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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).
