Antwon Ellis v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01059-COA
ANTWON ELLIS A/K/A ANTWON LESHAY ELLIS
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
06/09/1999
TRIAL JUDGE:
HON. W. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
DAN W. DUGGAN JR.
ATTORNEYS FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED III
MICHAEL C. MOORE
DISTRICT ATTORNEY:
EDWARD J. PETERS
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
06/09/1999: CAPITAL MURDER: SENTENCED TO SERVE
A TERM OF LIFE WITHOUT PAROLE IN THE CUSTODY
OF THE MDOC; CAUSE TO RUN CONSECUTIVE TO 971-95 AND 97-3-215 CTS. 1 & 2
DISPOSITION:
AFFIRMED-8/15/00
MOTION FOR REHEARING FILED: 8/24/2000; denied 10/17/2000
CERTIORARI FILED:
10/27/2000; granted 12/21/2000
MANDATE ISSUED:
BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.
KING, P.J., FOR THE COURT:
¶1. Antwon Ellis (Ellis) perfected this appeal from an order of the Circuit Court of Hinds County,
Mississippi denying his motion for a new trial or alternatively a judgment notwithstanding the verdict. Ellis
was sentenced to serve life without parole in the custody of the Mississippi Department of Corrections. On
appeal, Ellis alleges the following errors, as taken verbatim from his brief: (1) the trial court erred by
allowing the introduction of other crimes evidence; (2) the trial court erred by denying defense instruction D5, a testimony impeachment instruction; and (3) the verdict was against the weight of the evidence.
FACTS
¶2. On February 10, 1998, the Grand Jury of Hinds County returned a two count indictment against Ellis,
Kendaryll Robinson, Damien McAffee, Thomas Reese and FNU LNU a.k.a. Mike-Mike on charges of
capital murder and armed robbery. The trial of this matter began on June 8, 1999. The State's witnesses
included: Kendaryll Robinson, co-defendant; Cedric Smith, longtime friend of Ellis; Harold Nicholson, the
aggravated assault victim; Sergeant Ronald Youngblood, of the Jackson Police Department and John Dial,
a firearms expert with the Jackson Police Department.
¶3. Robinson testified that on the evening of July 25, 1997, he, Ellis, Reese, McAfee and Mike-Mike drove
to the PaPa Do's club on Medgar Evers Boulevard and parked the car behind the club. The City Package
Store and The Little Store businesses were next door to the club. After everyone exited the car, Ellis told
them what to do.
¶4. Robinson was to remain at the club as a look out for Ellis. Reese was to wait at the corner of the store
and notify Ellis when the owners left the stores. Additionally, Reese was to distract the owners as each left
the store. Ellis and Mike-Mike were to hide behind a dumpster in the store parking lot and await Reese's
signal.
¶5. While waiting, Robinson heard shots, looked up and saw a man grab his chest, slump over and fall to
the ground. Robinson saw Ellis fire several more shots. Robinson then saw Mike-Mike grab a bag and a
cash register drawer. Afterward, Ellis and Mike-Mike ran back to the car were the others were waiting.
McAfee drove away from the scene.
¶6. Harold Nicholson, owner of the City Package Store, and Thomas Tapp, the owner of The Little Store,
were closing their stores for the evening. As Tapp went back to his store to set the alarm, Nicholson
continued across the parking lot toward his car. He had a paper sack with the money tray from his cash
register under his arm. He was shot in the back prior to reaching his car. As he fell, he heard someone say
"I finally got you Harold." Nicholson did not see who shot him. Nicholson testified that he suffered periods
of unconsciousness after being shot, but also heard other shots fired. Nicholson could not see Tapp but he
heard Tapp groan.
¶7. Sergeant Ronald Youngblood investigated the crime scene and interviewed witnesses. He interviewed
Ellis on several occasions. Ellis, who initially denied being present, subsequently admitted to being present,
but denied involvement in the shooting.
¶8. Cedric Smith, a long time friend of Ellis, purchased a nine-millimeter Ruger handgun from Ellis a few
days after the shooting. After buying the gun, Smith also sold it. After meeting with Sergeant Youngblood,
Smith located the purchaser of the gun, retrieved it and turned it over to the police department.
¶9. John Dial, Jackson Police Department firearm and toolmark examiner, conducted tests on the bullet and
shell casings recovered from the scene, Tapp's body and the gun recovered by Sergeant Youngblood. Dial
determined that the bullet and shell casings used in the shooting were from the same nine-millimeter Ruger
previously owned by Ellis.
¶10. The State rested after Tapp's death certificate was introduced into evidence. The defense moved for a
directed verdict, which was denied. The defense then rested without putting on any evidence. The jury
returned a verdict of guilty. Ellis was sentenced to life without parole in the custody of the Mississippi
Department of Corrections. Ellis filed a motion for a new trial or alternatively for a judgment not
withstanding the verdict. This motion was denied. Aggrieved with the court's ruling, Ellis perfected this
appeal.
ANALYSIS AND DISCUSSION OF THE LAW
I.
The Trial Court erred by allowing the introduction of other crimes evidence.
¶11. Ellis argues that Nicholson's testimony was more prejudicial than probative and should not have been
allowed or at the very least a cautionary statement should have been given to the jury. Ellis argues that these
errors violated his Fifth, Sixth, and Fourteenth Amendment rights as well as rights guaranteed to him under
the Mississippi Constitution.
¶12. The Mississippi Supreme Court has held that "[w]here another crime or act is so interrelated as to
constitute a single transaction or occurrence or a closely related series of transactions or occurrences proof
of the other crime or act is admissible." Ballenger v. State, 667 So. 2d 1242, 1256-57 (Miss. 1995). The
State has a legitimate interest in telling the complete story so as not to confuse the jury, evidence of other
crimes or bad acts is admissible for this purpose. Id.; Neal v. State, 451 So. 2d 743 (Miss. 1984).
¶13. In the case sub judice, the assault and robbery of Nicholson was so intertwined with the murder of
Tapp that it can be perceived as a single occurrence. The record indicates the City Package Store and the
Little Store shared a common parking lot. Nicholson testified that it was their custom to close both
businesses at the same time each evening. It was while Tapp and Nicholson were closing their businesses
for the evening that the assault, robbery and murder took place. Additionally, the testimony indicated this
double robbery was planned and executed as one event. The admission of Nicholson's testimony did not
prohibit Ellis from receiving a fundamentally fair trial but rather painted a complete picture of the events that
occurred on the evening of July 25, 1997.
II.
The trial court erred by denying defense instruction D-5, a testimony impeachment instruction.
¶14. Ellis argues that refusal of proposed jury instruction D-5 amounted to reversible error. Instruction D-5
read:
The testimony of a witness or witnesses may be discredited or impeached by showing that on a prior
occasion they may have made a statement which is now inconsistent with or contradictory to their
testimony in this case. In order to have this effect, the inconsistent or contradictory prior statement
must involve matter which is material to the issues in this case.
The prior statement of the witness or witnesses can be considered by you only for the purpose of
determining the weight or believability that you give to the testimony of the witness or witnesses that
made them. You may not consider the prior statement as proving the guilt to innocence of the
defendant.
¶15. The State objected to the instruction on the grounds that it was poorly worded and confusing. The
court denied the instruction stating instruction C-1 covered the information sought by the defendant to be
conveyed to the jury. Instruction C-1 read:
You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony
deserves.
You should carefully scrutinize all the testimony given, the circumstances under which each witness
has testified, and every matter in evidence which tends to show whether a witness is worthy of belief.
Consider each witness' intelligence, state of mind, demeanor and manner while on the stand. Consider
the witness' ability to observe the matters as to which he or she has testified, and whether he or she
impresses you as having an accurate recollection of these matters. Consider the extent to which he or
she has testified, and whether he or she impresses you as having an accurate recollection of these
matters. Consider the extent to which it is contradicted by other evidence in the case. Inconsistencies
or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or
may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a
transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is
not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it
pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from
innocent error or intentional falsehood. After making your own judgment, you will give the testimony
of each witness such credibility, if any, as you may think it deserves.
¶16. Jury instructions are to be read as a whole not in isolation. Laney v. State, 486 So. 2d 1242, 1246
(Miss. 1986). In Bell v. State, 725 So. 2d 836 (Miss. 1998) the defendant offered an instruction that
advised the jury that they were the sole judges of the credibility of witnesses and inconsistencies may cause
the jury to discredit a witness's testimony. The offered instruction was vague, abstract, and referred to the
dangers of relying on the testimony of a particular witness. Id. at ¶ 29. The trial court refused to grant the
instruction stating that it was adequately covered by other instructions. Id. The trial court granted
instructions advising the jury that it was the sole judge of credibility of testimony and supporting evidence,
an instruction on accomplice testimony advising the jury to consider the testimony of an accomplice with
care and caution and a reasonable doubt instruction stating that reasonable doubt may be based on conflicts
of testimony. Id. On review, the Mississippi Supreme Court agreed with the trial court ruling that "a trial
judge is under no obligation to grant redundant instructions." Id. "To do so can only create confusion and
make it more difficult for the jury to understand the charge." Id.
¶17. In the case sub judice, the trial court refused instruction D-5 because it was poorly worded and did
not properly instruct the jury on the correct law. The trial court did, however, grant instructions on
accomplice testimony and reasonable doubt which properly instructed the jury on the applicable law. "Since
all instructions are to be read together and if the jury is fairly instructed by other instructions, the refusal of
any similar instruction does not constitute reversible error." Laney 486 So. 2d at 1246.
¶18. The court properly denied instruction D-5.
III.
The verdict was against the weight of the evidence.
¶19. Ellis argues that the evidence was insufficient and too weak to convict him of capital murder. He bases
this on the State having presented only one witness to the shooting. This witness had given a prior
inconsistent statement regarding the shooting. Ellis argues that because the State did not offer any other
direct evidence identifying him as the shooter, the verdict was against the weight of the evidence and the
verdict should be reversed.
¶20. The Court is "authorized to reverse only where, with respect to one or more of the elements of the
offense charged, the evidence so considered is such that a reasonable and fair-minded juror could only find
the accused not guilty." McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). Substantial facts exist in the
record from which the jury could conclude that Ellis was guilty of capital murder.
¶21. Pursuant to Miss. Code Ann. §97-7-19(2)(c) (Supp. 1999) murder while engaged in the commission
of robbery is capital murder. The State presented testimony about the events surrounding the robbery and
Ellis's presence and participation in the robbery. The State established that Ellis owned the 9mm gun used
as the murder weapon. The State also established that Tapp died from a gunshot wound inflicted during this
robbery. After considering the evidence before it, the jury convicted Ellis of capital murder. This testimony,
if found credible by the jury, could provide substantial evidence to return a verdict of guilty. "Only when the
verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will this Court disturb it on appeal." White v. State, 732 So. 2d. 961 (¶20) (Miss.
1999). We cannot say that the verdict was against the weight of the evidence.
¶22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF
ANTWON LESHAY ELLIS OF CAPITAL MURDER AND SENTENCE OF LIFE
IMPRISONMENT WITHOUT PAROLE TO RUN CONSECUTIVE TO 97-1-95 AND 97-3-215
COUNTS I AND II ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HINDS COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, IRVING, LEE, MOORE, MYERS,
PAYNE, AND THOMAS, JJ., CONCUR.
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