The Ninth U.S. Circuit Court of Appeals Friday tossed out the second death
sentence imposed on a former Newport Beach resident for a 1977 drug-related
murder near Fresno.
The panel said Richard L. Phillips was denied a fair trial with respect to the
death penalty because the prosecutor allowed Phillips’ ex-girlfriend to testify
falsely that she received no benefits in exchange for her testimony.
The ruling leaves Phillips’ conviction for the first-degree murder of Bruce
Bartulis intact. Judge Stephen Reinhardt, writing for the panel, said Phillips
would have been convicted regardless of Susan Colman’s testimony, but that
jurors might not have accepted the prosecution’s special-circumstance
felony-murder theory if it knew that Phillips had escaped criminal charges by
Phillips was already one of the state’s longest-serving death row inmates in
2001, when the Ninth Circuit ordered a district judge to reconsider his claims
of ineffective assistance of counsel and prosecutorial misconduct.
He was sentenced to death in 1980 for the murder. He was also convicted of the
attempted murder of Ronald Rose.
The prosecution’s case was built on the testimony of Rose and Colman. The
evidence was that Phillips met the victims when they were building in his
neighborhood and offered to let them in on a cocaine deal for $25,000 each, and
also offered to supply them with stolen housing insulation.
The 2 paid him part of the money and agreed to bring more. At a roadside
meeting off Highway 99 in Madera County, however, Phillips shot the 2 men, then
poured gasoline on their car and on them and set it afire.
Rose, despite being badly burned and shot five times, got out of the car and
started running. Phillips struck him with the car, and then drove off, but Rose
Phillips was arrested several months later in Salt Lake City. Authorities
seized a letter he wrote from jail that appeared to order the recipient to kill
Phillips’ mother, who planned to testify for the prosecution, and to harm or
kill other witnesses.
Phillips claimed he was being framed. He said he was in Sacramento at the time
of the crimes.
The California Supreme Court upheld his convictions but overturned his death
sentence in December 1985, citing evidentiary errors, including the admission
of the letter.
While awaiting a 2nd penalty trial, Phillips brought a series of habeas corpus
petitions challenging the guilty verdict and special-circumstance finding. In
one, he claimed that prosecutors had withheld statements by Colman that there
had been “a mutual shoot-out” involving Phillips and the victims.
Phillips’ trial lawyer, Paul Martin, testified that had he known of the
statements, he might have argued “an alternative defense of self-defense and
mutual shoot-out” instead of presenting the defendant’s alibi. The judge,
however, denied relief, finding that Martin had the statements.
At the 2nd penalty trial in 1995, the defense claimed that the bullet that
killed Bartulis was fired by Rose.
Phillips admitted lying at the first trial. He said he never planned to rob the
victims, that there had been a shoot-out, and that he saw a revolver in Rose’s
After the Supreme Court unanimously upheld the second death sentence, Phillips
brought his federal habeas corpus petition. Reversing course from his
previously denied state petition, Phillips’ lawyers now argued that Martin knew
of Colman’s statements and should have used them to present a case based on the
supposed shoot-out instead of the “hopeless” alibi defense.
Prosecutors responded that Martin had presented a “stellar” defense. They also
offered a declaration from Martin in which he did his own reversal of course
and swore that he would not have presented the “shoot-out” defense in any event
because he couldn’t have done so without presenting false testimony.
He said in the same declaration that he “never thought Phillips’s alibi defense
had any merit.”
Senior District Judge Robert Coyle denied the petition originally, without an
evidentiary hearing. After the Ninth Circuit remanded, he held a new hearing,
based on depositions, and then again denied relief.
Reinhardt, writing Friday for the same panel, said Coyle acted within his
discretion in relying on depositions rather than live testimony to reconsider
the petition. He also said that while the alibi defense was “ill-advised,”
Martin did explain to the defendant that it was unlikely to succeed given
Phillips’ refusal to provide specifics, and did locate a witness who partially
corroborated the defense, so the tactical choice was reasonable under the
But the judge concluded that absent the “deplorable” conduct of then-Madera
County District Attorney David Minier, jurors might have, and likely would
have, concluded that Colman lacked credibility. This in turn, might have led to
acceptance of the defense argument that theft of the victims’ wallets was not
part of a robbery plot, but rather a theft incident to the murder, making the
special circumstance of felony murder inapplicable.
Minier later became a Madera Superior Court, and is now retired.
“Over the course of his habeas proceedings Phillips has established that,
contrary to her testimony and Minier’s statements, Colman was offered and
received significant benefits from the state in exchange for testifying as she
did,” including immunity from prosecution in connection with the case,
Reinhardt said. Minier, he added, violated due process both by failing to
disclose the benefits to the defense, and by allowing Colman to testify falsely
that she didn’t receive anything for her testimony.
Senior Judge Betty B. Fletcher concurred.
Senior Judge Andrew Kleinfeld dissented from the reversal, arguing that there
was “overwhelming evidence” that Phillips intended to rob the two men, as well
as to kill them.
The case is Phillips v. Ornoski, 04-99005.
(source: Metropolitan News-Enterprise)