State v. Phillips, No. COA04-933.

Docket NºNo. COA04-933.
Citation615 S.E.2d 382
Case DateJuly 19, 2005
CourtUnited States State Supreme Court of North Carolina
615 S.E.2d 382
STATE of North Carolina
v.
Timothy Seth PHILLIPS.
No. COA04-933.
Court of Appeals of North Carolina.
July 19, 2005.

Page 383

Appeal by defendant from judgment entered 3 October 2003 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 22 March 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.

Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant.

Page 384

TYSON, Judge.


Timothy Seth Phillips ("defendant") appeals from judgment entered after a jury found him to be guilty of first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury. We find no error.

I. Background

Defendant is the biological father of three-year-old Bailey Mallan ("Bailey"). Bailey lived in foster care beginning in January 2001 until he was placed in defendant's care on 20 December 2001. Defendant was accorded weekend visitation with his other children from a previous marriage, a twelve-year-old son, Seth Phillips ("Seth"), and a daughter.

A. State's Evidence
1. Emergency Medical Personnel

On 14 January 2002, emergency medical personnel ("EMT") were dispatched to defendant's residence in response to a 911 call from defendant. Upon arrival, the EMTs found Bailey lying on the bedroom floor without a pulse. Defendant told the EMTs that: (1) Bailey had not felt well and had laid down; (2) defendant went to the mailbox and was gone for about fifteen minutes; (3) upon returning, he found Bailey in the bed not breathing; and (4) he called 911. EMT Phyllis Baity spoke with defendant and was told Bailey had suffered an asthma attack and stopped breathing. When Bailey arrived at the hospital, he had no pulse, no audible heart activity, and a core bodily temperature of sixty-nine degrees Fahrenheit. After three hours of resuscitative attempts and treatment for hypothermia, Bailey was pronounced dead.

On 25 March 2002, defendant was indicted for first-degree murder. The trial commenced on 22 September 2003.

2. Seth Phillips

At trial, Seth testified that after Bailey wet his bed defendant would become very angry and give Bailey a cold bath. Defendant would direct Seth to run a cold bath and to "turn it all the way cold." Defendant placed Bailey in the tub containing cold water up to his upper stomach. When Bailey tried to crawl out of the tub, defendant pushed him back into the water and told Bailey this was his punishment for wetting his bed.

Seth also testified: (1) defendant would occasionally quit watching television to make sure Bailey remained in the water for thirty to forty minutes; (2) Bailey would be crying and shivering when defendant removed him from the water; (3) defendant would lay Bailey across the washing machine with his legs hanging off the edge and spank him with a belt; (4) defendant would usually hit Bailey hard about three times; (5) defendant would place Bailey in a corner for about forty-five minutes to an hour; and (6) that this routine happened several times.

Seth further testified defendant had given Bailey a bicycle for Christmas. Seth stated Bailey experienced some accidents while riding the bicycle but none were severe. On the morning of 13 January 2003, the day before his death, Bailey again wet his bed. Seth stated that defendant administered the punishments described above.

3. Dr. Todd Hansen

The State tendered Dr. Todd Hansen ("Dr. Hansen") as an expert witness without objection from defendant. Dr. Hansen was an emergency room physician who examined Bailey upon arrival at the hospital. He determined Bailey's core bodily temperature was sixty-nine degrees Fahrenheit.

Dr. Hansen opined that hypothermia was the major cause of Bailey's death. He could not offer any medical explanation how a child's temperature could drop to sixty-nine degrees within a fifteen minute time span after defendant asserted he had last checked on Bailey. Dr. Hansen also testified the center bar on Bailey's bicycle, as shown in a photograph, could not have caused the injuries on his buttocks Dr. Hansen observed and opined those injuries were not accidentally caused.

4. Dr. Patrick Eugene Lantz

The State offered Pathologist Patrick Eugene Lantz ("Dr. Lantz") as an expert witness without objection from defendant. Dr. Lantz performed the autopsy on Bailey and testified he observed bruises consistent with

Page 385

childhood type injuries and eight bruises on the back of Bailey's head. Dr. Lantz stated the eight bruises were consistent with adult finger "thumping" on the back of Bailey's head.

Dr. Lantz also observed bruising on Bailey's buttocks and testified in his opinion the injuries Bailey's body presented were not caused by falling from a bicycle and were not accidental. Dr. Lantz opined the linear nature of the bruises on the buttocks were consistent with Bailey having been struck with a belt. He found no evidence of any natural disease that would have caused or contributed to Bailey's death.

Based upon Bailey's weight and size, Dr. Lantz opined Bailey could have become severely hypothermic after remaining forty-five minutes to an hour and one-half in water with a temperature of forty-five to fifty-five degrees. Dr. Lantz opined that Bailey's cause of death was severe hypothermia and that hypoglycemia would not cause the bodily temperature to drop to sixty-nine degrees.

Dr. Lantz also observed two burn marks on Bailey's left arm and opined the marks were consistent with being caused by a cigarette or cigarette-like object. Finally, Dr. Lantz opined that the burns to Bailey's arm, the bruising on his buttocks, and severe hypothermia were painful injuries.

B. Defendant's Evidence

Defendant testified in his defense. During cross-examination, defendant was asked about a telephone conversation that allegedly occurred with Danny Corriher ("Corriher") regarding the water service to defendant's residence. Defendant stated he spoke with a female to cancel his water services and insisted he did not talk to Corriher and did not say, "that water done killed my baby." Defense counsel made a general objection to this line of cross-examination.

C. State's Rebuttal

Corriher is the proprietor of the water system which serviced defendant's residence. He was called as a witness for the State on rebuttal to impeach defendant's testimony and his answers on cross-examination. Corriher was asked if he was familiar with 124 Cove View Road located in Mooresville, North Carolina. Corriher testified he had spoken with a male calling from that address to cancel the water service but the person calling never identified himself. Corriher testified the person calling had stated, "that water had killed his child." Upon further questioning by Corriher the caller replied, "he died in the bathtub." Corriher stated he assumed that the caller's baby had drowned.

Defendant objected to this line of questioning and the judge excused the jury. After voir dire, the State withdrew Corriher's testimony. The judge instructed the jury that the State had withdrawn Corriher's testimony and defendant's answers to the State's cross-examination had been stricken and to not consider any of Corriher's testimony during deliberations.

After defendant rested his case on surrebuttal, a charge conference was held and court recessed for the evening. Upon arriving at his office the next day at 7:45 a.m., defense counsel received a tape recorded telephone message left by a caller who identified himself as Allen Lorek ("Lorek"). Lorek informed defense counsel that he had witnessed Bailey having a "bad" bicycle wreck and falling in a ditch. Defendant moved to reopen the evidence to allow this witness to rebut Seth's testimony and the State's evidence on the cause of Bailey's bruising. The court denied defendant's motion.

The jury found defendant guilty of first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury. Defendant was sentenced to life imprisonment without parole. Defendant appeals.

II. Issues

Defendant argues the trial court erred by: (1) permitting the State to question him in an improper and highly prejudicial manner; (2) not granting a mistrial ex mero motu after the State withdrew Corriher's testimony; and (3) not reopening the evidence to allow admission of newly discovered evidence. Defendant also asserts he was denied effective assistance of counsel.

Page 386

III. Defendant's Cross-Examination

Defendant argues the trial court erred by permitting the State to question him in an improper and highly prejudicial manner. We disagree.

Pursuant to Rule 611(b) of the North Carolina Rules of Evidence, "[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility." N.C. Gen.Stat. § 8C-1, Rule 611(b) (2003). The trial court, however, "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen.Stat. § 8C-1, Rule 611(a) (2003). "`Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion.'" State v. Demos, 148 N.C.App. 343, 351, 559 S.E.2d 17, 22 (quoting State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986)), cert. denied, 355 N.C. 495, 564 S.E.2d 47 (2002).

During cross-examination, defendant was asked if he had a conversation with Corriher and whether he told Corriher, "that water done killed my baby." The State introduced the evidence for the purpose of challenging the credibility of defendant and his explanation of the...

To continue reading

Request your trial
5 practice notes
  • State v. McCoy, No. COA09-827 (N.C. App. 6/1/2010), No. COA09-827.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 1, 2010
    ...the order in which testimony is presented under an abuse of discretion standard. Page 20 See State v. Phillips, 171 N.C. App. 622, 628, 615 S.E.2d 382, 386, disc. review denied and appeal dismissed, 360 N.C. 74, 622 S.E.2d 628 (2005). "The trial judge has inherent authority to supervise and......
  • State v. Shine, No. COA07-1148 (N.C. App. 5/20/2008), No. COA07-1148
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 20, 2008
    ...testimony about the $7,173. "'Jurors are presumed to follow a trial judge's instructions.'" State v. Phillips, 171 N.C. App. 622, 629, 615 S.E.2d 382, 386 (2005) (quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)), disc. review denied and appeal dismissed, 360 N.C. 74, 62......
  • Petroleum Traders Corp. v. State, No. COA07-1176.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 20, 2008
    ...authority which the courts, without reference to true principle, are constrained to follow.'" State v. Phillips, 171 N.C.App. 622, 632, 615 S.E.2d 382, 388 (2005) (quoting Smith v. Norfolk & S. R. Co., 114 N.C. 728, 749-50, 19 S.E. 863, 869 "`Waiver of sovereign immunity may not be lightly ......
  • State v. Wilson, No. COA18-550
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 15, 2019
    ...not to testify will be upheld "unless it is shown to be manifestly unsupported by reason." State v. Phillips , 171 N.C. App. 622, 630, 615 S.E.2d 382, 387 (quotation marks omitted), appeal dismissed and disc. review denied , 360 N.C. 74, 622 S.E.2d 628 (2005).In the instant case, toward the......
  • Request a trial to view additional results
5 cases
  • State v. McCoy, No. COA09-827 (N.C. App. 6/1/2010), No. COA09-827.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 1, 2010
    ...the order in which testimony is presented under an abuse of discretion standard. Page 20 See State v. Phillips, 171 N.C. App. 622, 628, 615 S.E.2d 382, 386, disc. review denied and appeal dismissed, 360 N.C. 74, 622 S.E.2d 628 (2005). "The trial judge has inherent authority to supervise and......
  • State v. Shine, No. COA07-1148 (N.C. App. 5/20/2008), No. COA07-1148
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 20, 2008
    ...testimony about the $7,173. "'Jurors are presumed to follow a trial judge's instructions.'" State v. Phillips, 171 N.C. App. 622, 629, 615 S.E.2d 382, 386 (2005) (quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)), disc. review denied and appeal dismissed, 360 N.C. 74, 62......
  • Petroleum Traders Corp. v. State, No. COA07-1176.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 20, 2008
    ...authority which the courts, without reference to true principle, are constrained to follow.'" State v. Phillips, 171 N.C.App. 622, 632, 615 S.E.2d 382, 388 (2005) (quoting Smith v. Norfolk & S. R. Co., 114 N.C. 728, 749-50, 19 S.E. 863, 869 "`Waiver of sovereign immunity may not be lightly ......
  • State v. Wilson, No. COA18-550
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 15, 2019
    ...not to testify will be upheld "unless it is shown to be manifestly unsupported by reason." State v. Phillips , 171 N.C. App. 622, 630, 615 S.E.2d 382, 387 (quotation marks omitted), appeal dismissed and disc. review denied , 360 N.C. 74, 622 S.E.2d 628 (2005).In the instant case, toward the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT