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Mooney v. State (01/07/2005) ap-1965
Mooney v. State (01/07/2005) ap-1965
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
FRANK MOONEY, )
) Court of Appeals No.
A-8383
Appellant, )
Trial Court No. 1KE-01-1123 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1965 - January 7, 2005]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Loren K. Stanton, Ketchikan, for
Appellant. Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Frank Mooney appeals his conviction and sentence for
sexual assault in the first degree. In his main point on appeal,
Mooney argues that Superior Court Judge Michael A. Thompson erred
in denying as untimely Mooneys challenge under Batson v. Kentucky
to the prosecutors use of peremptory challenges which excluded
Alaska Natives from the jury. We hold that Mooneys Batson
challenge was untimely because Mooney made the motion after Judge
Thompson had sworn the jury and dismissed the jury venire. We
also reject Mooneys other challenges to his conviction and uphold
his sentence.
Procedural and factual background
During the early morning hours of September 11, 2001,
Ketchikan Police Officer Joseph White responded to a 911 call
reporting that a man was chasing a half-nude woman down the road.
Officer White arrived at the scene and saw a man pinning a woman
to the ground. The man, later identified as Frank Mooney, was
lying across the woman diagonally with his arm across her throat.
Mooney was wearing only pants, and the woman, later identified as
S.M., was naked except for a fleece jacket. Officer White
ordered Mooney to get off of S.M. Then, with the help of Officer
Josh Dossett, he restrained Mooney. He described S.M. as very
upset.
Officer Andrea Jacobson interviewed S.M. in a patrol
car. S.M. told Officer Jacobson that she had initially agreed
to perform oral sex on Mooney. However, at some point Mooney
had gotten rough with her. S.M. said she told Mooney that she
wanted to stop performing oral sex and leave his house. At this
point Mooney hit her in the back of the head twice with both
fists. Mooney also told S.M. that she could not leave unless she
finished performing oral sex on him, and that if she did not he
would fuck her in the ass and that she would not leave his
residence alive. S.M. said she continued to do as Mooney said
while he continued to threaten her. At one point she said she
had to go to the bathroom. When Mooney let her go, S.M. ran for
the door and fled down the street, wearing only the fleece
jacket.
Mooney told Officers White and Dossett that he was only
chasing S.M. because she had assaulted him and stolen $600 from
him. Mooney stated that he and S.M. went to his apartment where
they both undressed and S.M. voluntarily performed oral sex on
him. Mooney denied that he had threatened S.M. or forced her
to do anything. However, Mooney did agree that S.M. stopped
performing oral sex on him before he was finished. She then got
up and entered the bathroom. Mooney claimed that when S.M. left
to go to the bathroom she was acting a little weird. Mooney
then noticed that he could not see his wallet. When he asked
S.M. where it was, she just bolted out the door. Mooney said he
followed S.M., caught her arm, and pulled her down to the ground
and restrained her. Then the police arrived.
The State indicted Mooney on one count of sexual
assault in the first degree. Following a trial conducted by
Judge Thompson, the jury convicted Mooney. Judge Thompson
sentenced Mooney, a third felony offender for purposes of
presumptive sentencing, to 30 years imprisonment with 5 years
suspended. This appeal follows.
Mooneys Batson objection was untimely
In Batson v. Kentucky, the United States Supreme Court
held that a prosecutor could not exercise peremptory challenges
based upon racial bias.1 In the years since it decided Batson,
the court has repeatedly expanded its scope.2
In Batson, the Supreme Court held that in order to
raise an objection to a peremptory challenge, the challenge had
to be exercised in a timely manner. But the Supreme Court has
not specified when a party must make a challenge in order for it
to be timely.3 Instead [the Supreme Court] recognized that local
practices would indicate the proper deadlines ... and left it to
the trial courts, with their wide variety of jury selection
practices, to implement Batson in the first instance.4 But the
Supreme Court stated that a state court may adopt a general rule
that a Batson claim is untimely if it is raised for the first
time on appeal, or after the jury is sworn ....5
Alaska has not adopted any rule defining when a party
must raise a Batson challenge. But courts in other jurisdictions
have decided this issue. Many courts have held that, in order to
preserve a Batson challenge, a party must make the challenge
before the jury is sworn.6 Other jurisdictions have held that a
party must raise a Batson challenge not only before the jury is
sworn, but also before the court dismisses the remaining jury
venire.7
Thus, the overwhelming majority of courts that have
considered this issue would find that Mooneys Batson challenge
came too late, because Judge Thompson had already released the
remaining members of the jury venire and had sworn the jury. We
conclude that we should adopt the same policy as these other
courts.
One primary reason for requiring a party to make a
timely objection is to allow the court and the parties to
litigate the issue while it is fresh in their minds. If a
defendant waits until the middle of trial to raise a Batson
objection to the prosecutors
peremptory challenges, the prosecutor may have forgotten the
precise reasons for challenging particular jurors. Furthermore,
the trial judge (who must assess the prosecutors explanation for
the challenges) may no longer remember the prospective jurors,
their answers to the various questions during voir dire, and
their behavior and mannerisms during the selection process.
Another primary reason for requiring a party to make a
timely objection is to make sure that the trial court has a
reasonable opportunity to fashion a remedy if the partys
objection is well-founded. In a jury trial, jeopardy attaches
when the jury is sworn.8 Thus, if a defendant waits until after
the jury is sworn to raise a Batson challenge to the prosecutors
exercise of peremptory challenges, and if there are insufficient
alternate jurors to match the number of disputed peremptory
challenges, the only available remedy will be a mistrial a
procedure that can cause considerable delay and expense, and
which is burdensome to the parties, the victims and witnesses,
and the court.
Moreover, even in cases where the jury has not been
sworn, if the trial judge has already released the remaining
members of the jury venire, a successful Batson challenge will
require the court to summon additional prospective jurors.
Again, this procedure can cause considerable delay, especially in
locations or circumstances where an additional jury venire is not
readily available.9
For these reasons, we align ourselves with the courts
that require defendants to raise Batson challenges before the
remaining members of the jury venire are released and the jury is
sworn. And we accordingly hold that Mooneys Batson challenge was
untimely. (Given the facts of Mooneys case, we need not decide
whether a Batson challenge will be deemed untimely if it is made
after the remaining members of the jury venire are released but
before the jury is sworn.)
Judge Thompson did not err in admitting
evidence of Mooneys prior conviction for
sexual assault
Mooney argues that Judge Thompson erred in allowing the
State to introduce evidence of his prior conviction for sexual
assault. Mooney had a prior conviction in 1981 for first-degree
rape in the State of Washington. The State contended that the
evidence of this prior conviction was admissible under Evidence
Rule 404(b)(3). Evidence Rule 404(b)(3) provides that, in a
prosecution for sexual assault (or attempted sexual assault) in
any degree, evidence of prior sexual assaults or attempted sexual
assaults by the defendant is admissible if the defendant relies
on the defense of consent. This rule provides an exception to
Evidence Rule 404(b)(1)s ban on evidence offered for the sole
purpose of showing the defendants propensity to commit crimes.10
Mooney defended on the ground that S.M. consented to
the sexual activity. Judge Thompson therefore considered whether
Mooneys prior conviction was admissible under Evidence Rule
404(b)(3). The facts of Mr. Mooneys prior conviction were read
into the record and are as follows:11 A woman voluntarily got
into Mooneys van in downtown Seattle. Mooney assaulted and
threatened her, pointed a gun at her and forced her to perform
oral sex on him. Mooney attempted to tie the victim up with her
pantyhose, but she tried to escape. He then grabbed her by the
hair and hit her in the face with the gun. The victim then
escaped from the van and Mooney shot at her as she ran away.
Mooney attempted to flee and ran his van into a wall.
Judge Thompson found that Mooneys prior conviction was
remarkably similar to the present case. Judge Thompson
considered the age of Mooneys prior conviction. He also
considered Mooneys age when he committed the prior offense. But
he concluded that because Mooney had been in his twenties at the
time of the prior offense, he was not a youthful offender. He
concluded that the prior conviction was sufficiently similar,
even when he considered the passage of time, to be relevant to
Mooneys propensity to commit sexual assaults.
Mooney argues that Judge Thompson abused his
discretion in admitting this evidence. He first contends that
Evidence Rule 404(b)(3) violates due process by authorizing the
admissibility of evidence of a defendants propensity to commit
sexual assaults. But we have previously rejected this due
process claim.12 We held that the admission of propensity
evidence did not per se violate due process.13 We emphasized
that, even though propensity evidence might be relevant under the
evidence rules, the trial judge still had a duty to apply
Evidence Rule 403 to weigh the probative force of the evidence
against its potential for unfair prejudice. A trial judges
stringent application of Evidence Rule 403 protects the
defendants due process rights.14
Mooney argues that Judge Thompson did not perform the
required balancing under Evidence Rule 403. But the record shows
otherwise. Judge Thompson weighed the probative value of the
evidence against the danger of unfair prejudice. He ultimately
concluded that the evidence of Mooneys prior sexual assault
conviction was admissible because the facts in the case were
similar to the facts of the current charges against Mooney.
Although he considered the age of the conviction, he concluded
that the evidence was probative because Mooney was an adult at
the time he committed the offense. We conclude that Judge
Thompsons findings are supported by the record and conclude that
he did not abuse his discretion in admitting Mooneys prior sexual
assault conviction.
Judge Thompson did not err in prohibiting
Mooney from introducing evidence of specific
prior bad acts by S.M.
Mooney argues that Judge Thompson erred in refusing to
allow him to elicit testimony from Gwen Hellickson that she had
seen S.M. steal tip money from tables in the bar where Hellickson
worked as a bartender. This issue is governed by Evidence Rule
608. Evidence Rule 608 provides that [t]he credibility of a
witness may be attacked ... by evidence in the form of opinion or
reputation.15 The evidence so admitted is subject to two
limitations: (1) it may refer only to character for truthfulness
or untruthfulness, and (2) evidence of specific instances of such
conduct is inadmissible.16 Earlier in the trial, Mooney
introduced, through the testimony of David Rosendin, that S.M.
had a reputation for stealing things. This evidence was properly
admissible under Evidence Rule 608. But when Mooney sought to
have his next witness, Hellickson, testify to specific instances
where S.M. stole tip money, Judge Thompson properly ruled that
this testimony was inadmissible because it violated Rule 608s
prohibition against introducing evidence of specific instances of
bad conduct. We accordingly affirm Judge Thompsons ruling
excluding this portion of Hellicksons testimony.
Judge Thompson did not err in failing to give
an instruction requiring the jury to find
that Mooney had engaged in a voluntary act
Mooney argues that it was plain error for Judge
Thompson to fail to instruct the jury on the requirement that it
had to find that he engaged in a voluntary act in order to
convict him. But this court will find plain error only where the
error creates a high likelihood that the jury followed an
erroneous theory resulting in a miscarriage of justice.17
As stated in AS 11.81.600(a), a person can not be held criminally
liable unless that person has performed a voluntary act (or has
failed to perform an act that the person was capable of
performing). The term voluntary act is defined in AS 11.81.
900(b)(62) as follows: a bodily movement performed consciously as
a result of effort and determination. In other words, a
voluntary act is a willed movement in the broadest sense of that
term.18
Ordinarily, no special instruction is needed concerning
the requirement of a voluntary act because this issue is not
disputed. The recognized exceptions to a voluntary act are (1)
reflexive or convulsive movements, (2) movements during sleep or
unconsciousness, and perhaps (3) movements during hypnosis.19
Very few criminal cases are defended on such bases.
Nevertheless, Mooney contends that Judge Thompsons
failure to give his jury an instruction on the concept of
voluntary act was plain error. That is, Mooney argues that even
though his trial attorney failed to request such an instruction,
any competent judge would have seen the need for such an
instruction and would have acted, sua sponte, to instruct the
jury on this issue.
Mooney argues that the facts of his case raise a
distinct possibility that he committed no voluntary act. Mooney
asserts that, when S.M. ceased fellating him before he reached
orgasm, he responded with the instinctive, visceral, knee-jerk
reaction of striking her in the head.
But there was no evidence to indicate that Mooneys act
of striking S.M. was not a willed movement. Even accepting
Mooneys explanation for the assault, his act of striking S.M.
would not qualify as involuntary for legal purposes.
People sometimes speak figuratively of a knee-jerk
reaction when they mean to describe a response made without
reflection or deliberation. But for legal purposes, an act is
voluntary unless it is a true reflexive reaction i.e., a
muscular contraction that occurs spontaneously, without
intervention of the conscious brain, when the body is subjected
to stimulus.20
Mooney may have been incapable of resisting the impulse
to strike S.M., but there is no indication that his act of
striking her was not a willed movement for purposes of the
criminal law. Thus, the fact that Judge Thompson did not, sua
sponte, instruct the jury on the definition of voluntary act was
not plain error.
Judge Thompson did not commit plain error in
failing to instruct the jury on the lesser-
included offense of assault
Mooney contends that Judge Thompson erred in failing to
give the jury a lesser-included instruction on the offense of
assault. But Mooney concedes that he did not request such an
instruction, and he therefore must show plain error.
Although simple assault was a possible lesser-included
offense in this case, Judge Thompson did not commit plain error
in declining to give the instruction sua sponte. In Heaps v.
State this court adopted the majority rule that a trial judge
need not instruct a jury on a lesser-included offense unless one
or both of the parties request it.21 This is true [e]ven when
[as here] the evidence clearly supports a lesser-included
offense.22 Adhering to our decision in Heaps, we conclude that
Judge Thompson did not commit plain error in failing to instruct
the jury on the lesser-included offense of assault.
The sentence which Judge Thompson imposed was
not clearly mistaken
Judge Thompson found that Mooney was a third-felony
offender for purposes of presumptive sentencing. As a third-
felony offender convicted of sexual assault in the first degree,
Mooney faced a presumptive term of 25 years of imprisonment.23
Prior to sentencing, the State proposed four
aggravating factors in Mooneys case: (1) that a person, other
than an accomplice, sustained physical injury as a result of
Mooneys actions,24 (2) that Mooneys prior criminal history
included conduct involving aggravated or repeated instances of
assaultive behavior,25 (3) that Mooney had three or more felony
convictions,26 and (4) that Mooney had engaged in the same or
other conduct involving the same or another victim.27 Judge
Thompson found that all of these aggravating factors existed in
this case.
Mooney proposed three mitigating factors, and Judge
Thompson found that two applied. First, he found that Mooneys
conduct was among the least serious within the definition of
first-degree sexual assault.28 Second, he found that Mooney had
assisted authorities to detect, apprehend, and prosecute other
persons who committed an offense.29 Judge Thompson pointed out
that Mooney had five prior felony convictions. He considered the
fact that the prior felony convictions were old and some of them
were arguably not egregious offenses. But he also considered the
fact that Mooney had a history of committing assaults. Even
though Judge Thompson found that Mooneys conduct in his present
conviction was among the least serious conduct included in the
definition of the offense, he pointed out that it was still a
serious offense. He concluded that he should impose the
presumptive sentence which the legislature established. He
therefore imposed the sentence of thirty years with five years
suspended.
As a preliminary matter, although Mooney concedes that
it was proper for Judge Thompson to consider his prior rape
conviction from 1981, he argues that Judge Thompson should not
have considered his earlier felony convictions. But we rejected
an argument similar to Mooneys in Gilley v. State.30 In Gilley
we interpreted AS 12.55.145(a)(1)(A) to exclude a defendants
prior felony if the defendants current offense was committed ten
years or more after the defendant was discharged from his or her
last felony sentence (including any period of probation or
parole).31 But if a defendant had been restricted because of a
prior felony conviction within the ten-year period, the
sentencing court was to consider all of the defendants prior
felony convictions for purposes of presumptive sentencing.32 We
conclude that Judge Thompson did not err in finding that Mooney
was a third-felony offender for purposes of presumptive
sentencing.
Mooney argues that his sentence was excessive. We have
earlier set out Judge Thompsons reasons for imposing the sentence
which he did. We conclude that Judge Thompsons findings support
the sentence and conclude that the sentence which he imposed is
not clearly mistaken.33
Conclusion
We conclude that Mooneys claims of error have no merit
and that Judge Thompson was not clearly mistaken in imposing
Mooneys sentence. We accordingly AFFIRM the conviction and
sentence.
AFFIRMED.
_______________________________
1 476 U.S. 79, 84, 106 S.Ct. 1712, 1716, 90 L.Ed.2d 69
(1986).
2 See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113
L.Ed.2d 411 (1991) (prohibiting the prosecution from exercising a
racially motivated challenge whether or not the person challenged
was the same race as the defendant); Georgia v. McCullum, 505
U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (prohibiting
criminal defendants from exercising peremptory challenges to
exclude jurors based on race); Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1992)
(extending Batson to private litigants in a civil case); J.E.B.
v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d
89 (2000) (extending Batson to prohibit gender discrimination
during jury selection).
3 Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857,
112 L.Ed.2d 935 (1991) (citing Batson, 476 U.S. at 99-100, 106
S.Ct. at 1724-25).
4 Id. (quoting Batson, 476 U.S. at 99 n.24, 106 S.Ct. at
1725 n.24).
5 Id.
6 See, e.g., People v. Richardson, 727 N.E.2d 362, 409 (Ill.
2000); Laney v. State, 515 S.E.2d 610, 612 (Ga. 1999); State v.
Robinson, 676 A.2d 384, 386-87 (Conn. 1996); State v. Wilson, 868
P.2d 656, 661 (N.M. App. 1993); U.S. v. Cashwell, 950 F.2d 699,
704 (11th Cir. 1992); Pacee v. State, 816 S.W.2d 856, 859 (Ark.
1991); U.S. v. Dobynes, 905 F.2d 1192, 1196 (8th Cir. 1990)
(cert. denied 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167);
People v. Evans, 530 N.E.2d 1360, 1364 (Ill. 1988); Stanley v.
State, 542 A.2d 1267, 1276 (Md. 1988); Thomas v. State, 517 So.2d
1285, 1287-88 (Miss. 1987). But see People v. Bolling, 591
N.E.2d 1136, 1139 (N.Y. 1992) (holding that a Batson challenge
can be raised regardless of whether jury selection has been
completed).
7 See, e.g., State v. Ford, 39 P.3d 108, 113 (Mont. 2001);
Sorensen v. State, 6 P.3d 657, 662 (Wyo. 2000); Morning v. Zapata
Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997); U.S. v.
Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996); State v. Cummings,
838 S.W.2d 4, 6 (Mo. App. 1992); U.S. v. Biaggi, 909 F.2d 662,
679 (2nd Cir. 1990); State v. Harris, 754 P.2d 1139, 1140 (Ariz.
1988); Govt of Virgin Islands v. Forte, 806 F.2d 73, 76 (3rd Cir.
1986).
8 See March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
9 See Ford, 39 P.3d at 112.
10 Wardlow v. State, 2 P.3d 1238, 1246 (Alaska App. 2000).
11 The prosecutor was prevented from presenting the
specific facts of the prior conviction to the jury they were
only made aware of the fact that a prior conviction existed.
12 Wardlow, 2 P.3d at 1248; McGill v. State, 18 P.3d 77,
81 (Alaska App. 2001).
13 McGill, 18 P.3d at 81 (quoting Allen v. State, 945 P.2d
1233, 1238 (Alaska App. 1997)).
14 Allen, 945 P.2d at 1239.
15 Alaska Rule of Evidence 608(a).
16 Evidence Rule 608(a) & (b) (emphasis supplied).
17 Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91
(Alaska 1974).
18 See Rollin M. Perkins & Ronald N. Boyce, Criminal Law
(3rd edition 1982), pp. 837-38.
19 Wayne R. LaFave, Substantive Criminal Law (2nd ed.
2003), 6.1(c), Vol. 1, pp. 426-27.
20 See Websters New World Dictionary of American English
(Third College Edition, 1988), p. 1128: reflex adj. ... 2 b)
physiol. designating or of an involuntary action, [such] as a
sneeze, resulting from a stimulus that is carried by an afferent
nerve to a nerve center and the response that is reflected along
an efferent nerve to some muscle or gland.
21 30 P.3d 109, 115 (Alaska App. 2001) (declining to find
plain error where the trial court instructed on first-degree
assault, but not on the lesser-included charges of second, third,
and fourth-degree assault).
22 Id. (quoting LaFave, Criminal Procedure (2nd ed. 1999),
24.8(t), p. 591).
23 AS 12.55.125(i)(4).
24 AS 12.55.155(c)(1).
25 AS 12.55.155(c)(8).
26 AS 12.55.155(c)(15).
27 AS 12.55.155(c)(18)(B).
28 AS 12.55.155(d)(9).
29 AS 12.55.155(d)(12).
30 955 P.2d 927 (Alaska App. 1998).
31 Id. at 928.
32 Id. at 930.
33 McClain v. State, 519 P.2d 811 (Alaska 1974).
