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Mooney v. State1/7/2005
No. 1965
Frank Mooney appeals his conviction and sentence for sexual assault in the first degree. In his main point on appeal, Mooney argues that Superior Court Judge Michael A. Thompson erred in denying as untimely Mooney's challenge under Batson v. Kentucky to the prosecutor's use of peremptory challenges which excluded Alaska Natives from the jury. We hold that Mooney's Batson challenge was untimely because Mooney made the motion after Judge Thompson had sworn the jury and dismissed the jury venire. We also reject Mooney's other challenges to his conviction and uphold his sentence.
Procedural and Factual Background
During the early morning hours of September 11, 2001, Ketchikan Police Officer Joseph White responded to a 911 call reporting that a man was chasing a half-nude woman down the road. Officer White arrived at the scene and saw a man pinning a woman to the ground. The man, later identified as Frank Mooney, was lying across the woman diagonally with his arm across her throat. Mooney was wearing only pants, and the woman, later identified as S.M., was naked except for a fleece jacket. Officer White ordered Mooney to get off of S.M. Then, with the help of Officer Josh Dossett, he restrained Mooney. He described S.M. as "very upset."
Officer Andrea Jacobson interviewed S.M. in a patrol car. S.M. told Officer Jacobson that she had initially agreed to perform oral sex on Mooney. However, at some point Mooney had "gotten rough" with her. S.M. said she told Mooney that she wanted to stop performing oral sex and leave his house. At this point Mooney hit her in the back of the head twice with both fists. Mooney also told S.M. that she could not leave unless she finished performing oral sex on him, and that if she did not he would "fuck her in the ass" and that she would not leave his residence alive. S.M. said she continued to do as Mooney said while he continued to threaten her. At one point she said she had to go to the bathroom. When Mooney let her go, S.M. ran for the door and fled down the street, wearing only the fleece jacket.
Mooney told Officers White and Dossett that he was only chasing S.M. because she had assaulted him and stolen $600 from him. Mooney stated that he and S.M. went to his apartment where they both undressed and S.M. voluntarily performed oral sex on him. Mooney denied that he had threatened S.M. or forced her to do anything. However, Mooney did agree that S.M. stopped performing oral sex on him before he was finished. She then got up and entered the bathroom. Mooney claimed that when S.M. left to go to the bathroom she was "acting a little weird." Mooney then noticed that he could not see his wallet. When he asked S.M. where it was, she "just bolted out the door."
Mooney said he followed S.M., caught her arm, and pulled her down to the ground and restrained her. Then the police arrived.
The State indicted Mooney on one count of sexual assault in the first degree. Following a trial conducted by Judge Thompson, the jury convicted Mooney. Judge Thompson sentenced Mooney, a third felony offender for purposes of presumptive sentencing, to 30 years' imprisonment with 5 years suspended. This appeal follows.
Mooney's Batson Objection was Untimely
In Batson v. Kentucky, the United States Supreme Court held that a prosecutor could not exercise peremptory challenges based upon racial bias. In the years since it decided Batson, the court has repeatedly expanded its scope.
In Batson, the Supreme Court held that in order to raise an objection to a peremptory challenge, the challenge had to be exercised in a timely manner. But the Supreme Court has not specif
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