Ellis v. State5/20/1992
The opinion of the court was delivered by: JOHNSON, Judge.
Marshall Ellis, appellant, was charged by information in the District Court of Woodward County, Case No. CRF-85-59, with the crimes of Murder in the First Degree, Count I, Shooting with Intent to Kill, Count II, Assault with Intent to Kill, Count III, Unlawful Delivery of a Controlled Drug, Count IV, and Possession of a sawed-off shotgun, Count V.
On January 10, 1986, appellant entered a plea of guilty to Count IV, Unlawful Delivery of a Controlled Drug and Count V, Possession of a sawed-off shotgun. On February 18, 1986, appellant was sentenced to two (2) years imprisonment and a One Thousand ($1,000.00) Dollar fine on Count IV, and two (2) years imprisonment and a Five Hundred ($500.00) Dollar fine on Count V. The terms of imprisonment were to be served concurrently.
From January 27 through February 10, 1986, appellant was tried by jury on Counts I, II and III. The jury returned verdicts of guilty on Counts I and II, recommending punishments of life imprisonment and fifty (50) years, respectively. The jury returned a verdict of not guilty on Count III.
Immediately after the Judgment and Sentences on February 18, 1986, on Counts IV and V, appellant entered his oral pleas of double jeopardy. The trial court overruled appellant's motions and this Court declined appellant's Application for Writ of Prohibition and/or Writ of Mandamus, P-86-122, on March 28, 1986. Appellant was sentenced on March 28, 1986, as to Counts I and II, with the trial court ordering the sentences to run concurrently.
A direct appeal was taken to this Court, which on April 10, 1990, affirmed the convictions in an unpublished opinion in Case No. F-86-676. A petition for writ of Certiorari was filed in the United States Supreme Court, which vacated the judgment and remanded the case to this Court for further consideration in light of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); ___ U.S. ___, 111 S.Ct. 504, 112 L.Ed.2d 517.
FACTS
On May 8, 1985, O.S.B.I. Agent William Stewart was killed during an undercover drug operation in Woodward, Oklahoma. One other agent was injured during the incident. The agents were attempting to arrest Marcia Boston in a buy/bust transaction. Ms. Boston was a passenger in appellant's vehicle. During the transaction, appellant fired a shotgun, killing Agent Stewart and wounding another agent. At trial, appellant admitted shooting Agent Stewart and at the other agents, but claimed self-defense. Appellant and other defense witnesses testified that Agent Stewart did not identify himself as a police officer when he approached the vehicle. Appellant claimed that based on Agent Stewart's undercover reputation, when he saw Agent Stewart pull his gun and approach the vehicle, appellant thought that he and Ms. Boston were about to be ripped-off and/or killed.
ARGUMENT
Count I of the Information charged appellant with Murder in the First Degree in effecting "the death of William Ross Stewart by shooting him with a certain gun, to-wit: "A Remington Model 870, .12 gauge shotgun sawed-off to 13 3/4" in length, Serial # V622480V, . . ." with malice aforethought.
Count II of the Information charged appellant with Shooting with Intent to Kill, alleging that he did "shoot one Mark A. Chumley with a firearm, to-wit: A Remington Model 870, .12 gauge shotgun, sawed-off to 13 3/4" in length, Serial # V622480V, the same being a deadly weapon loaded with gun powder and shot, held in the hands of said Defendant . . ."
Count III of the Informatio
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