Ellis v. State

• Decision Date: 05 September 2003
• Docket Number: No. F-2001-924.,F-2001-924.
• Citation: 2003 OK CR 18,76 P.3d 1131
• Parties: Antonio Garcia ELLIS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

76 P.3d 1131

2003 OK CR 18

Antonio Garcia ELLIS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-2001-924.

Court of Criminal Appeals of Oklahoma.

September 5, 2003.

As Corrected September , 2003.

Mickey Homsey, Terry McMillian, Oklahoma City, OK, counsel for appellant at trial.

Shannon Henson, Joellyn McCormick, Assistant District Attorneys, Oklahoma County District Attorney's Office, Oklahoma City, OK, counsel for the State at trial.

Michael D. Morehead, Okla. Indigent Defense System, Norman, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R.Holmes, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, Judge.

¶ 1 Appellant, Antonio Garcia Ellis, was tried by jury in the District Court of Oklahoma County, Case Number CF-1999-218 and convicted of First Degree (Felony) Murder, in violation of 21 O.S.Supp.1998, § 701.7(B). The jury set punishment at life imprisonment without the possibility of parole, and the trial judge sentenced Appellant in accordance with the jury's determination. Appellant now appeals his convictions and sentences.

¶ 2 On January 6, 1999, at approximately 10:40 p.m., Christopher David Terry was washing and vacuuming his white Ford Explorer at the Vend-A-Car Wash in Oklahoma County, when he received a fatal gunshot wound to his chest. Terry was a teacher at Grace Christian Academy, and his murder received a great amount of media attention.

¶ 3 The bulk of the State's case against Appellant, a Putnam City High School student, centered upon the eyewitness testimony of Michael Lang.¹ At 10:41 p.m. on the night in question, Lang called 911, identified himself, and told the Warr Acres operator he had heard a gunshot. Lang said, "I've got someone on the ground over here...." Police arrived within a minute and found Terry lying outside his vehicle, bleeding profusely. Lang was still near the pay phone from which he had called.

¶ 4 Lang testified he was walking north on Ann Arbor Street that night when he saw Appellant. Lang knew who Appellant was because Lang knew Appellant's brother. Appellant reportedly approached Lang, who was smoking a cigar, and asked if he could have one. Lang did not have another cigar, so he allowed Appellant to drag his. As they approached 50th Street, Appellant brought Lang's attention to a white Ford Explorer and said he was going to "get that nigger." Terry had been vacuuming the Explorer.

¶ 5 According to Lang, Appellant approached Terry, pointed a gun at him, repeatedly yelled "give me the keys," and then shot Terry. Lang saw Terry try to block himself from the bullet by putting his arm up. Lang did not see Terry act aggressively and never heard him say a word. As Terry fell to the ground, Lang claimed Appellant briefly searched his body and then ran from the scene.

¶ 6 Lang testified he and Appellant were the only ones around when Terry was shot; he saw no one leave by a car.

¶ 7 Lang originally told police he had heard a gunshot and simply wandered upon the scene. He said nothing about knowing the shooter. His story began to change over time. At some point, he admitted seeing the shooting, but he told police his eyesight is bad and he did not know if the shooter was black or white. After flunking a polygraph exam, Lang admitted he knew more than he had originally reported, and he implicated Appellant as the murderer.

¶ 8 Lang testified at trial that he had lied originally because he didn't want to get involved and didn't want anything to happen to him or his family. Appellant lived quite close to Lang, and, according to Lang, Appellant always wore blue clothing, which is the color worn by Crips gang members. Lang had assumed Appellant was in a gang, and he believed he might get shot if he told the truth. Lang was thoroughly cross-examined regarding the varying versions of the incident he reported to the police, including that he had lied to police up to eleven times. The lead investigating police officer admitted during cross-examination he originally made a recommendation to the District Attorney's office to charge both Appellant and Lang with the murder. Additionally, police officers admitted the case depended heavily on Lang's testimony.

¶ 9 Police confronted Appellant at his apartment home the following day. After knocking on the door and announcing themselves, a female opened the door. Appellant, standing behind her, appeared startled and began moving rapidly toward the back sliding glass door. Officers stopped him and took him into custody. Appellant was wearing clothing that closely matched the description given by Lang. When told he was under arrest for murder, Appellant's only words were "[f]uck you, mother fucker. Get out of my face."

¶ 10 An OSBI criminalist tested four samples from Lang's hands taken on the night of the murder and found no gunshot powder residue. An OSBI firearm examiner tested eight items of clothing from Appellant and one from Lang. No gunshot residue particles were found. Another expert testified that the fatal shot was made from a distance of between one to two feet away from the victim. However, the murder weapon was never located.

¶ 11 Appellant's friend, Justin Ward gave written and oral statements to police as follows: prior to the murder, Appellant told Ward he wanted a nine-millimeter gun for protection;² Appellant told him on the day after the murder, while they were at school, that he shot Terry after trying to rob Terry of his Ford Explorer; and Michael Lang (whom Ward knows casually) was there when Appellant attempted to rob Terry.³ At trial, Ward testified he lied to police. He claimed these statements were false and were given because police were accusing him of being connected to the murder. Ward claimed the police threatened him repeatedly. He admitted to being afraid of Appellant and seemed concerned about Appellant's possible gang affiliations, although he later testified he was not afraid and there were no gang affiliations. (At the preliminary hearing, Ward testified Appellant was a member of the Rolling 60's Crips.) At one point, Ward admitted lying during his direct examination.

¶ 12 Ward testified he was in a Homebound program⁴ on the day Appellant supposedly told him about shooting Terry.

¶ 13 Following several interviews with Lang, Lieutenant James Bauman of the Warr Acres Police Department went to Appellant's home, at about 6:00 p.m. on the day after the murder. Bauman asked Appellant's stepmother, Valencia Brown, when Appellant had come home the night before. Mrs. Brown said she did not remember. Mrs. Brown then spoke to her husband on the phone, and Bauman overheard Mrs. Brown tell her husband, "I believe that's what the detective and I are talking about, and I believe he came in at 11 o'clock."

¶ 14 During the trial, however, Mrs. Brown testified Appellant was home on the night in question. She asked him to go get her an Icee at about 9:00 to 9:30 p.m. Appellant left and returned with the Icee ten or fifteen minutes later, before 10 p.m. She saw him playing video games later on. At about 10:45, she asked Appellant's brother Timmy where Appellant was, and Timmy said he had already gone to bed. She saw a telephone cord leading into Appellant's bedroom. Mrs. Brown testified she could hear the door make a bang if someone left the house, and she did not hear a bang that night between 10 and 11 p.m. On cross-examination, however, Mrs. Brown admitted she had told her husband on the phone that Appellant came in at 11 p.m. and that this was still "true today."

¶ 15 Appellant's then girlfriend, Mallory Simms, testified Appellant came over to her apartment at 9:30 p.m. on the night of the murder. They talked for about ten minutes, and he left. Appellant called her later that night, at 10:15 p.m., and they spoke for thirty minutes. When Appellant was arrested, Mallory told her mother that they had been talking on the phone when the crime occurred. This story was somewhat corroborated by Mallory's mother Melanie.

¶ 16 Melanie testified that Mallory received a call from someone at 10:15 p.m. on the night in question. Melanie remembered the call because Mallory was not supposed to receive calls after 10:00 p.m. She yelled at Mallory to get off the phone. Mallory told her the day after Appellant was arrested that she had been talking on the phone to Appellant at the time the murder allegedly occurred. Her mother, however, did not contact the police. When police contacted her, Melanie and Mallory told the police that Appellant was on the phone with Mallory during the relevant time period. Melanie testified the police did not seem to believe the story. Melanie had a caller ID machine, but did not check it to verify the story. At the preliminary hearing, she testified she was in the habit of erasing the calls received on at least a daily basis.

¶ 17 Don Lowry testified that he was in his home near the Vend-A-Car-Wash on the night in question at about 10:30 to 10:35 when he heard a gunshot or car backfire. Moments later, he heard tires squealing from a car that was leaving the area pretty fast. Soon afterward, he heard emergency vehicles.

¶ 18 Jason Doty testified he was delivering pizzas in the area that night when he saw a dark colored car pull out of the car wash at about 10:30 p.m. Doty then saw a black male lying on the ground near a truck and another black male standing by a pay phone. Doty went to his apartment and called 911.

¶ 19 Harland Lewis testified that he was driving near the area of the car wash that night at about 10:30 p.m., when he saw a young male run across the street in front of him. He believed the young man had on dark clothing, no hat, and was about six feet tall. Lewis originally reported the man was African American, but he could not really recall his race. Moments later, he saw a young man at the car wash walking around in circles and throwing his hands up in the air, like...