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Vent v. State (11/16/2012) ap-2381

Vent v. State (11/16/2012) ap-2381

                                                 NOTICE 

         The text of this opinion can be corrected before the opinion is published in thePacific 

        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
 

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                          E-mail:   corrections @ appellate.courts.state.ak.us
 



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



EUGENE VENT,                                      ) 

                                                  )          Court of Appeals No. A-10584 

                             Appellant,           )         Trial Court No. 4FA-03-976 CR 

                                                  ) 

              v.                                  ) 

                                                  )                 O   P   I  N  I  O  N 

STATE OF ALASKA,                                  ) 

                                                  ) 

                             Appellee.            ) 

                                                  )          No. 2381 - November 16, 2012 



                 Appeal     from    the  Superior    Court,   Fourth    Judicial   District, 

                 Fairbanks, Ben Esch, Judge. 



                 Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, for 

                 the Appellant. W.H. Hawley, Assistant Attorney General, Office 

                 of Special Prosecutions and Appeals, Anchorage, and John J. 

                 Burns, Attorney General, Juneau, for the Appellee. 



                 Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges. 



                 BOLGER, Judge. 



                 The   question   presented   in   this   appeal   is   whether   we   should   vacate   the 



superior court's decision denying an application for post-conviction relief because the 



judge conducted independent research into the facts and then relied on those facts to reject 



the claims of ineffective assistance of counsel. We hold that the trial judge's conduct 


----------------------- Page 2-----------------------

created an appearance of partiality that warrants his disqualification from this case, and 



that requires a new post-conviction relief hearing before a different judge. 



        Background 



                                                                                     1 

                 A jury convicted Eugene Vent of second-degree murder,  first-degree sexual 



         2                              3                                                 4 

assault,  second-degree assault,  and two counts of first-degree robbery  for the assault 



and robbery of Franklin Dayton and the robbery, sexual assault, and murder of J.H., a 



                          5 

fifteen-year-old boy.  The facts of these crimes are recounted in our decision resolving 

Vent's direct appeal.6 There was no physical evidence connecting Vent to these crimes, 



so the State's case relied heavily on Vent's inculpatory statements to the investigating 

detective and two fellow inmates.7 



                 At trial, Vent argued that the jailhouse informants who testified against him 



were not credible, and that the police detective who questioned him improperly pressured 

him to falsely confess.8  To support his claim that he falsely confessed, Vent offered the 



testimony of Dr. Richard Leo, an expert   on coercive police interrogations and false 



        1    AS 11.41.110(a)(3). 



        2    AS 11.41.410(a). 



        3    AS 11.41.210(a). 



        4    AS 11.41.500(a). 



        5    Vent v. State, 67 P.3d 661, 662 (Alaska App. 2003). 



        6    Id. at 663-64. 



        7    Id. at 664. 



        8    Id. 



                                                   - 2 -                                               2381
 


----------------------- Page 3-----------------------

confessions.9      After   a   lengthy   voir   dire   of   Dr.   Leo,   Superior   Court   Judge   Ben   Esch 



excluded   his   testimony,   concluding   that   it   would   not   appreciably   assist   the   jury   in 

determining whether Vent's confession was false.10 We upheld that decision in Vent's 



direct appeal.11 



                 Vent then filed this application for post-conviction relief, arguing that he 



received ineffective assistance of counsel. Vent argued that his trial attorney's efforts to 



introduce Dr. Leo's testimony were incompetent. In particular, he faulted his attorney for 



waiting until the middle of trial to offer Dr. Leo's testimony, instead of  filing a pretrial 



memorandum and requesting a hearing on this issue. 



                 Judge Esch (who also presided over the post-conviction case) granted an 



evidentiary hearing on Vent's claims. Vent presented several witnesses at that hearing, 



including Dr. Leo and attorney Cynthia Strout, an expert on criminal defense. Strout 



testified that, at the time of Vent's trial, Alaska courts had not yet decided whether expert 



testimony on false confessions was admissible. She testified that, given this circumstance, 



any competent attorney would have filed a pretrial memorandum discussing the legal 



authority that supported admission of this testimony. 



                 Strout observed that Dr. Leo had provided Vent's attorney with copies of 



legal memoranda that had been filed in other jurisdictions, and that Vent's attorney could 



have easily adapted those memoranda to Vent's case. Strout also testified that Vent's 



attorney   was   ineffective   in   the   manner   in   which   he   sought   admission   of   Dr.   Leo's 



testimony during trial. She also faulted the attorney for not making use   of voir dire 



        9   Id. at 667-70. 



        10  Id. at 669. 



        11  Id. at 664. 



                                                   - 3 -                                                2381 


----------------------- Page 4-----------------------

questions Dr. Leo had provided to him, which had been used in other cases in which Dr. 



Leo had been offered as an expert witness. 



                As already noted, the judge ultimately found Vent's claims of ineffective 



assistance of counsel unpersuasive. But as the judge acknowledged in his decision, before 



ruling   on   these   claims   he   "independently   researched   and   reviewed"   how   Dr.   Leo's 



testimony had actually fared in other jurisdictions where the defense attorneys had adopted 



the strategies that Strout testified were essential to effective representation. Based on that 



research, the judge concluded that Vent would have been no better off if his attorney had 



adopted those strategies. 



                The starting point for the judge's research was the material Dr. Leo gave 



Vent's attorney to help him prepare for the expert testimony. The judge noted that Dr. 



Leo had provided Vent's attorney with an affidavit that had been filed in a case from 



California,     and   with   memoranda      that  had   been    filed  in  cases  from    Missouri    and 



Connecticut. After researching online records of the proceedings in those cases, as well 



as some court records, the judge concluded that Dr. Leo's testimony   had only been 



admitted in the Connecticut case. The judge concluded that Vent's attorney was not 



ineffective when he failed to use these materials, because they would not have ensured 



the admission of Dr. Leo's testimony. 



                The judge then turned to Vent's claim that his attorney was ineffective when 



he failed to request a pretrial hearing on the admissibility of Dr. Leo's testimony. Working 



off the cases listed in Dr. Leo's curriculum vitae, the judge researched court records and 



online docket systems and found that Dr. Leo's testimony had been excluded "in every 



forum where a pretrial admissibility hearing was held." The judge concluded from this 



research that Vent's attorney may have made a wise tactical decision to forego a pretrial 



hearing   and   to   seek   admission   of   Dr.   Leo's   testimony   during   trial.   The   judge   also 



concluded that Vent's attorney was not ineffective in failing to use the sample voir dire 



                                                  - 4 -                                            2381
 


----------------------- Page 5-----------------------

questions Dr. Leo had given him, because those questions had not led to the admission 



of Dr. Leo's testimony in cases in which they were used. 



              The judge concluded from his research that Dr. Leo had been "less than 



candid" during his voir dire at Vent's criminal trial, and in his testimony at the post- 



conviction relief proceeding, when he said he only recalled one case in which his expert 



testimony had been excluded based on the subject matter of the testimony. 



              The trial judge did not rely solely on this independent research to deny 



Vent's claims of ineffective assistance of counsel; he also thoroughly summarized and 



analyzed the record of the post-conviction relief proceedings. But the judge's reliance 



on his outside investigation was not insignificant; the judge devoted approximately six 



pages of his forty-eight page order to discussing his independent research and his findings 



from that research. 



       Discussion 



               The judge's independent research violated Judicial Canon 3B(12). 



              Vent argues that the judge violated his right to due process by relying on 



evidence that was not part of the record when he denied the application for post-conviction 



relief. He argues that the judge "abandoned his role as a neutral and impartial fact finder, 



and   instead  went   fishing  for  impeachment    evidence   of  Dr.  Leo,  thus  adopting  a 



prosecutorial role in this case." He argues that the appearance of partiality created by this 



conduct entitles him to a new hearing before a different judge. 



              The State responds that Vent waived this claim because he raised it for the 



first time on appeal. But we note that Vent had no notice that the superior court relied on 



materials outside the record until the court issued its written decision. Vent therefore had 



no opportunity to object until after the court had denied all of his claims. 



                                            -  5 -                                      2381
 


----------------------- Page 6-----------------------

                 Alaska Civil Rule 46(f) provides that "if a party has no opportunity to object 



to a ruling or order at the time it is made, the absence of an objection does not thereafter 

prejudice the party." 12 The federal courts have concluded that the similar language in 



Federal   Civil   Rule   46   and   Federal   Criminal   Rule   51(b)   creates   an   exception   to   the 

requirement that a party must object to an error at trial to preserve the issue for review.13 



In other words, an objection is not required to preserve an issue for appeal if the appealing 



party had no opportunity to make an objection. 



                 At oral argument, the State asserted that Vent was required to file a motion 



for reconsideration or a motion for new trial in the superior court to preserve this issue 



for review. But it is implicit in Rule 46(f) that a motion for new   trial or motion for 



reconsideration is not required to preserve such a claim. As the Eighth Circuit explained, 



"[t]he 'opportunity to object' language would be meaningless if the mere ability to file 



a   motion    for  reconsideration      qualified    as  an  opportunity     to  object,   since   a  party 



theoretically could file a later motion for reconsideration of virtually any [trial] court 

ruling." 14 Since Vent had no opportunity to make a contemporaneous objection to the 



outside research that the judge included in his final decision, Vent's challenge to this 



research is preserved for consideration on appeal. 



        12  Emphasis added. 



        13  Marlin v. Moody Nat. Bank, N.A. , 533 F.3d 374, 379-80 (5th Cir. 2008) (citing 



Fed. R. Civ. P. 46) ("Failing to object does not prejudice a party who had no opportunity to 

do so when the ruling or order was made."); United States v. Burrell, 622 F.3d 961, 965-66 

(8th Cir. 2010) (citing Fed. R. Crim. P. 51(b)) ("If a party does not have an opportunity to 

object to a ruling or order, the absence of an objection does not later prejudice that party."); 

see also United States v. Mathis , 535 F.2d 1303, 1306-07 (D.C. Cir. 1976) (citing an earlier 

version of Fed. R. Crim. P. 51(b)). 



        14  Burrell , 622 F.3d at 966. 



                                                   -  6 -                                            2381
 


----------------------- Page 7-----------------------

                 Moving to the merits of Vent's claim, we note that Canon 3B(12) of the 



Alaska Code of Judicial Conduct provides that, unless a judge gives "prior notice to the 



parties and an opportunity to respond, a judge shall not engage in independent ex parte 



investigation of the facts of a case." The State concedes that the judge may have violated 



this   canon   in   Vent's   case    because   he   did   not   give   the   parties   prior   notice   of   his 



independent research. But the State argues that, apart from this defect in notice, the judge 



was justified in taking judicial notice of the records he relied on. The State observes that 



the commentary to Canon 3B(12) expressly provides that a judge does not violate this 



rule by taking judicial notice of facts as permitted by Evidence Rule 201. 



                 Evidence Rule 201(b) allows a court to take judicial notice of a fact that is 



"not subject to reasonable dispute in that it is either (1) generally known within this state 



or (2) capable of accurate and ready determination by resort to sources whose accuracy 



cannot reasonably be questioned." Our supreme court has observed that courts "freely 

take notice of court records, especially their own."15 But it has also emphasized that courts 



typically take judicial notice of facts such as whether a "prior suit was filed, who the 

parties were, and so forth. These are indeed facts not subject to reasonable dispute." 16 



                 But the superior court's findings in Vent's case do not involve facts of this 



sort. The judge concluded from his investigation that Dr. Leo's testimony had been 



excluded in several out-of-state cases "for reasons going to the nature of his proposed 



testimony." Rational minds could differ as to what it means, in a particular context, for 

testimony to be excluded on this basis.17 Moreover, the judge went beyond the face of 



these out-of-state court records to draw other conclusions that were not subject to judicial 



         15  F.T. v. State , 862 P.2d 857, 864 (Alaska 1993). 



         16 Id. 



         17  See id. at 863-64 (citing Alaska R. Evid. 201(a), cmt.). 



                                                   - 7 -                                                 2381 


----------------------- Page 8-----------------------

notice. For instance, the judge declared (based on his research) that Dr. Leo was "less than 



candid" in his testimony at trial and at the post-conviction relief proceeding. Vent had 



no notice of the judge's research or of his findings from that research. He therefore had 



no opportunity to argue that the judge's findings were mistaken or that they were based 

on inadequate information.18 We therefore conclude that, by conducting and relying on 



this research, the judge violated Canon 3B(12). 



                 A reasonable person would conclude that the judge's violation 

                 of Canon 3B(12) created an appearance of partiality. 



                 Vent   argues   that   a   reasonable   person   would   conclude   that   the   judge's 



violation of Canon 3B(12) created the appearance that the judge was biased in favor of 



the State and that the judge should therefore be disqualified from this case. Both 



AS 22.20.020(a)(9) and the Code of Judicial Conduct have been interpreted to require 



a   judge   to   be   disqualified   from   a   proceeding   when   the   judge's   conduct   creates   an 

appearance   of   partiality.19     To   decide   this   issue,   we   ask   whether   the   totality   of   the 



circumstances       "would create in reasonable minds a perception that the judge's ability 



to   carry   out   judicial   responsibilities   with   integrity,   impartiality,   and   competence   is 

impaired."20 We review this issue de novo.21 



                 As just described, the judge extensively researched out-of-state records 



without prior notice to the parties. He relied on his findings from that research to impeach 



evidentiary material Vent had offered at the post-conviction relief hearing, and to question 



         18  Cf. Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493, 495 (Alaska 1980).
 



         19  State v. Dussault, 245 P.3d 436, 439, 442 (Alaska App. 2011).
 



        20  Id. at 442 (quoting Alaska Code Jud. Conduct Canon 2A, cmt.).
 



        21   Phillips v. State , 271 P.3d 457, 468 (Alaska App. 2012).
 



                                                   -  8 -                                              2381
 


----------------------- Page 9-----------------------

the credibility of one of Vent's main witnesses. The judge then explicitly relied on these 



findings when he rejected several of Vent's claims for post-conviction relief. We conclude 



that a reasonable person would question whether the judge made an impartial decision 



on Vent's claims, and we therefore conclude that another judge should be appointed to 



conduct all further proceedings in this matter. 



                 This violation also requires us to vacate the judgment. 



                 Vent also argues that he is entitled to relief from the judgment because the 

judge's conduct deprived him of his due process right to an impartial decision maker. 22 



                 Several courts have held that automatic reversal of a judgment is required 



when a judge independently investigates the facts of a case in a manner that creates the 

appearance that the judge is biased.23 But other courts have acknowledged the possibility 



that this type of error may be harmless. In the main, these courts have applied the test 



articulated by the United States Supreme Court in Liljeberg v. Health Services Acquisition 

Corporation24 to assess whether an appearance of partiality requires a judgment to be 



overturned.25 



         22  See   generally   Caperton   v.   A.T.   Massey   Coal   Co.,   Inc .,   556   U.S.   868,   876-81 



(2009). 



         23  See, e.g., Smith v. State, 498 A.2d 284, 288-89 (Md. Spec. App. 1985); State v. 



Dorsey , 701 N.W.2d 238, 250-52 (Minn. 2005); State v. McCrary, 676 N.W.2d 116, 125 

(S.D. 2004); State v. Gokey, 14 A.3d 243, 250-51 (Vt. 2010). 



         24  486 U.S. 847, 862 (1988) ("As in other areas of law, there is surely room for 



harmless     error  committed      by  busy   judges   who    inadvertently    overlook    a  disqualifying 

circumstance."). 



         25  See, e.g., In re M.C., 8 A.3d 1215, 1225-28 (D.C. App. 2010); United States v. 



Robinson , 439 F.3d 777, 779 (8th Cir. 2006); Faulkner v. Nat'l Geographic Enters., Inc. , 409 

F.3d 26, 42 n.10 (2d Cir. 2005); In re Bellsouth Corp. , 334 F.3d 941, 950 n.4 (11th Cir. 

2003); Higganbotham v. Oklahoma ex rel. Oklahoma Transp. Comm'n , 328 F.3d 638, 645- 



                                                   -  9 -                                               2381 


----------------------- Page 10-----------------------

                The question in Liljeberg was whether the judgment should be vacated under 



Civil Rule 60(b)(6) because the judge who issued it had plainly violated the federal statute 



requiring a judge to recuse himself in "any proceeding in which his impartiality might 

reasonably be questioned."26 The Liljeberg Court outlined three factors relevant to this 



inquiry: (1) the risk of injustice to the parties in the particular case; (2) the risk that the 



denial of relief will produce injustice in other cases; and (3) the risk of undermining the 

public's confidence in the judicial process.27 



                We need not decide whether to require automatic reversal or to adopt the 



Liljeberg test as a matter of Alaska law. Even if we apply the Liljeberg test, we conclude 



that the superior court's conduct in this case was not harmless error. 



                In this context, we follow the reasoning of a decision by the District of 



Columbia Court of Appeals.  In re M.C. involved a juvenile who was charged with various 

offenses for firing a gun at a group of people.28 During M.C.'s trial, a government witness 



recanted his earlier identification of M.C. as the shooter.29 After this witness testified, the 



judge disclosed that she had inadvertently received information via an email from another 

judge concerning the circumstances of the witness's recantation. 30 M.C. filed a motion 



46 (10th Cir. 2003);  United States v. O'Keefe, 128 F.3d 885, 892 (5th Cir. 1997); Scott v. 

United States, 559 A.2d 745, 750-56 (D.C. App. 1989); Petzold v. Kessler Homes, Inc ., 303 

S.W.3d 467, 474 (Ky. 2010); Mosley v. State,  141   S.W.3d   816, 837   (Tex.   App.   2004); 

 Velardo v. Ovitt, 933 A.2d 227, 237-38 (Vt. 2007). Compare United States v. Arnpriester, 

37   F.3d   466,  468  (9th  Cir.  1994)   (holding   that  the  Liljeberg harmless   error  test  was 

inappropriate where the appearance of partiality permeated the proceedings). 



        26  Liljeberg , 486 U.S. at 849-50. 



        27  Id. at 862-64. 



        28  In re M.C. , 8 A.3d at 1217. 



        29  Id. at 1219. 



        30  Id. at 1220, 1227. 



                                               -  10 -                                            2381 


----------------------- Page 11-----------------------

for recusal, arguing that the judge's receipt of this information created the appearance 

that she was biased.31 The judge denied the motion for recusal, concluding that she could 



keep her outside knowledge separate from the evidence presented at trial.32 



                 On appeal, the D.C. court held that the trial judge erred in failing to recuse 

herself.33   The court then applied the Liljeberg  factors to determine whether the error 



required reversal of M.C.'s conviction. The court found that the first Liljeberg factor - 



the risk to M.C. - favored reversal because the judge, as the sole trier of fact, had 



acquired personal knowledge of a disputed evidentiary fact that had not been subjected 

to cross-examination or evaluation of its admissibility as hearsay.34 The court found that, 



under these circumstances, M.C. could reasonably question whether the judge's verdict 

had been influenced by the extrajudicial information.35 



                 Addressing the second Liljeberg factor, the court found that providing relief 



to M.C. would be beneficial in future cases in two respects: by encouraging judges to use 



caution in exchanging emails that might contain information about litigants or witnesses, 



and   by   emphasizing   that   a   judge's   confidence   in   her   ability   to   set   aside   a   disputed 



evidentiary fact is irrelevant to the objective analysis of whether that conduct created an 

appearance   of   bias.36     As   to   the   third   prong,   the   court   declared   that   it   was   "nearly 



        31   Id. at 1220. 



        32   Id. at 1220-21. 



        33   Id. at 1223, 1225-28. 



        34   Id. at 1232. 



        35   Id. 



        36   Id. at 1233. 



                                                    - 11 -                                                 2381 


----------------------- Page 12-----------------------

axiomatic"   that   the   violation   risked   eroding   the   public's   confidence   in   the   judicial 



           37                                                              38 

process.     The court consequently remanded for a new trial. 



                 We conclude that the Liljeberg factors also favor vacation of the judgment 



in Vent's case. In contrast to M.C ., the judge in this case did not inadvertently receive 



extrajudicial information, then disclose that circumstance to the parties and promise to 



set it aside. Rather, the judge investigated facts outside the record on his own initiative, 



and the parties had no opportunity to challenge the accuracy or relevance of the judge's 



findings based on that investigation. The judge then relied on his independent research 



when   he   rejected   several   of   Vent's   claims   of   ineffective   assistance   of   counsel.   We 



conclude that Vent's right to a fair judicial process was substantially prejudiced. 



                 We conclude that vacating the judgment in this case will promote justice 



in future cases: it will clarify the proper scope of judicial notice and encourage judges 



to avoid ex parte investigations that may create an appearance of partiality. We also 



conclude that, when a judge reaches outside the record to marshal evidence that benefits 



one party, the unfairness of the resulting decision is apparent. A failure to act in these 



circumstances could undermine public confidence in the judicial process. 



                 We thus conclude that we must vacate the superior court's decision and 



require this matter to be decided by another judge. In view of our disposition of this issue, 



we are not required to address the other claims Vent raises in this appeal. 



         Conclusion 



                 We VACATE the superior court's decision denying Vent's application for 



post-conviction relief and REMAND this case for further proceedings before a different 



judge. We do not retain jurisdiction. 



         37  Id. 



         38  Id. 



                                                   -  12 -                                               2381 

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