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Darroux v. State (11/10/2011) ap-2335

Darroux v. State (11/10/2011) ap-2335

        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: 

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                                                            Court of Appeals No. A-10658 
                                Appellant,                 Trial Court No. 3AN-07-5280 Cr 

                                                                    O   P  I  N  I  O  N 

                                Appellee.                  No. 2335    -   November 10, 2011 

                Appeal     from   the  Superior    Court,   Third   Judicial   District, 
                Anchorage, Michael R. Spaan, Judge. 

                Appearances:     Jane B. Martinez, Anchorage, for the Appellant. 
                Mary A. Gilson, Assistant Attorney General, Office of Special 
                Prosecutions     and   Appeals,   Anchorage,     and  John   J.  Burns, 
                Attorney General, Juneau, for the Appellee. 

                Before:    Coats,    Chief  Judge,   and  Mannheimer      and   Bolger, 

                MANNHEIMER, Judge. 

                In May 2007, during a confrontation at a barbecue, Josiah Darroux shot and 

killed James Brink, his girlfriend's cousin. Based on this incident, Darroux was indicted 

for second-degree murder.         At the conclusion of Darroux's trial, the jury found that he 

had acted in the heat of passion, and so the jury convicted Darroux of the lesser offense 

of manslaughter. 

----------------------- Page 2-----------------------

                In this appeal, Darroux does not contest his conviction, but he raises several 

issues dealing with his sentencing.   Darroux asserts that the superior court should have 

struck, or at least greatly abridged, the section of the pre-sentence report describing the 

facts of his offense.     Darroux also contends that the superior court committed error by 

rejecting four mitigating factors that he proposed. 

                For the reasons explained here, we conclude that Darroux failed to preserve 

his objection to the contents of the pre-sentence report.   We further conclude that, given 

the facts of Darroux's case, the superior court correctly rejected each of Darroux's four 

proposed mitigating factors, and we therefore affirm the superior court's sentencing 


        Darroux's challenge to the pre-sentence report 

                Prior to Darroux's sentencing, his attorney filed an objection to various 

aspects of the pre-sentence report - in particular, the 28-page section of the report 

labeled "Present Offense". Darroux's attorney claimed that this section of the report was 

too long, and that it improperly relied on the hearsay contained in the police reports, 

rather than describing the testimony given by the witnesses at Darroux's trial. 

                At the sentencing hearing, Darroux's attorney raised these objections again: 

                        Defense Attorney :        [T]he overall objection I have to 
                this   pre-sentence   report   is   that   it's   an   extremely   lengthy 
                document[.]       ...  [And]   much      of   it   doesn't   have  helpful 
                information [for] the Court.   And it's triggering the need for 
                an    evidentiary    hearing    [at]  sentencing    -    which    is  truly 
                unnecessary for this Court's sentencing decision.  This Court 
                heard the testimony at trial. 

                                                  - 2 -                                              2335

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                         The Court:      I did [hear the trial testimony], and that's 
                what I'm going to (indiscernible). 

                        Defense Attorney :       That's what the Court ... 

                         The Court:      Right. 

                        Defense Attorney :      Okay. 

                Although the defense attorney's response of "okay" seemingly indicated 

that she was content with the sentencing judge's approach, the defense attorney returned 

to this issue a few minutes later.  She again suggested that the description of the offense 

in the pre-sentence report did not conform to the testimony of the witnesses at trial. 

                The defense attorney told the sentencing judge that she had asked the pre- 

sentence     investigator    to  listen  to  the   testimony    of  the   trial  witnesses   so   that  the 

investigator would "understand that [the information contained in] many of the police 

reports didn't reflect what actually came out at trial."  The defense attorney then asserted 

that the pre-sentence investigator had failed to honor her request, and she asked for the 

sentencing judge's help in "[altering] this officer's approach to pre-sentence reports, so 

that we get a better pre-sentence report for the Court."            The sentencing judge, Superior 

Court Judge Michael R. Spaan, responded, "Okay.                  And, again ... , what I'm going to 

rely on is the trial [testimony].      Okay?" 

                During      the  ensuing     discussion,    Judge    Spaan    addressed     the   defense 

attorney's   challenges   to   a   number   of   specific   factual   assertions   contained   in   other 

portions   of   the   pre-sentence   report   (i.e.,   sections   other   than   the   "present   offense" 

section), and the judge made several changes   to the report at the defense attorney's 

request. But the defense attorney made no further objection to the content of the "present 

offense" section of the report, and she never indicated that she was dissatisfied with 

                                                  - 3 -                                              2335

----------------------- Page 4-----------------------

Judge Spaan's general resolution of the issue - i.e., his declaration that he would rely 

on the trial testimony rather than the description of the offense in the pre-sentence report. 

                 We further note that, to the extent Darroux's attorney may have wished to 

object to particular factual assertions contained in the "present offense" section of the 

report, she failed to comply with the procedures specified in Alaska Criminal Rule 32.1. 

                 Subsection (d)(5) of Rule 32.1 requires a defendant to "give notice [before 

the sentencing hearing] of any objection to any information contained in the presentence 

report   or   to   any   other   material   the   judge   or   the   state   has   identified   as   a   source   of 

information to be relied upon at sentencing."              This subsection further requires that the 

defendant's   notice   "shall   state   the   basis   for   the   defendant's   objection   [and,   if]   the 

defendant objects to information as inaccurate, the [defendant's] notice [must] include 

any   information   upon   which   the   defendant   intends   to   rely   to   refute   the   objected-to 


                 Darroux's attorney told Judge Spaan that the "present offense" section of 

the pre-sentence report was "extremely lengthy", and she objected that its description of 

Darroux's offense rested on hearsay pulled from the police reports rather than on the 

testimony given at Darroux's trial.           But at no point did the defense attorney claim that 

there   was   a   factual   inaccuracy   in   any   particular   aspect   of   the   pre-sentence   report's 

description of Darroux's present offense. 

                 If   Judge     Spaan   had     been   confronted       with    additional    particularized 

objections to the content of the report, this would have triggered his duty under Rule 

32.1(f)(5)   to   consider   those   factual   disputes   and   to   modify   the   pre-sentence   report 
accordingly. 1       But   instead,   Judge   Spaan       was   simply    confronted      with   the  general 

    1    Criminal Rule 32.1(f)(5) states (in pertinent part): 


                                                    - 4 -                                                  2335 

----------------------- Page 5-----------------------

assertion that it was wrong for the pre-sentence investigator to rely on the police reports 

rather than the trial testimony when writing the description of the offense.                 And when 

Judge Spaan assured the defense attorney that he would rely on the trial testimony when 

making his sentencing decisions, the defense attorney said "okay" and did not pursue her 

objection any further. 

                This Court has repeatedly held that it is proper for a sentencing judge to 

rely   on   verified   hearsay   information   contained   in   a   pre-sentence   report   unless   the 
defendant offers testimony to dispute that information. 2           Accordingly, Judge Spaan was 

authorized to consider the description of the offense contained in Darroux's pre-sentence 

report unless and until Darroux offered testimony to show that the description was false 

or inaccurate in one or more ways. 

                Potentially, Darroux might have satisfied this testimonial obligation by 

relying    on   the  testimony     of  the  witnesses    at  his  trial,  assuming    that  the  parties' 

motivation to cross-examine these witnesses was the same at trial as it would have been 

at the sentencing hearing.         But we need not decide this issue, because Darroux never 

    1   (...continued) 

        The court shall enter findings regarding any disputed assertion in the presentence 
    report.   Any assertion that has not been proved shall be deleted from the report; any 
    assertion    that  has   been   proved   only   in  part  shall  be  modified     in  the  report. 
    Alternatively, if the court determines that the disputed assertion is not relevant to its 
    sentencing decision[,] so that resolution of the dispute is not warranted, the court shall 
    delete the assertion from the report without making any finding.             After the court has 
    made the necessary deletions and modifications, the court's corrected copy shall be 
    labeled the "approved version" of the presentence report. 

    2   See, e.g., Garland v. State, 172 P.3d 827, 829 (Alaska App. 2007); Evans v. State, 23 

P.3d 650, 652 (Alaska App. 2001); Hamilton v. State, 771 P.2d 1358, 1361-62 (Alaska App. 

                                                  - 5 -                                             2335

----------------------- Page 6-----------------------

objected     to  any   specific  factual   assertion   contained    in  the  pre-sentence     report's 

description of his offense. 

                For these reasons, we conclude that Darroux failed to preserve his current 

argument that Judge Spaan should have struck or greatly abridged the "present offense" 

section of the pre-sentence report. 

        The superior court's rulings on Darroux's proposed mitigating factors 

                As we explained at the beginning of this opinion, Darroux was charged 

with second-degree murder, but he was convicted of the lesser offense of manslaughter, 
based on the jury's conclusion that he acted in the heat of passion. 3 

                Manslaughter is a class A felony and Darroux, as a first felony offender, 
was subject to a presumptive sentencing range of 7 to 11 years' imprisonment. 4 

                At sentencing, Darroux argued that his presumptive sentence should be 

mitigated under four provisions of AS 12.55.155(d):  mitigator (d)(3) - the contention 

that he acted "under some degree of duress, coercion, threat, or compulsion"; mitigator 

(d)(4)   -   the   contention   that   Darroux   was   a   youthful   offender   whose   conduct   was 

"substantially influenced by another person more mature than [he]"; mitigator (d)(7) - 

the contention that "the victim provoked the crime to a significant degree"; and mitigator 

    3   See AS 11.41.115, which defines the defense of "heat of passion", and which provides 

that a defendant who commits a homicide in the heat of passion can not be convicted of first- 
degree   murder   under   AS   11.41.100(a)(1),   nor   second-degree   murder   under   AS   11.41. 
110(a)(1), but can be convicted of manslaughter or another crime. 

    4   See AS 11.41.120(b) (classifying manslaughter as a class A felony) and AS 12.55. 

125(c)(2) (specifying a presumptive sentencing range of 7 to 11 years' imprisonment for 
first felony offenders convicted of a class A felony if they caused a person's death during the 
commission of the offense). 

                                                - 6 -                                            2335

----------------------- Page 7-----------------------

(d)(9) - the contention that Darroux's conduct was "among the least serious conduct 

included in the definition of the offense." 

                Judge Spaan rejected all four of these mitigating factors. That is, the judge 

found     that   Darroux   had   failed  to  prove    these  mitigators    by  clear   and  convincing 
evidence. 5 

                On appeal, Darroux argues that Judge Spaan committed error when he 

rejected these four mitigators.       To explain our resolution of Darroux's claims, we must 

describe the facts of Darroux's offense (viewed in the light most favorable to Judge 

Spaan's rulings). 

        (a) The underlying facts of the homicide 

                Darroux began dating Olianne Tinker in 2005.   In May 2007, Darroux hit 

Tinker during an argument.  Tinker called her cousin, James Brink, to tell him about this 


                 Soon afterwards, Brink called Tinker and invited her and Darroux to attend 

a barbecue at his apartment.        Tinker decided that she would go to the barbecue alone 

because she was afraid that Brink "would do something to [Darroux]." 

                Darroux dropped Tinker off at the barbecue and left.  Around 6:00 or 7:00 

that evening, Tinker called Darroux and asked him to pick her up from the barbecue. 

According to Tinker, she wanted to go home so that she would be ready for work, and 

her cousin, Brink, was getting "pretty drunk". 

                When   Darroux   arrived   to   pick   up   Tinker,   he   parked   his   vehicle   in   the 

parking lot on the side of Brink's apartment building, and then he went inside.                   Brink 

    5   See   AS   12.55.155(f)(1),   which   specifies   that   a   defendant   must   prove   mitigating 

factors by clear and convincing evidence. 

                                                  - 7 -                                              2335 

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approached Darroux and asked to speak with him, so the two men went outside and 

down a flight of stairs.     Tinker followed them. 

                Tinker saw Brink take hold of Darroux, lift him in the air, and strike him 

several times.    During this attack, Darroux's head hit a cement wall.              Tinker came to 

Darroux's assistance and began choking her cousin. At this point, Darroux freed himself 

from Brink's grasp and ran toward his car.           Tinker followed. 

                When Tinker reached Darroux's vehicle, she saw that the trunk was open 

and   that   Darroux   had   a   shotgun   in   his   hand. Tinker   persuaded   Darroux   to   put   the 

weapon away, and Darroux and Tinker got into the car.               Darroux put the car in reverse 

and began backing up, but then he stopped.   Darroux and Tinker began arguing, because 

Tinker was angry that Darroux had brought the shotgun.                 (Darroux normally did not 

carry the shotgun in his car.) 

                At this point, Brink came running toward Darroux's car.  Despite Tinker's 

efforts to dissuade him, Darroux got out of the car.  As Brink got nearer the car, Darroux 

opened the trunk and again retrieved his shotgun. 

                When Brink continued to come toward the car, Darroux yelled at him, 

"Stop or I'll shoot."    Darroux then fired a shot in Brink's direction.          Undeterred, Brink 

continued to approach Darroux.  When Brink was three or four feet away from Darroux, 

Darroux fired a second shot.        This time, he struck and killed Brink. 

                Brink was bigger than Darroux:          he was approximately 6 feet tall, while 

Darroux was about 5'8", and Brink was more heavily built.   On the other hand, Brink's 

hands     were   visible   throughout     the  encounter,    and   he   was   carrying    no  weapon. 

Moreover, nothing prevented Darroux from simply staying in his car and continuing to 

drive away. 

                Darroux was indicted for second-degree murder under AS 11.41.110(a)(1). 

That is, the State alleged that when Darroux shot Brink, either he acted with the intent 

                                                 - 8 -                                            2335

----------------------- Page 9-----------------------

of causing serious physical injury to Brink or he knew that his conduct was substantially 

certain to cause death or serious physical injury to Brink. 

                The jury found Darroux guilty of manslaughter under the theory that (1) 

Darroux acted in the heat of passion, and that (2) this passion resulted from Brink's 

"serious provocation", as defined in AS 11.41.115(f)(2). 

                (AS 11.41.115(f)(2) defines "serious provocation" as any conduct other 

than insulting words, gestures, or hearsay reports of the victim's prior conduct "which 

is   sufficient   to   excite   an   intense   passion   in   a   reasonable   [and   sober]   person   in   the 

defendant's situation, ... under the circumstances as the defendant reasonably believed 

them to be".) 

        (b) Darroux's proposed mitigating factors 

                Addressing Darroux's proposed mitigators in numerical order, the first one 

is mitigator (d)(3) - the contention that Darroux shot Brink "under some degree of 

duress, coercion, threat, or compulsion".   This Court has previously explained that this 

mitigator requires proof of a degree of duress, coercion, or compulsion "sufficiently 
extraordinary [in] nature that it approaches being a defense to the crime." 6 

                When   Judge   Spaan   ruled   on   this   mitigator,   he   acknowledged   that   the 

homicide was preceded by an altercation in which Brink assaulted Darroux.  However, 

Judge Spaan declared that "[he did] not find by clear and convincing evidence that there 

[was] ... any threat or coercion which justified shooting an unarmed man." 

                Given     the  facts  of  Darroux's     case,   and   given   the  jury's   verdict  that 

Darroux's crime should be mitigated to manslaughter because he acted in response to 

    6   Proctor v. State, 236 P.3d 375 (Alaska App. 2010), citing Bynum v. State, 708 P.2d 

1293, 1294 (Alaska App. 1985). 

                                                  - 9 -                                              2335 

----------------------- Page 10-----------------------

serious provocation, one might reasonably argue that Darroux was legally precluded 

from raising mitigator (d)(3). This argument would be based on AS 12.55.155(e), which 

declares that a defendant's presumptive sentencing range can not be lowered based on 

a "[mitigating] factor [that was] raised at trial as a defense reducing the offense charged 

to a lesser included offense". 

                But to the extent that Darroux was still entitled to plead mitigator (d)(3), the 

record supports Judge Spaan's decision to reject this mitigator. 

                Darroux argues that, given the facts of his case, his act of shooting Brink 

came "very close" to self-defense.         But when we view the facts of the case in the light 

most favorable to Judge Spaan's decision, Darroux's argument is untenable. 

                The evidence at trial showed that, following Darroux's initial confrontation 

with   Brink,   Darroux   and   Tinker   got   into   Darroux's   car,   and   Darroux   had   a   clear 

opportunity to drive away.         Instead of taking advantage of this opportunity, Darroux 

stopped driving and - despite Tinker's efforts to dissuade him - he got out of his car, 

retrieved his shotgun from the trunk, and confronted Brink with this weapon. 

                It   is   true   that   Brink   continued   to   approach   Darroux   despite   Darroux's 

requests for him to stop.  However, it is undisputed that Brink was obviously unarmed. 

                Based on this evidence, Judge Spaan could properly conclude that Darroux 

failed to prove, by clear and convincing evidence, that his act of shooting Brink was the 

result of extraordinary duress, coercion, or compulsion that approached a defense to 

homicide.     We therefore uphold Judge Spaan's decision on mitigator (d)(3). 

                We   turn   next   to   mitigator   (d)(4)   -   the   contention   that   Darroux   was   a 

youthful offender whose conduct was "substantially influenced by another person more 

mature than [he]".  Darroux argues that this mitigator applies to his case because Brink 

was older and more mature than Darroux, and because Brink "manipulated the younger 

Darroux into having contact with him" so that he could then attack Darroux. 

                                                 -  10 -                                            2335

----------------------- Page 11-----------------------

                 Initially, we doubt that the legislature intended mitigator (d)(4) to apply to 

situations     where    the  victim    of   a  homicide    or  an  assault   engaged     in  conduct   that 

substantially influenced a youthful offender to attack the victim.  Interpreting mitigator 

(d)(4) in this manner would seemingly bring it into conflict with the legislature's policy 

- embodied in the heat of passion statute and in aggravating factor AS 12.55.155(c)(6) 

-   that   the   sentencing   ranges   for   homicides   and   non-deadly   assaults   should   not   be 

reduced based on conduct that the victim directed to the defendant unless the victim's 

conduct rose to the level of "serious provocation".                Moreover, it appears that, under 

Darroux's proposed interpretation of mitigator (d)(4), either this mitigator would be 

redundant       of   mitigator    (d)(3)    (the   mitigator    for   "duress,     coercion,    threat,   or 

compulsion"), or it would undercut mitigator (d)(3). 

                 The wording of mitigator (d)(4) suggests that the legislature had another 

type of situation in mind:  situations where an older and more mature person enlisted the 

aid of a youthful defendant in committing a crime, or otherwise encouraged a youthful 

defendant to commit a crime.   Our previous cases involving mitigator (d)(4) have dealt 

with situations where an older, more mature individual prevailed on a youthful, less 
mature person to help them commit a crime. 7 

                 In any event, Darroux does not assert that Brink wanted to be shot and 

killed,    or  that  Brink    purposely     manipulated      or  encouraged      Darroux     to  kill  him. 

Obviously,   the   jury   found   that   Darroux's   actions   were   significantly   influenced   by 

Brink's actions, but this influence took the form of provocation or, alternatively, it took 

the   form   of   duress,   coercion,   threat,   or   compulsion   -   issues   that   we   have   already 


    7   See Valadez v. State, unpublished, 2000 WL 177584 at *1 (Alaska App. 2000);Melton 

v.   State,  unpublished,     1999   WL    575797     at  *4  (Alaska   App.    1999);  Arnold     v.  State , 
unpublished, 1999 WL 46544 at *10 (Alaska App. 1999). 

                                                  -  11 -                                               2335 

----------------------- Page 12-----------------------

                For these reasons, we uphold Judge Spaan's ruling that, for purposes of 

mitigator (d)(4), Darroux was not under the influence of Brink when he shot and killed 


                Darroux's   next proposed   mitigator   is   (d)(7)   -   the   contention   that   the 

victim of the homicide, Brink, "provoked the crime to a significant degree". 

                In Smith v. State, 229 P.3d 221 (Alaska App. 2010), we examined and 

compared mitigators (d)(6) and (d)(7).           Mitigator (d)(6) deals with instances where the 

defendant's crime resulted from "serious" provocation.               Mitigator (d)(7), on the other 

hand, requires proof of only a "significant" provocation - a lesser standard. 

                In  Smith,     based   on   the  wording     of  mitigators    (d)(6)  and   (d)(7),   we 

concluded that the legislature did not intend for mitigator (d)(7) to apply to the felony 

assaults codified in AS 11.41.200 - 220.             In other words, the fact that a defendant's 

conduct   resulted   from   "significant"   provocation   is   not   a   sufficient   justification   for 

reducing the defendant's presumptive sentencing range for first-, second-, or third-degree 

assault.   Instead, the legislature intended that the sentencing ranges for these felony 

assaults would be mitigated only upon proof of "serious"   provocation as defined in 

AS 11.41.115(f)(2).       Smith, 229 P.3d at 226. 

                As we noted in Smith, this is "the same amount or degree of provocation 

that would reduce a murder to manslaughter under the heat of passion statute".                     Id. at 

225.  And, as we have already explained, the homicide in this case was already reduced 

from second-degree murder to manslaughter based on the jury's finding that Darroux 

acted in the heat of passion resulting from "serious provocation". 

                Based     on   our  decision    in Smith,    and   based   on   AS   12.55.155(e),     we 

conclude that it would be inconsistent with the legislature's intent to allow a defendant 

in   Darroux's     situation    to  seek   further   mitigation    of   his  sentence    based    on   the 

"significant" provocation clause of mitigator (d)(7). 

                                                 -  12 -                                            2335

----------------------- Page 13-----------------------

                 As we have already explained, AS 12.55.155(e) declares that a defendant's 

presumptive sentencing range can not be lowered based on a "[mitigating] factor [that 

was]   raised   at   trial   as   a   defense   reducing   the   offense   charged   to   a   lesser   included 

offense".  In the present case, Darroux was acquitted of murder and, instead, convicted 

of the lesser offense of manslaughter because the jury agreed that Darroux's conduct was 

the   result   of   "serious   provocation".     Accordingly,   AS   12.55.155(e)   expressly   bars 

Darroux      from    seeking    a  reduction    of  his  presumptive      sentencing     range    based   on 

mitigator (d)(6) (which applies to instances of "serious provocation"). 

                 It would be illogical for the legislature to prohibit Darroux and all similarly 

situated defendants from seeking reduction of their sentencing range for manslaughter 

based on the existence of "serious" provocation under mitigator (d)(6), and yet let them 

seek reduction of their sentencing range based on the lesser standard of "significant" 

provocation   under   mitigator   (d)(7).       Accordingly,   we   hold   that,   as   a   matter   of   law, 

mitigator (d)(7) can not be employed to reduce the presumptive sentencing range of 

defendants in Darroux's situation - that is, defendants who have successfully argued 

at trial that they should be convicted of manslaughter rather than murder based on a 

claim of heat of passion under AS 11.41.115. 

                 This brings us to mitigator (d)(9) - Darroux's contention that his conduct 

was    "among      the  least  serious    conduct    included    in  the   definition    of  the  offense." 

In   support   of   this   contention,   Darroux   notes   that   the   victim   of   the   homicide   was 

intoxicated, that he had just attacked Darroux, and that he followed Darroux out to the 

parking lot - where he continued to advance on Darroux, even after Darroux fired a 

warning shot. 

                 These facts are essentially undisputed.   However, they comprise only part 

of   the   story. According   to   the   testimony   at   trial,   there   was   absolutely   no   need   for 

Darroux to stay and confront Brink.             Darroux could simply have driven away; indeed, 

                                                   -  13 -                                             2335

----------------------- Page 14-----------------------

Tinker urged him to do so.         Instead, Darroux got out of his car, opened his trunk, and 

took out his shotgun.      Moreover, Judge Spaan found that Brink was unarmed, and the 

record supports this finding.       Taking these circumstances as a whole, we agree with 

Judge Spaan that this was not among the least serious heat-of-passion manslaughters. 


                With respect to Darroux's claim that the superior court should have deleted 

or substantially abridged the "present offense" section of the pre-sentence report, we 

conclude   that   this   claim   is   not   preserved. And   with   respect   to   Darroux's   proposed 

mitigating factors, the judgement of the superior court is AFFIRMED. 

                                                -  14 -                                           2335
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