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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

RAYMOND SCOTT BROWN, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12289 

Trial Court No. 3KN-12-2038 CR 

O P I N I O N 

No. 2557 — June 2, 2017 

Appeal from the Superior Court, Third Judicial District, Kenai, 

Carl Bauman, Judge. 

Appearances: 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. * 

Judge SUDDOCK. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

Former AS 11.46.130(a)(1) (2012). 

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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. 

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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 

failing to admonish the grand juror or provide a curative instruction. 

The superior court denied Brown’s motion. In his written order, the judge 

found that Brown had, “[a]t most ... demonstrated possible bias or, more likely, a 

misguided attempt at humor by one member of the grand jury.” Even assuming that the 

second grand juror was biased, the judge concluded that Brown had offered no reason 

“[to] impute that [grand juror’s] possible bias to the rest of the grand jurors.” 

Brown now challenges this ruling on appeal, arguing that the second grand 

juror’s comment demonstrated that the grand juror had made up his mind about Brown’s 

guilt prior to hearing the evidence. Brown further argues that this problem was 

“compounded by the inaction of the prosecutor.” Based on these assertions, Brown 

contends that the superior court should have dismissed the indictment. 

To prevail on this claim, Brown must demonstrate both that the second 

grand juror was biased, and that this bias affected the other grand jurors.2 But as we have 

explained, “[i]n the absence of particularized circumstances establishing the likelihood 

of a significant influence on the grand jury as a whole, [there is] no legitimate basis for 

imputing the bias of one grand juror to others.”3 

Here, we agree with Brown that the second grand juror’s comment was 

improper — and that a prosecutorial response would have been appropriate. But Brown 

has not pointed to any reason for concluding that this grand juror’s comment affected the 

2 Hohman v. State, 669 P.2d 1316, 1319 (Alaska App. 1983). 

3 Patterson v. State, 747 P.2d 535, 537 (Alaska App. 1987). 

– 4 – 2557
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

rest of the panel. And upon review of the grand jury transcript, we perceive no basis for 

imputing the single grand juror’s comment to the rest of the jury panel. 

We accordingly uphold the trial court’s denial of Brown’s motion to 

dismiss the indictment. 

The prosecutor’s cross-examination of Brown was improper but harmless 

During the prosecutor’s cross-examination of Brown, the prosecutor noted 

that Crane (who had testified earlier for the State) had identified Brown as the man who 

pushed the bag containing stolen tools through a gap in the chain link gate. Then, 

without objection, the prosecutor asked Brown whether he was accusing Crane of lying. 

Brown initially replied that he was not sure what the prosecutor meant by 

“lying.” Brown suggested that Crane might have seen someone else, and that he 

mistakenly identified this other person as Brown. Then Brown added, “If you are saying 

[that Crane is] lying because he [said he] saw me, yes, he’s lying.” The prosecutor 

responded, “Both of you can’t be right. One of you has to be lying.” 

On appeal, Brown argues that these questions constituted plain error. We 

agree with Brown that the questions were improper, but we reject his claim of plain error 

because we conclude that, given the evidence in Brown’s case, the questions were 

harmless. 

We recently held in Kim v. State that this type of questioning by a 

prosecutor should rarely, if ever, be allowed.4 The facts of the instant case illustrate why 

the implicit assumption underlying such questions —that as a matter of logical necessity 

one witness must be lying — will often be unfounded. 

Kim v. State, ___ P.3d _____, Op. No. 2542, 2017 WL 727128 (Alaska App. Feb. 24, 

2017). 

– 5 – 2557
 

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During Crane’s testimony, he acknowledged that he “didn’t get a real good 

look at [the man’s] face at the [gate], because he kind of had [his wide-brimmed hat] 

down.” Moreover, Crane testified that he was 120 to 150 feet away when he observed 

the incident at the gate. When the red pickup truck drove by Crane minutes later, Crane 

described his view of the driver as “a quick glimpse.” And when Crane thought he 

spotted Brown inside the Home Depot, he was only confident of his in-store 

identification because Brown left in the red pickup truck. 

In light of this testimony, there is at least some possibility that Crane’s 

identification of Brown was mistaken. Crane’s in-store identification of Brown could 

have derived mainly from his view of the man who had suspiciously driven by Crane in 

a red truck, and not from Crane’s more distant view of the man at the gate. Crane’s 

testimony was thus consistent with the possibility suggested by Brown — that Crane had 

made a mistaken identification. Under these circumstances, the assumption underlying 

the prosecutor’s questioning of Brown — that one or the other witness must inevitably 

be lying — was fallacious. 

Brown’s attorney did not object to the prosecutor’s questions, and so 

Brown must show plain error.5 An error is plain when it “was so obvious that it should 

have been noticed by the trial court sua sponte.”6 Because the propriety of the 

prosecutor’s cross-examination in this case was a matter of first impression in Alaska at 

the time of Brown’s trial, the error might not have been obvious to the trial judge. 

Under a plain error analysis, a non-constitutional error is prejudicial if the 

defendant proves that there is a reasonable probability that it affected the outcome of the 

5 See Adams v. State, 261 P.3d 758, 764 (Alaska 2011). 

6 Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008) (quoting Carman v. State, 658 

P.3d 131, 137 (Alaska App. 1983)). 

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proceeding.”7 Given the strength of the State’s case, the prosecutor’s improper line of 

questioning did not affect the outcome of the proceeding. The evidence at trial linking 

thefts from Home Depot of a log splitter and a generator to a particular red pickup was 

strong, and a photograph of the truck’s license plate linked that truck to Brown. Crane 

testified that he saw a man with a distinctive wide-brimmed hat commit a theft from 

Home Depot, and that moments later he saw that man, wearing the distinctive hat, drive 

slowly by the scene of the crime in a red pickup. Brown testified that he was 

coincidentally present near the scene of the crime as it occurred — but only as an 

observer. And to explain the possibility that Crane might have seen him drive by, Brown 

testified that he habitually drove around the Home Depot and looked through the fence 

to spot goods that the store intended to discard. 

This evidence established a compelling circumstantial case against Brown. 

Given the strength of the State’s case, the prosecutor’s brief suggestion during crossexamination that Brown might be lying had no appreciable effect on the verdict, and so 

was not plain error. 

Brown’s attack on the prosecutor’s summation 

Brown also argues that the prosecutor committed misconduct when he 

argued during his summation that Brown’s testimony on the stand was knowingly false. 

Because Brown did not object to this argument, he must demonstrate plain error. 

Here is the challenged portion of the prosecutor’s summation: 

I submit to you that Mr. Brown lied when he testified about 

the events on September 5, lied about the events of ... seeing 

someone [else] stuff the bag through the garden gate center. 

[It] didn’t happen the way that he said ... [He] lied about that. 

Adams v. State, 261 P.3d 758, 773 (Alaska 2011). 

– 7 – 2557
 

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According to Brown, these comments were improper because the prosecutor was 

essentially vouching for the credibility of the State’s witnesses. 

We have previously held in Smith v. State that it is usually improper for the 

prosecutor to call the defendant a liar during the prosecutor’s final argument.8

 But we 

declined to find plain error in Smith, because there the defendant testified that the police 

were maliciously framing him; as between the police and Smith, only one account could 

possibly be true.9 

As we noted above, this case is not one where Brown’s claim of innocence 

was necessarily inconsistent with the inculpatory testimony of the eyewitness, for that 

witness could have been honestly mistaken. Thus, it was improper cross-examination 

for the prosecution to suggest the contrary. But during final argument, the prosecutor 

did not repeat his earlier innuendo that contradictory testimony necessarily equates with 

a lie by someone. Instead, the prosecutor argued a different proposition: that in order 

for the jury to convict Brown, it necessarily had to find that he perjured himself on the 

stand. The prosecutor “submitted” for the jury’s consideration the proposition that 

Brown had testified untruthfully — that he “lied.” 

Under the circumstances of this case, it was not improper for the prosecutor 

to argue that the evidence should lead the jury to the conclusion that Brown had testified 

untruthfully. The prosecutor’s argument appropriately focused on Brown’s testimony 

that a blond young man with a blue car committed the theft. Although the prosecutor 

characterized Brown’s account as knowingly fictitious, he did not assert that Brown was 

a congenital liar, nor did he engage in inflammatory assertions against Brown unrelated 

to the jury’s task of determining the facts. 

8 Smith v. State, 771 P.2d 1374, 1379 (Alaska App. 1989). 

9 Id. 

– 8 – 2557
 
 

 

 

 

 

 

Moreover, immediately after the prosecutor asserted that Brown had lied 

in his testimony about this event, the prosecutor reminded the jurors that it was their “job 

as fact-finders ... to weigh the credibility of the witnesses, come to a determination as to 

what happened, and then apply that to the ... law in the case.” 

The prosecutor’s argument was not an improper bolstering ofthe testimony 

of other witnesses as Brown claims, and was not error. 

Conclusion 

We AFFIRM the judgment of the superior court. 

– 9 – 2557