Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge. Court of Appeals No. A-10269 Trial Court No. 2NO-07-359 CR
The opinion of the court was delivered by: Bolger, Judge.
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Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Michael A. Silvera was convicted of second-degree assault after he cut David Moore in the face with a knife during an argument between Moore and Silvera's fianceee. Silvera argues that there was insufficient evidence for the jury to find that his conduct was not justified in defense of his fianceee. We conclude after reviewing the record that there was sufficient evidence for the jury to find that Silvera's assault was not justified. Silvera also argues, for the first time on appeal, that he was entitled to an evidentiary hearing on his claim that the prosecutor rolled his eyes and engaged in other nonverbal conduct that impermissibly conveyed his personal opinion of the evidence to the jury. We conclude that Silvera has not shown that the court's failure to hold a hearing was plain error.
Silvera attacks his sentence on two grounds. He argues that the sentencing court was clearly mistaken in refusing to refer his case to the three-judge sentencing panel for consideration of his extraordinary potential for rehabilitation and the harsh collateral consequences of his one-year sentence. He also argues that the sentencing court erred by rejecting his claim that his assault was mitigated due to "serious provocation" by the victim. We conclude that the sentencing court was not clearly mistaken in refusing to refer Silvera's case to the three-judge panel. But we conclude that the sentencing court applied the wrong legal test in ruling that Silvera had failed to establish the statutory mitigating factor of "serious provocation" by the victim. We therefore remand the case to the superior court for reconsideration of this issue.
Early on the morning of June 3, 2007, Richard Weinstein, a taxicab driver in Nome, picked up passengers outside a bar called the Dexter Roadhouse, which had just closed for the night. All of the passengers had been drinking. Michael Silvera sat in the front passenger seat of the cab and his fianceee, Andrea Surina, sat next to him on the same seat, sitting sideways facing the driver. David Moore sat on the bench seat directly behind the driver, and his friend, Chris Christensen, sat next to him. There was another bench seat behind that, occupied by Briday Green, a friend of Silvera's, and Green's companion, John MacInerney.
Surina asked Weinstein to take the scenic route home so they could look for wildlife. Moore objected, saying he wanted to go directly home because he had to work that morning. An argument ensued. Silvera managed to calm Surina down, bringing a temporary end to the argument. But then the argument "flared up like a grease fire."
According to Silvera, Moore called Surina a "whore." Weinstein testified that Surina and Silvera both jumped out of their seat toward Moore, and that Silvera said, "I'm going to kill you," and cut Moore in the face with a knife. MacInerney intervened, grabbing Silvera's arm and holding it, even though Silvera yelled at him to let go. In an effort to avoid more violence, Weinstein dropped Silvera and Surina off at their residence before driving Moore to the emergency room. Once all the other passengers had been delivered to their destinations, Weinstein reported the incident to the police. Moore had a knife wound to the left temple that required nine stitches and left a scar.
Nome Police Officers Greg Bonham and Mark Harreus interviewed Silvera and Surina at their residence later that morning. Silvera initially denied cutting Moore with a knife, saying he used his fist. But before long Silvera acknowledged that he had a knife in his hand when he hit Moore, and he retrieved the knife and gave it to the police. He had already washed the blood off the knife. The knife was a lock-back knife with a three-inch blade and a thumbscrew that made it easy to open quickly.
At trial, Silvera testified that he attacked Moore to protect Surina. He said Moore kicked Surina and called her a whore, and then reached toward Surina as if he was going to hit her. Silvera said he pushed Surina out of the way and got up and hit Moore. He said he never intended to use a knife but had absent-mindedly been fiddling with the knife in his pocket. He said he was surprised when he got home and saw blood on the knife.
Silvera called several witnesses on his behalf. Dennis Hammond, another cab driver, testified that he heard Weinstein tell another cab driver on the dispatch line that he did not know what happened during the incident because he was concentrating on driving. Briday Green, the friend of Silvera's who had been riding in the back seat of the cab, testified that she saw the victim, Moore, get out of his seat and move toward Surina and Silvera, and that MacInerney had to restrain Moore. She said she never saw Silvera move from his seat. But Green admitted on cross-examination that this was not what she told the police; she told the police that Silvera may have gone after Moore twice, and that Surina and MacInerney had to restrain Silvera.
At the close of the State's case, Silvera made a motion for judgment of acquittal, which Superior Court Judge Ben J. Esch denied. In closing argument, Silvera claimed that his conduct was justified because he acted in defense of Surina. The jury rejected this defense and convicted Silvera of second-degree assault.*fn1
After the jury's verdict, but before sentencing, Silvera filed a motion for a new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial expressions by the prosecutor throughout the trial. Silvera argued that this conduct deprived him of a fair trial because it conveyed the prosecutor's personal opinion about his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts not in evidence. Judge Esch denied the motion, ruling that Alaska Evidence Rule 606(b) prohibited this inquiry into the subjective mental processes of the jurors.
At sentencing, Judge Esch rejected Silvera's proposed mitigators and his request that the case be referred to the three-judge panel. He sentenced Silvera to two years with one year suspended. Silvera appeals.
There was sufficient evidence to convict Silvera of second-degree assault.
Silvera's first claim is that there was insufficient evidence to convict him of second-degree assault. In ruling on a claim of insufficient evidence, this court must consider the evidence in the light most favorable to the jury's verdict and determine whether ...