Malone v. State, D-2005-600.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation168 P.3d 185,2007 OK CR 34
Docket NumberNo. D-2005-600.,D-2005-600.
PartiesRicky Ray MALONE, Appellant v. The STATE of Oklahoma, Appellee.
Decision Date31 August 2007
168 P.3d 185
2007 OK CR 34
Ricky Ray MALONE, Appellant
The STATE of Oklahoma, Appellee.
No. D-2005-600.
Court of Criminal Appeals of Oklahoma.
August 31, 2007.

[168 P.3d 189]

An Appeal from the District Court of Comanche County; the Honorable Mark R. Smith, District Judge.

Don. J. Gutteridge, Oklahoma City, OK, Cheryl A. Ramsey, Stillwater, OK, attorneys for defendant at trial.

Robert Schulte, District Attorney for Comanche County, Lawton, OK, Mark Clark, Assistant District Attorney, Walters, OK, attorneys for the State at trial.

James H. Lockard, Deputy Division Chief, Kathleen Smith, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, attorneys for appellant on appeal.

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


CHAPEL, Judge.

¶ 1 Ricky Ray Malone, Appellant, was tried by jury and convicted of First-Degree Malice Aforethought Murder, in violation of 21 O.S.2001, § 701.7(A), in the District Court of Comanche County, Case No. CF-2005-147.1 In the sentencing phase, the jury recommended a death sentence for the murder, after finding three aggravating circumstances: 1) that the murder was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; 2) that there was a "probability" that Malone would "commit criminal acts of violence that would constitute a continuing threat to society"; and 3) that the "victim of the murder was a peace officer . . ., and such person was killed while in performance of official duty."2 In accordance with the jury's recommendation, the trial court, the Honorable Mark R. Smith, sentenced Malone to death. Malone has properly perfected this direct appeal of his conviction and sentence.3


¶ 2 Around 6:20 a.m., on December 26, 2003, Abigail Robles was delivering newspapers in rural Cotton County, just east of Devol, Oklahoma. While driving on Booher

168 P.3d 190

Road, she came across a parked white car on the side of the dirt road.4 The white male driver was laying in the front seat, but he was not moving, and his feet were hanging outside the car. Robles thought he might be dead. She drove to the home of Oklahoma Highway Patrol ("OHP") Trooper Nik Green, which was less than a mile away, to ask for his help. Green had been sleeping, but answered the door, listened to Robles's story, told her not to worry about waking him, and reassured her that he would check out the situation for her.

¶ 3 At 6:28 a.m., Trooper Green telephoned OHP dispatch in Lawton and reported what Robles had seen. Green was not scheduled to be on duty that day until 9:00 a.m., but when he learned that the on-duty Cotton County trooper was not available, he volunteered to go check out the situation himself. He went on duty at 6:37 a.m. and informed dispatch shortly thereafter that he had arrived at the scene and discovered a white four-door vehicle and a white male. Green attempted to provide the vehicle tag number, but dispatch could not understand the number, due to radio interference. This was Green's final contact with OHP dispatch. After approximately ten minutes dispatch tried to contact Green with a welfare check ("10-90"), but got no response. After numerous unanswered welfare checks to Green's badge number (# 198) and an unanswered page, dispatch sent various units to Trooper Green's location and contacted the Cotton County Sheriff's Department.

¶ 4 The first person to arrive at the scene was Deputy Charles Thompson of the Cotton County Sheriff's Department.5 He arrived at 7:15 a.m., wearing pajama bottoms, a t-shirt, and sandals. Trooper Green's patrol car was parked on the right side of the road, with the driver's side door open and the headlights on. Thompson walked around the area until he discovered his friend's dead body, face down in the ditch, with his arms and legs spread, a few feet to the right and front of his patrol car.6 It was obvious from the massive head wound to the back of his head that Green had been shot and that he was dead. Thompson immediately called his dispatch, and the investigation of Green's murder began.

¶ 5 What happened on Booher Road from the time of Green's arrival until his death can be largely pieced together from the physical evidence at the scene, statements made by Ricky Ray Malone, and the contents of a videotape recorded by the "Dashcam" video recorder mounted in Green's vehicle. According to statements made by Malone, Trooper Green arrived at the scene and attempted to rouse Malone by talking to him and shining a flashlight in his face. Officers who investigated testified that it was obvious from evidence left at the scene that someone had been manufacturing methamphetamine outside his or her car that night. It would have been obvious to Green as well.7

¶ 6 Green apparently informed Malone that he was under arrest and was able to get a handcuff on his right wrist, before Malone decided that he was not going to go quietly back to jail.8 Malone somehow broke free and a battle ensued between the two men that tore up the grass and dirt in the area and knocked down a barbed wire fence. Malone's John Deere cap ended up in the barbed wire fence, and Green's baton and a Glock 9 mm pistol were left lying in the ditch.9 The fight resulted in numerous scrapes, cuts, and bruises to both men.

168 P.3d 191

¶ 7 Trooper Green's Dashcam recorder was switched on sometime during the course of this monumental struggle.10 Because the Dashcam was directed forward, the video shows only the things that appeared immediately in front of Green's vehicle. The video never shows Trooper Green, but the audio on the videotape, though garbled and sometimes hard to understand, contains a poignant and heartbreaking record of the verbal exchanges between Malone and Green during the six minutes preceding Green's death.

¶ 8 The initial sounds on the audio are mostly grunting and unintelligible, as the men seemingly struggle for control. Then Malone appears to gain control and tells Green to lay there and not turn over. Green tells Malone that he didn't have a problem with Malone and that he came to help him. He tells Malone, "Hey, run if you want to go, but leave me." Green pleads, "Please! Please! I've got children." Green also tells Malone that he is married and begs Malone not to shoot him. Meanwhile, Malone repeatedly asks Green where "the keys" are, apparently referring to the keys for the handcuff that is on his wrist, and demands that Green stop moving and keep his hands up. Malone threatens to kill Green if he moves, but also promises that he won't shoot him if Green holds still. Malone searches at least one of Green's pockets, but fails to find the keys.11 When Green suggests that he has another set of keys in his vehicle, Malone responds, "I don't need to know." Green apparently recognizes the significance of this statement and after a few seconds begins pleading again, "Please don't. For the name of Jesus Christ. He'll deliver. Lord Jesus!"12 At that moment a shot can be heard, followed by eleven seconds of silence, and then another shot.13

¶ 9 Just after the second shot, Malone appears in the videotape, walking in front of Trooper Green's car and behind the open trunk of his white, four-door vehicle. Malone can be seen hurriedly "cleaning up" his makeshift methamphetamine lab—dumping containers of liquid that are sitting on the ground, loading numerous items into the back seat and trunk, throwing and kicking things off the road, and lowering the front hood.14 Less than two minutes after shooting Green, Malone starts his car to drive away, but the car stalls. After almost thirty seconds, the car starts, and by 6:55 a.m. Malone has left the scene.

¶ 10 During the trial the State presented the testimony of Malone's four meth-making

168 P.3d 192

comrades: Tammy Sturdevant (Malone's sister), Tyson Anthony (her boyfriend), and J.C. and Jaime Rosser (who were married).15 In December of 2003, these four people were living together in Sturdevant's trailer in Lawton and were jointly engaged, along with Malone, in a regular process of gathering and preparing the ingredients, making or "cooking" methamphetamine, and then using and distributing the methamphetamine. They all testified that they spent much of Christmas Day in 2003 preparing for a "cook" that night and that when Anthony got sick, Malone decided to go ahead. Malone left late that night, in Sturdevant's white Geo Spectrum, to complete the cook on his own.

¶ 11 Tyson Anthony testified that Malone appeared in his bedroom about 8:00 a.m. on the morning of December 26 and said that he had shot someone and needed Anthony to hide his sister's car.16 Anthony hid the car behind a day care, about 100 yards from their trailer. Anthony testified that he saw Malone again around 5:00 p.m. that night, that Malone had already partially shaved his head, and that he asked Anthony to go get him some bleach to dye his hair, which Anthony did. Later that night Anthony went with Malone to a hotel in Norman, and Malone told him more about what had happened.17 Malone showed him the gun he had used, which Malone said belonged to "the cop."18 Anthony testified that Malone also referred to the officer as a "Hi-Po," meaning a highway patrolman. Anthony acknowledged that he himself put the gun in a hotel trash can and covered it up with trash.19 Anthony left the hotel and went home, but later called Malone, who was still there, and suggested that he might be able to use the gun to frame someone else.20

¶ 12 J.C. Rosser testified that when Malone came home on the morning of December 26, 2003, he had a handcuff on his right wrist, bruising on his hands, and some blood on his shirt.21 Malone told Rosser that he had "killed a cop." Malone asked Rosser to give him a ride to his home in Duncan, which Rosser agreed to do. Rosser testified that he and his wife got in the car...

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