Brown v. State

• Decision Date: 12 October 1979
• Docket Number: No. 3252,3252
• Citation: 601 P.2d 221
• Parties: Anthony BROWN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 221

601 P.2d 221

Anthony BROWN, Appellant, v. STATE of Alaska, Appellee.

No. 3252.

Supreme Court of Alaska.

Oct. 12, 1979.

Walter L. Carpeneti, Asst. Public Defender, Anchorage, Brian Shortell, Public Defender, Anchorage, for appellant.

Rhonda F. Butterfield, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

Anthony Brown appeals from his conviction for first degree murder, felony murder and armed robbery. He also appeals from his sentence of life imprisonment.

The victim in this case was a 23-year old taxicab driver. His body was discovered lying partially in and partially out of his cab which was on a gravel road just off Sheep Creek Road, northwest of Fairbanks at about 12:15 P.M. on May 20, 1976. He had been shot once in the back of the head at close range. Death was instantaneous. Within forty-five minutes of the discovery of the victim's body the defendant Brown was arrested for the murder.

The evidence adduced at trial linking Brown to the murder was impressive. Two eye-witnesses who had been driving by on Sheep Creek Road apparently witnessed the actual shooting, although they did not realize it at the time. They saw a man standing on the passenger side of the cab, apparently talking to the cab driver. As they approached the cab, it suddenly shot forward, evidently out of control, and came to a rest off the side of the road. ¹ When the witnesses stopped and asked the man what had happened, he told them the cab had run off the road and waved them on to get help. As they left they observed the man heading back toward the cab. They saw no one else in the area. Both witnesses positively identified the defendant Brown as that man in a lineup held later on that day.

A third witness testified that as he drove past the scene a few minutes later he saw the cab off the road and an individual coming up toward the road. As this witness slowed, the individual waved at him to go on. This witness drove by, but then decided to turn back, thinking there might have been an accident. When he returned to the scene, the person who had waved him on was gone. He and another passing motorist who had stopped went down to the cab and found the victim's body laying half out of the cab with the cab door open.

The driver of a school bus testified that he was flagged down by a pedestrian on Sheep Creek Road near where the murder took place. The pedestrian told him he needed to get to a phone quickly. The bus driver let the individual off at the east entrance to the University of Alaska. A few minutes later, the bus driver was stopped by police investigating the murder. He accompanied them back to the College Inn Grocery near the University, where he positively identified Brown as the man who had flagged him down.

Both the bus driver and a passenger on the bus testified that Brown was carrying gloves when he stopped them. Later police investigation showed that a small cross marked in blood on the victim's driver's door window had been traced by a gloved hand.

Scientific evidence showed that the bullet that killed the victim had come from a .44 caliber S&W Special Charter Arms revolver. ² The state showed that the defendant had stayed the night before the murder with a friend who owned such a revolver. The friend had showed the pistol to Brown that night. On the evening after the murder, Brown's friend reported to police that the pistol and a box of ammunition were missing. A specialist in neutron activation analysis testified that the bullet taken from the victim and a bullet fired from the revolver several days before it was stolen had come from the same batch of ammunition: they had been made by the same manufacturer on the same day and at the same hour.

An expert testified that he had found human blood on the clothes worn by Brown when arrested and that at least one bloodstain was of the same type as the victim's. Another expert testified that he had taken swabs from the defendant's hands and that those taken from the defendant's left hand tested positive for barium and antimony, substances released when a weapon is fired. This expert also testified that traces of these substances are very easily removed and will usually not remain more than a few hours after a gun is fired.

Police found a vial containing hashish oil laying on the ground between the cab and the highway. When arrested, Brown was carrying several similar containers. The victim's wallet, the murder weapon, and the gloves were never recovered.

Brown's testimony was that he had hitchhiked to the area of the homicide to look over property owned by his grandparents. He was walking to the highway when he heard the sound of a car engine revving up. When he went to investigate, he found the cab standing off the road, in gear, with the motor running. Upon approaching the cab, he saw the victim, opened the door, and shook him, asking if he was all right. ³ He then went up to the road to get help where he flagged down the two witnesses who later identified him. He testified that he did not remain at the scene because he did not wish to become involved while carrying hashish oil. He explained the antimony and barium traces by testifying that he had gone target shooting with a friend the night before the murder.

On appeal, Brown claims that remarks made by the prosecutor in closing argument were improper and prejudicial, that the court erroneously admitted certain evidence at trial, that the court erred in denying his motion for acquittal on the ground that there was insufficient evidence of robbery to sustain the robbery and felony murder convictions, that he was deprived of his right to a fair and impartial jury, and that he received ineffective assistance of counsel.

I PROSECUTOR'S CLOSING STATEMENT

Brown first argues that his conviction must be reversed because of improper remarks made by the prosecutor in his closing argument. The prosecutor told the jury that:

When this defendant walked into the courtroom, like every citizen in the State of Alaska, he was entitled to be presumed innocent until proven guilty. He was entitled to bail until proven guilty. At this point in time, ladies and gentlemen, he is no longer entitled to these constitutional rights. Because the people in this State have proven, beyond a reasonable doubt, that he is guilty of first degree murder, and that he is guilty of armed robbery.

No objection was made at trial. On appeal, the defense argues that this is an incorrect statement of the law because the presumption of innocence continues until the jury reaches a verdict of guilty. Brown further argues that, since a constitutional right is involved and the error cannot be said to be harmless beyond a reasonable doubt, it is Per se plain error, ⁴ requiring reversal.

We agree that the prosecutor's remarks were an incorrect statement of the law. It is clear that the presumption of innocence remains with the defendant until a guilty verdict is reached. ⁵ However, since no objection was made to these remarks at trial, in order for this court to consider this matter on appeal, plain error must be shown. ⁶ This court has often stated that to constitute plain error, an error or defect must be obvious, affect substantial rights, and be obviously prejudicial. Gilbert v. State, 598 P.2d 87 (Alaska 1979); Evans v. State, 550 P.2d 830 (Alaska 1976); Dimmick v. State, 449 P.2d 774 (Alaska 1969). We have also held that where the error Denies a constitutional right, by definition a substantial right is affected, and reversal is required unless the error is found to be harmless beyond a reasonable doubt. Martin v. State, 517 P.2d 1399 (Alaska 1974); Burford v. State, 515 P.2d 382 (Alaska 1973). However, we have never held that the standard of harmless beyond a reasonable doubt applies merely because a constitutional right is involved. While it is true that a constitutional right, the right to the presumption of innocence, is involved here, we believe that the instructions given by the judge both before the trial and before the jury's deliberations were sufficient to ensure that the defendant enjoyed that right and therefore no constitutional right was denied. Prior to trial the court expressly instructed the jury that the presumption of the defendant's innocence remains throughout the trial and jury deliberations and can be overcome only by evidence of guilt which convinces beyond a reasonable doubt. At the end of the trial the court gave further instructions on the presumption of innocence and the burden of proof, and warned the jury that:

Arguments, statements and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark. . . .

We are convinced that the court's instructions prevented the error from rising to the level of plain error.

II ADMISSION OF STATE'S EXHIBIT EE

Brown next contends that the admission into evidence of State's Exhibit EE, a .44 caliber S&W Special Caliber Charter Arms Bulldog Revolver, was reversible error. The gun was admittedly not the actual murder weapon. The state argued, however, that it was identical to the murder weapon, and exhibited it to witnesses and jurors on several occasions. Brown claims that, since there was no actual connection between the gun exhibited at trial and the crime, the gun was irrelevant and that its admission was both prejudicial and an unwarranted judicial comment on the evidence.

In Poulin v. Zartman, 542 P.2d 251 (Alaska 1975), we reaffirmed our earlier statements regarding the test of relevancy:

Alaska case law defines the test of relevancy. 'To be of sufficient relevance for admission, testimony, documents or other evidence must have...