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Phillips v. State (5/30/2003) ap-1880
Phillips v. State (5/30/2003) ap-1880
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN KEVIN PHILLIPS, )
) Court of Appeals No.
A-7428
Appellant, )
Trial Court No. 3AN-97-9388 Cr.
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1880 May 30, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. W. H.
Hawley, Jr., and Kenneth J. Diemer, Assistant
Attorneys General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
John Kevin Phillips was paroled from prison on January
9, 1997. On the afternoon of the next day, he committed armed
robbery at a store in downtown Anchorage. During this robbery,
Phillips wounded one of the victims with a knife. Phillips then
hired a cab to drive him to Palmer.
When Phillips got to Palmer, he stole the cab and
started driving east on the Glenn Highway. A state trooper,
Bruce Heck, spotted the cab and turned on his overhead lights,
attempting to initiate a traffic stop. Phillips would not stop,
so Heck followed him down the highway. The road surface was
quite slick and, while Phillips was fleeing from the trooper, he
drove the cab off the highway and into a ditch. Phillips then
ran into the woods.
Trooper Heck followed Phillips into the woods and
eventually caught him for when Phillips was finally arrested, he
had handcuffs fastened to his left wrist. However, during or
immediately after Hecks struggle with Phillips, Heck died either
from being smothered or after suffering a heart arrhythmia.
Based on this series of events, Phillips was convicted
of first-degree robbery, second-degree assault, first-degree
vehicle theft, second-degree escape, and second-degree murder.
He now appeals these convictions.
Phillips argues that his trial was unfair because the
robbery and assault charges (the charges arising from the events
in Anchorage) were joined with the vehicle theft, escape, and
murder charges (the charges arising from the events in Palmer and
further east on the Glenn Highway, near Glennallen). Phillips
also argues that the jury was misinstructed on the law of
causation, so they could not properly decide whether Phillips was
criminally responsible for Trooper Hecks death. In addition,
Phillips asserts that his trial was unfair because a large number
of uniformed troopers and police officers attended the trial
implicitly informing the jury that the law enforcement community
wanted to see the defendant convicted. Finally, Phillips argues
that his sentence 142 years in prison is excessive.
For the reasons explained here, we affirm Phillipss
convictions but we vacate his sentence and direct the superior
court to re-sentence Phillips.
Underlying facts
Phillips was released on parole from the
Spring Creek Correctional Center on January 9, 1997.
He got a ride to Anchorage; the driver dropped him off
at the Fifth Avenue Mall so that he could buy some
tennis shoes.
While he was buying the shoes, Phillips asked
the store clerk where he could purchase a wig. The
clerk was unable to help Phillips, so Phillips left the
mall and went across the street to a restaurant, Club
Paris, where he asked a waitress if she knew where he
could purchase a wig. The waitress directed Phillips
to Fashion Wigs, a store in the Northway Mall. Later
that afternoon, Phillips purchased a black long-haired
unisex wig at Fashion Wigs. Around 4:00 p.m., Phillips
checked into the Comfort Inn using the alias Johnny
Raven.
The next afternoon (January 10, 1997), a
little after 4:00, Phillips donned the black wig and
entered the Army-Navy Store on Fourth Avenue, where he
purchased a 12-inch K-Bar knife (a combat-style knife).
Shortly thereafter, Phillips entered Fifth
Avenue Furs. This fur shop was owned by Roberto
Cuautle. Both Cuautle and his daughter, Liliana
Hern ndez, were working in the store that afternoon.
Hern ndez was seven-months pregnant, and her two young
daughters (a three-year-old and a five-year-old) were
also in the shop.
Phillips chose this store because he believed
that Cuautles son, Manuel, owed him money. Both
Phillips and Manuel Cuautle had been imprisoned at
Spring Creek. Manuel agreed to sell Phillips an ounce
of marijuana for $700. Phillips sent a check for the
purchase price to Manuel (in care of the fur shop).
Phillips apparently received some of the marijuana, but
before Manuel could deliver the rest of the ounce,
Phillips was placed in segregation. By the time
Phillips was returned to the general prison population,
Manuel had been released and, consequently, Phillips
never received the remainder of the drug (or a refund
of his money). Thus, Phillips was intent on obtaining
restitution when he entered Fifth Avenue Furs on
January 10th.
Posing as a customer, Phillips asked Liliana
Hern ndez to show him some jackets. Without warning,
Phillips pulled the K-Bar knife from under his jacket
and held it to the middle of Hern ndezs abdomen.
Phillips then told Roberto Cuautle not to move or he
would kill Cuautles daughter. Cuautle responded, What
do you want? We have no money. Cuautle opened the
cash register, apparently to prove that there was no
money in the store.
Phillips then forced Hern ndez and Cuautle to
the back of the store, where he made them lie down on
their stomachs. He placed a knee in each of their
backs, and then he began bashing Roberto Cuautles head
into the ground, repeatedly asking, Where is the money?
Neither Cuautle nor Hern ndez was aware of the prior
drug transaction, so they did not understand what money
Phillips was talking about.
When there was no money forthcoming, Phillips
began to bash Cuautles head into the ground with
greater force. Hern ndez could see blood streaming
down her fathers face. Finally, Cuautle told Phillips
that there was some money in his back pocket.
Phillips took $300 from Cuautles wallet, but
he told Cuautle that this was not enough. He then said
to Cuautle, Man, I cant believe youre going to let her
[i.e., Hern ndez] die for such a little amount; I cant
believe youre going to let her die. You dont believe
me, man? Im going to slice her up like a fucking pig.
Phillips then grabbed Hern ndezs hair and pulled her
head back, exposing her neck. He told Cuautle, Watch.
You dont believe me? Im going to kill her. Watch.
Phillips then raised his knife to Hern ndezs throat.
When Hern ndez saw what Phillips was doing, she
instinctively put her left hand up to shield her
throat. The knife sliced through Hern ndezs palm,
causing a deep gash that began to bleed profusely.
When Hern ndez realized that she was wounded,
she yelled at Phillips to get her a towel, and Phillips
complied. At about that time, there was a sound as if
someone had entered the store. Phillips turned to look
at the door, and then he decided to flee. In his rush
to leave, Phillips abandoned the sheath for the K-Bar
knife, as well as the blue plastic retail bag that the
Army-Navy Store had given him when he purchased the
knife. Phillipss fingerprints were later recovered
from the plastic bag.
After Phillips ran from Fifth Avenue Furs,
Hern ndez hit the silent alarm and called 911. The
police responded to the robbery around 5:08 p.m..
After fleeing from Fifth Avenue Furs,
Phillips went to Humpys Great Alaska Alehouse, where he
purchased a cup of soup and a shot of tequila. He then
proceeded to the Hub Bar, where he was picked up by a
cab around 6:00 p.m..
Initially, Phillips told the cab driver to
take him to the Comfort Inn, so that he could recover
his belongings. He then told the cab driver to take
him to a fictitious address in Palmer. They arrived in
Palmer around 7:00 p.m.. When the cab driver got out
of the cab to determine whether they had found the
right address, Phillips stole the cab and headed east
on the Glenn Highway. Around 8:30 p.m. he stopped at a
lodge, where he purchased a cup of coffee. He also
stopped at the scene of a single-vehicle accident to
see if the stranded motorist needed help.
Around 9:30 p.m., Alaska State Trooper Bruce
Heck spotted the stolen cab near Mile 156 of the Glenn
Highway that is, about thirty miles west of
Glennallen. Trooper Heck informed his dispatcher (his
wife, Laurie Heck) that he had spotted the cab and that
he intended to follow it toward Glennallen. At 9:34
p.m. Trooper Heck notified his dispatcher that the cab
was not yielding to his flashing lights. At 9:35 p.m.,
Trooper Heck informed his dispatcher that the cab had
gone off of the highway and into the ditch.
Another motorist, Roy Yates, arrived at the
scene shortly after the stolen cab went into the ditch.
He saw the driver moving swiftly away from the
overturned cab and into the woods. He then watched
Trooper Heck head into the woods after the fleeing
driver.
About fifteen minutes later, a second
trooper, Don Pierce, arrived on the scene. Yates told
Pierce that the first trooper (Heck) had pursued the
cab driver into the woods and had disappeared from
sight. Trooper Pierce immediately began to follow the
footprints through the snow.
At the end of the freshly-made trail, Pierce
discovered Heck lying on his back. Hecks face was
covered with snow, and there was a great deal of blood
in the immediate area. Heck had no pulse. The area
around Hecks body was trampled down, as if there had
been a struggle.
Trooper Pierce then spotted Phillips making
his way back toward the Glenn Highway. Pierce raced
back toward the highway, caught up with Phillips, and
ordered him to stop and raise his hands. Phillips
complied. When Phillips raised his hands into the air,
Pierce could see that his left wrist was handcuffed.
Phillips had blood on his face and hands.
The joinder of the Anchorage and the Palmer/Glennallen
charges
Phillips was indicted by two different grand
juries, one sitting in Palmer and the other sitting in
Anchorage. On January 23, 1997, Phillips was indicted
by a Palmer grand jury for murder, escape, and vehicle
theft; all of these charges arose from Phillipss
conduct in Palmer and on the Glenn Highway near
Glennallen.
A year later, Phillips was indicted by an
Anchorage grand jury for robbery and assault stemming
from his conduct at Fifth Avenue Furs. After the grand
jury indicted Phillips on these charges, the prosecutor
asked the jury foreperson to sign another, expanded
indictment that added the Palmer and Glennallen counts
(murder, escape, and vehicle theft). The prosecutor
explained that he was asking the foreperson to do this
so that we will have one trial. As requested, the
foreperson signed the expanded indictment.
Before trial, Phillips asked the superior
court to sever the Anchorage counts from the
Palmer/Glennallen counts. He challenged the method by
which these charges were joined, and he also argued
that, in any case, joinder was not proper under Alaska
Criminal Rule 8 or 13. Finally, Phillips argued that
even if the charges were properly joined, they should
be separated pursuant to Alaska Criminal Rule 14
because the joinder was unfairly prejudicial.
(a) Could the Anchorage grand jury join these
counts by simply adopting the charges contained in
the Palmer indictment?
Phillips contends that it was improper for
the Anchorage grand jury to return an indictment
listing both the Anchorage charges and the
Palmer/Glennallen charges when the Anchorage grand jury
did not hear any evidence concerning the
Palmer/Glennallen charges. In other words, Phillips
questions whether the Anchorage foreperson had the
authority to simply sign an expanded indictment that
included the Palmer/Glennallen charges based on the
fact that Phillips had already been indicted on those
charges by a separate grand jury.
We need not resolve this issue because
Superior Court Judge Larry D. Card ultimately ruled
that these two sets of charges should be joined under
Alaska Criminal Rule 13. This rule declares that when
a defendant faces trial on two or more indictments, the
superior court may join all of the charges in a single
trial if the offenses ... could have been joined in a
single indictment under the rule set forth in Criminal
Rule 8(a).
When Judge Card ruled that joinder of the
charges was proper under Rule 13, he mooted the
question of grand jury procedure. Instead, the
question is now whether Judge Card abused his
discretion when he ordered joinder under Rule 13. And
since joinder is proper under Rule 13 only if the
charges could have been joined in a single indictment
under Rule 8(a), the resolution of this question really
turns on whether all of the charges against Phillips
are related to each other in one or more of the ways
listed in Rule 8(a).
(b) Was joinder proper under Criminal Rule 8(a)?
When Judge Card denied Phillipss motion for
severance of the Anchorage charges from the
Palmer/Glennallen charges, he stated that he felt that
joinder was proper because the sequence of events ...
indicate[s] a relationship between the offenses. But
Phillips contends that joinder was improper because,
even though some relationship may exist between the
Anchorage charges and the Palmer/Glennallen charges,
the charges are not related in any of the ways
specified in Criminal Rule 8(a).
Criminal Rule 8(a) declares that different
offenses can be joined in a single indictment if:
(1) [the offenses] are of the same or
similar character and it can be determined
before trial that it is likely that evidence
of one charged offense would be admissible to
prove another charged offense, [or]
(2) [the offenses] are based on the same
act or transaction, or
(3) [the offenses] are based on two or
more acts or transactions connected together
or constituting parts of a common scheme or
plan.
We conclude that Phillipss offenses were
properly joined under subparagraph (3). The
superior court could properly conclude that
the Anchorage robbery and assault, the Palmer
vehicle theft, and the Glennallen escape and
murder constituted acts or transactions [that
were] connected together.
Viewing the evidence in the light
most favorable to the superior courts ruling,
Phillips committed armed robbery and assault
shortly after being released from prison. He
then enticed a cab driver to drive him from
Anchorage to Palmer. Phillips apparently had
no intention of paying for this
transportation; he gave the driver a
fictitious address and then he stole the cab.
Phillips drove the stolen vehicle toward
Glennallen, putting as much distance as
possible between him and Anchorage. Just
before Phillips reached Glennallen, he was
apprehended by Trooper Heck leading to the
further crimes of escape and murder.
Several Alaska cases have upheld
joinder of charges when the defendant
committed a crime and then assaulted the
police officer(s) who attempted to confront
or apprehend the defendant for this crime.
For example, in Newcomb v. State, 800 P.2d
935 (Alaska App. 1990), the defendant escaped
from prison and then violently assaulted the
police officers who attempted to apprehend
him. We concluded that there was an obvious
nexus between Newcombs escape and the efforts
to apprehend him, and we therefore upheld the
joinder of these charges under Criminal Rule
8(a)(3).1
Similarly, in Maynard v. State, 652
P.2d 489 (Alaska App. 1982), the defendant
assaulted a young girl in the evening,
assaulted one of the police officers who came
to arrest him the next morning, and then
escaped. Again, this Court held that joinder
of the three charges was proper because the
offenses [grew] out of a sequence of
interrelated transactions, each one serving
to explain and render intelligible the
others.2 We noted that the defendants
assault on the girl explain[ed] the police
officers presence on his porch the next
morning, and provided some insight into [the
defendants] state of mind when he swung a
machete at one of the officers and then ran
away.3
Phillips correctly notes that his
case is arguably distinguishable from both
Newcomb and Maynard because, in the present
case, Trooper Heck was attempting to
apprehend Phillips for vehicle theft, not for
the Anchorage robbery and assault. But this
distinction does not defeat joinder.
Although Heck did not know that Phillips had
committed robbery and assault in Anchorage,
Phillips knew it. Phillipss commission of
these Anchorage offenses was therefore
relevant to help explain Phillipss decision
to assault Heck and to escape from custody.
See also Collins v. State, 778 P.2d
1171 (Alaska App. 1989), a case in which the
defendant shot and killed a rival drug dealer
at the request of some of his cohorts; then,
the next day, he shot and killed four members
of his own organization (and seriously
wounded another) after he overheard
conversations that led him to believe that he
was to be the next victim.4 This Court found
that Collinss offenses were clearly connected
together because
[even though] the offenses arose out of two
separate incidents, the incidents occurred
only a day apart and were intimately related.
... Under [the States theory of the case],
the August 6 shootings resulted from Collins
belief that he was going to be killed because
of his role in the August 5 crime.
Consequently, knowledge of the August 5
shooting was indispensable to an
understanding of the events of August 6.
Collins, 778 P.2d at 1173.
For similar reasons, we conclude
that the counts of the indictment charging
Phillips with robbery and assault in
Anchorage were properly joined under Criminal
Rule 8(a)(3) with the counts of the
indictment charging him with vehicle theft,
escape, and murder.
(c) Was Phillips unduly prejudiced by the joinder?
Our conclusion that the charges against
Phillips were properly joined does not end our
inquiry, for Phillips also argues that even if
joinder was proper, he was entitled to severance
under Criminal Rule 14 because joinder of the
charges unduly prejudiced the fairness of his
trial.
In the present case, Phillips argues that
joinder of the Anchorage charges unfairly
prejudiced him with respect to the murder charge
because the robbery and assault evidence was
cumulative with respect to his motive, and because
introduction of evidence concerning the robbery
undoubtably caused the jury to focus on
[Phillipss] prior act[s], and convict him because
of his character. These arguments are not
persuasive.
Phillipss theft of the taxi cab was perhaps
sufficient, in itself, to explain Phillipss decision
not to pull over when Trooper Heck initiated the
traffic stop. But what followed Phillipss flight into
the woods in sub-zero temperatures, and his assault on
Trooper Heck to escape custody are much better
explained by the fact that Phillips had just committed
armed robbery and assault. These are serious felonies,
and Phillips could reasonably anticipate that he would
receive lengthy terms of imprisonment for these
offenses if he was captured. Because of this, it was
not improper for the jury to focus on the Anchorage
crimes to the extent that these crimes provided a
potential motive for Phillipss conduct on the Glenn
Highway.
For these reasons, we uphold the superior
courts decision to allow Phillips to be jointly tried
for the Anchorage offenses and the Palmer/Glennallen
offenses.
Potential prejudice arising from the presence of a
large number of uniformed officers in the spectator
section at the opening of the trial
Because Phillips was charged with the murder
of a state trooper, his case generated considerable
interest within the law enforcement community. On
appeal, Phillips claims that his right to a fair trial
was prejudiced because a number of law enforcement
officers attended the early stages of his trial,
wearing their uniforms.
(a) Underlying facts
On the first day of Phillipss trial (Tuesday,
January 20, 1998), just before the jury was brought
into the courtroom to hear opening statements,
Phillipss attorney voiced his concern over the large
contingent of uniformed officers present in the
spectator section of the courtroom. The defense
attorney asserted that the presence of so many
uniformed officers in an unofficial or personal
capacity seemed inappropriate, and he asked the trial
judge to intervene because the presence of the officers
was psychologically prejudicial to [Phillipss]
interests.
Initially, Judge Card minimized the defense
attorneys concern. The judge declared that the
court proceedings were open to everyone and that
law enforcement officers, like all other citizens,
had a right to attend the trial. The judge
further stated that he did not know whether he had
the authority to bar the officers from wearing
their uniforms while they attended court.
Phillipss attorney responded that the court had a
duty to make sure that the proceedings were
conducted in a fair and impartial manner.
Judge Card asked the prosecutor if the
officers had been ordered to attend the trial.
The prosecutor answered that he thought that the
officers were there voluntarily to support Trooper
Heck, and that they had not been ordered to
attend. A subsequent inquiry of the six officers
in attendance revealed that five of them were on
duty, while the sixth officer was attending the
trial on her day off. The prosecutor then
explained that, even though the five officers were
on duty, their reasons for attending the trial
were personal:
Prosecutor: Theyre here because theyre
interested in the outcome of the trial.
Theyre interested in how the trial
progresses. Theyre interested in supporting
their fellow fallen officer. Theyre here
because theyre curious. Theyre here because
they want to support the State. And I think
those [are] all legitimate and
constitutionally valid reasons.
During this discussion, Judge Card
referred to his experience as a military
lawyer. He told the defense attorney that,
in the military, spectators often came to
court in uniform. The judge also noted that
jurors are normally instructed to confine
their deliberations to the evidence presented
at the trial, not to consider extraneous
facts for any purpose, and not to base their
verdict on prejudice or sympathy.
Based on all of this, Judge Card
declined to prohibit law enforcement officers
from attending Phillipss trial in uniform, so
long as they were attending in their personal
capacity as citizens of the State of Alaska.
(Assumedly, officers attending the trial in
their official capacity would likewise be
allowed to wear their uniform.) Judge Card
stated that he would not exclude the officers
indeed, would not exclude anyone from the
trial, because the purpose of being here is
to have an open trial.
This is how matters stood until the
following Monday, January 26th, when Judge
Card called both parties into his chambers.
A court employee, Debra M. Coleman, had
informed Judge Card that, during the weekend,
she had overheard one of the jurors talking
about the case with a friend while they were
in a crowded shower at the gym.
Judge Card put Ms. Coleman under
oath and had her describe the conversation
she had overheard. Ms. Coleman testified
that she overheard the juror tell another
woman that she was a juror in the Phillips
case and that there [were] a lot of state
patrol officers in the courtroom ... .
Based on Colemans testimony, Judge
Card suggested that the juror be called in
for questioning. The judge was concerned
that the juror might have been expressing
nervousness about officers being in the
courtroom, and he wanted to make sure that
this was not the case.
In response, the prosecutor
suggested that it would be counter-productive
to single out this juror. The prosecutor
told the court that he had made some
telephone phone calls and had learned that
many of the officers that we [saw] were [new]
recruits ... who [had] been encouraged by
their supervisors ... to come to court and
watch, because its not too often that a quote
cop killer ... case goes to trial. The
prosecutor then explained that he [did] not
want the jury to get the ... impression that
somehow [the State was] packing the courtroom
... with [the] intent to influence the
outcome of the case, so he had asked the
right people ... to sort of discontinue this
practice. The prosecutor predicted that the
number of uniformed officers attending
Phillipss trial would decrease, and he
suggested that, by the end of trial, the
jurors would look back and associate the
number of officers with the beginning of the
trial and would probably attribute the
officers presence to curiosity, and coming to
court and watching opening statements, and
such.
Phillipss attorney agreed with the
prosecutor that singling out [this juror] or
[any]body else might be inappropriate. He
therefore did not ask Judge Card to conduct a
voir dire examination of the juror. Rather,
the defense attorney asked Judge Card to
issue a pointed admonition to the jurors as a
group, directing them to refrain from talking
to anyone about the case.
The defense attorney also
reiterated that he believed the court had the
power and the duty to prevent law enforcement
spectators from wearing their uniforms. He
indicated that he would soon be filing a
motion asking the court to bar law
enforcement officers from attending the trial
in their uniforms. Judge Card stated that he
wished to review this motion and the
accompanying memorandum of supporting
authority before he took any action.
The defense attorney filed his
motion that same afternoon. Judge Card heard
argument on this motion on the morning of
Monday, February 2nd (i.e., the beginning of
the third week of trial). The State argued
that the defense motion was essentially moot
because the number of officers in attendance
had dropped dramatically during the second
week of trial. But Phillipss attorney
disputed that the issue was moot. He
asserted that the prejudice to Phillipss case
had already occurred that people were really
struck by the wall of blue in the front row
when they walked into this trial when it
opened. Accordingly, the defense attorney
asked Judge Card to consider the prejudice
that had already occurred during the first
week of Phillipss trial, as well as the
foreseen prejudicial effect of having a solid
phalanx of blue here in court [during]
closing arguments.
Again, Judge Card minimized the
defense attorneys concerns. The judge
conceded that there were reported cases in
which trial judges had been criticized for
allowing spectators to openly wear buttons
proclaiming their membership in Mothers
Against Drunk Driving or Women Against Rape.
But the wearing of a police uniform, Judge
Card declared, did not convey a message ...
other than justice which is what were here
for. Thus, Judge Card concluded, the
presence of uniformed law enforcement
officers in the spectator section did not
pose an unacceptable risk.
Judge Card stated, however, that he
did not want to have a sea of blue, shoulder-
to-shoulder in this courtroom, packing it
with forty-nine officers, [leaving] no room
for civilians. So, rather than issue the
complete ban on uniformed officers that
Phillips requested, Judge Card stated that he
preferred to set a limit on the number of
uniformed officers who could sit in the
spectator section. The judge suggested a
limit of ten to twenty percent of the
courtrooms spectator seating.
(The record indicates that the
seating capacity in the spectator section was
forty-five people. Thus, under the judges
suggested guideline, five to ten uniformed
officers would have been allowed to attend
the trial.)
Phillipss attorney responded that
twenty percent was too large ... a presence
of the police. The defense attorney then
moved for a mistrial based on the prejudice
that [he] believe[d had] already occurred in
the course of this trial.
Judge Card denied the defense
motion for a mistrial, but he appeared to
offer a new compromise: he stated that he
was leaning towards a limit of five uniformed
officers. In a written order issued later
that day, Judge Card did indeed limit the
number of police officers in attendance to
five approximately ten percent of the
courtrooms spectator seating capacity.
Phillipss trial continued for
another three weeks. The case went to the
jury on Friday, February 27th, and the jury
returned its verdict on Tuesday, March 3rd.
The defense attorney never raised this
subject again.
(b) Did the presence of the law enforcement
officers prejudice the fairness of Phillipss trial?
On appeal, Phillips argues that law
enforcement spectators constituted an overwhelming and
intimidating police presence in the courtroom and that,
accordingly, Judge Card should have granted his motion
for a mistrial or at least should have completely
barred the presence of uniformed officers in the
spectator section.
The United States Supreme Court has observed
that a roomful of uniformed and armed policemen might
pose [a threat] to a defendants chances of receiving a
fair trial5 although, in that case, the Supreme Court
was referring to the potential inference that a
defendant was an especially dangerous criminal who
needed extraordinary guarding. Here, the danger was
different: Phillips was on trial for murdering a state
trooper, and the appearance of law enforcement officers
en masse in the spectator gallery posed a threat that
the jurors would feel implicit pressure to return a
verdict favorable to law enforcement interests or
sentiment.
Other courts have acknowledged this potential
obstacle to a defendants receiving a fair trial. See
Balfour v. State, 598 So.2d 731, 756 (Miss. 1992),
where the court noted the potential coercive atmosphere
when uniformed police officers sat together in a group
during a capital murder trial where the victim was a
law enforcement officer.
The potential prejudice associated with the
presence of uniformed law enforcement officers during a
prosecution for the murder of a police officer is
similar to the potential prejudice associated with the
presence of other types of spectators at a criminal
trial who conspicuously align themselves with the
victims interests. Thus, in Norris v. Risley, 918 F.2d
828, 829-30, 831 (9th Cir. 1990), the court reversed
the defendants conviction for rape because several
members of a local rape task force and the National
Organization for Women wore Women Against Rape buttons
during the trial. In Woods v. Dugger, 923 F.2d 1454,
1459-60 (11th Cir. 1991), the court reversed a
defendants conviction for the first-degree murder of a
corrections officer due, in part, to the prejudice
aris[ing] from the presence of the uniformed
corrections officers in the courtroom. And in State v.
Franklin, 327 S.E.2d 449, 454-55 (W.Va. 1985), the
court reversed the defendants conviction for a homicide
arising from drunk driving because, throughout the
trial, ten to thirty spectators seated directly in
front of the jury wore Mothers Against Drunk Driving
buttons inscribed with the acronym MADD.
Thus, there is case law to support the
defense attorneys objection to the presence of a large
group of uniformed law enforcement officers in the
spectator gallery at Phillipss trial. But the question
in Phillipss appeal is whether the law enforcement
presence was so prejudicial that Judge Card abused his
discretion when he limited the police presence to five
uniformed officers instead of accepting the defense
proposal to bar all uniformed officers from attending
the trial or, in lieu of that complete bar, granting
the defense request for a mistrial.
Generally, a trial judges decision to grant
or deny a motion for mistrial is reviewed for abuse of
discretion6, and we conclude that the same standard of
review should govern a mistrial motion based on an
allegation of prejudice stemming from the presence of
spectators affiliated with one party or another. The
trial judge is in the best position to determine the
potential effect that the presence of spectators might
have on the jurors, and to observe whether these
spectators engaged in untoward demonstrations of
sentiment or allegiance.
Application of an abuse of discretion
standard is somewhat difficult in Phillipss case
because it appears that, at least initially, the trial
judge did not fully appreciate the risk of prejudice
i.e., the risk of sympathy or intimidation posed by
the presence of a group of uniformed law enforcement
officers in the spectator section of the courtroom.
Judge Cards analogy to military trials (where
spectators often come to court in uniform) was not
particularly apt since, in a military court, the
accused, the accuser, and the jurors (and often the
victim) are all members of the military. And a
defendant accused of killing or assaulting a law
enforcement officer might properly be dismayed by the
judges further statement that a police uniform convey[s
no] message other than justice which is what were here
for.
Nevertheless, both the prosecutor and Judge
Card ultimately responded to the defense attorneys
concerns. At the beginning of the second week of
trial, the prosecutor announced that he [did] not want
the jury to get the ... impression that somehow [the
State was] packing the courtroom ... with [the] intent
to influence the outcome of the case, so he had asked
the right people ... to ... discontinue the practice of
encouraging law enforcement officers to attend the
trial. And at the beginning of the third week of
trial, Judge Card issued a ruling that limited the
number of uniformed law enforcement spectators to five
at any one time.
It is important to note that, when Phillipss
attorney asked for the mistrial, he did not assert that
these measures had proved, or would prove, ineffective.
Rather, the defense attorney argued that irremediable
prejudice had already occurred, arising from the
officers presence during the first week of trial, and
that no remedy short of a mistrial or at least a
complete ban on the presence of uniformed officers
would cure this prejudice.
But Phillipss trial lasted six weeks. From
the record before us, it appears that the law
enforcement presence was conspicuous for only the first
week of the trial. Moreover, when the defense attorney
had the chance to voir dire a juror (at the beginning
of the second week of trial) to see if the presence of
law enforcement spectators was in fact influencing the
jury, the defense attorney declined the opportunity.
Based on this record, we conclude that Judge Card did
not abuse his discretion when he rejected Phillipss
request for a mistrial or, alternatively, a complete
ban on the presence of uniformed officers, and instead
opted for other remedial actions to minimize the risk
of prejudice while at the same time accommodating the
officers legitimate interest in attending the trial.
Potential prejudice arising from the fact that the
prosecutor introduced Trooper Hecks widow to the jury
at the beginning of the trial
On the morning of the second day of trial
(January 21, 1998), the prosecutor asked Judge Card for
permission to introduce Trooper Hecks widow to the
jurors. Phillips objected that there was no reason for
such an introduction, other than the prosecutors desire
to generate as much sympathy and emotion as he can.
Judge Card overruled this objection, noting that he had
already instructed the jurors that sympathy was to play
no part in their decision, and that he intended to do
so again at the end of the trial.
The prosecutor then proceeded to introduce
Laurie Heck, who was seated in the spectator gallery
next to some uniformed officers. But instead of simply
introducing Ms. Heck, the prosecutor offered the
following explanation of her presence:
Prosecutor: I do want to take a moment
this morning ... to introduce ... the members
of the jury and ... the court [to] Laurie
Heck, who is Bruce Hecks widow. She will be
seen from time to time in the court.
Actually, she plans to be here every day.
She was not here during jury selection. [To
Ms. Heck:] Can you stand up?
[Ms. Heck] was not here during jury
selection last week: she lives in
Glennallen, [and] she was in the process of
moving down [here]. ... But shell be here
every day.
On appeal, Phillips argues that the prosecutors act of
introducing Trooper Hecks widow to the jury was the
equivalent of inviting the jurors to step into the
shoes of the victim a prohibited golden rule
argument.7 But this contention overstates what
happened. The prosecutor did not ask the jurors to do
anything or imagine anything.
As the State correctly notes, Ms. Heck (as the
surviving spouse of a homicide victim) had a constitutional right
to attend all phases of Phillipss trial. See Article I, 24 of
the Alaska Constitution and AS 12.61.010(a).8 Not only would Ms.
Heck inevitably have come to the jurors attention because she was
a constant spectator, but she in fact testified during the States
case-in-chief, describing her husbands level of health and state
of physical well-being at the time of the homicide. Thus, even
if the prosecutor had not been allowed to introduce Ms. Heck to
the jurors at the beginning of the trial, she would have become
known to the jurors during the trial.
This is not to say that we perceive no problem with the
practice of specially introducing crime victims to the jury. The
American Bar Associations Standards for the Administration of
Criminal Justice suggest that it is unprofessional for a
prosecutor to engage in conduct (other than introducing evidence
or making fair comment on the evidence) whose primary purpose is
to arouse the jurors passions in a way that will prejudice the
jurors fair consideration of the case.9
There are few cases dealing with the introduction of
crime victims to the jury. But in at least one egregious case,
this practice prompted an appellate court to reverse a criminal
conviction. See State v. Henry, 198 So. 910 (La. 1940), in which
a murder conviction was reversed because the special prosecutor
escorted the victims widow and daughter to seats within ten feet
of the jury, then staged an exhibition in which he referred to
the widow and daughter as sorrowful, bereaved relatives of the
deceased and later publicly announced that he had adopted these
tactics for the purpose of arousing the sympathy of the jury in
aid of the states case. See also Kenneth J. Rampino, Propriety
and Prejudicial Effect of Prosecutors Remarks as to Victims Age,
Family Circumstances, or the Like, 50 A.L.R.3d 8 (1973).
In the present case, the prosecutors introduction of
Trooper Hecks widow to the jury at the beginning of the trial
appears to have had no purpose apart from encouraging the jurors
to pay attention to her during the trial because she was the
living representative of the deceased. Nevertheless, we take
judicial notice that attorneys often engage in acts of
attentiveness to their clients for the primary purpose of
humanizing their clients and thereby evoking the jurors empathy.
Likewise, when litigants take the stand, their attorneys often
engage in preliminary questions whose answers have little
relevance to the matters being litigated, and whose primary
purpose is generate juror empathy by explaining the clients
background and the clients situation in life. Such tactics are
not normally perceived as prejudicing the fairness of the trial.
Indeed, we note that Phillipss attorney responded to the
prosecutors gambit by introducing the members of Phillipss
family.
We further note that Judge Card expressly cautioned the
jurors not to allow their decision to rest on mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, or
public feeling.
Given this record, we conclude that even if it was
error for Judge Card to allow the prosecutor to specially
introduce Laurie Heck at the beginning of Phillipss trial, that
error did not prejudice the fairness of the proceedings.
The jury instruction on causation
Phillips was indicted for first-degree
murder. The State asserted that Phillips intentionally
killed Trooper Heck by choking him and smothering him
with snow when Heck tried to take Phillips into
custody. But Phillips claimed that Heck died by
accident that his death arose from a pre-existing
heart condition. Phillips asserted that Heck succumbed
to heart arrhythmia brought on by the physical effort
of chasing Phillips through the woods.
The evidence on this point was conflicting.
The State presented the testimony of Dr. Michael
Propst, the state medical examiner, who testified that
Heck died from asphyxiation resulting from the combined
effect of thorax compression (caused by Phillipss act
of straddling Hecks chest), windpipe compression caused
by the forceful application of some object (such as
Phillipss forearm) across Hecks throat, and smothering
that occurred when Phillips covered Hecks face with
compressed snow.
Phillips countered this testimony with expert
testimony of his own. Phillipss primary expert witness
was Dr. Ira Kanfer, a pathologist who testified that
Hecks injuries were superficial and inconsistent with
the States theory of death by smothering or strangling.
Dr. Kanfer believed that Heck died from heart
arrhythmia brought on by Hecks fight with Phillips.
Phillipss second expert, Dr. Karen Kelly, agreed with
this conclusion. She said that if she were signing
Hecks death certificate, she would certify the cause of
death as cardiac arrhythmia elicited during a struggle.
Clearly, the jury had doubts concerning the
States allegation that Phillips intentionally killed
Heck, for the jury acquitted Phillips of first-degree
(intentional) murder. However, the jury apparently
agreed with the State that Phillips killed Heck during
a struggle that ensued when Heck arrested Phillips in
the woods. The jury found Phillips guilty of second-
degree (unintentional) murder under three different
theories: (1) that Phillips caused Hecks death while
acting with intent to cause serious physical injury or
knowing that his conduct was substantially certain to
cause death or serious physical injury10; (2) that
Phillips caused Hecks death while acting with extreme
indifference to the value of human life11; and (3) that
Phillips caused Hecks death while committing the crime
of second-degree escape (felony murder)12.
On appeal, Phillips contends that the jurys
verdicts are flawed by a mistake in the courts
instruction on causation.
Judge Card instructed the jury that [a]
defendants conduct need not be the sole factor in
producing the result prohibited by the statute (in this
case, human death), and that Phillips could properly be
convicted if the jury found that his conduct was a
substantial factor in bringing about the [prohibited]
result. This was a correct statement of the law.13
Judge Card then told the jury:
[A] defendant will be held accountable
for an injury or death resulting from his
conduct even though it can be shown that the
injury or death resulted from the combined
effects of the act of the defendant and a pre-
existing condition of the person killed.
This is true even though it is probable that
a person in sound physical condition would
not have died from the injury inflicted by
the defendant, and even though it is probable
that the injury inflicted by the defendant
only hastened the death of the person. Once
a defendant has set events in motion, no
condition of the victim relieves the
defendant of criminal responsibility for the
ensuing injury or death if the defendants
conduct created or enhanced the risk that
someone would suffer the type of injury
actually suffered by the victim.
Phillipss attorney objected to this
portion of the instruction on the ground that
it did not require the jury to find that
Hecks death was a direct, natural, and
probable consequence of Phillipss conduct.
But such an instruction would have been
wrong, or at least substantially misleading.
If Phillips unlawfully fought with
Heck to avoid arrest or to escape following
arrest, and if Heck died from the combined
effects of this struggle and his pre-existing
heart condition, Phillipss conduct would be
the cause Hecks death (for purposes of
assessing Phillipss guilt of criminal
homicide) even if Hecks death was not a
natural and probable consequence of the sort
of struggle that occurred. Under such
circumstances, it would be no defense that
Hecks death was an unexpected or unlikely
consequence of Phillipss conduct. As our
supreme court stated in Armstrong v. State,
502 P.2d 440, 445 (Alaska 1972), [t]he fact
that [a homicide] victim died from the
combined effects of a pre-existing disease or
condition and a blow or wound maliciously
inflicted by the defendant does not relieve
the defendant of [criminal] liability [for
the resulting death]. Thus, even if Phillips
did not strike or choke Heck in a manner that
would endanger his life under normal
circumstances, and even if Phillips had no
way of knowing that Heck suffered from a
heart condition, Phillips would nevertheless
be criminally responsible for Hecks death if
that death resulted from Phillipss unlawful
assault combined with Hecks pre-existing
heart condition.
On appeal, Phillips words his
argument in a slightly different way. He
contends that the quoted language from the
jury instruction was flawed because it did
not instruct the jury to acquit Phillips of
murder (and any lesser degree of criminal
homicide) if the jury found that Hecks pre-
existing heart condition was an intervening
or superseding cause of Hecks death.
But, as a legal matter, if Phillips
assaulted Heck, Hecks pre-existing heart
condition could not have been a superseding
cause of his death. Once Phillips used
unlawful force against Heck, Phillips became
responsible for the consequences, even if
those consequences were exacerbated by Hecks
pre-existing heart condition. As the supreme
court stated in Armstrong, the consequences
of an act which is the efficient cause of the
death of another are not excused, nor is the
[actors] criminal responsibility for causing
death lessened, by the pre-existing physical
condition of the person killed.14
The only area of difficulty would
be if the jury doubted whether Phillips used
unlawful force against Heck. For instance,
if Phillips had simply run away into the
woods and Heck had suffered a heart attack
while running after him, there would be a
significant question as to whether Phillips
could be held criminally responsible for
Hecks death.
In his brief to this Court,
Phillips identifies this problem. He argues
that, under the courts instruction on
causation, the jury might have believed that
Phillips could be found guilty of criminal
homicide if he set events in motion (the
wording of the instruction) simply by running
from the overturned cab into the woods, even
though he never laid a hand on Trooper Heck.
The challenged portion of the jury
instruction is potentially ambiguous or
incomplete regarding the question of whether
Phillips could properly be held accountable
for Hecks death if Phillipss role in causing
that death was limited to Phillipss act of
fleeing into the woods an arguably unlawful
but non-assaultive act.
But this potential ambiguity or
incompleteness in the causation instruction
was harmless in the factual context of
Phillipss case. Phillips did not merely flee
into the woods. Rather, Trooper Heck caught
up with Phillips and began the process of
arresting him as manifested by the fact that
there was a handcuff fastened to Phillipss
left wrist when he was taken into custody by
Trooper Pierce. There was further evidence
that Phillips used unlawful force on Heck:
in the area surrounding Hecks body, the snow
was trampled down as if there had been
struggle, and a great deal of Phillipss blood
was found in the immediate area. (Phillips
was bleeding from wounds suffered when he
drove the cab off the road.)
Both of the defense expert
witnesses testified that Heck died from heart
arrhythmia brought on by a physical struggle.
And the defense attorney, in his summation,
conceded to the jurors that Mr. Phillips and
Trooper Heck [engaged] in a struggle.
Moreover, the jurys three second-
degree murder verdicts demonstrate their
conclusion that Phillips did more than simply
run into the woods that he in fact used
unlawful force against Heck.
The jurors found Phillips guilty of
second-degree murder under a felony-murder
theory. That is, they concluded that
Phillips caused Hecks death while committing
second-degree escape. This verdict required
the preliminary finding that Heck had placed
Phillips under arrest and, according to the
jury instruction on felony murder, it also
required the jurors to find that Phillips
caused the death of ... Trooper Bruce Heck in
the course of or in furtherance of [the
escape], or in immediate flight from that
crime.
The jurors also convicted Phillips
of second-degree murder under the theory that
he caused Trooper Hecks death under
circumstances manifesting an extreme
indifference to the value of human life. It
is extremely unlikely that the jurors would
have viewed Phillipss act of running from the
overturned cab as conduct that manifested
extreme indifference to the value of human
life.
Finally, the jurors convicted
Phillips of second-degree murder under the
theory that, acting with the intent to
inflict serious physical injury, or knowing
that his conduct was substantially certain to
cause death or serious physical injury, he
caused Hecks death. Again, it is extremely
unlikely that the jurors would have viewed
Phillipss act of running from the overturned
cab as conduct that was intended to inflict
serious physical injury, or as conduct that
was substantially certain to cause death or
serious physical injury. The jurors must
have concluded that Phillips assaulted Heck
in the woods, and that this assault was a
substantial factor in causing Hecks death.
For these reasons, we conclude that
any arguable ambiguity or incompleteness in
the causation instruction was harmless beyond
a reasonable doubt under the facts of
Phillipss case and given the way his case was
litigated (i.e., the defense concession that
Phillips struggled against Heck).
Phillipss sentence
Phillips was convicted of second-degree
murder, an unclassified felony that carried a
penalty of 5 to 99 years imprisonment at the time
of Phillipss offense.15 (The penalty range is now
10 to 99 years.)16 Judge Card found that Phillips
was a worst offender, and he sentenced Phillips to
the maximum sentence: 99 years imprisonment.
Phillips was also convicted of two counts of
first-degree robbery, a class A felony with a maximum
penalty of 20 years imprisonment.17 Based on his prior
felony convictions, Phillips was a third felony
offender for presumptive sentencing purposes, and he
therefore faced a presumptive term of 15 years
imprisonment on each count of robbery.18 With regard
to these two counts of robbery (one count for each
victim, Roberto Cuautle and his daughter, Liliana
Hern ndez), Judge Card again found that Phillips was a
worst offender, and he sentenced Phillips to a
composite term of 25 years imprisonment, consecutive to
the murder sentence.
Additionally, Phillips was convicted of two
counts of second-degree assault against Cuautle and
Hern ndez. Second-degree assault is a class B felony
with a maximum sentence of 10 years imprisonment.19 As
a third felony offender, Phillips faced presumptive
terms of 6 years imprisonment for these crimes.20
Judge Card sentenced Phillips to a composite term of 14
years imprisonment, consecutive to the murder sentence
and the robbery sentences.
Judge Card also imposed a total of 8 years
with 4 years imprisonment for Phillipss other offenses:
second-degree escape and first-degree vehicle theft.
All told, Phillips received a composite
sentence of 142 years to serve.
On appeal, Phillips challenges this sentence
as excessive. He contends that his second-degree
murder sentence should have been within the 20- to 30-
year benchmark range established by this Court in Page
v. State, 657 P.2d 850, 855 (Alaska App. 1983).
Phillips concedes that he could properly receive
additional time to serve for the robberies, but he
argues that his composite sentence for all of these
crimes should not have exceeded 40 years to serve.
The Page benchmark sentencing range was
intended to demarcate the range of actual imprisonment
(time to serve) that a sentencing judge should impose
on a typical first felony offender convicted of a
typical second-degree murder.21 Phillips is not a
typical first felony offender. He is a third felony
offender, and his status is further aggravated by the
fact that he committed this murder just two days after
being released from prison on felony parole.22 These
facts, standing alone, would justify a murder sentence
above the Page benchmark range.
In addition, it was proper for Judge Card to
conclude that Phillipss crime was aggravated because
the victim was a law enforcement officer engaged in his
duties. Compare AS 12.55.125(c)(2), which imposes a
more severe presumptive term on first felony offenders
convicted of class A felonies if their offense was
knowingly directed [toward] a uniformed or otherwise
clearly identified peace officer ... who was engaged in
the performance of official duties at the time of the
offense.
However, we are troubled by one aspect of
Judge Cards sentencing remarks. When Judge Card was
explaining the reasons why he believed that Phillips
should receive a sentence above the Page benchmark
range, the judge referred to and misapplied our
decision in Gustafson v. State, 854 P.2d 751 (Alaska
App. 1993).
In Gustafson, we were asked to reconcile the
Page benchmark (20 to 30 years to serve) with a
statement we made in State v. Krieger, 731 P.2d 592
(Alaska App. 1987), that [when] a homicide is
unintentional, [past] appellate [decisions] indicate
that ... a sentence of ten years or less is sufficient
to satisfy the Chaney [sentencing] criteria.23
The defendant in Gustafson argued that, given
this statement in Krieger, any second-degree murder
defendant who did not intend to kill their victim
should receive a sentence below the Page benchmark. We
rejected this argument because, by definition, all
second-degree murders are unintended homicides.24
Thus, it would be inconsistent with Page if we limited
sentences to 10 years to serve whenever the death was
unintended. Instead, we declared that the statement in
Krieger referred to homicides caused by non-assaultive
conduct or unintentional assaults (since the Alaska
criminal code now contains various types of reckless
and negligent assaults).25
(Since that time, we have also rejected the
suggestion in Krieger that the Chaney criteria will
always be satisfied by a sentence of 10 years or less
to serve for second-degree murder stemming from an
unintentional assault. Kriegers 10-year ceiling was
based on the Alaska Supreme Courts decision in Pears v.
State26, which was interpreted as setting a 10-year
ceiling on sentences for vehicular homicide, even when
the defendant was convicted of second-degree murder.27
But later, in State v. Bumpus, the supreme court
disavowed this interpretation of Pears.28 Accordingly,
this Court has upheld sentences exceeding 10 years to
serve for second-degree murder arising from an
unintentional assault.29)
Our decision in Gustafson clarified that,
despite what was said in Krieger, Page continues to
supply the benchmark sentencing range for second-degree
murders arising from intentional assaults. But Judge
Cards sentencing remarks suggest that he misunderstood
our holding in Gustafson. Instead of construing
Gustafson to mean that Page continued to supply the
benchmark range for second-degree murders arising from
intentional assaults, Judge Card interpreted Gustafson
to mean that any second-degree murder arising from an
intentional assault must be among the most serious
second-degree murders, an offense equivalent in
blameworthiness to first-degree murder:
The Court: I looked at the Gustafson
case, ... which says that killing is
intentional if it [arises] from an
intentional assault. In [Phillipss] case,
[his] fighting with the officer was an
intentional assault. It was [his] intention
to get away from the trooper, [so] he
intentionally assaulted the trooper. That
effectively makes this [killing] an
intentional act as opposed to a reckless [or]
a grossly negligent [act], or any other terms
we use for [culpable] mental states.
The [second-degree] murder ... in this
case is more closely akin to murder in the
first degree, because of the Gustafson logic,
in that Mr. Phillips intentionally as that
term is used in Gustafson intentionally did
acts which caused the death of Trooper Heck,
and it was totally without provocation.
This reasoning stands the Gustafson decision
on its head. Gustafson acknowledges that
second-degree murders stemming from non-
assaultive conduct are typically among the
least serious; but Gustafson does not say
that second-degree murders stemming from
intentional assaults are necessarily among
the most serious.
Judge Cards interpretation of
Gustafson would render the category of
typical second-degree murders a null set for
this category would include neither
intentional nor unintentional assaults.
Moreover, such an interpretation of Gustafson
would be fundamentally at odds with the
definition of second-degree murder. Under
AS 11.41.110(a)(1), a person commits second-
degree murder if they unintentionally kill
another person while committing an assault
whose purpose is to inflict serious physical
injury. That is, assaultive conduct is a
required element of the offense under this
subsection of the statute so, logically,
this same assaultive conduct can not, per se,
automatically constitute the most serious
conduct within the definition of the offense.
In Phillipss case, the jury found
that Trooper Heck met his death because
Phillips intentionally assaulted the trooper
and, when doing so, Phillips either intended
to seriously injure the trooper or he knew
that his assault was substantially certain to
cause death or serious physical injury to the
trooper. But, as just explained, this is the
basic definition of the offense under
subsection (a)(1) of the second-degree murder
statute. Judge Card was wrong when he
concluded that Phillipss intentional assault
on Trooper Heck meant that the resulting
homicide was automatically equivalent in
blameworthiness to first-degree murder, or
that Phillips should presumptively receive
the 99-year maximum sentence for second-
degree murder.
Because of this, we vacate
Phillipss sentence for second-degree murder
and we direct Judge Card to reconsider that
sentence.
Conclusion
For the reasons explained above, we AFFIRM
Phillipss convictions for murder, escape, robbery,
assault, and vehicle theft.
(We do, however, direct Judge Card to amend
the written judgement so that it reflects a single
conviction for second-degree murder based on the jurys
three second-degree murder verdicts. Phillips can not
lawfully be convicted of more than one murder for
killing a single victim.)
We VACATE Phillipss sentence for second-
degree murder, and we direct Judge Card to re-sentence
Phillips in accordance with the explanation of
Gustafson contained in this opinion. The re-sentencing
should occur within 90 days of the issuance of this
opinion.
When Judge Card has re-sentenced Phillips, he
shall notify this Court. At that point, Phillips shall
notify this Court whether he intends to renew his claim
that his composite sentence is excessive. If Phillips
wishes to continue his sentence appeal, the Clerks
Office shall order preparation of a transcript of the
re-sentencing hearing.
Upon certification of this supplemental
transcript, Phillips shall have 30 days to file a
supplemental sentencing brief (which can be filed in
memorandum form). The State shall have 30 days
thereafter to file its own supplemental sentencing
brief. When we have received these briefs, we shall
resume our consideration of Phillipss sentence appeal.
We retain jurisdiction of this appeal.
_______________________________
1 Newcomb, 800 P.2d at 942-43.
2 Maynard, 652 P.2d at 491.
3 Id.
4 Id. at 1173.
5 Holbrook v. Flynn, 475 U.S. 560, 570-71; 106 S.Ct. 1340,
1347; 89 L.Ed.2d 525 (1986).
6 Cheely v. State, 861 P.2d 1168, 1178 (Alaska App. 1993);
Gorz v. State, 749 P.2d 1349, 1355 (Alaska App. 1988).
7 See Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska
1978); Mallonee v. Finch, 413 P.2d 159, 164 (Alaska
1966) (holding that it is improper for an attorney to
implore jurors to put themselves in the position of one
of the litigants and then ask themselves what kind of
outcome they would wish under the circumstances). For
an application of this rule in a criminal case, see
United States v. Teslim, 869 F.2d 316, 328 (7th Cir.
1989) (holding that it is improper for a prosecutor to
urge the jury to place themselves in the victims
shoes).
8 Article I, 24 states in pertinent part: Crime victims,
as defined by law, shall have the following rights as provided by
law: ... the right to confer with the prosecution; the right to
be treated with dignity, respect, and fairness during all phases
of the criminal and juvenile justice process; the right to timely
disposition of the case following the arrest of the accused; the
right to obtain information about and be allowed to be present at
all criminal or juvenile proceedings where the accused has the
right to be present; [and] the right to be allowed to be heard,
upon request, at sentencing, before or after conviction or
juvenile adjudication, and at any proceeding where the accuseds
release from custody is considered[.]
See also AS 12.61.010(a), which clarifies that a crime
victim has the right to be present at any proceeding where the
defendant has the right to be present, even if the victim is
likely to be called as a witness.
Under AS 12.61.900(3), which adopts the definition of victim
codified in AS 12.55.185(16)(C), if the person against whom the
offense was committed is dead, the term victim includes a person
living in a spousal relationship with the deceased before the
deceased died.
9 See, for instance, Standard 3-5.6, which declares that
[i]t is unprofessional conduct for a prosecutor to permit any
tangible evidence to be displayed in the view of the ... jury
which would tend to prejudice fair consideration by the ... jury
until such time as a good faith tender of such evidence is made.
10 AS 11.41.110(a)(1).
11 AS 11.41.110(a)(2).
12 AS 11.41.110(a)(3).
13 See State v. Malone, 819 P.2d 34, 36 (Alaska App.
1991); Rollin M. Perkins & Ronald N. Boyce, Criminal Law
(3rd edition 1982), pp. 779-780.
14Id. at 445, quoting Anderson, Whartons Criminal Law and
Procedure (1957), 201, Vol. 1, pp. 450-55.
15AS 11.41.110(b); AS 12.55.125(b) (1998 version).
16See SLA 1999, ch. 65, 1.
17 AS 11.41.500(b); AS 12.55.125(c).
18 AS 12.55.125(c)(4).
19 AS 11.41.210(b); AS 12.55.125(d).
20 AS 12.55.125(d)(2).
21 See Brown v. State, 4 P.3d 961, 964 (Alaska App. 2000);
Sam v. State, 842 P.2d 596, 603 (Alaska App. 1992).
22 See AS 12.55.155(c)(20).
23 Krieger, 731 P.2d at 595, referring to State v. Chaney,
477 P.2d 441, 443-44 (Alaska 1970).
24 Gustafson, 854 P.2d at 765-66; AS 11.41.110(a).
25 Gustafson, 855 P.2d at 766.
26 698 P.2d 1198, 1205 n. 15 (Alaska 1985).
27 See Krieger, 781 P.2d at 595.
28 820 P.2d 298, 302 (Alaska 1991).
29 For example, in Puzewicz v. State, 856 P.2d 1178
(Alaska App. 1993), we upheld a sentence of 13 years to
serve for second-degree murder stemming from a motor vehicle
accident. See also Pusich v. State, 907 P.2d 29 (Alaska
App. 1995), where we upheld a sentence of 18 years to serve
for manslaughter and first-degree assault arising from a
motor vehicle accident.
