by Bruce McEwen, September 6, 2017
A jury convicted Justin Phillips last week of running down Donald Wagner.
Phillips was drag racing his cousin, Luke Buzzard last, December 8th when he hit Wagner, leaving the injured man to die.
Phillips and Buzzard were both driving stolen trucks.
According to the accident reconstruction analysis, Wagner was struck on the upper thigh, and then hit the windshield of the white GMC pickup truck Phillips was driving. He was thrown 25 feet in the air before he skidded 49 feet down the pavement on his head, causing the injuries that killed him.
Wagner had been knocked completely out of his shoes, and came to rest with his bare feet on the fog line, his head and shoulders driven up under the blackberry brambles along the side of the road.
Here we pause to congratulate Assistant DA Richard Welsh for doing an outstanding job against a defense devised by none other than Jona Saxby, Judge Keith Faulder’s wife, and not only a more experienced lawyer than Mr. Welsh, but also a local with more knowledge of the Mendo millennial milieu — having worked in Mendocino County family law for years.
Being an import from Del Mar, Welsh had his work cut out for him catching up on the local scene. And, not to make too much of it, Ms. Saxby had another advantage on Welsh: her own law school was UCSD down the road at Torrey Pines, so she knew exactly where the young assistant prosecutor was coming from — in a sociologically significant, if not a literal, way.
These advantages may have favored Saxby in jury selection. She thanked and excused me, for instance. (I get called to jury duty every two years, just like everyone else), and Welsh made a few jury choices that astounded and maybe even annoyed Judge Leonard LaCasse.
A school teacher had asked to be excused because the trial started on the first week of the school year; the teacher said it would be a hardship if she wasn’t there to welcome her students back.
Judge LaCasse tried to reason with her. He agreed it was an inconvenience, but not a hardship, and she finally came to agree with him, and accepted her obligation. The jury pool had dwindled due to this and that excuse that serving would cause this or than prospective juror unreasonable hardship. LaCasse’s relief was visible in his expression of thanks to the teacher for agreeing to stay. But what does prosecutor Welsh do? He excuses the teacher on his first go.
Judge LaCasse all but smacked himself in the forehead, clapping his palm over his mouth perhaps to keep from blurting out a naughty word.
Then there was prospective juror Mr. Bleeker. He said he was in the middle of putting a roof on a house for an elderly couple and had to get back to work. LaCasse pointed out that it was unlikely to rain any time soon. Bleeker replied, “You never know, judge.” Reluctantly, he was let go. Bailiff Jeff Courtney later reminded me that the AVA had printed a story about this guy swindling old ladies in Willits on construction jobs. I had missed it myself, but a look in the archives showed the bailiff had an infallible memory for AVA coverage. An on-line check shows he has an expired contractor’s license.
Another candidate was excused because he was close friends with everyone involved, adding that he hated law enforcement for what they’d done to his uncle.
By the middle of the first week the jury panel was seated, with hardly a soul to spare, and the trial began.
It was a very difficult case to prove. Wagner’s body was found by a man named Schuster on Center Valley Road in Willits the day following the fatal drag race. There was practically no evidence at the scene except for a broken meth pipe, some bits of plastic that may or may not have been related to Wagner’s last day. The rain had pretty much cleansed the scene. As the CHP officers were puzzling out how the accident had happened, a call came in concerning a stolen pickup that had been stuck in a guy-wire from a telephone pole. Long-time local CHP Officer David Gerstenkorn went to investigate. This turned out to be the truck Luke Buzzard had stolen the night before.
Mr. Buzzard came to testify on some kind of limited immunity condition and said he’d gone to steal fuel from the white truck, but when he found the keys in the red truck he decided to steal it. He said that Phillips had “borrowed” the white truck from his aunt (Ashley Mancia) — apparently without her knowledge — and Phillips and Buzzard were both using it, “passing the keys back and forth.”
Buzzard told a tale of how they then struck out for Covelo, with Phillips driving the white truck and Buzzard driving the red truck. They got into some kind of trouble in Covelo and got shot at, so they went back to Willits. But Buzzard denied ever having been on Center Valley Road the night in question.
Buzzard’s girlfriend, Jhanna Ellison, was put on the stand, and she said Buzzard made a tearful confession to her the next morning about the drag race on Center Valley Road — all of which Buzzard denied — he was especially adamant that he had not cried. He was mad, he said, that his girlfriend was pregnant and using drugs.
I was glad I wasn’t a juror. So many of these uninspiring young people testified, all telling different versions, that I didn’t know who to believe, and couldn’t, for the life of me, keep straight whose girlfriend, or whose ex-girlfriend, or whose mom, or whose aunt any of them were, although they all seemed to be somehow related.
Assistant DA Welsh: “You had a talk with Jona about the man who’d been killed?”
Buzzard: “Yeah. I had no idea it had occurred until she brought it up. She said she heard I’d killed somebody, and since I was already running for multiple other reasons, I was concerned.”
Welsh: “You were crying when you talked to her?”
Buzzard: “No, for your information, I was not crying.”
Welsh: “Didn’t you in fact tell her you’d been driving on that road?”
Buzzard: “No, because I didn’t even know where the pedestrian was killed.”
Welsh: “Didn’t you tell her you and Phillips were racing?”
Buzzard: “No, negative, I did not tell her that.”
Welsh: “You told her you were racing down the road when the accident occurred.”
Buzzard: “No. She told me that a pedestrian had been killed.”
Welsh: “Didn’t you in fact tell her that Justin’s girlfriend Sierra Williams got out and took some meth from the dead man’s pockets?”
Welsh: “Didn’t you tell Officer Gerstenkorn that the bumper on the white truck, the day before, that not only was the bumper not rubbing, but the windshield wasn’t broken — when you took it to go steal the red truck?”
Welsh: “You don’t remember telling him that?”
Buzzard: “I did not tell him that.”
Welsh: “Remember telling him that you and Justin always wore gloves when you were tweaking?”
Buzzard: “I don’t remember that.”
Welsh: “Are you sure?”
Buzzard: “I don’t remember it.”
Welsh: “Nothing further.”
Saxby lobbed some softball questions at Lucas Buzzard, reaffirming his story, which put her client in Covelo and Dos Rios, rather than on Center Valley Road.
Prosecutor Welsh called Ms. Ellison to refute the Buzzard account of events, making it pretty certain that these two are no longer a romantic item.
Welsh: “You asked him [Lucas] if he’d hit the pedestrian?”
Welsh: “And he said no?”
Welsh: “Did he tell you he’d been driving the red truck?”
Welsh: “And that they’d been racing?”
Welsh: “And that Justin was in front?”
Welsh: “And that he’d seen some pedestrian’s head hit the front of the truck?”
Welsh: “And that they [Justin and Sierra] got out?”
Welsh: “Fair to say that this is a pretty monumental moment in your life?”
Welsh: “Are you currently on probation?”
Welsh: “For elder abuse?”
Welsh: “Are you an addict?”
Ellison: “Not any more.”
Welsh: “Are you and Sierra friends?”
Ellison: “Not any more.”
Welsh: “Why not?”
Ellison: “I went to give her a hug and we got into an altercation.”
Welsh: “Why was that?”
Ellison: “She said, You know what you did, bitch.”
Saxby: “Objection. Hearsay.”
Welsh: “Nothing further.”
Saxby: “As of December 7th, were you and Lucas still dating?”
Saxby: “Were you pregnant?”
Saxby: “And you and Lucas had had a disagreement about your using drugs?”
Ellison: “I didn’t know I was pregnant until after he was arrested.”
Welsh: “Objection, non-responsive.”
Saxby: “Lucas was 16 and you were 21 and he was upset about your using drugs and being pregnant, wasn’t he?”
Ellison: “I took the pregnancy test on December 8th, after he was arrested.”
Saxby: “Did you use drugs that day?”
Ellison: “Yes, but not heroin, only meth.”
Saxby: “Something prompted you to take a pregnancy test?”
Saxby: “You are currently going through the courts for drug use, aren’t you?”
Saxby: “On December 8th were you at Sierra Williams’ home?”
Saxby: “And that same day you met with Lucas at Doug Strum’s house?”
Saxby: “And you talked to law enforcement on January 20th — was your memory of what Lucas told you stronger in your mind in December than it was in January?”
Ellison: “I dunno… Yeah, I guess so.”
Saxby: “So between December 8th and January 20th you didn’t talk to law enforcement about what Lucas told you?
Welsh: “Objection — judge, could we have a sidebar.
LaCasse: “We’ll be in recess until 1:30 ladies and gentlemen; please remember my admonition not to talk to anybody about the case.”
Deputy Derek Hendry knew the whole cast of characters, had watched them grow up. He went to Amanda Marsh's motor home to see if Justin was there. Ms. Marsh [Jhanna Ellison's mother] stalled the deputy at the door, and Justin escaped out the back. Hendry gave chase, but couldn’t catch the younger man who fled through the oak woodland.
The physical evidence was scarce. The white truck had damage to the plastic below the bumper and a spider-webbed windshield. The red truck had a dent in the tailgate and a broken back window. Prosecution’s contention was that the white truck, driven by Phillips, had hit the pedestrian; defense contended that it could just as well have been the red truck, driven by Buzzard as both vehicles sped down the road. This seemed implausible, but then again, how did the talented Lucas Buzzard manage to get the red truck stuck with guy-wire, at a 45-degree angle between the cab of the truck and the bed?
During closing arguments, Saxby refuted Welsh’s assurances that Jona Ellison would not have testified about her brother’s (Justin Phillip’s) culpability if it were not true. Saxby said they (Justin and Jona) were not close, like typical siblings, in fact, far from it.
Saxby then showed the jurors a kit she’d put together. This was done as a means of casting doubt on the forensic analysis of the two trucks. Saxby pulled out a yardstick, a tailor’s tape, and a carpenter’s tape, asking why none of these tools had been used to measure the height of the two trucks to match the bumpers up with the bruise on the dead pedestrian’s leg.
She pointed out that the bits of plastic found at the scene did not match the broken plastic below the bumper of the white truck. Nor had the broken meth pipe been finger-printed. Although her theory of the red truck being the one that struck the pedestrian would put the blame on Lucas Buzzard, she told the jurors that Buzzard’s version of events was more believable than Ms. Ellison’s. She said this was so because Buzzard’s immunity protected him from prosecution — except for perjury. Also, Saxby was convinced that Lucas had known Jona was pregnant and using drugs before he (Buzzard) was arrested.
Welsh countered that Buzzard was lying because he was more intimidated at the prospect of fingering his cousin Justin than facing perjury charges. And in fact Buzzard had made some statement about his abhorrence for anyone who would “call the cops on family.”
I didn’t know who to believe. But the jurors apparently believed Ms. Ellison’s version and unanimously convicted Phillips of vehicular manslaughter with gross negligence, fleeing the scene of a crime causing bodily injury and engaging in a speed contest causing serious bodily injury, as well as reckless driving causing bodily injury and resisting arrest. Sentencing is pending while Phillips faces charges in a separate incident.
(Ed note: Mr. Wagner, a registered sex offender, was well known to local law enforcement.)