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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JOSE G. MANRIQUE, | ) |
| ) Court of Appeals No. A-9461 | |
| Appellant, | ) Trial Court No. 3DI-04-539 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2150 February 22, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Dillingham, Donald D. Hopwood, Judge.
Appearances: Paul E. Malin, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
A jury convicted Jose G. Manrique of first-degree
sexual assault and first-degree burglary.1 Manrique claims that
the superior court erroneously denied his motion for a new trial;
Manrique contended that he did not receive a fair trial because
two jurors were biased. We reject Manriques claim as to one
juror, but conclude that Manrique is entitled to a hearing
regarding the other.
Manrique also argues that the superior court
improperly failed to refer his case to the three-judge sentencing
panel. We address this issue and reject it. The record supports
the superior courts finding that Manrique did not prove that a
referral to the three-judge panel was warranted.
Facts and proceedings
On September 18, 2004, after a day of hiking, A.C. and
some of her friends gathered at A.C.s house in Dillingham for
dinner. Manrique arrived later with one of A.C.s friends.
Manrique and A.C. knew one another from earlier hiking and
fishing excursions. After too much drinking, A.C. became sick,
and her girlfriends cleaned her up and put her to bed. A.C.s
girlfriends stayed and slept in the living room adjoining A.C.s
bedroom.
Manrique and two other men left A.C.s house at 11:30
p.m. to go to Manriques residence where they watched a movie.
Manrique returned to A.C.s house at 3:00 a.m. and let himself in.
He entered A.C.s bedroom. A.C. awoke to discover Manrique pulling
her pants off. A.C. and Manrique conversed with one another.
Manrique kissed her. She told him that it was not okay and that
he should leave. Manrique performed cunnilingus on A.C. A.C.
tried to get Manrique off her, but he held her down and
penetrated her vagina with his penis. Manrique left A.C.s house
around 4:30 or 5:00 a.m.
The jury convicted Manrique of both charges. At the
time of sentencing, Manrique was 42 years old and he had no
criminal history. Superior Court Judge Donald D. Hopwood imposed
a composite term of 9 and 1/2 years with 1 and 1/2 years
suspended. Manrique appeals.
Discussion
Manriques motion for a new trial
Shortly after the jury convicted Manrique, he moved
for a new trial, arguing that two jurors Derrick Darrough and
Connie Timmerman fail[ed] to provide relevant information in
response to counsel and the courts questioning during voir dire
on April 25, 2005. Manrique claimed that Darrough withheld his
social contact with Alisha Downs, a nurse who worked closely with
A.C., and he claimed that Timmerman failed to disclose her prior
employment with SAFE, a Dillingham shelter and advocacy program
for domestic violence and sexual assault victims. (SAFE provided
support to A.C. after she reported the sexual assault, and a SAFE
advocate was assigned to A.C.) Manrique supported his motion
with notarized statements from several individuals.
Manrique argued that his Sixth Amendment right to an
impartial jury was violated by Darroughs failure to disclose the
connection between himself and Downs and to disclose that he had
been inside A.C.s residence. Manrique also argued that right was
violated by Timmermans failure to disclose her prior employment
and experience with SAFE. Manrique claimed that he would have
preempted the jurors if they had provided that information, and
contended that Darrough may have been excused for cause.
Manrique requested an evidentiary hearing.
The State argues, as it did below, that Judge Hopwood
was precluded by Rule 606(b) of the Alaska Rules of Evidence from
considering any of the notarized letters and affidavits attached
to Manriques motion for a new trial.
But that assertion is wrong. Evidence Rule 606(b)
restricts inquiries into the validity of a jurys verdict but it
does not bar inquiries into whether a juror lied or purposely
withheld information during voir dire.2 Therefore, Judge Hopwood
did not err in considering the affidavits.
Judge Hopwood denied Manriques motion for a new trial.
Judge Hopwood assumed that all of the factual assertions in the
motion and supporting affidavits, statements, and attachments are
admissible...and...true. Judge Hopwood pointed out that, during
voir dire, Darrough answered that he knew A.C., and the judge
faulted Manriques counsel for not inquiring further into that
relationship. With respect to the claim that Darrough had been in
A.C.s residence, Judge Hopwood pointed out that [t]he layout of
the house and grounds was not disputed significantly at trial.
Any knowledge the juror had of the property was inconsequential.
The judge also determined that a comment by Darrough that he
desired to be on the jury did not suggest misconduct: Rather, it
connotes an interest in the case and in deliberating with the
rest of the jurors.
Regarding Timmermans prior employment with SAFE, Judge
Hopwood stated that: If past education, training or employment
as a sexual assault advocate were important, counsel could have
asked about it. But the voir dire of the juror was quite brief
and neither attorney questioned the juror about these topics.
Judge Hopwood concluded that both jurors responded
truthfully and adequately to all voir dire questions, and that
the jurors did not violate their duty as jurors and would not
have been excused for cause had they revealed the pertinent
information.
When a court considers an allegation of juror
misconduct, a court follows a two-part inquiry: (1) whether the
evidence establishes a serious violation of the jurors duty, and
if so, (2) whether the violation deprived the complaining party
of a fair trial.3 A serious violation of a jurors duty may be
demonstrated by fraud, bribery, forcible coercion, or any
obstruction of justice.4 In Fickes v. Petrolane-Alaska Gas
Services,5 the Alaska Supreme Court held that it was tantamount
to an obstruction of justice that a juror, during voir dire,
negligently or intentionally failed to disclose that he knew an
important witness in the case, and then during deliberations,
assured his fellow jurors that they could rely on his knowledge
of that witnesss reliability and competence.6 And in Swain v.
State,7 this Court held that it was an obstruction of justice for
a juror not to reveal her friendship with the victim or the fact
that she had spoken with the victim about the crime.8 More
recently, in Soundara v. State,9 we held that it was error for
the trial judge to rule that a jurors late-disclosed information
did not provide a basis for a challenge for cause without first
making a finding on the issue of whether, during the jury
selection process, the juror understood the relevance of the
information and consciously withheld the information in the face
of questions and admonitions that reasonably called for this
information[.]10
Turning to the jurors at issue in this case, Darrough
answered that I know Officer Westlake and [A.C.]. Also, when
Judge Hopwood asked the potential jurors who has heard or read
anything about this case from any source other than what Ive told
you here?, Darrough raised his hand. Manriques attorney asked
Darrough if knowing A.C. would affect his ability to acquit
Manrique of sexual assault if the State did not prove Manriques
guilt beyond a reasonable doubt. Darrough answered: No, I dont
believe so. I dont know her that well. The attorney had no
additional questions.
Judge Hopwood found that Manriques trial attorney
failed to inquire further after Darrough answered that he knew
A.C.
In Soundara, we ruled that:
An attorney must ask sufficient questions,
and sufficiently precise questions, to
elicit all desired information from
prospective jurors. If the attorney fails to
do this, the attorney will not be heard to
complain later that newly revealed
information, had it been disclosed earlier,
would have prompted the attorney to exercise
one or more additional peremptory
challenges.11
Based on this record, Judge Hopwood could properly
conclude that Manrique had not shown that Darrough had
consciously withheld information in the face of questioning that
reasonably called for the juror to respond. Darrough did respond
that he knew A.C., and Manriques attorney inquired briefly as
described above, but he did not put additional questions to the
juror.
Judge Hopwood also denied Manriques request for a
hearing regarding juror Timmerman. Judge Hopwood accepted as
true the notarized statements Manrique provided indicating that
Timmerman had worked for SAFE. Based on these statements,
Manrique asserted that Timmerman had a previous working
relationship with people who would be testifying against
defendant.
Judge Hopwood noted that the questioning of the juror
was brief and neither party asked the juror about her past
employment (with SAFE) or her education. Judge Hopwood ruled
that if the jurors education, training or employment as a sexual
assault advocate was important, it was the attorneys obligation
to ask those questions directly.
However, the jurors were asked whether anyone had
special knowledge about the medical field. Timmerman did not
raise her hand, but other jurors responded and discussed their
special medical knowledge. Two jurors disclosed (on two
different days of jury selection) that they worked for SAFE.
Another juror disclosed that she had counseled people who were
victims of sexual assault. These jurors were preempted.
The jurors knew that one count charged in Manriques
case was sexual assault, and they were asked whether they knew
any victim of a sexual assault. Although the notarized statements
provided by Manrique indicated that Timmerman worked for SAFE,
and sexual assault victims are one of the groups served by the
organization, she did not raise her hand.
Judge Hopwood faulted counsel for failing to inquire
specifically into Timmermans prior employment or to question her
about past education, training or employment as a sexual assault
advocate. He ruled that Manrique failed to demonstrate
misconduct and that Timmerman would not have been removed for
cause.
But, the test for juror misconduct does not require a
showing that a juror would have been removed for cause.12 In
Soundara, this Court held that it was error for a judge to
determine that a juror would not have successfully been
challenged for cause without first determining if the juror
understood the relevance of the information during the jury
selection process and consciously withheld that information in
the face of questions and admonitions that reasonably called for
it. We ruled that if the trial judge finds that these two things
are satisfied, then the test in Swain should be applied: (1)
Would the defendant have challenged the juror if the juror had
not concealed this information? (2) Was the improperly withheld
information directly relevant to the decision of the defendants
case, or was it instead merely collateral to the issues being
litigated? and (3) Is there a reasonable possibility that the
jurors withheld information affected the jurors vote?13
For two days the prosecutor and Manriques attorney
questioned prospective jurors about their beliefs with respect to
sexual assault, victim and perpetrator stereotypes, and how a
sexual assault victim should respond. If juror Timmerman was
aware of this earlier questioning, it is reasonable to conclude
that the questioning should have alerted Timmerman to the
importance of revealing her prior employment with SAFE and any
specialized knowledge she had as a result of that employment.
But when asked if there was anything about this case, what youve
heard so far, that makes you think, maybe I shouldnt be here?,
Timmerman replied, No.
Therefore, we will remand the case to the superior
court for an evidentiary hearing to determine whether there was a
serious violation of Timmermans duty as a juror. To succeed at
this hearing, Manrique must show that Timmerman understood the
potential relevance of the information that she had worked with
SAFE, and if so, that she consciously withheld that information
in the face of questions and admonitions reasonably calling for
its disclosure. If Manrique establishes these points, the
superior court must then answer the three-part test from Swain
discussed above. The superior court shall report its findings to
this court and we will resume our consideration of the case.
Manriques claim regarding referral to the three-judge
sentencing panel
Manrique was a first-felony offender and faced an 8-
year presumptive term for his first-degree sexual assault
conviction.14 There were no statutory aggravating or mitigating
factors alleged.
Manrique asked Judge Hopwood to refer his case to the
three-judge sentencing panel.15 He contended that: (1) the
presumptive term of 8 years would be manifestly unjust or plainly
unfair under the facts of his case; and (2) manifest injustice
would result from failure to consider a non-statutory factor his
exceptional prospects for rehabilitation, based on his lack of a
prior record and his good reputation in the community.
We consider the totality of the circumstances in
determining whether the sentencing court erred in not referring
the case to a three-judge panel.16 It was Manriques burden to
prove by clear and convincing evidence his exceptional potential
for rehabilitation.
When a defendant proposes the non-statutory
mitigator of extraordinary potential for
rehabilitation, it is the defendants burden
to prove by clear and convincing evidence
that [the defendant] can be adequately
treated in the community and need not be
incarcerated for the full presumptive term
in order to prevent future criminal
activity. Such a prediction of successful
treatment and non-recidivism should only be
made when the sentencing court is reasonably
satisfied both that it knows why a
particular crime was committed and that the
conditions leading to the criminal act will
not recur either because the factors that
led the defendant to commit the crime are
readily correctable or because the
defendants criminal conduct resulted from
unusual environmental stresses unlikely to
recur.[17]
Manrique argues that Judge Hopwood relied upon the
mere fact of [Manriques] conviction for a very serious crime to
override his otherwise exceptional prospects for rehabilitation.
And he points to Kirby v. State18 for the general rule that the
seriousness of a crime, standing alone, does not render
rehabilitation potential irrelevant. But Judge Hopwood found
that Manrique had not proven exceptional potential for
rehabilitation. He found that Manrique had very good ... but not
exceptional potential for rehabilitation.
Judge Hopwood did not dispute Manriques good
citizenship, his excellent neighborly spirit, his excellent
parenting. But he concluded that, in determining whether
Manrique demonstrated exceptional prospects for rehabilitation,
he would not consider Manriques arguments suggesting that A.C.s
consent was ambiguous because [t]he jury found and decided that
it had been proven beyond a reasonable doubt that the defendant
committed the offense of sexual assault in the first degree.
Judge Hopwood essentially reasoned that Manriques refusal to
accept responsibility for the sexual assault weighed against
finding that Manriques potential for rehabilitation was
exceptional: Because...of the defendants position about what
happened and what his prospects are and how he intends to
proceed, I cant find that there are exceptional prospects for
rehabilitation. When a defendant does not acknowledge
responsibility for a crime, the defendant has not advanced an
explanation for the crime or provided the sentencing judge with
convincing evidence that the conditions leading to the conviction
would not reoccur.19
We have reviewed the sentencing record. The record
supports Judge Hopwoods ruling that Manrique had not proven the
non-statutory mitigating factor of exceptional prospects for
rehabilitation.
Manrique also contends that imposition of the
unadjusted 8-year presumptive term would be manifestly unjust and
that Judge Hopwood improperly failed to conclude otherwise.
Manrique relies on his contention that A.C.s lack of consent was
ambivalent, that Manriques offense was isolated, and that
Manriques family was impacted by the conviction.
In order to find manifest injustice, a sentencing
judge must find that there are specific circumstances that make a
defendant or his conduct significantly different than a typical
offender or a typical offense.20
The record supports Judge Hopwoods ruling that
Manrique had not proven that he was significantly different from
a typical offender or that his conduct was significantly
different from a typical offense. Manrique was convicted of
first-degree sexual assault and first-degree burglary. The jurys
verdicts established that Manrique entered A.C.s house (at night)
with the intent to sexually assault A.C., and that he followed
through with that intent. He performed cunnilingus and
penetrated A.C. vaginally with his penis, with reckless disregard
for her lack of consent.
Conclusion
We AFFIRM Judge Hopwoods ruling rejecting Manriques
request to refer the case to the three-judge sentencing panel.
We AFFIRM Judge Hopwoods ruling rejecting Manriques motion for a
new trial based on his claim regarding juror Darrough. We remand
the case for a hearing on juror Timmerman. The superior court
shall transmit its findings on this issue to this court within 90
days. After the superior court transmits its findings, we will
resume our consideration of that remaining issue.
_______________________________
1 AS 11.41.410(a)(1) & AS 11.46.300(a)(1), respectively.
2 See Stephen A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, 2 Federal Rules of Evidence Manual (9th ed. 2006),
606.02[3] at 606-5; Hard v. Burlington Northern R.R., 812 F.2d
482, 485 (9th Cir. 1987).
3 See West v. State, 409 P.2d 847, 852 (Alaska 1966); Fickes
v. Petrolane-Alaska Gas Services, 628 P.2d 908, 910 (Alaska
1981).
4 West, 409 P.2d at 852.
5 628 P.2d 908 (Alaska 1981).
6 Fickes, 628 P.2d at 910.
7 817 P.2d 927 (Alaska App. 1991).
8 Id. at 935.
9 107 P.3d 290 (Alaska App. 2005).
10 Id. at 298.
11 Id. at 296.
12 See Fickes, 628 P.2d at 910-11.
13 Soundara, 107 P.3d at 297-98 (citing Swain, 817 P.2d at
935).
14 See former AS 12.55.125(i)(1)(A).
15 See AS 12.55.175.
16 Lloyd v. State, 672 P.2d 152, 154, 156 (Alaska App.
1983).
17 Beltz v. State, 980 P.2d 474, 481 (Alaska App.
1999)(citing Lepley v. State, 807 P.2d 1095, 1100 (Alaska App.
1991).
18 748 P.2d 757, 766 (Alaska App. 1987).
19 See Beltz, 980 P.2d at 481.
20 Id. at 480.
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