Phillips v. State (In re Phillips)

287 So.3d 1179

EX PARTE Jessie Livell PHILLIPS

(In re: Jessie Livell Phillips

v.State of Alabama)

1160403

Supreme Court of Alabama.

October 19, 2018

Rehearing Denied January 4, 2019

Bryan A. Stevenson, Randall S. Susskind, and John W. Dalton of Equal Justice Initiative, Montgomery, for petitioner.

Steve Marshall, atty. gen., and Andrew L. Brasher, deputy atty. gen., for respondent.

BOLIN, Justice.¹

Jessie Livell Phillips was convicted in the Marshall Circuit Court of the capital offense of murder of "two or more persons" for the intentional killing of his wife, Erica Phillips,² and their unborn child ("Baby Doe") "by one act or pursuant to one scheme or course of conduct." § 13A-5-40(a)(10), Ala. Code 1975. The jury unanimously recommended that he be sentenced to death. Following a sentencing hearing, the trial court accepted the jury's recommendation and sentenced Phillips to death. The Court of Criminal Appeals affirmed Phillips's conviction but remanded the case for the trial court to address certain defects and errors in its sentencing order. Phillips v. State, 287 So.3d 1063 (Ala. Crim. App. 2015) (" Phillips I").

On remand, the trial court conducted another sentencing hearing during which the parties addressed, among other things, the scope of the Court of Criminal Appeals' remand instructions and what impact, if any, the United States Supreme Court's decision in Hurst v. Florida, 577 U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), had on Phillips's case. On return to remand, the Court of Criminal Appeals affirmed Phillips's sentence of death. Phillips v. State, 287 So. 3d 1063 (Ala. Crim. App. 2015) (opinion on return to remand) (" Phillips II").

We granted certiorari review as to 13 issues raised in Phillips's petition related to jury instructions on transferred intent and intent and knowledge; the application of § 13A-1-6, Ala. Code 1975, known as "the Brody Act," to the facts of this case; the chain of custody of a urine sample taken during Erica's autopsy and used to conduct a pregnancy test and the requirements of the Confrontation Clause in regard to the sample; the trial court's consideration of nonstatutory aggravating circumstances; the use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; the admission into evidence of an autopsy photograph; the amendment of or material variance from the indictment; the comments that the jury's sentencing verdict was advisory; the "double counting" of capital offenses; and the disparate nature of Phillips's sentencing.

The facts set out in Phillips I are as follows:

"On February 27, 2009, Phillips, Erica, and their two children met Erica's brother, Billy Droze (‘Billy’), at a McDonald's restaurant in Hampton Cove. According to Billy, they all arrived at the McDonald's restaurant at the same time and Phillips and Erica were driving two separate vehicles--Erica was driving a black Ford Explorer Sport Trac truck and Phillips was driving a black Nissan Maxima car. Billy explained that, before that day, he had not seen the Nissan Maxima. Thereafter, Phillips, Billy, Erica, and the two children entered the McDonald's restaurant to eat lunch, and they stayed there for approximately 30 to 45 minutes. While at the restaurant, they decided to all drive to the car wash in Guntersville to visit Erica and Billy's brother, Lance Droze (‘Lance’), who was working at the car wash that day.

"According to Billy, they left the restaurant driving three separate vehicles--Erica drove the truck, Phillips drove the car, and Billy drove his vehicle--and they all arrived at the car wash at the same time. Billy explained that they parked each of their vehicles in three separate car-wash ‘bays.’ When they arrived at the car wash, Billy saw Lance washing a boat in one of the car-wash bays; he exited his vehicle, walked over to Lance, and told him that they were there to see him. Shortly thereafter, Lance finished washing the boat and hauled it away from the car wash, and Billy walked back to his vehicle.

"According to Billy, as he was walking back to his vehicle, he stopped at the car-wash bay in which Erica's truck was parked. Billy stated that Erica was sitting in the driver's seat of the truck and that Phillips was sitting in the rear-passenger seat ‘fiddling with’ a gun. (R. 505.) ... Soon after, Billy heard Erica yell, ‘Help me, Bill’ (R. 504), and he went back to where Erica had parked her truck. According to Billy, he ‘got there just in time to see [Phillips] kill her.’ (R. 505.)

"Billy explained that he saw Phillips and Erica engaged in a ‘struggle.’ According to Billy, Phillips had Erica ‘in a headlock, pointing [the gun] to her head.’ (R. 506.) Although she was able to ‘break free’ from the headlock, within ‘seconds’ of her doing so, Phillips fired one shot at Erica. Billy then grabbed his niece and nephew, who were both nearby when the shooting occurred, and Phillips told Billy to ‘get out of there.’ (R. 506.) Billy then put his niece and nephew in his vehicle and drove to get Lance, who, Billy said, was approximately 100 yards away at the Guntersville Boat Mart returning the boat he had just washed. While putting his niece and nephew in his vehicle, Billy saw Phillips drive off in Erica's truck. Billy told Lance what had happened at the car wash, telephoned for help, and took the children away from the car wash.

"Lance then ran toward the car wash and went over to Erica, who was lying on the ground. According to Lance, Erica was lying on her side with her head on her arm, her left eye was swollen, and there was a lot of blood on the ground. Lance explained that Erica could not speak and was having difficulty breathing. Lance ‘held her for a few minutes, and ... noticed she was choking and [then] turned her over.’ (R. 540.) Soon after, Doug Ware, an investigator with the Guntersville Police Department, arrived at the car wash and told Lance to move.

"....

"Erica was transported to the emergency room at Marshall Medical Center North (‘MMCN’). Joann Ray, the charge nurse on duty in the emergency room, explained that Erica was unresponsive, which Ray described as having ‘no spontaneous movement ... [and] no verbal communication.’ (R. 644.) Ray further explained that Erica had a very shallow respiration--‘maybe three to six [breaths] a minute.’ (R. 645.) According to Ray, it was determined that Erica needed specialized care--specifically, treatment by a neurosurgeon. Because MMCN did not have a neurosurgeon on duty, Erica was transported to a hospital in Huntsville.

"At some point shortly after the shooting, John Siggers, an agent with the Marshall County Drug Enforcement Unit, and Tim Abercrombie, a sergeant with the Albertville Police Department, were meeting about ‘drug unit business’ at the Albertville police station. During that meeting, Sgt. Abercrombie received a telephone call from someone with the Guntersville Police Department informing him that they were searching for a homicide suspect and providing Sgt. Abercrombie with a description of both the suspect and the vehicle they believed he was driving. Sgt. Abercrombie then told Agent Siggers that they ‘were looking for a black Ford Explorer Sport Trac driven by [Phillips], and it was possibly headed to Willow Creek Apartments on Highway 205.’ (R. 549.) Thereafter, both Sgt. Abercrombie and Agent Siggers left the Albertville police station to assist in locating Phillips.

"Almost immediately after leaving the parking lot of the Albertville police station, Agent Siggers saw a black Ford Explorer Sport Trac. Agent Siggers explained that he

" ‘pulled out behind [the vehicle] to run the tag, and as [he] pulled out behind it, [the vehicle] pulled over into the, up against the curb, a parking spot next to Albertville Police Department. At that time, Mr. Phillips step[ped] out of the vehicle.’

"(R. 551.) Agent Siggers explained that Phillips then walked over to the sidewalk ‘and stood and looked at [him].’ (R. 553.) At that point, Agent Siggers got out of his vehicle with his weapon drawn and Phillips put his hands up, walked toward Agent Siggers, and said, ‘I did it. I don't want no trouble.’ (R. 553.) Agent Siggers then put Phillips ‘up against the hood of his vehicle to put [hand]cuffs on him,’ and, while doing so, Phillips told Agent Siggers that the ‘gun's in [his] back pocket.’ (R. 554.) Agent Siggers then retrieved the gun from Phillips's pocket and ‘cleared the weapon.’ (R. 555.) According to Agent Siggers, the gun had ‘one live round in the chamber and three live rounds in the magazine.’ (R. 555.)

"Agent Siggers then walked Phillips to the front door of the Albertville police station and sat him down on a brick retaining wall. Thereafter, Benny Womack, the chief of the Albertville Police Department, walked out and asked Agent Siggers what was going on. Agent Siggers told Chief Womack that Phillips was a ‘suspect’ in a homicide that had occurred in Guntersville. Phillips, however, interjected and explained to Agent Siggers and Chief Womack that he ‘is not a suspect. [He] did it.’ (R. 557.) ...

"Investigator [Mike] Turner responded to the car wash to assist Investigator Ware in processing the crime scene. Shortly after arriving, however, Investigator Turner ‘found out that [Agent Siggers] had [Phillips] in custody in Albertville.’ (R. 619.) Investigator Turner then left the car wash and drove to the Albertville police station. Upon arriving at the Albertville police station, Investigator Turner received from Agent Siggers the gun that had been retrieved from Phillips's pocket. Thereafter, Investigator Turner and Sgt. Abercrombie read to Phillips his Miranda² rights, which Phillips waived, and questioned him about the shooting at the car wash.

"During that interview, Phillips explained the following: Sometime before February 27, 2009, Erica had purchased a used Lexus from a car dealership in New Hope. That car, however, did not work properly, and, on February 27, 2009, Phillips and Erica

...