BOLGER, Judge.
Michael A. Silvera was convicted of second-degree assault after he cut David Moore in the face with a knife during an argument between Moore and Silvera's fiancée. Silvera argues that there was insufficient evidence for the jury to find that his conduct was not justified in defense of his fiancée. We conclude after reviewing the record that there was sufficient evidence for the jury to find that Silvera's assault was not justified.
Silvera also argues, for the first time on appeal, that he was entitled to an evidentiary hearing on his claim that the prosecutor rolled his eyes and engaged in other nonverbal conduct that impermissibly conveyed his personal opinion of the evidence to the jury. We conclude that Silvera has not shown that the court's failure to hold a hearing was plain error.
Silvera attacks his sentence on two grounds. He argues that the sentencing court was clearly mistaken in refusing to refer his case to the three-judge sentencing panel for consideration of his extraordinary potential for rehabilitation and the harsh collateral consequences of his one-year sentence. He also argues that the sentencing court erred by rejecting his claim that his assault was mitigated due to "serious provocation" by the victim. We conclude that the sentencing court was not clearly mistaken in refusing to refer Silvera's case to the three-judge panel. But we conclude that the sentencing court applied the wrong legal test in ruling that Silvera had failed to establish the statutory mitigating factor of "serious provocation" by the victim. We therefore remand the case to the superior court for reconsideration of this issue.
Early on the morning of June 3, 2007, Richard Weinstein, a taxicab driver in Nome, picked up passengers outside a bar called the Dexter Roadhouse, which had just closed for the night. All of the passengers had been drinking. Michael Silvera sat in the front passenger seat of the cab and his fiancée, Andrea Surina, sat next to him on the same seat, sitting sideways facing the driver. David Moore sat on the bench seat directly behind the driver, and his friend, Chris Christensen, sat next to him. There was another bench seat behind that, occupied by Briday Green, a friend of Silvera's, and Green's companion, John MacInerney.
Surina asked Weinstein to take the scenic route home so they could look for wildlife. Moore objected, saying he wanted to go directly home because he had to work that morning. An argument ensued. Silvera managed to calm Surina down, bringing a temporary end to the argument. But then the argument "flared up like a grease fire." According to Silvera, Moore called Surina a "whore." Weinstein testified that Surina and Silvera both jumped out of their seat toward Moore, and that Silvera said, "I'm going to kill you," and cut Moore in the face with a knife. MacInerney intervened, grabbing Silvera's arm and holding it, even though Silvera yelled at him to let go. In an effort to avoid more violence, Weinstein dropped Silvera and Surina off at their residence before driving Moore to the emergency room. Once all the other passengers had been delivered to their destinations, Weinstein reported the incident to the police. Moore had a knife wound to the left temple that required nine stitches and left a scar.
Nome Police Officers Greg Bonham and Mark Harreus interviewed Silvera and Surina at their residence later that morning. Silvera initially denied cutting Moore with a knife, saying he used his fist. But before long Silvera acknowledged that he had a knife in his hand when he hit Moore, and he retrieved the knife and gave it to the police. He had already washed the blood off the knife. The knife was a lock-back knife with a three-inch blade and a thumbscrew that made it easy to open quickly.
At trial, Silvera testified that he attacked Moore to protect Surina. He said Moore kicked Surina and called her a whore, and
Silvera called several witnesses on his behalf. Dennis Hammond, another cab driver, testified that he heard Weinstein tell another cab driver on the dispatch line that he did not know what happened during the incident because he was concentrating on driving. Briday Green, the friend of Silvera's who had been riding in the back seat of the cab, testified that she saw the victim, Moore, get out of his seat and move toward Surina and Silvera, and that MacInerney had to restrain Moore. She said she never saw Silvera move from his seat. But Green admitted on cross-examination that this was not what she told the police; she told the police that Silvera may have gone after Moore twice, and that Surina and MacInerney had to restrain Silvera.
At the close of the State's case, Silvera made a motion for judgment of acquittal, which Superior Court Judge Ben J. Esch denied.
In closing argument, Silvera claimed that his conduct was justified because he acted in defense of Surina. The jury rejected this defense and convicted Silvera of second-degree assault.
After the jury's verdict, but before sentencing, Silvera filed a motion for a new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial expressions by the prosecutor throughout the trial. Silvera argued that this conduct deprived him of a fair trial because it conveyed the prosecutor's personal opinion about his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts not in evidence. Judge Esch denied the motion, ruling that Alaska Evidence Rule 606(b) prohibited this inquiry into the subjective mental processes of the jurors.
At sentencing, Judge Esch rejected Silvera's proposed mitigators and his request that the case be referred to the three-judge panel. He sentenced Silvera to two years with one year suspended. Silvera appeals.
Silvera's first claim is that there was insufficient evidence to convict him of second-degree assault. In ruling on a claim of insufficient evidence, this court must consider the evidence in the light most favorable to the jury's verdict and determine whether a fair-minded juror could find guilt beyond a reasonable doubt.
As charged in this case, second-degree assault required proof that Silvera intended to cause physical injury to Moore, and that Silvera caused this injury "by means of a dangerous instrument."
A person is justified in using force to defend a third person if he reasonably believes the third person would be justified in using that degree of force in self-defense.
Silvera argues that the State did not present enough evidence that he knew his conduct posed a risk of death or serious physical injury to prove that he used deadly force when he struck Moore, given his testimony that he was not aware a knife was in his hand. But the jury was not required to believe Silvera's testimony on this issue. Moreover, we need not decide whether the State presented enough evidence to prove that Silvera used deadly force, because a fairminded juror could find based on the evidence in this case that Silvera was not justified in using even nondeadly force in defense of Surina.
At trial, Moore testified that he had a heated argument with Silvera and Surina, but that the argument was not physical until Silvera attacked him with a knife. Weinstein, the cab driver, testified that he did not see Moore leave his seat or act aggressively, and that he did not hear Moore say anything to precipitate Silvera's attack. (Green and Silvera both testified that Moore called Surina a "whore.") Weinstein said he saw Surina leap into the back seat, and that Silvera followed almost immediately. Weinstein heard Silvera say, "I'm going to kill you" twice. Then someone in the cab said, "Oh my God. You're cut, you're bleeding." Weinstein saw MacInerney grab Silvera's arm and hold it, even though Silvera yelled at him to let go. Weinstein said when he reported the incident to the police, he showed them that there was blood on the seat where Moore had been sitting.
Christensen, who was sitting next to Moore, testified that he did not see Moore do anything to provoke the attack. Green, who was sitting in the back seat, testified that Moore got out of his seat and moved toward Surina and Silvera, and that Silvera never moved from the front seat. But Green admitted that she did not tell the police this when she was interviewed shortly after the assault. At that time, she told the police that Silvera may have gone after Moore twice, and that Surina and MacInerney had to hold Silvera back.
Given this record, a fair-minded juror could find that there was no violence or threat of violence until Silvera leaped into the back seat and cut Moore in the face with a knife. A fair-minded juror could also find that Silvera threatened to kill Moore twice, and that other passengers had to restrain Silvera from assaulting Moore a second time. Lastly, a fair-minded juror could find that a reasonable person in Silvera's position would not conclude based on this evidence that any force, even nondeadly force, was necessary to defend Surina against Moore.
Silvera argues that no reasonable juror could reject his testimony that Moore kicked Surina and made an aggressive move toward her. He argues that Weinstein's contrary testimony that the attack on Moore was unprovoked was not credible because Weinstein was watching the road and could not have seen what Moore was doing in the back seat. In other words, Silvera argues that we should view the evidence in the light most favorable to him, crediting his testimony about Moore's conduct and discrediting the testimony of Weinstein, Moore, and Christensen. But when we rule on a claim of
After the jury's verdict, Silvera's attorney filed a motion for a new trial, asserting that a number of jurors had witnessed eye-rolling and other nonverbal conduct by the prosecutor that conveyed the prosecutor's personal opinion regarding Silvera's guilt and veracity and suggested that the prosecutor had personal knowledge of facts outside the record. Silvera's attorney claimed she had not seen this conduct during trial due to the layout of the courtroom, and therefore did not object or request a curative instruction. The attorney supported her motion with an affidavit stating that a number of jurors told her they observed this conduct by the prosecutor throughout the trial. The attorney's affidavit went on to relate the influence this conduct had on the jury's deliberations.
Based on this affidavit, Judge Esch found that "it appears ... that jurors did receive information that [the prosecutor] was communicating with body language or otherwise." But Judge Esch ruled that Evidence Rule 606(b) barred him from considering any evidence concerning what the jurors observed, because that inquiry would necessarily take account of the jurors' mental processes.
Silvera filed a motion for reconsideration, arguing that the trial court had misinterpreted Evidence Rule 606(b). Silvera argued that it was unnecessary for the court to inquire into the jurors' subjective interpretations of the prosecutor's conduct to establish that a new trial was warranted — the court only had to find that the prosecutor's conduct "in fact convey[ed] a personal opinion and [that] it is objectively likely that any one of the jurors would be influenced by that personal opinion." Silvera did not ask the court for an evidentiary hearing; instead, he submitted additional affidavits recounting the interviews with the jurors, and asked the court to grant him a new trial based on those affidavits. Judge Esch did not rule on the motion for reconsideration, so it was deemed denied.
Silvera now argues that Judge Esch erred by not granting him an evidentiary hearing "to determine what, if anything, the jurors witnessed." Because Silvera did not ask for this hearing in superior court, he must show plain error.
The Alaska Supreme Court and this court have held that it is improper for a prosecuting attorney to express a personal opinion concerning the credibility of a witness or the guilt of the accused.
At issue in Darling were remarks the prosecutor made during his closing argument to the jury, which were part of the formal record of the trial.
In this case, the conduct at issue was apparently witnessed only by the jury and did not come to the attention of Silvera's attorney or the trial judge until after the jury returned its verdict. Consequently, the only evidence Silvera presented to Judge Esch were the assertions of jurors.
Evidence Rule 606(b) generally prohibits parties from offering juror testimony or affidavits to impeach the jury's verdict. The aim of this limitation is "to protect jurors from harassment, to encourage free jury deliberation, and to promote the finality of verdicts."
Even in these limited circumstances courts may not consider juror testimony or affidavits that concern the effect of extraneous information or outside influence on a juror's reasoning process. A court evaluating the likelihood that a juror's vote was influenced by potentially prejudicial matter outside the record "must apply an objective test and is precluded from considering evidence concerning the subjective impact of the extraneous matter on any juror."
Citing this authority, Silvera argues that the superior court should have considered the jurors' assertions in the affidavits he offered to the extent that they established the objective facts of the prosecutor's eye-rolling and other nonverbal conduct.
It could be argued that the juror affidavits submitted by Silvera were wholly inadmissible. The relevant portion of Evidence Rule 606(b) states that a court is prohibited from receiving the testimony or affidavits of jurors when offered to impeach a verdict, unless the testimony or affidavits relate to "whether extraneous prejudicial information was improperly brought to the jury's attention." This court has stated that, for purposes of Rule 606(b), "extraneous" information means information that reaches the jurors other than through the normal trial process. Thus, when a lawyer engages in improper argument, or when a witness gives a non-responsive answer, or offers objectionable testimony,
We are aware of some federal authority suggesting that there may be occasions when information that reaches the jury through the normal trial process may still be deemed "extraneous" for purposes of the federal analog to Evidence Rule 606(b).
During argument on Silvera's new trial motion, Silvera's attorney submitted an affidavit summarizing what the jurors had told her about the prosecutor's conduct. For purposes of this decision, we accept as true the statements attributed to the jurors in this affidavit. We do not consider the additional affidavits attached to Silvera's motion for reconsideration.
To some degree, a lawyer's body language or facial reactions to the testimony of witnesses presented by the opposing party might be viewed as a natural occurrence during a heated trial. The affidavit that Silvera submitted does not connect the prosecutor's challenged conduct to the testimony of any particular witness or to any particular piece of evidence; nor does the affidavit establish with any certainty how pervasive the prosecutor's reactions were, or whether the prosecutor appeared to be intentionally directing these reactions to the members of the jury.
Nor can we speculate as to how the prosecutor's body language or facial expressions affected the jurors' deliberations. Indeed, we must presume that the jurors followed the trial judge's instructions that the arguments of counsel were not evidence, and that the jurors should disregard counsels' characterizations of the evidence to the extent that these characterizations departed from the testimony actually given in court.
We thus conclude that Silvera has not met his burden to show that he was prejudiced by the prosecutor's conduct.
Silvera next argues that Judge Esch erred in rejecting two of his proposed mitigators: that the defendant in committing felony assault acted with serious provocation from the victim,
The existence of a mitigating factor is a mixed question of law and fact. On review, we must first assess the nature of the defendant's conduct — a factual finding reviewed for clear error — and then make the legal determination as to whether that conduct falls within the mitigating factor defined by statute.
Because Silvera was convicted of second-degree assault, only the (d)(6) mitigator applies in his case. As we explained in Smith v. State
For purposes of the (d)(6) mitigator, "serious provocation" has the meaning applied to the heat of passion defense
The nature of the provocation in this case is not entirely clear. The jury's verdict did not necessarily resolve whether Silvera cut Moore with a knife because Moore called Surina a "whore" or, as Silvera claimed, because Moore kicked Surina and came at her aggressively. Nor did Judge Esch make findings on this issue at sentencing. Instead, Judge Esch ruled as a matter of law that Moore's conduct did not amount to "provocation" because it was not directed at Silvera or intended to influence his actions or emotions.
Judge Esch's ruling was based on our decision in Roark v. State.
At sentencing, Roark unsuccessfully sought mitigator (d)(7), arguing that Taylor had "provoked the crime to a significant degree."
As this explanation makes clear, we did not declare in Roark that a finding of significant provocation requires in every case conduct that is directed at the defendant or intended to influence the defendant's actions or emotions. Rather, we held that the provocation in Roark — behavior that was not directed at the defendant (or anyone else), and that only incidentally caused the defendant's offense — fell at the far end of a continuum, and could not properly be viewed as significant provocation. Although in Roark we addressed mitigator (d)(7), we see no logical reason why our holding, which relied on the common meaning of "provoke," would not also apply to the (d)(6) "serious provocation" mitigator.
Judge Esch's interpretation of Roark would preclude a finding of provocation in any case in which the provocation was directed at a third party. This broad interpretation of Roark would prohibit a finding of serious provocation in circumstances in which the heat of passion defense has traditionally been allowed.
Because Judge Esch rejected mitigator (d)(6) on the ground that Moore's provocation was not directed at, or intended to influence, Silvera, the judge did not resolve disputed facts as to what type of provocation occurred; nor did he consider whether that provocation, if any, established the (d)(6) mitigator in other respects. We therefore remand the case for reconsideration of this question. We note that the (d)(6) mitigator requires provocation "sufficient to excite an intense passion in a reasonable person in the defendant's situation"
Silvera asked the sentencing court to refer his case to a three-judge panel for consideration of two non-statutory mitigating factors: exceptionally good potential for rehabilitation and harsh collateral consequences.
A defendant is entitled to have his case referred to the three-judge sentencing panel if he proves two things by clear and convincing evidence: a mitigating factor not listed in AS 12.55.155(d), and that "it would be manifestly unjust to fail to adjust the presumptive term based on [this] non-statutory factor."
In sentencing Silvera to two years with one year suspended for second-degree assault, Judge Esch stressed the Chaney criteria of deterrence of others and reaffirmation of societal norms.
Silvera argues that the sentencing court's rejection of this factor was error given the court's explicit findings that he "had no need for rehabilitation and was not a danger [to society]."
To establish the non-statutory mitigating factor of extraordinary prospects for rehabilitation, it was not enough for Silvera to show that he was genuinely remorseful and that his prospects for rehabilitation were better than the average
Silvera also argues that the harsh collateral consequences of a sentence within the presumptive range required Judge Esch to refer his case to the three-judge panel. Silvera identified the harsh collateral consequences as deportation if he received a sentence of one year or more and the concomitant loss of the quality medical care he currently receives through the Veterans Administration. He pointed out that under the immigration code, a defendant convicted of a crime of violence and sentenced to at least one year, including suspended time, is guilty of an "aggravated felony" and is subject to deportation.
Collateral consequences, including deportation, are appropriate sentencing considerations,
Because the superior court applied the wrong legal analysis in rejecting the "serious provocation" mitigator at sentencing, we REMAND the case for reconsideration of that issue. We do not retain jurisdiction. In other respects, we AFFIRM the decisions of the superior court.
