Ellis v. State

• Decision Date: 24 July 1992
• Docket Number: No. F-86-887,F-86-887
• Citation: 1992 OK CR 45,867 P.2d 1289
• Parties: Cyril Wayne ELLIS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1289

867 P.2d 1289

Cyril Wayne ELLIS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-887.

Court of Criminal Appeals of Oklahoma.

July 24, 1992.

Opinion Denying Rehearing Jan. 26, 1994.

An Appeal from the District Court of Oklahoma County; Raymond Naifeh, District Judge.

CYRIL WAYNE ELLIS, Appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-86-651, on three

counts of Murder in the First Degree and four counts of Shooting With Intent to Kill. The jury returned a verdict of guilty on each count and set punishment at death for each count of murder, together with sentences of 2,000 years, 3,000 years, 1,000 years and 1,000 years for the counts of Shooting With Intent to Kill, and he appeals. The Judgments and Sentences are AFFIRMED and appellant's motion for a new trial or in the alternative, an evidentiary hearing, is hereby DENIED.

ON REHEARING

Cyril Wayne Ellis, appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-86-651, on three counts of Murder in the First Degree and four counts of Shooting With Intent to Kill. Punishment was set at death for each count of murder and 2,000 years, 3,000 years, 1,000 years and 1,000 years for the four counts of Shooting With Intent to Kill. We affirmed the convictions and sentences on July 24, 1992. On August 13, 1992, appellant filed a Petition for Rehearing pursuant to 22 O.S.1991, Ch. 18 App., Rules of the Court of Criminal Appeals, Rule 3.14(B). After further reconsideration, we again AFFIRM the Judgments and Sentences, and appellant's request for relief is DENIED.

Lee Ann Jones Peters, Chief of Appellate Div., Oklahoma County Public Defender, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

Susan B. Loving, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Chief, Criminal Div., Oklahoma City, for appellee on rehearing.

OPINION

JOHNSON, Judge:

CYRIL WAYNE ELLIS, appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-86-651, on three counts of Murder in the First Degree and four counts of Shooting With Intent to Kill. Appellant was represented by counsel. The jury returned a verdict of guilty on each count and set punishment at death for each count of murder, together with sentences of 2,000 years, 3,000 years, 1,000 years and 1,000 years for the counts of Shooting With Intent to Kill. Appellant appeals to this Court.

The scenario and trail of horror in this case started on January 26, 1986, when the appellant got into an argument with his fiancee, Cheryl James. For the first time in their relationship of over a year he struck her and then later that day when in remorse and in the girlfriend's presence took pills in an apparent suicide attempt. Cheryl then drove him to Presbyterian Hospital where he was hospitalized for a few days and then transferred to the psychiatric ward of St. Anthony's Hospital. On January 29th Cheryl went to visit him and after a couple of hours left. When she got to her car, the appellant came running out behind her and forced her to take him with her. She became afraid and tried to get away from him and managed to get help from a security guard at the Sheraton Center in downtown Oklahoma City. She told the security guard that appellant was acting crazy and he had just gotten out of a mental ward. An altercation occurred and police arrived but they failed to arrest the appellant. Later on January 29, appellant attempted to purchase a hand gun, by falsely telling the store clerks that he operated a restaurant and needed a gun for protection. Appellant did not have enough money to purchase the gun, but a store clerk agreed to loan appellant a gun that he owned. Appellant purchased some bullets for the gun and left the store.

The next morning, appellant was riding around and observed his fiancee, Cheryl James, riding in a car with her sister's boyfriend, Robert Dumas. Appellant pulled along the car and had a conversation with Ms. James through the windows. When Dumas tried to drive away, appellant chased him and fired at his car. Dumas drove into a yard seeking help and appellant blocked him in. Ms. James jumped out and ran for help. Appellant pointed his gun at Dumas and forced him to get into the trunk of the car. When Dumas beat on the trunk for help, appellant opened it and said, "I see you don't want to live." Appellant fired two shots into Dumas' body and shut the trunk. Dumas survived his injuries.

Appellant next went to Dumas' home, where Ms. James had spent the night with her mother and her sister, Teresa Thomas. Only Ms. Thomas and her six-year-old daughter, Tameca, were at home. Using the butt of a gun, appellant knocked a front window out and shot Ms. Thomas inside the house. When she ran to the back yard, appellant followed and shot her several more times, fatally wounding her. Tameca was found on the back steps of the house. She had been shot three times. Although critically injured, Tameca recovered and testified at trial.

Appellant then returned to his house to retrieve more ammunition before proceeding to his place of employment. Appellant encountered Gordon Moore in the parking lot and ordered him to kneel down on the ground between two cars. Appellant shot him in the face. Mr. Moore, who also recovered, played dead until appellant left. Appellant next went into an office, where he shot Carl Lake. Witness testified hearing Mr. Lake telling appellant to leave, and then hearing a second shot. Mr. Lake was fatally wounded. Appellant then fired at James Rider from the top of a loading dock. After Mr. Rider staggered and fell to the ground, appellant shot him again. Mr. Rider was fatally wounded. As appellant was driving away, a number of men ran out of the place into the parking lot. Appellant stopped, opened fire, reloaded, fired again, and drove away. Ancil Davis was hit but survived.

At trial, appellant did not deny these acts, but raised the defense of insanity.

ISSUES RELATED TO JURY SELECTION

Appellant claims that he was deprived of his right to trial by a jury composed of a fair cross-section of the community because his jury panel was summoned from a list of registered voters. He claims that this scheme systematically resulted in under-representation of racial minorities.

The record reveals that thirty-five people were examined as potential jurors or alternate jurors at appellant's trial. All but four of these identified themselves by race. Of the thirty-one whose races are known, twenty-one may be described as being of European descent, four of Black, four of Native American, one of Asian, and one of Hispanic. Census data was offered to show that in 1980 the population of Oklahoma County contained 82.49 percent Caucasians, 12.35 percent Blacks, 2.51 percent Native Americans, .99 percent Asians, and 1.66 percent others. The known composition of persons examined at trial was 67.74 percent Caucasian, 12.90 percent Black, 12.90 percent Native American, 3.23 percent Asian, and 3.23 percent others. Assuming that the 1980 census data on which appellant relies was still reasonably accurate at the time of his trial, the only group under-represented in this case was Caucasian. The record does not support appellant's assertion that minorities were under-represented due to systematic exclusion. Cf. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Even if we were to accept appellant's contention that one of the Blacks should be considered a Native American, we are compelled to find that any under-representation of Blacks was so slight that there was no violation of the fair-cross-section requirement. See also Fox v. State, 779 P.2d 562, 566 (Okl.Cr.1989).

Appellant next challenges the composition of the jury on the ground that 38 O.S.1981, § 28(A) permits persons over seventy years of age to excuse themselves from service without showing hardship or other legal excuse. Appellant has provided this Court with no more information to show that these people constitute a distinctive group than was provided in the case of Moore v. State, 736 P.2d 161, 165 (Okl.Cr.1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987), and we once again reject this argument. See Fox, 779 P.2d at 566.

Appellant also asserts that the trial court erred in not allowing individual voir dire of each juror, out of the hearing of the others, as to their views on capital punishment. As we noted in Foster v. State, 714 P.2d 1031, 1037 (Okl.Cr.1986), cert. denied 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986), the manner of conducting voir dire is left to the sound discretion of the trial judge. In this case, the trial judge did allow individual voir dire outside the hearing of other potential jurors when it appeared necessary. Finding no abuse of discretion in the record, the assignment is without merit.

Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), appellant claims that reversal is required because the prosecutor exercised his peremptory challenges to remove minorities in an unconstitutionally discriminatory manner. Of the ten non-caucasian people examined to serve as jurors or alternates, the Hispanic served on the jury and one Native American served as an alternate. Two African Americans were excused for cause because one had formed an opinion concerning the case and the other could not sit impartially because of her personal acquaintance with appellant. The Asian and one Native American were removed with appellant's seventh and eighth peremptory challenges. Appellant waived his ninth challenge.

The State used four peremptory challenges to remove two African Americans and two Native Americans. One African American was removed because he appeared inattentive at some times and disruptive at others. The trial judge confirmed the observation, and appellant did not challenge it at trial. The other African...