Opinion
ID No. 1210013272
09-04-2015
STATE OF DELAWARE, v. JEFFREY PHILLIPS, Defendant.
John Downs, Esquire, Ipek Medford, Esquire, and Periann Doko, Esquire, Deputy Attorney Generals, Delaware Department of Justice, Wilmington, Delaware. Attorneys for the State of Delaware. Kevin J. O'Connell, Esquire, Raymond D. Armstrong, Esquire, and Misty A. Seemans, Esquire, Assistant Public Defenders, Public Defender's Office, Wilmington, Delaware. Attorneys for the Defendant. Anthony A. Figliola, Esquire, 1813 Marsh Road, Suite A, Wilmington, Delaware 19801. Michael C. Heyden, Esquire, 1201 King Street, Wilmington, Delaware 19801. Attorneys for Defendant Otis Phillips.
SUPPLEMENTAL OPINION
John Downs, Esquire, Ipek Medford, Esquire, and Periann Doko, Esquire, Deputy Attorney Generals, Delaware Department of Justice, Wilmington, Delaware. Attorneys for the State of Delaware. Kevin J. O'Connell, Esquire, Raymond D. Armstrong, Esquire, and Misty A. Seemans, Esquire, Assistant Public Defenders, Public Defender's Office, Wilmington, Delaware. Attorneys for the Defendant. Anthony A. Figliola, Esquire, 1813 Marsh Road, Suite A, Wilmington, Delaware 19801. Michael C. Heyden, Esquire, 1201 King Street, Wilmington, Delaware 19801. Attorneys for Defendant Otis Phillips. SCOTT, J.
INTRODUCTION
Before the Court is the State's Motion to Exclude the Testimony of Jonathon H. Mack, Psy.D. The State's motion is brought in response to Defendant Jeffrey Phillips' ("Phillips") intent to offer the testimony of Jonathon H. Mack, Psy.D. ("Dr. Mack") as a defense expert in the guilt phase of this trial, to support a duress defense. The State and Defendant Otis Phillips objected to the admission of Dr. Mack's testimony on this issue in the guilt phase of this trial. At a prayer conference on November 14, 2014, the Court orally ruled to exclude Dr. Mack's report and testimony in the guilt phase of this trial on the issue of duress. Below is the Court's supplemental opinion on the admissibility of Dr. Mack's report and expert testimony as to Phillips' susceptibility to duress in the guilt phase of these trial proceedings. For the reasons set forth below, the State's Motion to Exclude the Testimony of Jonathon H. Mack, Psy.D. is GRANTED.
The defense originally indicated to the State that Dr. Mack would testify as an expert during the penalty phase of this case, if necessary. However, defense counsel then indicated during trial his intent to offer Dr. Mack's expert testimony in the guilt phase as well, as to Phillips' susceptibility to duress.
BACKGROUND
Mid-trial, defense counsel endeavors to introduce a duress defense for Phillips. However, defense counsel has presented that defense through a merely conclusory statement that
Based on the facts presented during the State's case-in-chief, there is evidence upon which the jury could conclude that the defendant was acting under duress at the time he went to Eden Park on July 8, 2012.As its sole asserted support for such defense, the defense seeks to introduce Dr. Mack as an expert witness in the guilt phase to testify only to the neuropsychological difficulties experienced by Phillips as a result of having a damaged brain. The defense indicated that Dr. Mack will testify that, as a result of these neuropsychological difficulties, Phillips is more susceptible to being pressured by others than one who does not suffer from these same neuropsychological difficulties.
Def. Response at ¶ 13.
Id.
Id.
The State has moved to exclude Dr. Mack's report and testimony on this issue from the guilt phase of these proceedings. The State asserts three grounds for the exclusion of Dr. Mack's testimony from the guilt phase: (1) Phillips' notice of Dr. Mack as an expert in the guilt phase comes mid-trial, in violation of the Court's discovery order, as well as Superior Court Criminal Rules 12.2(b) and 16(b)(1)(C); (2) Dr. Mack's testimony on this issue in the guilt phase is irrelevant and inadmissible under D.R.E. 403 because there is no evidence that Phillips was acting under duress; and (3) Phillips' statements that were relied upon by Dr. Mack in his report will create Bruton issues.
Defense counsel for co-defendant Otis Phillips joined the State in objecting to the admissibility of Dr. Mack's testimony on this issue in the guilt phase, on the basis that Jeffrey Phillips' statements that were relied upon by Dr. Mack in his report will create Bruton issues.
DISCUSSION
The Court tends to agree with the State's argument that Dr. Mack's testimony must be excluded, as defense counsel's notice of the intent to offer Dr. Mack's testimony and report grossly surpassed the discovery deadline imposed by the Court. However, the Court will not decide the admissibility of Dr. Mack's testimony and report in the guilt phase of this trial on procedural grounds. Furthermore, the Court does not reach the State and Defendant Otis Phillips' Bruton argument.
Under Delaware law, duress is a recognized affirmative defense available as a defense to criminal liability where "the defendant was coerced to do so by the use of, or a threat to use, force against the defendant's person or the person of another, which a reasonable person in the defendant's situation would have been unable to resist." There are several factors for the jury to consider in evaluating a duress defense, such as: the immediacy of the threat; the explicitness of the threat; the nature of the physical injury threatened; the time when the threat is to be carried out; the ability to escape from the coercer; and the coercer's presence, or absence at the time of the commission of the crime. At trial, the defendant must prove a duress defense, or any other affirmative defense, by a preponderance of the evidence. However, the defendant must present only some credible evidence to support a duress instruction to the jury, but without which the instruction cannot be justified. While this is a low threshold, the defendant must offer more than a mere conclusory assertion of duress.
11 Del. C. § 431. Moreover, § 431 provides
(b) The defense provided by subsection (a) of this section is unavailable if the defendant intentionally or recklessly placed himself or herself in a situation in which it was probable that the defendant would be subjected to duress.
Wonnum v. State, 942 A.2d 569, 572 (Del. 2007) (citing 11 Del. C. § 431).
See Wonnum, 942 A.2d at 574.
In Wonnum v. State, the court held that the trial court erred in excluding the expert's report, which contained a psychological diagnosis as well as an opinion as to why the defendant, or by inference any reasonable person similarly situated, would legitimately perceive the third party to be a threat. The court also found that a duress instruction should have been given to the jury because the defendant's testimony, as well as the excluded psychological report, provided some credible evidence to support a duress instruction.
Id. at 573.
Id. at 574.
The Court finds the Wonnum case is distinguishable from this case in two important respects: (1) some other evidence of duress was presented by the defendant in Wonnum in addition to the expert's psychological report, and (2) the expert's report in Wonnum also provided an opinion as to why the defendant was under duress at the time of the commission of the offense. In this case, Dr. Mack's report would be the only evidence even tangentially related to duress to be introduced at trial. Moreover, Dr. Mack's report offers no opinion as to whether Phillips was more acutely susceptible to duress, let alone whether Phillips was actually under duress at the time of the commission of the offense. Given these significant factual differences, the Court finds Wonnum distinguishable from this case.
Instead, the Court finds United States v. Eff more factually similar to this case. While the defense for which the defendant in Eff offered his expert's testimony was not duress, the Court finds that those facts are sufficiently similar to this case and that the principles in Eff should be similarly applied here.
524 F.3d 712 (5th Cir. 2008).
In Eff, the trial court had found that even if the defendant's experts had sufficiently established that his mental disorder constituted a "severe mental disease or defect," that evidence established only that the defendant may have had a diminished capacity to appreciate the nature and quality or wrongfulness of his actions, not that he was completely unable to appreciate such things, as required by applicable statute. Moreover, the trial court found that the defendant "did not present the testimony of these two experts as mere 'building blocks,' which would be tied in with other evidence to establish the defendant's inability to appreciate the nature and quality or wrongfulness of his actions." The court in Eff affirmed the trial court's exclusion of the defendant's expert's report. The court held that, given that the expert testimony could not support the defendant's asserted insanity defense, and was offered only to support such a defense, such testimony became irrelevant and unhelpful to the trier of fact.
Id. at 718.
Id. at 720.
Id. ("The testimony about Klinefelter Syndrome causing a severe mental defect might be admissible if there was other evidence to tie that mental defect into an inability (rather than reduced capacity) by [the defendant] to appreciate the wrongfulness of his acts."). See also Dixon, 185 F.3d 393, 406 (5th Cir. 1999); United States v. West, 962 F.2d 1243, 1248, 1250 (7th Cir. 1992) (concluding that the expert testimony supporting the defendant's claim of a severe mental defect was erroneously excluded because other evidence could establish that the defendant could not understand that his actions were wrong).
Applying the principles in Eff, in order to be relevant and admissible, Dr. Mack's report must at minimum provide some credible evidence to support Phillips' duress defense. In the absence of any other credible evidence to support a duress defense, Dr. Mack's report by itself is not relevant under D.R.E. 403. However, just as in Eff, Dr. Mack's report cannot be introduced to support Phillips' duress defense as the defense does not offer Dr. Mack's testimony in the guilt phase as a "mere building block" to be tied in with other evidence to establish that Phillips was under duress at the time of the offense.
See Eff, 524 F.3d at 720.
No evidence has been introduced at trial to suggest that Phillips was under duress at the time of the Eden Park shooting, nor has defense counsel offered any particularized specific evidence to support such a suggestion. There is nothing in the factual recitation of Dr. Mack's report that suggests Phillips was under duress at the time of the Eden Park shooting. Dr. Mack merely concludes that
See Dr. Mack's Report at 4-6.
Mr. Phillips' diseases of the mind/brain...predispose him to impulsive behavior, poor judgment, overreacting to stress, and susceptibility to being pressure by others, which would not be the case if he did not have, in particular, the executive frontal dysfunction as documented above.Moreover, Dr. Mack offers no opinion as to whether Phillips was under duress at the time of the Eden Park shooting or whether Phillips was subjected to any prior coercion. For these reasons, Dr. Mack's report and expert testimony is not relevant or helpful under D.R.E. 403 for the proffered purpose of supporting a duress defense for Phillips during the guilt phase of this trial. Furthermore, introduction of Dr. Mack's report and his testimony on the issue of Phillips' susceptibility to peer pressure would actually confuse and mislead the jury, the prejudice of which would substantially outweigh any probative value of the testimony and report.
Id. at 27-28. See Eff, 524 F.3d at 718 ("This evidence establishes only that Eff may have had a diminished capacity to appreciate the nature and quality or wrongfulness of his actions, not that he was completely unable to appreciate such things, as required by 18 U.S.C. § 17.").
See Eff, 524 F.3d at 720. --------
CONCLUSION
For the reasons set forth above, the State's Motion to Exclude the Testimony of Jonathon H. Mack, Psy.D. is GRANTED.
IT IS SO ORDERED.
/s/Calvin L . Scott
Judge Calvin L. Scott, Jr.