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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSIAH DARROUX,
Court of Appeals No. A-10658
Appellant, Trial Court No. 3AN-07-5280 Cr
v.
O P I N I O N
STATE OF ALASKA,
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,
Judges.
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.
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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
decision.
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.
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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
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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
information."
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):
(continued...)
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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.
1989).
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----------------------- 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).
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(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
assault.
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.
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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
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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).
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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.
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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
addressed.
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).
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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
him.
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).
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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,
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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.
Conclusion
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.
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