State v. Phillips

• Decision Date: 15 May 2018
• Docket Number: No. 1 CA-CR 17-0285,1 CA-CR 17-0285
• Parties: STATE OF ARIZONA, Appellee, v. PAMELA ANNE PHILLIPS, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. PAMELA ANNE PHILLIPS, Appellant.

No. 1 CA-CR 17-0285

ARIZONA COURT OF APPEALS DIVISION ONE

May 15, 2018

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Pima County

No. CR20084012

The Honorable Richard S. Fields, Judge (Retired)

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Tucson

By Jonathan Bass

Counsel for Appellee

Bob Kerry Law, Tucson

By Robert A. Kerry

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

THUMMA, Chief Judge:

¶1 Pamela Anne Phillips appeals her convictions for first degree murder and conspiracy to commit first degree murder and resulting sentences. Because she has shown no reversible error, her convictions and sentences are affirmed.

FACTS¹ AND PROCEDURAL HISTORY

¶2 On November 1, 1996, Gary Triano was killed by a bomb placed on the passenger seat of his car in the parking lot of a Tucson country club. Although Phillips, Triano's former wife, was a person of interest, the crime remained unsolved for nearly a decade.

¶3 Phillips and Triano divorced in late 1993 and continued to dispute custody, visitation and child support. After the divorce, Phillips remained the owner and beneficiary of a $2 million insurance policy on Triano's life. Phillips collected the $2 million proceeds on the policy three months after Triano was killed.

¶4 In 1994, Phillips moved to Aspen, Colorado. There, Phillips began an intimate relationship with Ronald Young, a neighbor. Young also acted as Phillips' business consultant and helped her develop a website.

¶5 In April 1996, two businessmen reported to the police that Young had defrauded them. Phillips' attorney also reported Young to the police for fraud. A few weeks later, however, Phillips indicated she no longer wanted to participate in the investigation. An Aspen police detectivesought to interview Young, but could not locate him. The Aspen police eventually obtained an arrest warrant for Young on fraud charges.

¶6 Around this same time, Young left Aspen in a rented van. In July 1996, using an assumed name, Young stayed at a Tucson area hotel near Triano's home for several weeks. During this time, Triano told his girlfriend that he believed he was being followed. When Young's rented van was not timely returned, the rental company reported it stolen.

¶7 In October 1996, a few weeks before Triano's murder, Young's rented van was located in California, where police impounded it and contacted the Aspen police. An Aspen police detective traveled to California and participated in a search of the van. Inside the van, police found a shotgun and ammunition; an Arizona license plate; a Tucson map; paperwork with Young's name on it; and lists in Young's handwriting of Triano's friends and family, the cars they drove and where they worked. The van also contained paperwork pertaining to Phillips' divorce from Triano, correspondence from Phillips, documents showing Young's May 1996 purchase of an airplane ticket for Phillips to fly from Aspen to Denver and back and bills for a stay in a Tucson hotel near Triano's home in July 1996. After learning of Triano's murder, the Aspen police contacted the Pima County Sheriff's Office, which was the lead agency investigating the crime, and turned over items found in the van.

¶8 In 2005, Young was arrested in Florida on the Colorado fraud warrant after being featured on the television show America's Most Wanted. Searches of his residence, hotel room, storage unit, vehicle and a laptop computer seized during his arrest revealed Young regularly had been receiving money from Phillips after Triano's death. Among other things, Young maintained amortization schedules showing payments made on a $400,000 debt. A forensic accountant examined that evidence, as well as Young's and Phillips' bank statements and shipping records. The accountant found the loan schedules were consistent with payments Phillips had been making to Young beginning in early 1997, when Phillips first received proceeds of the life insurance policy on Triano's life, until late 2004 or early 2005. The accountant also concluded the two had attempted to conceal the transactions.

¶9 Young had recorded telephone calls with Phillips in which they discussed the payments. These recordings show that they referred to their financial dealings, explicitly and implicitly, as an illegal arrangement, and Phillips expressed concern about being detected. During one call, Young reminded Phillips that he had "helped" her "with something thatwas beyond what anybody else in the world would probably do" and that she was "living off the benefits of it." During another call, when they disagreed about how much Phillips owed Young, he warned her that she would "be in prison for murder."

¶10 In October 2008, Phillips and Young were charged with first degree murder and conspiracy to commit first degree murder. Phillips was in Europe at the time and remained there until being extradited to the United States in 2010. Young was tried and convicted in 2010, while Phillips was still in Europe. In 2012, Young's convictions and natural life sentence were affirmed on appeal, although the court remanded for resentencing on his conspiracy to commit first degree murder conviction. See State v. Young, 2012 WL 642852 (Ariz. App. Feb. 29, 2012) (mem. dec.)

¶11 Phillips was found incompetent but then restored to competency. After a jury trial in 2014, Phillips was convicted on both charges and sentenced to concurrent life prison terms, with the possibility of release after service of 25 calendar years for the conspiracy conviction. This court has jurisdiction over Phillips' timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)(2018).²

DISCUSSION

I. Phillips Was Not Improperly Denied Contact With Her Attorneys.

¶12 After Phillips' arraignment, the superior court granted a motion by her counsel for a competency evaluation. See Ariz. R. Crim. P. 11. In December 2011, after considering expert reports, the court found Phillips incompetent but restorable and ordered restoration services. Phillips argues she is entitled to automatic reversal of her convictions and sentences for structural error because the court limited contact between her and her counsel for a time while she was in restoration. The order limiting contact was entered after the court received a status report from the treating psychologist criticizing defense counsel for interfering with restoration services. This court reviews de novo Phillips' claim that she was denied her constitutional right to counsel. State v. Rasul, 216 Ariz. 491, 493 ¶ 4 (App. 2007).

¶13 In February 2012, finding that defense counsel was engaging in "blatant and intentional interference with the effort to restore anincompetent defendant, as well as a direct attack on the entire restoration program," the superior court restricted defense counsel's visitation with Phillips while in restoration to one hour in-person contact every 30 days and one five-minute phone call per week. The court also prohibited counsel from responding to Phillips' letters during this time. These restrictions were in place for 87 days, from February 9, 2012 to May 7, 2012. The restrictions were lifted after the attorney whose conduct had created the problem was removed from the defense team for reasons not relevant here. Phillips continued in restoration until late November 2012, when the court found she was restored to competency. Her trial started in mid-February 2014.

¶14 A criminal defendant has the right to the assistance of counsel under both the United States and Arizona Constitutions. U.S. Const. amend. VI; Ariz. Const. art. II, § 24; State v. Ruiz, 236 Ariz. 317, 325 ¶ 30 (App. 2014). This right extends to "all critical stages of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80-81 (2004); State v. Moody, 208 Ariz. 424, 445 ¶ 65 (2004). A critical stage is one where "substantial rights of . . . [the] accused may be affected." Mempa v. Rhay, 389 U.S. 128, 134 (1967); see also Bell v. Cone, 535 U.S. 685, 696 (2002) (defining a critical stage as "a step of a criminal proceeding, such as arraignment, that h[o]ld[s] significant consequences for the accused"). Not every restriction on counsel's time or opportunity to consult with a client, however, violates a defendant's Sixth Amendment right to counsel. Morris v. Slappy, 461 U.S. 1, 11 (1983). Furthermore, in most cases involving a claim of interference with the right to counsel, the defendant bears the burden of showing that the challenged conduct resulted in prejudice to be entitled to relief. United States v. Cronic, 466 U.S. 648, 658 (1984).

¶15 Phillips acknowledges that any prejudice from the limitation on counsel's contact with her during restoration services is speculative. Relying on Geders v. United States, 425 U.S. 80 (1976), however, Phillips argues limiting counsel's contact was structural error that requires reversal without a showing of prejudice. Structural errors are those that "affect the entire conduct of the trial from beginning to end, and thus taint the framework within which the trial proceeds." State v. Henderson, 210 Ariz. 561, 565 ¶ 12 (2005) (citations and internal quotations marks omitted). When structural error is shown, a guilty verdict is subject to automatic reversal without any showing of prejudice. State v. Ring, 204 Ariz. 534, 552 ¶ 45 (2003). This is because structural errors "deprive defendants of 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.'" Id. (quoting Neder...