                                                                                                                                                                                                                                                                                                                                                     



prosecutor's closing argument amounted to plain error and that Ledbetter's conviction                                                                                                                                                                                                                                                                                                                                                                                                           



must therefore be reversed and his case remanded for retrial.                                                                                                                                                                                                                                                                                                                                        



                                            Underlying facts and trial proceedings                                                                                                                                



                                                                                     In August 2016, Brandon Ledbetter encountered Patrick Parrish in a bar in                                                                                                                                                                                                                                                                                                                                                                                           



 Sitka.   Motivated by a recent dispute he had with Parrish, Ledbetter approached Parrish                                                                                                                                                                                                                                                                                                                                                                                                                              



 from behind, pulled him off his barstool, and proceeded to strike him.                                                                                                                                                                                                                                                                                                                                                                                       



                                                                                     At trial, Ledbetter did not contest his role in instigating the fight.                                                                                                                                                                                                                                                                                                                                                    Instead,   



he claimed that he subsequently attempted to withdraw, and that Parrish not only refused                                                                                                                                                                                                                                                                                                                                                                                                                              



to disengage, but in fact escalated the violence by choking Ledbetter to the point where                                                                                                                                                                                                                                                                                                                                                                                                                                     



he could not breathe and thought he would lose consciousness. According to Ledbetter,                                                                                                                                                                                                                                                                                                                                                                                                               



he feared for his life, so he pulled out a pocketknife and stabbed Parrish in the leg to                                                                                                                                                                                                                                                                                                                                                                                                                                                               



 force   him   to   release   his   grip   on   Ledbetter's   throat.     Ledbetter   explained   that   he  



 deliberately chose to stab Parrish in the leg, rather than a more vital organ, because he                                                                                                                                                                                                                                                                                                                                                                                                    



 "wanted to make [Parrish] let go" but "didn't want to kill the guy."                                                                                                                                                                                                                                                                                                                                 



                      1                    AS 11.41.210(a)(1) and AS 11.41.220(a)(1)(A), respectively.  



                                                                                                                                                                                                                                                                    - 2 -                                                                                                                                                                                                                                                                  2693
  


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

                                         Parrish disputed this account.                                                                   He denied choking Ledbetter or hearing                                                                    



Ledbetter   communicate   a   desire   to   withdraw.     According   to   Parrish,   the   stabbing  



occurred while he and Ledbetter were actively exchanging blows on the floor of the bar.                                                                                                                                                                                        



                                         During closing arguments, both parties                                                                                           urged the jurors to focus their                                                    



deliberations on the issue of self-defense.                                                                                      But in making this argument, the prosecutor,                                                            



on seven separate occasions, erroneously told the jurors that if they concluded that                                                                                                                                                                           



Ledbetter was authorized to use deadly force, this was equivalent to concluding that                                                                                                                                                                            

Ledbetter had the right to kill Parrish.                                                                             2  



                                                                                                                                                                                                                                                                   

                                         Additionally, the prosecutor gave the jury an inflammatory example of the  



                                                                                                                                                                                                                                                                    

type of case that he and other prosecutors - i.e., "guys on my side of the caption" -  



                                                                                                                                                                                                                                                     

would consider a legitimate self-defense case.  He described a case in which a young  



                                                                                                                                                                                                                                                       

woman is awoken by a naked and "obviously physically aroused" older male stalker  



                                                                                                                                                                                         

holding a knife and standing over her bed.  The prosecutor suggested that if the jurors  



                                                                                                                                                                                                                                                             

were in a situation like that of the young woman, they would be justified in "doing what  



                                                                                                                                                                                                                                         

 [they] had to do," i.e., shooting and killing the intruder.  According to the prosecutor,  



          2          These statements are:  (1) "[I]f you believe that the defendant was authorized by the                                                                                                                                                         



law to use deadly force then you have to believe that he was authorized by the law to take a                                                                                                                                 

life."; (2) "[O]nce you're authorized to use deadly force, you're authorized to take a life.";  

                                                                                                                                                          

(3) "Because what does deadly force mean?  Deadly force means you could kill Mr. Parrish,  

he's authorized to use force that could take his life."; (4) "If you believe [Ledbetter's account   

of the stabbing], under the law of the state of Alaska, you're saying that it authorizes him to                                                                                                                                                                        

kill Mr. Parrish."; (5) "So what we're talking about here in this case is did he have a right to  

stab him?     Did   he have a right to kill him?    If   he had a right to stab him, then you're   

concluding he had a   right to kill him."; (6) "And it might've . . . sounded like inflated   

rhetoric when I said, oh, well, if the defendant has the right to stab, he has the right to kill.  

Well, that's what the law is.  Once the law authorizes the use of deadly force, it authorizes   

it up to the taking of a human life."; and (7) "Look to the circumstantial evidence of whether                                                                                                                                                       

or not [Ledbetter] was strangled so seriously that the law gives him the right to kill another                                                                                                          

person."  



                                                                                                                               -  3 -                                                                                                                          2693
  


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

under those circumstances, "we're not charging you with anything."                                                                                                                                 The prosecutor   



proclaimed that while the stalking victim would be authorized by law to shoot her                                                                                                                                                     



sexually aroused attacker, Ledbetter was not authorized to stab Parrish in the leg.                                                                                                                                                



                                     The prosecutor also referenced the "Trayvon Martin case," a well-known                                                                                                  



case involving the application of Florida's "Stand Your Ground" self-defense statute.                                                                                                                                                             



In that case, the defendant was acquitted after shooting and killing an unarmed teenager.                                                                                                                                                         



The case received national attention and is well-known for its polarizing effect on public                                                                                                                                     



                       3  

opinion.                                                                                                                                                                                                                                  

                             The prosecutor analogized Ledbetter's stabbing of Parrish to the shooting of  



                                                                                                                                                                                                                             

Trayvon Martin, notingthat under therespective"Stand Your Ground"statutes in Alaska  



                                                                                                                                                                                                                       

and Florida, the law did not impose a duty to retreat from a public place before resorting  



                            

to deadly force.  



                                                                                                                                                                                                                                 

                                     Finally, the prosecutor apologized to the jury for getting "worked [up]"  



                                                                                                                                                                                                                

during trial, particularly during Ledbetter's testimony and when discussing Ledbetter's  



                                                                                                                                                                                                                                    

self-defense claim.  He explained that sometimes he felt like he was the only one who  



                                                                                                                                                                                                                              

cared about the rules, and that his zeal for the rules sometimes caused him to get overly  



                                                                                                                                                                                                                                     

excited when faced with a self-defense claimsuch as Ledbetter's, which he believed "the  



                                                                                                                                                                                                                                           

rules" did not authorize.  In concluding his remarks, the prosecutor exhorted the jury to  



                                                                                                                                                                                                           

"do the right thing" by convicting Ledbetter of second- and third-degree assault.  



                                                                                                                                                                                                                                

                                     Ledbetter's attorney did not object to any of these remarks. The jury found  



                                                                                                                                                                                                                                     

Ledbetter guilty of second- and third-degree assault, and, as we have explained, the trial  



                                                                                                                                                                                                                                                  

court later merged the two counts into a single conviction for second-degree assault.  



         3         See, e.g., David Carr,                                    A Shooting, and Instant Polarization                                                               , The New York Times,  



April   1,   2012,   available   at   https://www.nytimes.com/2012/04/02/business/media/the- 

polarization-of-a-shooting.html (last visited January 19, 2021) ("[T]he killing in February   

of Trayvon Martin . . . now threatens to divide a country.").  



                                                                                                                 - 4 -                                                                                                              2693
  


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

                Why we reverse Ledbetter's conviction                              



                               On appeal, Ledbetter contends that the prosecution's improper remarks                                                                                    



during closing argument rendered his trial fundamentally unfair.                                                                                         As we explain in this                     



opinion,   we   agree   with   Ledbetter   that   a   large   portion   of   the   prosecutor's   closing  



argument either was a misstatement of the law or was impermissible argument that                                                                                                                  

disparaged the legitimacy of Ledbetter's defense.                                                                   4  



                                                                                                                                                                                                      

                               Because Ledbetter's attorney did not object to any of the arguments that he  



                                                                                                                                                                   

claims were unfairly prejudicial, Ledbetter must show plain error - i.e., error that (1)  



                                                                                                                                                                                                  

was not the result of intelligent waiver or a tactical decision not to object; (2) was  



                                                                                                                                                                                                    

obvious or apparent to any competent judge or lawyer; (3) affected substantial rights; and  



                                                  5  

                                                                                                                                                                                                

(4)  was  prejudicial.                                    We  conclude  that  Ledbetter  has  met  this  burden.                                                                                  The  



                                                                                                 

impermissible nature of the prosecutor's arguments was obvious and requires reversal  



                                   

of Ledbetter's conviction.  



                                                                                                                                                                 

                               We first note that both our case law and the American Bar Association's  



                                                                                                                                                                                       

Standards for Criminal Justice restrict a prosecutor's closing argument to "the evidence  



                                                                                                                                                                           6  

                                                                                                                                                

presented at trial and the inferences that may fairly be drawn therefrom."   Prosecutors  



                                                                                                                                                                                         

are prohibited  from "expressing  a personal belief as to  the evidence,  from making  



                                                                                                                                                            

appeals calculated to inflame passions and prejudices of the jury, and from advancing  



        4       See Hess v. State, 435 P.3d 876, 881-82 (Alaska 2018); cf. Williams v. State                                                                                          , 789 P.2d  



365, 369 (Alaska App. 1990) (differentiating between permissible, fact-based argument that  

a defendant's version of events was not credible and impermissible argument that "purport[s]   

to disparage the legitimacy of any legal theory or defense asserted by [the defendant]").  



        5      Adams v. State , 261 P.3d 758, 764, 773 (Alaska 2011).  

                                 



        6       Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (citing ABA                                                                                         Standards for  



                                                                                                                                                                                             

Criminal Justice  3-5.8 (2d ed. 1982)); see also ABA Standards for Criminal Justice  3-6.8  

(4th ed. 2017).  



                                                                                                -  5 -                                                                                           2693
  


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

arguments based on the consequences of the verdict or on issues other than the guilt or                                                     

innocence of the accused."                   7  



                                                                                                                                            

                      As we have explained, Ledbetter claimed that he acted in self-defense -  



                                                                                                                                  

that he stabbed Parrish only because he feared for his life when Parrish began choking  



                                                                                                                                            

him, and that he deliberately chose to stab Parrish in the leg, rather than another part of  



                                                                                                                                                 

the body, because he "wanted to make [Parrish] let go" but "didn't want to kill the guy."  



                                                                                                                                    

                      Theprosecutor'srepeated assertionsthatAlaska'sself-defenselawequates  



                                                                                                                                   

"the right to stab" with the "right to kill" was a misstatement of the law that directly  



                                                                                                                                             

undercut Ledbetter's theory of the case.  Under AS 11.81.335, a person is authorized to  



                                                                                                                              

use deadly force upon another person when and "to the extent" the person reasonably  



                                                     

believes it is necessary to avert death or certain other serious harm.  However, even in  



                                                                                                                                      

circumstances when a person is permitted to use deadly force in self-defense under  



                                                                                                                                              8  

                                                                                                                                                 

AS 11.81.335, the person's use of force must be proportionate to the perceived danger. 



                                                                                                                                            

                      In other words, the question for the fact-finder is whether the amount of  



                                                                                                                                           

force used by the defendant was reasonable under the circumstances - not whether the  



                                                                                                                                       

same circumstances theoretically might have justified an even greater use of force. Thus,  



                                                                                                                                  

if the jurors accepted Ledbetter's account, they could have concluded that a nonfatal  



                                                                                                        

stabbing  was  reasonable  under  the  circumstances,  even  if  hypothetically  causing  



                                                                                                                                  

Parrish's death was not.  The prosecutor's claim that the jury had to decide whether  



      7    Patterson, 747 P.2d at 538; see also Berger v. United States, 295 U.S. 78, 88 (1935)  



(observing that while a prosecutor "may strike hard blows, he is not at liberty to strike foul  

                                                                                                                            

ones").  



      8    Jones-Nelson v. State , 446 P.3d 797, 803 (Alaska App. 2019); see also Sarah D. v.  

                                                                               

John D. , 352 P.3d 419, 432 n.50 (Alaska 2015) (noting that domestic violence self-defense  

                

claims,  like  other  self-defense  claims,  are  subject  to  "necessity  and  proportionality  

                                                                                                               

requirements" (quoting Dennis Q. v. Monika M. , 2014 WL 1888270, at *6 (Alaska May 7,  

2014) (unpublished))).  



                                                                    -  6 -                                                              2693
  


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

Ledbetter had the right under the circumstances to                                    kill   Parrish was not an accurate         

 statement of the law.            9  



                                                                                                                                      

                      The prosecutor exacerbated this misstatement of the law by arguing to the  



                                                                                                                                   

jury that if Ledbetter had legitimately acted in self-defense, the State would not have  



                                                                                                                                      

charged him with a crime in the first place.  The prosecutor repeatedly implied that he,  



                                                                                                                                        

like prosecutors in general, was on the side of truth and "care[d] about the rules," in  



                                                                                                                                     

contrast to defendants like Ledbetter. The picture that the prosecutor painted for the jury  



                                                                                                                                       

-  of  himself  as  an  experienced,  law-abiding  truth  teller  and  of  the  defense  as  



                                                                                                              

disregarding the rules - had the effect of improperly bolstering the prosecution.  



                                                                                                                     

                      In Hess v. State, the Alaska Supreme Court held that the prosecution's  



                                                                                                                                  

disparaging  comments  were  improper  and  prejudicial  because  the  comments  went  



                                                                                                                              

"directly to the defense's theory of the case and aimed to discredit the defense attorney  



                                        10  

                                                                                                                                      

as well as her argument."                   In addition, a misstatement of the specific law that forms the  



                                                                                                                            

basis for determining the defendant's guilt creates a high potential for unfair prejudice  



                                                                                     11 

and undermines the fundamental fairness of the trial.                                    The prosecutor's comments in  



                                                                            

this case were improper for the same reasons.  



                                                                                                                              

                      Added to these already prejudicial arguments, the prosecutor's remarks  



                                                                                                                                      

digressed from the contested issues in the case to discuss a high-profile example of the  



                                                                                                                                      

application of another state's "Stand Your Ground" law - a law not implicated by the  



                                                                                                                                       

facts  of  Ledbetter's  case.                 Not  only  was  this  issue  irrelevant  to  the  jury's  task  of  



                                                                                                                             

determiningLedbetter's guilt under Alaskalaw, but theprosecutor's commentsinvoking  



      9    See State v. Walker, 887 P.2d 971, 978 (Alaska App. 1994).  



      10   Hess v. State, 435 P.3d 876, 882 (Alaska 2018).  



      11   See Rossiter v. State, 404 P.3d 223, 226 (Alaska App. 2017).  



                                                                 -  7 -                                                            2693
  


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

the   politically  charged   "Trayvon   Martin   case"   had   a   high   potential   for   improperly  

inflaming the passions and prejudices of the jury.                                                     12  



                                                                                                                                                                             

                            And finally, the prosecutor ended his argument by exhorting the jury to "do  



                                                                                                                                                                         

the right thing" - a comment almost indistinguishable from, but in some ways more  



                                                                                                                                                                              

egregious than, an exhortation for the jury to "do its job," which both this Court and the  



                                                                                                                                                                          13  

                                                                                                                                                                               

Supreme Court have condemned as exerting undue pressure on the jury's verdict. 



                                                                                                                                                                              

                            Having carefully considered the record in this case, we conclude that the  



                                                                                                                                                                          

repetitive nature of the prosecution's erroneous characterizations of the law of self- 



                                                                                                                                                              

defense, especially combined with the prosecutor's other inflammatory and prejudicial  



                                                                      14  

                                                           

remarks, amounted to plain error. 



              Conclusion  



                                                                                                                                                                             

                            For the aforementioned reasons, we REVERSELedbetter's conviction and  



                                                                            

REMAND this case for a new trial.  



       12     See Noel v. State, 754 P.2d 280, 282 (Alaska App. 1988) ("The prosecutor should   



refrain from argument which would divert the jury from its duty to decide the case on the                                          

evidence, by injecting issues broader than the guilt or innocence of the accused under the                                               

controlling law." (quoting ABA Standards for Criminal Justice   3-5.8(d) (2d ed. 1982))).  



       13     See United States v. Young, 470 U.S. 1, 18 (1985); Noel, 754 P.2d at 282-83.  

                                                                                                                                



       14     See Adams v. State, 261 P.3d 758, 764, 773 (Alaska 2011).  

                                     



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