Phillips v. State, CR–14–499

• Decision Date: 26 August 2015
• Docket Number: No. CR–14–499,CR–14–499
• Citation: 467 S.W.3d 742,2015 Ark. App. 419
• Parties: Lester Phillips, Appellant v. State of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2015 Ark. App. 419

467 S.W.3d 742

Lester Phillips, Appellant

v.State of Arkansas, Appellee.

No. CR–14–499

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered August 26, 2015

Potts Law Office, by: Gary W. Potts, Monticello, for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

Opinion

RAYMOND R. ABRAMSON, Judge

On October 30, 2013, a Jefferson County jury convicted Lester Phillips of murder in the second degree, and he was sentenced as a habitual offender to forty years in the Arkansas Department of Correction. Phillips's sole argument on appeal is that the circuit court abused its discretion when it denied his timely motion for mistrial.¹ For the following reasons, we affirm.

Evidence presented at trial reflected that on June 12, 2012, Mark Sykes and Lester Phillips went to LeRoy Collins's home to purchase drugs. Phillips stayed at Collins's home while Collins and Sykes went to buy drugs. While attempting to purchase the drugs, Collins and Sykes were robbed. When Collins tried to explain to Phillips what happened with the botched drug deal, Phillips fatally shot him in the head execution style.

Appellant moved for a directed verdict arguing that the State had not introduced sufficient evidence to establish premeditated purpose in causing Collins's death. The court found that premeditation did exist, stating, “There was a drug deal going on, allegedly. There was money displaced. And it would appear that that was reason for the shooting.” The court then denied the motion for directed verdict.

After Phillips testified and corroborated the events that took place the day in question —except for his testimony that someone else shot Collins—he moved for a directed verdict a second time. Again, the court denied the motion. The jury then retired to deliberate.

During the course of the jury deliberations in the guilt phase, the jury sent several written notes to the court. On October 29, 2013, the jury sent two notes, and the court brought the jurors into the courtroom to respond. The transcript, in part, reads as follows:

The Court : Basically, what you have said, it really asks a question rather than—that was difficult for me to respond because the note that came said, “If we become a hung jury, what happens?” something to that effect. And there is no response I can give to that under the law.

And then the second note indicated that you were split. But, now, a hung jury normally implies there is no more movement once you've gotten whatever it is that you have further negotiated to try to bring everybody together, and to whatever the decision is. But we need all 12, and there should be efforts to get all 12 to reach a decision, whatever that decision may be. And you—factually, in that situation, you are to tell me that you have reached an impasse and won't anybody move from where they are, and therefore, we have a hopeless situation. That wasn't exactly what I got. But I got enough, I thought, to bring you back in the courtroom, to this.

And this is the way I can—the only way, under the law, I can answer your question is I'm going to read to you another instruction. First thing we would suggest is that you read those instructions and just remember your job there and then—be seated—be seated—that's Ms. Clegg (the foreperson), correct?

[The Court then proceeded with the Allen instruction]

The Court : All right. Be seated, Ms. Clegg, the foreperson. Ladies and gentlemens [sic] of the jury, if you would give me your attention, I would read this instruction to you. It is in the interest of the state of Arkansas and of the defendant for you to reach an agreement in this case if at all possible. A hung jury means a continuation of the case and a delay in the administration of justice. You should consider that this case will have to be decided by some jury, in all probability upon the same testimony and evidence. It is unlikely that the case will ever be submitted to 12 people more intelligent, more impartial, or more competent to decide it. Under your oath as jurors, you have obligated yourselves to render verdicts in accordance with the law and the evidence. In your deliberation, you should weigh and discuss the evidence and make every reasonable effort to harmonize your individual views on the merits of the case. Each of you should give due consideration to the views and opinions of others. No juror should surrender his sincere beliefs in order to reach a verdict. To the contrary, this verdict should be the result of each juror's free and voluntary opinion. By what I have said as to the importance of the jury reaching a verdict, I do not intend to suggest or require that you surrender your conscientious convictions, only that each of you make every sincere effort to reach a proper verdict. Therefore, I request that the jury retire for further deliberations for a reasonable time in an attempt to reach a verdict.²

The jury continued deliberations, and at 5:44 p.m. on October 29, 2013, the court sent the jury home for the night and ordered them to return the next morning at 9:00 a.m. to deliberate further. Nothing in the record indicates that either side objected to the Allen instruction or to dismissing the jury on the evening of October 29.

On October 30, the jury returned, and the court reread all of the jury instructions—including the Allen instruction. Neither party objected to the rereading of the instructions. The jury began to deliberate at 9:52 a.m., had lunch from 12:00 p.m.–1:00 p.m., and returned a verdict of guilty of second-degree murder around 2:10 p.m. At 2:25 p.m., appellant's counsel requested that the jury be excused so that he could make a record, outside of its presence, concerning other notes the jury had sent that morning. The jury was excused.

Appellant's counsel requested the court to specify the sequence of the notes that came in after the jury had started deliberations around 10:00 a.m. on October 30. The jury sent a total of five notes; it is uncontested that the trial court did not respond to any of them. Three notes were sent before the lunch break. The first note was sent around 10:32 a.m. or 10:34 a.m., and read “9–G, 2—Not G, 1—Not Sure. We are done. Please proceed.” The second note which was written and signed by one of the jurors read: “I voted not guilty. So do we need to stay in here, because I'm not going to change my mind.” The third note, sent before the lunch break, was unsigned and read “Judge Jones, [...] is one of the jurors that has voted not guilty and she states that, ‘she is not going to change her mind.’ ”

During the lunch break, a fourth note came back that read, “The jurors are requesting that you come in the room with us, that we can...