Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

SUDDOCK, Judge.

A jury convicted Ryan Angelo Sargento of first-degree murder and evidence tampering.1 Superior Court Judge Michael Spaan sentenced him to serve a composite term of 85 years.

On appeal, Sargento claims that the superior court erred (1) because the court did not dismiss a juror who, mid-trial, was overheard by another juror commenting that she knew that Sargento "did it" and that he would "play the self-defense card"; (2) because the court denied Sargento's request to instruct the jury on the heat-of-passion defense; and (3) because the court accepted Sargento's waiver of his right to be present for an in-chambers conference between the judge and the trial attorneys without first identifying the topic for discussion. Sargento also claims that his sentence is excessive. For the reasons explained below, we affirm Sargento's convictions and sentence.

Background facts

In June 2010 Sargento shot and killed John Taylor. Both men were low-level drug dealers. At his trial, Sargento testified that two days prior to the killing, Taylor had assaulted him by holding a pistol to his back and forcing him to say that he was "a little bitch." Sargento testified that soon thereafter, Taylor concluded that Sargento had stolen his cell phone to obtain the phone numbers of Taylor's drug customers.

Two days after the alleged assault, Taylor went looking for Sargento, apparently to retrieve the cell phone. Sargento, who had spent the night with friends in an Anchorage apartment, had parked his car in the parking lot of a nearby building as a precaution to evade Taylor. When Taylor knocked on the apartment door and shouted for Sargento, Sargento quieted the occupants until Taylor departed. Sargento then waited half an hour before leaving the apartment to return to his car. But he first checked to see that his pistol was loaded, with a bullet chambered.

As he walked toward his car, he realized that Taylor was parked nearby and was waiting for him. Sargento testified that Taylor emerged from the car and walked aggressively toward him; he appeared to be reaching under his clothing for a gun. Sargento said that Taylor was always armed.

Sargento started shooting at Taylor, who tried to flee. Sargento pursued, firing a total of eight rounds, five of which hit Taylor. Sargento fired the last two shots as Taylor lay on the ground. His bullets expended, Sargento used the pistol to club the dying Taylor on the head.

Sargento fled on foot. A police canine unit tracked Sargento to a nearby shed. The police discovered Sargento's pistol some distance away. Taylor was not armed.

A grand jury indicted Sargento for first- and second-degree murder and for evidence tampering. At trial Sargento testified that he acted in self-defense. The jury rejected Sargento's defense and convicted him of all three charges.

The superior court sentenced Sargento to serve 85 years for the first-degree murder, and to a concurrent term of 2 years for the tampering conviction. This appeal followed.

The juror's comment

During jury selection Sargento's defense attorney questioned the prospective jurors extensively about self-defense. Later, during his opening statement, Sargento's attorney told the jury that Sargento killed Taylor in self-defense. Shortly thereafter, during the State's case-in-chief, a juror named R.G. reported to the trial judge's in-court clerk that as she was walking to her car with another juror named S.T., S.T. said words to the effect of, "I know Sargento did it." R.G. did not wish to be identified as the source of this information. The in-court clerk relayed R.G.'s report to the judge, who then conferred with the attorneys regarding how to proceed.

The judge proposed questioning all of the jurors to learn whether any of them had uttered or overheard any comments on the evidence, or otherwise formed any premature conclusion about the case. The judge recognized that this inquiry might have the detrimental side effect of revealing R.G.'s identity and so affecting the "tone" of the jury's deliberation by alienating this juror from the other jurors.

The defense attorney agreed with the judge's concern, stating that "[w]hat's important is that we not bust out [the reporting juror] in any way, shape, or form[.] . . . I don't think that we have to disclose that a juror. . . has told us something." He suggested that instead of questioning S.T. at all, the court simply appoint her as the alternate at the end of the trial, and then dismiss her. The judge initially rejected this course because, absent inquiry into S.T.'s state of mind, it would effectively grant the defense an extra peremptory challenge. But in deference to the defense attorney's wish to conceal R.G.'s identity, the judge promised to be "as delicate as [he could be]" in questioning the individual jurors.

The judge then queried each juror individually as to whether the juror had heard any juror discuss the case, or expressed any premature conclusions about the case. Prior to interviewing S.T., the judge again conferred with the parties. The prosecutor urged the judge to question her with specificity about the reported incident, without trying to protect R.G.'s identity. The defense attorney disagreed and advocated general questioning that did not disclose R.G.'s report. The defense attorney acknowledged that he did not expect such an inquiry to be productive — he foresaw that S.T. would deny having commented on the evidence. Hearing this, the judge renewed his offer to question her thoroughly about R.G.'s report:

But the defense attorney once again declined the judge's offer; he reiterated that he "would like to do whatever it takes not to bust out [R.G.]" Acquiescing in the defense attorney's choice, the judge asked S.T. if she was aware of any juror, herself included, who might have expressed a conclusion on the evidence. She replied in the negative. The defense attorney asked no follow-up questions, although he had earlier been authorized to do so.

The judge later addressed R.G. He related to her his understanding, based on what the in-court clerk had earlier conveyed to him, that as R.G. was walking to the parking garage with S.T., S.T. commented that she knew the defendant "did it." R.G. confirmed this. She added that S.T. also said that the defense would probably "play the self-defense card." R.G. said that she then cautioned S.T. that they "shouldn't be talking about that" and changed the subject. According to R.G., S.T. did not comment on the merits of a self-defense claim. The defense attorney again posed no follow-up questions.

When the judge finished questioning the jury, he ruled that the evidence did not justify dismissing S.T. from the jury but that he would later reconsider the defense attorney's proposal to designate S.T. as the alternate at trial's end and to dismiss her at that point:

Sargento now concedes that the judge's factual findings as to what S.T. said were not clearly erroneous, but he argues that the judge erred by failing to interpret those remarks as proof of bias requiring S.T.'s dismissal as a juror. But S.T.'s remarks were ambiguous. On one hand, they could be interpreted to mean that she had prematurely concluded that Sargento was guilty because he "did it," in the sense that he shot Taylor in cold blood, and that his self-defense claim lacked merit. Alternatively, her remarks could simply reflect the obvious: that Sargento's attorney had already conceded that Sargento shot Taylor, and that Sargento would likely claim self-defense (as the defense attorney indicated in his opening statement).

And to the extent the judge's questions to S.T. failed to resolve this ambiguity, that was exactly the outcome the defense attorney invited — by urging the judge to ask only general questions that would not reveal R.G. as the source of this information. The judge did not abuse his discretion by following the defense attorney's chosen course. Because the ensuing non-specific questions posed to S.T. revealed no basis for a challenge for cause based on her ambiguous comments, the judge properly declined to excuse her from the jury.

And as Sargento admits in his brief, the defense attorney did not later renew his request that S.T. be selected and excused when it came time to draw an alternate juror. Because Sargento's attorney failed to obtain a ruling on this matter at the end of trial, he has waived his claim on appeal.2

Sargento also claims that the judge improperly ignored an untruthful denial by S.T. that she had commented on the evidence. But S.T. may not have recalled her brief remarks to R.G., or may not have considered them to be a comment on the evidence (since she was basically repeating what the defense attorney had already said). Again, the tactical choice by the defense attorney that the judge should only make a superficial inquiry of S.T. left these questions unanswered.

Finally, Sargento argues that S.T. was racially biased because her use of the phrase "play the self-defense card" evokes the phrase "play the race card." But Sargento's attorney did not raise this argument in the superior court, so we do not consider it now.

We conclude that the trial judge committed no error.

Sargento's request for a heat-of-passion jury instruction

Sargento requested that the jury be instructed on a heat-of-passion defense, arguing that the evidence at trial supported an inference that he shot and killed Taylor in the heat of passion arising from Taylor's earlier assault on, and humilation of, Sargento. The judge declined to give the requested instruction, concluding that any anger on Sargento's part would have dissipated over the course of the intervening two days.

On appeal, Sargento argues a different theory of heat of passion: that his encounter with Taylor in the parking lot, and Taylor's act of reaching into his clothes, placed him in fear for his life. But the defense attorney never argued this alternative fear-based theory to the trial judge. Accordingly, Sargento failed to preserve the claim of error he now raises.3

Sargento waived his right to be present in chambers when the defense attorney discussed an issue with the judge

Sargento next argues that the judge erred when he accepted Sargento's waiver of his right to be present while his attorney discussed an issue with the judge and the prosecutor in chambers. This issue arose because Sargento's attorney requested in open court to speak privately to the judge about a matter (later revealed to be an encounter between the defense attorney and the victim's brother). The attorney represented that Sargento was aware of the facts of the matter. But rather than close the courtroom to discuss this matter, the judge asked if the attorneys could discuss the matter in chambers and whether Sargento would waive his right to be present.

After conferring with Sargento (a conversation that was not transcribed), the defense attorney told the judge, "Yes, sir, he waives his presence." The judge then addressed Sargento personally, stating, "I'm going to go discuss some matters with the lawyers. Your lawyer. . . told me that you waived your right to be there. Is that correct?" Sargento answered, "Yes — yes, Your Honor."

In chambers, Sargento's attorney disclosed that he had met the victim's brother in a bar. Among other things, the brother asked him to "fix the trial" to ensure that Sargento would be convicted. The brother also threatened that "we can get to [Sargento] in jail." The defense attorney told the trial judge that when he told Sargento about this encounter, he did not tell Sargento about this threat. The attorney explained to the judge that he had consulted with the Alaska Bar Association's ethics counsel about the encounter, and he assured the judge that the incident would not impact his ability to represent Sargento.

Under both the United States Constitution and the Alaska Constitution, a defendant has the right to be present at every stage of the trial.4 But a defendant may waive his right to be present for a particular proceeding.5 Here, the record shows that Sargento did that.

Sargento concedes that he expressly waived his right to be present, but he claims that his waiver was invalid. He asserts that when he agreed to waive his presence, "nothing was stated that described what the hearing was to address."

Based on the existing record, Sargento has failed to prove error.

Sargento's 85-year sentence is not excessive

Finally, Sargento argues that his composite sentence of 85 years to serve is excessive. He points out that he lacked a felony record, had a good employment record, benefitted from a stable family background, and enjoyed the support of his family and other members of the community. He asserts that the judge should have considered the heat-of-passion defense — a defense implicitly rejected by the jury when it convicted Sargento of first-degree murder — as an "imperfect mitigating sentencing factor." And he argues that the victim initiated the fatal encounter by stalking him.

The penalty for first-degree murder is 20 to 99 years.6 The presumptive sentencing range for a first felony offender convicted of evidence tampering, a class C felony, is 0 to 2 years.7 Sargento thus faced a maximum composite sentence of 101 years for the two convictions. The judge sentenced him to a composite term of 85 years to serve — 85 years for the murder conviction, and a concurrent 2 years for evidence tampering.

Sentencing decisions are reviewed under the clearly mistaken standard, which accords deference to the sentencing court. "[T]he clearly mistaken test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify."8 This test is "founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within a permissible range of reasonable sentences."9

The judge found that Sargento shot Taylor repeatedly and then clubbed him on the head with the firearm. The judge declared that Sargento effectively "executed" Taylor, letting him "bleed [to death] out in the street when Mr. Sargento hid in a storage shed." The judge found that this was not "whoops, I was scared, I thought he was armed. This was an assassination."

The judge acknowledged that Sargento had the support of his family and friends, but he found himself "guarded on [Sargento's] prospects [for rehabilitation]." This was because Sargento had already been given a break after a prior conviction: He had attended the Alaska Military Youth Academy — and then he had received a governor's pardon. Sargento "was running with a new set of people, selling drugs." And the judge pointed out that he did not know why Sargento "wanted to end the life of Mr. Taylor. Was it for revenge, to make a showing?"

In light of these findings, the judge placed preeminent weight on the sentencing factors of isolation, deterrence, and community condemnation. With regard to isolation, the judge reiterated that Sargento's conduct was "violent behavior; it was predatory behavior. . . . I find it was a cold-blooded murder, it was an execution." But recognizing that Sargento was young and had no felony record, the judge imposed a sentence below the maximum term.

Given these findings, Sargento has not shown that the sentence was clearly mistaken.10

Conclusion

We AFFIRM the judgment and sentence of the superior court.