State v. Phillips

• Decision Date: 17 December 2018
• Docket Number: No. 76518-3-I,76518-3-I
• Citation: 431 P.3d 1056
• Parties: The STATE of Washington, Respondent, v. David Levice PHILLIPS, Appellant.
• Court: Washington Court of Appeals

431 P.3d 1056

The STATE of Washington, Respondent,

v.David Levice PHILLIPS, Appellant.

No. 76518-3-I

Court of Appeals of Washington, Division 1.

Argued July 26, 2018

FILED: December 17, 2018

Oliver Ross Davis, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Counsel for Appellant

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Jennifer Paige Joseph, King County Prosecutor's Office, 516 Third Avenue, Seattle, WA, 98104, Counsel for Respondent

PUBLISHED OPINION

Mann, A.C.J.

¶ 1 David Phillips appeals his conviction for assault with domestic violence aggravators. Phillips contends that the trial court (1) violated his right to an impartial jury by failing to sua sponte excuse a juror, (2) abused its discretion under ER 801(d)(1)(i) when it admitted a victim statement as evidence, and (3) erred in entering a no-contact order between Phillips, the victim (Phillips’s wife), and his stepdaughter.

¶ 2 In a supplemental assignment of error, Phillips seeks remand to the trial court to strike the imposition of a $100 fee for collection of DNA (deoxyribonucleic acid) pursuant to our Supreme Court’s recent decision in State v. Ramirez, 191 Wash.2d 732, 426 P.3d 714 (2018). The State concedes that remand to strike the DNA collection fee is appropriate. We accept the State’s concession. We otherwise affirm Phillips’s conviction and sentence.

I.

¶ 3 On July 1, 2016, Phillips came home late after his wife Sara Phillips was in bed asleep with their infant daughter. After Sara told Phillips to leave her alone, an argument ensued that then became physical. Sara’s daughter, Joe'll Talbert, and Sara and Phillips’s infant daughter were in the house. At some point, Sara gave the phone to Talbert, telling her to call the police if the fight continues or if Phillips hits Sara. Talbert called 911 and reported that Phillips was hitting Sara. When Phillips saw that Talbert was calling the police, he knocked the phone from her hands.

¶ 4 King County Sheriff’s deputies responded to the 911 call and found the house in chaos and Sara in the living room crying. Sheriff Deputy Daniel Spiewak interviewed Sara and asked her to describe the altercation and prepared a written victim statement based on what Sara described. In her statement, Sara told Spiewak that Phillips tried to take her baby from her, punched her in the chin, choked her until she felt she would pass out, kicked her, and then tried to throw her down the stairs. Sara signed the victim statement "under penalty of perjury." Sara also told the responding paramedic that Phillips choked her, and that she had neck pain.

¶ 5 Phillips was arrested and booked into jail on July 1, 2016. From jail, Phillips repeatedly called Sara demanding that she get him out and expressing his anger at the police having been called. During these calls Sara made several references to Phillips choking her, at one point stating that he was in jail because he "sat there and fuckin' choked the fuck outta me." The State charged Phillips with assault in the second degree, domestic violence. The State alleged two aggravators. First, that the assault occurred within sight or sound of the victim's or the offender's minor child under the authority of RCW 9.94A.535(3)(h)(ii), and second, that the assault was part of an ongoing pattern of psychological, physical, or sexual abuse under the authority of RCW 9.94A.535(3)(h)(i). The State also charged Phillips with tampering with a witness.

¶ 6 A jury found Phillips guilty of second degree assault and found the State proved both aggravating circumstances. The jury was unable to reach a verdict on the tampering charge, and it was dismissed. Phillips had an offender score above nine due to multiple previous domestic violence offenses. Based on Phillips’s high offender score, and the jury's findings of two aggravating circumstances, the trial court imposed the statutory maximum sentence of 120 months. The court also imposed a no-contact order with respect to both Sara and Talbert for the duration of his sentence of 120 months.

¶ 7 Phillips appeals.

II.

¶ 8 Phillips first contends that the trial court violated his Sixth and Fourteenth Amendment right to an impartial jury when it failed to, sua sponte, strike juror 10 for bias. We disagree.

A.

¶ 9 During voir dire, the trial court asked if any of the jurors had personal experience with domestic violence. Juror 10 was among the venire members who raised their hand. When asked to elaborate, he explained that his sister and his wife's sister-in-law were both involved in abusive relationships with intimate partners. The State then asked,

The question for you, as a juror, is whether you cannot ignore your past experiences but remain open-minded and hold the State—that is, hold me to my burden of proof, that I have to prove this case to you beyond a reasonable doubt. Can you [h]old me to that burden and keep an open mind until you've heard from all of the witnesses?

¶ 10 Juror 10 responded that the issue "weighed" on him heavily, and stated, "I consider myself to be fair and objective by nature, but this is a deeply emotional issue and I don't know." The State responded, "Why don't you think about this as we're kind of talking with everyone, and you'll let us know if you're feeling like this is not the right case for you. Does that work?" Juror 10 then elaborated, "What’s unknown for me is what will come up in the course of the story and how will that affect me." The trial court asked if juror 10 had another issue that he wanted to talk about privately, and stated they would discuss those issues later.

¶ 11 The State and the defense questioned several other jurors about their ability to hold the State to its burden. In the process, seven jurors were dismissed for cause because they expressed an inability to be fair. When juror 10 was given the opportunity to speak privately in the courtroom, he revealed an experience in college after an intermural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, "nothing came of it, but it left an emotional imprint." He further elaborated,

And this is an emotional truth. I don't live this way; I don't believe this; but I'm also aware that feelings happen in reality that black men are more prone to violence.

It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it.

And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.

Phillips is an African American male.

¶ 12 Juror 10 expounded further on what he called "emotional truths" relating to his family members dealing with domestic violence, his concern that "domestic violence is underreported and underrecognized" in society, and his belief that "domestic violence that isn't prosecuted or isn't punished leads to worse tragedy and grief." Finally, juror 10 stated,

On the other hand, I trained as a scientist and I hold it as a personal principle to be fair and objective, and I do believe that I could hear and see what happens in this trial fairly and objectively. What I don't know is what the life of those emotional truths will have when push comes to shove, so I feel I owe it to the alleged and to this Court for you all to know that.

¶ 13 In response, the trial court informed juror 10 that the attorneys had some follow-up questions. The State relayed that nobody is suggesting any of the jurors would believe "domestic violence is fine," the question is whether he is "going to hold the State to its burden." The State further offered, "if at some point you feel like, ‘Look, this just isn't something that I think I can hold the State to its burden and not be fair,’ just let us know."

¶ 14 Defense counsel then asked about juror 10’s statements regarding his "emotional pull to think that maybe African-American men are more likely to be violent or more likely to try to get out of it if they are ..." Juror 10 clarified that it was "those who perpetrate violence" that are more likely to try to get out of it. Defense counsel asked,

Q. Do you think that in this case where we have a[n] African-American man who is being charged with a crime of violence, that that feeling is something that’s going to tip the scale, even if it’s just a grain of sand; that that kind of underpinning that it sounds like this comes back from your college years, so we're talking about years of battling with that. Is that something that you think might tip the scale?

A. I don't think so.

Defense counsel then asked if, like another juror, juror 10 believed being aware of his history made it easier to consciously deal with any bias or prejudice. Juror 10 agreed.

¶ 15 Defense counsel moved on to ask a few follow-up questions about his history with domestic violence. Defense counsel asked if juror 10 believed he "could look at this case in isolation" and not as a societal problem. Juror 10 explained that it is "very difficult for the evidence and the truth of domestic violence to be revealed." However, he also stated, "I understand and ascribe to the principal that it must be the merits of this situation and the evidence and the stories that are presented here that need to establish what the reality is in this particular case." Defense counsel also asked if juror 10 would want a juror like him deciding his case. Juror 10 said yes because of his "ability and intent to be objective and fair," but that his history is a consideration. Finally, defense counsel asked,

Q. Are you comfortable taking an oath and saying that, "I'm here and I'm going to abide by the law, and I'm going to look at this case in the way that the judge instructs me and I'm going to go look at the evidence in this case," and swearing to that up front and holding yourself to it at the end?

A. Absolutely.

Q

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