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Brown v. State


April 4, 2001


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 Stewart, Judges.

The opinion of the court was delivered by: Stewart, Judge.


No. 4369

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.

Facts and proceedings

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 last night she was seen, and that she had returned to Brown's house that evening to take more money or drugs.

In Kugzruk, the Alaska Supreme Court noted that "independent- crime evidence is admissible when it tends to complete the picture or set the stage for the crime for which the defendant is being tried." *fn11 The court added that evidence of other criminal acts is admissible when the other acts "are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged." *fn12

In Gafford v. State, *fn13 the Alaska Supreme Court affirmed admission of evidence that the victim refused to assist the defendant in disposing of narcotics. *fn14 The court ruled that the evidence was relevant to illustrate a possible motive for killing the victim. *fn15 Similarly, in Dorman v. State, *fn16 the Alaska Supreme Court affirmed the admission of evidence showing the defendant's involvement in the illegal drug trade. *fn17 The court observed that the evidence was relevant to show the "affirmative link" between the defendant and the victim in "an illegal and violence-prone business" and was not offered merely to show the defendant's general propensity to commit crime. *fn18

In this case, the State offered evidence that Brown had been a drug dealer, that drugs were integral to his relationship with Burgin, that Brown controlled access to drugs and money by locking them in a safe, that Brown's primary income was derived from drug sales, that Burgin had tried previously to steal from the safe, and that Burgin had taken drugs and money and was about to try to take more when she left. This evidence was introduced not for the impermissible purpose of showing Brown's general propensity for crime, but to illustrate his possible motive for the murder: that he killed Burgin to prevent her from taking money or drugs and to maintain his control in the relationship. This is admissible evidence to "complete the picture" of the crime under Kugzruk and Gafford.

Given the connection between drugs and this possible motive, and the specificity for which the evidence was introduced, Judge Sanders could reasonably have concluded that the probative value of this evidence outweighed its prejudicial effect. The prejudicial effect of the evidence was further minimized by the court's limiting instruction, which the jury is presumed to follow: *fn19

During the trial you heard testimony that the defendant used and sold drugs. This evidence was presented for a limited purpose: to prove why certain people acted as they did, and to prove the defendant's motive to commit the crimes charged. This testimony was not presented to prove that because the defendant used or sold drugs he is a "bad person" and thus more likely to commit the crimes charged; accordingly, the jury must not consider the evidence for that purpose.

Brown argues that even if it were appropriate to admit some evidence of his drug dealing, the superior court abused its discretion in admitting evidence of his drug dealing activities as far back as ten years prior to his relationship with Burgin and after her disappearance. However, Brown objected to very little of the evidence pertaining to his drug dealing and even testified on direct examination that he started dealing drugs in the early 1980s. Moreover, the evidence showed that he was entrenched in drug dealing and that it was an important source of his income. The trial court did not abuse its discretion in admitting this evidence because it was relevant to show the nature of Brown's and Burgin's relationship and Brown's motive for killing Burgin.

However, we conclude that it was error to admit evidence of Brown's drug dealing after Burgin disappeared. The State suggests that this evidence still served the limited purpose of impeaching Brown. But Brown's impeachment was amply accomplished by other evidence. In addition, this evidence was not admissible for the other reasons set forth by the superior court: to show motive or to establish the nature of the relationship.

Even so, the error in admitting the evidence of Brown's drug dealing after Burgin disappeared was harmless. Little evidence was presented on Brown's drug dealing activities subsequent to Burgin's disappearance. Given the limited evidence presented on this time period in the context of Brown's long drug-dealing career, such evidence would not have appreciably affected the jury's verdict. *fn20

The evidence of Brown's "infidelity"

Brown lived with a woman, Deborah Moranne, for fifteen years until she died in 1990. Russell Evans, Moranne's brother, testified over Brown's objection that Linda Yingling was romantically involved with Brown while Moranne was still alive. During a bench conference, Judge Sanders ruled that this evidence was relevant to show Yingling's bias. Judge Sanders ruled that the potential for prejudice from this evidence was slight and offered to provide the jury with a limiting instruction.

Yingling also testified that she and Brown were romantically involved in 1990. Yingling testified that she lived with Brown for two years after Moranne's death, but moved out due to a conflict with Brown's children, and then moved back in after Burgin's disappearance. Yingling testified that she continued to love Brown.

Brown concedes that evidence that Yingling was involved in a long-term romantic relationship with him was relevant to show Yingling's bias under Evidence Rule 613. *fn21 He argues, however, that evidence of the extra-marital aspects of that relationship were not relevant and unfairly prejudicial. As the State notes, this aspect of the relationship only serves to illustrate Yingling's dedication to Brown. That Brown and Yingling were in a relationship over such a long period of time shows the nature and extent of Yingling's potential bias. *fn22

Brown next argues that the superior court erred in allowing the impeachment evidence to be introduced before Yingling took the stand, in contravention of the foundational requirements in Evidence Rule 613(b). Brown does not cite any authority that holds that such an error warrants reversal.

Any objection that Brown made during trial regarding this evidence related to its substance, not to the order of proof. At no point did Brown make an objection regarding the State's failure to follow the foundational requirement of Rule 613(b). As a result, the superior court's order of proof should be reviewed under the plain error standard. *fn23

The Alaska Supreme Court has noted that most errors in the order of proof are harmless, *fn24 and the rules give courts a fair amount of discretion to make exceptions to the order of proof. *fn25 Brown had ample opportunity to address Yingling's bias during her testimony. The superior court did not commit plain error when it admitted the evidence prior to Yingling taking the stand, and if it did, the error was harmless.

Other suspect evidence

Next, Brown argues that the superior court erred in denying him the opportunity to present "other suspect" evidence in his defense. Some of this evidence consisted of rumors that Simone Greenway's ex- husband, Dave Getz, bragged about ordering a "hit" on Burgin while he was in jail and that some people thought that Jim Burgin, Judy's brother, should have been a suspect. Brown asserts that under Smithart v. State *fn26 he should have been allowed to introduce this and other evidence "to suggest that there was a universe of people who could conceivably have committed the offense."

The State argues that Judge Sanders did not abuse his discretion in excluding the other-suspect evidence. The State notes that, unlike in Smithart, Getz was not a witness for the State and therefore the superior court did not need to give Brown greater latitude in admitting other-suspect evidence. *fn27 Similarly, the State notes, Jim Burgin was not a witness for the State and Brown's theory that he might have a motive to commit murder was too speculative. The State also contends that Brown's position on appeal is inconsistent with his statements at trial that he had no evidence directly connecting Jim Burgin with the murder. The State also claims that Brown strategically chose to not try to satisfy the Smithart-Marrone *fn28 foundational requirements. Finally, the State argues that the superior court did not abuse its discretion in preventing Brown from asking Trooper Massie about tips he received regarding other suspects. The State argues that Judge Sanders properly excluded this evidence under Rule 403 to prevent the trial from becoming a "wild goose chase."

In Marrone v. State, *fn29 the Alaska Supreme Court held that the defendant may not present evidence of threats by a third person against the victim unless those threats are coupled with evidence that "tend[s] to directly connect such other person with the actual commission of the crime charged." *fn30 Where, as here, the prosecution's case against the defendant is largely circumstantial, this preliminary showing may be satisfied by "a sufficiently substantial circumstantial case against that other person." *fn31 The defendant is only required to introduce evidence that creates a reasonable doubt about his own guilt; he is not required to prove the other person's guilt beyond a reasonable doubt. *fn32 Without this foundational requirement, it might be possible for the defendant, because of the victim's lifestyle, to produce evidence tending to show a multitude of other persons who could have a motive to commit the crime and "the resulting trial would be a waste of judicial resources." *fn33

If evidence of another person's guilt is sufficiently corroborated to be admissible under Smithart-Marrone, the trial court still may exclude the evidence under Rule 403 if its probative value is "outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." *fn34

An examination of the Alaska Supreme Court's analysis in Marrone and Smithart II, and our decision in Garner v. State, *fn35 provides guidance on what evidence a trial court may admit when a defendant wishes to "point the finger" at other potential suspects. In Marrone, the Alaska Supreme Court held that evidence that another possible suspect has made threats against the victim was properly excluded where the individual's identity was uncertain and there was no evidence to connect that person with the actual commission of the crime. *fn36 In contrast, the supreme court in Smithart II identified several pieces of evidence that would have supported the admission of alternate suspect evidence:

Smithart presented numerous direct connections between DeForest and the crimes against M.L. In Smithart's pretrial Marrone offer of proof, he stated that the defense could prove: that DeForest was at the scene of M.L.'s disappearance; that the shop in which DeForest worked was a plausible source of the various paint chips and metal fragments found on or near M.L.'s body; that DeForest delayed in coming forward with his identification of Smithart on Tazlina Terrace Drive; that DeForest presented false evidence and lied to the police about his own whereabouts on the afternoon of M.L.'s disappearance; that DeForest was a convicted felon who illegally possessed firearms in violation of his probation, including firearms similar to that used to shoot M.L.; and that DeForest had previously been accused of sexual abuse of a minor for a consensual affair with a fifteen-year-old girl.[ *fn37 ]

The court added that the defendant's offer of proof "combined opportunity, consciousness of guilt, and forensic evidence against DeForest." *fn38 Similarly, in Garner, we held that the superior court should have admitted evidence that tended to implicate another suspect in the death of an eighteen-month-old child. *fn39 The other suspect had abused her own children in a similar manner close in time to the victim's death and had been alone with the victim on the day he was killed. *fn40 We held that the superior court abused its discretion in excluding this evidence because it may have reasonably led the jury to conclude that the alternate suspect was responsible. *fn41

In the present case, Judge Sanders stated that if Brown wanted to present other-suspect evidence, he would have to establish a foundation outside the presence of the jury. The court later stated that under Alaska law, "evidence that another person had a motive coupled with threats made by that person is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged." These statements by the superior court are consistent with the Smithart-Marrone standards.

During trial, Brown made an offer of proof that David Getz had in the past threatened to kill Burgin. Even though Getz was in jail during the murder, Brown offered to prove that there were rumors that Getz had bragged about being able to order a hit from jail. Judge Sanders denied admission of this evidence, telling Brown he had failed to show a "direct connection."

Brown also stated that he wanted to introduce evidence that three people said that Jim Burgin should be investigated as a suspect. These people were under the impression that Jim Burgin was trying to throw Judy out of the family home on Laurel Street due to an inheritance fight. Two of the three people that called had seen Jim Burgin beat Judy on occasion. Brown claimed that he wanted to introduce this evidence to show that Trooper Massie was biased against Brown because Massie did not investigate the lead. Once again, the superior court denied Brown the opportunity to introduce this evidence due to insufficient foundation and lack of a direct connection to the murder.

The superior court did not abuse its discretion by ruling that Brown had failed to establish a direct link between Getz or Jim Burgin and the murder. In Smithart II, the court noted that the defendant's offer of proof included opportunity, consciousness of guilt, and forensic evidence directly linking the alternate suspect to the victim's body. *fn42 Similarly, in Garner, we pointed to evidence that showed the alternate suspect had been with the victim on the day he died and had previously abused her own children in a manner similar to the abuse that killed the victim. *fn43 Brown failed to make a similar direct connection between Getz or Jim Burgin and the murder. At best, it was rumored that Getz bragged about ordering a hit from jail, but there was no evidence of a "hit" being completed. Nor did Burgin's manner of death suggest an execution-style killing.

Likewise, Brown made no direct link between Jim Burgin and the murder. While it was alleged that Jim Burgin wanted to kill his sister over an inheritance dispute, nothing more than rumor and possible motive was introduced. A defendant may suggest generally that a multitude of other persons may have committed the murder, but he may not offer evidence exclusively for the purpose of pointing to a specific individual without showing the direct link required by Smithart-Marrone. *fn44

The court's application of Smithart-Marrone to other aspects of the case

Brown's cross-examination of Massie

The superior court barred Brown from asking Trooper Massie about whether he had followed up on other possible suspects during his investigation. Brown argued that the trooper's investigation of other leads, or lack of it, was admissible to show the trooper's bias against Brown. The trial court concluded that the fact that Massie might have received numerous phone calls identifying other suspects had little probative value to establish his bias because the police doubtless receive many tips whenever someone from the drug community is killed.

A defendant's constitutional right to confront and cross-examine witnesses is violated when a trial court's restrictions on cross-examination impair the defendant's ability to establish a witness's bias. *fn45 However, a trial judge has broad discretion to exclude relevant evidence of a witness's bias under Evidence Rule 403 if the probative force of that evidence is outweighed by the danger of unfair prejudice. *fn46

The State claims that Judge Sanders reasonably concluded that Brown's inquiry would lead to a "wild goose chase ... trying to prove ... whether somebody else is guilty or not guilty," and that Judge Sanders therefore properly exercised his discretion under Evidence Rule 403 to exclude this evidence. But Brown wanted to cross-examine Trooper Massie regarding his willingness to consider three other specified suspects to cast doubt on the thoroughness or fairness of the investigation. Even though the defense attorney's questions could have also suggested that another person might have committed the homicide, the evidence was not being offered for this purpose, and thus it was not barred by Marrone.

This is not to say that Judge Sanders had no ground to be concerned about the proposed cross-examination. As Judge Sanders noted, there was a real possibility that defense counsel might use the cross- examination to circumvent the Marrone rule by engaging in free-ranging questioning about other potential suspects and the particular reasons why Trooper Massie should have investigated other suspects or investigated them more fully. Although Brown was entitled to delve into Massie's potential bias, Brown had not presented an adequate Marrone foundation. Therefore, Brown was not entitled to present evidence for the purpose of establishing the guilt of a specified third party.

Under these circumstances, Judge Sanders properly could have invoked his authority under Evidence Rule 403 to prevent the cross- examination from becoming so detailed that its predominant effect would have been to suggest that other specified suspects had committed the crime in violation of the Marrone rule. However, Judge Sanders committed error when he refused to allow any inquiry at all.

The court's limitations on Brown's final argument and the court's limiting instructions to the jury

Brown next argues that the superior court erred in not allowing him to argue during closing, based on evidence admitted at trial, that other individuals could have murdered Burgin. He contends that he should have been allowed to argue that "Monique" and the knife man could have committed the murder because they were last seen with Burgin at the Samovar Inn. He also suggests that he should have been able to make other arguments that Judge Sanders prohibited. Brown argues that, under Smithart II, he should have been allowed to make reasonable inferences based on admissible evidence. Brown maintains that the superior court committed reversible error by denying him the opportunity to present a structured and coherent defense.

The State suggests that Brown's argument on appeal contradicts statements Brown made after his closing argument. The State contends that those statements indicate that Brown was not hampered in his ability to make inferential remarks. But Brown's statements were made on the heels of his final argument after the court repeatedly sustained the State's objections to his argument and instructed the jury that Brown's arguments were improper. In this context, we do not conclude that Brown conceded that the court's limitations were harmless. The State also argues that the superior court properly denied Brown the opportunity to "point the finger" at other individuals because he failed to show that these individuals had a motive to kill Burgin or that the evidence provided a direct link between their tenuous motives and the murder.

In Smithart II, the Alaska Supreme Court stated that Marrone does not limit the ability of the defendant to make reasonable inferences about a possible suspect's involvement in the charged crime from evidence admitted at trial. *fn47 The Alaska Supreme Court agreed with our analysis that Smithart should have been able to argue that DeForest had committed the crime for which Smithart had been charged:

[T]he Marrone rule limits the introduction of evidence, but it does not limit a party's ability to argue all reasonable inferences from the evidence that is admitted. If, despite Marrone's restriction on the introduction of independent evidence that DeForest committed the crime, it was clear that sufficient evidence would be introduced at Smithart's trial to warrant a reasonable inference that DeForest might be the perpetrator, then Smithart would be entitled to announce this inference in his opening statement.[ *fn48 ]

The court later noted evidence presented at trial that could have led to reasonable inferences of DeForest's guilt - particularly forensic evidence connecting metal fragments and paint chips found at the murder scene to DeForest's shop. *fn49 The court found that the superior court's restrictions on Smithart's defense amounted to reversible error, and "robbed Smithart's case of its cohesion and narrative force." *fn50

Before closing arguments in this case, the prosecutor sought a protective order to prevent Brown from arguing that Flack or the man from Talkeetna who made knives could have committed the murder. The superior court agreed, stating that "if you can't present evidence on the issue, you can't argue the issue." Judge Sanders explained that Brown could argue that the State had not met its burden by failing to locate or present certain witnesses, but could not argue that other persons committed the murder because he had not met the Marrone threshold for submitting other-suspect evidence.

During closing arguments, Brown tried to argue that because an unidentified blonde hair was found on Judy Burgin's body, and that Burgin's friend Willette Nelson had blonde hair, Nelson might have killed Burgin because of a financial debt and because Nelson and her husband were drug addicts. Judge Sanders sustained the State's objection and instructed the jury that it could not make the inference that either of the Nelsons was responsible.

The defense later sought to remind the jury of Kevin Hardy's testimony that the Nelsons wanted to get Burgin's money before Brown did. Again, the court sustained the State's objection and informed defense counsel that he could repeat witness's testimony, but could not make inferences about specific guilt without a foundation. Judge Sanders then gave the jury the following limiting instruction:

Ladies and gentlemen, I want to clarify that the attorneys are allowed to argue the evidence, and there was evidence presented to that effect. So to the extent that [defense counsel] is describing that evidence, that's appropriate. I want to caution you, however, that I do not want you to consider that evidence to infer, in any way, that the Nelsons, either one or both, is responsible for the death of Judy Burgin.

Later, defense counsel made references to the incompleteness of Trooper Massie's investigation of Brown, and the fact that the police had never found Monique and the knife-making man from Talkeetna. Defense counsel continued:

If the investigation is not complete, if we are still conducting interviews out in the hallway during the middle of trial, why are we here? God forbid in a couple of years, this so-called Monique or so-called man who sells knives winds up being caught as a serial killer of all the women that come up missing in Alaska.

The superior court sustained an objection to this line of argument and again instructed the jury to not consider the suggestion that either person committed the murder.

Toward the end of closing argument, defense counsel suggested that Vance Nelson, who helped Brown install the new carpet in his bedroom, had committed the murder. Counsel made the following statement to the jury:

Or maybe someone that she [owed] money to or drugs did this. Maybe they found her and she didn't have what they wanted. What's bothersome is that Dallas Massie, Janiece Amick [of the Alaska State Crime Lab] and [Samuel James] Skip Palenik [the State's forensic microscopist], all of them, said, every single one of them, we have never gotten so lucky as to see a fiber of carpet this big; a tuft this big. There was one five inches long found on her sock. Isn't that suspicious? Well, who had access to the carpet? Well, the police did, they knew that the house was empty. But someone else had access to it. Somebody else helped Carl Brown change carpet. Did they see an opportunity there?

Judge Sanders sustained an objection to this argument.

The court's application of the Smithart-Marrone rule was erroneous. That rule does not prevent a defendant from arguing reasonable inferences from the evidence admitted during trial. The Smithart-Marrone rule only bars evidence offered to show that another suspect committed the offense when the defendant cannot show a direct connection between the other suspect and the offense. But the rule does not exclude evidence that is admissible for another purpose, nor does the rule limit the scope of final argument.

The superior court clearly erred in denying Brown the opportunity to argue that other parties were responsible for Burgin's demise. The court went even further and instructed the jury that is was not permitted to infer that other parties could have committed the crime. While the superior court did allow Brown to make general allegations that someone else could have committed the murder, the court's instructions to the jury deflated the impact of those general allegations.

In Smithart II, the Alaska Supreme Court expressed particular concern about the superior court's limitations on the defendant's ability to argue in closing that DeForest had committed the crime. The court noted that the superior court limited Smithart's argument to inferences that DeForest had been inconsistent in his testimony, which the jury might have perceived as attempts to discredit DeForest's testimony as a witness rather than to implicate him as the perpetrator of the crime. *fn51

The superior court erroneously applied the Smithart-Marrone rule to limit the cross-examination of Trooper Massie, to limit Brown's final argument, and to instruct the jury that it could not consider other individuals identified in the trial as potential suspects. From our review of the record, we are not able to say that these limitations and instructions were harmless. *fn52


The judgment of the superior court is REVERSED.

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