DONALD HAYDEN PHILLIPS v. STATE OF MISSISSIPPI
NO. 2017-KA-00901-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
06/18/2019
DATE OF JUDGMENT: 05/26/2017; TRIAL JUDGE: HON. JOSEPH H. LOPER JR.; COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANT: LUTHER PUTNAM CRULL JR.; ATTORNEY FOR APPELLEE: OFFICE
BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.
McCARTY, J., FOR THE COURT:
¶1. Donald Hayden Phillips appeals his convictions for assault, kidnapping, and sexual battery. The issues presented are: (1) whether surrogate reviewer testimony violated Phillips’ rights under the Confrontation Clause; (2) whether Phillips’ exhibits should have been admitted into evidence; (3) whether the trial court abused its discretion by sentencing Phillips to serve a total of thirty-five years in the State penitentiary, which resulted in a violation of his constitutional rights; (4) whether the trial court erred in denying Phillips’ post-trial motions; and (5) whether the prejudicial effect of cumulative errors warranted a new trial. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Before dawn one spring day, Jane Doe1 was awoken by the sound of someone at her front door. When she went outside, she initially did not see anyone, but as she turned to go back in, she saw Donald Hayden Phillips backed up against her trailer. Once Jane spotted him, Phillips gave her a “crazy look” and forced his way inside.
¶3. Jane told Phillips to leave and attempted to stop him from advancing further into her home. Phillips responded by stabbing Jane in the neck with a pocketknife. Jane fled to the front door in an attempt to escape, but Phillips stabbed her in the back before she could reach the door. Jane then lost consciousness.
¶4. After she regained consciousness, Jane made another escape attempt—this time through the back door. Phillips again caught her before she could escape. He threw Jane on the couch, and she lost consciousness for a second time. When Jane awoke, Phillips had either already removed her pants or was in the process of doing so. Phillips then ripped off her underwear and repeatedly attempted to rape her over the next several hours. During this time Phillips used his fingers to digitally penetrate Jane‘s vagina and anus “aggressively [and] multiple times.” He also threatened to kill Jane if she tried to escape again.
¶5. Several hours into the attack, Jane‘s sister and her sister‘s boyfriend arrived at the trailer. Upon their arrival, Phillips forced Jane into the bathroom. While brandishing a knife, Phillips pressed himself against the bathroom door, and threatened to kill Jane if she did not get rid of them. During this time, Jane‘s neighbor and Jane‘s ex-boyfriend also arrived at the trailer. When Jane‘s ex-boyfriend told her he was leaving she shouted out, “[P]lease, don‘t go!” Jane‘s ex-boyfriend then broke down the bathroom door—simultaneously freeing Jane and trapping Phillips inside. Jane escaped to her back deck and from there was transported to the hospital.
¶6. The emergency-room nurse testified that Jane had lost a lot of blood from multiple potentially life-threatening wounds. Jane was stabbed a total of seventeen times in her neck, hand, back, forearm, and both breasts. A rape kit was performed, multiple pieces of hair were collected, and swabs were taken from all over Jane‘s body.
¶7. Kathryn Rodgers was the analyst who tested the samples collected at the hospital. The swabs taken of Jane‘s vagina
¶8. At the time of trial, Rodgers was either on or nearing maternity leave. Because Rodgers was unavailable to testify at trial, the State filed a motion to substitute technical reviewer testimony. The State intended to call the technical reviewer on the case, George Schiro, to testify in Rodgers’ place. In addition to being the technical reviewer on the case, Schiro was also a DNA analyst and director of the laboratory where the tests were conducted. The trial court found his close involvement was sufficient to give testimony.
¶9. Phillips was brought to trial in Grenada County on charges of aggravated assault, kidnapping, sexual battery, and rape. The jury was unable to reach a verdict on the rape charge but found Phillips was guilty on all remaining charges. For the kidnapping and sexual-battery conviction, he was sentenced to thirty years each, to be served concurrently. For the aggravated-assault conviction, Phillips received twenty years with fifteen suspended and five to serve consecutively to the other charges.
DISCUSSION
I. The surrogate reviewer testimony did not violate the Confrontation Clause.
¶10. Phillips argues that his constitutional rights under the Confrontation Clause were violated when surrogate testimony regarding the results of a DNA test was admitted. He argues that the court could have granted another continuance until the technician who had performed the test returned from maternity leave and was available to testify. This Court reviews the admissibility of evidence under an abuse of discretion standard. Armstead v. State, 196 So. 3d 913, 916 (¶10) (Miss. 2016). “However, constitutional issues are reviewed de novo.” Id.
¶11. The United States and Mississippi Constitutions both provide criminal defendants with the right to confront those who testify against them.
¶12. Subsequently the same Court held that forensic laboratory reports are considered “testimonial” documents for Confrontation Clause purposes. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009); accord Bullcoming v. New Mexico, 564 U.S. 647, 658-59 (2011). “The Confrontation Clause prohibits the introduction of testimonial documents through ‘surrogate testimony’ of a witness who had no involvement in the creation of those documents.” Armstead, 196 So. 3d at 917 (¶15). “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.‘” Bullcoming, 564 U.S. at 661 (quoting Melendez-Diaz, 557 U.S. at 319 n.6).
¶14. To determine the admissibility of surrogate testimony, this Court follows a two-part test. Id. at 919 (¶16). First, the testifying witness must have intimate knowledge of the particular report sought to be admitted. Id. at 919 (¶17). Second, the testifying witness must have been actively involved in producing that report. Id.
¶15. Phillips relies on Bullcoming to support his argument that the surrogate testimony was improperly admitted. In that case the state unsuccessfully sought to admit forensic reports into evidence under the business-record exception to hearsay. Bullcoming, 564 U.S. at 652. Further, the analyst testifying about the forensic report had neither participated in nor observed the test being conducted and had no involvement in the report‘s creation. Id. at 651. The Supreme Court held that the surrogate testimony violated the defendant‘s rights under the Confrontation Clause. Id. at 652.
¶16. This case is distinguishable from Bullcoming. Here, the testifying witness, Schiro, was the director of the laboratory where the test was performed. Schiro actively participated in the report‘s production and possessed intimate knowledge of the analyses rendered, making his testimony admissible. Schiro helped draft the report, calculated the statistics, and checked the data to make sure it supported the report. Schiro finalized the report and had the final say as to what was approved. Most importantly, Schiro independently evaluated the data and arrived as his own, independent expert opinion based upon a reasonable degree of scientific certainty. The dangers of a defendant being deprived of the ability to confront the evidence arrayed against him are not present under the specific facts of this case.
¶17. Because Schiro had intimate knowledge of the report and was actively involved in its creation we find that there was no Confrontation Clause violation and this issue is without merit.
II. The photos and Facebook post of Jane Doe were not admissible.
¶18. Phillips asserts that the trial court committed reversible error by excluding five photographs of Jane and one Facebook post.2 He argues that admission of the photos and post would show that Jane‘s behavior subsequent to the attack was inconsistent with the behavior of someone who had been stabbed seventeen times, kidnapped, sexually assaulted, and raped. Additionally, Phillips argues that the proposed pieces of evidence were relevant character evidence of Jane‘s truthfulness.
¶20. Phillips argues that the proposed evidence went to Jane‘s truthfulness and would show that her account of events was less credible. “[A] defendant may offer evidence of the alleged victim‘s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.”
¶21. Phillips also cites a number of “inconsistencies” within Jane‘s testimony, but he fails to show how these alleged inconsistencies would be resolved by admission of the photos and Facebook post. Further, these alleged inconsistencies lack any relation to the proposed evidence.
¶22. Finding the exclusion of the photos and Facebook post were not an abuse of discretion, we affirm the trial court‘s ruling.
III. The sentence of thirty-five years without eligibility for parole was not cruel and unusual punishment.
¶23. For his third assignment of error, Phillips argues that his sentence constituted cruel and unusual punishment.3 Statutorily provided maximum and minimum sentences are not an abuse of discretion. Nicholas v. State, 826 So. 2d 1288, 1292 (¶18) (Miss. 2002). Phillips was convicted of sexual battery which carried a sentence of
¶24. For the sexual battery conviction, Phillips was sentenced to thirty years. The jury was unable to fix a penalty for the kidnapping conviction, so the court sentenced him to thirty years to be served concurrently with the sexual battery sentence. For his aggravated-assault conviction, he received twenty years with fifteen suspended and five to serve consecutively to his other sentences. These sentences within the statutory limits and are therefore presumptively valid, so the sentences and not cruel and unusual punishment.
IV. The trial court did not commit reversible error when it denied Phillips’ post-trial motions.
¶25. After he was sentenced, Phillips filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The motion was denied. Phillips now challenges that denial by attacking “the legal sufficiency of the overall evidence at trial.”
A. The motion for a judgment notwithstanding the verdict was properly denied.
¶26. This Court reviews the denial of a motion for a judgment notwithstanding the verdict (JNOV) to determine whether the evidence sufficiently supported the conviction. A conviction is sufficiently supported when it can be established, beyond a reasonable doubt, that every element of the offense was present. Taggart v. State, 957 So. 2d 981, 985-86 (¶8) (Miss. 2007). The evidence is viewed in the light most favorable to the verdict with all favorable inferences given to the prosecution. Id. at 986 (¶8). Reversal is only appropriate when “with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id.
¶27. Phillips challenges the sufficiency of the evidence for his convictions of aggravated assault, kidnapping, and sexual battery. A person is guilty of aggravated assault if the person “attempts to cause or purposely or knowingly cases bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.”
¶28. In reviewing the evidence in the light most favorable to the prosecution, we note certain facts: Phillips stabbed Jane seventeen times with a knife; Jane tried to escape two different times; the first time Jane attempted to escape Phillips
B. The motion for a new trial was properly denied.
¶29. “A motion for a new trial, however, falls within a lower standard of review than does that for a judgment notwithstanding the verdict. A motion for a new trial simply challenges the weight of the evidence.” Id. at 987 (¶11) (citation omitted). This Court will only reverse the trial court‘s denial if the court abused its discretion. Id. For the reasons discussed above we find that the trial court committed no error by denying Phillip‘s motion for a new trial.
V. There was no prejudicial effect of cumulative errors of the trial court warranting a new trial.
¶30. For his final issue, Phillips contends that the cumulative errors of the trial court had a prejudicial effect that warrant relief when taken together. “Under the cumulative-error doctrine, individual errors may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So. 2d 968, 1018 (¶138) (Miss. 2017). “However, where there is no error in part, there can be no reversible error to the whole.” Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007). Finding no merit to the other issues, there can be no cumulative error.
CONCLUSION
¶31. For the reasons stated above, we affirm Phillips’ convictions and sentences for aggravated assault, kidnapping, and sexual battery.
¶32. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR.