Appeal from the Superior Court, Third Judicial District, Anchorage, Eric T. Sanders, Judge. Trial Court No. 3AN-S98-1131 CR
Before: Coats, Chief Judge, and Mannheimer and
The opinion of the court was delivered by: Stewart, Judge.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Carl E. Brown of first-degree murder *fn1 and tampering with physical evidence. *fn2 Brown contends that the superior court erred in several of its evidentiary rulings and in its restrictions on his final argument. Because we conclude that the superior court erroneously applied the Smithart-Marrone rule on other- suspect evidence, we reverse.
Brown and Judy Burgin met in August 1992. By January 1993, Burgin spent most of her time at Brown's house. Both Brown and Burgin were extensively involved in drugs. Brown had been dealing drugs for some time prior to meeting Burgin, and Burgin was a user of drugs, primarily cocaine and heroin. Burgin occasionally assisted in Brown's drug-dealing and invested her own money in some of Brown's heroin deals. Brown controlled access to the drugs, cash proceeds, and Burgin's personal funds by locking them in a safe.
Brown and Burgin also had a history of domestic violence. Brown hit Burgin on a number of occasions, leaving bruises and cuts on her arms, face and back. On one occasion, her face was swollen, her lip was split and her shirt was torn. Twice Burgin visited her friend Leta Belardi after fighting with Brown, and both times she exhibited signs of physical abuse. Burgin would also visit other friends, including Leah Blue and Willette and Vance Nelson, after her fights with Brown.
Approximately one month before Burgin disappeared, she called her mother in the middle of a fight with Brown, saying that Brown was assaulting her. Burgin's mother advised her to come home, but Brown grabbed the phone from Burgin and said that nothing was going on.
In early April, Burgin appeared at a 7-11 store on Arctic Boulevard in Anchorage "covered with blood," shaking and crying. She was carrying a plastic bag with what appeared to be clothes. The clerk, Virgil Brevak, asked if he should call the police, but Burgin said no. Shortly thereafter, Brown walked in the store, took Burgin by the arm, and they walked out. Brevak, who recognized both Brown and Burgin because they regularly came to the store, said this was the last time he saw Burgin.
Burgin told friends and family members that she feared Brown and wished to leave him. In the days preceding Burgin's disappearance, her drug use contributed to a serious decline in her physical condition.
On the afternoon of April 22 or 23, 1993, Burgin was drinking at O'Toole's restaurant at the Samovar Inn with two women, Simone Greenway and another woman known only as "Monique." Both women left Burgin after about forty-five minutes. At one point, Burgin took the bartender, Sheryl Peterson, aside to the bathroom. Burgin showed Peterson bruises and told Peterson she was upset and afraid. Burgin said that she had left Brown, had taken some money, and had a ticket to Hawaii. Burgin continued to drink with other patrons at the bar and later went to one of the rooms to visit with a man who sold scrimshaw knives. When Burgin returned from that visit, she seemed intoxicated and under the influence of some drug. Burgin attempted to serve herself a salad from the waitress station, but Peterson removed her from there and gave Burgin some food. Burgin again expressed fear that Brown was going to hurt her.
Peterson got off work at 7:00 p.m. and called a Checker Cab for Burgin. While Peterson cautioned Burgin to go directly to the airport, Burgin insisted on going to Brown's residence to pick up belongings. Knowing that Burgin had a large sum of cash on her person and the "business" that Brown was in, Peterson believed that Burgin had stolen either money or drugs from Brown. At approximately 8:00 p.m., Peterson put Burgin in the cab, heading for Brown's residence.
On April 24, Burgin called her friend Simone Greenway at approximately 11:30 a.m. and spoke for twelve minutes; phone records showed that Burgin called from Brown's house. Burgin agreed to come to Greenway's residence in Big Lake the following day to help take care of Greenway's children because Greenway was scheduled to have wrist surgery on April 26. Burgin never showed up at Greenway's residence.
When Burgin did not arrive, Greenway made several calls to Burgin's friends and family, including calls to Brown, to determine Burgin's whereabouts. Brown told Greenway that Burgin took off while he was in the shower and that she had "just vanished" with no explanation and he had no idea where she had gone. Burgin's mother began making calls to friends and to jails and hospitals, but could find no trace of her daughter. At no time did Brown offer to help find Burgin.
Shortly after Burgin's disappearance, Brown changed the carpet in his bedroom from a red-toned multi-colored shag to a gray pile. Brown's sons helped move furniture, rip up the old carpet and carry the carpet out of the house. According to friends and Brown's sons, Brown changed the carpet because it was old, ugly, worn, torn, or stank and was stained because the pets had urinated on it. When Brown was later interviewed by the state troopers, Brown did not say that he changed the carpet or the pad due to heavy use, wear and tear, or pet urination.
Sometime during the summer of 1993, Brown, Theodore ("Tee") Flack, and Leah Blue, friends of Burgin and Brown, drove to Portage. During the ride, Brown scared Blue by complaining that she was too nosy and asking too many questions about Burgin, and by commenting how people can have a way of disappearing. Both Brown and Flack told Blue not to speak to Greenway about Burgin, because Greenway was asking too many questions about Burgin's disappearance. Flack had also previously warned Blue not to go over to Brown's house because she might end up like Burgin.
On August 28, 1993, several bicyclists discovered a body in the woods near Grey's Creek at mile 81.5 of the Parks Highway. The body was wrapped in sheets and covered with leaves. One of the bicyclists stopped a truck and asked the occupants to call the troopers. Alaska State Trooper Michael Sears was the first to arrive at the scene. Trooper Dallas Massie, who was assigned to investigate the case, arrived approximately an hour later. The body was decomposed and it was apparent that it had been there for awhile.
An autopsy of the body was conducted on August 31 - September 1, 1993, at the state crime laboratory in Anchorage. The remains were identified as Burgin's by examination of fingerprints. The sheets that were wrapped around Burgin's head and body were a white or off-white Martex brand with orange stitching at the hem, a type of sheet used at the Sheraton hotel in Anchorage in the early- to mid-1980s. Brown worked at the Sheraton Hotel in the early 1980s. A long strand of red shag carpet fiber was found between the sheets.
The medical examiner determined that Burgin died as a result of multiple blows to the head by a blunt object that caused numerous fractures, and that her death was a homicide.
Trooper Massie contacted Brown on September 4, 1993. At that time, the discovery of a body at Grey's Creek was public information, but the identification of the remains as Burgin's had not been announced. When Trooper Massie interviewed Brown, he introduced himself as an officer from missing persons. Brown inquired if the officers were there to investigate Burgin's death, even though knowledge of her demise was not yet publicized. That information was not publicly released until September 14, 1993.
On September 9, 1994, the troopers learned that Brown no longer lived in the house that he owned when Burgin disappeared. The troopers obtained permission to search his former house and found two tufts of red shag carpet underneath the newer grey pile carpet in the bedroom to compare with the sample found on Burgin's body. Analysis of the fibers established that the fiber found with Burgin's body and the fiber found at Brown's residence had the same fiber, dye, and dye color patterns. The State's expert testified that the carpet fragments could have only come from a single sheet of carpet, in a "once in a lifetime" combination of fibers and dye.
In June 1996, Troopers Massie and Jerry Graham re-interviewed Brown. Brown explained how Burgin left and why he thought she left. Brown told the troopers that he and Burgin were very close, that they never fought and that he never hit her. Brown provided theories why Burgin left and discussed why and how he had changed his carpet.
The troopers asked Brown if he knew how Burgin had died. Brown said that he had read in the paper that she had been bludgeoned to death. That information had not been released to the press nor was it in the paper or on television. When the troopers pointed this out, Brown said that he learned this from a brother of a former girlfriend, Russell Evans. Evans testified that he assumed that he learned that Burgin had been bludgeoned from Brown.
The troopers told Brown that they had enough evidence to prove that Burgin died in the bedroom where the carpet was changed. Since Brown had previously stated that other occupants of the house could not have harmed Burgin, the troopers asked who else could have done the killing and Brown said, "Me."
The grand jury indicted Brown for first-degree murder and one count of tampering with physical evidence.
The evidence of domestic violence
Brown argues that evidence of domestic violence between Brown and Burgin should not have been admitted because the superior court failed to conduct the balancing required under Evidence Rule 403. *fn3 The State argues that the court implicitly found that the probative value of the evidence outweighed the potential for undue prejudice because Brown argued the evidence was too prejudicial and the court rejected that argument.
Judge Sanders never explicitly discussed Rule 403, but it is apparent that he undertook the requisite balancing. *fn4 Brown argued in his motion in limine that the domestic violence evidence should not be admitted because it was more prejudicial than probative. During trial Judge Sanders ruled that the evidence of domestic violence could be admitted under Evidence Rule 404(b)(4) as evidence of Brown's propensity for domestic violence.
The record shows that Judge Sanders could reasonably have concluded that the testimony was more probative than prejudicial for this purpose. Given the serious violence in the relationship and its proximity to Burgin's disappearance, the evidence was strongly probative of Brown's propensity for violence against Burgin. The prior acts were not unusually inflammatory, and Brown had ample opportunity to impeach the credibility of witnesses on this issue.
The trial court also had reasonable grounds to admit evidence of Brown's domestic violence and Burgin's fear of Brown for two separate purposes: to show Burgin's state of mind under Evidence Rule 803(3) and to establish the nature of Brown's and Burgin's relationship. The evidence impeached Brown's claim that the relationship was non- violent and showed that Burgin's fear of Brown was reasonable. *fn5
In Wyatt v. State, *fn6 the Alaska Supreme Court upheld admission of a witness's statement that the victim had told her that divorcing her husband would create a "lethal situation." *fn7 The court held that the statement was admissible under Rule 803(3) because the victim's intent to divorce the defendant was hotly disputed at trial, and therefore the victim's state of mind or plan for future action was independently relevant. *fn8 The victim's state of mind was essential to the State's two primary theories for the murder - that Wyatt feared losing control of the victim or of the victim's money. *fn9
Similarly here, the State theorized that Brown killed Burgin because she had stolen his money and was leaving him. Burgin's state of mind and plan for future action were thus independently relevant to bolster this theory of the case.
The evidence of Brown's drug dealing
Brown argues that evidence of his drug dealing was not admissible to "complete the picture" of the crime because it was not integrated into, or proximate in time to, the murder for which he was charged. Relying primarily on Kugzruk v. State, *fn10 Brown maintains that there was no connection between his drug dealing and Burgin's death. Even if some of the evidence of his drug dealing was relevant, Brown argues, there was no justification for introducing evidence of his drug dealing years before he met Judy Burgin or well after her disappearance.
The State argues that Brown's drug dealing and Burgin's murder were connected. As noted earlier, the prosecution's primary theory was that Brown had motive to kill Burgin because she had, or was about to, steal his money or drugs. To support this theory, the State offered evidence that Burgin had tried to break into Brown's safe on previous occasions, that Burgin had a substantial amount of cash on her person the ...