2014-09-02 Brewer Appeal
TESTIMONY OF EDDIE STALLINGS
Officer Stallings testified he was a retired police officer for the City of Amarillo. On July 6, 2011, he was still employed as a patrol officer. (RR vol.2 pg.178-79). On that date he was dispatched to 1508 South Jefferson Amarillo, Potter County, Texas on a possible homicide call. When he arrived on the scene he observed four people standing outside a two story apartment building. He was approached by Christin Provence who advised him that her father had been killed. The other three people outside were identified as Joshua Williams, Jeremy Martin and Jennifer Martin.
Officer Stallings went up the stairs and entered the second floor apartment. As officer Stallings started up the stairs to the apartment he could smell there was a dead body somewhere.
When he entered the apartment Officer Stallings observed the body of a man lying on a bed with a red rope wrapped around his neck. The dead man’s body was in a state of decomposition. Officer Stallings observed that the man’s face was black. He assumed from the rope around the deceased’s neck.
Officer Stallings contacted Special Crimes to come and work the scene. Officer Stallings identified State’s Exhibits 1, 2, 3, 4, 5, 7, and 19 as being accurate representations of the scene as he observed it at the time. The photographic exhibits were admitted in evidence and published to the jury. Officer Stallings testified that State’s Exhibit 1 was of the apartments; Exhibit 2 was the front door to was the entrance to the apartments; Exhibit 3 was the stairwell leading upstairs; Exhibit 7 was another entrance to the apartments; Exhibit 4 was an axe laying outside the door that was apparently used to gain access to the locked apartment; State’s Exhibit 5 was debris from the apartment entry. Officer Stallings described the interior of the apartment as messy.
Officer Stallings estimated it took Special Crimes 20 minutes to arrive on the scene. After Special Crimes arrived Officer Stallings went back downstairs and signed the crime scene log and then gave that form to Officer Jewitt. Officer Stallings then went to speak with the people he observed outside when he arrived. Officer Stallings did not collect any evidence himself from the scene.
Officer Stallings learned from speaking with the deceased’s daughter, Christin that she had been trying to reach Mr. Provence for three days. She advised that she had received a phone call from an unknown male who said that she needed to go check on her dad because something was wrong with him. Christin also got a call from Cindy Lamar who said Christin needed to check on her dad. Cindy Lamar also advised Christin that a white female named Leslee Wiseman was outside Stumpy’s Bar, located just south of the crime scene, yelling she had killed Ricky Provence. (RR vol.2 pg.186, 188-189). State’s Exhibit’s 8 and 9 were identified by Officer Stallings and were admitted in evidence. The exhibits depict the view from just outside the apartment and from just inside the door to the apartment.
TESTIMONY OF JEREMY MARTIN
Mr. Martin testified he lived directly across from an apartment building located at 1508 South Jefferson. Mr. Martin identified the apartment in State’s Exhibit 1. Mr. Martin testified he knew Ricky Provence because Ricky was neighbors with Mr. Martin’s mother. He testified that Ricky lived in apartment number 2. (RR vol.2 pg.190-91). Mr. Martin testified that Ricky lived alone in the one bedroom apartment. He testified that he had been in the apartment three or four times and Ricky kept the apartment very tidy. Mr. Martin testified that Ricky had a coachman shotgun he kept in the apartment.
Mr. Martin had visited Ricky in the apartment three or four days prior to July 5, 2011. He would see Ricky three or four times a week on average. Mr. Martin testified that Ricky had a red truck which Mr. Martin identified in State’s Exhibit 47.
Ricky usually kept the truck parked right outside his apartment window. Mr. Martin was not aware of Ricky ever loaning his pick up to anyone. (RR vol.2 pg.194). Mr. Martin testified the red truck was parked at the apartment on occasion during the three or four day period between July 2 and July 5. On July 5, 2011, Ricky’s daughters Christin and Cassi came by and asked Mr. Martin for the downstairs key to the apartment.
Mr. Martin had the key because his mom lived in an apartment upstairs next to Ricky. Mr. Martin decided to go with them to the apartment. When they arrived at Ricky’s apartment at approximately 9:00 a.m. the door was locked. They knocked and there was no answer. Mr. Martin, Christin and Cristin’s boyfriend, Josh, came back a little after noon. Christin told Mr. Martin they needed to get in the apartment. They first tried kicking in the door, then Mr. Martin’s wife went and brought back a hatchet. Josh also tried getting in through another door to the apartment by punching out a window which was unsuccessful, resulting in Josh cutting himself badly.
While looking through that window Christin saw that the refrigerator door was left open and drawers were pulled out. At that point Mr. Martin did not smell anything unusual.Then they started chopping at the main door underneath the doorknob, and were able to unlock the door. With Josh leading, they all went inside the apartment. Once inside the apartment Mr. Martin saw that it was messy. There were bags of laundry and trash bags and the apartment looked ransacked. Mr. Martin testified that State’s Exhibit 9 showed how the apartment looked when they entered.
Once in the apartment Christin went towards the kitchen, Josh went to the bedroom, Mr. Martin stayed in the living room. Josh then jumped from the bedroom said “holy shit” there is a dead guy in there, and Mr. Martin noticed a smell. Christin then ran from the kitchen to the bedroom knocking Mr. Martin in to the bed room. Mr. Martin then observed the body. From the hair He recognized the body as Ricky. Mr. Martin testified that State’s Exhibit 19 depicted what he saw. Christin then started crying became hysterical and tried to touch the body.
Mr. Martin’s mom then called the police and it took approximately 15 minutes for the police to arrive. He gave the police a statement. Mr. Martin noticed the shotgun that was usually above the television was missing.
TESTIONY OF JOE BROWN
Corporal Brown testified he worked for the Amarillo Police Department on July 5, 2011, as the lead crime scene investigator for the Special Crimes Unit for the Ricky Provence case. (RR vol.2 pg.215, 217). When arriving on scene he immediately began taking pictures. (RR vol.2 pg.218). He identified State’s Exhibits 6, and 10 through 18 as photographs he took of the scene.
Corporal Brown testified that State’s Exhibit 6 depicted a hallway in the apartment where shards of glass from the door were located and a note in the hallway which stated “Daddy please call me. Cassi. We are worried about you. We need to know you are okay. Dated 12:08 July 5.” States Exhibit 10 depicted the living room of the apartment
State’s Exhibit 11 another shot of the living room looking in from the front door to the apartment. State’s Exhibit 12 shows a couch on the east side of the living room. State’s Exhibit 13 shows a makeshift coffee table with various items on the table. State’s Exhibit 14 is a photo looking north in the living room towards the bedroom. State’s Exhibit 15 shows the bathroom. State’s Exhibit 16 shows the body in the bedroom as it was when Corporal Brown arrived on the scene. State’s Exhibit 17 was a view from the bedroom looking out to the hallway. State’s Exhibit 18 was the body which appeared to have been there for a couple of days. The temperature of the room was pretty warm around 84 degrees. State’s Exhibit 19 was just a different view of the victim to show the cord wrapped around the victim’s neck.
State’s Exhibit 20 was a close up of the cord which had the similar coloring of the thread found in the living room. The photograph also showed a stereo cable that Corporal Brown wasn’t sure what it had to do with the cord, but was attached to the cord. State’s Exhibit 21 was a picture of the victim’s right front pocket that was partially pulled out liked someone had pulled his pocket out and some loose change. State’s Exhibit 22 was blood found on the bed. Corporal Brown testified he did collect DNA sample from blood in the apartment.
State’s Exhibit 23 was a Dallas Cowboys baseball hat found in the living room marked with a yellow placard. This item was not swabbed for DNA. The whole cap was sent to be tested. State’s Exhibit 24 was a coke can found on the end table next to the couch. This top of the can was swabbed for DNA by Retired Investigator Modenia Holmes.
State’s Exhibit 30 was a photo of the bathroom sink without the crime scene markings. Corporal Brown did collect blood samples and loose hair fibers from the sink for DNA testing.
State’s Exhibit 30A was either a DNA swab or hair strand collected. Corporal Brown testified that a pair of sunglasses were sent off to the DPS lab for analysis. (RR vol.2 pg.228). Blood evidence in the Hallway was collected fresh and still wet. However, Corporal Brown believed that was from one of the individuals that got cut trying to get in the apartment on July 5.
State’s Exhibit 51 was the cord found on the victims neck collected at theautopsy. State’s Exhibit 52 was a set of jumper cables found in the living room found in one of the laundry baskets. The jumper cables were processed for fingerprints and for blood evidence.
Corporal Brown testified that during the autopsy there was an area around the skull that Dr. Miller said could have been from blunt force trauma but it could also have been from decomposition. No weapon was ever identified as being attributed to striking Mr. Provence.
Corporal Brown acquired DNA samples from Mr. Brewer, Justin Scales, and Brian Childs. Officer V.C. Smith acquired DNA samples from Leslee Wiseman. A sample was also collected from the man who cut himself attempting to get in the locked apartment. All the samples were sent to the lab for analysis. As were the know DNA samples. No fingerprints were found on the jumper cables. Contraband evidence consisting of a marijuana pipe and a baggie of a white powdery substance was also found in the living room.
Corporal Brown testified some other items such as a hammer and machete were not sent off to the lab since there was no evidence of blunt force trauma. Ricky Provence’s pick up was also processed for evidence at a later time.
State’s Exhibit’s 40, 41 and 42, photographs of the victim’s truck show some powdery substance throughout the cab of the truck, but the substance was never identified. Corporal Brown testified he believed it to be a cleaning powder.
When police officers were inside of the apartment collecting evidence ammunition for multiple types of weapons was found. (RR vol.2 pg.254). However, no firearms were found in the apartment. (RR vol.2 pg.256). There were also some syringes found in the trash that appeared to have blood in them. The substance which was tested in the DPS lab tested positive for meth.
Corporal Brown testified that the investigators went back to the apartment four times during the investigation. They also tested the apartment for the presence of human fluid due to some interest in any sexual contact with Leslee Wiseman and Mr. Provence. Some human fluid was found on the love seat in the living room. (RR vol.2 pg.258). The fluid was in the shape of a footprint on the back of the love seat 18 inches up from the ground with the toes pointing to the ceiling and the heel of the foot to the ground. That area of the love seat was cut out and collected. In addition a black t-shirt and gray shorts were collected from Carol Tolar’s apartment. Ms. Tolar is Leslee Wiseman’s mother. (RR vol.2 pg.259). This was done because the police were told that the subjects that were involved had gone to Ms. Tolar’s house and changed clothes and that the t-shirt and shorts was what Leslee had on at the time.
TESTIMONY OF JIMMY RIFENBERG
Officer Rifenberg testified he was employed with the Amarillo Police Department as a CSI investigator and had been employed with the Special Crimes Unit. (RR vol.3 pg.7). He arrived on this crime scene at approximately 2:20 p.m. on July 5. (RR vol.3 pg.8). Officer Rifenberg did not find any weapons in the apartment. (RR vol.3 pg.12). Officer Rifenberg testified it looked like the apartment had been gone through because of the open drawers and the refrigerator and freezer doors that were left open.
CHRISTIN PROVENCE
Ms. Provence testified that she was 31 not married and unemployed and that her father was Ricky Glen Provence who was 51 at the time of his death. (RR vol.3 pg.31). She identified the person in State’s Exhibit 50 as her father.
She identified State’s Exhibit 47 as a photograph of her father’s truck. She testified that her father would never loan his truck out to anyone. Ms. Provence testified that her father had nine or ten guns in the apartment that she knew of in addition to a knife collection of over 100 knives.
The last time she saw her father alive was for about 5-7 minutes on July 2 when he had come by to see her at 1:30 a.m. Mr. Provence had been to a bar and he told Ms. Provence he was with a crazy bitch he met at a bar who had asked him for a ride home. Ms. Provence never saw the woman. (RR vol.3 pg.35-37, 50, 66). When her father didn’t show up on July 4, she began thinking something was wrong as she usually talked to him every day and it was unusual for him to miss the 4th with them. (RR vol.3 pg.37).
Ms. Provence attempted to call him about 20 times on his cell phone but did not get an answer. (RR vol.3 pg.38). Ms. Provence testified she received an anonymous phone call asking her if she had seen Ricky which made her think something was wrong. She later found out the call was from Shanda McDonald. (RR vol.3 pg.47). On July 5 she got a call from Sandra Lamar, Josh’s mom, who told Ms. Provence she needed to check on her dad’s apartment. Sandra told her that Leslee might be involved.
The first time Ms. Provence went to the apartment was on July 5 at about 8:00 a.m. She noticed his truck was not there and black birds were at his window. (RR vol.3 pg.40). She left to look for him at some of his friend’s homes and then came back around 1:00 p.m. Jeremy Martin had a key to the down stairs door since his mom lived in the same apartment building. (RR vol.3 pg.42). Her boyfriend Josh broke a window out of the kitchen door and when Ms. Provence looked in through the broken window she noticed her father’s refrigerator door open then someone brought an axe and Jeremy got in through the thin part of the door. Then they all three entered the apartment. Josh got injured when he broke the window out.
Ms. Provence went to the kitchen then Josh yelled out that there was a dead guy in there, but it wasn’t her dad. Then Ms. Provence ran towards her father’s bedroom and started screaming it was her dad. (RR vol.3 pg.44). Ms. Provence identified State’s Exhibit 18 as a photograph of her father. After she saw her dad Ms. Provence ran towards him but someone pulled her out of the room by her waist. Ms. Provence believed Jeremy’s mother called the police. Ms. Provence testified she went to her father’s apartment often, that her dad was very clean and that when she went in the apartment it did not look like it normally would. She did
not think the tan couch was in the right place
A few weeks later she looked through the apartment to look and see if anything was missing. She saw that her dad’s gun and his truck were gone. Ms. Provence testified the truck was recovered a few days later. (RR vol.3 pg.45). She finally got the keys to the truck from a person named David Nunn who knew her father, she then took them to the police station. (RR vol.3 pg.46). Ms. Provence noticed that her son’s picture that was normally on her father’s key chain was in the apartment, so that whoever took the truck must have taken the picture off the key chain before they took the truck. (RR vol.3 pg.63). Also pictures out of her dad’s wallet were found on a table in the apartment. The wallet was never recovered.
Ms. Provence testified in all the time she knew her dad he had never worn a necklace. (RR vol.3 pg.69). Mr. Provence had several watches he kept in a metal box but those were missing from the apartment as well. (RR vol.3 pg.70).
Ms. Provence found a baggie of a yellow substance that fell out of a jacket pocket of a coat in her dad’s closet.
TESTIMONY OF SAMUEL WARRICK (outside jury’s presence)
The trial court heard testimony to determine the admissibility of alleged statements made to Mr. Warrick by Leslee Wiseman and Appellant.
Mr. Warrick testified he knew both Leslee Wiseman and Appellant. On July 3, 2011, he was in an apartment located behind the Pine Shed when he had an encounter with Leslee Wiseman. Mr. Warrick stated he was asleep in the bedroom and he heard someone coming in through the window on top of him. That person was Leslee. (RR vol.3 pg.77-78). Mr. Warrick testified Leslee said she had gotten into a fight with someone and she thought he was dead. Mr. Warrick described Leslee as hysterical. (RR vol.3 pg.79). Specifically, according to Mr. Warrick Leslee said she and someone else had tried to rob somebody and left him hurt. Leslee told Mr. Warrick that the man put his hands on her and Laney came to rescue her. (RR vol.3 pg.81). Leslee told Mr. Warrick Laney beat him up and that then she got on top of him and put her hands on his throat until he passed out.
Later that afternoon or evening Mr. Warrick talked to Laney on the phone. Mr. Warrick testified Laney asked him if he had a Crown Royal bag that Leslee had given to Mr. Warrick. Mr. Warrick met Laney at the Toot N Totum at 45th and Virginia and he gave him the bag. Laney opened the bag which contained some pocket watches. Laney stated to Mr. Warrick, “I screwed up. I hit the guy too many times, but then Leslee got on top of him and choked him out. (RR vol.3 pg.83-84).
Laney also stated that he and Leslee were intending to rob the guy and just take him for some money in his pockets. (RR vol.3 pg.85,87). Laney told Mr. Warrick that Leslee called him and told him that she had met Ricky at the bar and flirted with him and went home with him. She then called Laney to help her. Laney told Mr. Warrick that Leslee told him that Ricky wouldn’t keep his hands off her, so he went over there and handled it and it got bad. (RR vol.3 pg.86). Mr. Warrick testified that Leslee told him that Ricky was still breathing when they left.
The trial court over ruled defense objections and allowed Mr. Warrick to testify to the jury.
SAM WARRICK TESTIMONY TO THE JURY
Mr. Warrick testified he lived in Amarillo for 15 years and he was a manager at Soncy Road Body Shop. He testified he was on parole for possession of a controlled substance with intent to deliver. Further he had a number of felony convictions for weapons and drugs. Mr. Warrick testified he knew Leslee Wiseman whom he knew as Leslee Tolar. Mr. Warrick testified he knew Laney Brewer as well and identified him in the courtroom. (RR vol.3 pg.98-99). On October 29, 2011, Mr. Warrick gave a statement to police about events that occurred on or about July 2 and 3, 2011.
On July 3 he was at Kimmy’s apartment behind the Pine Shed in Amarillo. Others at the apartment were Carol Tolar; David Nunn and Joe Beavers. Carol Tolar was Leslee’s mom. Mr. Warrick was at the apartment to sleep. He was asleep in the bedroom and everyone else was in the living room. (RR vol.3 pg.101). While he was sleeping he heard a pounding on the front door then Leslee Tolar crawled through the bedroom window and landed on him. Leslee was hysterical, so he hollered for her mother to come take care of her. (RR vol.3 pg.103). Mr. Warrick testified Leslee told him that she and Laney Brewer robbed a guy and left the guy hurt. Leslee asked Mr. Warrick to hold a Crown Royal bag which contained watches for her. Leslee stated that she had put her hands around the man’s neck and left him hurt. Specifically, Leslee told him that the guy was putting his hands on her and she called Laney to come help her. Laney beat the guy up and then she put her hands around his neck and choked him. She told him that they had robbed the man.
When Leslee left Kimmy’s apartment on July 3 with David Nunn Mr. Warrick observed them leaving in a red truck. (RR vol.3 pg.107). Mr. Warrick testified that the reason he did not call the police was because based on his knowledge of Leslee, he did not know whether she was lying or not. Further, it appeared to him that Leslee was on drugs.
Based on his conversation with Laney Mr. Warrick got the impression that a set up happened at a bar and then it went south when Leslee got to the apartment with the guy. (RR vol.3 pg.128-129). The information that Mr. Warrick heard from both Laney and Leslee at separate times was very similar.
Later, Laney called Mr. Warrick and asked if he had the Crown Royal bag from Leslee. Mr. Warrick had the bag and agreed to meet Laney at the Toot N Totum on 45th and Virginia. When they met Laney told him that he had screwed up. Laney said that he hit the guy too many times and then he said that Leslee got on top of him and choked him out. Laney told him that he went to help Leslee, that she had called him stating that Mr. Provence was putting his hands on her. Laney further told him that they were intending to rob the guy for his money.
Mr. Warrick gave the bag to Laney who told him it was Leslee’s property. (RR vol.3 pg.113). When Laney opened the bag there were some watches in the bag. Mr. Warrick told Laney he had heard enough and got out of the car and left. (RR vol.3 pg.114). Mr. Warrick testified that all the individuals, including himself at Kimmy’s apartment used meth, including Leslee.
Mr. Warrick in reference to the stories he received from Laney and Leslee stated “it was hard to know who was lying and who was telling the truth and they you know, they may have told me two different stories. I don’t remember.” Mr. Warrick did state that in both stories Appellant’s laying of his hands on Mr. Provence occurred immediately after Leslee says that she was being attacked by Mr. Provence.
TESTIMONY OF DANIEL LINDLEY
Mr. Lindley testified he was a forensic scientist in the DNA section of the Texas Department of Public Safety Crime Laboratory in Lubbock, Texas. (RR vol.3 pg.133). Mr. Lindley received two submissions in the present case from the Amarillo Special Crimes Unit. (RR vol.3 pg.136). Mr. Lindley did a test on a blood submission from the hallway floor and the DNA profile was consistent with a C. Williams. He also did an analysis of Dallas Cowboys hat found on the couch. (RR vol.3 pg.137-138). The analysis revealed that R. Provence and suspect Wiseman’s DNA could not be ruled out as being on the hat.
A test for blood on a machete blade came back as being consistent with a DNA profile of victim R. Provence; no DNA foreign to the victim was detected. (RR vol.3 pg.140). A presumptive test for blood in the bathroom sink was consistent with a mixture R. Provence was not excluded. Suspect Wise could not be excluded as a contributor.
The swabs from the jumper cables contained partial DNA for Ricky Provence. The tests from the front door came back to a C. Williams. The swabs from the interior door were from Provence. The swabs from the coke can item 21A was consistent with DNA from Ricky Provence and the second set was consistent with the DNA from suspect Wiseman. The analysis from the syringe was consistent with Ricky Provence.
Tests of three rubber gloves from the kitchen revealed the first one item 27C.1 had a DNA mixture with the major component attributed to Ricky Provence and the minor component was insufficient to test. Stain 2 was consistent with Ricky Provence. The sunglasses had DNA consistent with a mixture of both Ricky Provence and suspect Wiseman.
The DNA analysis of t-shirt recovered from 4710 Southwest 57th was consistent with a mixture from Ricky Provence and suspect Wiseman.
Mr. Lindley did not test the red cord for DNA due to the large amount of the victim’s blood on the item.
TESTIMONY OF BERRY CARDEN
Officer Carden testified on July 5, 2011, he was on shift patrol for the Amarillo Police Department. He was assigned to locate the victim’s vehicle. He went to 5700 Canyon Drive and located the vehicle at the Cottonwood Apartments. (RR vol.3 pg.176). Officer Carden identified the vehicle in State’s Exhibit 47. Officer Carden identified State’s Exhibits 45, 36, 48 and 49 as being the scene where the vehicle was located. (RR vol.3 pg.177-178). The exhibits showed the front of the apartment complex. Officer Carden testified that the apartments were across the street from the Pine Shed Bar. State’s Exhibit 46 showed the vehicle parked between apartments 20 and 21.
After Officer Carden located the truck he notified Special Crimes. He did not enter the vehicle but Officer Carden noticed the interior of the vehicle was covered in a white powdery substance. He identified the powder in State’s Exhibit 41.
DAVIS SCOTT NUNN TESTIMONY
Mr. Nunn testified that he was incarcerated in the Randall County Detention Center. He confirmed had had felony convictions for evading and possession of a controlled substance. (RR vol.3 pg.202). He testified that he knew Leslee Tolar aka Wiseman and Laney Brewer. Mr. Nunn testified he recalled being at Kimmy’s apartment on July 2 and 3rd 2011. (RR vol.3 pg. 203). The apartment was located behind the Pine Shed off the Canyon E-way. Others at the apartment were Sam Warrick, Joe Beavers and Carol Tolar. At some point in the evening Leslee and Laney were there as well around 10:00 p.m. to 12:00 a.m. Leslee and Laney left
the apartment together. (RR vol.3 pg.204). Later that night he saw Leslee when she entered the apartment through a window. (RR vol.3 pg.205). Mr. Nunn stated that he and Sam were sitting there talking and then Leslee just came through the window and was acting irate. He did not recall Leslee’s mom coming in and talking with her. At some point David Walked outside with Leslee and observed she was in Ricky Provence’s truck. Mr. Nunn and Ricky were friends so he knew the truck was Ricky’s.
He and Leslee got into an argument and he took the keys from her as well as a .12 shotgun Leslee had removed from the truck. Mr. Nunn returned the shotgun to Ricky’s son. (RR vol.3 pg.207). Mr. Nunn gave the truck keys to Ricky’s daughter, Christin. (RR vol.3 pg.208). Mr. Nunn had Leslee park the truck across the street from the apartment because Kimmy was “freaking out because of the whole situation.”
LAURA COLSON TESTIMONY
Ms. Colson testified she had several previous state and federal felony convictions and that she currently worked at the Fifth Season Hotel as a desk clerk.Ms. Colson testified she had several previous state and federal felony convictions and that she currently worked at the Fifth Season Hotel as a desk clerk. (RR vol.3 pg.264). On July 3 2011, she saw both Peggy Reid and Laney. Ms. Colson believed that Laney and Peggy were in a relationship. They were all together at a home at 11:30 p.m. (RR vol.3 pg.265). Laney mentioned that he killed somebody in a fight. (RR vol.3 pg.267).
Ms. Colson said that at the time Laney told her this she was high put of her mind because she and Peggy and Laney had all been shooting meth that Laney had provided. (RR vol.3 pg.268, 277, 278). The next day she and Peggy and Laney walked to an apartment she knew because her friend Rickey Provence lived at those apartments. (RR vol. 269). She identified State’s Exhibit 1 as the apartments. Ms. Colson stayed downstairs and did not go to the apartment itself. The purpose of the visit was because Laney wanted to see if the guy was really dead. (RR vol.3 pg.270). Laney and Peggy went upstairs. (RR vol.3 pg.271). Ms. Colson said they were up stairs about 20-25 minutes. (RR vol.3 pg.272). Ms. Colson said she loved Ricky he was her friend. (RR vol.3 pg.264).
TESTIMONY OF MEGAN BLADES
Ms. Blades testified that Leslee Wiseman was her friend and that she knew Laney Brewer. (RR vol.3 pg.251). In early July 2011 she and Leslee and Laney went to Leslee’s mom’s apartment across from the Pine Shed Bar. (RR vol.252-254). Ms. Blades did not go in the apartment with Laney and Leslee. They were there for 45 minutes. They went over there so Leslee could take a shower. Then they all left together and went to Bealls department store. (RR vol.3 pg.254). They then dropped Leslee off at Northwest First Street, so it was just her, Laney and Michael Mayfield who had met them at Bealls. (RR vol.3 pg.256). They then went to Sonic and got ice cream then Leslee called them back and they went and picked her up off of Northeast First. They drove around some more and then sometime that night they went to Boscos. Ms. Blades did not go into Boscos because she did not like bars. The others were in Boscos for about 15 minutes. (RR vol.3 pg.258, 261). They came back out and then Ms. Blades said she was ready to go to bed so Laney and Leslee were dropped off near Boscos.
TESTIMONY OF MICHAEL MAYFIELD
Mr. Mayfield testified he knew Megan Blades, Laney Brewer and Leslee Wiseman. (RR vol.3 pg.296). He testified he had two felony dope convictions; two felon in possession of a firearm and a resisting arrest conviction. At the time of his testimony he was currently serving time. Mr. Mayfield testified that he met Megan Baldes, Leslee Wiseman and Laney at Bealls at I-40 and Grand on July 2, 2011, at about 4:30 or 5:00 p.m. They were there for about 30 to 45 minutes.
TESTIMONY OF WILLIAM TY HUNKAPILLAR
Mr. Hunkapillar testified he was an inmate in the Texas Department of Corrections serving a sentence for aggravated assault. He testified he knew Leslee Wiseman and Laney Brewer. (RR vol.4 pg.67-68). On the morning of July 3, 2011, he was at Moonlight slots when he saw Leslee and Laney in a red pickup truck.
TESTIMONY OF DEWANA ADAMS (outside presence of jury).
#people/C/Childs/Bryan #people/A/Adams/Dewana
Ms. Adams testified that she overheard a conversation between Leslee Wiseman and other inmates wherein Leslee stated that she met Ricky at a bar and took him to the Apartment and there She, Laney and Brian Childs beat Ricky in an attempt to rob him. They searched the apartment for money then left and they went back the next day and found Ricky still alive so she strangled him. Leslee stated that she had blood on her clothes because they had tried to move the body. Leslee stated that Laney called her to come over and help move the body.
TESTIMONY OF DEWANNA ADAMS (jury present)
Ms. Adams testified she was employed as a housekeeper at the downtown Women’s Center. She testified she had convictions for robbery and possession of a controlled substance. (RR vol.4 pg.71). In July 2011, Ms. Adams was incarcerated in the Potter County Detention Center. At that time she met another inmate, Leslee Wiseman as they were in the same pod with five to eight other women. (RRvol.4 pg.73-74) The state asked the witness to state what she overheard Leslee say to the other women in the pod regarding the murder. Defense counsel objected on numerous grounds and the trial Court over ruled the objection.
Leslee told the women in the cell that she, Laney and Brian Childs killed somebody. According to Ms. Adams Lesee stated that she had seduced a person at a bar across the street from where he lived and took him home and they met at his apartment to “hit a lick.” (RR vol.4 pg.76). When they arrived at the apartment they beat the man and searched the apartment for money. (RR vol.4 pg.77). Over defense’s hearsay objection Ms. Adams testified that Leslee stated the reason she (Leslee) had blood on her clothes was because Laney and Brian called her the day after to come back to the apartment to move the body and that the man was still alive when she arrived and they strangled him. (RR vol.4 pg.78). Ms. Adams stated that she did not give her statement to the police until February 28, 2013.
Ms. Adams testified that when Leslee first talked about the things in jail Ms.Adams did not tell anyone. The statement to police came about because Ms. Adams met Ricky Provence’s sister Renee in a drug class in February 2013 and then she felt compelled to say something. (RR vol.4 pg.79, 81). Ms. Adams told Renee what she had heard in jail then Renee contacted the police. Ms. Adams subsequently gave a statement to police. Ms. Adams testified that Leslee’s attitude when she was talking about the murder was like it was funny or just another conversation.
Ms. Adams stated she knew Ricky Provence but could not remember whether Leslee told her the murder victim was Ricky Provence. Ms. Adams put in her statement to police that Leslee did say that it was Ricky Provence. (RR vol.4 pg.83). On cross examination Ms. Adams testified that initially Leslee denied having anything to do with the murder then her story changed over time. The first version that Leslee told was that it was just Laney and Brian who killed Ricky and then after a few weeks Leslee told the second version of the story.
TESTIMONY OF JASON RIDDLESPURGER
#officer/APD/Riddlespurger-Jason
Officer Riddlespurger testified he was employed by the City of Amarillo Police Department in the Special Crimes Unit. (RR vol.4 pg.97). He was assigned as the lead investigator in the Ricky Provence death. (RR vol.4 pg.98). Officer Riddlespurger identified State’s Exhibit 57 as the Bosco’s video footage and it was
played for the jury.
The video showed at 2320 a Pontiac Grand Am occupied by Megan Blades, Michael Mayfield, Leslee Wiseman, and Laney Brewer. At 2321 the video shows Michael and Leslee get out of the car and enter the bar. (RR vol.4 pg.109-114). At 1:34-1:35 a.m., Ricky’s red Chevrolet pickup entered into the parking lot and Ricky exited the vehicle and went in the bar. (RR vol.4 pg.115, 121). Ricky was wearing a black t shirt on the video. At 2:07 the video shows Leslee Wiseman and Laney Brewer entering Boscos. (RR vol.4 pg.116). Then at 2:16 a.m. the video shows Ricky and Leslee walking together in the parking lot towards Ricky’s truck and he and Leslee get in the truck. The video showed that Laney exited the bar from a different door than Ricky and Leslee. (RR vol.4 pg.123). The video showed Leslee talking to Laney Brewer. (RR vol.4 pg.117, 120). The video showed tires in the back of Ricky’s truck and later when the police recovered the vehicle the tires were not in the back of the truck. (RR vol.4 pg.118, 130). There was no video of Mr. Provence leaving Boscos.
Officer Riddelspurger was not able to verify anything specific was missing from Ricky Provence’s apartment. (RR vol.4 pg.130-131). Defense counsel made a Motion For Directed verdict which was denied by the trial Court.
SUSAN GOODSON
#officer/APD/Goodson-Susan
Officer Goodson testified she was a police officer for the Amarillo Police Department and was working on July 3, 2011 at 2:43 p.m. Officer Goodson was dispatched to 3200 Sequoia in regards to a suicide call. Officer Goodson made contact with Leslee Wiseman. Officer Goodman immediately determined Leslee Wiseman was under the influence of a narcotic and that Leslee had taken some pills to come down from the narcotic. (RR vol.4 pg.137, 140). Officer Goodson found that Leslee was not suicidal and so she left her with AMS personnel to deal with Leslee’s medical issues. (RR vol.4 pg.137-138). Leslee Wiseman told Officer Goodson that maybe someone named Rick was in a red truck was hurt and that Leslee had ditched the truck. Officer Goodson had no idea whether what she was told was true but because of the nature of the information she followed up on the information
TESTIMONY OF LANEY BREWER
Mr. Brewer testified that he was 25 years old. He testified he met Leslee Wiseman in May 2011. (RR vol4 pg.162). He testified that he did not have a steady romantic relationship with Leslee but slept with her once. Mr. Brewer testified he did that while he had a girlfriend named Peggy Reid. (RR vol.4 pg.145,162). Mr. Brewer testified he was with Leslee on July 2. He testified that Leslee called him and told him she had been thrown out of where she was living and that she was at Toot N Totum on Georgia with all her belongings in a trash bag. Mr. Brewer then walked to the Toot N Totum, called his friend James Hornoff for a ride and they took Leslee to the house where he was staying. Mr. Brewer and his girlfriend Peggy had a fight and then he and Leslee left the house and were picked up by Megan. (RR vol.4 pg.146, 164, 166). Mr. Brewer confirmed the testimony of Megan that they went to Bealls where Michael Mayfield met them. From there they went to Boscos because Michael needed to talk to somebody. Michael and Leslee went in to Boscos and he and Megan stayed in the car. Mr. Brewer testified they got there right around dark between 9:30 and 10:30. After they left Bosco he and Leslee were dropped off at James’ house around 11:30 p.m.
Then he and Leslee, who were both high from doing drugs all day, left the house and ended up walking back to Boscos. (RR vol.4 pg.172). Mr. Brewer admitted that he had drugs in his possession on that day. He also admitted that he was looking to steal copper wire while walking around before going to Boscos, so he could support his drug habit. (RR vol.3 pg.175). When they got to Boscos at around 2:00 a.m., Mr. Brewer went inside to use the phone to try and find a ride. He was in the bar 10 minutes and noticed that Leslee was not around inside the bar, so he went outside to look for her and saw her walking to a truck with a man. At that point Mr. Brewer made contact with them and got a ride to 6th and Maryland or Kentucky in the San Jacinto area. Mr. Brewer testified that Officer Riddelspurger was correct and that was him in the Boscos’ video footage.
Mr. Brewer then got a ride from another friend and they were driving around downtown when he got a call from Leslee stating she was with the man whom she had left the bar and that the man would not let her leave his apartment. Leslee told Mr. Brewer she was scared because the man had pulled out a machete. Leslee texted Mr. Brewer that the apartment was across the street from Jo Mammas Bar. Mr. Brewer was able to get in the building. He then went upstairs and heard through an apartment door Leslee talking loudly. He texted Leslee to find out how serious the situation was. Mr. Brewer knocked on the door and Mr. Provence answered. Mr. Brewer asked Mr. Provence why he would not let Leslee leave the apartment. He described Mr. Provence’s demeanor as agitated. Mr. Provence then reached for something on the brown couch which was in reach of the doorway. The men then began to wrestle. While they were wrestling Leslee hit Mr. Provence on the back of the head with some object.
Leslee then jumped on Mr. Provence’s back and began to choke him with her arm. Mr. Brewer denied the cord that was introduced into evidence was used. Mr. Provence did not fall down after he was hit from behind but did fall down unconscious after Leslee began chocking him from behind. Mr. Brewer then stood up and got Leslee off of Mr. Provence. He then checked Mr. Provence’s chest to see if he was breathing and
checked his pulse. Mr. Provence was breathing and had a pulse. (RR vol.4 pg.153, 184-185, 203). Mr. Brewer did not stop Leslee from choking Mr. Provence until he saw that Mr. Provence was unconscious. (RR vol.4 pg.203). Mr. Brewer told Leslee they needed to leave and then Leslee reached down and grabbed some things out of Mr. Provence’s pockets including the keys to his truck. They left the apartment. Mr. Brewer did not want to leave in Mr. Provence’s truck but Leslee convinced him otherwise. Leslee drove him to the Moonlight Slots and then Ty Hunkapillar took him home.
Later the next day Leslee showed up to get her clothes she had left. At that time she told Mr. Brewer that Ricky was dead. At that point in time he told Leslee to leave. Then Peggy and a girl named Laura showed up and he told them the situation that had happened. Later they just happened to be walking by Mr. Provence’s apartment and he decided to go check to see for himself. His initial plan was to just knock on the door and get some answers. (RR vol.4 pg.155, 204). Mr. Brewer went to the apartment he knocked on the door several times and even called out but nobody answered, so he left. Mr. Brewer explained that after that
was when he went and was seen in the Toot N Totum video. Mr. Brewer testified that when Leslee had showed up to get her stuff Leslee told him that she left the truck and all the stuff she had with a friend named Sam.
Mr. Brewer then called Sam after he went to the apartment that day and asked if Leslee had left anything with him and Sam confirmed that she had. Mr. Brewer asked Sam to bring him the items and Sam brought him a Crown Royale bag with some watches in the bag that Mr. Brewer had never seen before. He did not know how Leslee got possession of the watches. Mr. Brewer did not leave Mr. Provence’s apartment with anything. He did not see Leslee leave with the Crown Royale bag or a shot gun. Mr. Brewer testified it was not his intent to rob Mr. Provence when he went to the apartment.
Mr. Brewer testified that at the time of these events he was involved in drugs and other various criminal activities. (RR vol.4 pg.158). Mr. Brewer testified that when he left the apartment there were not things scattered about like in the State’s photograph exhibits. That the orange cord was not around Mr. Provence’s neck. (RR vol.4 pg.159, 216). Mr. Brewer testified he did not participate in moving the body and did not notice any blood on Leslee’s clothes. He did not have any blood on his clothes. (RR vol.4 pg.160). Mr. Brewer testified that at the time of trial he had two pending charges for burglary of a building. (RR vol.4 pg.161). Mr. Brewer denied telling Laura that he had killed somebody. He did not believe that he told anyone he had been in a fight because he did not consider the altercation with Mr. Provence a fight as he did not hit him. (RR vol.4 pg.202). Mr. Brewer denied telling Sam Warrick he screwed up and hit Mr. Provence too many times; He denied telling Sam Warrick that Leslee straddled Mr. Provence and choked him, and he denied telling Sam Warrick that they planned to rob the guy. (RR vol.4 pg.212). Mr. Brewer denied killing Laney Brewer. He denied taking anything from Mr. Provence’s apartment, but he did admit to accepting a ride from Leslee in Mr. Provence’s truck. Mr. Brewer testified that Mr. Provence was alive when Mr. Brewer left the apartment.
The jury found Appellant guilty of the lesser included offense of aggravated robbery