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State v. Payne11/20/2002
ee the victim get shot, did not see the defendant with a gun, and did not see what transpired between the victim and the defendant before the shooting.
Rogers admitted that it was dark at the time of the shooting and that he had testified during the preliminary hearing that, although he had seen someone standing on the porch, he had not been able to see who it was. He acknowledged that he went to his mother's house after the shooting and that later he, "Premo," and "Tam" had gone armed with pistols to the West Memphis trailer home of the defendant's girlfriend, where they had kicked in the door and demanded to know the defendant's whereabouts. He also acknowledged that both he and the victim had both been involved with drugs at the time of the shooting.
Kenneth Ezell, who was 14 when the shooting occurred, testified that he was on the front porch of a duplex at 1185 Aubra Street at about 6:30 or 7:00 p.m. on November 24, 1996, when he saw the victim and Rogers pull up in a car. Ezell said that the next-door neighbor, Roger Lee, was on the porch with him at the time, as well as "Twin," whose real name, he believed, was Kevin Phillips. Rogers went next door, and the victim came up onto the porch of 1185 Aubra and began talking with Lee. Ezell said that the victim stood talking on the porch for about thirty minutes until they heard "a commotion" next door from the house he had seen Rogers enter, which caused everyone to turn around and look. When they did so, "there was a guy with two (2) guns saying drop it off." According to Ezell, the man was pointing his guns at the entire group on the duplex's porch, and was not directing his words to any particular person. He said that when he saw the guns and heard the command to "drop it off," he ran into the house. Two or three seconds later, he heard three or four gunshots. After approximately twenty minutes, he went back outside and saw the victim lying on the porch. Ezell identified the defendant as the man he had seen with the two guns. He testified that he did not see the victim, "Twin," or Lee with a gun that evening, and that he had not had a gun either.
Ezell testified on cross-examination that he had seen the defendant around the neighborhood prior to November 24, 1996, but the first time he saw him on the day of the shooting was at about 7:30 p.m. He did not remember telling the police after the shooting that he was not on the porch when the defendant arrived, or telling an investigator in an August 26, 1999, telephone conversation that he did not come through the area until after everything had already happened. He also did not remember having said that he and Lee were the only ones on the porch that evening. He testified that he was on the porch immediately before the shooting, and that Lee, "Twin," and "Mug" were on the porch with him. The "Twin" on the porch with him was not Kevin Phillips, as he had suggested during his direct examination testimony, but instead was "another twin out of Hilltop, right down the street." However, Phillips had been "out there for a minute" before walking to a store. He did not recall any drug activity that night, denied any knowledge about any drug sales that might have been taking place on the street, and was not aware of what the victim and Rogers did for a living. He acknowledged that he heard someone yell, "They're fighting" just before he went into the house. He testified on redirect, however, that the defendant and the victim had not been fighting.
An eyewitness to the shooting, Kevin Phillips ("Twin"), testified that he had been in the area all day. The victim was talking to Robert Lee when Phillips left to go to the store. When he returned from the store, he saw Keith Brown chasin
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