Shooter to receive a new sentence

PALMER — A man who blasted his neighbor with birdshot over a box of drywall mud has had his case sent back to a Palmer judge for re-sentencing.

Kenneth Golsbury shot his neighbor, Marvin “Jimbo” Long, on Feb. 2, 2009. The men were neighbors at the Roadside Inn. Long believed Goldsbury had used some of his drywall mud and he wanted it replaced. The argument escalated to the point where Goldsbury shot Long through the door of Goldsbury’s room.

“When asked if he was trying to kill Long, Goldsbury replied, ‘I didn’t want him comin’ in the door. He said he was gonna kill me.’ He told troopers that Long had been ‘screwin’’ with him for two years and that he thought he ‘needed to end this,’” state Appeals Court Judge Robert Coats wrote in a ruling handed down June 15.

A Palmer jury convicted Goldsbury of attempted murder, assault and other charges June 2, 2009.

Goldsbury appealed, raising two points: the prosecutor in his case should not have implied anything in his closing arguments about Goldsbury’s decision not to testify, and the trial judge, Superior Court Judge Kari Kristiansen, should have merged his assault and attempted murder charges for sentencing purposes.

The appeals court found the prosecutor’s argument improper, but harmless, but agreed with Goldsbury about the merging of the charges.

Coats quotes one particular piece of the argument assistant district attorney Kerry Corliss made.

“We heard all this talk about what was not done in the investigation. But the fact remains, the only people who know what happened that night are (Long) and the defendant. And (Long) testified, came in here and faced all you people, and told you what happened in this case,” prosecutor Kerry Corliss said.

Coats said that was clearly improper, since every U.S. citizen has the right not to incriminate himself at trial and juries are routinely told not to draw any inferences from that decision.

“The obvious implication was that Goldsbury, the only other person who could tell the jury what happened, was more likely guilty because he had not testified,” Coats wrote.

But to win that point on appeal, Goldsbury had to prove the error was serious enough that judge Kristiansen would have had to declare a mistrial had Goldsbury objected to it at trial.

“We believe that at least some reasonable judges could have concluded that the problem was not egregious enough to warrant a mistrial,” Coats wrote.

Though it was the piece that got Goldsbury’s case sent back to Palmer, the sentencing argument is actually less interesting.

Under the double jeopardy clause of the constitution, a person cannot be punished twice for the same crime. But because juries might decide a certain crime is serious enough to warrant, say, a second-degree murder charge but not a first-degree, prosecutors routinely charge multiple counts for the same action.

When a defendant is convicted of multiple counts for the same crime — in Goldsbury’s case, the act of firing the shotgun through the door — the charges merge for sentencing purposes to avoid running afoul of that double jeopardy clause.

That didn’t happen in Goldsbury’s case, so the appeals court had to send it back.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.