Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Soundara v. State (02/11/2005) ap-1971
Soundara v. State (02/11/2005) ap-1971
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
VANNAPHONE SOUNDARA, )
) Court of Appeals No.
A-8329
Appellant, )
Trial Court No. 3AN-00-3896 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1971 February 11, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Vannaphone Soundara assaulted his common-law wife over
the course of six or seven hours. Based on this conduct,
Soundara was convicted of mitigated kidnapping (i.e., a
kidnapping in which the defendant voluntarily releases the victim
without sexually assaulting or inflicting serious physical injury
on the victim) and two counts third-degree assault.1
Soundara appeals his convictions, contending that the
trial judge improperly rejected his efforts to remove a juror
after the juror disclosed, in the middle of trial, that his
mother had been the victim of domestic violence. In a separate
argument, Soundara also contends that the evidence presented at
his trial supports only one conviction for third-degree assault,
not two.
In addition, Soundara appeals his kidnapping sentence.
He argues that the sentencing judge applied the wrong presumptive
term when calculating his sentence, and he further argues that
the evidence does not support the judges finding of aggravating
factor AS 12.55.155(c)(2) that Soundara acted with deliberate
cruelty.
For the reasons explained here, we remand Soundaras
case to the superior court for reconsideration of the juror
issue. We can not say that the trial judge abused his discretion
when, following full disclosure of the facts, the judge concluded
that the juror could be fair. Nevertheless, Alaska law is clear
that if the juror knowingly withheld relevant information during
voir dire, Soundara would be entitled to removal of the juror
regardless of whether the juror could be fair. The trial judge
never made a finding as to whether the juror knowingly withheld
relevant information during voir dire; accordingly, we must
remand Soundaras case to the superior court.
In addition, we conclude that Soundaras two convictions
for third-degree assault must merge into one consolidated
conviction. It is true, as the State argues, that the evidence
presented at Soundaras trial is sufficient to support the
conclusion that Soundara assaulted the victim twice, with the two
assaults separated by a significant interval. But the jury was
never asked to decide this issue and this question of fact is
for the jury, not for the trial judge or for an appellate court.
Finally, we conclude that Soundaras sentencing judge
employed the correct presumptive term, and that the evidence
supports the sentencing judges finding of deliberate cruelty.
The facts of the kidnapping and assault
On May 4, 2000, Soundaras common-law wife,
T.K., told Soundara that she was leaving him and moving
to California. During the next two days, Soundara and
T.K. argued repeatedly about T.K.s decision. Then, on
the night of May 6th, Soundara bound T.K.s hands and
feet with speaker wire. For the next six or seven
hours, Soundara beat T.K. intermittently while the
couples two small children cried in a nearby bedroom.
According to the States evidence, Soundara
whipped T.K. with speaker wire, hitting her more than
30 times and leaving cuts and bruises over half of her
body. During the course of the hours-long assault,
Soundara strangled T.K. (again, with the speaker wire),
he struck her with a knife handle and with the dull
edge of the knife blade, and he struck her with the
butt of a gun. At one point, Soundara pointed the gun
between T.K.s eyes and threatened to shoot her. He
also threatened to slice T.K.s thigh with the knife and
to rub salt into the wound. And Soundara told T.K.
that if she left him after this, he would shoot their
children, set fire to them, and then kill himself.
Finally, around five oclock in the morning on May 7th,
Soundara released T.K..
Based on these events, Soundara was charged
with kidnapping and several counts of first-, second-,
and third-degree assault.
The challenge to Juror Stahn
As jury selection was beginning, the trial
judge, Superior Court Judge Larry D. Card, required all
of the prospective jurors to swear to tell the truth
during the jury selection process. Judge Card then
read the indictment against Soundara. This indictment
informed the prospective jurors that Soundara was
charged with restraining T.K. with the intent to
inflict injury on her, and that he was additionally
charged with causing injury to T.K. by means of wire or
cord, and with threatening T.K. with both a gun and a
knife. Before the attorneys commenced their voir dire
questioning, Judge Card asked the members of the jury
pool if there was any reason why they felt they could
not be fair in a case like Soundaras. Prospective
juror Keith Stahn did not respond to Judge Cards
question.
The prosecutor then told the prospective
jurors that Soundaras case concerned domestic violence,
that it was a case involving [an] assault on a woman by
means of a knife and speaker wire. The prosecutor
asked the prospective jurors whether anyone would have
a problem sitting here and listening to the facts of
this case. Stahn did not respond.
The prosecutor told the jurors that, if
Soundaras case was to be decided impartially, it was
important that the jurors not have anything in [their]
background ... to interfere with [their] listening to
the facts of this case and coming to a [fair]
conclusion at the end of the trial. The prosecutor
then asked the prospective jurors, Has anyone been
charged with, [or been] the victim of, or [been] a
witness in [an] assault or [an act of] domestic
violence? Several potential jurors responded to the
prosecutors question, but Stahn did not.
While Stahn was present in court, several
prospective jurors revealed that family members, or
other people whom they were close to, had been victims
of domestic violence. All of these prospective jurors
were released from jury service. In addition, several
other jurors responded to questions concerning the
difficulty of remaining impartial in cases like
Soundaras, if a friend or family member of theirs had
been subjected to domestic violence.
When it was Stahns turn for individual voir
dire, the prosecutor asked him, So youre comfortable
with everything that youve heard, and [you have] no
questions about ... the issues that have been raised?
Stahn replied, No problems. The prosecutor then asked
Stahn if there was any reason why Stahn could not sit
as a juror in Soundaras case. Stahn responded, No, I
dont think that theres any reason but then he added
that he probably should talk about one thing ... that
came up yesterday. Stahn thereupon revealed that he
was a member of the Ruffed Grouse Society, an
organization that supports the preservation of
woodlands for grouse and other game birds.
When it was Soundaras attorneys turn to
question Stahn, the defense attorney asked if Stahn had
ever had [an] experience with ... a family member or
... friend where domestic violence [was] an issue.
Stahn replied, No.
Based upon Stahns answers to these voir dire
questions, Soundaras attorney passed Stahn for cause.
But later in the selection process, after two
other prospective jurors had been questioned about
their experience with domestic violence, Stahn asked
Judge Card for a sidebar (i.e., a private conference
with the judge and the attorneys). When the sidebar
conference was convened, Stahn told the judge:
Stahn: It just occurred to me that
maybe I should let you know that Im separated
from my wife, and [that] we live in separate
households. I have possession of my son; she
has possession of my daughter. I dont think
that that would affect my decision ... or
[my] judgement [in this case].
The Court: Well, divorce happens in a
lot of families. But is there domestic
violence being alleged ... by either party?
Stahn: No.
The Court: So, do you feel that [this]
would affect your ability to be fair [in this
case]?
. . .
Stahn: [No,] I can be fair.
Neither attorney had any questions based on
this exchange, so Stahn resumed his place
among the prospective jurors.
Neither side exercised a peremptory
challenge against Stahn, so he ultimately
became a member of the jury. During jury
selection, Soundaras attorney exercised eight
of his eleven allotted peremptory
challenges.2 That is, the defense attorney
had three peremptory challenges remaining
when the attorney decided to leave Stahn on
the jury.
On the first day of trial (December
5, 2001), Judge Card asked all of the
selected jurors to stand and take a second
oath their oath as jurors to decide
Soundaras case fairly and honestly. Judge
Card told the jurors that the criminal
justice system depends on ... the honesty and
integrity of ... individual jurors. The
judge also told the jurors, [By taking this
second oath,] you affirm that your answers to
the questions that were [earlier] put to you
concerning your qualifications to sit on this
jury were complete and correct ... and that
there [is] nothing that I or the parties
should know about you that we did not know
from asking [those] questions as to your
ability to sit as a juror.
The judge then asked the jurors,
Now, ... do any of you believe that there is
something that we should know that we do not
know now? Stahn remained silent.
Soundaras trial commenced. Both
parties gave their opening statements, and
then the State presented its first witness.
At the conclusion of this first witnesss
testimony, Judge Card announced that he had
other business that required him to call a
recess. Stahn then spoke up, Your Honor, ...
is it possible to get a sidebar?
At this second sidebar conference,
Juror Stahn revealed that his mother had been
the victim of domestic violence:
Stahn: Your Honor, it occurred to me
when [the attorneys] were doing their opening
remarks that although I was a small child, I
was only nine months [or] a year or two old,
whatever my mother was involved in domestic
violence, I guess you could call it, with my
[biological] father. ... Ive heard stories
from her [and] one that sticks out in my mind
is about ... some conflict between the two
[of them], and throwing a knife or something
behind the stove, and although I dont
[personally] remember any of that.
The Court: All right; I see. Its just
what you were told [by your mother]?
Stahn: Yes, sir.
The Court: All right. Does that affect
your ability to still be a fair juror in this
case?
Stahn: No, sir.
The Court: All right. You just wanted
to bring [this] to the attention of the
parties?
Stahn: Yes, please.
Judge Card then asked the attorneys
if, because of Stahns revelation, they wished
to ask any further questions. Neither
attorney wished to ask any other questions of
Stahn. However, Soundaras attorney declared
that she would have exercised a peremptory
challenge against Stahn if she had known of
this.
Judge Card refused to allow the
defense attorney to exercise a peremptory
challenge at that stage of the proceedings
(i.e., with the jury already sworn and the
trial already begun). The judge told the
defense attorney:
The Court: It sounds ... to me that
weve had to dig up some old, old, old injury
to [Stahns] family. ... Ive observed Mr.
Stahn. Hes actually brought out everything
he can think of that would keep him from
being involved in this case. He told us that
this happened when he was very young. He has
no recollection of any abuse himself, but it
is [the] stories he has been told. And it
seems ... to me, when a person is told a
story and [I acknowledge that] a mother is
very important [, but] on the other hand, he
doesnt sound like hes formed any opinions nor
is he going to be unfair to either party.
And had he been challenged for cause, I would
not have accepted such a challenge.
And it seems ... to me now, after all
the questions that were asked, [that] to
accept [a peremptory] challenge [at this
point] would defeat the [selection] process
[that] weve already gone through. We cant
pick other jurors. You know, were in flu
season. I dont know if were going to be able
to keep all fourteen [jurors that we
currently have]. We have a high number of
flu cases in the community. [This trial
will] hopefully not [be] long ... , but [we
will] recess over the weekend. ...
If I give [the defense] a peremptory
[challenge], Id have to give the State one,
and wed have to start jury selection again
and Ive already sworn this jury, jeopardy has
attached, and so wed be in mistrial mode, and
... I havent heard you asking for a mistrial.
...
Right now, we have fourteen jurors, and
so I dont want to let [Mr. Stahn] go at this
time. But Ill reconsider the issue at the
close of the evidence if you wish to ...
raise it again. I dont have any problem with
[your] raising it again before we finish
[this] case. So the application [to exercise
a peremptory challenge] will be denied.
Upon hearing Judge Cards ruling,
Soundaras attorney immediately asked for a
mistrial:
Defense Attorney: Your Honor, Im asking
at this point for a mistrial. ... I have to
agree with the Court that, given the
information we have from [Mr. Stahn], I dont
have a strong argument for a challenge for
cause. But this was information that he
should have given to us. And if I had known
[about] it, I would have used [a] peremptory
[challenge]. [And] I think [that] if the
Court is going to [stick with] its decision,
[then we] should use [Mr. Stahn] as [an]
alternate that when we get to [the] point
[in the trial] where were choosing
alternates, ... he should be one of them.
Judge Card did not address the defense
attorneys request to designate Stahn as an
alternate juror. However, the judge
reiterated that he found no basis for
excusing Stahn for cause, and he again denied
the defense attorneys request to exercise a
late peremptory challenge. In addition,
Judge Card denied the defense attorneys
motion for a mistrial.
This issue arose one final time, at
the end of Soundaras trial. Judge Card was
getting ready to trim the jury to twelve by
placing the names of all fourteen jurors in a
box and then randomly selecting two of the
jurors to be alternates. At this point, the
defense attorney reminded Judge Card that he
had promised to revisit the issue of Juror
Stahn:
Defense Attorney: Your Honor, Juror
[Stahn] told us, after he was chosen as a
juror, that he forgot to talk to us about the
fact that his mother had been beaten by his
father ... when he was very young. And I
informed the Court that, if I had known this,
I would have used a peremptory challenge
[against] him. And the Court denied [my]
request to bump him off [the jury], but [the
Court stated] that we would have another
conversation about it [at the close of the
trial]. And Im asking that [Stahn] be used
as one of the alternates. ...
The Court: My recollection is that he
told us that [the domestic violence] happened
when he was, like, six months old, and he had
no [personal] recollection [of it], and it
was stories told ... to him by his mother,
... . And he said [that] it would not affect
his ability to be a fair and impartial juror.
So your objection is overruled.
Soundaras argument that, because of Juror Stahns late
disclosure of a family history of domestic
violence, Soundara should have been allowed to
exercise a late peremptory challenge against Stahn
Under Alaska law, a party wishing to exercise
a peremptory challenge against a prospective juror must
do so before the jury panel is sworn.3
Soundara acknowledges this rule, but he argues
that the rule should be relaxed when a prospective
juror fails to disclose information pertinent to the
questions posed during voir dire, if that information
would have provided a reasonable ground for the party
to exercise a peremptory challenge against the juror.
We do not doubt that Soundaras attorney might
reasonably have wished to peremptorily challenge Juror
Stahn after Stahn revealed that his mother had been the
victim of domestic violence. It appears that Stahn
might not have witnessed this violence himself, or
might have witnessed it at such a young age that he had
no personal recollection of it. Nevertheless,
Soundaras attorney could reasonably surmise that Stahn
had an emotional attachment to his mother and that,
based on that emotional attachment, Stahns knowledge of
reports that his mother had been subjected to domestic
violence would affect Stahns assessment of criminal
cases like Soundaras i.e., criminal cases involving
allegations of domestic violence.
Nevertheless, we must be mindful of the
policies that underlie our rule that peremptory
challenges must be exercised before the jury is sworn.
In a jury trial, jeopardy attaches when the jury is
sworn.4 Thus, any ensuing changes to the composition
of the jury may require a mistrial, or (at the least)
will enhance the possibility that a mistrial will be
required later, even if replacement jurors are
currently available.
Moreover, if we allowed parties to resurrect
their unused peremptory challenges in the middle of
trial, we would hand attorneys a potent weapon for
forcing a mistrial in cases that were going badly for
them. A peremptory challenge need not be based on a
valid, objective reason to distrust the jurors ability
to be fair. Instead, an attorney can exercise a
peremptory challenge for any non-discriminatory
reason.5 Thus, almost any new information concerning a
juror might provide an attorney with grounds for
arguing with complete honesty that the attorney would
have peremptorily challenged the juror if they had
known about this new information.
For these reasons, our law requires attorneys
to assiduously employ the voir dire process to elicit
any and all facts that the attorney might care about
when evaluating the suitability of the prospective
jurors. An attorney must ask sufficient questions, and
sufficiently precise questions, to elicit all desired
information from prospective jurors. If the attorney
fails to do this, the attorney will not be heard to
complain later that newly revealed information, had it
been disclosed earlier, would have prompted the
attorney to exercise one or more additional peremptory
challenges.
We therefore reject Soundaras argument that
he should have been given the opportunity to exercise a
late peremptory challenge against Stahn after Stahn
revealed that his mother had been the victim of
domestic violence.
The issue of whether Juror Stahn should have been
dismissed from the jury for cause
The rule that a party must exercise their
peremptory challenges before the jury is sworn is
premised on the assumption that the prospective jurors
have honored their oath to fully and truthfully answer
the questions put to them during the jury selection
process. It is not equitable to bind the parties to
the results of the jury selection process unless the
parties are assured that prospective jurors are
honestly cooperating in that process that prospective
jurors are not consciously thwarting the parties jury
selection efforts.
For this reason, if a juror lies or
consciously withholds information during voir dire
(knowing that the questions being asked on voir dire
call for this information), and if the true facts would
have supported a challenge for cause, our law considers
this an obstruction of justice and a ground for
requiring a new trial.6
For instance, in Swain v. State, 817 P.2d 927
(Alaska App. 1991), a juror concealed her friendship
with a woman who had been robbed by the defendant, and
also potentially concealed her second-hand knowledge of
this crime, knowledge obtained in conversations with
her friend.7 Relying on the Alaska Supreme Courts
decision in Fickes v. Petrolane-Alaska Gas Service,
Inc.,8 we held that it was an obstruction of justice
for the juror to fail to reveal her friendship with the
victim or the fact that she had spoken with the victim
about the crime.9 We further held that the jurors
misconduct might require a new trial, depending on
exactly what second-hand knowledge the juror had
concealed.10
In Swain, we remanded the case to the
superior court with directions to assess the need for a
new trial by applying the three-part test established
by the supreme court in Fickes v. Petrolane-Alaska:
(1) Would the appellant have challenged the juror if
the juror had not concealed or misrepresented the
information? (2) Was the improperly withheld
information directly relevant to the decision of the
case, or was it instead merely collateral to the issues
being litigated? and (3) Is there a reasonable
possibility that the improperly withheld information
affected this jurors (or any other jurors) decision?11
Returning to Soundaras case, the facts of the
jury selection process (construed in the light most
favorable to Soundara) support the conclusion that
Stahn consciously withheld information concerning the
history of domestic violence in his family.
As detailed above, Judge Card repeatedly told
the prospective jurors that it was important for them
to reveal any information that might raise doubts
concerning their ability to be fair. The prosecutor
echoed this theme, telling the prospective jurors that
they must not have anything in [their] background [that
would] interfere with [their] ... coming to a [fair]
conclusion at the end of the trial.
Both the prosecutor and the defense attorney
repeatedly asked prospective jurors if they, their
family members, or their close friends had experienced
domestic violence. Several prospective jurors were
dismissed on this basis. After sitting through all of
this, Stahn repeatedly affirmed either expressly or by
his silence in the face of inquiry that none of these
questions and admonitions applied to him.
Stahn then slowly began to reveal more
information. First, he volunteered that he was a
member of a game-bird habitat conservation society (the
Ruffed Grouse Society). Later, he asked for a sidebar
in which he revealed that he had been divorced. During
the ensuing discussion, Stahn was reminded that the
real issue was domestic violence: he was expressly
questioned as to whether his divorce involved
allegations of domestic violence. Stahn said no but
by confining his answer to the divorce proceeding,
Stahn failed to give the parties any indication that
his mother had experienced domestic violence.
Later, Stahn was sworn as a juror. At that
time, Judge Card told all of the jurors that, by taking
this second oath, all of them affirmed that their
answers to the questions put to them during voir dire
were complete and correct. Judge Card then asked all
of the jurors, Do any of you believe that there is
something that we should know about that we do not know
[now]? Stahn (by his silence) declared that there was
nothing.
Then, a little later, after the parties had
given their opening statements and the first witness
had testified, Stahn asked for another sidebar. Only
then did Stahn reveal that his mother had been the
victim of domestic violence.
Stahns explanation for his late disclosure is
ambiguous: Your Honor, it occurred to me when [the
attorneys] were doing their opening remarks ... . This
could be an assertion that Stahn remembered this
information for the first time while he was listening
to the attorneys deliver their opening statements. On
the other hand, Stahn might have been asserting that he
perceived the significance of this information for the
first time while he listened to the attorneys opening
statements. But in either case, the record provides
grounds for questioning Stahns assertion.
If, in fact, Stahn understood the relevance
of this information during the jury selection process,
and if he consciously withheld this information in the
face of questions and admonitions that reasonably
called for this information, then Judge Card should
have evaluated Soundaras motion for a mistrial using a
test analogous to the one we employed in Swain. In
particular, Judge Card should have considered whether
Stahn consciously withheld the information concerning
his family history of domestic violence and, if so,
whether Soundara would have challenged Stahn if the
improperly withheld information had been disclosed.
In this regard, we emphasize that if Stahn
did indeed consciously withhold this information, it
does not matter whether he did so with the intent to
deprive Soundara (or the State) of a fair trial, or
whether he did so out of reticence to reveal a
sensitive facet of his family history, or for any other
reason. A prospective jurors conscious
misrepresentation or withholding of information during
voir dire constitutes an obstruction of justice, not
because of any provable unfairness in the jurys
verdict, but because the jurors conduct deprives the
parties of their rights during the jury selection
process. As we explained in State v. Titus, 933 P.2d
1165 (Alaska App. 1997), [w]hile the collateral
consequences of voir dire fraud might often be
invalidation of the verdict, the [supreme courts
opinion in] Fickes ... clearly focused on the defect in
voir dire.12
Although Judge Card ruled that Stahns late-
disclosed information did not provide a basis for a
challenge for cause, the record shows that the judge
was considering only the question of whether this new
information proved that Stahn could not be a fair
juror. Judge Card never made a finding on the issue of
whether Stahn consciously withheld pertinent
information during the jury selection process, and
whether this information would have prompted Soundara
to challenge Stahn. If so, then this would have been
an independent reason to grant Soundaras motion for a
mistrial.
Accordingly, we must remand Soundaras case to
the superior court. Judge Card must determine whether,
during the jury selection process (i.e., before the
jury was sworn), Stahn understood the relevance of the
reports of domestic violence perpetrated on his mother,
and Stahn consciously withheld this information in the
face of questions and admonitions that reasonably
called for this information.
If Judge Card finds these things to be true,
then Judge Card must decide whether Soundara is
entitled to a new trial by conducting the three-part
analysis we adopted in Swain. That is, Judge Card must
decide: (1) Would Soundara have challenged Stahn if
Stahn had not concealed this information? (2) Was the
improperly withheld information directly relevant to
the decision of Soundaras case, or was it instead
merely collateral to the issues being litigated? and
(3) Is there a reasonable possibility that Stahns
knowledge of domestic violence perpetrated against his
mother affected Stahns vote as a juror?
(In this appeal, Soundara and the State argue
whether, at the close of Soundaras trial, Judge Card
had the discretion to designate Stahn as an alternate
juror a procedural device that might have avoided the
issues of whether Soundara should have been allowed to
exercise a late peremptory challenge, or whether Stahn
should have been excused for cause. We view this
alternate juror controversy as moot. As we have
explained, a peremptory challenge to a juror must be
exercised before the trial commences, but a jurors
willful misrepresentation or withholding of pertinent
information during voir dire can be an independent
ground for declaring a mistrial or granting a new
trial. In Soundaras case, his entitlement to relief
hinges on resolution of this latter issue.)
Soundaras two convictions for third-degree assault must
merge into one consolidated conviction
Soundara was found guilty of third-degree
assault under two separate clauses of AS 11.41.220(a).
He was convicted under section 220(a)(1)(A) for
recklessly placing T.K. in fear of imminent serious
physical injury by means of a dangerous instrument, and
he was convicted under section 220(a)(1)(B) for
recklessly causing physical injury to T.K. by means of
a dangerous instrument.
Soundara, relying on this Courts decision in
Allain v. State,13 argues that these two convictions
were based on the same underlying conduct an assault
with speaker wire and therefore the two convictions
must merge into a single consolidated conviction. The
State responds that two separate convictions are proper
because the evidence at Soundaras trial showed that the
two assault charges were premised on separate acts,
with a significant break in time and circumstance
between each act.14
Even though the evidence at Soundaras trial
might be interpreted in the way the State suggests, the
problem remains that Soundaras jury was never asked to
resolve whether the two convictions were based on one
continuing assault or separate assaults. We addressed
this same problem in Simmons v. State, 899 P.2d 931
(Alaska App. 1995).
The issue in Simmons was whether the
defendant could properly be convicted of two separate
counts of being a felon in possession of a handgun, or
only one consolidated count. On appeal, the State
contended that the evidence presented at Simmonss trial
was sufficient to establish that Simmons had given the
gun away at one point, and then had regained possession
of it, so that he committed two separate acts of
possession.15 We held that this issue had to be
decided by the jury that it could not be decided by an
appellate court in the first instance:
[The fundamental problem with the States
argument is that], although the evidence
presented at trial might theoretically have
supported a finding of interrupted
possession, the jury was never required to
consider or decide the issue. Because the
instructions did not apprise the jury of the
need to find that Simmons possession of the
.44 magnum pistol had been interrupted at
some point between the first alleged offense
and the second, the jurys verdicts left the
issue unresolved. At this juncture, [a]ny
ambiguity must be resolved in favor of the
accused. Accordingly, we conclude that
Simmons two convictions must merge.
Simmons, 899 P.2d at 937 (citations omitted).
We reach the same conclusion in
Soundaras case. The jury made no finding as
to whether the two assault convictions were
based on a single underlying act or two
separate acts. Therefore, the convictions
must merge.
Soundaras sentencing for his kidnapping conviction was
governed by a 7-year presumptive term rather than
a 5-year presumptive term
Soundara was convicted of mitigated
kidnapping as defined in AS 11.41.300(d).16 This
offense is a class A felony. Soundara was a first
felony offender, so his sentencing for this class
A felony was governed by AS 12.55.125(c)(1) and
(c)(2).
Section 125(c)(1) states that a first felony
offender convicted of a class A felony is subject
to a 5-year presumptive term unless the offense
involves the circumstances described in section
125(c)(2). The pertinent portion of section
125(c)(2) prescribes a 7-year presumptive term for
a first felony offender convicted of a class A
felony if the defendant possessed a firearm [or]
used a dangerous instrument ... during the
commission of the offense.
At sentencing, Judge Card ruled that
Soundaras case fit under both of these clauses: that
is, he found that Soundara both possessed a firearm and
used dangerous instruments (a knife and speaker wire)
during his kidnapping of T.K.. (Recall that the jury
convicted Soundara of third-degree assault under AS
11.41.220(a)(1)(A) and (1)(B), thus necessarily finding
that he used a dangerous instrument.)
Nevertheless, Judge Card and the parties
engaged in a lengthy debate (over the course of two
separate hearings) as to whether Soundara was subject
to a 5-year or 7-year presumptive term. Soundara
argued that the 5-year presumptive term should apply to
his case because, if it did not, he would be subjected
to a more severe penalty for mitigated kidnapping than
he would have faced if he had been convicted of normal
kidnapping. Judge Card rejected Soundaras position
(for reasons that are not pertinent here), and Soundara
renews his contention on appeal.
Here, in a nutshell, is Soundaras argument:
Normal (unmitigated) kidnapping is an unclassified
felony that has a penalty range of 5 to 99 years.17
Mitigated kidnapping, on the other hand, is a
class A felony (i.e., a lesser degree of felony) with a
penalty range of 0 to 20 years, but the offense carries
various presumptive terms: for first felony offenders,
either 5 years or 7 years; for second felony offenders,
10 years; and for third felony offenders, 15 years.18
Soundara contends that it is fundamentally unfair, and
logically inconsistent, for the law to impose a 7-year
presumptive term on him and other first felony
offenders convicted of mitigated kidnapping involving a
weapon, when he would have faced only a 5-year
presumptive term if he had been convicted of normal
kidnapping, even if he possessed a firearm or used a
dangerous instrument.
The flaw in this argument is that normal
kidnapping does not carry a 5-year presumptive term.
Rather, it carries a 5-year mandatory minimum term.
A mandatory minimum term is the least
possible sentence that can be imposed for a particular
crime. A mandatory minimum represents the legislatures
assessment of how much prison time should be imposed on
an offender even when the offenders background is
extremely favorable and the offender has engaged in the
most mitigated conduct within the definition of the
offense.19 A presumptive term, on the other hand, is
intended for a typical offender. The presumptive term
represents the legislatures judgement as to the
appropriate sentence for a typical felony offender
(i.e., an offender with the specified number of prior
felony convictions, and with a typical background) who
commits a typical act within the definition of the
offense.20
If Soundara had been convicted of normal
kidnapping, he could not have received anything less
than 5 years to serve, and he might have received as
much as 99 years to serve. Moreover, because mandatory
minimum sentences are intended for the least serious
offenses within the statutory definition, Soundara
would have received a more severe sentence than the 5-
year mandatory minimum unless he affirmatively
convinced the sentencing judge that his background was
uncommonly favorable and that his conduct was
uncommonly mitigated.21
But because Soundara was convicted of
mitigated kidnapping, he faced significantly lesser
penalties. Instead of a 99-year maximum sentence, he
faced a 20-year maximum sentence. Instead of a 5-year
mandatory minimum sentence, he faced no mandatory
minimum sentence.
Rather, Soundara faced a 7-year presumptive
term a term of imprisonment that could be adjusted up
or down. If Soundara proved any of the statutory
mitigating factors listed in AS 12.55.155(d), Judge
Card had the authority to reduce Soundaras sentence to
3 years imprisonment.22 And if Judge Card was
convinced that even this much imprisonment would be
manifestly unjust, he could refer Soundaras case to the
statewide three-judge sentencing panel. If the three-
judge panel agreed with Judge Cards assessment, they
could theoretically reduce Soundaras sentence to the
statutory minimum 0 years imprisonment.23
In other words, if Soundara had proved that
both his background and his offense were uncommonly
mitigated, the superior court could have given him a
sentence far less than the applicable 7-year
presumptive term. On the other hand, if Soundara had
been convicted of normal kidnapping, then even if he
proved that his background was extremely favorable and
his offense was extremely mitigated, the superior court
would have been legally bound to give Soundara at least
the mandatory minimum sentence of 5 years imprisonment.
And if the superior court found that Soundaras
background and offense were typical rather than
uncommonly mitigated, Soundara could have received a
sentence far greater than the 5-year mandatory minimum
since the sentencing range for normal kidnapping is 5
to 99 years.
(For example, second-degree murder is another
unclassified felony; its sentencing range is 10 to 99
years.24 In 1983, when the mandatory minimum sentence
for this crime was only 5 years (rather than the
current 10), this Court held that first felony
offenders convicted of second-degree murder should
typically receive between 20 and 30 years to serve.
See Page v. State, 657 P.2d 850, 855 (Alaska App.
1983).)
For these reasons, there is no reason to
doubt the legitimacy of the 7-year presumptive term
specified in AS 12.55.125(c)(2) for Soundaras offense.
Judge Cards finding that Soundara acted with deliberate
cruelty
As explained at the beginning of this
opinion, Soundara tied T.K. up and held her captive for
six or seven hours. During that time, Soundara whipped
T.K. intermittently with speaker wire. In addition,
Soundara beat T.K. with a knife handle and the butt of
a handgun. At one point, Soundara pointed the gun
between T.K.s eyes and threatened to shoot her. He
also threatened to slice T.K.s thigh with the knife and
to rub salt into the wound. Moreover, Soundara told
T.K. that if she left him, he would shoot their
children, set fire to them, and then kill himself.
Based on this evidence, Judge Card found
aggravating factor AS 12.55.155(c)(2) that Soundara
manifested deliberate cruelty during the kidnapping.
Soundara challenges this finding on appeal.
(Judge Card also found aggravator AS
12.55.155(c)(18)(C) that Soundara committed a crime of
domestic violence in the presence or hearing of
children under the age of 16 living in the same
residence. Soundara does not challenge this second
aggravator.)
Soundara argues that his conduct in this
case, while loathsome, did not rise to the level of
deliberate cruelty. But in Jones v. State, 765 P.2d
107 (Alaska App. 1988), this Court upheld a finding of
deliberate cruelty under facts similar to those of
Soundaras case.
The defendant in Jones was convicted of
felony assault. The assault charge arose from an
episode where Jones terrorized his wife and stepson for
a period of approximately five hours.25 We summarized
that assault in our opinion:
Jones assaulted his wife over a period
of approximately five hours. During this
period, he shoved his wifes face in a bowl of
spaghetti, beat her with his fists, held a
knife to her throat and told her he was going
to cut her up into pieces, held a knife to
her ear and cut her ear, threatened and beat
her eleven-year-old son, S.C., and urinated
on his wife and forced S.C. to lie in the
urine.
Jones, 765 P.2d at 109. Based on this evidence, the superior
court found that Jones manifested deliberate cruelty during
this assaultive episode.26 We upheld the superior courts
finding.27
The facts of Soundaras case are substantially similar,
and we therefore reach the same conclusion: the record
supports the sentencing judges finding that Soundaras
conduct manifested deliberate cruelty.
Conclusion
The judgement against Soundara must be
amended to reflect one consolidated conviction for
third-degree assault (and one sentence for this
offense), rather than the two convictions and two
sentences reflected in the present judgement.
With regard to the issue of Juror Stahn, we
remand Soundaras case to the superior court. The
superior court must determine whether Stahn purposely
withheld information concerning his familys history of
domestic violence during the jury selection process.
If so, then Juror Stahn should have been dismissed for
cause and Soundara must receive a new trial.
We affirm the other two rulings challenged in
this appeal: the ruling that Soundaras sentencing was
governed by a 7-year presumptive term, and the ruling
that Soundaras offense was aggravated because Soundara
manifested deliberate cruelty.
We retain jurisdiction of this case pending
the completion of the proceedings on remand. Within 60
days, the superior court shall renew its consideration
of the issue of Juror Stahn, and shall issue written
findings on that issue. The superior court is
authorized, in its discretion, to take additional
testimony and/or allow the parties to present
additional argument.
After the superior court issues its findings,
the parties shall have 30 days to file memoranda
addressing those findings.
When we have received the superior courts
findings and any memoranda filed by the parties, we
shall renew our consideration of whether Juror Stahn
should have been dismissed for cause.
_______________________________
1 AS 11.41.300(a) & (d), and AS 11.41.220(a), respectively.
2 See Alaska Criminal Rule 24(d) (both the State and the
defendant have ten peremptory challenges in felony
cases), and Criminal Rule 24(b)(1)(B) (giving each side
one additional peremptory challenge when, as here, one
or two alternative jurors are impaneled).
3 Grimes v. Haslett, 641 P.2d 813, 816 (Alaska 1982); Pearce
v. State, 951 P.2d 445, 447 (Alaska App. 1998).
4 See March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
5 See Purkett v. Elem, 514 U.S. 765, 768; 115 S.Ct. 1769,
1771; 131 L.Ed.2d 834 (1995) (per curiam); Gottschalk v.
State, 36 P.3d 49, 53-54 (Alaska App. 2001).
6 See State v. Titus, 933 P.2d 1165, 1174-75 (Alaska App.
1997), reversed on other grounds in Titus v. State, 963 P.2d
258 (Alaska 1998). See also United States v. Henley, 238
F.3d 1111, 1121-22 (9th Cir. 2001); United States v.
Colombo, 869 F.2d 149, 151-52 (2nd Cir. 1989); Hard v.
Burlington Northern Railroad, 812 F.2d 482, 485 (9th Cir.
1987); Rios v. Danuser Machine Co., Inc., 792 P.2d 419, 423
(N.M. App. 1990); State v. Martinez, 566 P.2d 843, 845 (N.M.
App. 1977).
7 Swain, 817 P.2d at 929.
8 628 P.2d 908, 910-11 (Alaska 1981).
9 Swain, 817 P.2d at 935.
10Id.
11Swain, 817 P.2d at 935, citing Fickes, 628 P.2d at 911.
12Id. at 1175.
13810 P.2d 1019, 1021 (Alaska App. 1991).
14Quoting Williams v. State, 928 P.2d 600, 604 (Alaska App.
1996).
15Simmons, 899 P.2d at 936.
16 AS 11.41.300(d) states: In a prosecution for
kidnapping, it is an affirmative defense which reduces
the crime to a class A felony that the defendant
voluntarily caused the release of the victim alive in a
safe place before arrest, or within 24 hours after
arrest, without having caused serious physical injury
to the victim and without having engaged in conduct
described in AS 11.41.410(a), 11.41.420, 11.41.434, or
11.41.436.
17See AS 12.55.125(b), which reads (in pertinent part): A
defendant convicted of ... kidnapping ... shall be sentenced
to a definite term of imprisonment of at least five years
but not more than 99 years.
18See AS 12.55.125(c).
19See Clark v. State, 8 P.3d 1149, 1150 (Alaska App. 2000);
Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App.
1983).
20Clark, 8 P.3d at 1150; Mullin v. State, 886 P.2d 1323, 1328
(Alaska App. 1994). See also Juneby v. State, 641 P.2d 823,
833 (Alaska App. 1982), modified and superseded on other
grounds, 665 P.2d 30 (Alaska App. 1983).
21Compare State v. Brueggeman, 24 P.3d 583, 589 (Alaska App.
2001) (when a defendant is convicted of a class B felony,
the defendant should not receive a sentence of less than 90
days unless both the offender and the offense are
significantly mitigated).
22AS 12.55.155(a)(2).
23AS 12.55.165 175.
24AS 12.55.125(b).
25Jones, 765 P.2d at 108.
26Id. at 108.
27Id. at 109.
