Prosecutor: Lawyers trying to delay murder trial
Claims that defense is delaying murder trial until key witness dies
HAMPTON — A judge on Wednesday denied a defense attorney’s motion to delay a Hampton murder trial after a prosecutor called the motion a “deliberate strategy” to stall the case until a crucial prosecution witness “dies or otherwise becomes available.”
Gregory Ricardo Burwell, 63, is accused of second-degree murder and other charges in the slaying of his ex-girlfriend, 36-year-old Kelly Phillips, on July 4, 2018.
Phillips, a mother of three, was beaten inside her home on North Cypress Street just before noon, then shot several times as she ran from the home to get help. She collapsed on the front porch of a home on East Pembroke Avenue, as neighbors called 911.
The state medical examiner’s office said Phillips was shot four times, including a fatal shot to the chest. She was also found to have suffered blunt force trauma, and had ligature marks and lots of bruises.
A criminal complaint said a witness reported seeing a red pickup leaving North Cypress Street after the shots and turning onto East Pembroke. Police said they determined the truck was Burwell’s — but that he denied or couldn’t remember his whereabouts.
But the day after the killing, Burwell’s older brother, Ronald Lester Burwell, now 72, called Hampton police detectives to say his brother came to his house a couple hours after the slaying.
The elder Burwell told police his brother admitted to striking Kelly, then “pulled a gun and started shooting at her as she bled” — but that he wasn’t sure if he had hit her. The elder Burwell said his brother told him he stopped shooting “when he ran out of bullets,” the complaint said.
The three-day jury trial, on second-degree murder and gun charges, is scheduled to begin Feb. 10 in Hampton Circuit Court.
On Wednesday, Hampton Chief Deputy Public Defender Dan Mazzio asked Circuit Court Judge
Michael Gaten to push the trial out to a later date. He argued Burwell needs to have a mental health evaluation.
Mazzio said he has several concerns with Burwell’s mental health — including that his attorneys have received several unusual letters from him recently. The letters, he said, reflect a “delusion” about the case, as well as “religious delusion” and “religious fixation.”
“We need time to flesh all that out before trial,” Mazzio said.
But mental health examinations can delay trials for months, and Hampton Special Assistant Commonwealth’s Attorney Joshua Jenkins objected, saying it was the defense’s concerted strategy to wait things out until Ronald Burwell can no longer testify.
“He’s 72 years and eight months old and in poor health,” Jenkins said of the brother.
Jenkins also said the defense waived Gregory Burwell’s probable cause hearing in lower court in December 2018 at which the brother was expected to testify. The prosecutor contended that was an effort to prevent the brother’s crucial testimony from going on the record.
“And they’ve been continuing the case as long as possible after that,” Jenkins said.
A transcript of a witness’ previous testimony — so long as it’s under oath and subject to cross examination — can be used at trial if the witness is later declared to be “unavailable.”
And Jenkins contended that a mental health evaluation isn’t warranted in any case. He called Burwell’s letters “well-written and logically argued,” and that prior letters to Phillips were “very articulate.”
Jenkins said prosecutors have been “ready for trial for a year,” and the motion is a bid “to circumvent justice.”
“The last thing he wants is to have a fair trial,” Jenkins said, saying Phillips’ family “feel like this has been going on forever” and want closure.
In his ruling, Gaten said that defense attorneys can ask for a mental health evaluation at any time — even in the middle of a jury trial. “Mental health is not static,” he said. “It’s fluid.”
But Gaten said that the defense hadn’t adequately demonstrated their concern about Burwell’s mental health to cause the judge to believe that a mental health examination was necessary.
“I don’t find that there’s been a requisite showing of probable cause,” Gaten said, allowing the defense to file something more specific about their concerns.
Mazzio declined to tell a reporter after the hearing why he thought Burwell’s writings warranted more evaluation. “We’re limited on what we can say,” he said.
The lawyer said he was surprised at Jenkins’ assertion that he was intentionally trying to delay the case. Mazzio said he has an obligation not to file “unsupported” motions and wouldn’t have asked for a delay if he didn’t find it warranted.
Phillips’ family told the Daily Press she worked two jobs to make ends meet, and that her life seemed to be moving in the right direction.
In their case, prosecutors plan to contend that Burwell was keeping close tabs on Phillips before she was killed. “In Burwell’s mind,” Jenkins said, the couple had just recently broken up. “But in her mind, they had broken up far earlier.”
Peter Dujardin, 757-247-4749, pdujardin@dailypress.com