Phillips v. Commonwealth, 2017-CA-002028-MR
| Decision Date | 22 March 2019 |
| Docket Number | NO. 2017-CA-002028-MR,2017-CA-002028-MR |
| Parties | DONALD R. PHILLIPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM LESLIE CIRCUIT COURT
The facts of this case stem from Phillips's conviction following a jury trial in Leslie Circuit Court on two counts of murder. Osa Lee Maggard and Geneva Young were shot to death on the porch of Maggard's home in Leslie County during the early morning hours of July 22, 1999. The only witness to the event was Maggard's neighbor, Kathy Davidson, who also happened to be Phillips's stepdaughter. Kathy did not see the incident which led to the deaths of Maggard and Young; instead, she could only testify as to what she heard outside her home. Nonetheless, her testimony was central to the Commonwealth's case against Phillips. On the evening in question, Kathy heard the distinctive sound of the muffler on her mother's car as it traveled up the driveway she shared with Maggard. She then overheard a voice she recognized as belonging to Phillips conversing with Maggard before gunshots rang out. Neighbors discovered the bodies of Maggard and Young shortly thereafter. The following day, police arrested Phillips in Indiana for the double homicide.
Phillips's jury trial began on November 8, 2000, and lasted approximately one week. The Commonwealth sought the death penalty. During voir dire, the Commonwealth and the defense asked the panel if anyone knew any of the witnesses involved in the case, including Kathy Davidson. None of the potential jurors responded to the question or otherwise indicated that they knew aKathy Davidson. Unfortunately, the Commonwealth and the defense neglected to mention to the venire that Davidson was Kathy's married name, and she had previously been known as Kathy Couch. This apparent oversight would later form the basis of the sole issue on appeal in this case.
The jury convicted Phillips of two counts of capital murder2 and fixed his sentence at life without the possibility of parole for twenty-five years.3 The circuit court entered final judgment and sentence in accordance with the jury's recommendation on January 4, 2001. The Supreme Court of Kentucky affirmed Phillips's conviction on direct appeal in an unpublished memorandum opinion. Phillips v. Commonwealth, 2001-SC-000091-MR (Ky. Apr. 25, 2002).4 Phillips subsequently filed a petition for rehearing, which the Supreme Court denied in an order entered August 23, 2002.
On November 1, 2002, acting without the assistance of counsel, Phillips timely moved the circuit court to vacate, set aside, or correct his sentence pursuant to RCr 11.42 based on ineffective assistance of trial counsel. Phillipsasserted numerous claims of ineffective assistance in this motion.5 The circuit court appointed the Department of Public Advocacy (DPA) to assist Phillips with his motion in an order entered March 3, 2003. An investigator working for DPA subsequently found information indicating one of the jurors, Suzette Napier, had attended high school with Kathy. On September 22, 2005, Phillips's counsel filed a supplemental RCr 11.42 motion on Phillips's behalf, seeking relief on the additional claim that Phillips was denied a fair trial based on Napier's failure to disclose her acquaintance with Kathy Davidson during voir dire.
The circuit court held two evidentiary hearings on Phillips's RCr 11.42 motions. In the first hearing, held March 3, 2006, Juror Napier admitted she knew Kathy Couch from grade school and high school but did not recognize her married name of Kathy Davidson when the Commonwealth and the defense asked about her during voir dire. When asked why she did not bring the matter to the court's attention when she saw Kathy, Napier testified she simply "did not knowwhat to do about it." Juror Napier also testified she had no bias against Kathy and, when questioned by Phillips's counsel, stated she did not believe Kathy was not reliable. Counsel asked Juror Napier if she believed Kathy was a truthful person, and Juror Napier generally agreed with this proposition. Kathy also testified during the evidentiary hearing. She explained that she went to school with Juror Napier and the two had played basketball on the same grade school team. Kathy described the nature of her childhood relationship with Juror Napier in simple terms: "We were friends for a while." There was no indication at the hearing that the two remained friends after school as Juror Napier did not know Kathy by her married name, Davidson.
At the conclusion of the second evidentiary hearing on July 7, 2006, the circuit court commented that it was "not much impressed" with the juror issue, but that it would review the matter and issue a ruling. However, for unknown reasons, the RCr 11.42 motion languished in circuit court without any further action. This led Phillips to petition this Court for a writ of mandamus directing the circuit court to rule on the pending RCr 11.42 motion. On April 25, 2008, we ordered the circuit court to fully adjudicate the motion within sixty days. By this point, Phillips's initial motion had been pending in circuit court for almost six years. A month later, the circuit court entered an interlocutory order on June 24, 2008, which denied Phillips's motion as to all issues except that of trial counsel'sfailure to offer mitigating evidence during the penalty phase. On this issue, the circuit court ordered Phillips to produce any evidence he would have offered during the penalty phase of his trial within sixty days.
As ordered, Phillips submitted his penalty phase information to the circuit court, but afterward he elected to petition the United States District Court for the Eastern District of Kentucky for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.6 The federal district court ordered a stay of all state court proceedings while the federal courts reviewed Phillips's claims.7 The federal district court denied Phillips's petition on all issues, including the juror bias issue, and declined to issue a 28 U.S.C. § 2253(c)(2) certificate of appealability8 as to any issue. Phillips v. Stovall, CV 08-368-GFVT, 2014 WL 12695435, at *11 (E.D. Ky. Dec. 3, 2014). Phillips appealed to the Sixth Circuit Court of Appeals. The SixthCircuit granted Phillips a certificate of appealability as to his claim of ineffective assistance of trial counsel concerning the lack of a defense at sentencing, but denied him the right to challenge his other claims on appeal. Following review of the sentencing issue claim, the Sixth Circuit granted Phillips a conditional writ of habeas corpus based on trial counsel's ineffective assistance during the penalty phase, "requiring the Commonwealth of Kentucky to resentence [Phillips] within [ninety] days or release him." Phillips v. White, 851 F.3d 567, 583 (6th Cir. 2017).
As a result of the Sixth Circuit decision, Phillips's case returned to the Kentucky court system in 2017. A new penalty phase took place, in which a different jury heard evidence related solely to sentencing. The jury returned a verdict recommending the same sentence: life without the possibility of parole for twenty-five years. At his sentencing hearing, Phillips renewed his previous RCr 11.42 motion before the Leslie Circuit Court. Judge Maricle, who had presided over Phillips's first trial and his initial RCr 11.42 motions, was no longer on the bench. Instead, Phillips appeared in front of Judge House, who responded to Phillips's request as follows:
From what I have read on it from Judge Maricle and the federal judge in London, they found there was no grounds for a new trial based on any juror problem. So the motion to renew the old 11.42 will now be denied. . . . Order to be entered.
The circuit court entered its formal sentence and judgment the same day as the sentencing hearing, September 6, 2017. The circuit court formally denied Phillips's renewed RCr 11.42 motion by a written order entered October 4, 2017. This appeal followed.
For his sole issue on appeal, Phillips contends the trial court erred in denying his renewed motion for relief under RCr 11.42, on the basis of juror bias. He argues Napier, a juror in his case, had a close "situational relationship" with Kathy Davidson which would have been sufficient to support a challenge for cause on voir dire. He also asserts Juror Napier intentionally concealed this fact from the trial court. Consequently, Phillips argues we must presume Juror Napier was biased, entitling him to a new trial. We disagree.
As an initial matter, the Commonwealth asserts that Phillips waived further state court review when he elected to file a habeas petition prior to exhaustion of his state court remedies and allowed the federal court to review his juror bias claim. We disagree. Early on, Phillips sought relief in state court by filing an RCr 11.42 motion in the Leslie Circuit Court. For unknown reasons, the Leslie Circuit Court failed to issue a final and appealable order on his motion for years, even after it was ordered to do so by this Court. All the while, Phillips sat in prison believing he was being held in violation of both state and federal law.
Phillips filed his RCr 11.42 motion in state court, participated in hearings on his motion, and waited for years for a ruling from the Leslie Circuit Court. When none was forthcoming, Phillips obtained mandamus relief from this Court. Still, he did not receive a decision on his claim from the Leslie Circuit Court. Understandably, Phillips was likely concerned that it could be many more years before he fully exhausted his state...
To continue reading
Request your trial