Phillips v. State

• Decision Date: 01 August 2018
• Docket Number: A18A1180
• Citation: 347 Ga.App. 147,817 S.E.2d 711
• Court: Georgia Court of Appeals
• Parties: PHILLIPS v. The STATE.

347 Ga.App. 147

817 S.E.2d 711

PHILLIPS

v.The STATE.

A18A1180

Court of Appeals of Georgia.

August 1, 2018

Gerard B. Kleinrock, for appellant.

Sherry Boston, District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

Barnes, Presiding Judge.

A jury found Tatiana Chimere Phillips guilty of family violence aggravated assault and reckless conduct based on evidence that she shot her boyfriend, and the trial court denied her motion for new trial. On appeal, Phillips contends that the trial court committed reversible error by excluding, as a discovery sanction, certain jail medical records that would have shown that she received significant injuries during the shooting incident and thus would have corroborated her claim of self-defense. As explained below, because there was no showing that the discovery violation was done in bad faith, the trial court abused its discretion in imposing the harsh sanction of excluding the jail medical records. Furthermore, we cannot say that the exclusion of the records was harmless under the circumstances of this case. Accordingly, we reverse Phillips's convictions and remand the case for a new trial.¹

The Shooting Incident. "Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." Anthony v. State , 317 Ga. App. 807, 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that Phillips and her longtime boyfriend lived together with their children in DeKalb County, Georgia. Their relationship was sometimes violent, and in a prior incident, Phillips had stabbed her boyfriend during a fight.

During the early morning hours on the day of the shooting incident, Phillips and her boyfriend were driving home from a club when they got into a physical altercation over whether Phillips had been speaking with another man on her cell phone. Later that morning, after Phillips and her boyfriend were back home with their children, Phillips shot her boyfriend, paralyzing him from the waist down. Phillips called 911 after the shooting. She hid the handgun underneath a mattress before the police arrived.

The Police Investigation. The responding police officers found Phillips's boyfriend lying face down in the front yard, approximately five to ten feet from the front door, with his head facing toward the street. He had been shot in the back. The police spoke with a driver who was passing by Phillips's home when she heard the gunshot. The driver told the police that upon hearing the shot, she turned and looked toward the home, where she saw Phillips's boyfriend collapsing on the ground in the front yard "right next" to the porch and Phillips standing in the front doorway. After interviewing the driver, the police secured a search warrant for Phillips's house, where they found the loaded nine millimeter handgun concealed under the mattress. The police also found a nine millimeter shell casing in the living room.

Both Phillips and her boyfriend initially gave false accounts of the shooting. Phillips's boyfriend told the responding officers and detectives at the hospital that he had been shot by a male whom he did not know. Phillips first told the 911 operator that her boyfriend had been cleaning a gun when it went off, but she then told the operator that she was in the bedroom when someone came to the home and shot her boyfriend. Phillips told the responding officers and detectives that she had been asleep in the bedroom when she was awakened by the gunshot, after which she went outside and saw her boyfriend lying on the ground. However, after detectives told Phillips that her account was inconsistent with the evidence that the police had gathered at the scene, Phillips admitted that she had fired the gun in the direction of her boyfriend as he was running toward the front door after physically assaulting her. Phillips claimed that she had not intended to hit him. Phillips also spoke with her boyfriend's cousin on the day of the shooting and admitted that she shot her boyfriend, but she gave no reason for why she did so.

Circumstances Surrounding the Shooting. Phillips was indicted and tried before a jury for family violence aggravated assault and aggravated battery. At trial, the State's theory of the case was that Phillips shot her boyfriend in an act of revenge as he was attempting to leave their home after they had stopped fighting. In support of the State's case, the boyfriend testified that although he and Phillips had physically fought in the car that morning over her cell phone call, after they returned home, the fighting had stopped. According to the boyfriend, Phillips then came into the bedroom unprovoked with a gun in her hand and told him that "[s]he was getting ready to shoot [him]." The boyfriend testified that he was frightened for his life, headed for the front door, and got about ten steps out of the house when Phillips shot him in the back.

In contrast, the defense's theory of the case was that Phillips fired the gun as a warning shot in an act of self-defense as her boyfriend was violently attacking her near the front door. Phillips testified that when they returned home that morning after the fight in the car, her boyfriend began arguing with her again about the phone call. According to Phillips, her boyfriend became enraged and began punching her, choking her, and pulling out her hair, leading her to retrieve the gun because she was scared for her life. Phillips testified that her boyfriend continued to hit her after she got the gun, and that she tried to go out the front door, but that her boyfriend pulled her back by the hair. Phillips further testified that she then fired the gun as she was struggling with her boyfriend as he attacked her at the open front doorway, and that she had intended to fire a warning shot to scare her boyfriend. Her boyfriend jumped away from the front porch when she fired the gun and the bullet struck him as he jumped, Phillips maintained.

The Dispute Over Visible Injuries. One of the issues at trial was whether Phillips had any visible injuries requiring medical treatment that would corroborate her contention that she was violently attacked by her boyfriend when she fired the gun. Phillips's boyfriend testified that while Phillips told him that she was bruised and that her nose was broken, he did not see any bruising or injuries on Phillips that day. The responding officers testified that they did not see any injuries on Phillips and that she did not complain of any injuries or request medical treatment. The 911 operator testified that Phillips did not indicate that she had any physical injuries that needed treatment, and a paramedic testified that Phillips's boyfriend was the only person she medically treated at the scene. Additionally, the State introduced a photograph taken of Phillips when she was booked into the jail after her arrest to show that she had no facial injuries.

In contrast, Phillips testified that she had scratches and bruises all over her body and a bloody and broken nose after her boyfriend attacked her, requiring her to obtain medical treatment at the jail. Phillips also testified that her boyfriend had pulled out several of her hair braids, and that the loose braids could be seen in photographs of the crime scene introduced by the defense. According to Phillips, she had been placed in the jail infirmary due to her injuries and received medical treatment there. Phillips further asserted that her braids obscured her injuries in her initial booking photograph. The defense also introduced into evidence a supplemental police report, which had been prepared by the now-deceased lead detective on the date of the shooting. The report included statements by the detective that he could see scrapes on Phillips's nose, face, and cheek, a lump on her forehead underneath her hair, and bruises on her face and neck, and the report stated that a crime scene investigator had arrived at the police station to photograph the injuries.² Additionally, the defense introduced into evidence the supporting affidavit for an arrest warrant for the boyfriend that had been submitted by the lead detective that included allegations that the boyfriend had left visible bruises on Phillips by punching and beating her in the face, as well as the arrest warrant that was issued by a magistrate but never served on the boyfriend.

The Excluded Jail Medical Records. During the defense's case-in-chief, defense counsel for the first time obtained 17 pages of jail medical records reflecting that Phillips was housed in the jail infirmary for several days after her arrest. Defense counsel sought to introduce the medical records into evidence through the jail's custodian of records and described in a proffer what was contained in them, including observations by medical staff of a large hematoma on Phillips's forehead, bruising around her eye, and swelling and bleeding from her "out-of-slope" nose. The medical records also stated that an x-ray had been requested "because of a blunt trauma to the nose and forehead contusion," and the records contained a description by Phillips of the physical altercation that led to her injuries. Defense counsel stated that he had repeatedly discussed his efforts to obtain the jail medical records with the prosecutor originally assigned to the case,³ and the State received the records at the same time as the defense.

The State objected to the introduction of the jail medical records, contending that the defense had opted into reciprocal discovery but had failed to timely produce the records under those discovery procedures. After hearing from defense counsel and the prosecutor, the trial court granted the State's motion, excluding the records as a discovery sanction, noting that defense counsel could have asked the court for assistance in securing the records in a more timely manner rather than announcing ready for trial. Later, during...