Phillips v. Commonwealth, No. 2005-CA-001151-MR (Ky. App. 4/20/2007), 2005-CA-001151-MR.
| Decision Date | 20 April 2007 |
| Docket Number | No. 2005-CA-001151-MR.,2005-CA-001151-MR. |
| Parties | John Edward PHILLIPS, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Julia K. Pearson, Assistant Public Advocate, Frankfort, Kentucky, Brief for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Matthew R. Krygiel, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee
Before: ABRAMSON, JUDGE; BUCKINGHAM AND KNOPF, SENIOR JUDGES.1
John Edward Phillips appeals from a judgment of the McCreary Circuit Court following a jury trial wherein he was convicted of two counts of first-degree assault and one count of first-degree wanton endangerment. The charges against Phillips arose as a result of a shootout in McCreary County on October 30, 2004. Pursuant to the jury's verdict, Phillips was sentenced to ten years in prison on each assault charge and one year in prison on the wanton endangerment charge. The court ordered the sentences to run concurrently, for a total sentence of ten years. We affirm in part and reverse in part and remand for a new trial.
At the time of the incident, Phillips was recently estranged from Fonda Clark after a 15-year relationship. Phillips and Clark had a 12-year-old daughter, Caroline. Clark began socializing with Greg Dobbs after the break-up and was at Dobbs's trailer home with Dobbs and his brothers, Jason and Richard, on the evening of October 30, 2004.
Phillips had been drinking with friends at another location earlier that evening and had expressed a desire to hurt Dobbs. Caroline was present with Phillips and his friends. Later that evening, instead of returning home with Caroline, Phillips drove with Caroline to the Dobbs trailer.
Different versions of the subsequent events were presented at trial. Phillips testified that he went to the Dobbs residence to talk to Clark about returning home. He stated that he did not initially exit his truck with his gun but rather that he grabbed it when he saw the Dobbs brothers through the doorway with their guns. When Clark ran out of the trailer, he pointed the gun at her and said that he "ought to shoot her." However, Phillips stated that he then pushed Clark away and turned to go back to his truck. According to Phillips, at that point he was shot in the left shoulder. He testified that he then started shooting randomly at the trailer while backing toward his truck in an effort to get away.
Clark testified that she ran outside when she heard Phillips's truck. She testified that Phillips had a gun and that he said he "ought to shoot her." She further testified that she did not know who started the shooting. However, Clark gave a written statement the night of the shooting wherein she stated that she was trying to get Caroline to safety but that Phillips pushed her away and opened fire into the trailer. Clark then related that shots were fired from the trailer in return of shots fired by Phillips.
Caroline's testimony was essentially the same as Clark's. She testified that she tried to talk Phillips out of going to the Dobbs home because she was concerned that something might happen and that she tried to keep him from exiting his truck. She also testified that Phillips exited his truck with his gun in the back waist of his pants. She stated that she did not know who started shooting.
Caroline's written statement to the police was also introduced into evidence. Therein, she stated that Phillips had threatened earlier in the evening to hurt Dobbs. She also stated in her statement that Phillips said he was only going to pull into the driveway and honk the horn but that he exited the truck with his gun and walked toward the home. Further, Caroline stated in her statement that Phillips started shooting, and that after Phillips was shot, she and Clark yelled at the Dobbs brothers to stop shooting.
Greg Dobbs testified that Phillips exited his truck with a gun in one hand and holding Caroline by the arm with the other. Greg, Richard, and Jason Dobbs were near the front door of the trailer, and there was a loaded shotgun on the loveseat next to the door. Dobbs related that Phillips yelled for him and Clark to come outside and threatened to kill him and shoot Caroline if Clark did not exit the trailer home. Dobbs further stated that when Clark went outside, Phillips threatened to shoot her.
Dobbs further related that after Phillips argued with Clark in the yard, Phillips shoved her aside and began firing at the trailer. According to Dobbs, he was shot immediately. Richard then retreated to a back bedroom to retrieve a revolver. While doing so, he was shot but was able to return to the front door where he returned fire. Greg testified that Jason grabbed the shotgun from Greg, who had been shot first, and fired at Phillips. Clark yelled for the Dobbs brothers to stop shooting because Phillips had been shot. Richard's and Jason's testimony supported Greg's version of events.
The testimony was undisputed that Phillips was shot in the shoulder, Greg was shot twice in the torso and once in the back, and Richard was shot once in the sternum. When the shooting stopped, Clark and Caroline drove Phillips to the Wayne County Hospital. Jason drove Greg and Richard to their parents' house nearby and then to Richard's house. Richard's wife then drove them to the hospital. All three men were subsequently airlifted to hospitals better equipped to deal with their injuries.
Forensic evidence was introduced at trial, including a videotape and photos taken at the scene. The evidence showed the following: several holes in the siding of the trailer; broken glass in the trailer's storm door, with glass on the inside and the outside of the door; several holes in the front windshield of Phillips's truck; the rear window was broken out of Phillips's truck with glass in the bed and the seat of the truck; there was blood in the trailer and on the top steps of the trailer, with large blood stains inside the door; a large area of blood located near the door of Phillips's truck; and several shell casings matching Phillips's gun located near the front steps of the home.
Phillips was indicted and charged with two counts of criminal attempt to commit murder in violation of Kentucky Revised Statutes (KRS) 506.010 and KRS 507.020 and one count of first-degree wanton endangerment in violation of KRS 508.060. The jury was instructed on two counts of criminal attempt to commit murder, as well as the lesser-included offense of first-degree assault and assault under EED,2 and on first-degree wanton endangerment as to Clark, Caroline, and Jason Dobbs.
The jury found Phillips guilty of two counts of first-degree assault and one count of first-degree wanton endangerment. The court sentenced him to the jury-recommended ten years on each assault count and one year on the wanton endangerment count, to be served concurrently. Following the court's denial of Phillips's motion for a judgment notwithstanding the verdict, his appeal herein followed.
Phillips first argues that the court erred in instructing the jury. The Commonwealth responds that the issues related to the instructions were unpreserved for appellate review because Phillips failed to object to the instructions given by the trial court.
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
Kentucky Rules of Criminal Procedure (RCr) 9.54.
Trial counsel first objected to the giving of any instructions but then tendered instructions on self-defense, second-degree assault, and second-degree wanton endangerment, in addition to instructions on assault under EED and fourth-degree assault.3 While trial counsel's objections to the instructions were somewhat confusing, by tendering the proposed instructions and making a contemporaneous objection to the instructions given by the trial court, we believe the instruction issues were adequately preserved for appellate review.
Phillips argues that it was error for the trial court to decline to instruct the jury on second-degree assault.
[i]t is the duty of the trial judge to prepare and give instructions on the whole law of the case ... [including] instructions applicable to every state of the case deducible or supported to any extent by the testimony; and although a defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions, the trial court should instruct as to lesser-included offenses only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.
Rogers v. Commonwealth, 86 S.W.3d 29, 43 (Ky. 2002).
A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
A person is guilty of assault in the second degree when:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous...
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