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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL A. SILVERA, )
) Court of Appeals No. A-10269
Appellant, ) Trial Court No. 2NO-07-359 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2285 - December 17, 2010
Appeal from the Superior Court, Second Judicial District, Nome,
Ben J. Esch, Judge.
Appearances: Renee McFarland, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
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
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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.
Facts and proceedings
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
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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 then reached toward Surina as if he was
going to hit her. Silvera said he pushed Surina out of the way and got up and hit Moore.
He said he never intended to use a knife but had absent-mindedly been fiddling with the
knife in his pocket. He said he was surprised when he got home and saw blood on the
knife.
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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.1
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.
1 AS 11.41.210(a)(1).
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Discussion
There was sufficient evidence to convict Silvera of second-degree assault.
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.2
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."3 Silvera does not dispute the State's proof of these elements
of the offense. Instead, he claims that there was insufficient evidence for the jury to find
that his conduct was not justified. Because Silvera offered some evidence that he acted
in defense of Surina, the State had to prove beyond a reasonable doubt that Silvera did
not act reasonably in defense of others.
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.4
2 Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009);Daniels v. State, 767 P.2d
1163, 1167 (Alaska App. 1989).
3 AS 11.41.210(a)(1).
4 AS 11.81.340 provides:
A person is justified in using force upon another when and to the
extent the person reasonably believes it is necessary to defend a third
person when, under the circumstances as the person claiming defense
of another reasonably believes them to be, the third person would be
justified under AS 11.81.330 or 11.81.335 in using that degree of force
for self-defense.
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A person is justified in using nondeadly force5 when and to the extent the person
reasonably believes it is necessary to defend against unlawful force by the other person.6
A person is justified in using deadly force when and to the extent the person
reasonably believes it is necessary to defend against death or serious physical injury.7
A person uses "deadly force" when he uses force knowing that the circumstances create
a substantial risk of death or serious physical injury.8
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 fair-minded 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.
5 See AS 11.81.900(b)(38) ("'nondeadly force' means force other than deadly
force").
6 AS 11.81.330(a).
7 AS 11.81.335(a)(1)-(2).
8 AS 11.81.900(b)(16).
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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
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insufficient evidence, we do not weigh the credibility of witnesses, we view the evidence
in the light most favorable to the jury's verdict.9 Applying this rule, we conclude that the
State presented sufficient evidence for a fair-minded juror to find that Silvera's assault
on Moore was not justified.
The court's failure to hold an evidentiary hearing to determine whether the
prosecutor engaged in misconduct was not plain error .
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.10
9 Anthony v. State , 521 P.2d 486, 492 (Alaska 1974).
10 Evidence Rule 606(b) provides that:
Upon an inquiry into the validity of a verdict or indictment, a juror
may not be questioned as to any matter or statement occurring
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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.11
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.12
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
during the course of the jury's deliberations or to the effect of any
matter or statement upon that or any other juror's mind or emotions
as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes in connection
therewith, except that a juror may testify on the question whether
extraneous prejudicial information was improperly brought to the
jury's attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may a juror's affidavit or
evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received for
these purposes.
11 See Alaska R. Crim. P. 42(k)(4).
12 See Owen M. v. State, Office of Children's Servs., 120 P.3d 201, 203 (Alaska
2005).
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or the guilt of the accused.13 In Darling v. State, the supreme court explained the
reasoning behind this rule:
The vice sought to be guarded against by such a rule is the
introduction into evidence of the unsworn testimony of
counsel in which he states either explicitly or implicitly that
his opinion as to the credibility of a witness is based upon
personal knowledge of the witness.14
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. 15
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."16 Because of the competing interest in "ensuring that verdicts are accurate and
that they are reached through a fair process,"17 Rule 606(b) contains two express
exceptions: it allows juror testimony or affidavits if they are offered to establish (1)
"whether extraneous prejudicial information was improperly brought to the jury's
13 Darling v. State, 520 P.2d 793, 794 (Alaska 1974); Noel v. State, 754 P.2d 280,
283 (Alaska App. 1988).
14 Darling, 520 P.2d at 794.
15 Id. at 793-94.
16 Titus v. State, 963 P.2d 258, 261 (Alaska 1998).
17 Id.
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attention" or (2) "whether any outside influence was improperly brought to bear upon any
juror." 18
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."19 This approach, articulated in the commentary to ABA
Standard 8-3.7,
directs the court's inquiry only to the fact of exposure to
extrajudicial material. The ultimate issue of influence on the
juror is resolved by reference to the substantial likelihood test,
an objective standard. In effect, the court must examine the
extrajudicial material and then judge whether it is inherently
likely to have influenced the juror.20
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
18 Alaska R. Evid. 606(b); Larson v. State, 79 P.3d 650, 654 (Alaska App. 2003); see
Swain v. State, 817 P.2d 927, 932-33 (Alaska App. 1991).
19 Swain, 817 P.2d at 932.
20 Id. (citing II Standards for Criminal Justice commentary to § 8-3.7 at 58
(Approved Draft 1978 & Supp. 1982)).
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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, or
makes an otherwise improper statement in open court, these improprieties do not constitute
"extraneous" information within the meaning of Rule 606(b).21
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).22
The parties have not briefed this issue. And, as we are about to explain, we need not
resolve this issue - because, even if the affidavit Silvera submitted in superior court was
admissible under Evidence Rule 606(b), it fails to establish that Silvera is entitled to relief.
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.23 We also disregard those statements in the attorney's affidavit concerning
21 Turpin v. State, 890 P.2d 1128, 1131 (Alaska App. 1995) (citing 2 Stephen A.
Saltzburg, et al., Federal Rules of Evidence Manual at 777 (6th ed. 1994)); see also Tellier
v. Ford Motor Co., 827 P.2d 1125, 1127 n.1 (Alaska 1992) (stating that an improper
reference to a party's prior conviction in a trial exhibit is not "extraneous" information);
Larson , 79 P.3d at 657-59 (holding that juror discussions about a defendant's guilt before the
case was submitted to the jury were not "extraneous" information).
22 See United States v. Hall, 85 F.3d 367, 368-69 (8th Cir. 1996); United States v.
Scisum, 32 F.3d 1479, 1481, 1483 (10th Cir. 1994); United States v. Bruscino, 662 F.2d 450,
456 (7th Cir. 1981), aff'd en banc, 687 F.2d 938 (7th Cir. 1982).
23 See Dunn v. Dunn, 952 P.2d 268, 271 n.2 (Alaska 1998) ("[It] is not appropriate
to present new evidence on a motion for reconsideration.").
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the subjective impact of the prosecutor's conduct on the jurors.24 The balance of the
affidavit asserts only that the prosecutor rolled his eyes and made other body movements
and facial expressions during the trial.25
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.26 That is not to say that we approve of an attorney
engaging in nonverbal conduct that potentially conveys the attorney's personal opinion
of the evidence or the credibility of witnesses to the jury. But the affidavits submitted by
Silvera do not establish that the prosecutor intentionally engaged in conduct of that nature.
Moreover, regardless of whether the prosecutor's conduct was intentional or inadvertent,
24 Swain, 817 P.2d at 932.
25 The affidavits submitted with the motion for reconsideration state that the
prosecutor rolled his eyes, nodded his head, scoffed, and sighed.
26 See Howell v. State, 917 P.2d 1202, 1213 (Alaska App. 1996).
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the affidavits do not establish that the prosecutor's conduct was so prejudicial that it was
likely that Silvera's jury was influenced by it.
The facts asserted in Silvera's attorney's affidavit do not present any material
factual dispute on the issue of prejudice that would have required an evidentiary hearing.27
The superior court therefore did not commit plain error when it failed to hold an evidentiary
hearing sua sponte.
The superior court applied the wrong legal test in rejecting Silvera's proposed
mitigator that he acted in response to serious provocation by the victim.
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,28 and that the victim provoked the crime to a significant degree.29
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.30
Because Silvera was convicted of second-degree assault, only the (d)(6)
mitigator applies in his case. As we explained in Smith v. State31:
mitigator (d)(7) does not apply to defendants who are being
sentenced for felony assault under AS 11.41.200-220. Instead,
mitigator (d)(6) defines the standard of provocation that, if
27 See Alaska R. Crim. P. 42(e)(3).
28 AS 12.55.155(d)(6).
29 AS 12.55.155(d)(7).
30 Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
31 229 P.3d 221 (Alaska App. 2010).
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proved, will mitigate these felony assaults, and mitigator (d)(7)
defines the lesser standard of provocation that applies to all
other felonies (except sexual felonies, which are not mitigated
by provocation).32
For purposes of the (d)(6) mitigator, "serious provocation" has the meaning
applied to the heat of passion defense33:
"serious provocation" means conduct which is sufficient to
excite an intense passion in a reasonable person in the
defendant's situation, other than a person who is intoxicated,
under the circumstances as the defendant reasonably believed
them to be; insulting words, insulting gestures, or hearsay
reports of conduct engaged in by the intended victim do not,
alone or in combination with each other, constitute serious
provocation.34
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.35 Roark
was convicted of manslaughter for the shooting death of Taylor, the man she lived with.36
According to the sentencing judge's findings, Roark became angry with Taylor for using
32 Id. at 226.
33 See AS 12.55.155(h).
34 AS 11.41.115(f)(2).
35 758 P.2d 644 (Alaska App. 1988).
36 Id. at 644.
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cocaine and locking himself in the bathroom for an extended period, and confronted him
with a gun in the hope of forcing him out of the bathroom. Taylor opened the door and
tried to grab the gun from Roark and was shot and killed in the ensuing struggle.37
At sentencing, Roark unsuccessfully sought mitigator (d)(7), arguing that
Taylor had "provoked the crime to a significant degree."38 In affirming the sentencing
court's rejection of that mitigator, we stated:
When the victim directs actions or words at the defendant for
the express purpose of eliciting a response, it is clear that the
defendant may be said to have been "provoked." When the
victim's conduct is neither directed at the defendant nor
intended to influence the defendant's actions or emotions ... the
mere fact that it has the incidental effect of prompting the
defendant to react, thereby contributing in a causal sense to
the commission of the crime, would not in itself justify a
finding of provocation. Between these two hypothetical
extremes is a broad middle ground in which the existence of
provocation is best left to a case-by-case determination by the
sentencing court, based on the totality of the circumstances.39
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
37 Id. at 645.
38 Id.
39 Id. at 647.
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relied on the common meaning of "provoke," would not also apply to the (d)(6) "serious
provocation" mitigator.
Judge Esch's interpretation ofRoark 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.40 The classic provocation
envisioned by the common law was the defendant's observation of a spouse's adultery,41
conduct that in the normal case is not directed at the defendant or intended to provoke his
response. As we have previously noted, in adopting the definition of serious provocation,
the Alaska Legislature apparently intended to codify the common-law doctrine of heat of
passion.42
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"43 - the same amount or degree of provocation that would reduce
40 See Dandova v. State, 72 P.3d 325, 339 (Alaska App. 2003); 2 Wayne R. LaFave,
Substantive Criminal Law, § 15.2(b)(5), (b)(7) at 498, 502 (2d ed. 2003).
41 See Dandova, 72 P.3d at 339; 2 LaFave, Substantive Criminal Law,
§ 15.2(b)(5) at 498.
42 Howell, 917 P.2d at 1209; see also Martin v. State, 664 P.2d 612, 616-17 (Alaska
App. 1983) (discussing the common-law roots of the Alaska statute).
43 AS 11.41.115(f)(2).
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a murder to manslaughter.44 We have also held that "an element of proportionality [is]
implicit in the heat of passion statute's requirement that provocation be 'serious.'"45
"Th[is] requirement of proportionality involves a common sense balancing of the
seriousness of the defendant's crime against the seriousness of the provocation."46
The court was not mistaken in rejecting non-statutory mitigating factors.
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."47 Referral to the three-judge panel
should occur only in exceptional cases.48
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.49 He found that Silvera's background did not demonstrate a "significant
need of rehabilitation," and that isolating Silvera from the public "really isn't a factor."
44 Smith, 229 P.3d at 225.
45 Howell, 917 P.2d at 1207 n.4 (citing Roark, 758 P.2d at 647-48); see also
Dandova, 72 P.3d at 333 (recognizing this as the common-law rule).
46 Roark, 758 P.2d at 647.
47 Bossie v. State, 835 P.2d 1257, 1258 (Alaska App. 1992); see also Lloyd v. State,
672 P.2d 152, 154-55 (Alaska App. 1983); AS 12.55.165.
48 Lloyd, 672 P.2d at 155.
49 State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
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Judge Esch nevertheless declined to find the non-statutory factor of extraordinary prospects
for rehabilitation. He explained:
The court has before it a 49-year-old first felony offender. He
has two prior misdemeanors for a DUI and a driving while
license suspended some time ago. Fifteen, 18 years, whatever
it was. He has an honorable discharge from the military. I
believe he has job skills that have stood him in good stead in
the past, and he's suffering from an existing medical condition
that makes it impossible for him to work and carry those things
forward; he's on disability. He evidences remorse for what
happened, but I don't believe those things constitute in and of
themselves an extraordinary prospect for rehabilitation. So I
will not find that [the] non-statutory ... mitigating factor exists.
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 average50:
The superior court is justified in concluding that a defendant
has unusually good potential for rehabilitation only when "the
court is satisfied, after reviewing the totality of the
circumstances, that [the defendant] can adequately be treated
in the community and need not be incarcerated for the full
presumptive term in order to prevent future criminal activity."
Such a prediction ... 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
50 Boerma v. State, 843 P.2d 1246, 1248 (Alaska App. 1992); Lepley v. State, 807
P.2d 1095, 1099-1100 (Alaska App. 1991).
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because the defendant's criminal conduct resulted from unusual
environmental stresses unlikely ever to recur.51
Judge Esch did not make explicit findings on these issues. But based on the
record, he reasonably could have concluded that Silvera had not adequately explained what
precipitated his attack on Moore or convinced the court that the conditions that led to the
attack were unlikely to recur. Silvera testified that he witnessed customers get "mouthy
and nasty" with his fiancée in the bar where she worked "all the time," but that he had
never responded violently before. He said on the night in question he reacted "[i]n the
heat of the situation," "instantaneously," and without reflection. He did not assert that the
assault was due to unusual stresses in his life that were unlikely to be repeated; instead,
he claimed that his actions were justified in defense of Surina and that he did not intend
to injure Moore - both claims the jury rejected when it convicted him of second-degree
assault. Given this record, Judge Esch could reasonably conclude that even though
Silvera's background demonstrated no significant need for rehabilitation, he had not shown
that his potential for rehabilitation was so unusually good that his case must be referred
to the three-judge panel.
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
51 Lepley, 807 P.2d at 1100 (quoting Kirby v. State, 748 P.2d 757, 766 (Alaska App.
1987)).
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deportation.52 Judge Esch concluded that the collateral consequences advanced by Silvera
"certainly are significant, but I can't find they're manifestly unjust."
Collateral consequences, including deportation, are appropriate sentencing
considerations,53 and Silvera faces a particularly harsh consequence because he is disabled
by illness and reportedly will lose his current medical treatment as a military veteran if
he is deported. But reducing Silvera's two-year sentence to less than one year, including
suspended time, to remove his offense from the federal definition of "aggravated felony"
would result in a considerably more lenient sentence than the facts of this case would
support - a more lenient sentence than a defendant with Silvera's background would
receive if he were not subject to deportation. Given this circumstance, Judge Esch was
not clearly mistaken in concluding that a sentence within the presumptive range was not
manifestly unjust.54
52 Under 8 U.S.C. § 1227(a)(2)(A)(iii), "any alien who is convicted of an aggravated
felony at any time after admission is deportable." An aggravated felony is defined in 8
U.S.C. § 1101(a)(43)(F) as "a crime of violence ... for which the term of imprisonment [is]
at least one year." Section 1101(a)(48)(B) provides that "[a]ny reference to a term of
imprisonment or a sentence ... is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in part."
53 Dale v. State, 626 P.2d 1062, 1064 n.4 (Alaska 1980); State v. Tucker, 581 P.2d
223, 226 n.5 (Alaska 1978); Chaney, 477 P.2d at 446 n.22.
54 McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Lloyd, 672 P.2d at 154-55.
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Conclusion
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.
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