Darroux v. State

265 P.3d 348, 2011 Alas. App. LEXIS 131, 2011 WL 5429532
CourtCourt of Appeals of Alaska
DecidedNovember 10, 2011
DocketNo. A-10658
StatusPublished

This text of 265 P.3d 348 (Darroux v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darroux v. State, 265 P.3d 348, 2011 Alas. App. LEXIS 131, 2011 WL 5429532 (Ala. Ct. App. 2011).

Opinion

OPINION

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.

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: (The 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
The Court: I did [hear the trial testimo-nyl, and that's what I'm going to (indiscernible).
Defense Attorney: Court ... That's what the
The Court: Right.
[350]*350Defense 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 Judge Spaan's general resolution of the issue-ie., 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 Dar-roux'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-sen-tence 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 Dar-roux'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 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 [351]*351decisions, 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 inaceu-rate 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 objected to any specific factual assertion contained in the pre-sentence report's description of his offense.

For these reasons, we conclude that Dar-roux failed to preserve his current argument that Judge Spaan should have struck or greatly abridged the "present offense" seetion of the pre-sentence report.

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

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Related

Bynum v. State
708 P.2d 1293 (Court of Appeals of Alaska, 1985)
Hamilton v. State
771 P.2d 1358 (Court of Appeals of Alaska, 1989)
Proctor v. State
236 P.3d 375 (Court of Appeals of Alaska, 2010)
Evans v. State
23 P.3d 650 (Court of Appeals of Alaska, 2001)
Garland v. State
172 P.3d 827 (Court of Appeals of Alaska, 2007)
Smith v. State
229 P.3d 221 (Court of Appeals of Alaska, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
265 P.3d 348, 2011 Alas. App. LEXIS 131, 2011 WL 5429532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darroux-v-state-alaskactapp-2011.