State v. Phillips

• Citation: 940 S.W.2d 512
• Decision Date: 25 February 1997
• Docket Number: No. 74785,74785
• Parties: STATE of Missouri, Respondent, v. Shirley Jo PHILLIPS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 512

940 S.W.2d 512

STATE of Missouri, Respondent, v. Shirley Jo PHILLIPS, Appellant.

No. 74785.

Supreme Court of Missouri En Banc.

Feb. 25, 1997.

Rehearing Denied March 25, 1997.

Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Assistant Attorney General, Jefferson City, for respondent.

LIMBAUGH, Judge.

A jury found Shirley Jo Phillips guilty of first degree murder and sentenced her to death. The postconviction court overruled Phillips' Rule 29.15 motion after an evidentiary hearing. On consolidated appeal, we affirm the conviction and the denial of that part of the motion for post-conviction relief as it pertains to the conviction. We reverse the denial of relief on the Rule 29.15 motion as it pertains to the penalty phase proceeding, vacate the sentence of death, and remand for new penalty phase proceedings.

I. FACTS

The evidence at trial, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:

On Friday, October 6, 1989, Wilma Plaster's dismembered body was found several feet from the side of Farm Road 105 in Greene County, Missouri. The cause of her death was a single gunshot wound to the head. The medical examiner concluded that the condition of Plaster's body was consistent with the murder having occurred on Tuesday, October 3, 1989. Two employees of the Top Rail Lounge in Springfield, Missouri, saw Phillips and Plaster together at the bar on the night of October 3. Moreover, two of Plaster's neighbors in Hollister, Missouri, heard a noise, similar to the firing of a gun, coming from Plaster's garage around 10:30 p.m. on that same night.

Investigators determined that the bullet in Plaster's head was fired from a gun that was used by Phillips' son, Glenn "Buddy" Minster, for target shooting on Wednesday, October 4, 1989. Also on October 4, one of Plaster's neighbors saw a car, which resembled the 1976 gray Cadillac owned by Phillips, pull into Plaster's garage. A forensic investigator performed tests in Plaster's garage and house that indicated the presence of human blood in both locations. Tests conducted on Phillips' car also indicated the presence of human blood in the car and the trunk.

After checking Plaster's mail, the police discovered a bank statement that contained a canceled check in the amount of $4,050.00 that was payable to Phillips and had an endorsement on the back in the name of Joann Phillips, a pseudonym used by Shirley Jo Phillips. A handwriting expert determined that Plaster did not write the check and that her signature on the check was a forgery. The expert also concluded that Phillips disguised her penmanship in handwriting samples she provided to the police on October 9, 1989.

On October 10, 1989, Nora Martin contacted the police with information that Phillips had been to visit her the day before and that after Phillips' departure, Martin found trash bags and a gun underneath her porch. The police searched the trash bag and recovered cleaning solvents, canceled checks from Plaster's bank account, Plaster's check register, checks and a check register in Phillips' name, as well as other items. Phillips' fingerprints were found on the trash bags as well as the items contained inside. After testing the handgun found under the porch, a forensic examiner concluded that it was the same handgun that fired the bullet removed from Plaster's head.

Based on the foregoing evidence, the jury found Phillips guilty of first degree murder. Following penalty phase evidence, the jury found the statutory aggravating circumstance that the murder of Wilma Plaster involved depravity of mind and recommended a sentence of death.

II. DISCLOSURE ISSUE

Phillips first claims that the police withheld exculpatory evidence during her trial. In particular, she argues that the Rule 29.15 court clearly erred in denying her claim that the State's failure to disclose the evidence violated her right to due process as well as other constitutional rights, and further that she is entitled to a new trial because the evidence withheld is "newly discovered" evidence that would affect the outcome of the trial.

The alleged exculpatory evidence is an audiotape of a statement given by Joyce Hagar to the police on August 10, 1990, in which Hagar said that "Buddy" Minster, Phillips' son, told her that he and his mom killed Wilma Plaster and that his mom drove while he scattered her body. In addition, he told her that they threw Plaster's hands into the creek. Hagar said that Buddy even told her that he killed his grandmother and that he was the one that cut up "all of 'em." The existence of this evidence was not disclosed to Phillips before trial despite numerous discovery requests, including a specific request for tapes of any interviews of any witnesses. Although defense counsel interviewed Hagar before trial, Hagar did not disclose that she had given a statement to the police.

Resolution of this issue is governed by Brady v. Maryland, which held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Exculpatory evidence is evidence that is favorable to an accused. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481 (1985). Favorable evidence is considered material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. at 3383. "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. "[O]nce a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review." Kyles v. Whitley, 514 U.S. 419, ----, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

Phillips' position is that Hagar's taped statement is exculpatory because it negates her involvement in the murder and dismemberment of Wilma Plaster. Even viewing this evidence in the light most favorable to Phillips, it is difficult to understand how Buddy's alleged statement to Hagar that he and his mom killed Plaster and that his mom drove while he threw out the body and hands is exculpatory. This statement directly implicates Phillips in the murder of Plaster. The fact that Phillips may have committed the murder together with her son in no way exonerates her.

Buddy's comment that he was the one who cut up the bodies is exculpatory, however, because it tends to clear Phillips of involvement in that aspect of murder--the disposition of the body. It is not exculpatory on the issue of her guilt, because it does not qualify or contradict the statement that the two of them both participated in the actual killing. But, Buddy's admission that he was the one who cut up the body, with the inference that Phillips did not do so herself, is both exculpatory and material to the issue of Phillips' punishment. The evidence of Buddy's conduct is exculpatory because it shows that Phillips' involvement in the dismemberment, if any, was tangential rather than direct, and that Buddy, more than Phillips, was the depraved party. The materiality of this evidence is exemplified by the State's closing argument in the penalty phase where the State repeatedly contended to the jury that Phillips deserved the death penalty because she, personally, had cut up Wilma Plaster's body. Moreover, the only aggravating circumstance found by the jury to support the sentence of death was depravity of mind based on the dismemberment of the body. We conclude, therefore, that the exclusion of the evidence that Buddy dismembered the body was material, because it so undermines confidence in the imposition of the death penalty that it gives rise to a reasonable probability that the outcome of the punishment phase would have been different. The State's failure to disclose the statement, which would have allowed Phillips to call Hagar as a witness, justifies a new penalty phase proceeding.

The State's response to this conclusion is that the result of the proceeding would not have been different because Hagar's testimony was hearsay and could not have been admitted despite its materiality. Although we agree that Hagar's recitation of Buddy's statements is hearsay and that it does not fall within a recognized exception to the hearsay rule, see, e.g., State v. Blankenship, 830 S.W.2d 1, 6-7 (Mo. banc 1992) (holding that Missouri does not recognize a statement against penal interest exception to the hearsay rule in criminal proceedings), that does not end the question. In Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151-52, 60 L.Ed.2d 738 (1979), the Supreme Court held that the exclusion of hearsay testimony would violate due process rights where the testimony is "highly relevant to a critical issue in the punishment phase of the trial," and substantial reasons exist to assume the reliability of the hearsay statements. The particular indicia of reliability noted in Green were (1) that the statements were made spontaneously to a close friend, (2) that the statements were corroborated by other evidence, and (3) that the statements were against interest. Id. See also Chambers v. Mississippi, 410 U.S. 284, 300-01, 93 S.Ct. 1038, 1048-49, 35 L.Ed.2d 297 (1973).

Having determined that Buddy's statements were material to Phillips' punishment, they necessarily meet the relevancy requirement under Green, and the focus need be on reliability only. In that regard, the facts of this case comport substantially with the indicia of reliability found in Green. Although Buddy was not a close friend of Hagar, he did confess to the murder and dismemberment spontaneously during...