Motion filed to set aside new trial

Published 11:00 pm Friday, May 24, 2013

Prosecutors have filed a motion to set aside a judge’s order granting a new trial for convicted rapist Andre Ellis.

The motion, filed Friday in Pike County Circuit Court, challenges both Circuit Judge Jeff Kelley’s jurisdiction and several of the issues he raised in his May 17 order overturning the conviction of Andre Lamon Ellis.

Ellis was convicted in January of two counts of rape and one county of second-degree burglary and sentenced to concurrent terms of 85 years for each rape and 20 years for the burglary charge.

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“The jurisdiction of the court (to consider the defendant’s request for a new trial) was never properly invoked in the first place,” said Chris Kaminski, assistant district attorney.

Kaminski said Alabama rules of criminal procedure clearly state that a defendant can request a new trial 30 days after sentencing. However, Ellis’ attorney filed the request for a new trial on March 25, 2013, two days before his March 27, 2013, sentencing.

In addition to questioning the jurisdiction, the motion provides counterpoints to the issues raised by Ellis’ attorney during the hearing requesting a new trial and reiterated by Kelly in his eight-page order citing the reasons for granting that new trial. Among the issues cited in Kelly’s order were: “inconsistency” in one victim’s testimony regarding the timeline of events on the day of the alleged rape; “reasonable probability” that the results of the first trial would have been different if the State had not suppressed evidence; that much of the evidence that wasn’t disclosed by the State would have provided an opportunity to impeach the credibility of one witness and the investigation; that exculpatory and impeachable evidence that was suppressed was favorable to the defense; and that a victim was not truthful to medical professionals about what happened to her, a crime scene was cleaned and text messages were deleted prior to an investigation.

In the nine-page motion filed Friday, the prosecution answers those issues, including charges that the state suppressed evidence. “There is a minor but significant difference between impeachment evidence and mere inconsistent statement,” the motion states. “Minor inconsistencies in statements previously made to law enforcement are not considered by the cases this Court cites in its order.” Moreover, the order cites a ruling that states a witness’ prior statement can be requested only after a witness has testified during court. “The defendant never once made the specific request that is required at trial for said statements to be disclosed and therefore the state had no duty to disclose the statements …” the order states.

The prosecution’s motion also states that in referencing inconsistencies in timelines and the victim’s failure to fully disclose sexual activity on the day on the rape prior to the trial, the Court is using testimony put before the jury as a basis for granting a motion for a new trial “which is improper as it seriously invades the exclusive fact-finding province of the trial jury.” As for not disclosing the identity of the victim’s boyfriend prior to the testimony at trial, “the State is unaware of any requirement imposed upon the prosecution to disclose any relationship status of any witness prior to commencing or during prosecution of a case where that relationship status is not a specific element of a charged offense.”

As for the deletion of text messages prior to the investigation, “we obtained a search warrant and got copies of those text messages from the cellular provider,” Kaminsky said. “The defendant was provided with copies of all the records, including those conservations between her and her boyfriend about deleting text messages.”

And the fact that the victim’s mother cleaned up the blood at her residence, “was not suppressed and was testified about and argued at trial and therefore has no bearing on the motion for a new trial,” the prosecution motion states.

Kaminski said the prosecution did concede that it should have disclosed an affidavit and search warrant to obtain cellular telephone records for an individual who was investigated as part of the police process. “Through inadvertent and unintentional error this document was not disclosed to the Defendant prior to trial. However, the affidavit for the search warrant, search warrant and return were all filed with the Pike County Circuit Clerk’s office and therefore available from another source,” the motion states.

The motion also objects to the ordering a new trial for both rape cases, since all the issues cited in the judge’s order pertain to the case of one particular victim. ”Although the trial for each victim was held at the same time, the cases are still mutually exclusive of the other.”’

Ellis remains in prison where he is serving 22 years on a theft of property charge. A scheduling conference is set for Aug. 1 to set a date for the new trial.