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. [*]
convicted Raymond Scott Brown of four counts of second-degree
theft based on four separate incidents of shoplifting from
the Kenai Home Depot. 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.
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.
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.
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.
was indicted for the two thefts in July, and for subsequent
thefts in September and October of 2012, from the same Home
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.
attack on the grand jury indictment
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.
hearing the evidence in the case, the sixteen remaining
members of the grand jury indicted Brown on the four theft
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 ...