State v. Phipps

• Decision Date: 11 May 1994
• Parties: STATE of Tennessee, Appellee, v. David Willard PHIPPS, Jr., Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 138

883 S.W.2d 138

STATE of Tennessee, Appellee, v. David Willard PHIPPS, Jr., Appellant.

Court of Criminal Appeals of Tennessee,

at Jackson.

May 11, 1994.

Permission to Appeal Applied for

to the Supreme Court.

Lionel R. Barrett, Jr. and John G. Oliva, Nashville, for appellee.

Charles W. Burson, Atty. Gen. & Reporter, Rebecca L. Gundt, Asst. Atty. Gen., Nashville, G. Robert Radford, Dist. Atty. Gen. and Vicki S. Snyder, Asst. Atty. Gen., Huntingdon, for appellee.

OPINION

WHITE, Judge.

Appellant, David Willard Phipps, Jr., appeals as of right from his conviction for the first-degree murder of Michael Presson. The state did not seek the death penalty in this case, and Phipps was sentenced to life in prison.

Appellant raises four issues on appeal:

1. Whether the trial court's comment and refusal to charge the jury on post-traumatic stress disorder as requested by the defendant was error;

2. whether the evidence is sufficient to prove the element of premeditation beyond a reasonable doubt;

3. whether the trial court erred by instructing the jury of the "pitfalls" of expert testimony; and

4. whether the trial court erred in refusing to allow defendant to present character evidence and by refusing to instruct the jury on good character at defendant's request.

We hold that the jury instructions, taken as a whole, failed to fairly and adequately submit the issues and applicable law to the jury and amounted to an inappropriate comment on the evidence. The judgment in this case is reversed and the case is remanded for a new trial.

Facts

In the fall of 1990, the appellant, David Phipps, a career soldier, was sent to Saudi Arabia as part of the forces in Desert Shield and Desert Storm. His military occupational specialty was that of a nuclear-chemical/biological-chemical warfare coordinator with an emphasis on decontamination. He was responsible for providing appropriate chemical measures and counter-measures and served in a front line unit that was one of the first to enter Iraq. Appellant received a bronze star for his exemplary service in Desert Storm.

While appellant was in Saudi Arabia, his wife, Marcie Ann, entered into a relationship with Michael Presson. Throughout the course of their twelve-year marriage, the appellant had been aware of Marcie's numerous relationships with other men. ¹ He was, however unaware of the existence of Michael Presson until he returned to the United States in April, 1991. Although Marcie Phipps ² corresponded with her husband while he was overseas and spoke with him by telephone, she did not reveal that she was involved with another man.

Within a month of appellant's return to the States, his wife informed him that she had been living with Presson while he was overseas and that she wanted a divorce. She then moved her possessions out of their home. Marcie Phipps continued to communicate with appellant, visited him occasionally to discuss financial matters, shared meals, and had sexual relations with him. Appellant accompanied her to a trial in which she was a plaintiff. Appellant implored her to move back home, but she refused. Approximately a week after his wife left him, appellant attempted suicide.

On Friday, May 31, 1991, Marcie Phipps and appellant met at their home to work on some bills. She gave the appellant a check for her portion of the bills. ³ They had lunch together and shared a bottle of wine. Marcie Phipps left about 3:00 p.m., returned to the home she shared with the victim, prepared his supper, and laid down until 10:00 p.m. when she left for work. Marcie Phipps' work schedule, known to the appellant, was 11:00 p.m. to 7:00 a.m. During her shift that evening the victim visited on her break around 2:55 a.m. and stayed until 4:00 a.m.

At approximately 4:45 a.m. on June 1st, several of the victim's neighbors were awakened by the sounds of a struggle. At trial, they described repeated thuds that sounded as though someone were hitting a tree or the pavement with a board. The neighbors heard cries for help, grunting, and moaning. In the dark, one neighbor saw "something" being dragged across the yard to a vehicle.

In response to a disturbance call at 4:51 a.m., Officer Damon Lowe, a Henry County deputy sheriff, went to the scene. He found a white Oldsmobile Cutlass parked in the driveway and a white male, the appellant, sitting on the driver's side. The keys were in the ignition. The victim, who was still alive, was lying on the back seat of the car. ⁴ He appeared to have been brutally and savagely beaten. He was wearing only black underwear and was covered with blood. Lying on top of the victim was a blood-covered wooden stick, probably an ax handle, and one black glove. A second black glove was found on the floor of the back seat. The ax handle had a price tag on it. Testing revealed no fingerprints. The gloves were standard issue military work gloves. ⁵

When the deputy found appellant in the car, his pants, shirt, and shoes were covered with blood, he was sweating profusely, and he appeared to be very exhausted. He was wearing a knife in a sheath. At first, the appellant said that as he was driving down the road he saw a fight and had stopped to take the injured man to the emergency room. A few minutes later, he told the officer that he thought the man's name was David Presson and that his wife had been living with Presson.

Appellant's truck was located in a gravel lot across the street from the victim's home and was parked behind some school buses. The truck could not be seen from the victim's house but the view from the truck was of the highway on which Marcie Phipps would return home from work. In the back of the truck were a shovel, a gas can, a tool box, a face shield, and a pair of work gloves. ⁶ A knapsack propped against the front steps of the house contained a weight bar, nylon rope, garbage bags, and duct tape.

The appellant did not deny beating Presson to death. He testified that he went to the house to wait for his wife to return from work in the hope that he could convince her to leave Presson and come back to him. However, at some point, he approached the house carrying the knapsack. ⁷ According to the appellant, Presson was watching television. The appellant knocked on the screen door and entered. Presson jumped up, threw a glass at the appellant, and ran out a side door. Presson went to his car and Phipps thought he was going to leave. However, Presson returned to the house with a stick in his hand. Presson told Phipps that Marcie was no longer his and to leave. According to Phipps, Presson threatened him with the stick. Phipps grabbed the stick and a struggle ensued. Although Phipps said that he had no clear memory of the events that followed, he had no doubt that he struck many blows to the body and head of Presson. He remembered moving the body and being in the car with the body.

On cross-examination, Richard Hixson testified that two weeks before the murder, he, the appellant and a third party had discussed a murder in which the body was hidden in the woods and burned.

Four experts testified as to the appellant's mental state. Dr. Samuel Craddock and Dr. Jackson B. White testified for the state and Dr. William D. Kenner and Dr. Patricia Auble testified for the appellant. All four experts agreed that David Phipps was competent to stand trial and that he was not legally insane at the time of the murder. However, all four experts also agreed that the appellant was suffering from major depression and post-traumatic stress syndrome.

The appellant testified to his experiences during Operation Desert Storm which included his killing a young Iraqi soldier outside the camp and the suicide of an officer. Soldiers who served with the defendant testified to the constant tension created by being on the front line and the anxiety caused by Iraqi scud attacks. ⁸ They also recounted two incidents in which the appellant had behaved in an unusual manner. ⁹

Dr. Craddock testified that appellant's depression was "of a sufficient level to significantly affect his thinking, reasoning, judgement, and emotional well-being," and that the "components of his post-traumatic stress disorder may have lessened his threshold or made him more sensitive to defending himself and protecting himself and increased the likelihood of him over-reacting to a real or perceived threat." Dr. White, the other state expert, agreed that appellant's anxiety was sufficient to significantly affect his thinking and reasoning. Dr. Kenner, testifying for the defense, stated that while the defendant was not insane, he was unable to make a calculated decision to murder someone. While Dr. Auble, a psychologist, expressed no opinion on appellant's ability to formulate intent, she agreed with the other three experts that the appellant was suffering from major depression, severe anxiety, and post-traumatic stress syndrome. All experts expressed the opinion that the appellant was truthful and that he was not dissembling or faking any symptoms.

I. WAS THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON POST-TRAUMATIC STRESS DISORDER ERROR?

Appellant's first allegation of error is that the jury instruction given by the trial court on the weight and application of evidence of post-traumatic stress disorder was improper and constitutes reversible error. We agree.

At trial, the appellant did not deny committing the murder, nor did he plead insanity. His theory of defense was that at the time of the killing he could not and did not formulate the specific intent required to commit first-degree murder.

The trial court rejected appellant's request for a jury instruction based on his theory of the case ¹⁰ and, after giving the pattern instructions on the elements of first-degree murder, including premeditation and deliberation, second-degree murder, and voluntary manslaughter, issued the following instruction:

The defendant contends that he was suffering from mental conditions known...