Opinion
Court of Appeals No. A-10029.
March 18, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, John E. Suddock, Judge, Trial Court No. 3AN-06-3244 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Darian Patterson was convicted of attempted murder in the first degree, several counts of felony assault, and one count of criminal mischief in the third degree for an incident where he fired seven or eight shots into a large SUV with several people inside. Superior Court Judge John E. Suddock sentenced Patterson to a composite sentence of 60 years and 6 months with 25 years suspended, or 35 years and 6 months to serve. Patterson appeals. Patterson contends that the State did not present sufficient evidence to convict him of attempted murder in the first degree, that Judge Suddock erred in denying his motion for a mistrial (which was based on Patterson's contention that the prosecutor made improper comments during closing argument) and that his sentence is excessive. We affirm Patterson's convictions and sentence.
AS 11.41.100(a)(1)(A) AS 11.31.100.
AS 11.41.200(a)(2); AS 11.41.220(a)(1)(A)
AS 11.46.482(a)(1).
Factual and procedural background
On April 2, 2006, Army Sergeant Marcus Dukes was in his Nissan Armada, a large SUV. His girlfriend, Shequita Watch, was driving the SUV, and Dukes was in the passenger seat. In addition, eight of their friends were in the vehicle. They stopped at a Holiday gas station to pick up some food for some of Dukes's fellow soldiers, who were on guard duty.
An altercation occurred in the parking lot of the gas station. Dukes told everyone to get back in the truck so that they could leave. As they were leaving, a person, later identified as Patterson, walked in front of the SUV. Watch stopped the SUV so that she would not hit Patterson, and in response, Patterson cursed at her.
Dukes cursed at Patterson and started to get out of the SUV. But Watch grabbed him, and she and the other people in the SUV told him not to get out. Patterson walked up to Dukes's window, and Patterson and Dukes screamed at each other through the glass.
Patterson pulled out a gun and pointed it at Dukes's head. Watch saw the gun and moved the SUV slightly forward just before Patterson fired a shot into the SUV. Then Patterson fired six or seven more shots into the truck as it fled from the scene. Bullets struck passengers Mercedes Hall and Jessica Robinson. Watch drove to the hospital to get Hall and Robinson medical aid.
Hall had a serious gunshot wound to the chest which the treating physician described as life-threatening. Hall testified at trial that she had permanent injuries from the shooting. Robinson received multiple bullet wounds and testified at trial that she still had pain in her upper thigh and back. In addition, two other passengers in the vehicle were grazed by bullets or flying shattered glass.
The State charged Patterson with twelve counts: attempted murder in the first degree for attempting to shoot Dukes; assault in the first degree on Hall; assault in the first degree on Robinson; eight counts of assault in the third degree for assaulting Dukes and the other passengers in the SUV; and criminal mischief in the third degree for damaging Dukes's SUV.
AS 11.41.100(a)(1)(A) AS 11.31.100.
AS 11.41.200(a)(2).
Id.
AS 11.41.220(a)(1)(A).
AS 11.46.482(a)(1).
At trial, Patterson argued that the evidence was insufficient to show that he was the person who did the shooting. But the jury convicted Patterson on all counts.
There was sufficient evidence for the jury to convict Patterson of attempted murder in the first degree
On appeal, Patterson apparently concedes, in light of the number of witnesses who identified him as the person who shot into the SUV, that the State presented sufficient evidence of his identity. Instead, Patterson contends that "the evidence does not show that [he] had the specific intent to kill Dukes."
When we review a claim that the evidence presented at trial was insufficient to support the jury's verdict of guilty, we consider the evidence in the record in the light most favorable to the State. The question is whether the evidence was sufficient to support a conclusion by a fair-minded juror exercising reasonable judgment that there was no reasonable doubt about the defendant's guilt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Id.
In the light most favorable to the State, the evidence shows that Patterson became extremely angry, pulled out a gun, pointed it at Dukes's head, and fired. The jury could infer that, had Watch not moved the SUV forward slightly just as Patterson shot, he would have shot Dukes in the head. Furthermore, as the SUV sped away, Patterson shot into the vehicle approximately seven more times, striking some of the passengers and causing two of the passengers serious physical injuries. Under these circumstances, a reasonable jury could find that Patterson intended to kill Dukes. Therefore, there was sufficient evidence for the jury to find that Patterson committed the crime of attempted murder in the first degree. Judge Suddock did not err in denying Patterson's motion for a mistrial
Patterson next argues that Judge Suddock erred in denying his motion for a mistrial. Patterson moved for a mistrial because of remarks the prosecutor made during his closing argument to the jury. The prosecutor argued as follows:
If you folks don't think this evidence convinces you beyond a reasonable doubt that Mr. Patterson's the one who committed these crimes, then I'm asking you now, come back in here and say "not guilty." If that's what you think, based on the evidence, that's what I want you to do because that's the right thing to do and that's the way justice would be served.
But the flip side of that, ladies and gentlemen, is that if you are convinced from the overwhelming evidence that was presented in this case that he is the shooter, then I ask you to follow that evidence. That's what your duty was when you were sworn as jurors. That's what you promised us you would do. That's what the law instructs you to do. And, quite frankly, ladies and gentlemen, in this case, to put it simply, the evidence demands that you convict him of these crimes. You want to stop the violence. You want to hold people responsible.
At the conclusion of this argument, Patterson moved for a mistrial based upon the last two sentences of the prosecutor's argument. Patterson argued that the prosecutor's argument was improper because it asked the jury to rely on its prejudice and return a verdict of guilty in order to stop violence.
Judge Suddock agreed that the prosecutor's argument was improper because it suggested that the jury should convict in order to stop youth violence in Anchorage. But he concluded that a mistrial was "inappropriate for a relatively minor passing reference at the end of closing argument." Judge Suddock directed the jury to disregard the prosecutor's comment. He told the jury that it was not to act for any social, political, or policy purpose to enhance the safety of the Municipality of Anchorage. He directed the jury to decide the case based upon whether the evidence that was presented in the courtroom proved beyond a reasonable doubt each and every element of the offenses with which Patterson was charged.
The State contends that the prosecutor's argument simply referred to the evidence in the case supporting the fact that Patterson was guilty as charged and argued that the jury should hold Patterson responsible for his violent behavior by convicting him. The State argues that this was proper.
Judge Suddock, who heard the argument, concluded that there was a risk that the jury would interpret the argument as an appeal to convict the defendant to stop youth violence in Anchorage. But he promptly ordered the jury to disregard the statement and instructed the jury to focus on the facts of the case.
When a trial court denies a motion for a mistrial, we will reverse the decision only when we are convinced that the trial court has abused its discretion. We recognize that the trial court is in a superior position to observe the jury and to determine whether the events that led to the mistrial motion were unduly prejudicial. In the present case, although Judge Suddock concluded that the prosecutor's argument was improper, he also concluded that instructing the jurors to disregard the comment and instructing them on their duties would suffice to cure any prejudice. Having reviewed the record, we conclude that Judge Suddock did not abuse his discretion in denying Patterson's mistrial motion. Patterson's sentence was not clearly mistaken
Roussel v. State, 115 P.3d 581, 585 (Alaska 2005).
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Patterson argues that Judge Suddock imposed an excessive sentence. As we have previously stated, Judge Suddock imposed a composite sentence of 60 years and 6 months with 25 years suspended — 35 years and 6 months of actual incarceration.
In sentencing Patterson, Judge Suddock first emphasized that Patterson had an extensive juvenile record, starting at eight years old. Patterson was twenty-three at the time of sentencing and had continued to offend as an adult. Judge Suddock pointed out that Patterson was on probation on four different cases at the time of his present offenses.
Judge Suddock noted that Patterson apparently routinely carried a weapon, was emotionally unstable, and had poor judgment. He stated that "Patterson has shown himself to be a walking time bomb." Judge Suddock noted that, in the present case, with minor provocation, Patterson believed that he was justified in "executing another human being." Judge Suddock concluded that Patterson had done his best to execute Dukes and had come very close to doing so.
Judge Suddock determined that it was necessary for him to sentence Patterson to a substantial period of incarceration in order to protect the community and deter Paterson and others from this kind of violence. He reasoned that, under the sentence he imposed, Patterson would be incarcerated until his mid-forties, when hopefully he would be more in control of his violent tendencies. He noted that after Patterson's prison incarceration, he would still face substantial parole and suspended-sentence terms if he committed additional offenses. But he also concluded that, in spite of Patterson's prior record and his present offenses, it would be inappropriate to sentence him to a much longer term.
A sentence will be affirmed unless it is clearly mistaken. We conclude that Judge Suddock justified the sentence he imposed. The sentence is supported by the record and is not clearly mistaken.
McClain v. State, 519 P.2d 811, 814 (Alaska 1974).
Conclusion
The judgment of the superior court is AFFIRMED.