Ellis v. State

• Decision Date: 16 February 2012
• Docket Number: No. CR 11–604.,CR 11–604.
• Citation: 386 S.W.3d 485,2012 Ark. 65
• Parties: Tyrone Allen ELLIS, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 65

386 S.W.3d 485

Tyrone Allen ELLIS, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–604.

Supreme Court of Arkansas.

Feb. 16, 2012.

David W. Talley, Jr., Magnolia, for appellant.

Dustin McDaniel, Atty. Gen., Karen Virginia Wallace, Office of Atty. Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Tyrone Ellis appeals his conviction of first-degree murder and his sentence of life in prison on grounds of insufficient evidence and an improper inquiry by the prosecuting attorney into the nature of Ellis's prior felonies. We find no reversible error, and we affirm.

The events leading up to the murder transpired on March 14, 2010, and occurred after Keith Thomas and Ellis argued outside Thomas's home in Magnolia. According to witnesses, Ellis became upset when Thomas, his stepfather, refused to let him drive his white Chevy Blazer. A jury determined that Ellis shot Thomas in the chest and killed him. Ellis was also convicted on a second count, felon in possession of a firearm, in connection with the same incident. He was sentenced to a term of life imprisonment on the first-degree murder count and 360 months on the felon-in-possession count.

The testimony at trial consisted of the following. On March 14, 2010, Ellis and Thomas were seen riding together in Thomas's car, a white Chevy Blazer, in Magnolia. Around 11:30 in the morning that day, Ellis and Thomas returned to Thomas's home. One witness, Paul McBride, testified that Thomas stated Ellis was mad because Thomas would not let Ellis use the Blazer. About twenty or thirty minutes later, Ellis and Thomas left Thomas's house a second time. When they returned, Ellis got out of the Blazer with a gun in his hand. Thomas went into his home and retrieved a gun and, according to the witness, said, “Somebody needs to go talk to that boy.”

At that point, McBride, brother-in-law to Thomas and uncle to Ellis, testified that he was outside working on his car on that day when he saw Ellis fire his pistol, a long-barreled handgun with a brown handle, at Thomas. McBride added that he heard Ellis tell Thomas “he was going to kill him.” In response to that, according to McBride, Thomas fired a shot into the air. At that point McBride called 911. When he returned, Thomas and Ellis were inside McBride's home. McBride testified that Ellis told Thomas, “If you don't let me go, I'll kill you.” Thomas did let Ellis go, after Ellis fired a shot into the floor of the home.

McBride continued testifying that Ellis returned to McBride's home and fired another shot at Thomas. Ellis was about fifty feet away at that point and did not hit Thomas. Ellis ran behind the home but returned and confronted Thomas again. This time, the two men were separated by about the width of a car. According to McBride, Ellis said, “I'm going to kill you,” and fired a third shot at Thomas. This shot hit Thomas in the chest. Thomas tried to run, but fell. McBride then testified that Ellis said “I don't care about that nigger,” and began threatening another witness, Jonathan Ellis, by saying, “If you testify against me, I'm going to kill you.” McBride also testified that the gun Ellis used would misfire every time he tried to shoot it. McBride identified a picture of the gun at trial as the one Ellis used.

Jonathan Ellis testified that Thomas was his stepfather and Ellis was his brother. Like McBride, Jonathan testified that his brother often carried a pistol with a brown handle. He further identified the gun as a .22–caliber revolver pistol. Jonathan also stated that Tyrone Ellis fired twice at Thomas without hitting him and that Thomas fired once in the air. He corroborated McBride's testimony that the final confrontation between the two men occurred outside when the two men were standing on either side of a parked car. Jonathan stated that Ellis walked up and fired once but the pistol snapped, or misfired, so he fired again. A third shot hit Thomas, who said to Jonathan, “He shot me,” before falling to the ground. Jonathan added that Ellis said “If I testified against him, he would kill me, too.” Jonathan acknowledged that during the final confrontation, Thomas had a gun but was not pointing it at Ellis. He added that after the shooting, Ellis ran off into the woods carrying the gun he had used to kill Thomas.

In addition to the testimony from McBride and Jonathan, Kevin McCray testified that he was at McBride's home on the day Ellis shot Thomas. McCray stated that he knew both Thomas and Ellis prior to the incident. He recalled seeing the two men getting out of Thomas's Blazer sometime after lunch. He testified that they were arguing and that he tried to calm Ellis down by talking to him while they were inside McBride's home. McCray stated that Ellis had a .22–caliber revolver with a brown handle. He added that when he tried to take the gun from Ellis, Ellis snatched it back and fired into the floor of McBride's home. According to McCray's testimony, Ellis told him if he did not “get back he'd kill me too.” McCray also reported hearing the gun click several times before it would fire. McCray stated that when Ellis left McBride's home, he was headed toward Thomas with the gun pointed at Thomas. After that, McCray testified that he ran from the home when he heard one or two shots. McCray did not return to the area until law enforcement arrived, at which point he saw Thomas lying on the ground and Ellis running behind McBride's home. McCray identified a picture of the gun at trial as the gun that Ellis had in the house on the day of Thomas's death. McCray finally testified that he heard Ellis say, “I'm going to kill that mother fucker,” before Thomas was shot.

Greg Hawley, a deputy sheriff with the Columbia County Sheriff's Office, testified that he responded to a call on March 14, 2010, at the McBride home. When he arrived, there was a large group of people in the front yard, and McBride informed him that someone had been shot. Hawley stated that McBride told him that the one who “had done the shooting had ran around behind the house.” Hawley testified that he and his partner, Deputy Whitaker, began looking behind the house and that Whitaker later arrested Ellis who was found behind the house. Hawley added that he and his partner performed a pat down on Ellis but did not look inside his pockets before placing him in their car.

Michael Richardson, a jailer at the Columbia County Detention Facility, testified that he searched Ellis after he was brought in by the deputy sheriffs. Richardson testified that he found three or four empty .22–caliber cartridges in the pocket of Ellis's blue jeans and that he turned those casings over to a detective at the facility.

Brent McMahen, a criminal investigator with the Columbia County Sheriff's Office, testified that he also responded to the McBride home on March 14, 2010. When he arrived, he was met by several deputies and was told that there had been a shooting. After determining that the victim had been transported to the hospital, McMahen began interviewing people at the scene. He also called for a search dog to begin searching for the weapon that was used. The next day, McMahen recovered a revolver with a brown handle from the woods behind Thomas's home. McMahen identified a picture of the gun at trial as the gun he had recovered from the woods.

McMahen added that there were a number of smudges on the gun but no useable fingerprints were found. Next, he opened the cylinder of the gun and found a number of shells. The revolver in question had six chambers and would hold a maximum of six rounds. McMahen recovered four spent shell casings and one live round from the gun. One chamber in the revolver was empty. The spent shell casings were for a .22–caliber long rifle, while the live round was a Winchester cartridge. All the spent shell casings were branded CCI. McMahen further testified that the .22–caliber long-rifle shells would fit extremely loosely in each chamber, resulting in misfires. McMahen testified that the spent shell casings were the same type and kind as two of the three casings recovered from Ellis's pocket by Richardson at the detention facility. The third casing that Richardson found was also a .22 caliber, but it was a Federal brand, not a CCI.

McMahen testified that he did not try to get fingerprints off the casings during his investigation, and he also admitted that he could not match the gun recovered from the woods to the bullet that killed Thomas. Likewise, Rebecca Mullen, a firearms examiner for the Arkansas State Crime Laboratory, testified that she was unable to determine if the gun found by McMahen was the gun that fired the fatal bullet. Mullen was also unable to confirm if the empty casings recovered from Ellis's jeans pocket were fired from the gun recovered by McMahen.

Adam Craig, a medical examiner with the Arkansas State Crime Laboratory, told the jury that Thomas died as a result of a single gunshot to his chest that pierced through his heart and diaphragm. Craig stated that he recovered a small caliber bullet from Thomas's body. He further testified that, although he could not identify the exact caliber of the bullet recovered, a .22 caliber would be considered a small caliber. Craig determined that the gunshot wound was a noncontact wound.

In his defense, Ellis took the stand and testified that he did not shoot Thomas; that he did not have a firearm on March 14, 2010; and that he did not make any threats to his stepfather on that date. He also testified that the three empty shell casings removed from his pocket were actually found on the top of a trash can in the backyard of Thomas's home and the jailer never recovered any shell casings from his pocket at the jail. His testimony was that Thomas was upset because he quit a job that Thomas had helped him get. He further testified that he knew Thomas carried a gun with him, but he did not think Thomas would hurt him. According to Ellis, the...