DOVER, Del. (AP) - Delaware’s Supreme Court has denied the latest appeal from one of two gang members convicted in a soccer tournament shooting in Wilmington that left three people dead.
The court on Tuesday upheld a judge’s decision rejecting Otis Phillips’ argument of ineffective counsel.
Phillips said his lawyer should have requested a mistrial after a juror complained that she did not want to participate in deliberations and drew the ire of other jurors.
Phillips and a co-defendant, Jeffrey Phillips, were convicted of murder in the 2012 killing of soccer tournament organizer Herman Curry at Wilmington’s Eden Park. They were also convicted of manslaughter in the death of 16-year-old soccer player Alexander Kamara.
A cousin of Otis Phillips was fatally shot after being hit by return gunfire from soccer spectators.
Prosecutors say the two defendants, who are not related, were out to avenge a friend’s death and to silence Curry, who witnessed a 2008 killing for which Otis Phillips was also convicted.
Court records show that on the morning of the second day of jury deliberations in the trial of Otis Phillips, a juror gave a note to a bailiff saying she did not think the trial was “facilitating justice,” and that she wanted to be removed from the proceedings.
Defense attorneys did not object when the judge decided not to address the note with the juror, or with the jury as a whole.
The jury foreperson then sent a note an hour later saying the panel could not productively discuss the case because one juror claimed to have not “collated” any of the evidence and was upsetting the other jurors.
The judge then told the jury that state law does not allow substitution of a juror after deliberations have started and told them to return to the jury room.
Attorneys for Otis Phillips did not object to the judge’s instruction.
His attorneys later explained in an affidavit that they made a strategic decision not to ask for a mistrial, thinking that having a juror who might be unable to render a guilty verdict could work in his favor.
The Supreme Court noted that judges give great deference to the strategy chosen by a defendant’s attorneys, and that Phillips was not deprived of meaningful representation.
The court also said there is no reason to believe that the trial judge would have seriously entertained a motion for a mistrial.
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