MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 1 ME 12 Docket: Pen

- 20

- 18 Argued : February	10,	2021 Decided: March	16,	2021
Panel: MEAD, GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

STATE	OF	MAINE

v.
PHILIP	L. CLARK

JABAR ,	J. [¶1] Philip	 L.	 Clark	 appeals	 from	 a	 judgment	 of	 conviction for intentional	 or	 knowing	 murder, 17

- A	 M.R.S.	 §	 201(1)(A) (2020), enter ed in
the Unified	 Criminal	 Docket (Penobscot	 County, Stokes,	 J .) following a	 jury
trial. He contends that	the c ourt	erred	in	refusing	to	instruct	the	jury	on the
affirmative	 defense	 of adequate	 provocation, as	 set	 forth	 in 17

- A M.R.S. § 201(3)	(2020)

. He also contends that	the	court	erred	in	denying	his	motion

to suppress multiple	 confessions and	 abused	 its	 discretion	 by	 denying	 his motion	to	recuse	the	presiding	Justice. 1 We	affirm	the	judgment	and	sentence.

1 He also	contends	the	court	abused	its	discretion	when	setting his final	sentence	and	violated the	constitution	by	not	setting	his	basic	sentence	at	or	near	the	mandatory	minimum	of	twenty

- five years.		We	do	not	find	these	arguments	persuasive	and	do	not	disc uss	them	further.2
I. BACKGROUND [¶ 2 ] Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the jury	 rationally	 could	 have	 found	 the	 following facts	 beyond	 a	 reasonable
doubt. See State	 v.	 Ouellette ,	 2019	 ME	 75,	 ¶	 11,	 208	 A.3d	 399

. On	 July	 11, 2018,	 Philip	 L.	 Clark	 fired	 several shots	 at	 his	 sister

- in

- law , Renee	 Clark, stopped	to	reload,	and	continued	to	 fire	his	gun	until	Renee	stopped	moving. Renee,	who	was forty

- nine years	old	at	the	time	of	her death ,	was	involved	in
a	contentious	divorce	with	her	husband and	Philip’s	brother , Frank	Clark. [¶ 3 ] The shooting took	 place	 in	 a	 former	 convenience	 store	 that	 had been	converted	into	adjoining	apartments	on	Kennebec	Road	in	Hampden.		On the	first	floor,	Renee	and	Frank	lived	in	one	apartment	and	Philip	lived	in	the other	apartment. [¶ 4 ] In	 April	 2018,	 as	 the	 marriage	 between	 Frank	 and	 Renee	 was coming	 to	 a	 contentious	 end,	 Renee	 moved	 out	 of	 the	 Kennebec	 Road apartment	 and	 into	 a	 home	 in	 Etna 2 with	 her	 friend,	 a	 priest.	 	 On	 June	 15, 2018,	 Renee obtained a	 temporary order	 for protection	 from	 abuse	 order against	Frank

. T he	order	required	Frank	 to	move	out	of	 the	Kennebec	Road

2 After	 moving	 into	 the	 home	 in	 Etna,	 Renee	 did	 not	 sleep	 at	 the	 Kennebec	 Road	 apartment again	 because	 “the	 fear	 she	 had	 of	 [Frank]	 and	 Phil	 was	 paralyzing,”	 although	 she	 went	 to	 the Kennebec	Road	apartment	frequently	to	retrieve	her	pr operty.3 apartment. Because the	 order	 did	 not	 apply	 to	 Philip,	 he	 was	 allowed to remain	in	 his	apartment.	 	On	 the	 same	 day	 the	 protection	 order	was issued , Renee	 and the	 priest went	 to	 the	 Kennebec	 Road	 property	 to	 retrieve	 what
Renee	 believed	 to	 be	 marital	 assets	 and	 found	 that various items ,	 including her	 computer, were	 missing. Philip	 later	 entered	 a	 storage	 area	 of	 the apartment	and	saw	that	his	work	tools	were	missing.		Philip	called	the	police to	report	his	tools	missing , and	when	the	police	arrived , Renee	informed	them that	Philip	was	trespassing

. T he	officer	charged	Philip with	criminal	trespass
and	t his	upset	Philip. [¶ 5 ] Renee	was	 fearful	of	Frank	and	Philip

. As	a	 result,	she pushed	a rack	in	front	of	a	door	that	led	from	Philip’s	apartment	to	hers and she	put	up

no - trespassing	 signs.		On	 the	day	 of	 the	murder , Frank	dropped	Philip	 off	at the	Kennebec	Road	property	while	Renee	and the priest were	in	their	cars	in the	driveway. Philip	and the	priest got	into	a	heated	argument , and a physical fight ensued over	Philip’s	missing	work	 tools	and	Renee’s	missing	computer. The	 police	 were	 called , with each	 party blaming	 the	 other	 for	 starting	 the fight.		Because	of	the	conflicting	st atements , neither	Philip	nor the	priest was charged. T he	priest inflicted	several	injuries on Philip , including	a	broken	rib, a	contusion	near	his	kidney,	and	a	cut	on	his	forehead.4 [¶ 6 ] Renee	 left	 the	 apartment	 after	 the	 fight	 but	 returned	 later that night	 to	 remove	 a	 license	 plate	 from	 a	 Jeep	 she	 owned	 with	 Frank.	 	 Renee began	 talking	 to	 her	 mother	 on	 the	 telephone in	 her	 apartment .	 	 Philip
claimed	that	because	of the thin	walls	in	the	apartment	building , he	could	hear Renee	laughing	about his fight	with the	priest during	her	phone	call	and	as	a result	he	became	enraged.		Philip	then	went	into	Renee’s	side	of	the	apartment building ,	carrying	a	gun, and	asked	Renee	if	she	thought	it	was	funny	that	he had	been	beaten	up ; she	replied	that	she	thou ght	it	was	hilarious.		Philip	then shot	Renee	multiple	times,	reloaded	his	gun,	and	continued	to	shoot	her until
she	was	dead

. 3 [¶ 7 ] The	day	after	her	death , Renee’s	mother	called	the	police	because she	 could	 not	 reach	 her	 daughter.	 	 An	 officer	 went	 to the	 Kennebec	 Road property	and	knocked	on	 the	doors	with	no	response.		The	police	attempted
for	 hours to	 contact	 anyone	 in	 the	 Kennebec	 Road	 property.	 	 From approximately	4:52 p
. m
. until	Philip	finally	came	out	at	12:45 a
. m
. ,	the	police,
with	the	assistan ce	of	the	Maine	State	Police	Major	Crimes	Unit,	attempt ed to contact	Renee	or	Philip	by	knock ing on	the	windows	and	doors.		In	the	early

3 Philip	 cleaned	 up	 the	 crime	 scene,	 wrapped	 her	 body	 and	 bloody	 bed	 sheets	 in	 plastic, collected	 the	shell	casings,	and	 then	went	 to	sleep.		The	 following	day,	 July	12,	2018,	Philip	drove Renee’s	car	to	the	Airport	Mall	in	Bangor,	left	it	in	th e	parking	lot,	threw	her	keys	into	the	river,	and took	a	bus	home.		As	he	was	walking	to	the	bus	station	he	thought	about	turning	himself	in	at	the jail , but he instead	went	home	to	sleep.5 morning	of	 July	13,	2018,	at	about	12:45 a
. m
. ,	Philip	answered	 the	door	and
told	the	local	officer	at	the	door , “ Y ou	know	I	killed	her	so	.	.	.	.”		A	State	Police detective	heard	him	 say	 that,	approached	him,	and	asked	him	 to	accompany him	to	the	Hampden	Police	Department	to	be	interviewed. [¶ 8 ] At	the	police	station,	Philip	confessed	to	killing	Renee.		He	said	tha t he	was	in	a	rage	and	that	she	pushed	all	his	buttons.		He	told	the	police	where Renee’s	body	was	and said that	he	had	put	the	gun	in	a	safe	after	the	shooting. Officers	 went	 inside	 Renee’s	 apartment	 and	 found	 her	 body	 exactly where Philip	had	described. Her	body	was	taken	to	the	Medical	Examiner’s	Office	for an	 autopsy,	 which	 determined	 that	 the	 cause	 of	 Renee’s	 death	 was	multiple gunshot	wounds.
II. PROCEDURAL	HISTORY [¶ 9 ] On	July	26,	2018,	Philip	was	charged	with	one	count	of	intentional
or	 knowin g	 murder,	 in	 violation	 of 17

- A	 M.R.S.	 §	 201(1)(A) .	 	 After	 being indicted	by	the	Penobscot	County Grand Jury , Philip	pleaded	not	guilty	to	the charge. [¶1 0 ] On	 February	 12,	 2019,	 Philip	 filed	 a	 motion	 to	 suppress	 his confession	 to	 law	 enforcement.	 	 Speci fically,	 Philip	 sought	 to	 suppress statements	 he	 made	 to	 the	 police	 at	 his	 residence	 in	 Hampden,	 during	 the6 early	 hours	 of	 July	 13,	 2018,	as	well	as	 his	 post

- Miranda statements	 that	 he made	at	the	station	later	that	day. A	t wo - day	testimonial	hearing was held	on
the	 motion. T he court (Penobscot	 County, Anderson,	 J. )	 denied	 the	 motion. The	 court	 found	 that	 Philip	 was	 not	 in	 custody	 at	 the	 time	 he	 made	 his statements	 to	 police	 upon	 exiting	 the	 home	in	 the	 early	morning	 of	 July	 13, 2018,	 and	 that	 the	 state ments	 were	 voluntary	 beyond	 a	 reasonable	 doubt. The	 court	 further	 found	 that	 Philip’s	 statements	 and	 confession	 to	 law enforcement	at	 the	police	station	on	 July	13,	2018,	were	voluntary	beyond	a
reasonable	 doubt	 and	 that	 the S tate	 proved	 by	 a	 preponderanc e	 of	 the evidence	that	Philip	knowingly	and	intelligently	waived	his Miranda rights. [¶1 1 ] Between	November	 12	 and	 14,	 2019, the	 court	 ( Stokes,	J. ) held jury	selection for	Philip’s	trial.		On	the	first	day	of	jury	selection , the	trial	judge
informed	 the parties	 that	he	knew	one	of	 the	witnesses, the	priest

. The	 trial judge stated	that	he	was	not	friends	with the	priest but	had	met him three	to four	years earlier when the	priest was	a	seminarian	at a n Augusta church for
the summer. The	trial	judge was	a	lector	in	that c hurch	at	the	time	and	stated
that they	had	conversations	three	times,	ranging	from a	discussion of the	trial judge’s work	as	mayor	of	Augusta	 to a discussion	of	growing	up	in	 the	same part	 of	Massachusetts.		Additionally, the	 trial	j udge disclosed that	during his7 prior	prosecutorial career with	 the	Attorney	General’s	office , he	had	worked with	 the	prosecutors	in	 the	case	and	 that	he	had hired	and	supervised	 them. Philip	asked the	trial	judge to	recuse	himself	because	of his prior	rel ationship with	 the	 prosecutors	 and his prior	 relationship	 with the	 priest ,	 who m the
defense	describe d as	 “central	 to	and,	simultaneously,	hostile	 to	 the	defense.” The	trial	judge denied	the	recusal	request. [¶1 2 ] At	 trial,	 Philip tried	 to	 establish	 the defense	 of	 adequate provocation to obtain	 a	 conviction	 for	 manslaughter	 rather	 than murder

. Philip called the	priest as	a	witness in	an	attempt to demonstrate that he had
been provoked by	a	pattern	of	conduct	that the	priest and	Renee	had	engaged
in	over	the	weeks preceding	the	killing

. Philip	also	called as	a	witness	a	doctor who	 opined that ,	 at	 the	 time	 of	 the	 shooting, Philip	 was	 in	 a	 state	 of hyperarousal	and	 had	a	 concussion	 from	 his	 fight	with the priest

. Based	 on
thi s	testimony	and	the	events	leading	up	to	the	murder,	including	the	beating
that Philip	 suffered	 from the priest , Philip requested	 a jury	 instruction on adequate	 provocation, 17

- A	 M.R.S.	 §	 201(3) , which	 the	 court	 denied.	 	 The
court	determined	that	the evidence	did	not	generate	the	affirmative	defense of adequate	provocation

. Following	a	seven

- day	jury	trial , the	jury	returned	its verdict	finding	Philip	guilty	of	murder.8 [¶1 3 ] On	January	7,	2020,	the court imposed	a forty

- three

- year	term	of imprisonm ent. [¶1 4 ] On	 January	 8,	 2020,	 Philip	 filed	 a	 notice	 of	 appeal from	 the
conviction pursuant	 to M.R.	App.	 P.	 2(b)(1) and 15	M.R.S.	 §	 2115	 (2020) ,	as well	 as	 a	 separate	 application	 to	 appeal	 his	 sentence	 pursuant	 to M.R. App. P. 20 and 15	 M.R.S.	 § 2151 (2 020).	 	 On	 March	 6,	 2020,	 the	 Sentence Review	Panel	issued	an	order	granting	the	application	for	leave	to	appeal	the

sentence. See State	v.	Clark , No. SRP	20

- 19 (Me.	Sent.	Rev.	Panel	Mar

. 6,	2020)

. I I I. DISCUSSION
A. Adequate	Provocation	Jury Instruction [¶1 5 ] Philip contends that	 the	 court	 erred	 in	 refusing	 to	 instruct	 the jury	on	the affirmative defense	of	adequate	provocation. 17

- A	M.R.S.	§	201(3)

. He	asserts	that	Renee’s	provocation	of	him	was	two

- fold:	her	mistreatment	of
him	and	her	la ughing on	the	phone just	prior	to	the	shooting. [¶1 6 ] “ We review	jury	instructions	as	a	whole	for	prejudicial	error,	and to	 ensure	 that	 they	 informed	 the	 jury	 correctly	 and	 fairly	 in	 all	 necessary respects	of	 the	governing	law. ” State	v.	Tucker ,	2015	ME	68,	¶	11 ,	117	A.3d
595 (quotation	marks	omitted)

. Because the	claimed	error here is	the denial of	 a	 particular	 instruction on adequate	 provocation, we will	 vacate	 the9 judgment	 only “ if	 the	 appellant	 demonstrates	 that	 the	 requested	instruction (1) stated	 the	law	 correctly;	 (2)	was	generated	 by	 the	evidence;	 (3)	w as	 not misleading	 or	 confusing;	 and	 (4)	 was	 not	 sufficiently	 covered	 in	 the instructions	 the	 court	 gave.	 	 In	 addition,	 the	 court’s	 refusal	 to	 give	 the requested	 instruction	 must	 have	 been	 prejudicial	 to	 the	 requesting	 party.”
State	v.	Hanaman ,	2012	ME	40, ¶ 16,	38	A.3d	1278	(citation	omitted). [¶1 7 ] Title 17

- A	M.R.S.	§	201 (2020) provides , in	relevant	part,
3. [ I ]t	 is	 an	 affirmative	 defense	 to	 a	 prosecution	 under subsection	 1,	 paragraph	 A	 [i.e.,	 intentional or knowing	 murder] that	 the person causes	 the	 death	 while	 under	 the	 influence	 of extreme	 anger	 or	 extreme	 fear	 brought	 about	 by	 adequate provocation.
4. [ F ]o r	 purposes	 of	 subsection	 3,	 provocation	is	 adequate if: A

. I t	is	not	induced	by	the person; and
B

. I t	is	reasonable	for	the person to	react	to	the	provocation with	 extreme	 anger	 or	 extreme	 fear,	 provided	 that	 evidence demonstrating	 only	 that	 the	 actor	 h as	 a	 tendency	 towards extreme	anger	or	extreme	fear is	not sufficient,	in	and	of	itself,	to establish	the	reasonableness	of the	person’s reaction. Because	it	is	an	affirmative	defense,	adequate provocation	“must	be	proved	by the	 defendant	 by	 a	 prepondera nce	 of	 the	 evidence.” 17

- A	 M.R.S	 § 101(2) (2020)

.10 [¶1 8 ] To	determine	if	the	affirmative	defense	of	adequate	provocation is	generated by	the	evidence , we	have said ,

“ [ I ]t	is	 the	 [trial]	court,	in	 the	 first	instance,	 that	must	determine whether	the evidence	is	legally	sufficient	to	generate	the	adequate provocatio n manslaughter	 defense. Viewing the evidence in a light most favorable to the defendant, the court must determine as a question of law whether there is any evidence from which the jury coul d find provocation and other elements that would reduce the offense to manslaughter. The test for measuring the sufficiency of the evidence is whether a jury could rationally have found that the defense was established by a preponderance of the evidence. ” A court makes that determination in light of [this Court’s] observation that “ [t]here are few instances when we have recognized conduct as being sufficient to engender extreme anger or fear and mitigate the conduct of a defendant. ” That	 is	 so,	 in part,	because	 the	 victim ’ s	provocation	must	be “ of	 such	a	nature that	 [the	 defendant ’ s]	 reaction	 to	 it	 with	 extreme	 anger	 or extreme	fear	was	objectively	reasonable. ”
State	v.	Kimball ,	2016	ME	75,	¶	10,	139	A. 3 d	914	( quoting Hanaman ,	2012	ME
40 , ¶¶	18,	20 ,	23, 38	A.3d	1278 ).		In	this	case, Philip states	that	the	moment	of provocation	 that we should focus	 on is	 “when	 Renee	 returned	 to	 her apartment	 and	 began	 loudly	 joking	 about	 a	 priest	 assaulting	 Philip.” Philip further	contends	that	if	there	“is	any	evidence	by	which	a	jury	could	conclude that	 Renee	 herself	 induced	 the	 confrontation,	 then	 the	 defense	 would be
allowed.” [¶1 9 ] Here, Philip was	 upset	 with	 Renee	 about	 missing	 tools,	 the removal	of	his	brother	from	the	property, the fight Philip had	with the	priest ,11 and	 Renee	 laughing on	 the	 phone	 in	 her	 apartment .	 	 Knowing	 that	 he was upset	about	these	issu es	with	Renee, Philip arm ed himself	and	trespass e d into Renee’s	apartment .		In	the	apartment , Philip	asked	Rene e if	she	tho ught	it	was funny	 that	 he	 had	 been	 beaten	 up, inducing Renee’s comment,	 “I	 think	 it’s hilarious	 [that the	 priest beat you up ],”	 which	 caused	 him	 to	 shoot	 Renee, reload,	and	shoot	her	until	she	stopped	moving. [¶ 20 ] “ [I] t	is	well

- settled	that	‘mere	words’	will	not	suffice ” to	engender extreme	 anger	 or	 fear	 and	 mitigate	 the	 conduct	 of	 the	 defendant. State	 v. Cumming ,	634	A.2d 953,	957	(Me.	1993) (quoting State	v.	Michaud ,	611	A.2d 61,	63 (Me.	1992) ) ( stating that provocation	must	be so close	in	time that	the heat	 of	 passion had	 not cool ed ); see	 also State	 v.	Warmke ,	 2005	ME	 99,	 879 A.2d	30	 (upholding the denial	of an adequate	provocation	instruction	where
there	was	evidence	that the	defendant	went	to	the	property	of	the	victim	and shot	 her	 because	 of	 prior	 verbal	 mistreatment	 by	 her	 and	 a	 smirk	 at the
defendant just	prior	to the shooting); see	also State	v.	Lockhart ,	2 003	ME	108, ¶	 42,	 830	 A.2d	 433	 ( explaining	 that evidence	 of a heated	 argument	 with a victim,	 during	 which	 the	 victim	 was	 slapping	 and	 hitting	 defendant, was insufficient	to generate	an adequate	provocation	instruction).12 [¶ 2 1] Philip “had	 the	 burden	 of	 p roving	 that	 he	 did	 not	 instigate	 or create	the	event	that	ultimately	provoked	him	to	commit	the	crime.” State	v. Pulsifer ,	 1999	 ME	 24,	 ¶ 15,	 724	 A.2d	 1234

. Here,	 the	 trial	 court	 correctly determined	 that	 the	 evidence	 did	 not	 generate the issue	 of adequate provocation.		The	court	found	that Philip induced	the	provocation	that Philip
claimed	led to	 the	killing	 “by	going	next	door	 to	confront	her	about	what	he
b elieved	was	her	laughing”	at	him	on	the	phone. [¶ 22 ] Furthermore , the missing	work	tools	and the fight	with the	priest hours	 before	 the	 shooting do not contribute	 to	 bringing Renee’s laughing	in her	 own	 apartment to	 the	 level	 where	 it was “ of	 such	 a nature	 that	 [the
defendant ’ s]	reaction	to	it	with	extreme	anger	or	extreme	fear	was	objectively
reasonable .” Hanaman ,	2012	ME	40 , ¶	20, 38	A.3d	1278

. [¶ 23 ] T he	 trial	 court	 did	 not	 err	 in	 determining	 that,	 based	 on	 the evidence	 at	 trial,	 a	 jury	 could	 not rationally	 have	 found	 that	 the affirmative defense	was	established	by	a	preponderance	of	 the	evidence

. T herefore , we conclude	 that the	 court	 was	 correct in	 holding	 that the	 jury	 instruction for adequate	provocation	was	not	generated by	the	evidence

.13
B. Motion	to	Suppress 4 [¶ 24 ] Philip	 contends	 that	 the	 court	 erred	 by	 denying	 his	 motion	 to

suppress the statements that	he made	to	law	enforcement at	his	residence on the	grounds	that the statements	were	not	voluntary	and	were	obtained	while he	was	in	custody	but had not been read Miranda rights

. He	contends that he was	in	custody	and that the	statements	were	involuntary	due	 to	 the lengthy police	 presence	 outside	 his	 home.	 	 Additionally,	 Philip	 contends	 that	 his involuntary statements	 to	 the	 police	 at	 his	 residence irreparably	 tainted	 his
confession	and that this taint	cannot	be	removed	by	later Miranda warnings at the	police	station

. [¶ 2 5 ] We appl y a	 two

- tiered standard	 of	 review	 to	 examine	 a	 trial court’s	 denial	 of	 a	 motion	 to	 suppress : “the	 court’s	 factual	 findings	 are reviewed	 for	 clear	 error	 and	 its	 application	 of	 legal	 principles	 to	 those findings	is	reviewed	de	novo.” State	v.	Bryant ,	2014	ME	94,	¶	15,	97	A.3d	595;
see	also State	v. Lavoie ,	2010	ME 76,	¶	13,	1	A.3d	408	( stating	 tha t	when the

4 Philip also	 contends	 that	 the	 court	abused	its	 discretion	 by	 d enying	 his	motion	in	limine	 to exclude,	 as	 unfairly	 prejudicial,	 his	 own	 characterization,	 during	 his	 confession	 to	 police,	 of	 the shooting	as	a	“murder.”		We	review	the	trial	court ’ s admission of	evidence	over	a	Rule	403	objection for an abuse	of	discreti on. See State	v.	Michaud ,	2017	ME	170,	¶	8,	168	A.3d	802;	M.R.	Evid.	403. Philip ’s	statement	to the police	was	strongly	probative	of	his	state	of	mind	as Philip was	explaining that he	did	not	attempt	to	cover	up	the	body	because	right	after	the	shooting	he	knew	he	was	not going	 to	 get	 away	 with	murder.	 	We	 conclude	 that	 the	 trial	 court	 did	 not	 abuse	its	 discretion	in admitting Philip ’s	characterization	of	his	shooting of Renee	as	mu rder.14 court’s	 factual	 findings	 are	 undisputed , a	 challenge	 to	 the	 application	 of constitutional	protections	 to	 those facts	is	a	matter	of	law	 that we review	de novo). We “will	 uphold	 the	 court’s	 denial	 of	 a	 motion	 to	 suppress	 if	 any
reasonable	view	o f	 the	evidence	supports	 the	 trial	court’s	decision.” State	v.
Diana ,	2014	ME	45,	¶	11 ,	89	A.3d	132 (quotation	marks	omitted)

. 1. Custody [¶ 2 6 ] Philip first contends that the six	hours	of	intense	police	presence outside	 his	 home	 prior	 to when	 he exit ed his	 residence and	 confess ed
rendered	hi m in	custody

. “ The	determination	of	whether	an	individual	was	in custody	is	a	mixed	question	of	fact	and	law. ” State	v.	Lowe ,	2013	ME 92,	¶	13,
81	 A.3d	 360 (quotation	 marks	 omitted)

. In	 reviewing	 a	 court ’ s	 custody determination, we defer	to	the trial court ’ s	factual	determinations	but	review de	novo	 the	determination	of	whether	an	individual	was	in	custody. State v. Jones , 2012 ME 126, ¶ 21, 55 A.3d 432

.

[¶ 2 7 ] To	determine	if	a	person was “ in	custody ” for Miranda purposes, “a	 court must	 objectively	 review	 the	 pertinent	 circumstances	 to	 decide whether	a	reasonable	person	in	the	defendant ’ s	position	would	have	felt	free
to	terminate	the	interaction	with	law	enforcement	or	if	there	was	a	restraint on	freedom	of	movement	of	the	degree	a ssociated	with	formal	arrest. ” State	v.15 Perry ,	 2017	 ME	 74,	 ¶	 15,	 159	 A.3d	 840 (quotation	 marks	 omitted) .	 	 In conducting	this	analysis, the	court consider s a	number	of	factors. 5 Id. [¶ 2 8 ] Here,	 the court ( Anderson,	J. )	 found	 that	while	 there	were	a few circumstances	present	that	could	weigh	in	favor	of	custody,	the re	were	many factors that suggested that Philip	 was	 not	 in custody.	 	 The	 factors that the court	 found	 weigh ed against a	 finding	 that	 he	 was	 in custody included that (1) Philip made	the	statements	in	a	familiar	location,	on	the	front	steps	of	his residence; (2) the	officers	never	made	any	indication	 that	 they	had	probable cause	 to	 arrest	 Philip , and they	 had	 no	 reason	 to	 know	 that	 they	 would ultimately	 obtain	 probable	 cause	 to	 a rrest	 him; (3) there	 was	 no	 physical
restraint ;	(4) it	was	Philip,	upon	his	own	volition , who	exited	the	building;	and (5) the	 officers	 were	 nonconfrontational,	 compassionate,	 and	 polite	 with Philip when	 he	 admitted	 to	 shooting	 Renee.	 	 The	 court	 also	 found that	 the police	 presence	 was	 not	 without	 context

. Philip	 had	 been	 involved	 in	 a

5 The	 factors	include	 “ (1)	 the	locale	where	 the	 defendant	made	 the	 statements;	 (2)	 the	 party who	 initiated	 the	 contact;	 (3)	 the	 existence	 or	 non

- existence	 of	 probable	 cause	 to	 arrest	 (to	 the extent	 communicated	 to	 the	 defendant);	 (4)	 subjective	 view s,	 beliefs,	 or	 intent	 that	 the	 police manifested	 to	 the	 defendant,	 to	 the	 extent	 they	 would	 affect	 how	 a	 reasonable	 person	 in	 the defendant ’ s	position	would	perceive	his	or	her	freedom	to	leave;	(5)	subjective	views	or	beliefs	that the	 defendant	 manifested to	 the	 police,	 to	 the	 extent	 the	 officer ’ s	 response	 would	 affect	 how	 a reasonable	person	in	the	defendant ’ s	position	would	perceive	his	or	her	 freedom	to	leave;	(6)	the focus	 of	 the	investigation	 (as	a	 reasonable	 person	in	 the	 defendant ’ s	 position	would	 p erceive	it); (7) whether	 the	 suspect	 was	 questioned	 in	 familiar	 surroundings;	 (8)	 the	 number	 of	 law enforcement	 officers	 present; (9) the degree of physical restraint placed upon the suspect; and (10) the duration and character of the interrogation.” Stat e v. Michaud , 1998 ME 251, ¶ 4, 724 A.2d 1222

.16 serious	physical	altercation with	the	priest the	previous	day , and	the	officers
wanted	 to	make	 sure that he	was	 ok ay .	 	Additionally,	 the	 officers	wanted	 to locate	 Renee, not having	 any reason	 to	 believe that she	 was	 dead,	 let	 alone that	Philip	was	responsible	for	her	death. [¶ 2 9 ] The	 mere	 fact	 that	 there	 were	 multiple	 officers	 attempting	 to
conduct	a	well

- being	check	of	Philip	and	Renee	did	not	mean that Philip	was
“in	 cust ody”	 for Miranda purposes. See,	 e.g., State	 v.	 Leonard ,	 2002	ME	 125, ¶ ¶ 9, 10,	 802	 A.2d	 991	 ( affirming	 the	 finding	 that	 the	 defendant	 was	 not	in custody	w h ere the police	were	looking	for	the	defendant	at	his	home	because they	 had	 reason	 to	 believe	 he had committed	 a	 crime,	 many	 officers were present,	 and	 an	 armed	 standoff	 occurred); see also State	 v.	 Powell , 640	 A.2d 209,	210

- 211	(Me.	1994) ( affirming	the	finding	th at	the	defendant	was	not	in custody	when	multiple	officers	questioned	defendant	while	executing	a	search warrant).		The	court	did	not	err	in	concluding	 that Philip was	not	in	custody when	 he	 confessed	 to	 killing	Renee	 outside	 his	 own	 residence. Because	 th e court	properly	determined	 that	Philip	was	not	in	custody,	 the	determination
of	 whether	 follow

- up	 questions asked	 by	 the	 police at	 his	 residence	 after Philip	 confessed amounted	 to	 interrogation is	 not	 necessary. State	 v. Holloway ,	 2000	ME	 172,	 ¶	 13,	 760 A.2d	 223	 ( stating that Miranda warnings17

are required only when	 a	 defendant	 is	 both	 in	 custody	 and	 subject	 to interrogation)

. 2. Voluntar iness [¶ 30 ] Philip	 next contends that his	 statements	 to	 police	 should	 have been	suppressed	because	they	were	not voluntary. [¶ 3 1 ] When a confession	 is	 not	 “forced”	 out	 of a defendant , the
confession	will	be	examined	to	determine	whether	the defendant’s statements “were	 free	 and	 voluntary	 or	 whether,	 considering	 the	 totality	 of	 the
circumstances	under	which	the statements	were	made,	their	admission	would be	fundamentally	unfair , ” in	violation	of	due	process. State	v.	Hunt ,	2016	ME 172,	¶	19,	151	A.3d	911. [¶ 3 2 ] We	have determined	that [ t ]he	voluntariness	requirement	gives	effect	 to	 three	overlapping but conceptually	 distinct	 values:	 (1)	it	 discourages	 objectionable police	 practices;	 (2)	 it	 protects	 the	 mental	 freedom	 of	 the individual;	and	 (3)	it	preserves	a	quality	of	 fundamental	 fairness in	the	criminal	justice	system.
Id. ¶	 20

. Courts consider	 the	 to tality	 of	 the	 circumstances	 in	 making	 a voluntariness	determination,	including	the	following	factors: [ t ] he	 details	 of	 the	 interrogation;	 duration	 of	 the	 interrogation; location	 of	 the	 interrogation;	 whether	 the	 interrogation	 was custodial;	 the	 recitation of Miranda warnings;	 the	 number	 of officers	 involved;	 the	 persistence	 of	 the	 officers;	 police	 trickery;18 threats,	promises	or	inducements	made	to	the	defendant;	and	the defendant’s	 age,	 physical	 and	 mental	 health,	 emotional	 stability, and	conduct.
State v.	George ,	2012	ME	64,	¶	21,	52	A.3d	903	( quotation	marks	omitted ). [¶ 3 3 ] Here,	 the	court	concluded beyond	a	reasonable	doubt, based	on the	 totality	 of	 the	 circumstance s , that Philip’s statements	 to	 the	 police	 were voluntary. 6 The	 court	 found	 tha t	 a lthough Philip’s physical	 health	 was somewhat	diminished	as	a	result	of	the	 fight	with the	priest ,	the	court	 found there	 was	 no	 indication	 that	 his	 mental	 health	 was	 actually	 diminished. Additionally,	 the	 court	 found	 that	 the	 actions Philip took	 before the	 police
arrived demonstrated that his conduct ,	including cleaning	up	the	crime	scene
and getting	 a	 full	 night’s	 sleep	 before	 driving	 Renee’s	 car	 to	 Bangor ,	 was deliberate

. [¶ 3 4 ] W e review	the	trial	court’s	 factual	determinations	on	a question
of	voluntariness for	clear	error. Bryant ,	2014	ME	94,	¶	15,	97	A.3d	595.		“Clear error	exists	if	a	finding	is	unsupported	by	competent	evidence	in	the	record .” Boyd	v.	Manter , 2018	ME	25,	¶	9,	179	A.3d	906.		Here,	the	trial	court’s	finding

6 The	 court	 focused	 on Philip’s interaction	with	 police	 on	 his	 doorstep	 and	 found	 that	it	was brief;	it	was	 not	 custodial;	 the	 police	 did	 not	engage	in	any	 trickery;	 the	 police	were	 cordial;	 the police	were	 t here	 to	check	on Philip ’s	well

- being	due	 to	his	altercation	with	 the	priest;	and Philip appeared	emotionally	stable	during	his	interaction	with	police.19 that Philip’s statements	 were	 voluntary is	 supported	 by the	 evidence	 of	 the voluntary	nature	of	his	actions	after	the	shooting

. [¶ 3 5 ] We conclude that	 the	 trial	court	did	not	err	in determi ning	 that Philip ’s	statements	were	voluntary.
C. Recusal [¶ 3 6 ] Philip contends that	 the	 trial	 court	 abused	 its	 discretion	 by denying	his	motion	to	recuse	based	on	the	trial	court ’ s	prior	relationship	with the	prosecutors	in	the	case	and with a	witness

. [¶ 3 7 ] We review	 the	 decision	 on	 a	 motion	 to	 recuse	 for	 abuse	 of discretion,	 because	 “the	 trial	 court’s	 decision	 to	 recuse	 is	 within	 its	 sound
discretion.” Yarcheski	v.	P&K	Sand	&	Gravel,	 Inc

. ,	2015	ME	71,	¶	7 ,	117	A.3d
1047 (quotation	marks	omitted)

. “ [ A ] judge	is	as	much	obliged	not	to	recuse himself	 when	 it	 is	 not	 called	 for	 as	 he	 is	 obliged	 to	 when	 it	 is.” State	 v.
Dechaine ,	 2015	 ME	 88,	 ¶	 44,	 121	 A.3d	 76 (quotation	 marks	 omitted)

. Pursuant	 to	 the	Maine	Code	of	 Judicial	Conduct , a	judge	must	recuse	h imself on	 a	 motion	 made	 by	 any	 party	 if	 his	 “impartiality	 might	 reasonably	 be questioned”	 or	if	 he	 has	 a	 “personal	 bias	 or	 prejudice	 concerning	 a	 party	 or personal	knowledge	of	disputed	evidentiary	facts	concerning	the	proceeding.”20 DeCambra	v.	Carson ,	200 8	ME	127,	¶	8,	953	A.2d	1163; s ee	also M.	Code	 Jud.
Conduct	R.	2.11

. [¶ 3 8 ] Here, before	 jury	 selection	 began, the	 trial	 judge promptly disclosed	 to	 the	 parties	 all	 facts	 known	 to	 him	 that	 were	 relevant	 to	 the question	of	impartiality , stating	that	(1)	he	had	worked	with,	and	had	been	the supervisor	 of,	 the	 prosecutors	 in	 the	 case	 prior	 to	 being	 appointed	 to	 the bench	in	2014,	an d	(2)	he	knew a	witness because three	to	four	years	prior	to the	 trial, the witness had	 been a	 seminarian	 intern for	 one	 summer	 at	 the
church that the	trial	judge attend ed , and	during	that	summer he had	roughly
three	 conversations	 with	 him

. The	 judge stat ed,	 “I	 have	 no	 concerns whatsoever	that	that	would	affect	my	ability	to	be	fair,	impartial,	and	objective
in	this	case.” [¶ 3 9 ] Regarding	 the	 prosecutors, the	 trial	 judge stated , “[ I ]t’s	 not	 a problem	 for	me. I	don’t	 feel	in	any	way,	shape	or	 form	 that	 [the	prior	work relationship]	impacts	my	ability	to	be	fair	and	impartial	in	this	case.” [¶ 40 ] As	a	result	of	these	disclosures,	on	t he	following	day, Philip asked
the trial	judge to	recuse himself .		The	cour t	denied	the	motion	and	confirmed that	 none	 of	 the	 standards	 of	 the	Maine	 Code	 of	 Judicial	 Conduct	 Rule	 2.11, pertaining	to	recusal , required	his	recusal .		The	court	further	stated , “ [I] t’s	an21 abuse	of	discretion f or	 the	Court	 to	 recuse	itself	when	 there’s no	basis	 for	it

. . . . I	just	don’t	see	the	basis	for	it.” [¶ 4 1 ] A	 party’s “mere	 belief”	 that	 a	 judge	 might	 not	 be	 completely impartial	is	insufficient	to	warrant	recusal	if	the	judge	believes that he	can	act with	complete	impartiality. Johnson	v.	Amica	Mut.	Ins.	Co

. ,	1999	ME	106,	¶	11 n.1,	733	A.2d	977.		Looking	at	the	record	as	a	whole,	the	fact	that	the	presiding judge had	met the	witnes s years	before	on	a	few	Sundays	during	one	summer
was	insufficient	 to	create even an	appearance	 of	 bias.	 	Additionally, the	 trial judge ha d presided	 over	 several	 homicide	 trials involving	 the	 Attorney
General’s	 office prior	 to this	 case and	 ha s not	 worked	 in	 the	 Attorney
General’s	office for	over five	years. [¶ 4 2 ] We conclude that	 the	 trial	 court	 did	 not abuse	its	 discretion	in
de nying Philip ’s	motion	to	recuse. The	entry	is: Judgment and	sentence affirmed.22

David	W.	Bate,	Esq.,	Bangor, and	Logan	E.	Perkins,	Esq.	(orally),	Perkins	Law Office,	Belfast, for	appellant	Philip	L.	Clark Aaron	M.	 Frey,	 Attorney	 General , and Donald	W.	Macomber,	 Asst.	 Atty.	 Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Penobscot County Unified	Criminal	Docket	docket	number	CR

- 2018

- 2736 F OR C LERKS R EFERENCE O NLY