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Phipps v. Evans

March 17, 2009




Petitioner Donovan Phipps is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his convictions for second degree murder, leaving the scene of an accident, and misdemeanor resisting a peace officer in the Butte County Superior Court, case no. CM018760.


Petitioner makes the following claims:

A. He received ineffective assistance of trial counsel;

B. The prosecutor engaged in misconduct;

C. Witnesses committed perjury;

D. His prior strike should not have been used in sentencing;

E. Trial publicity deprived him of a fair trial; and

F. He was prejudiced by the accumulation of errors.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.


A. Facts

The Prosecution's Case-in-chief

At approximately 8:00 a.m. on February 24, 2003, Police Officer Curtis Prosise responded to a major collision accident at the intersection of Esplanade and East First Avenue in Chico. The intersection, located in the vicinity of three schools, was a major thoroughfare with "a lot" of pedestrian, bicycle and vehicular traffic. The speed limit on Esplanade was 25 miles per hour when children were present.

At the scene of the collision, Officer Prosise saw a white Ford pickup truck in the northbound lanes of Esplanade with a bent steering wheel and a white Nissan sedan north of the intersection that suffered "major damage." The truck was registered to defendant's parents.

Several people witnessed the events leading up to the collision. Between 7:30 and 7:45 a.m., Peter Mundy was waiting at a traffic light at the intersection of East First Avenue and Main Street. A pedestrian began to cross but suddenly stopped and stepped back. Mundy looked down the street and saw "a smaller pickup" truck that had run a red light "at a high rate of speed."

At approximately 7:30 a.m., Richard Stephens was traveling on Esplanade in the left lane when he saw a white pickup truck approaching him from behind at a "real fast" speed. The truck "swerved" into the right lane and passed Stephens. Stephens believed the truck was traveling erratically and "too fast for all the kids that [we]re in that area."

Between 7:30 a.m. and 8:00 a.m., passenger Rodney Whaley and his girlfriend [Beth Peters] were driving north on Esplanade in her car. She alerted him that she noticed a truck in her rearview mirror traveling "at a high rate of speed." The truck avoided colliding with her car by swerving into the left-turn lane and going around them. The truck passed them, "gained control," and continued "at a high rate of speed" to East First Avenue.

Another car was turning at the intersection of Esplanade and East First Avenue. There was an open lane so the truck could have avoided the car. Instead, the truck collided with the car. The car spun around, the passenger door "flew off," and the driver "flew out of the passenger car door as it was spinning." Whaley got out of his girlfriend's car to check on the driver, Juan Lugo, but found he was already deceased.

Defendant, who had been driving the truck, walked away from the collision. Whaley told him to stop and informed defendant he might have "just killed somebody." Defendant "said he didn't care," told Whaley he "w[ould] kill [him] too," and attempted to fight with him.

Defendant then headed north toward a hospital with Whaley at his side. When they reached the emergency window, Whaley told the hospital to call police. Whaley continued walking with defendant past the hospital.

Officer Greg Rogers arrived in full uniform to the location where defendant and Whaley were walking. When Officer Rogers got close enough for defendant to hear him, he said, "Stop, police." Defendant did not obey and kept walking. Rogers told defendant to get on the ground two times, but defendant still ignored him. Rogers pulled out his pepper spray and told defendant to stop once more. When defendant ignored him again, Rogers sprayed the pepper spray into defendant's face. Defendant walked even faster toward the intersection. Rogers pulled defendant to the ground and told him to stay down and stop resisting. Defendant stood up and broke free. He was eventually taken into custody with the help of two additional officers and two citizens.

Defendant was admitted to the hospital that day with head trauma. He tested negative for drugs and alcohol.

The next day Officer Prosise transported defendant from the hospital to the Chico Police Department to take his statement. Defendant was "fairly difficult to understand," would not directly answer his questions, and seemed to change subjects. He knew he had been in a traffic accident and thought he collided with a bus.

The Defense

Susan Parlari-Yates saw the collision while stopped at the intersection of Esplanade and East First Avenue. When she got out of her car, she heard defendant mumbling incoherently and repeating the word "Satan." She then saw defendant walk into the center of four lanes of traffic, make a "crossed sign" with his fingers, turn around in a circle two or three times, and begin "clawing at the sky."

According to defendant's mother, Colleen Phipps, defendant had a long history of mental illness. In the latter part of February 2003, defendant started showing signs of relapse. On February 23, he threw furniture into the street, screamed loudly, and babbled incoherently. Defendant calmed down after the sheriffs left the scene.

Prior to trial, clinical psychologist Donald Stembridge interviewed defendant at jail in June, reviewed documents pertaining to his criminal case, and reviewed his psychological evaluations and mental health records. He testified he believed defendant was in the midst of a bipolar episode on the day of the accident. Defendant was experiencing "fairly severe depression" as his marriage had failed and his relationship with an ex-girlfriend "had never taken off." On the day of the accident, defendant "found himself without cigarettes" and took his father's truck to purchase some. When his ATM card did not work, defendant interpreted this as another sign of rejection. He went back home and retrieved his checkbook, only to discover the store did not accept checks. At that point, defendant was "very upset."

Dr. Stembridge also believed defendant "may have been" experiencing delusions or hallucinations on the day of the accident because defendant was "speaking gibberish" at the hospital and was given antipsychotic medication. However, there did "not appear to be any credible evidence" that hallucinations and or delusions interfered with defendant's ability to understand he was driving his car "in a reckless fashion and in excessive speed." Moreover, defendant told Dr. Stembridge he had not experienced hallucinations and said his behavior at the hospital was a result of severe head trauma and shock.

Defendant also told Dr. Stembridge he was driving 50 miles per hour before the collision, knew speeding was wrong but was not afraid of speeding because he did not think he would get caught, and was aware of the possibility of getting into an accident.

It was Dr. Stembridge's opinion that defendant "[m]ay seek out risky or exciting activities to make himself feel better." He believed defendant's manner of driving on the day of the accident was consistent with that sort of risky activity.

Dr. John Podboy also interviewed defendant in December 2003 and reviewed his mental health history. In Dr. Podboy's opinion, defendant suffered a "break with reality" on the day of the accident due to paranoid delusional disorder, which included a belief that a higher power was protecting him. This may have left him with the inability to appreciate the risk his driving created. FN Dr. Podboy acknowledged that most of defendant's medical reports indicated that prior substance abuse either triggered or exacerbated defendant's psychological condition and there was no indication defendant was under the influence of any controlled substance at the time of the accident.

FN. In contrast, Dr. Stembridge found no evidence defendant believed he was being guided by a higher power on the day of the accident.


Psychologist Paul Wuehler interviewed defendant three times. On February 5, 2004, defendant came to his office "under the order of the court." When Dr. Wuehler asked defendant "routine questions for competency to stand trial," defendant became "very defensive, upset, and chose not to stay in the interview and left."

On March 5, 2004, Dr. Wuehler completed an examination of defendant. He believed defendant was "trying to be in control of the outcome of the interview."

On July 8, 2004, Dr. Wuehler examined defendant for a third time. He thought defendant was attempting to use "key words" and "feed [Dr. Wuehler] symptoms that [defendant] wanted [Dr. Wuehler] to see." Defendant said on the day of the accident he was " 'bottling [his] emotions,' " a "phrase [he] learned in therapy,' " and heard his former girlfriend's voice over the radio. He left the accident to get medical help. He did not suggest he felt confused after the accident and did not say God was protecting him.

In Dr. Wuehler's opinion defendant was suffering from depression, psychological stress and a "schizo-affective kind of problem." Defendant's mental defect or disease did not incapacitate him on the day of the accident and "did not affect his judgment enough to cause him to be unable to think straight."

Opinion, California Court of Appeal, Third Appellate District, December 30, 2005, lodged with this court with respondent's answer as lodged document 1, at 2-8. At the conclusion of the trial, a jury convicted petitioner of second degree murder, leaving the scene of an accident and misdemeanor resisting a peace officer. Id. at 1. The trial court sentenced him to an aggregate term of 30 years to life in state prison. Id.

B. Post Trial Proceedings

1) State Appellate Review

Petitioner appealed his conviction to the California Court of Appeal. On December 30, 2005, that court affirmed the conviction. Answer, Lodged Doc. 1 at 2. He then filed a petition for review with the California Supreme Court on February 10, 2006. Answer, Lodged Doc. 2. ...

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