Opinion
Court of Appeals No. A-11269 No. 6117
11-19-2014
LORI JEAN PHILLIPS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew J. Lambert, Kalamarides & Lambert, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-09-13012 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Andrew J. Lambert, Kalamarides & Lambert, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
In 2006, Lori Jean Phillips was convicted of three offenses under the Anchorage Municipal Code: driving under the influence, refusing to take a breath test, and eluding a police officer. She received a composite sentence of 12 days to serve with an additional 198 days suspended, and she was placed on probation for 4 years.
AMC §§ 9.28.020, 9.28.022, and 9.28.011, respectively.
In March 2009, while Phillips was still on probation from these earlier convictions, she again drove while under the influence, and she again refused the breath test. The Municipality of Anchorage charged Phillips with these two new crimes, and the Municipality also petitioned the district court to revoke Phillips's probation from the earlier case.
Pending her trial in this March 2009 case, Phillips was released on bail. Among other things, Phillips's conditions of release prohibited her from drinking alcoholic beverages and from driving without a valid license and proper insurance.
A few months later, in November 2009, while Phillips was still on bail release, she again drove while intoxicated. This time, Phillips caused a car crash that killed one person and permanently injured another. The grand jury indicted Phillips on two felony charges: second-degree murder (under the theory that Phillips acted with extreme indifference to the value of human life) and first-degree assault. The State also charged Phillips with three misdemeanors: driving under the influence, driving with a revoked license, and reckless driving.
Following a jury trial, Phillips was convicted of these five crimes. The superior court sentenced Phillips to a composite term of 22 years with 2 years suspended — 20 years to serve.
Phillips now appeals her felony convictions and sentence. With regard to her convictions, Phillips argues that her trial was unfair because the superior court allowed the State to introduce evidence relating to Phillips's earlier court cases. And with regard to her sentence, Phillips argues that 20 years to serve is excessive, and that a sentence of 10 to 13 years to serve would have been adequate to satisfy the sentencing criteria codified in AS 12.55.005.
For the reasons explained in this opinion, we conclude that neither of Phillips's claims has merit, and we therefore affirm the judgement of the superior court.
The evidence relating to Phillips's prior court cases involving driving under the influence
In advance of Phillips's trial, the State sought permission to introduce evidence of Phillips's prior conduct as it related to driving while intoxicated, breath-test refusal, and failing to abide by the conditions of her release.
The superior court granted the State's motion in part; the court allowed the State to introduce the following evidence:
(1) that Phillips's license had been revoked (for unstated reasons) at the time of the events in this case;
(2) that Phillips was previously convicted of driving under the influence in 2006;
(3) that, under the conditions of her probation in that earlier case, Phillips completed an alcohol abuse treatment program; and
(4) that Phillips had another, unspecified criminal case pending at the time of the events in this case, and that Phillips's conditions of release in that pending case required her to refrain from driving and refrain from drinking.
The superior court concluded that this evidence was admissible to prove the culpable mental state required for the second-degree murder charge — that is, to prove that Phillips's degree of recklessness amounted to manifest indifference to the value of human life.
The evidence at Phillips's trial, considered as a whole
To resolve Phillips's claim that the evidence described in the preceding section was unfairly prejudicial, we must evaluate the challenged evidence in the context of all the evidence presented at Phillips's trial. Phillips's trial lasted six days, and the challenged evidence was only one aspect of the State's case.
In his opening statement, the prosecutor mentioned the fact that Phillips's license was revoked, and that her conditions of release in a pending criminal case prohibited her from driving and from drinking alcoholic beverages. But this information was contained in a single paragraph of an opening statement that took eight and a half pages to transcribe. The rest of the prosecutor's opening statement was devoted to a synopsis of the following evidence:
Phillips had scheduled a hair appointment on the afternoon of November 2, 2009. She arrived at the hair salon in the mid-afternoon. The owner of the salon, who had known Phillips for years, could tell that Phillips "wasn't quite right". Her speech was slurred and slow, and she was "just out of it". By the end of the hair appointment, some two and a half hours later, Phillips could no longer talk. Her eyes were glazed over, and they were involuntarily crossing. The salon owner could not tell whether Phillips had been drinking, or if she was on drugs, but it was obvious that "[Phillips] was on something." When it came time to pay, Phillips had to write the check twice.
As Phillips got ready to leave the shop, the salon owner told her, "There's no way you're driving out of here. ... You can't drive; you're in no shape to be driving. Let me call you a cab." But Phillips walked out of the salon and got into her car (a Ford Explorer). While the car door was still open, the salon owner approached Phillips, grabbed her arm, and tried to pull her from the vehicle. She again told Phillips that she should not be driving, and she again offered to call a cab, but "[Phillips] wouldn't listen to [her]."
All told, the salon owner spent eight to ten minutes trying to dissuade Phillips from driving, but to no avail. Phillips closed the door of her vehicle and she drove away, heading south on the Seward Highway — almost hitting another car in the process. The salon owner immediately went back inside and called 911.
As Phillips drove south on the Seward Highway, she passed the State of Alaska's commercial vehicle weigh station near the intersection with Potter Valley Road. A Department of Transportation officer who was working at the weigh station saw Phillips's vehicle driving slowly south on the highway — but in the northbound lane.
As the officer watched, Phillips drove into the parking lot of the weigh station, and then she drove into an adjacent ditch (from which she successfully backed out). Having extricated her vehicle from the ditch, Phillips drove out of the weigh station parking lot and back onto the Seward Highway, but this time headed north, toward Anchorage again. The weigh station officer immediately called police dispatch, because he concluded that he had just witnessed "an impaired driver ... that needed to be stopped."
A few moments later, a man who was headed south on the Seward Highway saw Phillips's vehicle driving north — but in his southbound lane, "heading straight at [him]." At first, the man thought that Phillips was just engaged in a reckless passing maneuver; but as the two vehicles got closer, Phillips remained in the wrong lane, forcing the man off the road. A second later, the man heard a crash from behind him. Phillips had collided head-on with a sedan — killing the driver immediately, and severely injuring the passenger.
(At the time of Phillips's trial, one year later, the passenger had gone through a dozen surgeries, and she still could not walk unassisted.)
The force of the collision knocked the sedan 50 feet backwards. An accident reconstruction expert testified that, according to the on-board computer in Phillips's vehicle, she was traveling at 55.2 miles per hour at the moment of impact. There was no physical evidence that Phillips applied her brakes before the collision, and this was confirmed by the computer system log in Phillips's car.
The police arrived a few minutes later and made contact with Phillips, who was still sitting in the driver's seat of her vehicle. According to the officer who first contacted her, Phillips was "pretty disoriented and lethargic", and she thought she was in her home.
Phillips was taken to a hospital for treatment, and a sample of her blood was drawn. When this sample was tested, it showed that Phillips's blood alcohol level was .328 percent — over four times the legal limit of .08 percent. According to the laboratory analyst who tested Phillips's blood, a blood alcohol level of .328 percent "is a level that most people probably wouldn't even be able to function at. You're approaching toxicity for a lot of people. Most people are probably going to be passed out at this level."
In addition to the foregoing evidence, the State presented the testimony of a representative from the Anchorage Alcohol Safety Action Program (AASAP). Phillips was referred to this program for evaluation and education after she was convicted of driving under the influence in 2006. According to the AASAP representative, Phillips completed a 12-hour program on alcoholism, including instruction on what happens when a person becomes inebriated, and the dangers of driving while intoxicated. In addition, Phillips attended a two-hour "victim impact panel", where she listened to presentations by people whose lives had been affected by drunk driving.
Phillips's argument on appeal
Phillips challenges the trial judge's decision to allow the State to introduce the following evidence: (1) that Phillips's driver's license was revoked at the time of this incident; (2) that she was previously convicted of driving under the influence; (3) that, as a consequence of this conviction, she completed the AASAP education program on the dangers and consequences of drunk driving; and (4) that, at the time of this incident, she was on bail release from an unspecified criminal charge, and that her conditions of release prohibited her from drinking alcoholic beverages and from driving.
As we have already noted, one of the charges against Phillips was driving while her license was revoked. Thus, the jury was inevitably going to hear the State's evidence on that point. This leaves the evidence described in points (2), (3), and (4).
One of the major issues litigated at Phillips's trial was the degree of her recklessness: whether Phillips acted with a typical degree of recklessness that would support a conviction for manslaughter, or whether Phillips could be convicted of second-degree murder because she acted with the heightened degree of recklessness that our law describes as "manifest indifference to human life".
(This distinction is explained and analyzed in Neitzel v. State, 655 P.2d 325, 331-38 (Alaska App. 1982), and Jeffries v. State, 169 P.3d 913, 916-924 (Alaska 2007).)
In Jeffries, our supreme court held that a defendant's prior convictions for driving under the influence — and, perhaps more importantly, the resulting revocation of the defendant's driver's license, and the defendant's court-directed participation in alcohol education and treatment programs — were relevant factors for a jury to consider when assessing the defendant's level of awareness of the danger created by the act of drunk driving. 169 P.3d at 922-23.
The supreme court reached a similar conclusion with regard to the fact that the defendant's conditions of probation prohibited him from drinking: "The jury could infer that this probation condition reinforced [the defendant's] awareness that his drinking and driving was a serious matter that posed such a great risk to the community that it was deemed necessary to prohibit him from drinking altogether." 169 P.3d at 924.
Thus, the supreme court's decision in Jeffries provides significant support for the superior court's decision to let the State introduce the challenged evidence in Phillips's case.
In her brief to this Court, Phillips argues that the prosecutor presented this evidence, not for the probative aspects described in Jeffries, but rather "as character evidence". The record of Phillips's trial simply does not support Phillips's assertion. In the prosecutor's summation to the jury, he relied on the challenged evidence expressly for the purpose of showing Phillips's level of awareness of the danger created by her conduct.
Phillips also argues even if the evidence was relevant for proper purposes, the superior court nevertheless should have excluded the evidence under Evidence Rule 403 — because, according to Phillips, once the jury heard evidence that Phillips had previously been convicted of driving under the influence, the jurors would "look at the evidence of her escalating behavior" and inevitably convict her.
Obviously, evidence of Phillips's prior conviction carried the potential for unfair prejudice. Acknowledgement of this potential for unfair prejudice was the starting point for the supreme court's analysis in Jeffries: the court had to formulate a test for assessing when this evidence is sufficiently probative that it should be admitted, despite the potential for unfair prejudice, in prosecutions for vehicular second-degree murder.
Here, Phillips's prior conviction for driving under the influence was only one small aspect of the State's case, and this evidence was offered to explain why Phillips's license was revoked, and why she had been directed to complete the AASAP program — things that showed her awareness of the danger created by her behavior. The superior court could reasonably view these factors as minimizing the chance that the jurors would be improperly swayed by the evidence.
Phillips's strongest argument is her claim that the facts of her case are analogous to the facts of Prince v. State, 2011 WL 6934045 (Alaska App. 2011), an unpublished decision where this Court suggested that Jeffries should be read narrowly — because our supreme court "did not intend to allow [routine] admission of ... evidence of the defendant's prior convictions for driving under the influence". Id. at *5.
In Prince, we reversed the defendant's conviction for second-degree murder because we concluded that Prince's prior criminal history — a single conviction for driving under the influence, and participation in a single education program on the dangers of drinking and driving — was "nowhere near as egregious as the defendant's record in Jeffries", and thus it had little probative value on the question of whether Prince acted with the heightened degree of recklessness required for second-degree murder. Id. at *5, 9.
But the core of our decision in Prince was our conclusion that the introduction of this evidence prejudiced the fairness of Prince's trial because, apart from this evidence, the State's proof of Prince's "manifest indifference to the value of human life" was so thin. Id. at *7-8. We emphasized that the Jeffries majority agreed that convictions for "manifest indifference" murder should be reserved for cases "in which the objective risk of death or serious physical injury posed by the defendant's actions is very high." Prince, 2011 WL 6934045 at *5, quoting Jeffries, 169 P.3d at 917.
But even though Phillips's criminal history is closer to the facts of Prince than it is to the facts of Jeffries, the egregiousness of Phillips's driving behavior sets her apart from the defendant in Prince.
The defendant in Prince was prosecuted for second-degree murder based primarily on evidence that he "[drove] while intoxicated and at a high rate of speed," and that he "crashed his SUV into the rear of [another vehicle]." Id. at *1.
Phillips, on the other hand, insisted on driving after being repeatedly warned that she should not drive. She then drove down the wrong side of the Seward Highway and crashed headlong into an oncoming vehicle after forcing at least one other vehicle off the road.
We note that even the dissenting opinion in Jeffries declared that a driver might properly be convicted of "manifest indifference" murder if "the driver ... engaged in egregiously unsafe maneuvers such as extreme speeding, wrong-way driving, or running stop lights", as opposed to "[m]erely being drunk and attempting without success to drive normally". Jeffries, 169 P.3d at 925-26 (Justice Matthews, dissenting).
Thus, Phillips's case is not a situation where there is a substantial risk that the jury might have found "manifest indifference to the value of human life" based purely or primarily on Phillips's prior conviction for driving under the influence. Viewed objectively, Phillips's driving was "egregiously unsafe" (to quote Justice Matthews's dissent in Jeffries). Thus, Phillips's jury could reasonably be expected to use the evidence of her criminal history for the limited (and proper) purpose of assessing her awareness of the risk.
For these reasons, we uphold the superior court's decision to allow the State to introduce this evidence.
Phillips's sentence appeal
As we noted toward the beginning of this opinion, the superior court sentenced Phillips to a composite term of 22 years with 2 years suspended — 20 years to serve — for the five offenses of second-degree murder, first-degree assault, driving under the influence, driving with a revoked license, and reckless driving.
(Phillips has not challenged the fact that she received a separate conviction for reckless driving, and we express no opinion as to whether this was proper.)
As we also explained at the beginning of this opinion, at the time Phillips committed these offenses, she was (1) on probation from a 2006 municipal conviction for driving under the influence, and (2) on bail release from a March 2009 municipal charge of driving under the influence. In response to her newest crimes, the Municipality of Anchorage petitioned the district court to revoke her probation from the 2006 conviction, and the Municipality also charged Phillips with a new offense: violating the terms of her release (because she drank alcoholic beverages, because she drove a motor vehicle, and because she committed new crimes).
After the superior court jury found Phillips guilty of the five November 2009 offenses, but before the superior court sentenced her for those crimes, Phillips pleaded no contest to the charges in her two pending Municipal cases (the March 2009 DUI, and the violation of her bail conditions). Phillips also admitted violating her probation from the 2006 DUI conviction. The district court sentenced Phillips to a composite term of 1098 days' imprisonment with 400 days suspended — 698 days to serve (i.e., slightly less than 2 years).
Thus, between her superior court sentences and her district court sentences, Phillips received a composite term of slightly less than 22 years to serve.
(Phillips filed separate appeals in her municipal cases; see Phillips v. Anchorage, Court of Appeals File Nos. A-11163, A-11263, & A-11264. In those appeals, she challenged the severity of the composite sentence she received for her municipal offenses. But the issue is whether Phillips's combined sentence in the State case and the municipal cases is clearly mistaken, given the whole of her conduct and history. We are therefore including the 698 days that Phillips received in the municipal cases when we assess the propriety of the 20-year sentence she received in this case.)
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
When a defendant challenges their composite sentence as excessive, the question is whether the defendant's combined sentence is justified in light of the entirety of the defendant's conduct and history. Alaska law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation. Thus, the question in Phillips's case is whether, given the totality of her conduct and her background, a sentence of almost 22 years to serve is reasonable.
Cleveland v. State, 258 P.3d 878, 887 (Alaska App. 2011); Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
--------
Technically, an Alaska appellate court reviews a trial court's sentencing decision to see if it is "clearly mistaken". McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). But in State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000), our supreme court explained that the "clearly mistaken" test "implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify." Hodari further explained that the "clearly mistaken" test gives "considerable leeway" to individual sentencing judges:
The "clearly mistaken" test is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences."Hodari, 996 P.2d at 1232, quoting this Court's decision in Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
In Pusich v. State, 907 P.2d 29 (Alaska App. 1995), this Court identified the primary factors that a judge should consider when sentencing the defendant in a drunk-driving homicide case: the degree of the defendant's recklessness; the magnitude of the consequences of the defendant's conduct; the age of the defendant; the defendant's record of past offenses; and the defendant's record of alcohol abuse. Id. at 38.
The sentencing judge concluded that Phillips's potential for rehabilitation was poor. The judge reached this conclusion because of Phillips's "lifelong, ... extremely serious, and ... [as] yet untreated and [unacknowledged] addiction to alcohol." The judge noted in particular that he had "not heard [Phillips acknowledge] the extremely high alcohol levels that [she had] in this incident, that can only be explained by a chronic, decades-long addiction to alcohol."
(The judge was apparently adverting to the testimony of the laboratory analyst, who stated that Phillips's blood alcohol level of .328 percent was a level that "approach[ed] toxicity for a lot of people" — "a level that most people probably wouldn't even be able to function at.")
The judge noted that Phillips was an older offender, and that (for this reason) it would be hard for her to change her behavior. He concluded that no sentence would deter Phillips from drinking and driving again — and that the only way to guarantee Phillips's abstinence from drinking was to incarcerate her.
From the judge's sentencing remarks, it is clear that he had carefully reviewed a number of the drunk-driving homicide sentencing decisions issued by this Court and by the Alaska Supreme Court. At the end of his discussion of these cases, the judge returned to the factors enumerated in Pusich.
With regard to Phillips's degree of recklessness, the judge declared that he "[could] not envision a situation any more reckless."
The Court: This was not simply running a red light. This was not simply going down a street the wrong way at 3:00 o'clock in the morning. This was traveling the wrong way on the Seward Highway at 5:30 in the evening, when traffic was crowded both ways. It is literally true, as [the prosecutor] said, that Ms. Phillips's driving — [her] swerving two lanes over in the dark, running at oncoming cars — placed hundreds of drivers at risk.
And not only was she drunk; she was as drunk as you can get without being dead. The forensic testimony about [Ms. Phillips's] alcohol [level] ... was ... a higher level than I have seen in any other case, and a higher level than I have heard in any other case when someone was still ... physically capable of getting in a car and getting behind the wheel. It was determined that Ms. Phillips's blood alcohol was four times the legal limit, .32 [percent], three hours after the accident. And [it was] estimated that, at the time she arrived at the beauty salon, the last time it was known she possibly could have had a drink, that she had 18 drinks, at a minimum, in her system. And that was ... 2:30 in the afternoon. Which means [that] if she got up at 8:00 o'clock in the morning, she had three drinks an hour, every hour that day, and ... got in the car and drove and went down to the beauty salon. And then, later still, ... [she] got in the car after somebody tried to pull her out of the car, ... [and] drove on the Seward Highway in the wrong direction.
Reckless. Indifferent. Yes. [A] very high degree of recklessness.
With regard to the magnitude of the consequences of Phillips's conduct, the judge noted that Phillips had caused the death of one person and "lifelong injury to another person." The judge then explained how the collision had endangered other motorists as well:
The Court: Anyone who was here at trial and [heard] the physical description of the accident ... can understand the magnitude of the crash here. [There] was no evidence, absolutely none, that Ms. Phillips braked. The drive train in the [other] vehicle was driven three feet backward into that car. It was a violent collision of extreme nature. It could have had far worse consequences to other drivers. Thankfully, no one else was injured.
With regard to Phillips's record of past offenses, the judge found that Phillips's record "[set her] apart for two reasons":
The Court: One, because ... she has a drinking and driving history. She was stopped two or three times before, as I recall. I think this was the third time — in the same general area, the Potter Marsh area — for drinking and driving, and [she was] either charged with drunk driving or charged with other offenses, but under suspicion of drunk driving. Some of that evidence did not come out at trial, but [it] was presented to me. She had an earlier offense — I think it was not in Anchorage, [but] in another locality — for drunk driving, that was later [reduced] to a different offense. She has a driving offense out of state that appeared to be drunk driving related[.] ... [S]he has a long history of that.
But more important, for the purposes of [this factor], ... is that when this offense happened, there was a court order [in place]. A court order ... [telling her] not [to] drink, and ... not [to] drive. And she disobeyed that court order, and chose to drink and ... chose to drive, [even] when courts had previously ordered her license revoked.
So her record of past offenses [shows a] disregard [of] prior court orders, and that is a distinctly different pattern of conduct than many of the cases reported to me.
With regard to Phillips's record of alcohol abuse, the judge reiterated his conclusion that "Ms. Phillips has ... a significant, lifelong problem with alcohol consumption". The judge noted that, according to the trial testimony,
The Court: ... [Ms. Phillips could] function — I mean, walk around, get her hair cut, get in a car, talk to people, appear to be functional — when ... her body is at an alcohol level of four times the legal limit or higher, a level where ... most of us ... literally could not function.
And you just think of it: Could you have 18 shots of whiskey between 8:00 o'clock in the morning and 2:00 o'clock in the afternoon and do that on a sufficiently regular basis that you're functional day in and day out? Well, that was apparently [the] level of [her alcohol] problem, and it's remained untreated.
. . .
I'm hearing now that she's getting the treatment for her [addiction]; I hope so. ... But her record of alcohol abuse prior to this incident was significant. Not only significant — it was unique in my mind. I've never seen a case with this high level of alcohol consumption while driving. I've never seen a case reported for sentencing of a vehicular homicide with this high level of alcohol consumption. And it is something that sets her apart.
Having addressed the four Pusich factors, the judge summed up his analysis by declaring that, even though Phillips had not caused multiple deaths, "[the] circumstances of this vehicular homicide ... are among the most egregious, ... and [Phillips's] offense is among the most serious ... drunk-driving homicides."
Our review of the sentencing record shows that the superior court paid careful attention to the facts of Phillips's case, and that the court carefully analyzed those facts under the sentencing case law relating to drunk-driving homicides and the sentencing goals codified in AS 12.55.005. Having independently evaluated Phillips's composite sentence in light of the totality of her conduct and her background, we conclude that this composite sentence (almost 22 years to serve) is not "clearly mistaken" — i.e., it is within the range of reasonable sentences that might be imposed under these facts.
We therefore uphold the superior court's sentencing decision.
Conclusion
The judgement of the superior court is AFFIRMED.