Garroutte v. State, 1704

• Decision Date: 13 April 1973
• Docket Number: No. 1704,1704
• Citation: 508 P.2d 1190
• Parties: George L. GARROUTTE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1190

508 P.2d 1190

George L. GARROUTTE, Appellant, v. STATE of Alaska, Appellee.

No. 1704.

Supreme Court of Alaska.

April 13, 1973.

Lawrence J. Kulik, Asst. Public Defender, Herbert D. Soll, Public Defender, Anchorage, for appellant.

Stephen G. Dunning, Asst. Dist. Atty., Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ. (FITZGERALD, Justice, not participating.)

CONNOR, Justice.

Garroutte appeals his conviction by a jury for the crime of receiving and concealing stolen property, in violation of AS 11.20.350. His sole claim of error is that a certain remark made by the prosecutor in his final argument appealed to the jury's prejudice, thus constituting reversible error.

Garroutte was charged with receiving and concealing a Volkswagen sedan automobile, knowing it to have been stolen. His defense was that he did not know the car had been stolen. In the course of trial, several references were made to Garroutte's association with the 'Brothers,' a motorcycle gang of some notoriety in the Anchorage, Alaska, area. The initial reference to the group was made by a prosecution witness, the woman from whom the Volkswagen had been stolen, who testified on direct examination that she knew of Garroutte's associates as the 'Brothers.' During cross-examination of two other prosecution witnesses, defense counsel made repeated reference to the 'Brothers' and inquired about the group's involvement in the case. Each of the five witnesses called to corroborate Garroutte's innocent possession defense testified that he was a member of the 'Brothers.'

In the course of final argument, the prosecutor attacked the credibility of the defense witnesses in the following terms:

'If you are going to let the defendant go, you are going to give the Brothers a license to steal because there's no-any case you can name they can come up with a story exactly like the one they've come up with in this case.'

Since no objection was raised when this remark was made, we must be satisfied that the occurrence at trial amounted to plain error before we will reverse. ¹ This Court has previously devoted extensive analysis to the considerations underpinning a determination that alleged misconduct constitutes plain error. ² We deem it unnecessary to reiterate this analysis here. Suffice it to say that an appellant asserting plain error for the first time on appeal must shoulder the heavy burden of demonstrating that the alleged misconduct raises a substantial and important question ³ Where the misconduct fails to rise to the level of plain error, considerations of judicial economy dictate that we deal with the matter summarily.

We have considered the prosecutor's remark in the context of the record of this case. We note that defense counsel himself repeatedly probed witnesses about the 'Brothers" activities, both during cross-examination of prosecution witnesses and on direct examination of all of the defense...