267 P.3d 114 (Okla.Crim.App. 2011), D-2008-934, Postelle v. State

Docket Nº:D-2008-934.
Citation:267 P.3d 114, 2011 OK CR 30
Opinion Judge:A. JOHNSON, Presiding Judge.
Party Name:Gilbert Ray POSTELLE, Appellant, v. The STATE of Oklahoma, Appellee.
Attorney:Catherine Hammarsten, James Hughes, Asst. Public Defenders, Oklahoma City, Oklahoma, attorneys for defendant at trial. David Prater, District Attorney, Steve Deutsch, Assistant District Attorney, Oklahoma City, Oklahoma, attorneys for State at trial. Andrea Digilio Miller, Oklahoma County Public ...
Judge Panel:LEWIS, V.P.J., LUMPKIN, JOHNSON, and SMITH, JJ.: concur.
Case Date:December 29, 2011
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

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267 P.3d 114 (Okla.Crim.App. 2011)

2011 OK CR 30

Gilbert Ray POSTELLE, Appellant,


The STATE of Oklahoma, Appellee.

No. D-2008-934.

Court of Criminal Appeals of Oklahoma.

December 29, 2011

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¶ 0 An Appeal from the District Court of Oklahoma County; The Honorable Ray C. Elliott, District Judge.

Catherine Hammarsten, James Hughes, Asst. Public Defenders, Oklahoma City, Oklahoma, attorneys for defendant at trial.

David Prater, District Attorney, Steve Deutsch, Assistant District Attorney, Oklahoma

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City, Oklahoma, attorneys for State at trial.

Andrea Digilio Miller, Oklahoma County Public Defender's Office, Oklahoma City, Oklahoma, attorney for appellant on appeal.

W.A. Drew Edmondson, Oklahoma Attorney General, Seth S. Branham, Assistant Attorney General, Oklahoma City, Oklahoma, attorneys for appellee on appeal.


A. JOHNSON, Presiding Judge.

¶ 1 Appellant Gilbert Ray Postelle was tried by jury and convicted in the District Court of Oklahoma County, Case No. CF-2005-4759, of four counts of First Degree Murder (Counts 1-4), in violation of 21 O.S.Supp.2004, § 701.7, and one count of Conspiracy to Commit a Felony (Count 5), in violation of 21 O.S.2001 § 421.1 The jury imposed the death penalty on Counts 1 and 4 after finding that Postelle created a great risk of death to more than one person and that each of those murders was especially heinous, atrocious or cruel. 21 O.S.2001, § 701.12(2) & (4). The jury fixed punishment at life imprisonment without the possibility of parole on Counts 2 and 3 and ten years imprisonment on Count 5. The Honorable Ray C. Elliott, who presided at trial, sentenced Postelle accordingly and ordered the sentences in Counts 2, 3 and 5 to be served consecutively. From this judgment and sentence Postelle appeals. We affirm.


¶ 2 On Memorial Day, 2005, James Donnie Swindle, Terry Smith, Amy Wright and James Alderson were shot to death outside Swindle's trailer located next to a salvage yard and alignment shop in an industrial area of Del City, Oklahoma. 2 Several witnesses in the area heard multiple gunshots and saw a maroon Dodge Caravan leaving the salvage yard shortly after the shots were fired. The owner of a flower shop nearby saw four men in the minivan; she testified that the men had dark hair and that she believed they were either Caucasian or Hispanic. A security camera across the street from the salvage yard captured on videotape the minivan entering and leaving the salvage yard driveway. Neither the license tag nor the occupants could be seen on the videotape. Sandra Frame, a bartender working at a bar next to the alignment shop, heard gunshots around 6:15 p.m. She heard the minivan accelerating and saw it leaving the crime scene. She could see there were at least two men in the minivan and she observed them laughing. She glimpsed the man in the passenger seat for a few seconds; he was young with dark hair and facial hair, possibly Hispanic. She was later shown a photographic lineup and was " eighty-five percent sure" that David Postelle was the man she saw in the passenger seat of the minivan that day.

¶ 3 Oklahoma City Police Officer Rocky Gregory was on traffic duty down the street from the salvage yard when two people approached him and reported hearing gunfire from the vicinity of the salvage yard. Gregory and his partner investigated and found Smith and Swindle, each dead from multiple gunshot wounds. The bodies of the two other victims, Alderson and Wright, were discovered further north after other officers arrived.

¶ 4 Several people who were at the Postelle home on Memorial Day testified at Gilbert Postelle's trial, including Crystal Baumann,3 Arthur Wilder, 4 Alvis " Jay" Sanders 5

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and Randall Byus.6 The Postelle home was routinely used by these four and others as a place to smoke methamphetamine in the " smoke room." Memorial Day 2005 was no different. Crystal Baumann and Arthur Wilder, admitted methamphetamine addicts, testified they had gone to the Postelle home on Memorial Day to get high. On that day, they both said, Gilbert and David Postelle talked about their belief that Donnie Swindle was responsible for the motorcycle accident that left their father, Brad, both physically and mentally impaired.7 Wilder recalled Gilbert and David Postelle naming Swindle as one of those responsible for the accident and saying that those responsible were " going to pay" for the damage done to their father.8 Their conversation subsequently turned to target shooting. Wilder had come equipped with his newly acquired MAK-90 rifle to go target shooting with the Postelle brothers.9 David Postelle had an SKS rifle he used for target practice. Because they needed ammunition, Gilbert Postelle, Baumann and Wilder went to a house in Del City where a friend gave Gilbert Postelle a speed loader for the MAK-90 rifle and a bag of bullets that could be used in both the MAK-90 and SKS rifles.

¶ 5 Later that day, Gilbert, David and Brad Postelle, along with Wilder, Baumann and Randall Byus left in the Postelles' maroon Dodge Caravan. Baumann denied knowing about a plan to shoot Swindle at the time they left. She and Wilder were dropped off at the home of Wilder's brother. Wilder, however, testified that he had heard the Postelles talking about a plan to go to Swindle's house and shoot him. He was unsure they would go through with it, but their conversation worried Wilder enough to insist the Postelles take him and Baumann home. Hours later David Postelle returned Wilder's MAK-90 to him. Wilder and Baumann took the gun to their storage unit and hid it. Wilder heard about the murders from a friend, put " two-and-two together" and worried that the rifle he had left in the Postelles' minivan had been used in the murders. Wilder's fear that the Postelles had used his rifle to commit murder was confirmed when he saw the Postelles' minivan leaving Swindle's property on a surveillance camera video on the local news. A few days after the murders, Gilbert Postelle told Wilder how he had chased everyone outside after breaching the door of Swindle's trailer

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and how he then shot them outside. Gilbert Postelle then noticed Baumann standing nearby and ordered her to keep quiet about what she had overheard.

¶ 6 Jay Sanders testified that he had been living at the Postelle home the month before the murders.10 Sanders said that the patriarch, Brad Postelle, talked about having bad dreams about his motorcycle accident and his conviction that Swindle was responsible for that accident. According to Sanders, Gilbert and David Postelle were devastated by the accident and its effect on their father.

¶ 7 On Memorial Day, Sanders said he was in and out of the smoke room throughout the day, getting high and working on his broken-down van. Sanders was in the smoke room when he learned that the Postelles were going to go target shooting. Sanders said someone put the SKS rifle in the Postelles' minivan, and he helped Brad Postelle into the van. David, Gilbert and Brad Postelle left with Wilder and Byus, but only the Postelles returned.11 Later that night or the next morning, Sanders learned of the murders from the news; all the television sets in the Postelle home were tuned to news stations showing the security videotape of the minivan entering and leaving the murder scene. The Postelles also received several telephone calls from friends telling them about the murders. Sanders recalled that the Postelle home had " a different kind of atmosphere" and that there was a lot of whispering among the Postelle family.

¶ 8 Sanders testified that a couple of days after the murders, the Postelles were discussing different ideas about what to do with the minivan " since it might be the van on the news." It was decided that Sanders and Daniel Ashcraft would take the minivan to Indiana, set it on fire and ultimately put it in a lake.12 Sanders wiped the van down and drove it to Indiana to the home of a Postelle relative. Sanders also purged the Postelle home of drugs and drug paraphernalia. He buried gun parts and the minivan license plate in the backyard. After Sanders returned from Indiana, he was privy to a conversation in which Gilbert Postelle said, " I shut that bitch up in the corner" and mimed shooting a rifle at someone. Sanders testified that he, Gilbert, David and some other Postelle family members discussed fabricating a story for the police to shield the Postelles from being implicated in the murders.

¶ 9 The State's firearm and toolmark examiner examined the many casings collected at the murder scene and determined that they were fired from two guns: Wilder's MAK-90 rifle and another rifle, possibly an SKS rifle. David Postelle's SKS rifle was never found. Law enforcement located the Postelles' van in Indiana and searched it. The alterations to the van observed by the investigators were consistent with Sanders's testimony about efforts to disguise it.

¶ 10 Randall Byus was with the Postelles when they shot the victims. According to Byus, he accompanied the Postelles, Wilder and Baumann, believing the Postelles were taking Baumann and Wilder home and then going target shooting. He saw Wilder's MAK-90 and David Postelle's SKS rifle in the Postelles' minivan. Nothing appeared unusual as they dropped off Baumann and Wilder. When David Postelle turned the van around and headed away from their normal place for target shooting, Byus asked where they were...

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