State v. Phillips

• Decision Date: 24 May 2002
• Docket Number: No. CR-99-0296-AP.,CR-99-0296-AP.
• Citation: 202 Ariz. 427,46 P.3d 1048
• Parties: STATE of Arizona, Appellee, v. Keith Royal PHILLIPS, Appellant.
• Court: Arizona Supreme Court

46 P.3d 1048

202 Ariz. 427

STATE of Arizona, Appellee, v. Keith Royal PHILLIPS, Appellant.

No. CR-99-0296-AP.

Supreme Court of Arizona.

May 24, 2002.

Janet Napolitano, Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Jack Roberts, Assistant Attorney General, Phoenix, for the State of Arizona.

Pima County Public Defender by Nancy F. Jones, Deputy Public Defender, Rebecca A. McLean, Deputy Public Defender and John F. Palumbo, Deputy Public Defender, Tucson, for Phillips.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 The State charged Keith Phillips with fifty-six counts of armed robbery, kidnaping, aggravated assault, and attempted first degree murder for three robberies that occurred in Tucson on April 12, 24, and 28 of 1998, and with one count of first degree murder for the death of Kevin Hendricks that occurred during the third robbery. The trial court consolidated all three incidents for a dual jury trial with Phillips' co-defendant, Marcus Finch. Phillips' jury convicted him of first degree felony and premeditated murder, as well as most of the non-homicide counts. Following a sentencing hearing, Judge Bernard P. Velasco sentenced Phillips to death on December 6, 1999. Appeal to this court is automatic and direct when the court imposes a sentence of death. Arizona Revised Statutes (A.R.S.) § 13-703.01 (2001). We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution, A.R.S. section 13-4031 and Arizona Rule of Criminal Procedure 31.2(b).

I.

A.

¶ 2 At 1:15 a.m. on April 12, 1998, Demien Purdy and his friend Mike sat in their car in the parking lot of Famous Sam's on Silverbell and Grant in Tucson. They saw a gold Chrysler LeBaron convertible driving around the parking lot. The LeBaron stopped for a few moments, left the lot, then returned. Purdy and Mike left the parking lot, but when they returned about ten minutes later, they noticed the LeBaron parked with its lights turned off.

¶ 3 Around 1:30 a.m. that same day, Marcus Finch and a man with a bandana covering his nose and mouth entered the Famous Sam's on Silverbell and Grant. Witnesses later stated that the man with the bandana was Hispanic or white while his accomplice was black. The black man, Finch, carried a sawed-off rifle and the other man carried a handgun. The robbers ordered the employees into the cooler. When waitress Shelly Raab saw Finch, she dropped to her knees about one arm's length away from him. Finch pointed the sawed-off rifle at her chest, said, "Get in the cooler, bitch," and shot her in the chest. Next, Finch grabbed Raab by the hair and dragged her to the cooler.

¶ 4 The robbers held office manager Beverly Rochon at gunpoint and told her to lead them to the money. The man wearing a bandana put his gun to Rochon's head and told her she had ten seconds to give him the money or he would put a hole in her head. Rochon gave him all the money she could find and went back into the cooler. The armed men left shortly thereafter.

¶ 5 Shelly Raab survived, but the bullet fragmented her liver, lung, and stomach, and caused her to lose her spleen, a kidney, and part of her pancreas. Raab's injuries have left her with a permanent limp and frequent numbness in her legs.

B.

¶ 6 At 10:30 p.m. on April 23, 1998, a man came into the Firelight Lounge on Wetmore in Tucson and asked what time the bar closed. Jaimi Ramirez Gilson, the bartender, told him she closed at 1:00 a.m. Ms. Gilson later identified the man as Phillips. Two hours later, Finch walked into the bar and asked for a Killian's Red beer. When Ms. Gilson stepped into the cooler to get the beer, the same man who had asked for the closing time earlier that night walked through the front door with what appeared to be a sawed-off rifle and shouted, "Everybody on the fucking floor or I'm going to blow your brains out." Ms. Gilson tried to hide behind the bar but Finch, who had a handgun, grabbed her by the hair, dragged her to the cash register and told her to open it. After taking the money, Finch dragged her to the men's restroom and threw her inside.

¶ 7 Meanwhile, the robber identified as Phillips took money from the customers and herded them into the women's restroom when he learned there was no cooler large enough to hold them. As patron Bill Gilson entered the women's restroom, Phillips shot him once in the shoulder and once in the back. Gilson fell into the restroom, where other patrons assisted him. The robbers left the bar and the police arrived shortly thereafter.

¶ 8 Bill Gilson survived, but one of the bullets collapsed his right lung. In addition, he lost his spleen and part of his liver and remained in a coma for three weeks.

C.

¶ 9 Near midnight on April 28, 1998, Finch walked into the Famous Sam's located at Cardinal and Valencia in Tucson and asked Margaret Damron, the bartender, how much a Killian's Red beer cost. When she answered, he told her he was going back to his car to get some change. When Finch returned, he sat down at the bar and ordered a beer. A few minutes later, a man subsequently identified as Phillips walked through the front door with a sawed-off rifle and opened fire at the backs of customers seated at the bar. Phillips shot Ricardo Herrera in both arms and Mario Rodriguez in one arm. Finch, armed with a handgun, suddenly emerged from a restroom and told one patron, "Get down or I'll fucking shoot you." Finch then saw two customers, Preston Juan and Kevin Hendricks, fleeing out the back door. Finch followed them outside and shot Hendricks in the back twice.

¶ 10 During this commotion, Damron and a customer, Sandra Sellards, ran into the office and locked the door. Sellards took the telephone and hid under a desk while she called 911. The man identified as Phillips broke into the office, smashed the phone and pointed his gun at Damron's head. As Damron gave Phillips the restaurant's money, Phillips noticed a video monitor and told her, "Give me the tape, bitch, I'm going to fucking kill you." Although the video camera wasn't working, Damron gave him the tape and begged him to leave. Damron emerged from the office thirty seconds after the robbers left.

¶ 11 Shortly after midnight on April 28, 1998, Pima County Sheriff's Deputy Jeff Englander received a dispatch stating that shots had been fired at the Famous Sam's on Cardinal and Valencia. When he arrived at the restaurant's parking lot, he saw a gold Chrysler LeBaron speeding out of the lot. Englander pursued the LeBaron until it finally pulled over and stopped. Englander ordered two men out of the car and took them into custody. Englander identified the car's occupants as Keith Phillips and Marcus Finch. Inside the car, Englander found money, an empty gun holster on the driver's side where Finch had been sitting, and a sawed-off rifle on the passenger side where Phillips had been seated. Deputy Thomas Adduci, who searched the LeBaron pursuant to a search warrant, found a .38 caliber handgun with a live round in the chamber and three more in the magazine as well as .22 caliber ammunition.

¶ 12 Some time after Deputy Englander took Finch and Phillips into custody, dispatch informed him that a mall security guard had found a body in the back parking lot of Famous Sam's. The parties stipulated it was the body of Kevin Hendricks. Hendricks died of two gunshot wounds. One bullet entered the right side of Hendricks' back, punctured his right lung, and exited below his collarbone. The other entered the upper part of the left side of his back and lodged in his left lung.

D.

¶ 13 At trial, witnesses from all three incidents identified Phillips as one of the two men who committed the robberies. Furthermore, the police investigation revealed that Phillips owned the sawed-off rifle used in all three robberies.

¶ 14 Phillips claimed misidentification as his sole defense. He sought to establish this defense through discrepancies in the victims' descriptions of the white or Hispanic robber and of the LeBaron; the absence of his fingerprints at the three locations; and some victims' failure to identify him from a photographic lineup.

¶ 15 Phillips' jury convicted him of several counts of attempted murder, aggravated assault with a deadly weapon, aggravated assault with serious physical injury, kidnaping, armed robbery, and one count of first degree. The jurors' answer to a special interrogatory indicated they unanimously found both felony and premeditated murder. Following a sentencing hearing, the trial court found the State proved beyond a reasonable doubt the existence of statutory aggravating factors under A.R.S. sections 13-703.F.5 (expectation of pecuniary gain) and 13-703.F.2 (prior conviction of a serious offense).¹ After finding only one proved mitigating factor, the court concluded that either of the two aggravating circumstances was sufficient in itself to outweigh the mitigation.

II.

A.

¶ 16 Phillips argues that the counts from the three robberies should have been severed under State v. Ives, 187 Ariz. 102, 927 P.2d 762 (1996), because the offenses occurred at different locations and on different days, the gunmen in the first robbery concealed their faces while the gunmen in the two subsequent robberies did not, and only the robbers in the third robbery killed someone.

¶ 17 We have held that even if a trial court errs in denying a defendant's motion to sever, the error is harmless "[i]f the evidence could have been introduced at separate trials (under Rule 404(b), Ariz. R. Evid.)." Id. at 109, 927 P.2d at 769. Rule 404(b) states that "evidence of other crimes, wrongs, or acts is... admissible for ... purposes, such as proof of ... identity." Arizona Rules of Evidence (Ariz. R. Evid.) 404(b).

¶ 18 Here, Phillips' sole defense was misidentification. If Phillips had been tried for each robbery in a separate trial, the State could have introduced evidence of the other robberies under Rule 404(b) for the purpose of proving...