Carman v. State, 3555

• Decision Date: 30 November 1979
• Docket Number: No. 3555,3555
• Parties: Michael CARMAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1255

602 P.2d 1255

Michael CARMAN, Appellant, v. STATE of Alaska, Appellee.

No. 3555.

Supreme Court of Alaska.

Nov. 30, 1979.

Linda L. Walton, Rice, Hoppner, Hedland, Fleischer & Ingraham, Fairbanks, for appellant.

Randy M. Olsen, 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

CONNOR, Justice.

In the early morning hours of December 7, 1976, the Cinema II theater in Fairbanks was robbed at gunpoint by two men wearing ski masks. According to the testimony of Steven Parker, the Cinema II employee on duty at the time, the two robbers entered the establishment about 2:30 a. m. and demanded that the employee give them all the money on the premises and a .357 caliber high standard revolver that was kept behind the counter. Parker described both robbers: one was about five feet, six inches, tall, carried a .45 caliber pistol, and wore a blue down jacket and blue ski mask that revealed a blond moustache. The other was "about 3 or 4 inches taller," carried a .38 caliber pistol, and wore dark clothing and a black ski mask. Parker testified that he gave the two the pistol, along with its brown holster, and about three hundred dollars in cash, all of which was stuffed into an old green canvas duffle bag that the two had brought with them into the theater. The assailants then instructed Parker not to leave the premises for five minutes, whereupon they made their exit. Parker then attempted to telephone the police, but discovered that the phone was not working. When the police finally did arrive, they discovered that the telephone wires outside the building had been cut.

The ensuing investigation eventually focused on appellant Carman and one of his roommates, Brock Bean. Together they shared an apartment at 23 D Eureka Street in Fairbanks with four other individuals: Ken Johnson, Steve Evans, and two brothers, Don and Jim Drum. The police subsequently obtained a warrant to search their apartment for the handguns, clothing, and duffle bag involved in the robbery. At the time the warrant was served, appellant's sister Cherie Carman, was visiting the apartment. She and the other people on the premises were instructed to line up along the wall in the living room while the officers conducted their search. Detective Keller, who was in charge of the investigation, then entered a back bedroom where Ms. Carman had been when the police first entered the apartment. There he found a closed, opaque purse lying on the floor. Upon opening it, he discovered and seized a brown leather holster matching the description of the one stolen in the robbery. He then learned that the purse belonged to Cherie Carman.

On January 6, 1977, an indictment was returned charging Michael Carman and Brock Bean with violation of AS 11.15.240 ¹ and AS 11.15.295 ² in the armed robbery of the Cinema II. Their cases were subsequently severed for trial.

In its case against Carman, the state relied principally upon the testimony of Parker, three of Carman's roommates, Johnson, Evans, and Don Drum, and a friend of theirs, Alma Wheeler. Parker's testimony has been summarized above. Next to testify was Steve Evans. He stated that as of December 7, 1976, the group was in arrears in their rent payments on the apartment. He further stated that on or about December 6th, Carman had told him that "they might do a job so they needed some ski masks" and that, as a result, Evans went out and purchased two ski masks for the purpose of "doing a job;" that is, a "hold up." Evans admitted that he paid for the masks from his own funds, and that he had lied to the grand jury in order to protect himself when he previously testified that he bought the ski masks for work and snow machine riding. Evans stated that he considered Carman a friend and that Carman was "always saying that (they) was (sic) all partners." Evans also testified at trial that a few hours before the robbery he left the apartment "to cool off" after he and Carman had a fight. When he returned, according to his testimony, Carman and Bean were gone. He then testified that Carman and Bean returned to the apartment about 2:30 a. m., and, that Carman stated "that it went down and that (they) should've seen the look on the guy's face." Evans claimed that Carman told him they got one hundred and eighty dollars and showed him a .357 caliber high standard revolver which Carman said came from the Cinema II.

The next witness to testify for the state was another of Carman's roommates, Donald Drum. He testified that a few days prior to the robbery, he and Carman had been driven to the Cinema II for the purpose of cutting the telephone wires outside the establishment. He claimed that Carman actually did the cutting while he and the driver, Allen Isaacson, waited in the car. Drum also stated that Carman later paid Isaacson eleven dollars to use Isaacson's .45 caliber pistol. He also stated that he was present at the apartment when Carman and Bean left to commit the robbery; that Carman wore a green Army field jacket and carried a .38 caliber pistol; that Bean carried a .45 caliber pistol and a green gym bag; and that the two were gone about forty-five minutes. Drum went on to testify that when they returned, Carman stated that "they did it" and later gave his sister, Cherie, the .357 holster with instructions to "put it in her purse and throw it away some place when she left."

Another of Carman's roommates to testify for the prosecution was Ken Johnson. He stated that he had accompanied Carman, Drum, and Isaacson in the stolen car when, a few days prior to the robbery, they drove to the Cinema II and "looked it over." In addition he testified that shortly before the robbery he gave Carman a .38 caliber pistol which he had obtained from his mother's house about two weeks earlier. Johnson also admitted that he knew at the time he gave Carman the weapon that it was to be used in a crime. He further testified that about two hours after he gave Carman the weapon, both Carman and Bean left the apartment with it and a .45 caliber pistol, face masks, and a "blue" gym bag, and that they were gone for about an hour and a half. ³ When they returned, according to Johnson, they had about two hundred dollars in cash and a .357 caliber handgun with a holster that was similar to the one found in Cherie Carman's purse. Johnson went on to state that he counted the money for the two, which Carman allegedly told him came from the Cinema II. Johnson also testified that Carman said the robbery "was sort of easy," that the Cinema II employee had "looked scared," and that he and Bean had returned to the apartment on foot. Finally, on cross-examination, Johnson admitted that he had lied under oath to the grand jury when he testified as to his activities when Carman and Bean returned to the apartment.

Apart from these witnesses and Detective Keller, the state also introduced the testimony of four other persons. Ray Briggs, the manager of the Cinema II, identified the holster recovered from Cherie Carman's purse as being identical to the one which he kept behind the counter of the theater. Mary Louise Johnson, Ken Johnson's mother, testified that she owned a .38 caliber Colt Cobra pistol, that she discovered it missing on December 10, 1976, and that two days later she went to the apartment at 23 D Eureka Street and recovered the weapon after talking to her son.

Another of the state's witnesses, a young woman named Alma Wheeler, testified that in the early morning hours of December 7, 1976, she drove Carman and Bean to a place where they had directed her and dropped them off. She stated that they were carrying a black bag at the time, and she saw that it contained a pistol and two ski masks. She stated that after dropping the pair off, she drove home.

Finally, a young man named Shawn Welch testified that on the evening of December 6, 1976, he visited the Eureka Street apartment and was asked by Carman for a ride to some unknown destination. Welch refused because he was not a licensed driver. He also stated that during his visit he saw Carman with a .38 caliber pistol, and that "someone walked in the house (sic) with a .45 automatic with a shoulder holster." Lastly, Welch testified that a day or two later he returned to the apartment and saw a .357 caliber high standard revolver which Carman later tried to sell to him.

At the conclusion of the state's case, the defense rested. In his closing argument, defense counsel urged generally that the state had not proven its case beyond a reasonable doubt, and that the credibility of the key prosecution witnesses was greatly suspect. Nevertheless, the jury found Carman guilty of the armed robbery and, as a result, he was sentenced to a ten year term of imprisonment.

In appealing his conviction and sentence, Carman has proffered a number of claims of error which we shall address seriatim.

Carman first seeks reversal of his conviction on the ground that the trial court improperly instructed the jury on the matter of proof of specific intent to steal, which is an element of the crime of robbery. Over the objection of defense counsel, the so-called Mann ⁴ instruction on specific intent was given which stated in part:

It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from an act knowingly done or knowingly omitted by the accused. (Emphasis added)

The emphasized language in the above excerpt has been found by this court to pose the danger of an impermissible shifting of the burden of proof from the prosecution to the...