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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN IAN ARTHUR BRIGHT, )
) Court of Appeals No. A-2292
Appellant, ) Trial Court No. 3AN-S85-7620CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) [CORRECTED]
)
Appellee. ) [No. 1195 - January 24, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mary E. Greene, Judge.
Appearances: William B. Carey, Anchorage,
for Appellant. W.H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
John Ian Arthur Bright was convicted, following a jury
trial, of murder in the first degree, an unclassified felony with
a maximum sentence of ninety-nine years of imprisonment. AS
11.41.100(a)(1). Superior Court Judge Mary E. Greene sentenced
Bright to the maximum ninety-nine-year sentence and ordered that
Bright's eligibility for parole be restricted until he had served
forty years of imprisonment. Bright appeals, raising several
issues. We affirm.
On October 12, 1985, on his way home from work, Robert
Pfeil stopped his automobile at the intersection of Jewel Lake
Road and North Point Drive in Anchorage. Neighborhood residents
reported that a large sedan pulled up alongside Pfeil; the driver
fired multiple shots into Pfeil's vehicle before speeding away.
On November 11, 1985, Pfeil died from the wounds suffered during
the shooting.
Anchorage police investigated the crime scene and the
nearby Pfeil property. Investigators found that a window in the
Pfeil garage had been broken, and followed distinctive footprints
near the garage. These footprints were also discovered in a
nearby wooded area. Casts of the prints were subsequently
identified by F.B.I. experts as "matching" boots police later
seized and linked to Bright. Among the trees, pieces of plywood
were discovered; police speculated that the Pfeil residence had
been surveilled from this spot.
Approximately one week after the shooting,
investigators learned that a Tyoga Closson had been talking about
details of the Pfeil shooting. Closson eventually made a
statement to the police that he had provided a stolen handgun,
which was used in the shooting, to Joseph K. for $75. Closson
also told investigators that he had been approached by Bright,
who had asked him to drive a car while Bright shot someone.
Although Closson stated that he declined the invitation, Closson
implicated K. as the driver.
Closson agreed to cooperate with police. District
Court Judge David C. Stewart issued a warrant authorizing the
electronic surveillance of conversations between Closson and
several individuals, including K. and Bright.
Closson, following law enforcement instructions, told
K. that the police had recovered the gun and linked it to both
Closson and the shooting. The purpose of this scenario was to
get K. to talk about his involvement and "if possible, to scare
[K.] bad enough . . . that he would feel that his only hope was
to come to the police." Subsequently, K. did go to the police
and make a statement. K. stated that Bright had been hired to
rough-up Pfeil over a union dispute. K. admitted he had agreed
to be and was the driver of the car when Bright opened fire on
Pfeil. K. also confirmed police theories regarding the
surveillance of the Pfeil residence, and the rock through the
garage window. K. reported that during the surveillance, Bright
wore military boots similar to a pair the police suspected had
made the footprints found around the Pfeil property.
K. agreed to conduct surreptitiously monitored
conversations and otherwise cooperate with the police. Because
Bright had left the state, the police turned the focus of the
investigation to Larry Gentry, the owner of the Lincoln driven by
K. on the evening of the shooting. Police helped K. write a
letter implicating Gentry and detailing the Pfeil shooting.
Janet Perkins, an Anchorage police officer and Gentry's
sister, accompanied Gentry to pick up the letter. Officer
Perkins took Gentry to the police station, where he was
interviewed by investigators. Gentry, while denying knowledge of
the shooting, made several contradictory and incriminating
statements. He acknowledged that Bright had been living at his
trailer home and had been using his Lincoln.
Gentry agreed to allow police to come to his trailer
home to photograph a shotgun that was mentioned by the letter as
being involved in the Pfeil shooting. Gentry told police they
could "come over there and go through my house . . . do anything
[they] want." Once on the premises, police asked if Bright had
left anything behind before leaving the state. According to
police, Susan Gentry stated that clothing was left behind, and
took them to a room Bright had been using. Police spotted a pair
of military jungle boots that they expected would match the
footprints from the Pfeil property. Investigators claim the
Gentrys gave permission to take Bright's belongings. There is
conflicting testimony whether Bright was welcome back and whether
the Gentrys consented to a search and the subsequent warrantless
seizure of Bright's clothing and boots.
Gentry gave a lengthy statement to police, and agreed
to allow electronic equipment to be installed on his phone to
record conversations with Bright. According to Gentry, he and
Bright had been recruited by Gilbert "Junior" Pauole to kill
Pfeil.
Bright returned to the state on November 7. On
November 8, Gentry, while being electronically surveilled by
police, told Bright he was going to surrender to police. That
evening, Pauole and Bright were arrested. Pauole told
investigators that he had arranged the killing on behalf of the
victim's former brother-in-law, Neil S. MacKay.1
At trial, the state's theory of the case was that the
killing of Pfeil was the result of a longstanding adverse
relationship between Pfeil and MacKay. Pfeil's sister, Muriel,
had married MacKay in the 1960's. Pfeil believed that MacKay was
responsible for the car bomb that had killed Muriel. The two men
had been bitterly engaged in custody disputes and other
litigation concerning Scotty, the child of Muriel and Neil
MacKay.
Pauole testified that MacKay promised to pay $10,000
and apparently provide Pauole assistance in opening a new
nightclub as consideration for having Pfeil killed. Pauole
stated that he selected Bright and Larry Gentry, individuals who
had worked for him at his nightclub and as part of a cocaine
distribution operation, to carry out the contract for $10,000
minus a cocaine debt the men owed Pauole. This is supported by a
recorded conversation between Bright and Gentry.
Matthew Vickers testified that Bright borrowed dark
clothing and "jungle boots" in order to do "some kind of
surveillance." Vickers also testified that, in early October,
Bright had left him C-4 explosives to safeguard; Bright later
told Vickers that the material was to make an explosive device as
"backup" for a job he had taken. After the shooting, Bright told
Vickers that he had performed a contract hit, killing Pfeil for
Pauole.
Pauole testified that Bright had reported conducting
surveillance of the Pfeil home from nearby woods and had
considered shooting Pfeil from a clandestine wooded position.
Pauole also recounted Bright planning to throw a Molotov cocktail
or a rock through a window and shoot Pfeil as he left the house.
The state presented evidence tending to corroborate the
surveillance story.
Pauole also stated that he advised Bright and Gentry
regarding choice of weapons. The state presented evidence
through several witnesses tending to connect Bright with the
murder weapon.
Bright's girlfriend, Theresa Marshall, testified that
while motoring with Bright, Bright had pointed out a jogger and
stated that he had been hired to murder that person. Pfeil's
wife testified that a man she identified as Bright had come to
her home a few weeks before the shooting looking for her husband.
Pauole testified that after the shooting of Pfeil,
Bright came to him for payment. Pauole refused to pay because
Pfeil was still alive. According to Pauole, Bright responded,
"[no] way, I shot him five times, he shouldn't be alive." The
next day, according to Pauole, Bright said he had shot Pfeil with
a .45 caliber handgun, expressed concern that Pfeil had seen his
face, and made plans to blow up the hospital where Pfeil had been
taken. Pauole took Bright to the airport and sent him to Texas.
Marshall visited Bright in Texas, bringing him a
package from Gentry containing approximately $2500. Pauole
testified that he had provided the money to Gentry. Marshall
testified that Bright confessed to having hired a driver, pulled
up alongside Pfeil in a yellow Lincoln, and shot Pfeil five times
with a .45 caliber handgun. Marshall stated that Bright claimed
to have shot Pfeil in exchange for $7500 from Junior Pauole on
behalf of a man in Hawaii.
Upon returning to Alaska and searching for K., Bright
made incriminating statements which were testified to by Melody
Markley (K.'s girlfriend) and Randy Moore (a friend of K.'s).
The recorded conversations between Gentry and Bright were
admitted into evidence, and implicated Bright in the murder.
Based on this evidence, Bright was convicted by a jury
of first-degree murder.
INDICTMENT ISSUES
Bright raised several issues concerning evidence that
the state presented at the grand jury proceeding. Bright argues
that Judge Greene erred in not dismissing the indictment because
of the introduction of this evidence.2
In reviewing these contentions, Judge Greene found that
the state had admitted some evidence that would be inadmissible
at trial in violation of Alaska Rule of Criminal Procedure
6(r)(1). However, Judge Greene found that "the admissible
evidence presented to the grand jury made a very strong case
against Mr. Bright if unexplained or uncontradicted." When the
state introduces inadmissible evidence at grand jury in violation
of Rule 6(r), the trial court is to dismiss the indictment "only
if the remaining, properly presented evidence was insufficient to
support the return of an indictment or if the inadmissible
evidence appreciably affected the outcome of the grand jury's
deliberations." State v. Green, 810 P.2d 1023, 1027 (Alaska App.
1991); see also Oxereok v. State, 611 P.2d 913, 916 (Alaska
1980). We agree with Judge Greene that the admissible evidence
that the state presented at grand jury made a strong case against
Bright. We conclude that Judge Greene did not err in refusing to
dismiss the indictment.
TRIAL ISSUES
Judge Greene issued a protective order forbidding the
state to bring up instances of other shootings by Bright. The
assistant district attorney who tried this case was aware of the
order and explained the order to his witnesses.
During the trial, state witness Brenda Pate testified
that she was friendly with Bright and had sold cocaine for him.
She had apparently met Bright while selling drugs for one of
Bright's friends, and testified that when she first met Bright he
had advertised himself as a hit-man who would take care of her
needs for a small price. Pate also stated that she had seen
Bright and K. loading firearms into a light-colored Lincoln in
June or July. Bright's counsel asked her why she had not told
the police these things when she was first interviewed. On
redirect, the following exchange took place:
Q: So now tell us why you wanted to talk to
the police when you knew you'd have to be
telling them about doing an illegal activity
yourself. Why did you come forward?
A: Explain that again, please.
Q: Well, why did you come forward to the
police and give them the information you had?
A: Because he was shooting at my house and
stuff.
Q: Now, the -- did you have any other reason,
any other motive in doing that?
A: No.
(Emphasis added.)
Bright moved for a mistrial the next day. Bright
claimed that no cautionary instruction could be curative.
Judge Greene denied the motion for a mistrial. She
found that Pate's statement was but a "brief comment" and ordered
the parties not to make any further reference to the comment.
Judge Greene gave a general cautionary instruction at the close
of the trial that directed the jury not to be prejudiced by
allegations that a defendant had engaged in prior bad acts for
which he was not charged. We conclude that Judge Greene did not
abuse her discretion in refusing to grant a mistrial. We believe
that Judge Greene could properly find that the jury would not be
unduly prejudiced by Pate's statement and that any possible
prejudice to Bright would be cured by the court's instruction.
We find no error.
Joseph K., after his arrest, told his girlfriend,
Markley, that he had been the person who had shot Pfeil.
Closson, similarly, told his girlfriend, Joanne Harris, that "him
and his friend went and blew this guy [Pfeil] away." Bright
attempted to introduce these statements under an exception to the
hearsay rule provided by Alaska Evidence Rule 804(b)(3).3 Judge
Greene analyzed the statements and found they were not
sufficiently trustworthy under A.R.E. 804(b)(3).
Rule 804(b)(3) provides that a statement inculpatory to
the declarant and exculpatory to the accused is only admissible
if "(1) the declarant [is] unavailable; (2) the statement [is]
against the declarant's penal interest; and (3) there [are]
corroborating circumstances that clearly indicate the
trustworthiness of the statement." United States v. Gossett, 877
F.2d 901, 906 (11th Cir. 1989) (analyzing F.R.E. 804(b)(3)),
cert. denied, 493 U.S. 1082 (1990).
Markley testified at an evidentiary hearing that after
K. was arrested, and while Markley was carrying K.'s child, K.
had told her that he had been the "shooter" in the Pfeil murder,
but that nobody could prove it. K. also stated, Markley
reported, that Bright had been wearing gloves at the time.
However, Markley stated that K. would change his story, sometimes
saying he was the shooter, or merely the driver, or not involved
at all; Bright was always present in K.'s versions of the
shooting. On cross-examination, Markley stated that she did not
remember the "shooter" statement until after she had testified at
trial. Markley "vaguely" remembered K.'s making the statement
while drunk at a pool hall, but also stated the only time he made
the statement was during a post-arrest telephonic conversation in
which Markley was "busy watching television." K., according to
Markley, also had been telling Markley that he was going to be
granted immunity and given witness protection. The "shooter"
statement was in response to Markley's inquiry into "what was
going on and who did what." Markley felt that "he was bragging
'cause he was getting a lot of attention . . . [f]rom the guards
and the courtroom and everybody." Markley stated that she was
confused by all the versions and chose to believe that K. was the
driver because she did not believe that K. could shoot somebody.4
Judge Greene found that the "shooter" statement lacked
A.R.E. 804(b)(3)'s requisite level of trustworthiness: "Given the
vagueness of the statement, given the internal inconsistencies
with respect to who was wearing gloves, whether Miss Markley was
in fact paying very close attention, her reactions as well as all
the external matters that I talked about before, I don't think
that the trustworthiness is there."
Closson told his girlfriend, Harris, that "they were
going to be paid to hurt this guy . . . him and his friend went
and blew this guy away." Closson made this statement to Harris
while she and Closson were both under the influence of a
controlled substance, having smoked "a lot" of marijuana. While
Harris believed that Closson was relatively in control of his
faculties, she had only a vague recollection of the conversation.
Harris was "[s]hocked and amazed," but mostly that "he would try
to make somebody believe that he did something like that."
Harris and Closson were having a discussion concerning
money Closson owed Harris because he had wrecked her car.
Closson then implicated himself in the murder and suggested that
she could call "Crimestoppers" and turn him in to collect the
$1000 reward. Harris stated that she did not believe the
statement because Closson frequently told stories and bragged
about "tough guy" exploits.
Closson also, at times, told Harris that he had driven
the car, and that a person named John had shot Pfeil. Harris
also took this as prevarication and bravado. Closson, after he
had started cooperating with police, told Harris he had merely
stolen the gun that was used, and lent it to someone. Harris
stated she believed this story because Harris provided a more
detailed narrative, and because "[a]fter he started working with
[the police] he was more sober because he was trying to watch
himself better."
Judge Greene found that the circumstances surrounding
the "blew . . . away" statement did not indicate that the
statement was trustworthy. She also concluded that Closson's
statement was inconsistent with the evidence in the case.
We conclude that Judge Greene did not abuse her
discretion in rejecting admission of the statements of
codefendants Closson and K. Alaska Rule of Evidence 804(b)(3)
provides that such statements are "not admissible unless
corroborating circum-stances clearly indicate the trustworthiness
of the statement[s]." See Garroutte v. State, 683 P.2d 262, 265-
67 (Alaska App. 1984). We find no error.
In a related argument, Bright argues that the exclusion
of K.'s and Closson's statements violated his constitutional
right to due process of law. He relies on Chambers v.
Mississippi, 410 U.S. 284 (1973). We rejected a similar claim in
Garroutte:
The standards of admissibility prescribed
by Evidence Rule 804(b)(3) parallel the
constitutional mandate of Chambers. Our
holding that [the exculpatory hearsay
statement] was not clearly corroborated
therefore controls Garroutte's constitutional
claim.
683 P.2d at 267 (citing United States v. MacDonald, 688 F.2d 224,
232 n.13 (4th Cir. 1982), cert. denied, 459 U.S. 1103 (1983)).
Similarly, our conclusion that Judge Greene did not
err in finding that K.'s and Closson's statements were not
sufficiently trustworthy to admit into evidence compels the
conclusion that her failure to admit these statements into
evidence did not violate Bright's right to due process of law.
Bright contends that the warrantless seizure of his
boots and clothing from the Gentry home was illegal because it
did not fall into an exception to the warrant requirement.
Specifically, Bright argues that he had not abandoned the
property seized, that the Gentrys did not have authority to
consent to the seizure, and that the putative consent given by
the Gentrys was involuntary. After giving a statement
to police, Gentry agreed to allow police to come to his trailer
home to photograph a shotgun that was mentioned as being involved
in the Pfeil shooting by K.'s letter and to generally "go through
my house." Having learned that Bright had been living with
Gentry, police became interested, before arrival, in finding out
whether he had left anything in the residence, particularly
clothing or a certain pair of boots. Gentry was taken to his
trailer home by his sister, an Anchorage police officer. Once on
the premises, investigators asked Gentry and his wife, Susan,
whether Bright had left anything behind before leaving the state.
According to police, Susan Gentry stated that clothing was left
behind, and took them to a "storage area" that Bright had been
using. Police spotted a pair of military jungle boots that they
expected would match the footprints from the Pfeil property.
Investigators claim the Gentrys gave permission to take Bright's
belongings. There is conflicting testimony whether Bright was
welcome back and whether the Gentrys consented to a search and
the subsequent warrantless seizure of Bright's clothing and
boots.
Judge Greene, after an evidentiary hearing, found that
although Bright had lived in the Gentry home, he was asked to
move out near the end of September 1985, and was, thereafter,
primarily living elsewhere. Judge Greene found that Bright left
the state on October 15, 1986, taking most of his possessions,
and left the Gentrys a note stating that he would return in two
weeks. Bright left clothing in what Judge Greene found to be a
room "subject to the joint control and access of the Gentry's
[sic] and himself." Judge Greene found that Bright was not wanted
back by the Gentrys. Judge Greene concluded: (1) Bright did not
abandon his boots and clothing and did not intentionally
relinquish his reasonable expectation of privacy in his
belongings; (2) the Gentrys had actual and apparent authority to
consent to the search and seizure of Bright's property stored in
the storage area of the Gentry trailer home; (3) the police entry
into the Gentry home and the storage area was lawful; (4) seizure
of the boots, but not the clothing, was lawful under the plain
view doctrine; and (5) the Gentrys validly consented to the
seizure of the boots and clothing.
The record clearly establishes that the storage area
that contained Bright's personal effects was a place where the
Gentrys had access and control. In Ingram v. State, 703 P.2d
415, 425 (Alaska App. 1985), aff'd, 719 P.2d 265 (Alaska 1986),
we stated: "[T]he extent of a host's authority to consent to a
search of personal effects belonging to a guest must be
determined by a realistic assessment of the degree of privacy the
guest might reasonably expect to receive from his host."
Similarly, "a person with `joint access to, or control of' a
place is authorized to consent to entry" by the police to search.
Phillips v. State, 625 P.2d 816, 818 n.5 (Alaska 1980) (quoting
Robinson v. State, 578 P.2d 141, 144-45 (Alaska 1978)). There
was sufficient evidence for Judge Greene to conclude that the
Gentrys gave actual consent to the police to search the storage
area and to seize the boots and clothing. There was sufficient
evidence for Judge Greene to conclude that the Gentrys' consent
was voluntary. See Sleziak v. State, 454 P.2d 252, 257 (Alaska),
cert. denied, 396 U.S. 921 (1969). We conclude that Judge Greene
did not err in denying Bright's motion to suppress.
Bright next argues that Judge Greene erred in failing
to suppress the entirety of a confession that he made to the
police. Bright contends that Judge Greene's rulings affected his
right to due process and affected his ability to intelligently
decide whether to testify on his own behalf. A certain amount of
factual background is necessary for us to discuss this issue.
Bright, having been arrested and appointed counsel,
telephoned police requesting to make a voluntary statement.
Police did not contact the Public Defender Agency before going to
the jail and conducting a lengthy interview of Bright. Bright
told investigators that he wished to talk about Pauole. By page
three of the transcript it became apparent that Bright was making
possibly incriminating statements. Police stopped Bright, read
him his Miranda rights, and explained that he had an attorney.
Bright stated that he had been advised against giving a statement
but was choosing to do so in order to incriminate others he
claimed were also involved, even if he incriminated himself in
the process.
Of the four- to five-hour statement, approximately one
hour's worth of tape was erased or destroyed. Police explained
the loss by suggesting that one of the tapes was probably
mistakenly used a second time and recorded over. Bright moved to
suppress the statement in its entirety, arguing bad faith,
negligence, and prejudice (use of tape "may have a real impact on
[Bright's] decision" whether to testify). The section of the
statement preceding Miranda warnings had already been suppressed
by Judge Greene.
Judge Greene, after hearing testimony and arguments of
counsel, concluded that there was no way to determine the content
of the missing tape; therefore, prejudice should be assumed and a
sanction was warranted. Judge Greene ruled:
In determining what sanction if any -- if --
what sanction is appropriate, the court has
considered the level of culpability which I
consider to be quite low, the fact that a
great deal of information is present on the
tape that was recorded, the fact that it's
unlikely that there was significant prejudice
to the defendant, although given the fact we
don't know what's there, I think I must still
presume some, and the fact that I believe
that the state has met its burden of proving
that the officers were acting in good faith,
the sanction which I choose to impose is the
following. First, that the state may not
introduce the statement in its case in chief
which is not a very much [sic] of a sanction
given the fact that they didn't intend to.
Further, that I'll -- I will limit
impeachment of Mr. Bright to what is actually
contained on the tape. If Mr. Bright
testifies that he said something different
while during -- during the unrecorded
portion, the state may not impeach Mr. Bright
with any sort of rebuttal testimony or
officer rebuttal testimony regarding what
went on during the unrecorded portion.
In Stephan v. State, 711 P.2d 1156 (Alaska 1985), the
supreme court required the police to record custodial interroga-
tions that were conducted in a place of detention. The supreme
court stated:
[C]ustodial interrogations in a place of
detention, including the giving of the
accused's Miranda rights, must be elec-
tronically recorded. To satisfy this due
process requirement, the recording must
clearly indicate that it recounts the entire
interview . . . so that courts are not left
to speculate about what took place.
711 P.2d at 1162. However, Stephan provides for exceptions to
the general rule of exclusion:
[F]ailure to record part of an interrogation
does not bar the introduction of a
defendant's recorded statements, if the
unrecorded portion of the interrogation is,
by all accounts, innocuous. In such cases,
there is no reason to exclude the defendant's
recorded state-ments, because no claim of
material misconduct will be presented. See
Rule 47(a), Alaska R. Crim. P. (errors which
do not affect substan-tial rights shall be
disregarded). For the same reason, a
defendant's unrecorded state-ment may be
admitted if no testimony is presented that
the statement is inaccurate or was obtained
improperly, apart from violation of the
[recording requirement].
711 P.2d at 1165 (emphasis in original).
Bright has not claimed any specific prejudice that
resulted from the police failure to preserve the recording of a
part of his statement. We believe that the remedies that Judge
Greene applied in this case were adequate. We find no error.
Bright next contends that Judge Greene erred in failing
to suppress tape recordings that the police made of conversations
between Bright and codefendant Gentry. Bright contends that the
police secured Gentry's cooperation in making the recorded
statements "in gross violation of [Gentry's] right to counsel and
his right against self-incrimination." Bright argues that he has
standing to raise the alleged police violation of Gentry's rights
under Waring v. State, 670 P.2d 357 (Alaska 1983). Judge Greene,
who had presided over Gentry's trial, noted that she had
previously found that the police had not violated Gentry's
rights, and ruled that Bright had not shown that he met the
derivative standing requirements of Waring.
On appeal, Bright has expanded the arguments that he
made in the trial court. Bright contends that even though Gentry
was not in custody at the time he made statements to the police
on October 29 and November 2, 1985, and during his testimony in
support of search warrants, Gentry was the target of an investi-
gation, and the police were required to specifically warn him
that his statements and cooperation with the police could be used
against him. Bright urges this court to extend the requirement
of Pinkerton v. State, 784 P.2d 671, 675-76 (Alaska App. 1989)
(state required to give target warnings to potential defendant
appearing before grand jury). Bright urges us to require the
police to warn defendants who are targets of investigation before
speaking with them or bringing them before a magistrate in a
search warrant proceeding.
In order to have standing to raise a police violation
of Gentry's rights under Waring, Bright must show either "police
misconduct which shocks the conscience, or is of a nature that
calls for the judiciary, as a matter of judicial integrity, to
disassociate itself from benefits derivable therefrom" or that
police intentionally violated Gentry's rights in order to obtain
evidence against Bright. Giel v. State, 681 P.2d 1364, 1367 n.3
(Alaska App. 1984). We conclude that Judge Greene did not err in
concluding that Bright had not shown such a violation of Gentry's
rights as to allow Bright standing to assert the violation under
Waring.
Bright next contends that Judge Greene erred in
allowing the state to show a videotape that demonstrated an
explosive called C-4.
The state presented testimony by Vickers that Bright
asked him to store an explosive called C-4, telling Vickers that
it was a backup for a job Bright had taken. Vickers testified
that Bright discussed how the C-4 could be used to make an
explosive device. The state sought to show the jury a videotape
of an automobile being exploded with a pound of C-4; the defense
objected on the grounds of relevance and prejudice. Judge Greene
found the tape admissible and found no danger of prejudice.
Bright argues that the tape was inadmissible under
A.R.E. 402 and 403. The state counters that because Bright
failed to include the tape in the record of appeal, he
cannot show that error occurred. See Yarbor v. State, 546 P.2d
564, 568 (Alaska 1976) (appellant who failed to certify relevant
evidence into record could not establish prejudice). However, at
trial the prosecution stated that the videotape was "something
less than a minute and simply shows -- it's a training film and
it simply shows one pound of C-4 blowing up a standard automobile
with no one in it."
We do not find that Judge Greene abused her discretion
in admitting this evidence. The videotape appears to have merely
demonstrated the nature of the explosive. It was clear that the
state was not accusing Bright of blowing up any car. Judge
Greene could properly conclude that the evidence was not unduly
prejudicial.
Bright next contends that Judge Greene erred in not
dismissing a juror who, during the trial, saw Bright in the back
of a trooper vehicle. The juror also saw Bright in shackles,
being led into a room at the courthouse.
Upon being questioned about this incident, the juror
stated that he assumed it was normal to keep defendants charged
with serious crimes in custody. He assured Judge Greene that he
would not discuss what he had seen with the other jurors and
would not let what he had seen affect his judgment.
Given the juror's assurances, we conclude that Judge
Greene did not abuse her discretion in refusing to discharge the
juror. Cf. Contreras v. State, 767 P.2d 1169, 1172-73 (Alaska
App. 1989) (not abuse of discretion to deny mistrial when juror
saw defendant shackled and concluded it was due to past
criminality, but accepted explanation that it was due to
inability to make bail and agreed not to be prejudiced); Hines v.
State, 703 P.2d 1175, 1176-78 (Alaska App. 1985) (not abuse of
discretion to deny mistrial when trooper followed defendant out
of court in front of jury).
Bright lastly contends that the cumulative effect of
all the errors he has alleged requires reversal. See Pletnikoff
v. State, 719 P.2d 1039, 1045 (Alaska App. 1986). We do not
believe that Bright is entitled to a new trial based upon the
cumulative effect of the errors that he has alleged.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. MacKay was charged, tried, and acquitted on
charges that he arranged for the murder.
2. Bright contends the following evidence was
inadmissible:
1. A police officer stated that Bright was
a dangerous individual, who, police believed,
had returned to Alaska to kill his co-
defendant;
2. Bright's father testified that Bright had
criminal fantasies, fancied himself a big-
time hoodlum, claimed responsibility for
other crimes, and needed psychological help;
3. A state witness testified that Bright, in
a prior incident, had been charged with
assault for beating a man with a pickaxe
handle outside the strip bar where Bright
worked;
4. The Lincoln Continental, putatively used
during the shooting and said to have been
driven by Bright, was referred to as a "cop
killer"; and
5. Hearsay statements of Bright's code-
fendants were introduced without a showing of
compelling circumstances.
3. A.R.E. 804(b)(3) provides:
(b) Hearsay Exceptions. The following
are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
. . . .
(3) Statement Against Interest. A
statement which was at the time of its making
so far contrary to the declarant's pecuniary
or proprietary interest, or so far tended to
subject him to civil or criminal liability,
or to render invalid a claim by him against
another, that a reasonable man in his
position would not have made the statement
unless he believed it to be true. A
statement tending to expose the declarant to
criminal liability and offered to exculpate
the accused is not admissible unless
corroborating circumstances clearly indicate
the trustworthiness of the statement.
(Emphasis added.)
4. However, she was aware of two incidents in which
K. had pulled a gun or shot at people in the past.
