Summers v. State Of Okla.

• Decision Date: 25 February 2010
• Docket Number: No. D-2008-313.,D-2008-313.
• Citation: Summers v. State , 231 P.3d 125, 2010 OK CR 5 (Okla. Crim. App. 2010)
• Parties: Phillip Anthony SUMMERS, Appellantv.STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

231 P.3d 125

2010 OK CR 5

Phillip Anthony SUMMERS, Appellantv.STATE of Oklahoma, Appellee.

No. D-2008-313.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 2010.

An Appeal from the District Court of Tulsa County; the Honorable P. Thomas Thornbrugh, District Judge.

Robert Stubblefield, Mark Matheson, Attorneys at Law, Tulsa, OK, attorneys for defendant at trial.

Tim Harris, District Attorney for Tulsa County, Steve Kunzweiler, Assistant District Attorney for Tulsa County, Tulsa, OK, attorneys for the State at trial.

James L. Hankins, Ogle Law Office, P.L.L.C., Oklahoma City, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

CHAPEL, Judge.

¶ 1 Phillip Anthony Summers was tried by jury and convicted of two counts of First-Degree Malice Aforethought Murder, in violation of 21 O.S.2001, § 701.7(A), in the District Court of Tulsa County, Case No. CF-2004-2056 (Counts I and II). In the sentencing phase, the jury recommended a sentence of death for both murders, after finding the following three aggravating circumstances in relation to both: 1) that Summers was previously “convicted of a felony involving the use or threat of violence”; (2) that Summers “knowingly created a great risk of death to more than one person”; and 3) that there was a “probability” that Summers would “commit criminal acts of violence that would constitute a continuing threat to society.” ¹ In accordance with the jury's recommendation, the trial court, the Honorable P. Thomas Thornbrugh, sentenced Summers to death on both counts. Summers has perfected this direct appeal of his convictions and sentences.²

FACTS

¶ 2 During the early evening hours of February 23, 2004, Ples and Shelly Vann were eating dinner and watching television in their Tulsa home, at 38 East 50th Place North, when at least two armed persons entered their home and shot them both to death. Ples Vann was found lying on the floor in the living room, just inside the front door, with a paper towel in his left hand and a piece of pork chop bone in his right hand. Shelly Vann was found on the floor about 15 feet away, partially under the dining table. She too had a paper towel in her left hand. The television was on, but the volume was muted, and a television remote control was found on the floor near Shelly Vann's right hand.

¶ 3 According to the medical examiner, both Ples and Shelly Vann died as a result of multiple gunshot wounds. Ples Vann had three gunshot wounds i.e., he was hit by three different bullets. He was shot once in the face, on the right side of his nose, by a bullet that grazed the underside of his brain and exited behind his left ear.³ He was also shot through his upper right arm, by a bullet that then entered the right side of his chest, passed through his lungs and also his pulmonary artery, and exited out his upper left back. ⁴ Ples was also shot in the right thigh by a bullet that went through his right thigh and then entered the inner part of his left thigh and lodged there.⁵ In addition, a bullet was found inside his white shirt, next to his skin.⁶

¶ 4 Shelly Vann also had three gunshot wounds. She was shot once in the right upper chest, by a bullet that passed through her right lung and came to rest under the skin of her back, near the left side of her spine.⁷ She was also shot on the right side of her back, by a bullet that passed through both lungs, exited through the left side of her chest, and then went through her left arm before exiting again.⁸ Shelly Vann was also shot through her right upper arm, from back to front.⁹

¶ 5 The medical examiner noted that he did not observe soot or stippling around any of the wounds on either victim, which indicated that the shots were fired from a distance greater than two or three feet away. A .45 caliber bullet was recovered from underneath the carpet directly below where Shelly Vann was found, which suggested that she had been shot at least once when she was already down.¹⁰ In addition, nine cartridge casings (“casings”) were found in the home, seven Wolf .45 auto casings and two CBC .380 auto casings.

¶ 6 Ples Vann was employed by the David L. Moss Center i.e., the Tulsa County jail, and Shelly Vann was a homemaker. The Vanns had three sons: Donald Tennyson, Quantee Tennyson, and Lawrence (“Bud”) Tennyson.¹¹ Quantee testified that he had eaten a pork-chop dinner with his parents at around 4:00 or 5:00 p.m. that day.¹² He left afterwards and later got a phone call from his younger brother, Bud, asking for a ride home so that Bud could get dinner. Quantee, along with Lakisha Harris, picked up Bud and then a woman Bud was dating, “Tiffany,” later that evening. Quantee dropped off Bud and Tiffany and was about to drive away when Bud came running out of the home screaming that their mother and father had been shot and were dead.

¶ 7 A neighbor and friend of the Vanns, Kenneth Norman, testified that he was in his home watching television the night of February 23, 2004, when he heard as many as 10 or 12 gunshots, at around 7:00 or 7:30 p.m. Norman testified that he rolled off his couch and hit the floor, since he did not know where the shots were coming from. He stayed on the floor for three or four minutes, listening for a car speeding away, but did not hear anything. He then got up, went to his own front door, and looked over at the Vann home, since there had been previous drive-by shootings there. Norman testified that the Vanns' front door was open, though the screen door was closed, and that he watched for a while to see if Ples or Shelly would come to the door. When no one appeared at the door, Norman assumed everything was fine and went back to watching television.¹³ Norman testified that he did not hear or see anything else unusual that night, until he later heard Quantee out in the street crying, “They killed my mama and daddy.”

¶ 8 Bud testified that he talked to his mother around 6:00 or 7:00 p.m. that night about coming home to eat and then called Quantee asking for a ride. ¹⁴ Bud testified that they arrived at the home of his parents around 10:30 or 11:00 p.m. and that the outside screen door was shut, but the main front door behind it was wide open. When he entered, he immediately saw his father lying rolled over on the floor, in front of the loveseat, which was in the living room very near the front door. At first Bud thought Ples had fallen asleep and rolled off the couch. He discovered that his father was dead and bloody when he bent down to help him up. Bud then looked around and saw that his mother was also lying dead on the floor across the room, in the area between the living room and the adjacent dining area. Bud ran out to tell Quantee what he had discovered.

¶ 9 Bud (and Tiffany) then got back in Quantee's car, not sure what to do next. They drove around a bit and then went to the home of their neighbor, Kenneth Norman, to see if he had a gun. Bud testified that he wanted to get a gun in case someone was still in the home and that he did not even consider calling the police, because he “did not like being around the police,” since he was a member of the Neighborhood Crips gang.¹⁵ Bud testified, “I figured I could handle my own business,” and that within the gang culture this kind of thing would be handled “on the street.” Norman did not provide a gun, but Bud and Quantee decided to return home anyway.¹⁶ Bud testified that when they got back home, he searched his parents' bedroom looking for his father's gun-while his brother and the girls were in the living room crying-but he was unable to find it.¹⁷ At some point Lakisha Harris called “911.” ¹⁸

¶ 10 Bud testified that he immediately assumed that the killing of his parents was related to an ongoing, violent feud between his gang, the Neighborhood Crips, and a rival gang, the Hoover Crips.¹⁹ In fact, Bud Quantee, and other witnesses all testified that the Vann home had been shot at in multiple drive-by shootings prior to the murders of Ples and Shelly Vann.²⁰ Bud also testified that he was a “fairly high ranking member” of the Neighborhood gang and that various members of the Hoovers held him responsible for acts of violence committed against Hoovers.²¹ Officer William Ellis, who was the Tulsa police sergeant in charge of the organized gang unit at the time, testified about how the two gangs operated and could be recognized, common gang terms and practices, subsets of the gangs, and about the very violent rivalry between the Hoovers and the Neighborhoods at the time.²²

¶ 11 On February 25, 2004, two days after the Vann homicides, a tip came in to Tulsa police about a group of men in a black Ford Focus in North Tulsa, who were armed and possibly intending some kind of gang violence. Officer Timothy Ward was on duty in the Tulsa Police Department's helicopter unit that night. ²³ Some time after 11:00 p.m. that night, Ward spotted a vehicle that appeared to match the description of the tip. Ward explained that the helicopter was equipped with a “Night Sun,” a 30-million, candle-power spotlight, which he shined on the car. After he did so, the car began speeding and driving erratically; so Ward alerted officers on the ground. The helicopter was also equipped with FLIR night-vision equipment, which detects heat and allows the viewer to see black-and-white images of things on the ground that produce heat.²⁴ Ward used the FLIR to track the movements of the car and its occupants. The car turned into a residential area in North Tulsa, stopped in someone's yard, near Main and Zion Street, and four persons bailed out of the car and ran. Ward continued to track the movements of these persons as best he could, using both the Night Sun and the FLIR, and communicated these movements to officers on the ground until all four men were apprehended shortly after midnight, within a few blocks of where the black...