Phillips v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: LUMPKIN, Vice Presiding
• Citation: Phillips v. State, 1999 OK CR 38, 989 P.2d 1017 (Okla. Crim. App. 1999)
• Decision Date: 15 October 1999
• Docket Number: No. F-97-695.,F-97-695.
• Parties: Ernest Eugene PHILLIPS Jr., Appellant, v. STATE of Oklahoma, Appellee.

989 P.2d 1017

1999 OK CR 38

Ernest Eugene PHILLIPS Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-695.

Court of Criminal Appeals of Oklahoma.

October 15, 1999.

Rehearing Denied December 14, 1999.

Paul Faulk, Indigent Defense System, Norman, Jody Minter, III, Madill, James Thornley, District Attorney, Greg Jenkins, Assistant District Attorney, Durant, Counsel for the State at trial.

Cindy Brown Danner, Kristi L. Christopher, Indigent Defense System, Norman, Counsel for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Okla., William L. Humes, Assistant Attorney General, Oklahoma City, Counsel for the State on appeal.

OPINION

LUMPKIN, Vice Presiding Judge:

s 1 Appellant Ernest Eugene Phillips, Jr., was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S. 1991, § 701.7), Case No. CRF-96-284, in the District Court of Bryan County. The jury found the existence of two (2) aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.¹

s 2 Appellant was convicted of the premeditated murder of seventeen (17) year old Jason McFail. On July 17, 1996, Brian Ezell and his parents traveled to Sherman, Texas, to pick up McFail so he could return with them to their home in Durant and visit for a few days. During the evening hours of July 19, Ezell and McFail ate dinner, visited with Ezell's parents and went to church. The young men then picked up Ezell's cousin, Shannon Hearn, and went to get gas for the car. On the way, they saw some friends of Ezell's parked at the Love's Country Store. Ezell drove over to the Love's and all three young men exited the car to visit with Davida Clark and Christina Chambers. As the young people visited, they heard Appellant shouting obscenities as he approached them. Appellant shouted "you niggers need to get your asses the hell out of town" and "run nigger run."

s 3 Appellant first approached McFail. McFail backed up, asked Appellant to leave him alone and said he was leaving the area. Appellant pushed McFail in the chest and onto Ezell's car. Appellant, still repeating the obscenities, next approached Ezell and pushed him up against Chambers' nearby car. Ezell got up and backed away from Appellant and in so doing observed a knife in Appellant's hand. Ezell walked around the corner to the nearby apartment of some friends to get help. When he returned he saw Appellant chasing Hearn. Ezell, who described Hearn as "kind of slow" mentally, shouted at him to run toward the apartment. Ezell escorted Hearn into the safety of the apartment s 4 When Ezell returned to the scene, Appellant had entered the convenience store and asked for a light for his cigarette. He continued his reign of obscenities, directing them at the store clerks. One of the clerks told Appellant to leave and threatened to call the police. Appellant shouted "nigger lover" and lunged at the clerk. Appellant then turned around and left the store.

s 5 Meanwhile, McFail had approached Clark and said he thought he had been stabbed. When he lifted his shirt, blood poured from his chest each time his heart beat. He collapsed on Clark who laid him on the ground. McFail was conscious, but unable to speak. He could only look at Clark and cry. As Appellant left the convenience store, he walked past the gravely injured McFail lying on the ground and said "that's right nigger", "how do you like that you fucking nigger" and "feels good don't it."

s 6 The first police officers on the scene found McFail conscious and attempted to question him, but he could only gasp for air. While officers attempted to question McFail, he took a big breath and closed his eyes. Officers were unable to find a pulse. The ambulance arrived soon thereafter, but McFail never responded to any life saving procedures and became the victim of this horrific, senseless act of violence.

s 7 Upon leaving the convenience store, Appellant headed for a nearby bar. In talking with the bartender he asked her what she would do if she had done something really bad. Appellant then commented he would turn himself in to the police the next day. That next day, July 20, 1996, Appellant was arrested at his brother's home outside of Blue, Oklahoma. Once in custody, Appellant told police he had been working in Louisiana and had been in Durant only 3 or 4 days. He denied any involvement in the stabbing, stating he had been with friends at various bars the evening of July 19.

s 8 Appellant raises twenty (20) propositions of error in his appeal². These propositions will be addressed in the order in which they arose at trial.

PRE-TRIAL ISSUES

s 9 Appellant contends in his tenth assignment of error the trial court erred in determining there was no doubt as to his competency to stand trial. Appellant argues sufficient evidence was presented to establish a doubt as to his competency and the trial court's failure to order a competency evaluation constituted structural error requiring reversal of his conviction.

s 10 In Gilbert v. State, 951 P.2d 98, 103-104 (Okl.Cr.1997), cert. denied, ___ U.S. ___, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998) we set forth the law regarding a defendant's competency to stand trial. We stated:

An accused is presumed to be competent to stand trial and has the burden of proving his incompetence. Bryson v. State, 876 P.2d 240, 249 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995). If the defendant makes a threshold showing that he is incompetent by the filing of a proper application, the court must hold a hearing to examine the application. Cargle v. State, 909 P.2d 806, 815 (Okl.Cr.1995), cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). The test to be used at that hearing is whether the accused has sufficient ability to consult with his lawyer and has a rational as well as actual understanding of the proceedings against him. Bryson, 876 P.2d at 249. The determination of whether a sufficient doubt has been raised regarding a defendant's competency is left to the trial judge. Id. Such determination is based upon the particular facts and circumstances of each case. Id. The trial court is not required to give controlling effect to the opinions of experts, but may rely on the opinion of lay witnesses and the court's own observations of the defendant. Id., Cooper v. State, 889 P.2d 293, 304 (Okl.Cr.1995), overruled on other grounds, Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).

s 11 Addressing the term "doubt" (as used in both competency and sanity determinations), this Court relied on Reynolds v. State, 575 P.2d 628 (Okl.Cr.1978), as quoted in Cargle v. State, 909 P.2d 806, 815 (Okl.Cr. 1995),cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996) and stated:

It is well-settled in Oklahoma that the doubt referred to in the statute is that doubt which must arise in the mind of the trial court. The trial court may look to the source of the information and motive in determining whether there is doubt which would justify a sanity hearing, and the existence of a doubt as to defendant's sanity must arise from facts of a substantial nature. There must exist reasons to believe that the defendant's claim of insanity is genuine and not simulated to delay justice, and the finding of the trial court will not be disturbed on appeal unless a clear abuse of discretion is shown.

909 P.2d at 815.

s 12 Pursuant to 22 O.S.1991, § 1175.3, Appellant filed a Motion for Determination of Competency based upon the allegation a psychotic disorder had rendered him incompetent to assist counsel.³ Attached to the application were affidavits from Dr. Philip Murphy and Dr. J.R. Smith who had examined Appellant in March 1997 and determined that he was not competent to stand trial because he was unable to assist counsel. At an April 11, 1997, hearing on Appellant's motion, it was stipulated that if the doctors were to testify they would testify consistent with their affidavits.

s 13 Appellant also presented the testimony of Karen Billing, an investigator with the Oklahoma Indigent Defense System (OIDS) and Michael Johns, a registered nurse and volunteer investigator at OIDS. Ms. Billing testified that in her capacity as an investigator she had visited with Appellant several times. She stated that during the first few visits "he seemed okay" and that his defense team believed he was competent to stand trial. However, as his case moved along through the court system and as he was pressed by his defense team for further information concerning the crime, communication with him became difficult and he became increasingly agitated. Ms. Billing stated that at a hearing held approximately one week earlier, Appellant "seemed to do okay during the hearing". However, during a recess in which defense counsel questioned Appellant about certain details of the offense, he became extremely agitated and was unable to concentrate and focus on the matter at hand. In her opinion, Appellant was "very psychotic" at the time. She testified that defense counsel had discussed a defense of second degree murder, but they felt that Appellant's inability to accurately recall facts of the murder prevented such a defense. She said Appellant understood the charges against him, but that he was hostile and belligerent towards defense counsel. She stated that sometime in March it was agreed that medication could help Appellant, but that she had been unsuccessful in her attempts to contact prison officials to make arrangements for Appellant to receive anti-psychotic medication. On cross-examination, she admitted she was not a medical expert and could only give her personal opinion as to Appellant's psychotic condition. She said he was aware of what occurred the day of the homicide, but he was "not always aware of the whole context" and it was difficult to receive accurate...