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Phillips v. State

Court of Appeals of Alaska

February 17, 2012

Michael D. PHILLIPS, Appellant,
STATE of Alaska, Appellee.

Page 458

Beth Lewis Trimmer and Dan Bair, Assistant Public Advocates, Appeals & Statewide Defense Section; Chad Flanders, additional counsel; and Rachel Levitt and Richard K. Allen, Public Advocates, Anchorage, for the Appellant.

Timothy W. Terrell, 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.



Michael D. Phillips appeals his convictions for first-degree sexual assault and first- and second-degree physical assault.[1] Phillips raises two main contentions on appeal. Phillips argues that his boots were unlawfully seized following his arrest, and that the superior court should have suppressed all evidence of the forensic testing that was later performed on the boots. In addition, Phillips argues that his trial judge, Superior Court Judge Eric A. Aarseth, should have recused himself when the judge realized, at the beginning of the trial, that the victim's sister lived in his neighborhood and was a friend of his wife.

Phillips's claim that the test results from his boots should have been suppressed hinges on how one construes the facts surrounding Phillips's arrest and the manner in which the police handled his boots. As we explain in this opinion, the pertinent facts are somewhat ambiguous. However, viewing the record in the light most favorable to Judge Aarseth's ruling, we conclude that the record supports the judge's conclusion that the boots were validly seized as part of the search incident to Phillips's arrest.

Page 459

The answer to Phillips's next argument— i.e., his claim that Judge Aarseth should have recused himself— is legally more complex.

As soon as Judge Aarseth realized that he had a connection to the victim's sister, he disclosed the details of this connection— in particular, the fact that the sister lived in his neighborhood, that his wife was friends with her, that their children played together, and that the sister's older child had babysat the judge's children. Judge Aarseth concluded that this connection to the victim's sister would not affect his ability to be an impartial decision-maker in Phillips's case. Judge Aarseth further concluded that his connection to the victim's sister was not the type of circumstance that would cause reasonable people to question his ability to be fair and impartial.

Phillips contends that Judge Aarseth committed error in reaching this second conclusion— i.e., the conclusion that there was no appearance of bias— because the judge misunderstood or misapplied the law relating to judicial disqualification. Phillips asks this Court to either reverse Judge Aarseth's decision or at least remand Phillips's case to the superior court for reconsideration of this issue.

Prior Alaska decisions on the issue of judicial disqualification repeatedly (and consistently) state that a judge's denial of a recusal motion is reviewed under the " abuse of discretion" standard. But as we explain in this opinion, the " abuse of discretion" standard of review applies only to a judge's decision on the issue of whether the judge is actually capable of being fair. On the separate issue of whether, given the circumstances, reasonable people would question the judge's ability to be fair, the proper standard of review is de novo — because " reasonable appearance of bias" is assessed under an objective standard. Thus, an appellate court independently assesses whether the circumstances created a reasonable appearance of bias, and the appellate court does not defer to the decision made by the lower court.

Based on our review of the record, we do not believe that Judge Aarseth misunderstood or misapplied the law regarding judicial disqualification. But even if he did, it makes no difference. Because this Court must independently assess the question of reasonable appearance of bias, and because we do not defer to Judge Aarseth's decision, the correctness or incorrectness of his approach to this issue is moot.

Turning then to the ultimate question of whether reasonable people would question Judge Aarseth's ability to be fair, given his connection to the victim's sister, we reach the same conclusion as Judge Aarseth: this connection did not create a reasonable appearance of bias or partiality. Judge Aarseth therefore correctly denied Phillips's recusal motion.

Whether Phillips's boots were seized during a search incident to his arrest

On the night of October 3, 2006, after finishing work, K.M. went to a Cordova bar (the Alaskan) to have a beer. Michael Phillips, whom K.M. had never met before, was also at this bar. They struck up a conversation, and Phillips bought K.M. some drinks. By the time the Alaskan closed, K.M. had consumed numerous drinks. She headed to another bar (the Moose Lodge), and Phillips followed along. They drank at the Moose Lodge until that bar closed, and then K.M. started walking home.

K.M. had only vague recollections of what happened next. She remembered being " pressed down by [her] neck on the ground and feeling ... the cold concrete and ... the sounds of [her]self screaming." She also remembered getting hit in the face, and someone swearing at her and telling her to shut up.

K.M.'s next memory was of waking up in the hospital. As a result of this attack, K.M. required stitches above each eye, on her chin, and in her genital area. K.M. also suffered fractures beneath each of her eyes; repair of these fractures required the insertion of titanium plates.

The assault on K.M. came to the attention of the Cordova police almost immediately, because someone contacted the police department

Page 460

to complain about the noise coming from the alley behind the Prince William Sound Hotel. Officer Danny Michels was dispatched to investigate this noise complaint. When Michels arrived at the scene, Phillips was standing with his pants down and his genitals exposed, while K.M. was lying disrobed on the ground, her body exposed from her ankles to above her breasts.

K.M. was barely conscious. Her eyes were nearly swollen shut, and she had blood around both eyes. K.M. also appeared to have a laceration on her left breast, and her mouth was bloody.

When Michels asked Phillips what was going on, Phillips responded that he and K.M. were having sex, and that K.M. passed out.

Michels saw that Phillips's hands were injured: his knuckles and fingernail tips were red and swollen. Phillips also had injuries to his face.

Based on his observations at the scene, Michels called for the assistance of Officer Eva Squires, the Cordova Police Department's sexual assault investigation officer. When Squires interviewed Phillips, Phillips asserted that K.M. was injured because she had repeatedly fallen. But when Squires went to examine the locations where Phillips claimed K.M. fell, she could not find any blood.

Officer Michels took Phillips into custody and transported him to the police station (which also served as the jail)— although Michels did not inform Phillips that he was under arrest for sexual assault until they arrived at the station. Cordova is a small town, and Michels served not only as the arresting officer but the booking officer as well. According to the audio recording of Michels's contact with Phillips, Michels seized Phillips's boots shortly after their arrival at the station, immediately after Michels informed Phillips that he was under arrest, and while Michels was collecting other items of Phillips's outer clothing (his jacket, hat, sweatshirt, and belt).

Michels placed Phillips in a cell. Some time later, Michels had Phillips change from his street clothes into a jail jumpsuit.

The following day, another officer (John Hodges) removed Phillips from his cell and took him to his arraignment. As they were leaving, Phillips saw his boots sitting on the ground in front of a locker. Phillips asked Hodges if he could wear his boots to the arraignment (because he saw that another inmate was wearing personal shoes), but Hodges replied that Phillips could not wear his boots because they were evidence.

Phillips's boots were later tested at the State Crime Laboratory. Bits of tissue and stains that tested presumptively positive for blood were found on the boots. With regard to both the tissue and the blood stains, the DNA retrieved from these samples was consistent with K.M.'s DNA, but it was inconsistent with Phillips's.

In the superior court, Phillips sought suppression of these test results, based on the theory that the seizure of his boots was unlawful. Phillips acknowledged that, given the circumstances, the police had probable cause to believe either that his boots were evidence in and of themselves, or that the boots would contain evidence (such as the tissue and blood samples later retrieved from them). Indeed, on appeal, Phillips concedes that the remainder of his clothing was validly seized incident to his arrest. But Phillips notes that the police treated his boots differently from the rest of his clothing: the other articles of clothing were placed in bags in the Cordova evidence locker, while the boots were left near a tote, in the area where shoes were normally placed during inventory searches.

Based on this disparate treatment, Phillips argued that his boots were seized during an inventory search incident to his being booked into jail, not a search incident to his arrest. And under Alaska law, the police may not conduct a general exploratory search of articles seized during an inventory search. [2] Phillips therefore argued that the police had no authority to send his boots to the Crime Lab for forensic testing (absent a valid warrant).

Page 461

Because Phillips's argument was premised on a particular inference that he wished to draw from the manner in which the police dealt with his boots, a proper evaluation of Phillips's argument hinged, to a certain extent, on the practices and policies of the Cordova police.

As we have already noted, the Cordova police station and jail comprise a single physical facility. Moreover, Officer Michels was not only the arresting officer but the booking officer as well. Thus, there was not the kind of demarcation between the arresting process and the booking process that one might expect in larger urban centers.

Officer Hodges— who was officially the evidence custodian of the Cordova Police Department— testified about the laxness (or at least uneven application) of jail policies, as well as the latitude of the police practices governing collection and storage of evidence. For instance, according to Cordova jail policy, inmates were not supposed to wear their own clothes while in jail; instead, they were to be given a jail jumpsuit to wear. However, Hodges testified that this policy was rarely followed.

Hodges further testified that a jail inmate's personal belongings— which included anything that was seized from the inmate's person, plus their street clothing, if they were to be dressed in a jumpsuit— would be placed in a tote and then locked in a cabinet. On the other hand, items seized from an arrestee for purposes of investigation (whether by consent or under color of authority) might be stored in the evidence room or, if the evidence room was not available, stored in a locked jail cell. It appears that Phillips's boots were not treated in either of these fashions. Instead, as we have explained, the boots were sitting out in plain sight when Phillips was taken to his arraignment, several hours after his arrest.

Judge Aarseth denied Phillips's suppression motion because he concluded that Phillips's boots were indeed seized during a search incident to arrest. The judge noted that the police had ample probable cause to believe that Phillips had committed a sexual assault, and ample reason to believe that Phillips's outer clothing might contain trace evidence of that assault (such items as hair, fiber, blood, and other bodily fluids).

As we have explained, the record shows that the police seized Phillips's boots at the same time they seized several other articles of his outer clothing. As we have also explained, Phillips concedes that the other articles of clothing were lawfully seized incident to his arrest— because those items were placed in bags and put into the evidence locker. The real issue, then, is whether a reasonable judge could conclude, on these facts, that Phillips's boots were also seized incident to his arrest, even though the boots were handled differently.

We conclude that Judge Aarseth could reasonably find that, despite the different handling of Phillips's boots, the boots were seized during the same search incident to arrest as the other articles of Phillips's clothing. Accordingly, we uphold Judge Aarseth's denial of Phillips's suppression motion.

Whether Judge Aarseth should have recused himself because of his connection to K.M.'s sister

Phillips's trial was held in Anchorage in April 2008. Following the completion of jury selection, the parties assembled in court on April 14th for the administration of the oath to the jurors and the presentation of opening statements.

When court convened, Judge Aarseth spotted a woman in the courtroom whom he recognized— a woman who lived in his neighborhood. During a break in the proceedings, Judge Aarseth informed the parties that he knew this woman, that she lived in his neighborhood, and that her first name was " Sara" — although the judge could not recall her last name. It turned out that this woman was K.M.'s sister.

The prosecutor explained that Sara was not going to be a witness in Phillips's case; rather, she was there to offer support to her sister, K.M. Nevertheless, Judge Aarseth perceived that his acquaintance with Sara might make Phillips or his attorney uneasy, so the judge provided the parties with further details of his relationship with her.

Page 462

The details of Judge Aarseth's connection to Sara (as explained by the judge on the record) are not in dispute. Sara and her husband were relatively new to the judge's neighborhood; they had lived there for less than a year. Sara and her husband had children who were a little older than the judge's children, and the children played together. Sara's oldest child had babysat the judge's children on a couple of occasions.

Judge Aarseth's wife socialized with Sara, and there were times when she and Sara would speak to each other several times a day. On the other hand, the judge's own relationship with Sara was substantially more attenuated: he had attended one social event at Sara's house, but " other than that, [he had] had minimal contact with this lady" . The judge characterized his relationship with Sara as an " acquaintanceship" rather than a " close friendship" .

Having explained his relationship with Sara, Judge Aarseth concluded that his acquaintance with Sara would not affect his ability to be fair in Phillips's case. The judge therefore announced that he did not intend to recuse himself, but he invited Phillips's attorney to make a recusal ...

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