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Manrique v. State (2/22/2008) ap-2150

Manrique v. State (2/22/2008) ap-2150

                             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


JOSE G. MANRIQUE, )
) Court of Appeals No. A-9461
Appellant, ) Trial Court No. 3DI-04-539 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2150 February 22, 2008
)
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Dillingham, Donald D. Hopwood, Judge.

          Appearances:    Paul  E.  Malin,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Blair  M.  Christensen,  Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          STEWART, Judge.

          A  jury  convicted  Jose  G. Manrique  of  first-degree
sexual assault and first-degree burglary.1  Manrique claims  that
the superior court erroneously denied his motion for a new trial;
Manrique  contended that he did not receive a fair trial  because
two  jurors  were biased.  We reject Manriques claim  as  to  one
juror,  but  conclude  that Manrique is  entitled  to  a  hearing
regarding the other.
          Manrique   also   argues  that   the   superior   court
improperly failed to refer his case to the three-judge sentencing
panel.  We address this issue and reject it.  The record supports
the  superior courts finding that Manrique did not prove  that  a
referral to the three-judge panel was warranted.

          Facts and proceedings
          On  September 18, 2004, after a day of hiking, A.C. and
some  of  her  friends gathered at A.C.s house in Dillingham  for
dinner.   Manrique  arrived  later with  one  of  A.C.s  friends.
Manrique  and  A.C.  knew  one another from  earlier  hiking  and
fishing  excursions. After too much drinking, A.C.  became  sick,
and  her  girlfriends cleaned her up and put her  to  bed.  A.C.s
girlfriends  stayed and slept in the living room adjoining  A.C.s
bedroom.
          Manrique  and two other men left A.C.s house  at  11:30
p.m.  to  go to Manriques residence where they watched  a  movie.
Manrique returned to A.C.s house at 3:00 a.m. and let himself in.
He entered A.C.s bedroom. A.C. awoke to discover Manrique pulling
her  pants  off.  A.C. and Manrique conversed with  one  another.
Manrique  kissed her. She told him that it was not okay and  that
he  should  leave.  Manrique performed cunnilingus on A.C.   A.C.
tried  to  get  Manrique  off her,  but  he  held  her  down  and
penetrated her vagina with his penis.  Manrique left A.C.s  house
around 4:30 or 5:00 a.m.
          The  jury convicted Manrique of both charges.   At  the
time  of  sentencing, Manrique was 42 years old  and  he  had  no
criminal history.  Superior Court Judge Donald D. Hopwood imposed
a  composite  term  of  9 and 1/2 years with  1  and  1/2   years
suspended.  Manrique appeals.
          Discussion
          Manriques motion for a new trial
          Shortly  after  the jury convicted Manrique,  he  moved
for  a new trial, arguing  that two jurors  Derrick Darrough  and
Connie  Timmerman   fail[ed] to provide relevant  information  in
response  to counsel and the courts questioning during voir  dire
on  April 25, 2005.  Manrique claimed that Darrough withheld  his
social contact with Alisha Downs, a nurse who worked closely with
A.C.,  and he claimed that Timmerman failed to disclose her prior
employment  with SAFE, a Dillingham shelter and advocacy  program
for  domestic violence and sexual assault victims. (SAFE provided
support to A.C. after she reported the sexual assault, and a SAFE
advocate  was  assigned to A.C.)  Manrique supported  his  motion
with notarized statements from several individuals.
          Manrique  argued that his Sixth Amendment right  to  an
impartial jury was violated by Darroughs failure to disclose  the
connection between himself and Downs and to disclose that he  had
been inside A.C.s residence.  Manrique also argued that right was
violated  by Timmermans failure to disclose her prior  employment
          and experience with SAFE. Manrique claimed that he would have
preempted  the jurors if they had provided that information,  and
contended  that  Darrough  may  have  been  excused  for   cause.
Manrique requested an evidentiary hearing.
          The  State argues, as it did below, that Judge  Hopwood
was precluded by Rule 606(b) of the Alaska Rules of Evidence from
considering any of the notarized letters and affidavits  attached
to Manriques motion for a new trial.
          But  that  assertion  is wrong.  Evidence  Rule  606(b)
restricts inquiries into the validity of a jurys verdict  but  it
does  not  bar  inquiries into whether a juror lied or  purposely
withheld information during voir dire.2  Therefore, Judge Hopwood
did not err in considering the affidavits.
          Judge  Hopwood denied Manriques motion for a new trial.
Judge  Hopwood assumed that all of the factual assertions in  the
motion and supporting affidavits, statements, and attachments are
admissible...and...true.  Judge Hopwood pointed out that,  during
voir  dire,  Darrough answered that he knew A.C., and  the  judge
faulted  Manriques  counsel for not inquiring further  into  that
relationship. With respect to the claim that Darrough had been in
A.C.s  residence, Judge Hopwood pointed out that [t]he layout  of
the  house  and grounds was not disputed significantly at  trial.
Any  knowledge the juror had of the property was inconsequential.
The  judge  also  determined that a comment by Darrough  that  he
desired to be on the jury did not suggest misconduct:  Rather, it
connotes  an  interest in the case and in deliberating  with  the
rest of the jurors.
          Regarding Timmermans prior employment with SAFE,  Judge
Hopwood  stated that:  If past education, training or  employment
as  a  sexual assault advocate were important, counsel could have
asked  about  it. But the voir dire of the juror was quite  brief
and neither attorney questioned the juror about these topics.
          Judge  Hopwood  concluded that  both  jurors  responded
truthfully  and adequately to all voir dire questions,  and  that
the  jurors  did not violate their duty as jurors and  would  not
have  been  excused  for  cause had they revealed  the  pertinent
information.
          When   a   court  considers  an  allegation  of   juror
misconduct, a court follows a two-part inquiry:  (1) whether  the
evidence establishes a serious violation of the jurors duty,  and
if  so, (2) whether the violation deprived the complaining  party
of  a  fair trial.3  A serious violation of a jurors duty may  be
demonstrated  by  fraud,  bribery,  forcible  coercion,  or   any
obstruction  of  justice.4   In Fickes  v.  Petrolane-Alaska  Gas
Services,5  the Alaska Supreme Court held that it was  tantamount
to  an  obstruction  of justice that a juror, during  voir  dire,
negligently or intentionally failed to disclose that he  knew  an
important  witness  in  the case, and then during  deliberations,
assured  his fellow jurors that they could rely on his  knowledge
of  that  witnesss reliability and competence.6  And in Swain  v.
State,7 this Court held that it was an obstruction of justice for
a  juror not to reveal her friendship with the victim or the fact
that  she  had  spoken with the victim about the  crime.8    More
recently,  in Soundara v. State,9 we held that it was  error  for
the  trial judge to rule that a jurors late-disclosed information
          did not provide a basis for a challenge for cause without first
making  a  finding  on  the  issue of whether,  during  the  jury
selection  process,  the juror understood the  relevance  of  the
information and consciously withheld the information in the  face
of  questions  and admonitions that reasonably  called  for  this
information[.]10
          Turning  to the jurors at issue in this case,  Darrough
answered  that  I  know Officer Westlake and [A.C.].  Also,  when
Judge  Hopwood asked the potential jurors who has heard  or  read
anything about this case from any source other than what Ive told
you  here?,  Darrough raised his hand.  Manriques attorney  asked
Darrough  if  knowing  A.C. would affect his  ability  to  acquit
Manrique  of sexual assault if the State did not prove  Manriques
guilt beyond a reasonable doubt.  Darrough answered:  No, I  dont
believe  so.  I  dont know her that well.  The  attorney  had  no
additional questions.
          Judge  Hopwood  found  that  Manriques  trial  attorney
failed  to inquire further after Darrough answered that  he  knew
A.C.
          In Soundara, we ruled that:
          An  attorney must ask sufficient  questions,
          and   sufficiently  precise  questions,   to
          elicit   all   desired   information    from
          prospective jurors. If the attorney fails to
          do  this, the attorney will not be heard  to
          complain    later   that   newly    revealed
          information, had it been disclosed  earlier,
          would have prompted the attorney to exercise
          one    or    more   additional    peremptory
          challenges.11
          Based  on  this  record, Judge Hopwood  could  properly
conclude   that  Manrique  had  not  shown  that   Darrough   had
consciously withheld information in the face of questioning  that
reasonably called for the juror to respond.  Darrough did respond
that  he  knew A.C., and Manriques attorney inquired  briefly  as
described above, but he did not put additional questions  to  the
juror.
          Judge  Hopwood  also  denied Manriques  request  for  a
hearing  regarding  juror Timmerman.  Judge Hopwood  accepted  as
true  the notarized statements Manrique provided indicating  that
Timmerman  had  worked  for  SAFE.  Based  on  these  statements,
Manrique   asserted  that  Timmerman  had  a   previous   working
relationship   with  people  who  would  be  testifying   against
defendant.
          Judge  Hopwood noted that the questioning of the  juror
was  brief  and  neither party asked the  juror  about  her  past
employment  (with  SAFE) or her education.  Judge  Hopwood  ruled
that  if the jurors education, training or employment as a sexual
assault  advocate was important, it was the attorneys  obligation
to ask those questions directly.
          However,  the  jurors  were asked  whether  anyone  had
special  knowledge  about the medical field.  Timmerman  did  not
raise  her  hand, but other jurors responded and discussed  their
special   medical  knowledge.   Two  jurors  disclosed  (on   two
different  days  of jury selection) that they  worked  for  SAFE.
          Another juror disclosed that she had counseled people who were
victims of sexual assault.  These jurors were preempted.
          The  jurors  knew that one count charged  in  Manriques
case  was  sexual assault, and they were asked whether they  knew
any victim of a sexual assault. Although the notarized statements
provided  by Manrique indicated that Timmerman worked  for  SAFE,
and  sexual assault victims are one of the groups served  by  the
organization, she did not raise her hand.
          Judge  Hopwood faulted counsel for failing  to  inquire
specifically into Timmermans prior employment or to question  her
about  past education, training or employment as a sexual assault
advocate.    He   ruled  that  Manrique  failed  to   demonstrate
misconduct  and  that Timmerman would not have been  removed  for
cause.
          But,  the test for juror misconduct does not require  a
showing  that  a juror would have been removed for  cause.12   In
Soundara,  this  Court  held that it was error  for  a  judge  to
determine   that  a  juror  would  not  have  successfully   been
challenged  for  cause  without first determining  if  the  juror
understood  the  relevance  of the information  during  the  jury
selection  process and consciously withheld that  information  in
the  face of questions and admonitions that reasonably called for
it.  We ruled that if the trial judge finds that these two things
are  satisfied,  then the test in Swain should  be  applied:  (1)
Would  the  defendant have challenged the juror if the juror  had
not  concealed this information?  (2) Was the improperly withheld
information  directly relevant to the decision of the  defendants
case,  or  was  it instead merely collateral to the issues  being
litigated?  and  (3) Is there a reasonable possibility  that  the
jurors withheld information affected the jurors vote?13
          For  two  days  the  prosecutor and Manriques  attorney
questioned prospective jurors about their beliefs with respect to
sexual  assault, victim and perpetrator stereotypes,  and  how  a
sexual  assault  victim should respond.  If juror  Timmerman  was
aware  of  this earlier questioning, it is reasonable to conclude
that  the  questioning  should  have  alerted  Timmerman  to  the
importance  of revealing her prior employment with SAFE  and  any
specialized  knowledge she had as a result  of  that  employment.
But  when asked if there was anything about this case, what youve
heard  so  far, that makes you think, maybe I shouldnt be  here?,
Timmerman replied, No.
          Therefore,  we  will remand the case  to  the  superior
court for an evidentiary hearing to determine whether there was a
serious  violation of Timmermans duty as a juror.  To succeed  at
this  hearing,  Manrique must show that Timmerman understood  the
potential  relevance of the information that she had worked  with
SAFE,  and  if so, that she consciously withheld that information
in  the face of questions and admonitions reasonably calling  for
its  disclosure.   If  Manrique  establishes  these  points,  the
superior  court must then answer the three-part test  from  Swain
discussed above.  The superior court shall report its findings to
this court and we will resume our consideration of the case.
          Manriques  claim regarding referral to the  three-judge
sentencing panel
          Manrique  was a first-felony offender and faced  an  8-
          year presumptive term for his first-degree sexual assault
conviction.14  There were no statutory aggravating or  mitigating
factors alleged.
          Manrique asked Judge Hopwood to refer his case  to  the
three-judge  sentencing  panel.15  He contended  that:   (1)  the
presumptive term of 8 years would be manifestly unjust or plainly
unfair  under  the facts of his case; and (2) manifest  injustice
would result from failure to consider a non-statutory factor  his
exceptional prospects for rehabilitation, based on his lack of  a
prior record and his good reputation in the community.
          We  consider  the  totality  of  the  circumstances  in
determining  whether the sentencing court erred in not  referring
the  case  to a three-judge panel.16  It was Manriques burden  to
prove  by clear and convincing evidence his exceptional potential
for rehabilitation.
          When  a defendant proposes the non-statutory
          mitigator  of  extraordinary  potential  for
          rehabilitation, it is the defendants  burden
          to  prove  by clear and convincing  evidence
          that   [the  defendant]  can  be  adequately
          treated  in  the community and need  not  be
          incarcerated  for the full presumptive  term
          in   order   to   prevent  future   criminal
          activity.   Such a prediction of  successful
          treatment and non-recidivism should only  be
          made when the sentencing court is reasonably
          satisfied   both  that  it   knows   why   a
          particular crime was committed and that  the
          conditions leading to the criminal act  will
          not  recur  either because the factors  that
          led  the  defendant to commit the crime  are
          readily    correctable   or   because    the
          defendants  criminal conduct  resulted  from
          unusual  environmental stresses unlikely  to
          recur.[17]

          Manrique  argues  that Judge Hopwood  relied  upon  the
mere  fact of [Manriques] conviction for a very serious crime  to
override  his otherwise exceptional prospects for rehabilitation.
And  he points to Kirby v. State18 for the general rule that  the
seriousness  of  a  crime,  standing  alone,  does   not   render
rehabilitation  potential irrelevant.  But  Judge  Hopwood  found
that   Manrique   had  not  proven  exceptional   potential   for
rehabilitation.  He found that Manrique had very good ... but not
exceptional potential for rehabilitation.
          Judge   Hopwood   did   not  dispute   Manriques   good
citizenship,  his  excellent  neighborly  spirit,  his  excellent
parenting.   But  he  concluded  that,  in  determining   whether
Manrique  demonstrated exceptional prospects for  rehabilitation,
he  would not consider Manriques arguments suggesting that  A.C.s
consent was ambiguous because  [t]he jury found and decided  that
it  had  been proven beyond a reasonable doubt that the defendant
committed  the  offense of sexual assault in  the  first  degree.
Judge  Hopwood  essentially reasoned that  Manriques  refusal  to
accept  responsibility  for the sexual  assault  weighed  against
          finding that Manriques potential for rehabilitation was
exceptional:   Because...of the defendants  position  about  what
happened  and  what  his  prospects are and  how  he  intends  to
proceed,  I  cant find that there are exceptional  prospects  for
rehabilitation.    When   a  defendant   does   not   acknowledge
responsibility  for a crime, the defendant has  not  advanced  an
explanation for the crime or provided the sentencing  judge  with
convincing evidence that the conditions leading to the conviction
would not reoccur.19
          We  have  reviewed the sentencing record.   The  record
supports  Judge Hopwoods ruling that Manrique had not proven  the
non-statutory  mitigating  factor of  exceptional  prospects  for
rehabilitation.
          Manrique   also   contends  that  imposition   of   the
unadjusted 8-year presumptive term would be manifestly unjust and
that  Judge  Hopwood  improperly failed  to  conclude  otherwise.
Manrique relies on his contention that A.C.s lack of consent  was
ambivalent,  that  Manriques  offense  was  isolated,  and   that
Manriques family was impacted by the conviction.
          In  order  to  find  manifest injustice,  a  sentencing
judge must find that there are specific circumstances that make a
defendant  or his conduct significantly different than a  typical
offender or a typical offense.20
          The   record   supports  Judge  Hopwoods  ruling   that
Manrique had not proven that he was significantly different  from
a   typical  offender  or  that  his  conduct  was  significantly
different  from  a  typical offense.  Manrique was  convicted  of
first-degree sexual assault and first-degree burglary.  The jurys
verdicts established that Manrique entered A.C.s house (at night)
with  the  intent to sexually assault A.C., and that he  followed
through   with   that  intent.   He  performed  cunnilingus   and
penetrated A.C. vaginally with his penis, with reckless disregard
for her lack of consent.

          Conclusion
          We  AFFIRM  Judge  Hopwoods ruling rejecting  Manriques
request  to  refer the case to the three-judge sentencing  panel.
We AFFIRM Judge Hopwoods ruling rejecting Manriques motion for  a
new trial based on his claim regarding juror Darrough.  We remand
the  case  for a hearing on juror Timmerman.  The superior  court
shall transmit its findings on this issue to this court within 90
days.   After the superior court transmits its findings, we  will
resume our consideration of that remaining issue.
_______________________________
     1 AS 11.41.410(a)(1) & AS 11.46.300(a)(1), respectively.

2  See  Stephen  A.  Saltzburg, Michael M. Martin,  &  Daniel  J.
Capra,  2  Federal  Rules  of Evidence  Manual  (9th  ed.  2006),
606.02[3]  at 606-5; Hard v. Burlington Northern R.R.,  812  F.2d
482, 485 (9th Cir. 1987).

     3 See West v. State, 409 P.2d 847, 852 (Alaska 1966); Fickes
v.  Petrolane-Alaska  Gas Services, 628  P.2d  908,  910  (Alaska
1981).

     4 West, 409 P.2d at 852.

     5 628 P.2d 908 (Alaska 1981).

     6 Fickes, 628 P.2d at 910.

     7 817 P.2d 927 (Alaska App. 1991).

     8 Id. at 935.

     9 107 P.3d 290 (Alaska App. 2005).

10   Id. at 298.

     11   Id. at 296.

12   See Fickes, 628 P.2d at 910-11.

     13   Soundara, 107 P.3d at 297-98 (citing Swain, 817 P.2d at
935).

14   See former AS 12.55.125(i)(1)(A).

     15   See AS 12.55.175.

     16    Lloyd  v.  State, 672 P.2d 152, 154, 156 (Alaska  App.
1983).

     17    Beltz  v.  State,  980  P.2d  474,  481  (Alaska  App.
1999)(citing  Lepley v. State, 807 P.2d 1095, 1100  (Alaska  App.
1991).

     18   748 P.2d 757, 766 (Alaska App. 1987).

     19   See Beltz, 980 P.2d at 481.

     20   Id. at 480.

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