Court to Consider Privacy Issue : Victim Taped His Murder but Slayer May Be Freed

It was an especially nasty murder--the psychologist sprawled behind his desk, five bullets piercing his vested suit. A hard case to solve, police thought at first. No one had even heard the shots.

Then, Detective Ken Perry saw the wire leading from a tape recorder in a desk drawer to a microphone in a pencil holder. He rewound the cassette, and the investigators huddled about, listening for the slightest clue.

The psychologist’s recorded voice stated that a meeting was about to begin with someone named Anthony Inciarrano. Then, after the visitor arrived, the two quickly began to argue. In astonishment, detectives realized that the tape was actually replaying its way toward the murder.

“We have a deal, yes or no?” the furious Inciarrano demanded, not waiting for an answer. Shots snapped from a handgun. The tape ended with the protracted moans of Dr. Michael Phillips, dying on the office carpet.

In the ensuing months, police prized the tape as the perfect seal to an airtight case--proof that sent the killer to prison. But, 2 1/2 years later, that seal has been punctured by legal tactics. The recording now presents a grim problem for Florida’s Supreme Court, which has been asked to decide if the murder tape was a violation of the killer’s privacy.

Florida, like California and 11 other states, has a law against tape-recording private conversations unless all parties consent. A lower appellate court already has ruled that the tape is not admissible as evidence at trial.

In effect, the illegal tape and the brutal murder may cancel each other out, like offsetting penalties in a football game. Inciarrano may soon go free.

“I recognize what the facts are--they’re horrendous,” Justice Ben Overton complained last month when this state’s high court heard oral arguments. “(But) sometimes judges don’t have any choices.”

Troubling ironies are tangled throughout the case, some caused by quirks in state law, others by human frailties.

To contend that his privacy was violated, Inciarrano had to admit that it was indeed his husky voice on tape.

“You . . . me out of a deal!” he yelled at the man moments before the shots rang out.

More disturbing yet, Florida officials concede that, without the recording, there is no case against the killer.

“Nobody saw Inciarrano go in; nobody saw him go out,” said attorney Richard T. Garfield, who was the prosecutor. “The murder weapon was never discovered. There were no fingerprints.”

Anthony Paul Inciarrano, 45, was the stocky, tough-talking proprietor of a bingo hall here in Oakland Park, a small city near Fort Lauderdale. Police had put him out of business, and he was looking for new action.

“He met Phillips through an ad in the paper, something about bingo equipment,” Detective Perry said.

Police on His Track Dr. Michael A. Phillips, 49, a glib sophisticate practicing psychology, was really Earvin Herman Trimble, a once-prosperous Riverside, Calif., real estate agent with luck gone fickle and the police at his heels.

“He could sell iceboxes to Eskimos,” said Sybil Trimble, who divorced him in 1971. “He owned his own real estate business and had 28 salesmen working for him. Then he just went ape over gambling--the track, Vegas.”

Deep in debt, Trimble chose the gambler’s favorite way out: He gambled more. He bet with money from the company’s trust account, his ex-wife said.

In mid-1979, Trimble accepted $46,400 in deposits for homes he never sold, according to court records. About $21,000 was returned. The rest was carried off by slow horses at Santa Anita.

Clients demanded to know what had happened to their down payments. Trimble stalled them with charm. Finally, clients called police.

In August, 1979, Trimble surrendered to San Bernardino police. He was ordered to stand trial for 13 counts of grand theft. He decided to skip instead.

Soon after, he showed up in South Florida, where a handsome, well-tanned man with sharp wits might make a fresh start.

As Michael Phillips, he tended bar at the swanky Palm Aire Country Club. He ordained himself a minister of the First Church of Utilitarian Science. The certificate said that the title had been conferred on “Phillips” by the Rev. Earvin Trimble.

Scheme Short-Lived By state law, this church affiliation allowed Phillips to sponsor bingo two nights weekly. But this was a short-lived scheme. By early 1981, the Rev. Phillips had decided on a new career as Dr. Phillips, a psychologist in Suite 103 of the Trestle Building on North Dixie Highway.

“I asked him how he could get away with that,” recalled Sybil Trimble, whom he sometimes phoned. “Nothing to it, he said. He had gone to the library and read up on psychology. He said: After all, all people need is love.”

Hung from his office wall was a degree in psychology from USC. The certificate is a photocopy, the original name blanked out. But clients never filed complaints about Phillips or his advice. He seemed to have a way with those troubled by drugs, smoking or marriage.

“I’m a pretty good judge of character, and he fooled me,” said Earle Lee Butler, an Oakland Park lawyer who became Phillips’ friend.

Butler’s wife, Lisa, said they sent their foster daughter to Phillips when the teen-ager had a drug problem. “Michael even went to look for her after she ran away . . . . He was kind and caring and (a) fun man to be around.”

In 1982, Phillips had the urge to toy again with the bingo business. He ordained two other ministers in two other churches and planned to open a bingo hall in nearby West Palm Beach. That was when he met Anthony Inciarrano, who knew plenty about bingo and was willing to back a new partner with $7,000.

‘ “But Phillips became worried about Inciarrano, being that all his friends had last names ending in vowels,” Detective Perry said, going back through the file. “Inciarrano walks and talks like Mafia, and Phillips got cold feet.”

Lawyers...knew that the entire case hinged on the tape. On July 1, 1982, an angry Inciarrano visited his partner, the psychologist, who surreptitiously turned on a tape recorder.

Inciarrano: “So, in other words, we got no deal.”

Phillips: “I think it would be best. I don’t think the partnership would . . . .”

Inciarrano: “In other words, you went elsewhere. Stop the bull . . . ‘cause I know you’ve been goin’ around checkin’, lookin’ for other people to invest.”

Phillips: “Not really, not really.”

Five days later, Inciarrano returned. The record button was pressed again, this time capturing less than 30 seconds of a loud exchange. Then came the gunfire--and the gruesome moaning.

“The tape is a disaster, nothing you’d ever want a jury to hear,” concluded Fort Lauderdale attorney Melvyn Schlesser, hired by Inciarrano.

Lawyers for both sides well knew that the entire case hinged on the tape. Barely a month after the murder, they played it at a hearing before Broward County Circuit Judge Robert Abel.

“Bizarre, gory, terrible,” Abel recalled. “I’ve never encountered anything like it: the obvious sounds of a life expiring.”

The judge ruled that the tape was admissible as evidence.

“Nothing in the law says a judge or jury has to leave their common sense at home,” Abel said recently of his decision.

After that, there was little choice for Inciarrano but to plead nolo contendere--or no contest--at the trial. He began to serve a life sentence while his attorneys sought a higher court ruling that would forever silence the horrifying tape.

It was their appeal that led to a very unusual opinion by a three-judge panel. For five pages, the opinion gives reasons why the tape ought to be admissible.

“No matter how pernicious the ‘crime’ of non-consensual recording of a conversation may seem to appear, the crimes of homicide and extortion must be considered vastly more heinous,” the opinion states.

But then the judges did a reluctant about-face, saying that they were “nonetheless constrained” by case law made by the Florida Supreme Court.

In fact, this state’s seven-member high court has ruled in the past that illegally taped conversations may not be used in criminal trials.

Since 1975, Florida law has specifically excluded such private conversations from being used as evidence. In this way, the statute differs from California’s, which has been amended to allow such recordings to be used in cases involving major crimes.

The Law vs. One Man “Mr. Inciarrano is not the issue here,” Schlesser, his attorney, insisted in an interview. “The important thing is that we don’t forfeit the rule of law just to get one man.

“The law says you cannot use the tape recording as evidence. If you ignore the law, what about the next case? When do you stop making exceptions? Blame the Legislature; it made the law!”

The Florida attorney general’s office, on the other hand, is asking the high court to ponder the precise meaning of privacy.

“The law protects those with a reasonable expectation of privacy,” Joy B. Shearer, the assistant attorney general arguing the case, said. “A man who intends to commit a homicide has no such reasonable expectation.”

Such narrow definitions will settle the fate of Anthony Inciarrano, who committed a perfect crime but for the capture of his wrath on a tape cassette.

It is a crime that may prove perfect yet--just a private affair between Inciarrano and Dr. Phillips, a murder that is nobody else’s business.

Times staff writer Patricia Hurtado contributed to this story.