IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,233
BRIAN D. PHILLIPS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, defendant must establish that counsel's performance was deficient. This requires defendant to show that counsel made errors so serious that counsel's performance was less than that guaranteed to a defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense.
2. To show prejudice, defendant must show a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
3. The performance and prejudice prongs of the ineffective assistance of counsel inquiry each are mixed questions of law and fact so that an appellate court's review is de novo.
4. A court hearing an ineffective assistance of counsel claim must consider the totality of the evidence before the judge or jury.
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 21, 2005. Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed October 27, 2006.
Janine Cox, of Kansas Appellate Defender Office, argued the cause, and Nathan B. Webb, of the same office, was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Brian D. Phillips was convicted by a jury of first-degree murder and sentenced to life imprisonment. His conviction was affirmed by this court in State v. Phillips, No. 70,936, an unpublished opinion filed April 21, 1995. In June 2003 Phillips filed a motion pursuant to K.S.A. 60-1507. It was denied after an evidentiary hearing. He appealed to the Court of Appeals, which affirmed in a per curiam, unpublished decision filed October 21, 2005. This court granted Phillips' petition for review.
The primary issue raised by Phillips on appeal is ineffective assistance of counsel. He contends that trial counsel was ineffective because: (1) He failed to call Larry Marsh to testify; (2) he failed to call certain witnesses; (3) he failed to elicit certain testimony from Joe Trail on cross-examination; (4) he failed to object to the admission of certain evidence; (5) he misinformed Phillips that his criminal record would come into evidence if he chose to testify; and (6) his performance before and during trial was generally ineffective. Phillips also contends that the trial court violated his right to due process by failing to make findings of fact and conclusions of law on the issues raised in his 60-1507 motion.
According to Phillips, the facts recited in the Court of Appeals' opinion accurately represent the evidence presented at trial. Here are those facts:
"On January 30, 1993, Phillips fatally shot Charles 'Robbie' Wilson. On the night of the shooting, Wilson had assaulted at least five people, including Phillips, over a 2-hour period. Many of the people involved in the confrontations, including Phillips, were teenagers who had gathered at Ralph and Vickie Martin's residence to socialize and consume alcohol.
"The group was talking in the living room when Wilson, who had also been drinking, stopped by the Martins' residence. Wilson had recently been released from prison, where he had been serving sentences for aggravated battery and attempted aggravated robbery. Wilson began acting 'macho' and relating his experiences from prison. Vickie warned the others to be careful around Wilson because he was 'crazy,' 'violent,' and 'mean.'
"James Kasinger took a drink of Wilson's Crown Royal whiskey without asking permission. Wilson became angry with Kasinger, took off his shirt, and wanted to fight. Ralph and Vickie told Kasinger that Wilson was not 'right in his head.' Wilson continued yelling in Kasinger's face, stating, 'I'll kill you and then I'll rape you.' Wilson began punching himself in the face, reporting that he felt no pain. Wilson hit Kasinger once before calming down.
"Wilson engaged in several additional confrontations as the evening progressed. Joe Trail and Richard Parker commenced a friendly wrestling match on the living room floor. Wilson jumped in and grabbed Trail by the neck and started to choke him. Several people told Wilson that it was a friendly contest, but he did not stop choking Trail. Farrell Marsh jumped up to pull Wilson off Trail, but Wilson picked Farrell up and threw him against the wall, breaking the sheet rock. Wilson then 'started beating on Farrell.' Farrell did not fight back but just curled into the fetal position to try to protect himself. Marsha Milan testified she thought Farrell's life was in danger due to the force of Wilson's punches. When Milan and Deanna Seglum tried to intervene, Wilson punched Milan in the shoulder and injured Seglum's wrist. At this point, Wilson began hitting himself in the face and chest again. He then calmed down and apologized.
"Phillips, who had witnessed Wilson's erratic behavior, left the residence with Cheryl Dover. Wilson followed Phillips outside and began punching and kicking him. Wilson threatened that he was going to take Dover home and 'fuck her brains out.' Wilson put Dover in a headlock, and Phillips tried to get him to let go. Wilson hit Dover and she fell down. He then grabbed Phillips and put him in a headlock. Wilson threatened to break his neck. He was holding Phillips by the hair, kicking him, and punching him in the face. Nicholas Marsh, Farrell's brother, testified that when Wilson finally let go of Phillips, 'Brian fell down and everybody thought he was dead at first.'
"Wilson again began hitting himself in the face and stated, 'There isn't any of you punks that can whip me.' Wilson retrieved a 24-inch crescent wrench from the trunk of his car and stated, 'I'll take care of them this time.' He then went back inside the Martins' residence.
"Kasinger saw that Phillips had blood coming out of his mouth, and Kasinger had a conversation with others about what to do. During this conversation, Milan said she heard Phillips state that Wilson 'needed to go down.' Trail said that several people, including Phillips, stated that someone was going to end up shooting Wilson.
"Kasinger went to the home of Larry Marsh, the father of Nicholas and Farrell, and he obtained Phillips' shotgun, which was located there. Kasinger told Larry that his son had been beaten by Wilson. Kasinger and Larry drove back to the Martins' residence, and Kasinger loaded the shotgun. Phillips asked for the shotgun, but Kasinger refused. Kasinger and Larry went into the house, and Kasinger then pointed the gun at Wilson to try to get him to leave. Wilson was brandishing the crescent wrench and swinging it at Larry. Kasinger told Wilson to put the wrench down, but he refused. Larry then told Kasinger to take the gun outside, and he complied. Phillips again asked Kasinger for the gun and this time Kasinger gave it to him.
"Larry Marsh walked out of the house with his sons, Nicholas and Farrell. Wilson followed Larry out the front door and approached him with the crescent wrench. Phillips fired a warning shot which did not hit Wilson, and Wilson retreated into the house. Kasinger handed Phillips another shell, and Phillips reloaded the shotgun. Wilson reappeared and again approached Larry with the crescent wrench. Wilson was close enough to hit Larry with the wrench. At this point, Phillips fired a second shot and killed Wilson. At the time of the fatal shot, [James and Michael] Kasinger and Farrell were running away from the scene. Nicholas was hiding under his father's truck.
"Phillips ran from the residence after he shot Wilson. Kasinger told the police that Phillips stated, 'I shot the motherfucker,' and then laughed, but at the trial Kasinger clarified that it was a nervous laugh. Phillips then hid the shotgun under a bush, but when he heard the sirens, he returned to the scene and spoke with police officers. Phillips was cooperative, and he showed an officer where the shotgun was located. Phillips admitted killing Wilson, but he told the officers that he did not intend to kill him. Phillips stated that he just wanted Wilson to drop the wrench and leave."
The defense theory: The jury was instructed that Phillips
"claimed his conduct was justified as self-defense and/or the defense of another person.
"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force. Such justification requires both a belief on the part of Mr. Phillips and the existence of facts that would persuade a reasonable person to that belief."
In opening statement, defense counsel told the jury the evidence would show that defendant shot Wilson but lacked criminal intent in that "his intent was to disarm Wilson." Defense counsel told the jury to expect evidence of four incidents in which Wilson's conduct had been menacing–when James Kasinger took a drink of Wilson's whiskey, when Trail and Parker were wrestling, when Phillips and Dover were outside the Martins' house, and when Wilson threatened Larry Marsh with the crescent wrench. In closing statement, defense counsel told the jury the evidence showed that at the moment he was shot Wilson was wielding the crescent wrench "toward both Larry Marsh and Mike Kasinger." He referred the jury to "testimony that Wilson had the wrench up and poised to swing just prior to being shot," and recalled the expert opinion that the 24-inch steel crescent wrench could be a deadly weapon. Defense counsel asserted: "Larry Marsh, Michael Kasinger were assaulted in a manner that was inevitable to cause death or great bodily harm," and "[t]he law allows deadly force to stop deadly force."
Michael Kasinger testified that he was on the porch, approximately 5 feet away, when Wilson came out the front door swinging the wrench. Michael Kasinger jumped off the corner of the porch into the grass and moved away. According to Michael Kasinger, Wilson continued moving toward Larry Marsh "like he was gonna hit him or something." Wilson was approximately 5 feet from Larry Marsh, and Marsh was backing away from him.
In addition to Michael Kasinger, two other eyewitnesses to Wilson's threatening Larry Marsh testified at trial–James Kasinger and Nicholas Marsh. The testimony of the three witnesses will be examined in the discussion of Issue 1, which centers on trial counsel's failure to call Larry Marsh as a witness.
Phillips' statements to police. The record on appeal contains the transcripts of four police interviews with Phillips that occurred within hours of the shooting. At trial, the transcriptions were not admitted into evidence, but audio tapes of the interviews were admitted and played for the jury. The transcriptions were admitted into evidence at the 60-1507 hearing.
In none of his interviews did Phillips tell police that he shot Wilson because Wilson was threatening Larry Marsh. Instead, the story related by Phillips to police in the interviews downplayed Phillips' intent to shoot Wilson and made the shooting sound more accidental than purposeful. In the first interview, Phillips did not mention Larry Marsh. In the second interview, Phillips, asked how he got the shotgun, mentioned that some people had showed up, including "Ferrel's dad." In the third interview, Phillips did not mention Larry Marsh. In the fourth interview, when directly asked about Larry Marsh, Phillips answered the following questions:
"Q. Okay. Did you see him go in the house?
"A. A----no, I didn't.
"Q. Did you see him out there at all?
"A. I seen him outside once and then I looked off and then looked back I didn't see him again.
"Q. Okay. Do you remember when you saw him? Was it before you shot [Wilson] or after?
"A. It was before.
"Q. Where was Larry at?
"A. He was over to the side of me walking like he was going towards the backyard."
Later in the same interview, Phillips was asked and answered these questions:
"Q. Jimmy [Kasinger] say anything about why he was giving you the rounds?
"A. No, he was like--shoot this motherfucker.
"Q. Did you ask him why don't you do it or anything?
"A. No, he just handed me the gun and took off running.
"Q. And told you to shoot him? Okay. Is there anything else that you haven't told me about in any of our interviews, that you remembered?
"A. No, just that--the reason, I guess, Farrel's dad was there was cause his youngest son, Nick, was there too.
"Q. How old is Nick?
"A. About 12.
"Q. Was Nick drinking?
"A. No.
"Q. So, Farrel's dad just came to get Nick and take him out of there?
"A. I guess so because I guess Nick got hurt because Richard started wrestling with him--Richard threw him on the floor and hurt his shoulder.
"Q. Okay.
"A. And he sat in the livingroom all night."
In his 60-1507 proceeding, Phillips has placed great emphasis on his defense of Larry Marsh. But at trial there was evidence of unintentional shooting, self-defense, and defense of others, both James Kasinger and Larry Marsh.
Additional facts will be developed as needed for discussion of particular issues.
Trial Attorney's Failure to Call Larry Marsh to Testify
Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, defendant must establish that counsel's performance was deficient. This requires defendant to show that counsel made errors so serious that counsel's performance was less than that guaranteed to a defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. The performance and prejudice prongs of the ineffective assistance of counsel inquiry each are mixed questions of law and fact so that an appellate court's review is de novo. State v. Mathis, 281 Kan. 99, 109-10, 130 P.3d 14 (2006).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. To show prejudice, defendant must show a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffective assistance of counsel claim must consider the totality of the evidence before the judge or jury. 281 Kan. at 110.
Phillips did not deny shooting Wilson. His theory of defense included lack of criminal intent, self-defense, and defense of others. K.S.A. 21-3211 provides: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force."
Phillips' trial counsel did not contact Larry Marsh during his investigation of the case and did not call Larry as a witness at trial. At the 60-1507 evidentiary hearing, trial counsel testified that he did not contact Larry Marsh because he thought the evidence necessary to Phillips' defense would be provided by other witnesses. Phillips argues that without Larry Marsh's testimony the imminent threat necessary to support the defense theory of defense of another, Larry Marsh, could not be established.
With regard to defense counsel's failing to contact Larry Marsh during the investigation and to call him as a witness at trial, the Court of Appeals stated that defense counsel failed to show that force was necessary to defend against Wilson's imminent use of unlawful force. Slip op. at 20. But the Court of Appeals concluded that, by not calling Larry Marsh as a witness at the 60-1507 hearing, Phillips failed to establish that his defense was prejudiced by defense counsel's not calling Larry as a witness at trial: "If Larry's testimony would have been so crucial at trial, it seems logical that Phillips would have called him as a witness at the 60-1507 hearing. At this point, there is no record to establish Larry's testimony other than statements contained in police reports which were discussed at the 60-1507 hearing." Slip op. at 20-21. The Court of Appeals further stated:
"Furthermore, the record reflects that Larry apparently made inconsistent statements to the police. In fact, in one statement Larry made to the police, he testified that the first shot was fired before he had even been threatened by Wilson. This was inconsistent with evidence presented by other witnesses and would have been detrimental to Phillips' theory of defense. The State would have been able to point out these inconsistencies if Larry had actually testified at trial." Slip op. at 21.
In his petition for review, Phillips contends that Larry Marsh's testimony was indispensable to the defense. According to Phillips, only Larry Marsh's testimony could have established that an imminent threat existed against him at the time Phillips fired the fatal shot. Phillips contends that Nicholas Marsh was the only trial witness who saw the fatal shot fired and dismisses the possibility that Nicholas Marsh's trial testimony established the imminent threat against his father. Phillips stated in his petition for review:
"Only one witness testified about the facts as they existed at the moment of the second shot. This witness, 12 year-old Nicholas Marsh, was hiding under a pickup truck, and never mentioned that the victim was holding a two foot long crescent wrench when he exited the house after the warning shot. A jury could have concluded that in spite of evidence indicating that Robbie [Wilson] had threatened many people that night, that Mr. Phillips had not acted in response to an imminent threat when he fired the fatal shot. If the jury relied exclusively on Nicholas' testimony, they could have concluded that Robbie did not have the wrench in his hands when he exited the house after the warning shot. The jury could also have believed Nicholas' testimony that Larry and Robbie were separated by between 15 and 20 feet, and therefore, the threat was not imminent."
Several things about Phillips' statement in his petition for review need to be addressed. First, he makes it sound as if Nicholas Marsh testified that Larry Marsh and Robbie Wilson were 15 to 20 feet apart "at the moment of the second shot." In fact, Nicholas Marsh testified that his dad and Wilson were 15 to 20 feet apart when Wilson was swinging the wrench inside the house:
"Q. Okay. Your dad showed up. How much later?
"A. Uh, just a couple minutes.
"Q. A couple minutes later. What did your dad do?
"A. He came in and told me to go outside.
"Q. All right. Where were you when he said this to ya?
"A. I was in the kitchen.
"Q. Okay. Did he come all the way back to the kitchen or was he in the living room?
"A. He was in the kitchen.
"Q. Okay. Was anybody with him that you saw?
"A. Uh, he came with some people, umm, and they were the ones from the house that went and got him.
"Q. Okay. And when he said that to you, what happened?
"A. Umm, Robbie came in and he had this big wrench and started swinging it at my dad.
"Q. Okay. Now, when you say swinging, what do you mean?
"A. He was kinda aiming like he was gonna hit him.
"Q. Okay. Umm, how far up did he have the wrench?
"A. Uh, he had it up pretty far. My dad was about 15, 20 feet away from him."
Second, Phillips correctly states that the only trial witness who testified that he was watching Wilson when the fatal shot was fired was Nicholas Marsh, but there were two other trial witnesses who testified that they were watching until close to the time the fatal shot was fired. Their testimony resolves both the problems contrived by Phillips–that Nicholas Marsh's testimony (1) did not include that Wilson had the wrench when he came out of the house after the warning shot and (2) did not include how close Wilson was to Larry Marsh when they were outside the house.
Michael Kasinger testified that Wilson came out swinging the crescent wrench. Wilson held the wrench like a bat, like he was trying to hurt someone. Wilson was 5 feet from Larry Marsh. Wilson was on the porch; Larry Marsh was on the sidewalk backing up. Wilson looked like he was going to hit Larry Marsh. Phillips fired a shot without aiming. Wilson ran in the house. As the witness ran away, he heard another shot.
James Kasinger testified that he took the uncocked gun into the Martins' house. Wilson was waving the crescent wrench at Larry Marsh. The witness pointed the gun at Wilson and told him to put the wrench down. Wilson refused. Larry Marsh told the witness to take the gun outside, and the witness did so. Outside, Phillips asked for the gun and the witness gave it to him. Larry Marsh backed out the front door. Wilson was close enough to him to take a step and hit Larry Marsh with the wrench. Phillips fired a warning shot. Wilson went in the house. The witness handed Phillips another shell. Phillips loaded and cocked the gun. Wilson opened the door slightly, looked around, and then flung the door open and came out with the wrench. Larry Marsh was walking toward his truck. As the witness ran away, he heard another shot.
The testimony of Michael and James Kasinger leaves open the question precisely how close Wilson was to Larry Marsh when Phillips fired the second shot. Nicholas Marsh's testimony about the firing of the second shot does not establish where Larry Marsh was at the time and differs from that of the Kasingers' by seemingly having Larry Marsh come out of the front door of the house after the fatal shot was fired.
The Court of Appeals criticized Phillips for not calling Larry Marsh as a witness at the 60-1507 hearing and even suggested that Phillips failed to satisfy his burden of proof as a result. The record from the 60-1507 hearing and the record on appeal, however, include the transcribed police interview of Larry Marsh. It contains information that substantially supports Phillips' defense. The Court of Appeals was off-base in reasoning that "[t]he fact that Larry did not testify at the 60-1507 hearing weighs heavily against Phillips in overcoming his burden" (slip op. at 21). Phillips' point might have been made more emphatically by Larry Marsh's testifying at the hearing, but the transcribed interview contains what was needed to satisfy Phillips' burden of proof–the information Larry Marsh gave to police soon after the shooting and presumably would have repeated had he testified at trial.
Larry Marsh told police that, when he arrived at the Martins' house, Wilson was in the yard. Marsh followed Wilson into the house. Marsh "hollered" for Nicholas. Wilson picked up a big wrench that was propped against the wall. Marsh said to Nicholas, "Get out of here." Wilson started moving toward Larry Marsh with the wrench, and Marsh backed up. They were approximately 10 feet apart. Larry Marsh said, "I just kept backing up and he just kept coming forward." The police interviewer asked if Wilson was saying anything, and Larry Marsh continued:
"Q. How was he carrying this wrench?
"A. He had the wrench on his right shoulder with both hands on it, which means he would be swinging from right to left as he swung it and I was just going straight backwards. As he reached about the dining room, living room area, I was about halfway thru that area and I heard a gunshot and I . . . .
. . . .
"Q. Did you see who fired that shot?
"A. I had no idea at the time . . . .
"Q. Had you see any weapons at all?
"A. None. I backed up to the front door, Okay, and by time I got to the front door, we were closer together, me and this other guy, probably within 5 ft. of each other and I don't remember where he was sitting, he was in gonna beat my brains in and whatever, I was just . . .
"Q. What was the size of the object he was carrying?
"A. Probably about a 2 ft., 2½ ft. steel wrench, maybe a crescent wrench or uhm a big pipe wrench or something like that. Something that a plumber uses or a big trucker uses to take wheels off of something.
"Q. Okay.
"A. After we go to, after I got to that front door, I just kind of looked around, just far enough to where I just step off that porch and just walk on back and we were probably 5 or 6 ft. out that front door. (Hand clap.) Boom, another shot went. His hands flew in the air. I didn't know what had happened. All I know was I didn't tha . . . His hands were up in the air. I don't know wheth . . . it could have been the police it could have been anybody. I just took off to the right and I, I, I . . . . Actually I looked out at the truck first. I kind of took to the right and looked at the truck and I didn't see Nicholas in there.
"Q. Okay. Let me stop you and we're going to back up for a minute, okay? As your backing out of the residence, was he looking, the person with the pipe in his hand, who was he looking at?
"A. Straight at me. I mean, he, he didn't take his eyes off of me, nor did I take my eyes off of him.
"Q. What did, what did you feel?
"A. I felt scared that he was going to hit me with that pipe, but I felt safer once I got outside cause I had a way to run if I had to and I knew that I could run faster than him because apparently he was on drugs or something. Uhm from what Jimmy explained you know.
"Q. What do you think would have happened if he would have hit you with that wrench?
"A. He would have hurt me, badly, very badly, that was a big wrench, you know. Even if I'd taken and tried to block it, he could have broke my arm or something.
"Q. Were you in fear of your life?
"A. I was scared. I was scared from the minute I got out of my pickup until the minute I got out that front door and I was still scared because I didn't see my son. I was scared for me because I was scared I was going to get hi[t] with that wrench. So I couldn't take my eyes off of him, see . . .
"Q. Okay. So your, your at, at the doorway when the first shot was fired, is that correct, and he's in the living room.
"A. In the, the first shot, I think I was probably well, I was would say the living room was about a 15 ft. from the front, okay, from the dining room entrance. He had to be right at that entrance and I was probably about 5 ft from the door and I heard a boom.
. . . .
"Q. Did you hear anyone make a statement prior to that shot being fired?
"A. I didn't hear nothing at that time. I . . .
"Q. Did anyone say anything to the person carrying the pipe?
"A. (Silence) I can't remember whether anything was said or not. At that time I was just like paralyzed.
"Q. Did anyone ever tell the guy to drop the pipe?
"A. Somebody might have said drop the pipe. I mean I can't, I can't say because I was so . . . I can't say when I'm right or wrong you know at that time, cause I don't remember that. The only thing I remember is when that gunshot went off and he was still coming at me with that deal, I'm still backing up.
"Q. Did he say anything to you?
"A. The only thing that I can remember him saying was I'm gonna get ya with this pipe, I'm gonna hit you, tear you up, something similar to that. I can't remember exactly what he might have said and I do remember the last, one of the last things that he did say to me was come on karate man and that was right as we, as I was . . . as he was at the front door I believe that's when he said that and I was out the front door and we went on back a little bit more.
"Q. So you continued to back, you continued to back away from him?
"A. Kept going back from step to step. When he said come on karate man, you know, I had taken karate and everything, and I can defend myself but I was still scared okay, uh had he swung that pipe at me he'd a probably broke my arm and I figured when he said that . . . . When he was younger and fought and everything just like come on karate and then the guys came running to you cause they though well he's just faking and I thought at that point he was going to sling this thing at me. And all of a sudden boom. There was a shot fired and he . . . I didn . . . You know I seen his face at that time cause I had my eyes on his eyes from minute to minute and his hands was straight up and did ta . . . It was only a second before I was moving to the right. I didn't pay no attention to him."
The Court of Appeals also justifies its rejection of Phillips' contention that Larry Marsh's testimony was critical to his defense on the ground that Larry Marsh told police "that the first shot was fired before he had even been threatened by Wilson. This was inconsistent with evidence presented by other witnesses and would have been detrimental to Phillips' theory of defense." Slip op. at 21. We find no statement by Marsh about the first shot being fired before he was threatened. Larry Marsh did tell police that the first shot was fired before he backed out of the house, and that differs from the testimony of Nicholas Marsh and the Kasinger brothers. But Marsh told police he was backing away from the wrench-wielding Wilson when he heard the first shot.
There were several important things that Larry Marsh's testimony would have added to Phillips' defense. Larry Marsh told police that he was scared and believed he was in danger of suffering great bodily harm. He said he was scared because he knew even his martial arts skills could not prevent him from being seriously injured by a blow from the wrench. Larry Marsh's testimony would have added information that might well have persuaded the factfinders to believe that Phillips reasonably believed his shooting Wilson was neces