Phillips v. State

• Decision Date: 06 July 2006
• Docket Number: No. S06A0531.,S06A0531.
• Citation: Phillips v. State, 632 S.E.2d 131, 280 Ga. 728 (Ga. 2006)
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 728

632 S.E.2d 131

PHILLIPS v.The STATE.

No. S06A0531.

Supreme Court of Georgia.

July 6, 2006.

Robert L. Wadkins, David Eric Webb, Office of Public Defender, for Appellant.

Peter J. Skandalakis, Dist. Atty., Raymond C. Mayer, Asst. Dist. Atty. Thurbert E. Baker, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., for Appellee.

HINES, Justice.

Johnny Vernon Phillips appeals his conviction for malice murder in connection with the death of Paul McKeen, Jr.For the reasons that follow, we affirm.¹

Construed to support the verdict, the evidence showed that Phillips was a friend and associate of a drug dealer named Charles Aldon Bulloch.McKeen owed Bulloch money for a cocaine purchase.A week prior to McKeen's death, Bulloch threatened to beat McKeen if he did not pay the money.On the evening of February 27, 1990, McKeen was with his wife in a bar called "The Pub."Phillips and Bulloch were also there with co-defendants, Guy Walter Hardaway and James Randall Reagan.McKeen and Bulloch played a game of pool, with the stakes being "double or nothing" on a debt; Bulloch won the game.McKeen's wife left him in the company of Reagan and another man who was not charged with this crime.

Later that evening, Phillips and Bulloch took McKeen in Bulloch's Mustang convertible to an overlook on Pine Mountain.Michael Railey followed them there in order to buy drugs from Bulloch.When Railey approached Bulloch's car, McKeen asked him for a ride back to The Pub. Phillips, seated in the back seat of the Mustang with McKeen, refused to let him go.Phillips told Railey that McKeen would stay with them because he was either going to pay the money he owed or be beaten.

The next morning, Bulloch went to the home of Robert Pearson.Pearson regularly monitored police scanners; Bulloch asked Pearson if he had heard anything about "anything on top of the mountain."He also told Pearson that he would be leaving town for a bit because he, Phillips, Hardaway, and Reagan had severely beaten "that McKeen boy" because of a debt.Bulloch also said that McKeen "wouldn't ever owe me no more money."Pearson also related that Bulloch said that "when [Phillips] got started that [Bulloch] couldn't stop him; that [Phillips] ending up hitting [McKeen] with a tire tool."

That same morning, McKeen was found unconscious and barely alive beside a remote road.He was taken to a hospital where doctors determined that blunt-force trauma to the head had caused severe brain damage.He died several days later.

1.Phillips asserts that the trial court erred when it denied his motion for directed verdict based on insufficient evidence.Phillips specifically argues that the evidence was inadequate to establish the cause of death.The State presented the testimony of the emergency room physician who treated McKeen upon his arrival at the hospital.He testified that McKeen had been beaten with a blunt instrument, and received multiple, and serious, blows to the head; McKeen's brain injuries were such that he would not live if taken off life support systems.The physician testified that McKeen was later removed from life support systems, and died.

Phillips asserts that this physician's role was limited to efforts to "resuscitate the patient and get him admitted to intensive care," that he was not involved with McKeen's treatment after the patient left the emergency room, that McKeen was in the care of other physicians both when the decision was made to remove life support and at the time of his death, and that the witness's testimony concerning the cause of death was therefore speculative.But, the testimony of the final attending physician, or that of the person who conducted the autopsy, is not a legal necessity for a conviction, SeeCurtis v. State,224 Ga. 870(1), 165 S.E.2d 150(1968)(even without an autopsy, testimony of a physician as to the life-threatening nature of visible wounds was sufficient evidence to establish the cause of death and to support a guilty verdict.).The evidence authorized the jury to find that McKeen died as a result of blows inflicted by Phillips, and to find Phillips guilty beyond a reasonable doubt of the crimes of which he was convicted.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Phillips contends that he did not receive effective representation because his trial counsel did not present certain alibi evidence and because counsel failed to consult adequately with Phillips prior to trial.In order to prevail on a claim of ineffective assistance of counsel, Phillips must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense.Smith v. Francis,253 Ga. 782, 783(1), 325 S.E.2d 362(1985), citingStrickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).To meet the first prong of this test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment."Id.The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case.Id. at 784, 325 S.E.2d 362.To meet the second prong, Phillips must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different.Id. at 783, 325 S.E.2d 362."`We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.'[Cit.]"Robinson v. State,277 Ga. 75, 76, 586 S.E.2d 313(2003).

Phillips asserts that his trial attorney knew of two witnesses that could have placed Phillips at his mother's home on the night of McKeen's murder.Laverne Warren, Phillips's mother, testified at the hearing on the motion for a new trial that Phillips never left her home on the night of February 27, 1990, and that she would have been prepared and willing to swear to this at Phillips's trial.Phillips's son, Josh Phillips, who was eleven years old at the time of the murder, testified at the hearing similarly to Warren.Warren also testified that before trial she did not speak with counsel, but did answer questions from someone from counsel's office; she had no memory of what was discussed.Judy Kelley, who was Phillips's fiancee at...