State v. Phillips, 31872.

• Court: Court of Appeals of Idaho
• Writing for the Court: Lansing
• Citation: 156 P.3d 583,144 Idaho 82
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Derek Evan PHILLIPS, Defendant-Appellant.
• Docket Number: No. 31872.,31872.
• Decision Date: 09 March 2007

156 P.3d 583 144 Idaho 82 STATE of Idaho, Plaintiff-Respondent,
v.
Derek Evan PHILLIPS, Defendant-Appellant. No. 31872. Court of Appeals of Idaho. March 9, 2007.

[156 P.3d 584]

Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

Derek Evan Phillips appeals from his conviction for aggravated assault. He contends that prosecutorial misconduct during closing argument deprived him of a fair trial. We reverse the judgment and remand for further proceedings.

I. BACKGROUND

Phillips was charged with aggravated assault, Idaho Code §§ 18-905, 18-901. It was alleged that he attempted to or threatened to injure Tara Woolsey with a pickax. Phillips' first trial ended in a hung jury, and the matter proceeded to a second trial. The following evidence was adduced.

In the spring of 2004, Phillips was hosting a late-night social gathering outside his residence. Present, among others, were Phillips' brother and roommate, Ethan Phillips, Phillips' girlfriend, Nicole Stephens, and Tara

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Woolsey. At some point, Ethan and Tara went to Tara's vehicle and sat inside, with Tara in the driver's seat. An altercation ensued and Tara called 911 on a cell phone.

Mario Rios, a patrol officer for the city of Coeur d'Alene, responded. Rios testified that when he arrived, Ethan and Tara were still inside the vehicle, that Nicole was standing beside the driver's side door, yelling at Tara and Ethan and reaching into the vehicle. Rios testified that Nicole ignored his command to step away from the vehicle as she continued yelling at Tara and Ethan. When Rios attempted to diffuse the situation by pulling Nicole away from the vehicle, she turned around swinging, and Rios took her to the ground and handcuffed her. Rios then spoke to Phillips, who said that "there was a drug deal going on in the vehicle," and that he was going to stop that from happening. According to Rios, Phillips said he made a fake phone call to the police in Tara's presence to try to scare her away, and when Tara did not leave "he put a pickax though her windshield" and "would do it again to keep a drug dealer out of his business." Rios observed a broken windshield and dents on the hood of the vehicle.

The prosecution next called Nicole, who testified that she and Phillips went to the vehicle to tell Tara that she was not welcome there with drugs. Nicole said that Phillips then left and returned with the pickax, which he tapped on the hood of Tara's vehicle while telling her to leave. Nicole stated that when she turned to leave, she tripped, and when Phillips tried to catch her, although she did not directly observe the event, the pickax accidentally fell off Phillips' shoulder and stuck one inch into the windshield on the driver's side where Tara was seated. According to Nicole, Tara appeared to be more angry than scared by the occurrence, charged at Phillips afterward, and called 911 only after Phillips told her he was calling the police. Nicole also testified that when Officer Rios arrived on the scene, he tackled and handcuffed her for no apparent reason, that she did not tell any of the responding officers about the accident with the pickax because none of them would talk to her, and that a photo of the windshield showed a large hole because the police tore glass out of the windshield at the scene. Finally, Nicole denied discussing the case with either Ethan or Phillips prior to trial.

The prosecution next called Ethan, who testified that he previously had a drug problem. According to Ethan, while in the vehicle Tara showed him four tablets of OxyContin, which she offered for sale. Ethan said that when Nicole arrived, Tara placed the drugs in the pocket of her jeans. Ethan also testified, consistent with Nicole's testimony, that when Nicole tripped, Phillips reached to grab her and dropped the pickax, and that the pickax stuck in the windshield. Ethan said he did not observe Phillips tap the pickax on the hood of the vehicle, and that after the windshield was damaged Tara got angry and physically attacked Phillips. According to Ethan, Phillips and Tara were attempting to call 911 at the same time, and when she reached the 911 emergency operator, Tara feigned being hysterical. Ethan testified that when officers arrived, he was pulled from the vehicle and placed on the ground for no reason and saw an officer grab Nicole by the hair and throw her to the ground without justification. Ethan testified that he told an officer at the scene that the pickax had accidentally broken the windshield.

Coeur d'Alene police officer Jeffrey Walther testified that when he responded to the scene, he arrested Ethan on an agent's warrant, searched him, and found no drugs. He said that Ethan told him that Phillips "freaked out and put a pickax through the windshield" because he thought that Tara was a drug dealer selling drugs to Ethan. According to Walther, Ethan said Tara was not a drug dealer and Ethan made no claim that the pickax went into Tara's windshield by accident.

Tara testified that she was sitting in her vehicle talking to Ethan when Nicole approached and angrily accused her of selling drugs to Ethan. Tara stated that Phillips tapped the pickax on the hood of her car three or four times with increasing force and then swung it back and put it through her windshield. Tara testified that the pickax was aimed "right at my face." She said that an altercation ensued in which Ethan tried to

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protect her from Phillips and Nicole, and that she called 911. Tara denied attacking Phillips. Tara testified that she gave the police permission to search her car and purse and that they found no drugs. She also said that she turned out the pockets of her clothing to show the officers that she had no drugs on her person.

Finally, Officer Patrick Sullivan of the Coeur d'Alene Police Department testified that when he responded to the scene he saw a hole in the windshield and that he attended to Tara, who was crying and visibly shaken. He said that with Tara's permission, he searched her vehicle and purse and found no drugs and that he "visually" searched Tara's person when she turned out the pockets on her clothes and saw no drugs. The evidentiary phase of the trial ended with Officer Sullivan's testimony, as the defense presented no witnesses.

The only issues raised on this appeal relate to the prosecutor's closing arguments. In his initial closing argument, the prosecutor emphasized Ethan's and Nicole's relationship with Phillips, and argued that they were biased in his favor. The prosecutor noted that according to the officers, neither Ethan nor Nicole had told the police at the scene that the pickax had accidentally broken the windshield, and he characterized their trial testimony to this effect as implausible, ridiculous and lies. Then, after the defense attorney had presented his closing argument, the prosecutor gave a rebuttal argument that included the following comments about Ethan's and Nicole's description of events in their testimony:

You might find yourself feeling a little irritated at having to listen to such a ridiculous story.

You might find yourself feeling a little irritated about this defense in this case of the victim of this crime dealing drugs to Ethan when there is not a shred of evidence of that taking place, when she is searched, her purse, her car, she turns her pockets out, there's no drugs there. There's simply the allegation by the defendant at the time this occurred. You might find yourself a little irritated that someone will bring up that kind of defense against a victim of a crime.

Defense counsel objected, asserting that this was improper argument appealing to the passion or prejudice of the jury. The district court replied:

Well, ladies and gentlemen, there's a fine line between how far people can go in final argument. And I tend to let people go quite a ways in final argument because I've instructed you that final arguments are simply that. They're final arguments. They're not evidence. They're not facts in the case. And you're the people who sat through the trial and listened to the facts, but you're not to be guided by passion or prejudice. And I understand [defense counsel's] point, but I'm going to let counsel go ahead. But I'm going to caution counsel that let's keep this in context.

It is difficult to characterize the district court's holding, other than to say that the court effectively overruled defense counsel's objection in that it viewed the prosecutor's statements as within the bounds of permissible argument. The prosecutor evidently understood it as such, for he continued:

You might think to yourself, well, that's a little irritating to think that Ethan can get up and he can say that basically that woman faked that 911 call and was hysterical. That might make you a little irritated. Or that the defense can label the victim of this case as a drama queen. You can't let what has happened influence how you look at this, no matter how much it might irritate or upset you.

The jury returned a verdict of guilty. Phillips appeals, contending that prosecutorial misconduct during closing argument violated his right to a fair trial.

II. ANALYSIS

Phillips argues that several components of the prosecutor's closing arguments amounted to prosecutorial misconduct. Because we conclude that portions of the rebuttal argument in which the prosecutor suggested that the jury should be "irritated" and

156 P.3d 587

"upset" were improper, we do not address Phillips' remaining claims of error.

Closing argument "serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case." Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593, 600 (1975). Its purpose "is to enlighten the...