Eizember v. State

• Decision Date: 26 July 2007
• Docket Number: No. D-2005-319.,D-2005-319.
• Citation: 164 P.3d 208,2007 OK CR 29
• Parties: Scott James EIZEMBER, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

164 P.3d 208

2007 OK CR 29

Scott James EIZEMBER, Appellant v. STATE of Oklahoma, Appellee.

No. D-2005-319.

Court of Criminal Appeals of Oklahoma.

July 26, 2007.

As Corrected August 10, 2007.

An Appeal from the District Court of Canadian County; the Honorable Joe Sam Vassar, District Judge.

Craig D. Corgan, Charles T. Laughlin, Janet Chesley, Oklahoma Indigent Defense System, Norman, OK, counsel for appellant at trial.

Max Cook, District Attorney, Mike Loeffler, Pamela Hammers, Assistant District Attorneys, Sapulpa, OK, counsel for the State at trial.

Lee Ann Jones Peters, Jamie D. Pybas, Oklahoma Indigent Defense System, Norman, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, P.J.

¶ 1 Appellant Scott James Eizember was tried by jury and convicted of Second Degree Felony Murder (Count I) (21 O.S.2001, § 701.8(2)); First Degree Malice Murder (Count II) (21 O.S.2001, § 701.7(A)); Assault and Battery with a Dangerous Weapon (Count III) (21 O.S.2001, § 645); Shooting with Intent to Kill (Count IV) (21 O.S. 2001, § 652); First Degree Burglary (Count V) (21 O.S.2001, § 1431); and Second Degree Burglary (Count VI) (21 O.S.2001, § 1435), Case No. CF-2000-35, in the District Court of Canadian County.¹ In Count I, the jury recommended a prison sentence of one hundred fifty (150) years. In Count II, the jury found the existence of two aggravating circumstances and recommended the punishment of death. In Count III, the jury recommended a sentence of ten (10) years imprisonment and a ten thousand dollar ($10,000.00) fine. In Count IV, the jury recommended life imprisonment and a ten thousand dollar ($10,000.00) fine. In Count V, the jury recommended twenty (20) years imprisonment and ten thousand dollar ($10,000.00) fine.² The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.³

¶ 2 The State's evidence showed that on a late September afternoon in 2002, Appellant rode into Depew, Oklahoma. Literally. Riding a bicycle, Appellant stopped at the edge of a flower bed in front of the Methodist Church. There he met John Wright who was mowing the church lawn. Appellant told Mr. Wright he was riding his bicycle cross country from Detroit, Michigan, to San Diego, California, to raise money for victims of the September 11th terrorist attacks. Appellant asked Mr. Wright if he could pitch a tent and sleep overnight on the church lawn. Mr. Wright offered to let Appellant spend the night in the air-conditioned fellowship hall inside the church. Appellant took Mr. Wright up on his offer, and even attended church services the following morning. Thus began a friendship between the two men. Mr. Wright introduced Appellant to church members, his neighbors, A.J. and Patsy Cantrell, and his family, Carla, his wife, and his daughter and son-in-law, Kathy and Mark Biggs.

¶ 3 Mark Biggs had a machine he used in his boot and western wear store which was not working properly. Appellant said he had been an engineer at the Ford Motor Company and he could fix the machine. Mr. Wright took Appellant to the Biggs' home and Appellant worked on the machine. Appellant spent that night at the Biggs' home. A couple of days later, Appellant told the Wrights and the Biggs he needed to go to Edmond, Oklahoma. They advised Appellant it would not be safe to ride his bicycle, and agreed to drive him there.

¶ 4 The Wrights and Biggs did not hear from Appellant again until close to Thanksgiving when they learned he was arriving at the Tulsa bus station. At Mrs. Wright's request, Mark Biggs picked up Appellant at the bus station and drove him back to Depew. Appellant told Biggs his wife and two young children had died in a car crash, that he did not have any place to live, and did not need to be back in Detroit anytime soon. Appellant shared Thanksgiving dinner with the Wrights and Biggs and stayed at the Biggs' home.

¶ 5 During this time, Appellant and Kathy Biggs developed a romantic relationship. On December 13, Appellant told Mark Biggs he and Kathy were in love. Appellant said he was getting a court settlement from a trucking company for over one million dollars and he wanted Mark Biggs to move out. Biggs moved out that day.

¶ 6 Mark and Kathy subsequently divorced. Appellant and Kathy lived together until the summer of 2003 when their relationship soured. At that time, Appellant and Kathy shared an apartment in Tulsa. In July, Kathy worked as a registered nurse in Lawton, working six days on and six days off. When she was not working, she returned to the Tulsa apartment. However, by August 2003, she told Appellant to leave the apartment, had the utilities turned off, obtained a protective order against Appellant, and moved back to her parents' home in Depew. In September, she realized she had forgotten to contact the cable company. When she finally did, she learned that someone had been in the apartment watching the cable channels the past 24 to 36 hours. Sure that Appellant had broken into the apartment, Kathy immediately phoned the Tulsa Police Department. Appellant was inside the apartment when the police arrived. He was arrested for burglarizing the apartment and incarcerated in the county jail. While awaiting disposition of the charges, he told a cellmate that his girlfriend was a "pharmaceutical rep", she was dealing drugs and that he was going to "get even" with her. Appellant was released from custody in October 2003.

¶ 7 On October 18, 2003, Appellant broke into the home of A.J. and Patsy Cantrell. The elderly couple lived across the street from the Wrights. Once inside, Appellant found a .410 shotgun that he loaded with shells from the residence. Patsy Cantrell was soon dead from a gunshot to the back and A.J. Cantrell was dead from multiple blunt force traumas to the head. Their bodies were later found on the bathroom floor, with Patsy's body lying on top of her husband. Their Chihuahua dog was found cowering in the bathroom near the bodies.

¶ 8 After killing the Cantrells, Appellant walked across the street to the Wright residence. He jerked open the front door and found 16 year old Tyler Montgomery, Kathy Biggs' son, seated in a recliner watching television. Montgomery saw Appellant come through the door carrying a shotgun with an "angry look on his face." Montgomery knew Appellant was not welcomed in the Wrights' home. He immediately jumped up and ran towards the kitchen where his grandmother, Carla Wright, was baking cakes for her Sunday school class. Before Montgomery could get to the kitchen though he was struck in the lower back with shot from the shotgun. The force of the shotgun blast pushed Montgomery to the ground. Appellant stepped over Montgomery's body and entered the kitchen. There he proceeded to beat Carla Wright with the end of the shotgun, inflicting at least four severe blows to her head.

¶ 9 While Appellant was beating his grandmother, Montgomery was able to get up, although with great difficulty, and run to the back of the house looking for a weapon. Unbeknownst to Montgomery, the guns had been moved to another part of the house. Unable to find a weapon, Montgomery ran out the back door and jumped into his pickup. The armed Appellant saw this and followed him outside. Upon seeing Appellant, Montgomery locked the doors to the pickup and backed out of the driveway. Appellant jumped into the bed of the pickup and reloaded the shotgun. Montgomery drove erratically trying to throw Appellant out of the pickup. Appellant not only remained in the pickup, but fired at Montgomery through the back windshield of the pickup. The shot hit Montgomery in the shoulder.

¶ 10 After being shot, Montgomery drove the truck through several ditches before purposely crashing the truck into large metal pole at the entrance to the Depew Sports Complex. He knew he could get help there as his grandfather was announcing the local football game. After the crash, Montgomery jumped out of the truck and ran for help. As a crowd gathered around the bloodied Montgomery, Appellant jumped out of the back of pickup and began walking in the opposite direction. He was still carrying the shotgun.

¶ 11 John Inman was driving down the street when he saw the bloodied Appellant. He had never met Appellant before, but heard the crash of the pickup and went to investigate. Inman told his girlfriend to get out of the car that he was going to offer Appellant a ride. Appellant accepted Inman's offer. Inman noticed when Appellant got into the car that the hammer on the shotgun was cocked. Appellant told Inman he was going to the Wrights' residence. Inman told Appellant he should go to the hospital due to the large gash on his forehead, which was bleeding profusely. Appellant agreed, but said he needed to get some personal items from home first.

¶ 12 At Appellant's direction, Inman drove Appellant approximately seven miles east to Airport Road near Bristow. Finding himself on a country road, with the next road nearly three miles away, Inman became suspicious of Appellant and his intentions. Inman told Appellant to unload the shotgun. When Appellant refused, Inman repeated his demand. Appellant looked at the shotgun, opened the passenger door and began to slide out. As he did, he raised the barrel of the shotgun. Believing he was about to be shot, Inman grabbed the barrel of the shotgun and pushed it away from his head. Appellant fired and the shot barely missed Inman's hand and head. Inman threw his car into drive and sped off. In the rear view mirror, he saw Appellant running after him, reloading the gun. Inman drove straight to the police department.

¶ 13 In the meantime, Carla Wright had managed to recover just enough from her beating to look for help. Barely able to see due to the blood dripping down her face, she walked across the street to the...