948 F.2d 241 (6th Cir. 1991), 90-6506, United States v. Phillip

Docket Nº90-6506.
Citation948 F.2d 241
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Anthony Roderick PHILLIP, Defendant-Appellant.
Case DateOctober 30, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 241

948 F.2d 241 (6th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony Roderick PHILLIP, Defendant-Appellant.

No. 90-6506.

United States Court of Appeals, Sixth Circuit

October 30, 1991

Argued May 23, 1991.

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Joseph M. Whittle, U.S. Atty., Steven W. Wilson, Sp. Asst., Louis A. Chiarella (argued and briefed), Office of the U.S. Atty., Louisville, Ky., for plaintiff-appellee.

Paul Musselwhite (argued and briefed), Radcliff, Ky., for defendant-appellant.

Before MERRITT, Chief Judge, and GUY and RYAN, Circuit Judges.

RYAN, Circuit Judge.

Defendant Anthony Phillip appeals his conviction and sentence for the second-degree murder of his four-year-old son Jamal, and for committing and permitting first-degree criminal child abuse.

The issues before us on appeal are as follows:

  1. Whether the district court erred in admitting the testimony of criminal investigators who questioned Phillip without informing him of his Miranda rights;

  2. Whether the district court abused its discretion in admitting allegedly irrelevant and unduly prejudicial testimony concerning bloodstains at the crime scene;

  3. Whether the district court violated Phillip's due process rights by not allowing discovery of a videotape made by the prosecution;

  4. Whether the district court erred in failing to instruct the jury with respect to a lesser included offense;

  5. Whether the district court's fact-finding that Phillip failed to accept responsibility for his crimes is clearly erroneous; and

  6. Whether the district court erred in departing upward from the sentencing guidelines range.

    Perceiving no error or abuse of discretion in the district court's rulings, findings, and jury instructions, we affirm.

    I.

    Anthony Phillip, a civilian employee of the United States Army, resided with his wife Gail, two-year-old daughter Cagney, and six-year-old son Roderick on a federal military reservation in Fort Knox, Kentucky. Jamal, Phillip's son by another woman, came to live with the family about two months before the child's death. According to Gail's testimony, Phillip routinely disciplined all of the children by striking them with a leather belt designated for that purpose. Soon after Jamal's arrival, Phillip began beating him for infractions such as putting his shoes and house slippers on the wrong feet, putting his pants on incorrectly, failing to replace his toothbrush on the rack, spending too much time in the shower or bathroom, failing to correctly answer questions, speaking in his mother's dialect, eating too quickly or too slowly, bed-wetting, displaying poor table manners, and refusing to say "Good night. I love you" to Phillip before bedtime. Phillip struck Jamal on many different body areas, including his arms, legs, back, buttocks, and face.

    Phillip sometimes beat Jamal before leaving for work at 6:30 in the morning, as well as during lunch breaks; however, most beatings occurred in the evening, with an average of two to three beatings per day

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    for Jamal. Phillip struck Jamal an average of five times during a hand beating and inflicted ten lashes during a beating with the belt. The beatings resulted in numerous bruises and scars over much of Jamal's body. Gail also spanked or beat the child occasionally. Phillip remarked that he would stop beating Jamal if only the boy would follow instructions. Phillip sometimes asked six-year-old Roderick whether Jamal should be beaten.

    Phillip believed that Jamal was "too fat," so he assigned him more exercises than he assigned the other children. Because of Jamal's bed-wetting, which first occurred after Jamal began living with the Phillips, Phillip directed him to sleep on the floor in the basement. While Phillip generally had difficulty coping with Jamal, he did not wish to return the child to his mother in his battered condition.

    Four to six weeks after Jamal arrived, Phillip left his bedroom one evening to see whether Jamal had wet his bed. Later Gail noticed that Jamal had "two abrasions or bruises where just the top layer of skin is gone and you have that whitish pink area on his behind." Gail thought Jamal looked "out of it," but Phillip reassured her after verifying that Jamal could recall his own name and how many fingers he had. Soon thereafter, Jamal became ill, exhibiting lethargy and extreme thirst, and the injuries on his buttocks appeared infected. In Gail's words, "[i]t progressed to where it became sores and then an open wound." For a while Jamal could consume only liquid foods. 1 An expert witness testified that such wounds and symptoms are consistent with thermal or caustic injuries. After these wounds were inflicted, Jamal began walking slowly, "almost like a snail's pace." Fearing charges of child abuse, the Phillips decided not to consult a physician, although they did discuss the possibility of telling any concerned health-care workers that Jamal was already battered when they received him from his mother.

    On the evening of the child's death, Phillip arrived home about six o'clock, and the family began eating dinner. Gail attempted to give Jamal a plate of regular food, but Phillip insisted that Jamal receive only a vegetable puree that Phillip blended himself. Later, Gail, Jamal, and Phillip were in the basement. Phillip gave Jamal an order, but Jamal just stared at Phillip, prompting Phillip to shake him. Phillip went upstairs to the kitchen while Gail and Jamal remained in the basement and Gail did the laundry. Phillip struck Roderick with the belt, apparently because Roderick had allowed Cagney to sit on the kitchen counter and play with a knife. Phillip hit Cagney as well.

    Then Gail sent Jamal upstairs with some lint to be discarded in a garbage can. According to Gail, after she turned on the dryer, "I was about to go rewash my husband's sleeping bag, and just as I was about to pick it up and go on and do what I was going to do with it, I heard a little gasp or shriek, a thud and then Jamal came on down the stairs." Jamal "slinked down" on his back without somersaulting according to Gail, and she saw Phillip at the top of the stairs with the belt draped over his shoulder. Coming down the stairs, Phillip instructed, "Leave him alone, he will get up by himself." When Jamal remained limp, Phillip splashed cold water on his face and attempted cardiopulmonary resuscitation (CPR). Phillip then took Jamal to Ireland Army Hospital, where he later died.

    A grand jury charged Phillip with murder in the second degree, in violation of 18 U.S.C. § 1111, and committing and permitting first-degree criminal abuse, in violation of 18 U.S.C. § 13 (Assimilative Crimes Act) and Ky.Rev.Stat.Ann. § 508.100. Gail Phillips, whom the grand jury indicted on the same charges, struck an agreement with the government under which she pleaded guilty to criminal abuse, signed a stipulation of facts, and testified as a government witness at her husband's trial. Testifying at his trial, Phillip generally corroborated his wife's testimony establishing a pattern of severe child abuse, but he

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    denied responsibility for Jamal's fatal injuries and fall. According to Phillip, he just heard a sound and turned around to discover that Jamal had fallen down the stairs. The government's theory is that Jamal died of injuries which Phillip inflicted just prior to Jamal's fall.

    The physician performing Jamal's autopsy testified that he observed "healed, healing and recent injury to almost all body surfaces." The physician elaborated:

    The injuries were healed in which the skin had scarred....

    Some were healing.... [S]car formation was beginning....

    Some of the wounds on other body surfaces, however, were recent. They were associated with contusions, bruising of the skin. They were associated with lacerations or tears of the mucus membranes of the mouth.

    Additionally, there were a series of ulcers present on multiple body sites involving the skin. Two large, deep skin ulcers were present, one on each buttock.

    Additionally, I saw evidence of injuries that on the skin are consistent with the application of a belt. There were whipping injuries to multiple body sites.

    The subcutaneous tissues showed evidence of recent bleeding into the subcutaneous fat as a result of beating and additionally showed areas of resolving subcutaneous injury.... There was an ecchymosis, a contusion, a black eye of one of the eyes. There was associated hemorrhage under the white matter of one of the eyes.

    ....

    I measured and described a multiplicity of injuries on multiple body surfaces.

    The physician concluded that Jamal died from an acute subdural hematoma caused by blunt force cranial-facial injury, or a "beating." In the witness' opinion, "the bruises on the scalp and the face of the child were inflicted immediately prior to the development of the subdural hematoma. They were responsible for the tearing of the vessels." The physician concluded that Jamal died by homicide since the fatal injuries were not of the type resulting from a fall down the stairs.

    The jury found Phillip guilty on all counts. The district court sentenced him to 30 years' confinement for the murder conviction, 10 years' confinement for committing criminal abuse, and 10 years' confinement for permitting criminal abuse, with the three sentences to run concurrently. The district court also imposed 5 years' supervised release, restitution, and participation in an approved mental health program.

    II.

    A.

    Admissibility of Statements Made to Investigators

    After Phillip took Jamal to the army hospital emergency room, hospital staff contacted the United States Army Criminal Investigation Division (CID), which sent agents to the hospital to question Phillip. CID agents routinely investigate serious crimes and accidental deaths occurring on government lands. Special Agent Ken Eggers testified that...

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