Opinion
NO. 2011-CA-002169-MR
11-09-2012
JOHNNY PHILLIPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Rachel G. Cohen Assistant Public Advocate LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 07-CR-00206
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. DIXON, JUDGE: Johnny Phillips appeals an order of the Laurel Circuit Court denying his RCr 11.42 motion to set aside his conviction due to ineffective assistance of counsel. Finding no error, we affirm.
In June 2009, a Laurel Circuit Court jury convicted Phillips of wanton murder. Pursuant to the jury's recommendation, the trial court sentenced Phillips to thirty years' imprisonment. On direct appeal, the Kentucky Supreme Court affirmed Phillips's conviction in an unpublished opinion. Phillips v. Commonwealth, 2009-SC-000633-MR (June 17, 2010). In that opinion, the Court set forth the following background facts:
Phillips and victim Phillip Glodo were friends. On October 18, 2007, they traveled together to Tennessee to get a boat license. Afterward, they returned to Phillips's home. At some point Phillips made a comment which Glodo construed as accusing him of stealing $50.00 from Phillips. Glodo became upset at Phillips because of the comment, and remained so until the shooting later that evening.
Phillips and Glodo had a mutual friend, Randy Capps, who testified at trial. Capps testified that when he first saw Phillips and Glodo at his residence on October 18, 2007, it appeared to him that both men had been drinking. After a short time the two left to get the boat license. Later that same day, Glodo called Capps. Capps said that Phillips was blaming him for stealing $50.00, and that he was going to "kick [Phillip's] ass." After Capps returned home, he received another phone call from Glodo in which Glodo threatened to sic his two Great Danes on Phillips. Glodo also made several calls to Phillips that day.
Later that evening, Phillips returned to the Capps residence. A few minutes before 10:00 p.m., Glodo arrived at the residence and began to argue with Phillips. Because Capps's children were home, Phillips suggested that they take their argument elsewhere.
Phillips and Glodo both got into their trucks to leave. As Phillips prepared to pull away Glodo yelled "I'll ram your ass." The two then drove off in the direction of Phillips's residence.
As Phillips drove down the narrow road he came upon a truck pulling a horse trailer coming in the opposite direction. In order to let the truck by, Phillips pulled over
into a church parking lot. Glodo pulled in behind him. The two men got out of their vehicles, and, ultimately, Phillips shot Glodo in the back of the head with a twelve-gauge shotgun.
As further discussed below, following the shooting Phillips gave a statement to the police in which he claimed, inconsistently, that the shooting was both accidental and done in self-defense.
. . .
For example, in the statement Phillips said:
It was an accident . . . . It really was an accident. The gun went off prematurely.
I used it [the shotgun] to push him away from me and it went off . . . . He was standing like this at me and had something in this hand . . . . When he come at me . . . . He rushed my truck, he rushed to the side of my truck, I pushed him away from the truck with my truck door, know what I mean . . . . He come up to my truck. I was watching him in the mirror and they weren't moving quick enough for me to go on the horses and stuff coming down that hill . . . . I pushed him off, basically used my door to get some room to get out of the truck, and as I come out of the truck I come with the gun, I pulled a shotgun out beside me. I was trying to scream at him get back in your damn truck, get the hell away from me and leave me alone and he was coming like this and his hand was at his side. In this hand right here is the one he had had the knife in, all I could see was shiny chrome and he carries a .44 that long . . . in that hand cause he was coming at me like this, know what I mean, with this arm extended, with his forearm like extended . . . .
That's when he come at me with his forearm, I didn't know if he was going to try and push me . . . . I raised that gun up cause he had that thing in his left hand when I raised the gun up. He was coming at me and I took the gun and give it that and he didn't move four inches and the gun went off.As reflected by his statement, Phillips straightforwardly claimed that the shooting was an accident. An accidental act is the opposite of an intentional act. Thus, contrary to Phillips's argument, the evidence as a whole supports not only the theory that his shooting of Glodo was intentional and was done so in self-defense, but also that the shooting was not intentional, but, rather, was an 'accident.' The question then becomes if the jury believed the shooting was unintentional, whether Phillips's conduct satisfies the elements of wanton murder.
. . .
I swear on my mother's grave I didn't mean to shoot that man.
The evidence presented regarding the unintentional shooting theory is that Phillips pointed a loaded shotgun at Glodo, and pushed him away with the weapon while, it may be inferred (the shotgun fired), his finger was on the trigger. Unquestionably the foregoing conduct could be found by a jury to be wanton because of the high likelihood the shotgun could fire under the circumstances described. Moreover, we believe it is self-evident that a reasonable jury could conclude that pointing a loaded shotgun at a person and prodding him with it with a finger on the trigger manifests an extreme indifference to human life and creates a grave risk of death.
In July 2011, Phillips filed a pro se RCr 11.42 motion to vacate his conviction due to ineffective assistance of counsel. In November 2011, the Laurel Circuit Court denied Phillips's motion for post-conviction relief without an evidentiary hearing. Phillips now appeals, contending he was entitled to an evidentiary hearing regarding seven instances of alleged ineffective assistance of counsel.
In an RCr 11.42 proceeding, an evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense. Id. at 687, accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
I. Failure to File a Motion to Suppress Incriminating Statements
Phillips contends counsel was ineffective by failing to file a motion to suppress his statements to Detective Charlie Loomis. Phillips asserts that he invoked his right to remain silent and right to counsel during preliminary questioning; however, Loomis continued the interrogation in violation of Phillips's constitutional rights.
Loomis testified that he Mirandized Phillips at both the crime scene and police station, and Phillips never invoked his rights. Defense counsel cross-examined Loomis regarding the questioning, and counsel emphasized that Phillips cooperated with the investigation and answered the detective's questions. The record refutes Phillips's claim regarding suppression issues; consequently, no evidentiary hearing was warranted.
II. Failure to Present Testimony of Exculpatory Witnesses
Phillips argues counsel was ineffective for failing to call exculpatory witnesses John Smith, Anna Sowders, Chassidy Messer, and Josh Sizemore.
Phillips contends that Sowders (Randy Capps's girlfriend), would have testified about threats made by the victim prior to the shooting. Phillips does not specifically allege what threats were observed by Sowders; rather, Phillips makes a general assertion. Conclusory statements are not sufficient for RCr 11.42 relief. Sanders, 89 S.W.3d at 385. Further, as the Commonwealth points out, Capps fully testified regarding the events that unfolded prior to the shooting; consequently, any testimony from Sowders would have been cumulative.
Phillips asserts Smith would have testified that the shotgun had a sensitive trigger, which supports the defense theory the gun accidentally discharged. The Commonwealth introduced the testimony of a firearms expert who stated the shotgun functioned properly and had a normal trigger-weight. We are not persuaded that Phillips was prejudiced by counsel's decision not to present Smith's testimony in rebuttal to the Commonwealth's expert.
Finally, Phillips contends Messer and Sizemore would have testified about prior violent acts committed by the victim against other people. Phillips asserts this evidence was admissible to establish that Phillips was justified in using deadly force to protect himself from the victim. We disagree.
A homicide defendant may establish that he acted in self-defense or that the victim was the initial aggressor by introducing evidence of the victim's character for violence "in the form of reputation or opinion, not specific acts of misconduct." Saylor v. Commonwealth, 144 S.W.3d 812, 815 (Ky. 2004). "An exception exists, however, when evidence of the victim's prior acts of violence, threats, and even hearsay evidence of such acts and threats, is offered to prove that the defendant so feared the victim that he believed it was necessary to use physical force (or deadly physical force) in self-protection, provided that the defendant knew of such acts, threats, or statements at the time of the encounter." Id. at 815-16. In the case at bar, the proposed testimony of Messer and Sizemore did not relate to any prior incidents involving Phillips, and Phillips has not pointed to any proof that he had personal knowledge of the victim's alleged prior acts at the time of the shooting. We agree with the trial court that counsel was not deficient on this issue because any testimony about specific acts of violence committed by the victim would have been inadmissible.
III. Failure to Retain a DNA Expert
The Commonwealth presented expert testimony of Allison Tunstill, a forensic biologist with the Kentucky State Police Central Forensic Lab. Tunstill testified regarding a partial "touch DNA" profile retrieved from the handle of the knife found at the crime scene. Tunstill's testing revealed that Phillips was not a contributor to the DNA; however, the test was inconclusive regarding whether the victim's DNA matched the partial profile. Phillips argues that counsel should have retained a DNA expert to rebut Tunstill's testimony. Phillips speculates that a defense expert could have testified regarding the number of "loci" matches for the victim's DNA on the knife, which would have persuaded the jury that the victim confronted him with the knife.
Every criminal case does not require defense counsel to retain a rebuttal expert witness. Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky. 2005). Here, counsel thoroughly cross-examined Tunstill on her findings, emphasizing that her tests clearly established that Phillips did not possess the knife. Further, Tunstill explained that the results for the victim were "inconclusive" because there was not enough DNA on the knife to conclusively determine whether the victim handled the knife. Based on Tunstill's testimony the jury could have inferred that the victim possessed the knife, which defense counsel vigorously argued to the jury. Under the totality of the circumstances, counsel performed reasonably, and Phillips failed to establish that he was prejudiced by counsel's decision. The trial court correctly concluded no evidentiary hearing was warranted on this issue.
IV. Ballistics Evidence
Phillips contends the Commonwealth committed a Brady violation by withholding post-mortem x-rays of the victim's head. This claim should have been raised on direct appeal; consequently, we decline to address it. Martin v. Commonwealth, 203 S.W.3d 173, 175 (Ky. App. 2006).
Phillips next argues that counsel was deficient for failing to retain a ballistics expert to clarify the distance and angle of the shot that killed the victim. Dr. Jennifer Schott, the state medical examiner, performed the autopsy of the victim, and she testified the bullet struck the victim in the middle of the back of the head. Dr. Schott further explained that the victim had smaller "satellite lesions" around the wound due to the spread of shotgun pellets, which generally indicates the weapon was fired from a distance of at least three feet. Dr. Schott also testified that the general direction of the pellets spread from the back to the front of the victim's head. The Commonwealth introduced autopsy photographs of the victim which correlated with Dr. Schott's explanation.
Phillips speculates that the testimony of a ballistics expert would have discredited Dr. Schott's testimony and supported his argument that the shotgun blast struck the victim at close range and at an angle. Phillips cites no evidence to support his conclusion regarding the location of the wound, aside from his own conflicting statements regarding how the wound was inflicted. These conclusory allegations did not warrant an evidentiary hearing.
Finally, counsel was not deficient for failing to object that Dr. Schott was not qualified to testify regarding the angle and distance of the gun shot. Dr. Schott clearly stated she was not a firearms examiner; however, she testified that she had performed approximately 1200 autopsies as a medical examiner. Dr. Schott performed an examination and autopsy of the victim; consequently, we believe she was qualified to render an opinion regarding the manner in which the wounds were inflicted. See Albertson v. Commonwealth, 214 S.W.2d 394, 396 (Ky. 1948).
V. Failure to Object to Commonwealth's Closing Argument
The evidence at trial established that there were holes in the windshield of the victim's truck, near the location of the victim's body. There was no testimony that bullets or shotgun pellets were discovered embedded in the windshield. In closing argument, the prosecutor misspoke, stating that bullets were recovered from the windshield of the victim's truck. The prosecutor went on to explain his theory that holes in the windshield supported an inference that the victim was shot from a distance of at least three feet, as opposed to a shooting at close range as argued by the defense. Phillips asserts that counsel's failure to object to the prosecutor's misstatement constituted ineffective assistance, and he speculates that he would have been acquitted on a self-defense theory but for counsel's deficient performance. We disagree.
Even if we assume counsel's failure to object to the misstatement constituted deficient representation, we simply cannot conclude that Phillips suffered actual prejudice as a result. The jury heard ample evidence to support the verdict of wanton murder, and the evidence was undisputed that the victim was found near his truck with a fatal shot in the back of the head. There is simply no reasonable probability of a different outcome if counsel had objected to the prosecutor's brief misstatement regarding bullets retrieved from the windshield.
VI. Failure to Tender Appropriate Jury Instruction
Phillips contends counsel was ineffective for failing to request that the self-defense jury instruction include a provision regarding the use of force against someone who was in the process of forcibly entering an occupied vehicle. KRS 503.055. To support this instruction, Phillips asserts that he looked in the rearview mirror and saw the victim approaching with a knife.
A defendant is entitled to jury instructions that are "applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). In this case, Phillips gave conflicting statements to the police regarding how the shooting occurred. Although one of his statements indicated he saw the victim in the rearview mirror, there was never an allegation that the victim attempted to forcibly enter the vehicle. As the evidence did not support an occupied vehicle instruction, we conclude counsel was not deficient on this issue, and an evidentiary hearing was not warranted. Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999).
VII. Failure to Present Mitigating Evidence
Phillips contends trial counsel failed to investigate and present mitigation evidence regarding his medical issues, childhood physical abuse, and psychological impairments. Phillips speculates that if counsel had investigated these issues, he would have received a lesser sentence. We disagree.
The record indicates that Phillips's best friend testified during the guilt phase, and Phillips's wife, Angie, testified during both phases of the trial. Counsel elicited testimony regarding Phillips's positive attributes, including owning a business, being an avid hunter, and spending time with his two children. Angie also explained that Phillips lived with a serious back ailment. In the penalty phase closing argument, defense counsel implored the jury to give Phillips the minimum twenty-year sentence. It is clear that Phillips's post-conviction argument regarding potential mitigation evidence relies on conclusory allegations; consequently, an evidentiary hearing was not warranted on this issue. Sanders, 89 S.W.3d at 385.
VIII. Conclusion
After careful review, we conclude that Phillips was not entitled to post-conviction relief due to ineffective assistance of counsel, and the trial court properly denied the motion without an evidentiary hearing.
For the reasons stated herein, we affirm the order of the Laurel Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Rachel G. Cohen
Assistant Public Advocate
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky