# Ellis v. State > Court of Criminal Appeals of Oklahoma · January 26, 1994 · 65 O.B.A.J. 475 URL: https://www.frixlaw.com/law-library/cases/9558853 ## Case - **Full name:** Cyril Wayne ELLIS, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** January 26, 1994 - **Citations:** 65 O.B.A.J. 475; 867 P.2d 1289; 1992 OK CR 45; 1994 Okla. Crim. App. LEXIS 5; 1992 WL 174409 - **Precedential status:** Published - **Opinion:** On rehearing by Johnson - **Judges:** Vice-Presiding, Johnson, Lane, Lumpkin, Brett, Parks, Chapel - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9558853 ## How later opinions describe it (automated extraction) - holding prosecutor’s action of "dry-firing” gun while pointing it down may have been overly graphic but was still within the wide latitude permitted during closing argument - concluding that, under 12 Okla. Stat. § 2403 (1981), the evidence properly was excluded because its probative value was substantially outweighed by the danger of confusing the jury - concluding that, under 12 OMa. Stat. § 2403 (1981), the evidence properly was excluded because its probative value was substantially outweighed by the danger of confusing the jury - holding whether to instruct the jury that if a unanimous verdict could not be reached, the jury would be discharged and a sentence of life imprisonment (or life imprisonment without the possibility of parole - holding that error invited by defense counsel cannot serve as basis for reversal because defendant cannot invite error and then seek to profit from it ## Opinion text OPINION ON REHEARING JOHNSON, Vice Presiding Judge: Appellant, Cyril Wayne Ellis, was convicted in the District Court of Oklahoma County, Case No. CRF-86-651, on three counts of Murder in the First Degree and four counts of Shooting With Intent to Kill. Punishment was set at death for each count of murder and 2,000 years, 3,000 years, 1,000 years and 1,000 years for the four counts of Shooting With Intent to Kill. We affirmed the convictions and sentences in Ellis v. State, at 1293. Appellant has now filed a Petition for Rehearing pursuant to 22 O.S.1991, Ch. 18 App., Rules of the Court of Criminal Appeals, Rule 3.14(B). Appellant raises approximately ten allegations of error in his petition. Rule 3.14(B) specifically provides: A petition for rehearing shall not be filed, as a matter of course, but only for the following reasons: (1) That some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or (2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument. After fully considering the petition filed herein, we find that appellant’s first, third, sixth and seventh allegations of error are the only issues raised that are appropriate for rehearing. Therefore, we will limit our review to these issues alone. In his first proposition of error, appellant asserts that this Court improperly overlooked Proposition XXIII which alleges that the State improperly made false and misleading statements during closing arguments. On June 1, 1992, barely two months prior to the opinion in this case being handed down, appellant filed a Motion to Supplement Record and Brief. Therein, appellant requested that this Court permit him to file a Supplemental Brief which added Proposition XXIII to his brief-in-chief. For unknown reasons this motion was not brought to the Court’s attention until after the opinion on direct appeal was handed down. While it is very doubtful that appellant’s motion would have been granted at the time it was filed, considering the circumstances this Court now feels compelled to address Proposition XXIII on rehearing. The allegedly improper comments occurred during closing arguments following the conclusion of evidence in the penalty phase. Specifically, appellant contends Dis *1306 trict Attorney Macy incorrectly stated that the appellant voluntarily committed himself to St. Anthony’s Hospital and that no doctor recommended that he be committed. In addition, appellant submits that Assistant District Attorney Foley misrepresented facts when he said that appellant was not on any medication except occasional insomnia medication. Appellant maintains these comments denied him a fair trial and reliable sentencing hearing. We review for fundamental error only as defense counsel failed to object to either of these comments when they were made at trial. Trim v. State, 808 P.2d 697, 699-700 (Okl.Cr.1991). While these comments may not have been entirely accurate, the misstatements were not so egregious as to amount to fundamental error that would require reversal or modification of appellant’s convictions and sentences. Langley v. State, 813 P.2d 626, 531 (Okl.Cr.1991). The jury had already rejected the appellant’s insanity claim by finding him guilty in the first stage of trial. Furthermore, after reviewing the totality of the evidence, we fail to see how these minor misstatements of fact could have affected the outcome of the sentencing hearing. See Mornes v. State, 755 P.2d 91, 94 (Okl.Cr.1988). Therefore, we find the comments did not deprive appellant of a fair trial. In his third proposition of error, appellant claims the Court’s opinion regarding the necessity for an admonishment is in conflict with prior decisions of this Court. On appeal, appellant submitted the trial court erred by not declaring a mistrial following an emotional outburst in the courtroom. We found no error holding that “[t]he incident was of short duration and the trial court took appropriate measures to prevent any unfair prejudice.” The Court further noted that “no admonishment was requested at trial” and that no fundamental error occurred. Appellant now complains that the Court’s language that no admonishment was requested is in conflict with Kelsey v. State, 744 P.2d 190, 192 (Okl.Cr.1987). In Kelsey , this Court overruled prior cases to the extent that they required a request for an admonishment, in addition to a timely specific objection, in order to preserve the record for appellate review. Preserving error for appellate review and curing alleged trial court error are two very different matters. This Court did not find that appellant failed to properly preserve the record for appellate review. The Court’s decision was based upon the finding that the trial court’s actions sufficiently prevented any unfair prejudice. Consequently, further curative action was not necessary. As the Court’s finding was not in conflict with prior decisions of this Court, this proposition of error is without merit. In his sixth assignment of error, appellant maintains the Court’s finding that no error occurred by the late endorsement of Michael Deloney is in conflict with controlling decisions to which this Court’s attention was not called. Appellant specifically refers this Court to Thomas v. State, 811 P.2d 1337 (Okl.Cr.1991), Williamson v. State, 812 P.2d 384, 408 (Okl.Cr.1991) and Hunter v. State, 829 P.2d 64 (Okl.Cr.1992). We have thoroughly reviewed these cases and find they are not controlling on this issue. Appellant was clearly notified prior to trial of the evidence to be offered in aggravation, and defense counsel was given a sufficient opportunity to prepare. Therefore, relief is not required. Finally, in his seventh assignment of error, appellant asserts this Court did not conduct a proper reweighing of the aggravating and mitigating factors as required by Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990). As a result, appellant maintains he was improperly deprived of his right to an individualized sentencing determination. When reweighing, this Court must review the aggravating and mitigating evidence to ascertain the role which the invalid “heinous, atrocious or cruel” aggravator played in the jury sentencing process. Stringer v. Black, 503 U.S. -, -, 112 S.Ct. 1130, 1136 , 117 L.Ed.2d 367 (1992). The Court must then *1307 determine, through the reweighing process, what the jury in this ease would have decided had it not considered the invalid aggravator. Stringer , 503 U.S. at -, 112 S.Ct. at 1137 ; Richmond v. Lewis, 506 U.S. -, -, 113 S.Ct. 528, 535 , 121 L.Ed.2d 411 (1992). In the Court’s original majority opinion, this Court provided a very thorough analysis of the evidence offered in support of each of the aggravating circumstances and found it to be sufficient. However, upon review, we find that a more thorough account of the mitigating evidence considered in the reweighing process is needed. The arguably mitigating evidence presented during the proceedings basically consisted of the following: 1. Appellant’s brother and sister love him and would visit and communicate with him in the penitentiary; 2. Friends and a former teacher of appellant’s found him to be very special and were concerned for his future; 3. Appellant was a very active member of the Garden of Prayer Church of God and Christ and was the Assistant Sunday School Superintendent and a young Minister; 4. Appellant helped save Ms. Jennifer Champ from drowning when her car slid into Reno Creek; 5. Appellant was a volunteer at the Oklahoma County Juvenile Bureau and spent time talking with children; 6. Appellant has a history of mental illness; 7. Appellant had discussed his mental problems and desire to destroy himself with his church; 8. Just prior to the Commission of the crimes, appellant attempted to commit suicide. After his suicide attempt, he was admitted into the psychiatric ward at St. Anthony’s Hospital; 9. At the time of the murder, the appellant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness; 10. Appellant had no prior felony convictions; 11. Appellant showed remorse for the shootings when he was questioned by Detective Sellers. 1 Furthermore, Instruction No. 17 specifically referred the jury to a minimum of eleven possible mitigating circumstances (O.R. 149). In addition to thé list provided above, Instruction No. 17 included two additional possible mitigators for the jury to consider: the appellant’s conduct during the course of the trial; and appellant’s performance at Rose State College. Upon carefully considering and reviewing the evidence which supports the two valid aggravating circumstances, as was set forward in the Court’s original opinion, as well as the evidence which may be considered mitigating, this Court finds the sentences of death were factually substantiated and appropriate. While we do not take lightly the mitigating evidence presented, it is clear that the jury’s improper consideration of the unconstitutional aggravator did not play a significant role in its decision to sentence appellant to death as the evidence supporting the two valid aggravators was concrete and substantial. We therefore again find that appellant’s death sentences should be AFFIRMED. On the basis of the foregoing, this Court finds that appellant’s request for relief should be, and the same is hereby DENIED. The Clerk of this Court is ordered to issue the mandate forthwith. LUMPKIN, P.J., specially concurs. STRUBHAR, J., concurs. LANE and CHAPEL, JJ., not participating. . This Court notes that this is not necessarily an all encompassing list of the mitigating evidence presented at trial and considered by this Court when reweighing. Rather, the list merely highlights the majority of the evidence offered in mitigation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9558853. Public record. Not legal advice.