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Brown v. State

Court of Appeals of Alaska

June 2, 2017

RAYMOND SCOTT BROWN, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge No. 3KN-12-2038 CR.

          Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for the Appellant.

          Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          SUDDOCK Judge

         A jury convicted Raymond Scott Brown of four counts of second-degree theft based on four separate incidents of shoplifting from the Kenai Home Depot.[1] On appeal, Brown argues that the trial judge erred in denying his motion to dismiss the indictment against him based on alleged grand juror bias. Brown also argues that the prosecutor's cross-examination of him was improper and that the prosecutor engaged in improper argument during the State's summation. For the reasons explained here, we reject Brown's grand jury argument and his improper summation argument. We agree with Brown that the prosecutor's cross-examination was improper, but we conclude that the error was harmless.

         Background facts

         Sometime during the month of July 2012, a Kenai Home Depot employee observed a man with a dilapidated red pickup truck hitch a log splitter to the pickup and drive away without paying for it. Later that same month, a different store employee photographed a red pickup truck bearing license plate number FAE585 that was loaded with a generator that had not been purchased. The employee who had witnessed the first theft identified the red pickup in the photograph as the one that he had observed earlier. According to DMV records, the pickup was registered to Brown.

         On September 5, 2012, while Kenai resident Kelly Crane was stopped in his vehicle near the Home Depot, he observed a man wearing work clothes and a distinctive wide-brimmed hat standing on the Home Depot side of a locked chain link gate at the rear of the store. Crane saw the man push a contractor garbage bag through a gap in the gate. The man then departed, and Crane approached and examined the bag; he found that it contained brand new hand tools and other items. As Crane was examining the bag, a man who Crane believed to be the person he saw at the gate, drove by in a red pickup truck without a tailgate and peered at Crane before driving away.

         According to Crane's testimony, when he then parked in the store's contractor parking lot he observed the same red pickup, and he jotted down its license plate number - FAE585, Brown's license plate number. As Crane returned the stolen goods to the store management, he spotted a man he believed to be the same person he had observed earlier. The man wore the same wide-brimmed hat, had the same facial hair, and wore work clothes. The man exited the store and drove away in the red pickup without the tailgate.

         Brown was indicted for the two thefts in July, and for subsequent thefts in September and October of 2012, from the same Home Depot store.

         At trial, Brown testified and denied the charges. As to the theft observed by Crane, Brown testified that he observed a young man with blond hair pushing a contractor garbage bag through the Home Depot gate, and that this young man departed in a blue car. Brown was convicted of all four of these charges by the jury. This appeal followed.

         Brown's attack on the grand jury indictment

         At the start of the grand jury proceeding, the prosecutor asked the grand jurors if any of them knew anyone involved in Brown's case. One of the grand jurors stated that she worked at the Kenai Home Depot, and that she knew "all these people." Another grand juror then called out, "Guilty, " followed by some laughter. The first grand juror then explained: "I already know all about this incident. I know what's happened." The prosecutor excused the first grand juror from the proceeding.

         After hearing the evidence in the case, the sixteen remaining members of the grand jury indicted Brown on the four theft charges.

         Prior to trial, Brown moved to dismiss the indictment. In his motion, Brown argued that the second grand juror's "guilty" comment tainted the entire grand jury panel, and that the prosecutor exacerbated the second grand juror's misconduct by ...


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