Metropolitan News-Enterprise


Monday, March 19, 2012


Page 1


Panel Throws Out Orange County Man’s Death Sentence


By a MetNews Staff Writer


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 testifying.

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 two 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 two 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 survived.

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 second 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 second 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 hand.

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 circumstances.

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.


Copyright 2012, Metropolitan News Company