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In re Phillips

Supreme Court of Virginia

December 13, 2018

In Re: Darnell Phillips




         Upon consideration of the petition for a writ of actual innocence filed October 31, 2017, the brief and supplemental authority in support of the petition, the respondent's motion to dismiss, Phillips' reply to the motion to dismiss, the respondent's response, Phillips' motion for a nonsuit, and the respondent's response to the motion, the Court is of the opinion the motion for a nonsuit should be denied, the motion to dismiss should be granted, and the writ should not issue.

         I. Facts and Proceedings

         Phillips challenges his 1991 convictions from the Circuit Court of the City of Virginia Beach for abduction with intent to defile, rape, forcible sodomy, and malicious wounding. Phillips' unsuccessful appeal to the Court of Appeals of Virginia concluded in 1993, and he did not appeal to this Court. Phillips filed his first petition for a writ of actual innocence in this Court in 2004. That petition was based on mitochondrial DNA testing conducted on a single hair recovered from a sheet from the gurney on which Phillips' victim was transported to the hospital. This Court dismissed that petition on January 13, 2005. Phillips has now filed his second petition for a writ of actual innocence, asserting recent DNA testing by a private laboratory, Serological Research Institute ("SERI"), demonstrates by clear and convincing evidence that he is actually innocent.

         The record, including the trial transcript, demonstrates that on August 7, 1990, ten year-old M.C., who lived in Norfolk but was visiting her friend, Amy Gates, in the Timberlake neighborhood of Virginia Beach, decided to go for a bike ride shortly after 6:00 p.m. After M.C. had been riding for a while, she noticed a man, who she identified at trial as Phillips, sitting in a gazebo. The man was wearing a white T-Shirt with "42" emblazoned in green on it, grayish-white shorts, a brown leather belt, and a black, cotton rain hat with a Chicago Bulls emblem on it, and he had a gold tooth.

         M.C. slipped while riding her bike on a footbridge, so she got off the bike and began walking it down a path. Phillips left the gazebo and began following her. When Phillips was directly behind her, M.C. offered to let him go ahead of her, but Phillips declined. M.C. offered to let Phillips go ahead of her a second time, and again he declined before pushing the child down an embankment running along a canal.

         M.C. tried to climb the embankment back to the path, but the slope was too slippery. Phillips told her if she screamed he would kill her, then came down the embankment, sliding down the slope. Phillips took off the child's bicycle shorts and underwear and threw them behind her, into the water. Phillips unzipped his pants and exposed his penis, then digitally penetrated M.C.'s vagina multiple times. Phillips then orally sodomized M.C., forcing his penis into her mouth and telling her to "suck it," before raping her. M.C. described herself as "scared, frightened, confused," and semiconscious by this point in the encounter. When he was finished, Phillips punched M.C. in the face multiple times before tossing the semiconscious child in the canal.

         M.C. revived, got her clothes out of the water, picked up her bike, and started running. She kept running until she encountered three girls, one of whom was Lori Bailes. Bailes testified that M.C. was screaming, crying, shaking, and saying she wanted her mommy. M.C. was wearing only her shirt, socks, and tennis shoes. She was carrying her shorts, her hair was matted and wet, there were leaves and mud in her hair and on her face, and she was bleeding from one side of her face. One of the girls told M.C. to put her pants on, and M.C. complied. The girls then took M.C. to the home of Emily Logan. Logan wrapped the child in a flannel sheet or blanket and called 911.

         M.C. described her assailant to Logan while Logan was on the phone with the emergency operator and Logan relayed the description. At trial, Logan recalled the description had been of a young black man wearing white shorts, a white shirt "with some kind of big letters or numbers" on it, and a black hat. The rescue squad, who received the call for assistance at about 7:12 p.m., arrived and took M.C. by ambulance to the hospital. Detective Steven Kurrle met the ambulance at the hospital and assisted in moving M.C. from the ambulance gurney to a hospital bed. He collected the gurney sheet, then spoke briefly with M.C. before she was examined and a physical evidence recovery kit ("PERK") and her clothing were collected from her. Afterwards, Kurrle spoke with M.C. again, and she described her assailant as a black male of heavy build, with a gold tooth on the left side of his mouth, wearing a black rain-type hat with a wide brim and a red emblem. She stated the assailant was either bald or had little hair on the top of his head and that the side of his head was shaved.

         Detective Joel Davis was one of the officers who responded to a call from police dispatch to search the area where the rape occurred. He searched the neighborhood and found Phillips and Michael Norfleet. Norfleet was wearing a white T-shirt with Bart Simpson on it, shorts, and a baseball cap. Phillips was wearing a dark shirt and carrying a hat. Davis initially focused on Norfleet, based on the description of the assailant's clothing that M.C. had provided, but when he got close to him, Davis realized Norfleet was "five or six years younger than the person" he was looking for. He spoke with Phillips and Norfleet, who told him they had "just come out of [Norfleet's] house from changing clothes." He told them he was investigating the rape of a young girl, gave them the description, and asked if they had seen anyone fitting that description. Phillips and Norfleet "immediately pointed [down the road] and said, He ran this way." Davis took off after the suspect, but, finding nothing, recalled the comment about changing clothes and, suspecting he had been tricked, turned around and went looking for Phillips and Norfleet.

         Davis found Phillips and Norfleet and again asked for their help. He told them they might have seen the rapist and asked them to accompany him to see the detectives investigating the case. They agreed. Davis took them to see Detective Robert Manzione. Manzione spoke with Phillips and asked where he had been that day. Phillips told the detective he had been at Norfleet's house. Manzione noticed Phillips had a gold tooth on the upper left side of his mouth. Manzione took pictures of Phillips and Norfleet wearing their hats, and brought the photographs to the hospital, where they were shown to M.C. M.C. said "that's not him" when she looked at the picture of Norfleet. When she looked at the photograph of Phillips, she stated "That's the hat, but I'm not positive about the face."

         Eventually, after further investigation, police obtained a search warrant for Phillips' person, located Phillips, and brought him into the police station. When officers found him, Phillips was wearing a black hat with a Chicago Bulls emblem on it. Detective Kurrle took a photograph of Phillips' face, without the hat. The photograph was placed in a photo array, which Detective Anthony Zucaro showed to M.C. while Detective Kurrle waited with Phillips. Phillips' photograph was number two in the array. M.C. said that number two and number six resembled her assailant. Zucaro also showed M.C. the hat, which she identified as the hat worn by her assailant.

         Detective Zucaro reported the results to Kurrle, who told Phillips that his photograph had been picked as a possible suspect and that the victim had identified his hat. Kurrle asked Phillips if he had any reason or knowledge why the victim would have picked his photograph. Phillips responded that the "fat little girl" might have seen him in the park earlier that day. Phillips, however, denied assaulting M.C. Detective Zucaro also questioned Phillips, and Phillips again denied any involvement. Detective S.W. Hoffman, who was only peripherally involved in the case and knew none of the details, then offered to talk to Phillips. Detective Kurrle, who was the lead detective on the case, agreed.

         Hoffman entered Phillips' interview room, sat down next to him, and introduced himself. Phillips told the detective he was in the area of the park when the rape occurred and saw the victim and that was why she recognized him. Hoffman told Phillips he thought Phillips was lying and that he believed Phillips had made a mistake. Hoffman told Phillips that in court he could be "made out to be some type of monster that would have committed this type of crime," but Hoffman did not believe he was "that type of monster." Hoffman reiterated that he believed Phillips had just made a mistake. Phillips looked directly at Hoffman and Hoffman asked, "did you make a mistake; was this just a mistake?" Phillips nodded and then, at Hoffman's request for a verbal response, said "yes." Hoffman asked Phillips if he "really intended to hurt the young girl," to which Phillips said "no." Hoffman asked Phillips whether "he would ever do anything like this again," and Phillips said he would not. Hoffman told Phillips he "would try to help him in any way I could and that we would need to go through the whole story; he would need to tell me exactly what happened." Phillips began to cry and said if he told Hoffman what happened, Hoffman "would think he was an animal." Hoffman told Phillips he "would not think he was an animal and that I believed ...

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