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Johnson v. State (9/12/2003) ap-1900

Johnson v. State (9/12/2003) ap-1900

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GUY W. JOHNSON,               )
                              )              Court of Appeals No.
A-7401
                                             Appellant,         )
Trial Court No. 4FA-S97-1876 CR
                              )
                  v.          )                        O  P  I  N
I  O  N
                              )
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1900  September 12, 2003]
                              )


          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks,  Dale  O.  Curda,
          Judge.

          Appearances:    David  K.  Allen,   Assistant
          Public  Advocate, Fairbanks, and Brant McGee,
          Public  Advocate, Anchorage,  for  Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage,  and  Gregg  D.  Renkes,
          Attorney General, Juneau, for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          Guy  W.  Johnson was convicted of first-degree  murder1

and sentenced to 99 years in prison.  In our earlier decision  in

this  case,2 we addressed Johnsons attorneys motion to  withdraw.

The  attorney  claimed  that  Johnsons  case  presented  no  non-

frivolous   issues.   We  directed  the  attorney   to   file   a

          supplemental brief that conformed with the requirement we

established  in  Griffin  v. State:3  [An]  attorney  seeking  to

withdraw from [an appeal] must provide [this] court with  a  full

explanation of all the claims the attorney has considered and why

the attorney has concluded that these claims are frivolous.4

          We  have now reviewed the attorneys supplemental brief.

Johnson  himself  has  filed  a  brief.   We  have  independently

examined the record in light of this additional briefing.  We  do

not  agree  with Johnsons attorney that the case raises  no  non-

frivolous  issues;  we conclude that Johnsons  case  presents  at

least  two  arguable  claims.  Accordingly, we  order  additional

briefing.



          Background facts

          On  June  28, 1997, Johnson shot Brad McKown  to  death

outside  of McKowns cabin in Fairbanks.  Johnson called 911  from

the  cabin  and reported that he had killed McKown.  When  Alaska

State  Troopers arrived at the cabin, Johnson explained  that  he

had  had  an  ongoing feud with McKown.  Johnson  said  that  his

problems with McKown began when Johnson first moved onto property

owned  by the Upton family, where McKown was also living  at  the

time.   McKown left the state a short while later.   When  McKown

returned,  he  did  not live on the Upton property  but  appeared

there occasionally to retrieve belongings he had left behind and,

according   to   Johnson,  to  harass  Johnson.   Corbett   Upton

eventually  told  McKown to stay off the property.   Johnson  was

convinced that McKown continued to trespass.

          Johnson  claimed that he went to McKowns cabin  because

Johnson believed that McKown had been trespassing on the property

Johnson lived on.  Johnson told the troopers that McKown came out

of  the cabin, told him to leave, and turned to head back inside.

Johnson  said  he  shot  at  McKown when  McKown  turned  around.

Johnson  said he fired all six shots from his handgun at  McKowns

back.   Johnson added, I wasnt just trying to hurt him.  I wanted

him  dead  then.   Johnson said he then took his rifle  and  shot

          McKown while he tried to crawl away.  McKown was shot eight

times.  McKown died as a result of the gunshot wounds.  The grand

jury indicted Johnson for first-degree murder.

          Johnsons statements to the troopers were recorded,  and

portions were played at trial.  Johnson also reenacted the events

at  the  cabin  while the troopers videotaped;  portions  of  the

videotape were played at the trial.

          Johnson  personally claimed that the tape recording  of

his on-the-scene statement to Trooper Susan Acquistapace had been

altered.   Johnsons trial attorney submitted a motion  in  limine

seeking  to  prevent the State from relying on the tape  but  the

attorney later withdrew the motion and told the court that he did

not  believe  the  tape had been altered.  The  defense  did  not

object when the State played portions of the tape during its case

in chief.

          Before Johnson testified, Superior Court Judge Dale  O.

Curda  issued a protective order barring Johnson from  presenting

evidence  of his personal belief that the tapes had been altered.

Nevertheless,  Johnson testified, Those are edits youre  hearing.

Youre  listening to edits, and implied that portions of his taped

statement to Acquistapace had been removed.

          Johnson  also sought to introduce a photograph  of  the

victims rifle inside the victims cabin to support his claim  that

he  killed  McKown in self-defense.  Judge Curda ruled  that  the

photograph  had  minimal relevance and was  unfairly  prejudicial

because the last time Johnson had seen McKown with the rifle  was

several  years before Johnson killed McKown.  But,  when  Johnson

testified, he stated that McKown turned to walk toward the  cabin

door, where there was a rifle inside the door ....

          Johnson  also testified that after he fired  the  first

shots, injuring McKown, I had already committed myself to killing

him  at  that time. ... I say that repeatedly.  I didnt want  him

just hurt.  I imply that I wanted him dead then, yes.

          The court gave a self-defense instruction, and although

it  was  not  the  version proposed by Johnson, Johnson  did  not

object.   Johnson  specifically requested that the  jury  not  be

instructed  on  the  lesser  included  offense  of  second-degree

murder,  so  there were no lesser included offense  instructions.

The jury returned a guilty verdict on first-degree murder.



          The evidence regarding McKowns rifle raises an arguable

claim

          Johnson  sought to admit a photograph that showed  that

there  was  a rifle inside McKowns cabin when Johnson  shot  him.

The  court  ruled  that  the presence of the  rifle  had  minimal

relevance  and  was  more prejudicial than probative.   Even  so,

Johnson  testified  that there was a rifle  inside  the  door  at

McKowns cabin.

          Johnson  did not know the rifle was there and  conceded

when  he  testified that he had not seen McKown with any firearms

and thought that McKown was probably unarmed.  Even so, the court

instructed the jury on self-defense.  Johnson argued self-defense

and  cited  his  knowledge that McKown had a firearm  during  his

argument.

          Even though the court ruled that the photograph of  the

rifle   and  any  evidence  of  the  rifles  presence  were   not

admissible, Johnson testified that McKown had a rifle inside  the

cabin.  And Johnson referred to McKowns firearm during his  final

argument.

          Although  Johnsons  concern  that  McKown  possessed  a

firearm was based on years-old information, that knowledge tended

to  support his claim that he subjectively feared for his  safety

because  he thought McKown had access to a weapon.  Thus  Johnson

could  plausibly argue that Judge Curda abused his discretion  by

ruling  that the photograph, and other evidence that  McKown  had

access to a rifle in the cabin, was not admissible.

          A  claim is frivolous if there is no colorable argument

that  a  zealous advocate could advance in support of the claim.5

We  conclude that this potential claim is non-frivolous, that is,

Johnson  can  plausibly  argue on this record  that  Judge  Curda

          should have admitted the photograph and other evidence that

McKown possessed the rifle.  This is not to say that the claim is

necessarily  meritorious.  Perhaps the  probative  force  of  the

photograph is small.  Even so, because the presence of the  rifle

tended  to  support  Johnsons claim  that  he  reasonably  feared

McKown,  Johnson can plausibly argue that Judge Curda abused  his

discretion by barring this evidence.

          Because Johnson has a plausible argument on this issue,

Johnson  is entitled to have an attorney zealously advocate  this

claim.



          Johnsons    maximum   sentence   raises   an   arguable

excessiveness claim

          Judge  Curda found that Johnson was a worst  offender.6

He  found that Johnson showed a total lack of responsibility.  He

described McKowns murder as a deliberate, cold-blooded execution.

He found that Johnsons conduct showed deliberate cruelty.  Out of

the  Chaney  sentencing factors, Judge Curda focused on  Johnsons

isolation.  He imposed a 99-year term.

           Johnson received the maximum 99-year sentence for  his

first-degree murder conviction.  Although Judge Curda found  that

Johnson  was  a  worst offender based on this offense,  the  pre-

sentence  report  showed that Johnson had  no  significant  adult

criminal record (he had a 1970 failure to appear in Florida)  and

provided no information that Johnson had a juvenile record.   The

report  also  advised that Johnson appeared to  have  unaddressed

mental health issues.

          Even  though  our decision in Riley v. State7  suggests

that  a  defendant who commits first-degree murder is  often,  by

virtue  of  the  crime itself, properly categorized  as  a  worst

offender, we did not rule that first-degree murderers can  always

receive 99-year sentences, nor does Riley free sentencing  judges

from   their   obligation  to  base  sentences   on   a   careful

consideration of the Chaney sentencing criteria.8  However, after

Riley,  a  defendant  who  challenges  a  99-year  sentence   for

          first-degree murder must show some reason to believe that his

offense  is  mitigated  or  that  his  background  is  atypically

favorable.9

             Again,  we  do  not  rule  that  Johnsons  potential

excessiveness claim is necessarily meritorious.  Instead, we rule

that  Johnsons  potential excessiveness  claim  is  non-frivolous

because  Johnson  has  a colorable claim  that  his  sentence  is

excessive.

          Johnson himself identified several points on appeal  in

the  brief  he  filed in response to his attorneys brief.10   But

other  than identifying these points, Johnson has not  cited  the

record to support those issues or pointed out any authority  that

supports those claims.

          We  have  not reviewed the record in light of  Johnsons

personal  claims  to  decide whether  any  of  those  claims  are

frivolous.  Nor have we considered whether the other claims  that

Johnsons attorney raised in his supplemental brief are frivolous.

          Although  we  have  discussed two non-frivolous  claims

above,  Johnsons attorney retains the tactical choice  to  decide

what  issue  or  issues  should be advanced  in  this  appeal  on

Johnsons behalf  whether the issues are those we identified,  the

issues   raised  by  Johnson  personally,  the  remaining  issues

identified  in  the  supplemental  brief,  or  any  other  issues

identified with additional analysis.11

          We  address one last point.  Johnsons present  attorney

has twice claimed  in this appeal that Johnsons case presents  no

non-frivolous  issues.   If Johnson requests  that  the  case  be

reassigned  to another attorney, we direct the Office  of  Public

Advocacy to reassign the case.

          Conclusion

          We  order  additional briefing.  We direct  the  clerks

office  to issue an order specifying that Johnsons opening  brief

is due ninety days from the date of this opinion.

_______________________________
     1 AS 11.41.100(a).

     2 Johnson v. State, 24 P.3d 1267 (Alaska App. 2001).

3 18 P.3d 71 (Alaska App. 2001).

     4 Id. at 77.

5 Griffin, 18 P.3d at 73.

6 See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

     7 720 P.2d 951 (Alaska App. 1986).

     8 AS 12.55.005; Riley, 720 P.2d at 952; State v. Chaney, 477
P.2d 441, 443-44 (Alaska 1970).

     9  See  Sakeagak  v. State, 952 P.2d 278, 285  (Alaska  App.
1998).

     10   Johnson identified eleven claims:

          1.  Deliberate sabotage of evidence by  State
          of  Alaska  State Police; 2. Trial Fraud;  3.
          Obstruction   of   Appeal   &   Justice;   4.
          Fabrication  &  Destruction of  Evidence;  5.
          Coverup  of  Trial Fraud by State  of  Alaska
          Court  System;  6. Failure to allow  Credible
          Demonstration by Myself in my own Defense  of
          Simultaneous Recordings.  One altered, one is
          not; 7. Obstruction of Brief of Appellant; 8.
          Compromise  of Trial Records; 9. Sabotage  of
          Democracy  &  Treason;  10.  Fabrication   of
          Confession; 11. Failure to Correct Errors.
          
     11    See  Tucker v. State, 892 P.2d 832, 837 & n.7  (Alaska
App. 1995).